'LVK TC-ijiiiitei? ^^m SGHOOLGIVIGS WITH CIVICS aF NEW YORK si:i^rE BOYNTON H5' fyxmll W^nivmii^ pibtMg THE GIFT OF .A-.^aos^da (^Joi i t Date uue S 2 "32 ;.' ■- n ^ J- ■yfl tJf/ /i-r 7/ ^ MAH ^ . w;:i r Comejl University Library JK251.B76 N5 School civics: olin 3 1924 030 455 400 Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030455400 SCHOOL CIVICS AN OUTLINE STUDY OF THE ORIGIN AND DEVELOPMENT OF GOVERNMENT AND THE DEVELOPMENT OF POLITICAL INSTITUTIONS IN THE UNITED STATES BY FRANK DAVID BOYNTON Superintendent of Schools, Ithaca, New York GINN & COMPANY BOSTON • NEW YORK • CHICAGO • LONDON "mfA^H-- K.^-^ ^0500 Copyright, 1904, by FRANK DAVID BOYNTON ALL RIGHTS RESERVED 55.9 GINN & COMPANY • PRO- PRIETORS • BOSTON . U.S.A. PREFACE In 1901 a Syllabus of Civics for the use of grammar schools was published. The Syllabus was followed by the publication of a Library Manual of Civics. This larger book is an expansion of the Syllabus as outlined in the Library Manual. The chapters that occur in it, together with the library references and questions given at the end of each chapter, are practically the same as may be found in the Manual. For two years the Manual has been in the hands of large classes studying civics. A special edition of the present work was published in pamphlet form and used in the classroom during the school year 1903-4. The book tells the story of our government in such a man- ner as to make the difficult subject of civics possible of com- prehension to the average grammar or high school pupil. The story is told as it was made, historically. It begins back far enough to show clearly the relations of our government to earHer forms, and follows the various steps through which our government has passed in its evolution from a few disassociated bands of colonists to its present dignity as the world's greatest republic. The text of the book is intended to be sufficiently fuU to prepare pupils for college entrance, regents' and teachers' examinations. In the larger schools where libraries are ac- cessible it is recommended that pupils be required to look up IV PREFACE some of the library references on each chapter, in order that they may become acquainted with various views and thus gain a broader knowledge than any one book can give. The questions have been selected with care from all available sources and should be studied. The bibUography is merely suggestive. It might be much larger, but it will be found a reliable guide to the pupil and to schools dashing to enrich their Ubraries upon this subject. The chapter on PoUtics and PoUtical Parties, while some- what of a departure in a text-book on civics, is fully war- ranted by the growing importance of these matters in the management of our government. Many questions arise in a civics class that should be freely debated by members of the class formed into opposing sides. In the preparation of the book the author has received much valuable help from teachers of civics in different parts of the country, and from lawyers and statesmen to whom he has frequently applied for specific information. Special ac- knowledgments are due to Mr. D. C. Knowlton, A.B., for the excellent service he has rendered, and to Mrs. Gertrude Shorb-Martin, Ph.D., who has been especially efficient in composition and proof-reading. Ithaca, N.Y., 1904. CONTENTS CHAPTER II. III. IV. V. VI. -O^II. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. XX. XXI. XXII. XXIII. Bibliography Government: Its Origin, Its Necessity, Its Object, Its Functions Forms of Government Colonial Government in America: Its Origin and Development to the Con- stitution Attempts at Union (1643-1777) The Articles of Confederation (1781- 1789) ' - - Thb Constitution: Its Formation and Adoption The Constitution : Its Origin and Nature . Legislative Department: Its Organization, Legislative Department: Its Powers and Limitations . . Legislative Department: Its Working . . Executive Department: President and Vice-President Executive Department: President's Assist- ants Judicial Department: Federal Courts The States: In Their Relations to the Constitution The Bill of Rights : The Individual in His Relations to the Constitution . . . Miscellaneous Provisions . . .... The Unwritten Constitution State -Governments ... .... Local Government Municipal Government American Politics and Political Parties, International Law Municipal Law Appendix: Articles of Confederation; Con- stitution of the United States . . . Index I page 3 7 23 40 54 6S 72 88 97 119 158 178 202 219 231 243 249 2SS 264 288 293 309 326 344 BIBLIOGRAPHY Adams, H. C. The Science of Finance. New York. 1898. Alton, Edmund. Among the Law-Makers. New York. 1896. (Cited as Alton.) Ashley, R. L. The American Federal State: a text-book in civics for high schools and colleges. New York. 1903. (Cited as Ashley.) Baker, M. N. Municipal Engineering and Sanitation. Citizens Library. New York and London. 1902. Bancroft, George. History of the United States of America from the Discovery of the Continent. Last revision by author. 6 v. New York. 1892. (Cited as Bancroft.) . Bryce, James. American Commonwealth. 2 v. New York. 1896. (Cited as Bryce.) Channing, Edward. Sttedent's History of the United States. New edition. New York and London. 1899. (Cited as Channing.) Cooley, T. M. Constitutional Limitations. Boston. 1878. Cooley, T. M. FrincipUs of Constitutional Law. Boston. 189 1. Curtis, George Ticknor. Constitutional History of the United States from their Declaration of Independence to the Close of their Civil War. 2 v. New York. 1896-1897. (Cited as Curtis.) Dallinger, F. W. N omination for Elective Office. Cambridge. 1897. Dawes, Anna Laurens. How we are governed: an Explanation of the Con- stitution and Government of the United States: a Book for Young People. Boston and London. 1900. (Cited as Dawes.) Dole, Charles F. American Citizen. Boston. 1896. (Cited as Dole.) Fiske, John. American Folitical Ideas viewed from the Standpoint of Uni- versal History. New York. 1885. Fiske, John. Civil Government in the United States considered with some Reference to its Origin. Boston, New York, Chicago. 1903. (Cited as Fiske.) Fiske, John. Critical Period of American History: ifS^-iySg. Boston and New York. 1896. 3 4 CIVIL GOVERNMENT Fiske, John. Old Virginia and her Neighbours. 2 v. Boston and New York. 1897.^ Goodnow, F. J. Municipal Problems. New York. 1897. Hadley, A. J. Railroad Transportation : its history and its laws. New York. 1895. Hamilton fAlexander), Jay (John), Madison (James), and others. Feder- alist and other Constitutional Papers. Edited by E. H. Scott. Chicago. 1894. (Cited as Federalist.) Harrison, Benjamin. This Country of Ours. New York. 1901. (Cited as Harrison.) Hart, Albert Bushnell. For'mationofthelJnion:i'jso-i82<). 6th ed. Epochs of American History Series. New York and London. 1896. (Cited as Hart.) Hinsdale, B. A. American Government: National and State. New and revised edition. Chicago and New York. 1895. (Cited as Hinsdale.) Jenks, J. W. The Trust Problem. New York. 1900. Johnston, Alexander. History of American Politics. 3d ed. Revised by WilUam M. Sloane. New York. 1892. (Cited as Johnston.) Lalor, John J. Cyclopadia of Political Science, Political Economy, and of . the Political History of the United States, by the best American and Euro- pean Writers. 3 v. New York. 1893. (Cited as Lalor.) Lawrence, T. J. Principles of International Law. 3rd edition, revised Boston. 1900. McConachie, L. G. Congressional Committees. New York. 1898. MacDonald, Wm. Select Documents Illustrative of American History. 3 V. New York. 1898-1903. McMaster, John Bach. History of the People of the United States from the Revolution to the Civil War. 5 v. New York. 1888-1900. (Cited as McMaster.) Macy, Jesse. First Lessons in Civil Government. Boston. 1896. (Cited as Macy, First Lessons.) Macy, Jesse. Our Government : how it grew, what it does, and how it does it. Revised ed. Boston. 1901. (Cited as Macy.) Madison, James. Journal of the Federal Convention. Edited by E. H Scott. Chicago. 1893. Montgomery, D. H. Student's American History. Boston and London. 1902. (Cited as Montgomery.) Oberholtzer, E. P. The Referendum in America. New York. 1900. BIBLIOGRAPHY S Official Congressional Directory for the Use of the United States Con- gress. Washington. 1903. Remsen, Daniel S. Primary Elections. New York. 1894. Roberts, Ellis H. New York: the Planting and the Growth of the Empire State. 2 V. American Commonwealth Series. Boston and New York. 1899. (Cited as Roberts.) Robinson, W. C. Elementary Law. Boston. 1882. Roosevelt, Theodore. Gouverneur Morris. American Statesmen Series. Boston and New York. 1899. Roosevelt, Theodore. American Ideals and other Essays, Social and Politi- cal. New York and London. 1902. Schouler, James. Constitutional Studies. New York. 1897. Schouler, James, History of the United States of America under the Consti- tution. 6 V. New York. 1880-1899. (Cited as Schouler.) Stanwood, Edward. History of the Presidency. Boston. iSgS. Stimson, F. J. Labor in its Relation to Law. New York. 1895. Stubbs, William. Constitutional History of England in its Origin and De- velopment. 4th ed. 3 V. Oxford. 1896. Taswell-Langmead, Thomas Pitt. English Constitutional History from the Teutonic Conquest to the Present Time. 3d ed. Revised by C. H. E. Carmichael. London and Boston. 1886. (Cited as Taswell-Lang- mead.) Taussig, F. W. Tariff History in the United States. New York. 1888. Thwaites, Reuben Gold. Colonies: i4g2-i7S0- Epochs of American His- tory Series. 9th ed. New York and London. 1896. (Cited as Thwaites.) Townsend, Calvin. Compendium of Commercial Law analytically and topi- cally arranged, with Copious Citations, etc. New York, Cincinnati, Chicago. 1871. (Cited as Townsend.) Tyler, Moses Coit. Patrick Henry. American Statesmen Series. Boston and New York. 1899. Walker, F. A. Making of the Nation. New York. 1895. White, H. Money and Banking. Boston. 1896. Wilcox, Delos F. The Study of the City Government. New York. 1897. Wilson, Woodrow. Congressional Government: a Study in American Politics. 15th ed. Boston and New York. 1900. (Cited as Wilson, Congres- sional Governments Wilson, Woodrow. The State: Elements of Historical and Practical Politics: u. Sketch of Institutional History and Administration. Boston. 1889. (Cited as Wilson.) 6 CIVIL GOVERNMENT Woodburn, J. A. The American Republic and iis government: an analysis of the government of the United States with a consideration of its funda- mental principles and of its relations to the states and territories. New York and London. 1903. Woolsey, Theodore D wight. Introduction to the Study of International Law designed as ati Aid in Teaching and in Historical Studies. 6th ed. Revised by Theodore Salisbury Woolsey. New York. 1891. (Cited as Woolsey.) Wright, Carroll D. Industrial Evolution of the United States. New York. 1895. Zueblin, Charles. American Municipal Progress: chapters in municipal sociology. Citizens Library. New York and London. 1903. CIVIL GOVERNMENT CHAPTER I GOVERNMENT: ITS ORIGIN, ITS NECESSITY, ITS OBJECT, ITS FUNCTIONS 1. Definition. If you look into the dictionary for a definition of civics, you will find that it means "the science of civil government; the principles of government in their ap- plication to society." Further you will find that civil means "pertaining to the state in general." But after you have studied these definitions will you be much the wiser? So- ciety, the state, government, are all themselves terms requir- ing explanation before the student can boast much enlight- enment. 2. Origin of the State: Primitive Man already Social. First of all, then, what is society? Aristotle, the greatest of the Greek philosophers, declared that man is naturally a political animal. Whether he is so by nature or whether, as- a later philosopher, Hobbes, maintained, his natural state is a state of war in which every man's hand is against his fellow, certain it is that though we follow him back through the dimmest vistas of history into prehistoric times, we find him always in association with his kind, never soHtary. If he is not by nature social, certainly he had already begun to grow so even in hoariest antiquity. We find him always a member of some sort of society, however rude and poorly 7 8 CIVIL GOVERNMENT organized, i.e., we find him always associated with other persons for their mutual advantage or for the furtherance of some common purpose. It should not be understood, how- ever, that this purpose is always definitely present to the minds of the members of the society. As a matter of fact, civil society is not a voluntary association, Uke a debating club for instance; on the contrary, the members are simply bom into it, and have no choice as to whether or not they will be members. 3. Primitive Societies : Our Knowledge Imperfect. Doubt- less in the earUest and most primitive societies this common object was to secure a more abundant supply of food. Man, in some respects the weakest and most defenceless of the larger animals, must have learned very early in the course of his evolution that by association with his fellows he could cope much more easily with the lower animals upon which he was dependent for subsistence. Just how these rude, almost wholly unorganized hunting bands developed into the com- plex organizations now known as states is one of the prob- lems about which science, in the absence of a complete array of facts, is obliged as yet to theorize in part. In dealing with the question of the origin of the state we must be con- tent if science evolves for us a consistent and reasonable theory. 4. Definition of State. But first let us guard against a possible misapprehension. Here in the United States we use the term " state " in a local and peculiar sense as applying to any one of the forty-five divisions of the nation, each of which, while regulating its own local affairs and possessing a considerable degree of political independence, is still sub- ject to the federal constitution. The word " state " has, how- GOVERNMENT: ITS ORIGIN 9 ever, a wider application. It is used primarily to designate any community having an independent existence and pos- sessing a permanent administrative machinery called a gov- ernment. The extent of the power to be exercised through this governriient and the exact method of employing it are matters fixed by rules that have been estabhshed by custom or have been committed to writing. Germany, France, and the United States are examples of states. 5. Original Law-Giver Theory. Returning then to the question as to the origin of the state, we shall find a number of theories that have been more or less widely believed at different times. Men very early began to wonder how they came to have laws and governments, and we find among the traditions of all the great races stories about some re- markable law-giver, who organized their state and originated the laws under which his people were to Uve. Thus, for the Athenians Solon, for the Spartans Lycurgus, for the Romans Numa, played this role of original law-giver. 6. Divine Right Theory. A second and later theory, sup- posed by those who held it to be much more reasonable than the behef in'an original law-giver, might be called the "divine right theory," the theory of the divine origin of the state. According to this behef, the state was formed by di- rect mandate of the Creator; a sort of "Let there be states, and there were states." In some way government was simply given to man from the beginning. It is this theory that Hes back of the once widely cherished behef in the divine right of kings; for those who saw in the state a divine in- stitution were very likely also to see in the particular human ruler God's vicegerent, His agent for carrying on this institution. lo CIVIL GOVERNMENT 7. Contract Theory. More important than either of these theories, because at one time more widely beheved and discussed, is what is known as the "contract" or "social compact" theory. This explains the existence of states by supposing that at some remote time men dehberately agreed together to form a single community and have a poUti- cal organization. The motive that prompted them to this action was the desire to secure a better observance of the so-called "law of nature," a law supposed to exist outside of and independently of all states, of which all men had intuitive knowledge, and whose teaching can perhaps be best summed up in the golden rule. 8. Later Theories Historical. It will be noticed that none of these theories relies much for support upon known facts of history or upon observations of primitive peoples. They are only more or less plausible speculations as to how states might have come into existence. It is only in quite modem times that_jnen have begun to piece together slowly and with much difficulty out of fragmentary bits of history and out of a great mass of observations on the customs of primi- tive peoples, a theory that can be called in any true sense historical. 9. Force Theory. The beginnings of modem states like France or Germany show beyond a doubt that the main in- fluence at work in shaping certain portions of Europe into states was war. Increase of population; increase of wealth or desire therefor; improvement in weapons, tempting men to battle with their fellows for the good things that seemed attainable in no other way — these things from time to time caused the more or less organized hordes to burst their an- cient boundaries and seek new homes. Thus some warnor GOVERNMENT: ITS ORIGIN H renowned for his prowess was hailed as leader, secured a following of the bravest of the clan or tribe to which he be- longed, and when he with his chosen band got permanent control of a definite territory of considerable size, a state came into existence. Such phenomena as these, clearly traceable in the history of existing states, have sometimes been pointed to as indicating the origin of the state; but it is clear that in this "force theory" we are deahng, not with the beginnings of government, but with pohtical bodies, pos- sessing already a considerable degree of organization. The terms horde, clan, tribe, which were used in speaking of these phenomena, point to some sort of organization already existing before the element of force shaped a particular people into a France or a Germany. 10. Kinship Theory. Careful investigation along a great variety of Unes has tended more and more to show that the state has its origin primarily in the bonds of kinship. The state is a gradual evolution from the family. This develop- ment of pohtical organization out of the family has been most carefully traced in the history of what have been called the "great central nations" of the world, the Aryan peoples, including the peoples of Hindu and Iranian blood in the East, and those of Greek, Italian, Celtic, Slavonian, and Teutonic blood in the West. Now these peoples either pos- sessed originally the patriarchal form of the family, or had already advanced to it in the reniotest age to which the light of history has been able to penetrate, i.e., the fam- ily was ruled over by the father, whose word was the only law known to his children and dependants, and who, from the dignity of his position and his supposed nearness to the unseen spirit world, was likewise the medium of communi- 12 CIVIL GOVERNMENT cation with the inhabitants of that world — in other words, the priest/ As his family increased in number and the ties of religion and blood became more remote, it became a clan, still bound together by blood relationship, looking to a single person as its common ancestor, sharing in a common worship, and presided over by the chief kinsman instead of the father. It is in the clan, in this union of family groups, that we find the beginnings of true political organization. As the population increased several clans were formed, and these again united to form tribes. One tribe or several of them then developed into the state. 11. Summary. To sum up, then, we may say that later investigation has tended to show that in its origin the state rests not on the work of some great law-giver, not on the direct mandate of the Creator, not on a dehberate contract between individuals, not on force, but on kinship. Un- questionably most, if not all, of these first-named elements have aided in the development of particular states at later periods of their history, but they should not be mistaken for explanations of the origin of the state. 12. Government. What is it? In the foregoing pages we have several times used the word "government" as if its meaning were quite clear; yet how many students could formulate a good definition offhand? We are constantly feeling all about us the restraints of government. If I own ' It should be borne in mind, however, that the patriarchal family is not the only form of family known to history. Many evidences point to the matriarchal family, in which kinship is traced through the mother only and in which the rule belongs to her, £is a probably earlier form of family organization; and the clan and the tribe, i.e., the elements out of which states are built, have grown up among peoples who give no clear evidence of ever having known the patriarchal family. GOVERNMENT: ITS ORIGIN 13 property, I must repair at stated intervals to the tax collector and pay over to him for the use of the government a certain sum proportionate to the value of it; and if I persistently refuse to do this, he may sell my property and appropriate such portion as the government has asked for. Even when I have paid my taxes I am not free to do exactly as I choose with my property. I am not allowed to maintain there anything that the law considers a public nuisance, i.e., anything that endangers health or comfort. I am not free to conduct my business in any way I may choose. Certain "businesses," Uke gambUng and lotteries, are generally for- bidden altogether, because the government considers them fraudulent. Certain others, Hke the hquor business, are permitted only on payment to the government of a heavy tax called a Hcense, and are even then subject to rigid re- strictions. Certain others, hke the milk business, are sub- ject at any moment to inspection by government officials, who are authorized to destroy my goods if they fall short of the standard fixed by government. The United States government makes and issues great quantities of money, paper and coin; yet if I should make a single piece and at- tempt to buy anything with it, I should be most severely punished. What, then, is this thing "government" that hedges me about on every hand, and by what right does it say to me "thou shalt" or "thou shalt not"? 13. Definitions. When we were talking about society and the state we found that primitive men, or, to speak more accurately, primitive family groups, must very early in the course of development have found it advantageous to live and work together. Men found themselves better able to survive and make progress in society than dut of it. In 14 CIVIL GOVERNMENT order, however, that survival and progress may be possible, it is necessary that society should secure to its individual members as great a degree of justice as conditions permit, and the instrument that it uses for this purpose is govern- ment. The word is used in two senses: First, government may be said to consist of customs, rules, or laws command- ing what society, or to use a somewhat narrower and more definite term, what the state wishes to have done and for- bidding what it does not wish to have done; second, it con- sists of the rulers or officers whose business it is to have these rules enforced. In other words, government is the instrument or agent which the state uses to secure the end for which it exists. 14. Anarchy Impracticable. But what need is there, it may be asked, for the restraints and commands imposed by government? Could we not get along as well without them ? In almost every community there are a few persons, generally regarded by their neighbors as somewhat visionary, who have dreamed a beautiful dream that the day is at hand wheti the Hon shall lie down with the lamb and a little child shall lead them. One hesitates to call them by the somewhat ominous name of anarchists; yet such they are, for they beUeve that the only good government is no govern- ment. They do not, however, advocate bomb-throwing as a means of putting an end to government; and so, to dis- tinguish them from anarchists of the violent type, they are called theoretical anarchists. If every individual always did exactly the right thing at the right time; if he always at- tended strictly to his own affairs, never trespassing upon the feelings, rights, or property of others; if there were no thieves, liars; or otherwise dishonest persons; if aU persons GOVERNMENT: ITS ORIGIN iS were always pure in thought and deed, then every individ- ual could indeed obtain his personal rights 'without the aid of government, and the dream of the anarchist would be reahzed. 15. Government Necessary. Unfortunately this condition of affairs has never yet been even approximately reached. Even the youngest of us has Uved long enough to know that there are many persons unwilling to grant to others the rights and privileges they demand for themselves. The only way to secure from such persons a due consideration for the rights of others is through the exercise of some power that they at least fear and obey. So long as men are selfish, ambitious and greedy, government ihust remain. If each individual is to secure the largest possible personal liberty and at the same time grant to every other individual the privileges which he himself enjoys, rules or laws must be estabhshed as the standard of action for all. This, of course, does not mean that such rules once estabhshed must re- main forever binding upon all who may by birth or other- wise become members of the society. Many of the rules by which our Puritan ancestors held themselves rigidly bound seem to us now only cujrious and amusing, as doubtless many of ours will seem to future generations. Every gov- ernment that is to be in any sense permanent must provide for the possibility of orderly change. AU that is meant is that, no matter how frequently subject to change, there must be, at any particular moment, estabhshed rules to which the actions of all conform. 16. Government: Its Object. What the true object of government is — the ideal it strives to attain — may be very easily gathered from the foregoing paragraphs. In the i6 CIVIL GOVERNMENT first place, it should be borne in mind that government in the United States, as in other enUghtened nations, is not intended as a restriction upon personal freedom and should n6t be so understood. Moreover, it rarely so acts excepting upon those who interpret personal Uberty in such a way as to ignore wholly or to infringe seriously upon the rights of others, while they maintain similar rights for themselves. The object of government is to secure the individual rights and Uberties of all — to give the widest possible freedom to the individual for his self-development, and yet to guard that freedom against the competition that kills, and to re- duce the antagonism between self-development and social development to a minimum. In other words, the ideal toward which government strives is to secure, tx) every in- jiyidu al of socie ty— the- largest po r.r. i bl e liberty compatibl e with the general welfare. If at any time it becomes obvious that the ends of government have become perverted, that if no longer strives to promote the general welfare but exists only for the private advantage of some individual or of some group of individuals, and if all efforts have failed to remedy this state of affairs by the means legally provided — then the people may justifiably have recourse to revolu- tion in order to free themselves from oppression and estab- lish or reestablish a just government. 17. Government and Individual Rights. Now this largest possible liberty of the individual can be secured only by bringing it about that all other individuals shall pay strict regard to what the society in which he lives has recog- nized as his rights. It is only in organized society that rights can be said to exist at all; and as society grows more complex, new distributions and clearer definitions of rights GOVERNMENT: ITS ORIGIN 17 must take place; in other words, as society develops, gov- ernment, which originated with the society itself, has con- stantly before it the progressive task of securing the greatest possible hberty of the individual compatible with the general welfare. During the long struggle up from savagery to the modern civilized state, this question of the distribution and maintenance of individual rights has played, indeed, is stiU playing, a most important r61e. Individual rights are not something fixed and unchangeable from the beginning and destined to remain fixed to the end. They are undergoing a constant but very gradual change, a change so gradual as not to interfere in the least with a very clear understanding of what they are at any particular moment. 18. Classification of Rights: Political Rights. In the United States the rights of the individual are divisible into two main classes, political and civil. Political rights are those which individuals possess in the matter of government. The right of the individuals of a state to establish a govern- ment has already been referred to (§ 16). This is an extra- legal right, i.e., it exists independently of law. In addition there is the legal right of certain classes of individuals to share in government by voting or by holding office. It should be noted that not even in the United States are full political rights accorded to all individuals, while under some governments political rights of the second kind do not exist at all. 19. Civil Rights. Important as are political rights, it is to the much more numerous and diversified class of civil rights that those of fundamental importance belong. Civil rights are all those that are not political, all those possessed by the individual in his ordinary relations with the common- i8 CIVIL GOVERNMENT wealth and with his fellow-citizens. Among them are the rights referred to in the declaration of independence as "unahenable," because we cannot be justly deprived of them except by our own acts: e.g., the right of personal security (the right to be safe from injury to life, body, health, or reputation); the right of personal hberty (the right to pass freely, think freely, speak or write freely, wherever and whenever we please, provided we do not infringe upon the rights of others) ; the right of private property (the right to enjoy the results of our own labor and saving) ; and the right of religious liberty or freedom of conscience (the right to worship God as we see fit). Under civil rights also are included all rights which belong to individuals in their re- lations to other persons, e.g., the rights involved in the re- lations between husband and wife, parent and child, em- ployer and employed. 20. Govenmient: Its Functions. The functions per- formed by government are not always and everywhere the same. They vary in different states and even in the same state at different stages of its development. There are, however, certain functions which in some form or other all civilized states have undertaken. For purposes of study these have been divided into two classes: constituent func- tions and ministrant functions.