Looking behind the scenes one discovers that at bottom, even in the Senate, only a few have real influence. The more recently appointed Senators earn their spurs in unimportant committees, and even if they get into more important ones they are constrained by tradition to fall in line behind the more experienced members. In the House there is half a dozen, and in the Senate perhaps a dozen men who shape the politics of the country. Here, as in all practical matters, the American is ready to submit to an oligarchical system so long as he knows that the few in question derive their power from the free vote of the many. In fact nothing but oligarchy is able to satisfy the profoundly conservative feeling of the American. Behind the scenes one soon discovers also that the Senatorial courtesy, which neutralizes the party fanaticism and encourages compromises to spring up like mushrooms, still leaves room for plenty of fighting; and even intrigue thrives better on this unctuous courtesy than in the coarser soil of the lower house. The sanctified older Senators, such as Allison, Frye, Platt, Aldrich, and Hale, know where to place their levers so as to dislodge all opposition. Perhaps McKinley’s friend, Hanna, who was the grand virtuoso in Republican party technique, knew how always to overcome such political intrigue; but even Roosevelt’s friend, Lodge, has sometimes found that the arbitrarily shaped traditions of the seniors weigh more than the most convincing arguments of the younger men.
The moral level of Congress is, in the judgment of its best critics, rather high. The fate of every one of the thousands of bills is settled virtually in a small committee, and thus, time after time, the weal and woe of entire industries or groups of interests depend on one or two votes in the committee. The possible openings for corruption are thus much greater in Congress than in any other parliament, since no other has carried the committee system to such a point. In former times political scoundrels went around in great numbers through the hotels in Washington and even in the corridors of the Capitol trying to influence votes with every device of bribery. To be sure, it is difficult to prove that there are no such hidden sins to-day; but it is the conviction of those who are best able to judge that nothing of the sort any longer exists. To be sure, there are still lobbyists in Washington, who as a matter of business are trying to work either for or against impending bills, but direct bribery is no longer in question. On the slightest suspicion the House itself proceeds to an investigation and appoints a committee, which has the right of collecting sworn testimony; and time after time these suspicions have been found to be unjust.
A different verdict, however, would have to be passed if only that delegate were to be called morally upright who surveys every question from the point of view of the welfare of the entire nation; for then indeed the purity of Congress will be by no means free from doubt. Few Americans, however, would recognize such a political standard. When great national questions come up for discussion Congress has always shown itself equal to the occasion, and when the national honour is at stake, as it was during the Spanish War, party lines no longer exist; but when the daily drift of work has to be put through it is the duty of every man to uphold as obstinately as possible the interests of his constituency. Especially the political interests of his party then become predominant, and, seen from a higher point of view, there are no doubt many sins committed in this direction. Many a measure is given its quietus by one party, not because of any real inexpediency, but simply in order to embarrass the other party, to tie up the Administration, and thus to weaken the hopes of that party at the next election. In recent years such party tactics on both sides have prevailed time after time. Most frequently it is the present minority, under its leader, Senator Gorman, which has resorted to this policy and held out against the most reasonable propositions of the Republicans, simply because these measures would have increased the Republican respect before the nation.
On the other hand, party lines are all the time being broken through by these or those local interests, and any one observing the distribution of votes cast in the House will see clearly how, oftentimes, the parties mingle while the issue lies perhaps between two different geographical sections. When oleomargarine is the order of the day the representatives of the farming districts are lined up against those from industrial sections. If it is a question of getting Congress to approve the great irrigation measures, whole troops of Democrats hasten to forget that, according to their fundamental principles, such an undertaking belongs to the state, and not to the federal, government; the representatives from all the Democratic states which are to be benefited by such irrigation, fall into sweet accord with the Republicans. Thus the party divisions are all the time being forgotten for the moment, and it looks as if this weakening of party bonds were on the increase. By supporting his party principles each Congressman assists toward the next victory of his party, but by working for the interests of his locality he is surer of his own renomination. The requirement that a candidate must reside in the district that elects him naturally strengthens his consideration for the selfish claims of his constituency. Thus it is only at notable moments that the popular representative stands above all parties; he generally stands pat with his own party, and if the voters begin to nod he may take his stand somewhat below the parties.
