ought to deal with ideals, but the true statesman will
not forego a gain for good government because it
is less than his ideal. He will not force into the
opposition those who are willing to join him in an
assault upon an outpost of intrenched wrong, be
cause they will not enlist for the war. Every out
post taken and garrisoned for the right, strengthens
the right. A house is to be builded, and the man
who is willing to work on the foundation should
not be driven off because he will not hire for work
on the dome. Seventh, the legislation must be just.
Unjust, destructive legislation brings a reaction a
back-set. It is either over-turned by the courts, or
loses the support of the conservatives, who are re
formers but not incendiaries.
28O VIEWS OF AN EX-PRESIDENT
Let us see now if we can find some of the rea
sons why things that on a popular vote would be
overwhelmingly supported as abstract propositions,,
by conservatives and radicals alike, fail year after
year to secure legislative action. In about three-
fourths of the states the legislatures meet biennially.
The sessions, in a majority of the states, are limited
to an average of about sixty days. If we admit,
for the present, that in each state legislature that
assembles there are to be found public-spirited, dis
interested and honest men, capable of comprehend
ing the broad subjects of the corporation and tax
laws, and of framing laws with exactness and clear
ness of expression, and with a due consideration of
constitutional restrictions, still these difficulties re
main: First, to bring these men together in a com
mittee charged with that duty; second, to find for
them time, during the stress of a session's work, to
give the subject adequate study and to frame the
laws that shall suitably and surely secure the results
they have reached. And how are the two houses to
find time to consider a report necessarily late in its
presentation, within the short limits of the legisla
tive session? The theory of these limitations of the
legislative sessions seems to be that, aside from rev
enue and appropriation bills, and bills of a local na
ture, only patching and tinkering is to be done. A
general code of laws has already been adopted, re
ported in many cases by a commission of revision
SOME HINDRANCES TO LAW REFORMS 281
a quarter of a century ago, upon the body of which
patches, large and small, have from time to time
been placed very often with the result that "the
rent is made worse." Now and then a member may
be found who has given some preliminary study to
these great questions, but as a rule the bills that are
found in the pockets of members are of a local na
ture, directed to the pleasing of a particular constit
uency, or of some influential member or members of
it. The disadvantages under which a revision of
the laws upon any great general subject must be
pursued by a sixty-day legislature are such that it
is rather a subject of congratulation than complaint
that it is so rarely attempted.
The framing of a statute is nice work, and every
important statute should, as to its frame and its
phraseology, be examined by a law committee or
at least by good lawyers. Many laws are framed
by men who are wholly ignorant of the constitu
tional restrictions upon the legislative power and as
a consequence the courts are constantly and neces
sarily annulling statutes because they are, in form
or substance, contrary to the fundamental law.
The inadequacies of our legislatures to deal with
a systematic and congruous revision of the laws
upon some of the great themes of legislation have
many illustrations, even where they sit in unlimited
sessions. The first disqualification for such work
that I observe in legislative bodies is that the houses,
!282 VIEWS OF AN EX-PRESIDENT
as well as their committees, sit amid political and
social distractions that are not favorable to that pa
tient, continuous study of a single subject that is
essential, if good, enduring work is to be done. No
member can or ought to give his whole attention
on any single day to one subject. He is responsi
ble in his measure for everything that is done in the
body of which he is a member. He must be in his
seat every day of the session; must be recorded when
the ayes and noes are taken; must take part in de
bates upon other subjects, attend party caucuses, get
door-keepers' places for his friends, welcome and en
tertain his visiting constituents, and do innumerable
chores for others of them. He has no uninter
rupted hours, unless he snatches them from sleep.
