Federal Usurpation (1908)
Franklin Pierce (1853-19XX)
State Centralization Through Commissions and Courts
“As to government, all discontent springs from unjust treatment. Idiots talk of agitators; there is but one in existence, and that is injustice.”Sir Chas. James Napier
“Every function superadded to those already exercised by the government, causes its influence over hopes and fears to be more widely diffused, and converts, more and more, the active and ambitious part of the public into hangers-on of the government, or of some party which aims at becoming the government. If the roads, the railways, the banks, the insurance offices, the great joint-stock companies, the universities, and the public charities, were all of them branches of the government; if, in addition, the municipal corporations and local boards, with all that now devolves on them, became departments of the central administration; if the employees of all these different enterprises were appointed and paid by the government, and looked to the government for every rise in life; not all the freedom of the press and popular constitution of the legislature would make this or any other country free otherwise than in name. And the evil would be greater, the more efficiently and scientifically the administrative machinery was constructed the more skillful the arrangements for obtaining the best qualified hands and heads with which to work it.”John Stuart Mill
“From these principles arose that venerable institution which none but a free and simple people could have conceived, trial by peers; an institution common in some degree to other nations, but which more widely extended, more strictly retained, and better modified among ourselves, has become perhaps the first certainly among the first, of our securities against arbitrary government.”Hallam
LOCAL self-government in the different states is the preparatory school in which the citizen acquires the rudiments of government, and always has been justly regarded as of the highest importance in maintaining the Republic. The people need not look to the constitution of their state for this right. They had the right before the constitution, which presupposes an organized society, law, order, property, and personal freedom. Usages, customs, maxims, modes of thought, the method of trying facts by juries, the mutual responsibility of neighborhood interests, the sentiments of manly independence and self-control which make good citizens, these are the sources of constitutional government; they precede constitutions, and without their existence a constitution would be a lifeless skeleton.
One great reason for the subversion of so many constitutions in France since the French Revolution is that the Constituent Assembly, for the purpose of destroying local self-government among the people, broke up the ancient divisions of the country and formed eighty-six departments, thus destroying all the traditions of the people as to local life. We are given to attributing our liberty to the securities of a constitution. No greater mistake could be made. The traditions of English liberty which the forefathers brought to this country, the local self-government which they established in towns and counties, their habits, customs, and usages have been the source of our liberties. The Constitution is simply the measure of the rights delegated by the people to their governmental agents, and secures them practically no rights which they did not have before its enactment. Jefferson, speaking of the benefits of local self-government, well said: “These wards called townships in New England are the vital principle of their governments, and have proved themselves the wisest invention ever devised by the wit of man for the perfect exercise of self-government and for its preservation.” Professor Lieber says: “Self-government, general as well as local, is indispensable to our liberty.” De Tocqueville declared:
“Those who dread the license of the mob and those who fear absolute power ought alike to desire the gradual development of provincial liberties. … A centralized government is fit only to enervate the nations in which it exists.”219
During the last twenty or thirty years we have been busily at work, through our legislatures, in hastening back to the kind of government that gave the guilds their privileges and sought to dictate as to the minutest details of life. The state, as in those days, has commenced the eternal intermeddling with the affairs of every locality through state commissions. It took a century or more to get rid of restrictive legislation and the state’s habit of controlling all the domestic affairs of man by law, and now we have commenced to return to the same conditions which required centuries of struggle to destroy. The growing absence of the habit of self-government can be seen in every village and hamlet in the land. The want of confidence of the people in their ability to build their roads and manage their local matters has been increasing under the new regime. At the rate we are going, it will be but a few years before state governments will have taken upon themselves all local affairs.
We have come in recent days to establish a kind of government known as government by commission. These commissioners are not nominated by the people, not elected by the people, not subject to the control of the people, and not even subject to the control of the executive, a portion of whose duties they perform. Their duties are prescribed by the legislature, and the governor has really no more control over them, although their duties are executive in nature, than he has over the action of a head of a distinct department of the government elected by the people.
Massachusetts was the first state to institute this form of government. In 1837 she established a state board of education; in 1852 a state board of agriculture ; between that time and 1895 thirty-two other commissions. The governor of Massachusetts, in 1885, appointed a commission of three men to take charge of the whole police administration of the City of Boston. He had no power to remove these men without the consent of the Council of State. They were not responsible to the legislature nor to the people of Boston, who were expressly excluded from all control. The power of granting licenses for the sale of liquor was also vested in this commission, and the fees therefrom were devoted to paying the expenses of the police. In 1894 a similar commission was appointed over Fall River. In 1893 was established the state highway commission, consisting of three members appointed by the governor and council, which took charge to a considerable extent of the highways of the state.220
In 1891 Governor Russell, in his address to the legislature of Massachusetts, said: “With much truth Massachusetts has been described as a commission-governed state. Its great departments of education, health, charities, prisons, reform schools, almshouses and workhouses, agriculture, railroads, insurance, fisheries, harbors and lands, savings banks and others are governed by independent boards practically beyond the control of the people. Besides these there are commissions on gas, pharmacy, dentistry, civil service, arbitration, cattle, wrecks, pilots, State aid, and others for special and temporary purposes. Almost without exception the members of these boards are appointed by the governor, but only with the advice and consent of nine other men. Their tenure of office is usually for a term of several years, often without power of removal by anyone, sometimes subject to removal for cause or otherwise by the governor, with the same consent. The latter power in effect necessitates a trial upon formal charges, which seldom would be made or could be proved except for flagrant malfeasance in office. The subordinate officials are generally appointed by the boards. These boards and their work are practically beyond the control of the people, or of anyone immediately responsible to them, except in the limited power of the governor occasionally to appoint a single member. The people of the state might have a most decided opinion about the management and work of these departments, and give emphatic expression to their opinion and yet be unable to control their action. The system gives great power without proper responsibility, and tends to remove the people’s government from the people’s control.” In Massachusetts, however, many public-spirited citizens in earlier days served upon these boards without receiving any pay for their services, and the governor and his council have exercised rare good judgment in the selection of the members of the different commissions; so that it may be said that if there is any state in the Union where arguments can be found in favor of such government, it is in that state.
