The Spirit of American Government.

by J. Allen Smith.

PREFACE

It is the purpose of this volume to trace the influence of our const.i.tutional system upon the political conditions which exist in this country to-day. This phase of our political problems has not received adequate recognition at the hands of writers on American politics. Very often indeed it has been entirely ignored, although in the short period which has elapsed since our Const.i.tution was framed and adopted, the Western world has pa.s.sed through a political as well as an industrial revolution.

In the eighteenth century the majority was outside of the pale of political rights. Government as a matter of course was the expression of the will of a minority. Even in the United States, where hereditary rule was overthrown by the Revolution, an effective and recognized minority control still survived through the property qualifications for the suffrage and for office-holding, which excluded a large proportion of the people from partic.i.p.ation in political affairs. Under such conditions there could be but little of what is now known as democracy.

Moreover, slavery continued to exist upon a large scale for nearly three-quarters of a century after the Const.i.tution was adopted, and was finally abolished only within the memory of many now living.

It could hardly be expected that a political system set up for a community containing a large slave population and in which the suffrage was restricted, even among the free whites, should in any large measure embody the aims and ideas of present day democracy. In fact the American Const.i.tution did not recognize the now more or less generally accepted principle of majority rule even as applying to the qualified voters.

Moreover, it was not until several decades after the Const.i.tution was adopted that the removal of property qualifications for voting allowed the people generally to have a voice in political affairs.

The extension of the suffrage was a concession to the growing belief in democracy, but it failed to give the ma.s.ses an effective control over the general government, owing to the checks in the Const.i.tution on majority rule. It had one important consequence, however, which should not be overlooked. Possession of the suffrage by the people generally led the undiscriminating to think that it made the opinion of the majority a controlling factor in national politics.

Our political writers have for the most part pa.s.sed lightly over the undemocratic features of the Const.i.tution and left the uncritical reader with the impression that universal suffrage under our system of government ensures the rule of the majority. It is this conservative approval of the Const.i.tution under the guise of sympathy with majority rule, which has perhaps more than any thing else misled the people as to the real spirit and purpose of that instrument. It was by constantly representing it as the indispensable means of attaining the ends of democracy, that it came to be so generally regarded as the source of all that is democratic in our system of government. It is to call attention to the spirit of the Const.i.tution, its inherent opposition to democracy, the obstacles which it has placed in the way of majority rule, that this volume has been written.

The general recognition of the true character of the Const.i.tution is necessary before we can fully understand the nature and origin of our political evils. It would also do much to strengthen and advance the cause of popular government by bringing us to a realization of the fact that the so-called evils of democracy are very largely the natural results of those const.i.tutional checks on popular rule which we have inherited from the political system of the eighteenth century.

The author acknowledges his indebtedness to his colleague, Professor William Savery, and to Professor Edward A. Ross of the University of Wisconsin, for many pertinent criticisms and suggestions which he has borne in mind while revising the ma.n.u.script of this work for publication. He is also under obligation to Mr. Edward McMahon for suggestions and for some ill.u.s.trative material which he has made use of in this volume.

J. ALLEN SMITH.

Seattle, Washington, January, 1907.

THE SPIRIT OF AMERICAN GOVERNMENT

CHAPTER I

THE ENGLISH GOVERNMENT OF THE EIGHTEENTH CENTURY

Const.i.tutional government is not necessarily democratic. Usually it is a compromise in which monarchical and aristocratic features are retained.

The proportion in which the old and the new are blended depends, of course, upon the progress the democratic movement has made. Every step toward democracy has been stubbornly opposed by the few, who have yielded to the popular demand, from time to time, only what necessity required. The const.i.tution of the present day is the outcome of this long-continued and incessant struggle. It reflects in its form and character the existing distribution of political power within the state.

