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STUDIES IN CIVICS
BY JAMES T. McCLEARY, M.C.
LATE TEACHER OF CIVICS AND HISTORY IN THE STATE NORMAL SCHOOL
MANKATO, MINNESOTA
LIFE MEMBER MINNESOTA HISTORICAL SOCIETY
REVISED TO 1897
from AMERICAN EDUCATIONAL SERIES
[Illustration: (House of Representatives) UNITED STATES CAPITOL (Senate.)]
TO THE MEMBERS OF MY CLASSES IN CIVICS, WHOSE QUESTIONS HAVE AIDED ME IN
DETERMINING WHAT SUBJECTS TO TREAT, AND WHOSE EARNESTNESS AND INTELLIGENCE
HAVE MADE IT A PLEASURE TO BE THEIR TEACHER, THIS BOOK IS AFFECTIONATELY
INSCRIBED.
PREFACE.
The thought constantly in mind in the preparation of this book has been to
furnish useful material in usable form.
Attention is invited to the scope of the work. The Constitution of the
United States, not a mere abstract of it but a careful study of the text,
is properly given much space but is not allowed a monopoly of it. Each of
our governmental institutions deserves and receives a share of
consideration. The order of presentation--beginning with the town, where
the student can observe the operations of government, and proceeding
gradually to the consideration of government in general--is based upon
conclusions reached during eighteen years of experience in teaching this
subject.
Matter to be used chiefly for reference is placed in the appendix.
Attention is asked to the amount of information which, by means of
tabulations and other modes of condensation, is therein contained.
Documents easily obtainable, such as the Declaration of Independence, are
omitted to make room for typical and other interesting documents not
usually accessible.
Is this book intended to be an office-holders' manual? No; but it _is_
intended to help students to get an insight into the way in which public
business is carried on.
Is it designed as an elementary treatise on law? No; but the hope is
indulged that the young people who study it will catch something of the
_spirit_ of law, which to know is to respect.
CONTENTS.
PREFACE,
TO TEACHERS,
TO STUDENTS,
PRELIMINARY CHAPTER.
GOVERNMENT: WHAT IT IS AND WHY IT IS,
PART I.--GOVERNMENT WITHIN THE STATE.
CHAPTER.
I.--THE TOWN: WHY AND HOW ORGANIZED, ETC.,
II.--PRIMITIVE MODES OF ADMINISTERING JUSTICE,
III.--PROCEEDINGS IN A JUSTICE COURT,
IV.--THE INCORPORATED VILLAGE,
V.--THE CITY,
VI.--THE COUNTY,
VII.--ESTABLISHING JUSTICE IN THE COUNTY,
VIII.--HISTORICAL,
PART II.--THE STATE.
IX.--STATES: WHY AND HOW CREATED,
X.--STATE CONSTITUTIONS,
XI.--DEPARTMENTS OF GOVERNMENT,
XII.--THE LEGISLATIVE DEPARTMENT,
XIII.--THE EXECUTIVE DEPARTMENT,
XIV.--OTHER STATE OFFICERS,
XV.--THE JUDICIAL DEPARTMENT,
XVI.--RETROSPECT AND PROSPECT,
PART III.--THE NATION.
XVII.--THE CAUSES OF THE REVOLUTION,
XVIII.--THE ARTICLES OF CONFEDERATION,
XIX.--THE ORIGIN OF THE CONSTITUTION,
XX.--THE CONSTITUTION: PREAMBLE,
XXI.--STRUCTURE OF THE LEGISLATIVE BRANCH,
XXII.--POWERS OF CONGRESS,
XXIII.--THE EXECUTIVE BRANCH,
XXIV.--THE JUDICIAL BRANCH,
XXV.--THE RELATIONS OF THE STATES,
XXVI.--MODES OF AMENDING THE CONSTITUTION,
XXVII.--MISCELLANEOUS PROVISIONS,
XXVIII.--RATIFICATION OF THE CONSTITUTION,
XXIX.--THE AMENDMENTS,
PART IV.--GOVERNMENT IN GENERAL.
XXX.--FORMS OF GOVERNMENT,
PART V.--COMMERCIAL LAW.
XXXI.--CONTRACTS,
XXXII.--AGENCY,
XXXIII.--PARTNERSHIP,
XXXIV.--CORPORATIONS,
XXXV.--COMMERCIAL PAPER,
APPENDIX.
A.--FORMS,
B.--TABLES,
C.--HOW SOME THINGS ARE DONE,
D.--SOME PRINCIPLES OF INTERNATIONAL LAW,
E.--DOCUMENTS,
GENERAL INDEX,
TO TEACHERS.
Highly competent teachers are the very ones who receive most kindly
suggestions meant to be helpful. For such these words are intended.
The local organizations are so related that it is advisable for all
classes to consider each of them. Especial attention should, however, be
given to the organization (town, village or city) in which the school is.
Here considerable time can be profitably spent, and the matter in the book
may be much amplified. Here must be laid the basis of future study.
Certain typical instruments deserve careful study. For a student to have
made out understandingly an official bond, for instance, is for him to
have gained greatly in intelligence.
It will be of great advantage to the class for the teacher to have a
complete set of the papers whose forms are given in Appendix A. These may
be obtained at almost any newspaper office, at a cost of about 50 cents.
A scrap-book or series of envelopes in which to file newspaper clippings
illustrative of the every-day workings of government, may be made very
useful. Pupils should be permitted and encouraged to contribute.
One good way to review is for the teacher to give out, say once in two
weeks, a set of twenty-five or more questions, each of which may be
answered in a few words; have the pupils write their answers; and the
correct answers being given by teacher or pupils, each may mark his own
paper. Each pupil may thus discover where he is strong and where weak.
The questions given for debate may be discussed by the literary society.
Or for morning exercises, one student may on a certain day present one
side of the argument, and on the following day the negative may be brought
out by another student.
A student should not be required to submit his good name to the chances of
answering a certain set of questions, however excellent, at the
examination, when from anxiety or other causes he may fall far short of
doing himself justice. One good plan is to allow each student to make up
50 percent of his record during the progress of the work, by bringing in,
say, five carefully prepared papers. One of these may be a _resume_ of
matter pertaining to his local organization; another may be an account of
a trial observed, or other governmental work which the student may have
seen performed; a third may be a synopsis of the president's message; the
fourth, a general tabulation of the constitution; the fifth, a review of
some book on government, or a paper on a subject of the student's own
choice.
Among reference books, every school should have at least the Revised
Statutes of the state and of the United States, the Legislative Manual of
the state, a good political almanac for the current year, the
Congressional Directory, and Alton's Among the Lawmakers.
A Teachers' Manual, giving answers to the pertinent questions contained
herein, and many useful hints as to the details of teaching Civics, is
published in connection with this book.
TO STUDENTS.
You will notice in chapter one that at the close of nearly every paragraph
questions are thrown in. They are inserted to help you cultivate in
yourself the very valuable habit of rigid self-examination. We are all
liable to assume too soon that we have the thought. Not to mar the look of
the page, the questions are thenceforward placed only at the close of the
chapters.
You will soon discover that these questions are so framed as to require
you to read not only on the lines and _between_ them, but also right down
_into_ them. Even then you will not be able to answer all of the
questions. The information may not be in the book at all. You may have to
look around a long time for the answer.
If you occasionally come to a question which you can neither answer nor
dismiss from your mind, be thankful for the question and that you are
bright enough to be affected in this way. You have doubtless discovered
that some of your best intellectual work, your most fruitful study, has
been done on just such questions.
After studying a provision of the constitution of the United States, you
should be able to answer these four questions: 1. What does it _say?_ 2.
What does it _mean?_ 3. _Why_ was the provision inserted? 4. How is it
carried into practical effect? Some of the provisions should be so
thoroughly committed to memory that at any time they may be accurately
quoted. The ability to quote exactly is an accomplishment well worth
acquiring.
After you have got through with a line of investigation it is a good thing
to make a synopsis of the conclusions reached. Hints are given at
appropriate places as to how this may be done. But the doing of it is left
to you, that you may have the pleasure and profit resulting therefrom.
Finally, without fretting yourself unnecessarily, be possessed of a "noble
dissatisfaction" with vague half-knowledge. Try to see clearly. Government
is so much a matter of common sense, that you can assuredly understand
much of it if you determine so to do.
STUDIES IN CIVICS.
PRELIMINARY CHAPTER.
GOVERNMENT: WHAT IT IS AND WHY IT IS.
At the very beginning of our study, two questions naturally present
themselves: First. What is government? Second. Why do we have such a
thing?
These questions are much easier to ask than to answer. The wisest men of
the ages have pondered upon them, and their answers have varied widely.
Yet we need not despair. Even boys and girls can work out moderately good
answers, if they will approach the questions seriously and with a
determination to get as near the root of the matter as possible.
Beginning without attempting an exact definition of government, because we
all have a notion of what it is, we notice that only certain animals are
government-forming. Among these may be mentioned the ant, the bee, and
man. The fox, the bear, and the lion represent the other class. If we
should make two lists, including in one all the animals of the first class
and in the other all those of the second class, we should make this
discovery, that government-forming animals are those which by nature live
together in companies, while the other class as a rule live apart. The
generalization reached is, that _only gregarious animals form
governments_. We would discover upon further investigation that the
greater the interdependence of the individuals, the more complex the
government.
Confining our attention now to man, whose government is the most complex,
we may put our generalization into this form: Man establishes government
because _by nature he is a social being_. This may be taken as the
fundamental reason. Let us now proceed to trace the relation between cause
and effect.
In order that people may go from place to place to meet others for
pleasure or business, roads are needed. Some of these roads may cross
streams too deep for fording, so bridges must be provided. These things
are for the good of all; they are public needs, and should be provided by
the public. But "what is every body's business is nobody's business." It
follows that the public must appoint certain persons to look after such
things. By the act of appointing these persons, society becomes to that
extent organized. We see, then, that society organizes in order to provide
certain public improvements, _to carry on certain public works_.
For his own preservation, man is endowed with another quality, namely,
selfishness. Sometimes this is so strong in a person as to cause him to
disregard the rights of others. By experience man has learned that _every_
person is interested in seeing that conflicting claims are settled on a
better basis than that of the relative strength of the contestants. In
other words, all are interested in the prevalence of peace and the
rightful settlement of disputes. That this work may surely be done, it is
obvious that society must appoint certain persons to attend to it; that
is, society organizes _to establish justice._
Communities take their character from that of the individuals composing
them, therefore communities are selfish. A third reason appears, then, for
the organization of society, namely, _the common defense._
But this organization of society is the very thing that we call
government. We may, therefore, answer the two questions proposed at the
beginning in this way:
_Government is the organization of society to carry on public works, to
establish justice, and to provide for the common defense._
The term _government_ is also applied to the body of persons into whose
hands is committed the management of public affairs.
To show that government is a necessity to man, let us imagine a company of
several hundred men, women, and children, who have left their former home
on account of the tyranny of the government. So harshly have they been
treated, that they have ascribed all their misery to the thing called
government, and they resolve that they will have none in their new home.
They discover an island in the ocean, which seems never to have been
occupied, and which appears "a goodly land." Here they resolve to settle.
They help each other in building the houses; each takes from the forest
the wood that he needs for fuel; they graze the cattle in a common meadow;
they till a common field and all share in the harvest. For a time all goes
well. But mutterings begin to be heard. It is found that some are
unwilling to do their share of the work. It becomes manifest to the
thoughtful that community of property must be given up and private
ownership be introduced, or else that the common work must be regulated.
In the latter case, government is established by the very act of
regulation; they are establishing justice. If they resolve to adopt
private ownership, industry will diversify, they will begin to spread out
over the island, and public improvements will be needed, such as those
specified above. The conflict of interests will soon necessitate tribunals
for the settlement of disputes. And thus government would, in either case,
inevitably be established. A visit from savages inhabiting another island
would show the utility of the organization for common defense.
Thus government seems a necessary consequence of man's nature.
In this country we have the general government and state governments, the
latter acting chiefly through local organizations. For obvious reasons,
the common defense is vested in the general government. For reasons that
will appear, most of the work of public improvement and establishing
justice is entrusted to the state and local governments.
These we shall now proceed to study, beginning at home.
QUERIES.--Would government be necessary if man were morally perfect? Why
is this organization of society called _government?_
PART I.
GOVERNMENT WITHIN THE STATE.
CHAPTER I.
THE TOWN: WHY AND HOW ORGANIZED; OFFICERS; TOWN BUSINESS.
Necessity.--Now instead of a company going to an island to found new
homes, let us think of immigrants to a new part of a state.
Like the people on the island, they will need roads, bridges, and schools;
and they will desire to preserve the local peace. Hence they, too, will
need to organize as a political body.
Size.--Since these people are going to meet at stated periods to agree
upon the amounts to be put into public improvements and to select officers
to carry out their wishes, the territory covered by the organization
should not be very large. It should be of such a size that every one
entitled to do so can reach the place of meeting, take part in the work
thereof, and return home the same day, even if he has no team.
Basis.--Will anything be found already done to facilitate matters? Yes.
Those parts of the state open to settlement will be found surveyed into
portions six miles square. These squares are called in the survey
"townships," plainly indicating that they were meant by the general
government to be convenient bases for the organization of "towns." And
they have been so accepted.
Draw a township. Subdivide it into sections and number them in accordance
with the U.S. survey. Subdivide a section into forties, and describe each
forty. Why do we have such divisions of a township? Locate your father's
farm. What is the difference between a _township_ and a _town?_ [Footnote:
In some states the terms "congressional township" and "civil township" are
used.]
Corporate Powers.--A town is in some respects like an individual. It can
sue and be sued. It can borrow money. It can buy or rent property needed
for public purposes. And it can sell property for which it has no further
use. Because a town can do these things as an individual can it is called
a corporation, and such powers are called corporate powers.
When we say that "the town" can do these things, we mean of course that
the people of the town as a political body can do them, through the proper
officers.
Officers Needed.--The town needs one or more persons to act for it in its
corporate capacity and to have general charge of its interests.
Should there be one, or more than one? Why? How many are there?
Every business transaction should be recorded, and the town should have a
recording officer or secretary.
What is the recording officer in this town called? What is his name? Which
officer would naturally be the custodian of public papers?
It takes money to build bridges and to carry on other public works, and
the town needs some one to take charge of the public funds.
What is the officer called? Who occupies that position in this town? How
is he prevented from misappropriating the money belonging to the people?
Our plan for raising public money for local purposes is, in general, that
each person shall contribute _according to the value of his property._
Hence the town needs a competent and reliable man to value each person's
property.
What is such an officer called? What is the name of the one in this town?
Is any property exempt from taxation? Why? Just how is the value of the
real estate in the town ascertained for the purpose of taxation? The value
of the personal property? Get a list and find out what questions this
officer asks. Read the statement at the bottom of the list carefully, and
then form an opinion of a person who would answer the questions
untruthfully for the purpose of lowering his taxes.
The immediate care of the roads will demand the attention of one or more
officers.
How many in this town? What are such officers called? Name them.
Differences about property of small value sometimes arise, and to go far
from home to have them settled would involve too much expense of time and
money; hence the necessity of local officers of justice. These officers
are needed also because petty acts of lawlessness are liable to occur.
How many justices of the peace are there in each town? Why that number?
What is the extent of their jurisdiction?
The arrest of criminals, the serving of legal papers, and the carrying out
of the decisions of justices of the peace, make it necessary to have one
or more other officers.
What are such officers called? How many in each town? Why? Look up the
history of this office; it is interesting.
The public schools of the town may be managed either by a town board of
trustees, who locate all of the school-houses, engage all of the teachers,
and provide necessary material for all of the schools in the town; or the
town may be divided into districts, the school in each being managed by
its own school board.
Does the township system or the district system prevail in this state?
Name some state in which the other system prevails.
How Chosen.--In this country most of the public officers are chosen by the
people interested. The great problem of election is how to ascertain the
real will of those entitled to express an opinion or have a choice. And
all the arrangements for conducting elections have in view one of two
things: either to facilitate voting or to prevent fraud. The town serves
as a convenient voting precinct.
Find out from the statutes or from the town manual or by inquiry, when the
town meeting is held; how notice is given; how it is known who may vote;
who are judges of election; how many clerks there are; how voting is done;
how the votes are counted and the result made known; what reports of the
election are made. Give the reason for each provision. Can a person vote
by proxy? Why? What is to prevent a person from voting more than once? If
the polls are open seven hours, and it takes one minute to vote, how many
persons can vote at one polling place? What may be done in case there are
more than that number of voters in the town? How are road overseers
elected, and in what part of the day? Why then? What other business is
transacted at town meeting? How do the people know how much money will be
needed for the coming year's improvements? How do they learn the nature
and expense of last year's improvements?
Give four general reasons for our having towns.
* * * * *
PRACTICAL WORK FOR STUDENTS.
I. ORGANIZING A TOWN.
Prepare in due form a petition to the proper authorities asking that a new
town be organized. [Footnote: For forms see Appendix. If necessary, all
the pupils in the room or school may act as "legal voters." (This
"Practical Work" may be omitted until the review, if deemed best.)] Be
sure that the order establishing the new town is duly made out, signed,
attested and filed. Give reasons for each step.
II. HOLDING ANNUAL TOWN MEETING.
1. Preliminary.--What report does each road overseer make to the
supervisors? When is the report due? What do the supervisors require this
information for?
Who gives notice of the town meeting? When? How?
When does the town treasurer make his report to the persons appointed to
examine his accounts? When does this examination take place? What is its
purpose?
What report does the board of supervisors make to the people at the town
meeting? When is it prepared? Why is it necessary?
Why so many preliminaries?
2. The Town Meeting.--That everything may be done "decently and in order,"
it will be necessary to consult carefully the statutes or the town manual.
Be sure
(a) That the proper officers are in charge.
(b) That the order of business is announced and followed.
(c) That the polls are duly declared open.
(d) That the voting is done in exact accordance with law.
(e) That general business is attended to at the proper time.
(f) That reports of officers are duly read and acted upon.
(g) That appropriations for the succeeding year are duly made.
(h) That the minutes of the meeting are carefully kept.
(i) That the polls are closed in due form.
(j) That the votes are counted and the result made known according to law.
(k) That all reports of the meeting are made on time and in due form.
3. After Town Meeting.--See that all officers elected "qualify" on time
and in strict accordance with law. Especial care will be needed in making
out the bonds.
Town clerk must certify to proper officer the tax levied at town meeting.
III. LAYING OUT AND MAINTAINING ROADS.
1. Laying out a Road.--Make out a petition for a town road, have it duly
signed and posted. In due season present it to the supervisors who were
elected at your town meeting.
The supervisors, after examining the petition carefully and being sure
that it is in proper form and that it has been duly posted, will appoint a
time and place of hearing and give due notice thereof.
When the day of hearing arrives they will examine the proofs of the
posting and service of the notices of hearing before proceeding to act
upon the petition.
Having heard arguments for and against the laying of the road, the
supervisors will render their decision in due form.
In awarding damages, the supervisors will probably find four classes of
persons: first, those to whom the road is of as much benefit as damage,
and who admit the fact; second, those who should have damages, and are
reasonable in their demands; third, those who claim more damages than they
are in the judgment of the supervisors entitled to; and fourth, those who
from some cause, (absence, perhaps,) do not present any claim. From the
first class, the supervisors can readily get a release of damages. With
the second, they can easily come to an agreement as to damages. To the
third and fourth, they must make an award of damages. Let all of these
cases arise and be taken care of.
The supervisors must be careful to issue their road order in proper form,
and to see that the order, together with the petition, notices, affidavits
and awards of damages, are filed correctly and on time. The town clerk
must read the law carefully to ascertain his duty, and then perform it
exactly. See that fences are ordered to be removed. Let one of the persons
who feels himself aggrieved by the decision of the supervisors, "appeal"
to a proper court. Let this be done in due form. As each step is taken,
let the reasons for it be made clear.
2. Maintaining Roads.--Road overseers return the list of persons liable to
road labor. How are these facts ascertained, and when must the "return" be
made?
Supervisors meet and assess road labor, and sign road tax warrants. When
and how is this done?
How is the road tax usually paid? How else may it be paid? How does the
overseer indicate that a person's tax is paid? If a person liable to road
tax does not "commute," and yet neglects or refuses to appear when duly
notified by the road overseer, what can the latter do about it? How is
delinquent road tax collected? How can a person who has paid his tax prove
that he has paid it?
Under which of the three great purposes of government mentioned in the
preliminary chapter does the making of roads come?
THE TOWN--_Continued_.
THE SCHOOLS.
Does the town system or the district system prevail in this state? If the
latter, tell how a school district is organized. Give an account of the
organization of this district.
How many and what officers have charge of the schools? State the duties of
each. Name the officers in this district. When are the officers chosen,
and how long do they serve? Are all chosen at once? Why? How do they
"qualify?" Are women eligible to school offices? To any other?
Did you ever attend the annual meeting? When is it held? Why held then?
Who take part? What business is transacted? What are "special" school
meetings?
What expenses must be met in having a school? Where does the money come
from? How does the treasurer get it into his possession? What is to
prevent his misusing it?
By whom is the teacher chosen? Why not elect the teacher at the annual
meeting? Get a teacher's contract and find out who the contracting parties
are, and what each agrees to do. Why is the contract in writing? How many
copies of it are made? Who keep them, and why?
If you had a bill against the district, how would you proceed to get your
money? If the district refused or neglected to pay you, what could you do?
If some one owed the district and refused to pay, what could it do?
Who owns the school buildings and grounds? How was ownership obtained? If
it seemed best to erect a new schoolhouse in some other part of the
district, what could be done with the present buildings and grounds? Could
the district buy land for other than school purposes? Could it lend money
if it had any to spare? If the district had not money enough to erect its
buildings, what could it do? What are the corporate powers of a district?
_Questions for Debate._
_Resolved,_ That it is unfair to tax a bachelor to support a school.
_Resolved,_ That the town system is better than the district system.
CHAPTER II.
PRIMITIVE MODES OF ADMINISTERING JUSTICE.
Trial by Ordeal.--Boys settle some matters about which they cannot agree
by "tossing up a penny," or by "drawing cuts." In a game of ball they
determine "first innings" by "tossing the bat." Differences in a game of
marbles, they settle by guessing "odd or even," or by "trying it over to
prove it." In all these modes of adjustment there is an appeal to
_chance._ Probably behind these practices is the feeling that the boy who
ought to win will somehow guess right. This appealing to chance to settle
questions of fact is characteristic of society in its primitive state.
Modes of establishing justice similar in principle to these boy practices
prevail to this day among superstitious peoples. They have prevailed even
in Europe, not only among people of low mental power, but also among the
cultured Greeks. Among our own Saxon ancestors the following modes of
trial are known to have been used: A person accused of crime was required
to walk blindfolded and barefoot over a piece of ground on which hot
ploughshares lay at unequal distances, or to plunge his arm into hot
water. If in either case he escaped unhurt he was declared innocent. This
was called Trial by Ordeal. The theory was that Providence would protect
the innocent.
Trial by Battle.--Sometimes boys settle their disputes by _fighting_.
This, too, was one of the modes of adjudication prevalent in early times
among men. Trial by Battle was introduced into England by the Normans. "It
was the last and most solemn resort to try titles to real estate."
[Footnote: Dole's Talks about Law, p. 53.] The duel remained until
recently, and indeed yet remains in some countries, as a reminder of that
time. And disputes between countries are even now, almost without
exception, settled by an appeal to arms. Perhaps the thought is that "he
is thrice armed that hath his quarrel just." Sometimes when one of the
boys is too small to fight for his rights, another boy will take his part
and fight in his stead. Similarly, in the Trial by Battle, the parties
could fight personally or by "champion." Interesting accounts of this mode
of trial are given by Green and Blackstone, and in Scott's "Talisman."
Arbitration.--Two boys who have a difference may "leave it to" some other
boy in whom they both have confidence. And men did and do settle disputes
in a similar way. They call it settlement by Arbitration.
A boy would hardly refer a matter for decision to his little brother. Why?
Folk-Moot.--Still another common way for two boys to decide a question
about which they differ is to "leave it to the boys," some of whom are
knowing to the facts and others not. Each of the disputants tells his
story, subject to more or less interruption, and calls upon other boys to
corroborate his statements. The assembled company then decides the matter,
"renders its verdict," and if necessary carries it into execution. In this
procedure the boys are re-enacting the scenes of the _Folk-moot_ or town
meeting of our Saxon ancestors.
Boy-Courts.--Let us look at this boy-court again to discover its principal
elements.
In the first place, we see that _every_ boy in the crowd feels that he has
a right to assist in arriving at the decision, that "the boys"
collectively are to settle the matter. In other words, that _the
establishment of justice is a public trust._ So our Saxon forefathers used
to come together in the Folk-moot and as a body decide differences between
man and man. The boys have no special persons to perform special duties;
that is, no court officers. Neither, at first, did those old Saxons.
Secondly, in the boy-court the _facts_ in the case are brought out by
means of _witnesses_. So it was in the Folk-moot, and so it is in most
civilized countries today. Among those old Saxons the custom grew up of
allowing the facts in the case to be determined by _twelve_ men of the
neighborhood, _who were most intimately acquainted with those facts_. When
they came over to England these Saxons brought this custom with them, and
from it has been developed the Trial by Jury. The colonists of this
country, most of whom came from England, brought with them this important
element in the establishment of justice, and it is found today in nearly
all the states.
Again, when in the boy-court the facts of the case have been established
and it becomes necessary to apply the rules of the game to the particular
case, the boys frequently, invariably in difficult cases, turn to some boy
or boys known to be well versed in the principles of the game, and defer
to his or their opinion. And, similarly, in the Folk-moot, much deference
was paid in rendering judgment to the old men who for many years had
helped to render justice, and who, in consequence, had much knowledge of
the customs, unwritten laws, in accordance with which decisions were
rendered. In this deference to one or more persons who are recognized as
understanding the principles involved in the case, we see the germ of
_judgeship_ in our present courts.
And finally, a boy naturally reserves the right, mentally or avowedly, of
_appealing_ from the decision of the boys to the teacher or his father, in
case he feels that he has been unjustly dealt with.
Thus we see that the principal elements of the courts of today, the
establishment of justice as a public trust, the determination of the facts
by means of witnesses and a jury, the application of the law by one or
more judges, the right of appeal to a higher court, are not artificial,
but in the nature of things. We inherited them from our primitive
ancestors, and in that sense they may be said to have been imposed upon
us. But their naturalness appears in the fact that boys when left to
themselves introduce the same elements into their boy-courts.
CHANGES MADE IN COURSE OF TIME.
In the Jury System.--The jurors were originally, as has been said, persons
acquainted with the facts. After the Norman conquest, it came about that
the jury consisted of twelve persons disinterested and _unacquainted_ with
the facts. Probably the change gradually came about from the difficulty of
getting twelve men eligible to the jury who knew of the facts. Persons
ineligible to the jury were then invited to give it information, but not
to join it in the verdict. The next step, taken about 1400 A.D., was to
require these witnesses to give their evidence in open court, subject to
examination and cross-examination. The testimony of the witnesses,
however, was still merely supplementary. Then in the time of Queen Anne,
about 1707 A.D., it was decided that any person who had knowledge of the
facts of the case should appear as a _witness_, that the jury should
consist of persons unacquainted with the facts, and that the verdict
should be rendered in accordance with the evidence. And so it is to this
day, both in England and America. [Footnote: The best history of the jury
system is probably Forsyth's.]
"It is not true, however, that a man is disqualified from serving on a
jury simply because he has heard or read of the case, and has formed and
expressed some impression in regard to its merits; if it were, the
qualifications for jury service in cases that attract great attention
would be ignorance and stupidity. The test, therefore, is not whether the
juryman is entirely ignorant of the case, but whether he has formed such
an opinion as would be likely to prevent him from impartially weighing the
evidence and returning a verdict in accordance therewith." [Footnote:
Dole's Talks about Law, p. 59.]
In the Officers.--As has been said, there were in the old Saxon courts no
court officers. But quite early the necessity for such officers became
manifest. And several of the offices then established have come down to
us. Some of them, however, have been so modified in the progress of time
as to be hardly recognizable.
CHAPTER III.
PROCEEDINGS IN A JUSTICE COURT.
I. IN ORDINARY CIVIL ACTIONS.
Definitions.--A _Civil Action_ is one having for its object the protection
or enforcement of a private right or the securing of compensation for an
infraction thereof. For instance a suit brought to secure possession of a
horse, or to secure damages for a trespass is a civil action. The person
bringing the action is called the _plaintiff_; the one against whom it is
brought, the _defendant_. The plaintiff and the defendant are called the
_parties_ to the action.
_Jurisdiction._--A justice of the peace has jurisdiction within the county
in most civil actions when the amount in controversy does not exceed a
certain sum, usually one hundred dollars. (See p. 296.)
PRELIMINARY TO TRIAL.
_Complaint and Summons._--In bringing a civil action, the plaintiff or his
agent appears before the justice of the peace and files a Complaint. In
this he states the cause of the action. The justice then issues a Summons.
This is an order to a sheriff or constable commanding him to notify the
defendant to appear before the justice at a certain time and place to make
answer to the plaintiff's demands. (Form on p. 277.)
Sometimes on bringing an action or during its progress a writ of
attachment is obtained. To secure this writ, the creditor must make
affidavit to the fact of the debt, and that the debtor is disposing or
preparing to dispose of his property with intent to defraud him, or that
the debtor is himself not reachable, because hiding or because of
non-residence. In addition, the creditor must give a bond for the costs of
the suit, and for any damages sustained by the defendant. The justice then
issues the writ, which commands the sheriff or constable to take
possession of and hold sufficient goods of the debtor and summon him as
defendant in the suit.
Another writ sometimes used is the writ of replevin. To secure this writ,
the plaintiff must make affidavit that the defendant is in wrongful
possession of certain (described) personal property belonging to the
plaintiff. The plaintiff then gives a bond for the costs of the suit and
for the return of the property in case he fails to secure judgment, and
for the payment of damages if the return of the property cannot be
enforced, and the justice issues the writ. This commands the sheriff or
constable to take the property described and turn it over to the
plaintiff, and to summon the defendant as before.
Pleadings.--The next step in the process, in any of the cases, is the
filing of an Answer by the defendant, in which he states the grounds of
his defense. The complaint of the plaintiff and the answer of the
defendant constitute what are called the pleadings. [Footnote: For a more
extensive discussion of pleadings, see chapter VII.; or Dole, pp. 30-42.]
If the answer contains a counter-claim, the plaintiff is entitled to a
further pleading called the Reply. The pleadings contain simply a
statement of the facts upon which the parties rely in support of their
case. No evidence, inference or argument is permitted in them.
Issue.--It is a principle of pleading that "everything not denied is
presumed to be admitted." The fact or facts asserted by one party and
denied by the other constitute the issue. If the defendant does not make
answer on or before the day appointed in the summons and does not appear
on that day, judgment may be rendered against him. If the plaintiff fail
to appear, he loses the suit and has to pay the costs. For sufficient
cause either party may have the suit adjourned or postponed for a short
time.
Jury.--On demand of either party a jury must be impaneled. The jury
usually consists of twelve persons, but by consent of the parties the
number may be less. The jury is impaneled as follows: The justice directs
the sheriff or constable to make a list of twenty-four inhabitants of the
county qualified to serve as jurors in the district court, or of eighteen
if the jury is to consist of six persons. Each party may then strike out
six of the names. The justice then issues a venire [Footnote: For forms,
see page 280.] to the sheriff or a constable, directing him to summon the
persons whose names remain on the list to act as jurors.
Witnesses.--If any of the witnesses should be unwilling to come, the
justice issues a subpoena [Footnote: For forms, see page 279.] commanding
them to appear. The subpoena may contain any number of names and may be
served by any one. It is "served" by reading it to the person named
therein, or by delivering a copy of it to him. A witness, however, is not
bound to come unless paid mileage and one day's service in advance.
THE TRIAL.
Opening Statement.--The usual procedure is as follows: After the jury has
been sworn, the plaintiff's attorney reads the complaint and makes an
opening statement of the facts which he expects to prove. The purpose of
the opening statement is to present the salient points of the case, so
that the importance and bearing of the testimony may be readily seen by
the jury.
Evidence.--The evidence [Footnote: The most important Rules of Evidence
are given in chapter VII.] for the plaintiff is then introduced. Each
witness, after being duly sworn, gives his testimony by answering the
questions of counsel. After the direct examination by the plaintiff's
attorney, the witness may be cross-examined by the attorney for the
defendant. When the evidence for the plaintiff is all in, the defendant's
attorney makes his opening statement, and then the witnesses for the
defense are examined. The direct examination is now, of course, conducted
by the counsel for the defendant, and the cross-examination by opposing
counsel. When all the evidence for the defense has been introduced, the
plaintiff may offer evidence in "rebuttal," that is, to contradict or
disprove new matter adduced by the defense. And the defendant may then
introduce evidence to refute matter first brought out by the rebuttal.
Argument.--The case is now ready for "argument." One attorney on each side
addresses the jury. Each tries to show that the evidence adduced has
proved the facts alleged in his pleadings, and each asks for a decision in
favor of his client. Usually the side upon which rests the burden of proof
has the closing argument.
Counsel must confine themselves to the law, the admitted facts and the
evidence.
Verdict.--The jury then retire in care of an officer to a room set apart
for their use. Here they deliberate in secret. If after a reasonable time
they cannot agree, they are discharged, and the case stands as if no trial
had taken place. But if they agree they return to the court room and
render their verdict. This is given by the foreman, and is assented to by
the rest.
Judgment.--After the verdict, the justice enters judgment in accordance
therewith. Judgment may include certain sums of money allowed to the
successful party in part compensation of his expenses. Such allowances and
certain court expenses are called "the costs."
AFTER THE TRIAL.
Appeal.--If the defeated party feels that he has not been justly dealt
with, he may ask for a new trial. If this be refused he may appeal his
case to a higher court. He must make affidavit that the appeal is not
taken for the purpose of delay, and must give bonds to cover the judgment
and the costs of appeal. The higher court affirms or reverses the
judgment, in the latter case granting a new trial.
Sometimes the case is tried anew in the higher court, just as if there had
been no trial in the justice court.
Execution.--If no appeal is taken the defeated party may "satisfy" the
judgment, that is, pay to the justice the sum specified therein. If at the
expiration of the time allowed for appeal the judgment remains
unsatisfied, the justice may issue an execution [Footnote: For forms, see
Appendix, pp. 282-3.] against the property of the debtor.
II. IN CRIMINAL ACTIONS.
_Jurisdiction._
Justices of the peace have jurisdiction throughout their respective
counties, as follows:
1. _To try_ charges where the punishment prescribed by law does not exceed
a fine of one hundred dollars or imprisonment for three months. [Footnote:
The extent of this jurisdiction varies somewhat in different states.]
2. _To examine_ persons charged with crimes greater than those specified
above, and to dismiss them or hold them for trial in a court having
jurisdiction, as the facts seem to warrant.
3. _To prevent_ crimes, by requiring reckless persons to give security to
keep the peace.
PROCEEDINGS IN CRIMINAL TRIAL.
Preliminary.
Complaint.--If a crime has been committed, the sufferer, or any one else,
may appear before the justice of the peace and make complaint, under oath,
specifying the nature of the crime, the time of its commission, and the
name of the person believed to have perpetrated it, and requesting that he
be apprehended for trial.
Warrant.--If upon careful examination of the complainant and any witnesses
whom he may bring, it appears that the offense has probably been
committed, the justice issues a warrant, reciting the substance of the
complaint, and commanding an officer to arrest the accused and produce him
for trial.
Return.--The officer arrests the accused, brings him before the justice,
and makes a return of the warrant. The return is a statement on the back
of the warrant telling how its commands have been executed. (See p. 283)
Bail.--The accused is entitled to a speedy trial. But if for good cause it
seems best to postpone it, the accused may be released from custody upon
giving sufficient bail for his appearance at the time fixed for trial. If
he cannot furnish bail, he is committed to jail or left in charge of the
officer.
Subpoena.--One good reason for postponing a trial is to enable the parties
to secure witnesses. To this end, the justice issues subpoenas. But in
this case the witnesses must come without the tender of the fee.
_The Trial._
Arraignment.--The first step in the trial proper is to inform the
defendant of the nature of the crime with which he is charged. The
accusation, as stated in the warrant, is distinctly read to him by the
justice, and he is required to plead thereto. If he pleads guilty,
conviction and sentence may follow at once. If he pleads not guilty, the
trial proceeds.
Trial.--After the joining of issue, and before the court proceeds to the
examination of the merits of the case, a jury is impaneled as in a civil
action. A jury may be waived by the defendant. Then follow the taking of
the testimony, the arguments of counsel, the consideration and verdict by
the jury. The defendant is then discharged if not guilty, or sentenced if
found guilty. The penalty depends, of course, upon the nature of the
offense.
PROCEEDINGS IN EXAMINATION.
Need of Examination.--Over crimes punishable by fine greater than $100 or
imprisonment for more than three months, a justice of the peace usually
has no jurisdiction of trial. The action must be tried in the district
court, on the indictment of a grand jury. But in the meantime the
perpetrator of a crime might escape. To prevent this, the accused may be
arrested and examined by a justice of the peace, to ascertain whether or
not there are sufficient grounds for holding him for trial.
Proceedings.--The preliminary proceedings are precisely like those in case
of a trial. Upon complaint duly made a warrant is issued, and the accused
is arrested and brought before the justice. In the presence of the
accused, the magistrate examines the complainant and witnesses in support
of the prosecution, upon oath, "in relation to any matter connected with
such charge which may be deemed pertinent."
Rights of Accused.--The accused has a right to have witnesses in his
behalf, and to have the aid of counsel, who may cross-examine the
witnesses for the prosecution.
The Result.--If it appears upon examination that the accused is innocent
of the crime, he is discharged. If his guilt seems probable, he is held to
await the action of the grand jury. In the case of some offenses bail may
be accepted. But if no suitable bail is offered, or if the offense is not
bailable, the accused is committed to jail. Material witnesses for the
prosecution may be required to give bonds for their appearance at the
trial, or in default thereof may be committed to jail.
Reports.--The justice makes a report of the proceedings in the
examination, and files it with the clerk of the court before which the
accused is bound to appear for trial.
PROCEEDINGS FOR PREVENTING CRIME.
Prefatory.--But it is better to prevent crime than to punish it. Indeed,
one reason for punishing wrongdoers is that the fear of punishment may
deter people from committing crime.
Proceedings.--As a conservator of the public peace, then, a justice may
require persons to give bonds for good behavior. The preliminary
proceedings are similar to those in the case of a trial--the complaint,
warrant and return. But the complainant simply alleges upon oath, that a
crime against his person or property has been threatened. The examination
is conducted as in case of a criminal offense.
Result.--If upon examination there appears reason to fear that the crime
will be committed by the party complained of, he shall be required to
enter into recognizance to keep the peace, failing in which he shall be
committed to jail for the time to be covered by the surety, said time not
to exceed six months.
REMARKS ON CRIMINAL TRIALS.
The care for the rights of the accused is based upon the principle in our
law, that every man shall be held innocent till _proved_ guilty. Another
principle is that a person accused of crime _cannot be tried in his
absence._ The purpose of arresting him is to secure his _presence_ at the
trial. If he can guarantee this by bail he is set at liberty, otherwise he
is confined in jail. (See p. 231.)
_Pertinent Questions._
Are the justices and constables town, county or state officers? How is it
known at the county seat who the justices and constables in each town are?
Define docket, summons, warrant, pleading, subpoena, crime, felony,
misdemeanor, venire, costs, execution, recognizance. Why are there two
justices in each town? What is meant by "change of venue?" How is an oath
administered in court? What persons may not serve as witnesses? If a
criminal should make confession of the crime to his lawyer, could the
lawyer be subpoenaed as a witness on the trial? Name some things "exempt
from execution" in this state. What is to hinder a bitter enemy of yours,
if you have one, from having you committed to prison. Can a _civil_ suit
proceed in the absence of the defendant?
_Practical Work._
Assume that John Smith bought from Reuben White a cow, the price agreed
upon being $30; that Smith refuses to pay, and White sues him. Write up
all the papers in the case, make proper entries in the docket, assessing
costs, etc.
CHAPTER IV.
THE INCORPORATED VILLAGE.
Need of.--Owing to conditions, natural and artificial, favorable to
business enterprises, people group together in certain places. Living in a
limited area, the amount of land occupied by each family is small, and the
territory is surveyed into lots and blocks. To make each homestead
accessible, streets are laid out. The distances traveled being short,
people go about principally on foot; hence the need of sidewalks. To
reduce the danger of going about after dark, street-lamps are needed. The
nearness of the houses to each other renders it necessary to take special
precautions for the prevention of fires, and for their extinguishment in
case they break out.
But to provide and maintain all these things takes money, and the people
living in the other parts of the town not sharing the benefits would
hardly like to help pay for them. Hence it is but just that the people
living in the thickly settled portion of the town should be permitted to
separate from the rest and form an organization by themselves.
Again, the circumstances being different, the regulations must be
different in this part of the town. For instance, in the country a man may
drive as fast as he pleases, while here fast driving endangers life and
must be prohibited. In the country sleigh-bells are not needed, while here
they must be used to warn people of the approach of teams. In the country,
if a man's house takes fire no other person's property is endangered; but
here the danger is such that all the people are interested in each man's
house, and the community may require that chimneys be properly constructed
and ashes safely disposed of.
How Incorporated.--Villages are, with rare exceptions, incorporated under
a general law specifying the number of inhabitants, the mode of voting on
incorporation, etc.
The method in Minnesota, which may be taken as typical, is as follows:
Upon petition of thirty or more voters resident upon the lands to be
incorporated, which lands have been divided into lots and blocks, the
county commissioners appoint a time, and give due notice thereof, when the
voters "actually residing within the territory described," may vote upon
the question. If a majority of those voting favor incorporation, the
commissioners file with the register of deeds the original petition, a
true copy of the notice of election, and the certificate showing the
result of the vote. The village thus becomes incorporated, and has the
usual corporate powers. It organizes by electing officers.
Elective Officers.--The usual elective officers of a village are a
president, three trustees, a treasurer, and a recorder, who are chosen for
one year, and two justices of the peace and a constable, elected for two
years. [Footnote: The difference in term is accounted for by the fact that
the justices and constables are in a measure county officers.]
The Council and Its Powers.--The president, the three trustees, and the
recorder constitute the village council. They may make, for the following
purposes among others, such ordinances or by-laws as they deem necessary:
1. To establish and regulate a fire department; to purchase apparatus for
extinguishing fires; to construct water-works; to designate limits within
which wooden buildings shall not be erected; to regulate the manner of
building and cleaning chimneys, and of disposing of ashes; and generally
to enact such necessary measures for the prevention or extinguishment of
fires as may be proper.
2. To lay out streets, alleys, parks, and other public grounds; to grade,
improve, or discontinue them; to make, repair, improve, or discontinue
sidewalks, and to prevent their being encumbered with merchandise, snow or
other obstructions; to regulate driving on the streets; to appoint a
street commissioner.