* By constituent functions are meant those "that are necessary to the civic organization of society," those which government must perform if the state is to continue to exist. To this class belong all those functions which have for their object the protection of life liberty and property: such as the keeping of order and the furnishing of protection against violence and robbery; the ' Wilson, §§ 1232-1235. GOVERNMENT: ITS ORIGIN 19 fixing of the legal relations between husband and wife and between parents and children; the regulation of the holding, transmission and interchange of property; the determina- tion of contract rights; the determination of the poHtical duties, privileges, and relations of citizens; and the dealings of the state with foreign powers for the purpose of preserving it from external danger. By ministrant functions are meant those tmdertaken for the purpose of advancing the interests of the state; those which it has been thought convenient or expedient to have performed by government, though not actually necessary to the existence of the state. Such are, for instance: the regulation of trade and industry by such means as the coinage of money, the estabhshment of stand- ard weights and measures, and the passing of tariff and navigation laws; the regulation of labor; the execution of internal improvements; the maintenance of postal and tel- egraph systems; the maintenance of waterworks, lighting plants, etc.; sanitation; education; care of the poor and incapable; care of forests and like matters; and sumptuary laws, such as prohibition laws. 21. Taxing Power. For the performance of these func- tions government must have money or the means of obtain- ing it. The men who have left the regular businesses of life for a time in order to devote themselves to the perform- ance of pubUc work (soldiers, sailors, policemen, judges, legislators, clerks, consuls, ministers, governors, etc.) must be paid for their services. Moreover, material means must be provided for the successful carrying out of the purposes of government. Buildings and ships must be constructed, munitions of war must be provided, books must be printed, and all must be paid for. Governments have, therefore, 20 CIVIL GOVERNMENT been given the right to demand of the citizens the payment to the state of a portion of their wealth for the purpose of pubhc expenditure, i.e., governments have been given the right to levy and collect taxes. 22. Eminent Domain. Not only, however, has govern- ment been given this right of taxation, by which it demands weahh equally or proportionately from all citizens; it has also been given the right of eminent domain, by which it demands the surrender of private property by some citizens only, not by all. For instance, it may happen that the good of the community, the state, or the nation, may demand that a public building (a post-office or a custom-house, a navy-yard or a raihoad) occupy of pass through a parcel of land owned and occupied by an individual. In all such cases, where it is clear that the general good will be pro- moted, any property of the individual may be appropriated by the government. Whenever property is thus appro- priated, government recompenses the individual by giving him an equivalent in money. 23. Civics : Its Meaning. We may now return to our defi- nition of civics with a fuller comprehension of its mean- ing. It is hoped that such terms as society, government and the state have gained in meaning for the student; and if they are clearly understood, our simple definition of civics as the science of government and of the relations of the citizen to the government will serve as well as a more elaborate one. It is hoped also, that the student has gained some idea of the wide scope of the subject on the one hand, and of its intimate relation to the affairs of his every-day life on the other. 24. Civics: Its Nature and Importance. In applying the term " civics " to the study upon which we are about to enter, GOVERNMENT: ITS ORIGIN 21 we are in reality laying claim to more than we are entitled to. Civics in its true sense is a study, not of the poHtical institutions of some one particular nation hke the United States, but of the fundamental principles underlying all government, whenever and wherever they may find applica- tion. What we are to study is not civics in this broad sense, but civil government in the United States. Nevertheless we should not lose sight of the inspiring fact that we are concerned with a part of one of the greatest sciences with which the human mind has busied itself. At the same time our study is of fundamental practical importance not only to the mule voter but to every man, woman, and child in the community; for the happiness and comfort of man- Idnd depend, it is hard to say how largely, upon the action of the government under which he lives. Almost his every interest is touched and modified by government. Finally, almost every one in the United States has a voice, either directly or indirectly, in deciding what shall be the ultimate form of our government as- well as in determining its ob- jects and functions. Library References. — Ashley, §§ i-8, 24-29, 33-36; Macy, First les- sons, Chaps. XXI, XXV-XXVI; Dawes, pp. 37-43; Hinsdale, pp. 9-16; Wilson, Chaps. I-II, XV-XVI, §§ 1154-1160; Encyclopsedia Britannica, Article on Government; Century Dictionary; Lalor, Articles on Government, Government Intervention, Taxation. QUESTIONS ON TEffi TEXT 1. Define civil government. 2. Is civil society a voluntary association? Give a reason for your answer. 3. Define state. 4. State two theories of the origin of government. 5. Define government. Why is government a necessity among men? 22 CIVIL GOVERNMENT 6. Define anarchy. 7. Show the necessity of laws, and state two limitations imposed by law on individual liberty. 8. Mention two purposes for which governments are instituted. Under what circumstances is revolution justifiable? 9. Show how public opinion operates as a check against abuses of government. How does selfishness and difference of opinion make government necessary? 10. Define right. What are civil rights ? Can they be forfeited ? Give a reason for your answer. 11. Distinguish between civil rights and political rights. Men- tion three civil rights. 12. What are political rights and how may they be forfeited? Is the right to vote at elections a political or civil (natural) right? 13. Explain and illustrate the meaning of the following state- ment: "Where a right exists, a duty always exists with it." 14. What do you understand by civil liberty? 15. Define taxation. Explain why the power to levy taxes is necessary to government. What possible danger is there in this power? By what right does government impose taxes on the governed ? 16. Upon what principle is the right of taxation based? 17. Under what circumstances has the government a right to take the property of an individual without his consent? what is the right called ? 18. Explain the importance of the right of eminent domain to a national government. 19. Give two reasons why a knowledge of the principles and workings of government is necessary for the American citizen. CHAPTER 11 FORMS OF GOVERNMENT 25. Variety of Forms, Even the very young American abroad soon becomes aware of the fact, whether he under- stands its significance or not, that he is Uving in the presence of political institutions different from those at home. He is told that on such and such a day the king or the emperor will pass through a certain street and that if he secures such and such a position, Jie may possibly catch a glimpse of him. He hears of legislative bodies with strange names and pos- sessed of powers very different from those of the congress of the United States. He meets with government ofl&cials whose duties have no counterpart in his home government. In his study of history also he can hardly make a beginning without coming upon political institutions of which he knows nothing by experience. And this all means simply that gov- ernment, whose legitimate object is everywhere the same, has assumed and is still assuming a great variety of forms in order to accomplish its end. 26. Aristotle's Classification. Since the time of the Greek philosopher Aristotle, governments have generally been classified as monarchies (the rule of one), aristocracies (the rule of the few), or democracies ' (the rule of the many). * This and the term "ochlocracy "are not Aristotle's terms, but it is be- lieved that they will convey his meaning more accurately than would his own terms. 23 ■24 CIVIL GOVERNMENT These Aristotle considered the three standard or legitimate forms of government, each of which he believed tended constantly to pass into a corresponding perverted form. To the monarchy corresponded the perverted form of the tyr- anny or despotism; to the aristocracy, the perverted form of the oligarchy; to the democracy, the perverted form of the ochlocracy (mob rule or anarchy). He believed that states passed through a regular cycle of changes. Beginning as monarchies, they degenerated into tyrannies, in which the ruler used his power, not to further the interests of his sub- jects, but to oppress them. Wheii this became unbearable, a few men of culture and character gained control of the government, and the state became an aristocracy (the rule of the best). This in turn degenerated into an oligarchy, in which the few who held the power did so not by virtue of character, but by virtue of birth or wealth. This oligarchy becoming in turn intolerably oppressive, was overthrown by the great body of citizens, and a democracy was instituted, which soon degenerated into mob rule. From this the state could be rescued only by the power of some great leader, who thereupon himself assumed the reins of government, making the state again a monarchy and completing the cycle. , 27. Inapplicable to Modem State. Aristotle's classifica- tion, based upon what he knew of the history of states and upon what he saw about him, represented very accurately the conditions of his time. Naturally enough it does not fit in perfectly with modern conditions. The great modem state was a thing undreamed of in Aristotle's philosophy. In his time there was no huge British Empire upon whose doininions the sun never sets. There was no Czar of all the FORMS OF GOVERNMENT 25 * Russias, ruling as absolute monarch over millions of peoples difiEering widely in race and culture and over a territory inconceivably vast. There were no great federal states with populations bound indissolubly together by the ties of na- tional unity, like the German Empire and the United States. There was just the ancient city state, made up of a single city with a very limited amount of outlying territory, occa- sionally possessed of a greater or smaller number of de- pendencies over which it exercised no very definite or regular control, and now and then acting temporarily as a member of a league or loose confederation of similar states. The idea of popular government, of democracy in the modern sense, was a thought as yet unborn. 28. Applicable to Earlier Forms. If we approach this matter of the classification of states historically, we shall find even among very early forms of government some that do not seem at first glance to fall into Aristotle's classifica- tion. Tribal government is the earliest known form of gov- ernment. To be sure, the clan preceded the tribe and may be regarded as the germ out of which political organization developed; but its government is rather a matter of family discipline than of true civil government. In the tribe the authority of the head or chief is not merely paternal or patriarchal. It may be that, but it is more; it is political. Now the fact that each tribe has its paramount chief indi- cates clearly where tribal government belongs in Aristotle's classification. It is the rule of one, a monarchy. So also with patriarchy (the rule of the father), which is sometimes given as a separate form of government characteristic of a very early period of history. Theocracy, or government either directly by God or indirectly through his priests, also 26 CIVIL GOVERNMENT sometimes given as a distinct form of government, may be regarded as either a monarchy on the one hand or an aris- tocracy or an oligarchy on the other: a monarchy, if God is conceived of as ruUng directly, an aristocracy, if He rules through a select few who seek to promote the true objects of the state; an oHgarchy, if those objects are perverted. 29. New Classification Necessary. Thus it is seen that these earher forms of government fall readily enough into the old classification. The difficulty arises when we come to deal with the modern state. Monarchies still exist, to be sure, though in many respects they differ very widely from the ancient conception of the monarchy. Aristocracies, on the other hand, have disappeared from the modem po- litical world. Great Britain, a hundred years ago, might still possibly have been pointed to as an example, but with the extension of the franchise (the right to vote) during the last century, that aristocracy also passed away. Finally, the modern republic or democracy is truly modem. It had not entered into the mind of the ancient world to conceive such an idea. If we hope then to secure a satisfactory classifica- tion of modem states, we must make a new one, or at least modify the old one to make it fit modem conditions. 30. What is Sovereiguty? Before we attempt to make this classification, however, we must make clear, if possible, another very important political term, namely, sovereignty. We are all familiar, of course, with the word " sovereign " as applied to a king or an emperor; and if a foreigner coming to our country should ask us, "Who is your sovereign?" prob- ably most people would answer unhesitatingly, "We have none." Now, as a matter of fact, a sovereign exists in every state, no matter what its form; in the United States no less FORMS OF GOVERNMENT 27 than in Russia; only in tEe one case sovereignty is vested in the whole body of adult male citizens, in the other in a single individual. Sovereignty may be defined as the su- preme power by which a state is governed, whether that power be vested in an individual or in a number of individ- uals. It requires considerable care in some cases to deter- mine exactly where in a state the supreme authority is to be found. It is by no means to be taken for granted, because a country has a king and calls itself a monarchy, that the nominal sovereign is the real one. The British monarch exercises less real power in the government of the British Empire than does our president in the government of the United States. 31. The Unitary State. States may be classified as (i) single or unitary states, (2) confederations, and (3) federa- tions or federal states. Let us see if we can make clear the differences between these forms. The single or unitary state is the simplest form of the state. In it the national government exists quite independently of any minor com- munities or governments that may exist within it; while they, on the other hand, owe to it not only such powers as they possess but usually their very existence. They are mere subdivisions of the national government. More- over, in this form of the state the general government operates directly not only upon such minor communities, but upon the individual citizens. In short, there is in the unitary state no suggestion of a division of sovereignty between two governments, one the national government, the other a subordinate government such as our state govern- ments. France and Great Britain are examples of unitary states. 28 CIVIL GOVERNMENT 32. The Confederation. As to the confederation, it is sometimes questioned whether it can properly be called a state at all, since it very rarely if ever possesses the dis- tinguishing characteristic of the state, i.e., complete sov- ereignty. It is a union of states for certain definite pur- poses, particularly the purpose of defence, generally not very permanent in its character, in which the separate states retain their independence, delegating only certain portions of their authority to the union, which acts merely as their agent. Its members are not, as in the unitary state, separate individuals, nor does it deal directly with the individual. It has, as Mr. Bryce says, "no right of taxing him, or judging him, or making laws for him;" that power belongs only to the states. At the same time, in its relations with other states the confederation, so long as it exists, presents much the same character as the completely sovereign state and must be dealt with by such states in practically the same way. Perhaps the most famous confederation of ancient times was the Delian Confederacy in Greece. In modem times tliere have been several confederations of German states, resulting finally in the formation of the German Empire, which is a federation ; while a still more famiHar instance is our own gov- ernment as it was under the articles of confederation. 33. The Federal State. Examples of the unitary state have existed from very ancient times. Confederations also of longer or shorter duration have been formed from time to time throughout the course of history. The federal state is, on the contrary, a modem political development. In a way it may be said to stand between the unitary state and the confederation; or perhaps it would be more accurate to say that it combines the characteristics of both. Like the FORMS OF GOVERNMENT 29 confederation, it is' a union of states; but unlike it, it is itself as unquestionably a state as is the most powerful of unitary states. The German language indicates very clearly the difference between them by calling the confederation a Staatenbund, the federal state a Bundesstaat, i.e., to use Mr. Fiske's very satisfactory translation, the confederation is a band 0} states, the federation is a banded state. Like the unitary state, it has a direct claim to the obedience of the individual citizen; but unlike it, the subordinate communities are not mere subdivisions with powers delegated to them by the general goverimient. In some spheres of state action they are completely independent states. In others, namely, in matters pertaining to the common interest, the union alone is supreme. Neither the national government nor the state government is completely sovereign. Sovereignty is in a way divided between them. To give a more formal definition, a federation is a state made up by the union of other states that have permanently surrendered their right to act independently in matters pertaining to the common in- terest, while they have in other respects retained their com- plete independence. Switzerland, the German Empire and the United States are examples of the federal state. 34. Further Classifications. Whether a state be unitary, confederated, or federal, it assumes in modern times one of two forms: it is either frionarchical or democratic. Monar- chies are subject to two further classifications: (i) they are either absolute, where the power of the monarch is left un- controlled, or limited, where the power of the monarch is controlled by law; (2) they are hereditary or elective, accord- ing as the office is transmitted to the monarch in the line of descent or as he is chosen by the votes of his subjects or 30 CIVIL GOVERNMENT of a part of them. Democracies likewise assume two forms: they are (i) pure democracies, in which aU the members of the community share directly in the government; and (2) representative democracies or repubhcs, in which the gov- ernment is carried on by a comparatively smaU number of persons, who have been chosen by the whole body of citizens to act for them. Of the above classifications that into hered- itary and elective monarchies is probably sufficiently clear. The others require some further consideration. 35. Absolute Monarchy. Among the great civihzed na- tions of to-day the absolute monarchy is rare indeed. Russia and Turkey are the only countries in Europe that can be so classed ; and even Turkey possesses a nominal constitution, though, in actual practice, no other law than the will of the Sultan is enforced. Where the absolute monarchy does exist, however, as in Russia, it differs very materially from the absolute monarchy of antiquity. The latter was governed, not by what we now call law, but by custom — rules of action that had been handed down from time immemorial and that bound the monarch as firmly as they did his hum- blest subject. The reign of this customary law the monarch could not disturb. He could only issue commands covering specific cases and affecting particular individuals. Not so -with the absolute monarch of to-day. He may legislate on as large a scale as seems to him good; not issue edicts only, covering particular cases, but make general rules of law universally applicable. He may do that to-day, and to- morrow he may sweep it all away with a word, for his word is the only law. In short, the absolute monarch of to-day can wield a power that the reign of custom made quite im- possible to the ancient monarch. In spite of this, however FORMS OF GOVERNMENT 31 the ancient monarchy as contrasted with the modem limited monarchy was essentially an absolutism. 36. Limited Monarchy. The modern limited monarchy, called also the constitutional monarchy, is one in which the monarch is limited in the exercise of his power by the con- stitution of the kingdom. The extent of the limitations imposed varies greatly in different countries, and the result- ing governments shade off from monarchies strongly tinged with absolutism to monarchies more democratic in some re- spects than the United States. All the advanced governments of the world, no matter what their form, have become during the last hundred years so deeply penetrated by the demo- cratic idea that to-day we are quite justified in saying, as one writer does, that monarchies exist only by democratic consent. 37. Pure Democracy. There remains to be considered that form of government toward which all modem govern- ments seem to tend in principle, at least, if not in form. The pure democracy may be passed over lightly. Assemblies in which all the people appear in order to take part in the discussion and to vote, become obviously impossible as soon as the body politic attains any considerable size. The pure democracy as a form of general government, i.e., as a form of government for the whole people, has, therefore, passed out of existence among civilized nations. As a form of local government it still exists in this country in the town meeting and will be considered in its place. (§ 377.) 38. Representative Democracy, The democracy of the modern world has assumed another form; it has become the representative democracy or the republic. To be sure, this is not the only respect in which the ancient democracy differed from the modem. To us even the most democratic of 32 CIVIL GOVERNMENT ancient democracies looks much more like an aristocracy or an oligarchy. It was always government by a class, and that class usually a minority of the whole population. But even with its very limited franchise the ancient democracy failed, because it either was in the beginning or soon became too large and unwieldy to remain a pure democracy, and it never hit upon the happy expedient of representation. 39. Representation. This scheme, by which the political powers of a whole class or body of individuals are delegated to a single individual who acts as their agent, had been in use among the ancestors of the English people even before they left their homes in North Germany and Denmark to found a new nation in the island country to the west of them; nor have their descendants ever relinquished their hold upon it. Of course, representation has not always meant repre- sentation of the whole body of citizens. Great Britain has been during the greater part of her history not a representa- tive democracy, i.e., a republic, as she now is (for Great Britain in spite of her monarchical form belongs in reality among the republics), but a representative aristocracy or ohgarchy. Nevertheless it is to our English ancestors that we owe this great principle of representation. What our Amer- ican forefathers did was to apply it not to a class but to a whole people — in other words, to democratize it. That, however, was a long step in advance. It meant that they had founded the first great nation in the world whose govern- ment seemed to offer a solution for the old problem of how to maintain democratic mstitutions in a country without placing impossible and undesurable restrictions upon its growth. Whether the problem has even yet been com- pletely solved remains to be seen. FORMS OF GOVERNMENT 33 40. Constitutional Government : Origin. Besides the grow- ing tendency toward democracy shown by nearly all mod- ern governments, another closely related fact should be noted in regard to them. Nearly all modern governments either have been from the first or have become constitutional. Perhaps, indeed, that is only another way of saying that they have become more democratic. By a constitutional government is meant, of course, one that exists subject to a constitution; but we can perhaps best come at our definition of a constitution through a little sketch of its history. While the constitutional government is of comparatively modern origin, we find the idea that is always involved in a consti- tution, namely, the idea of an agreement between ruler and people or between the people themselves, existing from very early times. The central idea in early Jewish history is the covenant (i.e., agreement, contract) between Jehovah and his people, while among the Romans the idea of the con- tract was adapted to the daily relations of life to a greater extent than in any other nation of antiquity. A contract may be defined as an agreement entered into by two or more persons mutually binding them to do or not to do a certain thing. The EngUsh people were thoroughly familiar with both the Jewish covenant and the Roman contract. The idea of agreement contained in them was first appUed to pohtical affairs in England in the form of the charter, which was a written concession from the king to a group of per- sons, by which he agreed to confer upon them certain privi- leges in return for certain duties which they were to render him. Such contracts were used largely for purposes of trade and colonization. Sometimes, however, they were purely political in character, as, for instance. Magna Charta 34 CIVIL GOVERNMENT or the Great Charter reluctantly granted by King John in 1215, now the foundation of the British constitution; some- times partly so, like the charters granted by the Enghsh government to some" of the American colonies, which were made to serve to a great extent the purposes of a written con- stitution. 41. The Written Constitution. Long famiharity with the Jewish covenant and the use of the contract and charter, together with a wide spread belief in the then very popular "social compact" theory (§7) of the origin of government, turned English attention in the 17th century very clearly toward the written constitution; and several attempts at and suggestions for such a constitution were made without per- manent result. It was among the American colonists, who had brought the idea with them from England, that the document often called, perhaps not quite accurately,' the first written constitution known to history was actually wrought out. This document, known as the Fundamental- Orders of Connecticut, drafted in 1639 ^J the people of the three towns of Windsor, Hartford and Wethersfield, and confirmed by Charles II in 1662, created the government under which the people of Connecticut lived until that state had been for nearly thirty years a member of the union. 42. The Unwritten Constitution. Not all modem gov- ernments, however, are founded on written contracts ; nor must it by any means be supposed that because a govern- ment lacks such a document, it is, therefore, not a constitu- tional government. Constitutions may exist quite as well in the form of precedents or laws generally recognized as the basis of the government without being committed to writing ' See Political Science Quarterly, vol. 14, pp. 251-280. FORMS OF GOVERNMENT 35 and labelled as such. Under such an unwritten constitution the people know just as well what to expect of their rulers as they do in the United States; the principles on the basis of which government is operated are just as thoroughly es- tabHshed. If, then, we define a constitution as the funda- mental law which determines the form of government and defines and Umits its powers, we shall be able to include under the definition both the written and the unwritten constitution. 43. Rigid and Flexible Constitutions. We sometimes hear also of rigid and flexible constitutions. A constitution that has been written out, with each department of government carefully described and with every privilege mentioned, is likely to be much more difficult to change than one that has been expressed in no precise terms and with the general outlines vaguely sketched by usage. A constitution of the former sort is called rigid; of the latter kind, flexible. 44. What is the Best Form of Government ? The ques- tion is not infrequently asked, "What is the best form of government?" It is not a question that can be answered dogmatically. There is no absolutely "best" form of gov- ernment — best under all conditions. To conclude that re- publicanism, because it has been successful in the United States, would be an equally desirable form of government for the inhabitants of Borneo, let us say, or for the Chinese Empire, or for Russia, would be simply absurd. Perhaps the most we can say is that the best form of government is that through which, under given conditions, the state can best accomplish its end, whether that form be monarchical or democratic. It is nevertheless true that there are certain advantages and certain disadvantages naturally inherent in 36 CIVIL GOVERNMENT each of these forms. The monarchy is naturally a strong centralized government, i.e., a government in which great power rests in the hands of a single person; the repubUc, on the contrary, tends naturally toward decentralization, i.e., division of pohtical power among all the members of the body pohtic. 45. Centralization. The circumstances under which our own government came into existence have tended to fix very firmly in American minds the erroneous beHef that centraHzation is necessarily an evil. Under some circum- stances it may be the best possible form of government. In the first place it possesses the sometimes indispensable ad- vantage of being strong on the administrative side, i.e., of doing promptly and efficiently what it sets out to do. In a nation struggling for its existence against hostile nature or hostile men or both, this power of rapid and effective exe- cution becomes absolutely indispensable. Even highly de- centralized governments, such as that of the United States, have recognized this by granting to the chief executive ex- traordinary powers in time of war or similar emergencies. It is sometimes argued also that a better government can be obtained through a single man or a few men specially trained for their work than through a whole people, the great mass of whom are either too ignorant to know what is desirable, too indifferent to care, or too wicked to wish for it. The specially trained man — the political expert, so to speak — or he and his colleagues together, would be able to view impartially the whole field of governmental action, and then to act, not in the interest of a class or of a bare majority, but of the whole people. Such a government, it is argued, would free us from the so-called "tyranny of the majority." FORMS OF GOVERNMENT 37 Further, this concentration of power in the Imnds of one or of a few means also concentration of responsibihty. Know- ing where the power hes, we know also where to lay the blame and how to punish the wrong-doer in case that power is abused. On the other hand, there exists always in the centralized government the possibihty that the ruler may fail to regard himself simply as a depositary of power to be used for the benefit of those who bestowed it, and may seize the opportunity to exploit his people in his own interest. More- over — it tends to deprive the people of initiative, of self-re- Uance, of the willingness to undertake things for themselves. 46. Decentralization. From what has been said about the advantages and disadvantages of centralization it is per- haps easy enough to infer what are the principal arguments for and against decentralization. The verdict of history seems to be that for a settled industrial population, whose chief business in the world is their own development and the development of their country's resources, the decentralized, repubUcan form of government is the most satisfactory. It furnishes on the whole the surest means of securing the interests of the whole people; it leaves individual initiative intact; it educates the people to political responsibihty. On the other hand, it is likely to be administratively weak; there exists always the possibility that through the ignorance or indifference of the mass of the people low political ideals may prevail; and, since political responsibility is diffused, there is danger always of a weakening of the sense of re- sponsibility. Library References. — Ashley, §§9-13, 16-23; Wilson, §§1161-1181; Fiske, pp. 19S-201, Chap. VII; Hinsdale, pp. 17-24; Lalor, Articles on Monarchy, Democracy, Centralization and Decentralization, etc} 1 Woodburn, pp. 47-58. , 38 CIVIL GOVERNMENT QUESTIONS ON THE TEXT 20. Define three forms of government known in history. Dis- tinguish between them, giving an example of each. Mention the three most common forms. Give one element of strength and one of weakness in each form mentioned. 