involved a surrender to the Federal power. But the country knows that Mr. Thurman's warning, and the angry protests of Eastern newspapers, availed absolutely nothing. The expenditures for "internal improvements" not only went on, but increased enormously. The pretence that the money was appropriated for works of national importance was abandoned. The constitutional argument in opposition was less frequently heard, and the members of Congress who occasionally uttered them were regarded as old-fashioned objects of contempt. "Internal improvements" furnished the highway along which the Federal power advanced. The States were naturally more willing to surrender a jurisdiction the exercise of which entailed enormous expenditures, because the surrender not only relieved them of expense, spreading the cost of public works within their borders over the whole country, but because by it expenditures at the place where the work was in progress were actually increased beyond the amounts that the localities could afford. The Federal government was lavish in its expenditures. With the spread of Federal beneficence came naturally and inevitably the strengthening of the Federal power and the Federal influence. Against this advancing power has stood one branch of the government. The Judiciary of the United States has done its utmost to keep the central authority within the bounds set by the Constitution. Its greatest recent service to the principle of local selfgovernment was its resistance to the theory that the Fourteenth and Fifteenth amendments gave to the United States immediate jurisdiction over the citizen in the ordinary relations of life. But even the courts have yielded to popular opinion, and, as in the legal tender cases, have assented to the doctrine that the United States have the right to issue unlimited amounts of paper money either in time of war or peace; while, as in the Iowa liquor case, they have invaded the police powers of the State. There is no government in the civilized world, except possibly Russia, which is not to some extent under the domination of popular opinion. The present Emperor of Germany is the most virile monarch in Europe, but he dare not oppose too grievously the will of his subjects. If there is any written instrument of govern VOL. LXXXV.-No. 506.-25 ment powerful beyond all other laws, it is our own Constitution, for it is the rule of action prescribed by the people for the guidance and control of their agents. But the history of the Federal power shows that there is a power above the Constitution, and that is the power of popular opinion. There have often been times when the Constitution has not stood in the way of the people's will. Even the Supreme Court will change its mind if the people are persistent. It has not been always necessary for popular opinion to demand the breaking or flexion of the Constitution; it is only necessary that it should approve what has been done. The purchases of Louisiana and Alaska, and the many instances of executive and legislative acts during the war of the rebellion that were clearly beyond the constitutional grants of power, are cases in point which will occur to any one who is at all familiar with our constitutional history. It is not in the books of decisions nor in the letter of the law that the real extent of the Federal power will be found. The statutes and the bills introduced in Congress more accurately reflect the popular conception of the Federal power, of the duties which it owes to the States, of the jurisdiction which it possesses over them and their citizens. The courts and the letter of the Constitution will restrain and guide up to a certain point, but the Federal government is, in the first place, essentially powerful by reason of its now well-established implied powers, and, in the second place, the Supreme Court will bend the letter when the pressure from without is strong enough, as it undoubtedly did when it sustained the reconstruction acts. From very early days it has been the habit of American statesmen to rebel against the restraints of the Constitution if the fundamental law seemed to stand in the way of what they conceived to be the general welfare. In 1816, Henry Clay, in explaining his change of position from opposition to support of a United States Bank, stated this truth concerning constitutional interpretation in the United States: "The Constitution, it is true, never changes; cumstances and the lights of experience may it is always the same; but the force of cirevolve, to the fallible persons charged with its administration, the fitness and necessity of a particular exercise of constructive power today which they did not see at a former period." This doctrine renders it possible for the Federal government to do anything that can possibly be brought within the wide range of the implied powers, and especially within that ancient plea of "general welfare" which sustained the conscience of Henry VIII. in extorting benevolences from his subjects. This growth of the Federal power may or may not have been in opposition to the Constitution. As the Supreme Court is the tribunal of last resort in questions involving the meaning of that instrument, its decision alone can determine whether any particular statute or executive act is within the intention of the fundamental law. It has sometimes determined against what seemed to be popular opinion, but no one familiar with its history can believe that it will stand against such a pressure of popular opinion as that which sustained Jefferson's purchase of Louisiana, or condemned the Alien and Sedition acts. However that may