Part 2 out of 8
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
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
_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
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]
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
Though the proceedings of these assemblies differed in detail from those
of our town meetings, both contain the great principle of local self
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
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
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
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
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?
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
Define constitution. What is a law? What is meant by common law? Statute
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
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
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?
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
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
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
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
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
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
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
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
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
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
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?
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
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
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
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.
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
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
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
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
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
_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
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.
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
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.
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?
In order to understand the government of the United States, we must
examine its beginnings and antecedents.
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
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
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
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
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
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
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
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
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
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,
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:
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
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
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
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.