Government in the United States, National, State and Local

Captures.– In pursuance of the power to make rules concerning captures on land and sea, Congress has adopted a code of rules, though that matter is regulated for the most part by international law. Formerly it was the practice to allow the commander and crew a share of the proceeds of prizes captured on the sea in time of war, but in 1898 a law was passed abolishing prize money and providing that the proceeds from the sale of prizes should be turned into the treasury of the United States. In case of rebellion or insurrection the whole matter of the liability of the property of insurgents is within the control of Congress. Thus during the Civil War acts were passed for the confiscation of all property of the Confederates used in the prosecution of the war, as well as all abandoned property, that is, property belonging to persons who were away from their homes and in the Confederate service.

The Army.– The Constitution expressly authorizes Congress to raise and support armies, subject to the limitation that no appropriation for the support of the army shall be for a longer period than two years. This period corresponds to the term of Congress, and hence the limitation serves to keep the army under the control of the people. There was more or less jealousy of standing armies at the time of the adoption of the Constitution, and for a long time the regular army of the United States was very small; in 1898, for example, it was only 27,000 men.

Present Strength of the Army.– By an act passed in 1916 provision was made for increasing the peace strength of the regular army to 480,000 men; for establishing officers' reserve training corps at colleges and universities; for maintaining camps for giving military training to citizens who apply for it; and for creating a regular army reserve, the members of which are to receive at least fifteen days' training each year. Provision was also made for reorganizing the militia and for increasing its strength ultimately to about 425,000 men. The expense of the training camps and of equipping, training, and paying a small salary to the officers and men of the organized militia and of the regular army reserve is to be borne by the national government. After the beginning of the war with Germany (1917), provision was made for raising a large army by conscription of able-bodied young men between the ages of 21 and 31 years – later on between 18 and 45.⁵¹ By the act of June 4, 1920, the strength of the regular army was reduced to 150,000 men on October 1, 1921.

The General Staff.– In 1903 the office of "commanding general" was abolished and in its place a general staff was created, to prepare plans for the conduct of military operations. By the acts of 1916 and 1920 the general staff was reorganized. At its head is a chief of staff with the rank of major general, who in time of peace is the actual head of the army. Among his assistants are: a chief of cavalry, a chief of field artillery, a chief of coast artillery, a chief of infantry, and a chief of chaplains.

Military and Naval Expenditures.– The expenditures on account of the military and naval establishments have increased enormously in recent years. Before the war with Spain the appropriations for the maintenance of the army did not exceed $50,000,000 per annum. The budget of expenditures for the year 1922 as submitted to Congress by the President aggregated nearly $4,000,000,000. It contained the following items: war department, $390,000,000; navy, $478,000,000; pensions, $258,000,000; veterans bureau, $438,000,000; interest on the national debt, $976,000,000; total, $2,539,000,000, or more than 60 per cent of the total, leaving less than 40 per cent for civil purposes. In the hope of bringing about an agreement among the nations for a reduction of their military and naval expenditures, a conference of the Powers, called by President Harding, assembled at Washington in November, 1921. Here an agreement was reached to reduce naval expenditures.

Volunteers.– Except during the Civil War and the war with Germany, resort has never been made to conscription for recruiting the army – a practice almost universal in Europe. In most of our wars the chief reliance has been on volunteers and the militia. Thus at the outbreak of the Civil War the President was authorized to accept the services of 500,000 volunteers, and at the outbreak of the war with Spain in 1898, the President called for 200,000 volunteers. It takes much training to convert an inexperienced volunteer into an efficient soldier; but many of our great battles have been fought chiefly by the volunteer forces.

The Militia.– The Constitution also authorizes Congress to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; and to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. The militia as defined by act of Congress consists of all able-bodied male citizens of the United States between the ages of eighteen and forty-five. That portion of the militia regularly organized, uniformed, and occasionally drilled and taught military tactics constitutes the national guard.⁵²

Each state organizes and controls its own militia, and the national government has no control over it until it has been called into the service of the United States, when it becomes subject to the rules and discipline prescribed for the government of the regular army. In 1795, Congress passed an act prescribing the conditions under which the militia might be called into the service of the United States. This act conferred on the President of the United States the power to call out the militia whenever, in his judgment, it was necessary or expedient. Such calls are addressed to the governors of the states, who are the commanders of their several portions of the militia. When, however, the militia has been mustered into the service of the United States the President becomes their commander in chief. In pursuance of this authority the President has called out the militia on two different occasions; during the War of 1812 to repel invasion; and during the Civil War to suppress insurrection. In 1898 when the war with Spain was declared, the call was issued not for the militia but for volunteers.⁵³ Nevertheless many of the volunteers who responded were as a matter of fact members of the organized militia of their respective states. In pursuance of authority conferred by Congress in 1916, the President drafted the organized militia into the federal service in that year for service on the Mexican border, and again in 1917 on account of the war with Germany.