If we go back far enough we find government nearly everywhere in the hands of a King and privileged cla.s.s. In its earlier stages the const.i.tutional struggle was between monarchy and aristocracy, the King seeking to make his authority supreme and the n.o.bility seeking to limit and circ.u.mscribe it. Accordingly, government oscillated between monarchy and aristocracy, a strong and ambitious King getting the reins of government largely in his own hands, while the aristocracy encroached upon the power and prerogatives of a weak and incompetent one. Thus democracy played no part in the earlier const.i.tutional struggles. The all-important question was whether the King or the n.o.bility should control the state. Civil wars were waged to decide it, and government gravitated toward monarchy or aristocracy according as the monarchical or aristocratic party prevailed.

Under William the Conqueror and his immediate successors the government of England was practically an absolute monarchy. Only the highest cla.s.s was consulted in the Great Council and the advice of these the King was not obliged to follow. Later, as a result of the memorable controversy between King John and his feudal barons, the Great Council regained the power which it had lost. Against the King were arrayed the n.o.bility, the church as represented by its official hierarchy, and the freemen of the realm, all together const.i.tuting but a small minority of the English people. The Great Charter extorted from the King on this occasion, though frequently referred to as the foundation of English liberty, was in reality a matter of but little immediate importance to the common people. The benefit of its provisions, while not limited to the n.o.bility, extended, however, only to those cla.s.ses without whose aid and support the tyrannical power of the King could not be successfully opposed. The church, by reason of the great wealth which it controlled and the powerful influence which it exerted in a superst.i.tious age over the minds of the people, was a factor that could not be ignored. The freemen also played an important part in the const.i.tutional struggles, since they carried the sword and formed the rank and file of the fighting cla.s.s. The important provisions of the Great Charter relate exclusively to the rights of the church, the n.o.bility and the freemen.

The serfs, while not included within the benefit of its provisions, were an overwhelming majority of the English people. This conclusion is irresistible in view of the fact that the Domesday Survey shows that about four-fifths of the adult male population in the year 1085 were below the rank of freemen.[1]

The Great Charter was, it is true, an important step in the direction of const.i.tutional government, but it contained no element of democracy. It merely converted the government from one in which monarchy was the predominant feature, to one in which the aristocratic element was equally important. The cla.s.ses represented in the Great Council became a const.i.tutional check on the power of the King, inasmuch as he could not levy taxes without their consent. The important const.i.tutional position which this charter a.s.signed to the n.o.bility was not maintained, however, without repeated struggles under succeeding Kings; but it laid the foundation for the subsequent development which limited and finally abolished the power of the monarch.

In the course of time the Great Council split up into two separate bodies, the House of Lords, composed of the greater n.o.bility and the higher dignitaries of the church, and the House of Commons, representing all other cla.s.ses who enjoyed political rights. When the House of Commons thus a.s.sumed a definite and permanent form as a separate body, a new check upon the power of the King appeared. The consent of two separate bodies was now necessary before taxes could be imposed. The development of these checks was hastened by the fact that the King found it easier and safer to get the a.s.sent of these bodies to measures which involved an exercise of the taxing power, than to attempt the collection of taxes without their support. In this way the right of a.s.senting to all measures of taxation came in time to be recognized as belonging to the two houses of Parliament. But this was a right not easily established. It was claimed and fought for a long time before it finally became a firmly established principle of the English Const.i.tution.

Around the question of taxation centered all the earlier const.i.tutional struggles. The power to tax was the one royal prerogative which was first limited. In time Parliament extended its powers and succeeded in making its a.s.sent necessary to all governmental acts which vitally affected the welfare of the nation, whether they involved an exercise of the taxing power or not. The law-making power, however, as we understand it now was seldom employed, the idea of social readjustment through general legislation being a recent growth. But as revenues were necessary, the taxing power was the one legislative function that was constantly exercised. It is not strange then that the earlier const.i.tutional development should have turned mainly upon the relation of the various political cla.s.ses to the exercise of this power.