21. Define the following forms of government and give an ex- ample of each of them: (i) monarchy; (2) aristocracy; (3) oligarchy. 22. What is the earliest known form of government ? 23. Mention one advantage and one defect of patriarchal gov- ernment. What conditions make such a government impossible among civilized people at the present time? 24. What is meant by a sovereign state ? 25. What is a democracy? a republic? What republic of the present time approaches most nearly to a pure democracy? Give reasons. 26. Explain the diSerence between a pure democracy and a republic. Give an example of each. 27. Which is the older form of government, a republic or a pure democracy ? Explain. 28. Distinguish between a limited monarchy and a republic. Give an example of each. 29. Explain the vital importance of the principle of representa- tion. 30. Show that in a democratic form of government the right to vote implies the duty to vote. 31. Show why the education of the masses is important in a republic. 32. Should an elementary education be given in this country at the public expense? Give a reason for your answer. 33. Distinguish between a despotism and a democracy. Give an example of each. 34. Define charter; constitution. 35. What is the object of a constitution? Illustrate by citing the constitution of the United States. Mention the first written constitution in history. 36. How many kinds of constitutions are there ? 37. How is a written constitution formed? how is it adopted? Explain the advantages to the people of a written constitution over an unwritten constitution. Illustrate by reference to the govern- ment of the United States. FORMS OF GOVERNMENT 39 38. What form of government do you consider best? Give a reason for your answer. 39. Mention the principal objects of government. Under what form of government are these objects best attained? Prove your statement. 40. State the advantages or the disadvantages of a strongly centralized government like that of Russia as compared with a government like that of the United States. 41. State two conditions under which a monarchy would be a better government than a republic. Give reasons. 42. Contrast an absolute monarchy with a republic, showing advantages and disadvantages of each. 43. State the advantages and defects of a republican form of government. 44. Is a republic the best form of government under all circum- stances? Give reasons. CHAPTER III COLONIAL GOVERNMENT IN AMERICA: ITS ORIGIN AND DEVELOPMENT TO THE CONSTITUTION 47. Introductory. We are not concerned here with the circumstances, however interesting, which prompted the set- tlement of so large a portion of America by Enghsh colo- nists. What does concern us is the character of the various governments established by them in those thirteen provinces, and the development which those governments underwent up to the time when they united to form the nucleus of a great federal state. For it should not be supposed that the makers of our federal constitution, great as was their work, were miraculously creating a government where nothing of the kind had existed before. Besides the clearly defined body of political principles that seems to be the birthright of every community of English descent, and besides their knowledge of the English constitution, they could rely upon their experience in state and constitution building in their own country. They were familiar with the history of the colonial governments up to the time of their transition to states, many of them had participated in the formation of state constitu- tions, and all had had opportunity to observe the working of government under state constitutions already adopted. 48. Charter Government. From the beginning, Enghsh colonists coming to America brought with them govern- ments ready made, as it were, though not all of one type. The earliest form of colonial government in this country was that known as charter government. Colonization com- 40 COLONIAL GOVERNMENT IN AMERICA 41 panics secured from the king a sort of written permit called a charter, defining, usually very loosely, the geographical boundaries within which settlement was to be made, and determining much more clearly the rights and privileges of the colonists. These charters outlined a form of gov- ernment for the colonies sent out under them, and were in reality a sort of imperfect written constitution. The governments established under them were democratic in their nature, the colonists being given the power of select- ing for themselves a governor, a council, and an assembly, except in Massachusetts, where after 1691 the governor was appointed by the king. The governor and his council were not, as might be supposed, charged merely with the execu- tion of the laws; they exercised also considerable legislative power. Important laws had to be referred to the king for his approval. Courts were established by the assembly; the judges were appointed by the governor. Except in Connecticut and for a time in Massachusetts, appeals from these courts were addressed to the home government. Of the original thirteen colonies, four — Massachusetts, Rhode Island, Connecticut, and Virginia — began as govern- ments of this type; but Virginia was soon deprived of her charter (1624), so that at the outbreak of the revolution only three charter governments existed. 49. Proprietary Government. Those colonies that did not begin their existence as charter colonies were originally of the form known as proprietary governments. In the case of these colonies the grant of territory was made by the king, directly to an individual called a proprietary, who held it after much the same fashion as the feudal lords held theirs in earlier times. Although by the king's grants the pro- 42 CIVIL GOVERNMENT priptaries were given very extensive powers of government, most of them as a matter of fact established governments nearly as liberal as those existing in the charter colonies. The governor and council, however, as weU as the judges, instead of being elected, were usually appointed by the proprietary; and important laws had to receive not only his sanction but, except in Maryland, that of the king as well. Of the eight colonies that began as proprietary governments only Maryland and Pennsylvania and Delaware retained this form of government throughout the period of colonial history. 50. Royal Province. We find, then, that 'seven out of the thirteen colonies changed their governments during colonial times from the charter or proprietary form to some other; and this other was the third and last form of English colonial government in America — namely, the royal prov- ince. In these colonies the government came more directly into the hands of the mother country, though even here the colonists retained no small measxire of independence. The king appointed the governor and the governor's council, the latter to act not only as an advisory body to the governor — a sort of cabinet — but also as the upper house of the co- lonial legislature — a senate. The governor had the right to veto any law passed by the colonial legislature as well as the power of assembling and dissolving that body. In him also resided the power of estabhshing courts and raising mihtary forces. Of course, all important laws were sub- mitted to the king for final approval or disapproval. AU this, however, appears much more formidable than it was in reality, for the people everywhere retained the right to elect representative assemblies; and since these alone had COLONIAL GOVERNMENT IN AMERICA 43 the power to lay taxes, the king's representatives found their high-sounding powers somewhat illusory. 51. Governmental Similarity in the Colonies. Thus, al- though there existed, at the outbreak of the revolution, three forms of English colonial government in America, the thirteen colonies showed a decided similarity in their polit- ical arrangements. "The differences related to the charac- ter and method of fiUing the governor's office." Two colo- nies selected their own governors, but in all the others that official was appointed by the king or the proprietary. Each had a legislative assembly chosen by the people, which con- trolled the expenditure of money and formed the lower house in the colonial legislatures. Each likewise had a governor and council, who, except in Pennsylvania and Delaware, participated in legislation. The council also acted as advisers to the governor and assisted him in the execu- tion of the laws. The colonists were entitled everywhere to the rights and privileges of English citizens hving in England. It should be noted also that everywhere the characteristic features of the English government were reproduced in the new country. 52. Transition to States. There came a time, however, in the history of these thirteen divisions when they ceased to be called colonies and became states. The essential charac- teristic of a colony is its dependence upon a mother country. There came a time, then, when they ceased to have a mother country and became independent communities. The events that brought into existence the declaration of independence need not be recounted. Some changes in the forms of gov- ernment were inevitable when the ties were broken that bound the colonies to the mother country. As a matter of 44 CIVIL GOVERNMENT fact, the reorganization of the colonial governments antici- pated by' more than a year the separation of July 4, 1776, As early as May, 1775, Massachusetts asked the advice of the continental congress on the subject of changing her form of government in view of her hostile relations with England. Three other colonies followed her lead, and con- gress finally advised them to establish a satisfactory form of government "during the continuance of the dispute with Great Britain." In May, 1776, congress took a more decisive step, one that really involved the complete inde- pendence of the colonies, by recommending "the respective assemblies and conventions of the United Colonies ... to adopt such a government as shall in the opinion of the rep- resentatives of the people best conduce to the happiness and safety of their constituents in particular and of America in general." Thus in aU the colonies but three the change from colony to state was effected before the declaration of independence; but in many states the change was regarded as provisional, looking forward to a reconciliation with Eng- land. The governments adopted were all based on written constitutions. In most cases the change from colony to state was effected in haste, and m two colonies, Connecticut and Rhode Island, a simple resolution of the colonial legisla- ture perpetuated the old government, omitting, of course, the king. 53. The Early State Governments. The form of govern- ment provided by these state constitutions was very similar to that with which the states had been acquainted as colonies. No radical changes were effected; for a people does not break suddenly with old customs and traditions. The gov- ernments were repubUcan in form, though not every male COLONIAL GOVERNMENT IN AMERICA 45 person was allowed to share in them, the right to vote rest- ing usually on a property qualification/ The old colonial legislatures were replaced by state legislatures consisting usually of two houses — a lower house apportioned accord- ing to population and elected by the qualified voters; an upper house equivalent to the old colonial council, in some states elected, in others appointed, and possessed of a higher property qualification than the other. The oppressive con- duct of the king's agents, the royal governor and his council, had made the colonists extremely suspicious of a strong executive ; and with the possible exception of Massachusetts, the new states gave the governor Httle real power. In four states there was a plural executive. The old colonial sys- tem of courts was maintained with few changes. Perhaps the most important of those that were made was the pro- vision for a final court of appeal in all the states but Georgia, and for a change in the method of selectkig the judges. In some states they were appointed; in others, elected. In almost all the states their independence was secured by pro- viding for long terms. 64. Local Government: The Town. In addition to these general provincial or colonial governments, however, there were in each colony subordinate forms of government. These had a greater influence, perhaps, in shaping the po- litical character of the American people than had the gov- ernments of the larger areas just described. Of these sub- ordinate governments the most important in many respects was the town or township. This form of local government is older than the Enghsh nation itself. When- the Germanic tribes that were destined to grow into that nation left their • Montgomery, p. 146. 46 CIVIL GOVERNMENT homes in North Germany and migrated to England, they brought with them this thoroughly democratic form of gov- ernment; and not only that, but they caUed it by the same name. Our word " town " is just the old Anglo-Saxon word tun in modern dress. Tun meant originally the wall or boundary about a village, maintained probably for purposes of defence; but later the word came to designate first the enclosed space and then the community and the govern- ment peculiar to it. All the important business of the tun was transacted in a tungemot or tun moot (town meeting) made up at first of freemen, later of tenants, as the towns often fell into the hands of great nobles. The most impor- tant powers of this meeting were to enact "by-laws" {i.e., etymologically, town laws) and to try petty offences. The chief ofBcers of the tun were the gereja or reeve and the hydel (beadle, or messenger), who were chosen by the people where the tun was free, but appointed by the lord where it was dependent. The town was also the unit of representation for the larger areas of government. 55. The Parish. Long before the settlement of America began, however, England had been divided not into towns only but into parishes. The parish generally coincided in area with the town, and was at first merely the town organ- ized for religious purposes; but when the towns, having for the most part fallen into the hands of the great feudal lords, had become manors and had lost many of their ancient privileges, self-government still survived to a very consider- able degree through the parish, which gradually became a civil as well as an ecclesiastical division. When the Pilgrims came to America in 1620, they left the lords of the manor behind then!. There was no longer any need for perform- COLONIAL GOVERNMENT IN AMERICA 47 ing civil functions through an ecclesiastical body; and the old term " town " or " township " became again the name of the local civil division, though the term "parish" was re- tained to designate the township as a reUgious division. 56. The Town in New England. There were several reasons why this very democratic form of local government was peculiarly adapted to the needs of the New England settlers. As we have already seen (§ 37), pure democracy can succeed only in communities of very Hmited size; and cir- cumstances in early New England all combined to keep the communities small, or rather to keep them compact. In the first place, the settlers, having come to the new world by congregations led by their own clergymen and desiring to worship in their own churches, naturally settled in some- what compact bodies about their churches. Moreover, they found the country ill-suited to farming on a large scale after the manner of the Virginia plantations, so that a majority of the people Hved on small farms close together. And finally, this compactness afforded needed protection against hostile Indians; though fear of the Indians would probably not have prevented the scattering of the colonists, had that seemed otherwise desirable. 57. The Town Meeting. In those colonies where town government was adopted the town meeting was the real core of political hfe. All the male inhabitants of legal age (in some colonies the additional qualification of church mem- bership was prescribed) attended the sessions, which were in some cases "frequent enough to encroach upon the oi:- dinary' business of the community." A chairman called a moderator was chosen by the assembled people as presiding ofiicer, and the minutes were kept by the town clerk. The 48 CIVIL GOVERNMENT business of the meeting was (i) to levy taxes for the purpose of paying the minister's salary,, providing for schools, etc.; (2) to choose town officers and representatives to the colonial legislature; and (3) to make by-laws regulating the construc- tion of fences, the laying of boundary lines, and the making of roads. The execution of the more important laws was intrusted to the officers chosen in this meeting. Probably the most important of these were the selectmen, — from three to thirteen in number, — the constables, and the town clerk. The selectmen were the financiers of the town and appointed many of the minor officers, the constable made arrests, and the town clerk kept the records. The judicial business was intrusted to one or more justices of the peace. 58. The County: Its Origin. While the town was so important a unit in New England, other forms of local gov- ernment were adopted and had a vigorous growth in other parts of the thirteen colonies. Probably next in importance to the town was the county. Here again is to be seen the reappearance of an English form of government in the new country. The American county traces its origin back to the time when the people of England Uved in tribes and were governed by chiefs. There came a time when the separate tribes were welded together to form an English nation. When this change came, the old Unes of division were not entirely -obliterated, the districts formerly occupied by the separate tribes being retained as shires (parts cut off) for the purpose of caring for the local needs of every part of the country. The shire, then, was a much larger division than the tun or town, and included within its borders many of these smaller units. It was not, however, later in origin, but developed side by side with the smaller unit. COLONIAL GOVERNMENT IN AMERICA 49 59. The Shire Becomes the Coxxnty. As the shire was larger than the tun, its government* partook more of the representative character than did that of the latter. Its moot or meeting was not primarily a law-making body, but a court for the trial of important cases and a means of collecting revenue to fill the national treasury. The shire- reeve (sheriff) was the financial agent of the king in the shire, besides being intrusted with the care of the criminals. The ealdorman ("elder" man) sat in the moot as the interpreter of the law for the assembled people. Long before the set- tlement of America, however, the shire had become gener- ally knovra as the county, i.e., a district administered by a count. This change, along with many others, was due to the conquest of England by the Normans. Not only did the shire become the county, but the ealdorman was replaced by the count, and the shire-moot became the county court. The functions of the shire were, however, retained. 60. Adoption of the County in America. This form of government, so materially different from town government, was introduced largely in the southern colonies, appearing first in Virginia. For a widely scattered population, such as that of Virginia soon became, town government would have been practically impossible even had the people desired it. The followers of Smith had indeed first settled in villages, but all the circumstances in early Virginia, operated against the building up of towns and in favor of the development of great plantations. The extreme fertility of the soil, favoring as it did the cultivation of great crops of tobacco, tended naturally toward the creation of large estates; and this ten- dency was facilitated by the rise of slavery. Moreover, nu- merous navigable rivers made it possible for most of the so CIVIL GOVERNMENT planters to transport their goods directly to England and to import their supplies directly from there; so that there was no occasion for the building up of market towns. 61. The Virginia County. Like its prototype in England the county in Virginia was primarily an area for the ad- ministration of justice, though the county court performed some other duties not distinctly judicial in character. This court consisted usually of eight justices of the peace, who were nominally appointed by the governor. As a matter of fact, however, the court really filled its own vacancies; for it was customary for them to nominate the candidates to be appointed by the governor. Besides exercising jurisdiction over certain civil and criminal actions and over the adminis- tration of wills, etc. — i.e., besides its ordinary judicial func- tions — the county court had the care also of the bridges and highways and assessed the county taxes. The mere enumeration of the duties performed by the county court, however, gives Uttle idea of the real importance of the county in the political life of the colony. It was the unit of repre- sentation in the colonial legislatu,re just as the town was that unit in New England; and in spite of the absence of a democratic assembly Hke the New England town meeting, the county vsrith its county court and its frequently recurring "court days," when people of all sorts and conditions came together at what we should now call the county seat, to buy and sell and to discuss public affairs, was a scarcely less influential factor in the development of poHtical Ufe than was the New England town meeting. 62. New England Adopts the County. Thus the town in New England and the county in the south were the prin- cipal means of caring for the local needs of the colonists. COLONIAL GOVERNMENT IN AMERICA SI The people of New England, however, soon found that the county provided for many needs that the town could not conveniently supply, and so introduced the county to sup- plement the town. The town, however, still remained the more important unit. This practice of adding the county seems to have been universal wherever the town developed, but the town was not as a rule adopted by those colonies where the county was introduced. Other forms took the place of the town — notably the parish, the hundred and the manor. 63. The English Parish. The parish has already been alluded to as the form assumed by the English town long before the settlement of America. Its affairs were admin- istered by vestrymen, who were chosen by the whole body of church members, or "rate-payers" as they were called. If it is remembered that this body was made up of the same persons who had been members of the town meeting, that it was, in other words, only the town meeting in its ecclesias- tical aspect, it will not be difficult to understand how it came about that the parish, after the growth of feudalism had turned the town into a manor, should inherit such portion of the town's privileges as did not pass into the hands of the barons. Thus it happened that the rate-payers in the English parish elected not only church officers, but surveyors of highways, collectors of taxes and overseers of the poor as well; and the parish still retained the right to enact by-laws. 64. The Parish in Virginia. This English parish reap- peared in Virginia and in some of the other southern colo- nies, but the Virginia parish was not a faithful copy of its original. In Virginia taxes were assessed and by-laws 52 CIVIL GOVERNMENT enacted, not by the whole body of church members, but by twelve men elected by the people. Thus even m the parish government was representative instead of purely democratic. After a time even representative government was given up, and these twelve vestrymen "obtained the power of filling vacancies in their own number," so that the parish became oligarchical in its character. This vestry "apportioned the parish taxes, appointed the church wardens, presented the minister for induction into office, and acted as overseers of the poor." The hundred was likewise an old Enghsh di- vision, as was also the manor; but neither was widely adopted in America. 65. The Mixed System. It was left for the great middle colonies of New York and Pennsylvania to develop, by means of a combination of both town and county governments, a system of local government that has been copied with some modifications throughout the United States. By a wise dis- tribution of powers between the town and the county there was produced "a vigorous town government possessing all the necessary means of self-help, cooperating with, and in some measure dependent on, a strong county administra- tion." The bond of connection was a county commissioner or supervisor, who corresponded to the selectman in the New England town, and was at the same time a member of the legislative body of the county. Under this organization the sheriff of the Virginia county and the important ofiicers of the New England town were retained with their more important duties, but the town meeting lost something of the importance that characterized it in New England. COLONIAL GOVERNMENT IN AMERICA S3 Library References. — Ashley, §§40, 42, 46-47, 51-76, 92-93 ; Macy, Chaps. I-IV, XIV-XVII ; Fiske, pp. 16-54, 57-80, 146-172 ; Hinsdale, Chaps. I-IV; Wilson, §§ 832-856, 995-1005, 1018-1028; Bryce, Vol. I, pp. 427-433" 589-593; Bancroft, Vol. V, pp. 111-125; Schouler, Vol. II, pp. 208- 215; McMaster, Vol. Ill, pp. 146-162; Channing, Chaps. II-III, pp. 198-200; Montgomery, pp. 145-148; Fiske, American PoUticalldeas, pp. 17-56; Fiske, Old Virginia and Her Neighbors, Vol. II, pp. 30-44; Thwaites, pp. 55-63, 109-iitfc 192-193; Hart, pp. 80-82; Tyler, Patrick Henry, Chap. XII; Roosevelt, Gouverneur Morris, Chap. Ill; Roberts, Vol. II, pp. 434-436; Stubbs, Constitutional History, Vol. I, Chap. V; Taswell-Langmead, pp. 17-19. QUESTIOWS ON THE TEXT 45. Describe two different forms of colonial government that prevailed in this country before the revolution. 46. Explain the origin and trace the development of the town as a unit of government; the county. 47. Describe the development of the town in England. Account for the transference of the town to America. 48. Describe the New England township and show in what respect it is (i) a direct government by the people; (2) a unit of representation. 49. (i) State briefly the origin and influence of the town meeting; (2) Why did the township become the unit of government in New England and the county in Virginia ? (3) What was the parish ? 50. Show the importance of the town in its relation to the prin- ciple of representation. Explain its importance as an aid to the maintenance of popular government. 51. Give historical facts tending to show the sources from which our ideas of the county are developed. 52. Describe the development of the county in England, and explain the modifications it has undergone on American soil. CHAPTER IV ATTEMPTS AT UNION (1643-1777) 66. Reluctance to Unite. Accustomed as we now are to thinking of our nation as a unit and of the union as indis- soluble, it is difificult for us to reaUze the separateness of the colonies, or to understand the reluctance with which they yielded to the slowly growing sentiment in favor of union. Between the formation of the first intercolonial league in America and the adoption of our federal constitution there elapsed almost a century and a hah, the last quarter-century of which was crowded with events of such a character as to compel recognition of the necessity of union; yet even then so imperfectly was the lesson learned that, after seventy years more, there was required, in order to teach it com- pletely, the costhest and bloodiest civil war known to history. 67. Influences Favoring Union. There were, of course, from the beginning strong forces operating to draw the colonists together; had there not been, our present union would have remained forever impossible. The colonists were nearly all of English descent, and all in a way An- glicized; for even where other elements had entered into the population, the English type had prevailed. They all spoke the EngKsh language; they were protestants in religion, how- ever fiercely controversies might rage between sects; they all possessed English ideas of political justice and Enghsh political institutions. Finally, and this was the immediately impelling force at each advancing step toward union, they 54 ATTEMPTS AT UNION SS were all threatened by the same enemy — at one moment the Indians, at another the Dutch, at another the French, at another the mother country across the sea. 68. Disintegrating Forces. With such motives as these impelling to union, the wonder is that it did not come sooner. The fact that it wa's so long delayed gives some measure of the forces tending in the opposite direction. It may fairly be said that, until the revolution was actually upon them, the colonies were more distinctly conscious of their separate- ness than of their unity, and, on the whole, more desirous of maintaining it. From the beginning every colony had been politically separate from every other; and if, as happened once or twice, a league was formed for the accomplishment of a specific purpose, the colonies concerned took good care to make it clear that they meant to surrender no part of their independence. In spite of their physical nearness there was no more political connection between New York and Virginia than between New York and the British pos- sessions in India. Both were more or less directly subject to the home government, and that was all. Even geograph- ically the colonies were less closely united than they seem to us now. Had they been planted along some great interior waterway like the Mississippi, commercial necessities would soon have forced them into some sort of union; but scattered as they were along the coast, each possessing its own coast line, its own harbors, and its own interior waterways, it was possible for them to remain for an indefinite period commercially independent of each other. Moreover, com- munication between the colonies was by, no means easy. In the stormy winter the voyage along the coast was dangerous and difficult; while the land journey, lying often through $6 CIVIL GOVERNMENT pathless wildernesses, was even slower and more perilous. To travel from Charleston to Boston by land required as much time and involved no fewer hardships than did a voy- age across the ocean. Industrial differences, too, kept the colonies apart. Here shipping was the chief industry; there wealth consisted principally of slaves; elsewhere the popula- tion was made up mostly of small farmers. And finally, it should be remembered, population was in many regions so sparse and governmental action so Httle felt either in the way of assistance or restraint, that many of the colonists hesitated to subject themselves to a new government, lest they should lose their cherished independence. Of local pride and patriotism there was enough and to spare; but it was only the stress of the approaching revolution that quickened into life the feeling of national unity. Until then, as has beeri said, "with the exception of the larger spirits, Carohnians were content to be Carohnians, Virginians to be Virginians, New Yorkers to be New Yorkers." 