Read CHAPTER VIII of Civil Government in the United States Considered with Some Reference to Its Origins, free online book, by John Fiske, on


Section 1. Origin of the Federal Union.

Having now sketched the origin and nature of written constitutions, we are prepared to understand how by means of such a document the government of our Federal Union was called into existence. We have already described so much of the civil government in operation in the United States that this account can be made much more concise than if we had started at the top instead of the bottom and begun to portray our national government before saying a word about states and counties and towns. Bit by bit the general theory of American self-government has already been set before the reader. We have now to observe, in conclusion, what a magnificent piece of constructive work has been performed in accordance with that general theory. We have to observe the building up of a vast empire out of strictly self-governing elements.

All spoke the English language, all had English institutions. Except the development of the written constitution, every bit of civil government described in the preceding pages came to America directly from England, and not a bit of it from any other country, unless by being first filtered through England. Our institutions were as English as our speech. It was therefore comparatively easy for people in one colony to understand people in another, not only as to their words but as to their political ideas. Moreover, during the first half of the eighteenth century, the common danger from the aggressive French enemy on the north and west went far toward awakening in the thirteen colonies a common interest. And after the French enemy had been removed, the assertion by parliament of its alleged right to tax the Americans threatened all the thirteen legislatures at once, and thus in fact drove the colonies into a kind of federal union.

Meanwhile the Revolutionary War had advanced into its last stages, having been carried on from the outset under the general direction of the Continental Congress. When reading about this period of our history, the student must be careful not to be misled by the name “congress” into reasoning as if there were any resemblance whatever between that body and the congress which was created by our Federal Constitution. The Continental Congress was not the parent of our Federal Congress; the former died without offspring, and the latter had a very different origin, as we shall soon see. The former simply bequeathed to the latter a name, that was all.

Men were most unwillingly brought to this conclusion, because they were used to their state assemblies and not afraid of them, but they were afraid of increasing the powers of any government superior to the states, lest they should thus create an unmanageable tyranny. They believed that even anarchy, though a dreadful evil, is not so dreadful as despotism, and for this view there is much to be said. After no end of trouble a convention was at length got together at Philadelphia in May, 1787, and after four months of work with closed doors, it was able to offer to the country the new Federal Constitution. Both in its character and in the work which It did, this Federal Convention, over which Washington presided, and of which Franklin, Madison, and Hamilton were members, was one of the most remarkable deliberative bodies known to history.

We have seen that the fundamental weakness of the Continental Congress lay in the fact that it could not tax the people. Hence although it could for a time exert other high functions of sovereignty, it could only do so while money was supplied to it from other sources than taxation; from contributions made by the states in answer to its “requisitions,” from foreign loans, and from a paper currency. But such resources could not last long. It was like a man’s trying to live upon his own promissory notes and upon gifts and unsecured loans from his friends. When the supply of money was exhausted, the Congress soon found that it could no longer comport itself as a sovereign power; it could not preserve order at home, and the situation abroad may be illustrated by the fact that George III. kept garrisons in several of our northwestern frontier towns and would not send a minister to the United States. This example shows that, among the sovereign powers of a government, the power of taxation is the fundamental one upon which all the others depend. Nothing can go on without money.

But the people of the several states would never consent to grant the power of taxation, to such a body as the Continental Congress, in which they were not represented. The Congress was not a legislature, but a diplomatic body; it did not represent the people, but the state governments; and a large state like Pennsylvania had no more weight in it than a little state like Delaware. If there was to be any central assembly for the whole union, endowed with the power of taxation, it must be an assembly representing the American people just as the assembly of a single state represented the people of the state.

As soon as this point became clear, it was seen to be necessary to throw the Articles of Confederation overboard, and construct a new national government. As was said above, our Federal Congress is not descended from the Continental Congress. Its parentage is to be sought in the state legislatures. Our federal government was constructed after the general model of the state governments, with some points copied from British usages, and some points that were original and new.

Section 2. The Federal Congress.

In the federal House of Representatives the great states of course have much more weight than the small states.  In 1790 the four largest states had 32 representatives, while the other nine had only 33.  The largest state, Virginia, had 10 representatives to 1 from Delaware.  These disparities have increased.  In 1880, out of thirty-eight states the nine largest had a majority of the house, and the largest state, New York, had 34 representatives to 1 from Delaware.

