Page images

ernments are unequal to the effort; that the government of the United States in especial was rather designed to restrain than to stimulate domestic administrative energy, and that it would collapse under the strain. I admit the abstract truth of this proposition, but I protest that it is not an argument against either the wisdom or the necessity of recognizing the rights of labor in industry, provided such rights exist. On the contrary, I maintain that it is a conclusive argument against the toleration of a type of government which is, in its very essence, unequal to the weight cast upon it by the growth of modern society.

Governments, for our purposes, may be divided into two classes—the deliberative and the administrative. Of the deliberative class that of the United States is an extreme example. The Roman Empire was, possibly, the highest specimen which has ever existed of the purely administrative variety. Certainly we could not, even if we would, try to create a modern Roman Empire, but we might very well assimilate some of its mechanical principles. An administrative government primarily consists of a permanent, cohesive and unified staff, which we call a civil service, presided over by a removable chief. This vital core, like any other trained staff, evolves a general policy which is executed through departments, just as the staff of an army, of a railway, or of an industrial organism operates now. The essential is that the administrative staff shall be protected against legislative meddling. A legislature might perhaps approve or reject a policy in bulk, or grant or deny money, but a legislature should not be permitted to embroil a complex and digested system by amending it in substance. For a legislature is, probably, next to a court, the most inefficient and incapable administrative body known to man. Therefore, the American experiment, of government by heterogeneous and independent commissions, to which the legislature delegates a mixture of administrative and judicial functions; combined with courts, which are, in reality, administrative chambers because

they are endowed with legislative attributes, 11 is, from the administrative standpoint, inherently vicious. And, from the administrative standpoint, this system is self-evidently vicious, because, instead of incarnating the principle of unity, order and sequence, which is the basis of good administration, it incarnates the principle of dispersion and chaos, which is fatal to good administration. Our own experience shows the vice of legislative interference with administration. Adminstration has always been the weak spot in our government, and yet, taken as a whole, the administrative record of our national executive department, even under all the limitations and embarrassments to which Congress and the courts have subjected it, has not been intolerably bad, and where free from Congressional interference it has been good. You may try it by what standard you will. No better educational institutions exist in America, or in the world, than our military schools. I doubt if there are any so good. Our army and navy, though costly because of Congress, are, and ever have been, our pride. The engineering work our government has done has been beyond praise. Our science is excellent. Even more—I will take our diplomacy. Although our diplomacy has been, so to speak, amateur; although Congress has never cared to create a trained corps of diplomatists; I doubt if, on the whole, considering our performance from General Washington's inauguration down, any other nation has been better served. Supposing the President of the United States had possessed from the beginning even the somewhat limited control over Congress which an English prime minister exercises over Parliament, I think it not improbable that our civil service might have approached, in quality, our military service, nor in the future do I see much reason to fear that, were the President given the power necessary for such a work, our civil service could not be raised to almost any degree of efficiency.

11 See Theory of Social Revolutions, Brooks Adams, chapt. 3.

Nothing is more suggestive when reflecting on the effect which our national intellectual limitations, not to say prejudices, have upon our common fortunes, than to mark the difference between our methods and the methods of other peoples whose handling of administrative problems has, on the whole, been more successful, if not more intelligent, than our own. I suppose, that, among nations which are at all of the deliberative type, the German is admitted by common consent to have the most perfect administrative system. But the Germans, I suspect, approach more nearly than most others to the Roman model, and have correspondingly limited legislative interference.

Perhaps any reference to Germany, in this connection, might be resented in America on the ground that German methods are based on a despotic and military tradition repugnant to us. - Conceding, for the sake of argument, this objection to be well taken, it cannot apply to Great Britain, the oldest of deliberative governments, and our own mother. Now although English administration, especially military administraton, has not always been pre-eminent, the English have achieved considerable administrative successes not only in India but at home, and the English, like the Germans, have pretty sharply excluded the legislature from meddling with administration. They have done this by means of, what is equivalent to, a system of referendum.

The United Kingdom is absolutely governed by a legislative assembly consisting of King, Lords and Commons, it is true, but, for administrative purposes, Parliament se-, lects a committee of its own members, to serve as an executive cabinet. This cabinet formulates a cohesive policy embodied in bills, which it presents to Parliament, and which Parliament debates, under restrictions; but if the cabinet be defeated upon any important issue raised by these bills, the cabinet, usually, dissolves the House of Commons, and thus secures a popular vote upon its policy in its entirety. This amounts to a referendum, and by


that referendum the cabinet stands or falls. Thus the legislature is, from the standpoint of the administrator, muzzled, and to this muzzling is probably due such administrative success as England has attained.

If now we recur to those popular phenomena about us which are generated by our administrative embarrassments, I hardly see how we can fail to be impressed by the apparently instinctive appreciation which our people seem to have of their vital importance. For, however crude the expedient may be in its present phase, I conceive that the referendum is only an effort made by the people to limit the functions of the legislature pretty much in the sense which I have suggested, if not even more strictly.

The obvious object of the referendum is to erect an executive department which shall formulate policies to be submitted in their entirety to the people, without the intervention of any legislative body. This was the principle of the Roman administrative system, save that the Roman Emperor promulgated his decrees without the formality of a popular vote.

If public opinion did not, on the whole, justify the emperor, means were found to remove him, and his successor corrected his error. I apprehend that this essential principle of the referendum underlies all effective administration, for to administer effectively and cheaply there must be unity and sequence in conception, combined with unity and continuity in execution.

To so adjust our government that it would be competent to administer upon the scale we have been considering, would involve some expansion in our political and legal conceptions, but however large this expansion might be, it would be trivial beside the material expansion of American society since Marshall took his seat upon the bench in 1801. Whether we like it or not, this material transformation must be reflected in our institutions and our laws, as every such movement has been since history began; all that is permitted to us is to determine in some small degree whether these changes shall be benign, or whether they shall come with confiscations and bloodshed, as they have so often come in the past.

I am only too well aware of the fallacies which may lurk in my argument; something, nevertheless, I may hope to accomplish. I may stimulate thought, and to that end I make this final suggestion. In the year 1789 the United States was peopled by a nearly homogeneous race of landowning farmers, thinly scattered over a vast region, in which the cities were few and small and the diversities in wealth narrow. The social movement was slow and the social inequalities relatively insignificant.

The United States of the year 1914 presents a condition nearly the converse of this. American society is now a vast, complex organism, densely crowded into enormous polyglot cities, in which the English element is steadily losing its preponderance. This society is moving with intense and accelerating velocity; it contains the extremes of wealth and poverty, which extremes invariably breed social inequality, and therefore generate rancorous class antagonisms. Given such conditions, I submit that it is not unreasonable to infer that unless the law can be made to weld this incoherent mass together, by substituting common property interests for those hostile interests which now prevail, the sporadic social warfare waged about us between capital and labor may presently lapse into chaos, as it has lapsed into chaos, under our eyes, in Mexico.

Wherefore I would beg you to consider, if my premises should chance to contain any fragment of truth, whether it be not the duty of the lawyer in the immediate future to cast aside personal preventions and endeavor to examine these perplexing social phenomena surging about us, as coldly and calmly as mathematicians might examine physical phenomena, even supposing those mathematicians to be men upon whom their calling imposed the task of cal

« PreviousContinue »