The Americans

There is an avenue which leads from the White House in a direct line to the Capitol, the dominating architectural feature of Washington. On walking up the broad terraces one comes first to the great central hall, over which rises the dome; to the right one passes through the Hall of Fame and comes finally to the uncomfortably large parliamentary chamber, in which 386 Representatives sit together as the direct delegates of the people. Going from the central hall to the left one passes by the apartments of the Supreme Court, and comes finally to the attractive room in which the ninety state delegates hold their sessions. The room on the right is called the “House,” on the left the Senate; both together make up Congress, the law-giving body of the nation. When the thirteen states which first formed the Union in the year 1778 adopted the Articles of Federation, it was intended that Congress should be a single body, in which each state, although it might be represented by a varying number of members, should nevertheless have the right to only one vote. Nine years later, however, the final Constitution of the United States replaced this one simple system by dividing Congress into Senate and House of Representatives, doing this simply by analogy with the traditions of the state governments. Pennsylvania was the only state which had but one legislative chamber, while the others had taken over from England the system of double representation and had carried out the English tradition, although probably nothing was further from their intention than to divide their legislators into lords and commoners.

For the United States the dual division inevitably seemed the shortest way to balance off conflicting requirements. On the one side every state, even the smallest, should have the same prerogatives and equal influence: on the other side, every citizen must count as much as every other, so that the number of inhabitants must be duly represented. It was necessary, therefore, to create one chamber in which all States should have the same number of Representatives, and another in which every delegate should represent an equal number of voters. Furthermore, on the one hand a firm and conservative tradition was to be built up, while on the other the changing voice of the people was to be reflected. It was, therefore, necessary to remove one chamber from popular election and leave it to the appointment of the separate state legislatures. It was also necessary to put the age for candidacy for this chamber high, and to make the term of office rather long, and finally to contrive that at any one time only a fraction of the numbers should be replaced, so that a majority of the members could carry on their work undisturbed. The other chamber, however, was to be completely replaced by frequent direct popular elections. Thus originated the two divisions of Congress which so contrast in every respect. A comparison with European double legislative systems is very natural, and yet the Senate is neither a Bundestag, nor a Herrenhaus, nor a House of Lords; and the House of Representatives is fundamentally different from the Reichstag. One who wishes to understand the American system must put aside his recollections of European institutions, since nothing except emphasis on the difference between the American and European legislatures will make clear the traditions of Washington.

As has been said, the Senators are representatives of the several states; every state sends two. The State of New York, with its seven million inhabitants, has no more representatives in the Senate than the State of Wyoming, which has less than one hundred thousand inhabitants. Every Senator is elected for six years by the law-giving body of the individual state. Every second year a third of the Senators retire, so that the Senate as a whole has existed uninterruptedly since the foundation of the Union. Curiously enough, however, the Senators vote independently, and thus it often happens that the two Senators from one State cast opposite votes. A candidate for the Senate has to be thirty years old.

The members of the House are elected every two years and by direct popular vote. The number of delegates is here not prescribed by the Constitution. It is constantly modified on the basis of the ten-year census, since every state is entitled to a number of delegates proportionate to its population. While there were slaves, who could not vote, the slave states nevertheless objected to the diminution in the number of their representatives, due to the fact that the negro was not considered an inhabitant, and it was constitutionally provided to compute the number of Representatives on the basis that every slave was equivalent to three-fifths of a man. To-day neither colour nor race constitutionally affects the right to vote. On the other hand, the nation as such does not concern itself to consider who is allowed to vote, but leaves this completely to the different states, and requires only that for the national elections in every state the same provisions are observed which are made for the elections to the state legislature. Moreover, it is left to every state in what wise it shall choose the allotted number of Representatives at Washington. Thus, for instance, in those four Western States in which women are allowed to vote for members of the legislature, women have also the right to vote for Congressmen.

The first House of Representatives had 65 members, while the House of 1902 had 357, and the political centre of gravity of the country has so shifted that the states which originally made up Congress send now only 137 of the members. The number of delegates has recently been increased to 386. The age of candidacy is 25, and while a Senator must have lived in the country for nine years, only seven years are required of a Representative.

The differences in the conditions of election are enough to bring it about that the personal make-up of the two Houses, as had been originally intended, give very different impressions. The dignity of being Senator is granted to but few, and to these for a long time, and as it is bestowed by that somewhat small circle of the legislators of the state, is naturally accounted the highest political honour; it is thus desired by the most successful leaders of public life and the most respected men of the several states. The ideal condition is, to be sure, somewhat frustrated, since in reality the members of a state legislature are generally pledged, when they themselves are elected, to support this or that particular candidate for the Senate. Thus the general body of voters exerts its influence after all pretty directly; and, moreover, this distinction depends not a little, in the West and especially in the thinly populated states, on the possession of great wealth. Since, however, in these cases such wealth has generally been won by exceptional energy and keen insight, even in this way men come to Washington who are a good deal above the average voter, and who represent the most significant forces in American popular life earnestly, worthily, and intelligently.

In the last Senate the average age of ninety Senators was sixty years, and seventeen were more than seventy years old. Sixty-one of them were jurists, eighteen were business men, three were farmers, and two had been journalists. As to the jurists, they are not men who are still active as attorneys or judges. Generally men are in question who went over early from the legal profession into politics, and who have lived almost entirely in politics. Indeed, not a few of these lawyers who have become legislators have been for some years in commercial life at the head of great industrial or railroad corporations, so that the majority of jurists is no indication whatsoever of any legal petrifaction. All sides of American life are represented, and only such professions as that of the university scholar or that of the preacher are virtually excluded because circumstances make it necessary for the Senator to spend six winters in Washington. It will be seen that politics must have become a life profession with most of these men, since many are elected four and five times to the Senate. Among the best known Senators, Allison, Hoar, Cockrell, Platt, Morgan, Teller, and several others have been there for more than twenty-five years. Of course the conservative traditions of the Senate are better preserved by such numerous re-elections than by any possible external provision.