69. The New England Confederacy. In view of these disintegrating tendencies, all the pre- revolutionary attempts at union among the colonies are important. Xbey are the means by which was slowly formed the habit of acting to- gether, without which the revolution must have ended in failure, and which was destined to form a stable basis for the new-bom government. The first intercolonial union ever formed in America was a league entered into in 1643 by the colonies of Plymouth, New Haven, Connecticut, and Massa- chusetts, and known as the United Colonies of New Eng- land or the New England Confederacy. Later New Hamp- shire became a member of the union, but the two other New England colonies, Rhode Island and Maine, which we might ATTEMPTS AT UNION 57 have expected to find included also, were left out on religious grounds. The league grew out of the necessities of the time. Surrounded on all hands by enemies, with the energetic Frenchman grasping eagerly at coveted trading stations, with the sturdy Dutchman pushing steadily closer to their borders, with the wily Indian watching unremittingly for any sign of weakness, the New England colonies were forced to seek strength in union; particularly since the Eng- hsh government was engaged in a struggle at home too desperate to admit of its affording any protection to these distant colonies. 70. The Confederacy a Step Toward Union. In its na- ture the confederation was of the loosest sort, and Massa- chusetts refused on occasion to be bound by the agree- ment entered into on the formation of the league; but in spite of this the unibn lasted more than forty years, going to pieces finally in 1684, the same year in which Massachu- setts lost her first charter. There can be no question that the confederation was of the greatest assistance to the col- onies in the accomphshment of the ends for which it had been directly formed; but it could hardly have existed so long without producing, as its indirect effect, a completer sense of community of interests in the colonies concerned. 71. Albany Congress. Even before the dissolution of the New England confederacy, there had been suggested a plan for the union of all the colonies on a military basis. This suggestion had been made in 1660 by a royal commis- sion known as the council for foreign plantations, but nothing came of it. After the dissolution of the New Eng- land confederacy and during the long period of the wars with the French, combined action on the part of the colonies S8 CIVIL GOVERNMENT was frequently necessary, a number of conferences occurred, and a series of similar suggestions for union was made, the plans emanating now from the colonists, now from the home government, but none of them resulting in any action. Fi- nally, in 1754, occurred the conference or convention known as the Albany congress, called at the suggestion of the home government for the purpose, among other things, of devising some plan for concerted action on the part of the colonies in the event of another war with France. Seven of the thirteen colonies — New York, Pennsylvania, Maryland, New Hamp- shire, Massachusetts, Rhode Island, and Connecticut — sent representatives. The convention appointed a committee to draw up a plan of union and accepted the plan presented, which was principally the work of Frankhn. 72. Franklin's Plan. According to this plan the affairs of the united colonies were to be administered by a "presi- dent-general" and a "grand council," the latter to be elected by the colonial assemblies. The president-general was to be appointed by the crown and was to possess the veto power over the acts of the council. The grand council was to consist of forty-eight representatives, apportioned among the colonies according to "the proportion of money arising out of each colony to the general treasury;" but no colony was to have less than two representatives nor more than seven. It was to be the duty of the council to enact ordinances of general interest, to promote the general wel- fare, to appoint civil officers with the consent of the president- general, to provide for the defence of the colonies by appor- tioning the quotas of men and money to be raised by the various colonies, and to control the army. Though the plan had been unanimously accepted by the convention, it met ATTEMPTS AT UNION 59 with rejection at the hands of both the home government and the colonial assemblies, the colonists declaring that it gave too much power to the crown, the home government regarding it as too democratic. The convention, though it failed to effect an immediate union of the colonies, never- theless assisted in no small measure in making union ulti- mately possible; for it brought together for the first time leading men from nearly all the colonies and engaged them in discussions, which must have done much to break down local prejudices and to awaken a sense of common interest among the colonists. 73. Stamp Act Congress. Eleven years passed after the dissolution of the Albany convention without the meeting of another intercolonial congress. Then in 1765, after the British parliament had passed an act levying upon the col- onies a stamp tax, the revenue to be used toward the sup- port of a regular army in the colonies, there occurred the stamp act congress. It will be seen at once that this con- gress was very different from anything that had preceded it. All previous attempts at union among the colonies had been made either at the suggestion or with the approval of the home government for purposes of defence against some out- side enemy; and the sentiment in favor of union had never been strong encugh to render any of the proposed plans of union acceptable to more than a few of the colonies. By the passage and attempted enforcement of the stamp act the British government accomphshed at a blow the cooper- ation of the colonies that it had vainly tried to effect during the long period of the French and Indian wars; only now the efforts of the union were to be directed against the mother country herself instead of her old rival, France. 6o CIVIL GOVERNMENT 74. Work of the Congress. The congress, which had been called by the Massachusetts house of representatives, met in New York in October, 1765, with representatives present from nine colonies (Massachusetts, Connecticut, Rhode Island, New York,' Pennsylvania, New Jersey, Mary- land, Delaware, South Carohna) and promises of support from the rest. Though unquestionably a revolutionary body, having no right to exist under the British constitiition, the congress seems to have been made up for the most part of moderate men, who were able to content themselves with drawing up a declaration of the rights and grievances of the colonies, and petitions and memorials to the king and to parliament. Considering the state of excitement into which the colonies had been thrown by the attempted enforce-, ment of the stamp act, this seems to us now Kke mild ac- tion. As a matter of fact, the declaration of rights contained much that pnly the boldest spirits would have ventured to assert a year earlier. Affairs had been moving rapidly in the colonies. The stamp act congress no longer demanded, as Otis of Massachusetts had done in 1764, representation in the house of commons; it declared instead that "the people of these colonies are not, and, from their local cir- cumstances, cannot be, represented in the House of Com- mons," and that no taxes "can be constitutionally imposed on them, but by their respective legislatures." 75. Committees of Correspondence. During the nine years that elapsed between the meeting of the stamp act con- gress and that of the first continental congress, events were crowding each other rapidly in the colonies. It would be inexpedient to rehearse them all here. Our task is to trace as clearly as we can the growth of the movement ATTEMPTS AT UNION 6i toward a permanent union. In 1768, after the passage by parliament of further revenue acts, the Massachusetts legis- lature sent a circular letter to the other colonial assembUes suggesting concerted action on the part of the colonies, and received favorable replies. It was not until 1773, however, that a plan wg,s devised for keeping the colonies continuously in touch with each other and organizing them for effective action. This was brought about through colonial "com- mittees of correspondence." The year before, local com- mittees of correspondence had been appointed in the vari- ous towns of Massachusetts for the purpose of considering the rights and grievances of the citizens and ascertaining the state of public opinion in regard to them. This sug- gested to Virginia the advisabihty of similar committees in the various colonies". Accordingly in 1773 such a committee was appointed by the Virginia assembly, whose example was soon followed by the assemblies of Massachusetts, Rhode Island, Connecticut, New Hampshire, and South Carolina. Later the disturbances precipitated by the attempts to col- lect the tax on tea brought six more colonies into line, so that finally only Pennsylvania had no committee of cor- respondence. This was the longest step yet taken toward the pohtical union of the colonies. 76. The First Continental Congress. The first conti- nental congress was brought about directly by a series of parhamentary acts intended to put an end to such disturb- ances as had arisen in connection with the tea tax. Most of these measures were directed against Massachusetts; but the other colonies saw in them a menace as well to their own liberties, and the protest was general. New York and Rhode Island proposed a general congress. The Virginia 62 CIVIL GOVERNMENT house of burgesses appointed a day of fasting, and when dissolved for this action, immediately formed themselves into a convention and advised, among other things, annual intercolonial congresses. The actual call, however, came from Massachusetts in June, 1774. The congress met in Philadelphia in September of the same year, with fifty-five delegates present, representing twelve colonies. In Georgia the governor had succeeded in preventing the appointment of representatives. The work of the congress consisted in the drawing up of a declaration of rights hardly more radical than that of the stamp act congress, together with a pe- tition to the king, and the more important work of establish- ing the "American Association" to enforce the non-impor- tation agreements already existing. Before adjournment in October the congress provided for the' meeting of a new congress in May of the following year, in case the grievances of the colonies were not redressed in the meantime. 77. A Union Formed. The first continental congress, like the stamp act congress, had been simply an advisory, or at most, an executive body. Its successor, on the other hand, found itself compelled by the pressure of events to assume almost at once a much wider range of activity. With the meeting of the first continental congress the colonies may be said to have accomplished a sort of union, imper- fect as yet, to be sure, but still a union; but it was not until after the second continental congress had begun its work that the demand for independence was openly voiced. Up to that time the colonists had been striving simply to main- tain what they conceived to be their rights as Enghshmen, and most of them looked with no little disfavor upon any suggestion of separation from the mother country. Now ATTEMPTS AT UNION 63 the course of events brought about a rapid change of senti- ment. 78. The Second Continental Congress. Early in its his- tory this second congress had drafted a new petition to the king, generally known as the "oHve branch" petition. To this the king did not even pay the courtesy of a formal answer. Instead, he issued a proclamation declaring the colonists to be rebels, closing the American ports, and warn- ing foreign nations not to trade. This contemptuous treat- ment convinced many that the colonists need hope for noth- ing at the hands of the king; and when, shortly after, the news reached America that the British government had hired German soldiers to help fight their battles in the col- onies, even the most conservative began to admit the neces- sity of separation. The colonies were besides sufficiently well organized politically to make separation possible. As we have already seen (§ 52), state governments had been organized by the advice of congress during the year preceding the declaration of independence; and the events of that year had compelled congress to assume also the functions of a general government. It had estabhshed an army, drawn up regulations for its government, and appointed a commander-in-chief; it had established a committee of correspondence with "our friends abroad," and had opened the American ports except to British vessels; it had issued paper money; finally, it adopted the declaration of inde- pendence and appointed a committee to draft articles for the government of the states thus newly created. Then, after making provision for funds for the prosecution of the next year's campaign, the second continental congress tem- porarily adjourned in December of 17.76. Continental con- 64 CIVIL GOVERNMENT gresses continued to meet with only short periods of inter- mission from this time until the ratification of our present constitution; but their work, except as it concerns the ar- ticles of confederation and the constitution, is matter for history rather than civics. Library References. — Ashley, §§ 77-91; Macy, pp. 36-38; Montgom- ery, pp. 7S, 94-95. 138, 163-172, 175-176, 179-182, 184-186; Fiske, pp: 209-213; Hinsdale, pp. 69-72, 424-453; Bryce, Vol. I, pp. 19-20; Chan- ning, pp. 91-gs, 138-139, 153-206; Curtis, Vol. I, Chaps. I-IV; Thwaites, pp. 142-143, 154-159, 161-164, 269-271; Roberts, Vol. I, pp. 3r6-3i7; Hart, pp. 50-63, 73-80; Lalor, Articles on Albany Plan of Union, Conti- nental Congress; Bancroft, Vol. I, pp. 291-296, Vol. II, pp. 385-388, Vol. Ill, Chap. XII, Vol. IV, Chap. IV, XXVIII; Frothingham, Rise -of the Republic of the United States; Fiske, American Revolution, Vol. I, Chap. III-IV. QUESTIONS ON THE TEXT 53. Over how long a period did the attempts at union extend? 54. Mention some of the conditions which made union between the colonists possible and desirable. 55. The geographical and industrial conditions of the colonies made them independent of one another. Explain how. 56. When and for what purpose was the first union of American colonists formed? What name was given to this organization? Show how it developed into the confederation of 1777. 57. For 'what purpose and by whom was the Albany congress (convention) of 1754. called? 58. Outline Franklin's plan of union. How was the plan re- ceived by the colonists and the home government? 59. When and for what purpose was the stamp act congress called? Where was it held? How did it differ from other early conventions and congresses? 60. Give an account of the first continental congress (1774), and of the second continental congress (1775), touching the origin, the organization, and the work accomplished by each. CHAPTER V THE ARTICLES OF CONFEDERATION i (1781-1789) 79. Need of Legal Basis for the Union. It is clear that the continental congress felt from the first the necessity of making permanent the union of the colonies now effected by placing beneath it a definite legal foundation. Almost a year before the adoption of the declaration of independence, while the sentiment in favor of separation from the mother country was still weak, congress considered a plan drafted by Franklin for the "confederation and perpetual union" of the colonies. The title by which the union was to be known — the United Colonies of North America — shows that independence was not yet contemplated. It is fortunate that Franklin's plan was never adopted. Had it been, it would almost certainly have formed the basis of the new government when the declaration of independence brought into existence a new nation, and would have long delayed, if it had not altogether prevented, the adoption of our pres- ent constitution; for, though it failed to provide a strong central government, it avoided the most glaring defects of the articles of confederation, and might have been amended so as to furnish a practicable, if far from perfect, scheme of government for the new state. 80. Drafting and Adoption of Articles. A year later we find congress again concerned with the question of provid- ' For articles of confederation, see Appendix. 65 66 CIVIL GOVERNMENT ing a basis of law for the union, which was now about to become a union of states instead of a union of colonies. On the same day two important committees were appointed, one to draft the declaration of independence, the other to draft articles of confederation for the states about to be created; but more than a year elapsed before the articles were adopted by congress, and it was not until 1781, when' the war was already drawing to a close, that they were finally ratified by all the states and became the law of the land. 81. Delay in Ratification. The reasons for the delay in the ratification of the articles by the different colonies were in part the same that had made any sort of union difficult — mutual jealousy and distrust on the part of the states and fear of any superior government. There was, besides, a clear recognition in some states of the inadequacy of the proposed government as well as a definite objection to cer- tain provisions of the articles, particularly that by which power was apportioned equally among all the states regard- less of size, wealth or population. The delay was occa-- sioned chiefly, however, by the dispute concerning the land-" claims of some of the states to portions of- the region lying west of the Alleghanies. Basing their claims for the most part on the old colonial charters, which had extended their boundaries indefinitely westward, the states contended that they had succeeded on the declaration of independence to all the powers of the British crown in this unoccupied territory. Not all the states, however, were possessed of such claims, and those that lacked them objected strenu- ously to allowing them in the cases of the others. If inde- pendence were achieved, they argued, it would be by the THE ARTICLES OF CONFEDERATION 67 united efforts of all the states, and these unoccupied lands ought to belong to the confederacy for the benefit of aU. Accordingly some of the states refused to ratify the articles until some agreement should be reached in this matter. Finally, in 1780, New York ceded to the United States the lands claimed by her, Virginia promised similar action, and Maryland, the last of the states to ratify, withdrew her op- position and formally signed the articles on the first of March, 1781. 82. Character of the Government Established. The gov- ernment established by these articles was something very different from our present federal government. It was a confederation, not a federal state; a league, not a national government. This the framers of the articles took pains to make clear. The union is called "a firm league of friend- ship" between the states "for their common defence, the security of their hberties, and their mutual and general welfare," and it was not intended to be more than a league. It required nearly a decade of unsuccessful effort to carry -on the government under the articles, in order to convince '-the members of the confederation that the maintenance of such a league was impossible without a further surrender of sovereignty on the part of the individual states than was provided for in the instrument. 83. Powers of Congress. Under the articles the powers of the federal government were vested in a congress consist- • ing of a single chamber, whose members represented not the people of the United States, but the separate states; and each state, though it might send any number of delegates from two to seven, had but a single vote in the decisions of congress. In other words, the articles simply legalized the 68 CIVIL GOVERNMENT existence of the continental congress without changing its character. To this body was intrusted the sole power of dealing- with foreign nations, whether in the way of sending and receiving ambassadors, negotiating treaties, declaring war or concludiag peace; but it was prohibited from enter- ing into any commercial treaty which should in any way interfere with the right of the state legislatures to impose duties or prohibit the exportation or the importation of commodities. Congress was given also the power "to as- certain the necessary sums of money to be raised for the service of the United States and to appropriate and apply the same for defraying the pubHc expenses;" to borrow money or emit bills of credit; to determine the number of land forces to be raised and to make requisitions from each state for its quota; to build and equip a navy; to appoint all naval officers and aU except regimental officers for the land forces; to make rules for the government of army and navy and to direct their operations. The money for de- fraying federal expenses, however, was to be drawn from a common treasury supphed by the states, the taxes for paying each state's proportion to be levied by the state legislature; and the land forces were to be raised, clothed, armed, and their regimental officers appointed by the state legislatures. 84. Other Provisions. In judicial matters the powers of congress were limited to the establishment of courts for the purpose of dealing with offences committed on the high seas, and to the settlement on appeal of controversies be- tween states. It was also the business of congress to regu- late the value of coin, fix the standard of weights and meas- ures, manage Indian affairs and establish post-offices. Two other provisions should be especially noted, since it was their THE ARTICLES OF CONFEDERATION 69 existence particularly that made government under the ar- ticles practically impossible. By one of these, congress was prohibited from taking any important action without the assent of nine states; by the other, no amendment was pos- sible without the ratification of every state. 85. Defects of the Articles. So long as the pressure of the war lasted, congress was able to secure some degree of concerted action on the part of the states; but the articles had hardly gone into effect when that pressure was with- drawn and their defects became promptly and increasingly apparent. They were the defects naturally inherent in a confederacy under circumstances that demanded before any- thing else a strong central government. The articles seemed to confer upon congress somewhat extensive powers; as a matter of fact they left it impotent. It was given ample power to make laws, but was left with, no means of enforcing them. Executive power remained almost entirely in the hands of the states, so that congress was compelled to make requests like a suppliant instead of issuing commands like a sovereign. Its position was illogical and absurd. In its hands alone lay the treaty-making power; yet it could not guarantee to other nations concerned that its treaties would be observed, since it had no power of compelUng the obedi- ence of the states. It could appropriate money as freely as it saw fit for the purpose of defraying federal expenses; but it did not itself possess the taxing power, and it had no means of compelling the state legislatures to exercise it in its behalf. It could make requisition for troops; but the states might heed the requisition or not, as they pleased. It had no power of regulating foreign commerce, no power of settHng interstate disputes except on appeal, no federal 70 CIVIL GOVERNMENT judiciary. Moreover, with the cessation of the war the states lost interest in federal affairs and not infrequently- failed to send delegates to the federal congress, making it thus still more difficult to secure the nine votes necessary to the passing of any important measure. Finally, these de- fects of the articles were beyond remedy, since amendment had been made practically impossible. 86. Framers not Unconscious of Defects. It can hardly be supposed that the framers of the articles were uncon- scious of these defects. Our country has never produced abler statesmen than those of the period under considera- tion. Franklin's plan of confederation, drafted a year earlier than the articles, had offered a far more practicable scheme of government. It had made congress representative, not of the states, but of the people of the United States, by ap- portioning representation according to population and giving each delegate one vote; it had given congress control of for- eign commerce; and it had made amendment possible by vote of a majority of the state legislatures. Just why this plan was never adopted is not clear. Probably pubUc opinion was not yet ripe for it; the sentiment in favor of union not yet strong enough to render its provisions accept- able. Probably, too, the articles provided as near an ap- proach to a federal union as the feeling of the time per- mitted. Library References. — Ashley, §§ 94-105; Macy, p. 38; Dawes, pp. 45- 46; Fiskc, pp. 213-217; Hinsdale, Chap. VI; Bryce, Vol. I, pp. 20-21; Curtis, Vol. I, Chaps. IV-XV; Channing, §§ 159-161, 165-178; Montgomery, pp. 2og-2r4; Fiske, Critical Period, Chaps. II-V; Hart, Chap. V; Lalor, Article on Articks of Confederation; Bancroft, Vol. V, pp. ro-r5, 199-208, Vol. VI, pp. iro-T94; McMaster, Vol. I, pp. r30-r36, 184-185, 200-210, 281- 354; Schouler, Vol. I, pp. 14-18, 20-24; Wilson, §§ 865-868. THE ARTICLES OF CONFEDERATION Vl QUESTIONS ON THE TEXT 61. Describe the form of government that prevailed in this country during the revolutionary period. Mention its principal defects. 62. What was Franklin's plan for "confederation and perpetual union"? 63. What occasioned the delay in the ratification of the articles of confederation? 64. How did the government under the articles of confedera- tion differ from the government under the present constitution? 65. Define confederacy. 66. What was the only department of government established by the articles of confederation? Why was the government estab- lished by the articles of confederation weak ? How long did it en- dure ? 67. Mention two important defects in the articles of confedera- tion. If you have not already done so, carefully read the articles of confederation and the declaration of independence. For the articles of confederation, see Appendix; also for the constitu- tion of the United States. CHAPTER VI THE CONSTITUTION: ITS FORMATION AND ADOPTION 87. Condition of Affairs under the Articles of Confedera- tion. The course of events from 1781 to 1787 gave in- disputable proof of the impossibility of government under the articles. So long as the struggle with the mother coun- try lasted, the states could not help seeing that their only, safety lay in union; and they weie following the dictates of the nierest self-interest in serding to congress their ablest men and in granting to that body, however grudgingly, the necessary means for conducting the government. As the fierceness of the struggle abated, however, the necessity for union was no longer so keenly felt. State interests loomed larger and larger; federal interests dwindled. The most distinguished statesmen no longer sat in the federal legis- lature. Their talents were demanded at home for the solu- tion of difficult problems of state government; so that the national legislature, given by the articles no means of pro- viding for its own needs and left whoUy dependent upon the good-will of the states, soon found itself deprived of even such power of persuading the states as it had possessed through the pressure of the war and the personal influence of its members. 88. Attitude of the States. Gradually the states, having withdrawn from the service of the federal government its best ability, assumed toward it, if not an attitude of actual defiance, at best one of distrust or indifference. More than 72 THE CONSTITUTION 73 once, whether through indifference or a more active senti- ment, they made it impossible for congress to proceed to business at the proper time by faihng to send delegates from enough states to transact important business or to settle important questions. National appeals for money many of them simply disregarded, so that between 1782 and 1786 congress obtained only about one-sixth of the amount asked for. Threats of secession were heard from more than one quarter, and even overt acts of defiance were not unknown. 89. The Feeling Between the States was no better than that between the national government and the states. Ques- tions of trade involved them in continual quarrels. New England sought to secure a virtual monopoly of the carryr ing trade by demanding the exclusion of British vessels, a demand to which the southern states would not accede. States without seaports were forced to pay tolls to their more fortunate neighbors through whose ports their goods were received. Interstate tariffs grew up wherever conditions favored them, and tariff wars provided a constant source of irritation. Between the east and the west, also, there was a clash of interests. The east desired commercial intercourse with Spain and the Spanish colonies, which that country was willing to grant in return for the surrender by the United States of the right to free navigation of the Missis- sippi, which now flowed for two hundred miles through Spanish territory; and a considerable portion of congress was willing to negotiate a treaty on this basis. To this surrender, however, the people of the west, particularly those of Kentucky and what is now Tennessee, were un- alterably and vehemently opposed. Bitter discussion be- tween east and west followed, and threats of secession were 74 CIVIL GOVERNMENT heard on both sides; but the project was finally abandoned. Even within the states troubles were rife. Financial dis- tress, which large issues of paper money had only intensified, was everywhere apparent, and was leading in some cases to armed rebellion on the part of the debtor class. 90. The General Government Helpless. Meantune the general government, compelled to stand helplessly by, alike incapable of reheving the internal distress of the states, of adjusting interstate disputes, or of extricating the nation from its difficulties, was regarded by foreign nations with scorn or indifference. It was not without justification that the French minister wrote in 1784 that there was no general government in the country; nor was it strange that the com- mission appointed that year to conclude treaties with foreign nations and consisting of men so able and persuasive as John Adams, Franklin, and Jefferson, should have been able to induce only one foreign country to enter into treaty relations with the confederation. By 1786 the feeling had become general that nothing short of a thorough-going revi- sion and amendment of the articles of confederation could remedy the existing evils. 91. Suggestions for Amendment. The suggestion that the articles be amended was by no means new. In 1781, even before all the states had ratified them, it had been pro- posed that congress should be given power to raise revenue by levying import duties to the extent of five percent ad va- lorem. The proposition was discussed for a year, but was finally defeated by the refusal of Rhode Island to agree to the arrangement. In 1783 the project was revived and a similar proposition was made, but with more limitations upon congress, only to meet defeat again, this time at the hands of THE CONSTITUTION 75 New York. Two years later Massachusetts instructed her delegates in congress to propose a general revision of the articles; but nothing came of this suggestion, and the convention which finally met for that purpose in 1787 and ended by framing an entirely new constitution, originated in a different way. 92. Origin of the Constitutional Convention. The con- stitutional convention grew out of an attempt on the part of a few of the states to reach some sort of agreement in commiercial matters. In 1785 a commission from Maryland and Virginia met at Alexandria for the purpose of adjusting, if possible, the differences between those states in regard to the navigation of the Potomac River and the Chesapeake Bay. Before the commission broke up the Virginia dele- gates proposed that a similar commission composed of dele- gates from all the states should meet at Annapolis for the purpose of discussing trade relations throughout the country. The proposition was favorably received, and the following year, 1786, occurred the Annapolis convention. 