3. To erect lamp-posts and lamps, and provide for the care and lighting of
the lamps.
4. To appoint a board of health, with due powers; to provide public
hospitals; to regulate slaughter-houses; to define, prevent, and abate
nuisances.
5. To establish and maintain a public library and reading-room.
6. To prohibit gambling; to prevent, or license and regulate the sale of
liquor, the keeping of billiard-tables, and the exhibition of circuses and
shows of all kinds; to appoint policemen, and provide a place of
confinement for offenders against the ordinances.
7. In general, "to ordain and establish all such ordinances and by-laws
for the government and good order of the village, the suppression of vice
and immorality, the prevention of crime, the protection of public and
private property, the benefit of trade and commerce, and the promotion of
health, not inconsistent with the constitution and laws of the United
States or of this state, as they shall deem expedient," and to provide
penalties for the violation of the ordinances.
All fines and penalties imposed belong to the village.
Appointive Officers.--The council appoints, as provided by law, a village
attorney, a poundmaster, one or more keepers of cemeteries, one or more
fire-wardens, and regular and special policemen; and it prescribes the
duties and fixes the compensation of these officers. The council also
elects at its first meeting, a village assessor, who shall hold his office
one year.
Vacancies and Removals.--Vacancies in any of the village offices are
filled by the council, and it has power to remove any officer elected or
appointed by it whenever it seems that the public welfare will be promoted
thereby.
Like Town Officers.--The assessor, treasurer, justices of the peace, and
constable, have the same duties and responsibilities as the corresponding
officers in the town. The village has a seal, of which the recorder is the
custodian; and he is, as has been said, a member of the council. Otherwise
the duties of the recorder are similar to those of the town clerk.
Elections.--A village usually constitutes one election district and one
road district. Village elections are conducted as are those in a town.
Enlargements.--Lands adjoining the village may be annexed to it, at the
wish and with the consent of the voters of the territory and of the
village. The will of the voters aforesaid is expressed at an election
called, after due notice, by the county commissioners.
_Some Pertinent Questions._
Name the incorporated villages in your county. Any others that you know.
Name some villages, so-called, which are not incorporated. Why are the
petition and other papers of incorporation recorded?
Can a person living in a village build a sidewalk to suit his own fancy?
Why? Suppose that owing to a defective sidewalk you should break your leg,
what responsibility would lie on the village?
How would you get your pay if you had a bill against a village?
The village council has power "to establish and regulate markets." Why
should the sale of meats be regulated any more than the sale of flour or
of clothing? May the sale of bread be regulated?
What is the difference between a policeman and a constable.
Compare the village and the town, telling wherein they are alike and
wherein they are different.
_Debate_.
Resolved, That for a village of 1000 inhabitants or less it is wise not to
become incorporated.
CHAPTER V.
THE CITY.
Need Of.--A village being one election district has only one polling
place. The community may increase so in numbers as to make it necessary to
have several voting places. For the accommodation of the people, these
would naturally be located in different parts of the community; and to
prevent fraud, voting precincts would have to be carefully defined. The
council would naturally be made up of representatives from these
divisions.
When, under this arrangement, the voters assemble in different parts of
the community, they could not listen to financial reports and vote taxes,
as they do in the town and the village. Hence it would be necessary to
endow the council with increased powers, including the power to levy taxes
without the direct authorization of the people.
The expenses for public improvements, for waterworks, sewers,
street-lighting, etc., may take more money than it would be prudent to
assess upon the community for immediate payment. In this case it would be
desirable for the community to have the power to issue bonds.
Again, with increase in population there is an increase in the number of
disputes over private rights, and temptations to crime become more
numerous. Hence the need of one or more courts having jurisdiction greater
than that possessed by justices of the peace. The conditions necessitate
also an increase in the number and the efficiency of the police. And to
render the police efficient it is necessary that they be under the
direction of one man, the same one who is responsible for the carrying out
of the ordinances of the council, namely, the mayor.
A community organized to comply with the foregoing requirements--divided
into wards, having a council made up of aldermen from those wards, having
a council authorized to levy taxes at its discretion, having a municipal
court, having regularly employed police acting under the direction of the
mayor--is a city, as the term is generally used in the United States.
Another reason for establishing a city government is frequently potent,
although unmentioned. The pride of the community can be thereby indulged,
and more citizens can have their ambition to hold public office gratified.
How Organized.--A city may be organized under general law or special
charter from the legislature. Large cities, and small ones with _great
expectations_, usually work under a charter. But the custom is growing of
organizing cities at first under general law. Then if a city outgrows the
general law, grows so that it needs powers and privileges not granted
therein, it may properly ask the legislature for a special charter.
As a type, the principal provisions of the general law of Minnesota are
here given, as follows:
"Whenever the legal voters residing within the limits of a territory
comprising not less than two thousand inhabitants, and not more than
fifteen thousand, and which territory they wish to have incorporated as a
city, shall sign and have presented to the judge of probate of the county
in which such territory is situated, a petition setting forth the metes
and bounds of said city, and of the several wards thereof, and praying
that said city shall be incorporated under such name as may therein be
designated, the judge of probate shall issue an order declaring such
territory duly incorporated as a city, and shall designate the metes,
bounds, wards, and name thereof, as in said petition described." And the
judge of probate designates the time and places of holding the first
election, giving due notice thereof. He also appoints three persons in
each ward, of which there shall be not less than two nor more than five,
to act as judges of election. The corporation is established upon the
presentation of the petition, and the organization is completed by the
election of officers.
The usual elective officers of a city are a mayor, a treasurer, a
recorder, one justice of the peace for each ward, styled "city justice,"
all of whom shall be qualified voters of the city, and one or more
aldermen for each ward, who shall be "qualified voters therein." All other
city officers are appointed.
The term of mayor, city justices and aldermen is in most states two years;
that of the other officers, one year.
Any officer of the city may be removed from office by vote of two-thirds
of the whole number of aldermen. But an elective officer must be given "an
opportunity to be heard in his own defense."
A vacancy in the office of mayor or alderman is filled by a new election.
A vacancy in any other office is filled by appointment. The person elected
or appointed serves for the unexpired term.
The Mayor is the chief executive officer and head of the police of the
city. By and with the consent of the council, he appoints a chief of
police and other police officers and watchmen. In case of disturbance he
may appoint as many special constables as he may think necessary, and he
may discharge them whenever he thinks their services no longer needed.
The City Council consists of the aldermen. [Footnote: In some states the
city council consists of two bodies.] It is the judge of the election of
its own members. A majority of the members elected constitutes a quorum
for the transaction of business.
The council chooses its own president and vice-president. In case the
mayor is absent from the city or for any reason is temporarily unable to
act, the president of the council acts as mayor, with the title Acting
Mayor.
Passing Ordinances.--The mode of passing an ordinance is unlike anything
that we have considered up to this time, and deserves special attention on
account of its resemblance to the mode of making laws in the state and
general governments. It is as follows. If a proposed ordinance is voted
for by a majority of the members of the council present at any meeting, it
is presented to the mayor. If he approves it, he signs it, and it becomes
an ordinance. But if he does not approve it, he returns it, through the
recorder, to the council, together with his objections. [Footnote: This is
called _vetoing_ it, from a Latin word _veto_, meaning _I forbid_.]The
council, then reconsiders the proposed ordinance in the light of the
mayor's objections. If, after such reconsideration, two-thirds of the
members elected vote for it, it becomes an ordinance, just as if approved
by the mayor. "If an ordinance or resolution shall not be returned by the
mayor within five days, Sundays excepted, after it shall have been
presented to him," it shall have the same effect as if approved by him.
Publication of Ordinances.--The ordinances and by-laws of the council are
published in a newspaper of the city, selected by the council as the
official means of publication, and are posted in three conspicuous places
in each ward for two weeks, before they become operative.
Council Powers.--The city council has about the same powers as a village
council in regard to streets, the prevention and extinguishment of fires,
etc.--the same in kind but somewhat more extensive. But it can also levy
taxes for public purposes, as has before been said. It usually elects the
assessor, the city attorney, the street commissioner, and a city surveyor,
and in some states other officers.
The recorder, treasurer, assessor, justices of the peace, and police
constables, have duties similar to those of the corresponding officers in
a village or a town.
_Some Pertinent Questions_.
If two persons should claim the same seat in the city council, who would
decide the matter?
State three ways in which a proposed ordinance may become an ordinance.
Two ways in which it may fail. How can persons living in a city find out
what ordinances the council passes? How far are the ordinances of any city
operative?
Compare the government of a village with that of a city.
Are school affairs managed by the city council? How is it in a village? In
a town.
If a new school-house is needed in a city, and there is not money enough
in the treasury to build it, what can be done?
If you live in a city having a special charter, borrow a copy of it from a
lawyer or from the city recorder, and find out what powers and privileges
are granted to the corporation not specified in the general law; what
limitations are imposed; and, if a municipal court is provided for, what
its jurisdiction is in civil actions and in criminal prosecutions.
Name the principal officers in your city. The aldermen from your ward.
What are some of the dangers of city government? Consult Macy's Our
Government, pp. 51-53, and Nordhoff's Politics for Young Americans.
_Questions for Debate._
Resolved, That for a community of 5000 inhabitants or less a village
organization is better than a city organization.
CHAPTER VI.
THE COUNTY.
Need Of.--A county organization is needed for the following reasons:
1. _To establish the lower organizations_. As we have seen, the
organizations within the county are established by county officers. But,
it may properly be asked, why not have them organized by the state
directly? There are at least three good reasons: In the first place, it
would be too burdensome to the state; that is, the state would act through
the legislature, and to organize all the individual school districts,
towns, villages, and cities, would take up too much of the time of the
legislature. In the second place, the organizing could only be done at
certain times, namely during the session of the legislature, and in the
meantime communities would have to wait. In the third place, the records
of incorporation would be inaccessible in case they were needed for
reference.
2. _To serve as a medium between the state and the lower organizations._
The state uses the town, village, and city to value property for purposes
of taxation and as election districts. But it gets its taxes and its
election returns through the county. Here again may arise the question,
why not send the state taxes directly to the capital and make election
returns directly also? At least two good reasons appear: It would increase
the work and therefore the number of officials at the capital, and if a
mistake should be made it could not be so easily discovered and corrected.
3. _To carry on public works beyond the power of the towns individually._
A desired local improvement may be beyond the power of a town either
because it is outside of the jurisdiction of the town or because of its
expense. Thus, a road may be needed between two centers of population,
villages or cities, which would run through several towns, while the
jurisdiction of the towns individually extends only to their own borders.
Or a bridge over a wide stream may be needed, which would be too expensive
for the town in which it is located. The road and the bridge would better
be provided by the county.[Footnote: Sometimes state aid is secured. Do
you think it wise, as a rule, for the state to grant such aid?] And the
poor can generally be better cared for by the county than by the
individual towns, for the county can erect and maintain a poor-house.
4. _To secure certain local officers not needed in every town;_ for
instance, a register of deeds, the coroner, the judge of probate, the
superintendent of schools (in most states), and the surveyor.
5. _To serve as a territorial basis for the apportionment of members of
the legislature._ This is, perhaps, merely an incidental gain. But its
convenience in defining legislative districts is obvious.
6. _To make justice cheap and accessible._ It is well in many ways, as we
have seen, to have in every town, village, and city, courts of limited
jurisdiction. But to _establish justice_ in any generous or satisfying
sense there should be within the reach of every citizen a court competent
to try _any_ difference between individuals regardless of the amount in
controversy, and able to punish any crime against the laws of the state.
To bring such a court within the reach of every one was the original
reason for the establishment of the county, and remains today the greatest
advantage derived from its existence.
Establishment.--Counties are established by the state legislature.
In thinly settled parts of a state the counties are much larger than in
the populous parts. A county should be large enough to make its
administration economical, and yet small enough to bring its seat of
justice within easy reach of every one within its boundaries. In the ideal
county a person living in any part thereof can go to the county seat by
team, have several hours for business, and return home the same day.
County Board.--The administration of county affairs is in the hands of the
county commissioners or supervisors. This board is usually constructed on
one of two plans: Either it consists of three or five members, the county
being divided into commissioner districts; or else it is constituted of
the chairmen or other member of each of the several town boards. The
former plan prevails in Minnesota, Iowa, and other states; the latter in
Wisconsin, Michigan, most of Illinois, and in other states.
The commissioners have charge of county roads and bridges, county
buildings and other county property, and the care of the county poor.
Through the commissioners the county exercises the usual corporate powers.
Recording Officer.--The recording officer of the county is called in some
states the county auditor, in others the recorder, and in others the
county clerk. As we would expect, he is secretary of the board of
commissioners and the custodian of county papers; and all orders upon the
treasurer are issued by him. The auditor is also bookkeeper for the
county, that is, he keeps an account of the money received and paid out by
the county treasurer.
In Minnesota and some other states, he computes all the taxes for the
county, [Footnote: In some states, among them Wisconsin, this computation
is performed by the several town clerks, and the moneys are collected by
the town treasurers.] and makes the tax-lists, showing in books provided
for the purpose just how much the tax is on each piece of real estate and
on personal property. These books he turns over to the county treasurer to
be used in collecting the taxes.
Treasurer.--The county treasurer is, in some states, one of the most
important officers. He is the great financial agent, collecting all the
taxes paid by the people for school, town, village, city, county and state
purposes, except assessments for city sidewalks and street grading. Great
care must, therefore, be taken to guard the public money. The precautions
serve as a check upon weak or dishonest officials, while right-minded ones
welcome them as keeping their good name above suspicion. As a type, the
precautions taken in Minnesota are given, to-wit:
1. The selection of an honest man for the office, so far as possible, is a
prime consideration.
2. The treasurer must give a bond for such amount as the county
commissioners direct.
3. He shall pay out money only upon the order of proper authority.
[Footnote: Moneys belonging to school district, town, village, or city,
are paid on the warrant of the county auditor; county money, on the order
of the county commissioners, signed by the chairman and attested by the
county auditor; state money, on the draft of the state auditor in favor of
the state treasurer.] This order signed by the payee is the treasurer's
receipt or voucher.
4. He shall keep his books so as to show the amount received and paid on
account of separate and distinct funds or appropriations, which he shall
exhibit in separate accounts.
5. The books must be balanced at the close of each day.
6. When any money is paid to the county treasurer, excepting that paid on
taxes charged on duplicate, the treasurer shall give, to the person paying
the same, duplicate receipts therefor, one of which such persons shall
forthwith deposit with the county auditor, in order that the county
treasurer may be charged with the amount thereof.
7. The county auditor, the chairman of the board of county commissioners,
and the clerk of the district court, acting as an auditing board,
carefully examine at least three times a year the accounts, books and
vouchers of the county treasurer, and count the money in the treasury.
8. The state examiner makes a similar examination at least once a year. No
notice is given in either case.
9. As security against robbers, the money in the possession of the county
treasurer must be deposited on or before the first of every month in one
or more banks. The banks are designated by the auditing board, and must
give bonds for twice the amount to be deposited.
Register of Deeds.--Without hope of reward no one would work. To encourage
frugality, people must be reasonably secure in the possession of their
savings. One of the things for which a person strives is a home.
Therefore, great care is taken to render a person who has bought a home,
or other landed property, secure in its possession. Among the means
employed are these: 1. The purchaser is given a written title to the land.
This is called a _deed_. 2. In order that any person may find out who owns
the land, thus preventing a person reputed to own it from selling it, or
the owner from selling to several persons, a _copy_ of the deed is made by
a competent and responsible public officer in a book which is kept for
that purpose and which is open to public inspection. This is called
_registering_ the deed, and the officer is called the register of deeds.
[Footnote: Incidentally this officer records other instruments, such as
official bonds, official oaths, etc.] The register may have assistants, if
necessary, he being responsible for their work.
Judge of Probate.--But not only should a person enjoy the fruit of his
labors while living, he should also be able to feel that at his death his
property shall descend to his family or others whom he loves. Many persons
before they die make a written statement, telling how they wish their
property disposed of. This written statement is called a will or
testament. Some who are possessed of property die without making a will.
They are said to die _intestate_. To see that the provisions of wills, if
any be made, are complied with, and, in case no will is made, to make sure
that the property comes into possession of those best entitled to it, is
the important and wellnigh sacred duty of an officer called the judge of
probate. If no one is named in the will to look after the education and
property of minor heirs, the judge of probate may appoint a guardian. The
appointee must give bonds for the faithful discharge of his duty.
[Footnote: see chapter VII.] Incidentally it is made the duty of the judge
of probate to appoint guardians for any persons needing them, such as
insane persons, spendthrifts, and the like. He seems to be the friend of
the weak.
County Surveyor.--To survey all public improvements for the county, such
as roads, lands for public buildings, &c., there is an officer called the
county surveyor. He is required to preserve his "field notes" in county
books furnished for the purpose. Individuals frequently call upon him to
settle disputes about boundary lines between their estates.
Superintendent of Schools.--Not every one is competent to teach, and to
protect the children as far as possible from having their time worse than
wasted by incompetent would-be teachers, is the very responsible duty of
the county superintendent of schools. From among those who present
themselves as candidates he selects by a careful examination those whom he
deems most competent, and gives to each a certificate of qualification. He
visits the schools and counsels with the teachers regarding methods of
instruction and management. It is his duty also to hold teacher's
meetings. He reports annually to the state superintendent of public
instruction such facts as the superintendent calls for.
County Attorney.--Like railroads and other corporations, the county keeps
a regularly employed attorney to act for it in all suits at law. This
officer is called the county attorney. He represents the state in all
criminal prosecutions and is for this reason sometimes called the state's
attorney.
Sheriff.--An ancient officer of the county is the sheriff. He has three
principal lines of duty: 1. To preserve the peace within the county. 2. To
attend court. 3. To serve processes. He pursues criminals and commits them
to jail. He has charge of the county jail and is responsible for the
custody of the prisoners confined in it. He opens and closes each session
of the district court, and during the term has charge of the witnesses,
the juries, and the prisoners. It is his duty to carry into execution the
sentence of the court. He serves writs and processes not only for the
district court, but also for justices of the peace and court
commissioners.
Coroner.--Another officer of the county, ancient almost as the sheriff, is
the coroner. If the dead body of a human being is found under
circumstances which warrant the suspicion that the deceased came to his
death by violence, it is the coroner's duty to investigate the matter and
ascertain if possible the cause of the death. He is aided by a jury
summoned by him for the purpose.
At a time in early English history when the only county officers were the
sheriff and the coroner, the coroner acted as sheriff when the latter was
for any reason incapacitated. And the practice still continues. Thus, if
there is a vacancy in the office of sheriff, the coroner acts till a new
sheriff is chosen. And in most states the coroner is the only officer who
can serve process upon the sheriff or who can arrest him.
Clerk of the Court.--The district court [Footnote: See next chapter.] is a
"court of record." That is, it has a seal and a special officer to record
its proceedings. He is called the clerk of the court. He of course also
files and preserves the papers in each case. He has also certain
incidental duties.
Court Commissioner.--Court is not always in session, and there are certain
powers possessed by a judge "in chambers," that is, which the judge may
exercise out of court. For instance, he may grant a writ of attachment or
of _habeas corpus_. Where a judicial district comprises several counties,
as is usually the case, a provision is made in some states for an officer
in each county authorized to perform such duties in the absence of the
judge. In Minnesota and most other states he is called the court
commissioner.
Election and Term.--The county officers are in most sections of the
country elected by the people of the county. The term is usually two
years.
Removals and Vacancies.--Provision is made for the removal of any county
officer for non-feasance or malfeasance in office. The power to remove is
generally vested in the governor. The accused must be given an opportunity
to be "heard in his own defense." Vacancies are generally filled by the
county commissioners. They appoint some one, not one of themselves, to
serve until the next election.
Qualifying.--Each officer before assuming the duties of his office takes
the official oath. All of the officers except the commissioners and the
superintendent of schools are required to give bonds. Copies of these
bonds are preserved by the register of deeds, and the originals are
forwarded to the secretary of state.
Compensation.--Compensation is usually by salary or by fees. The matter is
usually in the hands of the county commissioners, except so far as
concerns their own compensation, which is fixed by law. This is usually a
_per diem_.
Eligibility.--Any voter who has resided in the county a certain time
(usually about thirty days) is eligible to any county office, except that
of attorney or court commissioner. The former must be a person admitted to
practice in all the courts of the state. The latter must be a man "learned
in the law."
In some cases a person may hold two offices at the same time; thus, a
person may be court commissioner and judge of probate. But no person can
hold two offices one of which is meant to be a check upon the other. For
instance, no one could be auditor and treasurer at the same time. In some
states there is a bar against holding certain offices for two terms in
succession.
_Some Pertinent Questions._
What is the difference between a town road and a county road? Point out
one of each kind. If you wanted a change in a county road, to whom would
you apply?
Get a warranty deed and fill it out for a supposed sale. Compare with it a
mortgage deed. A quitclaim deed. Compare a mortgage deed with a chattel
mortgage. Account for the differences. If A buys a farm from B and does
not file his deed, who owns the farm?
If a man possessing some property should get into habits of gambling and
debauchery, squandering his money and not providing for his family, what
could be done? On what grounds could this interference by a public officer
be justified?
Who would be keeper of the jail if the sheriff should be a prisoner? Why
not one of the deputy sheriffs?
Study out carefully the derivation of the words auditor, sheriff, coroner,
probate, commissioner, supervisor, superintendent.
The county attorney is usually paid a salary while the register of deeds
usually gets the fees of his office. What seems to govern in the matter?
Name the salaried officers in this county. The officers who are paid fees.
To whom are school taxes paid? Town taxes? County taxes? State taxes? How
much of the money paid at this time goes to the United States?
How does the tax collector know how much to take from each person? From
whom does he get this book?
The amount of a person's tax depends upon the _value_ of his property and
the rate of tax. How is the former fact ascertained? To whom, then, does
the assessor report when he has concluded his labors?
The rate of tax depends upon the amount to be raised and the value of the
property on which it is to be assessed. Who determines how much money
shall be raised in a district for school purposes during any year? When is
this determined? Who records the proceedings of the meeting? To whom must
he report the amount of tax voted? Who determines how much money is to be
raised in the town for bridges, etc.? When? Who records the proceedings of
the meeting? To whom must he report the amount of tax voted? Who vote the
taxes in a village? When? Who reports to the computing officer? Who vote
the taxes in a city? Why not the people? When? How reported to the
computing officer? Who determines how much money is to be raised for
county purposes? When? Who is secretary of the meeting? To whom does he
report? Who determines how much money shall be raised for state purposes?
How does the proper officer become acquainted with the facts necessary to
the raising of the money?
State the gist of the matter brought out by the questions in the last four
paragraphs.
How does the school district treasurer get the school district money?
Trace a dollar from the time it leaves a farmer's hand as taxes till it
reaches the teacher as salary.
If you had a bill against the county how would you get your pay? What
could you do if pay were refused? Make out in due form a bill against your
county.
CHAPTER VII.
ESTABLISHING JUSTICE IN THE COUNTY.
Classes of Cases.--There are three general classes of judicial business
carried on in the county: probate business, civil actions, and criminal
prosecutions.
PROBATE COURTS.
Jurisdiction.--The principal business and characteristic work of probate
courts is the settlement of the estates of deceased persons. Jurisdiction
extends in most states over both personal property and real estate.
Incidentally probate courts appoint guardians for minors and others
subject to guardianship, and control the conduct and settle the accounts
of such appointees.
In many states jurisdiction wholly extraneous to the characteristic work
of these courts is imposed upon them, or the probate business is
associated with other jurisdiction in the same court. Thus, in Minnesota
the judge of probate is petitioned in the organization of cities, as we
have seen. In Wisconsin, the county court, which has charge of the probate
business, has civil jurisdiction also. In Illinois, the county court in
addition to the probate business has jurisdiction "in proceedings for the
collection of taxes and assessments." And in Kansas, the probate court has
jurisdiction in cases of _habeas corpus_.
Procedure in case a Will has been made.--The proceedings of a probate
court have in view two chief objects, namely, to pay the debts of the
deceased and to distribute the remainder of his property among those
entitled to it. In case the deceased has left a will, the proceedings are
as follows:
1. _Petition for probate._ Within a short time, usually thirty days, after
the death of the testator, the executor or other custodian of the will
presents it to the probate court with a petition that it be admitted to
probate. (For form of petition, see p. 286.)
2. _Citation to persons interested._ Acting on the petition, the probate
judge publishes in a newspaper a notice to all persons interested in the
estate that at a specified time, action will be taken on the petition. To
afford all who are interested an opportunity to be present at the
"hearing," the notice must be published for a prescribed time, and in some
states each of the heirs must, if possible, be personally notified.
3. _Hearing the proofs._ At the time specified in the notice, unless
postponement be granted for cause, the proofs of the validity of the will
are presented. It must be shown that the testator is dead, that the
instrument was executed by him voluntarily, in the manner prescribed by
statute, and while he was of "sound mind and disposing memory." Usually it
will be sufficient for the two witnesses to the instrument to appear and
testify to the material facts. If any one interested in the distribution
of the property thinks that this will should not be accepted as the "last
will and testament" of the deceased, he should now enter objections. In
case of a contest, the proceedings are about the same as those in a
justice or circuit court; but there is no jury in the probate court, nor
is there any plea except the petition.
4. _Admission to probate._ If the proofs are satisfactory to the court,
the will is "admitted to probate," that is, it is accepted as true and
valid. Its validity is established by a decree of the court, and a
certificate of the fact is attached to the will. A copy of the will is
made in a book kept for the purpose. The original and all the papers in
the case are filed and preserved by the judge of probate. (See pp. 287 and
288.)
5. _Issuance of letters testamentary_. The genuineness of the will being
established, it is now in order to carry out its provisions. Usually the
testator designates in his will the person or persons whom he wishes to
act as his representative in the settlement of the estate. Such a person
is called an "executor." If no person is so named, the court appoints an
"administrator with the will annexed." In either case the person derives
his authority from the court. Unless excused in the will, the executor or
administrator is required to give bonds proportioned to the amount of the
personal property in the estate, the amount of bond being specified by the
court. The executor is then furnished with a copy of the will and with
"letters testamentary." (The authority granted by the letters may be seen
by reference to the form in the appendix, p. 288.)
6. _Notice to creditors_. It is a principle of law that all just debts
shall be paid out of one's property before any further disposition thereof
can take effect. In order that all persons having claims against the
estate of the deceased may have an opportunity to present their accounts,
a time for such presentation is designated by the court, and due notice
thereof is given, usually by publication in a newspaper.
7. _Inventory of the estate_. In the meantime, the executor makes an
inventory of the property, and appraisers appointed for the purpose "put a
value" thereon, the several items of the inventory being valued
separately.
8. _Auditing claims._ At the time appointed in the notice, the court
passes upon the claims of creditors. Since unscrupulous persons are at
such times tempted to present fraudulent claims, the judge exercises great
care in examining the accounts. To facilitate matters it is required that
accounts be itemized, and that they be verified by oath.
Debts are paid out of the personal property, if there be enough. If not,
the court authorizes the executor to sell real estate to pay the balance.
9. _Settlement of estate and division of property._ The executor having
collected debts due the estate and settled all claims against it, makes
his final statement to the court, and the remaining property is
distributed among the heirs and legatees. To continue and perfect the
chain of title, the division of the real estate is recorded in the office
of the register of deeds.
If there are minor heirs, the court appoints guardians for them.
Procedure in case no Will is made.--If there is no will, the four steps
which have in view the establishment of the validity of the will, are
unnecessary. The initial step in this case is the appointment of an
administrator to do the work which under a will is done by the executor.
In order that an administrator acceptable to the heirs may be appointed,
the following steps are taken:
1. Someone interested in the estate petitions for the appointment of a
certain person as administrator.
2. Notice of hearing is given by publication, citing those interested in
the estate to appear at a certain day if they desire to enter any
objection to the appointment.
3. If at the time specified for the hearing no objection is made, the
person petitioned for is appointed administrator, and "letters of
administration" are issued to him.
Then beginning with the sixth step the proceedings are substantially the
same as in case of a will, except that the basis of distribution in the
ninth is the _law_ instead of the _will_.
"As befits an authority which thus pervades the sanctity of a household,
crosses the threshold and exposes to public view the chamber of mourning,
probate jurisdiction in the United States is exercised with great
simplicity of form as well as decorum." [Footnote: Schouler's Executors
and Administrators.]
_Some Pertinent Questions._
What is a will? [Footnote: See Dole's Talks about Law.] Why must it be in
writing? Must it be in the handwriting of the testator? Why are the
witnesses essential? Is the form of a will essential? Is it necessary that
the witnesses know the contents of the will?
What is the difference between an heir and a legatee? May either be
witness to the will? Why? If the witnesses die before the testator, how
can the will be proved?
What is a codicil? If there be two wills of different dates, which will
stand? What difference does it make whether a person having property makes
a will or not?
Group the proceedings in case of a will into three groups.
A minor may have two guardians, one of its person and the other of its
property? Why? What is to hinder a guardian from abusing his trust?
DISTRICT, CIRCUIT OR SUPERIOR COURTS.
Jurisdiction.--This court has original jurisdiction in all civil and
criminal cases within the district which do not come within the
jurisdiction of the justice courts. It has appellate jurisdiction from
probate and justice courts as provided by law.
Procedure.--The proceedings are substantially the same as in a justice
court except that in criminal cases they are based upon an indictment by
the grand jury, and after the arguments the judge "charges" the jury, that
is, instructs it regarding its duty.
Pleadings.--The pleadings in the district court are somewhat more
elaborate than in a justice court, and a few words in regard to them
further than what has already been given may not be out of place here.
The defendant in making his plea may raise a question as to the
jurisdiction of the court, or he may ask that the case be thrown out of
court on account of some irregularity of the writ upon which it is based.
Since these pleas, if successful, simply delay the trial, because a new
suit may afterwards be brought, they are called _dilatory pleas_.
But he may deny the plaintiff's ground of action by denying the
allegations of the plaintiff and challenging him to trial. This plea is
called the general issue. He may admit the plaintiff's allegations but
plead other facts "to avoid their effect." This is called the plea of
confession and avoidance. These pleas are on the merits of the case, and
are called _pleas in bar_. There are other pleas of this kind.
"Pleas in bar, except the general issue, may give rise to counter pleas"
introduced by the parties alternately.
But the issue may be one of law instead of fact, and the defendant may
enter a _demurrer_, claiming that the matters alleged are not sufficient
in law to sustain the action.
Evidence.--Some of the fundamental principles or rules which govern the
taking of evidence and the weighing of testimony may properly appear here.
These rules are designed to exclude all irrelevant matter and to secure
the best proof that can be had.
1. _Witnesses must be competent_. That is, in general, they must be able
to understand the nature and solemnity of an oath. This will usually
exclude children below a certain age, insane persons and persons drunk at
the time of offering testimony.
2. _Witnesses must testify of their own knowledge_. Usually they are
barred from telling what they simply believe to be the fact or what they
have learned from hearsay.
3. _Evidence must go to prove the material allegations of the pleadings_.
It must be confined to the question at issue. It is to be observed that
the evidence must not only go to prove the matter alleged, but it must be
the _material_ not the superfluous matter. What is material and what
superfluous will depend upon the case. Thus if it is alleged that a suit
of clothes was obtained by the defendant at a certain time, his obtaining
the clothes is the material fact and the time may be superfluous or
immaterial. But if a note is in controversy its date is material as
establishing its identity.
4. _"The evidence must be the best of which the case is susceptible."_
Thus, in case of a written instrument the best evidence is the instrument
itself; the next best, a copy of it; the next, oral statement of its
contents. And a copy will not be accepted if the original can be produced.
5. _The burden of proof lies on the affirmative_. In civil cases the party
affirming is usually the plaintiff. In criminal cases it is the state.
Harmonizing with this principle is the constitutional provision that in
criminal cases the accused shall not be required to give evidence against
himself.
These are the principal rules of evidence, but they have many
applications. Learned volumes have been written elaborating them.
Grand Jury.--A grand jury may be defined as a body of men returned at
stated periods from the citizens of the county, before a court of
competent jurisdiction, chosen by lot, and sworn to inquire of public
offenses committed or triable in the county.
The number of grand jurors was formerly twenty-three. By statute many of
the states have fixed upon a smaller number, Oregon having only seven. A
common number is fifteen. Some states have no grand jury. In some others
the grand jury is summoned only when requested by the court.
The United States constitution and most of the State constitutions declare
that no person shall be held to answer for a criminal offense, except a
minor one, "unless on the presentment or indictment of a grand jury." This
is to save people from the vexation and expense of arrest and trial unless
there is reasonable presumption of their guilt. On the other hand, a grand
jury should aid in bringing to justice persons who indulge in practices
subversive of public peace, but which individuals are disinclined to
prosecute, such as gambling. Incidentally the grand jury examines into the
condition of the county jail and poor-house.
The mode of selecting grand jurors is in general the same in all the
states. The steps are three: first, the careful preparation of a list of
persons in the county qualified to serve; second, the selection, by lot,
from this list of the number of persons needed; third, the summoning of
the persons so chosen. The number of persons in the first list is from two
to three times the number of jurors. The preparation of the list is in
some states entrusted to the county board; in others, to jury
commissioners; in others, to the local boards. The names are reported to
the clerk of the court, who in the presence of witnesses, makes the
selection by lot. The summoning is done by the sheriff.
On the first day of the term, the court appoints one of the jurors
foreman. The jury is then sworn, and, after being charged by the court,
retires to a private room and proceeds to the performance of its duty.
The deliberations of the grand jury are conducted in secret. It may,
however, summon and examine witnesses, [Footnote: Witnesses for the
accused are not usually examined by the grand jury.] and may have the
advice of the court or of the county attorney.
The fact that a crime has been committed within the county may be brought
to the notice of the grand jury by any member thereof or by any other
person. If upon examination there seems to be reason for believing that it
was committed by the person accused, the county attorney is called upon to
frame a formal accusation against him, called an _indictment_, which is
endorsed with the words "a true bill," and sent to the court. Upon the
indictment the person accused is arrested and tried.
If the evidence against the accused is insufficient to warrant indictment,
but yet his innocence is questionable, the grand jury may bring a
_presentment_ against him. This is an informal statement in writing
addressed to the court setting forth the offense and stating that there is
a reasonable probability that a certain person, named, has committed it. A
person arrested on a presentment is examined before a justice of the peace
or other magistrate, as if arrested on a complaint. Neither an indictment
nor a presentment can issue except upon concurrence of the number of grand
jurors specified by statute. Under former practice the jury numbered
twenty-three and the concurrence of twelve was necessary.
The grand jury is bound to investigate the charge against any one held by
a justice "to await the action of the grand jury;" also any charge brought
by a member of the grand jury. And conversely it is the sworn duty of each
member to report any crime known by him to have been committed within the
county. Any outsider may file information or bring charges, but the grand
jury may use its own judgment as to the necessity of investigating them.
Petit Jury.--A petit jury is a body of twelve men impaneled and sworn in a
district court to try and determine by a true and unanimous verdict, any
question or issue of fact, in any civil or criminal action or proceeding,
according to law and the evidence as given them in court.
The mode of selecting petit jurors is in general the same as that pursued
in selecting grand jurors. The "list of persons qualified to serve" is,
however, usually larger. The "selection by lot" is made thus: slips of
paper, each containing one of the names, are folded and deposited in a
box. The box is shaken, and the prescribed number of slips is drawn. The
persons whose names thus appear are summoned as jurors.
When an action is called for trial by jury, the clerk draws from the jury
box the ballots containing the names of the jurors, "until the jury is
completed or the ballots exhausted." If necessary, the sheriff under
direction of the court summons bystanders or others in the county to
complete the jury. Such persons are called _talesmen_.
To secure an impartial jury, each party may object to or "challenge," a
number of the jurors. The challenge may be "peremptory" or "for cause."
The peremptory challenge, as its name implies, is one in which no reason
need be assigned. The number of such challenges must, of course, be
limited. In civil suits it is usually limited to three by each party. In
criminal cases, the state has usually two peremptory challenges and the
defendant five. If the offense is punishable with death or state prison
for life, the state has in Minnesota seven peremptory challenges and the
defendant twenty.
Challenges for cause may be either general or particular. A general
challenge of a proposed juror may be made on the basis of his incompetency
or unworthiness to act in such capacity in _any_ action. A particular
challenge may be based on some bias in this particular case which would
unfit the proposed juror for rendering an impartial verdict.
Habeas Corpus.--Not connected directly with trials but related to the
district court is the writ of _habeas corpus_. This is the most famous
writ in law, and has been styled "the chief bulwark of liberty." It was
designed originally to secure a person from being detained in prison
without due process of law, and it served as a mighty check upon arbitrary
power. Its operation has been extended so as to include any detention
against the will of the person detained. The writ, as will be seen by
reference to the appendix (p. 290), commands the person holding another in
custody to bring him before the judge and show cause for the detention. If
the judge finds that the prisoner is detained for cause he remands him to
custody; if not he orders his discharge.
Concluding Remarks.--This discussion might easily be continued. Volumes
have been written on the administration of justice. But perhaps enough has
been given to show that great care is taken to protect the interests of
the innocent and to do equal and exact justice to all. In view of flippant
remarks sometimes made regarding courts of justice, it is pertinent and
proper to go at least so far into detail. The study of Civil Government
will have been pursued to little purpose if respect for law be not one of
its fruits.
_Some Pertinent Questions_
How many judicial districts in this state? [Footnote: Consult Legislative
Manual.] How many counties in the largest? In the smallest? How many have
more than one judge? Why not let each county constitute a judicial
district?
If some one owed you $40 and refused to pay, in what court could you sue?
If he owed you $250? If the suit involved $1,000,000?
What is the relation of the plea to the action? Can anything be proved
which is not alleged in the plea? Show the purpose of each rule of
pleading. Of each rule of evidence.
What are the differences between a grand jury and a petit jury? Why is
each so named?
If a person accused of crime is examined and held by a justice of the
peace, as stated in a previous chapter, must he be indicted by a grand
jury before he can be tried? Why? May a person's acts be inquired into by
the grand jury without his knowing anything about it? May grand jurors
reveal the proceedings of the jury? Why?
Why is there such a thing as a peremptory challenge of a juror? Why so
many given to a person accused of crime?
Are lawyers officers of the court? What oath does each take on admission
to the bar?
_Questions for Debate_
Resolved, That trial by jury has outlived its usefulness.
Resolved, That capital punishment is not justifiable.
_References_.--Dole's Talks about Law; Lieber's Civil Liberty and Self
Government, 234-6; The Century, November 1882; Atlantic Monthly, July 1881;
North American Review, March 1882 and July 1884.
[Illustration: Papers--Prepare with care the "tabular views" of the town,
village, city and county, as follows]
CHAPTER VIII.
HISTORICAL.
Old England.--Not only our language but also very many of our political
institutions we have inherited from England. But the country now called by
that name is not the real _old_ England. The fatherland of the English
race is the isthmus in the northern part of Germany which we now call
Schleswig. Here dwelt the old Angles or English. To the north of them in
Jutland was the tribe called the Jutes, and to the south of them, in what
we now call Holstein and Friesland, dwelt the Saxons. "How close was the
union of these tribes was shown by their use of a common name, while the
choice of this name points out the tribe which at the moment when we first
meet them, in the fifth century, must have been the most powerful in the
confederacy." [Footnote: Green's History of the English People.] Among
themselves they bore in common the name of Englishmen.
Among the characteristics of those German ancestors of ours are the
following: They were very independent; the free landholder was "the
free-necked man." The ties of kinship were very strong. "Each kinsman was
his kinsman's keeper, bound to protect him from wrong, to hinder him from
wrong-doing, and to suffer with and pay for him if wrong were done."
[Footnote: Green's History of the English People.] They were very much
attached to home. "Land with the German race seems everywhere to have been
the accompaniment of full freedom.... The landless man ceased for all
practical purposes to be free, though he was no man's slave." [Footnote:
Green's History of the English People.] Among themselves they were quite
social. Though tillers of the soil they lived, not isolated, but grouped
together in small villages. This may have been partly for mutual
protection. They were lovers of law and order.
The Township.[Footnote: See American Political Ideas, pp. 31-63.]--The
derivation of the word "township" shows us to whom we are indebted for the
institution itself. The word is derived from the Anglo-Saxon _tun-scipe_.
_Tun_ meant hedge, ditch or defense; and _scipe_, which we have also in
landscape, meant _what may be seen_. Around the village before mentioned
was the _tun_, and beyond were the fields and meadows and woodlands, the
whole forming the tun scipe or township.
To administer justice and to take any other action for the common good,
the freemen gathered in _folk-moot_ around the moot hill or the sacred
tree.
Though the proceedings of these assemblies differed in detail from those
of our town meetings, both contain the great principle of local self
government.
The County.[Footnote: See American Political Ideas, pp. 31-63.]--Although
with us the state is divided into counties and the counties into towns,
the order of formation was originally the other way. The towns are the
oldest institutions in our system. Later, from uniting forces in war came
a union of action among adjoining towns during peace. Thus grew up what
was called the Hundred.
When in the fifth century the English invaded Britain, many of the
chieftains or military leaders rose to kingship over small areas. On the
completion of the conquest these kings struggled among themselves for
leadership, until finally England became united into one kingdom, and the
little kingdoms were reduced to shires ruled by earls. With the growth of
the king's power, that of the underkings or earls grew less. Then other
shires were formed, and this institution became simply an administrative
division. After the Norman conquest the French terms count and county came
into use.
The earnest student will find both pleasure and profit in looking up the
origin and history of the trial by jury, the criminal warrant, the writ of
habeas corpus, bail, common law, the general rules of parliamentary
practice, etc.
Town and County in America.--In New England the most important division of
the state is the town; in the South it is the county.[Footnote: An
excellent discussion of this may be found in "Samuel Adams, the Man of the
Town Meeting," John's Hopkins University Studies in History, Volume II,
Number 4.] In other states the relative importance of the two
organizations depends upon the influence to which the state was most
strongly subjected.
The reason for the difference is found in the character and circumstances
of the early colonists.
In New England, the church was the center of the community. The severity
of the climate and the character of the soil made it impracticable to
cultivate large farms. The colonists had come mainly from the towns of
England. These considerations and the presence of fierce and unfriendly
Indians caused the settlers to group themselves into compact settlements.
Their self assertion prompted them, and their intelligence enabled them,
to take active part in public affairs. Hence the importance of the town in
New England.
In the South, the colonies were planted largely in the interests of the
proprietaries. The leading spirits had been county gentlemen in England
and they naturally favored the county system. The mass of the people were
unaccustomed and indifferent to direct participation in the government.
Again, the warm climate and fertile lands were favorable to large
plantations and a dispersed population; so that the character of the
people and the circumstances under which they lived were alike favorable
to the establishment of the county system pure and simple. To quote the
pithy statement of Professor Macy, "The southern county was a modified
English shire, with the towns left out. Local government in New England
was made up of English towns with the shire left out."