It is also characteristic of the composition of the Senate that, with a single exception, no Senator was born on the European continent. Nelson, the Senator from Minnesota, came from Norway when he was a boy. Thus in this conservative circle there is little real representation of the millions who have immigrated to this country. In the autobiographies of the Senators, two relate that, although they were born in America, they are of German descent; these are Wellington, the Senator from Maryland, and Dietrich, the Senator from Nebraska. The Senators are notoriously well-to-do, and have been called the “Millionaires’ Club”; and yet one is not to suppose that these men have the wealth of the great industrial magnates. Senator Clarke, of Montana, whose property is estimated at one hundred million dollars, is the single one who, according to American standards, could be called rich. Most of the others have merely a few modest millions, and for many the expensive years of residence in Washington are a decided sacrifice. And, most of all, it is certain that the Senators who are materially the least well-off are among the most respected and influential. The most highly educated member of the Senate would probably be the young delegate from Massachusetts, the historian Lodge, who is the President’s most intimate friend; but the most worthy and dignified member has been the late Senator from Massachusetts, the impressive orator, Hoar.

It is a matter of course that the social level of the House of Representatives lies considerably lower. Here it is intended that the people shall be represented with all their diverse interests and ambitions. The two-thirds majority of lawyers is found, however, even here; of the 357 members of the last House, 236 had been trained in law, 63 were business men, and 17 were farmers. The House is again like the Senate, since, in spite of the fact that the membership is elected entirely anew, it remains in good part made up of the same people. The fifty-eighth Congress contained 250 members who had already sat in the fifty-seventh. About one-tenth of the Representatives have been in the House ten years. The general physiognomy is, however, very different from that of the Senate. It is more youthful, less serene and distinguished, and more suggestive of ordinary business. The average age is forty-eight years, while there are some men under thirty. The total impression, in spite of several exceptions, suggests that these men come from the social middle class. However, it is from just this class that the notably clear-cut personalities of America have come; and the number of powerful and striking countenances to be seen in the House is greater than that in the German Reichstag. The Representatives, like Senators, have a salary of $5,000 and their travelling expenses.

What is now the actual work of these two chambers in Congress, and how do they carry it on? The work cannot be wholly separated from its manner of performance. Perhaps the essentials of this peculiar task and method could be brought together as follows: on the basis of committee reports, Congress decides whether or not to accept bills which have been proposed by its members. This is indeed the main part of the story. Congress thus passes on proposed bills; its function is purely legislative, and involves nothing of an executive nature. On the other hand, these bills have to be proposed by members of Congress; they cannot be received from the President or from members of his Cabinet. Thus the Executive has no influence in the law-giving body. The method of transacting business, finally, consists of laying the emphasis on the deliberations in committees, and it is there that the fate of each bill is virtually settled. The committee determines whether the proposed measure shall come before the whole House; and both House and Senate have finally to decide about accepting the measure. Each of these points requires further comment.

So far as the separation of the legislative and executive functions of the government is concerned, it is certainly exaggeration to say that it is complete, as has often been said. There is, to be sure, a somewhat sharper distinction than is made in Germany, where the propositions of the Executive form the basis of legislative activity; and yet even in the United States the ultimate fate of every measure is dependent on the attitude taken by the President. We have seen that a bill which is sent by Congress to the President can be returned with his veto, and in that case becomes a law only when on a new vote in both Houses it receives a two-thirds majority. A law which obtains only a small majority in either one of the Houses can thus easily be put aside by the Executive.

On the other hand, Congress has a very important participation in executive functions, more particularly through the Senate, inasmuch as all appointments of federal officers and the ratification of all treaties require the approval of the Senate. International politics, therefore, make it necessary for the President to keep closely in touch with at least the Senate, and in the matter of appointments the right of the Senators to disapprove is so important that for a large number of local positions the selection has been actually left entirely to the Senators of the respective states. The Constitution gives to Congress even a jurisdictional function, in the case that any higher federal officers abuse their office. When there is a suspicion of this, the House of Representatives brings its charges and the Senate conducts the trial. The last time that this great machinery was in operation was in 1876, when the Secretary of War, Belknap, was charged and acquitted; thus suspicion has not fallen on any of the higher officials for twenty-eight years.

The separation of the Legislative from the Executive is most conspicuously seen in the fact that no member of the Cabinet has a seat in Congress. At the beginning of the Congressional session the President sends his message, in which he is privileged politically to pour out his entire heart. Yet he may only state his hopes and desires, and may not propose definite bills. The Cabinet ministers, however, are responsible solely to the President, and in no wise to Congress, where they have no right to discuss measures either favourably or unfavourably. They do not come into contact with Congress. This is in extreme contrast with the situation in England, where the ministers are leaders of the Parliamentary party. The American sees in this a strong point of his political system, and even such a man as the former ambassador to Germany, Andrew D. White, who admired so much of what he saw there, considers the ministerial benches in the German and French representative chambers a mistake. It occasions, he says, a constant and vexatious disagreement between the delegates of the people and the ministers, which disturbs the order and effectiveness of parliamentary transactions. The legislative work should be transacted apart, and the popular representatives ought to have only one another to take care of.

We must not, however, understand that there are practically no relations existing between Congress and the ministry. A considerable part of the bills, which have to be discussed, consist, of course, in appropriations for public expenditures, so far as these come out of the federal rather than the state treasuries. Such appropriations included at the last time $139,000,000 for pensions, $138,000,000 for the post office, $91,000,000 for the army, $78,000,000 for the navy, $26,000,000 for rivers and harbours, and so on; making in all $800,000,000 for the annual appropriations, besides $253,000,000 for special contracts. Thus the total sum of appropriations in one session of Congress amounted to over $1,000,000,000, in America called a billion. This authorized appropriation has to be made on the basis of proposals, submitted by the members of Congress; but it is a matter of course that every single figure of such propositions has to come originally from the bureau of the army or navy, or whatever department is concerned, if it is to serve as the basis of discussion. Thus while the Executive presents to Congress no proposals for the budget, it hands over to the members of Congress so empowered the whole material; and this is, after all, not very different from the European practice. However, the voice of the Executive is indeed not heard when the budget is under debate. The members of Congress who are to receive the ministerial propositions through mediation of the Treasury, must belong to the House; for one of the few advantages which the House of Representatives has over the Senate is that it has to initiate all bills of appropriation. This is a remnant of the fundamental idea that all public expenditures should be made only at the instance of the taxpayers themselves, wherefore the directly elected members of the House are more fitted for this than are the Senators, who are indirectly elected. This single advantage is less than it looks to be, since the Senate may amend at will all bills of appropriation that it receives from the House.

