11

A committee whose action can affect the tariff is of course an important one, and employs a large lobby. I remember to have heard an anecdote of a quinine manufacturer, who had kept a lawyer as his agent to "look after" a committee during a whole session, and prevent them from touching the duty on that drug. On the last day of sitting the agent went home, thinking the danger past. As soon as he had gone, the committee suddenly recommended an alteration of the duty, on the impulse of some one who had been watching all the time for his opportunity.

Women are said to be among the most active and successful lobbyists at Washington.

Efforts have been made to check the practice of lobbying, both in Congress and in State legislatures. Statutes have been passed severely punishing any person who offers any money or value to any member with a view to influence his vote.12 It has been repeatedly held by the courts that "contracts which have for their object to influence legislation in any other manner than by such open and public presentation of facts, arguments, and appeals to reason, as are recognized as proper and legitimate with all public bodies, must be held void." It has also been suggested that a regular body of attorneys, "The phrase one often hears, "there was a strong lobby," (i.e. for or against such and such a bill) denotes that the interests and influences represented were numerous and powerful.

13

As to Congress, see § 5450 of Revised Statutes of the United States. The provisions of State Statutes are too numerous to mention. The Constitution of California declares lobbying to be a felony; Georgia calls it a crime.

13Cooley, Constit. Limit., p. 166. He adds, "While counsel may be properly employed to present the reasons in favour of any public measure to the body authorized to pass upon it, or to any of its committees empowered to collect facts and hear arguments, and parties interested may lawfully contract to pay for this service, yet secretly to approach the members of such a body with a view to influence their action at a time and in a manner that do not allow the presentation of opposite views, is improper and unfair to the opposing interest, and a contract to pay for this irregular and improper service would not be enforced by the law." He quotes abundant judicial authority in support of this doctrine; among others, the following observations of Justice Chapman, in Frost v. Belmont, 6 Allen, 152:

"Though Committees properly dispense with many of the rules which regulate hearings before judicial tribunals, yet common fairness requires that neither party shall be permitted to have secret consultations and exercise secret influences that are kept from the knowledge of the other party. The business of 'lobby members' is not to go fairly and openly before the committees and present statements, proofs, and arguments, that the other side has an opportunity to meet and refute if they are wrong, but to go secretly to the members and ply them with statements and arguments that the other side cannot openly meet, however erroneous they may be, and to bring illegitimate influences to bear upon them. If the lobby member' is selected because of his political or personal influence, it aggravates the wrong. If his business is to unite various interests by means of projects that are called 'log-rolling,' it is still worse. The practice of procuring members of the legislature to act under the influence of what they

authorized to act as agents before committees of Congress, should be created. A bill for this purpose was laid before the Senate in January, 1875.14

In many States an attempt has been made to check the evils consequent on lobbying, by restraining the legislature from passing special laws in a great variety of cases. See post, Chapter XL.

NOTE TO CHAPTER XXVII

THE FEDERAL SYSTEM OF THE ENGLISH UNIVERSITIES THE structure of the American Federation may be illustrated by a federal system familiar to many Englishmen from its existence in the two ancient universities of Oxford and Cambridge, as they stood constituted twenty years ago. The analogy, which recent legislation has rendered less perfect to-day than it was then, appears in four points.

I. Each of these universities was then for some purposes a federation of colleges. Every member of it was also a member of some college or hall; 15 as no one can be an active citizen of the United States who is not a citizen of some State. The colleges made up the university as the States make up the Union. But the university was and is something distinct from the colleges taken together. It has a sphere of its own, laws of its own, a government of its own, a revenue and budget of its own. So has each of the colleges. Each member has two patriotisms, that of his college, that of the university; just as each American citizen has his State patriotism as well as his national patriotism.

II. The university has a direct and immediate jurisdiction over

have eaten and drunk at houses of entertainment tends to render those who yield to such influences wholly unfit to act in such cases. They are disqualified from acting fairly towards interested parties or towards the public."

See an article in the Century Magazine for April, 1886, p. 963. 15 By a recent statute of the University of Oxford (which I take for the sake of simplicity), reverting to its earlier constitution before the college monopoly had been established, persons have been admitted to be members who are not members of any college or hall; they are. however, treated for some purposes as collectively constituting a community similar to a college. They might be compared to United States citizens resident in the Territories, were it not that the citizen in a Territory enjoys no share in the national government, whereas the Oxford non-collegiate graduate can vote in Convocation and Congregation and for the election of members of Council.

There is of course this remarkable difference between the two cases I am comparing, that in the English universities the university is older than the colleges, whereas in America the States are older than the nation. The federal character of Oxford dates only from the time of Archbishop Laud.

every one of its members, distinct from the jurisdiction exercised by the colleges over the same persons. An offender may be punished for certain offences by a university tribunal, for certain others by a college tribunal, for some by both tribunals. So every citizen lives under the jurisdiction of the Union as well as under that of his State. III. The governing authorities of the university are created partly by the direct action of its members as graduates, partly by that of the colleges as communities. So in America Congress is created partly by the citizens as citizens, partly by the States as communities. Before the reforms of 1854 the part played by the colleges was much greater than it is now, because the Council, which is a sort of Upper House of the university legislature, consisted entirely of heads of colleges.

IV. The university has very little authority over the colleges as corporations, and indeed scarcely comes in contact with them at all. Under a recent statute they are obliged to make certain contributions to the university, and to send a copy of their accounts to a university office. But they are self-governing; the university cannot interfere with their internal management, nor with the exercise of their jurisdiction over their members, which is their own and not delegated by it. So the States exercise an original and not a delegated authority over their citizens, and cannot be controlled by the national government in respect of all those numerous matters as to which the Constitution leaves them free.

