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The functions of federal judges and law officers, to which the President appoints, and the State judicial offices, also filled in certain States by the executive, without being distributed
he spoils system in all its rigour, were pretty often bestowed as a reward on men who had earned the gratitude of the party Organization, or who were backed up by it. But it was chiefly the judiciary elected by the people that was hit by the Caucus. The appointment of judges by election is in itself only too apt to make vulgar wire-pullers of the men who should represent the majesty of the law, to rob them of their independence, and to hamper the impartial administration of justice. A distinguished American jurist and ex-judge says on this subject (in a private letter): “War, famine, and an elective judiciary are calamities to any country, but the worst, in my opinion, is the latter.” Introduced into the United States through democratic fanaticism, this system was developed under the impulse given by the Caucus; and after having extended it, the Caucus emphasized some of its dangers and intensified some of its evils. The Caucus stimulated the application of the elective method in the appointment of judges, because its moral and material interests demanded that the number of elective offices should be as large as possible. Being subject to election, the judges had to court the favour of political parties, to put themselves openly under the patronage of the Organizations; and to obtain it, to get "slated,” they were obliged to ingratiate themselves with the political brokers, with the Machines and the bosses. The natural result was a lowering of the moral and intellectual standard of the bench, although the pressure of public opinion prevented it from being filled with notoriously undeserving men. If the integrity of the judges is, in the main, fairly satisfactory, their independence is not intact in cases where the interests of the party are involved. In the administration of criminal justice that independence scarcely exists at all, particularly among the law officers whose influence can be most profitably exploited by the party Organization, such as the police magistrates in the large cities and, especially, the public prosecutors; elected under the auspices of the Machine, they become its humble servants and arrest the arm of the law in order to shield its protégés.
Thus, from one end of the scale to the other, the constituted authorities are unequal to their duty; they prove incapable of ensuring the protection of the general interest, or even place the power which has been entrusted to them by the community at the disposal of private interests. The spring of government is weakened or warped everywhere. We have followed the manifold and varied and often desperate attempts at making up for the inadequacy or the irregularity of governmental action. We have seen the protection of the law and protection against the law or justice bought from disreputable go-betweens: the citizens bought from the representatives of the Machine, with their votes, immunity from administrative persecution, as well as impunity for contraventions and offences; corporations bought, for cash, from the bosses protection against the blackmailers of the Legislatures who threatened them with oppressive laws, just as they bought laws which created privileges for themselves. Citizens' conferences and leagues legislated in the room and stead of the highest legislative assembly of the Union. Private associations, law enforcement societies, law and order leagues, and others, were founded to bring the transgressors of the law to justice; they organized their police, their detectives, for the purpose of exposing them. In the largest cities of the New World private initiative has had to step in to get the streets cleansed and to provide for other duties which devolve on the municipal administration in a well-ordered community. Even in the rural districts the village improvement societies often perform the same task. To obtain more durable and more regular effects than could be achieved by these spasmodic efforts, attempts were made to straighten the relaxed governmental spring by main force: inadequacy of action being mistaken for inadequacy of powers, the latter were concentrated in the hands of a few persons; dictators were created, from the Speaker of the House of Representatives down to the mayors of cities; the attributions of the State were widened. Again, the failure of elective government having shown itself most conspicuously in the legislative assemblies, the public turned wrathfully upon them. When modern society came into possession of liberty a century ago, it had placed its fondest hopes in parliaments; it had looked on them as the palladium of freedom, as the safest refuge for regenerated humanity against the “tyrants," who haunted the imagination even more than the intellect of the eighteenth century. Bitterly disappointed by experience, the political society of America beat the idol and abruptly set up the executive power again, no longer seeing in it the oppressor, but hoping to find in it a tribune of the people: the President of the United States was expected to neutralize the mischievous action of Congress; the Governor was given the right of veto over the Legislature in the few States where (as in Delaware, for instance) the executive did not enjoy this prerogative; the mayors were invested with extraordinary powers at the expense of the municipal assemblies. At the same time, the State tried to strengthen the neglected public weal by a remarkable development of regulation, of the “police power of government.” This movement, which alike met the new requirements of a more complex state of society and was a reaction against the general laisser-aller from which the public interest suffered, sometimes assumed such excessive forms that it recalled the days of Colbert, and encroached on the domain of individual rights in the narrowest sense of the word.1
On the other hand, despairing of its representatives, the people endeavoured to do without them on as many occasions as possible; not being able to trust any one, it took into its own hands duties which are the object of a representative government: many subjects of ordinary legislation were withdrawn from the jurisdiction of the Legislatures and transferred to the category of constitutional laws, on which the people at large decide without appeal; in municipal administration the referendum is being applied more and more in the matter of regulation, and, above all, in the matter of expenditure; in the administration of justice there is a talk of abolishing the office of public prosecutors, which is prostituted to the politicians, and of leaving criminal prosecutions to private initiative, that is to say, of reverting to the old English system and giving up the institution which at one time appeared to constitute an advance on that rudimentary system by supplying the want of public action."