As early as 1857 New York established a commission for the regulation of the railroads. But the railroads, which even at this early date exercised the same kind of influence over the legislature which has been growing since, determined to do away with this commission. They knew that the opposition would come from the leading commissioner and so, to induce him to resign and make no opposition, they paid him $25,000. The attorney of the Erie Railroad, testifying before the Hepburn Commission in 1879, said: “I was the attorney of the Erie Railroad at that time” (referring to 1857); “I specially used to attend to legislation that they desired to affect or oppose. … I remember the appointment of that commissioner. . . . We agreed that if they” (the leading railroad commissioner) “would not oppose the repeal of the law we would pay $25,000, and have done with the commission; it was embarrassing.”221
In the same year that the legislature created a railroad commission it also created a metropolitan police district, including the counties of New York, Kings, Westchester, and Richmond in a district to be called the Metropolitan Police District of the State of New York, and it authorized the Governor, by and with the consent and advice of the Senate, to appoint five commissioners of police, three from New York, one from Kings County, and one from Richmond and Westchester, whose terms of office were to be three years. This commission was given entire control over the police of that district. The constitutionality of this act was vigorously opposed but was upheld in the Court of Appeals.222
In 1857 the state board of charities was created in New York, and in 1880 the state board of health. State commissions have greatly impaired local self-government along many lines. They have taken over the control of the insane, of charitable institutions, and of reformatories. Commencing with 1880, when there were but three commissions existing, forty-one commissions came into existence by 1904. In the Comptroller’s report of 1904 a statement is given showing that the payments made from the state treasury, on account of the salaries and other expenses of the new officers and commissions created since 1880, had amounted to $66,238,254.39.223 In 1897 the roster of state employees connected with these commissions occupied about 130 pages of the report of the Civil Service Commission and included about 5,000 persons. The state expenditures for commissions today are probably five or six times the entire expenditures of the counties and towns.
The cause of the great increase of state expenditures in New York is accounted for to some extent by the relations existing between state senators and assemblymen and these commissions. The members of a commission are always interested in getting as large appropriations for the work of their commission as possible. Therefore they resort to the process of lobbying with members of the committees having charge of appropriations. The chairman of a committee of the Senate or Assembly is always a man whose influence is to be sought and who must be brought to their way of thinking. For some years past a chairman of a committee of the Senate has been at the same time the counsel in litigation for one of these commissions and in one year has been paid about $9,000 as legal fees out of the appropriations reported favorably by his committee for this commission.224
In 1906, according to Attorney-General Jackson, over $300,000 was paid out in special fees to lawyers, as counsel for the various commissions and departments of government, many of those lawyers being at the same time members of the legislature. During the same period the whole expenses of the Attorney-General’s office were only $131,270. It is estimated that during the last ten years $3,000,000, at least, has been paid out to special counsel, most of whom were doing legal work for these commissions, and many of whom were either Senators or Assemblymen.225
The small state of Connecticut, besides its minor boards and commissions, some twenty in number, has fourteen paid commissions with a total of forty-seven members. They include insurance, railroads, highways, banks, school funds, building and loans, fisheries and shellfish, labor and labor statistics, dairies, cattle, taxes, barbers and saloon licenses. All these commissions but two are of a political or partisan character. These commissioners thronged the state capitol at Hartford, during the last winter, engaged largely in lobbying with legislators to accomplish legislation in behalf of railroads and other like corporations. The present Governor Woodruff of that state, in his speech accepting the nomination, pledged himself to remove this kind of evil. In his message to the legislature he commented at length upon the abuses in the state commissions, and he removed from office the state tax commissioner, because of his having been engaged as a lobbyist in the state legislature. Several years ago the abuses of the County Commission, which has charge of the granting of licenses, became so flagrant that a law was passed allowing appeals from its decisions to be taken to the courts. The Railroad Commission is notoriously corrupt, and most of the commissioners are regarded as holding sinecure places as spoilsmen, and as engaged in caucuses, conventions, and the lobby, in behalf of political aspirants and private interests.226
We are apt to attribute bad government in our country to the fact that a considerable proportion of the voters are recent immigrants unacquainted with our customs and habits. In Connecticut we have in the towns outside the cities many descendants of the early inhabitants of that state. In revolutionary days Connecticut was the most democratic and the best governed state of the thirteen, but today, governed, not by the cities, which are deprived of their representation through a rotten borough system, but by the towns, she has about the most corrupt government to be found in any state in the Union. In Rhode Island, the history and government of which is very similar to that of Connecticut, we find the city of Providence, with nearly one half of the entire population of the state, represented only by a single Senator in a Senate of thirty-eight members. Twenty small towns, containing but eight per cent of the population, are able to control the legislation of the state against ninety-two per cent of the population. Both these states are controlled by a representative system nearly as bad as that found in England before the Reform Act.