Thus every measure which is ever to become law must be proposed by members of Congress. One can see that this privilege of proposing bills is utilized to the utmost, from the simple fact that during every session some fifteen thousand bills are brought out. We may here consider in detail the way in which the House transacts its affairs. It is clear that if more than three hundred voluble politicians are set to the task of deliberating in a few months on fifteen thousand laws, including all proposed appropriations, that a perfect babel of argument will arise which can lead to no really fruitful result, unless sound traditions, strict rules and discipline, and autocratic leadership hold this chaotic body within bounds. The American instinct for organization introduced indeed long ago a compact orderliness. Here belongs first of all that above-mentioned committee system, which in the House is completed by the unique institution of the Speaker. But one thing we must constantly bear in mind: the whole background of Congressional doings is the two-party system. If the House or the Senate were to break out in the prismatic variegation of the German parliamentary parties, no speaker and no system of committees would be able to keep the elements in hand. It is, after all, the party in majority which guarantees order, moulds the committees into effective machines, and lends to the Speaker his extraordinary influence.

The essential feature of the whole apparatus lies in the fact that a bill cannot come up before the House until it has been deliberated in committee. The chairman of the committee then presents it personally at some meeting. The presiding officer, the so-called Speaker, exerts in this connection a threefold influence; firstly, he appoints the members of all the committees, of which, for instance, there were in the last Congress sixty-three. The most important, and, therefore, the largest, of these committees are those on appropriations, agriculture, banking, coinage, foreign and Indian affairs, interstate and foreign commerce, pensions, the post office, the navy, railroads, rivers and harbours, patents, and finance. Both the majority and minority parties are represented in every committee, and its chairman has almost unlimited control in its transaction of business. All members of the more important committees are experienced men, who have been well schooled in the traditions of the House.

The Speaker is allowed further to decide as to what committee each bill shall be referred. In many cases, of course, there is no choice; but it not seldom happens that there are several possibilities, and the decision between them often determines the fate of the bill. In the third place, the Speaker, as chairman of the Committee on Rules, decides what reports, of those which have been so far prepared by the committees, shall come up for discussion at each meeting of the House. As soon as the committee has agreed on recommendations, its report is put on the calendar; but whether it then comes up for debate in the House depends on a good many factors. In the first place, of course, many of the proposed matters take naturally first rank, as for instance, the appropriations. The chairman of the Committee on Appropriations is given the floor whenever he asks for it; thus there are express trains on this Congressional railroad which have the right-of-way before suburban trains, and then, too, there are special trains which take preference before everything else. But aside from such committee reports as are especially privileged, a very considerable opportunity of selection exists among those which remain.

It is here that the really unlimited influence of the Speaker comes in. He is in no way required to give the floor to the committees which ask for it first. If the chairman of the committee is not called on by the Speaker for his report, he is said to be not “noticed” and he is helpless. Of course, whether he is noticed or not depends on the most exact prearrangement. If now a bill is finally reported to the House, it is still not allowed an endless debate, for the Speaker is once more empowered to appoint a particular time when the debate must end, and thereby he is able to come around any efforts at obstruction. If, however, the minority wishes to make itself heard by raising the point of no quorum, then not only those who are voting, but all those who are present in the House, are counted, and if these are not enough the delinquents can be hunted out and forced to come in. But in most cases there is little or no debate, and the resolutions of the committee are accepted by the House without a word. In certain of the most important cases, as in matters of appropriation or taxation, the House constitutes itself a so-called committee of the whole. Then the matter is seriously discussed under a special chairman, as at the session of an ordinary committee. Even here it is not the custom to make long speeches, and the members are often contented with a short sketch of their arguments, and ask permission to have the rest published in the Congressional Report. The speeches which thus have never been delivered are printed and distributed in innumerable copies through the district from which that speaker comes and elsewhere as well.

Thus if an ordinary Representative proposes a measure, which perhaps expresses the local wishes of his district, such a bill goes first to the Secretary and from him to the Speaker. He refers it to a special committee, and at the same time every Representative receives printed copies of it. The committee decides whether the bill is worth considering. If it has the good fortune to be deliberated by the committee it is often so amended by the members that little remains of its original substance. If it then has the further good fortune to be accepted by the committee, it comes on the House calendar, and waits until the Committee on Rules puts it on the order of the day. If it then has the exceptional good fortune of being read to the House it has a fairly good chance of being accepted.

But of course its pilgrimage is not ended here. It passes next to the Senate, and goes through much the same treatment once more; first a committee, then the quorum. If it does not there come up before the quorum, it is lost in spite of everything; but if it does finally come up, after all hindrances, it may be amended once more by the Senate. If this happens, as is likely, its consideration is begun all over again. A composite committee from both Houses considers all amendments, and if it cannot come to an agreement the measures are doomed. If the committee does agree, the close of the session of Congress may intervene and prevent its last hearing in the House, and in the next Congress the whole process is repeated. But if a measure has passed through all these dangers and been approved by both Houses, the President then has the opportunity to put his veto on it.

Thus it comes about that hardly a tenth part of the bills which are introduced each year ever become laws, and that they are sifted out and amended surely and speedily. Indeed, it can hardly be doubted that a large part of the fifteen thousand bills are introduced out of personal consideration for constituents, or even out of less worthy motives, with no expectation that they will possibly be accepted. Moreover, the popular tribunal, the House, spares itself too great pains, because it knows that the Senate will certainly amend all its provisions; and the Senate indulges itself in voting unnecessary favours to constituents because it relies on their negation by the House.