be, it is apparent that most measures of doubtful constitutionality will never be presented for adjudication. Certainly no one in Wisconsin would raise the issue as to a canal maintained by general taxation, while the safety of many exertions of questionable jurisdiction lies in the truth of the broad principle that everybody's business is nobody's business. The fact that is interesting and important is that since the central agent of the States began the erection of new States the Federal power has marvellously developed. This result was inevitable. From the beginning until to-day the advance has not only been unchecked, but it has been stimulated by a great war, in which the Federal power demonstrated its physical supremacy, and by every sectional controversy in which the new States have overcome the old. And the fact that this advance has gone on in spite of the opposition of the strict constructionists contains an eminently prac tical lesson for those who are charged with the tasks of government. It does not show by any means that the strict constructionists have been wrong. On the contrary, many of the results of this development of power indicate that they were wise. But whether they were right or wrong is a controversial question which does not properly come within the contemplation of this article. In the first place it shows that, as a rule, the discussion of proposed legislation in Congress should be on its merits, and that unless a measure is flagrantly unconstitutional, the legal subject may be better avoided. Mr. James Bryce, in the American Commonwealth, says that one consequence of the habit of American legislators to confine discussion to the constitutionality of measures under consideration is that "legal issues are apt to dwarf and obscure the more substantially important issues of principles and policy, distracting from these latter the attention of the nation as well as the skill of Congressional debates." Judge Hare, in his Lectures on Constitutional Law, enlarging on the same point, says that in this country "the question primarily is one of right, and in the refined and subtle discussion which ensues right is too often lost sight of, or treated as if it were synonymous with might. It is taken for granted that what the Constitution permits it also approves, and that measures which are legal cannot be contrary to morals." This is the most important conclusion to be drawn from a recognition of the irresistible power of popular opinion, and even of popular assent, when the Constitution seems to stand in the way. If the large mass of laws by which the United States have assumed jurisdiction over what were originally supposed to be local concerns had been thoroughly debated on their merits, many of them could never have been enacted. By the growth of the Federal power there has followed a loss of local responsibility, and consequently of local political activity and skill, similar to that which differentiates the small municipalities existing under the county system of the rest of the Union from the communities possessing the town-meeting system of New England. Congress has overshadowed the State Legislatures to that extent that they have become inapt in dealing with those intimate and scientific subjects of social and domestic concern the possession of jurisdiction over which ought to make the State Legislatures bodies of the first importance. At the same time Congress has assumed many powers that were not within the contemplation of the founders of the government, and has undertaken tasks which have enormously increased its labors, in consequence of our wonderful growth of population. These tasks are of local and the establishment and temporary support sectional rather than of general importance, and it is to their assumption more than to any other cause that the existing Congressional paralysis may be attributed. Congress cannot attend to the general wel fare, because custom has made the general welfare consist of an accumulation of special and local interests. Private claims, public buildings, internal improvements, land grants, subsidies-all these and more interfere with and prevent the transaction of business in which the whole country is interested. In this way not only are the general interests neglected, but sectionalism is encouraged. The newer part of the country has been always demanding aid, and the older States as often resisting, until the debates in Congress are filled with that spirit of jealousy which must animate rival claimants on the Treasury surplus. The public works carried on by the Federal government are marked by wasteful extravagance, and often by corruption. This also is inevitable, because the work is always carried on by a government representing millions of people for the benefit of a community consisting of comparatively few. The cost is borne by so many that it is as nothing to the people whose city is adorned by a public building, or whose shallow stream is deepened. The effect of the growth of the Federal power on the character of Federal legislation is one of the most patent evils attending the departure from the standard of the founders. It is an evil with which newspaper readers are kept constantly familiar, for now, as always, the proceedings of the general government are of wider and more general interest than those of States and municipalities. When the Federal government was first organized, and for many years after wards, most of its laws were general, and the sessions of Congress were comparatively fruitless, if we are to measure the results of legislative activity by mere bulk. But the times