Elements of Debating Part 12

Mr. Pruitt, speaking for the affirmative:

The question which we discuss tonight is partly economic and partly legal. By that I mean that viewing it from the standpoint of legal liability, we possibly can agree with the gentlemen of the Negative that the employer should respond in damages to his injured employee, only when the injury has been caused by the employer's own fault.

But, on the other hand, viewing the same problem from an economic standpoint, you cannot deny, that, when through no fault of his own, a worker is injured in the course of an industrial employment, that industry should compensate him for the loss.

Here then is the issue--the world-old-problem--established principles of law in conflict with changing social and economic conditions; and, as history shows, there can in such cases be but one solution. The decision of the court, the statute of the legislature, yes, even the const.i.tution of the nation, must in turn yield to the march of progress and adapt itself to changing conditions until once more it shall reflect the sense of public justice in its own time. Hence, I say that in our discussion this evening, there can be no confusion of issues. The Affirmative, according to the wording of the question, are to advocate a change in our common law, while the Negative in duty bound are to oppose the proposition for change, and to defend as the Negative always defend, the order of things as they are.

The Affirmative are to advocate such a change, the abolition of the common-law defenses of the employer. For the purposes of this debate, it is immaterial to us whether this change is brought about by a simple extension of the employer's liability, or whether it is accompanied, as in many of our states, by a system of workman's compensation. Likewise, it is a consideration extraneous to the issues of this debate, whether the employer shoulder this risk himself, whether he insure it in a private insurance company, or whether he be compelled to insure it in a company managed by the state. At all events, and under any of these plans, the proposition of the Affirmative will be maintained, the employer will be deprived of his defenses at common law, and the employee will recover his damages regardless of questions of fault.

a.s.suming then the full burden of proof, the Affirmative propose to demonstrate that the a.s.sumption of risk and the fellow-servant rule as defined and interpreted by the common law should be abolished, first, because whatever reasons may have justified these doctrines in years gone by they have no application to industrial conditions in our day; and, secondly, because the abolition of these common law defenses will but place the burden of industrial loss, as in justice it should be placed, upon the ultimate consumer of the product of the industry.

Mr. Watson, speaking for the Negative:

The proposed abolition of these two common-law defenses, like every change of law or any suggested reform, is brought to our attention by certain existing evils. The advocates of this reform have a definite proposition in mind and that proposition is definitely and clearly stated in the question. It is a question in which people in every walk of life are concerned. Since it is of such widespread interest, let us lift it from a plane of mere debating tactics, in which a question of this kind is so often placed, and where a great deal of time is spent in arguing what the Affirmative or the Negative may stand for according to the interpretation of the question, let us lift it from that plane, and consider it as practical men and women who are interested in the outcome of this great problem. It is, then, in its larger sense, a legal question and must be considered from the standpoints of justice and of expediency.

It is not enough for the Affirmative to point out evils that exist under these two common-law rules, for there is bound to be some evil in the administration of all law; so they must further show that these evils which they have named are inherent in these two laws, and that the proposed change will remedy the existing evils. Now the Negative maintain that the evils complained of are not inherent in these laws, and we believe that the Affirmative plan is not the proper solution of the problem.

I will show you that these common-law rules are founded on principles of justice and that their removal would be unjust to the employer; second that it would discriminate against the smaller tradesmen, and third that the proposed remedy does not strike at the root of the evil, since it would affect only a small percentage of industrial accidents.

CARL SCHURZ ON GENERAL AMNESTY

(A bill being before Congress proposing to restore to leading Southerners many of the privileges which had been denied them following the war, Mr. Schurz determined the issue as follows:)

_Mr. President_: When this debate commenced before the holidays, I refrained from taking part in it, and from expressing my opinions on some of the provisions of the bill now before us; hoping as I did that the measure could be pa.s.sed without difficulty, and that a great many of those who now labor under political disabilities would be immediately relieved. This expectation was disappointed. An amendment to the bill was adopted. It will have to go back to the House of Representatives now unless by some parliamentary means we get rid of the amendment, and there being no inducement left to waive what criticism we might feel inclined to bring forward, we may consider the whole question open.