Yet, on looking at Congress as a whole, one has the impression that it accomplishes a tremendous amount of work, and in a more sober, business-like, and efficient way than does any other parliament in the world. There is less talking against time; in fact, there is less talking of any kind, and because the Administration is not represented at all there is less fighting. The transactions as a whole are therefore somewhat less exciting; a single Congressman has less opportunity to become personally famous. Yet no American would desire to introduce a ministerial bench at the Capitol, or to have the next Congress adopt Austrian, French, German, or English methods.
CHAPTER FIVE
Justice
Going from the hall beneath the central dome of the Capitol toward the Senate, in the left wing one passes by an extraordinary room, in which there is generally a crowd of people. The nine judges of the federal court, the Supreme Court of the United States, are sitting there in their black gowns, between Greek columns. The President and his Cabinet, the Senate, and the House of Representatives fill the American with a pride which is tempered by some critical judgment on this or that feature, or perhaps by a lively party dissatisfaction. But every American who is competent to judge looks on the Supreme Court with unqualified admiration. He knows very well that no force in the country has done more for the peace, prosperity, and dignity of the United States. In the constitutional make-up of the Federal Government, the Supreme Court is the third division, and co-ordinate with the Legislative and the Executive departments.
The jurisprudence of a nation forms a totality; and therefore it will not do to discuss the work of the nine men sitting at the Capitol, without throwing at least a hasty glance at the administration of justice throughout this enormous country. There is hardly anything more confusing to a European; and while the Englishman finds many features which are reminiscent of English law, the German stands helpless before the complicated situation. It is, most of all, the extreme diversity of methods which disquiets him. It will be quite impossible to give here even a superficial picture of the machinery of justice. A few hints must suffice at this point, while we shall consider many features in other connections, especially in discussing social problems.
The jurisprudence adopted by the United States comes from three sources. The average American, on being asked what the law of his country is, would say that it is “common law.” If we except the State of Louisiana, which by a peculiarity has the Napoleonic Code, this reply suffices for a rough idea. But if a German, having in mind perhaps the two German law books, the penal and the civil codes, both of which he can put so easily into his pocket, were to ask after some formulation of the common law, he would be shown a couple of huge bookcases with several hundred stout volumes. Common law is not a law book, nor is it a system of abstract formulations, nor yet a codification of the prevailing ideas of justice. It is, in fact, the sum total of judicial decisions. The establishment of common law signifies that every new case as it comes up is decided in conformity with previous decisions. The earlier decision may be a bad one, and very much offend one’s sense of justice; but if no superior authority has annulled it, it becomes historic law and determines the future course of things. American law came originally from the English. The early English colonists brought with them across the ocean the ideas of the English judges, and the states which have sprung up lately have taken their law from the thirteen original states. If to-day, in Boston or San Francisco, any one finds a piece of jewelry on the street and another snatches it from him, he can have the thief arrested, although the object found is not his property. The judge will decide that he has a right to the object which he has found until the original owner appears, and the judge will so decide because in the year 1722 a London chimney-sweep found a valuable ornament, out of which a jeweler later stole a precious stone; and the English judge decided in favour of the chimney-sweep.
The disadvantages of such a system are obvious. Instead of a single book of law embodying the will of the nation, the decisions handed down by single insignificant judges in different parts of the world, decisions which originated under wholly other states of civilization and from other traditions, still have final authority. Again and again the judge has to adapt himself to old decisions, against which his sense of right morally rebels. Yet the deep, ethical motive behind this legal system is certainly plainly evident. The Anglo-Saxon would say that a national code cannot be constructed arbitrarily and artificially. Its only source is in the careful, responsible decisions given down by the accredited representatives of the public will in actual disputes which have arisen. There is no right or wrong, he would say, until two persons disagree and make a settlement necessary, and the judge who decides the case creates the right with the help of his own conscience; but as soon as he has given his decision, and it is set aside by no higher authority, the principle of the decision becomes justice for all times. Every day sees new formulations of justice, because new conflicts between human wills are always arising and require new settlements; but up to the moment when a decision is made there exist only two conflicting desires existing in the matter, but nothing which could be called justice.