The Senate works on fundamentally the same plan. When a Senator brings his proposition, it goes likewise to the appropriate committee, then is read before a quorum, and is passed on to the other chamber. Nevertheless, there is a considerable difference in procedure; the House behaves like a restless popular gathering, while the Senate resembles a conference of diplomats. The House is a gigantic room, in which even the best orators can hardly make themselves heard, and where hundreds are writing or reading newspapers without paying any attention to the man who speaks. But the Senate is a parliamentary chamber, where a somewhat undue formality prevails. A strict discipline has to be observed in the House in order to preserve its organization, while the Senate needs no outward discipline because the small circle of elderly gentlemen transacts its business with perfect decorum. Thus the Senate tolerates no Speaker over it, no president with discretionary powers. In the Senate both parties have the right to appoint the members of the committees. The Chairman of the Senate must also not fail to notice any one who asks for the floor; whoever wishes to speak has every chance, and this freedom implies of course that the debates shall not be arbitrarily terminated by the Chairman. A debate can be closed only by unanimous consent. The influence of the Chairman of the Senate is, therefore, only a shadow beside that of the Speaker, and since the Chairman is not elected by the Senate itself, but is chosen directly by the people in the person of the Vice-President of the United States, it may happen that this Chairman belongs to the party in minority, and that he has practically no influence at all. Conformably with the extreme formality and courtesy of the Senate, majorities are counted on the basis of the votes actually cast, and not, as in the House, on the basis of members actually present. For both Houses alike it is possible for those who intend to be absent to be paired off beforehand, so that if one absentee has announced himself for, and another against, a certain bill, they can both be counted as having voted.

It is clear what the consequences of this unlimited exchange of Senatorial courtesy must be; the concessions in outward form must lead immediately to compromises and tacit understandings. If a debate can be closed only by unanimous agreement, it is possible for a single opposing politician to obstruct the law-making machinery. A handful of opponents can take the stand for weeks and block the entire Senate. Such obstructionist policy has to be prevented at any cost, and therefore on all sides and in every least particular friendly sympathy must be preserved. Of course, the opposition between the two parties cannot be obviated; so much the more, then, it is necessary for each man to be bound by personal ties to every other, and to feel sure of having a free hand in his own special interests so long at least as he accords the same right to others in theirs. Thus, merely from the necessity of preserving mutual good feeling, it too often happens that the other members close their eyes when some willing Senator caters to local greed or to the special wishes of ambitious persons or corporations, by proposing a Congressional bill.

This “Senatorial courtesy” is most marked in the matter of the appointment of officials, where matters go smoothly only because it has been agreed that no proposals shall be made without the approval of the Senators of the state concerned. Every Senator knows that if to-day one local delegate is outvoted, the rebellion may to-morrow be directed against another; and thus many a doubtful appointment, given as hush money or as a reward for mean political services, is approved with inward displeasure by courteous colleagues merely in order to save the principle of individual omnipotence. There is no doubt that in this way the individual Senator comes to have much more power than does a single Representative. The latter is really the member of a party, with no special opportunities for satisfying his individual wishes; while the Senator may have his personal points of view, and is really an independent factor.

If to-day the Senate, contrary to the expectation of former times, really plays a much more important rôle before the public than the House, this is probably not because more important functions are given to the Senate, but because it is composed of persons of whom every one has peculiar significance in the political situation, while the House is nothing but a mass-meeting with a few leaders. This increased importance before the public eye works back again on the Senator’s opinion of himself, and the necessary result is a steady increase in the Senate’s aspirations and the constant growth of its rights. Perhaps the most characteristic exhibition of this has been the gradual evolution of the part taken by the Senate in the matter of foreign treaties. The Constitution requires the ratification of the Senate, and the original construction was that the Administration should present a treaty all made out, which the Senate had to accept or reject as it stood. But soon the Senate arrogated to itself the right to amend treaties, and then it came about that the Senate would never accept a treaty without injecting a few drops of its own diplomatic wisdom. It might be that these would be merely a change of wording, but just enough to let the President feel the Senatorial power. The result has been that the treaties that are now presented to the Senate are called nothing but proposals.

Looking behind the scenes one discovers that at bottom, even in the Senate, only a few have real influence. The more recently appointed Senators earn their spurs in unimportant committees, and even if they get into more important ones they are constrained by tradition to fall in line behind the more experienced members. In the House there is half a dozen, and in the Senate perhaps a dozen men who shape the politics of the country. Here, as in all practical matters, the American is ready to submit to an oligarchical system so long as he knows that the few in question derive their power from the free vote of the many. In fact nothing but oligarchy is able to satisfy the profoundly conservative feeling of the American. Behind the scenes one soon discovers also that the Senatorial courtesy, which neutralizes the party fanaticism and encourages compromises to spring up like mushrooms, still leaves room for plenty of fighting; and even intrigue thrives better on this unctuous courtesy than in the coarser soil of the lower house. The sanctified older Senators, such as Allison, Frye, Platt, Aldrich, and Hale, know where to place their levers so as to dislodge all opposition. Perhaps McKinley’s friend, Hanna, who was the grand virtuoso in Republican party technique, knew how always to overcome such political intrigue; but even Roosevelt’s friend, Lodge, has sometimes found that the arbitrarily shaped traditions of the seniors weigh more than the most convincing arguments of the younger men.

The moral level of Congress is, in the judgment of its best critics, rather high. The fate of every one of the thousands of bills is settled virtually in a small committee, and thus, time after time, the weal and woe of entire industries or groups of interests depend on one or two votes in the committee. The possible openings for corruption are thus much greater in Congress than in any other parliament, since no other has carried the committee system to such a point. In former times political scoundrels went around in great numbers through the hotels in Washington and even in the corridors of the Capitol trying to influence votes with every device of bribery. To be sure, it is difficult to prove that there are no such hidden sins to-day; but it is the conviction of those who are best able to judge that nothing of the sort any longer exists. To be sure, there are still lobbyists in Washington, who as a matter of business are trying to work either for or against impending bills, but direct bribery is no longer in question. On the slightest suspicion the House itself proceeds to an investigation and appoints a committee, which has the right of collecting sworn testimony; and time after time these suspicions have been found to be unjust.

A different verdict, however, would have to be passed if only that delegate were to be called morally upright who surveys every question from the point of view of the welfare of the entire nation; for then indeed the purity of Congress will be by no means free from doubt. Few Americans, however, would recognize such a political standard. When great national questions come up for discussion Congress has always shown itself equal to the occasion, and when the national honour is at stake, as it was during the Spanish War, party lines no longer exist; but when the daily drift of work has to be put through it is the duty of every man to uphold as obstinately as possible the interests of his constituency. Especially the political interests of his party then become predominant, and, seen from a higher point of view, there are no doubt many sins committed in this direction. Many a measure is given its quietus by one party, not because of any real inexpediency, but simply in order to embarrass the other party, to tie up the Administration, and thus to weaken the hopes of that party at the next election. In recent years such party tactics on both sides have prevailed time after time. Most frequently it is the present minority, under its leader, Senator Gorman, which has resorted to this policy and held out against the most reasonable propositions of the Republicans, simply because these measures would have increased the Republican respect before the nation.