He has, in a word, neither the time nor the mental
frame for great constructive work in legislation. It
may be said, however, that our senators and repre
sentatives, national and state, should devote their
time when congress or the legislature is not in ses
sion to the study of the great questions of legisla
tive reform and to the preparation of bills to carry
them into effect; and so they should. But in fact
they do not as a rule. They are in many cases
paid only a per diem during the actual sittings of
the bodies of which they are members, and if paid
an annual salary, the necessity of supplementing
that salary by professional or other labor, or, as to
the wealthy, of caring for their investments and'
SOME HINDRANCES TO LAW REFORMS 283
business, fills the vacation months with exacting la
bors. A member of the Indiana legislature gives
three months of his time, and perhaps a contribu
tion in money, to the campaign for his election, and
two months more to the legislative session, and re
ceives from the state a total of $360, excluding
mileage. Most of these members are men of small
means, and it is quite unreasonable to demand that
they shall give even the sixty days that elapse be
tween their election and the meeting of the legis
lature wholly and studiously to the consideration of
the great questions that are pending for a solution.
And again, such questions as tax and corporation
reforms are not to be solved by individual investi
gators in the study. There must be a comparison of
views, debate, and the hearing of all interests to be
affected, if crudity and confusion are to be escaped.
The legislation will be subjected to the fire of the
ablest legal minds in the country, as to its constitu
tionality and as to the interpretation of its provisions.
These gentlemen will not be required to turn aside
from their critical study of the law, in order to
earn a living, as the framers of the law were. The
framer of an important law must be more than a
master of constitutional law and of clear expression.
He must have a practical business knowledge of the
matters he is dealing with. There must be not only
pathological skill, but a competent acquaintance with
the materia medica. Corporation reform has been
284 VIEWS OF AN EX-PRESIDENT
very much retarded by the flood of destructive and
impossible bills that pours into every legislative
body. They are the product of ill-informed minds,
often made more than naturally incapable by malice
or undue heat. Hysteria and spite are not the pro
genitors of good legislation. Such bills carry the
conservatives over to the opposition. It has been
said and I fear with too much truth in some cases
that these bills are often presented with no other
purpose than to excite the alarm of the corporations
affected, and that the mover is quite amenable to the
influence of reason, if it is urged privately, and is
of the right denomination. Bills to regulate the
freight and passenger rates of the railroads of a
state are proposed by men as ignorant of the com
plications and difficulties of railroad management as
a horse is of astronomy. It is usually easy for the
corporations to defeat such legislation; for it is usu
ally easily shown to be unjust and destructive. And
so things move along and nothing is done.
There were for many years pending in congress,
renewed each session, and advocated by fiery cham
pions, bills to forfeit the land grants of the rail
roads. A bill to forfeit unearned lands lands
abutting on such parts of the lines as had not yet
been completed could have been passed at almost
any time; but these fiery champions of the people
would have nothing less than a forfeiture carried
back to the date when the railroads should have been
SOME HINDRANCES TO LAW REFORMS 285
completed. And so the congressional battle went on,
but made no progress, while the railroads went on,
completed their lines and got the lands. Texas re
cently passed an anti-trust law, so framed as the
courts interpreted it as to make it penal for two
merchants conducting rival stores in a cross-roads
village, at a loss by reason of the limited patronage,
to form a copartnership and combine their stocks
and capital. It exempted, I think, combinations
among farmers, for the purpose of keeping up the
prices of farm products, from the penalties denounced
against other combines; and the labor organizations
always reserve the right to combine for the purpose
of raising wages, while insisting that their employ
ers shall not combine for the purpose of keeping
up the prices of the products of labor. We may
mourn the departure of the good old times when the
blacksmith hammered out his own horseshoes; when
the hatter made hats, and the shoemaker shoes;
when mutton chops and ribbons were not sold in the
same store; but we must not too hastily assume that
statutes can re-establish the old order. The Texas
law was too broad. There must be more consid
eration, more moderation, more legal acumen, when
anti-trust laws are written. A convention resolu
tion and a statute are quite different things. In the
next place our legislators are chosen from districts,
not from the state at large, and are almost sure to
be charged with some local legislation to which they
286 VIEWS OF AN EX-PRESIDENT
give the first place in the apportionment of their
'time and efforts. The favorable judgment of his
immediate constituents is the reward he craves.
