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Representatives, are largely composed of new men, unused to the exercise of the powers entrusted to them.

It results from the foregoing state of facts that the efforts of the promoters and opponents of a bill will be concentrated upon the committee to which the bill has been referred; and that when the interests affected are large it will be worth while to employ every possible engine of influence. Such influence can be better applied by those who have skill and a tact matured by experience; for it is no easy matter to know how to handle a committee collectively and its members individually. Accordingly, a class of persons springs up whose profession it is to influence committees for or against bills. There is nothing necessarily illegitimate in doing so. As Mr. Spofford remarks:

"What is known as lobbying by no means implies in all cases the use of money to affect legislation. This corruption is frequently wholly absent in cases where the lobby is most industrious, numerous, persistent, and successful. A measure which it is desired to pass into law, for the benefit of certain interests represented, may be urged upon members of the legislative body in every form of influence except the pecuniary one. By casual interviews, by informal conversation, by formal presentation of facts and arguments, by printed appeals in pamphlet form, by newspaper communications and leading articles, by per sonal introductions from or through men of supposed influence, by dinners, receptions, and other entertainments, by the arts of social life and the charms of feminine attraction, the public man is beset to look favourably upon the measure which interested parties seek to have enacted. It continually happens that new measures or modifications of old ones are agitated in which vast pecuniary interests are involved. The power of the law, which when faithfully administered is supreme, may make or unmake the fortunes of innumerable corporations, business firms, or individuals. Changes in the tariff duties, in the internal revenue taxes, in the banking system, in the mining statutes, in the land laws, in the extension of patents, in the increase of pensions, in the regulation of mail contracts, in the currency of the country, or proposed appropriations for steamship subsidies, for railway legislation, for war damages, and for experiments in multitudes of other fields of legislation equally or more important, come before Congress. It is inevitable that each class of interests liable to be affected should seek its own advantage in the result. When this is done legitimately, by presentation and proof of facts, by testimony, by arguments, by printed or personal appeals to the reason and sense of justice of members, there can be no objection to it."1

Just as a plaintiff in a lawsuit may properly employ an attorney and barrister, so a promoter may properly employ a lobbyist. But there is plainly a risk of abuse. In legal proceedings, the judge and jury are bound to take nothing into account except the law and the facts proved in evidence. It would be an obvious breach of duty should a judge decide in favour of a plaintiff because he had dined with or been importuned by him (as in the parable),

1 Mr. A. R. Spofford (Librarian of Congress) in American Cyclopædia of Politi cal Science, Article "Lobby."

or received £50 from him. The judge is surrounded by the safeguards, not only of habit but of opinion, which would condemn his conduct and cut short his career were he to yield to any private motive. The attorney and barrister are each of them also members of a recognized profession, and would forfeit its privileges were they to be detected in the attempt to employ underhand influence. No such safeguards surround either the member of a committee or the lobbyist. The former usually comes out of obscurity, and returns to it; the latter does not belong to any disciplined profession. Moreover, the questions which the committee has to decide are not questions of law, nor always questions of fact, but largely questions of policy, on which reasonable men need not agree, and as to which it is often impossible to say that there is a palpably right view or wrong view, because the determining considerations will be estimated differently by different minds.

These dangers in the system of private bill legislation made themselves so manifest in England, especially during the great era of railway construction some fifty years ago, as to have led to the adoption of the quasi-judicial procedure described in the Note on Private Bills, and to the erection of parliamentary agents into a regularly constituted profession, bound by professional rules. Public opinion has fortunately established the doctrine that each member of a private bill committee is to be considered as a semi - judicial person, whose vote neither a brother member nor any outsider must attempt to influence, but who is bound to decide, as far as he can, in a judicial spirit on the footing of the evidence tendered. Of course practice is not up to the level of theory in Parliament any more than elsewhere; still there is little solicitation to members of committees, and an almost complete absence of even the suspicion of corruption.