Subsequently counties were formed in New England for judicial purposes,
but the towns retained the greater number of their functions; and in the
south, the counties were afterwards subdivided into election and police
districts, but the administrative power remained with the county.
The Middle States divided the local power between the town and the county.
Migration is chiefly along the parallels of latitude. And people from
habit and instinct organize new governments largely on the plans to which
they are accustomed. Hence we are not surprised to find that in the states
formed south of the line of the Ohio, the county is the principal division;
while in the northwestern states the town is the important factor. Though
in the Northwest the county is more important than in New England, the
influence of the towns in county affairs is generally maintained by the
selection of members of the county board from the several towns.
Illinois is a good example of the truth of the generalizations at the
beginning of the preceding paragraph. The state is very long and reaches
far to the south. The southern part of the state was settled first, and
almost pure county government prevailed. By and by the northern part began
to settle, and it grew in population faster than the southern part. The
town was introduced, and now prevails in all but a few counties.
Can you see the relation of these facts to the generalization? Can you
tell where the people of the two sections of the state came from?
PART II.
THE STATE.
CHAPTER IX.
WHY WE HAVE STATES.
1. _Historical reason_. We have states now because we had such
organizations at the time this government was established. The colonies,
founded at different times, under different auspices, by people differing
in religion, politics, and material interests, remained largely
independent of each other during colonial times, and on separating from
England became independent _states_.
2. _Geographical reason_. Different climatic and topographic conditions
give rise to different industries, and therefore necessitate different
regulations or laws.
3. _Theoretical reason_. The theory of our government is that of
_decentralization of power_.[Footnote: There being a constant tendency to
centralization, this thought should be emphasized. See Nordhoff's Politics
for Young Americans. (71)] That is, we think it best to keep power as near
as possible to the people. If a certain work can be accomplished fairly by
individual enterprise, we prefer that it be done so rather than through
any governmental agency. If work can be done by the town just as well as
by the county, we assign it to the town. And as between the state and the
general government, we assign no duty to the latter which can be performed
as well by the former.
4. _Practical reasons_. There are many practical reasons. Among them may
be mentioned the following:
We need the state as a basis for the apportionment of members of congress.
This is a federal republic, and representation in the national councils
can be had only through statehood.
We need the state to establish a system of education, to control
corporations, to put down riots when the local authorities cannot do so,
to establish the smaller organizations, etc. These are some of the things
referred to in paragraph three, which the state can do better than the
general government.
There is in the state also a high court of justice to which cases may be
appealed from the courts below.
HOW STATES ARE CREATED.
The "old thirteen" originated in revolution. They _declared_ themselves
"free and independent states," and maintained the declaration by force of
arms. Each became a state "in the Union" by ratifying the constitution.
Under the constitution states have been admitted into the Union on terms
prescribed by congress. The plan in general is as follows:
1. When the number of people in a territory equals or nearly equals the
number required to secure a representative in congress, the inhabitants
thereof may petition congress, through their delegate, for an act
authorizing the formation of a state government.
2. If the petition is granted, an "enabling act" is passed. This usually
defines the territory to be comprised in the new state, provides for the
calling of a constitutional convention, requires that the state government
to be framed shall be republican in form, states the number of
representatives in congress which the state shall have until the next
census, and offers a number of propositions for acceptance or rejection by
the convention. Among these are proposals giving land for the support of
common schools and of a university, and for the erection of public
buildings; and offering a portion of the net proceeds of the sale of
public lands within the state for internal improvements. These offers are
conditioned upon non-interference on the part of the state with the
holding and selling by the United States of the lands within the state
owned by the general government, and their exemption from taxation. The
enabling act for Minnesota is given in the appendix, pp. 355-8. It is in a
large measure typical. Students in most of the states can find the
enabling act for their state in the legislative manual thereof.
Michigan, Kansas and Oregon formed their constitutions without an enabling
act.
3. The constitutional convention provided for in the enabling act, having
ascertained that it is the wish of the people to form a state, frames a
constitution and submits it to the people of the proposed state for
adoption.
4. If it is adopted, [Footnote: Wisconsin rejected the constitution of
1846, and New York that of 1867.] copies of the constitution are sent to
the president and to each house of congress.
5. If the constitution framed is in accordance with our institutions, it
is accepted and the state is admitted. [Footnote: The acts of congress of
1866 and 1867, admitting Colorado, were both vetoed by president Andrew
Johnson.]
Kentucky, West Virginia, Maine, California and Texas became states in the
Union without having been territories. The first two were detached from
Virginia, and the third from Massachusetts, and admitted at once as
states. California and Texas had been independent states before admission.
As typical of the mode of restoring the southern states to their old place
in the Union, the act restoring Tennessee is given on page 358.
CHAPTER X.
STATE CONSTITUTIONS.
Their purpose.--A constitution in the American sense of the term is a
written instrument defining the powers of government and distributing
those powers among the branches or departments thereof. It is the
fundamental law, the voice of the people granting or withholding power. A
primary purpose of the instrument is to give form and authority to the
government; another is to protect individuals and minorities from the
tyranny of the majority. Each of the states has a constitution.
Their origin.--In most of the countries of Europe, including England, what
is called the constitution is not written. It consists largely of the
maxims of experience, the principles sanctioned by custom. When a new
political custom becomes prevalent it gradually becomes recognized as part
of the constitution.
Written constitutions in this country probably arose from the fact that
the charters granted to the colonies and securing to them privileges, were
in writing. And these written charters themselves grew out of a practice
prevalent in England of securing the rights of towns and cities by written
charters wrung from the king. Some general charters of liberties, too, had
been secured. Among these may be mentioned the charter granted by Henry I.
in 1100; the Magna Charta, or great charter, wrung from King John in 1215;
and the Petition of Right, the Habeas Corpus Act, and the Bill of Rights,
secured in the seventeenth century.
Some of the charters granted to colonies were so liberal in their terms
that they were adopted as constitutions when the colonies became states.
The charter of Connecticut remained its constitution till 1818. And even
in 1842 it was with difficulty that the people of Rhode Island could be
prevailed upon to give up the old charter for a new constitution.
Their Contents.--The state constitutions are very much alike in their
general characteristics. After a preamble, setting forth the purpose of
the instrument, they usually contain a bill of rights, intended to secure
personal liberty and other personal rights. They then distribute the
powers of government among three branches or departments, and provide for
the organization and general procedure of each. Then follow miscellaneous
provisions, relating to franchise, education, amendments, etc.
Their usual defects.--We have flourished so wonderfully under our system
of government that we naturally have a great reverence for our national
and state constitutions. So far has this feeling gone that a large number
of people seem to fancy that there is some magic in the very word
constitution. As a consequence state constitutions are usually too long;
they contain too many miscellaneous provisions. Most of these relate to
transient or petty matters which, if made affairs for public action at
all, should be left to legislation. Changes in the constitution weaken our
respect for it. Rarely should anything go into that great charter which
has not stood the test of time, unless it has the promise of endurance as
a necessary safeguard of the rights and liberties of the people.
BILLS OF RIGHTS.
These usually assert or guarantee the following:
Republican Principles.--That governments are instituted by the people and
for their benefit; that all persons are equal before the law; that no
title of nobility shall be granted.
Freedom of Conscience.--That there shall be perfect religious freedom,
not, however, covering immoral practices; that there shall be no
established or state church; that no religious test shall be required for
the performance of any public function.
Freedom of Speech.--That any one may freely think, and publish his
opinions, on any subject, being responsible for the abuse of this right.
Freedom of Assembly.--That the people may peaceably assemble to discuss
matters of public interest and to petition the government for redress of
grievances. This, of course, does not permit meetings designed to arrange
for the commission of crime.
Freedom of Person.--That there shall be no slavery; nor imprisonment for
debt, except in cases of fraud; nor unwarranted searches or seizures of
persons or property; that no general warrants shall be issued; that the
writ of _habeas corpus_ shall not be suspended, except in certain
emergencies; that persons may freely move from place to place.
Security of Property.--That private property shall not be taken for public
use without just compensation therefor, previously paid or secured; that
to prevent feudal tenure of land, long leases of agricultural land shall
not be made, in most states the longest permitted term being twenty-one
years.
Right to bear Arms.--That the right of the people to keep and bear arms
shall not be infringed.
Freedom from Military Tyranny.--That the military shall be in strict
subordination to the civil power; that there shall be no standing army in
time of peace; nor shall any soldier in time of peace be quartered in
private houses without the consent of the owner.
Forbidden Laws.--That no _ex post facto_ law, no law impairing the
obligation of contracts, nor any bill of attainder shall be passed; that
there shall be no special laws in certain specified cases.
Rights of Accused Persons.--(a) _Before trial_. That no unwarranted
searches or seizures shall be made; that, except in capital offenses, the
accused shall, while awaiting trial, be bailable; that, except in minor
cases, a person shall not be held to answer for a criminal offense unless
on the presentment or indictment of a grand jury. (b) _On trial_. That the
accused person shall have a speedy and public trial in the district where
the crime was committed; that trial by jury shall remain inviolable; that
the accused shall be informed of the nature of the charge against him;
that he shall be confronted with the witnesses against him; that he may be
heard in his own defense and shall have the benefit of counsel in his
behalf; that he shall not be required to witness against himself; that he
shall have compulsory process to compel the attendance of witnesses in his
behalf; that he shall not be deprived of life, liberty or property without
due process of law. (c) _After trial_. That no cruel or unusual punishment
shall be inflicted; that no one shall twice be placed in jeopardy for the
same offense.
Rights not enumerated.--There is usually a final statement that the
enumeration of the above rights shall not be construed to deny or impair
others inherent in the people.
COMMENTS ON THE ABOVE.
The rights above enumerated are among those which to us in America to-day
seem almost matters of course. It seems strange that any one ever
seriously questioned the fairness or the justice of the claims there set
forth. But in enumerating them we are treading on sacred ground. Their
establishment cost our ancestors hundreds of years of struggle against
arbitrary power, in which they gave freely of their blood and treasure.
Many of these rights are guaranteed in the constitution of the United
States, but only as against the general government. That they may not be
invaded by the state government, the people have reserved them in the
state constitutions.
_Pertinent Questions_.
In what sense are all men created equal? Is there anything in good blood?
What was meant by the "divine right" of kings to rule?
Could a Mormon practice polygamy in this state, it being part of his
religious creed? Why? Can an atheist give evidence in court?
What constitutes libel? Slander?
On what basis may a mob be dispersed? What cases of petition have you
known?
What is a general warrant? A passport? Why may _habeas corpus_ be
suspended in time of war.
Give instances of private property taken for public use. What is meant by
feudal tenure? How long a lease of agricultural lands may be given in this
state? How about business property in a city?
May a person lawfully carry a revolver in his pocket? Why?
What is meant by the military being subordinate to the civil power? Which
outranks, the secretary of war or the general of the army? Why should the
statement be made about quartering soldiers, in view of the preceding
statement?
What is meant by an _ex post facto_ law? Why forbidden? May a law be
passed legalizing an act which was performed as a matter of necessity but
without authority?
What is to hinder an enemy of yours from having you arrested and cast into
prison and kept there a long time? What is the purpose of bail? Why
regarded as an important element of liberty? Why should a grand jury have
to indict a person who has been examined and held for trial by a justice
of the peace? Does a prisoner charged with murder or other high crime
remain in handcuffs during his trial? Name the three or four most
important guarantees to an accused person. Why are so many provisions made
in his behalf?
If a ruler should wish to subvert the liberties of a people used to these
guarantees, where would he begin?
What are some of the advantages possessed by a written constitution over
an unwritten one? Of an unwritten over a written one? Is any part of our
constitution unwritten?
CHAPTER XI.
BRANCHES OF GOVERNMENT.
Regulations and Laws.--When the school officers, acting for the people of
the district, state formally what may and what may not be done by teachers
and pupils, the formal expressions of governing will are called rules and
regulations. Similar expressions by the town, village, city, or county
authorities are called ordinances or by-laws. But when the state expresses
its will through the regular channels, the formal expression is called a
law.
The Three Branches of Government.--After a law is made it needs to be
carried into effect. Incidentally questions will come up as to its meaning
and application. Government, then, has three great functions or powers
with regard to law.
In our government, and to a greater or less extent in all free countries,
these powers are vested in three _distinct_ sets of persons. If one person
or group of persons could make the laws, interpret them, and enforce
obedience to them as interpreted, the power of such person or persons
would be unlimited, and unlimited power begets tyranny. One of the
purposes of a constitution is to limit the power of the government within
its proper sphere, and to prevent misuse of authority; and this
organization of the government in three departments, each acting
independently so far as may be, and acting as a check upon the others, is
one of the modes of limitation.
The law-making, the law-interpreting, and the law-enforcing branches are
called respectively the legislative, the judicial, and the executive
branches.
CHAPTER XII.
THE LEGISLATIVE BRANCH.
Bicameral.--The legislature of every state consists of two chambers or
houses. The _reason_ for this is that during colonial times most of the
legislatures consisted of two houses, the governor's council and the
representative assembly. Then on becoming states, each of the "old
thirteen," except Pennsylvania, organized bicameral legislatures. And the
new states, being largely settled by people from the older states,
naturally followed their example. The structure of congress has also had
much influence.
The _advantages_ to be derived from having two houses are numerous.
Perhaps the only one which it is necessary to mention here is that it
tends to prevent hasty legislation, because under this arrangement a bill
must be considered at least twice before passage.
Apportionment.--As the population of a state is changeful, the
constitution does not usually specify the number of members to compose
each house. This is determined, within certain limitations imposed in the
constitution, by the legislature itself. A re-apportionment is usually
made every five years, after a census by the state or general government.
The number of senators usually ranges between thirty and fifty; that of
representatives from seventy-five to one hundred and fifty.
Meeting.--The legislature meets biennially in most of the states. People
are beginning to understand that they may suffer from an excess of
legislation. Some of the English kings used to try to run the government
without parliament, and frequent sessions of parliament were then demanded
as a protection to popular rights. Hence our forefathers instinctively
favored frequent sessions of the legislature. But such necessity no longer
exists, and for many reasons the states have with a few exceptions changed
from annual to biennial sessions. [Footnote: Extra sessions may be called
by the governor. Mississippi has its regular sessions for general
legislation once in four years, and special sessions midway between.]
Election.--Senators and representatives are both elected by the people. In
some cases the states are divided into senatorial and representative
districts in such a way that each elects one senator and one
representative, the senate districts being of course the larger. In other
cases, the state is divided into senate districts only, and each senate
district chooses one senator and an assigned number of representatives.
The former plan prevails in Wisconsin, for instance, and the latter in
Minnesota. The number of representatives chosen in a senatorial district
varies from one to half a dozen, dependent upon population. Illinois has a
peculiar, and it would seem an excellent, plan. The state is divided on
the basis of population into fifty-one parts as nearly equal as possible.
Each of these districts elects one senator and three representatives. In
voting for representatives, a person may mass his three votes on one
candidate, or give them to two or three. The purpose is to enable a party
in the minority to secure some representation.
Term.--The length of term of legislators usually depends upon the
frequency of sessions. The general principle seems to be that
representatives shall serve through one session and senators through two.
How long, then, would you expect the respective terms to be in states
having annual sessions? In states having biennial sessions? By reference
to the comparative legislative table on page 293 confirm or reverse your
judgment.
Vacancy.--In case of a vacancy in either house the governor orders a new
election in the district affected by the vacancy.
Individual House Powers.--Each house has certain powers conferred by the
constitution having for their object the preservation of the purity and
independence of the legislature. Among these are the following:
1. _Each house is the judge of the election, returns, and qualification of
its own members._ Each person elected to either house receives from the
canvassing board of the district through its clerk a certificate of
election, which he presents when he goes to take his seat. Should two
persons claim the same seat, the house to which admission is claimed
determines between the contestants. The contest may be based, among other
things, upon fraud in the election, a mistake in the returns, or alleged
lack of legal qualification on the part of the person holding the
certificate. Into any or all of these matters the house interested, _and
it only_, may probe, and upon the question of admission it may pass final
judgment.
2. _Each house makes its own rules of procedure._ These, usually called
rules of parliamentary practice, you can find in the legislative manual.
Upon their importance as related to civil liberty, consult Lieber's Civil
Liberty and Self-Government.
The power to preserve order applies not only to members but to spectators
also. Disorderly spectators may be removed by the sergeant-at-arms. On the
order of the presiding officer such persons may be placed in confinement
during the remainder of the daily session.
Unruly members are as a general thing simply called to order. For
persistent disorder they may be reprimanded or fined. [Footnote: See Among
the Lawmakers, pp. 230-3.] But in extreme cases they may be expelled. To
prevent a partizan majority from trumping up charges and expelling members
of the opposite party, it is a common constitutional provision that the
concurrence of two-thirds of all the members elected shall be necessary
for expulsion.
3. _Each house chooses its own officers_. Each house has a presiding
officer, several secretaries or clerks, a sergeant-at-arms, a postmaster,
and a chaplain. The sergeant-at-arms usually has a number of assistants
appointed by himself, and there are a number of pages appointed by the
presiding officer. These, however, hardly count as officers. The only
exception to the rule enunciated is in those states having a lieutenant
governor, who is _ex officio_ president of the senate. Even in that case,
the senate elects in case of a vacancy, the person so elected being chosen
from among their own number and receiving usually the title of president
_pro tempore_.
Quorum.--It would hardly be possible for all members to be present every
day, therefore a number less than the whole should have authority to act.
But this number should not be very small. The several constitutions fix
the quorum for each house, usually at a majority of the members elected to
it. But a smaller number has power of adjournment from day to day, so that
the organization may not be lost; and it may compel the attendance of
absent members, by sending the sergeant-at-arms after them.
Publicity.--On the theory that legislators are servants of the people, we
would naturally expect the proceedings to be made public. And so they are.
Publicity is secured in the following ways:
1. In accordance with the constitutional provision, each house keeps a
journal of its proceedings which it publishes from time to time, usually
every day.
2. Spectators are admitted to witness the daily sessions.
3. Newspaper reporters are admitted, and are furnished facilities for
making full and accurate reports.
Privileges of Members.--In order that their constituents may not, for
frivolous or sinister reasons, be deprived of their services in the
legislature, the members of each house are _privileged from arrest_
"during the session of their respective houses, and in going to and
returning from the same." Nor can civil suit be brought against them
during that time. But they may be arrested for treason, (defined in the
constitution), felony, or breach of the peace, because if guilty they are
unworthy of a seat in the legislature.
And in order that there may be the utmost _freedom of speech_ in the
legislature, that any member who knows of wrong being done may feel
perfectly free to say so, the constitution of each state provides that
"for any speech or debate in either house, they shall not be questioned in
any other place."
Compensation.--Members of the legislature receive for their services a
salary, which is sometimes specified in the constitution, but which is
usually fixed by law. In the latter case no increase voted can be in
effect until a new legislative term begins. This proviso is, of course,
designed to remove the temptation to increase the salary for selfish ends.
In some countries no salary is paid to legislators, the theory being that
with the temptation of salary removed only persons of public spirit will
accept election. Our argument is that unless some remuneration be given,
many persons of public spirit and possessed of capacity for public service
would be barred from accepting seats in the legislature. In other words,
the state wants the services of her best citizens, and does not wish lack
of wealth on the part of any competent person to stand in the way. On the
other hand, that there may be no temptation to continue the sessions for
the purpose of drawing the pay, the constitution provides, where a _per
diem_ salary is paid, that members shall not receive more than a certain
sum for any regular session, or a certain other sum for any extra session.
Prohibitions on Members.--To secure for his legislative duties the
undivided attention of each member, the constitution provides that "no
senator or representative shall, during the time for which he is elected,
hold any office under the United States or the State." In some states, as
in Minnesota, the office of postmaster is excepted. And in order that
legislators may be freed from the temptation to create offices for
themselves or to increase the emoluments of any office for their own
benefit, it provides that "no senator or representative shall hold any
office under the state which has been created or the emoluments of which
have been increased during the session of the legislature of which he was
a member, until one year after the expiration of his term of office in the
legislature."
Eligibility.--To be eligible to the legislature a person must be a
qualified voter of the state, and a resident thereof for, usually, one or
two years; and shall have resided for some time, usually six months or a
year, immediately preceding election, in the district from which he is
chosen. This last provision is made to preclude people who have not been
living in the district, and who therefore cannot know it or be interested
particularly in its welfare, from representing it in the legislature.
Sole Powers.--The mode of making laws is discussed in another place.
[Footnote: See "How Laws Are Made," page 344.] In making laws the houses
have concurrent jurisdiction--they both take part. But there are some
parts which belong to each house separately, besides the election of
officers before mentioned. The house of representatives has in all states
the sole power of impeachment, [Footnote: For mode of proceeding see page
331.] and in some states of originating bills for raising revenue. This
latter power is given to it because being elected for a short term it is
more directly under the control of the people than is the senate.
The power to impeach is vested in the representatives because for the
reason stated, they seem more immediately in fact as well as in name to
represent the people, who it will be remembered are always the complainant
in criminal cases. And the senate has the sole power of trying
impeachments. [Footnote: When the governor is being tried, the lieutenant
governor cannot act as a member of the court.] The length of term frees
the members from the fear of immediate punishment in case of an unpopular
verdict. And if they are right time will show it. Historically, this
division of power in cases of impeachment is derived from colonial
practice and from the constitution of the United States.
The senate has also the sole power of confirming or rejecting the
appointments of the governor.
Forbidden Laws.--In addition to the laws forbidden in that part of the
constitution called the bill of rights, the legislature is usually
forbidden to pass laws authorizing any lottery; or granting divorces; or
giving state aid to private corporations; or involving the state in debt,
except in case of war or other emergency.
_Pertinent Questions._
Define constitution. What is a law? What is meant by common law? Statute
law? Equity?
By reference to the comparative legislative table in the appendix, tell
the most common name applied to the legislative body; any peculiar names;
the names most commonly applied to the respective houses; the usual
qualifications of members; the frequency of regular sessions, and the
month of meeting most usual. Why is this time of year so uniformly chosen?
What relation do you see between the frequency of sessions and the term of
members? What is the relation between the terms of the respective houses?
How does the number of senators compare with the number in the lower
house? What state has the largest house? The smallest? Why is the term
_senate_ so common? Look up the derivation of the word. In what section of
the country are the terms the shortest? Can you account for this? Which
states require the highest qualifications in members?
Find out whether in your state there are any requirements not given in the
tabulation. By reference to the legislative manual or other source of
information find out any other facts of interest, such as the names of the
speaker and other legislative officers; the number of your senatorial
district, and the name of your senator; of your representative district,
and the name of your representative; what committees are appointed in each
house, and on which your local representatives are, and how they came to
be selected for these particular committees; how vacancies are filled in
the legislature; any contested elections that have occurred in your state
and the basis of the contest; some of the important rules of parliamentary
practice; the salary paid members in your state; any cases of impeachment,
the charge, and the outcome; other forbidden laws.
If two persons claim the same seat in the senate, who will decide between
them? In the lower house? What are the returns, and where are they kept?
What appeal from decision is there? If your legislature is now in session,
write to your representatives asking them to send you regular reports of
the proceedings. Don't expect to get such reports for the whole session,
however; that would be asking too much. From the newspapers, report on
Monday the principal proceedings of the previous week. Have you ever seen
a legislature in session? What is to keep a member of the legislature from
slandering people?
State five powers which can be exercised only by the senate. Five, in some
states four, which can be exercised only by the lower house.
Are you eligible to the legislature? If not, what legal qualifications do
you lack? Could a member of the legislature be elected governor or United
States senator?
At the last election did you preserve any of the tickets? Could you secure
any of the ballots that were actually used in voting? Why?
CHAPTER XIII.
THE EXECUTIVE BRANCH.
Officers.--The chief executive office in every state is that of governor.
There is in each a secretary of state and a state treasurer. Most states
have also a lieutenant governor, a state auditor or comptroller, an
attorney general, and a state superintendent of public instruction. In
nearly every case these offices are created by the state constitution.
Eligibility.--The qualifications required in the governor and lieutenant
governor are age, citizenship of the United States, and residence within
the State. The age qualification is required because the responsibilities
are so great as to demand the maturity of judgment that comes only with
years. The requirement of citizenship and that of residence are so
obviously proper as to need no comment.
For the other offices the qualifications required in most states are
simply those required in a voter. [Footnote: For which see page 298.]
Election.--In every state the governor is elected by the people, and in
most states the other officers are also. In a few states, some of the
officers are chosen by the legislature on joint ballot, or are appointed
by the governor and confirmed by the senate.
Term.--The terms of office of the governors are given in the table. Unless
otherwise stated, the term of the other officers in each state is the same
as that of the governor thereof. For the highest efficiency the term of a
state officer should not be very short, two years being better than one,
and four years better than two. When the term is four years, it may be
well to limit the number of terms for which an officer may be elected. In
some cases this is done.
Removal.--These officers and the others provided by statute may be removed
on impeachment by the house of representatives, and conviction by the
senate.
Vacancy.--For the office of governor there is in every state a line of
succession appointed in its constitution. By reference to the comparative
table, it will be seen that there is considerable uniformity in the order
of succession. In case of a vacancy in any of the other elective offices,
the most usual plan is for the governor to make a temporary appointment
until a new election can be held. For an appointive office, the
appointment is usually good until the end of the next legislature or for
the remainder of the term.
Salary.-The salary attached to each office is usually fixed by law,
subject to the constitutional limitation that it shall not be increased
nor diminished during the term of the incumbent. See page 294.
The Duties of the Officers.
Governor.--The great, the characteristic duty of the governor is to see
that the laws are faithfully executed. Since this may sometimes require
force, he is made by the constitution commander-in-chief of the military
forces of the state, and may call out these forces to execute the laws,
suppress insurrection, or repel invasion.
He appoints, "by and with the advice and consent of the senate," most of
the important state officers and boards, as provided by law. The advice of
the senate is rarely if ever asked. But its consent must be obtained to
make any such appointment valid.
As his duties continue through the year and have to do with the whole
state, and as he may require the opinion, in writing, of the principal
officer in each of the executive departments upon any subject pertaining
to the duties of their respective offices, he is supposed to know more
than any other person about the situation and needs of the state as a
whole; and it is, therefore, made his duty to communicate by message to
each session of the legislature such information touching the affairs of
the state as he deems expedient. The regular message is sent at the
opening of the legislative session, and special messages at any time
during the session as they seem to be needed. On extraordinary occasions
he may convene the legislature in extra session.
To place another obstruction in the way of hasty legislation, the governor
(except in Delaware, North Carolina, Ohio, and Rhode Island) has a limited
veto. [Footnote: See comments on the president's veto, page 150.]
In the administration of justice mistakes are some times made. An innocent
person may be found guilty, or a guilty person may be sentenced too
severely, mitigating circumstances appearing after sentence is passed. For
these and other reasons, there should be power somewhere to grant
reprieves, commutations, and pardons. In most of the states this power is
vested in the governor. It does not, for obvious reasons, extend to cases
of impeachment. Many thoughtful people, including some governors and
ex-governors, question very seriously the wisdom of this absolute
assignment of the pardoning power. One suggestion by way of limitation is
that no pardon issue except upon recommendation of the judge of the court
in which conviction was wrought.
Lieutenant Governor.--As may be seen by reference to the comparative
table, several of the states have no such officer. The office is designed
simply to save confusion in case of a vacancy in the office of governor,
in which case the lieutenant governor acts as governor during the vacancy.
To give him something to do the lieutenant governor is _ex officio_
president of the senate. [Footnote: In case of a vacancy in this office,
the senate, in most states, chooses one of its own number to act as
president _pro tempore_.] In most of the states, he has no voice in
legislation, except a casting vote in case of a tie. But in some states,
as indicated in the comparative table on page 294, he can debate in
committee of the whole.
State Treasurer.--This officer has duties and responsibilities similar to
those of a county treasurer.
Attorney General.--This officer has two chief duties. He represents the
state in suits at law, and may be called upon to aid county attorneys in
criminal prosecutions. When invited to do so he gives legal advice to the
legislature and to the executive officers, on matters pertaining to their
official duties.
Secretary of State and Auditor.--The county auditor, you remember, has
three general lines of duty: 1. To act as official recorder and custodian
of papers for the county board. 2. To be bookkeeper for the county, and in
connection therewith to audit all claims against the county, and issue
warrants on the county treasurer for their payment. 3. To apportion the
taxes.
The corresponding duties in the state, except recording the acts of the
legislature, which is done by legislative clerks, are in most states
divided between two officers, the secretary of state and the state auditor
or comptroller.
The secretary of state has, as his characteristic duty, the preservation
or custody of state papers, acts of the legislature, etc. He is also
keeper of the great seal of the state, and authenticates state documents,
commissions, etc. Incidentally he has other duties. In some states he
prepares the legislative manual; he sees that the halls are ready for the
sessions of the legislature, calls the house to order at its first
meeting, and presides until a speaker is chosen. He also indexes the laws
and other state documents, and superintends their printing and
distribution. [Footnote: In some states there is a superintendent of
printing.]
The auditor or comptroller is bookkeeper for the state, audits accounts
against it, and draws warrants upon the state treasurer for their payment.
[Footnote: No money can be paid out except on appropriation by the
legislature.] The state auditor, also, comparing the legislative
appropriations with the assessed value of the property of the state,
computes the rate of the state tax and reports it to county auditors.
In some states, Wisconsin, for instance, the duties of both offices are
performed by the secretary of state.
In some states the auditor is _ex officio_ land commissioner. In other
states there is a separate officer to take charge of state lands.
Superintendent of Public Instruction.--This officer has general
supervision and control of the educational interests of the state. He is
often _ex officio_ a member of the board of regents of the state
university, of the board of directors of the state normal schools, and of
the state high school board. He has the appointment and general management
of state teachers' institutes. He meets and counsels with county and city
superintendents. Thus an active, earnest, competent man may influence for
good the schools of all grades throughout the state. He reports to the
legislature at each session, through the governor, the condition and needs
of the schools of the state. In this report he recommends such measures
for the improvement of the educational system of the state as he deems
advisable. In many states he apportions the state school money.
Assistants.--Usually the above officers have assistants appointed by
themselves.
OTHER STATE OFFICERS.
The officers given above are the typical state officers, but every state
has others. Of these the most important are shown in the comparative
tabulation.
Some states provide the governor with a council. This is in most cases
simply an advisory, not an administrative or executive body.
_Some Pertinent Questions._
What are the qualifications required in the governor of this state? The
lieutenant governor? The other officers? The names of the state officers?
The length of their terms? The officers not mentioned in the text, and
their duties? Name the state officers whom you have seen.
Which states require the highest qualifications in the governor? The
lowest? Which give the longest term? The shortest? The highest salary? The
lowest? Which states limit the number of terms? Which have no lieutenant
governor? In which states is a majority vote required? Does there seem to
be any sectional law as to these things; that is, is there anything
peculiar to New England, or to the south, or to the northwest? What seems
to be the general law of succession to the governorship? What exceptions?
What is meant by saying that the governor executes the law? Is this saying
strictly true? Is a sheriff an executive or a judicial officer? The
constable? The mayor of a city? Can an executive officer be sued? A
judicial officer?
How many senators and representatives would it take to pass a bill over
the governor's veto? Have you ever known of its being done? If the
governor should go to Washington on business of the state or on private
business, who would act as governor? How long would he so act? Could he
pardon convicts at that time? Have you ever read a message of the
governor?
If the state superintendent of public instruction wants information on
some point of school law, to whom should he appeal? How much would he have
to pay for the advice? What force would the opinion have? Could he obtain
a legal opinion as to a private matter on the same terms?
If you had a bill against the state, how would you get your pay? If
payment were refused what could you do? (Do not try to answer off-hand.
Ask a lawyer.)
How are the expenses of the state government met? The amount of state
expenses last year? (See report of treasurer.)
What are the sources of the school fund, of this state? Did you ever know
of school lands being sold in your county? By whom, how, and on what
terms?
Name your county superintendent of schools. The state superintendent. Is
there a United States superintendent? Get the report of the state
superintendent and find out what it contains. Ask your teacher to let you
see the teachers' report to the county superintendent. How much state
money did your district receive last year?
CHAPTER XIV.
OTHER STATE OFFICERS.
Adjutant-General.--To aid the governor in the discharge of his duties as
commander-in-chief, there is an officer called the adjutant-general.
Through him all general orders to the state militia are issued. He also
keeps the rolls and records of the militia. In some states he is required
by law to act as attorney for those seeking pensions from the United
States.
Railroad Commissioners.--To prevent railroads from charging extortionate
rates for passengers or freight; to see that reasonable facilities are
provided, such as depots, side tracks to warehouses, cars for transporting
grain, etc.; to prevent discrimination for or against any person or
corporation needing these cars; in other words, to secure fair play
between the railroads and the people, a railroad commission consisting of
from one to three members has been established in many states by the
legislature.
Insurance Commissioner.--To protect the people from unreliable insurance
companies, there is an officer called the insurance commissioner. No
insurance company can legally transact business in the state until it has
satisfied the commissioner that its methods of insurance and its financial
condition are such as to give the security promised to those insured by
it. The certificate of authority granted to any company may be revoked by
the commissioner at any time if the company refuses or neglects to comply
with the conditions established by law.
State Librarian.--Each state has a valuable library, composed chiefly of
law books, but containing also many other valuable books and pamphlets.
This library is open to the public. It is in charge of the state
librarian, who acts under prescribed rules.
Public Examiner.--To render assurance doubly sure that public money shall
be used only for the purposes for which it is designed, provision is made
for the appointment of "a skillful accountant, well versed in the theory
and practice of bookkeeping," to exercise constant supervision over the
financial accounts of state and county officers and of banking
institutions incorporated under state laws. This officer is called the
public examiner.
The officers visited are required by law to furnish the public examiner
facilities for his work, and to make returns to him under oath. The
examiner reports to the governor, who is empowered to take action to
protect the interests of the people.
Oil Inspector.--To protect the people from the danger of burning oil unfit
for illuminating purposes, there is an officer called the inspector of
illuminating oils. The inspector appoints a deputy for each county. It is
the duty of these officers to test the illuminating oils offered for sale,
and to mark the barrel or package containing it "approved" or "unsafe for
illuminating purposes," as the case may be. Penalties are attached to the
selling of oils not approved.
Boiler Inspector.--Steam is now used as power in threshing grain and in
grinding it, in sawing lumber, in propelling boats and cars, etc. To
prevent loss of life, engineers must pass an examination and secure a
certificate of qualification. And boilers must be inspected at least once
a year to prevent explosions. The latter duty devolves upon the state
boiler inspector and his assistants. Locomotive engines on railroads are
sometimes exempt from government inspection, because of the invariably
high skill of the engineers and the great care of the companies.
Labor Commissioner.--Among the questions now receiving consideration from
states and nations are many referring to labor--the healthfulness of
factories, hours of labor, employment of children, protection against
accidents, etc. In many of the states there is a commissioner of labor to
make inspections and formulate statistics pertaining to labor.
Officers Peculiar to Certain States.--There are in some states other
officers, necessitated by special industries. Thus, in Minnesota, where
the grain, dairy and lumber interests are very important, there are
inspectors of grain, a dairy commissioner, and surveyors-general of logs.
Appointment and Term.--The officers named in this chapter are elected in
some states; in others they are appointed by the governor and confirmed by
the senate. The term is usually two years.
All are required to give bonds for the faithful discharge of their duties.
All have clerks, deputies, or assistants, appointed by themselves, for
whose official acts they are responsible.
ADMINISTRATIVE BOARDS.
Besides the boards in charge of the several state institutions there are
usually a number of administrative boards. Of these the most important are:
1. _The state hoard of health_, whose duty it is "to make inquiries
concerning the causes of disease, especially of epidemics; the effect of
employments, conditions, and circumstances upon the public health," etc.
2. _The state board of charities and corrections_, whose duty it is "to
investigate the whole system of public charities and correctional
institutions of the state, and examine into the condition and management
thereof, especially of prisons, jails, infirmaries, public hospitals, and
asylums."
3. _State board of equalization_, which equalizes assessments throughout
the state so as to render taxation as nearly just as possible. This board
takes cognizance only of _classes_ of property; it does not attempt to
correct individual grievances.
4. _The state board of immigration_, appointed "to encourage immigration,
by disseminating information regarding the advantages offered by this
state to immigrants."
5. _The commissioners of fisheries_, whose duty is to take means to
increase the number of food fish in lakes and rivers. To this end the
board secures from the United States commissioner of fisheries the quota
of spawn allotted from time to time to the state, and from other sources
spawn of such fish as seem desirable, and has them placed in such lakes
and rivers as they will be most likely to thrive in.
The members of these boards are appointed by the governor. They serve
without pay, except the board of equalization. The state pays the expenses
incident to the discharge of their duty. The secretary of each board
receives a salary, specified by law.
There are also boards to examine candidates for admission to practice
medicine, pharmacy, dentistry, and law.
_Some Pertinent Questions._
Locate the state university, the state normal schools, all of the schools
for the unfortunate, the lunatic asylums, the state prisons.
What is the maximum rate per mile that can be charged by railroads for the
transportation of passengers in this state? How came this to be? If a
farmer wished to ship a carload of wheat without putting it into a
warehouse, how could he get a car? If a car were refused what could he do?
Examine the end of a kerosene cask, and find out what the marks on it
mean. By reference to the latest report of the secretary of the state
board of immigration, find out what inducements to immigrants this state
offers. Is there probably such a board as this in the eastern states? Why?
In European countries? Why?
Does your school receive copies of the pamphlets issued by the state board
of health?
CHAPTER XV.
THE JUDICIAL BRANCH.
We have seen that minor differences may be adjudicated in each town,
village and city, by justices of the peace and municipal courts; and that
courts having jurisdiction unlimited as to the amount at controversy are
held in every county. And these may all be properly called state courts,
the state being subdivided into judicial districts, each comprising one or
more counties, for the purpose of bringing justice within the reach of
every person. But there is also in every state a
STATE SUPREME COURT.
Need of.--The supreme court is needed for the following reasons:
1. _To review cases on appeal._ Notwithstanding the great care exercised
in the lower courts, errors are liable to occur, and the person aggrieved
may ask for a new trial. If this be denied, he may appeal to the supreme
court. Appeals are usually taken on one or more of three grounds--(a) On
exceptions to rulings of the judge as to the admissibility of testimony;
(b) On exceptions to the judge's charge to the jury; (c) On the ground
that the verdict of the jury is not warranted by the evidence.
2. _To interpret the law._ The exceptions referred to in the preceding
paragraph may involve the meaning of a law. In that case the decision of
the supreme court establishes the meaning of the law in question, and the
lower courts of the state are thereafter bound by the interpretation
given.
3. _To pass upon the constitutionality of a law._ The appeal may be made
for the purpose of testing the constitutionality of a law. If declared
unconstitutional by the supreme court, the law is void.
4. _To issue certain remedial writs._ Among these may be mentioned the
writ of _habeas corpus_ and the writ of _mandamus_. Thus, if a person has
been committed to prison by decree of one of the lower courts, to appeal
the case and get it reviewed, might take so much time that the term of
imprisonment would expire before relief could be obtained. To bring the
matter quickly to the test, the writ of _habeas corpus_ may be used.
How Constituted.--The supreme court consists of one chief justice and two
or more associate justices. The number in each state may be seen by
reference to the appendix (pp. 296-7), as may also the term of service,
the number of sessions held during the year, etc.
Reports.--Since the decisions of the supreme court are binding upon all
the lower courts of the state, they must be published in permanent form.
To this end, the clerk of the supreme court makes an elaborate record of
each case; the judges render their decisions in writing, giving their
reasons at length; and the reports of the decisions are prepared for
publication with great care by an officer called the reporter. The
decision is written by one of the judges, who signs it, but it must be
agreed to by a majority of the court. The bound volumes of reports are
found in every lawyer's library.
A Court of Final Appeal.--In all cases involving only state laws, and this
includes a large majority of cases, the decision of the state supreme
court is final. Only on the ground that the state law is not in harmony
with the constitution or laws of the United States can a case involving
such a law be appealed from the supreme court of the state. The appeal is
to the supreme court of the United States, which decides merely the
question of the validity of the law.
State Courts and Federal Courts.--The jurisdiction of the United States
courts is given in the constitution of the United States, Article III,
section 2. If during the progress of a trial in a state court, rights
claimed under the United States constitution or laws or under a treaty of
the United States become involved, the case may be removed to a federal
court.
No Jury in the Supreme Court.--There is no jury in the supreme court.
Questions of fact are determined in the lower courts. Appeals are on
questions of law. A transcript of the proceedings in the trial court is
submitted to the supreme court. Ask a lawyer to show you a brief and a
paper book.
_Some Pertinent Questions._
Give the jurisdiction of a justice court. Of a probate court. Of a
district or circuit court. Of the supreme court?
Who is the recording officer of a justice court? Of a probate court? Of a
district court? Of the supreme court?
Who keeps a record of the testimony in a justice court? In a district
court? What is meant by "noting an exception," and why is it done? If a
person is dissatisfied with the decision of the supreme court, what can he
do about it?
Who besides the judges of the supreme court can issue the writ of _habeas
corpus?_
Name the justices of the supreme court of this state. How are they chosen?
How long do they serve? How many terms does this court hold annually?
Where are they held? How long do they last? Read some of the syllabi of
the decisions as they appear in the newspapers. Who prepares these
outlines for the press?
Which state in the Union has the largest supreme court? Which has the
smallest? Which demands the highest qualifications? In which is the term
the longest? In which the shortest? Does a decision of the supreme court
of New York have any weight in Minnesota? Which states rank highest in the
value attached to the decisions of their supreme courts? How do you
account for this?
Paper: By means of pages 292-7, &c., prepare a tabular view of your state,
taking that on pages 314-15 as a model.
CHAPTER XVI.
RETROSPECT AND PROSPECT.
Each Organization a Miniature Government.--Some things of general interest
are matters for regulation by the state as a whole, through its
legislature. But many things are properly left to local regulation. For
instance, in a timbered town, where fences can be cheaply built, it may be
desirable, especially if there is much wild land, to let cattle run at
large, each person _fencing out_ the cattle from his crops. On the other
hand, in a prairie town, where fencing is expensive, or where there is
little wild land, it may seem best to arrange that each person shall
_fence in_ his own cattle. No persons can judge which is the better plan
for a given neighborhood so well as the people who live there. And to them
it is left, to be determined at the annual meeting. In passing upon such
questions, in appropriating money for local improvements, &c., powers
pseudo-_legislative_ are exercised. Matters of detail are determined by
the supervisors, and they with the clerk, the treasurer, the road
overseers, the constables, and the assessor, constitute what may be called
the _executive_, or more properly the _administrative_, department. And
the local _judicial_ functions are performed by the justices of the peace.
Similarly it may be shown that the village, the city, and the county are
governments in miniature.