Hence his labors are given to those things that will
attract their notice, or the notice of some active and
controlling element in his district. At the worst he
becomes the attorney in fact of a boss, of a corpora
tion, or of a syndicate. In his better state he gets
everything he can for his district a new judge, a
public building, the payment of a private claim, or
a high duty on plate glass or castor beans. Upon
questions that do not particularly affect his district,
or that of some brother member, he will take na
tional or state interests into consideration and give
them weight; but he takes little account of the state
of the treasury, or of the bad precedent to be made,
when an appropriation for his district is pending.
He is "agin the government" when the demands of
his district and the demands for national economy
conflict. There is great human nature in all this,
and most men who have had legislative service will
be ready to say mea culpa. He knows, or thinks he
does, what his district wants, and feels a sense of
injury if any brother member obstructs or opposes
.his local bill, and so it comes about that a brotherly
reciprocity is established, and much log-rolling legis
lation is enacted. The idea the true constitutional
one that every senator and representative repre
sents, in state legislatures the state, and in congress
SOME HINDRANCES TO LAW REFORMS ^7
the nation, precisely as if he had been voted for at
large, instead of in a state or a district, seems to
be losing its power, not only over our legislators,
but in the public mind. The assumption that other
members of a legislative body must yield their views
as to the wisdom or constitutionality of a local meas
ure to those of the members chosen from that local
ity is not only impudent, but absolutely destructive
of our civil system. This suggestion has been the
prolific parent of bad legislation. It is not only
quite natural, but quite proper, that much consid
eration should be given to the information which a
member may have as to the local status, with which
he has a special acquaintance; but when all infor
mation bearing upon the subject has been presented,
every conscientious member of the body must under
his oath vote his own convictions of the justice or
injustice, constitutionality or unconstitutionality of
the proposed measure. Mr. Bryce, in his American
Commonwealth, says of this tendency to localism in
our legislation:
"The spirit of localism, surprisingly strong every
where in America, completely rules them. A mem
ber is not a member for his state, chosen by a dis
trict but bound to think first of the general welfare
of the commonwealth. He is a member for Browns
ville, or Pompey, or the Seventh district, and so
forth, as the case may be. His first and main duty
is to get the most he can for his constituency out
288 VIEWS OF AN EX-PRESIDENT
of the state treasury, or by means of state legisla
tion. No appeal to the general interest would have
weight with him against the interests of that spot.
What is more, he is deemed by his colleagues of the
same party to be the sole exponent of the wishes
of the spot, and solely entitled to handle its affairs.
If he approves a bill which affects the place and
nothing but the place, that is conclusive. Nobody
else has any business to interfere. This rule is the
more readily accepted, because its application all
around serves the private interest of every member
alike, while members of more enlarged views, who
ought to champion the interests of the state and sound
general principles of legislation, are rare. When
such is the accepted doctrine as well as invariable
practice, log-rolling becomes natural and almost le
gitimate. Each member being the judge of the
measure which touches his own constituency, every
other member supports that member in passing the
measure, expecting in return the like support in a
like cause. He who in the public interest opposes
the bad bill of another, is certain to find that other
opposing, and probably with success, his own bill,
however good."
This prevalence of the local idea affects general
law reforms injuriously in another particular. Only
a particular and local abuse has been observed, and
the bill proposed takes that special direction. It
may be right, but it is partial; it does not cover the
SOME HINDRANCES TO LAW REFORMS 289
whole field; and there is a certain amount of pop
ular sympathy with the appeal that one guilty man
ought not to be punished while scores of others
equally guilty go free. The legislation is framed to
meet an isolated case that has come under the ob
servation of the member, and is not laid down on
broad lines.