NOTE (A) TO CHAPTER XXX

CONSTITUTION OF THE CONFEDERATE STATES, 1861-65

THE Constitution adopted 11th March, 1861, by the Slave States which seceded from the Union and formed the short-lived Southern Confederacy, was a reproduction of the Federal Constitution of 1788-89, with certain variations, interesting because they show the points in which the States' Rights party thought the Federal Constitution defective as inadequately safeguarding the rights of the several States, and because they embody certain other changes which have often been advocated as likely to improve the working of that instrument.

The most important of these variations are the following:

Art. i. § 2. A provision is inserted permitting the impeachment of a Federal officer acting within the limits of any State by a vote of two-thirds of the legislature thereof.

Art. i. § 6. There is added: "Congress may by law grant to the principal officer in each of the executive departments, a seat upon the floor of either House, with the privilege of discussing any measure appertaining to his department."

Art. i. 7. The President is permitted to veto any particular item or items in an appropriation bill.

Art. i. § 8. The imposition of protective duties and the granting of

bounties on industry are forbidden, and the granting of money for internal improvements is strictly limited.

Art. i. 9. Congress is forbidden to appropriate money from the Treasury, except by a vote of two-thirds of both Houses, unless it be asked by the head of a department and submitted by the President, or be for the payment of its own expenses, or of claims against the Confederacy declared by a judicial tribunal to be just.

Art ii. § 1. The President and Vice-President are to be elected for six years, and the President is not to be re-eligible.

Art. ii. § 2. The President is given power to remove the highest officials at his pleasure, and others for good cause, reporting the removals to the Senate.

Art. v. The process for amending the Constitution is to be by a Convention of all the States, followed by the ratification of two-thirds of the States.

Of these changes, the third and fifth were obvious improvements; and much may be said in favour of the second and eighth. The second was a slight approximation towards the Cabinet system of England.* I omit the important changes relating to slavery, which was fully protected, because these have only a historical interest.

The working of the Constitution of the Confederate States cannot be fairly judged, because it was conducted under the exigencies of a war, which necessarily gave it a despotic turn. The executive practically got its way. Congress usually sat in secret and "did little beyond register laws prepared by the executive, and debate resolutions for the vigorous conduct of the war. Outside of the ordinary powers conferred by the legislature, the war powers openly or practically exercised by the executive were more sweeping and general than those assumed by President Lincoln."-Alexander Johnston in American Cyclopædia of Political Science, Art. "Confederate States."

NOTE (B) TO CHAPTER XXX

THE FEDERAL CONSTITUTION OF CANADA

THE Federal Constitution of the Dominion of Canada is contained in the British North America Act, 1867, a statute of the British Parliament (30 Vict. c. 3). I note a few of the many points in which it deserves to be compared with that of the United States.

16A singular combination of the Presidential with the Cabinet system may be found in the present Constitution of the Hawaiian kingdom, promulgated 7th July, 1887. Framed under the influence of American traditions, it keeps the Cabinet, which consists of four ministers, out of the legislature, but having an irresponsible hereditary monarch, it is obliged to give the legislature the power of dismissing them by a vote of want of confidence. The legislature consists of two sets of elective members, Nobles (unpaid), and Representatives (paid), who sit and vote together. Two successive legisla tures can alter the Constitution by certain prescribed majorities: the Constitution is therefore a Rigid one.

See also 34 & 35 Vict. c. 28, and 49 and 50 Vict. c. 35.

The Federal or Dominion Government is conducted on the so-called "Cabinet system" of England, i.e. the Ministry sit in Parliament, and hold office at the pleasure of the House of Commons. The GovernorGeneral is in the position of an irresponsible and permanent executive similar to that of the Crown in Great Britain, acting on the advice of responsible ministers. He can dissolve Parliament. The Upper House or Senate is composed of 78 persons, nominated for life by the Governor-General, i.e. the Ministry. The House of Commons has at present 210 members, who are elected for five years. Both senators and members receive salaries. The Senate has very little power or influence. The Governor-General has a veto, but rarely exercises it, and may reserve a bill for the Queen's pleasure. The judges, not only of the Federal or Dominion Courts, but also of the Provinces, are appointed by the Crown, i.e. by the Dominion Ministry, and hold for good behaviour.

Each of the Provinces, at present seven in number, has a legislature of its own, which, however, consists in Ontario, British Columbia, and Manitoba, of one House only, and a Lieutenant-Governor, with a right of veto on the acts of the legislature, which he seldom exercises. Members of the Dominion Parliament cannot sit in a Provincial legislature.

The Governor-General has a right of disallowing acts of a Provincial legislature, and sometimes exerts it, especially when a legislature is deemed to have exceeded its constitutional competence.

In each of the Provinces there is a responsible Ministry, working on the Cabinet system of England.

The distribution of matters within the competence of the Dominion Parliament and of the Provincial legislatures respectively, bears a general resemblance to that existing in the United States; but there is this remarkable distinction, that whereas in the United States, Congress has only the powers actually granted to it, the State legislatures retaining all such powers as have not been taken from them, the Dominion Parliament has a general power of legislation, restricted only by the grant of certain specific and exclusive powers to the Provincial legislatures (§§ 91-95). Criminal law is reserved for the Dominion Parliament; and no province has the right to maintain a military force. Questions as to the constitutionality of a statute, whether of the Dominion Parliament or of a Provincial legislature, come before the courts in the ordinary way, and if appealed, before the Judicial Committee of the Privy Council in England.

The Constitution of the Dominion was never submitted to popular vote and can be altered only by the British Parliament, except as regards certain points left to its own legislature. It was drafted by a sort of convention in Canada, and enacted en bloc by the British Parliament. There exists no power of amending the Provincial constitutions by popular vote similar to that which the peoples of the several States exercise in the United States.