The Naval Militia.– In a number of the seaboard states and some of those bordering on the Great Lakes, there are organized bodies of naval militia, with training ships loaned by the United States for the purpose of drill and instruction. Like the land militia, the naval militia of each state is under the control of the state and until called into the federal service is under the command of the governor.⁵⁴

The Navy.– Congress is also authorized by the Constitution to provide and maintain a navy. In pursuance of this authority, Congress created a small naval establishment in 1794, but it amounted to little until the War of 1812, when it was strengthened by the improvisation of a number of war vessels which won brilliant victories over the ships of Great Britain. Thereafter the navy was neglected until the necessities of the Civil War required its rehabilitation. At the close of the war the vessels in the service numbered 683, but they were sold or otherwise disposed of, and what was once the most powerful navy in existence was allowed to go to pieces. In 1881 a board of naval officers prepared a somewhat elaborate naval program and recommended the construction during the next eight years of some 120 naval vessels. The work was begun in 1883 – a date which may properly be fixed as the beginning of our present navy. The first important appropriation, that of 1883, was less than $15,000,000. Each year the amount was increased until in 1917 it had reached $535,000,000.

Present Strength of the Navy.– The number of officers and enlisted men in the navy in August, 1919, was 241,357, besides about 19,000 men in the marine corps. The total number of vessels of all kinds for fighting, built or in process of construction, was about 1070. These included 50 battleships, 18 armored cruisers of various types, 7 monitors, some 30 unarmored cruisers of different types, about 360 destroyers and torpedo boats, about 160 submarines, 336 submarine chasers, and about 100 gunboats and patrol vessels.

According to the report of the Secretary of the Navy in 1919, the naval standing of the great powers was as follows:

For administrative purposes the ships of the navy are grouped into fleets, and these are again subdivided into squadrons. Thus the North Atlantic fleet is divided into a coast squadron and a Caribbean squadron. Within each squadron there are usually a number of divisions. There are navy yards where ships are either built or repaired at a number of places on the Atlantic and Pacific coasts,⁵⁵ and there are several training schools for recruits, and a naval academy at Annapolis (founded in 1845), where young men are educated for service in the navy.⁵⁶ There is also a naval war college at Newport, Rhode Island, for advanced study of naval problems and questions of international law.

Ranks.– Until 1862, the highest official rank in the navy was that of captain, although the title commodore was popularly applied to officers in command of a squadron. The following table is a list of the officers of the navy, beginning with the highest, together with the corresponding ranks in the army:

Примечание 1⁵⁷

Marine Corps.– Officers in the Marine Corps have the same ranks as in the army. While serving generally under the direction of the secretary of the navy, the corps may serve with the army by order of the President.

Bankruptcy Legislation.– The Constitution confers upon Congress the power to pass uniform laws on the subject of bankruptcies throughout the United States. Bankruptcy is the condition of a person whose liabilities exceed his assets, and a bankruptcy law is one which provides for the distribution of the assets of such a person among his creditors and for his discharge from further legal obligation to pay his debts, thus enabling him to make a new beginning in business. The discharge is only from the legal obligation; the moral obligation remains, and should be fulfilled in case of ability to do so in the future.

State Insolvency Laws.– Before the adoption of the Constitution the states passed insolvency laws discharging debtors from their legal obligations, and it has been held by the Supreme Court that they may still pass such laws, subject to the condition that they can affect only citizens of the state in which the law is passed, and apply only to such contracts as may be entered into subsequent to the enactment of the law. If there is a federal bankruptcy law in force it supersedes all conflicting provisions in the state laws on the subject.

Federal Acts.– Since the Constitution went into effect Congress has enacted four different bankruptcy laws, namely, in 1802, 1840, 1867, and 1898, the first three of which were in operation only fifteen years altogether. The present law – that of 1898 – provides for both "voluntary" and "involuntary" bankruptcy. Any debtor, except a corporation, may voluntarily have himself adjudged a bankrupt by filing a petition in a United States district court, showing that his liabilities are in excess of his assets. Any debtor except a corporation, a wage earner, or a farmer, may, against his will, upon petition of his creditors, be declared a bankrupt under certain conditions.