No facts of current history are more apparent
than these: that the senate of the United States has
largely ceased to be what the framers of the con
stitution intended it to be and what, for near a hun
dred years, it was the sedate and conservative
branch of our national legislature; and that the
larger body, the house of representatives, has in very
many matters involving popular feeling and excite
ment, been less quickly responsive to these waves of
public feeling than the senate. The house acts
quickly; the senate talks and does not act at all, if
there is an obstinate minority. Waiving some other
considerations that have tended to produce these re
sults, I think the controlling fact is this: that in
the senate there is an entire absence of leadership,
of any power in the presiding officer to discriminate
between those seeking the floor, and no rule for
'closing debate. The combined result is that any
'senator may at almost any time introduce any sub-
'ject and speak upon it and force a vote of the senate
! upon it in some form. The first senator who ad-
'dresses the chair must be recognized. In the house
VIEWS OF AN EX-PRESIDENT
there is a strong leadership and a most effective con
trol of the business to come before the house. Mem
bers arrange beforehand with the speaker for recogni
tion, and it is not thought to be impertinent for the
speaker to ask the member what he desires to call up.
There may be some fuming if the speaker refuses to
recognize a member because he does not think the mat
ter should be called up at all, or at that time, but every
body sees that it will not do to let everybody call up
everything in a house of three hundred and fifty-
nine members. The speaker is chosen by the votes
of the majority party to the leadership he exercises,
and is always open to the advice of the members
and to the suggestions or directions of a caucus. He
is not administering spites or favoritism^, but is con
ducting the policies of the majority, and holds his
leadership only so long as he holds the confidence
of a majority of the house. When a subject is once
properly before the house the time allotted to debate
is divided fairly to those indicated by the respective
leaders on the floor, and the vote is absolutely free.
The restraints are upon talk and upon the order of
business, and these are self-imposed restraints in
the public interest. In the English house of com
mons the ministry directs the order of business.
There is a parliamentary leader. The house may
break away, for here too the restraint is self-im
posed, but the break does not discard leadership
only changes leaders. A large legislative body in
SOME HINDRANCES TO LAW REFORMS
which any member may at any time bring up any
subject and speak upon it at any length is certain to,
be impulsive, erratic and unsafe.
A remark upon this topic that was wrung from
me while in public life has been incorrectly given
in the newspapers; but I did say that there was a
crying need of more United States senators, and
perhaps in that connection I did mention, by way
of illustration, the name of one senator who never
had any "little bills" of his own, and was in conse
quence not afraid to oppose the "little bills" of his
colleagues, if the national interests seemed to re
quire it.
The conclusion to which my observation and ex
perience has brought me is that the legislative de
partments, especially the legislatures of the states,
are not capable of dealing in their sessions with the
great law reforms that are now imperatively press
ing for attention. The present difficulties are
largely the result of legislation that was enacted in
the rush and excitement of a material develop
ment that especially as to railroads has now
passed its climax. "Anything to get railroads" was
then the cry. Now we have come to a time
when they are denounced as the oppressors of
the people, and the investors are constantly threat
ened by destructive legislation. The fight has in
many cases been so blind and so bitter as to
affect all classes of business, The investment in
VIEWS OF AN EX-PRESIDENT
railroad securities is so enormous and so wide
ly distributed that it could not be otherwise.
We are all involved. We can not stand apart.
If our plan of taxation includes, notes, bonds
and stocks they must all be listed. It is
not essential that all property should be taxed at its
full value. It is enough that the taxable value is
relatively equal; but it is essential that all property
that the law subjects to taxation should be returned
and assessed. In a recent interview the Reverend
Dr. Rainsford said :
"Let me mention two instances which I person
ally know to be true. One gentleman worth sev
eral millions told me himself that he was assessed
on only $30,000. He added that a friend of his,
worth ten times as much as he, was assessed on
$100,000. Assessments on these estates (and they
are not estates in which there is much realty), may
have been slightly raised since then, for this con
versation occurred two or three years ago. But
the evil principle remains."