93. The Annapolis Convention. When the delegates as- sembled at the appointed time, it was found that repre- sentatives were present from five states only, though a few others were on the way. With so incomplete a represen- tation of the confederation it was useless to attempt to proceed with the business for which the convention had been summoned, but such discussions as occurred revealed the existence of a general sentiment in favor of the revision of the articles of confederation. Accordingly, without await- ing the arrival of the tardy delegates, those present before adjourning passed a resolution recommending a convention of delegates from all the states "to devise such further pro- 76 CIVIL GOVERNMENT visions as shall appear to them necessary to render the con- stitution of the federal government adequate to the exigencies oj the union." This resolution was transmitted to con- gress and to the state legislatures; but it was not until five states had aheady appointed delegates to the new conven- tion that congress approved it and recommended its adoption by the states. Thereupon the rest of the states, with the exception of Rhode Island, promptly adopted the recom- mendation of congress and appointed their delegates. 94. The Constitutional Convention. The 14th of May, 1787, had been fixed upon as the day, and Philadelphia as the place of meeting for the new convention; but it was not until May 25 that delegates had arrived from a sufficient number of states to enable the convention to organize for its work, and two months more elapsed before all of the twelve states that finally sent delegates were represented. Rhode Island alone took no part in the convention. In that state the governor and the upper house of the legislature were in favor of sending delegates; but the assembly, made up largely of men without education and of narrow pohtical views, who were moreover fearful of the effect of the con- vention upon their financial policy of wiping out all debts by means of paper money, refused to send representatives. The convention as finally constituted consisted of fifty-five mem- bers, among them the ablest and most distinguished states- men of the time. Together they made up a body that has rarely been equalled in intelligence, abihty, patriotism and pohtical sagacity. As has nearly always happened in the case of pohtical bodies chosen at critical junctures ui our history, the convention was strongly representative of the wisely conservative element in the country. No true patriot THE CONSTITUTION 77 could have anything to fear in entrusting his political inter- ests to such men as figured most prominently in the proceed- ings of the convention. 95. Influence of Washington. Easily foremost, of course, was Washington, president of the convention, cautious, saga- cious, rich in experience, utterly free from local prejudice. His position as presiding officer naturally precluded his tak- ing part in the debates; but it has been said of him that, through the power of his personality, he had the greatest influence on the total result of any man in the convention. Unquestionably the fact that he approved the constitution assisted in no small degree in securing for it the ratification of otherwise doubtful states. 96. Hamilton and Madison. Of those who engaged actively in the debates of the convention, the two most prominent and almost equally influential characters were Hamilton and Madison. In spite of the fact that they were young men (Hamikon was but thirty, and Madison six years older), both had already rendered political service as members of congress, and Hamilton had been one of the delegates to the Annapolis convention. Hamilton's keen insight into the principles of government, combined with a remarkable power of logical, straightforward reasoning, stood him in good stead in the debates of the convention. His greatest service in the work of that body was his successful insistence upon the -absolute necessity of creating an efficient national government, even though it might involve a very consider- able curtailment of the powers of the states. Madison was even more active, if not more influential, in the conven- tion than his colleague. He was one of the few, destined finally to become the majority, who believed that no satis- 78 CIVIL GOVERNMENT factory amendment of the articles of confederation was possible, and that the only thing to do was to throw them overboard and frame a new constitution. To this proposi- tion it was objected, reasonably enough, that the assembly in acting upon it would be exceeding its authority, since it had been given power only to revise the articles of con- federation; and in furnishing convincing answers to objec- tions of this type he rendered most efi&cient service. It was Madison, also, who drafted the scheme of government known as the Virginia plan, which was to become the basis of the constitution as it was finally adopted. Nor did the work of these two young men end with the adjourn- ment of the convention. Through the series of political essays known as The Federalist, written for the purpose of explaining and defending the constitution after it had been submitted to the people for ratification, they did yeoman's service in securing its adoption. 97. Franklin. Scarcely inferior in influence, though much less active in debate, was the venerable Franklin, now in his eighty-second year. For half a century he had had intimate knowledge of public affairs; for a quarter of a cen- tury he had represented his country or a portion of it at foreign capitals. Twice had he drafted a plan of union and a scheme of government for the colonies, neither of them, to be sure, destined to be put into operation — one the plan adopted by the Albany convention in 1754, but rejected by the colonies; the other the scheme considered by the conti- nental congress a year before the articles of confederation were drafted, but never acted upon. It was his particular task in the convention to pour oil on the troubled waters. When the debate became too bitter or too personal, his THE CONSTITUTION 79 ready wit restored everybody to good humor, and more than once his tact prevented differences of opinion from becom- ing irreconcilable disputes. 98. Other Prominent Delegates present were George Mason and Edmund Randolph of Virginia; John Dickinson of Del- aware; James Wilson, Robert and Gouverneur Morris of Pennsylvania, to the last of whom the constitution mainly owes the admirable clearness and simplicity of its language, which has made the work of interpretation so much easier and surer; Roger Sherman of Connecticut, who had been a member of nearly every congress; Elbridge Gerry of Massachusetts; Rufus King of New York, the author of the prohibition on the states to pass laws affecting the obli- gation of contracts; Paterson of New Jersey (afterwards governor, 1791-1793); and the two Pinckneys and John Rutledge of South Carolina. These were the most " distin- guished members of , the assembly, but all were men of ability and experience. Of the fifty-five present, eighteen were at the same time members of congress; and there were only twelve who had not at some time sat in that body. 99. Work of the Convention. As we have already seen, the organization of the convention was delayed until May 25 by the lack of a quorum. Once organized, however, the work proceeded without interruption for four months, daily sessions being held until the 17th of September, when the engrossed copy was signed and the convention finally ad- journed. The work throughout was carried on behind closed doors — wisely, since, had the questions under discus- sion been known, the pressure of public opinion upon the delegates would probably have made agreement impossible. It was not until long afterwards, when the very full notes 8o CIVIL GOVERNMENT kept by Madison of the debates of the convention were printed, that the difficulties it had surmounted became known. 100. Difficulty of the Task. In some respects the task before the framers of the constitution was pecuharly diffi- cult. "The establishment of a constitution in a time of profound peace, by the voluntary consent of a whole people, is a prodigy, to the completion of which I look forward with trembling anxiety," wrote Hamilton; and many of his con- temporaries shared his feeling. In the first place there had been no overwhelming public sentiment in favor of the call- ing of the convention, nor was there any profound belief that it would' accomplish anything. Then, too, within the convention itself there was a strong feehng that it had no power beyond that of revising the articles of confederation; and not a little argument was needed to induce the assembly to undertake the framing of a new constitution. That ques- tion once decided, the convention found itself face to face with a peculiar condition of affairs. Its task was not the comparatively simple one of devising a scheme of govern- ment for a single unitary state, in which the central govern- ment should be the source of power for all minor political divisions; nor had it on the other hand to deal with a simple confederation, in which the component states were still sovereign and independent with full power at any time to withdraw from the union. The course of events during the revolution had unquestionably established a nation with a life of its own, yet it had left the integrity of the states un- touched. The states were still free poHtical agents, however strongly public necessity might urge them to form a national union. "We were neither the same nation nor different THE CONSTITUTION 8i nations," said Gerry. In short, the task before the conven- tion was that of framing a constitution for the first great federal state in history. Just how this was to be done no one saw clearly at the opening of the convention. Among the members of the assembly the most diverse opinions were held as to what should be the character of the new govern- ment. Not a few contended for the maintenance of the existing form of government with only such revision of the articles of confederation as experience had shown to be absolutely necessary, i.e., they advocated, if not the extreme state rights doctrine, at least as great a degree of state sover- eignty as was at all compatible with orderly government. A few, notably Hamilton, advocated the estabhshment of a strongly centralized national government, in which the states should be shorn of all their sovereign power. The majority, however, hoped for the establishment of a moder- ately strong central government, with enough curtailment of state prerogatives to render the general government thor- oughly efficient. 101. Plans Submitted. The real work of the convention began on the 29th of May when Edmund Randolph of Virginia submitted a plan of government, principally the work of Madison, consisting of fifteen propositions, most of which were finally embodied in the constitution. This plan is known as the Virginia plan. On thfe same day (May 29th) Charles Pinckney of South Carolina presented another plan very similar in its provisions to that of the Virginia delegation but more detailed. This received little attention. The interest of the convention centred upon the Virginia plan and its principal opponent the New Jersey plan, introduced by Paterson of New Jersey, and 82 CIVIL GOVERNMENT expressing the wishes of the smaller states. The Virginia plan provided for a government to consist of the three depart- ments — executive, legislative, and judicial — the legislature to consist of two houses, the lower elected by the people, the upper by the lower from candidates nominated by the state legislatures. In both houses representation was to be based on free population. Congress was also to choose the execu- tive and the judiciary. This plan unquestionably gave the control of affairs into the hands of the larger states, and it met with fierce opposition on the part of the smaller ones. They therefore agreed upon the series of resolutions intro- duced by Paterson. This plan proposed to continue the existing government but to give congress power to regulate commerce, to raise revenue, to estabhsh a federal judiciary, and to enforce its enactments. While these plans were under discussion, Hamilton made a speech to the convention in the course of which he read a plan outUning a strongly cen- trahzed national government in which the states had Uttle power. This has been called Hamilton's plan; but he knew, as he himself said, that it was very remote from the ideas of the people, and he probably intended only to outline more carefully his own views and the amendments he intended to offer at the proper time, rather than to submit a formal plan for the consideration of the convention. 102. The First Great Compromise. As the discussion of the two principal plans proceeded, it became evident that only a most liberal spirit of compromise could enable the conven- tion to effect anything. Differences of opinion among the delegates were so wide as to be all but irreconcilable. More than once the convention seemed on the verge of dissolu- tion, but each time some compromise was effected and THE CONSTITUTION 83 the work proceeded. The first great crisis came in the course of the discussion as to whether there should be a national or a federal government, and whether there should be equal representation of the states in congress or whether representation should be apportioned on the basis of popu- lation. Naturally the smaller states contended fiercely for equal representation. Finally one of the Connecticut dele- gates suggested a compromise, based on the system in use in the legislature of his own state, according to which there was to be equal representation of the states in the senate but representation apportioned on the basis of population in the house of representatives. To this the larger states agreed after some discussion, and thus the first great com- promise of the constitution was effected. 103. The Second Great Compromise. This question as to the manner of representation in the two houses having been settled, another arose as to the apportionment of represen- tatives in the lower house. The population of the southern states contained a large proportion of slaves possessed of no political rights. Ought they to be counted in determining the number of representatives from those states; and if counted for that purpose, ought they not to be counted also in apportioning direct taxes? Finally a compromise was effected upon this question also — the three- fifths compro- mise, as it is sometimes called — according to which five slaves were to be counted as equal to three white men, and direct taxes were to be apportioned in the same manner as representatives. 104. The Third Great Compromise also was made neces- sary by the existence of slavery and the slave trade. The real question at issue was whether or not the general gov- 84 CIVIL GOVERNMENT ernment should be given control over commerce. The ill effects of allowing each state commercial independence had become evident under the articles of confederation, and the states engaged in general commerce desired its regulation by the general government. On the other hand, the states engaged in the slave trade, knowing the sentiment enter- tained against it at the north, feared that heavy losses might be entailed upon them by some prohibitory legislative act of the general government. A compromise was finally reached by which it was agreed that congress should be given control over commerce but should be forbidden to pass any act prohibiting the importation of slaves before 1808, though it might levy a tax of ten dollars each on all slaves imported. Of this last provision, however, congress never took advantage. It should not be supposed that these three were the only compromises of the constitution; it has been said of it indeed, that it was nothing but a series of compromises. These three, however, were of vital impor- tance, since a failure to reach an agreement on any of these points would have resulted almost inevitably in the disso- lution of the convention. 105. Ratification. In accordance with the last article of the new constitution providing for its ratification, it was submitted on the 20th of September, 1787, to congress, where it was subjected to criticism for eight days before it was sent to the state legislatures, to be by them in turn sub- mitted to conventions chosen by the people of the several states. It was not until June 21, 1788, that the ratifica- tion of the nine states necessary to the establishment of the new government was secured. Thereupon congress made preparations for putting the constitution into opera- THE CONSTITUTION 85 tion; and the other states, finding themselves confronted with the alternative of joining the union or standing alone in the world, since the old government established by the articles of confederation had been annihilated, ratified one by one, Rhode Island holding out until the end of May, 1790. 106. Struggle over Ratification. Except in the smaller states, to which very considerable concessions had been made, ratification was nearly everywhere secured with difficulty. Had the matter been left to a direct vote of the people, taken all over the country on the same day, it is doubtful if it could have been secured at all. Fortunately, as Mr. Bryce has noted, "The conventions were composed of able men, who hstened to thoughtful arguments, and were them- selves influenced by the authority of their leaders." ' Out of this struggle over ratification emerged the first two great pohtical parties in the United States. The supporters of the constitution were called federalists; the opponents anti- federahsts. The federalist party was in general the party of the moneyed classes — the public creditors, the mer- chants, the lawyers; the antifederalist the party of the debtor class, the advocates of paper money — in general the less wealthy portion of the community. The antifederal- ists objected among other things to the absence of a bill of rights in the new constitution; to the power of taxation given the national 'legislature; to the power granted to the federal judiciary; to the paying of congressmen out of the federal treasury, thus making them independent of the states; to the voting by individuals instead of by states in the national legislature;' in short, to what they considered the tpo aristocratic, too centralized form of the new govem- ' Bryce, Vol. I, p. 27. 86 CIVIL GOVERNMENT ment. On the other hand, the views of the federalist party found expression most ably and thoroughly through the series of remarkable poUtical essays written by Hamihon, Madison, and Jay, and afterwards collected and pubUshed under the title of The Federalists. Their effectiveness in helping to secure ratification has been already mentioned. Other influences, too, were at work. The support of such tried and trusted men as Washington and Madison, the compromises made to different sections and interests, the example of other states — all had their effect upon doubtful states; but unquestionably the two most potent influences were the almost universal economic distress; and the dread of foreign powers, especially Spain and England, who were believed, perhaps not wholly without reason, to be only awaiting a favorable opportunity for absorbing the youthful nation. 107. Establishment of the New Goveriunent. As soon as the ratification of the necessary nine states was secured, congress passed an act providing for the establishment and organization of the new government. The first Wednes- day in January, 1789, was designated as the day for appoint- ing electors; the first Wednesday in February for assembling and voting for president ; and the first Wednesday in March for " commencing the proceedings under the said constitu- tion." It was not until April ist, however, that a quorum was secured in the house of representatives and that body was organized ; while in the senate a quorum was first pres- ent on April 6th. Thereupon the votes were counted and Washington was declared elected. Some further delay en- sued, but finally on April 30 occurred the inauguration of Washington and the installation of the new government. THE CONSTITUTION 87 Library References. — Ashley, §§ 106-120; Macy, pp. 38-40; Hinsdale, pp. 82-116 ; Bryce, Vol. I, Chap. Ill; Fiske, pp. 217-219; Charming, pp. 254-262, 270-275; Montgomery, pp. 214-218; Curtis, Vol. I, Chaps. XV- XXXVI; Fiske, Critical Period, pp. 214-350; Roberts, Vol. II, pp. 446- 447; Hart, Chap. VI; Lalor, Article on the Constitutional Convention I'lisin- croft, Vol. VI, Book II, Chap. VIII, Books III-IV, Book V, Chaps. II- III; Schouler, Vol. I, pp. 28-70; McMaster, Vol. I, pp. 390-399, 417-423, 436-502. QITESTIONS ON THE TEXT 68. Describe the political conditions which made necessary the present constitution of the United States. 69. What evils was the United States constitution intended to remedy? Does it remedy those evils? Give reasons. 70. What state took the first step that led to the formation of the present constitution? 71. When and where was the constitution made? Name six objects stated in the preamble. 72. How was the constitution framed? Name the three great compromises of the constitution. 73. What differences of opinion existed between the framers of the constitution as to the powers of the federal government ? What are these differences sometimes called? 74. What is meant by the statement: "The house of representa- tives represents the national idea; the senate represents the federal idea"? 75. State the provisions under which the constitution took effect. 76. The sessions of the constitutional convention were all exec- utive, i.e., the public was excluded from all meetings and the work of the convention kept secret until after final adjournment. Was this a wise thing to do ? Why ? CHAPTER VII THE CONSTITUTION: ITS ORIGIN AND NATURE 108. Its Origin, In regard to the originality of the con- stitution the most opposite views have been entertained. Mr. Gladstone's remark that it is "the most wonderful work ever struck off at a given time by the brain and pur- pose of man," has generally been construed, whether it was so intended or not, as an assertion of its originality. On , the other hand, Sir Henry Maine says that it is "in reality a version of the British constitution" as it then was. Both these statements are misleading, though both contain an element of truth. As a matter of fact, the convention wisely based its work as little as possible upon untried theories, as much as possible upon experience. Only where colonial or state experience furnished no precedent did they risk an invention of their own. At the same time, there were in the situation before the convention some ele- ments that were new, some problems for which the framers were compelled to devise new solutions. As for the British constitution, it unquestionably exercised a very considerable influence upon the framers of our constitution, but not di- rectly, as Sir Henry Maine's remark implies. Rather, that influence came to them filtered, for the most part, through the channels of colonial, revolutionary or early national experience. 109. Origin of Special Provisions. Nothing could be truer than the oft quoted observation that nearly every pro- 88 THE CONSTITUTION 89 vision of the federal constitution that has worked well is one borrowed from some one of the state constitutions, nearly every one that has worked badly is one that the con- vention in the absence of precedents was obUged to devise for itself. It is interesting to note the source of some of these provisions. The separation of the government into three clearly defined departments, each independent of the others, had been characteristic of the colonies and after them of the states, the separation having been carried much further in America than in England. This characteristic reappears in an even more extreme form in the federal con- stitution. The division of the legislature into two houses, which has often been pointed to as a direct copy of the EngHsh system, is rather a copy of the plan almost univer- sally in use in the states, though it is true that in character the two houses of the federal legislature correspond much more closely to those of Great Britain. Even the names senate and house of representatives were in use ia several of the states. The president also, in whom some writers have thought that they saw a copy of the British monarch, corre- sponds much more closely in character and function to the governors of the states, some of whom were called presidents. In several states, too, the office of vice-president existed. Some half-dozen or more of the states also provided a method of impeachment. 110. Suggestions from the States. Certain states can be pointed to more especially as furnishing the suggestions for particular provisions. We have abready seen that the differ- ent basis of representation in the two houses was suggested by the constitution of Connecticut. The veto power of the chief executive is found also in the constitution of Massa- 90 CIVIL GOVERNMENT chusetts; the constitution of Delaware provided for tEe election of one- third of the senators every two years; the constitution of New York made provision for a census every seven years for the purpose of apportioning repre- sentatives; in Massachusetts and New Hampshire all rev- enue biUs originated in the house of representatives. As a whole, the plan devised for electing the president was original; but even here the idea of an electoral college was derived from Maryland. Perhaps the truest proto- type for the supreme court is to be found, not in the states, but in the judicial committee of the privy council in Great Britain. In fact, in the provisions of the consti- tution there was Httle indeed that was new. Such origi- nahty as there was lay rather in the attempt to frame a written constitution for a federation, and in. the idea of submitting it to the people for ratification. "The work of the convention was a work of selection, not a work of creation, and . . . the success of their work was not a success of invention, always most dangerous in government, but a success of judgment, of selective wisdom, of practical sagacity — the only sort of success in poUtics which can ever be made permanent." ^ 111. Its Nature Different from the British Constitution. The character of the government estabhshed by the new constitution was something different not only from the gov- ernment of Great Britain, upon which it had been in many respects iadirectly modelled, but from that of the confed- eration as well. It is doubtful if the framers themselves realized how widely their work diverged from the mass of charters, statutes and usages that made up the unwritten, ' Wilson, p. 475. THE CONSTITUTION 9I highly flexible constitution of Great Britain. Perhaps the cardinal difference lay in the widely different character of the two great legislative bodies, parHament and congress. It should be remembered that the British parUament is and was then an absolutely sovereign body. It may make or unmake any law, change the constitution or the form of government at will, interfere with any of the "unaHenable" rights of the citizen, do any one of a thousand things that it never does do. None of its acts can be "unconstitutional," for there is no higher authority conjpetent to pronounce them so. In legal theory it is the nation and possesses all of the nation's powers. The congress of the United States is no such sovereign body. Neither congress, nor the presi- dent, nor both together can move one step beyond the strict limits assigned them by the constitution. Their powers are carefully enumerated, and any acts done in excess of them are simply void. Sovereign power, such as belongs, theoreti- cally at least, to the British parHament can be exercised in the United States only by the whole body of the people act- ing in the manner prescribed by the constitution. 112. Different from the Confederation. Between the new government and the old government of the confederation there were also some radical differences. The new constitu- tion did more than merely strengthen the general govern- ment so as to render it efficient. It changed a confederation into a federation, a league of states into a national state. The central government operated no longer upon the states merely, but upon the individual citizen as well. 113. Growth of Nationality. To be sure, the constitution as it existed in 1789 is not exactly the constitution as it is to-day. It has been developed by amendment, first of all, 92 CIVIL GOVERNMENT but even more by interpretation and by custom; and prac- tically all such development has been in the direction of nationalization, of consolidation. It must be admitted that the federation of 1789 was much looser, much more like the old confederation, than is the union of to-day. The pubHc sentiment of the time, which was for the most part indifferent or lukewarm toward the union and jealously watchful of the prerogatives of the states, demanded such an interpretation of the constitution as would impose upon the general government the strictest Umitations compatible with efficiency. As time passed, however, and the nation expanded, bringing into the union new states with no mem- ory of a time when the states were all and the union naught; as a network of railroads gradually spread over the country, bringing the people together and making them more homogeneous ; as war with other countries wakened a patriotistn wider than state patriotism, and civil war finally swept away the last great barriers between sec- tions — the sentiment of nationality slowly prevailed over local prejudices and attachments; and instead of the old jealousy and distrust of the general government on the part of the states, there grew up a realization of the fact that under the constitution state government and national government are mutually complementary, that neither usurps the functions of the other, that each is a necessary part of a single scheme. 114. Relation Between the States and the Union. The pecuUar relation existing between the states and the national government is, perhaps, to the student of politics the most puz- zling feature of our constitution. It will be remembered that under the articles of confederation the general government THE CONSTITUTION 93 was a government of delegated powers, these powers having been delegated by the states. Under the constitution the general government may still be said to be a government of delegated powers ; but the source of authority is no longer the states but the people of the United States, though the people act through the state organization. Further we may say that, during the period of the confederation, the preva- lent theory was that the union had been formed by a mere compact between the states, from which they retained the power of withdrawing at will. From the time of the adop- tion of the constitution to the civil war this theory struggled for supremacy against the opposing opinion that by the rati- fication of the constitution the states had become insepar- able parts of the union, to which they had permanently sur- rendered their sovereignty. Practically, if not theoretically, this question was settled finally by the test of civil war; and since that struggle it is admitted that, whatever other powers the states may possess, they do not possess the power of with- drawing from the union (the right of secession). On the other hand, the states are not mere administrative divisions of the general government, nor are their powers delegated to them by the constitution. That instrument withholds from them certain powers; but such functions as they per- form, they perform by an inherent, not a delegated authority. Within their own spheres they are completely independent, self-governing bodies. Their government "is subordinate only in the sense of being less than national in its juris- diction." 