Bankruptcy petitions are referred to "referees" for examination and report. After hearing the testimony on the petition the referee reports his findings to the court, which makes its decision largely on the basis of such findings.

Implied Powers.– After expressly enumerating in succession the various powers of Congress, the more important of which have been described above, the Constitution concludes with a sort of general grant, empowering Congress to make all laws which shall be necessary and proper for carrying into execution those enumerated above. This is sometimes called "the elastic clause," since it is capable of being stretched by interpretation to cover many matters that Congress might not otherwise feel authorized to deal with. It is doubtful, however, whether it really adds anything to the power of Congress, since that body would unquestionably have authority to do whatever is necessary and proper to carry into effect the powers expressly conferred upon it. It is a maxim of constitutional construction that wherever power to do a particular thing is conferred, the means for doing it are implied. Manifestly it would have been impossible to set forth in detail all the incidental powers necessary to be exercised in carrying into effect the mandates of the Constitution relating to taxes, coinage, post offices, making war, etc.

Liberal vs. Strict Construction.– The question of the interpretation of the scope and meaning of this grant of powers arose very early in the history of the national government, in connection with the proposition of Hamilton to establish a United States bank. Hamilton contended that the authority to establish such an institution was clearly implied in the power to borrow money and pay the debts of the United States. A federal bank, he urged, was a proper if not a necessary means for carrying into effect these important powers of Congress, just as the establishment of a mint was necessary to carry out the power relating to the coinage of money. Jefferson and his school of political thinkers, however, held to a strict interpretation of the Constitution and maintained that Congress had no right to exercise any power which was not expressly conferred. The view of the "loose" or "liberal" constructionists, however, prevailed, and from the beginning Congress has relied upon the doctrine of implied powers for its authority to legislate on many important questions.

Examples of Implied Powers.– It was upon this authority that foreign territory has been purchased and governed; that a protective tariff has been levied; that a national bank was established; that legal tender paper money has been issued; that the construction of the Panama Canal has been undertaken; that ship subsidies have been granted; that postal savings banks have been established; that education has been fostered; and many other activities undertaken. The policy of liberal interpretation was first adopted by Chief Justice Marshall of the Supreme Court and his associates, and with rare exceptions has been followed by the court throughout its entire history. The effect has been to strengthen the national government and render it capable of fulfilling the great purposes for which it was created. The whole course of our political and constitutional history is different from what it would have been had the view of the strict constructionists prevailed.

References.– Andrews, Manual of the Constitution, pp. 120-148. Beard, American Government and Politics, ch. xix. Cooley, Principles of Constitutional Law, pp. 94-111. Fairlie, National Administration, chs. ix, x, xii. Hart, Actual Government, ch. xxiv.

Documentary and Illustrative Material.– Copies of the annual reports of the Postmaster-General, the Librarian of Congress, the Commissioner of Patents, the Secretary of War, and the Secretary of the Navy, all of which may be obtained gratis from the officials mentioned.

Research Questions

1. Why should the postal service be conducted by the government? Should the transportation of the mail be a government monopoly?

2. Should the rates of postage on second-class matter, in your opinion, be increased? Why?

3. What are the advantages of a postal savings bank system?

4. Ought the government to establish a parcels post system? To what extent do we already have a parcels post service?

5. Do you think our postal facilities with South America and the Orient should be improved by means of ship subsidies?

6. What would be the advantage of making the tenure of postmasters permanent?

7. Why should the granting of copyrights and patents be placed under the jurisdiction of the national government rather than under that of the state governments?

8. Why should the term of a copyright or patent be limited?

9. Socialists argue that since the granting of a patent to an inventor secures to him a monopoly of the manufacture and sale of his invention, the government ought not to grant patents for such purposes. What is your opinion of this argument? Would it be better for the government to compensate the inventor and remove the restrictions upon the manufacture and sale of his invention?

10. Why are the appropriations for the maintenance of the army limited to two years?

11. Should the expenditures on account of the army and navy, in your opinion, be reduced?

12. What do you understand by the movement among the nations for disarmament? Do you think disarmament desirable or practicable?

13. Tell something of the objects and results of The Hague Peace Conferences. Give examples of some disputes between the United States and other countries that have been settled by arbitration.