On the other hand, party lines are all the time being broken through by these or those local interests, and any one observing the distribution of votes cast in the House will see clearly how, oftentimes, the parties mingle while the issue lies perhaps between two different geographical sections. When oleomargarine is the order of the day the representatives of the farming districts are lined up against those from industrial sections. If it is a question of getting Congress to approve the great irrigation measures, whole troops of Democrats hasten to forget that, according to their fundamental principles, such an undertaking belongs to the state, and not to the federal, government; the representatives from all the Democratic states which are to be benefited by such irrigation, fall into sweet accord with the Republicans. Thus the party divisions are all the time being forgotten for the moment, and it looks as if this weakening of party bonds were on the increase. By supporting his party principles each Congressman assists toward the next victory of his party, but by working for the interests of his locality he is surer of his own renomination. The requirement that a candidate must reside in the district that elects him naturally strengthens his consideration for the selfish claims of his constituency. Thus it is only at notable moments that the popular representative stands above all parties; he generally stands pat with his own party, and if the voters begin to nod he may take his stand somewhat below the parties.

Yet, on looking at Congress as a whole, one has the impression that it accomplishes a tremendous amount of work, and in a more sober, business-like, and efficient way than does any other parliament in the world. There is less talking against time; in fact, there is less talking of any kind, and because the Administration is not represented at all there is less fighting. The transactions as a whole are therefore somewhat less exciting; a single Congressman has less opportunity to become personally famous. Yet no American would desire to introduce a ministerial bench at the Capitol, or to have the next Congress adopt Austrian, French, German, or English methods.

Going from the hall beneath the central dome of the Capitol toward the Senate, in the left wing one passes by an extraordinary room, in which there is generally a crowd of people. The nine judges of the federal court, the Supreme Court of the United States, are sitting there in their black gowns, between Greek columns. The President and his Cabinet, the Senate, and the House of Representatives fill the American with a pride which is tempered by some critical judgment on this or that feature, or perhaps by a lively party dissatisfaction. But every American who is competent to judge looks on the Supreme Court with unqualified admiration. He knows very well that no force in the country has done more for the peace, prosperity, and dignity of the United States. In the constitutional make-up of the Federal Government, the Supreme Court is the third division, and co-ordinate with the Legislative and the Executive departments.

The jurisprudence of a nation forms a totality; and therefore it will not do to discuss the work of the nine men sitting at the Capitol, without throwing at least a hasty glance at the administration of justice throughout this enormous country. There is hardly anything more confusing to a European; and while the Englishman finds many features which are reminiscent of English law, the German stands helpless before the complicated situation. It is, most of all, the extreme diversity of methods which disquiets him. It will be quite impossible to give here even a superficial picture of the machinery of justice. A few hints must suffice at this point, while we shall consider many features in other connections, especially in discussing social problems.

The jurisprudence adopted by the United States comes from three sources. The average American, on being asked what the law of his country is, would say that it is “common law.” If we except the State of Louisiana, which by a peculiarity has the Napoleonic Code, this reply suffices for a rough idea. But if a German, having in mind perhaps the two German law books, the penal and the civil codes, both of which he can put so easily into his pocket, were to ask after some formulation of the common law, he would be shown a couple of huge bookcases with several hundred stout volumes. Common law is not a law book, nor is it a system of abstract formulations, nor yet a codification of the prevailing ideas of justice. It is, in fact, the sum total of judicial decisions. The establishment of common law signifies that every new case as it comes up is decided in conformity with previous decisions. The earlier decision may be a bad one, and very much offend one’s sense of justice; but if no superior authority has annulled it, it becomes historic law and determines the future course of things. American law came originally from the English. The early English colonists brought with them across the ocean the ideas of the English judges, and the states which have sprung up lately have taken their law from the thirteen original states. If to-day, in Boston or San Francisco, any one finds a piece of jewelry on the street and another snatches it from him, he can have the thief arrested, although the object found is not his property. The judge will decide that he has a right to the object which he has found until the original owner appears, and the judge will so decide because in the year 1722 a London chimney-sweep found a valuable ornament, out of which a jeweler later stole a precious stone; and the English judge decided in favour of the chimney-sweep.

The disadvantages of such a system are obvious. Instead of a single book of law embodying the will of the nation, the decisions handed down by single insignificant judges in different parts of the world, decisions which originated under wholly other states of civilization and from other traditions, still have final authority. Again and again the judge has to adapt himself to old decisions, against which his sense of right morally rebels. Yet the deep, ethical motive behind this legal system is certainly plainly evident. The Anglo-Saxon would say that a national code cannot be constructed arbitrarily and artificially. Its only source is in the careful, responsible decisions given down by the accredited representatives of the public will in actual disputes which have arisen. There is no right or wrong, he would say, until two persons disagree and make a settlement necessary, and the judge who decides the case creates the right with the help of his own conscience; but as soon as he has given his decision, and it is set aside by no higher authority, the principle of the decision becomes justice for all times. Every day sees new formulations of justice, because new conflicts between human wills are always arising and require new settlements; but up to the moment when a decision is made there exist only two conflicting desires existing in the matter, but nothing which could be called justice.

Although it seems at first sight as if a legal system, which is composed of previous decisions, would soon become antiquated and petrified, the Anglo-Saxon would say with firm conviction that just such justice is the only one which can be living, because it springs not out of rationalistic preconceptions, but from actual experience. The Anglo-Saxon jurisprudence is full of historical reality and of picturesque individuality. It has grown as organically as language, and is, in the estimation of the Anglo-Saxon, as much superior to a mere code as the ordinary speech of a people, in spite of all its historical inconsistencies, is superior to an artificially constructed speech like Volapük. And he would find many other points of superiority. He would say, for instance, that this is the only system which gives to every man on the judge’s bench the serious sense of his responsibility; for the judge knows that in every case which he decides, he settles not only the fortunes of James and John there present, but he influences for all times the conception of justice of the entire nation. He feels especially that the binding force of previous decisions reassures the public sense of right, and lends a continuity which could never be afforded by the theoretical formulations of an abstract code.

