# Popular Science Monthly/Volume 77/September 1910/The Five-Fold Functions of Government

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* THE FIVE-FOLD FUNCTIONS OF GOVERNMENT
By W J McGEE, LL.D.
ORGANIZATIONS, like organisms, are products of development. Governmental organizations, like most others, are increasingly designed and shaped in the light of conscious experience. Thus, the constitution of the United States epitomized the lessons of history so far as recognized by its framers, whereby the instrument became the embodiment of governmental practise and theory gained through known experience. Naturally, by reason of the ability of the framers and the stress under which they wrought, the instrument is notable—certainly among the most notable ever produced, whatever be thought of Gladstone's view as to the divinity of its inspiration. Naturally, too, the framers specified most clearly those governmental powers with which they were familiar and which they most desired to adopt: and, no less naturally, their action was guided quite as much by the wish to eliminate that which they thought objectionable as by the aim to perpetuate that which they deemed desirable. Seeing that government is an expression of law, their first care was to provide for the framing of laws, the second to provide for the execution of these laws, and the third to provide for the interpretation of law; and in this way arose what came to be known as the "three coordinate branches" of the United States government. The branches are indeed coordinated, though they are far from coequal, since the power of creating the third is entrusted to the second "by and with the consent" of a part of the first; yet they by no means constitute the entire government—as becomes clear in the light of earlier phases of social organization made known largely since the instrument was framed, no less than in that of discussion before and during the framing of the constitution.
Early in that primitive social type in which tribal organization rests on consanguinity traced in the female line, the elder-woman is both lawgiver and judge, while her elder-brother acts as an executive in case of need, and the two jointly or severally exercise administrative authority throughout the clan; later the elder-women become priestesses or seeresses still giving and interpreting the clan laws, and their elder brothers form an avuncular council of gradually increasing executive and administrative powers; yet at every step all primary power is imputed to a mystical pantheon of which the beldames are only vicars and the sages merely indirect agents. In the next stage of development ​(i. e., in the patriarchate, in which organization rests on consanguinity traced in the male line), the elder-man becomes vicar or priest, and hence law-giver and judge as well as both administrative and executive—as when a patriarch communes with his deity over sacrificing a son or daughter, or a kalif commands of his own impeccability, sits in judgment, awards and rewards, imposes and deposes, and (like a later emperor) personifies the state; yet his primary power is imputed mainly or solely to that supernatural source of which he is deemed but the agent. With the growth of cities and those civic usages in which the organization arises in proprietary right (especially in lands), rulers long remain vicars of mystical or spiritual powers manifested in symbols and ceremonies though often exercised through arms and armies; and until within recent centuries each monarchy was virtually a hierarchy whose king or emperor stood—panoplied in the "divinity which doth hedge about a king"—as the source and exponent of both temporal and spiritual power, performing so much as he would of all governmental functions, his rule ranging from hierarchic to autocratic according to the faith and custom of the time. Gradually (the rate being vastly accelerated by the American Revolution) the monarchs surrendered legislative functions, delegated judicative powers, divided administrative and executive duties with the agents of parliaments and courts, sometimes shared their vicarial powers with ecclesiastic potentates, and began yielding to the inevitable growth of petition into suffrage; yet no monarch was ever quite independent of putative supernatural powers residing within or conveyed through his own personally, or of the symbolism or ceremonial tending to perpetuate the imputation.
In brief, during each stage of governmental growth from the simplicity of primal clan to the pomp and circumstance of gilded empire, the primary functions remain much the same despite sweeping changes in structure. In logical order the functions are (I.) initiatory, and (II.) directive, the former connoting the source and the latter the aim or control of institutional power. In genetic sequence, or in that order of successive manifestation illustrated, e. g., in the natural family of which the clan, gens, city and nation are outgrowths, they are (1) administrative, or concerned with the current regulation of every-day affairs; (2) legislative, or concerned with the establisbment of rules of conduct (always finally adopted only through common consent); (3) judicative, or concerned with the peaceful settlement of disputes in accordance with custom and established rules; (4) executive, or concerned chiefly with the carrying out of rules and judicative decisions; and as the natural source of power gradually comes into ratiocinative view in the light of the general good, (5) determinative, or concerned with the primary expression of common judgment and desire.