14. What is the purpose of a bankruptcy law, and why should the power to enact bankruptcy legislation be conferred upon Congress rather than left to the states?

15. What is the distinction between "implied" and "inherent" powers under the Constitution? Give some examples of each.

16. Which in your judgment is the safer policy, that of strict construction of the Constitution or liberal construction?

CHAPTER XV
THE PRESIDENCY: ORGANIZATION AND MODE OF ELECTION

The Presidential Office.– One of the weaknesses in the organization of the government under the Articles of Confederation was, as we have seen, the lack of an executive to carry into effect the resolutions of Congress and the treaties of the United States. There was no doubt, therefore, in the minds of the framers of the Constitution in regard to the desirability of providing for an executive department coördinate with the legislative department. It was accordingly declared that the executive power should be vested in an officer called the President of the United States.

Proposed Executive Council.– While the convention was practically unanimous in the view that the supreme executive power should be vested in a single person, a good many members looked with favor on a proposition to associate with the President an executive council which should share with him the exercise of the executive power in certain important fields. Most of the state constitutions then in force had provided such councils, and now that a national executive with far larger powers was being created there was all the more reason why it should be placed to some extent under the guardianship of a council. But the proposition was rejected, and in its place the Senate was charged with acting as an executive council to the President in negotiating treaties and the making of appointments, but in no other respects.

Qualifications of the President.– The Constitution requires that the President shall be a natural born citizen of the United States,⁵⁸ that he must have attained the age of thirty-five years, and must have been fourteen years a resident of the United States. The same qualifications are required of the Vice President.

The Presidential Term.– There was considerable discussion in the convention regarding the term of the President. It was first decided that the term should be seven years and the President made ineligible to a second term, but upon further consideration the convention decided to fix the term at four years and nothing was said in regard to reëligibility. The result is, the President may serve as many terms as the people may see fit to elect him. The following Presidents have been elected to two terms: Washington, Jefferson, Madison, Monroe, Jackson, Lincoln, Grant, Cleveland, McKinley, and Wilson.⁵⁹ Cleveland, after serving one term, was renominated by his party but was defeated by the Republican candidate. He was then nominated for the third time by his party and was elected. Washington declined a third term and his example has been followed by his successors. The precedent thus established, that the President shall serve only two terms, has become part of our unwritten constitution, and but two attempts have ever been made to break the custom.⁶⁰

Mode of Election.– No question consumed so much of the time of the convention as that relating to the method of choosing the President. Various schemes were proposed. A few members favored election by the people; others urged election by Congress. Against the method of popular choice it was argued that the people were not competent to choose a chief magistrate for the entire country, and besides, under such a system, they would be influenced by demagogues and scheming politicians. Again, the tumults and disorders, the "heats and ferments" of a popular election would convulse the community to the breaking point. Against the method of election by Congress, it was urged that the President would be a mere creature or tool of that assembly and would be under the temptation of making promises or entering into bargains with influential members in order to secure an election. Moreover, such a method was contrary to the great principle upon which all the members were agreed, namely, that the three departments of the national government should be kept separate and independent of one another.

The clause as finally adopted provides that the President shall be chosen, not directly by the voters, but by electors to be appointed in each state in such manner as the legislature thereof may direct, each state to have as many electors as it has senators and representatives in Congress.

Breakdown of the Electoral Plan.– It was at first expected that the electors of the different states, composed of leading citizens presumably well acquainted with the qualifications of the candidates for the chief magistracy, would meet at the state capitals, discuss among themselves the strength and weaknesses of the several candidates, and then exercising their full judgment, cast their votes for the fittest. But the scheme quickly broke down in practice, and instead of a real choice by small bodies of men, we have a system which amounts to direct election by the masses of the voters, though the form of indirect election is still followed. As soon as political parties were thoroughly organized, the electors, who were intended to be men "capable of analyzing the qualities adapted to the Presidential office," were reduced to the position of party puppets who no longer exercised their own judgment in choosing the President but merely registered, like automata, the will of their party. As Ex-President Harrison once remarked, an elector who should fail to vote for the nominee of his party would be the object of execration and in times of very high excitement might be the subject of a lynching.⁶¹ So closely do the electors obey the will of their party that we always know at the close of election day, on Tuesday after the first Monday in November, when the electors themselves are chosen, who will be the next President, though in fact the electors do not meet in their respective states until the following January, formally to register the choice of the people.