That English const.i.tutional development resulted in a parliament composed of two houses may be regarded as accidental. Instead of this double check upon the King there might conceivably have been more than two, or there might, as originally was the case, have been only one. Two distinct elements, the secular n.o.bility and the dignitaries of the church, combined to form the House of Lords. The House of Commons was also made up of two distinct const.i.tuencies, one urban and the other rural. If each of these cla.s.ses had deliberated apart and acquired the right to a.s.sent to legislation as a separate body, a four-chambered parliament, such as existed in Sweden up to 1866 and still survives in Finland, would have been the result.[2]

The essential fact, everywhere to be observed in the development of const.i.tutional government, is the rise to political power of cla.s.ses which compete with the King and with each other for the control of the state. The monopoly of political power enjoyed by the King was broken down in England when the n.o.bility compelled the signing of Magna Charta.

This change in the English Const.i.tution involved the placing of a check upon the King in the interest of the aristocracy. Later, with the development of the House of Commons as a separate inst.i.tution, the power of the King was still further limited, this time in the interest of what we may call the commercial and industrial aristocracy.

At this stage of its development the English government contained a system of checks and balances. The King still retained legislative power, but could not use it without the consent of both Lords and Commons. Each branch of the government possessed the means of defending itself, since it had what was in effect an absolute veto on legislation.

This is a stage in political evolution through which governments naturally pa.s.s. It is a form of political organization intermediate between monarchy and democracy, and results from the effort to check and restrain, without destroying, the power of the King. When this system of checks was fully developed the King, Lords and Commons were three coordinate branches of the English government. As the concurrence of all three was necessary to enact laws, each of these could defeat legislation desired by the other two.

The development of this system of checks limited the irresponsible power of the King only on its positive side. The negative power of absolute veto the King still retained. While he could not enact laws without the consent of the other two coordinate branches of the government, he still had the power to prevent legislation. The same was true of the Lords and Commons. As each branch of government had the power to block reform, the system was one which made legislation difficult.

The system of checks and balances must not be confused with democracy; it is opposed to and can not be reconciled with the theory of popular government. While involving a denial of the right of the King or of any cla.s.s to a free hand in political matters, it at the same time denies the right of the ma.s.ses to direct the policy of the state This would be the case even if one branch of the government had the broadest possible basis. If the House of Commons had been a truly popular body in the eighteenth century, that fact would not of itself have made the English government as a whole popular in form. While it would have const.i.tuted a popular check on the King and the House of Lords, it would have been powerless to express the popular will in legislation.

The House of Commons was not, however, a popular body in the eighteenth century. In theory, of course, as a part of Parliament it represented the whole English people. But this was a mere political fiction, since by reason of the narrowly limited suffrage, a large part of the English people had no voice in parliamentary elections. Probably not one-fifth of the adult male population was ent.i.tled to vote for members of Parliament. As the right to vote was an incident of land ownership, the House of Commons was largely representative of the same interests that controlled the House of Lords.

That the House of Commons was not democratic in spirit is clearly seen in the character of parliamentary legislation. The laws enacted during this period were distinctly undemocratic. While the interests of the land-holding aristocracy were carefully guarded, the well-being of the laboring population received scant consideration. The poor laws, the enclosure acts and the corn laws, which had in view the prosperity of the landlord, and the laws against combination, which sought to advance the interests of the capitalist at the expense of the laborer, show the spirit of the English government prior to the parliamentary reform of 1832. The landlord and capitalist cla.s.ses controlled the government and, as Professor Rogers observes, their aim was to increase rents and profits by grinding the English workman down to the lowest pittance. "I contend," he says, "that from 1563 to 1824, a conspiracy, concocted by the law and carried out by parties interested in its success, was entered into, to cheat the English workman of his wages, to tie him to the soil, to deprive him of hope, and to degrade him into irremediable poverty."[3]

But it is not in statute law alone that this tendency is seen. English common law shows the same bias in favor of the cla.s.ses which then controlled the state. There is no mistaking the influences which left their impress upon the development of English law at the hands of the courts. The effect of wealth and political privilege is seen here as well as in statutory enactment. Granting all that can justly be said in behalf of the wisdom and reasonableness of the common law, the fact nevertheless remains, that its development by the courts has been influenced by an evident disposition to favor the possessing as against the non-possessing cla.s.ses. Both the common and the statute law of England reflected in the eighteenth century the political supremacy of the well-to-do minority.