"In the United States," says an experienced American publicist, whose opinion I have inquired, "though lobbying is perfectly legitimate in theory, yet the secrecy and want of personal responsibility, the confusion and want of system in the committees, make it rapidly degenerate into a process of intrigue, and fall into the hands of the worst men. It is so disagreeable and humiliating that all men shrink from it, unless those who are stimulated by direct personal interest; and these soon throw away all scruples. The most dangerous men are ex-members, who know how things are to be managed."

That this unfavourable view is the prevailing one, appears not merely from what one hears in society or reads in the newspapers, though in America one must discount a great deal of what rumour asserts regarding illicit influence, but from the constitutions and statutes of some States, which endeavour to repress it.

What has been said above applies equally to Congress and to the State legislatures, and to some extent also to the municipal councils of the great cities. All legislative bodies which control important pecuniary interests are as sure to have a lobby as an army to have its camp-followers. Where the body is, there will the vultures be gathered together. Great and wealthy States, like New York and Pennsylvania, support the largest and most active lobbies. It must, however, be remembered that although no man of good

position would like to be called a lobbyist, still such men are often obliged to do the work of lobbying-i.e. they must dance attendance on a committee, and endeavour to influence its members for the sake of getting their measure through. They may have to do this in the interests of the good government of a city, or the reform of a charity, no less than for some private end.

The permanent professional staff of lobbyists at Washington is of course from time to time recruited by persons interested in some particular enterprise, who combine with one, two, or more professionals in trying to push it through. Thus there are at Washington, says Mr. Spofford, "pension lobbyists, tariff lobbyists, steamship subsidy lobbyists, railway lobbyists, Indian ring lobbyists, patent lobbyists, river and harbour lobbyists, mining lobbyists, bank lobbyists, mail-contract lobbyists, war damages lobbyists, backpay and bounty lobbyists, Isthmus canal lobbyists, public building lobbyists, State claims lobbyists, cotton-tax lobbyists, and French spoliations lobbyists. Of the office-seeking lobbyists at Washington it may be said that their name is legion. There are even artist lobbyists, bent upon wheedling Congress into buying bad paintings and worse sculptures; and too frequently with success. At times in our history there has been a British lobby, with the most genteel accompaniments, devoted to watching legislation affecting the great importing and shipping interests."

A committee whose action can affect the tariff is of course an important one, and employs a large lobby. I remember to have heard an anecdote of a quinine manufacturer, who had kept a lawyer as his agent to "look after" a committee during a whole session, and prevent them from touching the duty on that drug. On the last day of sitting the agent went home, thinking the danger past. As soon as he had gone, the committee suddenly recommended an alteration of the duty, on the impulse of some one who had been watching all the time for his opportunity.

Women are said to be among the most active and successful lobbyists at Washington.

Efforts have been made to check the practice of lobbying, both in Congress and in State legislatures. Statutes have been passed severely punishing any person who offers any money or value to any member with a view to influence his vote. It has been repeatedly held by the courts that "contracts which have for their object to influence legislation in any other manner than by such open and public presentation of facts, arguments, and appeals to reason, as are recognized as proper and legitimate with all public bodies, must be held void." It has also been suggested that a regular body of attorneys, author

1 The phrase one often hears "there was a strong lobby" (i.e. for or against such and such a bill)'denotes that the interests and influences represented were numerous and powerful.

2 As to Congress, see § 5450 of Revised Statutes of the United States. The provisions of State Statutes are too numerous to mention. The Constitution of California declares lobbying to be a felony; Georgia calls it a crime.

3 Cooley, Constit. Limit., p. 166. employed to present the reasons in

He adds, "While counsel may be properly favour of any public measure to the body

ized to act as agents before committees of Congress, should be created. A bill for this purpose was laid before the Senate in January 1875.1

In many States an attempt has been made to check the evils consequent on lobbying, by restraining the legislature from passing special laws in a great variety of cases. See post, Chapter XL.

NOTE TO CHAPTER XXVII

THE FEDERAL SYSTEM OF THE ENGLISH UNIVERSITIES

THE structure of the American Federation may be illustrated by a federal system familiar to many Englishmen from its existence in the two ancient universities of Oxford and Cambridge, as they stood constituted twenty years ago. The analogy, which recent legislation has rendered less perfect to-day than it was then, appears in four points.