I beg leave to say that I am in favor of general, or, as this word is considered more expressive, universal amnesty, believing, as I do, that the reasons make it desirable that the amnesty should be universal. The senator from South Carolina has already given notice that he will move to strike out the exceptions from the operation of this act of relief for which the bill provides. If he had not declared his intention to that effect, I would do so. In any event, whenever he offers his amendment I shall most heartily support it.

In the course of this debate we have listened to some senators, as they conjured up before our eyes once more all the horrors of the Rebellion, the wickedness of its conception, how terrible its incidents were, and how harrowing its consequences. Sir, I admit it all; I will not combat the correctness of the picture; and yet if I differ with the gentlemen who drew it, it is because, had the conception of the Rebellion been still more wicked, had its incidents been still more terrible, its consequences still more harrowing, I could not permit myself to forget that in dealing with the question now before us we have to deal not alone with the past, but with the present and future of this republic.

What do we want to accomplish as good citizens and patriots? Do we mean only to inflict upon the late rebels pain, degradation, mortification, annoyance, for its own sake; to torture their feelings without any ulterior purpose? Certainly such a purpose could not by any possibility animate high-minded men. I presume, therefore, that those who still favor the continuance of some of the disabilities imposed by the Fourteenth Amendment do so because they have some higher object of public usefulness in view, an object of public usefulness sufficient to justify, in their minds at least, the denial of rights to others which we ourselves enjoy.

What can those objects of public usefulness be? Let me a.s.sume that, if we differ as to the means to be employed, we are agreed as to the supreme end and aim to be reached. That end and aim of our endeavors can be no other than to secure to all the States the blessings of good and free government and the highest degree of prosperity and well-being they can attain, and to revive in all citizens of this republic that love for the Union and its inst.i.tutions, and that inspiring consciousness of a common nationality, which, after all, must bind all Americans together.

What are the best means for the attainment of that end? This, Sir, as I conceive it, is the only legitimate question we have to decide.

APPENDIX III

A TYPICAL COLLEGE FORENSIC

The forensic which follows is the one which was used by the State University of Iowa in its debates with the University of Wisconsin and the University of Minnesota in 1908. In the form in which it appears here it was given in a home contest a few evenings before the Inter-State Debate. It is quoted here with the permission of the Forensic League of the State University of Iowa.

_Resolved_, That American Cities Should Adopt a Commission Form of Government.

Mr. Clarence Coulter, the first speaker on the Affirmative, said:

It is not my purpose to picture the shame of American cities; that is well known; but I am to consider only those evils due to the present form of munic.i.p.al government, an organization based on the separation of the powers into the legislative, executive, and judicial departments. The proper remedy for these evils will be secured only by adopting a form which concentrates the entire authority of city government in one definite and responsible body.

It is a significant fact, that during the last quarter of a century, the tendency in munic.i.p.al organization has been toward concentration of powers. Certain of our cities have recognized the wisdom of such action, but have unwisely attempted to concentrate only the executive power whereas the real solution lies in concentrating all governmental authority in one definite and responsible body.

New York City tried such a plan and it has failed; failed because its separate legislative department has proved an obstruction to effective action. Consequently, there has been a continual tendency to deprive the council of all power, until today its only function is to vote on franchises and issue certain licenses. So evident is the imperative need of concentrating the legislative and administrative powers in one body, that there is now a charter revision committee meeting in New York whose great object is to consider the advisability of entirely eliminating the separate council, and creating in its place a small commission possessing both legislative and administrative authority. Practically the same condition obtains in the city of Boston.

What is true of New York and Boston is equally true of scores of other cities. Memphis tried for years to reform her government with an isolated council. Today she is clamoring at the doors of her legislature for a commission charter. Within the past two years more than a dozen states have provided for a commission form of government, while within the past year more than a dozen cities have actually thrown away their old forms and a.s.sumed the commission system.