Local Officers as State Officers.--The governor is the _chief_ executive
officer of the state, but not the _only_ one. There are others enumerated
on pages 90-99. But besides these, the state uses local officers in part
to carry into execution the acts of the legislature. For instance, when
the legislature has appropriated a certain sum for a specific purpose, the
executive department raises and applies the money. To this end, the
taxable property of the state is "valued" by the assessors; these
estimates are reviewed by the boards of equalization; the county auditors
make up the tax lists; the county treasurers collect the money and
transmit it to the state treasurer, from whom it goes to the institution
for whose benefit it was appropriated.
All writs issued by justices of the peace run in the name of the state,
showing that these are in a certain sense state judicial officers.
State Officers as United States Officers.--As a rule the United States
appoints its own officers, and stations them where they are needed. But in
a very few cases, state officers are used. For instance, in order that
persons accused of crime against the United States may be promptly
apprehended, commissioners of the United States circuit court are
appointed in every state with power to issue warrants of arrest and take
testimony. But in the absence of a commissioner, the warrant may be issued
and testimony taken by any judicial officer of the state. In such a case,
a justice of the peace may act temporarily as a United States officer. The
best interests of society are served thereby.
Elective and Appointive Officers.--In the school district and the town all
officers are elected, none being appointed except to fill vacancies. As
the organizations increase in size, appointive offices increase relatively
in number, until among officers of the United States only two are elected.
Members of the _legislative_ department in each of the organizations are
elected.
Vacancies.--These occur usually either by death or resignation,
occasionally by removal from office. To save the expense of a special
election, vacancies in elective offices are filled by temporary
appointment, except in the case of members of the legislature and members
of the United States house of representatives.
Resignations.--These are sent as a rule: (a) by elective officers, to that
officer who is authorized to make the temporary appointment or to order a
new election; (b) by appointive officers, to the body, board, or officer
that appointed them.
_Pertinent Questions._
Who constitute the legislative department in a town? In a village? In a
city? In a county? The executive in each? The judicial? Show that the
county superintendent of schools is also one of the executive officers of
the state. Do any local officers belong to the state legislative
department? Should the judges of the circuit court be elected or
appointed? Should all the county officers be elected at the same time? To
whom would a member of congress send his resignation if he desired to be
relieved? A judge of the state supreme court? The county auditor?
PART III.
THE NATION.
CHAPTER XVII.
HISTORICAL.
In order to understand the government of the United States, we must
examine its beginnings and antecedents.
THE COLONIES.
When Columbus returned to Spain with his marvelous stories of the New
World, expeditions were fitted out which soon filled the coffers of that
country with wealth from Mexico, Central and South America, and the West
Indies. Spain became the wealthiest nation of the world. Other countries
soon caught the infection, and expeditions were sent from France, Holland
and England, the other great commercial nations of western Europe.
For a long time scarcely any effort was made to form permanent
settlements, and the attempts that were by and by made were unsuccessful.
For more than a hundred years the territory now included within the United
States remained unoccupied, except at a few points in the southern part.
Explorations were, however, pushed with vigor, and many conflicting claims
were based upon them.
About the beginning of the seventeenth century permanent settlements began
to be made, yet the increase in population was for the succeeding hundred
and fifty years very slow. During this time settlements were made in the
tropical part of America by the Spanish; the French founded settlements in
Canada and established a chain of forts along the Ohio and Mississippi;
and the English, though claiming all the land to the Pacific, made
settlements only along the Atlantic. The Dutch and the Swedes made
settlements along the Hudson and about Delaware Bay, respectively.
By the middle of the eighteenth century, the Swedes had been dispossessed
by the Dutch, who in turn had succumbed to the English. And in 1756 began
the great struggle between France and England for the possession of the
Mississippi Valley. England won, and the existence of the United States as
we know and love it became a possibility.
THE CAUSES OF THE REVOLUTION.
The causes of the Revolutionary War fall naturally into two great classes,
the remote and the immediate.
The Remote Causes.--Among the underlying causes of the war may be
mentioned the following:
1. _The location of the colonies._ They were separated from the mother
country by a great ocean, which then seemed many times as wide as it does
now. Communication was so infrequent that the authorities in England could
not keep track of what was going on in America, and misgovernment could
flourish unchecked because unknown. And so far away and so differently
circumstanced from the people in England were the people of the colonies
that the former could not appreciate the real needs of the latter.
2. _The character of the colonists._ Character is the product largely of
ancestry and circumstances. The ancestors of these people, after a
struggle lasting hundreds of years, had established liberty in England and
intrenched it in guarantees the wisest ever devised by man. From them the
colonists inherited the right of freedom from arbitrary arrest; of giving
bail in ordinary offenses; of a speedy, public trial by jury, near the
place where the crime was alleged to have been committed; of the writ of
habeas corpus; of established rules of evidence; and, indeed, of nearly
all the rights mentioned in the first ten amendments to the constitution
of the United States. Their ancestors had, in the war between Cromwell and
Charles I., laid down their lives to establish the principle that taxes
can be laid only by the people or by their representatives. The colonists
themselves had been compelled to face difficulties incident to life in a
new country, and had developed the power to act independently in matters
pertaining to their individual good. And in the management of their
several commonwealths they had gained considerable experience in
governmental affairs. With such ancestry and such experience they would
not tamely endure being imposed upon.
3. _The character of the king._ On the death of Queen Anne without an
heir, George I., elector of Hanover, had become king of England, and he
had been succeeded by his son, George II. To both of these kings England
was really a foreign country, of whose institutions, and of whose language
even, they were profoundly ignorant. As a consequence, their personal
influence in England was small. When, in 1760, young George III. ascended
the throne, he resolved to be king in fact as well as in name. This
determination, which he adhered to, coupled with his unfamiliarity with
English institutions, explains many things otherwise difficult to
understand. (See Fiske's War of Independence, pp. 58-70.)
4. _The prevailing mode of colonization._ Many of the colonies had been
founded for commercial reasons merely, with no intention of forming
governmental institutions, Chartered companies and individuals planted
settlements for the profit there was supposed to be in doing so. These
colonies were designed to be merely "self-supporting trading outposts of
England." Money had been put into these enterprises, and in the effort to
secure a profitable return many unjust commercial restrictions were
imposed upon the colonists.
Immediate Causes.--Among the immediate causes of the Revolutionary War may
be mentioned:
1. _The French and Indian War._ In the first place, this war facilitated
the union of the colonies. Several attempts at union had failed; there
were too many opposing influences. While by far the greater number of the
colonists were English, there were many Dutch in New York, and some Swedes
remained in Delaware. Moreover, the English themselves differed radically
in politics, those in the South having been royalists, while those in New
England sympathized with Cromwell and parliament. But more serious than
these political differences, were the differences in religion. The old
European quarrels had an echo here, and the catholics of Maryland, the
episcopalians of Virginia, the puritans of Massachusetts, the baptists of
Rhode Island, the lutherans of New York, and the quakers of Pennsylvania,
all had grievances to remember. Travel, which does so much to broaden the
mind and free it from prejudice, was both difficult and dangerous. The
French and Indian War, bringing together men from all the colonies, was of
great service in breaking down intercolonial animosities. Facing the same
dangers, standing shoulder to shoulder in battle, and mingling with each
other around the camp fires, the men of the several colonies came to know
each other better, and this knowledge ripened into affection. The soldiers
on their return home did much to disseminate the good feeling.
In the second place, the French and Indian War by annihilating all the
claims of France to American soil removed the principal enemy that had
rendered the protection of England necessary to the colonies.
In the third place, this war gave the colonists an experience in military
affairs and a confidence in their own powers which emboldened them to dare
open rebellion.
And in the fourth place, this war produced the debt which led to the
taxation which was the most immediate cause of the outbreak.
2. _Various tyrannical acts of the king_. These are given explicitly in
the Declaration of Independence.
_Some Pertinent Questions._
Name a country in the world's history that ever allowed its colonies
representation in its home parliament or legislative body. Name one that
does it today. Why do territories in this country desire to become states?
Name some country, other than England, which could have given birth to the
United States. Prove your proposition.
The Duc de Choiseul, the French minister who signed the treaty whereby
France yielded to England her claims to American soil, remarked after
doing it, "That is the beginning of the end of English power in America."
What did he mean? Upon what did he base his opinion? Why did France help
the Americans in the Revolutionary War?
What is meant, in speaking of the colonies, by _royal province?_ _Charter_
government? _Proprietary_ government?
What experience in law making did the colonists have? Where and when did
the first representative assembly in America convene? Find in the
Declaration of Independence an expression complaining of
non-representation in parliament.
To the patriotic and far sighted men who had striven to form a union of
the colonies, did the religious differences which frustrated their plans
seem fortunate or unfortunate? Can you see how it came about that we have
no state church, that we enjoy religious freedom? Doesn't it seem that
there must have been a Planner wiser than any man who was working out His
own designs?
CHAPTER XVIII.
THE ARTICLES OF CONFEDERATION.
WHAT PRECEDED THEM.
The Revolutionary Period.--The nation was born July 4, 1776. From that
time until the adoption of the articles of confederation in 1781 the
people of the United States carried on their governmental affairs by means
of a congress "clothed with undefined powers for the general good."
This congress had, speaking "in the name and by the authority of the good
people of these colonies," issued the declaration of independence; it had
entered into an alliance with France; and it had prosecuted the war almost
to a successful issue, before it had received any definite warrant for its
acts. Its acts were justified by necessity, and had their authority in the
"common consent" of a majority of the people. During nearly all of the
revolutionary war, the people of the colonies were largely "held together
by their fears."
THE ARTICLES THEMSELVES.
Their History.--But these were pre-eminently a people of peace and good
order. This is shown in part by the spirit and form of the declaration of
independence. They had no idea of allowing themselves to lapse or drift
into anarchy. They understood the necessity for a permanent government.
Accordingly, when, on the eleventh of June, 1776, a committee of congress
was appointed to "abolish" one form of government by drafting a
declaration of independence, another committee was appointed to frame a
plan on which to "institute a new government."
After more than a month's deliberation this committee reported its plan,
embodied in what is called articles of confederation. This plan was
discussed from time to time, and finally, somewhat modified, was agreed to
by congress, November 15, 1777. It was then submitted to the states for
ratification.
In July, 1778, the articles were ratified by ten of the states. New Jersey
ratified in November, 1778, and Delaware in February, 1779. But the
articles were not to become binding until ratified by all the states, and
Maryland did not authorize her delegates in congress to sign the
instrument in ratification until March 1, 1781. (Maryland claims to have
fought through the revolutionary war, not as a member but as an ally of
the United States.)
Their peculiarities.--The articles of confederation were different from
our present constitution, both in principle and in method of operation, as
follows:
1. _The nature of the government formed._ The government was that of a
"confederation of states," each retaining its sovereignty and
independence. The union was declared to be a "firm league of friendship."
It was to be perpetual.
2. _The branches of government._ Only one was provided for, a congress. No
provision was made for executive or judicial officers apart from the
congress itself.
3. _The structure of the congress._ The congress consisted of only one
house or chamber. Members were elected for one year, subject to recall at
any time, and they were paid by their respective states. No person was
eligible to membership for more than three years in any period of six
years. No state could be represented by "less than two, nor more than
seven members." Each state had one vote.
4. _The powers of congress._ "The United States in congress assembled" had
power to treat with foreign countries, to send and receive ambassadors, to
determine peace and war. Congress was the last resort on appeal in all
disputes between the states; could fix the standard of weights and
measures, and of the fineness of coin; could establish and regulate
postoffices; could ascertain and appropriate "the necessary sums of money
to be raised for the service of the United States;" could borrow money "on
the credit of the United States;" could agree upon the number of land
forces and make requisition on each state for its quota; and could appoint
a committee consisting of one member from each state, to sit during the
vacations of congress.
5. _Powers denied to the states._ No state could enter into any treaty
with another state or with a foreign nation, nor engage in war, except by
consent of "the United States in congress assembled;" nor keep vessels of
war or a standing army in time of peace, except such number as congress
should deem necessary.
Reasons for the peculiarities.--Suffering breeds caution. Every one of the
peculiarities was based upon distrust.
The people were afraid to trust their delegates. This is manifest in the
shortness of the term, the provision for recall, the reserved right to
control the delegates by controlling their pay, and the limitation as to
service.
The states were afraid of each other, especially were the small states
distrustful of the large ones. This is evidenced in the provision that
each state should have one vote. By this arrangement the states had equal
power in the congress.
The people and the states were afraid of the general government. A central
government was a necessity, but it was given only very limited powers. The
people would not have an executive officer, because they feared anything
resembling kingly rule. They did not dare to establish a national
judiciary having jurisdiction over persons and property, because their
experience with "trials beyond the sea" had made them wary of outside
tribunals.
It is to be observed, however, that with all their distrust, in spite of
the fact that their colonial or state jealousies and habits had returned
upon them, notwithstanding their specific statement in the instrument
itself that "each state retains its sovereignty," the instinct of
nationality was yet strong enough to cause them to continue in the general
government the actual sovereign powers. Thus, the "United States" alone
could treat with foreign nations, declare war, and make peace. Another
great sovereign power, that of coining money, was unfortunately shared by
the states.
Their defects.--The great defect in the articles of confederation was that
they placed too little power in the hands of the general government.
Although congress possessed the right to declare war, it could only
apportion the quota of men to each state; the states raised the troops.
And so on with the other powers. The government of the United States
during the confederation period was "a name without a body, a shadow
without a substance." An eminent statesman of the time remarked that "by
this political compact the continental congress have exclusive power for
the following purposes without being able to execute one of them: They may
make and conclude treaties; but they can only recommend the observance of
them. They may appoint ambassadors; but they cannot defray even the
expenses of their tables. They may borrow money on the faith of the Union;
but they cannot pay a dollar. They may coin money; but they cannot buy an
ounce of bullion. They may make war and determine what troops are
necessary; but they cannot raise a single soldier. In short, they may
declare everything, but they can do nothing."
The consequences.--"The history of the confederation during the twelve
years beyond which it was not able to maintain itself, is the history of
the utter prostration, throughout the whole country, of every public and
private interest,--of that which was, beyond all comparison, the most
trying period of our national and social life. For it was the extreme
weakness of the confederate government, if such it could be called, which
caused the war of independence to drag its slow length along through seven
dreary years, and which, but for a providential concurrence of
circumstances in Europe, must have prevented it from reaching any other
than a disastrous conclusion. When, at last, peace was proclaimed, the
confederate congress had dwindled down to a feeble junto of about twenty
persons, and was so degraded and demoralized, that its decisions were
hardly more respected than those of any voluntary and irresponsible
association. The treaties which the confederation had made with foreign
powers, it was forced to see violated, and treated with contempt by its
own members; which brought upon it distrust from its friends, and scorn
from its enemies. It had no standing among the nations of the world,
because it had no power to secure the faith of its national obligations.
For want of an uniform system of duties and imposts, [Footnote: Each state
regulated its own commerce.] and by conflicting commercial regulations in
the different states, the commerce of the whole country was prostrated and
well-nigh ruined.... Bankruptcy and distress were the rule rather than the
exception.... The currency of the country had hardly a nominal value. The
states themselves were the objects of jealous hostility to each other....
In some of the states rebellion was already raising its horrid front,
threatening the overthrow of all regular government and the inauguration
or universal anarchy." [Footnote: Dr. J. H. McIlvaine in Princeton Review,
October, 1861. Read also Fiske's Critical Period of American History,
chapter IV.]
CHAPTER XIX.
THE ORIGIN OF THE CONSTITUTION.
"For several years efforts were made by some of our wisest and best
patriots to procure an enlargement of the powers of the continental
congress, but from the predominance of state jealousies, and the supposed
incompatibility of state interests with each other, they all failed. At
length, however, it became apparent, that the confederation, being left
without resources and without powers, must soon expire of its own
debility. It had not only lost all vigor, but it had ceased even to be
respected. It had approached the last stages of its decline; and the only
question which remained was whether it should be left to a silent
dissolution, or an attempt should be made to form a more efficient
government before the great interests of the Union were buried beneath its
ruins." [Footnote: Story]
Preliminary Movements.--In 1785 a resolution was passed by the legislature
of Massachusetts declaring the articles of confederation inadequate, and
suggesting a convention of delegates from all the states to amend them. No
action, however, was taken. In the same year commissioners from Virginia
and Maryland met at Alexandria, Va., to arrange differences relative to
the navigation of the Potomac, the Roanoke, and Chesapeake Bay. The
deliberations showed the necessity of having other states participate in
the arrangement of a compact. In 1786 the legislature of Virginia
appointed commissioners "to meet such as might be appointed by the other
states of the Union, ... to take into consideration the trade of the
United States." Only four states accepted the invitation. Commissioners
from the five states met at Annapolis, and framed a report advising that
the states appoint commissioners "to meet at Philadelphia on the second
Monday in May next, to take into consideration the situation of the United
States, to devise such further provisions as shall appear to them
necessary to render the constitution of the federal government adequate to
the exigencies of the Union." [Footnote: Elliot's Debates] In accordance
with this suggestion, congress passed a resolution, February 21, 1787,
recommending that a convention of delegates, "who shall have been
appointed by the several states, be held at Philadelphia, for the sole and
express purpose of revising the articles of confederation." [Footnote:
Elliott's Debates]
The Constitutional Convention.--In response to the call of congress,
delegates from all the states except Rhode Island met in Philadelphia. By
May 25, a quorum had assembled, the convention organized, with George
Washington as chairman, and began its momentous work.
It was soon discovered that it would be useless to attempt to amend the
articles of confederation. They were radically defective, and a new plan
of government was seen to be necessary. The _national_ idea must be
re-established as the basis of the political organization.
"It was objected by some members that they had no power, no authority, to
construct a new government. They certainly had no authority, if their
decisions were to be final; and no authority whatever, under the articles
of confederation, to adopt the course they did. But they knew that their
labors were only to be suggestions; and that they as well as any private
individuals, and any private individuals as well as they, had a right to
propose a plan of government to the people for their adoption.... The
people, by their expressed will, transformed this suggestion, this
proposal, into an organic law, and the people might have done the same
with a constitution submitted to them by a single citizen." [Pomeroy's
Constitutional Law, p. 55]
The labors of the convention lasted four months. The constitution was
agreed to September 15, 1787.
Some of the difficulties encountered.--Of these perhaps the most
formidable was the adjustment of power so as to satisfy both the large and
the small states. So long as the idea of having the congress consist of
one house remained, this difficulty seemed insurmountable. But the
proposal of the bicameral congress proved a happy solution of the
question. [Footnote: See discussion of section 1, Article I.,
Constitution, page 124.]
Although so much distress had followed state regulation of commerce, and
although most of the delegates from the commercial states were in favor of
vesting this power in the federal government, it was only after much
deliberation, and after making the concession that no export duties should
be levied, that the power to regulate commerce was vested in congress.
Another perplexing question was the regulation of the slave trade. For two
days there was a stormy debate on this question. By a compromise congress
was forbidden to prohibit the importation of slaves prior to 1808, but the
imposition of a tax of ten dollars a head was permitted.
The men who constituted the convention.--The convention included such men
as George Washington, Alexander Hamilton, Benjamin Franklin, James
Madison, Roger Sherman, Gouverneur Morris, Edmund Randolph, and the
Pinckneys. "Of the destructive element, that which can point out defects
but cannot remedy them, which is eager to tear down but inapt to build up,
it would be difficult to name a representative in the convention."
[Footnote: Cyclopedia of Political Science, vol. I., article
"Compromises."]
The constitution a growth.--The constitution was not an entirely new
invention. The men who prepared it were wise enough not to theorize very
much, but rather to avail themselves of the experience of the ages. Almost
every state furnished some feature. For instance: The title President had
been used in Pennsylvania, New Hampshire, Delaware, and South Carolina;
The term Senate had been used in eight states; the appointment and
confirmation of judicial officers had been practiced in all the states;
the practice of New York suggested the president's message, and that of
Massachusetts his veto; each power of the president had its analogy in
some state; the office of vice-president came from that of lieutenant
governor in several of the states.
Some of its peculiarities.--And yet the instrument is one of the most
remarkable ever penned by man.
1. _It is short_. It would not occupy more than about two columns of a
newspaper.
2. _It covers the right ground_. It deals with things permanent, and
leaves transient matters to legislation. Its adaptation to our needs is
seen in the fact that it has remained substantially unchanged, although in
territory and population our country has grown immensely.
3. _It is a model in arrangement and language_. The lucidity and
perspicuity of the language of the constitution have called forth
expressions of admiration from all who have studied it carefully.
Probably its master-stroke is the creation of the national judiciary.
Let us now proceed to a study of the instrument itself, prepared to weigh
carefully every sentence.
_Some Pertinent Questions_.
Group all the defects of the government under the articles of
confederation using these two heads: 1. Defects in organization. 2.
Defects in essential powers.
In the constitutional convention there were several "plans" proposing
forms of government. State the provisions of the Virginia plan; of the New
Jersey plan; of the Hamilton plan; the Connecticut plan. Watch for traces
of each as you proceed in your study of the constitution.
Memorize the following outline of the constitution:
GENERAL OUTLINE OF THE CONSTITUTION.
PREAMBLE, giving reasons for the formation of the constitution.
ARTICLE I.--_The Legislative Department_.
Sec. 1. Vestment of power in a congress of two houses.
Sec. 2. House of representatives: apportionment, qualifications, election,
term, sole powers.
Sec. 3. Senate: apportionment, qualifications, election, term, sole
powers.
Sec. 4. Congress: time and place of election, time of meeting.
Sec. 5. Houses respectively: relations to members.
Sec. 6. Provisions common: privileges and disabilities.
Sec. 7. Mode of passing laws.
Sec. 8. Powers of congress.
Sec. 9. Prohibitions on congress.
Sec. 10. Prohibitions on the states.
ARTICLE II.--_The Executive Department_.
Sec. 1. Vestment of power, term, qualifications, election, etc.
Sec. 2. Powers.
Sec. 3. Duties.
Sec. 4. Responsibility.
ARTICLE III.--_The Judicial Department_.
Sec. 1. Vestment of authority, appointment, term, etc.
Sec. 2. Jurisdiction.
Sec. 3. Treason, definition, procedure.
ARTICLE IV.--_The States_.
Sec. 1. Mutual credit of official papers.
Sec. 2. Inter-state relations.
Sec. 3. New states and territories.
Sec. 4. Republican form of government guaranteed.
ARTICLE V.--_Mode of Amending the Constitution_
ARTICLE VI.--_Miscellaneous_
ARTICLE VII.--_Ratification_
AMENDMENTS.
1-10. Personal rights guaranteed.
11. Limitation on Jurisdiction of U.S. Courts.
12. Mode of electing the president and vice-president.
13-15. Fruits of the Civil War.
[Illustration: PRINCIPAL STORY (For Key see back of page.)]
[Illustration: THE PRINCIPAL STORY OF THE CAPITOL.]
CHAPTER XX.
THE CONSTITUTION OF THE UNITED STATES.
THE ENACTING CLAUSE [1] OR PREAMBLE.
_We, the people of the United States,[2] in order to form a more perfect
union,[3] establish justice,[4] insure domestic tranquillity,[5] provide
for the common defense,[6] promote the general welfare,[7] and secure the
blessings of liberty to ourselves and our posterity,[8] do ordain and
establish this constitution for the United States of America._
[1] The preamble or enacting clause is very important, because it states
the purposes for which the constitution was framed, and is, therefore, a
valuable aid in interpreting its provisions.
[2] These words are important, because: First, they recognize the people
as the source of power. Second, they show that the constitution is
different in nature from the articles of confederation. The latter was a
compact between states, adopted by state legislatures acting for the
states as such; the former was "ordained and established" by "the people
of the United States," _one_ people, acting as a unit. And the expression,
which was inserted in the preamble after due deliberation, is, therefore,
an argument in favor of the proposition that this is a _nation_ and not a
mere confederacy.
[3] "More perfect" than under the articles of confederation, in which the
states were declared sovereign and independent. The sovereignty is given
by the constitution to the general government, which is clothed with ample
power to maintain its independence. At the same time such limitations are
placed upon its power as will prevent its becoming despotic.
[4] To establish justice is one of the primary purposes of government.
Under the articles of confederation there had been no national judiciary,
and state courts often discriminated against foreigners and citizens of
other states. To remedy this, to establish fair-handed justice throughout
the land, the national judiciary was created by the constitution.
[5] "Domestic tranquillity" means here peace among the states and within
each state. The condition of affairs during the confederation period had
been woeful. A long war had impoverished the people, and unable to pay
their taxes they had in several places broken out in rebellion. Each state
by commercial regulations was trying to better its fortunes even at the
expense of the others. These regulations, and disputes about boundaries,
kept the states quarreling among themselves.
By transferring to the general government the power to regulate commerce
with foreign nations and among the states, by giving it power to enforce
treaties, and by creating a tribunal with authority to settle
controversies between states, the framers of the constitution removed in a
large measure the irritating causes of discord. But to _insure_ peace, the
general government was expressly given power to put down insurrections in
the states.
[6] To defend the country is another of the important duties of
government. The United States could do this better than each state could
defend itself. Several reasons are obvious. Therefore the general
government was empowered to raise and maintain an army and navy, and it
thus became "competent to inspire confidence at home and respect abroad."
[7] "To promote the general welfare" was the great object for which the
government was organized, and all the provisions of the constitution have
that in view. This expression was intended to cover all those things which
a government may properly do for the good of the people. It is very
elastic, as it was intended to be, and has covered acts as different as
the purchase of Louisiana, and the endowment of agricultural colleges, the
granting of a patent, and the establishment of post-offices.
[8] This is a worthy climax to the preamble. The great struggle, which
began in the mother country, continued through colonial times, and
culminated in the revolution, had been for liberty. The love of liberty
had illumined the pathway of the pilgrims crossing unknown seas; it had
glowed in the Declaration of Independence; it had warmed the hearts of the
half-clad soldiers at Valley Forge.
Liberty had now been won; the problem was how to render it secure. The
desired security was to be found only in the formation of a government
having all powers necessary for national sovereignty and independence,
while retaining in the states all powers necessary for local
self-government.
CHAPTER XXI.
ARTICLE I.--THE LEGISLATIVE BRANCH.[1]
SECTION I.--CONGRESS.
_All legislative powers herein granted, shall be vested in a congress of
the United States, which shall consist of a senate and house of
representatives._[2]
[1] The division of governmental functions among three branches has
already been discussed on page 79.
The legislative branch comes first and occupies most space in the
constitution because its framers regarded the legislative as the most
important branch. And laws must be _made_ before they can be interpreted
or executed.
[2] The _reason_ for the creation of two houses or chambers was that thus
only could the conflicting claims of the large and small states be
reconciled. It was, in fact, a _compromise_, the first of a series.
Only a few in the convention thought at first of having two houses, the
plan being to continue as under the articles of confederation with one
house. On the question of apportioning representatives, it was found that
there was a decided difference of opinion. The small states wished to
continue the principle of the articles of confederation, which gave the
several states equal power. But the large states insisted that the power
of a state should be _in proportion to its population_. The differences
were finally settled by the creation of two houses, in one of which the
states should have equal power, and in the other the representation should
be based upon population.
Connecticut has the honor of furnishing this valuable compromise. In her
legislature, representation in one house was based on population; in the
other, the towns had equal representation.
Among the _advantages_ of having two houses, aside from that mentioned on
page 80, are these: It tends to prevent a few popular leaders from
carrying through laws not designed for the common good; it secures a
review of any proposed measure by men elected in different ways and
looking at it from different standpoints. As our congress is organized,
the members of the house of representatives, being elected by popular vote
and for a short term, are likely to represent with considerable
faithfulness the wishes of the people. But the people may be for a time
wrong--as, for instance, in the persecution of the "witches"--and
senators, who by their mode of election and length of term are made
somewhat independent, can comparatively without fear do what seems right,
even if temporarily unsupported by public opinion.
SECTION II.--HOUSE OF REPRESENTATIVES.[1]
_Clause 1.--Composition and Term._
_The house of representatives shall be composed of members chosen every
second year[2] by the people[3] of the several states, and the electors[4]
in each state shall have the qualifications requisite for electors of the
most numerous branch of the state legislature.[5]_
[1] So called because it represents the people.
[2] The term under the confederation had been one year. This was too short
to permit any adequate study of the subjects to be legislated upon. This
longer term, two years, is still short enough to impose upon
representatives the feeling of responsibility.
The term begins March 4, at noon. The time covered by a representative's
term is called _a congress;_ thus we speak of the fortieth congress,
meaning the fortieth two years of our constitutional existence. The name
also applies to the body constituting our national legislative department
during that time. Thus we say that a certain person is a member of
congress.
"A congress" includes two regular sessions and any number of extra
sessions which the president may see fit to call or which may be provided
for by law. The first regular session is called "the long session,"
because congress may remain in session through the summer, if it choose.
The second is called "the short session," because it must end March 4, at
noon. Expiring thus by limitation, it lasts not more than about three
months.
[3] The word _people_ here means _voters_.
Each state is divided by its legislature into congressional districts
equal in number to the representatives to which it is entitled, and the
people of each district elect one representative. Sometimes when a state
has its representation increased after a new census, the old congressional
districts are left for a time undisturbed, and the added representatives
are elected "at large," while the others are chosen by districts as
before.
[4] Voters.
[5] The qualifications for voting in any state are fixed by the state
itself, and different states require different qualifications. When the
constitution was framed, but not now, some states required higher
qualifications in voters for the upper house of the state legislature than
in voters for the lower; so that more persons could vote for members of
the lower, which is always the "most numerous" branch, than for the
higher. Desiring to make the United States house of representatives as
"popular" as possible, the framers of the constitution determined that all
whom any state was willing to trust to vote for a member of the lower
house of the state legislature, the United States could trust to vote for
members of its lower house.
_Clause 2.--Qualifications_.
_No person shall be a representative who shall not have attained the age
of twenty-five years,[1] and been seven years a citizen of the United
States,[2] and who shall not, when elected, be an inhabitant of that state
in which he shall he chosen.[3]_
[1] For business and voting purposes a man "comes of age" at twenty-one
years. Four years of probation are considered the least amount of time
necessary to fit him for the responsibilities of a member of the house of
representatives.
[2] A born citizen will at twenty-five years of age have been a citizen
for twenty-five years. A naturalized citizen must have lived in the United
States for at least twelve years, [Footnote: Eight years in the case of an
honorably discharged soldier who may become a citizen on one year's
residence.] five years to become a citizen and seven years afterwards,
before being eligible to the house of representatives. These twelve years
will have given him time to become "Americanized."
[3] Residence in the state is required in order that the state may be
represented by persons interested in its welfare. No length of time is
specified, however. Residence in the district is not required by the
constitution, because the distribution of representatives within a state
is left to the state itself. A person _may_ be chosen to represent a
district in which he does not live, and this has been done in a few
instances. One does not lose his seat by moving from the district or even
from the state, but propriety would impel resignation.
WHO MAY NOT BE REPRESENTATIVES.
1. Persons holding any office under the United States. [I., 6, 2.]
2. Persons who by engaging in rebellion against the United States have
violated their oath to support the constitution, unless the disability be
removed. [Am. XIV., 3.]
_Clause 3.--Apportionment._
The parts of this clause enclosed in brackets are now obsolete.
_Representatives and direct taxes[1] shall be apportioned among the
several states which may be included within this Union, according to their
respective numbers,[2] [which shall he determined by adding to the whole
number of free persons[3] including those bound to service [4] for a
number of years, and] excluding Indians not taxed, [three-fifths of all
other persons.[5]] The actual enumeration[6] shall he made within three
years after the first meeting of the congress of the United States,[7] and
within every subsequent term of ten years, in such manner as they shall by
law direct. The number of representatives shall not exceed one for every
thirty thousand,[8] but each state shall have at least one
representative,[9] [and until such enumeration shall he made, the State of
New Hampshire, shall be entitled to choose three, Massachusetts eight,
Rhode Island and Providence Plantations one, Connecticut five, New York
six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six,
Virginia ten, North Carolina five, South Carolina five, and Georgia
three.]_
[1] These are like the usual local taxes; that is, "poll" taxes and taxes
on real and personal property. A tax on incomes derived from such property
was, in May, 1895, declared by the United States Supreme Court to be a
direct tax. United States direct taxes have been laid only in 1798, 1813,
1815, 1816, 1862.
[2] The revolutionary war had just been fought to maintain the principle,
"taxation and representation go hand in hand," and this provision was made
in harmony therewith. The including of direct taxes was a concession to
the slaveholding states.
[3] Men, women and children. [4] Apprentices.
[5] Slaves. The framers of the constitution did not like to use the word
"slave," and therefore used this expression. Most of them, even the
slaveholders, hoped that slavery would soon cease to be.
In determining the persons to be enumerated, much difficulty was
encountered. The slaveholding states wished the slaves counted as
individuals, claiming that they had as much right to be represented as had
women, children and other non-voters. The non-slaveholding [Footnote: In
all the states except Massachusetts slavery then existed. But in the
northern states the number of slaves was so small, that we may call them
"non-slaveholding."] states thought that being held as property they
should not be counted at all for purposes of representation. This
provision in the constitution was the outcome,--another compromise.
[6] Called the _Census_. The prime purpose in taking the census is to find
out the number of people in each state, so that representation may be
equalized. But the census takers collect at the same time a vast amount of
other useful information upon the agriculture, manufactures, commerce,
etc., of the country. Reports of the census are published by the
government for gratuitous distribution.
[7] The first meeting of congress was held in 1789, and the first census
was taken in 1790.
[8] To prevent the House from becoming too large. But the population of
the United States has constantly and rapidly increased, so that the "ratio
of representation," as it is called, has been made greater at each census.
It now takes 173,901 people to secure a representative. (For ratio in each
decade, see pages 312-13.)
[9] So that even the smallest states shall be represented.
_Clause 4.--Vacancies._
_When vacancies[1] happen in the representation from any state, the
executive authority[2] thereof shall issue writs of election[3] to fill
such vacancies.[4]_
[1] Vacancies usually happen through the death or resignation of the
incumbent. But a vacancy may be made by the expulsion of a member or by
the election of an ineligible person.
[2] The governor or acting governor.
[3] That is, he orders an election. The order is printed in the newspapers
of the district, and specifies the time the election is to be held. At the
time specified the electors vote as in regular elections. This is called a
"special election."
[4] The person elected serves for the unexpired term.
_Clause 5.--House Powers.
The House of Representatives shall choose their speaker[1] and other
officers;[2] and shall have the sole power of impeachment[3]._
[1] Called so in imitation of the title of the presiding officer of the
British House of Commons, who was originally called the speaker because he
acted as spokesman in communicating to the king the wishes of the House.
The speaker is chosen by ballot from among the members, and serves during
the pleasure of the House. At the beginning of each congress a new
election is held. A speaker may be re-elected. Henry Clay served as
speaker for ten years.
The duties of the speaker are prescribed by the rules of the House. So
far, he has always appointed the committees. As the work of legislation is
largely shaped by committees, it may be fairly asked whether any one else
can so affect the legislation of the country as can the speaker--whether,
indeed, he has not too much power.
[2] The most important "other officers" are the clerk and the
sergeant-at-arms.
The clerk, as his title would indicate, has charge of the records of the
House. He has a number of assistants.
The sergeant-at-arms acts under the orders of the speaker in keeping order
and in serving processes. His duties in the House resemble those of the
sheriff in court.
The doorkeeper, postmaster, and chaplain, have duties indicated by their
titles.
These officers are elected by the House and serve during its pleasure,
usually two years. Assistants are appointed by the officers whom they
assist.
None of these officers are members of the House.
[3] An impeachment is a solemn accusation in writing, formally charging a
public officer with crime. "The articles of impeachment are a sort of
indictment; and the House, in presenting them, acts as a grand jury, and
also as a public prosecutor." [Footnote: Story's Exposition of the
Constitution of the United States.]
For further discussion of impeachment, see pages 138, 203 and 331. A very
interesting account of the impeachment trial of Secretary Belknap is given
in Alton's _Among the Lawmakers_, pages 245-250. Mr. B. is hidden under a
fictitious name.
On impeachment, see also Wilson's _Congressional Government_, page 275.
WRITTEN EXERCISE.
Each member of the class should prepare a tabulation like this, filling
out the blanks briefly.
HOUSE OF REPRESENTATIVES.
I. NUMBER--
1. Based upon.
2. Limitations.
(a)
(b)
II. QUALIFICATIONS.
1.
2.
3.
4.
5.
III. ELECTION--
IV. TERM--
Y. VACANCY--
_Pertinent Questions._
What is a constitution? A law? A preamble? How many of the reasons
assigned in the preamble for establishing this government are general and
how many are special?
How many houses do most legislative bodies have? How many did the congress
under the confederation have? Why? Why has congress two houses?
How many representatives has this state in the U.S. congress? Give their
names by districts. In which district do you live? When was your
representative elected? By the census of 1880, Alabama had a population of
1,262,505; how many representatives should it have? Nevada had only 62,261
inhabitants, but has a representative; how do you account for the fact?
What proportion of U.S. officers are elected?
What is the "most numerous branch" of this state's legislature called?
What qualifications must electors to that house have? Whom else can such
persons therefore vote for? If this state desired higher qualifications in
electors for United States representatives, how could she require them?
Should not the United States designate the qualifications of voters for
members of congress? May one who is not a citizen of the United States
vote for a member of congress?
What is the number of the present congress? When did it begin? How many
members in the present House of Representatives? Just how was that number
determined? Name the speaker. What political party is in the majority in
the present House? Is congress now in session?
Must a representative reside in the _district_ from which he is chosen? If
your representative should move to another state, would he lose his seat?
If a person twenty-four years and ten months old at the time of election
should be chosen representative, would he be eligible?
How long must an alien live in the United States to be eligible to the
house? Is there any exception?
If $13,000,000 were to be raised for the use of the United States by
direct taxation, how much would this state have to pay? How much would
Alaska have to pay? How would this state raise the money?
Are there any people in this state who are not counted in making up the
representative population?
When was the first United States census taken? How many have since been
taken? When was the last taken? When will the next be taken?
How did members of congress vote under the confederation? How do they now
vote?
How is Utah represented in congress? The District of Columbia?
What five states had the largest representation in the first congress?
What five have now? Which two have fewer members now than in the first
congress? Which three have just the same number?
Name the present officers of the House of Representatives. Are any of them
from this state?
How does our House of Representatives compare with the British House of
Commons in the number of members? In the length of their terms? In the age
required for eligibility? What famous speech have you read in reply to one
in which a certain member of the House of Commons had been alluded to
contemptuously as "a young man?"
Could one who is not a voter be elected to the house? Is a woman eligible?
Could the state impose other qualifications than those mentioned in the
constitution?
SECTION III.--THE SENATE.[1]
_Clause 1.--Composition._
_The Senate of the United States shall be composed of two senators from
each state,[2] chosen by the legislature thereof,[3] for six years;[4] and
each senator shall have one vote.[5]_
[1] Latin _senatus_, from _senex_, an old man. This dignified term seems a
favorite, being used in many countries to designate the upper house. In
other countries a term is used having the same signification.
[2] This arrangement will be remembered as the concession made by the
large states to the small ones.
Had the number of senators been fixed at one from each state, equality of
power among the states would still have been secured; but sickness or
accident might then leave a state unrepresented. By having two, this
difficulty is obviated. The two can consult about the needs of their state;
and the Senate is large enough to "confer power and encourage firmness."
Three from each state would bring no advantages which are not now secured,
while the Senate would be unnecessarily large and expensive.
[3] This mode of election was fixed upon for two reasons: First, the
senators represent the state, as such, and hence it seemed proper that
they should be chosen by the body which acts for the state in its
corporate capacity; second, the members of the House of Representatives
being elected by the people, it was deemed advisable to elect the senators
in a different way, in order that, by representing different elements,
each house might act as a check upon the other. Incidentally, election by
the legislature was considered good, because it would serve as a
connecting link between the states and the United States.
[4] The long term gives dignity and independence to the position of
senator; it gives assurance of stability in the national councils, and
tends to secure for them confidence at home and respect abroad; it raises
senators "above the whims and caprices of their constituents, so that they
may consult their solid interests, rather than their immediate wishes."
[5] Under the confederation each state had from two to seven members of
congress, but only one vote. If the delegation was equally divided on any
question, or if only one member was present, the state lost its vote.
By the present arrangement a state need not go entirely unrepresented on
account of the absence of one of its senators.
_Clause 2.--Classification and Vacancies._
_Immediately after they shall be assembled in consequence of the first
election, they shall be divided, as equally as may be, into three
classes.[1] The seats of the senators of the first class shall be vacated
at the expiration of the second year; of the second class, at the
expiration of the fourth year; and of the third class, at the expiration
of the sixth year;[2] so that one-third may be chosen every second year;
and if vacancies happen by resignation, or otherwise, during the recess of
the legislature of any state, the executive thereof may make temporary
appointments until the next meeting of the legislature, which shall then
fill such vacancies.[3]_
[1] The object of this division is to secure for the Senate at all times a
large proportion of experienced members. By this arrangement, too, the
Senate becomes a permanent body, ready at any time to convene for the
consideration of treaties, for the trial of impeachments, or for
confirming executive appointments.
[2] Only ten states were represented when, on May 15, 1789, this
classification was first made. (North Carolina and Rhode Island had not
yet ratified the constitution, and New York's senators had not yet
presented their credentials.) The twenty senators had on the preceding day
been grouped by name into three classes, two of seven senators each, and
one of six. By the drawing of three numbered slips of paper, seven fell
into class 1, seven into class 2, and six into class 3, with terms ending
March 3, 1791, 1793, and 1795, respectively. After the classification had
been fixed, the two senators from New York appeared. One was placed, by
lot, in class 3 (thus filling the classes), and then the other, also by
lot, in class 1. The two senators from the next state, North Carolina,
were therefore placed in the unfilled classes 2 and 3. Since 1795, each
class holds for six years, and a senator's term expires with that of his
class.
[3] Senators represent the state, and are elected by the body which acts
for the state,--by the legislature if in session, temporarily by the
governor if it is not.
_Clause 3.--Qualifications_.
_No person shall be a senator, who shall not have attained to the age of
thirty years,[1] and been nine years a citizen of the United States,[2]
and who shall not, when elected, be an inhabitant of that state from which
he shall be chosen.[3]_
[1] This was also the age for eligibility to the Roman Senate. It is five
years more than the requirement for membership in the House.
[2] Two years of citizenship more than required of a representative. As
the Senate acts with the president in making treaties, this requirement
seems none too great.
[3] The propriety of this is self-evident. (I. 2: 2.)
_Clause 4.--Presiding Officer._
_The vice-president of the United States shall be president of the
Senate,[1] but shall have no vote,[2] unless they be equally divided.[3]_
[1] This arrangement was made for three reasons:
First. It would give the vice-president something to do.
Second. Partaking in the executive business of the Senate would give the
vice-president excellent training for the duties of the presidency, in
case he should be called thereto.
Third. The equality of power among the states would remain undisturbed.
Had it been arranged that the Senate should choose its own presiding
officer from among its members, one state might thereby gain (or lose)
power in the Senate.