115. Departments of Government. Besides this delicate adjustment of powers between state and national govern- ment so that both operate without friction even within 94 CIVIL GOVERNMENT the same sphere, perhaps the most ' remarkable feature of our constitution is the strict separation of the three great functions or departments of government — the executive, the legislative and the' judicial. By thus separating these three essential functions of government, making them independ- ent and coordinate, and placing in the hands of each the means of defending itseK against the encroachments of the other two, the framers of the constitution hoped to secure not only the rights of the individual citizen, but permanency for the form of government established. They tried to establish a complete system of "checks and balances," so that it would be impossible for any one department to over- shadow the others and seize supreme power. For example, the executive power is vested in the president; but through his veto power he holds, a very effective check upon the legislature, while his right of pardon gives him a share of judicial power also. Legislative power is vested in con- ■ gress; but the house of representatives, through its control of the public purse, and the senate through its power of advice and consent in the matter of appointments and treaties, both act as checks upon the executive. Judicial power is vested in the supreme court and in such inferior courts as may be established; but through the power of the supreme court to pass upon the constitutionaHty of any law, the judicial department acts- as a check upon the legis- lature. At the same time the greatest care was taken to make each department as independent as possible of the other two — in the case of the judiciary by making their tenure of office as secure as possible; in the case of the other two, by making them responsible, not to each other, but directly or indirectly to the people. THE CONSTITUTION 95 116. Stability of the Constitution. Contrary to the ex- pectation of many at the time of its adoption, the constitu- tion has proved itself extremely stable.- The process of amendment provided by the instrument, while not so difh- cult as to be impracticable, as was the case with the articles of confederation, has nevertheless proved too cumbersome to be resorted to unadvisedly. As a result the constitution has been but little changed by amendment. Of the fifteen amendments that have been passed, the first ten, often called the bill of rights, were passed at one time and might almost be counted as one; while the last three also, relating as they do to the same subject and growing out of the civil war, are really a unit; so that it is perhaps not inaccurate to say that the constitution has really been amended but four times. It has undergone development, but it has been prin- cipally through the process of judicial interpretation and through custom. Mr. Bryce has said of it, "The constitu- tion as a whole has stood and stands unshaken. The scales of power have continued to hang fairly even. The Presi- dent has not corrupted and enslaved Congress; Congress has not paralyzed and cowed the President. . . . Neither the legislature nor the executive has for a moment threat- ened the Hberties of the people. The States have not broken up the Union and the Union has not absorbed the States. No wonder that the Americans are proud of an instrument under which this great result has been attained, which has passed unscathed through the furnace of civil war, which has been found capable of embracing a body of common- wealths more than three times as numerous, and with twenty-fold the population of the original States, which has cultivated the political intelligence of the masses to a point 96 CIVIL GOVERNMENT reached in no other country, which has fostered and been found compatible with a larger measure of local self-gov- ernment than has existed elsewhere." Library References. — Ashley, §§121-138; Harrison, Qiap. I; Macy, Ciiaps. VI, XXXV; Dawes, pp. 46-59, 406-418; Bryce, Vol. I, Chaps. II- IV; Wilson, §§ 869-884; Hinsdale, Chaps. XII-XV; Madison, Journal of Constitutional Convention; Federalist; Johnston, pp. 12-14; Curtis, Vol. II, Chaps. I-II; Channing, pp. 259-270; Fiske, American Political Ideas, pp. 57-100; Wilson, Congressional Government, pp. 1—57; Hart, pp. 133-135; Lalor, Article on Constitution of the United States; Woodburn, pp. 58-93. QUESTIONS ON THE TEXT 77. Mention two governmental institutions that are derived from England. 78. Compare the constitution of the United States with the English constitution as to (i) origin, (2) form, (3) susceptibility to change. 79. What provisions of the constitutitsn were taken from the various state constitutions? 80. Mention one respect in which the constitution of the United States differs from that of England. Compare the powers of par- liament and congress. 81. Distinguish between confederacy and nation. What kind of government was that of the continental congress ? 82. Show how the constitution changed the relations "from a league of states into a national state." 83. Into what three departments are the powers of the United States government divided, and why is this division made? 84. What is the source of the powers (i) of the United States government, (2) of the state governments? 85. What was the ordinance of nullification ? Of what doctrine was it an expression? How has this question been finally settled? 86. Give Mr. Gladstone's opinion of the constitution. 87. Give the substance of Mr. Bryce's statement regarding the working of the constitution. CHAPTER VIII LEGISLATIVE DEPARTMENT: ITS ORGANIZATION 117. The Two Houses. In the United States, legislative power is vested in a congress consisting of two houses, called the senate and the house of representatives,, the first chosen in such a way as to make it representative of the states — i.e., representative of the federal idea; the latter chosen in such a way as to make it representative of the people as a whole — i.e., of the national idea. In the con- stitutional convention there was almost unanimous agree- ment that the new congress should consist of two houses. The failure of the old congress of the confederation with its single house, the much more satisfactory experience of the states with their bicameral systems, and — most of all, doubt- less — the faith of the convention in the efficacy of a system of "checks and balances," all tended to secure unanimity on this point. It was intended that each house should act as a check upon the other, thus preventing over-hasty or ill-advised legislation. We have already seen whence the names senate and house of representatives were derived, and how it came about that the basis of representation in the two houses is different (§§ 102 and 109). 118. Number of Members. In size the two branches of the legislature differ greatly, though in neither is the num- ber of members a fixed one. The house of representatives, sometimes called the lower house, often simply the house, is by far the more numerous. The constitution provides 97 98 CIVIL GOVERNMENT that the number of representatives shall not exceed one for every thirty thousand of such population as is entitled to representation, though every state is to have at least one representative; and in order to apportion the representa- tives, provision was made for a decennial census, the first enumeration to be made within three years after the first meeting of congress. Until the first enumeration should be made, the constitution arbitrarily apportioned the repre- sentatives among the states, making the whole number sixty- five. So long as slavery existed, the population entitled to representation consisted of all free persons, including those bound to a term of service, and excluding untaxed In- dians, together with three-fifths of the slaves. Since the passing of the XlVth amendment, it has consisted of the whole number of persons in each state except untaxed In- dians. Since the meeting of the first congress the number of members in the house has been increased with the increase of population, though not in direct proportion. After every decennial census congress determines what shall be the whole number of representatives, and they are then apportioned among the states according to population. By act of con- gress approved January, 1901, to take effect March 4, 1903, the number of representatives was fixed at 386, which is in the ratio of one representative to about 200,000 of the population. In the first house the ratio was one for about every 61,000. The criticism is sometimes made that the house has become so large as to be unwieldy, but it is still small in comparison with the lower houses of the leading European legislatures. In England the corresponding body consists of 670 members; in France of 591; in Germany of 397. If a new state is admitted after an apportionment LEGISLATIVE DEPARTMENT 99 act is passed, the new members are additional to those pro- vided for b}^ the act. Besides the regular representatives from the states, there are in the house also delegates from the territories, each organized territory being entitled to one. These delegates have the privilege of speaking on any question affecting their territories, but are allowed no vote. Since representation in the senate is based on the states and divided among all the states equally, each state being entitled to two senators, that body also increases in size with the admission of every new state. Composed at first of twenty-six members, it now numbers ninety. 119. The Suffrage. The members of the house of repre- sentatives are chosen directly by the people in each state. At the time of the constitutional convention the limitations upon the suffrage differed very considerably in the different states, and it seemed wisest to leave to the states the matter of deciding who should have the right to vote for represen- tatives; consequently, it was provided that the electors (those possessing the right to vote) in each state should have the qualifications necessary for electors of the most numerous branch of the state legislature. By the passage of the XrVth and XVth amendments in 1868 and 1870, how- ever, some restrictions were placed upon this unqualified right of the states to fix the limitations of the suffrage. By the XVth amendment they are forbidden to abridge the right to vote "on account of race, color, or previous con- dition of servitude;" while the XlVth brings strong press- ure to bear in favor of manhood suffrage by providing for a reduction of the basis of representation in propor- tion as any state abridges the franchise of any male citizen twenty-one years of age except for participation in crime. loo CIVIL GOVERNMENT In spite of these restrictions, however, it is possible for the electoral franchise by which the menabers of the national house of representatives are chosen, to differ widely in the different states. As a matter of fact, the differences are small. There is practically manhood suffrage everywhere, except for the disqualification in some states of paupers, ilhterates and other defective or dehnquent classes. 120. Qualifications of Representatives. The qualifications fixed by the constitution for members of the house of rep- resentatives are three: (i) the person chosen must be at least twenty-five years of age; (2) he must have been seven years a citizen of the United States; and (3) he must when elected be an inhabitant of the state from which he is chosen. But universal custom and, in some states, state law have placed a further restriction upon the choice by requiring the representative to be also a resident of the congressional district from which he is chosen. The advisability of this additional qualification has been questioned, especially by European critics of our political institutions. In Europe, where this local restriction does not generally exist, it has been found that representatives of one district elected from some other are not less well informed as to local needs or less zealous in behalf of their constituents than those chosen from their own districts. It is argued against the system that it tends to lower the general level of ability in the legis- lative body, on the one hand by returning men of inferior ability from some districts where there is little ability or where the best talent does not seek an outlet in politics; on the other by barring out men of superior ability in districts, such as those of the large cities in the older states, where such men are more numerous than the places to be filled. LEGISLATIVE DEPARTMENT loi In spite of criticism, however, there is a deeply rooted public sentiment in favor of the restriction. Besides the feehng of local pride, which forbids the supposition that a better candidate could be found outside the district than within it, and the less commendable desire to reward local poUtical ser- vices with such offices, there is a profound belief that no one can understand local needs or be so zealous in behalf of local interests as one residing in the community represented. 131. Exclusion of Members-Elect. These are the only restrictions imposed upon the people in the choice of their representatives; but it does not necessarily follow that every representative chosen by a constituency will be seated in the national legislature. The house has more than once asserted its right to exclude members-elect for treason or other crime. During the civil war an act was passed re- quiring of persons elected to office a test oath that debarred great numbers; and congress has always maintained its right to exclude members-elect in case something in their character or careers is strongly condemned by public sen- timent. It was on this principle that the house of repre- sentatives acted a few years ago in excluding Brigham H. Roberts of Utah as "a notorious, defiant, demorahzing, and audacious violator of State and Federal law relating to polygamy and its attendant crimes." ' 132. Length of Term. While the term of a representative is fixed by the constitution at two years, reelection is pos- sible as often as may be pleasing to the constituents. As a matter of fact, however, it is not the general practice, except perhaps in some of the older eastern states, to return the same man term after term. In order to be even moder- ' Excluded Jan. 25, 190Q, I02 CIVIL GOVERNMENT ately sure of retaining his seat through two or three succes- sive terms, a representative must usually be either a very adroit politician or an eminent party leader. The result is that a congressman's whole period of service in the house is not likely on the average to be more than four years; and that at each biennial election the composition of the house is greatly changed, about half the members being new men. This, it is urged on the one hand, is an advan- tage in a number of ways: rotation in office helps to keep our institutions democratic; the biennial elections tend to keep the people alive to the political questions of the day; the shortness of the term assists in preventing any exten- sive political jobbery; and the occurrence of an election in the middle of the president's term acts as a check upon him by giving the people, if they wish it, an opportunity to express disapproval of his policy by returning a house politi- cally opposed to him. On the other hand, there is at least one unquestionable objection to the shortness of the term: it practically obliges the man who is ambitious for a political career to devote his best energy to the securing of his re- election rather than to the serious study of legislative prob- lems. Mr. Bryce says of this: "No habit could more effec- tually discourage noble ambition or check the growth of a class of accomplished statesmen. There are few walks of life in which experience counts for more than it does in parliamentary politics. It is an education in itself, an educa- tion in which the quick-witted Western American would make rapid progress were he suffered to remain long enough at Washington. At present he is not suffered for . . . nearly one-half of each successive house consists of new men, while the old members are too much harassed by the trouble LEGISLATIVE DEPARTMENT 103 of ptocuring their re-election to have time or motive for the serious study of political problems." 123. Elections. The times, places, and manner of hold- ing elections for members of congress are left by the con- stitution to the state legislatures, though the right is reserved to congress to alter such regulations of the state legislatures at any time, "except as to the place of choosing senators." Since the adoption of the constitution, congress has thought best to fix the time for and define the manner of holding these elections. For the election of representatives the time prescribed is the first Tuesday after the first Monday in November of the even-numbered years. As to the manner of election the practice of the states at first varied, some electing their members by districts, others electing them on a common ticket for the whole state. This last method, often called election by general ticket or "at large," usually resulted in giving to the party that carried the state the whole number of representatives, though the defeated party might have been almost equal in numbers. Since 1842 the states have been required to elect representatives by districts only, though imder certain conditions they are given permission to elect by general ticket. The division of the state into districts is left to the state legislatures. 124. Gerrymandering. This power of marking out the congressional districts has given the state legislatures a very important part in determining the composition of the house by means of the process known as "gerrymandering," nor have the restrictions placed upon the states greatly dimin- ished that influence. The process of gerrymandering con- sists in laying out the districts in such a way as to secure for the political party making the division a majority in I04 CIVIL GOVERNMENT as many districts as possible. Thus, where a district is in any case hopelessly lost to the gerrymandering party, district lines are manipulated in such a way as to throw into it as large a proportion of political opponents as possible; where a district is doubtful, it is strengthened by adding to it some town or section strongly favorable. In interpret- ing the act of 1872, by which it was required that the ter- ritory composing the district should be compact and con- tiguous, any territory has been regarded as contiguous that touches the district at a single point; and as a result some districts have been created quite as absurd in contour as that which first gave rise to the term "gerrymander."* In Missouri, in order to throw as great a number of negro voters as possible into a single district, one was created that measured along its windings a greater length than the state itself. Other absurd examples are the "shoe-string" district of Mississippi, 500 miles long by 40 broad; the "dumb-bell" district of Pennsylvania; and the "monkey- wrench" district of Iowa. 125. Representatives at Large. If, after a census, the num- ber of representatives in any state has been increased and the legislature fails to redistrict the state before the next congres- sional election, the additional representatives are chosen on a general ticket and are known as "representatives at large." ' The name is said to have had its origin in an incident connected with the redistricting of Massachusetts by the republican legislature in 181 1 vYlule Elbridge Gerry was governor. In the redistribution one of the dis- tricts had assumed a somewhat lizard-like form. This was shown on a map hanging over the desk of the editor of an opposition paper. The painter, Gilbert Stuart, happening to observe the figure, promptly added head, wings and claws, remarking, "That will do for a salamander." "Bet- ter say a Gerrymander," replied the editor, and the word passed into the language. LEGISLATIVE DEPARTMENT 105 136. Vacancies. In case a member wishes to resign for any reason, he does so by letter to the governor of his state. If a seat becomes vacant by the death, resignation or expul- sion of a member, the governor issues a writ for a new election. 127. Election Expenses. There are always, of course, expenses connected with an election — some necessary offi- cial expenses, for clerks, poUing booths, etc.; some perhaps not absolutely necessary yet regarded as quite legitimate; some entirely illegitimate. The official expenses are paid out of the public treasury. The total expense varies greatly from district to district. In some districts it is very small; in other warmly contested districts, especially in large cities, it mounts up into the thousands of dollars. It is certain that bribery is resorted to more or less frequently, but cir- cumstances make proof of the offence so difficult that an election is not often contested on that ground. The power of deciding contested election cases rests with the house, which does not meet until a year after the election. Since such a contest is likely to drag over the greater part of the first session, there is a general disinclination to enter'upon it, the shortness of the term making it seem hardly worth while. 128. The House : Officers. The first business before a new congress is naturally the business of organization and the election of officers. In the house these officers are speaker, clerk, sergeant-at-arms, doorkeeper, postmaster, and chap- lain, only the first of whom is a member of the house. The term of the speaker expires with the congress that elected him; the other officers hold over until their successors are chosen. In the organization of a new house the clerk of the preceding one plays an important part. It is his busi- io6 CIVIL GOVERNMENT ness to make up the roll of the new house from the certified returns of the states; and in doing this he is obliged to en- roll all who hold regular certificates, even though a question of their validity has been raised. Thus, even those whose seats are contested take part in the organization of the house. Until the house elects a speaker, the clerk of the old house also acts as presiding officer, and is expected in his rulings to deal fairly with all concerned. In case, as sometimes happens, the election of a speaker is more than a formal ratification by the house of a choice made in the caucus of the majority party, this duty of presiding may make the clerk of the house for a time an important figure politically. The ordinary duties of the clerk are to keep a record of all questions of order that arise, to certify to the passage of bills, to keep an account of disbursements,- to keep the house journal and take charge of its printing. The duties of the doorkeeper, postmaster, and chaplain are sufficiently indi- cated by their names. To the sergeant-at-arms is intrusted the task of keeping order in the house. He also acts as paymaster of the house, paying members and delegates their salaries and mileage. The speaker is the most important officer in the house. Indeed, he has been called "the second if not the first political figure in the United States." Since his special duties and powers will be described in another connec- tion (§§ 209-211), it will suffice to say here that he performs in the house the usual duties of a presiding officer, appoints all committees including the regular standing coromittees, and acts as chairman when the house resolves itself into a "committee of the whole," i.e., when it changes itself from a legislative to a deliberative assembly in order to consider particular questions before taking legislative action upon them. LEGISLATIVE DEPARTMENT 107 129. Method of Choice. Nominally the officers of the house are chosen directly by the house; actually they have already been chosen before the house takes action in the matter. The real choice is made at a caucus of the majority party, where a Hst of the officers is agreed upon. When these nominations are made in the house, the party votes soUdly for them and the election is, of course, assured. To be sure, the majority could, if it chose, reject the decision of the caucus; but it does not choose, so that the election by the house virtually amounts to a mere formal ratification of the choice made in the caucus. 130. The Senate : Its Origin and Character. Turning now to the senate, we find ourselves dealing with a body in some respects very different in character from the house of rep- resentatives. It is often supposed that the senate had its origin in the necessity for conciliating the small states. As we have aheady seen, this is an erroneous idea (§ 109). From the first there was practically unanimous agreement in the constitutional convention that the national legislature should consist of two houses. Some sort of senate we should have had in any case. When the necessity for conciliating the small states arose out of the question as to what should be the basis of representation in the national legislature, it did nothing but determine the jorm of the senate. It made it representative of the federal idea — the idea that this is a union of states, which is just as true and just as important as the national idea — the idea that the people of the United States collectively form a single nation, one and indivisible. Ever since the convention the provision of the constitution giving the states equal representation in the senate has found opponents. It is argued that it is not fair, not in keeping io8 CIVIL GOVERNMENT with democratic institutions, that Nevada, for instance, with her 42,325 inhabitants should have as much legislative power in the senate as New York with her 7,268,012/ The criti- cism overlooks the fact that the framers of our constitution did not intend to form a simple democratic government for a consolidated state. They were building a federal state. Certainly, aside from the fact that for the framers of the con- stitution it was a practical necessity, the plan of equal repre- sentation of the states in the senate offers advantages. It gives a real justification for the division of the legislature into two houses by providing a distinctly different basis of representation, and it forms a link between the state and the national governments. 131. The Senate : Constitutional Provisions. The consti- tutional provisions determining the character and organiza- tion of the senate may be summed up very briefly. The significance of some of them will have to be considered more at length. According to the constitution the senate is to be composed of two senators from each state, chosen by the state legislature for a term of six years. Any person so chosen must have attained the age of thirty years; must have been for nine years a citizen of the United States; and must, when elected, be an inhabitant of the state from which he is chosen. It was provided that after the first election the senators were to be divided as equally as possible into three classes, the first to retain their seats for two years, the second for four, and the third for §ix, so that one-third of the senate might be chosen every sec- ond year. Vacancies occurring during the recess of the state legislature are temporarily filled by the executive of ' Census of 1900. LEGISLATIVE DEPARTMENT 109 the state until the next meeting of the state legislature. The vice-president of the United States is to be president of the senate, but has no vote except in case of a tie. The senate is to elect ajso a president pro tempore and such other ofhcers as it chooses. Every senator is to have a vote, i.e., the vote in the senate is to be by individuals, not by states. 132. The Senate : Objects Aimed At. It is interesting to note how these provisions have determined the character of the senate, sometimes resulting as the framers of the con- stitution intended that they should, sometimes giving most unexpected results. Their main object was to create in the senate a dignified, conservative body possessed of practical} experience and superior intellectual abihty, which was to act as a check upon the "democratic recklessness" of the house on the one hand, and the "monarchical tendencies" of the executive on the other. It was hoped that the higher age quahfication would result in sending to the senate men of wider information and greater stabiHty of character than that ordinarily possessed by members of the house; while the in- direct manner of election and the length of the term were intended to secure greater independence of action than was possible or desirable in the lower house. In order that it might be an effective check upon the executive, it was deemed necessary that the senate should be made to share to a cer- tain extent executive power. Hence its comparatively small size. This, too, was the primary reason for the division of the senate into classes. One of its chief executive functions is to share in the management of foreign affairs, a function that can be satisfactorily performed only by a body possess- ing sufficient permanency to assure a certain continuity of 110 CIVIL GOVERNMENT policy. By retiring only one-third of the senate every two years such permanency is secured. A "new house" is cre- ated every second year; a "new senate" never. 133. Election of Senators. Of those, clauses of the con- stitution dealing with the senate, the one providing for a method of electing the senators is perhaps the most con- spicuous failure. The constitution provided simply that they were to be elected by the state legislatures, the time and manner of holding such elections being left to the decision of the states, though the right was reserved to congress "to make or alter such regulations by law" at any time. Up to 1866 congress took no action in the matter. Then a federal law was passed providing the present uniform method of election. This requires that each house shall first vote sep- arately for the election of a senator. If the choice of both houses does not fall upon the same person, they are to meet m joint session and take a viva voce vote, a majority of each house being present and a majority of the whole legislature being required for election. If there is still no election, the joint assembly must meet on each succeeding day and take at least one vote until a choice is made. These provisions have so often resulted in abuse of various kinds (the sena- torial deadlock, the breaking of a quorum, etc.) that some agitation has arisen in favor of direct election of senators, and a number of the state legislatures have formally recorded their approval of the plan. Three times a resolution pro- viding for an amendment to the constitution to procure this result has passed the house, but each time it has failed in the senate. 134. Objections to Election by State Legislatures. The objections urged against the election of United States sena- LEGISLATIVE DEPARTMENT ill • tors by the state legislatures are by no means trifling. The tendency is unquestionably to carry the strife of national parties into the state legislatures and to make national party interests paramount there to the detriment of state interests. This method of election has been charged "with the deteri- oration of state legislatures, with the growth of machine rule, with the purchasabiUty of Senatorships, and with the decline of the United States itself." Whether the constitutional amendment necessary in order to change to the method of popular election could ever be .brought about, is very ques- tionable. In any case it would be a matter of great diiS- culty. What seems to be happening is that the actual method of election is coming to be more or less direct, though it remains still nominally indirect. 135. Present Practice. As a matter of fact, the election of senators, though it is by no means actually direct election by the people, is already only nominally election by the legis- lature. The real choice is made in the caucus of the majority party in the state legislature before the legislature meets. It now frequently happens that party conventions in the various states nominate their candidates for senator, and these nom- inations are subsequently ratified by the party majority in the legislature. This brings the choice one degree nearer to the people than the present method, and might, if it became fixed and general, result in nearly direct election, provided the people were able through a good primary nominating system to control the nominations. Otherwise it would simply mean election through a clique of party bosses. An- other method is illustrated by the practice of the state of Nebraska. In that state, voters when voting for members of the state legislature are permitted "to express by baUot 112 CIVIL GOVERNMENT • their preference for some person for the office of United States Senator. The votes cast for such candidates shall be canvassed and returned in the same manner as for State officers." If such a system' as this should prevail, any party could propose a qualified candidate for senator and secure an expression of popular approval or disapproval throughout the state. Of course the legislature would not be bound by law to elect a candidate who might be indicated in this way as the people's choice; but the political power of any unmis- takable expression of popular opinion is very great, and doubtless such an expression would soon come to be ratified in the state legislature. 