“A number of years ago, the work of the Court of Chancery having become too great for one judge to dispose of, a statute authorized the appointment by the Chancellor alone (without confirmation by any other authority) of a Vice-Chancellor, as assistant. By further statutes, the number of these was increased to seven. The Court now consists of a Chancellor and seven Vice-Chancellors, who sit separately in different parts of the State. The Vice-Chancellors are appointed for seven-year terms. That Bench is generally regarded as the strongest in the State and has given entire satisfaction to the Bar and to the public.
“The Vice-Chancellors hear interlocutory motions in nearly all cases under a standing rule of the Court, but they conduct trials and final hearings only upon an order of reference from the Chancellor. After trial they write the opinion of the Court, which is usually reported, and advise the decree, which is then signed by the Chancellor. No appeal lies from their decree to the Chancellor, but all such decrees may be appealed directly to the Court of Errors and Appeals.
“Theoretically, the Vice-Chancellors are merely referees who report and advise the Chancellor, the decree being made by him upon their report. In actual practice however, they are members of the Court of Chancery, in fact (but not in form) making the final decree of that Court.
“The system has worked very satisfactorily in respect to the character and attainments of the members of that Bench, but the work of the Court in populous cities is a good deal in arrear. This is due to the volume of business having outgrown the number of Vice-Chancellors.”
[36] Illinois Constitution 1870, Art. VI, sec. 30.
[37] Massachusetts Constitution, chap. iii, Art. I; 38 and 39 Vict., Ch. 77 (Jud. Act 1875), sec. 5.
CHAPTER XVIII
CHANGES IN THE PLAN OF THE FEDERAL GOVERNMENT
The federal government is already organized upon a plan of centralized power. The ballot which it presents to the voter is always short. The voter casts his ballot for a president and vice-president every four years and for one congressman from his district (and perhaps one or two from the state at large) every two years. United States Senators hold office for six years. Until the adoption of the recent 17th Amendment two were elected by each state legislature. Now two are elected at large in each state. The judges are appointed by the president with the approval of the Senate. The Senate has a general veto power on Executive appointments. Such in form at least is the organization of the national government.
Today, however, extra-legal government has laid its hand to some extent at least upon the government at Washington. In congressional districts where extra-legal government flourishes, it has become the strongest and most persistent single force in the election of congressmen. Naturally it has its loyal supporters in the House of Representatives of Congress. As the power of extra-legal government grows and becomes more widespread its influence in that house will grow. It is, of course, entirely immaterial whether a supporter of the extra-legal government is labeled Democrat or Republican. He is a Democrat when he comes from a district where the vote-directing machine operates successfully under that name. He is a Republican when the vote-directing machine operates successfully under that name. The power of extra-legal government which has appeared in the Senate of the United States is the direct consequence of the power of extra-legal government in the state legislatures. Of course, extra-legal government does not often control a majority of the members of both houses of a state legislature. A considerable minority, however, who hold together under a strong leadership can wield a large influence. One of the reasons for the persistence of the fight upon Mr. Lorimer and its popular support throughout the country was the fact that his election represented to the popular mind in a striking manner the invasion of the United States Senate by extra-legal government. No matter how free from corruption Mr. Lorimer may have been, the power so openly wielded by those allied with extra-legal government to place him in the United States Senate presented itself to the people of the country as a menace to the nation. Yet a similar invasion has been going on steadily in quieter ways. Every gain of extra-legal government in the control of state legislatures has been a step farther toward a predominant influence in the United States Senate. It has been for the most part through senators who have supported, or at least felt that they must placate the power of extra-legal government in their states, that that government has obtained its hold upon the federal judiciary. The president’s appointments must be approved by the Senate. Senatorial custom, sometimes called courtesy, places the control of the Senate’s approval in the hands of the senators from the state for which the judicial appointment is made. The two senators from the state sometimes divide the federal judicial districts in the state between them. Thus has the president’s appointment to the lower federal bench been placed at the mercy of two, or perhaps a single senator. The president on his part may have a popular legislative program which he is pledged and is attempting to secure action on from Congress. The support of senators is necessary. The tendency, therefore, on the part of the president to allow senators the upper hand in his appointments to the bench has been very marked. Extra-legal government has in the last few years become a visible force in the selection of the president of the United States through its power to control delegates sent to the National Convention. At both the Democratic and Republican National Conventions in 1912 the numerical strength of the delegates representing extra-legal government in particular states or districts of states was very marked. In the Republican Convention these delegates and their allies not only controlled the situation, but actually took issue with the delegates who represented the electorate and beat them. This was not a matter which could end when one faction cast more legal votes at the convention than the other. The contest was one between the forces of extra-legal government and delegates for the moment actually representing the popular choice. The contest between two such forces can be settled only when one or the other has been swept from the field. The triumph legally of the forces of extra-legal government in the Republican Convention could have no other logical outcome than the formation of a new party.
The recent change effected by the seventeenth amendment providing for the popular election of senators was made avowedly for the purpose of ousting the control of extra-legal government in the Senate. We may be sure, however, that the change will not in the least tend to drive extra-legal government from the field at large. It follows, therefore, that the politocrats will use all their power to control nominations and elections to the United States Senate. The office of senator, however, is conspicuous and extremely important. This fact alone will force the politocrats to put forward or support candidates of some independence and popular strength. This will naturally result in the United States Senate becoming far more representative of the electorate than is the House. We may, therefore, expect the Senate to become less conservative than the House. If this continues in a marked degree, it means the entire decadence of the House as a legislative body. Its power will be exercised by the leaders of the house majority in the interests of a conservative check upon the Senate. Whether this condition would survive the elimination of extra-legal government in our local municipal and state governments seems beyond the possibility of prediction.