The success of a separate legislative body in state and national government is the only excuse for its retention in our cities, yet the failure, for over a century in all its different forms and variations, proves that such a government is unsuited to them. There are several important and fundamental characteristics of the city that demand a different form of government and show conclusively that there is no need of a separate legislative body. In the first place, the city is not a sovereign government, but is subordinate to state and nation. There is no reason for a distinct legislature to determine the broad matters of policy, for they are determined for the citizens of the city as well as those of the country, by the state and national legislatures, in which both the city and country are represented. In the second place, the work of a city is largely administrative and of a business character, as my colleagues will show, and there is no necessity for a separate council to legislate when a commissioner is better able, as we shall show, to pa.s.s the kind of legislation characteristic of the city.

In the third place, we do not find, as in the state, the necessity of a large and separate body to represent the various localities.

The city has a large population living in a restricted territory; in the state it is scattered. The city is unified by means of its rapid communication and transportation facilities, and its interests are common. These, Honorable Judges, are some general reasons why there is no necessity for trying to maintain a separate legislative body at the expense of efficiency in administration and the fixing of individual responsibility.

But let us now examine as to wherein this principle of separation fails to meet modern munic.i.p.al conditions. In the first place we find that this system has failed to produce efficiency, because, in actual practice, it has been impossible to keep the legislative and administrative branches within their proper spheres of action. To be sure, such difficulty does not exist in state and national governments where the work is naturally divided. But in city government, where the work is of a peculiar kind, where it is unified in character and is largely administrative and of a business nature, it has been found impossible to maintain a separation. It is not at all surprising to find that in some cities, the mayor is the dominating factor in both legislation and administration. He is the presiding officer of the council with the deciding vote, and, in addition, is clothed with the veto power. On the other hand, there are scores of instances where the council a.s.sumes administrative functions. It names all appointments to office, and it creates and controls all the departments of city government. Under such circ.u.mstances the administrative department is subordinate to the council, because its officers can be both appointed and removed by that body and because it can carry on no work without the council's authority. Thus there is an inevitable tendency to concentrate the powers in one of the two branches, yet, at the same time, diffusing responsibility between them. Such a condition only goes to show that city government is gradually but surely working its way toward concentration in one body. But the trouble lies in the fact that the present system makes possible concentration of power, without a corresponding concentration of responsibility. From such a condition have grown two grave and inherent evils. First, it has entirely eliminated the system of checks and balances, which is a fundamental doctrine of the division of power. Secondly, it has utterly destroyed all effective responsibility. It is apparent at once, that when one branch of the government dominates, the checks and balances between the departments are immediately lost, and facts bear out what theory shows to be logically true. The system of checks and balances failed absolutely in New York, where the mayor is supreme, and where the city has been plundered of sums estimated at 7 per cent of the total valuation of real estate. It has failed in St.

Louis, where the council dominated, and where "Boss Butler" paid that body $250,000 to pa.s.s a street railway franchise. Neither did it work in Philadelphia, which has been plundered of an amount equal to 10 per cent of her real estate valuation; nor in San Francisco under the disgraceful regime of Mayor Schmitz. So overwhelming is the evidence on this point that it is needless to dwell further upon it.

In the second place, this domination of one branch over the other has resulted in a lack of responsibility and of co-ordination in city affairs. These two elements are indispensable where the work to be performed is of a local and business nature. We find that under the present system, no matter which branch of government dominates, there is always a notorious lack of responsibility. If the council makes a blunder in legislation, it immediately lays the blame upon the administrative officials, maintaining that it pa.s.sed the measure upon recommendation of the administrative branch, or that branch failed to carry out its policy. If the administrative officials are neglectful, they s.h.i.+ft the blame onto the council, and insist that the difficulty lies in insufficient legislation. Under such conditions, the average citizen has no way of telling where the blame really lies.