136. The Senate : Its Officers. The officers of the senate except the president, are chosen by that body. They are president, president pro tempore, secretary, chief clerk, ser- geant-at-arms, chaplain, postmaster, librarian, and door- keeper. None of these except the president pro tempore is a member of the senate. As we have already seen (§131), the vice-president of the United States is ex officio president of the senate. He cannot vote except in case of a tie, nor does he appoint the committees; they are chosen by the senate. The president pro tempore, on the other hand, has a vote on any question, but cannot cast the deciding vote in case of a tie. The vice-president having taken the oath of office at his inauguration, takes up his duties as presiding officer on the first day of the session and administers the oath of office to the new senators. 137. Privileges of Members of Congress. The members of both houses are by the constitution granted certain priv- ileges on the one hand and subjected to certain restrictions on the other. Except for treason, felony, or breach of the , ' It is quite generally the custom in the southern states to nominate United States senators at the primaries (see footnote, page 322), and such nominations are considered as morally binding upon the state legislature. LEGISLATIVE DEPARTMENT 113 peace they are privileged from arrest while attending ses- sions of the legislature or while going to or coming from such meetings; and they cannot be subjected to question outside the legislature for any speech or debate uttered there. The object of taking this extraordinary precaution to secure free- dom of person and freedom of speech to a member of con- gress is, of course, to prevent his district from being actually deprived of its representation by means of a false charge against him, or practically deprived of it by muzzling his utterances. Besides thus securing them special privileges, the constitution provides that congressmen shall be paid for their services out of the federal treasury. The question as to whether salaries should be paid to the national legislators was warmly discussed in the constitutional convention. Eng- lish practice was opposed to it; the practice of the states favored it. The convention followed the example set by the states,* partly in the belief that men of abihty might thus be enabled to enter the public service who would otherwise be debarred by poverty; partly with a feeling that the salary might be a means of making positions in the na- tional legislature attractive enough to compete with those of the state legislatures. The constitution left the amount of the salary to be determined by law, and it has been changed several times. Both senators and representatives receive $5,000 per year, with 20 cents per mile for travelling expenses to and from Washington, and $125 for stationery. The speaker of the house receives $8,000 per year and mileage; the president pro tempore the same, while acting as president of the senate. ' Bryce presents the arguments on the other side. See Vol. I, pp. 194- 195 and note. 114 CIVIL GOVERNMENT 138. Disabilities. On the other hand, members of the fed- eral legislature are disqualified for appointment to "any- civil office under the authority of the United States which shall have been created, or the emoluments whereof shall have been increased" during their term of service; and United States officials cannot become members of the na- tional legislature and at the same time continue in office. The object of the first part of this provision was to remove a possible temptation on the part of members to create offices or increase the salaries attaching to already existing offices for the sake of profiting by them personally. The last part is another example of concession made to appease state jealousy, the states fearing that the admission of United States officials to seats in congress would give the national government undue influence over the states. 139. Sessions of Congress. The time fixed by the consti- tution for the meeting of congress is the first Monday in December. As we have already noted (§ 123), the elec- tions for members of the house fall in November of the even- numbered years, but the house elected at that time does not meet until December of the following year. There are two sessions of each congress : the first or long session, beginning the first Monday in December a year after election and con- tinuing' usually until midsummer, though it would be pos- sible for it to continue until December; and the second or short session, beginning likewise in December one year after the opening of the first session and continuing until the 4th of March following, when the congress expires. Thus it will be seen that one session of each congress is held after its successor has been elected, and that it is possible for the ex- piring congress to pass legislation of which the people have LEGISLATIVE DEPARTMENT 115 already expressed disapproval by electing a house of a dif- ferent political complexion. Bills may carry over from the long to the short session in the house and perish with the arrival of March 4th, but senate bills do not die by the pass- ing of time. The daily sessions last usually from noon until four or six o'clock, but may be, and often are, prolonged until late at night, particularly toward the end of the session. One congress is two years in length and has two sessions. 140. Quorum. It is provided by the constitution that a majority of each house shall constitute a quorum, but a smaller number may adjourn from day to day and may com- pel the attendance of absent members. There has been some discussion as to whether "a majority of each house" means a majority of the whole number that might possibly be elected or a majority of those who are actually members — in other words, whether vacancies should be counted. The view has generally been held that they should not. In case there is no quorum, and fifteen members and the speaker are present, they may proceed to compel the attendance of absentees by closing the doors of the house, calling the roU, noting the absent members, and then by a majority vote of those present authorizing the sergeant-at-arms to arrest and bring into the house such members as have no sufficient ex- cuse for absence. 141. Procedure. Each house is given the power of de- termining its own rules of procedure and of enforcing them by punishing disorderly members even to the extent of expelHng them, but the concurrence of two-thirds of the house is ne- cessary for expulsion. In order that the pubHc may be kept informed of the proceedings of congress, each house is re- quired to keep a journal and to pubUsh it from time to time. Ii6 CIVIL GOVERNMENT "excepting such parts as may in their judgment require secrecy." The debates, however, are published daily in the Congressional Record, not in the journal. 142. Adjournment. In the matter of adjournment the con- stitution provides that " Neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting." This provision is designed to prevent the blocking of legislation by the ad- journment of one of the houses. If the two houses can come to no agreement as to the time of adjournment, the president may adjourn them to such time as he deems proper. 143. Comparison with Congress of the Confederation. We have already noted the significance of some, of the differences between the congress created by the articles of confederation and that created by the constitution. It may be weU here to summarize briefly the chief differences in the organization of the two bodies. (i) The congress of the confederation consisted of a single house ; that created by the constitution consists of two houses. (2) Under the confederation each state was entitled to rep- resentation through delegates ranging from two to seven in number; under the constitution members are apportioned according to population in the house; by states in the senate, two for each state. (3) Under the confederation the terms of delegates were one year in length; under the constitution representatives serve two years, senators six. (4) Under the confederation delegates were chosen from each state as the legislature of the state might direct; under LEGISLATIVE DEPARTMENT 117 the constitution representatives are elected by the people, senators by the state legislatures. (5) Under the confederation each state had but a single vote no matter what the number of delegates; under the con- stitution each senator and representative has his individual vote {i.e., Ohio 23, New York 39, etc.). (6) Under the confederation the salaries of delegates were paid by the states; under the constitution they are paid by the United States. Library References. — Ashley, §§ 255-259, 264-269, 277-282; Macy, Chap. XXXIII, pp. 211-217; Macy, First Lessons, Chap. XVII; Dawes, Chap. II, pp. 119-127, 139-141; Bryce, Vol. I, Chaps. X,XII-XIII, XIX; Hinsdale, Chaps. XVII-XX, XXIII; Wilson, §§ 1054-1061, 1064-1073; Federalist; Madison, Journal of Convention; Fiske, pp. 220-228; Harri- son, Chaps. II-III; Curtis, Vol. I, Chaps. XXII-XXIII, XXV; Wilson, Congressional Government, pp. 219-230; Dole, Chap. XII; Alton, Chaps. II-III, VIII; Lalor, Articles on Gerrymander, Senate, House of Representa- tives; Woodbum, pp. 196—210, 214—222, 230-231, 239-243, 246—255. QUESTIONS ON THE TEXT 88. Describe the legislative department of the national govern- ment. 89. Why was it thought best to have congress consist of two houses ? What are the advantages of two branches in congress ? 90. Give in substance the provision of the constitution in refer- ence to apportionment of representatives. 91. How is the number of members composing the house of representatives determined? State the number composing the present house. (See latest edition of Tribune or World Almanac.) When may this number be increased ? 92. What state has the largest number of members in the house of representatives ? Why ? 93. How are members of the lower house elected ? 94. State the qualifications required for membership in the house of representatives and explain the importance of two of these requirements. ii8 CIVIL GOVERNMENT 95. How long is the term of oflBice of a member of the house of representatives ? 96. How are vacancies in the office of representative filled? 97. Define bribery. 98. Mention the principal duties of the speaker of the house of representatives. 99. State the basis of representation in (i) the senate; (2) the house of representatives. Why this difference ? 100. State the conditions of eligibility to the office of senator. 101. Give with respect to a senator (i) length of term; (2) min- imum age; (3) salary; (4) duties. 102. One-third of the members of the senate are chosen once in two years. Give reasons for the gradual change in membership. 103. Explain why the constitution provides that the term of a member of the house of representatives shall be shorter than the term of a senator. 104. How are senators elected? What is meant by a joint ballot in the legislature? Give the principal arguments for and against the election of senators by direct vote of the people. 105. State how the president pro tempore of the senate is chosen, and mention one duty. 106. How do the two houses of congress differ as to the way in which the presiding officer is chosen ? 107. Under what circumstances are the presiding officers in congress entitled to vote ? 108. Mention two privileges conferred by the constitution on senators and representatives in congress, and give a reason for each provision. 109. What privilege have members of congress as to arrest, and why is this privilege given them ? 110. How often does congress meet? 111. Define quorum; majority; plurality; what is meant by the " 49th Congress " ? 112. In what respects did congress under the confederation differ from congress under the constitution ? CHAPTER IX LEGISLATIVE DEPARTMENT: ITS POWERS AND LIMITATIONS 144. The Taxing Power. When the makers of our con- stitution in drafting the document came to assign powers to the congress for which they had provided, they dealt first with the powers of congress touching the matter of money, and they placed at the head of the list the power "to lay and collect taxes, duties, imposts, and excises." Experience un- der the articles of confederation had taught them the abso- lute necessity of placing, the power of taxation in the hands of the central government, if it were to continue to exist. They had learned that no government can be in any true sense a government, that it cannot even continue to be, unless it has the power of securing the means for its own continuance. This power is to a government what the power of securing food is to an individual of the animal world. However highly endowed in other respects, if it lacks this, it must soon succumb. The power of taxation is the ulti- mate means through which government accomplishes the objects for which it exists. This the framers of the consti- tution recognized; for in clothing congress with this power they added that it was in order that it might "pay the debts and provide for the common defence and general welfare of the United States." 145. Taxes: Classification. What, then, are these "taxes, duties, imposts, and excises" that congress is empowered to 119 I20 CIVIL GOVERNMENT lay and collect? How do they differ from each other and how are they laid and collected? Tax is the general name for money demanded by government for public pxirposes from those under its authority. Duties, imposts, and ex- cises are all taxes. Taxes are divided into two general classes — direct and indirect. A tax is direct when the burden of it is borne by the person from whom government demands it, e.g., poll-taxes, taxes on land or property. In- direct taxes "are those which are demanded from one per- son in the expectation and intention that he shall indemnify himself at the expense of another," i.e., they are levied on goods before they reach the person who uses them and are ultimately paid by him as a part of the market price, not as a tax. Duties, imposts, and excises are indirect taxes. In other words, the indirect tax can be shifted, the direct cannot. At present in the United States direct taxes are levied only by state and municipal governments, the revenue for the general government being derived from indirect taxes only; but congress has at various times levied direct taxes. The reason for the discontinuance of direct taxation by the gen- eral government is that under present constitutional re- quirements it works injustice to some sections. Congress is forbidden by the constitution to lay any direct tax except in proportion to population. If, then, one state has twice as many inhabitants as another, it must pay twice as large a share of any direct tax that may be levied. That seems just at first sight; but as a matter of fact, the state that has twice as large a population as another, has in general more than twice as much wealth, with a corresponding greater ability to pay, so that the tax falls more heavily on the less densely populated state. LEGISLATIVE DEPARTMENT 121 146. Indirect Taxes: Duties. It is, then, in indirect taxes that we are chiefly interested here. Duties (also called customs) are taxes laid upon goods exported or imported. The term "imposts "is by some writers restricted to duties upon imports, but the distinction is not generally made. Since congress is forbidden by the constitution to tax articles exported from any state, duties in the United States are always import duties. They are of two kinds — specific and ad valorem. Specific duties are fixed amounts of taxation laid upon the unit of measurement of the article taxed, i.e., the duty is chargeable by quantity, weight, or number. An ad valorem duty is one levied at a certain rate percent on the value of the commodity taxed, i.e., the duty is chargeable according to the value of the article. Sometimes both a specific and an ad valorem duty are levied upon the same article. 147. The Tariff. In order that duties may be imposed as it desires, the government sees to it that a list of goods with the duties to be paid on them is made out and placed in the hands of the proper officials. Such a hst is called a tariff or a tariff schedule. The term "tariff" is applied also to the duties imposed according to such a hst, i.e., to the resulting revenue, as well as to a law regulating im- port duties. Tariff questions have played a very important part in the history of the United States, becoming at times the main point at issue between the two great poHtical parties. Such questions arise out of differences of opinion as to what should be the purpose of government in impos- ing duties. When a duty is laid upon an imported article the importer simply increases the price of it sufficiently to indemnify himself for the amount paid to the govern- 122 CIVIL GOVERNMENT ment/ Thus the price may be increased to such an extent that, if the article can be produced in this country at all, it will be cheaper to produce it here than to buy it abroad. In this way a new industry may be created, or an existing one that was in danger of being forced out of existence may be enabled to continue. This policy of creating or fostering home indus- tries by means of the imposition of duties is known as the poHcy of protection, and those who believe that it is the duty of government to maintain such a poHcy are called protection- ists. Their opponents, the so-called free-traders, do not gen- erally insist upon a policy of absolute free trade. They admit that congress has the right to impose duties, but insist that they should be for the purpose of producing revenue only. 148. Excises. The other kind of taxes through which the government obtains revenue for its support, is the kind known as excises. These are taxes levied upon the con- sumption, sale or manufacture of commodities within the country. The revenue resulting from them is known as "internal revenue." Liquors and tobacco are the commod- ities most commonly subjected to this kind of taxation, but are by no means the only ones. When it became ne- cessary, in order to pay the expenses of the Spanish- Ameri- can war, for the goverrunent to secure additional revenue, the Ust of articles producing internal revenue was greatly increased. A tax was levied on banlcers and brokers; on all sorts of proprietary articles (patent medicines, perfumes, ' In theory, a tariff for any purpose is added to the price of the goods to the consumer. In fact, however, competition between producers in the same country, advantages in transportation and the law of supply and de- mand, so modify the theory that in many cases the price to the consumer is equal to or less than the foreign price, and in some instances has been less than the tariff on the foreign commodity. LEGISLATIVE DEPARTMENT 123 etc.); and on legal documents, such as bank checks, tele- graph and telephone messages, express receipts, etc. These documentary taxes were like those imposed by the stamp act of 1765, and were collected by requiring that a stamp be affixed to the documents. 149. Collection of Taxes. Considerable expense attaches to the collection of these federal taxes. In order to collect the import duties, the government has designated certain places along the coasts and other boundaries to be used as "ports of entry." At these places custom-houses are established in charge of officials known as "collectors of customs," who, with their assistants called "inspectors," are charged with the duty of examining goods coming into the country, and assessing the duties upon them according to the existing tariff rates. At New York, the principal port of entry in the United States, nearly two thousand officers and clerks are employed in this work. Besides custom-house employees the government is obliged to keep in its service also a large number of special agents and revenue cutters to prevent "smuggUng," as the illegal importation of dutiable commod- ities is called. The collection of excises is under the super- vision of the "commissioner of internal revenue," who is the head of one of the bureaus of the treasury department. The country is divided into revenue districts, each district in charge of a collector, whose duty it is to see that the laws are enforced in his district. 150. The Power to Borrow. Next after the power of tax- ation the constitution places in the hands of congress the power "to borrow money on the credit of the United States." Under normal conditions every well-regulated government is able to provide the means for its support by the ordinary 124 CIVIL GOVERNMENT methods of taxation; but emergencies, such as war, requiring suddenly increased expenditures, may arise, and the gov- ernment must then obtain revenue either by additional tax- ation or by borrowing or by both. Of course all money borrowed by the government must ultimately be paid by taxation, so that the two are closely connected. Borrowing only shifts a part of the burden of taxation to a later date, to the shoulders of a later generation in most cases. The ordinary method employed by government for borrowing money is the sale of bonds. A government bond is the same in nature as a pi-omissory note given by an individual when he borrows money. It is the government's promise to pay a certain sum at a certain time with interest. Some- times they are made payable at the option of the govern- ment after a certain minimum number of years, but fall due within a certain maximum number. The United States government has borrowed money in other ways than by the sale of bonds. It has issued treasury notes. These were not really different in character from bonds, but they were generally smaller in denomination and ran for shorter pe- riods. A third method was that employed by the govern- ment in the legal tender acts of civil war times. These acts really provided for a forced loan from the people. Con- gress authorized the issue of a large number of United States notes, which it declared legal tender, i.e., they must be ac- cepted in the payment of debt. 151. Money : Its History. Another important power vested in congress is the power of coining money and regulating its value and that of foreign coin. This is not the place to enter upon a detailed discussion of the origin and history of money. It will be sufficient to note that as soon as LEGISLATIVE DEPARTMENT 125 trade begins to develop, men begin to feel the need for some convenient medium of exchange, i.e., for some sort of money. Different substances have been used for this purpose among different peoples at various times; but met- als, and particularly gold and silver, have been found most convenient and have been generally adopted. At first the mere bits of metal were used, their value being determined by weighing. Later they were wrought into some sort of form, and marked in some way to indicate their weight; in other words, they were coined; but this process, being at first in private hands, could give neither uniformity nor as- surance of value. Thus governments began to assume this function of coinage, and the government stamp became a pledge of the value of the coin. 152. Power of Coinage. United States Money. At the time of the adoption of the constitution there was no uniform monetary system in the country, the money in circulation consisting of a variety of foreign coins — Spanish dollars, English shillings, etc.; and the need for uniformity had become obvious. This was secured by vesting in congress alone the power of coining money and regulating its value. The actual process of coining money is carried on by the government at its mints. Of these the first was established at Philadelphia in 1792, and this still remains the principal one. Since then mints have been estabhshed at San Fran- cisco, New Orleans, and Carson City. The government also maintains a number of assay offices, places where gold and silver are brought to be tested for the purpose of deter- mining their purity. The coinage of money is under the di- rection of one of the bureaus of the treasury department known as the United States mint. The officer in charge of 126 CIVIL GOVERNMENT this bureau is called the director of the mint. Gold, silver, nickel, and bronze are the metals used in coins. At present the gold coins issued from the mints of the United States are the double eagle, eagle, half eagle, and quarter eagle; the silver coins are the dollar, half dollar, quarter dollar, and dime; the minor coins are the nickel and one cent piece. The gold coins and the silver dollars have been declared legal tender for any amount, excepting when the contract stipulates othervirise; the smaller silver coins in sums not exceeding ten dollars ; the other coins up to twenty- five cents. Besides its coins the United States also issues paper money. This is made at the bureau of printing and engraving, which, like the United States mint, is under the direction of the treasury department. The kinds of paper money now in circulation are United States notes, silver certificates, gold certificates, treasury notes of 1890, and national bank notes. 153. Counterfeiting. We have seen that the power of con- trolUng the monetary system of the country was put into the hands of congress in order that the people might be able to count upon its uniformity and the value and genuineness of the money issued. To accomplish this fully it was neces- sary that another power should be granted to congress — namely, the power "to provide for the punishment of coun- terfeiting the securities and current coin of the United States." To counterfeit anything is "to make a copy of it without authority or right, and with a view to deceive or defraud by passing the copy as original or genuine." In the matter of money the law regards it as counterfeiting either (i) to man- ufacture, (2) to put into circulation, or (3) to have in pos- session with intent to circulate forged coins or securities of the United States. The forged coins may be of equal weight LEGISLATIVE DEPARTMENT 127 and purity with those of the government; they are none the less counterfeit. By the term "securities of the United States" is meant the bonds, paper money, etc., mentioned above, together with postage and revenue stamps. So im- portant is it that the genuineness of the nation's money should be beyond suspicion that the penalties provided for the offence of counterfeiting are extraordinarily heavy; and not only the general government but the several states have enacted laws for its punishment. It is also forbidden to counterfeit within the United States the coins, notes, bonds, etc., of foreign governments. 154. Power to Regulate Commerce. It will be remem- bered that one of the defects of the articles of confederation was that they left the control of commerce entirely in the hands of the separate states, with what unsatisfactory re- sults we have already seen (§ 89). It will be remembered also that the constitutional convention itself grew out of the attempts made through the Alexandria and Annapolis con- ventions to solve these difficult commercial problems; and that it was only with the greatest reluctance that some of the states finally yielded to the general government the right to control their commercial relations with other states and with foreign nations. This right was finally yielded, how- ever, and congress was given the power "to regulate com- merce with foreign nations and among the several states, and with the Indian tribes." Commerce with the Indian tribes was a matter of considerably more importance in 1787 than it is now; and its regulation by the general government was a practical necessity, if frequent and more or less dis- astrous wars were to be avoided. Foreign and interstate commerce, on the other hand, have so increased in volume 128 CIVIL GOVERNMENT and the questions involved have become so complex, that it would be now more than ever impossible to leave the con- trol of them in the hands of the states. 155. Foreign Commerce. In accordance with the above mentioned provision congress has enacted a great variety of laws for the protection and facihtation of our commerce. When the matter of taxation was under discussion (§ 149), it was noted that for the purpose of collecting import duties, the government had designated certain places to be used as ports of entry and established custom-houses at such places. At these ports all vessels are obliged to "clear" and "enter." Before a vessel leaves port the master is required to show that aU harbor duties have been paid and all regulations ob- served. Thereupon the collector of customs at that port issues a certificate called a "clearance," and the vessel is free to sail. Upon arrival in port, "entry" is accomplished by the master's reporting to the collector, presenting a state- ment of his cargo, and deUvering the clearance received at his last port, if he has touched at an American port. Con- gress has also passed navigation laws defining the nation- ality of our ships (i.e., determining what vessels shall be re- garded as American), the manner of their registration, the privileges that shall be granted them, and the conditions under which foreign vessels may engage in the commerce of the country. Registration or registry is the process by which United States vessels secure the protection of this government in any part of the world. There is issued to the registered vessel by the government a document contain- ing a general description of the vessel, and this is intended to serve as a means of identification and a certificate of pro- tection. Only vessels owned by citizens of the United States LEGISLATIVE DEPARTMENT 129 and built in this country are registered. Under the author- ity of this provision also congress has taken measures for the protection of shipping by building and maintaining light- houses and buoys, providing life-saving stations, improving harbors, establishing quarantine regulations, requiring the employment of Ucensed pilots, making coast surveys, etc. Finally, it is by virtue of this provision that congress has undertaken to regulate immigration into the United States. Under existing immigration laws admission to the country is denied to the following classes of persons: the Chinese, convicts, insane persons, paupers and those liable to be- come paupers, polygamists, anarchists, persons afflicted with contagious diseases, and laborers under contract to perform labor or service in the United States, excepting persons en- gaged in the professions and skilled laborers employed in the estabhshment of new industries. The object of these restrictions is obviously to bar out those classes of persons who, for various reasons, would be likely to constitute an undesirable element in the population; namely, those who because of some mental, moral, or physical defect could hardly be expected to become desirable citizens and might even be dangerous; those who for economic reasons would be objectionable in the eyes of a large proportion of our own population; and those who, because of wide racial dif- ferences, could not be easily "Americanized." 