have changed, and the contents of the statute-book have changed with them. The present view of public men concerning the extent of the Federal power may best be illustrated by a reference to the titles of some of the bills that have been introduced in Congress. Among them are bills providing for the establishment of a national university; for of common schools; for the prevention of the adulteration of food. There are bills providing for the construction of macadam roads, which will necessarily be under the supervision of local authorities; for the boring of artesian wells in the State of Montana; for preventing aliens from engaging "in certain business" within the State. There is a bill defining lard; also imposing a tax upon and regulating the manufacture, sale, importation, and exportation of compound lard. There are bills against trusts; to prevent the spread of contagious diseases; bills providing for Federal supervision of the health of men and cattle; for the suppression of vice; for the regulation of traffic. These bills are in addition to the measures introduced and passed for the encouragement of shipbuilding and railroad construction, and for the protection of other industries by taxation. People who desire to build a canal which is to lie entirely within a State are not deterred by constitutional considerations from asking the aid of the United States. In view of the extent to which the Federal power has impressed itself upon the imagination of the people of the country, it is hardly to be wondered at that the farmers, especially those of that part of the country which has derived its right of self-government from the United States, should form a scheme for turning the Treasury into a loan office where they may borrow money on their crops. During the Fifty-first Congress 2106 private bills and 1874 general bills were passed, and many of the former resulted from the Federal government's departure from its original purpose. The final adoption, for example, of the policy of making internal improvements has not only added enormously to the number of persons in the employment of the general government, and involved the expenditure of many millions of dollars, but it has led to the abandonment of the controlling principle in pursuance of which these works were first undertaken. The Federal government is now, and for a long time has been, engaged in improving streams and performing other tasks that would not possibly have come within the contemplation of those who first insisted on the construction and maintenance of the Cumberland Road. There are other subjects coming ostensibly within Federal jurisdiction that are nevertheless exaggerations of the admitted power of the government of the United States, and that are clearly evasive extensions of the Federal jurisdiction. The building and maintenance of highways to national cemeteries, for example, is an invasion not so much of the powers as of the essential duties and privileges of the several localities where they are situated. The absorption of duties by the United States has burdened the country with the army of office-holders that still gives an undue influence to the party of the administration, and that compelled the adoption of the reformed civil service as a measure defensive of the right of the people to choose their own legislative and executive officers, uninfluenced by the government. In Washington's time the officeholders of the Federal government numbered 6000, while now the government employs an army of more than 100,000. This enormous force of office-holders includes constitutional and statutory officers; engineers; lawyers; physicians; statisticians; geologists; meteorologists; hydrographers; metallurgists; astronomers; makers of charts and maps; schoolteachers; railroad experts; skilled detectives; agriculturists; entomologists; botanists; chemists; microscopists; gardeners; tradesmen; merchants; experts in textiles, china, glass, and the thousand articles imported from foreign countries and subject to a tariff tax; clerks of various grades and degrees of skill, from accountants to copyists; expert machinists and mechanics; messengers; and a host of laborers. It is not pretended that the employment of all of these persons, adepts or otherwise, is necessarily incongruous. There are functions properly within the jurisdiction of the Federal government that demand the labors of men of science, and men who are skilled in the secrets of commerce and manufactures. But if the government had been confined to its original purpose, if it had not gone afield in strange pursuits, seeking vainly after what can be best attained through the intelligent efforts of colleges, universities, and scientific associations, the corps of learned, artistic, and mechanical public functionaries would not be one-half its present size. The public expenditures in the first years of the government's existence were for the foreign service, the army and navy, and for the maintenance of the executive, legislative, and judicial branches of the government. These departments of the government were to be provided for in the most frugal and careful manner. In Jefferson's first term Gallatin proposed to maintain the army and navy on a little more than a million dollars. An unexpected war made this plan futile, but the prevailing notion as to the scope of the Federal government, and of the demands which it might justly make on the resources of the people, was not changed. The sum of money expended for the foreign service was for the meagre salaries of those who represented the country abroad, and for the expenses connected