Similar conditions exist in New Hampshire. A correspondent of the New York Evening Post, under date of February 10, 1897, after describing vividly local self-government as it existed many years ago in that state, said: “All this has entirely either disappeared or is fast vanishing. In New Hampshire the highway and school districts have been abolished; state officials have been multiplied and their functions extended. ‘The legislature,’ says the Mirror, ‘regulates our outgoing and our incoming, tells us in what pond we must not catch pickerel, and on whose land we may hunt chipmunks; it dictates what we shall eat and what we shall drink. Now the idea is steadily making headway that the state shall control and support the schools and build the highways.’ ”
South Carolina, after conducting a state dispensary for the sale of liquor throughout the whole state for a period of thirteen years, has gone back to the old system, and local option gives to every county the choice between prohibition and a dispensary of its own conducted by local officials. The official investigation of two years ago showed great scandals connected with the administration of the dispensary law, and the whole scheme was brought into discredit.
Self-government is a matter of absolute right on the part of localities. The state cannot take it away, because the people, originally possessing the right, have not given the legislature, through their constitution, the power to take it away.227 The people of the counties, towns, and villages are entitled of right to determine who shall rule over them. They cannot be deprived of this right by the legislature or by the heads of departments. This right is the very basis of all government in this country. Notwithstanding this, there is nothing which affects the citizen from infancy to the grave which is not subject to regulation by these commissions. Nothing is left to the uncontrolled will of the individual citizen. He eats, he drinks, he lives in subordination to the control of a multitude of administrative officers, and, thus governed, he pities the people of Prussia and Russia for their subjection to the arbitrary government of a bureaucracy.
I am aware that much can be said in favor of commissions to control sanitation, education, the adulteration of foods, the destruction of game and fish, and especially the preservation of the forests. Much indeed can be said in favor of factory inspection, the arbitration of labor disputes, and the examination of banks and insurance companies. Many of the commissioners are men with scientific knowledge and fervent enthusiasm for the extension of public benefits through the departments over which they preside. Because a considerable proportion of the population of a state is found in its cities, and because of the great concentration of manufacturing industries, the control of many things, which were left to localities in olden days, can be better controlled now by the state than by the locality. In matters where the whole state is interested, arguments in. favor of state control can be adduced.
But these commissions have been multiplied unduly so that they interfere very largely with local self-government. They are exercising judicial and legislative powers which it was never contemplated for a moment that they should exercise. If they come to believe that extraordinary powers belong to them, they can prohibit the carrying on of a business by refusing a license to it. The commissioners in no sense are responsible to the people, and are quite indifferent to public sentiment. Even if the people of the localities could not perform such duties as well as the commissioners, still in their performance they would retain their habit of controlling their local affairs, and that is of the greatest public importance. Long ago it was said: “A man can judge better in relation to his own affairs than seven watchmen on a tower.” And the people of a town, or a village, or a small city, are, as a rule, much better judges of what they need than are these commissioners.
Another objection to the existence of these commissions is that they split up the executive power of the governor, and that each commission has a kind of administrative veto on laws simply by not enforcing them. There is no such thing as securing an honest and faithful administration of the laws when we have one governor and forty or fifty commissions dividing the executive duties between them. The people of a state can watch a governor, and they will condemn his action if wrong. But they cannot watch forty commissions, and but a few people will know anything about what they are doing. This means that the commissioners have a perfect opportunity to carry on matters in their own way. Government by commission is not responsible government. We provide a governor to execute the laws and administer the affairs of the state, and then permit forty or fifty commissions to divide the administration with him. We hold him responsible for their acts over which he has no control; and when he attempts to remove a commissioner, as Governor Hughes did in the state of New York, the Senate refuses to consent, and thus a governor is hampered by the continuance in an important office of an unworthy public servant.
The truth is that public interests would be furthered by allowing the governor to select all the heads of departments in the state, and then hold him strictly accountable for the whole administration. In both the state and our larger cities it is impossible for the people to keep track of the heads of departments. The one way to enforce responsible government is to leave to the mayor of the city and the governor of the state the control and responsibility of all departments, by giving them the power both to appoint and remove such officials. This is a better kind of centralization than that involved in government by commission, where the people are unable to know and control conditions.