Another factor must be taken into account. A judicial decision which is forgotten as quickly as the voice of the judge who speaks it, can never have so considerable an influence on the public mind as one which itself creates law. In one sense, to be sure, the German judge creates law too; the penal code sets wide limits to the punishment of a criminal, and within these limits the judge assigns a certain penalty. He does in a sense create the right for this particular case; but the characteristic difference is, that in the German Empire no subsequent decision is in the least affected by such preceding decision. The German judge finds justice prescribed for him and he is its servant, while the American makes it and is its master. This gives to the judicial utterance an historical weight and enduring significance, which contribute vastly toward keeping judicial doings in the focus of the public consciousness.

The same is brought about in still another way. Since the decision of the judge is largely dependent on previous cases, the fate of the parties contending may depend on whether they are able to point to previous decisions which are favourable to their side. The layman cannot do this, and it falls to the counsel. In this wise a sphere of action is open to the American lawyer which is incomparably greater than that of any German Anwalt. The former has to concern himself not only with the case in hand, but he has to connect this concrete instance with the whole historic past. Thus the profession of the lawyer comes to have an inner importance which is unknown to the European, and which in many cases necessarily exceeds the importance of the judge, since he is bound to comply with the decisions adduced by the counsels for both sides. The judges are selected from the ranks of lawyers, and are, therefore, brought up in the idea that law is composed of former decisions, and that the decisions of the bench are admirable only so far as they are consistent enough with the earlier ones to force the conviction and respect of the lawyers. Thus barristers and judges are entirely at one, and are together entrusted with the public sense of right, as it has developed itself historically, and as it is day by day added to and perpetuated, so that it shall be a never-failing source of quickening to the conscience of the masses.

In the masses of the people, on the other hand, the natural tendencies are favourable anyhow for developing a lively sense of justice. It is a necessity devolving naturally on the individualistic view of things. The protection of individual rights and the inviolability of the individual person, with all that belongs to it, are the individualist’s most vital concern. Many outward features of American life may seem, indeed, to contradict this, but any one who looks more deeply will see that everywhere the desire for justice is the essential trait of both the individual and the nation; and the public consciousness would rather endure the crassest absurdities and misunderstandings in public affairs than the least conscious violation in the administration of justice. Again and again important trials go to pieces on small technical errors, from which the severe sense of justice of the American is not able to free itself. The public is always willing to endure any hardship rather than to tolerate any maladministration of justice.

On the finest square in Boston stands a large and magnificent hotel, erected by rich capitalists. The building laws provide that structures facing that square shall not exceed a height of ninety feet; but in violation of the law certain cornices and balustrades were added to this building above the ninety-foot line, in order to give an artistic finish to the structure, and still to turn practically every inch allowed by law to account for rentals, which are high in so palatial a building. Every one agreed that this ornamental finish was highly decorative and satisfactory in the æsthetic sense, but that it must, nevertheless, be taken down, because it violated the law by some seven feet. The cornice and balustrades have, therefore, been demolished at great expense, and a handsome structure has been made absolutely hideous—a veritable monstrosity. The best square in the city is disfigured, but every Bostonian looks on this building with gratification. Beautiful architectural detail may indeed have been sacrificed; but the public conscience has won, and it is on this that the nation rests.

It is merely incidental that very much, and indeed much too much, of that which the Germans account matters of justice, is relegated by the American point of view to other tribunals; some, for instance, are held to be political questions, and thus it often appears to the foreigner as if there had been a violation of justice where really there has been only some political abuse. But matters of that sort loom up whenever any nation tries to form an opinion about another. In Germany, indeed, the American seems to see many violations of justice, where the German would find only an historically established social or political abuse.

As we have said, American justice is based on the decisions handed down in earlier cases. But this is, after all, only one of the three sources of law. That form of law-making is also here recognized which in Europe is the only form; the law-making by the majority of the people’s representatives. We have seen how Congress passes every year hundreds of laws. Many of these are indeed special measures, with no universal application; not a few, however, are of very broad application and involve an unlimited number of possible instances. And just as the Congress of the United States, so also can the legislature of each state prescribe general regulations, applicable within the state. Such laws made by the legislature are technically called statutes. These are engrossed in the statute-books of the state, and supersede all opposed decisions which may then exist. The federal judge, like the judge in a special state, is therefore bound to earlier decisions only so far as these are not expressly annulled by statutes.

Here we find one of the main reasons for the extraordinary complexities of the American law; forty-five legislatures are making laws for their several states, and in this way they of course give expression to the diversity of local needs and the varying grades of culture. At the same time, the principle of law, based on earlier decisions, is always combined with the principle of the statute-book. In the cases, both of the laws of Congress and those of the separate states, the judges who first come to apply the statutes in practice, are privileged to make their own interpretation; and here, too, the interpretation handed down in the judge’s decision is valid for all future cases.

In both the federal and state courts a legal action may be carried from the lower to the higher courts, and the decision of the highest tribunal becomes definitely law. The forty-five-fold diversity refers thus not merely to the statutes of the separate states, but also to the interpretations of those statutes which have been given by the upper courts of those states.

The third source of law is the only one that prescribes absolute uniformity for all parts of the country. This is the Constitution of the United States. The Constitution must not be conceived as the creation of Congress; Congress was created by the Constitution. Therefore every provision of the Constitution is a higher law than any bill which Congress can pass, just as the law made by Congress is higher than the decision of any judge. No Congress can modify a clause of the Constitution. The assent of the entire people is necessary for such a revision. Congress can, however, propose an amendment to the Constitution, and a two-thirds majority in the Senate and the House suffice to bring the proposed change before the nation, to be voted on. It has then to be passed on by the forty-five state legislatures, and will become a law with the approval of three-quarters of the states.

At first glance it seems as if this were a judicial machinery which would be far too complicated to work smoothly; it seems as if sources of friction had been arbitrarily devised, and as if continual collisions between the authorities of the several systems would be inevitable. This is true in two instances especially; firstly, the judicial machinery, which carries out the federal laws, sometimes collides with that of the separate states. Then, secondly, the complicated system of Constitutional provisions, devised a hundred years since, may interfere with the progressive measures of Congress or the separate states; and this must be a source of much uncertainty in law. These are the actual difficulties of a legal sort. Everything else, as for instance the enormous diversity of the laws in the separate states, is of course very inconvenient, but gives rise to no conflicts of principle.