The Hon. James A. Roberts, comptroller of the
state of New York, in his last annual report fur
nishes some very interesting statistics and makes
some advanced suggestions. He notes the fact
that the addition of three and one-half millions
to the state revenues from new excise taxes had not
secured the expected reduction in the general tax
rate, and says: "There is danger therefore that
SOME HINDRANCES TO LAW REFORMS 293
unless a determined effort is made to keep down
unusual and extraordinary expenditures, the in
creased income from the excise law may incite a
desire for appropriations and thus raise the tax rate
instead of lowering it."
He is right. Easy come, easy go. When
everybody feels that his money is being spent
everybody is an economist. When one is din
ing at the cost of another he takes no account
of the reckoning. If a scheme of taxation could be
devised by which the whole burden of supporting
the state its schools, its benevolent institutions,
its police and municipal systems would be placed
upon the corporations and the very rich alone, its
adoption would inaugurate an era of the decadence
of public virtue and public spirit, and bring in one
of public wastefulness and profligacy. It would
pauperize in the things that are of more value than
shekels. The contributing citizen is the watchful
citizen; and we have none too many watchers when
all are such. Equality and not spoliation should be
the watchword of the tax reformer.
In discussing the question of an inheritance tax
Mr. Roberts gives some figures that would be start
ling, if our own observation had not prepared our
minds for them. The taxable value of real estate
in the state of New York increased one hundred
and fifty-five per cent, between the years 1870 and
1895, while during the same period taxable personal
294 VIEWS OF AN EX-PRESIDENT
property only increased six per cent. The equalized
taxable value of real estate in 1895 was nearly four
billion dollars ($3,908,853,377), while the taxable
value of personal property was a little less than half
a billion ($459,859,526). Mr. Roberts says: "Now
it is a well known fact that the increase in value
of personal property in this state of late years has
been much more rapid than that of real estate, and
that the amount of personal property owned here is
equal to, if not more, than the amount of real
estate; * * * The total amount of personal
property now on the tax rolls is a trifle over one-
ninth as much as the real estate and only a frac
tion more than it was twenty-six years ago." He
then states that since 1886, as shown by official re
turns, there had been invested in corporations
alone "nearly five times as much as the total
amount of personal property now upon the tax
rolls of the state."
The New York financial press report very re
cently noticed large shipments of gold from San
Francisco to New York, and stated they were made
to avoid taxation. A way must be devised that will
bring to the tax roll this vast aggregate of untaxed
personal property; but it will never be accomplished
by the impulsive hodge-podge methods of sixty-
day legislatures.
The suggestion has been made that only such
property as has been scheduled for taxation shall
SOME HINDRANCES TO LAW REFORMS 295
pass by descent or by will,' and that any prop
erty, the ownership of which has in his life been
annually denied by the decedent in his tax re
turn, shall escheat to the state. There would
seem to be a measure of justice in taking the
tax dodger at his word and not allowing him
to dispose of property that he has solemnly de
clared did not belong to him.
Taxation is not equal. Why is it not made
approximately so, since the governing majority is
in favor of it? Why does not this great middle
body of the people, standing between the "pluto
crats" and the "anarchists," and many times out
numbering them both, make itself as effectually felt
in correcting legal and social abuses as it does in
stamping out fires and suppressing riots? The
only answer is that the executive and judicial forces
of the government act quickly and directly, while
the legislative forces, hampered by the considera
tions I have mentioned, and by the greater compli
cations of the questions, seem to be inadequate to
the work of legal reform. The making of wise laws
is a higher and more difficult work than that of in
terpreting or executing them. How are these and
other great reform bills to be framed, and how are
our legislative bodies to be roused to the exigency
of enacting them? It seems to me that the laws
must be framed by commissions composed of the
ablest men in the states. The commissions must
296 VIEWS OF AN EX-PRESIDENT
be given time to make a thorough study of the
subject. When they have laid down tentatively