There has been no action upon the part of legislatures in recent days which has tended more toward centralization than attempts to control the local government of cities for partisan purposes. In March, 1901, the public authorities in the cities of Scranton, Pittsburg, and Allegheny were opposed to a certain section of their own party of the state republican machine in Pennsylvania. To get rid of the objectionable mayors and other officers of these cities the act of March 7, 1901, entitled an act for the government of cities of the second class, was passed by the Pennsylvania legislature. It changed the charters of each of the three cities of Pittsburg, Allegheny, and Scranton, and put them under special provisions, different from all other cities of the state, legislated out of office the mayor and other city officers, and placed the government of these cities in the hands of a high executive officer of the commonwealth residing at Harrisburg, thus doing away with local officers elected by the people whose terms of office had not expired. And the Supreme Court of Pennsylvania actually sustained that kind of legislation.228
In revolutionary days this great state of Pennsylvania had what was known as a council of censors, composed of two persons from each city and county in the state. They were elected for the first time in 1783 for a period of seven years. It was the duty of this body to inquire whether the Constitution had been violated, whether the public taxes had been justly levied and collected, and whether the laws had been duly executed. They had power to summon witnesses before them and to compel them to produce papers and reports. They had the power to order impeachments and to recommend the repeal of unconstitutional laws. They could call a convention for revising the Constitution, and one of the provisions which they were instrumental in putting into the Constitution would be a wholesome provision to limit the supply of politicians in that state today. This provision was as follows: “As every freeman to preserve his independence, if without sufficient estate, ought to have some profession, calling, trade or farm whereby he may honestly subsist, there can be no necessity for, or use in establishing offices of profit, the usual effects of which are dependence and servility unbecoming freemen in the possessors and expectants, faction, contention, corruption, and disorder among the people. But if any man is called into the public service to the prejudice of his private affairs he has a right to a reasonable compensation, and whenever an office, through increase of fees or otherwise, becomes so profitable as to occasion many to apply for it, the profits should be lessened by the legislature.”229
A hundred and twenty years later we see the state politicians of Pennsylvania permitting a contractor, on a contract of $9,000,000 for the erection of a statehouse, to make a profit of from $4,000,000 to $5,000,000. Mahogany desks which cost this contractor $40 were sold to the state for $864, a profit of 2,060%. Clothestrees that cost $2 were sold for $73, a profit of 3,550%. Corruption and usurpation of power go hand in hand. The people of Pennsylvania do not need censors of morals, but they do need thorough regeneration.
For the last thirty years or more it has been a common practice with the legislature of New York to amend the charters of cities by creating police commissioners, and fire commissioners, and other commissioners, with the provision that these commissioners should be selected in equal numbers from each of the two principal political parties. Such amendments have been made to the charters of the cities of Buffalo, Utica, Syracuse, Elmira, Rome, Lockport, Yonkers, Watertown, and Albany. Finally, the Court of Appeals, in a case which arose in Albany, declared an act of this kind unconstitutional as an interference with the absolute right of the city to control the election of its local officers.230
In 1900 the state of Michigan had an experience with this same kind of legislation. Detroit had elected a Democratic mayor. The Republican Governor of the state, acting in connection with the defeated officials of his party in Detroit, secured the passage of a bill depriving the Mayor of his power of appointment of city officials and giving it to the City Council, and through this Council the state controlled the city. In 1905 the Massachusetts legislature passed an act uniting the City of Boston with the state in making certain improvements, but this bill was vetoed by Mayor Collins and did not become a law. A few years ago the City of Chicago was controlled by the legislature of the state of Illinois. Finally, the people of Chicago succeeded in procuring the right of a referendum for legislation affecting the city, and secured self-government for themselves.
The methods of state legislation are doing much to centralize power in the state. All legislation is carried on in the state legislatures in the same manner that I have described in the chapter on Congressional Usurpation. The struggle on the part of assemblymen and senators is to secure an appointment on one of the leading committees. Behind the doors of the committee rooms is hidden the corruption which has done so much to discredit state governments. The chairman of a committee frequently will not bring a bill referred to that committee before it at all. Many of the proposed laws are never reported by the committees. Subcommittees, selected by the chairman, are often employed to strangle a proposed law. Special legislation affecting localities, once reported from a committee, is almost sure to pass the House with little or no discussion. The result is that the people are unable to procure information about what is going on in their legislatures. The division of the legislature into many small legislative bodies, the lack of discussion in the full body, and the power of the Speaker and the Committee on Rules, in the last days of a session, to jam through hundreds of bills without any discussion whatever, result in the passage of many measures which never could be passed if public attention was directed to them and public discussion encouraged.
These methods have brought a bad reputation to the state legislatures. Everywhere there are attempts to limit their meetings. Only six states now have annual sessions Georgia, Massachusetts, New Jersey, Rhode Island, New York, and South Carolina. In Mississippi and Alabama the legislature meets only once in four years. We make laws in our state legislatures by the thousands to be laughed at. No other country in the world permits so many restrictive and sumptuary laws. Many of these laws, like those prohibiting the sale of liquor, are passed at the request of good people, the members well knowing that they will never be enforced. The usual result of such legislation is that police officials sell the right to violate the law and that its violation is approved by a large part of the people. The popular remedy for bad morals, social sins, and all kinds of human dereliction, is an act of the legislature. There is no surer sign of decadence than this mania for such law-making. During the five years from 1899 to 1904, 45,552 acts were passed by American legislatures. Of these enactments, 16,320 were public or general laws, while the remainder were special or local.231 The legislatures of the different states in our Union probably pass more laws each year than are passed during the same time by all the other legislative bodies in the world, outside of the Congress of the United States.
Pinckney, of South Carolina, Madison, Hamilton, and several other members of the Constitutional Convention urged that the National Legislature should have authority to negative all laws passed by the states which they thought were improper. This was advocated for several days and with great force before the Convention, but was finally defeated. Lansing, of New York, with little comprehension of the future, declared that such a scheme was impracticable. He said: “Is it conceivable that there will be leisure for such a task? There will on the most moderate calculation be as many laws sent up from the States as there are days in the year.” In the ancient town of Locri, in Magna Græcia, the first written code of laws in the ancient Roman world was promulgated. One of its most wholesome provisions was that the proposer of a new law should stand forth in the public assembly with a rope about his neck, and that if the law was rejected its proposer should be strangled. Such a provision in our American states would be a wholesome preventive upon hasty legislation. Buckle has well said that for five hundred years all advance in legislation has been made by repealing laws.