At present, there is no attempt at co-ordination between the legislative, executive, and judicial departments. On the other hand, there is often open rupture between them. For years before the commission form of government was adopted in Galveston, there was open warfare between the legislative and executive departments, which saddled upon the city a bonded debt of many thousands of dollars. In our state, there is a munic.i.p.ality in which the two departments of government are defying each other. Both are exercising legislative and administrative authority until the citizens of that place are at a loss to know which is right. This is admittedly a deplorable state of affairs, yet it is the logical result of forcing upon the city a form of government entirely unsuited for its needs. Moreover, this lack of co-ordination and responsibility has resulted in the confusion of powers and the creation of needless boards and committees. A recent investigation in Philadelphia showed that it had four boards with power to tear up the streets at will, but none to see that they were properly relaid.

Chicago finds herself possessed of eight different tax levying bodies, while in New York City there are eighty different boards or individuals who have power to create debt. Is it any wonder that inefficiency and graft infest such a maze of boards, councils and committees? We see, then, that the present system of separation of powers produces inefficiency through a confusion of functions; it does away completely with the system of checks and balances and results in utter lack of responsibility and co-ordination of departments.

Honorable Judges, if we are ever to arrive at a solution of our munic.i.p.al problem, we must concentrate munic.i.p.al authority; we must co-ordinate departments, eliminate useless boards and committees and fix absolutely and completely individual responsibility. This, we propose to do by establis.h.i.+ng a commission form of government, where all governmental authority is vested in one small body of men, who individually act as the heads of administrative departments, but who collectively pa.s.s the needed legislation. Thus, instead of a council with restricted powers and divided authority, we have a few men a.s.suming positions of genuine responsibility, as regards both the originating and enforcing of laws. My colleagues will show that such a concentration of powers in one small body is necessary and desirable, both from the legislative and administrative point of view.

Such a concentration is desirable, since it is accompanied by a corresponding concentration of personal responsibility. This is secured in the commission system. Responsibility in administration is secured, because each commissioner is at the head of a department, for the efficient and honest conduct of which he alone is held personally responsible. Responsibility in legislation is secured, because, first, the body of legislators is comparatively small. Second, the very fact that each commissioner possesses information essential to intelligent action, places upon the commission itself absolute responsibility. Such a system makes it impossible to s.h.i.+ft responsibility from one branch to the other, and guarantees to us better and more efficient administration of our munic.i.p.al affairs for it eliminates all useless boards and committees and fixes absolutely and completely individual responsibility.

Mr. Earl Stewart, the first speaker on the Negative, said:

We wish it understood at the outset that no one deplores the useless boards and complicated machinery in many of our American cities more than do the Negative.

Before going a step farther let us get right as to what we mean by a commission form. The gentlemen state that they are standing for a concentration of all power in one small body. Honorable Judges, they are standing for something different. It is possible to concentrate all authority in one body and yet have the different functions performed by separately const.i.tuted bodies. For example, the cabinet system of Germany, where all governing power is vested in the legislative body which in turn delegates all administrative functions to the cabinet. Thus the legislative body is directly responsible, having ultimate authority, yet the actual exercise of power is done by distinct bodies. Now how is it with the commission?

There, not only does one body have ultimate authority, but it actually conducts administration as well as legislation. Quoting from Sec. 7 of the Des Moines charter, which is typical of every commission form charter in this regard, it says: "All legislative, executive, and judicial functions of the city shall be placed in the hands of the commissioners who shall exercise those functions." The Affirmative, then, are standing for fusion of functions, and not concentration of powers.

The Negative do not defend the evils of present city organization.

The Negative believe that far-reaching reforms must be inst.i.tuted before we shall enjoy munic.i.p.al success. The issue then is, does the commission form, or do the reforms proposed by the Negative, offer the more satisfactory solution of our munic.i.p.al problems?

The Negative propose, first, that the form of organization shall embody a proper correlation or departments.

In the early council system the functions of the legislative and executive departments so overlapped that there was continual conflict of authority. Under the board system the two departments were almost disconnected, so that the legislative department could not hold the executive accountable to the will of the people. In many forms today, as the gentlemen have depicted, the relations between the departments are such that responsibility cannot be fixed.