[2] Because he is not a member of the Senate. For this reason, also, he
cannot take part in debates, nor can he appoint committees. These are
elected by the Senate itself.
[3] But for his casting vote; a "dead-lock" might occur on some important
question. This "might give rise to dangerous feuds, or intrigues, and
create state or national agitations."
_Clause 5.--Other Officers._
_The Senate shall choose their other officers,[1] and also a president pro
tempore,[2] in the absence of the vice-president, or when he shall
exercise the office of president of the United States._
[1] These are similar to those of the House. (See p. 131.)
[2] The president _pro tempore_ is chosen from among the senators. Being a
senator, he can debate and vote upon any question. He cannot, of course,
give a "casting vote," because that would virtually give him two votes.
The president _pro tempore_ serves during the pleasure of the Senate, or
until the expiration of his senatorial term.
It is the general practice for the vice-president to vacate his chair at
the beginning of the session, to permit the Senate to chose a president
_pro tempore_, so that if during vacation the vice-president should become
president, the Senate might not be without a presiding officer. Until
recently this was quite important, for the president _pro tempore_ of the
Senate was next to the vice-president in the succession to the presidency.
But the succession has been changed. (See p. 190.)
_Clause 6.--Impeachment._
_The Senate shall have the sole power to try all impeachments.[1] When
sitting for that purpose, they shall be on oath or affirmation.[2] When
the president of the United States is tried, the chief Justice shall
preside;[3] and no person shall be convicted without the concurrence of
two-thirds of the members present.[4] Judgement in cases of impeachment
shall not extend further than to removal from office, and disqualification
to hold and enjoy any office of honor, trust or profit, under the United
Sates;[5] but the party convicted shall, nevertheless, be liable and
subject to indictment, trial, judgment and punishment, according to
law.[6]_
[1] For the mode of conducting impeachments, see pages 131 and 331.
To have impeachments tried by a court of law would be unwise for several
reasons: In the first place, judges should be kept free from political
contests, in order that they may retain the proper judicial frame of mind.
In the second place, judges are appointed by the executive, who may be the
one impeached. Lastly, a judge is himself subject to impeachment.
[2] To enhance the solemnity of the occasion. The British House of Lords
when sitting as a high court of impeachment is not under oath. But courts
usually are.
[3] The vice-president, having interest in the result, would be
disqualified. The chief justice, from the dignity of his station and his
great experience in law, seems the fittest person to preside on such a
grave occasion. Except in this single instance, however, the
vice-president presides in trials on impeachment.
[4] In an ordinary court, the verdict of the jury must be unanimous. To
require similar agreement in this case would be to make it next to
impossible ever to convict. To allow a bare majority to convict would be
to place too little protection over a public officer.
[5] But for this provision abuses of power might occur in times of
political excitement and strife. The question which the Senate settles is
simply whether, in view of the evidence, the accused is or is not worthy
to hold public office.
[6] This provision was inserted to prevent an official who had been
deposed for crime from pleading the principle that "No one can be twice
tried and punished for the same offense."
WRITTEN EXERCISE.
COMPARATIVE TABULATION.
POINTS CONSIDERED. HOUSE OF R. SENATE
Number...............................................
Age
Qualifications......Citizenship......................
Inhabitancy
Election.............................................
Term.................................................
Vacancy..............................................
Presiding Officer Title.............................
How Chosen........................
Sole Powers..........................................
_Debate._
Resolved, That United States Senators should be elected by the people.
_Pertinent Questions._
Name the present senators from this state. When were they elected? Were
they elected to fill a vacancy or for a full term? How many times has each
been elected?
How many more senators has New York that Rhode Island? How many members in
the present Senate? How many in each class? When the next state is
admitted, in what classes will its senators be placed? How will the class
of each be decided?
Why not have senators chosen for life?
If one of our senators should resign today, to whom would the resignation
be addressed? How would the vacancy be filled? How long would the
appointee serve? Could the governor appoint himself?
How long at least must an alien live in the United States before being
eligible to the Senate? Has anyone ever been refused admission, after
being duly elected, on account of shortness of citizenship?
Who is now vice-president? Who is president _pro tempore_ of the Senate?
Why is it not correct under any circumstances to speak of the president
_pro tempore_ as vice-president?
Has the vice-president's vote ever helped to carry any measures of great
importance?
If every senator be "present," what number of senators would it take to
convict? Does the accused continue to perform his official duties during
the trial? Was President Johnson impeached? Is there any appeal from the
Senate's verdict? How do senators vote in cases of impeachment? How is
judgment pronounced?
What punishments follow conviction on impeachment in other countries?
What is treason? Bribery? What are crimes? High crimes? Misdemeanors?
How is an impeachment trial conducted? (See appendix.)
SECTION IV.--ELECTIONS AND MEETINGS.
_Clause 1.--Elections to Congress._
_The times, places and manner of holding elections for senators and
representatives, shall be prescribed in each state by the legislature
thereof: but the congress may at any time, by law, make or alter such
regulations,[1] except as to the place of choosing senators.[2]_
[1] Until 1842 these matters were left entirely with the several states.
Congress then provided that representatives should be elected by districts
of contiguous territory, equal to the number of representatives. It has
since provided that elections for representatives shall be by ballot, and
that the election shall be on the first Tuesday after the first Monday of
November in the even numbered years.
The time and mode of electing senators are given on page 333.
[2] This would in effect be giving congress power to locate the capital of
a state.
_Clause 2.--Meetings._
_The congress shall assemble at least once in every year, and such meeting
shall be on the first Monday in December, unless they shall by law appoint
a different day._
They have _not_ by law appointed a different day.
"Annual meetings of the legislature have long been deemed, both in England
and America, a great security to liberty and justice." By making provision
in the constitution for annual meetings, the duty could not be evaded.
Extra sessions of congress may be called at any time by the president or
be provided by law. There used to be three sessions, one beginning March
4.
The _place_ of meeting is not named, because the capital had not been
located, and in some cases it might be desirable to hold the session
elsewhere.
SECTION V. SEPARATE POWERS AND DUTIES.
_Clause 1. Membership: Quorum._
_Each house shall be the judge of the elections, returns and
qualifications of its own members,[1] and a majority of each shall
constitute a quorum to do business;[2] but a smaller number may adjourn
from day to day, and may be authorized to compel the attendance of absent
members, in such manner, and under such penalties, as each house may
provide.[3]_
[1] This means simply that each house has the power to determine who are
entitled to membership in it. This has long been recognized in free
countries as a right belonging to a legislative body, necessary to the
maintenance of its independence and purity--even its existence. But when
the parties are nearly balanced, the majority is tempted to seat its
fellow-partizan.
[1] This is the number usually established as a quorum for a deliberative
body. Certainly no smaller number should have a right to transact
business, for that would give too much power to an active minority. And to
require more than a majority, would make it possible for a minority to
prevent legislation.
[3] Under the rules no member has a right to be absent from a session
unless excused or sick. Unexcused absentees, unless sick, may be arrested
and brought to the capitol by the sergeant-at-arms or a special messenger.
When fewer than fifteen members are present, they usually adjourn.
_Clause 2.--Discipline._
_Each house may determine the rules of its proceedings,[1] punish its
members for disorderly behavior, and with the concurrence of two-thirds,
expel a member.[2]_
[1] The rules are intended to facilitate business, by preventing confusion
and unnecessary delay. They are designed also to check undue haste.
The rules of each house are based upon the English parliamentary practice,
as are the rules of all legislative or deliberative bodies wherever the
English language is spoken. (See "Manuals" of Senate and House.)
[2] It seems unlikely that even in times of great excitement two-thirds of
either house would favor expulsion unless it were deserved. This is also,
it will be observed, the number necessary to convict in case of
impeachment.
_Clause 3.--Publicity._
_Each house shall keep a journal of its proceedings, and, from time to
time, publish the same,[1] excepting such parts as may, in their judgment,
require secrecy;[2] and the yeas and nays[3] of the members of either
house, shall at the desire of one-fifth of those present, be entered on
the journal.[4]_
[1] This is to give publicity to the proceedings of congress, for the
benefit of both legislators and constituents. This provision is a valuable
one, in spite of the fact that demagogues are sometimes able thereby to
gain cheap glory.
To give still further publicity to the proceedings, spectators and
newspaper reporters are admitted to the gallery of each house, and members
may have their speeches printed and distributed.
[2] The House of Representatives rarely has a secret session. But the
Senate still keeps its executive sessions secret.
[3] For methods of voting see page 314.
[4] The purpose of this provision is to make members careful how they
vote, for the record is preserved. It will be noticed that the number
necessary to secure the record is small.
While this provision is intended to protect the minority, by enabling them
to impose responsibility upon the majority, it is open to abuse. It is
sometimes used by a minority to delay unnecessarily the proper transaction
of business. (For a graphic account of "filibustering," see Among the Law
Makers, 165-173.)
_Clause 4--Adjournment._
_Neither house, during the session of congress, shall without the consent
of the other, adjourn for more than three days, nor to any other place
than that in which the two houses shall be sitting._
The purpose of this provision is evident.
The sessions of congress may end in any one of three ways:
1. The terms of representatives may end.
2. The houses may agree to adjourn.
[Illustration: SENATE CHAMBER]
[Illustration: HOUSE OF REPRESENTATIVES]
[Illustration: STATE, WAR AND NAVY DEPARTMENTS.]
[Illustration: INTERIOR DEPARTMENT]
3. In case of disagreement between the houses as to the time of
adjournment, the president may adjourn them. (This contingency has never
yet arisen, however.)
SECTION VI. MEMBERS.
_Clause 1.--Privileges._
_The senators and representatives shall receive a compensation for the
services,[1] to be ascertained by law,[2] and paid out of the treasury of
the United States.[3] They shall in all cases except treason,[4]
felony,[4] and breach of the peace, be privileged from arrest during their
attendance at the session of their respective houses, and in going to and
returning from the same;[5] and for any speech or debate in either house,
they shall not be questioned in any other place.[6]_
[1] See discussion in connection with state legislature, p. 85.
[2] The salary of congressmen is, therefore, fixed by themselves, subject
only to the approval of the president. It is now $5000 a year, and
mileage. The speaker receives $8000 a year and mileage. The president _pro
tempore_ of the Senate receives the same while serving as president of the
Senate.
[3] They are serving the United States.
[4] Defined on pages 158 and 211.
[5] So that their constituents may not for frivolous or sinister reasons
be deprived of representation.
[6] That is, he cannot be sued for slander in a court of justice, but he
can be checked by his house, if necessary, and the offensive matter
omitted from the Record.
The purpose of this provision is not to shield cowards in speaking ill of
persons who do not deserve reproach, but to protect right-minded members
in exposing iniquity, no matter how the doers of it may be intrenched in
wealth or power.
_Clause 2.--Restrictions._
_No senator or representative shall, during the time for which he was
elected, be appointed to any civil office under the authority of the
United States, which shall have been created, or the emoluments whereof
shall have been increased during such time;[1] and no person holding any
office under the United States shall be a member of either house during
his continuance in office.[2]_
[1] The obvious purpose of this provision is to remove from members of
congress the temptation to create offices with large salaries for their
own benefit, or to increase for a similar reason the salaries of offices
already existing. It was designed also to secure congress from undue
influence on the part of the president.
The wisdom of the provision has, however, been seriously questioned. "As
there is a degree of depravity in mankind, which requires a certain degree
of circumspection and distrust, so there are other qualities in human
nature, which justify a certain portion of esteem and confidence.
Republican government presupposes the existence of these qualities in a
higher form, than any other. It might well be deemed harsh to disqualify
an individual from any office, clearly required by the exigencies of the
country, simply because he had done his duty.... The chances of receiving
an appointment to a new office are not so many, or so enticing, as to
bewilder many minds; and if they are, the aberrations from duty are so
easily traced, that they rarely, if ever, escape the public reproaches.
And if influence is to be exerted by the executive, for improper purposes,
it will be quite as easy, and its operation less seen, and less suspected,
to give the stipulated patronage in another form." [Footnote: Judge
Story.]
[2] This was to obviate state jealousy, to allay the fears entertained by
some that the general government would obtain undue influence in the
national councils.
TABULAR VIEW.
Each pupil may make out a tabulation, giving briefly the facts called for
in this outline:
I. CONGRESSIONAL ELECTIONS, HOW REGULATED.
II. SESSIONS OF CONGRESS--
1. Frequency.
2. Time of beginning.
III. POWERS AND DUTIES OF EACH HOUSE--
1. Membership.
2. Quorum.
3. Discipline.
4. Publicity.
5. Adjournment.
IV. MEMBERS OF CONGRESS--
1. Privileges.
2. Restrictions.
_Debate._
Resolved, That members of the cabinet should have seats in congress _ex
officio._
_Pertinent Questions._
Why not leave the power to regulate congressional elections unreservedly
with the states? Where are the United States senators from this state
elected?
How are United States senators elected? See appendix.
Is congress now in session? Will the next session be the long or the short
one? When, within your recollection, was there an "extra session" of
congress? Could the president convene one house without the other? Which
is the longest session of congress on record? Does congress meet too
often?
Where does congress now meet? Is that the best place? At what different
places has congress met since the adoption of the constitution?
If two persons should claim the same seat in the House of Representatives,
who would decide between them? How would the contest be carried on? (See
page 330.) Has there ever been a "contested" election from this state?
What number of representatives is the least that could transact business?
The least number of senators? The least number of representatives that
could possibly pass a bill? Of senators? What is done if at any time
during the proceedings it is found that there is "no quorum present?"
Has a member ever been expelled from either house? May either house punish
for disorder persons who are not members? Can either house temporarily set
aside all of its rules?
Did you ever see a copy of the Congressional Record? If congress be now in
session, make a weekly report of its proceedings. How could you see
congress in session? Could you be a spectator at a committee meeting? How
could you witness an "executive session" of the Senate?
Can a member be punished for an offense committed before he was elected?
How is voting usually done in a deliberative assembly? How in Congress?
How are territories represented in congress?
Distinguish between the "capital" and the "capitol" of the United States.
Who has power to locate the capital of the United States?
Has the salary of congressmen ever been more than $5000 a year? How were
congressmen paid under the confederation?
What is meant by the House resolving itself into a _committee of the
whole?_
When does the freedom from arrest of a member of congress begin? When does
it end? Could a summons be served upon him during that time?
What is slander? Libel? Is a member of congress liable for the publication
of his speech in the Congressional Record? Would he be responsible if he
should have it published in any other than the official way?
Can a member of congress resign to accept an office already in existence,
and whose emoluments have not been increased during his term? Give
examples. If a United States officer be elected to congress, how long can
he retain his office? Could a member of congress be appointed to a
_military_ office created during his term? Can a member be appointed
_after his term is out_ to an office created during his term?
Is a member of congress an officer of the United States?
SECTION VII.--LAW MAKING.
_Clause 1.--Revenue Bills._
_All bills for raising revenue[1] shall originate in the House of
Representatives;[2] but the Senate may propose or concur with amendments,
as on other bills.[3]_
[1] That is, bills in relation to the levying of taxes or for bringing
money into the treasury in any other way.
[2] Because the representatives are nearer to the people, who must pay the
taxes, and can therefore be more readily held to account.
[3] Such bills in England originate in the House of Commons, and the House
of Lords has no power of amendment.
The purpose of giving the Senate power to amend is to preserve the due
influence of the small states in this important matter.
_Clause 2.--Mode of Making Laws._
_Every bill which shall have passed the House of Representatives and the
Senate,[1] shall, before it becomes a law, be presented to the president
of the United States;[2] if he approve, he shall sign it; but if not, he
shall return it, with his objections, to that house in which it shall have
originated, who shall enter the objections at large on their journal, and
proceed to reconsider it. If, after such reconsideration, two-thirds of
that house shall agree to pass the bill, it shall be sent, together with
the objections, to the other house, by which it shall likewise be
considered, and, if approved by two-thirds of that house, it shall become
a law.[3] But in all such cases the votes of both houses shall be
determined by yeas and nays, and the names of the persons voting for and
against the bill shall be entered on the journal of each house,
respectively.[4] If any bill shall not he returned by the president within
ten days (Sundays excepted) after it shall have been presented to him, the
same shall he a law, in like manner as if he had signed it,[5] unless the
congress, by their adjournment, prevent its return, in which case it shall
not be a law.[6] [1] Or the Senate and House of Representatives, since any
bills except those for raising revenue may originate in either house.
[2] The two great purposes of giving the president a negative upon
legislative acts, are to protect the proper authority of the executive
from the encroachments of the congress, and to interpose a stay on hasty
legislation.
[3] The veto of the Roman Tribune was final, as is that of almost every
European sovereign today. _But no British king or queen has vetoed an act
of Parliament in the last hundred and eighty years._ In Norway, if a bill,
vetoed by the king, passes three successive Storthings, it becomes a law.
[4] To secure a permanent record for future reference. This helps to
render members careful how they vote.
[5] This gives due time for consideration, but prevents the president's
killing a bill by ignoring or neglecting it.
[6] Thus congress (which has the very human failing of "putting off" or
postponing) cannot break down the veto power of the president, by pouring
an avalanche of bills upon him within the last few days of the session.
But the president can easily kill any bill which he does not like, if it
is presented within ten days of the adjournment of congress, simply by
keeping it. This is called "pocketing" a bill, or "the pocket veto."
_Clause 3.--Joint Resolutions._
_Every order, resolution, or vote to which the concurrence of the Senate
and House of Representatives may be necessary (except on a question of
adjournment), shall be presented to the president of the United States;
and before the same shall take effect, shall be approved by him, or, being
disapproved by him, shall be repassed by two-thirds of the Senate and
House of Representatives, according to the rules and limitations
prescribed in the case of a bill._
The purpose of this provision is to prevent congress from passing a law
under some other name.
The resolution to adjourn is excepted, because, as we have seen, the time
for adjournment is generally a matter of agreement between the houses.
A resolution passed by the two houses, but not intended to have the force
of law, such as an agreement to do something, is called a concurrent
resolution, and does not require the president's signature.
_Pertinent Questions._
What is a "bill?" What is meant by entering the objections "at large?" Why
is there no committee of ways and means in the Senate?
How many members in each house does it take for the first passage of a
bill? How many after the president's veto? Does the expression two-thirds
refer to the entire number in a house, or to the number voting?
State three ways in which a bill may become a law. Five ways in which it
may fail.
During what time has the president the equivalent of an absolute veto?
Does a resolution merely expressing an _opinion_ of either or both houses
need the president's signature? Does a resolution proposing an amendment
to the constitution?
Is the president bound to enforce a law passed over his veto?
_A Summary._
"We have now completed the review of the structure and organization of the
legislative department; and it has been shown that it is admirably adapted
for a wholesome and upright exercise of the powers confided to it. All the
checks which human ingenuity has been able to devise, or at least all
which, with reference to our habits, our institutions, and our diversities
of local interests, to give perfect operation to the machinery, to adjust
its movements, to prevent its eccentricities, and to balance its forces:
all these have been introduced, with singular skill, ingenuity and wisdom,
into the arrangements. Yet, after all, the fabric may fall; for the work
of man is perishable. Nay, it must fall, if there be not that vital spirit
in the people, which alone can nourish, sustain and direct all its
movements. If ever the day shall arrive, in which the best talents and the
best virtues, shall be driven from office by intrigue or corruption, by
the denunciations of the press or by the persecution of party factions,
legislation will cease to be national. It will be wise by accident, and
bad by system." [Footnote: Story's Exposition of the Constitution of the
United States.]
_Review._
Compare the organization of congress under the constitution with that of
congress under the confederation. Show the superiority of our present
organization. Specify some of the "checks" referred to by Judge Story.
Read Woodrow Wilson's Congressional Government, pp. 40, 41, 52, 219, 228,
283-5, 311. Also, Among the Lawmakers, Chapter 33.
CHAPTER XXII.
SECTION VIII.--POWERS VESTED IN CONGRESS.
_Clause 1.--Taxation._
_Congress shall have power:_
_To lay and collect taxes[1], duties, imposts and excises, to pay the
debts and provide for the common defense and general welfare of the United
States;[2] but all duties, imposts and excises shall be uniform throughout
the United States.[3]_
For discussion of methods of taxation, see page 316.
[1] The want of power in congress to impose taxes was, perhaps, the
greatest defect of the articles of confederation; therefore in the
constitution this was the first power granted to congress.
[2] As usually interpreted, the phrase beginning, "to pay the debts," is
intended to state the purposes for which taxes may be levied. But this
limitation is merely theoretical, for taxes are levied before being
expended.
[3] This is to prevent legislation in favor of any state or section, as
against other states or sections.
_Clause 2.--Borrowing._
_To borrow money on the credit of the United States._
It should not be necessary, ordinarily, for congress to exercise this
power. But in times of war the regular sources of income may not be
sufficient, hence the necessity of this power to provide for extraordinary
expenses. It is one of the prerogatives of sovereignty; it is
indispensable to the existence of a nation.
For more about national borrowing, see page 317.
_Clause 3.--Regulation of Commerce._
_To regulate commerce[1] with foreign nations, and among the several
states,[2] and with the Indian tribes.[3]_
[1] The power to regulate commerce implies the power to prescribe rules
for traffic and navigation, and to do such things as are necessary to
render them safe. It has been interpreted to cover, among other things,
the imposition of duties, the designation of ports of entry, the removal
of obstructions in bays and rivers, the establishment and maintenance of
buoys and lighthouses, and legislation governing pilotage, salvage from
wrecks, maritime insurance, and the privileges of American and foreign
ships.
[2] The power to regulate commerce with foreign nations should go hand in
hand with that of regulating commerce among the states. This power had,
under the confederation, been in the hands of the several states. Their
jealousies and rivalries had led to retaliatory measures upon each other.
This condition of affairs was encouraged by other nations, because they
profited by it. At the time of the adoption of the constitution, business
was terribly depressed, and the bitterness of feeling among the states
would probably soon have disrupted the Union. Therefore, "to insure
domestic tranquility," and "to promote the general welfare," the power to
regulate commerce was delegated to the general government.
[3] This control is exercised even when the Indians live within the
boundaries of a state.
By placing the power to regulate commerce with Indians in the hands of the
general government it was hoped that uniformity of regulations and the
strength of the government would secure peace and safety to the frontier
states.
_Clause 4.--Naturalization and Bankruptcy._
_To establish a uniform rule of naturalization[1] and uniform laws on the
subject of bankruptcies[2] throughout the United States._
[1] Naturalization is the process by which an alien becomes a citizen. The
mode is given on page 319.
[2] A bankrupt is one who has been declared by a court to be owing more
than he can pay.
The purposes of a bankrupt law are:
1. To secure an equitable distribution of all the debtor's property among
the creditors.
2. To secure to the debtor a complete discharge from the indebtedness.
_Clause 5.--Coinage and Measures._
_To coin money,[1] regulate the value thereof[2] and of foreign coin,[3]
and fix the standard of weights and measures.[4]_
[1] This is another "sovereign power," and cannot be exercised by states,
counties or cities. Coinage by the United States secures uniformity in
value, and thereby facilitates business.
To "coin money" is simply to stamp upon a precious metal the value of the
given piece. [Footnote: When metals were first used as money, they were
weighed and their purity was determined by testing. This invited fraud.]
For convenience in business transactions, these are coined of certain
sizes. To discourage the mutilation of coins for sinister purposes, they
are "milled" on the edges, and the stamp covers each face so that the
metal could hardly be cut off without the coin showing defacement.
[2] The value is shown by the stamp.
[3] Otherwise, foreign coin would become an article of commerce, and it
would be more difficult to regulate the value of domestic coin.
[4] This power congress has never exercised. But see Johnson's Cyclopedia,
article Gallon.
_Clause 6.--Punishment of Counterfeiting._
_To provide for the punishment of counterfeiting the securities and
current coin of the United States._
This is "an indispensable appendage" of the power granted in the preceding
clause, that of coining money.
To discourage counterfeiting, the "securities" are engraved with rare
skill and upon peculiar paper. The penalties for counterfeiting are
printed on the back of some of the "greenbacks."
Under "securities" are included bonds, coupons, national currency,
"greenbacks," revenue and postage stamps, and all other representatives of
value issued under any act of congress.
_Clause 7.--Postoffices._
_To establish postoffices[1] and post roads.[2]_
[1] The beneficence and usefulness of the postoffice every one can
appreciate; it ministers to the comfort of all, rich and poor.
Placing the management of the postoffices with the general government
secures greater efficiency and economy than would be possible if it were
vested in the states.
[2] Congress generally uses roads already in existence. These are
regularly selected, however, and declared to be post roads before they are
used as such. The "road" may be a waterway.
But under authority of this clause congress has established some post
roads. The principal highway thus established was the Cumberland road from
the Potomac to the Ohio. The Union Pacific and Central Pacific railways
were built under the authority and with the assistance of the United
States as post and military roads.
_Clause 8.--Copyrights and Patents._
_To promote the progress of science and useful arts, by securing, for
limited times, to authors and inventors, the exclusive right to their
respective writings and discoveries._
No one denies that an author or inventor is entitled to a fair reward for
what he has done. But if every one were at liberty to print the book or to
make the article invented, the due reward might not be received.
The wisdom of granting this power to the general government becomes
apparent when we consider how poorly the end might be secured if the
matter were left to the states. A person might secure a patent in one
state and be entirely unprotected in the rest.
For further information upon this subject, see pages 318-19.
_Clause 9.--United States Courts._
_To constitute tribunals inferior to the Supreme Court._
Under this provision, congress has thus far constituted the following:
1. United States Circuit Courts of Appeal, one in each of the nine
judicial circuits of the United States.
2. United States Circuit Courts, holding at least one session annually in
each state.
3. United States District Courts, from one to three in each state. See
pages 307-9.
4. A United States Court of Claims, to hear claims against the government.
Such claims were formerly examined by congress.
Although not strictly United States Courts, the following may also be
mentioned here, because they were established under authority of this
clause:
1. The Supreme Court of the District of Columbia.
2. A Supreme Court and District Courts in each territory.
"Constituting" these courts involves establishing them, designating the
number, appointment, and salaries of the judges, and the powers of each
court. The term of United States judges is "during good behavior." This is
fixed by the constitution (Art. III., section 1). The term of a
territorial judge is four years.
_Clause 10.--Crimes at Sea._
_To define and punish piracies[1] and felonies[2] committed on the high
seas[3] and offenses against the law of nations.[4]_
[1] Piracy is robbery at sea, performed not by an individual but by a
ship's crew. Pirates are outlaws, and may be put to death by any nation
capturing them.
[2] A felony is any crime punishable by death or state prison. Felony
covers murder, arson, larceny, burglary, etc. But congress may define
piracy and felony to cover more or fewer crimes.
[3] The "high seas" are the waters of the ocean beyond low water mark. Low
water mark is the limit of jurisdiction of a state, but the jurisdiction
of the United States extends three miles further into the ocean, and
includes all bays and gulfs.
Beyond the three-mile limit, the ocean is "common ground," belonging not
to one nation but to all. Each nation has jurisdiction, however, over its
merchant ships on the high seas, but not in a foreign port, and over its
war ships everywhere.
[4] For an outline of the Law of Nations, see page 346.
Cases arising under this clause have been placed in the jurisdiction of
the United States District Courts.
_Clause 11.--Declaration of War._
_To declare war,[1] grant letters of marque and reprisal[2] and make rules
concerning captures on land and water.[3]_
[1]: A declaration of war is a solemn notice to the world that hostilities
actually exist or are about to commence.
The power to declare war is one of the attributes of sovereignty. If this
power were in the hands of the several states, any one of them could at
any time involve the whole country in the calamities of war, against the
wishes of all the other states. With all their fear of the general
government, shown in the character of the articles of confederation, the
people in framing that instrument saw the necessity of vesting this power
in the general government.
In monarchies, the power to declare war is generally vested in the
executive. But in a republic, it would be dangerous to the interests and
even the liberties of the people, to entrust this power to the president.
To put the thought in other words, the power to declare war belongs to the
sovereign: in this country, the people are sovereign, therefore the power
to declare war belongs to the people, and they act through their
representative body, congress. (See pages 351-4.)
[2] These are commissions granted to private persons usually in time of
war, authorizing the bearer to pass beyond the boundaries of his own
country for the purpose of seizing the property of an enemy.
Sometimes such a letter is granted in times of peace, "to redress a
grievance to a private citizen, which the offending nation refuses to
redress." By authority of such a commission, the injured individual may
seize property to the value of his injury from the subjects of the nation
so refusing. But this practice is properly becoming rare.
[3] Vessels acting under letters of marque and reprisal are called
_privateers_, and the captured vessels are called _prizes_.
Prizes are usually sold under authority of the United States District
Court, and the proceeds divided among the crew of the ship making the
capture.
The proceeds of captures on land belong to the government.
_Clause 12.--Maintenance of Armies._
To raise and support armies;[1] but no appropriation of money to that use
shall be for a longer term than two years.[2]_
[1] This is another sovereign power, and would seem the necessary
accompaniment of the power to declare war. Under the confederation,
however, congress could only designate the quota of men which each state
ought to raise, and the actual enlistment of men was done by the several
states. Their experience in carrying on the Revolutionary War on that
basis satisfied them that efficiency and economy would both be secured by
vesting this power in the general government.
[2] But to prevent misuse of the power, this proviso was inserted. As
representatives are elected every two years, the people can promptly check
any attempt to maintain an unnecessarily large army in times of peace.
A standing army is dangerous to liberty, because it is commanded by the
executive, to whom it yields unquestioning obedience. Armies obey
_commands_, while citizens comply with _laws_. And thus a large standing
army creates a _caste_, out of sympathy with the lives of citizens. More
than one republic has been overthrown by a successful military leader,
supported by a devoted army.
As a matter of fact, congress makes the appropriation annually.
_Clause 13.--The Navy._
_To provide and maintain a navy._
The navy is necessary to protect fisheries and commerce. And in times of
war the navy is needed to protect our sea coast, to transport soldiers, to
cripple the enemy's resources, and to render blockades effectual.
It will be noticed that there is no limitation upon appropriations for the
navy. This is for two general reasons: First, there is nothing to fear
from a navy. "No nation was ever deprived of its liberty by its navy."
Second, it takes time to provide a navy, and it should therefore be kept
at all times in a state of efficiency.
For further information about the army and navy, see page 309.
_Clause 14.--Army and Navy Regulations._
_To make rules for the government and regulation of the land and naval
forces._
This is an incident to the preceding powers.
The army and navy regulations prescribe duties of officers, soldiers and
seamen, and provide for the organization and management of courts martial.
Disobedience to orders and insubordination are crimes in a soldier or
sailor; and refusal to pay just debts or any other conduct "unbecoming to
a gentleman," are punishable offenses in an officer. Thus it is seen that
military law takes cognizance of offenses not usually noticed by civil
law.
_Clause 15.--The Militia._
_To provide for calling forth the militia[1] to execute the laws of the
Union, suppress insurrections and repel invasions.[2]_
[1] Congress has declared the militia to be "all citizens and those who
have declared their intention to become such, between the ages of eighteen
and forty-five." These constitute what is called the unorganized militia.
The military companies and regiments formed by authority of United States
and state laws constitute the organized militia.
One of two policies we must pursue, either to maintain a large standing
army or to depend upon the citizen-soldiers to meet emergencies. For
several reasons, we prefer the latter. That our citizen-soldier may be
depended upon has been demonstrated on many a battlefield.
[2] The clause specifies the purposes for which the militia may be called
out. These are three in number. Each state may for similar purposes call
forth its own militia.
Under the laws of congress, the president is authorized in certain
emergencies to issue the call. This he directs to the governors of states,
and those called on are bound to furnish the troops required.
On three occasions only have the militia been called out under this clause:
In the Whisky Rebellion of 1794, to enforce the laws; in the war of 1812,
to repel invasion; and in the Civil War, to suppress insurrection.
_Clause 16.--Organization of the Militia._
_To provide for organizing, arming, and disciplining the militia, and for
governing such part of them as may be employed in the service of the
United States,[1] reserving to the states respectively, the appointment of
the officers, and the authority of training the militia according to the
discipline prescribed by congress.[2]_
[1] Thus only can the uniformity so essential to efficiency be secured.
[2] This is designed as a proper recognition of the right of each state to
have militia companies and to control them, subject only to the necessary
limitation mentioned.
The militia of a state consists of one or more regiments, with the proper
regimental and company officers appointed by state authority. When these
are mustered into the service of the United States and are formed into
brigades and divisions, the appointment of the general officers is vested
in the president.
_Clause 17.--Exclusive Legislation._
_To exercise exclusive legislation in all cases whatsoever, over such
district (not exceeding ten miles square) as may, by the cession of
particular states, and the acceptance of congress, become the seat of
government of the United States,[1] and to exercise like authority over
all places purchased by the consent of the legislature of the state in
which the same shall be, for the erection of forts, magazines, arsenals,
dock yards, and other needful buildings.[2]_
[1] This refers to the territory afterwards selected, and now known as the
District of Columbia.
The purpose of this provision is to free the general government from
having to depend upon the protection of any state, and to enable it to
secure the public buildings and archives from injury and itself from
insult. [Footnote: The Continental Congress, while the capital was at
Philadelphia, had to adjourn to Princeton to escape the violence of some
dissatisfied soldiers. See Fiske's Critical Period of American History,
page 112.]
Congress governed the District of Columbia directly until 1871, when for
three years the experiment was tried of governing it as a territory. The
territorial government in that time ran in debt over $20,000,000 for
"public improvements," and congress abolished it.
The supervision of the district is now in the hands of three
commissioners, appointed by the president, but controlled by congressional
legislation.
[2] The propriety of the general government having exclusive authority
over such places is too obvious to need comment. Crimes committed there
are tried in the United States District Courts, but according to the laws
of the state or territory.
The state in making the cession usually reserves the right to serve civil
and criminal writs upon persons found within the ceded territory, in order
that such places may not become asylums for fugitives from justice.
_Clause 18.--Implied Powers._
_To make all laws which shall be necessary and proper for carrying into
execution the foregoing powers, and all other powers vested by this
constitution in the government of the United States, or in any department
or officer thereof._
This clause does not grant any new power. "It is merely a declaration, to
remove all uncertainty, that every power is to be so interpreted, as to
include suitable means to carry it into execution." [Footnote: Story.]
It will be noticed that the powers of congress are enumerated, not
defined, in the constitution; and the above clause has given rise to the
doctrine of "implied powers," the basis of many political controversies.
Following are samples of "implied powers:"
By clause 2, congress has power "to borrow money on the credit of the
United States." Implied in this, is the power to issue securities or
evidences of debt, such as treasury notes. "To increase the credit of the
United States, congress may make such evidences of debt a legal tender for
debts, public and private." [Footnote: Lalor's Cylopedia of Political
Science.]
Congress has power (clause 11) "to declare war." By implication it has
power to prosecute the war "by all the legitimate methods known to
international law." To that end, it may confiscate the property of public
enemies, foreign or domestic; it may confiscate, therefore, their slaves.
(See Emancipation Proclamation, page 362. For a hint of what congress
_might_ do, see Among the Lawmakers, p. 296.)
_Pertinent Questions._
1. In what two ways may the first part of the first clause be interpreted?
In what ways does the government levy taxes? How much of the money paid to
the local treasurer goes to the United States? Have you ever paid a U.S.
tax? Did you ever buy a pound of nails? Do you remember the "stamps" that
used to be on match boxes? How came they there? Was that a direct or an
indirect tax? A man who pays for a glass of beer or whisky pays a U.S.
tax. How? Every time a person buys a cigar he pays a U.S. tax. If there be
a cigar factory within reach, talk with the proprietor about this matter.
Look at a cigar box and a beer keg to find some evidence of the tax paid.
Name some things which were taxed a few years ago but are not now. What is
a custom house? A port of entry? What are they for? Name the port of entry
nearest to you. What is the present income of the United States from all
kinds of taxation? What is done with the money? Look up the derivation of
the word _tariff_.
2. _How_ does the government "borrow?" Does the government owe you any
money? If you have a "greenback," read its face. If the government is
unable or unwilling to pay a creditor, what can he do? What is the
"credit" of the United States? How much does the United States government
owe, and in what form is the debt? How came it to be so large? Is the
government paying it up? How much has been paid this fiscal year? What
rate of interest has the government to pay? What is the current rate for
private borrowers? How is it that the government can borrow at so low a
rate? What is a "bond-call," and how is it made?
3. Has congress power to _prohibit_ commerce with one or more foreign
nations? Has it power to regulate commerce carried on wholly within a
state? Can you buy lands from the Indians? Can the state? Has congress
imposed a tariff to be paid in going from one state to another? What has
requiring the engineer of a steamboat to secure a government license to do
with "regulating commerce?" When did congress under this clause prohibit
American merchant ships from leaving port? Under what provision of the
constitution does congress impose restrictions upon the railroads? Does
congress exercise any control over railroads lying wholly within one
state? Why?
4. How can an alien become naturalized? Who are citizens of the United
States? (See Amend. XIV.) Is a child of American parents, born during a
temporary absence from this country, a citizen or an alien? An alien
living in this country has children born here; are they citizens or
aliens? A child is born on the ocean, while its parents are on the way
here to found a new home and intending to become citizens; what is the
status of the child? Are you a citizen? How may female aliens become
citizens? Why should they desire to do so? How did citizens of Texas at
the time of its admission become citizens of the United States?
What is an insolvent law? Has this state such a law? Can this state pass a
bankrupt law? Can any state? Why? Is there any United States bankrupt law?
Has congress ever passed such a law?
5. What is money? Is a bank bill money? Read one and see whether it
pretends to be. What gold coins have you ever seen? What others have you
heard of? What silver coins have you ever seen? What others have you heard
of? What other coins have you seen or heard of? How are coins made? Where
is the United States mint located? Where are the branch mints? How much
value does the stamp of the government add to a piece of gold? Is there a
dollar's worth of silver in a silver dollar? Why? (See Jevons' Money and
the Mechanism of Exchange.)
How are national banks organized? (See appendix.) Under what
constitutional provision does congress exercise this power? Are any banks
organized under state authority? What is meant by "legal tender?"
Are foreign coins "legal tender" at the rate fixed by congress? For the
value of the principal foreign coins, see appendix. Can congress punish
counterfeiting of these coins?
Is there a standard pound in this state? A standard bushel?
6. Look on the back of a greenback for the law about counterfeiting. Is
there any law against _passing_ counterfeits?
7. When was our postoffice department established? Who was placed at the
head of it? Who is the postmaster general? What is meant by "presidential
offices" in speaking of postoffices? What are the present rates of postage
in the United States? How much does it cost to send a letter to England?
To Prussia? To Australia? When were postage stamps introduced? Stamped
envelopes? Postal cards? In what four ways may money be sent by mail?
Explain the workings and advantages of each method. What is the dead
letter office?
What is meant by the franking privilege? Find the rates of postage in the
United States, in 1795, 1815, 1845, 1850, 1860. Does the power to
establish post roads, authorize congress to make internal improvements?
What is meant by "star route?"
8. Is this book copyrighted? Name some book that is not copyrighted. What
things besides books are copyrighted? Can a copyright be sold? How is a
copyright secured? How long do copyrights continue in force? How may they
be renewed? Must new editions be copyrighted?
What is a patent? How are "letters patent" secured? How may an inventor
secure time to perfect his invention? How can a patent be sold? May a
person, not the patentee, make a patented article for his own use? Name
ten important patented inventions. What is the purpose of the government
in granting patents? Is this always secured? How does the expiration of a
patent affect the price of an invention? If a person invents an article
which proves helpful to millions of people, is it unfair that he should
make a fortune out of it?
9. By what authority does congress organize courts in the territories?
Could congress establish more than _one_ Supreme Court? Name the United
States District Judge for this state. The United States Attorney. The
United States Marshal. If you had a claim against the United States how
would you get your money?
10. Who may punish a pirate? Can a pirate claim the protection of the
American flag?
11. Has the United States ever formally declared war? May war begin
without a formal declaration? Does the president act with congress in
declaring war, as in case of a law?
What protection is afforded by letters of marque and reprisal? Name some
well known privateers. Tell about the "Alabama Claims," and their
settlement. Upon what principle of international law did the decision
hinge? See page 353.
12. With what other power is that of _raising an army_ intimately
connected? That of maintaining an army? How large is the United States
army at the present time? Give arguments in favor of the _militia_ system,
as against that of a large standing army. What circumstances favor us in
adopting the militia system? What country in Europe is most like us in
this respect? Why is this possible in that country? Where are most of the
officers of the U.S. army educated? How are appointments to the
institution made? By what authority has congress established it? What is a
military "draft?"
Who has charge of this department of the government? Name the four highest
officers in the U. S. army. For the organization of the army, see page
309.
13. Name the present secretary of the navy; the two highest naval
officers. Where are most of the naval officers educated? How does the navy
of the United States compare with the navies of other great powers? Why?
For organization of navy, see appendix.
14. What is the difference between military law and martial law? How are
these "rules" made known? What is the source of authority in a military
court? In a civil court? Is there any liability of a conflict of
jurisdiction between these courts? When was flogging abolished in the
army? In the navy? What punishments are inflicted by courts martial?
15. Distinguish between the militia and the regular army. Between militia
and "volunteers."
16. How many regiments of organized militia in this state? Name the
principal regimental officers. By whose authority were these appointed? Is
there any "company" near you? Have you seen them drilling? Who prescribed
the "tactics?"
17. Over what portions of this state has congress this "exclusive
jurisdiction?" Give a brief sketch of the District of Columbia. When and
by whom was slavery abolished therein?
18. Why should this be spoken of as "the sweeping clause?"
_Debate._
Resolved, That free trade should be the ultimate policy for any country.
_References._
PROTECTION.--Articles in Cyclopedias; Casey's Social Science, McKean's
Abridgment; Greeley's Political Economy; Byle's Sophisms of Free Trade;
Elder's Questions of the Day; Bowen's Political Economy.
FREE TRADE.--Articles in Cyclopedias; Grosvenor's Does Protection Protect?
Sumner's History of Protection in U.S.; Fawcett's Free Trade and
Protection; David A. Wells' Essays; Pamphlets published by the Free Trade
Club, N.Y.
A very fair statement of both views may be found in Macvane's Political
Economy.
SECTION IX.--PROHIBITIONS ON CONGRESS.
_Clause 1.--The Slave Trade._
_The migration or importation of such persons[1] as any of the states now
existing shall think proper to admit, shall not be prohibited by congress
prior to the year one thousand eight hundred and eight, but a tax or duty
may he imposed on such importation,[2] not exceeding ten dollars for each
person.[1]_
[1] The framers of the constitution disliked to tarnish the instrument by
using the word slave, and adopted this euphemism.
At that time there was a general desire, not ripened into a purpose
however, that slavery might soon cease to exist in the United States.
This clause, which permitted the continuance for a time of the slave
_trade_, was a concession to North Carolina, South Carolina and Georgia.
The other states had already prohibited the slave trade, and it was hoped
by all that before the time specified the abolition of slavery would be
gradually accomplished.