Before the Civil War considerable honor was connected with the office of Member of Assembly or State Senator. In more recent days men of high character as a rule have not sought such positions. Many a lawyer has sought the office of Member of Assembly or Senator with no higher, purpose than to attach himself to industrial interests and thus procure a clientage. It is those kind of legislators who through secret committees get their clients special legislation. In Alabama, California, Kentucky, Louisiana, and Mississippi statutes have been passed in recent years exempting cotton or woolen manufacturers, beet sugar plants, or other manufacturing enterprises from local taxation for periods of from three to fifteen years. The legislatures of no less than sixteen different states have passed similar laws. In the Maryland Legislature of 1900 fifteen acts freeing bond issues from a state tax were passed. It would seem that all this line of legislation was clearly unconstitutional.
There is no abuse in our day, however, which tends more to centralization of state government than the frequent exercise of the discretion in state appellate courts of setting aside judgments, entered upon verdicts of juries as against the weight of evidence. The petit jury, in something like its present form, has existed since about the reign of Henry II (1154-1189). So highly was this right regarded that many of the original thirteen states reluctantly approved the Constitution without the existence of this safeguard, and by one of the first ten amendments it was secured to litigants in United States Courts. Every one of the original thirteen states guaranteed this right to litigants in its courts. Every one of our states today secures this right by its constitution, and yet every lawyer with wide experience in the trial of cases is aware that the verdict of a jury has entirely lost its conclusiveness, and is treated as merely advisory to the court. Twenty years ago no principle of law was better settled than that a verdict of a jury could not be set aside unless it was so contrary to the preponderating proof as to be evidence that the jury had been controlled by prejudice, passion, or corruption.232 Today it is a common occurrence in appellate courts, in about every state of the Union, to set aside the verdict of a jury when the court is not satisfied with its justice.
The judge who presides upon the trial of a case before a jury has an opportunity to observe the appearance of the witnesses, and to form a reasonably correct impression as to their credibility. Those impressions might well amount to a conviction which would justify his action in setting aside a verdict as against evidence. But an appellate court has no opportunity to see the witnesses except upon paper, and it has been well said that all witnesses look alike upon paper. They do not look alike to the jury. The manner in which a witness walks when called to the stand, his attitude in taking the oath, his face, which may be indictable at common law, all these things are seen by the jury, and their conviction as to the credibility of his testimony cannot well be reviewed in the higher court. Notwithstanding these reasons, apparent to anyone why verdicts should not be lightly set aside, it is becoming a most common occurrence for appellate courts to reverse such judgments. If the verdict of a jury may be set aside in any case where the court is not satisfied with it, if the court must be satisfied as well as the jury, then the jury trial ought to be dispensed with altogether. It has been held, in recent days, that if there has been three successive verdicts in favor of one party, the Appellate Court will not reverse the final judgment.233 But even this rule, which requires a poor man to get thirty-six jurors to agree that he has proved his case, has been declared by an appellate court as untenable, the court holding that, if in its opinion the verdict is not sustained by the evidence, it matters not how many times a similar verdict has been rendered in the case, the court should set it aside.234
Because of this manner of regarding verdicts, and because of the technical grounds on which judgments are reversed in higher courts, ordinary litigation now is frequently a matter of years of delay, and to poor plaintiffs is equivalent to the miscarriage of justice. Thirty to forty per cent of all appeals in the several states result in reversals. If any error exists as against the appellant, however slight, either in the admission of evidence or in the charge of the trial judge, the presumption of prejudice to the defeated party requires a reversal. A large proportion of the decisions of higher courts are made by only a majority of the judges. In all the cases wherein the United States Supreme Court has held a national statute to be unconstitutional, before 1894 there were only six in which the Court was unanimous. Notwithstanding that a majority of an appellate court can reverse or affirm a judgment, the consent of every juror in most states is required in order to obtain a verdict. The result of this constitutional requirement is that there are delays and miscarriages of justice.
In manufacture, agriculture, and every other field of human industry or activity, in recent years there has been a steady advance movement. Thirty years ago, however, the trial of civil cases was more simple and expeditious than it is today. The whole tendency in recent times has been to obstruct the speedy conclusion of litigation by reversals upon technical grounds which do not go to the merits, or because appellate courts, which perhaps never read the whole of the evidence, are dissatisfied with the verdict. This results practically in depriving the citizen of rights secured to him by the Constitution, and is one of the most grievous conditions in our day. It would not take long to gather from the reports of the different states of the Union, hundreds of cases which have been running in courts for periods of from five to twenty years, and in which there have taken place from three to ten trials. In the law reports of England, for the period from 1890 to 1900, if appears that new trials were granted in less than 3% of all the cases appealed.235 It has well been said by an able judge that “There is no scourge in the hands of the strong- against the weak like this scourge of new trials. It can wear out the strength and endurance of the weak, and it has been used for that purpose.”236
To the delays in the administration of the law on its criminal as well as its civil side may be attributed the condition of lawlessness and lynching which is so prevalent in our country. In no other civilized country does such a condition exist. The jury system undoubtedly has imperfections, but compared with other human institutions to procure justice it has best borne the test of long experience. This system has done more among English-speaking people to maintain freedom than all other causes combined. You hardly can find a lawyer of wide experience in the trial of cases before juries who does not believe that under the guidance of an intelligent judge the system brings justice in the majority of cases. There is no better proof of its wisdom than the fact that it did not exist among the continental countries of Europe until the nineteenth century, and that during that century it has been adopted by many of the most enlightened states, and that it always has been continued in any country where it has been adopted. In England, even James II was obliged to send the Bishops to trial by jury, and endure the mortification of seeing them acquitted.