Neither of these two difficulties finds its counterpart in Germany. In no Prussian city is there a German tribunal side by side with the Prussian, no imperial judge beside the local judge; nor can one conceive of a conflict in the German Empire between the creators of the legal code and the law-givers who frame the provisions of the Constitution. This doubleness of the judicial officials is in every part of the Union, however, characteristic of the American system and necessary to it. The wonderful equilibrium between centripetal and centrifugal forces which characterizes the whole American scheme of things makes it impossible from the outset for either the whole Federation to become the sole administrator of justice, or for such administration, on the basis of federal law, to be left entirely to the separate states. As a matter of course, a clear separation of jurisdiction has been necessary. The Constitution provides for this in a way clearly made necessary by the conditions under which the Federation was formed. Justice in the army and navy, commercial policies, and political relations with other countries; weights and measures, coinage, provisions, interstate commerce, and the postal system, the laws of patents and copyrights, of bankruptcy, and of naturalization, the laws of river and harbour, cases of treason, and much else are left to the Federation as a whole. While all these matters fall naturally within the scope of federal law, there are, on the other hand, obvious reasons whereby certain classes of persons should be under the jurisdiction of the federal courts. These are, firstly, diplomatic ministers and consuls; secondly, either actual or legal parties when they belong in different states; thirdly, and most important, the states themselves. Wherever a state is party to an action, the Supreme Federal Court must hear the case and give the decision. On the other hand, the Constitution declares expressly that, wherever jurisdiction is not explicitly conferred on the federal courts, it pertains to the individual states; therefore, much the larger part of criminal law belongs to the states, and so the laws of marriage and inheritance, of contract, property ownership, and much else.

For the administration of cases within its jurisdiction, the Federation has divided the whole country into twenty-seven districts, whose boundaries coincide partly with state lines, and of which each has a district court. Groups of such districts form a circuit, of which each has a circuit court, which sits on the more important cases, especially civil cases involving large interests. And, finally, there is a court of appeals. These districts and circuits are now coincident with the regions lying in the jurisdiction of the several states. In their method of procedure the federal and the state courts resemble each other, especially in the general conduct of criminal cases, which is everywhere the same, because the Constitution itself has fixed the main features. Both state and federal courts are alike bound by the extraordinarily rigid rules framed by the Constitution in order to protect the innocent man against the severity of the law.

No criminal can be condemned except by a jury which has been sworn to perform its duty, and before he comes before this jury a provisional jury has to make the accusation against him. Thus one sworn jury must be convinced of the justice of the suspicion before a second jury can give its verdict. A person cannot be brought up for trial twice for the same crime; no one can be compelled to testify against himself; every one has the right to be brought before a jury in the district where the crime was committed, to hear all the testimony against him, to have counsel for his own defence, and to avail himself of the strong arm of the law in bringing to court such witnesses as would speak in his favour; cruel or excessive penalties may not be fixed, nor a man’s freedom or property interfered with except after due process of law. The Constitution provides this, and a good deal else, and thus makes the conduct of trials uniform. In other respects, however, there are not a few differences which are not so obvious in the courts. Among these is the circumstance that federal judges are appointed for life, while the judges of the separate states are elected for short periods of from four to seven years.

The relations between constitutional laws and legislative laws seem even more complicated. Here, too, in a way, the same province is covered by a two-fold system of laws. The fixed letter of the Constitution and the living decisions by a majority in Congress or in a state legislature, stand in opposition to each other. It is established that no legislature can ride over the Constitution; and if the interpretation of a court brings out a contradiction between the two systems, a conflict arises which in principle makes justice uncertain. If we now ask how it is possible that all such conflicts have disappeared without the least prejudice to the national sense of justice, how in spite of all these possibilities of friction no disturbance is seen, or how in a land which has been overrun with serious political conflicts, a jurisprudence so lacking in uniformity has always been the north star of the nation—the reply will be that the Supreme Court has done all this. The upper federal court has been the great reconciling factor in the history of the United States, and has left behind it a succession of honourable memorials. Its most distinguished chief justice has been John Marshall, who presided over it from 1801 to 1835. He was America’s greatest jurist, and contributed more than any one else toward impressing the spirit of the Constitution on the country.

The German reader who hears of the Supreme Court sitting at the Capitol, must not turn back in his mind to the Imperial Court at Leipzig. The Supreme Court is by no means the sole court of highest instance, for the suits in single states which properly fall within the jurisdiction of a state can go no higher than the highest court of appeal of that state. The Supreme Court in Washington is the court of last instance for federal cases; but in order to disburden the judges in Washington, there are large classes of civil cases pertaining to the federal courts, which can be carried no higher than the federal court of appeals of a given circuit. Much more important than the cases in which the Supreme Court is really the court of highest instance for federal suits, are those others in which it is at once the court of first and last instance; these are the processes which the Constitution assigns immediately to the Supreme Court. They are chiefly suits in which a single state, or in which the United States is itself a party, for the Supreme Bench alone can settle disagreements between states and decide whether the federal or state laws conflict with the Constitution. In this sense the Supreme Court is higher than both President and Congress. If it decides that a treaty which the Executive has concluded, or a law which has been passed by the Legislative, violates the Constitution, then the doings of both Congress and the President are annulled. There is only one way by which a decision of the Supreme Court can be set aside—namely, by the vote of a three-fourths majority of all the states; that is, by an amendment of the Constitution. There are some instances of this in the history of the United States; but virtually the decision of the nine judges of the Supreme Court is the highest law of the land.

The Supreme Court has annulled Congressional measures twenty-one times and state statutes more than two hundred times, because these were at variance with the Constitution. Many of these have been cases of the greatest political importance, long and bitterly fought out in the legislatures, and followed with excitement by the public. The whole country has often been divided in its opinion on a legal question, and even the decision itself of the nine judges has sometimes been handed down with only a small majority. Nevertheless, for many years the country has every time submitted to the oracle of the Supreme Court, and considered the whole issue definitely closed.