In accordance with the notion that an upper house should be somewhat less democratic than a lower house, the term of office for senators was made longer than for representatives.  The tendency is to make the Senate respond more slowly to changes in popular sentiment, and this is often an advantage.  Popular opinion is often very wrong at particular moments, but with time it is apt to correct its mistakes.  We are usually in more danger of suffering from hasty legislation than from tardy legislation.  Senators are chosen for a term of six years, and one third of the number of terms expire every second year, so that, while the whole Senate may be renewed by the lapse of six years, there is never a new Senate.  The Senate has thus a continuous existence and a permanent organization; whereas each House of Representatives expires at the end of its two years term, and is succeeded by a new House, which requires to be organized by electing its officers, etc., before proceeding to business.  A candidate for the senatorship must have reached the age of thirty, must have been nine years a citizen of the United States, and must be an inhabitant of the state which he represents.

The constitution leaves the times, places, and manner of holding elections for senators and representatives to be prescribed in each state by its own legislature; but it gives to Congress the power to alter such regulations, except as to the place of choosing senators.

Here we see a vestige of the original theory according to which the Senate was to be peculiarly the home of state rights.

Each house is judge of the elections, qualifications, and returns of its own members; determines its own rules of procedure, and may punish its members for disorderly behaviour, or by a two thirds vote expel a member.  Absent members may be compelled under penalties to attend.  Each house is required to keep a journal of its proceedings and at proper intervals to publish it, except such parts as for reasons of public policy had better be kept secret.  At the request of one fifth of the members present, the yeas and nays must be entered on the journal.  During the session of Congress neither house may, without consent of the other, adjourn for more than three days, or to any other place than that in which Congress is sitting.

Section 3. The Federal Executive.

By an act of Congress passed in 1792 it is required to be within 34 days preceding the first Wednesday in December.  A subsequent act in 1845 appointed the Tuesday following the first Monday in November as election day.

By the act of 1792 the electors chosen in each state are required to assemble on the first Wednesday in December at some place in the state which is designated by the legislature.  Before this date the governor of the state must cause a certified list of the names of the electors to be made out in triplicate and delivered to the electors.  Having met together they vote for president and vice-president, make out a sealed certificate of their vote in triplicate, and attach to each copy a copy of the certified list of their names.  One copy must be delivered by a messenger to the president of the Senate at the federal capital before the first Wednesday in January; the second is sent to the same officer through the mail; the third is to be deposited with the federal judge of the district in which the electors meet.  If by the first Wednesday in January the certificate has not been received at the federal capital, the secretary of state is to send a messenger to the district judge and obtain the copy deposited with him.  The interval of a month was allowed to get the returns in, for those were not the days of railroad and telegraph.  The messengers were allowed twenty-five cents a mile, and were subject to a fine of a thousand dollars for neglect of duty.  On the second Wednesday in February, Congress is required to be in session, and the votes received are counted and the result declared.

He can make treaties with foreign powers, but they must be confirmed by a two thirds vote of the Senate.  He appoints ministers to foreign countries, consuls, and the greater federal officers, such as the heads of executive departments and judges of the Supreme Court, and all these appointments are subject to confirmation by the Senate.  He also appoints a vast number of inferior officers, such as postmasters and revenue collectors, without the participation of the Senate.  When vacancies occur during the recess of the Senate, he may fill them by granting commissions to expire at the end of the next session.  He commissions all federal officers.  He receives foreign ministers.  He may summon either or both houses of Congress to an extra session, and if the two houses disagree with regard to the time of adjournment, he may adjourn them to such time as he thinks best, but of course not beyond the day fixed for the beginning of the next regular session.

The effectiveness of a presidents message depends of course on the character of the president and the general features of the political situation.  That separation between the executive and legislative departments, which is one of the most distinctive features of civil government in the United States, tends to prevent the development of leadership.  An English prime ministers policy, so long as he remains in office, must be that of the House of Commons; power and responsibility are concentrated.  An able president may virtually direct the policy of his party in Congress, but he often has a majority against him in one house and sometimes in both at once.  Thus in dividing power we divide and weaken responsibility.  To this point I have already alluded as illustrated in our state governments.