Now when the founders of the American nation undertook to frame ​a governmental organization, little was known of the natural stages in the course of human development. The notable works of Maine and McLennan on primitive law, of Fustel de Coulanges on "The Ancient City," of Lewis H. Morgan and Herbert Spencer and Auguste Comte on early society, and of Taylor and Powell and Brinton on lowly religion had not been written—indeed the epoch-marking investigations of these and other writers run back to the unprecedented efforts of the American revolutionists to ascertain the ultimate foundations of human government, efforts not disparaged but only accentuated by the rapid growth of human knowledge since they were made. Since then, science has come into being on the earlier foundation laid by Bacon and Linne and a few others: of the five cardinal principles of science, the first (the indestructibility of matter) was established by a contemporary of the Revolution, Lavoisier; the second (the persistence of motion) grew out of Rumford's experiments begun under the influence of this American rennaissance; while the others (the development of species, the uniformity of nature, and the responsivity of mind) came scores of years later—indeed nearly all of the current branches of science have arisen since the revolution. Since then, too, historical knowledge has been both expanded and refined; geographic knowledge has extended over the full half of the earth then practically unknown; invention has revolutionized industries, largely through the American example; steam and electricity and high explosives have been harnessed; the world's population has doubled; man's conquest over nature has advanced further than during all earlier time; statecraft in the modern sense has taken form, and diplomacy has been reconstructed, both largely through the world-touching influence of the seventh and eighth decades of the eighteenth century; and the American governmental model has been adopted in spirit if not in form by far the greater part of the nations of the earth. In the light of the vast advance since 1776, the sagacity and courage displayed by the signers of the declaration and the articles of confederation, and especially by the framers of the constitution, shine forth among the greater marvels of human history.
The founders included eminent scholars and statesmen, yet they were practical men confronted by problems of which the issue meant life or death; and on surveying the field of experience in governmental organization within their reach, they seized on the essentials and wisely withheld their hands from both the collateral and the controvertible. Dwelling long on the pressingly practical (as shown by the record of discussion in the constitutional convention), they defined clearly the legislative and executive and judicative functions of the nascent ​government leaving the then relatively unimportant details of administration—over which controversy arose whenever the subject was approached—to the sense of their successors; while they proceeded so circumspectly as to reveal implicitly rather than by explicit statement their chief—and history's greatest—contribution to governmental principle, i. e., the substitution of human power exercised through an electorate for the inscrutable might manifested through a hierarchy as the basis of government. Strong as is the constitution in every feautre and department, its chief strength lies in that last-written but first-placed paragraph, "We, the people of the United States, . . . do ordain and establish this Constitution." With this utterance the mysticsm of the ages fell away, and the foundation of humane government became fixed forever; and the new light has already gone around the world and entered every land.
Now in addition to the specific powers expressed in the first, second and third articles of the constitution, others are so clearly implied or expressed inter se that they were unhesitatingly exercised from the day the instrument was adopted. These embrace the administrative power implied throughout, together with that primary power ranking all the others combined (since they rest on and arise from it), i. e., the determinative (or elective) power implied in the first, second, fourth, fifth and sixth articles and expressed in the preamble. So any complete enumeration of the powers of our government (or any other of representative type) necessarily comprises those pertaining to the five innate and coordinate functions involved in all governmental organizations from the most primitive to the most advanced; in logical order—which is that reflected in the constitution—they may be denoted (1) elective, exercised by the people; (2) legislative, exercised by the congress; (3) administrative, exercised by the president and his cabinet officers; (4) judicative, exercised by the court, and (5) executive, exercised primarily by the president.