with the legation offices. The expenditures for the judicial department were for the administration of justice within the narrow confines of what was first held to be the Federal jurisdiction. The total receipts of the government under the administration of President Washington were $56,448,721; under Jefferson, $108,238,978. The population of the country had increased 36 per cent., and the receipts 92 per cent., while expenditures had advanced about 94 per cent. From the end of Jefferson's last administration to the beginning of Abraham Lincoln's term of office the population of the country increased from 7,000,000 to 31,000,000, while receipts and expenditures grew fivefold greater than they were when Gallatin was at the head of the Treasury Department. In Buchanan's time the expenditures of the government amounted to about $82,000,000 a year. In 1890, the population and valuations in the mean time having about doubled, the expenditures were $359,000,000, an increase of 340 per cent. These, however, are only the apparent expenditures. There are exceptional outlays which ought not to be counted as part of the ordinary cost of maintaining the government. To be fair and accurate, these extraordinary sums may be deducted and the results tabulated. We will thus compare the fiscal years 1860 and 1890. We will deduct the payments for pensions, interest, and principal on the public debt: The increase was $156,826,698, or 267 per cent. In 1880 these ordinary expenses amounted to $115,108,209, so that in the decade ending with 1890 the increase in the government's expenditures was nearly 90 per cent., while the increase of population was about 25 per cent., and of valuations 43 per cent. It is not proper, of course, to assume that a mere increase of annual expenditure is necessarily extravagant; but we are at least put upon our inquiry when the rate of increase is nearly 300 per cent., while population and wealth lag far behind. As civilization advances, government is naturally more and more expensive, until the millennial point shall be reached, when the individual may be entirely trusted to take care of himself, and of his neighbor as himself. That point has not yet been reached either in this country or elsewhere; but in this republic, whether the Constitution binds and limits us or not, the intention was to leave the necessary tasks for the advancement of civilization to the individual and to the local government, confining the Federal government to the care of the joint interests of its members. If that function had been strictly adhered to, the cost of government could not have increased, as it has, so much more rapidly than population or wealth. The evident present annual expenses of the government that are not within the contemplation of the Constitution amount to nearly $20,000,000. This sum can be counted in simply examining the superficial accounts of the Register of the Treasury. But it does not begin to represent the actual money cost of the government's excursions beyond the limits once defined for it. As has been already shown, the population and property valuation of the country about doubled in the thirty years between 1860 and 1890. During that generation a great war was conducted to a successful end, and a large part of the debt created for the patriotic purpose has been paid. In 1890 alone this debt was reduced by more than $48,000,000, which was paid out of the ample surplus of $105,000,000 that then existed in the Treasury. But now, in a time of profound peace, twenty-five years after the close of the conflict, in the year 1890, the actual expenditures for the maintenance of the government, deducting pensions and interest charges - the legacies of the war-have grown 267 per cent. If they had but grown with the growth of the country, they would have been nearly $100,000,000 less than they were. If only 125 per cent. had been added to them, there would have been saved more than $80,000,000. The mere money cost of the extension of the Federal power has been enormous; and it means not only that money is thrown away on objects not originally supposed to be within the Federal jurisdiction, but that looseness of construction has led to looseness of expenditure, and that a national legislature that devotes its attention to a myriad of local matters does so at a great expense to the general public. The remedy for extravagance, of course, is prudence. There is no reason to suppose that the old ideas of constitutional limitations will ever entirely prevail. Whether the departure was right or wrong, the first step was taken at the very beginning of the government, and Jefferson himself was not wholly irresponsible for it. He advocated an extension of Federal jurisdiction through constitutional amendments that has since been attained without changing the fundamental law. The increase in the number of subjects that make demands upon the Federal Treasury is in harmony with the general expansion of the powers of the United States. Here as elsewhere is illustrated the fact, now borne in upon the consciousness of all students of our Constitution and system of government, that the Constitution does not always stand in the way of popular desires, but that it often surrenders before a well-defined and long-persisted-in line of policy. Little that is permanent can be accomplished by contending against the constitutionality of a proposed expenditure that is in the line of a popular policy. This is illustrated by the fate which has befallen those who have struggled on constitutional grounds against appropriations for streams that are in no sense national. In |