1 Thus a recent law of the State of Maine provides that if a child's eye or eyes become reddened or inflamed within four weeks after its birth, the nurse or person in charge of the infant must report the matter to a physician under penalty of fine or imprisonment which may extend to six months. (I take this fact from the Presidential Address of the American Bar Association meeting of 1891.)
While the spring of government in general was becoming relaxed, the same fate was overtaking that of local self-government, which in Anglo-Saxon communities had, from time immemorial so to speak, set in motion the whole political machinery. It is the Caucus, again, which is, to a very considerable extent, responsible for this result. It has subordinated all the elections, beginning with those of the township, to the presidential election; they all had to be decided by the same considerations; the local contests in the States and the cities were made to turn on differences of opinion caused by the problems of policy of the Union, and not on those which related to local life. By thus centralizing, in spite of their diversity, the aims and objects pursued at the various points of the political circumference, the Caucus régime undermined State and local autonomy, established or guaranteed by the Constitution, and made the electors lose their interest in local public life. It is true that the constitution itself had impelled the elector in this direction, by investing the Legislatures with the choice of the Senators of the United States: in choosing their representative in the State Legislature, the electors, as citizens of the Union, had to make sure that that representative would vote for a Senator who would interpret in Congress their views on the question of slavery, or protection, or the currency. Again, the material conditions of local public life prevented the citizen from taking an effective and lively interest in it: that life had no fixed territorial limits owing to the frequent rearrangements of the electoral divisions, often undertaken with a party object; the increasing heterogeneity of the population, caused by its habits of migration, by the infusion of the foreign element and by social and economic differentiation, deprived local public life of a fixed moral groove; the extraordinary growth of the cities intensified these effects. In the face of these difficulties and these obstacles that had arisen independently of the Caucus, the latter started up to discourage all attempts to overcome them; it called out to the electors, who were only too ready, in their perplexity, to adopt a rallying-sign visible to all from a distance, that they had but one course to pursue, that is, to join the colours of one of the great national parties, to follow them at all times and in all places, on pain of jeopardizing the paramount interests of the nation. To neglect local interests thereupon appeared meritorious; the Caucus made remissness a virtue in the citizens. To the Caucus this was clear gain; the subordination of local elections to national issues yielded it the federal patronage, to which every party organization looks for the prestige and the resources necessary to secure the fidelity of its liegemen. This subordination became the foundation stone of the spoils system extended throughout the Union.
1 See on this subject a very interesting letter from Mr. John Brooks Leavitt in the Evening Post of New York, September, 1900, and an editorial entitled : “The office of district attorney."
It might doubtless be pointed out that by making all the electoral issues turn on national problems, the Caucus helped to bring about that redistribution of influence which has taken place, since the close of the civil war, between the Union and the States, to the advantage of the former — a redistribution which proved beneficial from several points of view, as it has strengthened the moral cohesion of the members of the Union, has set before them more elevated and more comprehensive ideals, in the paths of peace and of liberty, and has enabled the government of the Union to grapple with the new problems of national life, the solution of which was beyond the strength of the particular States. But even if it were admitted that the Caucus régime has contributed to this result, along with so many other factors, such as the outcome of the civil war, the economic revolution, the railroad and the telegraph, which have lessened distances and blended the whole population in common interests and common passions — if it were thus admitted that the Caucus has contributed slightly to a wholesome centralization, it would none the less remain a fact that the Caucus has, on the other hand, brought about a harmful centralization, that which by stifling self-regulated local life and by enfeebling men's initiative and volition dries up the sap of a political community and preys upon the very roots of its existence.