II
The popular movement for the utilization of our waterways first marked an awakened public sentiment; now it is stirring the national conscience in a manner not unlike the movement of 1776. A round century of public indifference since Gallatin followed Washington in pointing a way, and a half-century of national incompetence attested by the decline of river and canal navigation—these unwittingly set the alarm now ringing. As befits democracy, the awakening began with the extremities of the body politic; yet signs are not lacking that it is reaching the somnolent centers. When the declaration and the ​constitution were framed, the sense of citizenship still lay dormant in all but a few leading minds, and in some of these soon turned sluggardly for longer slumber; then the legion prodigals were fed with the swine on husks of party welfare rather than the sound corn of public weal until a shadowy "no-man's-land" grew up between citizen and state and a "twilight zone" spread between state and nation. Yet, stirred at last by the waterway movement and a forest policy uniting in the cult of conservation, the people are at last preempting the shadowy middle ground, and thus coming into their own as citizens. Two years ago the governors—the actual sponsors for the welfare of their commonwealths—felt the stir; they responded vigorously, and now they and their people are moving together against a tyranny of regnant apathy not greatly different from that of his ease-loving and privilege-giving majesty George III.
Within a few months the congress began to respond to the popular demand by authorizing the publication of the reports of the Inland Waterways Commission and National Conservation Commission and the Proceedings of the Conference of Governors; then the senate created a strong committee on the conservation of natural resources; and within a month this committee reported favorably a bill for the establishment of a "National Commission for the Conservation of Natural Resources." The report meets the popular movement half way. Declaring that "The measure is designed to conform with various actions, both legislative and administrative, growing out of one of the strongest popular movements in the history of our country," the document outlines the movement, summarizes the nature and extent of our natural resources, indicates the leading wastes and the industrial diversions attending development of the resources, and concludes with a plan for action framed to meet the people's will. Even more significant than the body of the report is the appendix; for at last the senate has yielded to the voice of the people sufficiently to print the expressions adopted in great conventions of citizens—among others, the declaration of the Fourth Deep Waterway Convention (adopted in New Orleans November 2 last) "comprising duly appointed delegates to the number of 5,000 from 44 of the 46 states of the union, including the governors of a majority of the states," which finally turned over a new leaf by recognizing and declaring the rights of citizenhood to "demand and direct" action by their representatives—in lieu of the far lesser rights of subjecthood to "petition" or "submit" or "respectfully request" or "forever pray" with which Americans have been content for a century—and then nailed down the new leaf by the public pledge of personal honor proper to full citizenship! Surely if these 5,000 delegates mean ​what they say—and who can doubt their sincerity?—no more significant utterance has been made on American soil since the declaration of July 4, 1776. The final paragraph of the declaration reads:
Believing in our hearts that the needs of the country and the fundamental principles of our government set forth herein involve moral no less than material issues, and agreeing that the time has come for us and the other citizens we represent to exercise our constitutional powers by the means provided when the constitution of the United States was framed, we, the delegates in this convention assembled, representing more than half the people and three fourths the productive energy of the United States, do hereby deliberately and firmly, and in the full realization of our duties and responsibilities, demand and direct that a definite and vigorous policy of waterway improvement, beginning with the Lakes-to-Gulf Deep Waterway, be adopted and put into operation by the national government without delay. To the enforcement of this demand we pledge our individual effort and our united support; and we hereby publicly pledge our personal honor, each for himself and to each other, to support no candidate for public office who will not unqualifiedly indorse and maintain that policy.
Academically, such an utterance is in so full accord with the constitution and with the principles of popular government as to be commonplace; yet actually it is so far out of accord with current governmental methods that the third of the representatives and senators in attendance at the convention generally (except perhaps a dozen progressives) repudiated and condemned the utterance more or less openly as "socialistic" or "anarchistic." Still the voice of the people has echoed and reechoed; and at last it has reached print in a public document.
The spirit of the Lakes-to-the-Gulf Deep Waterway Association expressed in their declaration has cropped out in various conventions other than those noted in the senate report. During the past two years the question has been growing more and more incisive, Is this nation competent to protect the interests of its people? The question has been pressed in non-partisan assemblies held in every section, including citizens of every state, and with constantly increasing directness and pointedness; and it is a sign of the times that it is put with a sense of power and a realization of responsibility unprecedented in the century and a quarter since Washington moved toward the constitution. America—the collective mass of ninety million souls—is a long-suffering if not lethargic giant, slow to wrath and show of strength; yet as to its power when aroused—who can doubt? Its full strength lies in the spirit of the ninety millions; the force of a first effort lodges in some eighteen million voters, a half temporarily tied by one special interest or another—but nine millions are full freemen, and five millions more are ready to follow their lead. Now that the giant is aroused, in conscience no less than in sentiment, the demand of the people is attracting attention. Already the waterway advocates can point to a partial ​response to their demands in enlarged provision for river surveys, in provision for a national waterways commission empowered to extend and apply plans framed by the last administration, and in a recent declaration of the administrative and legislative authorities that "porkbarrel" appropriations must cease—indeed, to the longest steps in the right direction since Washington prevised and Gallatin planned and Windom pleaded for rational waterway development. Verily, the waterway workers have not wrought in vain!