[2] No such tax was imposed.
This provision is now obsolete, and is of interest only historically. (For
further discussion of slavery, see page 343.)
_Clause 2.--The Writ of Habeas Corpus._
_The privileges of the writ of habeas corpus shall not be suspended,
unless when in cases of rebellion or invasion the public safety may
require it._
"It has been judicially decided that the right to suspend the privilege of
the writ rests in congress, but that congress may by act give the power to
the president." [Footnote: Lalor's Cyclopedia of Political Economy]
The privilege of the writ never was suspended by the general government
until 1861. Questionable suspensions of the writ, covering a very limited
territory, had been made in two or three instances by generals.
So valuable as a "bulwark of liberty" is this writ considered to be, that
the courts of the United States have decided that, even in time of war,
the privilege of the writ can be suspended only in that part of the
country actually invaded, or in such a state of war as to obstruct the
action of the federal courts.
_Clause 3.--Certain Laws Forbidden._
_No bill of attainder[1] or ex post facto law[2] shall be passed._
[1] A bill of attainder was a legislative conviction for alleged crime,
with judgment of death. Those legislative convictions which imposed
punishments less than that of death were called bills of pains and
penalties. [Footnote: Cooley's Constitutional Limitations] The term is
here used in its generic sense, so as to include bills of pains and
penalties.
The great objection to _bills_ of attainder is that they are purely
_judicial_ acts performed by a _legislative_ body. A legislative body may
and should try a _political_ offense, and render a verdict as to the
worthiness of the accused to hold public office. But to try him when
conviction would deprive him of any of his personal rights--life, liberty,
or property,--should be the work of a duly organized _judicial_ body.
This provision, then is directed not so much against the penalty (for
limitations upon penalties are found elsewhere in the constitution,) as
against the mode of trial. Or we may say that it is intended to prevent
conviction _without_ a trial; for in previous times legislative bodies had
frequently punished political enemies without even the form of a trial, or
without giving them an opportunity to be heard in their own defense, by
passing against them bills of attainder.
[2] An _ex post facto_ law is, literally, one which acts back upon a deed
previously performed. But as here intended, it means a law making _worse_
such an act, either by declaring criminal that which was not so regarded
in law when committed, or by increasing the penalty and applying it to the
act previously performed.
But a law may be passed making _better_, in a sense, some previous act.
That is, an unforseen but imperative necessity may call for the doing of
something which is not unlawful, but which needs, yet has not received,
the sanction of law. This act may _afterwards_ be _legalized_ by the
legislature.
The things forbidden by this clause would, if permitted, render unsafe all
those personal rights for the security of which the constitution was
framed and the government founded.
_Clause 4.--Direct Taxes_
_No capitation or other direct tax shall be laid, unless in proportion to
the census or enumeration hereinbefore directed to be taken._
This clause emphasizes the first sentence of clause three, section two, of
this article. It was _intended_ to prevent the taxation of the _two-fifths
of the slaves_ not enumerated for representation, and was evidently
inserted as a concession to the slave states. But the abolition of slavery
takes from the clause all force except that mentioned at the beginning of
this paragraph.
No capitation tax (that is, so much _per head_) has ever been levied by
the general government.
_Clause 5.--Duties on Exports._
_No tax or duty shall be laid on articles exported from any state._
This was designed to prevent discrimination against any state or section.
Though the question has never been judicially determined, it is generally
understood that since anything exported must be exported from some state
(or territory), this clause prohibits _all_ export duties.
_Clause 6.--Commercial Restrictions._
_No preference shall be given by any regulation of commerce or revenue to
the ports of one state over those of another; nor shall vessels bound to
or from one state, be obliged to enter, clear or pay duties in another._
This provision has the same object in view as that which requires duties
to be uniform--the impartial treatment of the several states. It shows,
too, the fear felt by many that the general government _might_ show
partiality.
The latter part of the clause virtually establishes free trade among the
states.
_Clause 7.--Care of Public Funds._
_No money shall be drawn from the treasury but in consequence of
appropriations made by law; and a regular statement and account of the
receipts and expenditures of all public money shall he published from time
to time._
There are two great purposes to be subserved by this provision: First, to
impose upon those handling the money a feeling of responsibility, and thus
to increase the probability of carefulness; second, to prevent the use of
public funds for any purpose except those authorized by the
representatives of the people. This is in harmony with the provision which
gives to congress the power to raise money.
Incidentally, too, this is a protector of our liberties. Those who have
charge of the public purse are appointees of the president. But for this
provision he might, as rulers in arbitrary governments do, use the public
treasury to accomplish his own private purposes; and one of these purposes
might be the overthrow of our liberties. This thought undoubtedly was a
prominent one in the minds of the framers of the constitution.
The account of receipts and expenditures is reported to congress annually
by the secretary of the treasury.
_Clause 8.--Titles of Nobility._
No title of nobility shall be granted by the United States;[1] and no
person holding an office of profit or trust under them, shall, without the
consent of the congress, accept of any present, emolument, office, or
title of any kind whatever, from any king, prince, or foreign state[2]_.
[1] This is in harmony with the principle "All men are created equal."
And, while in society there are classes and grades based upon learning,
wealth, etc., we intend that all shall be equal before the law, that there
shall be no "privileged classes."
[2] The purpose of this is evident--to free public officers from
blandishments, which are many times the precursors of temptations to
treason.
An amendment to the constitution was proposed in 1811, prohibiting any
citizen from receiving any kind of office or present from a foreign power,
but it was not ratified.
SECTION X.--PROHIBITIONS ON THE STATES.
_Clause 1.--Unconditional Prohibitions._
_No state shall enter into any treaty, alliance, or confederation;[1]
grant letters of marque and reprisal;[2] coin money;[3] emit bills of
credit;[4] make anything but gold and silver coin a tender in payment of
debts;[5] pass any bill of attainder,[6] ex post facto law,[6] or law
impairing the obligation of contracts,[7] or grant any title of
nobility.[6]_
[1] Otherwise the intrigues of foreign nations would soon break up the
Union.
[2] Had the states this power, it would be possible for any one of them to
involve the whole country in war.
[3] This provision secures the uniformity and reliability of our coinage.
[4] A state may borrow money and may issue bonds for the purpose. But
these bonds are not bills of credit, because they are not designed to
circulate as money.
The evils of state issuance of bills of credit we cannot appreciate, but
the framers of the constitution had experienced them, and based this
provision on that bitter experience.
[5] This has the same general purpose as the preceding.
It will be observed that there is no such prohibition on the United
States, and the implied power to emit bills of credit and to make things
other than gold and silver legal tender, has been exercised.
[6] Forbidden to the states for the same reason that they are forbidden to
the United States.
[7] The purpose is to preserve the legal obligation of contracts. "The
spirit of the provision is this: A contract which is legally binding upon
the parties at the time and place it is entered into by them, shall remain
so, any law of the states to the contrary notwithstanding." [Footnote:
Tiffany quoted by Andrews.]
Under this provision many questions have arisen. One of them is this: May
a state pass insolvent or bankrupt laws? It has been decided by the United
States Supreme Court that a state may pass insolvent laws upon _future_
contracts, but not upon _past_ contracts. But no state can pass a bankrupt
law.
_Clause 2.--Conditional Prohibitions._
No state shall, without the consent of the congress,[1] lay any imposts or
duties on imports or exports, except what may be absolutely necessary for
executing its inspection laws;[2] and the net produce of all duties and
imposts, laid by any state on imports or exports, shall be for the use of
the treasury of the United States;[3] and all such laws shall be subject
to the revision of the congress.[4] No state shall, without the consent of
congress, lay any duty of tonnage,[5] keep troops or ships of war in time
of peace,[6] enter into any agreement or compact with another state,[7] or
with a foreign power,[7] or engage in war, unless actually invaded, or in
such imminent danger as not to admit of delay.[8]_
[1] By implication, congress may give the states permission to do the
things enumerated in this paragraph. But it never has.
[2] The inspection laws are designed to secure to consumers quality and
quantity in commodities purchased. Thus, in some states there is a dairy
commissioner whose duty it is to see that no substance is offered for sale
as butter which is not butter. And officers may be appointed to inspect
the weights and measures in stores. Such officers may be provided for
without the consent of congress. But no fees can be charged for this
service more than are necessary to pay the officers. In other words, the
offices cannot be made a source of revenue to the state.
[3] This is to free the states from any temptation to use the power which
might be conferred under this clause for their own gain, to the detriment
of a sister state.
[4] This secures to congress the control of the matter.
[5] That is, a tax upon the carrying power of a ship. This is in harmony
with the provision which forbids the states to levy duties on imports.
[6] This prohibits the keeping of a standing army, but each state may have
its organized militia.
[7] In the preceding clause, the states are forbidden to enter into
treaties, etc.,--that is, into _political_ compacts; and the prohibition
is absolute. Here they are prohibited from entering into _business_
compacts, unless permitted by congress.
[8] For a state to engage in war would be to embroil the country in war.
But the militia might be sent to repel invasion. They would, however, be
defending not the state simply, but also the United States.
"We have thus passed through the positive prohibitions introduced upon the
powers of the states. It will be observed that they divide themselves into
two classes: those which are political in their character, as an exercise
of sovereignty, and those which more especially regard the private rights
of individuals. In the latter the prohibition is absolute and universal.
In the former it is sometimes absolute and sometimes subjected to the
consent of congress. It will at once be perceived how full of difficulty
and delicacy the task was, to reconcile the jealous tenacity of the states
over their own sovereignty, with the permanent security of the national
government, and the inviolability of private rights. The task has been
accomplished with eminent success." [Footnote: Story.]
_Pertinent Questions._
When was slavery introduced into the United States? Give an account of the
steps taken to abolish it.
What is the use of the writ of habeas corpus? If a sane person were
confined in an asylum, how could he be got out? Could a person who had
taken religious vows imposing seclusion from the world, be released by
means of this writ? Show the necessity of power to suspend the writ in
cases of rebellion or invasion.
Could the thing forbidden in a _bill_ of attainder be done by a court?
Give an example of an _ex post facto_ law.
What is meant by "entering" and "clearing" a port?
How could the president get hold of any United States money other than
that received in payment of his salary?
Could you receive a present from a foreign government? Name any American
who has received a title or a present from a foreign government. Must a
titled foreigner renounce his title on becoming an American citizen?
What are "greenbacks?" Did you ever see a state "greenback?" When do you
expect to see one?
What is a contract? Could a legislature pass a law doing away with
imprisonment for debt? What argument did Daniel Webster make in the famous
Dartmouth College Case?
Name the various state inspectors in this state. How are they paid? May a
state impose taxes to defray its own expenses? What prohibitions apply to
both the general and the state governments. Arrange all the prohibitions
in tabular form, classifying as indicated by Judge Story in the paragraph
quoted.
CHAPTER XXIII.
ARTICLE II.--THE EXECUTIVE BRANCH.
It seems to us a matter of course that after the laws are made there
should be some person or persons whose duty it should be to carry them
into execution. But it will be remembered that under the confederation
there was no executive department. The colonists had suffered from kingly
rule, and in forming their first government after independence, they
naturally avoided anything having the appearance of kingliness. After
trying their experiment for some years, however, their "sober second
sense" told them that the executive branch is a necessity, and when the
convention assembled to "revise the articles of confederation" (as they at
first intended to do) one of the things upon which there was practical
unanimity of opinion was the necessity of having the government organized
into three branches, or, as they are sometimes called, departments.
The question in regard to the executive branch was how to organize it, so
as to secure two chief qualities; namely, energy of execution and safety
to the people. The former was fully appreciated, for the weakness of
execution during the confederation period, or the lack of execution, had
impressed upon all thinking persons the necessity of more vigor in
carrying out the laws. The experience during colonial days emphasized the
necessity of surrounding the office with proper safeguards. And among
those intrusted with the organization of a scheme of government, were many
who were well versed in history--men who knew that the executive branch is
the one in which lies the menace to human liberty. Under these two main
divisions of the problem, arose such questions as: How many persons shall
constitute the executive? What shall the term be? How shall the executive
be chosen? What powers, other than those which are purely executive, shall
be vested in this branch? How shall this branch be held responsible,
without crippling its efficiency?
How well the problem was solved, we shall find out in our study of the
provisions of the constitution pertaining to this branch.
SECTION I.--ELECTION AND SERVICE.
_Clause 1.--Vestment of Power._
_The executive power shall be vested in a president of the United States
of America.[1] He shall hold his office during the term of four years,[2]
and together with the vice-president,[3] chosen for the same term, shall
be elected as follows:_
[1] This sentence answers the question, "How many persons shall constitute
the executive?" and gives the official title thereof.
The executive authority is vested in one person for two chief reasons: To
secure energy in execution, and to impose upon the executive a sense of
responsibility. If the executive power were vested in a number of persons,
the differences and jealousies sure to arise, and the absence of
responsibility, would result in a feeble administration, which is but
another name for a bad administration.
[2] The term first reported by the committee of the whole was seven years,
with the provision forbidding re-election. Some of the delegates were in
favor of annual elections, while others thought that the executive should
be elected for life or good behavior. And other terms, varying from two to
ten years, had their advocates. After much discussion, the term of four
years was agreed upon as a compromise, and no limitation was put upon the
number of terms for which a person might be elected.
In another place it is made the duty of the president to recommended to
congress such measures as he deems necessary for the good of the country.
He should, therefore, have a term long enough to fairly test his "policy"
and to stimulate him to personal firmness in the execution of his duties,
yet not so long as to free him from a sense of responsibility. It was
thought that a term of four years would cover both of the conditions
mentioned.
[3] The purpose of having a vice-president is to provide a successor for
the president in case of his disability or death.
CHOOSING THE PRESIDENT AND VICE-PRESIDENT.
_Clause 2.--Number and Appointment of Electors._
_Each state shall appoint, in such manner as the legislature thereof may
direct, a number of electors equal to the whole number of senators and
representatives to which the state may be entitled in the congress; but no
senator or representative, or person holding an office of trust or profit
under the United States, shall be appointed an elector._
Three plans for the election of president and vice-president were proposed:
First, election by congress; second, election by the people; third,
election by persons chosen by the people for that special purpose.
The objection to the first plan was, that it would rob the executive
branch of that independence which in our plan of government it is designed
to possess--it would render the executive branch in a measure subordinate
to the legislative.
The objections to the second plan came from two sources. Some of the
delegates feared that, inexperienced as they were, the people could not be
trusted to act wisely in the choice of a president--that they would be
swayed by partizan feeling, instead of acting with cool deliberation. And
the small states feared that in a popular election their power would count
for little.
Then the compromise in the organization of the congress was remembered,
and it was resolved that the election of the president and vice-president
should be placed in the hands of persons chosen for that special purpose,
and that the number of the electors from each state should be that of its
representation in congress. This satisfied both parties. Those who thought
that the people could not be intrusted with so important a matter as the
choice of the president, hoped that this mode would place the election in
the hands of the wise men of the several states. And the delegates from
the small states secured in this all the concession which they could
fairly ask.
This matter being settled, the next question was: How shall the electors
be chosen? There being much difference of opinion on the subject, it was
thought best to let each state choose its electors in the way which it
might prefer.
Naturally the modes of choosing electors varied. In some states the
legislature chose them, but this mode soon became unpopular. [Footnote:
South Carolina, however, retained this mode until very recently.] In some
states they were chosen by the people on a general ticket, and in others,
by the people by congressional districts. The last is the fairest way,
because it most nearly represents the wishes of the people. By electing on
a general ticket, the party which is in the majority in any state can
elect _all_ of the electors. But, for this very reason, the majority in
each state has finally arranged the matter so that this is now the
practice in nearly all the states.
The present system of nominations and pledged electors was undreamed of by
the framers of the constitution. They intended that in the selection of
the president each elector should be free to vote according to his own
best judgment. But it has come to pass that the electors simply register a
verdict already rendered. Briefly the history of the change is this:
During the administration of Washington (who had been elected unanimously)
differences of opinion on questions of policy gave rise to political
parties. To secure the unity of action so essential to success, the
leaders of the respective parties, by agreement among themselves,
designated, as each election approached, persons whom they recommended for
support by electors of their party. Gradually the recommendation came to
be looked upon as binding. In 1828 the Anti-Masonic party, having no
members of congress to act as leaders, held a "people's convention." Its
nominees received a surprisingly large vote. The popularity of this mode
of nomination thus appearing, the other parties gradually adopted it, and
since 1840 it has remained a recognized part of our political machinery.
_Clause 3.--Election of President and Vice-President._
_The electors shall meet in their respective states, and vote by ballot
for two persons, of whom one at least shall not be an inhabitant of the
same state with themselves. And they shall make a list of all the persons
voted for, and the number of votes for each; which list they shall sign
and certify, and transmit, sealed, to the seat of the government of the
United States, directed to the president of the senate. The president of
the senate shall, in the presence of the senate and house of
representatives, open all the certificates, and the votes shall then be
counted. The person having the greatest number of votes shall be
president, if such number be a majority of the whole number of electors
appointed; and if there be more than one who have such a majority, and
have an equal number of votes, then the house of representatives shall
immediately choose by ballot one of them president, and if no person have
a majority, then from the five highest on the list the said house shall in
like manner choose the president. But in choosing the president, the vote
shall be taken by states, the representation from each state having one
vote; a quorum for this purpose shall consist of a member or members from
two-thirds of the states, and a majority of all the states shall be
necessary to a choice. In every case, after the choice of the president,
the person having the greatest number of votes of the electors, shall be
vice-president. But if there should remain two or more who have equal
votes, the senate shall choose from them by ballot the vice-president._
Under this provision Washington was elected president twice and Adams
once. In the disputed election of 1800, it was found that this mode would
not do. The faulty feature in the plan is found in the first sentence,
which requires the electors to vote for two persons for president. In this
election, Jefferson and Burr, candidates of the same party, received the
same number of votes and each had a majority. The power to choose then
devolved upon the house of representatives. There were at that time
sixteen states, and consequently sixteen votes. Of these Jefferson
received eight, Burr six, and the remaining two were "scattering." As it
required nine votes to make a majority, no one was elected. The balloting
was continued for seven days, thirty-six ballots being taken. On the
thirty-sixth ballot Jefferson received ten votes to four for Burr.
Jefferson thus became president and Burr vice-president. But the
consequent bitterness of feeling was much regretted, and it was determined
to change, slightly, the mode of election. The changes consisted in having
the electors vote for one person for president and for a different person
for vice-president; and when the election is thrown into the house of
representatives, the selection is to be made from the _three_ highest
instead of the _five_ highest as originally. The change was made by the
twelfth amendment, passed in 1804, which is here given in full.
_The Twelfth Amendment._
_The electors shall meet in their respective states and vote by ballot for
president and vice-president, one of whom, at least, shall not be an
inhabitant of the same state with themselves; they shall name in their
ballots the person voted for as president, and in distinct ballots the
person voted for as vice-president, and they shall make distinct lists of
all persons voted for as president, and of all persons voted for as
vice-president, and of the number of votes for each; which lists they
shall sign and certify, and transmit sealed to the seat of government of
the United States, directed to the president of the senate. The president
of the senate shall, in the presence of the senate and house of
representatives, open all the certificates, and the votes shall then be
counted; the person having the greatest number of votes for president
shall be president, if such number be a majority of the whole number of
electors appointed; and if no person have such majority, then from the
persons having the highest numbers not exceeding three on the list of
those voted for as president, the house of representatives shall choose
immediately by ballot, the president. But in choosing the president, the
votes shall be taken by states, the representation from each state having
one vote; a quorum for this purpose shall consist of a member or members
from two-thirds of the states, and a majority of all the states shall be
necessary to a choice. And if the house of representatives shall not
choose a president whenever the right of choice shall devolve upon them,
before the fourth day of March, next following, then the vice-president
shall act as president, as in the case of the death or other
constitutional disability of the president._
_The person having the greatest number of votes as vice-president, shall
be the vice-president, if such number be a majority of the whole number of
electors appointed, and if no person have a majority, then from the two
highest numbers on the list the senate shall choose the vice-president; a
quorum for the purpose shall consist of two-thirds of the whole number of
senators, and a majority of the whole number shall be necessary to a
choice. But no person constitutionally ineligible to office of president
shall be eligible to that of vice-president of the United States._
Thus we see that the president may be elected in one of two ways--by
electors or by the house of representatives; and that the vice-president
may also be elected in one of two ways--by electors or by the senate.
The mode of choosing the president is regarded by many as difficult to
remember. Perhaps making an outline like the following will aid the memory:
_First Mode or Process._
I. The electors, after they are chosen:
1. MEET in their respective states.
2. VOTE by ballot, for president and vice-president.
3. MAKE LISTS of the persons voted for and the number
of votes for each.
4. SIGN, CERTIFY and SEAL those lists.
5. TRANSMIT them to the seat of government, addressed
to the president of the senate.
II. The president of the senate:
1. OPENS the certificates, in presence of both houses.
2. DECLARES THE RESULT, after the votes have been
counted.
_Second Mode or Process._
Points-- President-- Vice-President--
Chosen by.......... House of Representatives The Senate.
From............... Three highest. Two highest.
Voting............. By ballot. By ballot.
State power........ Each one vote. Each two votes.
Quorum............. Representatives from Two-thirds of senators.
two-thirds of the states.
Necessary to choice Majority of states. Majority of senators
The place of meeting is usually the capital of the state.
Three "lists" of the vote for president and three for vice-president are
prepared, and "signed, certified and sealed." One pair of these lists is
sent by mail and another by special messenger. The third is deposited with
the judge of the United States District Court in whose district the
electors meet, to be called for if necessary. The purpose of these
precautions is to make sure that the vote of the state may not be lost,
but shall without fail reach the president of the senate.
_Clause 4.--Times of These Elections._
_The congress may determine the time of choosing the electors,[1] and the
day on which they shall give their votes;[2] which day shall be the same
throughout the United States.[3]_
[1] The day designated by congress is the first Tuesday after the first
Monday in November. The election always comes in "leap year."
[2] The electors meet and vote on the second Monday in January.
[3] This provision was designed, first, to prevent fraud in voting; and
second to leave each state free to act as it thought best in the matter of
persons for the offices, unbiased by the probability of success or failure
which would be shown if the elections occurred on different days in
different states.
It may be desirable to know in this connection that:
The president of the senate sends for missing votes, if there be any, on
the fourth Monday in January.
The counting of votes is begun on the second Wednesday in February and
continued until the count is finished. (See page 334.)
In case the electors have not given any one a majority for the presidency,
the house proceeds at once to elect. In a similar case the senate proceeds
at once to choose a vice-president.
The provisions of the continental congress for the first election were:
1. Electors to be chosen, first Wednesday in January, 1789.
2. Electors to vote, first Wednesday in February.
3. The presidential term to commence first Wednesday in March. The first
Wednesday in March in 1789 was the fourth day of the month, and on that
day the presidential terms have continued to begin.
_Clause 5.--Qualifications of President and Vice-President.
No person except a natural born citizen,[1] or a citizen of the United
States at the time of the adoption of this constitution,[2] shall be
eligible to the office of president; neither shall any person be eligible
to that office, who shall not have attained to the age of thirty-five
years,[3] and been fourteen years a resident within the United States.[4]_
[1] The importance of the office is such as, in the opinion of the framers
of the constitution, to necessitate this requirement. And it does not seem
unjust to make this limitation.
[2] This exception was made from a sense of gratitude to many
distinguished persons, who, though not native citizens, had placed their
lives and fortunes at the service of this country during the revolution,
and who had already become citizens of the young republic. This provision
is now, of course, obsolete.
[3] Age should bring wisdom. The age specified is great enough to permit
the passions of youth to become moderated and the judgment matured. As a
matter of fact, the youngest president yet elected was much older than
this minimum. In monarchies the rulers are sometimes children. It cannot
be so with us.
[4] But a "natural born citizen," even, may live so long in a foreign
country as to lose his interest in his native land. This provision is
intended to preclude the election of such persons to the presidency. They
might seek it at the instance of a foreign government, for sinister
purposes.
Will residence during _any_ fourteen years satisfy the requirement?
Commentators generally have expressed an affirmative opinion, based upon
the fact that James Buchanan and others were elected president on their
return from diplomatic service abroad. It must be remembered, however,
that a person sent abroad to represent this government _does not lose his
residence in this country_. Therefore the fact of Mr. Buchanan being
elected after acting as our minister to England, has no bearing upon the
question. On the other hand, the evident purpose of the provision could
hardly be satisfied if a boy, a native of this country, should live here
until fourteen years of age and then spend the rest of his years in a
foreign country. And when the matter is carefully considered, it will be
seen that the only fourteen years which will secure that state of mind in
the candidate which is sought by the provision, are the fourteen years
_immediately preceding election_. Again, twenty-one and fourteen equal
thirty-five. A person "comes of age" at twenty-one. The fourteen years of
_manhood_ added would just make thirty-five years, the minimum age
required. This coincidence could hardly have been accidental, and
justifies the view expressed.
According to the twelfth amendment, the qualifications of the
vice-president are the same as those of the president.
_Clause 6.--Vacancies._
_In case of the removal of the president from office, or of his death,
resignation or inability to discharge the powers and duties of the said
office, the same shall devolve on the vice-president, and the congress may
by law provide for the case of removal, death, resignation or inability,
both of the president and vice-president, declaring what officer shall
then act as president, and such officer shall act accordingly, until the
disability be removed, or a president shall be elected._
If no regular succession were established, there would be danger of
anarchy.
By an act passed March 1, 1792, congress provided that in case of the
disability of both president and vice-president, the duties of the office
of president should devolve upon the president _pro tempore_ of the senate;
and in case of a vacancy in that office, that they should then devolve
upon the speaker of the house of representatives.
But when president Garfield died there was no president _pro tempore_ of
the senate and no speaker of the house; so that when vice-president Arthur
became president, there was no one to succeed him in case of his
disability. It was then expected that congress would devise another plan
of succession; but it did not. When vice-president Hendricks died, there
was again no president _pro tempore_ of the senate or speaker of the
house. This recurrence of the danger within four years prompted congress
to provide an order of succession less liable to accident than the one so
long in use. The succession was placed in the cabinet in the following
order: Secretary of state, secretary of the treasury, secretary of war,
attorney-general, postmaster-general, secretary of the navy, and secretary
of the interior.
When the vice-president or secretary becomes president, he serves for the
remainder of the term.
One very important item in this connection the constitution leaves
unprovided for, namely, who shall determine when "disability," other than
death, occurs or ceases? Certainly the decision should not be left to
those interested in the succession. No official answer to this question
has yet been given.
_Clause 7.--President's Salary._
_The president shall, at stated times, receive for his services a
compensation[1] which shall be neither increased nor diminished during the
period for which he shall have been elected,[2] and he shall not receive
within that period any other emolument from the United States or any of
them.[3]_
[1] Otherwise a person of moderate means would be debarred from accepting
the position, and the country might thereby be deprived of the services of
some man of lofty character.
[2] Thus congress can neither bribe nor drive the president into doing
anything which he may regard as unwise or wrong. And on the other hand,
the president has no temptation to try to "undermine the virtue" of
congress for his own pecuniary benefit.
[3] This provision has the same purpose in view as the last. "He is thus
secured, in a great measure, against all sinister foreign influences. And
he must be lost to all just sense of high duties of his station, if he
does not conduct himself with an exclusive devotion to the good of the
whole people, unmindful at once of the blandishments of courtiers, who
seek to deceive him, and of partizans, who aim to govern him, and thus
accomplish their own selfish purposes." [Footnote: Story]
Till 1873 the salary of the president was $25,000 a year. It was then
raised to $50,000 a year. He also has the use of the White House, which is
furnished at national expense; and special appropriations are frequently
made to cover special expenses. And yet few presidents have been able to
save anything out of their salaries.
The vice-president receives $8000 a year.
_Clause 8.--Oath of Office._
_Before he enter upon the execution of his office, he shall take the
following oath or affirmation: "I do solemnly swear (or affirm) that I
will faithfully execute the office of president of the United States, and
will to the best of my ability, preserve, protect and defend the
constitution of the United States."_
This oath is usually administered by the chief justice of the Supreme
Court. It is very simple, pledging the president to two things only; but
they are the essential things.
"Taking the oath" is a part of the inauguration ceremonies which occur,
usually, on the fourth of March.
_Pertinent Questions._
Was there any president under the confederation? Why? When does the
president's term begin? Suppose that day comes on Sunday? How does a
presidential term compare with that of senator? Of representative? The
first proposition in the constitutional convention was to make the
presidential term seven years, and limit a person to one term. Is the
present plan better or not as good? For how many terms may a person be
elected president? What presidents have been elected for a second term?
How many presidential electors is this state entitled to? New York?
Illinois? Wisconsin? Delaware? How many are there altogether? Show how the
present mode is an advantage to the small states. Who were the electors of
this state in the last presidential election? Get a "ticket" or ballot and
study it. Tear off, beginning at the top, all that you can without
affecting the vote. How could a person have voted for one of the
republican candidates without voting for the other? Where did the electors
of this state meet? When? Did you preserve the newspaper report of their
proceedings?
Could the president and vice-president be chosen from the same state? How
many electoral votes were necessary to a choice last time? How many did
each candidate receive? In case of election by the house of
representatives, what is the smallest possible number that could elect? In
case the house should fail to choose a president before the fourth of
March, who would be president? Have we ever been threatened with a case of
this kind? Which presidents have been elected by the house? Has a
vice-president ever been chosen by the senate?
Specify four differences between the old and the new way of electing
president and vice-president. Which was the most important change? What
statement in the twelfth amendment was unnecessary in the original
provision? If "two-thirds of the senators" are present, are two-thirds of
the states necessarily represented? What is the smallest number of
senators that could elect a vice-president? How many times has the
vice-president succeeded to the presidency? What caused the vacancies? Is
the result of the election known before the meeting of the electors?
Who is our present minister to England? Would a son of his born in England
today be eligible in due time to the presidency? Make a comparative table,
giving the qualifications, mode of election (general), and term of
representatives, senators and president.
Who is now vice-president of the United States? Have we ever had more than
one vice-president at the same time? Name the persons, in their order, who
would succeed to the presidency if the president should be unable to
perform his duties. If the president should become insane, who would
decide that such is the fact? How long would the person thus succeeding to
the position of acting president serve? State four ways in which a vacancy
in the office of president may occur. If the president leaves Washington,
is a vacancy created? If he leaves the country? If he is impeached? In
case of the non-election of either president or vice-president, who would
serve? How long? How is a vacancy in the office of vice-president filled?
At what "stated times" is the salary of the president paid? In November,
1872, President Grant was re-elected. His new term began March, 1873. In
the meantime the salary of the president was increased to $50,000. Did
President Grant get the increase? Explain.
Does the vice-president take an "oath of office?" If he succeeds to the
presidency must he take the oath prescribed in the constitution? What
constitutional provision for the salary of the vice president? Compare the
duties of a governor of a state with those of the president.
_Debate._
Resolved, That the president should be elected by a direct vote of the
people.
Resolved, That the presidential term should be lengthened, and a second
term forbidden.
SECTION II.--POWERS OF THE PRESIDENT.
_Clause 1.--Some Sole Powers._
_The president shall be commander-in-chief of the army and navy of the
United States, and of the militia of the several states, when called into
the actual service of the United States;[1] he may require the opinion, in
writing, of the principal officer in each of the executive departments,
upon any subject relating to the duties of their respective offices,[2]
and he shall have power to grant reprieves and pardons for offenses
against the United States, except in cases of impeachment.[3]_
[1] Elsewhere it is made the duty of the president to see "that the laws
are faithfully executed." The execution of the law may sometimes require
force, hence it seems proper that the command of the army should be vested
in him. Again, an army may be necessary to defend the country. In order
that it may act promptly and efficiently, it must be directed by one
person; and the person whom we instinctively designate for the purpose is
the president.
The possession of this power by the president is fraught with danger,
however. Unless surrounded by proper checks, it might be used to overturn
our system of government. But the president can hardly, as now situated,
misuse this power. In the first place, the general rules for the
management and government of the army are made by congress. In the second
place, the army is supported by appropriations made by congress, and these
are made for short periods. In the third place, congress could reduce or
even abolish the army, if that step seemed necessary in defense of our
liberties. In brief, the support and control of the army are in the hands
of congress; the president merely directs its movements.
Thus far the president has never actually taken the field in command of
the army; he has appointed military commanders, and has simply given them
general directions, which they have carried out as best they could. At any
time, however, if dissatisfied with the results, he may change the
commander.
[2] The president cannot personally see to the carrying out of all the
laws, and yet he is the one responsible for their execution. To assist
him, the work is divided up into parts, and each part is placed in the
hands of an officer appointed by the president (with the consent of the
senate) and responsible to him. These persons constitute what is known as
the cabinet, and all but two have the title secretary.
The one who keeps the originals of the public documents, the great seal,
and the public records, is called the secretary of state. He is to the
United States somewhat as the clerk is to the district or town, or the
auditor to the county. But in addition, he is the one who has charge of
our relations with foreign countries. He is the one to whom you would
apply for a passport, if you were going to travel in foreign lands. He has
an assistant and many subordinate officers. In this department are three
bureaus, as they are called--the diplomatic, the consular, and the
domestic. (For further information, see pages 321, 349, 350.)
The officer who has general charge of the receiving and paying out of
money is called the secretary of the treasury. He has two assistants and
thousands of subordinates, some in Washington and others throughout the
country. Under his direction money is coined, "greenbacks" and other
tokens of indebtedness are issued and redeemed. He also has general charge
of all government provisions for making navigation safe along the coast,
such as lighthouses, etc.
All that pertains to executive control of the army is in charge of the
secretary of war. The chiefs of bureaus in this department are army
officers. The secretary may or may not be. The military academy at West
Point is also, as we might expect, in charge of this department. (See p.
311.)
The control of the navy is exercised by the secretary of the navy. The
chiefs of bureaus here are navy officers. The secretary may or may not be.
This department has charge of the construction of war ships and the
equipment of them; and, as we would expect it has charge of the naval
academy at Annapolis (p. 311).
The department which has the greatest diversity of duties is that of the
interior. This department has charge of patents and trade-marks, of
pensions, of United States lands, of the Indians, of the census, and of
education. Its chief officer is called the secretary of the interior. The
chiefs of bureaus in this department, except that of the census, are
called commissioners.
The chief officer of the postoffice department is called the postmaster
general. Here there are five bureaus, in charge respectively of
appointments, contracts, finances, money orders, and foreign mail.
The officer who has charge of prosecution or defense of suits for or
against the United States is called the attorney general. He is to the
United States what the county attorney is to the county. He has, of
necessity, many assistants. All United States district attorneys and
marshals act under direction of this department. He is also legal adviser
of the government.
By an act approved February 11, 1889, the department of agriculture was
established with appropriate duties assigned to it.
The practice of holding regular cabinet meetings was begun by Jefferson,
and has continued as a matter of custom and expediency ever since. The
meetings are attended only by the president, his private secretary, and
the cabinet. They are held for the purpose of consultation. The president
may act upon the advice of his cabinet or not as he chooses.
The reports or opinions referred to in the provision of the constitution
now under consideration, are called for at least once a year and are
transmitted to congress with the president's message. But they may be
called for at any time.
Cabinet officers are not directly authorized by the constitution, but
provisions of this section seem to take it for granted that the president
would have such assistants.
[3] This power extends to military offenses as well as to the criminal
offenses of civilians.
The Supreme Court has decided that the president has power also to commute
sentences; and that he may act in the matter at any time after the offense
is committed, even before the trial. He may also stop proceedings in any
criminal case prosecuted in the name of the United States.
The exception in case of impeachment was first made in England, to prevent
the king from shielding his ministers. It is in our constitution as a
similar check upon the president.
_Clause 2.--Powers shared by the Senate._
_He shall have power, by and with the advice and consent of the senate, to
make treaties, provided that two-thirds of the senators present concur;[1]
and he shall nominate and by and with the advice and consent of the
senate, shall appoint ambassadors, other public ministers and consuls,
judges of the Supreme Court, and all other officers of the United States,
whose appointments are not otherwise herein provided for, and which shall
be established by law;[2] but congress may by law vest the appointment for
such inferior officers as they may think proper, in the president alone,
in the courts of law, or in the heads of departments.[3]_
[1] The "advice" of the senate is rarely, if ever, asked; but its
"consent" must be had in order to make the treaties lawful.
For the mode of making treaties, see pp. 320, 350, 360.
The power to make treaties was confided to the president originally
because it had been the custom for the executive to possess the
treaty-making power. But it is defensible on other grounds. Some treaties
need to be considered secretly. This could hardly be done if congress were
the treaty-making power. But the president and the cabinet can consider
the matter in secret. Then promptness is sometimes needed, as in case of a
treaty to close a war. Promptness may prevent useless loss of life. If
congress had to be summoned, valuable time would be taken. As two-thirds
of the senators present must agree to the provisions of the treaty, the
president cannot misuse the power granted in this provision.
When the treaty necessitates the raising of money, the house of
representatives is generally consulted, also. In fact, if the house
opposed such a treaty it is questionable whether it could be carried out.
In each of the three great purchases of territory the president consulted
congress before making the purchase.
[2] The nominations are made in writing, and the senate may either confirm
or reject the nominees. The person or persons confirmed are then appointed
by the president. When a nominee is rejected, the president generally
sends in a new nomination.
This mode of appointment is thus defended by Alexander Hamilton, in the
_Federalist:_ "The blame of a bad nomination would fall upon the president
singly and absolutely. The censure of rejecting a good one would lie
entirely at the door of the senate; aggravated by the consideration of
their having counteracted the good intentions of the executive. If an ill
appointment should be made, the executive for nominating, and the senate
for approving would participate, though in different degrees, in the
opprobrium and disgrace."
It will be noted in this connection that, while in the state most of the
officers are elected, in the general government all officers except the
president and vice-president are appointed.
In Washington's administration the question was raised, can the president
remove officers without the consent of congress? And it was decided that
the president can remove all officers whom he can appoint. Judges, who
hold for life, are of course excepted. During Johnson's administration,
the power of the president in this direction was declared to be exactly
equal to his power of appointment,--that is, if the consent of the senate
be necessary to an appointment, it would also be necessary for removal.
But afterwards the law was amended, so that now the president may suspend
an officer until the end of the next session of the senate, and make a
temporary appointment. If the senate does not at its next session confirm
the nomination to fill the vacancy, the old officer is re-instated. But if
the president is determined to carry his point, he may immediately suspend
the old officer again, and re-appoint the rejected candidate, and continue
so to do.
During the early administrations comparatively few removals were made,
except where it seemed necessary for the improvement of the public
service. But Andrew Jackson introduced into our politics the proposition,
"To the victors belong the spoils;" which means that the party electing
the president should have all the offices. This view of the case presents
to every public officer the temptation to secure himself in place, not by
meritorious service in the line of his duty, but by activity in the
service of his party; the tendency is, to displace love of country and
devotion to duty, and to substitute therefor subserviency to strong party
leaders. So crying has the evil become, that many of the wisest and most
patriotic men in the country are seeking to so far reform the public
service that an officer may feel reasonably secure in his position so long
as he performs his duties faithfully, and that vacancies shall be filled
by the promotion of worthy subordinates.
[3] This is to secure two objects: first, to relieve the president of the
burden of appointing thousands of such officers; and second, to place the
appointment in the hands of the officers responsible for the work of these
subordinates.
The principal officers thus appointed are:
1. Postmasters having salaries less than $1000 a year, appointed by the
postmaster general.
2. Clerks, messengers, janitors, etc., in the several departments,
appointed by the respective secretaries. The chiefs of bureaus and some of
the more important officers in each department are appointed by the
president with the consent of the senate.
3. The subordinates in each custom house, appointed by the collector
thereof.
4. Clerks of United States courts, appointed by the judges. The United
States district attorneys and marshals are appointed by the president,
with the consent of the senate.
The term of appointees is four years, unless sooner removed. They may be
and are removed, however, as before said, not only for unfitness, but also
for political reasons.
_Clause 3.--Temporary Appointments._
_The president shall have power to fill up all vacancies that may happen
during the recess of the senate, by granting commissions which shall
expire at the end of their next session._
This provision is necessary because the senate is not always in session,
and it would not pay to convene it for the purpose of acting upon
nominations every time a vacancy occurs. The president may wait, however,
if the case will permit, until the next session of congress before making
an appointment.
SECTION III.--DUTIES OF THE PRESIDENT.
_He shall from time to time give to congress information of the state of
the Union, and recommend to their consideration such measures as he shall
judge necessary and expedient;[1] he may on extraordinary occasions,
convene both houses or either of them,[2] and in case of disagreement
between them, with respect to the time of adjournment, he may adjourn them
to such time as he shall think proper;[3] he shall receive ambassadors and
other public ministers;[4] he shall take care that the laws be faithfully
executed,[5] and shall commission all officers of the United States.[6]
[1] The president complies with this provision by sending to congress at
the beginning of each regular session his annual message. And at other
times, as occasion demands, he sends special messages.
[2] Congress has been convened in extra session by presidential
proclamation only twelve times in all. The senate is frequently convened
in extra session at the close of the regular session to consider
appointments. This usually happens on the accession of a new president.
[3] No occasion has ever arisen for the exercise of this power.
[4] In all governments, diplomatic intercourse with other governments is
carried on through the executive department. (See pages 347 and 349.)
By "receiving" an ambassador, the country from which he comes is
"recognized" as an independent sovereignty, a nation. Ambassadors may be
rejected or dismissed, if personally objectionable to this country, if the
countries from which they come are not recognized as belonging to the
sisterhood of nations, or if the relations between their country and this
become unfriendly. Nations at war with each other do not exchange
ambassadors; each recalls its representative at the time of declaring war.
Our ambassadors or other public ministers may be rejected by other nations
for the reasons given above.
It will readily be seen that this power or duty may impose upon the
president at times, grave responsibility. The nature of this
responsibility may be understood when we remember the efforts made by the
confederate states to secure recognition of their agents at the courts of
London and Paris, during the civil war. For either country to have
recognized them would have been to interrupt our friendly relations with
that country, and might have led to war between it and us. (See page 347.)
[5] This is the president's most important duty; and it is his duty to
enforce the law whether he believes in its wisdom or not. He acts through
the executive officers previously referred to.
[6] The commission bears the signature of the president and the great seal
of the United States, the latter affixed by the secretary of state.
SECTION IV.--RESPONSIBILITY OF OFFICERS.
_The president, vice-president, and all civil officers of the United
States, shall be removed from office on impeachment for, and conviction
of, treason, bribery, or other high crimes and misdemeanors._
The word "civil" in the provision is used here in distinction from
_military_ and _naval_. It is generally understood that members of
congress are not "civil officers" within the meaning of this provision.
Military and naval officers are tried by courts-martial, and members of
congress are subject to trial by the house to which they belong.
The definition of "high crimes and misdemeanors" rests with the senate.
Treason is defined in the constitution, and bribery has a meaning
understood by all.
There have been seven cases of impeachment before the United States
Senate. (See pages 131, 138 and 333.)