One is not to suppose that the Supreme Court occupies itself with handing down legal verdicts in the abstract and in a way declaring its veto whenever Congress or some legislature infringes the Constitution. Such a thing is out of the question, since theoretically the Supreme Court, although the equal is not the superior of Congress; most of all, it is a court and not a legislature. The question of law does not come up then before this tribunal until there is a concrete case which has to be decided, and the Supreme Court has always declined to hand down a theoretical interpretation in advance of an actual suit. As early as the eighteenth century, Washington was unable to elicit from the Supreme Court any reply to a hypothetical question. Even when the actual case has come up, the Supreme Court does not say that a certain law is invalid, but decides strictly on the one case before it, and announces on what principle of the law it has based its decision. If there is a disagreement between two laws, the decision of the Court simply lays the practical emphasis on one rather than on the other. It is true that in this way nothing but one single case is decided; but here the principle of common law comes in—one decision establishes a point of law, and the Supreme Court and all lower courts likewise must in future hand down verdicts conformable thereto. The legislative law so superseded is thus practically annulled and made non-existent. In the Supreme Court one sees again that the security of national justice rests on the binding force of former decisions.

It will be enough to point out two decisions which have been given in recent years and which have interested the whole country. In the year 1894 Congress passed a new tax law; one clause of this law taxed every income which was larger than a certain amount. It was taxation of the wealthy. So far as income was obtained by actual labour the tax was undoubtedly valid. But New York barristers doubted the constitutionality of this tax in so far as it was laid on the interest from securities or on rents; because the Constitution expressly says that direct taxation for the country must be levied by the separate states, and in such a way that the whole sum to be raised shall be apportioned among the different states according to their population. The counsels of the wealthy New Yorkers said this provision ought to apply here. The difference would be for every rich man in thickly populated states a very considerable one. If the tax was to be apportioned according to population, the poor states must also bear their share. While it came to be levied on the individuals the largest part of the burden would fall to the millionaires, who are grouped in a few states. The Supreme Court would say nothing so long as the discussion was theoretical. Finally, a case was tested; when the lawyers were prepared, a certain citizen refused to pay the income tax and let the matter go to court. The first barristers in the country were divided on the question, as was also the Supreme Court. The majority decided in favour of the citizen who refused to pay the tax, because in its opinion the tax was a direct one, and therefore the constitutional provision relating to direct taxation was in force. By this one decision the income tax was set aside, and instead of ten thousand new suits being brought, of which the outcome was already clear, the excess taxes were everywhere paid back. At bottom this was the victory, over both President and Congress, of a single eminent barrister, who is to-day the ambassador to England.

A still more important decision, because it involved the whole political future of the United States, was that on the island possessions. By the treaty with Spain, Porto Rico had become a possession of the United States, and was therefore subject to United States law; but Congress proceeded to lay a tariff on certain wares which were imported from the island. There were two possible views. On the one hand, the Constitution prescribes that there shall be no customs duties of any sort between the states which belong to the Union; and since Porto Rico is a part of the Union the rest of the states may not levy a tariff on imports from the island. On the other hand, the Constitution empowers Congress to regulate at its discretion the affairs of such territory as belongs to the United States, but has not yet been granted the equal rights of states; thus the other provision of the Constitution would not immediately apply to this island. The question had never before been decided, because the Indian territories, the Mexican accessions, and Alaska had never been treated as Porto Rico now was. Congress had previously taken for granted that the Constitution was in force for these territories, but now the imperialistic tendencies of politics had created a new situation, and one which had to be settled.

Here too, of course, the Supreme Court did not try to settle the theoretical question which was stirring the whole country; but presently came the action of Downes vs. Bidwell, a simple suit in which a New York commercial house was the complainant, and the New York Customs the defendant. In case the provisions of the Constitution were to hold for the entire domain of the United States, the tariff which Congress had enacted was unconstitutional, but if the Constitution was to hold only for the states, while Congress was sovereign over all other possessions, the tariff was constitutional. The Supreme Court decided for this latter interpretation by five votes against four, and the commercial house paid its tax. Therewith the principle was decided for all time, and if to-morrow the United States should get hold of Asia and Africa, it is assured from the outset that the new domain would not be under the Constitution, but under the authority of Congress—simply because Downes lost his case against Customs Inspector Bidwell, and had to pay six hundred dollars in duty on oranges.

This last case shows clearly that the decisions by no means always support the Constitution against legislative bodies; and statistics show that although in two hundred cases the verdict has been against the legislatures, it has been more often decided in their favour. The entire history of the Supreme Court shows that in a conservative spirit it has always done full justice to both the centralizing and particularizing tendencies. It has shown this conciliatory attitude especially by the firm authority with which it has decided the hazardous disputes over boundaries and other differences, between the several states, so that such disputes really come up no longer. For a century the Supreme Court has been a shining example of a federal tribunal.

Such complete domination of the national life could not have been attained by the Supreme Bench if it had not remained well above all the doings of the political parties, and that it does so may seem surprising when one considers the conditions under which the judges are appointed. The President selects the new judge whenever, by death or retirement, a vacancy occurs among the nine judges; and the Senate confirms the selection. Party factors, therefore, determine the appointment, and in point of fact Democratic Presidents have always appointed judges belonging to their own party, and Republicans have done the same. The result is that both parties are represented in the Supreme Court. That in political questions, such as the case of Porto Rico, which we have mentioned, party conceptions figure somewhat in the decision of the judges is undoubted. Yet they figure only in the sense that allegiance to one or the other party involves certain fundamental convictions, and these necessarily come into play in the judicial verdict. On the other hand, there is never the least suspicion that the judges harbour political schemes or seek in their decision to favour either political party. This results from the fact that it is a matter of honour with both parties to place really the most distinguished jurists in these highest judicial offices—jurists who will be for all time an honour to the administration which appointed them. They are almost exclusively men who have never taken part in technical politics, but who have been either distinguished judges elsewhere or else leading barristers, and who, from the day of their appointment on, will be only judges. Their position is counted among the most honourable which there is, and it would almost never happen that a jurist would decline his appointment, although the position, like all American official positions, is inadequately rewarded; the salary is ten thousand dollars, while any great lawyer is able to earn many times that sum. At the present moment there sits on the Supreme Bench a group of men, every one of whom represents the highest kind of American spirit. The bustle and confusion, which prevail in the two wings of the Capitol, does not invade the hall where the nine judges hold their sessions. These men are, in the American public mind, the very symbol of conscience.

We shall have occasion to consider later on the administration of justice by the nation, under various points of view. While in many respects this will appear less conscientious and more especially less deliberate, it will, nevertheless, recall not a few admirable features of the Supreme Court.