The significant fact lying behind the past and prospective legislation is the power of the people when once aroused—a power not to be confounded for a moment with that of tumult or mob, but inhering in the very spirit and lodging in the innate structure of democracy. True, this power is too often ignored by those for the moment responsible for the public welfare, too little felt by its own possessors; it is seldom stirred save by war or rumors of war, rarely tempted to exercise save by partisan calls at times of political stress; yet although a virtually neglected factor of our national life, it is worthy of weighty consideration.
III
The first, second and third articles of the constitution, respectively, define the legislative, the executive (including the administrative) and the judicative functions of the government. The specifications of the executive function are general to the point of vagueness—naturally enough, in view of the then current antipathy to concentrated authority. Few matters were so faithfully discussed during the constitutiontl convention as the powers of the president; and few of the discussions better exemplify the superlative caution which constantly led the delegates away from definite specifications and toward bare generalities in compromising mooted points. So, just as the instrument is silent on the primary governmental function save in the preamble, the commonplace functions of administration are implied rather than explicitly stated in the second article—being most clearly (or most nearly) defined in the oath or affirmation by the president-apparent that he will "faithfully execute the office of president," which "office" manifestly covers minor governmental affairs not otherwise specified. The indefiniteness was not due to inattention or indifference concerning the administrative function, as the debates clearly show. Mid-course of the deliberation, "Mr. Gouverneur Morris" thus expressed what seems to have been a prevailing view:
Unhappily, the inclefmiteness begat uncertainty, which has multiplied with the growth of the country; for public affairs requiring administrative attention tend to increase geometrically (just as do transportation lines) with the number of individuals and communities touched. Under the natural desire to protect prerogatives (so clearly foreseen by Morris), and with a facility due to the weight of numbers, the congress gradually grew inattentive to the first duty of the president under the constitution (" He shall, from time to time, give to the congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient"), and drifted into the habit of obtaining "information of the state of the union "by more cumbrous methods directly through their own committees or indirectly (and of course unconstitutionally) from the administrative departments. Moreover, they increasingly ignored the warning of George Washington (the presiding officer and moving spirit in the constitutional convention) in that ever-memorable farewell address read annually in their hearing: "Let me. . . warn you in the most solemn manner against the baneful effects of the spirit of party generally. . . . The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissention . . . serves always to distract the public councils and enfeeble the public administration"—so that the nominally representative congress has virtually ceased to act in behalf of the people and come to act instead in behoof of party, in ways for which no shadow of constitutional warrant exists. It would appear that the gravest apprehensions of Washington and Morris have been realized in a policy of special legislation so pronounced that—mirabile dictu!—fully 99 per cent, of the bills ​introduced during an ordinary session are special, local or personal in whole or in part, while far the larger part of the committee work and public debate appears to be devoted to special or local interests! Naturally little time and thought are left for general laws, touching alike the entire citizenry; and naturally the custom of special legislation under party control opens easy way for such machine organization that a half-dozen shrewd manipulators may assume leadership in either house and completely dominate legislation. So far has this tendency run that it is to-day a grave question—the gravest in our history—whether our current laws are framed in the interests of our ninety millions or in the interests of special privilege reducible in the last analysis to a scant dozen "captains of industry": and hence whether after all representative government is inherently and permanently stable. The "propensity" of the congress "to legislate too much" has indeed been checked from time to time in the manner forecast by Morris; for while some administrations acquiesce, others hold out for a stricter conformity with the constitution. George Washington sought to carry out the intent of the instrument framed under his chairmanship, and was so savagely assailed for "usurpation" that he declared death preferable to public service; Abraham Lincoln carried forward the administrative affairs of his terms through sheer force of personality, aided indirectly by the military activity of the time; no less competent authority than the