The abuses that have come in jury trials are largely the result of the requirement of a unanimous verdict. Those abuses, to a much greater extent than generally has been believed, have been the result of tampering with one or two jurymen in important cases. That such a system is carried on in some cities is established beyond the slightest doubt. The people owe it to themselves to change the provisions of their state constitutions requiring a unanimous verdict, and to allow the verdict of nine jurors to determine the rights of the parties. No change in the fundamental law of the states could bring such wholesome results as this.
The state courts of Connecticut furnish us with an example of the results of doing away with jury trials in a certain class of cases. It has become the practice in that state in many actions in tort for the defendant not to interpose an answer to the complaint. By this device the amount of damages suffered by the plaintiff is determined by the court without a jury. The right of a plaintiff to have his damages assessed before a jury in such cases has been seriously contested. But the Connecticut appellate courts have decided that he has no such right.237 The result of this holding has been that in cases of serious injury, or even of death resulting from the defendant’s negligence, the plaintiff frequently has received at the hands of the judge but slight damages.
The result of these delays and miscarriages of justice is that negligence has become a normal condition in our country. “Let it go at that,” seems to be written all over the face of our railway management and industries. Between June 30, 1897, and June 30, 1900, war was being carried on between Great Britain and the South African Republic, but that war, with its sharp-shooting Boer farmers, was but slightly more deadly to the British forces than the negligence of the railways of the United States was to our people. During those three years ending June 30, 1900, 21,847 persons were killed on American railways. During the same time the British forces in South Africa, including deaths from disease, lost 22,000 men. In thirteen years ending June 30, 1900, according to the official reports, 86,277 people were killed on the railways of our country. During the same period 469,027 persons were injured.
Away back in the days of carpetbag government in Louisiana the courts commenced the use of injunctions to control political parties. The first injunction granted in those days astonished lawyers. In our day, however, in the state of Colorado, the proceedings of the Star Chamber are quite outdone. Alvah Adams was elected on the face of the returns as Governor of Colorado. The Supreme Court of that state at General Term issued a temporary injunction staying the declaration of his election, found that there had been fraud in his election, punished some of the alleged wrongdoers for contempt of court, and, without a particle of jurisdiction, conducted the whole matter to a conclusion satisfactory to itself.
A year or two later a city election was held in Denver, and Supreme Court Judge Johnson, sitting at circuit, sought through injunction against fraudulent voting to follow this precedent and conduct the election in the same manner as the higher court had in the case of the Governorship. Thereupon the higher court issued its writ of prohibition stopping Judge Johnson from exercising the jurisdiction which it had exercised, although its power in the matter was the same as that of the Circuit Judge. In vain, counsel pleaded on the motion to dismiss this writ, that Judge Johnson was following the precedent of the appellate court, and that, as a court at special term, he was entitled to do exactly what the appellate court, which was given original jurisdiction, had done in the Adams case. But the appellate court held that it had exclusive right to supervise elections by the high prerogative writ of injunction, while the other courts of general jurisdiction throughout the state had no such power.
The state of Colorado has seen in the last few years a condition of open flagrant bribery, failure on the part of the state legislature to carry out the constitutional amendment prescribing an eight-hour day, the suppression of about every constitutional right of the citizen, the deporting of men and women from the state for the offense of agitation, and the forcing of the resignation of officers elected by the people by means of ropes about their necks. Nowhere in the civilized world, in recent times, have the constitutional rights of the citizen been so shamelessly violated by the executive and the Courts as in that state.
No person who has been observing with care the conditions existing throughout our country in recent years can help but see that there is a marked tendency to disregard the liberties of the citizen. For many years, in the city of New York, it has been common to arrest men without a warrant for misdemeanors not taking place in the presence of the officer. In fact, it has been a matter of common occurrence to arrest men at night without any written complaint or warrant, and to hold them to await the filing of a complaint. The public prosecutors for many years have been in the habit of arresting men on what are known as John Doe warrants, although in the case of John Wilkes, as far back as 1763, when the Secretary of State in England issued a general warrant for the persons of the authors and printers of the North Britain, it was held by the English Courts that such warrants were invalid,238 and since that time no court has sustained their validity. The prohibition of such warrants is found in the Fourth Amendment to the Constitution of the United States. Such a prohibition was found in the first constitutions of Massachusetts, Virginia, Vermont, Pennsylvania, and New Hampshire. Yet these seem trivial rights to our public prosecutors. In like manner the right of the defendant in criminal proceedings to a speedy trial is steadily disregarded in the state of New York.