Choosing Presidential Electors.– In the beginning the presidential electors of each state were chosen by the legislature, either by joint ballot of the two houses sitting together, or by concurrent vote. In the course of time, however, popular election of electors was introduced, South Carolina (1868) being the last state to choose its electors by the legislature.

Choice by General Ticket.– When the system of popular choice of electors was adopted, two different methods were followed: choice by districts, and choice on general ticket from the state at large; but by 1832 all the states except Maryland had adopted the general ticket method, and now there is no state which follows the district method.

Representatives in Congress, as we have seen, are elected by districts, and hence the delegation in Congress from a particular state is often divided between Democrats and Republicans. But not so with Presidential electors; usually the party in the majority in the state, however small the majority, chooses all the electors. Thus when the Democratic party carried New York by a majority of hardly more than 1,000 votes in 1884, the entire electoral vote was counted for Cleveland.⁶²

Among the results of the rule which gives the entire electoral vote of the state to one of the candidates, notwithstanding the size of the vote polled by the other candidate, is that each party concentrates its efforts in the large "pivotal" states whose votes are decisive, and thereby bribery and fraud in such states are powerfully stimulated.

Candidates for the office of elector are nominated usually by the state conventions of each party. No senator or representative or any person holding an office of honor, trust, or profit under the United States is eligible to the office of elector. Congress, under the Constitution, has power to fix the day on which the electors shall be chosen, and it has fixed the day as Tuesday after the first Monday in November.

Electoral and Popular Vote.– Generally the candidate for President whose electors receive the largest popular vote will also receive the largest electoral vote; but this has not always happened, and usually there is only a rough correspondence between the popular vote and the electoral vote. Thus in 1860 Lincoln received only about forty per cent of the popular vote, though he received a substantial majority (about fifty-nine per cent) of the electoral vote. Again, in 1864 he received only about fifty-five per cent of the popular vote, but ninety-one per cent of the electoral vote. In 1912 Wilson received forty-two per cent of the popular vote, and eighty-two per cent of the electoral vote. Such discrepancies are due to the fact that the entire electoral vote of a state is usually cast for the candidate who receives a plurality of the popular vote of the state, however small it may be. A party, therefore, may carry enough states by small margins to secure a majority of the electors and yet be in a minority so far as the popular vote of the entire country is concerned.

Choice of the President by the Electors.– The electors, on the second Monday of January following their election, assemble in their respective state capitals for the purpose of choosing the President.⁶³ The Constitution as it now stands requires the electors to vote by ballot for President and by a distinct ballot vote for Vice President, and make separate lists of all persons voted for as President and of all persons voted for as Vice President.

The Original Method.– The Constitution as originally adopted did not require the electors in casting their ballots to indicate the person for whom they were voting as President and whom for Vice President, or to prepare distinct lists. The one who received the highest vote (if a majority) was to be President, and the one receiving the next highest number (whether a majority or not) was to be Vice President. The result of this method of choosing the President was that as soon as political parties were formed and the electors came to vote strictly on the basis of party there would be a tie between the two persons highest on the list, and as there was nothing to show on the record which was intended for President and which for Vice President there would be no election. This happened in 1801, when Jefferson and Burr each received seventy-three electoral votes, and the choice between them had to be made by the house of representatives as the Constitution provides.

Twelfth Amendment.– To remove the difficulty, the Twelfth Amendment was adopted in 1804, requiring the electors in preparing their ballots to indicate their choice for President and their choice for Vice President so that the person intended for the latter office could not be confused with the person intended for President. The amendment also requires a majority of the electoral vote to elect the Vice President as well as the President.

Restrictions on the Electors.– In casting their votes the electors are prohibited from voting for candidates for both offices from the same state as themselves. The purpose of this provision is to prevent the electors from one state – if any state should ever become powerful enough – from choosing both the President and the Vice President from that state. This does not mean, however, that both the President and the Vice President could not be elected from the same state, since the electors of the other states are not prohibited from voting for two candidates from the same state.

Formalities and Precautions.– The Constitution requires the electors of each state to sign, certify, seal, and transmit to the president of the United States senate, a list of the votes cast for President and Vice President. The statutes also require two additional lists to be prepared, one to be sent to the president of the senate by special messenger, and the other to be deposited with the nearest United States district judge. These extra precautions are taken to prevent the loss of the state's votes through accident or otherwise. This done, the office of the Presidential elector expires and the electoral colleges cannot be again summoned to correct errors or to make a new choice in case the President elect should die before inauguration.