present president of the United States once signalized Grover Cleveland's insistence that the presidency carries power coequal with those of the congress as the notable feature of his administrations; and Theodore Roosevelt's policy was consistently parallel and still more vigorous, even to his final and most trenchant presidential message pointing out the unconstitutionality of an item in the sundry civil act passed as his term closed. Meantime some heads of executive departments shrank from assuming administrative responsibilities; yet under growing necessity they have gradually become our chief administrative officers. Verily the price of indefiniteness as to the administrative function in our fundamental law has been large! Not only have confusion and friction arisen, with enormous attendant expense, but the relatively simple duties of administration are ill-performed. The advocates of waterway improvement were among the first to notice that nearly all our waterway enactments to date are special, and tend to magnify rather than merge sectional and political interests; and that the flood of special bills and local items has so far diverted effort from general legislation that even unto this day the country lacks fundamental laws relating to waters, and is weakly perpetuating monarchial common-law doctrines not only unsuited to current conditions but such as the constitution was designed to annul or forestall! The waterway workers are no longer slow to condemn methods which have permitted—if indeed they have ​not caused—the decline and disappearance of navigation from the finest river system of the world in a country suffering from the lack of transportation facilities. Already a majority of the states are moving, and many citizens in every state are astir; and the prevailing sentiment runs along the lines forecast century-before-last by Gouverneur Morris and George Washington.
IV
When popular assemblies "demand and direct" action relating to waterways, regardless of party and under a suffrage penalty, the awakening means more than mere recognition of bad legislative and administrative methods; it extends to that innate and primary power seized on by the founders as a substitute for the "divine right of kings"—i. e., the power of the people defined in the preamble of the constitution and exercised through the suffrage. While this power has existed throughout our history, the act of suffrage is the last to be realized as essentially governmental—indeed as the supreme function of democratic government. The spirit of free citizenship arises slowly; to the anthropologist it is the latest self-conscious attribute acquired by mankind in that long course of human progress stretching from the prime to the present. Even in our Atlantic tidewater states, the real home of democracy, few citizens feel the franchise as in and of itself a function of government; in oratorical flights they hear and even declare that ours is a government of the people by the people for the people, yet only the exceptional citizen actually senses the casting of his ballot as a function no less governmental in character than those delegated thereby to his fellow-citizens acting as president and representative and judge. Now this is the sense stirred by the non-partisan waterway and other conventions, particularly in the newer states west of the Appalachians; it is the sense stirred as well in Des-Moines and other municipalities governed by the commission system carrying provision for initiative and referendum and recall—the sense of innate power exercised through the elective function.
Concurrently with the sense of power the realization of rights is arising; and naturally enough, first as to the waters. Finding nation and most states apathetic, the more progressive waterway advocates looked into fundamental questions for themselves; and now, as a member of the supreme bench recently declared half querulously, "The country is full of constitutional lawyers." Five years ago, few citizens cared to consider the ownership of water in itself; to-day tens of thousands are familiar with the tenth amendment ("The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the States respectively or to the people"), and hold that since this resource was never granted to the nation or conveyed to the states it necessarily belongs to the people as a heritage no less ​indefeasible than the common title to sunlight and air, or indeed the equal rights to life, liberty and the pursuit of happiness; and three great conventions during last year adopted in substance the water plank made public by the senate committee on the conservation of natural resources.
We adhere to the principle arising in our constitution and incorporated in statutes recently enacted in several states that the waters belong to the people, and maintain that this right of the people is inherent and indefeasible; and while recognizing the necessity of administering this invaluable possession of the people by state and federal agencies, each within its appropriate jurisdiction, we deny the right of municipalities or of state and federal governments to alienate or convey water by perpetual franchises or without just consideration in the interests of the people.