_Pertinent Questions._
When, near the close of the late war, General Grant commanded all the
armies of the Union, had he any superior officer? (That is, was there any
officer higher in rank than he?) Who is commander-in-chief of the United
States army today? Who is the highest purely military officer, and what is
his rank?
Name the members of the present cabinet. If you wanted to trade with the
Indians, to whom would you make application for permission?
Can the president pardon before trial? What cases can he not pardon? Name
some one pardoned by the president. Could he pardon prisoners confined for
breach of state law? Where does the general government confine its
prisoners?
What is the smallest number of senators that could confirm or reject a
treaty? What is meant by the executive session of the senate? How could
you witness the proceedings at such a session? How large a vote is
necessary to confirm a nomination of the president?
What is an ambassador? A minister? A consul? What is meant by "inferior"
officers? By "civil service reform?"
State the principle which seems to cover the matter of removals.
Have you read the president's last annual message? What "information" did
he give to congress? What "recommendations" did he make? How was the
message delivered to congress? What "extra sessions" of congress do you
remember? What ones have you read about in books? When were the different
extra sessions called?
Give the number of bills vetoed by each president.
Has the president ever had to adjourn congress? For how long could he do
it? How is the British parliament prorogued?
Where do impeachments originate? By whom are they tried? Who may be
impeached? What for? Can persons who have ceased to be officers be
impeached? What is the extent of sentence? Was President Johnson
impeached? How is an impeachment trial conducted? What persons have been
impeached?
Prepare a tabulation telling:
1. Mode of election of president (general statement only)
2. Qualifications.
3. Term.
4. Vacancy.
5. Salary--constitutional provision; law.
6. Powers.
7. Duties.
CHAPTER XXIV.
ARTICLE III.--THE JUDICIAL BRANCH.
In the two articles so far considered, we have studied about the
law-_making_ and the law-_enforcing_ branches of the government. We shall
next examine the third great branch, the one which _interprets_ and
_applies_ the laws.
SECTION I.--ORGANIZATION.
_The judicial power of the United States shall be vested in one Supreme
Court,[1] and in such inferior courts as the congress may from time to
time ordain and establish.[2] The judges both of the Supreme and inferior
courts, shall hold their offices during good behavior,[3] and shall at
stated times receive for their services a compensation[4] which shall not
be diminished during their continuance in office.[5]_
[1] The creation of the Supreme Court, a distinct coordinate branch for
the final interpretation of law, was the master-stroke of the
constitution. "The Supreme Court has no prototype in history."
While the _existence_ of the Supreme Court is thus provided for in the
constitution, the _number of judges_ to constitute it was wisely left with
congress. Thus the organization may be changed as circumstances change.
The Supreme Court at first consisted of six justices, as they are called;
but owing to the growth of the country and the consequent increase of
labor to be performed, the number of justices has been increased to nine.
[2] Under this provision congress has established three grades of
"inferior" United States courts, the Circuit Courts of Appeal, Circuit
Courts, and the District Courts. The United States is divided into nine
judicial _circuits_, to each of which are assigned one justice of the
Supreme Court and two circuit judges. (See page 307.) These constitute
what is called the Circuit Court of Appeals, having appellate jurisdiction
in their respective circuits and holding annual sessions for that purpose.
(See page 210.)
The United States is further subdivided into more than sixty judicial
_districts_. In each of these districts, at least one session of the
circuit court and one of the district court is held each year. (See pages
210 and 307-9.) A full circuit court bench consists of a supreme court
justice, a circuit judge, and a district judge; but court may be held by
any one or two of them. The district court consists of the district judge.
[3] This virtually means during life. The purpose of this provision is to
raise the judges above temptation, to put them in a position where they
may feel safe in doing their exact duty, unawed by any outside power. If
with this opportunity they prove unjust, they may be impeached. But so
far, almost without exception, those who have been honored with a place on
a United States court have proved worthy of their high calling.
[4] The purpose of this also is to remove temptation from the judges. The
salary of the chief justice is $10,500 a year, and that of each associate
justice, $10,000. This seems like a generous amount. But several times a
place on the supreme bench has been declined, on the plea that the nominee
could not afford to serve for the salary attached.
[5] This is to prevent the other two branches from occupying a threatening
attitude toward the judiciary. But the salary may be increased. And the
salary may be reduced, to take effect with appointments made after the
passage of the law.
SECTION II.--JURISDICTION OF THE COURTS.
_Clause 1.--Extent._
The judicial power shall extend to all cases,[1] in law and equity,[2]
arising under this constitution, the laws of the United States, and
treaties made or which shall be made, under their authority;[3] to all
cases affecting ambassadors, other public ministers, and consuls;[4] to
all cases of admiralty jurisdiction;[5] to controversies to which the
United States shall be a party;[6] to controversies between two or more
states;[7] between a state and citizens of another state;[8] between
citizens of different states;[9] between citizens of the same state
claiming lands under grants of different states;[10] and between a state
or the citizens thereof, and foreign states, citizens or subjects.[11]_
[1] The courts decide what the law is, whether a specified law is
constitutional or not, and what the meaning of constitutional provisions
is, but only as these questions arise in _cases_ brought before them for
trial. They do not advise congress or the president as to the
constitutionality or unconstitutionally of a law. They do not directly
make law. But in determining the meaning of certain laws and of
constitutional provisions they may determine what the law is, and thus
they may be said to make law indirectly. But sometimes a legal question or
a question as to the meaning of a constitutional provision remains for a
long time unanswered, because no _case_ involving the question comes
before the courts.
[2] Sometimes the law provides no adequate remedy for a wrong. Here is the
necessity for a court of equity. For instance, A sells his business to B,
agreeing not to become a rival, but immediately reopens in the next block.
B's only remedy in law is to secure damages. If this remedy is shown to be
inadequate, a court of equity will close A's store. Or if C, having
contracted to do a certain act for D, fails or declines to perform his
part, the law can only award D damages; equity will compel the fulfillment
of the contract. Law is curative, equity is preventive. (See Dole, 502.)
In some states there are separate courts of law and of equity. But the
provision under discussion gives the United States courts jurisdiction in
cases both of law and of equity. "There are no juries in equity cases, and
no criminal trials."
[3] These pertain to the whole United States, so cases arising under them
should be tried by a national, not by a state, court.
[4] Thus showing respect for the governments represented by them.
[5] That is, to cases arising on the high seas or on navigable waters.
These matters, according also to I. 8: 10, 11, are under the jurisdiction
of the United States, and therefore this provision is simply a consequence
of the two referred to.
[6] Because then the interests of the whole country are at stake, and
should not be left to any state.
[7] Because the United States was organized to "insure domestic
tranquility."
[8] This provision has been modified by the eleventh amendment, which
reads as follows: "The judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by citizens of another state, or by
citizens or subjects of any foreign state." That is, if the state is the
_plaintiff_, the suit may be tried by the United States Supreme Court
(compare clause 2). Claims of individuals against a state, if denied by
the auditor, may be referred by them to the legislature. A state cannot be
sued by an individual or corporation.
When a citizen is sued he must be sued either in the courts of the United
States or in those of his own state. It would be a source of irritation to
compel a state to sue a citizen of another state in the courts of his own
state, hence this provision that such suits shall be in the United States
court.
[9] To remove temptation to injustice through local prejudice. But the
suit is tried in, and in accordance with the laws of, the state of which
the defendant is a citizen.
[10] Because the states are involved in the suit, and it would be unfair
to let either decide the controversy.
This provision is not of much importance now, because state boundaries are
clearly defined. But when the constitution was framed, this kind of
question meant a good deal. The charters given during colonial times were
very loosely drawn, and claims of different colonies and proprietors
overlapped each other. The question of ownership had not been settled at
the time of the revolution. During the formative or confederation period,
these disputes had been a source of much ill-feeling.
[11] Because the general government, and not the individual states, has
charge of our foreign relations. A foreign country holds the United States
responsible for the acts of its citizens; and only the United States can
be looked to, to secure justice to its citizens on the part of foreign
countries or citizens.
_Clause 2.--Jurisdiction of the Supreme Court._
_In all cases affecting ambassadors, other public ministers and consuls,
and those in which a state shall be a party, the Supreme Court shall have
original jurisdiction.[1] In all the other cases before mentioned, the
Supreme Court shall have appellate jurisdiction,[2] both as to law and
fact, with such exceptions and under such regulations as the congress
shall make.[3]_
[1] That is, such a suit must _commence_ in the Supreme Court, and so
cannot be tried elsewhere.
[2] That is, the action must commence in some lower court, but it may be
appealed to the Supreme Court.
The U.S. District Court has jurisdiction over crimes committed on the high
seas, and over admiralty cases in general; over crimes cognizable by the
authority of the United States (not capital) committed within the
district, and over cases in bankruptcy.
The U.S. Circuit Court has original jurisdiction in civil suits involving
$2000 or more, over equity cases, and over cases arising under patent and
copyright laws.
[3] To relieve the Supreme Court, which was years behind with its work,
congress recently provided for a U.S. Circuit Court of Appeals in each of
the nine circuits, which has final appellate jurisdiction in nearly all
cases except those involving the constitutionality of a law.
_Clause_ 3.--_The Trial of Crimes._
_The trial of all crimes, except in cases of impeachment, shall be by
jury,[1] and such trial shall be held in the state where said crimes shall
have been committed;[4] but when not committed within any state,[3] the
trial shall be at such place or places as congress may by law have
directed.[4]_
[1] A trial by jury is a trial by twelve men impartially selected. This is
regarded as one of the great bulwarks of liberty.
Civil cases may, at the desire of both parties, be tried by the court
only. But for criminal trials a jury is guaranteed by this provision. In a
criminal trial, the state or the nation is the prosecutor, and state or
national judges _might_ be tempted to decide unjustly, if the matter were
left to them.
[2] This leaves the accused in better condition to defend himself, than if
he could be taken away far from home. He is thus able at the least expense
to bring witnesses in his own behalf. In harmony with this, each state has
at least one U. S. District Court for the trial of crimes against the
general government. (See Declaration of Independence.)
This provision is probably binding also upon the states.
[3] That is, in the District of Columbia, in one of the territories, in
the Indian country, in the forts or arsenals of the United States, or upon
the high seas.
[4] Congress has specified courts for the trial of such crimes. Those
committed on the high seas are tried in the state where the vessel
arrives. (See pages 230-4.)
SECTION III.--TREASON.
_Clause 1.--Definition and Trial._
_Treason against the United States shall consist only in levying war
against them, or in adhering to their enemies, giving them aid and
comfort.[1] No person shall be convicted of treason unless on the
testimony of two witnesses to the same overt act, or on confession in open
court.[2]_
[1] Treason is, in essence, a deliberate and violent breach of the
allegiance due from a citizen or subject to his government. Being directed
against the powers that be, the government in self defense is tempted to
punish it severely. The more tyrannical a government is the more likely it
is to be plotted against, and the more suspicious it becomes. If treason
were undefined, the government might declare acts to be treasonable which
the people never suspected to be so. This had occurred so many times, and
good men had so often been sent on this charge to an ignominious death,
that the framers of the constitution deemed it prudent to define treason
carefully in the fundamental law itself.
These provisions are taken from the famous statute of Edward III which
first defined treason in England. This statute declared five things to be
treasonable, only the third and fourth of which are held by our
constitution to be so.
[2] An overt act is an open act, not one that is simply meditated or
talked about, but one actually performed.
The Supreme Court has decided that there must be an actual levying of war;
that plotting to overthrow the government is not treason. But if
hostilities have actually begun, if war has commenced, "all those who
perform any part, however minute, or however remote from the scene of
action, and who are leagued in the general conspiracy, are to be
considered traitors."
Two witnesses, at least, "to the _same_ overt act," are required, because
thus only can a "preponderance of testimony" be secured.
_Clause 2.--Punishment._
_The congress shall have power to declare the punishment of treason, but
no attainder of treason shall work corruption of blood or forfeiture
except during the life of the person attainted._
As has been hinted, the punishment of treason had been very severe in
European countries. Not only was the person convicted of treason put to
death in the most horrible ways, but his property was forfeited, and no
one could inherit property from him or through him. Thus not only the
person himself, but also his children and his children's children, were
punished. The purpose of this provision is, in the words of Mr. Madison,
to restrain congress "from extending the consequences of guilt beyond the
person of its author."
_Pertinent Questions._
By what authority was the Supreme Court established? By whom is it
organized? Why is such a court necessary? How many judges or justices
constitute the Supreme Court? Name them. Tell what president appointed
each.
How many and what "inferior courts" has congress established? Name the
Supreme Court justice assigned to this circuit. How many other states in
this circuit? Name our two United States circuit judges. Name the United
States district judge. How are these officers appointed? How long do they
serve? State the salary of each class of judges. What legal provision is
there in regard to retiring United States judges?
If a person should rob the mail, in what court would he be tried? Tell
about the Dartmouth College case. If any one should be caught making
cigars without a license, before what court would he be tried? If an
American owed money to an ambassador from a foreign country, and declined
to pay it, how could the ambassador get his pay? If the ambassador owed an
American, how could the American get his pay? Would you, if the United
States government asked you to represent it in a foreign country, like to
be tried by a court of that country?
If a murder be committed in the District of Columbia, in what court is the
trial had? If committed in Minnesota? In Wyoming? If a sailor should steal
from a passenger, when out on the ocean, where would the case be tried and
in what court?
If a state other than the one in which you live should sue you where could
the case be tried? How can the United States be a party to a suit?
Have you knowledge of any case in which one state sued another? If a
merchant in your town should buy goods from a wholesale house in Chicago
or New York, and should fail or refuse to pay for them, how could the
house get its pay? What laws would apply to the case? What principle seems
to be involved in these answers?
How many acts of congress have been declared unconstitutional by the
Supreme Court?
Can a citizen of Wyoming bring a suit in a United States court? If you
lived in Montana, how could you recover money owed you in Minnesota? Can a
United States official be sued for acts performed in the discharge of his
duties?
What famous case of treason was tried in 1807? Was Jefferson Davis ever
tried for treason?
If the property of a traitor is taken by the government, must it be
restored to his heirs at his death? Can you commit treason against this
state? What do you know about the John Brown case?
Compare III. 2, 3, with amendments 5 and 6, and state the rights of a
person accused of crime, which are guaranteed by the constitution.
_Debate._
Resolved, That all judicial officers should be appointed.
_Tabular View._
Prepare a tabular view comparing the three departments of the United
States government.
CHAPTER XXV.
ARTICLE IV.--THE RELATIONS OF THE STATES.
SECTION I.--STATE RECORDS.
_Full faith and credit[1] shall be given in each state to the public
acts,[2] records,[3] and judicial proceedings[4]of every other state. And
the congress may by general laws prescribe the manner in which such acts,
records and proceedings shall be proved,[5] and the effect thereof._
[1] That is, such faith and credit as would be given to such acts, etc.,
in the state in which they originated.
[2] That is, the legislative acts,--the statutes and the constitutions.
[3] Such as the registration of deeds, wills, marriages, journals of the
legislature, etc.
[4] The proceedings, judgments, orders, etc., of the courts.
[5] The records of a court are "proved" (that is, shown to be authentic)
by the attestation of the clerk, with the seal of the court affixed, and
the certificate of the judge. The acts of the legislature are
authenticated by the state seal.
SECTION II.--RELATIONS TO INHABITANTS OF OTHER STATES.
_Clause 1.--Citizens._
_The citizens of each state shall be entitled to all privileges and
immunities of citizens in the several states._
That is, no state can give its citizens any privileges which it denies to
citizens of other states. For instance, a citizen of Wisconsin, New York
or California, coming to Minnesota has all the privileges of a citizen of
Minnesota. To be sure he cannot vote in Minnesota until he has resided
here for a time. This is simply a police regulation, to prevent fraud in
voting. But he is entitled to the protection of the laws of Minnesota, may
hold property here, and may engage in any business in which a citizen of
Minnesota may engage.
He cannot, however, carry with him any special privileges which he may
have enjoyed in the state from which he came. Thus, if one state permits a
person to vote upon declaring his intention to become a citizen while
another requires that a voter shall be a full citizen, a person coming
from the first state cannot claim the right to vote in the second until he
becomes a full citizen.
Study in this connection the first clause of the fourteenth amendment.
_Clause 2.--Fugitives from Justice._
_A person charged in any state with treason, felony or other crime, who
shall flee from justice, and be found in another state, shall, on demand
of the executive authority of the state from which he fled, be delivered
up, to be removed to the state having jurisdiction of the crime._
The necessity for this provision will readily be understood, when it is
remembered that each state has jurisdiction only within its own limits.
But for this provision, criminals would be comparatively free from
restraint, because they could in most cases get into another state. And
this would of course tend to increase the number of criminals. (See pp.
337, 349.)
As civilization advances, countries independent of each other politically
agree, for their mutual protection, to surrender to each other fugitives
from justice. Treaties made for this purpose are called _extradition_
treaties.
_Clause 3.--Fugitives from Service._
_No person held to service or labor in one state, under the laws thereof,
escaping into another, shall, in consequence of any law or regulation
therein, be discharged from such service or labor, but shall be delivered
up on claim of the party to whom such service or labor may be due._
This clause was inserted as a concession to the slave-holding states, and
had special reference to slaves, though it also applied to apprentices and
any other persons who for any reason might be "bound to service." But as
slavery no longer exists, and apprenticeship and other binding to service
are almost things of the past, this provision is practically obsolete.
SECTION III.--NEW STATES AND TERRITORIES.
_Clause 1.--The Admission of New States._
_New states may be admitted by the congress into this Union;[1] but no new
state shall be formed or erected within the jurisdiction of any other
state;[2] nor shall any state be formed by the junction of two or more
states or parts of states, without the consent of the legislatures of the
states concerned as well as of the congress.[3]_
[1] These few words mark an era in political history. Heretofore nations
had acquired new territory merely to enlarge the extent of their
_provinces_ or subject states, never with a view of uniting the acquired
territory with the original system, allowing it equal political
privileges. But when we look at the matter carefully, we shall see that
our government could not consistently do otherwise than it did. The
proposition involved in the revolution was that new territory should
either be permitted to enjoy equal privileges with the parent state, or it
should become independent.
But it was not simply to carry out a political theory that this provision
was made; it was to solve a practical difficulty. At the close of the
Revolutionary War, the United States extended west to the Mississippi
river. The territory west of the Alleghany mountains contained almost no
inhabitants, and was of course unorganized. This territory became the
object of contention. Some of the states claimed jurisdiction over it,
while others maintained that it was not within the limits of any states,
and that, as it had been secured by a war waged by the general government,
this territory should be considered common property, to be managed by the
general government. The states having claims upon the territory expressed
a willingness to relinquish them upon the condition that the territory
should be formed into states as soon as the population would warrant.
Accordingly, before the constitution was framed all these states except
North Carolina and Georgia had relinquished their claims, and all but a
small portion of the territory was under the jurisdiction of the general
government. And July 13, 1787, that portion of the country west of
Pennsylvania and north of the Ohio, had been organized into the Northwest
Territory. This act of congress is generally known as The Ordinance of
1787. It was for a long time the model upon which other territories were
organized.
[2] This shows the fear entertained lest the general government should try
to control a state by threatening its existence.
[3] Vermont was claimed by both New York and New Hampshire. Both consented
to her admission.
Kentucky was a part of Virginia, and became a state with her consent.
Maine became a state with the consent of Massachusetts, of which it had
been a part.
West Virginia was admitted during the war, the consent of Virginia being
obtained afterwards.
_Clause 2.--The Territories._
_The congress shall have power to dispose of and make all needful rules
and regulations respecting the territory or other property belonging to
the United States;[1] and nothing in this constitution shall be so
construed as to prejudice any claims of the United States, or of any
particular state.[2]_
[1] The power to _acquire_ territory is not expressly granted in the
constitution, but it is implied as an act of sovereignty. Territory was
acquired by the general government before the constitution by cession from
states, and since the adoption of the constitution it has been acquired by
purchase, by discovery, by conquest, and by annexation.
The power to _dispose_ of territory is also an attribute of sovereignty,
and would have belonged to the general government without this provision.
But this provision places the power in the hands of _congress_; otherwise
land could be sold by the treaty-making power. Under this provision
congress receded to Virginia that portion of the District of Columbia
south of the Potomac.
The power to govern any territory which it possesses is also an attribute
of sovereignty. This clause gives the power to congress; but any law for
the regulation of territories needs the president's signature, the same as
any other law.
[2] It will be remembered that North Carolina and Georgia had not at the
time of the adoption of the constitution relinquished their claims to
certain territory lying outside of their state limits. This provision was
made as a concession to them. But they afterwards, North Carolina in 1790
and Georgia in 1802, ceded the disputed territory to the United States.
SECTION IV.--GUARANTIES TO THE STATES.
_The United States shall guarantee to every state in this Union a
republican form of government,[1] and shall protect each of them against
invasion,[2] and on application of the legislature, or of the executive
(when the legislature cannot be convened), against domestic violence.[3]_
[1] That is, the United States will protect each state against one man or
a few men who may try to usurp the functions of the state government. By
inference, the United States could insist upon a republican form of
government even if the people of the state desired some other. Happily, no
necessity for the exercise of this power has yet arisen.
[2] This would have been the duty of the general government, even if this
provision had not been made. To defend the country against invasion is one
of the principal duties of government. The government was organized "to
provide for the common defense."
[3] To "insure domestic tranquillity" was another reason given for the
establishment of the constitution. But lest the general government should
make every little disturbance a pretext for interfering with the local
affairs of a state, it was provided that no interference should occur
until asked for by state authority.
_Pertinent Questions_.
If a judgment is secured against a resident of New York and he moves to
Minnesota without paying it, could he be held responsible in Minnesota
without another suit? Is a marriage ceremony performed in Illinois binding
in Kansas?
Define citizen. Can a person be a citizen of the United States without
being a citizen of any state? Could he be a citizen of a state and not be
a citizen of the United States? A certain southern state imposed a tax
upon commercial travelers not residents of that state; was the act
constitutional? What is the Civil Rights bill, and why was it passed? Can
a citizen of any state claim in another state any privileges peculiar to
the state from which he removed?
How is a "fugitive from justice" secured when he has escaped into another
state? Is a governor obliged to surrender an escaped criminal upon demand
of the authorities of the state from which he escaped? How is a criminal
secured if he escapes into another country? Name countries with which we
have _extradition_ treaties. Have we any with Canada?
What were the provisions of the fugitive slave law?
Did the articles of confederation provide for the admission of new states
into the union? Name the first state admitted into the Union. The last.
What territories are now seeking admission into the sisterhood of states?
How does a territory become a state? What advantages are gained by
becoming a state? Is congress bound to admit new states? Can congress
compel a territory to become a state? Can it compel a state to remain a
state? Is there such a thing in our system as _a state out of the Union?_
What does a citizen of the United States lose by moving into a territory?
Does the constitution define a _republican_ government? Is any particular
department charged with the duty of guaranteeing to each state a
republican form of government?
When did the United States protect a state against invasion? Against
domestic violence? Have any states been admitted into the Union more than
once?
CHAPTER XXVI.
ARTICLE V.--AMENDMENTS TO THE CONSTITUTION.
_The congress, whenever two-thirds of both houses shall deem it necessary,
shall propose amendments to this constitution, or, on the application of
the legislatures of two-thirds of the several states, shall call a
convention for proposing amendments, which, in either case, shall be valid
to all intents and purposes, as a part of this constitution, when ratified
by the legislatures of three-fourths of the several states, or by
conventions in three-fourths thereof, as the one or the other mode of
ratification may be proposed by the congress;[1] provided, that no
amendment, which may be made prior to the year one thousand eight hundred
and eight, shall, in any manner, affect the first and fourth clauses in
the ninth section of the first article;[2] and that no state, without its
consent, shall be deprived of its equal suffrage in the senate.[3]_
[1] No one realized more fully than the framers of the constitution that,
with the best thought which they could give to it, the constitution might
need amending, and therefore they provided ways for proposing and
ratifying amendments.
It is purposely made difficult to amend the constitution because the
fundamental law should not be changed except for weighty reasons. If these
exist, the amendments may be made; the difficulty is not so great as to be
insurmountable.
[2] By reading the clauses referred to, the student will readily see whom
this was a concession to.
[3] This was to protect the small states, in whose interest the senate was
organized.
The first ten amendments were proposed by congress at its first session in
1789, and they were ratified in 1791.
Two other amendments were proposed at the same time, but they were not
ratified. One of them was to regulate the number of representatives; the
other, to prevent congressmen from increasing their own salaries.
The eleventh amendment was proposed in 1796, and ratified in 1798.
The twelfth amendment, a consequence of the disputed election of 1801, was
proposed in 1803, and ratified in 1804.
An amendment prohibiting citizens of the United States from accepting any
titles, pensions, presents, or other emoluments from any foreign power, on
pain of loss of citizenship, was proposed in 1811, but it was not
ratified.
An amendment making slavery perpetual was proposed in 1861, in the hope
that this might avert the war, but it was not ratified.
The thirteenth and fourteenth amendments were proposed in 1865 and 1868
respectively, and they were ratified the same years.
The fifteenth amendment was proposed in 1869, and ratified in 1870.
The propositions of amendments have thus far been made by congress, and
all ratifications have been made by the state legislatures.
_Pertinent Questions._
State four ways in which the constitution may be amended. What _temporary_
limitation was placed upon the power to amend the constitution? What
_permanent_ prohibition? How is the English constitution amended? In what
case _must_ congress call a convention to propose amendments? Must the
convention thus called propose any amendments? Which is the better of the
two ways of proposing amendments? When an amendment is proposed by
two-thirds of both houses of congress, is it necessary to secure the
approval of the president? Can a state withdraw its ratification of an
amendment? When is an amendment, once proposed, dead? Did it take
three-fourths of _all_ the states or only three-fourths of the loyal
states to ratify the thirteenth amendment? How many of the disloyal states
finally ratified it? How is the ratification and consequent validity of
any proposed amendment made known?
CHAPTER XXVII.
ARTICLE VI.--MISCELLANEOUS.
_Clause 1.--Prior Debts and Engagements._
_All debts contracted and engagements entered into before the adoption of
this constitution, shall be as valid against the United States under this
constitution as under the confederation._
The debts were incurred and the engagements were entered into by the
United States, and changing the _form of government_ would not release the
country from its obligations. The insertion of this provision however,
served as an explicit statement of the purpose of the government to live
up to its engagements.
_Clause 2.--National Supremacy._
_This constitution, and the laws of the United States which shall be made
in pursuance thereof, and all treaties made, or which shall be made, under
the authority of the United States, shall be the supreme law of the land;
and the judges in every state shall be bound thereby, anything in the
constitution or laws of any state to the contrary notwithstanding._
This provision settles definitely, and in what would seem to be
unmistakable terms, the question of supremacy, about which so much
discussion has been carried on. Within its sphere, within the limitations
placed upon it by the constitution itself, the national government has the
supremacy over any and all state governments.
_Clause 3.--Oath of Office._
_The senators and representatives before mentioned, and the members of the
several state legislatures, and all executive and judicial officers, both
of the United States and of the several states, shall be bound by oath or
affirmation, to support this constitution;[1] but no religious test shall
ever be required as a qualification to any office or public trust under
the United States.[2]
[1] The first law passed by congress under the constitution was an act
prescribing the form of the oath required by the provision above. It is as
follows: "I, A. B., do solemnly swear, or affirm (as the case may be),
that I will support the constitution of the United States."
[2] In all other countries at the time of the adoption of this
constitution eligibility to public office was limited to members of the
established church of the country. This constitution set the example of
abolishing religious tests for public office, and the wisdom of this is so
apparent that it has been followed entirely or in part by many of the
civilized nations.
CHAPTER XXVIII.
ARTICLE VII.--RATIFICATION OF THIS CONSTITUTION.
_The ratification of the conventions of nine states shall be sufficient
for the establishment of this constitution between the states so ratifying
the same._
Nine states made two-thirds of the entire number. Eleven states ratified
the constitution within nine months of the time of its submission to them.
As soon as nine states had ratified, congress made arrangements for
putting the new form of government into operation.
The mode of ratification herein specified ignored the existence of the
articles of confederation, and in specifying this mode the convention
disregarded the instructions of the congress which called it. The congress
had expressly provided that the work of the convention should be submitted
to the congress and the state legislatures for approval. But this
provision places the power to ratify in the hands of conventions elected
by the people in the several states, which arrangement is in harmony with
the opening words of the preamble.
_Pertinent Questions._
What is the recognized law of nations in regard to the payment of the
debts of a nation when it changes its form of government? If England
should become a republic would this rule apply? Does it apply when a
territory becomes a state? Were the debts of the confederation paid? How?
What was the amount of the debt of the United States at the time of the
adoption of the constitution? What is the value of the notes and bonds of
the "Confederate States of America"? Why?
Which is sovereign, the nation or the individual states? Where else are
there any provisions which teach the same thing? Why should _judges_ be
specially mentioned in VI. 2? What department of the government makes
treaties? Are they binding upon the other departments? Upon the several
states? Can a state nullify an act of congress? Has any state ever tried
to do so?
Why are _state_ officers bound to support the constitution of the _United
States_? Is the requirement to take the "oath of office" a religious test?
Why is the choice of oath or affirmation given? What was the iron-clad
oath?
Would the ratification of the constitution by nine states have made it
binding upon the other four? The articles of confederation required the
consent of all the states to any amendment to them; by what right was this
constitution adopted against the wishes of Rhode Island and North
Carolina? If those two states had persisted in their refusal to ratify the
constitution, what would have been their relations to the United States?
Justify your answer.
CHAPTER XXIX.
THE AMENDMENTS.
We have now considered the constitution about as it was presented to the
states for ratification. Judging by our own affection for the noble
instrument we would expect to learn that it was ratified promptly and
unanimously. But, as a matter of fact, much hard work was required on the
part of its friends to secure its ratification. Its every provision had to
be explained and justified. Probably the most able exposition was made by
Hamilton, Madison and Jay, in a series of papers entitled, "The
Federalist."
One of the greatest objections urged against the constitution was that it
did not guarantee sufficiently the rights of individuals. It will be
remembered in this connection that the principal grievance against
England, as expressed in the Declaration of Independence, was that
personal rights had not been respected; and that, in consequence, the
first form of government organized after independence, The Articles of
Confederation, gave the general government no power to reach individuals.
Experience showed this to have been a mistake, and the constitution
authorizes the general government to execute its laws directly, enabling
it to hold individuals responsible. On account of this re-enlargement of
power, many people honestly feared that the new government might trespass
upon personal rights as England had done. And several states at the time
of ratifying suggested the propriety of so amending the constitution as to
remove these fears.
In accordance with these recommendations, amendments were proposed at the
first session of congress. The house of representatives proposed
seventeen, to twelve of which the senate agreed. Only ten, however, were
ratified by the legislatures of three-fourths of the states. They are, of
course, the first ten among those that follow. It was decided by the same
congress that the amendments should not be incorporated into the main body
of the constitution, but should be appended to it as distinct articles.
They have, however, the same force as the original constitution.
ARTICLE I.
FREEDOM OF RELIGION, OF SPEECH, AND OF ASSEMBLY.
_Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof;[1] or abridging the freedom of
speech or of the press;[2] or the right of the people peaceably to
assemble and to petition the government for a redress or grievances.[3]_
[1] The chief purpose for which many of the early settlers came to America
was that they might "worship God according to the dictates of their own
conscience." Hence their descendants put _first_ among the individual
rights to be protected, this freedom of religion. But this provision does
not authorize any one to commit crime in the name of religion.
[2] The only limitation upon speech in this country is that the rights of
others be respected. Any one may think as he pleases upon any subject, and
may freely express his opinion, provided that in doing so he does not
trespass upon the rights of others.
[3] It would seem that under a republican form of government this right
might be assumed to be secure. The provision is meant to "make assurance
doubly sure." History had shown the necessity of such precaution.
ARTICLE II.
RIGHT TO BEAR ARMS.
_A well-regulated militia being necessary to the security of a free state,
the right of the people to keep and bear arms shall not be infringed._
It should not be the policy of a republic to keep a large standing army.
An army is expensive, it takes so many men from productive industries, and
it is dangerous to liberty--it may from its training become the instrument
of tyranny.
But a republic must have defenders against foes foreign or domestic. A
well-trained militia may be depended upon to fight with valor against a
foreign foe, and may at the same time serve as a check upon usurpation.
For definition of _militia_, see page 162.
ARTICLE III.
QUARTERING SOLDIERS.
_No soldier shall, in time of peace, be quartered in any house without the
consent of the owner, nor in time of war, but in a manner to be described
by law._
To "quarter" soldiers in any house is to allot them to it for food and
shelter.
This, it will be remembered, was one of the grievances of the colonies.
This quartering of soldiers had been, and indeed is in some countries to
this day, a mode of watching and worrying persons for whom officers of the
government entertained suspicion or ill will.
ARTICLE IV.
SECURITY AGAINST UNWARRANTED SEARCHES.
_The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches, and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause, supported
by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized._
This, as well as the preceding provision, recognizes the maxim, "A man's
house is his castle." It prevents the issuance of general warrants.
ARTICLE V.
SECURITY TO LIFE, LIBERTY AND PROPERTY.
_No person shall be held to answer for a capital or otherwise infamous
crime unless on a presentment or indictment of a grand jury,[1] except in
cases arising in the land or naval forces, or in the militia when in
actual service in time of war, or public danger;[2] nor shall any person
be subject for the same offense to be twice put in jeopardy of life or
limb;[3] nor shall be compelled in any criminal case to be a witness
against himself,[4] nor be deprived of life, liberty, or property, without
due process of law;[5] nor shall private property be taken for public use
without just compensation.[6]
[1] For information in regard to the method of conducting criminal trials,
see Division I.
[2] The necessity here for prompt and exact obedience to orders is so
urgent, that summary methods of trial must be permitted.
For information regarding trial by court martial, see appendix, page 338.
[3] That is, when a jury has rendered its verdict and judgment has been
pronounced, the accused cannot be compelled to submit to another trial on
the same charge. But if the jury disagrees and fails to bring in a
verdict, he may be tried again.
[4] Accused persons used to be tortured for the purpose of extorting from
them a confession of guilt.
[5] In a despotism, the lives, liberty and property of the people are at
the command of the ruler, subject to his whim. [6] For an illustration
of the method of securing private property for public use, see page 18.
ARTICLE VI.
RIGHTS OF ACCUSED PERSONS.
_In all criminal prosecutions the accused shall enjoy the right to a
speedy[1] and public[2] trial by an impartial jury[3] of the state and
district wherein the crime shall have been committed, which district shall
have been previously ascertained by law,[4] and to be informed of the
nature and cause of the accusation;[5] to be confronted with the witnesses
against him;[6] to have compulsory process for obtaining witnesses in his
favor;[7] and to have the assistance of counsel for his defense.[8]_
The importance of this provision is likely to be underestimated. Says
Montesquieu, "Liberty consists in security. This security is never more
attacked than in public and private accusations. It is, therefore, upon
the excellence of the criminal laws that chiefly the liberty of the
citizen depends." And Lieber, in his very able work on Civil Liberty and
Self-Government, says, "A sound penal trial is invariably one of the last
fruits of political civilization, partly because it is one of the most
difficult of subjects to elaborate, and because it requires long
experience to find the proper mean between a due protection of the
indicted person and an equally due protection of society.... It is one of
the most difficult things in all spheres of action to induce irritated
power to limit itself."
Besides the guarantees of the constitution, Lieber mentions the following
as characteristic of a sound penal trial: the person to be tried must be
present (and, of course, living); every man must be held innocent until
proved otherwise; the indictment must be definite, and the prisoner must
be allowed reasonable time to prepare his defense; the trial must be oral;
there must be well-considered law of evidence, which must exclude hearsay
evidence; the judge must refrain from cross-examining witnesses; the
verdict must be upon the evidence alone, and it must be _guilty_ or _not
guilty;_ [Footnote: In some countries the verdict may leave a stigma upon
an accused person, against whom guilt cannot be proven. Of this nature was
the old verdict, "_not proven._"] the punishment must be in proportion to
the offense, and in accordance with common sense and justice; and there
must be no injudicious pardoning power, which is a direct interference
with the true government of law.
Most, if not all but the last, of the points mentioned by Dr. Lieber are
covered by that rich inheritance which we have from England, that
unwritten constitution, the common law. The question of how best to
regulate the pardoning power is still unsettled.
[1] He may have his trial at the next term of court, which is never very
remote. But the accused may, at his own request, have his trial postponed.
[2] Publicity is secured by the keeping of official records to which all
may have access, by having an oral trial, by the admission of spectators
to the court room, and by publication of the proceedings in the
newspapers.
[3] For the mode of securing the "impartial jury," see page 63.
[4] It is provided in the body of the constitution (III., 2, 3,) that
criminal trial shall be by jury, and in the state where the crime was
committed. This amendment makes the further limitation that the trial
shall be in the _district_ where the crime was committed, so a person
accused of crime cannot be put to the trouble and expense of transporting
witnesses a great distance.
[5] The nature of the accusation is specified in the _warrant_ and in the
indictment, both of which, or certified copies of them, the accused has a
right to see.
[6] Not only do the witnesses give their evidence in the presence of the
accused, but he has also the right to cross-examine them.
[7] But for this "compulsory process" (_called a subpoena_), persons
entirely guiltless might be unable to produce evidence in their own
behalf. The natural desire of people to "keep out of trouble" would keep
some knowing the circumstances of the case from giving their testimony,
and others would be afraid to speak up for one under a cloud and with all
the power of the government arrayed against him.
[8] The accused may plead his own cause, or he may engage a lawyer to do
it for him. If he is too poor to employ counsel, the judge appoints a
lawyer to defend him, whose services are paid for out of the public
treasury.
From the foregoing, it will be seen that great care is exercised to give a
person accused of crime full opportunity to defend himself. And it must be
remembered in this connection that it is a principle of our jurisprudence
that _the burden of proof lies upon the government_. That is, the accused
is to be deemed innocent until he is _proved_ guilty. We prefer that a
number of guilty persons should escape punishment rather than that one
innocent person should suffer.
ARTICLE VII.
JURY TRIAL IN COMMON LAW SUITS.
_In suits at common law,[1] where the amount in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved; and no fact
tried by a jury shall be otherwise re-examined in any court of the United
States, than according to the rules of common law.[2]_
[1] The meaning of this expression is difficult of explanation, but it
covers most ordinary lawsuits. From the fact that a jury in criminal cases
has already been guaranteed (III., 2, 3, and Am. VI.), it may be assumed
that this provision is intended to cover civil suits.
[2] Among the "rules of common law" are these: 1. All suits are tried
before a judge and a jury, the jury determining the _facts_ in the case
and the judge applying the _law_. 2. The facts tried by a jury can be
re-examined only by means of a new trial before the same court or one of
the same jurisdiction.
The purpose of this provision is to preserve the jury trial as a real
defense against governmental oppression. In the Supreme Court there is no
jury; the trials are by the court. If questions of _fact_ could be
reviewed or re-examined by such a court on appeal the protection now given
by the jury would be nullified.
ARTICLE VIII.
EXCESSIVE BAILS, FINES AND PUNISHMENTS FORBIDDEN.
_Excessive bail shall not he required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted._
Having enjoyed the protection of this and similar provisions for so many
years, we can hardly appreciate their value. It must be borne in mind that
those who "ordained and established" the constitution had been abused in
just these ways, and that in this provision they provided against a real
danger.
ARTICLE IX.
UNSPECIFIED PERSONAL RIGHTS PRESERVED.
_The enumeration in the constitution of certain rights shall not be
construed to deny or disparage others retained by the people._
Certain rights which governments are prone to trample on have been
mentioned in the preceding provisions. But not all of the personal rights
could be enumerated. Hence this provision covering those unnamed.
ARTICLE X.
THE UNITED STATES GOVERNMENT ONE OF LIMITED POWERS.
_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._
This provision gives a rule for interpreting the constitution. "It is
important as a security against two opposite tendencies of opinion, each
of which is equally subversive of the true import of the constitution. The
one is to _imply_ all powers, which may be useful to the national
government, which are not _expressly prohibited;_ and the other is, to
_deny_ all powers to the national government which are not _expressly
granted_." [Footnote: Story] The United States is "a government of limited
powers," and has only such implied powers as are necessary to carry out
the express powers. On the other hand, a state has all powers not denied
to it by the state or federal constitutions.
_Pertinent Questions._
What is the general purpose of the first ten amendments? Do they restrict
the general government or the state governments, or both? When and how
were these amendments proposed? When and how ratified? What three
limitations to the power of amendment does the constitution contain?
Is there any "established" or state church in the United States? How do
you suppose that this came about? Are we as a people indifferent to
religion? Can a person say what he pleases? Can he publish whatever
opinions he pleases? What is _slander?_ _Libel?_ Why should these last two
questions be asked here? Petition whom? What's the good of petitioning?
What petitions did you learn about at the beginning of this study? Can
soldiers in the regular army petition? Why? Has the "right of petition"
ever been denied in this country?
Wherein is a standing army dangerous to liberty? Is this true of the navy?
How is a "well-regulated militia" a check upon usurpation of authority?
Does Amendment II. authorize you to keep a revolver? To carry it in your
pocket? How often is the army mentioned in the Declaration of
Independence, and what is said?
What are the objections to "quartering" soldiers in a private house? Does
the amendment protect tenants? Why the exception in the amendment? What
mention of quartering soldiers in the Declaration of Independence?
Get and read a warrant of arrest. A search warrant. Has a warrant always
been needed as authority for arrest? Are arbitrary arrests, searches and
seizures permitted in any civilized countries today?
What is a capital crime? An infamous crime? A presentment? An indictment?
A grand jury? How do the proceedings of a grand jury compare with those of
a petit jury? Why the differences? Why the exception in the first clause
of the amendment? Can a convicted and sentenced person ask for a new
trial? Under what other circumstances can persons be tried again? In what
connections have you heard of private property being taken for public use.
Taking each guarantee in the sixth amendment, show the wrongs which an
accused person, presumably innocent, would suffer if the provision were
not recognized or that guarantee removed.
Find out all you can about _common law_. What is meant by a _civil_ suit
as distinguished from a _criminal_ suit? What is meant by a case in
_equity?_ When an appeal is taken what is subject to re-examination? What
is not? Why?
What conditions determine the just amount of bail? Of fines? What cruel
punishments have you heard or read of as being administered by public
authority? When and where were such punishments not "unusual"? Was the
eighth amendment necessary? What limit is there to things which "The
People" may do? To the powers of the United States government? To those of
a State government?
Find the history behind each provision in the ten amendments. From what
country did we obtain the notions that the rights here preserved belong to
freemen? From under what other country could the Colonies have come ready
to be the United States as we love it, or from what other country could we
have inherited such notions?