CHAPTER II

THE AMERICAN GOVERNMENT OF THE REVOLUTIONARY PERIOD

The American colonists inherited the common law and the political inst.i.tutions of the mother country. The British form of government, with its King, Lords and Commons and its checks upon the people, they accepted as a matter of course. In their political thinking they were not consciously more democratic than their kinsmen across the Atlantic.

Many of them, it is true, had left England to escape what they regarded as tyranny and oppression. But to the _form_ of the English government as such they had no objection. The evils which they experienced were attributed solely to the selfish spirit in which the government was administered.

The conditions, however, were more favorable for the development of a democratic spirit here than in the mother country. The immigrants to America represented the more active, enterprising and dissatisfied elements of the English people. Moreover, there was no hereditary aristocratic cla.s.s in the colonies and less inequality in the distribution of wealth. This approach to industrial and social equality prepared the mind for the ideas of political equality which needed only the stimulus of a favorable opportunity to ensure their speedy development.

This opportunity came with the outbreak of the American Revolution which at the outset was merely an organized and armed protest against what the colonies regarded as an arbitrary and unconst.i.tutional exercise of the taxing power. As there was no widespread or general dissatisfaction with the _form_ of the English government, there is scarcely room for doubt that if England had shown a more prudent and conciliatory spirit toward the colonies, the American Revolution would have been averted. No sooner, however, had the controversy with the mother country reached the acute revolutionary stage, than the forces which had been silently and unconsciously working toward democracy, found an opportunity for political expression. The spirit of resistance to what was regarded as unconst.i.tutional taxation rapidly a.s.sumed the form of avowed opposition to the English Const.i.tution itself. The people were ready for a larger measure of political democracy than the English Const.i.tution of the eighteenth century permitted. To this new and popular view of government the Declaration of Independence gave expression. It contained an emphatic, formal and solemn disavowal of the political theory embodied in the English Const.i.tution; affirmed that "all men are created equal;"

that governments derive "their just powers from the consent of the governed;" and declared the right of the people to alter or to abolish the form of the government "and to inst.i.tute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."

This was a complete and sweeping repudiation of the English political system, which recognized the right of monarchy and aristocracy to thwart the will of the people.

To what extent the Declaration of Independence voiced the general sentiment of the colonies is largely a matter of conjecture. It is probable, however, that its specification of grievances and its vigorous arraignment of the colonial policy of the English government appealed to many who had little sympathy with its express and implied advocacy of democracy. It is doubtless true that many were carried along with the revolutionary movement who by temperament and education were strongly attached to English political traditions. It is safe to conclude that a large proportion of those who desired to see American independence established did not believe in thoroughgoing political democracy.

Besides those who desired independence without being in sympathy with the political views expressed in the Declaration of Independence, there were many others who were opposed to the whole Revolutionary movement.

The numerical strength of the Tories can not be accurately estimated; but it is certain that a large proportion, probably not less than one-third of the total population of the colonies, did not approve of the war.[4]

"In the first place, there was, prior to 1776, the official cla.s.s; that is, the men holding various positions in the civil and military and naval services of the government, their immediate families, and their social connections. All such persons may be described as inclining to the Loyalist view in consequence of official bias.

"Next were certain colonial politicians who, it may be admitted, took a rather selfish and an unprincipled view of the whole dispute, and who, counting on the probable, if not inevitable, success of the British arms in such a conflict, adopted the Loyalist side, not for conscience' sake, but for profit's sake, and in the expectation of being rewarded for their fidelity by offices and t.i.tles, and especially by the confiscated estates of the rebels after the rebels themselves should have been defeated, and their leaders hanged or sent into exile.

"As composing still another cla.s.s of Tories, may be mentioned probably a vast majority of those who stood for the commercial interests, for the capital and tangible property of the country, and who, with the instincts natural to persons who have something considerable to lose, disapproved of all measures for pushing the dispute to the point of disorder, riot and civil war.

"Still another cla.s.s of Loyalists was made up of people of professional training and occupation--clergymen, physicians, lawyers, teachers--a clear majority of whom seem to have been set against the ultimate measures of the Revolution.