I. Each of these universities was then for some purposes a federation of colleges. Every member of it was also a member of some college or hall; 2 as

authorized to pass upon it, or to any of its committees empowered to collect facts and hear arguments, and parties interested may lawfully contract to pay for this service, yet secretly to approach the members of such a body with a view to influence their action at a time and in a manner that do not allow the presentation of opposite views, is improper and unfair to the opposing interest, and a contract to pay for this irregular and improper service would not be enforced by the law." He quotes abundant judicial authority in support of this doctrine; among others, the following observations of Justice Chapman, in Frost v. Belmont, 6 Allen, 152:"Though Committees properly dispense with many of the rules which regulate hearings before judicial tribunals, yet common fairness requires that neither party shall be permitted to have secret consultations and exercise secret influences that are kept from the knowledge of the other party. The business of 'lobby members' is not to go fairly and openly before the committees and present statements, proofs, and arguments, that the other side has an opportunity to meet and refute if they are wrong, but to go secretly to the members and ply them with statements and arguments that the other side cannot openly meet, however erroneous they may be, and to bring illegitimate influences to bear upon them. If the lobby member' is selected because of his political or personal influence, it aggravates the wrong. If his business is to unite various interests by means of projects that are called 'logrolling,' it is still worse. The practice of procuring members of the legislature to act under the influence of what they have eaten and drunk at houses of entertainment tends to render those who yield to such influences wholly unfit to act in such cases. They are disqualified from acting fairly towards interested parties or towards the public."

1 See an article in the Century Magazine for April 1886, p. 963.

2 By a recent statute of the University of Oxford (which I take for the sake of simplicity), reverting to its earlier constitution before the college monopoly had been established, persons have been admitted to be members who are not members of any college or hall; they are, however, treated for some purposes as collectively constituting a community similar to a college. They might be compared to United States citizens resident in the Territories, were it not that the citizen in a Territory enjoys no share in the national government, whereas the Oxford non

no one can be an active citizen of the United States who is not a citizen of some State. The colleges made up the university as the States make up the Union. But the university was and is something distinct from the colleges taken together. It has a sphere of its own, laws of its own, a government of its own, a revenue and budget of its own. So has each of the colleges. Each member has two patriotisms, that of his college, that of the university; just as each American citizen has his State patriotism as well as his national patriotism.

II. The university has a direct and immediate jurisdiction over every one of its members, distinct from the jurisdiction exercised by the colleges over the same persons. An offender may be punished for certain offences by a university tribunal, for certain others by a college tribunal, for some by both tribunals. So every citizen lives under the jurisdiction of the Union as well as under that of his State.

III. The governing authorities of the university are created partly by the direct action of its members as graduates, partly by that of the colleges as communities. So in America Congress is created partly by the citizens as citizens, partly by the States as communities. Before the reforms of 1854 the part played by the colleges was much greater than it is now, because the Council, which is a sort of Upper House of the university legislature, consisted entirely of heads of colleges.

IV. The university has very little authority over the colleges as corporations, and indeed scarcely comes in contact with them all. Under a recent statute they are obliged to make certain contributions to the university, and to send a copy of their accounts to a university office. But they are selfgoverning; the university cannot interfere with their internal management, nor with the exercise of their jurisdiction over their members, which is their own and not delegated by it. So the States exercise an original and not a delegated authority over their citizens, and cannot be controlled by the national government in respect of all those numerous matters as to which the Constitution leaves them free.

NOTE (A) TO CHAPTER XXX

CONSTITUTION OF THE CONFEDERATE STATES, 1861-65

THE Constitution adopted 11th March 1861 by the Slave States which seceded from the Union and formed the short-lived Southern Confederacy, was a reproduction of the Federal Constitution of 1788-89, with certain variations, collegiate graduate can vote in Convocation and Congregation and for the election of members of Council.

There is of course this remarkable difference between the two cases I am comparing, that in the English universities the university is older than the colleges, whereas in America the States are older than the nation. The federal character of Oxford dates only from the time of Archbishop Laud.

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