Since these ten amendments are intended for the protection of individuals
against governmental oppression, it will be an excellent scheme now for
the student to arrange in the form of a tabulation the various directions
in which such protection is guaranteed by the constitution as amended. The
following is simply suggestive:
I. From Legislative Oppression.--1. Thought; 2. Expression; 3. Bills of
Attainder; 4. _Ex post facto_ laws; 5. Social distinctions; 6. Assembly;
7. Petition.
II. From Executive Oppression.-1. Military; 2. Searches and seizures; 3.
Life, Liberty, or Property; 4. Suspension of _Habeas Corpus_.
III. From Judicial Oppression.-1. Before trial: arrest, bail, information
as to accusation, time of trial; 2. During trial: publicity, jury,
evidence, counsel, punishment; 3. After trial: retrial; 4. Treason.
IV. From State oppression.
ARTICLE XI.
LIMITING THE JURISDICTION of UNITED STATES COURTS.
_The judicial power of the United States shall not be construed to extend
to any suit in law or equity,[1] commenced or prosecuted against one of
the United States[2] by citizens of another state, or by citizens or
subjects of any foreign state.[3]_
[1] Equity is hard to define. According to Aristotle it is "the
rectification of the law, when, by reason of its universality, it is
deficient." Blackstone says, "Equity, in its true and genuine meaning, is
the soul and spirit of all law.... Equity is synonymous with justice." It
is the province of law to establish a code of rules whereby injustice may
be prevented, and it may therefore be said that all law is equitable. "In
a technical sense, the term equity is applied to those cases not
specifically provided for by positive law." (See page 208; also Dole's
Talk's About Law, page 502.)
[2] According to III. 2, a state could be sued for a debt the same as an
individual, and shortly after the adoption of the constitution several of
them were sued for debts incurred during the Revolutionary War. Pride and
poverty both prompted the states to desire immunity from such suits. Hence
the adoption of this amendment. (See page 209.)
[3] A non-resident secures the payment of a debt due from a state in the
same way as a resident--by legislative appropriation.
ARTICLE XII.
MODE OF CHOOSING THE PRESIDENT AND VICE-PRESIDENT.
The amendment has been discussed in connection with Article II. of the
constitution, pages 184-6.
ARTICLE XIII.
ABOLITION OF SLAVERY.
_1. Neither slavery nor involuntary servitude, except as a punishment for
crime, whereof the party shall have been duly convicted, shall exist
within the United States, or any place subject to their jurisdiction._
_2. Congress shall have power to enforce this article by appropriate
legislation._
This amendment, one of the "first fruits" of the Civil War, put an end to
slavery in the United States. The wording was taken, almost verbatim, from
the Ordinance of 1787.
ARTICLE XIV.
MISCELLANEOUS RECONSTRUCTION PROVISIONS.
SECTION I.--"CITIZEN" DEFINED. PRIVILEGES GUARANTEED.
_All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state
wherein they reside.[1] No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall deprive any person of life, liberty or property, without due process
of law, nor deny to any person within its jurisdiction the equal
protection of the laws.[2]_
[1] This provision defines citizenship. It was worded with the special
view of including the negroes. It embodies the principle of the Civil
Rights Bill, and is intended to guarantee to the negroes the protection
implied in citizenship.
[2] Some of the amendments impose limitations only on the general
government. Lest the states in which slavery had recently been abolished
should endeavor to oppress the ex-slaves this provision was made as a
limitation upon the states.
But this provision is general in it nature, and by means of it the United
States can protect individuals against oppression on the part of the
states. Pomeroy [Footnote: Constitutional Law, p. 151.] regards this as
the most important amendment except the thirteenth.
SECTION II.--BASIS of REPRESENTATION.
_Representatives shall be apportioned among the several states according
to their respective numbers, counting the whole number of persons in each
state, excluding Indians not taxed. But when the right to vote at any
election for the choice of electors for president and vice-president of
the United States, representatives in congress, the executive and judicial
officers of a state, or the members of the legislature thereof, is denied
to any of the male inhabitants of such state, being twenty-one years of
age, and citizens of the United States, or in any way abridged, except for
participation in rebellion or other crime, the basis of representation
therein shall be reduced in the proportion which the number of such male
citizens shall bear to the whole number of male citizens twenty-one years
of age in such state._
Each state determines who may vote within its borders. This provision was
intended as an _inducement_ to the former slave states to grant franchise
to the colored men. It does not _compel_ them to do this. But granting the
franchise increases their representation. The fifteenth amendment is more
_imperative_ in this direction.
SECTION III.--DISABILITIES of REBELS.
_No person shall be a senator or representative in congress, or elector of
president or vice-president, or hold any office, civil or military, under
the United States, or under any state, who, having previously taken an
oath, as a member of congress, or as an officer of the United States, or
as a member of any state legislature, or as an executive or judicial
officer of any state, to support the constitution of the United States,
shall have engaged in insurrection or rebellion against the same, or given
aid or comfort to the enemies thereof.[1] But congress may, by a
two-thirds vote of each house, remove such disability.[2]_
[1] The primary purpose of this provision was to exclude from public
office those who in the Civil War, by entering the service of the
Confederate States, broke an oath previously taken. Though the persons
whom it was immediately intended to affect will soon all be "with the
silent majority," the provision, by being made part of the constitution,
will remain a warning to all in the future.
[2] The disabilities have been removed from all but a few of those
immediately referred to. This clause seems to put another limitation upon
the power of the president to grant pardons. From 1862 to 1867 the
president had been specially authorized by congress to grant amnesty to
political offenders. And in 1867 President Johnson continued to grant such
amnesty, denying the power of congress to put any limitation upon the
president's pardoning power. But this provision specifically places the
power to relieve certain disabilities in the hands of congress. The
"two-thirds" vote is required in order that such disabilities may not be
easily removed.
SECTION IV.--PUBLIC DEBT.
_The validity of the public debt of the United States, authorized by law,
including debts incurred for the payment of pensions, and bounties for
services in suppressing insurrection or rebellion, shall not be
questioned. But neither the United States nor any state shall assume or
pay any debt or obligation incurred in aid of insurrection or rebellion
against the United States, or any claim for the loss or emancipation of
any slave, but all such debts, obligations and claims shall be held
illegal and void._
_Congress shall have power to enforce, by appropriate legislation, the
provisions of this article._
This section needs little comment. It means simply that any expense
incurred on the part of government in suppressing rebellion _shall be
paid_; and that debts incurred in aid of rebellion _shall not be paid_. It
applies not only to the late Civil War but to all future wars of the same
kind.
ARTICLE XV.
SUFFRAGE.
_The right of citizens of the United States to vote shall not be denied or
abridged by the United States, or by any state, on account of race, color,
or previous condition of servitude._
_Congress shall have power to enforce this article by appropriate
legislation._
This amendment was intended to put negroes upon the same footing as white
people in the matter of suffrage.
Each state, as has previously been stated, prescribes the qualifications
of voters within its borders. It may require that they be fifteen or
twenty-five or twenty-one or any other number of years old; it may or may
not require a property qualification; it may or may not require an
educational qualification; it may include or exclude women as voters; it
may draw the line at imbeciles and felons, but it cannot draw the color
line. A black citizen must be permitted to vote upon the same conditions
as a white one.
_Pertinent Questions._
What is meant by a state "repudiating" a debt? What states have done so?
What reason did each assign for doing so? Can a city repudiate? A county?
Were amendments XIII., XIV., and XV. constitutionally adopted? [Footnote:
See Wright, 284; Andrews, 272; and Pomeroy, 76.]
How was slavery abolished in each of the states? [Footnote: See page 343.]
What does the emancipation proclamation say about slavery? Can slavery
exist in Alaska? Why?
Are you a citizen of the United States? How may an alien become a citizen?
May a person be a citizen of the United States without being a citizen of
any state? A citizen of a state without being a citizen of the United
States? [Footnote: See Wright, 287.] How does a citizen of the United
States become a citizen of a certain state? What are some of the
"privileges and immunities" of a citizen of the United States? [Footnote:
See Wright, 287.] Can a Chinaman become a citizen? An Indian? Does this
section give women the right to vote?
What provision of the constitution is amended by the second clause of the
fourteenth amendment? What change is made? How often does the "counting"
take place? What is it called? When will the next one occur? Has the
penalty mentioned in the second clause ever been inflicted?
Name persons affected by the third clause of the fourteenth amendment.
Name persons from whom the disabilities have been removed. How were they
removed? Name persons against whom the disabilities still lie. May they
vote? What provision of the original constitution is affected by the last
sentence of this clause, and how is it modified?
How much money was expended in suppressing the rebellion? How was it
raised? How much debt has been paid? How much remains unpaid? Did you ever
see a United States bond or note? How much is a confederate bond for $1000
worth? Why? Have any emancipated slaves been paid for by the government?
What is the necessity of the clause commencing, "The congress shall have
power?"
What is secured to negroes by the thirteenth amendment? By the fourteenth?
By the fifteenth? Name persons who are citizens but cannot vote. Name
three eminent colored men.
What clause could be omitted from the constitution without affecting it?
PART IV.
GOVERNMENT IN GENERAL.
CHAPTER XXX.
FORMS OF GOVERNMENT.
Classification.--Aristotle divided governments into three chief classes,
based upon the number of persons constituting the governing element, as
follows: government by _one_, monarchy; by the _few_, oligarchy; by the
_many_, democracy.
Subdivisions of these classes may be made as follows.
1. By _one_, monarchy; hereditary or elective; absolute or limited.
2. By the _few_, oligarchy or aristocracy.
3. By the _many_, democracy or republic.
Definitions and examples.--A hereditary monarchy is one in which the
succession is acquired by birth, the usual order being from father to
eldest son; examples, England, Prussia, etc.
An elective monarchy is one in which the succession is by election; the
term for life; example, the old German empire, in which the emperor was
chosen by certain princes called "electors." [Footnote: Our mode of
electing a president may have been suggested in part by this old
practice.]
An absolute monarchy is one in which the three functions of government as
related to law--the legislative, executive and judicial--are all vested in
one person; examples, Russia and Turkey in Europe, and most of the
countries of Asia and Africa.
A limited monarchy is one in which the sovereign's power is confined
chiefly to executing the laws framed and interpreted by other departments;
examples, England, and most of the other countries of Europe.
An oligarchy is that form of government in which the supreme power is
vested in the hands of a few (_oligos_, few); example, the triumvirates of
Rome.
An aristocracy is really a government by the best (_aristos_, the select,
the best). This is the sense in which the word was first used. It has come
to mean government by a privileged class. Aristocracy seldom, if ever,
exists alone.
A democracy is that form of government in which the functions are
administered directly by the people, only the clerical or ministerial work
being done by officers, and they appointed by the people; examples, the
old German tribes, some of the states of ancient Greece, some of the
present cantons of Switzerland, the early settlements of New England, and
in a limited sense our own school districts and towns.
A republic is a representative democracy. A democracy is practicable only
within a very limited area. When the area grows large the people must
delegate much of work of government to representatives. Examples, the
United States, each state in the Union, Switzerland, and most of the
countries of America.
The Origin of Each Typical Form.--Monarchy and oligarchy both probably owe
their existence to war. The successful chieftain or leader in war became
the king, and his retainers or followers became the privileged classes.
Those who were subdued either became slaves or were simply "the common
people." Democracy had its beginnings, and flourishes best, in times of
peace. The people, though they had to fight again and again to secure
recognition, have really won their right to it by the arts of peace.
The Criteria of Good Government.--Among the tests by which the goodness or
badness of a government, or form of government, may be determined, are the
following:
1. A good government is _stable_. Stability is the foundation of
worthiness of character in governments as well as in persons. The basis of
progress is permanence--one cannot grow wise, or rich, or strong, unless
he can preserve at least a part of what he gains. "Conduciveness to
progress includes the whole excellence of government." [Footnote: Mills
Representative Government.]
2. A good government _tends to increase the sum of good qualities in the
governed_. Strength comes from exercise. Therefore a government is
excellent in proportion as it works up to the possibilities of a people
for self-government and fits them to go on advancing in intellectual and
moral power.
3. A good government _has proper machinery_. This should be "adapted to
take advantage of the amount of good qualities which may at any time
exist, and make them instrumental to right purposes." [Footnote: Mills
Representative Government.]
"Representative Government the Ideally Best Polity."--Every student who
has access to Mills' Representative Government should read the chapter
with the heading at the beginning of this paragraph. He combats the
proposition, "if a good despot could be insured, despotic monarchy would
be the best form of government." Granting that much good might be done, he
shows that the very passivity of the people must result in deterioration,
"that is, if the nation had ever attained anything to decline from." On
the other hand, he shows that participation in public affairs gives a
mental and moral training otherwise unattainable. After showing the nature
of the mental development acquired, he says: "Still more salutary is the
moral part of the instruction afforded by the participation of the private
citizen, if even rarely, in public functions. He is called upon, while so
engaged, to weigh interests not his own; to be guided, in case of
conflicting claims by another rule than his private partialities; to
apply, at every turn, principles and maxims which have for their reason of
existence the general good; and he usually finds associated with him in
the same work minds more familiarized than his own with these ideas and
operations, whose study it will be to supply reasons to his understanding,
and stimulation to his feeling for the general good. He is made to feel
himself one of the public, and whatever is their interest to be his
interest. Where this school of public spirit does not exist ... a
neighbor, not being an ally or an associate, since he is never engaged in
any common undertaking for the joint benefit, is therefore only a rival."
Dangers in Each Form of Government.--While each of the typical forms has
merits of its own,--the monarchy having stability, the aristocracy
securing the benefit of inherited good qualities, and democracy the
advantages referred to in the preceding paragraph--there is danger in each
form. Monarchy continually tends toward that inconsiderate exercise of
power which we call tyranny. Aristocracy tends toward oligarchy;
government by the _best_ is prone to decline into government by the _few_
without regard to qualification. And democracy is in danger of
degenerating into mob rule.
Every Government Aims to be Aristocratic.--That is, each government in
theory seeks to have those rule who are best fitted to manage public
affairs. This is the thought, for instance, in our requiring certain
qualifications in voters and office-holders.
Our Own Government.--We fondly believe that our own government combines to
a high degree the excellencies of all the forms.
Our hope for stability lies chiefly in the fact that our corner stone is
eternal justice, the equality of all men before the law. Even the severe
shock of civil war has been endured, and our system is more strongly
intrenched in the confidence of the world than ever before.
We believe in the potency of good blood and good training. But the worth
of each individual must be _shown_, it will not be taken for granted. We
will neither lift him up because he is "his father's son," nor cast him
down because his father was unworthy.
Situated as we are, with no powerful rivals near us, with the ocean
between us and the countries of Europe, the common defense requires no
great standing army to eat up our substance and to menace our liberties.
Living in the north temperate zone, the belt of highest civilization, in a
country capable of producing almost everything desirable, there is every
reason to believe that, if we are true to ourselves and our opportunities,
we may long enjoy prosperity and peace.
_Debate_.
Resolved, That universal suffrage is dangerous to the well being of
society.
PART V.
COMMERCIAL LAW.
RESPONSIBILITY.
_Ignorance of the law is no excuse._
At first sight this would seem unjust, since no one but a lawyer can be
expected to have much legal knowledge. But as law is simply common sense
applied, the exercise of ordinary judgment is usually sufficient to enable
a person to act safely.
To present a few of the more common principles of commercial law, is the
purpose of the following pages.
CHAPTER XXXI.
CONTRACTS.
Definitions.--A contract is an agreement between two or more parties,
containing on the one hand an _offer_ and on the other an _acceptance_.
Contracts are _express_ or _implied_. An express contract is one whose
terms are definitely stated in words; an implied contract is one whose
terms are understood from the circumstances. A written contract is express;
an oral contract may be express or implied.
Fundamental Principles.--Every one able to contract is free to enter into
any agreement not forbidden by law. Every such person is bound to fulfill
every legal contract that he makes.
Essential to a Contract.--To be binding, however:
_1. A contract must be to do a lawful act._
Most contracts are permitted by law. But a contract the carrying out of
which is recognized as subversive of justice, morality, or the general
welfare, is illegal, and therefore void.
_2. The thing contracted to be done must be possible in its nature._
That a person finds it impossible _under the circumstances_ to live up to
his contract should not and does not release him from responsibility.
_3. The parties to the agreement must be competent to contract._
Persons not able to contract are minors, lunatics, idiots and drunk
people, and married women (except in some states in relation to their
separate estates). The purpose of this arrangement is to protect those who
cannot protect themselves. A minor may, however, enforce a contract if he
chooses to do so. A contract with a minor for the necessaries of life,
when they are not or cannot be furnished by a parent or guardian, is
valid. And any contract ratified by a minor after coming of age is binding
upon him. A person unable to contract personally cannot contract through
an agent. But he may act as an agent.
_4. The parties to the contract must assent to it._
The assent must be voluntary. It may be given by words, by acts, or by
accepting the benefits of the offer. If acceptance is by letter, the
contract is complete when the letter of acceptance is mailed. The parties
must assent to the same thing. Assent imposing a new condition is no
assent.
_5. The promise must be for a consideration._
The law will not compel a person to give something for nothing. But the
amount of the consideration is usually unimportant, so long as it is
reasonable. Anything is a consideration which is of benefit to the person
promising or of loss or inconvenience to the other. An illegal
consideration is, however, not a consideration; nor is the performance of
a moral duty, nor the doing of what would be a legal duty without the
promise in question. If the consideration fails, the contract fails. One
has no right to sue on a contract unless he has performed or offered to
perform his part.
_6. The contract must be made without fraud._
Fraud may be practiced in two ways, by making statements known to be false
or by concealing facts that ought to be revealed. But if the parties meet
on equal terms, with the same sources of information, and if nothing is
done to conceal faults, there is no fraud in law. "Let the buyer beware,"
is an ancient maxim, and a buyer must exercise reasonable diligence and
prudence. Fraud absolves the injured party, but the defrauding party may
be held to the contract; that is, the contract is voidable at the option
of the party deceived.
_7. Some contracts must be in writing._
The principal classes of commercial contracts which must be in writing to
be binding, are: (a) agreements for the sale of property of more than a
certain value; (b) agreements of guaranty; (c) agreements not to be
performed within a year.
In the famous English "Statute of Frauds," which is the basis of the
American local statutes on matters referred to in this section, the value
of personal property requiring written contract was ten pounds or fifty
dollars. In the United States the value varies in different states from
$30 to $200. But if part of the property is delivered or part of the
purchase money is paid the whole contract is binding, even if not in
writing.
A guaranty is an agreement by which a person warrants that a certain third
person shall duly perform an engagement. Thus if A obtains goods from B
upon the assurance of C that they will be paid for, C is said to guarantee
the debt.
A contract which _may_ be performed within a year does not come under the
statute, even if such performance seems improbable at the time of making
the contract.
The style of the writing is immaterial--it may be formal or informal, in
ink or pencil. It may be made by the principal or by his agent.
_Pertinent Questions._
How are the laws--legislative enactments and decisions of the Supreme
Court--made public? Why are they thus published?
Tell whether the following agreements are valid contracts or not, and why:
1. An agreement to print a libel. A lease of a house for gambling
purposes. A contract executed on Sunday. A contract for work to be done
for five consecutive days, beginning on Friday. How would it affect the
case if the work were the removing of goods from a building in imminent
danger of falling? The agreement of a tinsmith never again to work at his
trade. His agreement not to work at it within a specified time or in a
certain town.
2. An agreement to swim across the ocean. To pay for a horse at the rate
of one kernel for the first nail in the horse's shoes, two for the second,
four for the third, eight for the fourth, and so on. To deliver goods at a
certain time, though the delivery at the proper time may be prevented by
some accident. Is a person released from responsibility by sickness?
3. An agreement by an orphan to pay for necessaries at some future time.
If the price charged is exorbitant, is he bound to pay it or only a fair
market price? A man while drunk buys a horse for which he has no use, but
after becoming sober continues to use the horse. If the price is
excessive, how much must he pay? When a married women buys goods on
credit, is she acting as the principal or as her husband's agent?
4. An order for goods to be sent to a man's house, nothing being said
about payment. An offer retracted before acceptance. An offer for a
certain horse; an acceptance under the impression that a different horse
is meant. A service permitted though uninvited; give an example. A man in
St. Paul offers by letter a certain piece of property at a certain price
to a man in Chicago; an hour after mailing the letter he changes his mind;
how can he prevent a contract?
5. A agrees to give B $25 for a silver dime. But if this particular dime
were of a rare kind and desired by A, a wealthy coin collector, to
complete a set, would the consideration be sufficient? An offer shouted
from a fourth story window just as the roof is about to fall, in
consequence of which offer a fireman at unusual personal risk successfully
attempts the rescue. An offer and acceptance for a horse which is
afterwards discovered to have been dead at time of sale. A promise made
under threat of spreading an infamous report. An agreement for the purpose
of securing the postponement of the payment of a debt. How many
"considerations" are there in a valid contract?
6. The sale of an unfashionable "ready-made" suit of clothes, nothing
being said about the style. The sale of a plated watch chain, the dealer
permitting the purchaser to suppose it solid gold. The sale of a blind
horse, nothing being said about its sight, no effort being made to conceal
its blindness, and full opportunity for examination being given to the
purchaser. The sale of a house and lot at a certain price, greater than
the purchaser had at first intended to give, upon the representation of
the seller that he had "been offered" such a sum. The purchase of a piece
of land which unknown to the vendor contains a valuable mine, nothing
being said to mislead said vendor.
7. An oral order for goods to the value of $500. How does the buyer's
receiving part of the goods affect the matter? How else could the contract
be made binding? What position does a person assume by endorsing a note?
By orally saying that a debt of another will be paid? An oral engagement
made December first to work a year beginning January first.
CHAPTER XXXII.
AGENCY.
Definitions.--An agent is a person authorized to act for another in
dealing with third parties. The one for whom the agent acts is called the
principal.
Authority of Agent.--An agent's authority may be granted orally or in
writing. When written it is called a "power of attorney." A general agent
has all the authority implied in his employment. A special agent has only
such authority as is specifically granted.
Responsibility of the Principal.--Between the principal and his agent
responsibility is determined by their contract. Expressly or impliedly the
principal agrees to pay for the service rendered.
It is in the principal's relation to third parties that the most important
rule of agency appears. It is this: _The principal is responsible for the
authorized acts of his agent_. The theory is that the acts are those of
the principal, the agent being merely an instrument. And accordingly, the
principal is bound not only by such acts of his agent as he has really
authorized, but also by such as he _apparently_ authorizes.
Responsibility of Agent.--The agent is responsible to his principal for
any violation of their contract. Expressly or impliedly he is bound to
obey orders, to exercise ordinary skill and care in the performance of his
duty, and to refrain from putting his interests in adverse relation to
those of his principal.
To the third party the agent is not responsible, except in the following
cases: When he specifically assumes responsibility, when he conceals the
identity of his principal, when he exceeds his authority, or when he acts
fraudulently.
Termination of Agency.--An agency terminates at the death of either
principal or agent. It may also be terminated by revocation of authority,
which takes effect upon receipt of the notice, or by the bankruptcy or
lunacy of the principal, judicially declared.
_Pertinent Questions._
In the following cases name the principal, the agent, and the third party:
A clerk in a store; a man employed to sell goods by sample; a cashier in a
bank; a conductor on a train; a commission merchant; a partner acting for
a firm, a sheriff.
May a minor act as principal? As agent? A watch left at a jeweler's store
for repairs is injured by the workman; who is responsible to the owner? On
account of a road overseer's neglect a horse is injured by stepping
through a hole in a bridge; to whom shall the owner look for damages? If a
person is notified that another claims to represent him as agent and he
neglects to repudiate the claim, is he responsible for acts of the
claimant as agent?
May an agent having authority to fix prices sell to himself?
May a clerk in a store take goods at regular marked prices?
An agent transacts business after his principal's death but before he has
received notice thereof, is the transaction binding upon the heirs?
CHAPTER XXXIII.
PARTNERSHIP.
What it is.--Partnership is the relation existing between persons who have
agreed to combine their property or skill for the prosecution of a given
enterprise, and to share the profits or losses resulting therefrom.
How Formed.--Partnership being a matter of agreement is subject to the law
of contracts. When the agreement is in writing, it is called "articles of
copartnership." The articles usually specify the parties and the firm
name, the nature and the location of the business to be carried on, the
investment of each party, the basis for apportioning profits and losses,
and sometimes the duration of the co-partnership. There are generally
other provisions, their nature depending upon the circumstances.
Responsibility.--As to each other, the partners have the rights and duties
which they agree upon.
As to third parties, the two most important rules of law are: first, that
_the firm is bound by the acts of each member_, in matters pertaining to
the firm's business; second, _each member is liable for all the debts of
the firm_.
Dissolution.--If the duration of the partnership is not specified, it may
be dissolved by any partner at any time. If its duration is specified, it
expires, of course, by limitation or by mutual consent. In either case,
the death of a partner dissolves the firm. If a partner becomes insane or
acts fraudulently, the partnership may be dissolved by a decree of the
court. The sale of an interest (which must have the consent of each
partner) dissolves the partnership and forms a new one.
Notice of Dissolution.--That the retiring partners may be freed from
responsibility for new debts, if the dissolution be by sale of interest
(and this is a very common way), notice of the dissolution must be given
to the world, and special notice of the fact must be given to those from
whom the firm has been in the habit of buying.
Limited Partnership.--In most states, what is called a limited partnership
may be formed, whereby the responsibility of some of the partners may be
limited to their investment in the business. By this arrangement the
private property of the special partners (as they are called) cannot be
taken for debts of the firm.
In such a case, however, it is but just, and the law therefore demands,
that notice of the fact of limited responsibility be given and that no
appearance of responsibility be assumed. To this end it is required: (a)
that the articles of copartnership be in writing, and that they be
published and recorded; (b) that the amount contributed by the special
partners be actually paid in; (c) that the names of the special partners
do not appear in the firm name; (d) that they take no active part in the
management of the business.
_Pertinent Questions._
Why are partnerships formed? May one person invest money while another
invests skill? Is a person who receives a percentage of his sales by way
of salary a partner?
Why cannot a partner sell his interest without consulting the other
members of the firm? Why may the fraudulent act of a partner dissolve the
firm? Why does the death of a member end the firm--that is, why not let
his heir succeed to his right in the firm as he succeeds to his real
estate?
May the _private_ property of a partner be taken to satisfy the debts of
his firm? May the firm's property be taken to satisfy the debt of one of
its members? Can men dissolve their debts by dissolving their partnership?
If one partner continues the business agreeing to pay all indebtedness of
the firm, is the retiring partner released from obligation in relation to
the debts? Show the justice of each requirement in case of special
partners.
CHAPTER XXXIV.
CORPORATIONS.
Purpose--Partnership enables a number of persons, as we have seen, to
accomplish by combining their property and skill what would be
unattainable by them acting individually.
But the individual responsibility involved in partnership, and the
difficulty of transferring interest, render necessary some other mode of
combining capital for carrying on enterprises requiring vast resources,
and, from their nature, demanding long time and freedom from interruption
for their accomplishment. For instance, no one would dare to assume
personal responsibility for the debts of a railroad, nor could such an
enterprise be managed if every transfer of interest dissolved the company.
The desired limitation of responsibility and facility of transfer of
interest are secured by the formation of _corporations_.
Nature.--But responsibility there must be, or the combination could
transact no business. And responsibility depends upon personality--a
_thing_ cannot be held responsible. As this personality does not exist
aside from the persons of those uniting their resources, it must be
created. The creative power is the legislature. The personality created is
the corporation. [Footnote: From the Latin _corpus, corporis,_ a body.] A
corporation is, therefore, an artificial or fictitious person, created
under general law or by a special act of the legislature, [Footnote: This
special act defining the powers and duties of the corporation is called
its _charter_.] and capable of acting within prescribed limits as if it
were a natural person, but beyond those limits incapable of acting at all.
Management.--The persons who contribute to the capital of the corporation,
or company, receive certificates of stock, that is, pieces of paper
certifying that said persons own so many shares in the company. The
capital, be it remembered, is the property of the corporation, not of the
individuals. The number of these stockholders may be large or small, a
dozen or a thousand. The general management of corporate business is
necessarily entrusted to a small number of persons called directors. These
are elected by the stockholders, each share having one vote. The directors
select from their own number a president, a secretary, and other necessary
officers. These persons and the other agents of the corporation carry out
the policy determined upon by the directors.
Why Limited in Powers.--The question suggests itself, Why can a
corporation do only certain things? The most obvious answer is, that this
is consequent upon its mode of creation. Being a creature of the
legislature, it can have only those powers which are specifically or
impliedly granted to it. But pushing the matter farther, it may
pertinently be asked, Why doesn't the legislature endow it with power to
do anything that may properly be done by a natural person? Two reasons, at
least, appear. First, from the corporation's standpoint, it is a matter of
business prudence to have its purpose and powers defined: (a) to enable it
to secure subscribers to its stock, as no one would like to risk his money
blindly; and (b) because thus only can the directors be held to
accountability. Second, from the standpoint of the public, for whom the
legislature acts, the defining is necessary in order that corporations may
be controlled and dangerous combinations prevented.
In this connection it may be noted that corporations are granted some
privileges not possessed by individuals. For instance, private property
such as land may be taken, even against the wishes of the owner, to permit
the building of a railroad. This can be done, however, only on the ground
of public good, and by giving the owner just compensation.
Responsibility.--A corporation, like any other person is responsible for
any contracts that it makes, within its charter. It necessarily acts
entirely through agents, hence the law of agency has an important bearing
upon all contracts with a corporation.
Debts incurred lie against the corporation, not as a rule against the
stockholders individually. Sometimes stockholders are by the charter made
liable to limited extent, say to an amount equal to the par value of their
stock.
Dissolution.--Some companies are incorporated so that they may last
forever. Others are incorporated for a specified time. The latter expire
by limitation or by becoming insolvent. A corporation of either kind may
secure dissolution by voluntarily surrendering its charter. And sometimes
the legislature reserves in the charter the right to dissolve the company
under certain conditions.
The affairs of a corporation are usually closed up by a "receiver," who
collects the bills, disposes of the property, pays the indebtedness as far
as he can, and distributes the residue among the stockholders.
COMPARISON OF PARTNERSHIP WITH CORPORATION.
POINTS OF PARTNERSHIP. CORPORATION.
COMPARISON.
1. Status. A collection of natural A fictitious person.
persons.
2. Formation. By agreement. By legislative
enactment.
3. Powers. Those of natural persons. Only those conferred
by law.
4. Debts. All partners liable for all Stockholders not
debts. usually liable.
5. Transfer of Dissolves partnership. New stockholder
interest by sale succeeds to shares of
or death. the old.
_Pertinent Questions._
Who constitute the managing body in a school district? In a town? In a
village? In a city? In a county? In the state? In the United States?
[Footnote: The United States: "Its charter, the constitution.... Its flag
the symbol of its power; its seal, of its authority."--Dole.] In a
railroad? In a mining company? In a bank? In a church? In a college?
Write a list of all the corporations that you know or have ever heard of,
grouping them under the heads _public_ and _private._
How could a pastor collect his salary if the church should refuse to pay
it?
Could a bank buy a piece of ground "on speculation?" To build its
banking-house on? Could a county lend money if it had a surplus? State the
general powers of a corporation. Some of the special powers of a bank. Of
a city.
A portion of a man's farm is taken for a highway, and he is paid damages;
to whom does said land belong? The road intersects the farm, and crossing
the road is a brook containing trout, which have been put there and cared
for by the farmer; may a boy sit on the public bridge and catch trout from
that brook? If the road should be abandoned or lifted, to whom would the
use of the land go?
CHAPTER XXXV.
COMMERCIAL PAPER.
Kinds and Uses.--If a man wishes to buy some commodity from another but
has not the money to pay for it, he may secure what he wants by giving his
written promise to pay at some future time. This written promise, or
_note_, the seller prefers to an oral promise for several reasons, only
two of which need be mentioned here: first, because it is _prima facie_
evidence of the debt; and, second, because it may be more easily
transferred or handed over to some one else.
If J.M. Johnson, of Saint Paul, owes C.M. Jones, of Chicago, a hundred
dollars, and Nelson Blake, of Chicago, owes J.M. Johnson a hundred
dollars, it is plain that the risk, expense, time and trouble of sending
the money to and from Chicago may be avoided, and the indebtedness wiped
out by J.M. Johnson ordering Nelson Blake to pay the hundred dollars to
C.M. Jones. The written order to this effect, called a _draft_, would be
sent to C.M. Jones, who would present it for payment to Nelson Blake, and
upon receiving his money would turn _the draft_ over to Blake.
To avoid the risk of being robbed, merchants and some others are in the
habit of depositing each evening in a bank the receipts of the day, with
the understanding that the money will be paid out, at any time, to any
person whom they order it paid to. The order on the bank is called a
_check_.
It is very easy to see that these three devices are of immense value to
the commercial world; the first by rendering available future resources,
and the other two by enabling payments to be made safely.
Definitions.--A _note_ is an unconditional promise in writing, to pay a
definite sum of money at a certain time to a specified person.
A _draft_ is an order, written by one person and addressed to another,
directing him to pay a definite sum of money at a certain time to a
specified third party.
A _check_ is a draft for immediate payment, drawn upon a bank or banker.
In the case of a note, the person who promises to pay is called the
_maker_ of the note; and the person named to be paid, the _payee_.
In the case of a draft or check, the person ordering the payment is called
the _drawer_; the person addressed, the _person drawn upon_ or the
_drawee_; and the person to be paid, the _payee_.
Negotiability.--The payee in any of these cases may wish to transfer the
paper to some other person. For instance, the holder of the note may wish
to use the money before it is due, or the payee of a draft may wish to
realize without going to the drawee. In either case, the desired
accommodation can be secured only by selling the paper to some one else.
This ability to be transferred is part of what is meant by the term
_negotiability_.
But this liability to have to pay another person than the one named,
cannot be imposed upon the maker or drawer without his consent. This he
gives by inserting after the name of the payee the words "or order," or
the words "or bearer." In the latter case, whoever holds the paper when it
becomes due can collect upon it. In case the former words are used, the
paper can be transferred only by _indorsement_, of which more anon.
A very important characteristic of negotiability is that it enables a
person to grant to another rights which he may not himself possess. To
illustrate: As between the maker and the payee, a note is a contract, and
is binding only if it has all the requisites of a binding contract.
Therefore, if there was no consideration, or if the note was obtained by
fraud or by intimidation, the payee, knowing these facts, has no right to
collect upon the note, and he could not by law compel payment. But with a
third party it is different. He sees only the note, and may not--
presumably does not--know anything else about the contract. To compel him
before buying the note to learn all the details of its history, might be
embarrassing to the parties, even where everything is all right, and would
certainly delay, perhaps materially, the transfer. Therefore, to enable
people to keep their business to themselves, and to facilitate transfers
of commercial paper, it has seemed best not to require this investigation.
The law presumes that when a person makes a transferable note, he has done
so deliberately; and if loss ensues, it says that he must bear it rather
than the innocent purchaser of his note.
Conditions of Negotiability.--But this peculiar protection is given, be it
observed, only to an _innocent purchaser_. If in good faith, in the
regular course of business, a person comes into possession of commercial
paper, negotiable in form, not yet mature, and for which he has given a
reasonable consideration, he can collect on it. On the other hand, if he
has found the paper or stolen it, or if he has bought it under
circumstances calculated to raise a suspicion as to right of the seller,
he should not have, and will not by law receive, this privilege. Thus if a
man is offered commercial paper of perfectly responsible parties at
one-third its value, it would be reasonable to suppose that the person
offering it had found or stolen it, and the buyer would obtain only the
rights of the person from whom he bought. Or if a note past due is offered
for sale, the presumption is that it is paid or that it is for some reason
uncollectable, and the purchaser would buy at his peril. In other words,
_if there is anything on the face of the paper or in the circumstances of
the case to warn the purchaser, he buys at his own risk_, and secures only
such rights as the vendor has.
Transfer.--Negotiable paper with the words "or bearer" is transferable by
delivery alone. If made payable to some person "or order," it is
transferable only by his _indorsement_. An "indorsement in full" consists
of the signature of the payee and his order that the money be paid to a
specified person. An "indorsement in blank" consists simply of the
signature of the payee. The effect of the latter mode of indorsing is to
make the paper payable to bearer.
Responsibility of Maker.--A note being a contract, the maker of one is
responsible to the payee, as has been said, only if all the requisites of
a binding contract are present. If the note is negotiable in form, he is
responsible to the innocent purchaser of it.
Responsibility of Drawee.--The person drawn upon may know nothing of the
draft. He cannot be made a party to a contract without his knowledge and
consent. That he may have knowledge of the draft, it must be presented to
him. If upon seeing it he is willing to assume the responsibility of
paying it when due, he signifies his willingness by writing across the
face of the draft the word "accepted," with the date of presentation and
his name. The draft thereby becomes his unconditional promise, and he
becomes the principal debtor, occupying the position of a maker of a note.
Responsibility of Indorser.--When a person endorses any commercial paper,
he not only expresses thereby his consent to the transfer of it, but he
also enters into a conditional contract with each person who may afterward
come into possession of the paper, whereby he becomes responsible for its
payment, if the principal debtor fails to meet his obligation. To fix
responsibility upon an indorser, payment must be demanded of the principal
debtor on the very day when the obligation matures, and if payment is not
made notice of the fact must be sent to the indorser before the end of the
following day.
Responsibility of Drawer.--Between the drawer and the payee a draft is a
conditional contract, whereby the former impliedly agrees to pay the draft
if the person drawn upon does not. His obligation is that of a surety or
first indorser. To fix responsibility upon the drawer, the holder of the
draft must promptly present it for acceptance to the person drawn upon;
then, if it is not accepted, he must immediately notify the drawer.
Forged Paper.--Forgery is the fraudulent making or altering of a written
instrument. One whose name is forged cannot be made responsible, since the
act is not his. And since money paid under a mistake must be refunded, a
person who, deceived by the skill of the forger, should pay the seeming
obligation, would be entitled to get his money back.
But every person is bound to use reasonable effort to prevent forgery.
Thus, if a merchant writes out a note all but the amount, and authorizes a
clerk to put that in at some other time, and the clerk inserts a larger
sum, any innocent purchaser can compel the merchant to pay the full
amount. In some states it is held that a person who leaves space in an
obligation wherein the amount can readily be raised, is bound to stand the
loss caused by his negligence.
Accommodation Paper.--A man may be perfectly willing to lend a friend some
money and yet be unable to do so. He may, however, in any one of several
ways, make it possible for his friend to obtain the money. Thus A, wishing
to accommodate his friend B, may make a note payable to B's order; or he
may endorse B's note; or he may make a draft payable to B's order; or he
may accept B's draft on him. By selling the paper, B secures the money
desired. The implied contract between A and B is that B will pay the
obligation.
In none of these cases could B compel A to pay him any money, because the
contract between them lacks consideration. But A would be responsible to
an innocent purchaser, because there is nothing on the face of the paper
to indicate the defect. And he would be responsible even to a purchaser
who knows the paper to be accommodation, because by signing he binds
himself to pay if B does not, and his signature is what enables the sale
to be made.
Certified Checks.--Business men make most of their payments by check. If
the receiver of a check does not, for any reason, wish the money, he may
deposit the check in the bank as if it were cash. If he is going away from
home, or if he wishes to make a payment in some other place, he may save
the expense of a draft, and make a check equally as acceptable, by getting
the cashier of the bank to "certify" it, that is to state officially that
the drawer has the money in the bank. This he does by writing across the
face of the draft the word "Good," with his signature as cashier. When
this is done the responsibility rests primarily on the bank. It occupies
the position of the acceptor of a draft.
_Pertinent Questions._
Two of the following are valid notes; which two? The others are not; Why?
1. March 5, 1890, I promise to pay John Smith one hundred dollars, if he
is then living.--William Jones. 2. On or before March 5, 1890, I promise
to pay John Smith one hundred bushels of wheat.--William Jones. 3. On
March 5, 1890, I promise to pay John Smith whatever is then due him.--
William Jones. 4. When he comes of age, I promise to pay John Smith one
hundred dollars.--William Jones. 5. March 5, 1890, I promise to pay one
hundred dollars.--William Jones. 6. One year after date, I promise to pay
to John Smith one hundred dollars.--William Jones. 7. Mankato, Minn.,
December 11, 1888. One year after date I promise to pay John Smith one
hundred dollars. 8. On the death of his father, I promise to pay John
Smith one hundred dollars.--William Jones. 9. On March 5, 1890, I, William
Jones, promise to pay John Smith one hundred dollars.
How many parties may there be to a note? How many, at least, must there
be? As between them, must there be consideration to make it binding? Must
the words "for value received" appear on the note? A note being a
contract, what things are necessary to make it binding? Write two valid
notes in different forms. Write a negotiable note transferable without
indorsement. A note transferable by indorsement. Which is safer to carry
in the pocket? Why? Which imposes the less responsibility if transferred?
If you were taking a note payable to bearer, would you require the person
from whom you were getting it to indorse it? A man has some non-negotiable
notes; if he dies can his heir collect them? A note payable "to order" is
indorsed in blank; to whom is it payable? May a note payable "to bearer"
be made payable only "to order?" When does a note cease to be negotiable?
Under what circumstances may a person have to pay a note which he has
already paid? What is a "greenback?"
How many persons, at least, must there be to an accepted draft? When does
the responsibility of the drawer begin? That of the person drawn upon? How
does the acceptance of a draft affect the responsibility of the drawer? If
the draft is not accepted, to whom shall the holder look for pay? Are
drafts negotiable before acceptance?
Compare and contrast a note and a draft. A draft and a check. Is the bank
under any obligation to the holder of an uncertified check? Does
certifying a check release the drawer of it? Are checks negotiable?
What responsibility does an indorser assume in case of a note? Of an
unaccepted draft? Of an accepted draft? Of a check? What does "without
recourse" mean? To how many persons is the maker of a note responsible?
The first indorser? The second? How can the first indorser be
distinguished from the second? To whom is the second indorser not
responsible?
Who are not responsible to the holder of a negotiable paper unless
notified? Who are responsible without notice? What principle do you
discover? When is a demand note due? A check? A time note? A sight draft?
A time draft?
What should you do, and why, in the following cases:
1. When you pay a note? 2. When you make a partial payment on a note? 3.
If you should lose a note? 4. If you have a note without indorsees, to
render the maker responsible? 5. If you hold a note having indorsers, to
render the indorsers responsible? 6. If you hold an unaccepted draft? 7.
In case acceptance is refused? 8. If you hold an accepted draft? 9. If the
acceptor fails to pay when the paper becomes due? 10. If you hold an
uncertified check, in order to render the drawer responsible? 11. If it is
indorsed, to make the indorsers responsible? 12. If you have a certified
check, to make the bank responsible? 13. If you are a third indorser of a
note, whom can you hold responsible in case the paper is dishonored, and
how? 14. If you have a bearer note and you wish to transfer it without
assuming responsibility? 15. How if it is an order note?
APPENDIX A.--FORMS.
TOWN BUSINESS.
_I. Organization of a Town._
PETITION.
To the boa |