With the sense of power and the realization of rights, the consciousness of duty is spreading. Until recently, provision for waterway improvement or other public works otherwise than by direct appropriation was commonly deemed chimerical; and citizens were led by advice of their representatives and the policy of congress to look on local appropriations as spoils of conquest rather than general contributions to the public good—whereby the "pork-barrel" was kept open and the appropriations went for "works" with little regard for actual navigation of the waters. Now, seeing that despite the expenditure of hundreds of millions on waterway "works" navigation of the rivers has declined, the people demand business-like methods whereby public funds shall be expended only for commensurate public benefits; and since the people have spoken, presidents, governors and probably a majority of the congress are concurring in the wisdom of issuing bonds to cover the cost of continuously and increasingly beneficial public improvements. Almost never before has the issue of bonds been contemplated without more or less open guarantee from Wall Street; but now legion citizens clamor for opportunity to share public burdens directly on a patriotic basis rather than indirectly through the expensive medium of special interests—for in the end the people pay. Under this pressure bills have already been introduced in the congress providing for waterway improvement on the basis of bonds issued in small denominations bearing interest too low to tempt bankers and brokers; and the adoption of this popular policy promises to mark America's most definite step toward making her citizens joint owners rather than passive tenants of their common country, and thereby at once raising patriotism to a higher plane and insuring stability of the nation.
The recognition of rights and duties respecting the waters leads to juster appreciation of other resources, which were of no account when the constitution was framed but have acquired value through the natural growth and orderly development of our population and industries; and to-day several of our forty-odd state conservation commissions hold that in legislative or other action looking toward wiser use and conservation ​of the natural resources the people are but protecting their own. The growth of the sense of common welfare has been greatly impeded by court decisions based on common-law doctrines which the constitution was designed to displace, decisions sometimes tincturing later legislation; yet several courts have fairly kept pace with the growing sense of eternal equities among the people—they who adopted the constitution partly to provide a judicative mechanism adapted to their own needs and subject to their own supreme will: The decision of the supreme court of Maine that the public are entitled to a voice in the management of forests affecting stream-flow; the finding of the New Jersey court of errors and appeals, sustained by the supreme court of the United States, that the people have a residuary right in the waters; the opinion of the supreme court in the Rio Grande case that the government may maintain navigability by protecting the source waters—these and other decisions tending toward closer unity of interest among all the people are signs of the times. So, too, are the enactments by the congress for reclaiming lands and constructing canals under the "general welfare" clause of the constitution, and providing for the Panama Canal and for operations in the insular possessions under the same constitutional warrant—enactments viewed askance by ultra-strict constructionists, yet amply sustained by that court of final appeal, the judgment of the people expressed through their franchise and sustained by their own paramount power.
V
The waterway and conservation movements are still young, and may reasonably be expected to contribute continuously to that public welfare by which they were inspired. Whatever they may do in the future, they have already done much. They have revealed to the people a growing sense of their own powers and rights and duties as citizens. They have brought to light and started toward rectification our ineffective if not actually repressive methods of administration by legislative machinery. They have shown the inherent rights of the people in and to those material resources given value by their own work, and on which their own prosperity and perpetuity depend; and thereby they have warmed the spirit of unity among citizens and states. They have stirred patriotism more than any peaceful issue before, deeply as only bloody wars have done in the past. Incidentally, they are surely establishing the elective function as the primary power of representative government, and will no less surely establish the administrative function as correlative with those of legislative and judicative character.
* ↑ Outlined in an address of the president of the Anthropological Society of Washington, delivered before the Washington Academy of Sciences and affiliated societies February 19, 1900 (Proceedings of the Washington Academy of Sciences, Vol. 2, 1900, pp. 1-12).
* ↑ Described in "Our Great River," World's Work for February, 1907 (Vol. XIII., pp. 8576-8584), and "Our Inland Waterways," Popular Science Monthly for April, 1908 (Vol. LXXII., pp. 289-303).
* ↑ Calendar number 733, Sixty-first Congress, second session, Senate Report No. 826, pp. 1-50; ordered printed June 11, 1910.
* ↑ The index to the discussion occupies a page in the recent edition of "Madison's Journal" (edited by Gaillard Hunt; Putnam's, New York and London, 1908).
* ↑ Ibid., Vol. II., pp. 1-2.