Such violations of personal rights, continued for any considerable period of time, by and by will destroy constitutional guarantees. The Mexican Constitution, passed in 1857, is almost a copy of our own. It provides carefully for the rights of the defendant in criminal proceedings, yet by constant abuse it has come to mean nothing. A prisoner arrested is secluded for seventy-two hours after his arrest, during which time while in solitary confinement his statement is taken by the judge. The constitutional provision that he must be confronted by the witnesses is complied with by reading the testimony of the witnesses to the accused, and he is given an opportunity to cross-examine them only through the presiding judge. In one way and another about all the safeguards of the prisoner are destroyed by construction. Under the Magoon code in Panama the presiding judge, with two mayors selected by him, sit and try men on accusations of murder. Two votes of the three are sufficient to convict. The men who are in the employ of the United States government, constructing this great water way, are subjected to that kind of government by the United States, which so carefully has secured to its citizens in criminal proceedings the safeguards of the English law. Under our present autocratic tendencies, with the growing disregard for personal rights, how long will it be before the same disregard will become permanent in our own criminal courts?
I have detailed these defects in our state governments because just such abuses give force to the cry that the national government should take the control of such matters from the states. Reverence for laws and courts cannot long exist unless the lawmaking power and the administration o! the law continue worthy of respect. Examples of justice in government are a thousand times more beneficial to the people than the unbounded charity of our millionaires. It is the hasty, careless, and corrupt enactment of laws, together with such execution of justice as I have described, which is bringing state rights into disrepute. Our modern state legislators are apt to mistake vexatious forms of coercion for legitimate regulation of domestic affairs. We are unnecessarily multiplying legal restrictions upon every form of human action, and if these are not enforced, the legislative, executive, and judicial powers are brought into bad repute. Whenever a cry goes up against some evil condition the legislature proceeds to enact a prohibitory statute or a penal law condemning it, and then very often it is left unenforced.
We are apt to protect with a high degree of care all property rights, but fail to defend the liberties of the citizen. All unreasonable restrictions upon his rights of action, speech, and public assembly are not only not in keeping with our own ideas of liberty, but indicate a tendency toward such conditions as exist in Prussia, Russia, and other absolute governments. The way to stop usurpation of the national government is to make our state governments what they should be, and endear them to the people by the justice of their laws and the freedom afforded to innocent action. Patriotism in our states, instead of demonstrating itself in the careful study of our institutions and in an attempt to improve their condition, finds its expression too often in vainglorious assertion and sentimental flag cheering. Manuals of patriotism for public schools prescribing patriotic exercises, and flag worship, and all that sort of a thing, will avail nothing unless the states give to their people a kind of government which arouses patriotism.
The national government has no powers but those delegated to it by the states. The states, on the other hand, are unfettered by any limitations whatever except through their constitutions, and their courts are especially adapted to deal with the great mass of questions relating to life, limb, health, and the security of property. When it appears that a corporation has procured its charter through bribery or corruption, our state courts can destroy the charter of that corporation, except so far as liens upon its property have passed into the hands of bona fide purchasers. The way to take care of combinations and trusts, which through bribery secure special legislation, is through state law. The Attorney-General should be given ample power to institute actions to declare such grants void. A simple remedy against the extortions of the trusts could be found in the power of the state governments to refuse permission to such combinations as are incorporated without a state to carry on business in that state. An agreement of this kind between many states would be found effective.
Laws should be passed in every state requiring political parties to disclose under oath the sums paid to party organizations on all occasions, the names of the persons paying them, and a full account of the matter. No measure could be more productive of good than the destruction of the committee system in our legislatures. The laws of each state should require that each bill and resolution, referred to a committee, should be reported by the committee within ten days after its reference. The minority of a committee should have the power to report a bill, although it has not been accepted by the committee for the consideration of the Assembly or the Senate. In no way can the tendency to centralization be so effectually lessened as by vigorous support of local self-government. The city, the county, the town, are the ones which suffer from special legislation. The functions of the town and the village and the county are impaired in every case where control of their local matters is taken over by the state government. The positive, unquestioned sovereignty of the states in every detail of their reserved rights should be actually used and jealously guarded. In this way more than any other can we avert the encroachments of the national government.
The National Republican party in 1860 expressly disclaimed any intention or any legal power to interfere with state rights. Its national platform contained the following: “Resolved, That the maintenance inviolate of the rights of the states, and especially the right of each state to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depends.” The Republican party today and the Democratic party would both declare and adhere to such doctrine if the people demanded it.
When Washington was President of the United States, so much dignity was attached to the position of Governor of New York that it was a point of etiquette whether Governor Clinton should first call upon the President, or the President upon the Governor. When President Washington visited Boston, the same question came up as to whether he should first call upon Governor Hancock or the Governor upon the President. The people in those days were most jealous of the dignity of their state officers and of the rights of the states. But all this has changed.
A few months ago, Governor Hughes, of New York, became involved in a contest with the Senate over the removal of Superintendent Kelsey of the Insurance Department. We, who are proud of our Governor and who know his fighting capacity, felt assured that he was right and that he was quite equal to the occasion. In the midst of that contest the newspapers were filled with reports that the President had interfered in the contest, and, as an indication of his feeling, was about to appoint a revenue collector at Rochester in the interests of Governor Hughes. A short time before, the President had addressed this telegram to Governor Guild, of Massachusetts:
THE WHITE HOUSE, WASHINGTON, June l0th.