Our secretary of state is our minister of foreign affairs, and is the only officer who is authorized to communicate with other governments in the name of the president.  He is at the head of the diplomatic and consular service, issuing the instructions to our ministers abroad, and he takes a leading part in the negotiation of treaties.  To these ministerial duties he adds some that are more characteristic of his title of secretary.  He keeps the national archives, and superintends the publication of laws, treaties, and proclamations; and he is the keeper of the great seal of the United States.

Section 4. The Nation and the States.

We have left our Federal Convention sitting a good while at Philadelphia, while we have thus undertaken to give a coherent account of our national executive organization, which has in great part grown up since 1789 with the growth of the nation.  Observe how wisely the Constitution confines itself to a clear sketch of fundamentals, and leaves as much as possible to be developed by circumstances.  In this feature lies partly the flexible strength, the adaptableness, of our Federal Constitution.  That strength lies partly also in the excellent partition of powers between the federal government and the several states.

After assuming all debts contracted and engagements made by the United States before its adoption, the Constitution goes on to declare itself the supreme law of the land.  By it, and by the laws and treaties made under it, the judges in every state are bound, in spite of anything contrary in the constitution or laws of any state.

Section 5. The Federal Judiciary.

The division of jurisdiction between the upper and lower federal courts is determined chiefly by the size and importance of the cases.  In cases where a state or a foreign minister is a party the supreme court has original jurisdiction, in other cases it has appellate jurisdiction, and any case which involves the interpretation of the Constitution can be taken to the supreme court, however small the sum in dispute.  If a law of any state or of the United States is decided by the supreme court to be in violation of the Constitution, it instantly becomes void and of no effect.  In this supreme exercise of jurisdiction, our highest federal tribunal is unlike any other tribunal known to history.  The supreme court is the most original of all American institutions.  It is peculiarly American, and for its exalted character and priceless services it is an institution of which Americans may well be proud.

Section 6. Territorial Government.

Section 7. Ratification and Amendments.

In September, 1789, the first ten amendments were proposed by Congress, and in December, 1791, they were declared in force.  Their provisions are similar to those of the English Bill of Rights, enacted in 1689, but are much more full and explicit.  They provide for freedom of speech and of the press, the free exercise of religion, the right of the people to assemble and petition Congress for a redress of grievances, their right to bear arms, and to be secure against unreasonable searches and seizures.  The quartering of soldiers is guarded, general search-warrants are prohibited, jury trial is guaranteed, and the taking of private property for public use without due compensation, as well as excessive fines and bail and the infliction of cruel and unusual punishment are forbidden.  Congress is prohibited from establishing any form of religion.

Finally, it is declared that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people, and that the powers not granted to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Section 8. A Few Words about Politics.

Practically all will admit that the Elastic Clause, if construed strictly, ought not to be construed too narrowly; and, if construed liberally, ought not to be construed too loosely.  Neither party has been consistent in applying its principles, but in the main we can call Hamilton the founder of the Federalist party, which has had for its successors the National Republicans of 1828, the Whigs of 1833 to 1852, and the Republicans of 1854 to the present time; while we can call Jefferson the founder of the party which called itself Republican from about 1792 to about 1828, and since then has been known as the Democratic party.  This is rather a rough description in view of the real complication of the historical facts, but it is an approximation to the truth.

In the canvass of 1840 the Whigs promised to reform the civil service, and the promise brought them many Democratic votes; but after they had won the election, they followed Jacksons example.  The Democrats followed in the same way in 1845, and from that time down to 1885 it was customary at each change of party to make a clean sweep of the offices.  Soon after the Civil War the evils of the system began to attract serious attention on the part of thoughtful people.  The spoils system has helped to sustain all manner of abominations, from grasping monopolies and civic jobbery down to political rum-shops.  The virus runs through everything, and the natural tendency of the evil is to grow with the growth of the country.

Complaints of bribery and corruption have attracted especial attention in the United States during the past few years, and it is highly creditable to the good sense of the people that measures of prevention have been so promptly adopted by so many states.  With an independent and uncorrupted ballot, and the civil service taken out of politics, all other reforms will become far more easily accomplished.  These ends will presently be attained.  Popular government makes many mistakes, and sometimes it is slow in finding them out; but when once it has discovered them it has a way of correcting them.  It is the best kind of government in the world, the most wisely conservative, the most steadily progressive, and the most likely to endure.