But, Honorable Judges, these instances of failure do not show that it is impossible to preserve a proper division of functions, for every conspicuous example of munic.i.p.al success in the world is based upon the proper correlation between the legislative and administrative departments. Munic.i.p.al success in Europe is an established fact. There we find the cabinet form. A similar form is in vogue in Toronto, Canada, which Mayor Coatswain says is most gratifying to the public. Says Rear Admiral Chadwick: "The city of Newport, Rhode Island, has now a form of government that awakens the interest of the citizens, keeps that interest awake, and conducts its affairs in obedience to the wishes of the majority." Charleston, S. C., Elmira, New York, Los Angeles, Cal., are but a few of the typical American cities which have successfully adopted the ordinary mayor and council form. Says Mayor Rhett, of Charleston: "I am the executive of a city that has been under a mayor and council for over one hundred years. It is quite as capable of prompt action on any matter as any business corporation." The National Munic.i.p.al League, composed of such men as Albert Shaw, of New York City, and Professor Rowe of the University of Pennsylvania, appointed a committee to formulate a definite program of reform. This committee did not even consider the abandoning of distinct legislative and administrative bodies, but, after three years of unremitting effort, presented a working system, embodying, in the words of the committee itself, the "essential principle of all successful government," namely, the proper correlation between the legislative and administrative departments. That program has left marked traces in the const.i.tution of Virginia, Alabama, Colorado, New York, Wisconsin, Michigan, and Delaware.

Proper correlation between departments is best facilitated in the cabinet form, because all governing power is vested in the legislative body, which in turn delegates all administrative functions to the cabinet. However, many cities have properly correlated mayor and council by utilizing the model charter of the National Munic.i.p.al League. The Negative, therefore, is here to promulgate no specific form for all American cities: conditions in Boston may require a different mechanism from that in San Francisco, but whatever form, the underlying principle of a proper division of functions must be embodied. The Affirmative must admit that proper correlation of departments has brought about munic.i.p.al success, as far as mere organization can do so, yet, notwithstanding that, after fifteen years of misrule under the commission form in Sacramento the freeholders by unanimous choice again adopted distinct legislative and administrative bodies; and that the commission form has lately operated but a few years in a few small cities, amid aroused civic interest. The Affirmative would abolish at one blow the working principle of successful city organization in France, Germany, England, Canada, and unnumbered cities in the United States.

In the second place, evils in our cities are due to bad social and economic conditions. Harrisburg, Pa., was notoriously corrupt. A spirit of reform aroused the citizens, and Harrisburg stands today as a remarkable example of efficient government, yet the form of organization has been unchanged.

In many of our large cities there is a feeble civic spirit, due, in part, to undesirable immigrants, the prey to the boss, and utterly lacking in inherited traditions so essential to the capacity of self-government. Another instance: the mutual taxing system has fostered public extravagance and loss of interest on the part of the taxpayer. Again, favor-seeking corporations have continually employed corrupt methods. James Bryce says that in the development of a stronger sense of civic duty rather than any change in the form of government lies the ultimate hope of munic.i.p.al reform.

A third cause of munic.i.p.al ills is that of poor business methods.

First, unjust election laws and lack of proper primaries have permitted the corrupt arts of the caucus politician. Second, lack of a uniform system of accounting has served only to conceal the facts, resulting in apathy on the part of the people, diffusion of responsibility, and widespread corruption among officials. Third, lack of publicity of proceedings has protected graft. Fourth, lack of civil service has perpetuated the spoils system.

All these can and are being remedied. The Bureau of Munic.i.p.al Research shows plainly that it is not necessary to change fundamental principles to secure business efficiency. It reorganized the Real Estate Bureau of New York that eluded all graft charges and made 100 per cent profits. The Department of Finance, heretofore unable to tell whether taxes were collected, is reorganized from top to bottom. Through the glaring light of publicity, the bureau collected more than a million dollars for paving done at the public's expense between the street-car company's rails. The old conditions, where examination of the books of any department involved weeks of labor, have given way to a uniform system of public accounting. In the words of the Springfield, Ma.s.s., _Republican_, "The work of the Bureau of Public Research is far more fundamental than the question of subst.i.tuting city organization with a commission."