Governor Curtis Guild, Boston, Mass.:
Have been requested on behalf of certain parties in Boston to interfere with the execution of Tucker, it being alleged that it is my duty so to do inasmuch as I have the power under the Federal laws.
No showing has been made to me that I have such power, but, without regard to this, I desire to state to you that, in my judgment, your decision not to interfere with the carrying out of the sentence of Tucker seems to me entirely sound and commands my hearty sympathy. It seems particularly a case in which there should be no interference with the carrying out of the sentence.
Instead of approving such action on the part of the President when it favors the interests we approve, we should condemn it with all vigor. It would be commendable in the President, as a citizen and an individual, to take an interest in the affairs of New York and Massachusetts, but as President his interference is not only uncalled for, but it is highly improper. The people of any state should resent such meddling in their affairs by the President of the United States. In no other way can they so well vindicate the sovereignty and the dignity of the states in which they live. If they will not vindicate those rights, if the words upon their lips, “I am a citizen of New York”; “I am a citizen of Massachusetts,” are not words of pride, they ought not to complain that the national government is rising in power and the state governments are declining.
219. Democracy in America, chap. v, p. 99.
220. Bradford, The Lesson of Popular Government, vol. ii, pp. 27-31.
221. Lloyd, Wealth against Commonwealth, pp. 370, 371.
222. The People v. Simeon Draper, 15 N. Y.. 532.
223. Comptroller’s Report, 1904, pp. 702-707.
224. Albany Letter to the N. Y. Evening Post, March 4, 1907.
225. Special Correspondence to the N. Y. Evening Post, March 17, 1907.
226. Letter to the N. Y. Evening Post, March 4, 1907.
227. Rathbone v. Worth, 150 N. Y., 459.
228. Commonwealth v. Moir, 199 Pa., 534.
229. American Academy of Political and Social Science, pamphlet No. 200, pp. 97, 98.
230. 150 N. Y., 459, 510, 512.
231. Reinsch, American Legislatures and Legislative Methods, p. 300.
232. Hospital Supply Co. v. O’Neill, 10 Misc. Rep., 656,657; Morse v. Wright, 63 Barb., 21; Fleming v. Smith, 44 Barb., 554; Beckwith v. R.R. Co., 64 Barb., 299; Cheney v. R.R. Co., 16 Hun, 415; Dollner v. Lintz, 9 Daly, 17; Duffus v. Schwinger, 92 Hun, 70; Swartout v. Willingham, 6 Misc. Rep., 179; August v. Fourth Nat’1 Bk., 15 St. Rep., 956; Polhemus v. Moser, 7 Robertson, 489; Cothran v. Collins, 29 Howard Pr., 155; Heritage v. Hall, 33 Barb., 347; Hinckinbottom v. Del., Lack. & W. R.R. Co., 15 St. Rep., 13; Grassley v. McArdle, 74 Hun, 133; Coleman v. Southwick, 9 Johnson, 46; Strohm v. N. Y., Lake E. & W. R.R. Co., 32 Hun, 21; Peck v. N. Y. C. & H. R.R. Co., 8 Hun, 289; Gale v. N. Y. C. & H. R.R. Co., 13 Hun, 5; Bierhauer v. N. Y. C. & H. R.R. Co., 15 Hun, 564; Minck v. City of Troy, 19 Hun, 253; Culver v. Avery, 7 Wend., 384; Drennen v. Brown, 10 Ark., 138; St. L. S. W. R’y Co. v. Byme, 73 Ark., 377; Anisby v. Dickhouse, 4 Cal., 102; Bishop v. Perkins, 19 Conn., 300; Burton v. R.R. Co., 4 Har., 252; Stewart v. Elliott, 2 Mackay, 307; Walker v. Walker, n Ga., 203; Warner v. Robertson, 13 Ga., 370; Spurlock v. West, 80 Ga., 306; Kincaid v. Turner, 7 111., 618; Muldowney v. R.R. Co., 32 la., 178; Cavender v. Fair, 40 Kans., 182; Milo v. Gardner, 41 Me., 549; Baker v. Briggs. 8 Pick., 121; Cunningham v. Magoun, 18 Pick., 13; Hicks v. Stone, 13 Minn., 434; Kansas, etc., R’y Co. v. Dawley, 50 Mo. App., 489; McGatrick v. Wason, 4 0. St., 566; Hall v. Hodge, 2 Tex., 323; Gibson v. Hill, 23 Tex., 77; Campbell’s Lessee v. Sproat, 1 Yeates, 327; Morien v. N., etc., Co., 102 Va., 622; Fearing v. De Wolf, 3 Woodb. & M., 185; Gilmer v. City, 16 Fed., 708; Davey v. AEtna L. I. Co., 20 Fed., 494; Plummer v. Granite M. M. Co., 55 Fed., 755.
233. McCann v. New York & Queens County Ry. Co., 73 App. Div., 305; Lacs v. Everard’s Breweries, 107 App. Div., 250.
234. Meinrenken v. New York Central Railroad Co., 103 App. Div., 319.
235. American Law Review, vol. xl, p. 681.
236. Judge Chas. F. Amidon, Amer. Law Rev., vol. xl, p. 690.
237. Seeley v. City of Bridgeport, 53 Conn., 1; Lennon v. Rawitzer, 57 Conn., 583.
238. Goldwin Smith, The United Kingdom, vol. ii, p. 201.