156. Interstate Commerce. Not less important than its control over foreign commerce is the power granted to con- gress to regulate interstate commerce. In interstate com- merce is included not only land traffic between the states but also coast trade and commerce upon navigable rivers. In its "river and harbor" bills, therefore, congress yearly makes 130 CIVIL GOVERNMENT large appropriations in aid of interstate commerce. The most important piece of legislation in regulation of interstate com- merce ever passed by congress was the interstate commerce act of 1887. This was intended to relieve the public of some of the evils that had grown up in connection with the develop- ment of the great railway systems of the country. When the numerous small competing lines had been consolidated into a few great systems controlling a very large proportion of all interstate commerce, combination between these systems for the purpose of raising freight ' and passenger rates, or secur- ing for themselves other unfair advantages, became compara- tively easy. The interstate commerce act was an attempt to remedy such evils. Among other things it provided (i) that all rates should be reasonable; (2) that there should be no unfair discrimination between persons, corporations, or localities; (3) that equal facilities should be given to all con- necting lines; (4) that the charge for a "short haul" should not be greater than for a "long haul" under similar con- ditions; (5) that there should be no "pooling"^ agreements; and (6) that an interstate commerce commission should be created to supervise the administration of the law. The commission created in accordance with the act consists of five persons appointed by the president with the consent of the senate. It has power to investigate all cases brought before it, to take testimony, and to render decisions; but it ' See Montague, "The Rise and Progress of the Standard Oil Com- pany." New York, 1903. ^ "Pooling'' is an arrangement whereby a number of roads turn their earnings into a common fund to be distributed among the companies con- cerned in certain proportions agreed upon beforehand, the object being to remove the temptation to cut rates. Sometimes the freight itself is divided among the roads in fixed proportions. LEGISLATIVE DEPARTMENT 131 cannot enforce its decisions by the infliction of penalties. That can be done only by regular process of the courts; and since conviction is a difficult matter, the interstate commerce law has never been fully enforced. Nevertheless the commission has exercised great influence in lessening the evils that the law was intended to correct. 157. Anti-Trust Law. Another important legislative act for the regulation of interstate commerce is the federal anti-trust law of 1890, making illegal "any contract, com- bination in the form of a trust or otherwise, or conspiracy in restraint of trade or commerce among the several states or with foreign nations." A trust may be loosely defined as a combination of manufacturers in any particular line, organ- ized for the purpose of securing greater economy in produc- tion and preventing some of the losses incident to compe- tition. Those who form a trust ordinarily do so with the hope of being able to limit the output of the commodity and control prices, thus violating the common law principle which forbids any unreasonable restraint of trade. A ma- jority of the states have therefore passed laws prohibiting such combinations so far as their operations affect trade within the states; while the federal anti- trust law attempts to secure like protection for commerce between the states and with foreign nations. 158. Bankruptcy Laws. The right of congress to estab- lish "uniform laws on the subject of bankruptcies through- out the United States" may likewise be looked upon as a power given for the sake of enabling the government to afford more effective protection to interstate commerce. The power of congress to pass bankruptcy laws does not inter- fere with the retention of a similar power by the states; it 132 CIVIL GOVERNMENT only limits the power of the states in this matter. State bankruptcy laws affect only contracts made within the state between citizens of the state. Moreover, during the exist- ence of a national bankruptcy law, state laws that are in conflict with it in any particular, are suspended. 159. Piracy. Congress is also given by another clause of the constitution, the power "to define and punish piracies and felonies committed on the high seas and offences against the law of nations." Piracy, i.e., robbery committed on the high seas or committed by descent upon the coasts from the sea, is a menace to commerce and must naturally be made punishable by the same authority whose duty it is to pro- tect conamerce. Felonies committed on the high seas and offences against the law of nations are very hkely also to have to do with commerce; and must in any case be made punishable by the United States, since the law of nations recognizes only the government of the nation, not that of New York or Ohio. 160. Weights and Measures. The same clause of the con- stitution that gives congress power to coin money gives it authority also to "fix the standard of weights and measures." Though this is a matter of considerable importance to trade, it was not until 1875 that congress established a bureau of weights and measures, and not until 1901 that a law was en- acted giving full effect to this grant of power by establishing a national standardizing bureau in the treasury department. 161. War Powers. We have seen how powerless congress was under the articles of confederation to prosecute a vig- orous war. Fortunately, before they went into effect the revolution was already drawing to a close; and while they remained the fundamental law of the land the government LEGISLATIVE DEPARTMENT 133 was not again called upon to face the emergency of war. The members of the constitutional convention, however, reahzed the danger and remedied the defect of the old gov- ernment by granting to the new one ample miUtary powers. Congress was given power: (i) To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; (2) To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; (3) To provide and maintain a navy; (4) To make rules for the government and regulation of the land and naval forces; (5) To provide for calling forth the mihtia to execute the laws of the United States, suppress insurrections, and repel invasions; (6) To provide for organizing, arming, and disciplining the mihtia, and for governing such part of them as may be em- ployed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress. In addition to these powers congress was given the right: (7) To exercise exclusive legislation in all cases whatsoever over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings. 162. Declaration of War. When the constitutional con- vention came to discuss the question as to where the power to declare war should reside, they considered the plan usu- ally followed by European nations of leaving that preroga- tive with the executive. The question was settled, however, 134 CIVIL GOVERNMENT by their adopting what they felt to be the more republican as well as the safer principle of granting this important power to the representatives of the people. While a formal declaration of war is not a necessary preliminary to hostiUties, it is usual for a nation to make such a declaration. 163. Armies. The power to declare war implies as a con- sequence the power to raise and support armies. Under ordinary circumstances congress raises armies by enlistment (voluntary enrollment), but in case of necessity it may raise them and has raised them by conscription or draft (forced enrollment). It rests with congress also to determine the size of the army and the term for which the men shall serve; to furnish the necessary supplies and equipment; to build fortifications, arsenals, barracks, hospitals, etc.; to provide schools for the instruction of officers and men; to do all that may be required in order to make the army efficient. It was thought best, however, in giving congress this power of raising and supporting armies, to impose an important re- striction. It was provided that no appropriations for this purpose should run for a longer term than two years. This keeps the army strictly dependent upon the people for its existence and support and enables them to control the mil- itary policy of the country. As a matter of fact, these ap- propriations have generally been made annually. 164. The Regular Army. It has always been the poHcy of the United States to keep the standing army small and to rely upon the militia for defence in extraordinary emergen- cies — a policy dictated partly by fear of the possible power of the army, partly by the fact that our geographical posi- tion makes the maintenance of a great army unnecessary. LEGISLATIVE DEPARTMENT 13S To European eyes ^ our standing army must seem absurdly small. Before 1898 the maximum limit was 27,000 enlisted men. By act of congress passed March 2, 1899, the presi dent was empowered to increase the regular army to 65,000 for a term of two years; and in February, 1901, the new army law fixed the minimum number of men at 57,000 and the maximum at 100,000. The army is organized by divid- ing it into departments. The departments are made up of one or more brigades; the brigades of three regiments; the regiments, if infantry of twelve companies, if cavalry of twelve troops or companies, if artillery of fourteen companies or batteries. The maximum number of men in a company is one hundred. The president is ex officio commander-in- chief; but the actual operations of the army are directed by the lieutenant-general, the officer highest in command. The title of general is an honorary title. The department or the brigade is commanded by a brigadier-general, the regiment by a colonel aided by a lieutenant- colonel and a major, the company by a captain and first and second lieutenants. Non-commissioned officers are first sergeant, sergeant, and corporal. 165. The Militia. In addition to the regular army the de- fence of the country is provided for by means of the miUtia. As defined by congress this is made up of aU able-bodied male citizens between the ages of eighteen and forty-five. It is partly organized and partly unorganized. The organ- ized portion, known as the national guard, is regularly equipped, drilled, and officered; but this work is done by ' In 1903 the armies of Europe on a peace basis were: Germany, 601,411 men; France, 561,375; Italy, 226,528; Austria-Hungary, 288,834; Russia, 1,098,946; England, 237,622. 136 CIVIL GOVERNMENT the states according to the discipline prescribed by congress, and the choice of all regimental officers of the mihtia is left to the several states. In case they are needed "to suppress in- surrections or repel invasions " the president issues a call to the governors of the states, who thereupon furnish the necessary troops. They then become a part of the mihtary force of the United States and are subject to the same disciphne as the regular army. Five times the mihtia has been called out: during the whiskey rebeUion, the war of 181 2, the civil war, the Spanish war, and to suppress the Phihppine insurrection. 166. The Navy. For many years before 1883 the United States navy, as compared with the navies of the old world, was very insignificant. Only for a short period during and immediately after the civil war was it maintained in any- thing like a state of efficiency. During the last quarter of a century, however, the rapid expansion of our commercial and political relations with distant parts of the world has resulted in the building up of a really efficient navy. The power granted congress to build and maintain a navy im- plies of course the power to do whatever may be necessary to make it efficient — to enroll seamen, construct vessels, establish navy-yards and docks, furnish supplies and muni- tions, and provide for the instruction of officers and men in schools or otherwise. In some states a naval mihtia has been organized. If called into service in time of war, they man vessels for the defence of the harbors, thus freeing the regular naval force for other duties. In the navy the offices of admiral' and vice-admiral correspond to that of general in the army, i.e., are honorary titles; neither of these offices is permanently maintained. The office of rear-admiral cor- 'New International Encyclopedia, vol. I, p. 122. LEGISLATIVE DEPARTMENT 137 responds to that of lieutenant-general in the army. The other officers are commodores, captains, commanders, lieu- tenant-commanders, lieutenants, lieutenants junior grade, ensigns, and naval cadets. 167. Military Law and Courts. To congress also is as- signed the duty of making rules for the government and regulation of the land and naval forces. Accordingly there has been enacted a code called the "military law" prescrib- ing tactics and arrangement of troops, classifying officers and men, regulating their pay, defining military and naval offences, and providing for their punishment by means of special tribunals called courts-martial (i.e., military courts), whose jurisdiction and procedure it establishes. 168. Letters of Marque and Reprisal: Captures. It will be noticed that the same clause that gives congress power to declare war gives it also the power to "grant letters of marque and reprisal and make rules concerning captures on land and water." Letters of marque and reprisal are permits issued by the government of a state in time of war to vessels owned and officered by private persons, giving them the privilege of seizing the property of the enemy wherever found. Such vessels are called privateers and have in past wars wrought great injury to commerce. When our constitution was framed, the custom of granting letters of marque and reprisal was general; but in 1856 an agreement was entered into by most of the great European powers that privateering should be abolished. Neither Spain nor the United States was a party to this agreement, and at the breaking out of the Spanish-American war the question of permitting privateering came up. Our government decided to observe the agreement of 1856. Spain, on the other hand, 138 CIVIL GOVERNMENT declared in favor of granting letters of marque and reprisal, though none was actually granted. It seems hardly likely that our government will ever again resort to this method of naval warfare. The rules laid down by congress in re- gard to captures are briefly as follows : captures on land are the property of the government; captures on the water are sold. If the captured vessel is superior or equal in rank to the vessel making the capture, the proceeds are divided among the victorious crew according to the pay of each; if the captured vessel is of inferior rank, half the proceeds go to the government, the rest to the crew. 169. Military Property. We have already seen that in providing and maintaining an efficient army and navy, con- gress has need of a very considerable amount of military property, such as forts, magazines, arsenals, dockyards, etc. Over all places purchased from the states for the purpose of erecting such structures or any other necessary buildings, congress is of necessity given the right to exercise exclusive legislation. No matter in what state they may be located, they are never subject to state law, except that the states usually reserve the right to serve civil and criminal writs on persons within the ceded territory. 170. Miscellaneous Powers : Naturalization. Besides the powers granted to congress in matters relating to money, commerce, and war, the constitution also confers upon it a number of other powers not easily capable of classification. One of these is the power "to establish a uniform rule of naturalization." Naturalization is the term applied to the process by which persons who have been citizens of one country become citizens of another. Before the adoption of the constitution each state made its own naturalization LEGISLATIVE DEPARTMENT 139 laws without much regard to the rules existing in other states. The natural result was confusion, which was remedied by giving this power into the hands of the general government. Until the passage of the XlVth amendment to the constitu- tion some question existed as to what constituted citizenship in the United States. That amendment settled the question by declaring that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." All other residents of the United States are aliens. 171. Naturalization Laws. Since the adoption of the con- stitution congress has passed several naturalization laws. The present law requires that the alien who desires to be- come a citizen must appear before a court of record at least two years before admission to citizenship and there declare on oath his intention to become a citizen and to renounce his allegiance to any other government. This declaration is then recorded and the applicant is furnished with a copy of the record. Two years later the applicant for citizenship must appear in open court, must furnish proof that he has resided continuously in the United States for five years, and in the state or territory where the court is held for at least one year, and that he has behaved as a man of good moral character. He must then take an oath to support the con- stitution of the United States and renounce allegiance to any foreign government. If he has held any foreign title or order of nobihty, it must be renounced. These facts are then recorded and a certificate of naturalization is granted. The wife and minor children of a naturalized citizen become citizens through his naturahzation. Minor children take the citizenship of their parents. Thus children born abroad I40 CIVIL GOVERNMENT to citizens of the United States, either native bom or natur- alized, are American citizens. Naturalization is denied to Chinese. 172. Postal Service. Another of the miscellaneous powers belonging to congress is the power "to estabUsh post-offices and post-roads." In granting this power the constitutional convention was simply continuing a power that had already been delegated to the general government by the articles of confederation. The postal service is, indeed, so obviously a matter that can be better managed by the general govern- ment than by the states that it is not surprising that it aroused little discussion. The members of the convention seem not to have foreseen, however, how vast and important an enter- prise the postal system of the United States was to become. The Federalist, discussing this matter very briefly, says, as if half apologizing for troubhng the general government with so unimportant a business: "Nothing which tends to facilitate the intercourse between the states can be deemed unworthy of the public care." We shall not, perhaps, be surprised at this attitude, if we remember that in 1790 there were in the United States only 75 post-ofSces and 1,875 miles of mail routes, and that the total postal revenue was only $37,935; while in 1902 there were nearly 76,215 post- offices, more than 507,540 miles of mail routes, and a revenue of $121,848,047. The United States does not attempt to make its postal system pay a profit, the policy having been for the last half-century and more to conduct it simply on an expense paying basis. As a matter of fact, during most of that period the annual expenditures have been greater than the revenue. Since 1870 there has been every year except two a deficit, that of 1901 amounting to nearly four LEGISLATIVE DEPARTMENT 141 million dollars. The law defines as post-roads "all letter carrier routes in towns and cities, all railroads and canals, and all the waters of the United States during the time mail is carried thereon." 173. Copyrights and Patents. The power to issue copy- rights and patents is another power given to congress, the purpose assigned in the constitution itself being, "to pro- mote the progress of science and useful arts." Copyright may be defined as the grant by a government to the author of an intellectual production (book, painting, sculpture, de- sign, photograph, musical composition, etc.) of the exclusive right for a limited time to multiply and dispose of copies of it. A person desiring to secure a copyright on such a pro- duction sends to the Ubrarian of congress a printed copy of the title in case of a book or similar production, or a descrip- tion in case of a painting, statue, etc. On or before the day of publication two printed copies of the book, etc., or a photograph of the painting, etc., must be sent to the same ofl&cial. A fee of fifty cents must be paid the Hbrarian of congress for recording the title or description, and an addi- tional fifty cents for furnishing a copy of the record. A copjnright runs for a period of twenty-eight years and is re- newable for fourteen more. A patent is the grant by a gov- ernment to the author of a new and useful invention of the sole right to make and sell it for a limited term. The in- ventor who desires a patent must, in his appHcation to the commissioner of patents, declare under oath that he believes himself to be the real author of the invention; must file in the patent ofl&ce a full description of the article, together with drawings and possibly a model; and must pay a fee of $15 on filing his appHcation and an additional $20 if the 142 CIVIL GOVERNMENT patent be allowed. A patent is issued for a term of seven- teen years, and may be renewed for a term of seven years by the commissioner of patents or by act of congress, pro- vided, however, that the inventor has not received an ade- quate money return. 174. The National Capital. By the same clause of the constitution which gave congress power to control aU places purchased for the erection of forts, magazines, etc., power was also conferred upon it to "exercise exclusive legislation . . . over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of congress, become the seat of the government of the United States." The need for such a provision had been shown by an unpleasant experience suffered at Philadelphia by the congress of the confederacy at the hands of an unpaid por- tion of the Revolutionary troops in 1783. The failure of the state government to afford the protection asked for had made it clear that the federal legislature must be given the power to protect itself and the seat of the federal govern- ment from the possibility of a repetition of such insults. From 1785 to 1790 New York was the national capital. In 1790 the seat of government was transferred to Philadelphia, where it remained until 1800, when it was permanently located in the District of Columbia. This was a piece of territory, originally ten miles square, lying along the Poto- mac, which was ceded to the United States by the states of Maryland and Virginia to be used as the seat of the national government. About thirty square miles on the right bank of the river were afterward receded to Virginia. 175. The Government of the District is provided for en- tirely by the federal authorities, the people having no po- LEGISLATIVE DEPARTMENT 143 litical rights. The executive officers are three commissioii- ers, two of whom are appointed for three years by the presi- dent with the consent of the senate, and one detailed from the corps of engineers of the United States army by the president to serve during his pleasure. They have gen- eral charge of municipal affairs, providing for the policing of the District, fire protection, education, etc. All officers other than the three commissioners are appointed by the president. The commissioners have the power to recom- mend needed legislation, but congress is the legislative body of the District, and all bills relating to it are passed in the regular manner. Congress pays one-half the expenses for the government of the territory; the other half is met by taxation of the inhabitants. The judicial power of the Dis- trict is vested in a supreme court consisting of six judges appointed by the president for life. 176. Government of Territories. Closely allied to this special power granted to congress to govern the territory in which is located the seat of the federal government, is the power granted it in another article of the constitution "to dispose of and make all needful rules and regulations respect- ing the territory or other property belonging to the United States." It is from this provision that congress derives •the authority to govern its territories. We have already seen (§ 81) that before the adoption of the constitution the vast tract of land known as the Northwest Territory, the different portions of which were claimed by several of the states, had been ceded by those states to the general govern- ment. Following these cessions the congress of the con- federation passed the act known as the ordinance of 1787, providing a government for this vast public domain — an 144 CIVIL GOVERNMENT act that has been called "the most important piece of gen- eral legislation of the confederation epoch." It is certain that congress under the articles of confederation had no power to pass such an ordinance, and many writers have declared it of no effect. It matters little now; for the first congress that assembled under the constitution, having been given the authority to pass such legislation, reenacted the ordinance, which has ever since furnished the model upon which the territories of the United States have been organ- ized. 177. Organized and Unorganized Territories. The Spanish- American war, resulting as it did in the acquisition by the United States of a number of insular possessions, most of them containing a population very different in character from that of the states and other territories, has very considerably complicated the problems of territorial government. Pre- vious to that war the territories were simply divided into two classes — organized and unorganized. In the or- ganized territories, including Arizona, New Mexico, Okla- homa, and, since 1900, Hawaii and Porto Rico, the government conforms with slight variations to the follow- ing type. There are the three departments of government — the executive, the legislative, and the judicial. The executive department consists of a governor, appointed by the president with the consent of the senate for a term of four years; a secretary similarly appointed; a treasurer, an auditor, and usually a superintendent of pubhc instruc- tion, appointed by the governor. The governor is ex officio commander of the militia. He has a veto power over the acts of the legislature, but his veto may be over- ridden, except in Arizona, by a two- thirds vote of the LEGISLATIVE DEPARTMENT 145 house. He makes annual reports to the president and sends a message to the territorial legislature. The legislature con- sists of two houses, a council and a house of representatives, elected for a term of two years by the voters of the territory, voting in districts. The sessions are biennial and limited to sixty days. The sphere of legislation in the territorial legis- lature is practically as wide as that of the state legislatures; but congress has the power to annul or modify any act, thus maintaining complete control over the internal affairs of the territory. The people of the territory send a delegate to congress, who has the privilege of debate but no vote. The judicial department consists of a supreme court of three or more judges appointed for a term of four years by the presi- dent with the advice and consent of the senate. In the un- organized territory, of which there are now only two -^ Alaska and Indian Territory — • there is no legislature. In- stead, the governor with the assistance of the judiciary or of a council, performs the necessary legislative functions. Congress has enacted a code of laws for each of the unor- ganized territories. 178. Territories : A New Classification. Since the Span- ish-American war a decision of the supreme court has prac- tically estabhshed a new classification for the territories. According to this decision there are (i) those constituting "a part of" the United States, and (2) those "belonging to" the United States. To the first class belong Alaska, Indian Territory, Arizona, New Mexico, and Oklahoma; to the sec- ond, Hawaii, Porto Rico, the Philippines, Guam, and the Samoan possessions of the United States. Hawaii and Porto Rico have been given organized territorial governments con- forming in a general way, though not completely, to the 146 CIVIL GOVERNMENT type existing in the organized territories constituting "a part of" the United States. The other territories "belong- ing to " the United States are variously governed by the military or naval authorities or by special commissions. 179. Power to Establish Courts. One other specific power the constitution intrusts to congress — namely, the power "to constitute tribunals inferior to the supreme court." In accordance with this grant of power, congress created by the judiciary act of 1789 the district courts and the circuit courts and defined their functions. In 1855 it estabhshed the court of claims, and in 1891 the circuit courts of appeals.' 180. The Elastic Clause. So far we have been dealing with specific powers granted to congress by the constitution. There remains to be considered a very important clause, often called the "elastic clause," conferring upon congress by a general grant of power the right to do whatever may be necessary and proper for carrying out the provisions of the constitution. The exact wording of the clause is as follows: Congress shall have power " to make all laws which shall be necessary and proper for carrying into execution the fore- going powers and all other powers vested by this constitu- tion in the government of the United States, or in any de- partment or officer thereof." It is out of the difference of opinion as to the interpretation of this clause that the two great schools of constitutional construction have arisen, the strict constructionists and the Hberal constructionists, the defenders of the doctrine of state rights and the upholders of the opposing doctrine of imphed powers. The first in- sist that the constitution, and in particular this clause of it, ' For a description of the character and functions of these courts, see §§ 281-287. LEGISLATIVE DEPARTMENT 147 should be strictly and narrowly construed, so as to give congress power to pass only such laws as are absolutely necessary in order to make effective the powers expressly granted. The Hberal constructionists, on the other hand, maintain that by the phrase "laws which shall be necessary and proper" is meant, not only such as are indispensable to the exercise of the powers granted congress, but all such as are in any way conducive to their complete execution. The decisions of the supreme court, when that body has been called upon to settle constitutional questions arising under this clause, have in general been made on the principle of liberal construction. 181. Special Powers of Each House. We come now to the consideration of certain special powers granted to each of the two houses of congress, but not to congress as a whole. We have seen that each house is given the power of control- ling its own organization and members; but there is given to each in addition certain important governmental powers. The special powers possessed by the house of representa- tives are three in number — the power to initiate all bills for raising revenue, the power of impeachment, and the power of electing the president in case no choice is made by the electors. The special powers of the senate are (i) the power to ratify treaties and to confirm presidential appointments, and (2) the power to act as a court of impeachment. 182. The House: Revenue Bills. Doubtless, the conven- tion in intrusting only to the house of representatives this power of initiating revenue bills was largely influenced by the practice of England, where for several centuries that power had resided in the house of commons. It was felt that the house, being renewed at frequent intervals by pop- 148 CIVIL GOVERNMENT ular election and thus standing more closely in touch with the people than could the senate, ought to be given control of the power of taxing the people. But the convention was influenced also by a less theoretical reason. The larger states, fearful that they might be unfairly taxed if the senate were given equal powers with the house in this matter, de- manded this provision as a protection and also as a compen- sation for having yielded to the senate the right to ratify treaties and to try impeachments. By the same clause, however, the senate is given the power to propose or concur with amendments to revenue bills, a power of which it avails itself so freely, that most money bills, whether for raising revenue or expending it, are finally passed only by means of conference and compromise between the two houses. There is no constitutional provision that appropriation bills (bills for the expenditure of money) should originate in the house, but as a matter of custom the important general appro- priation bills do originate there. 183. The House: Impeachment. In placing the power of impeachment (bringing charges of official misconduct against an official) solely in the hands of the house of representa- tives the convention was again borrowing indirectly from Enghsh practice through the state constitutions. According to the constitution the persons who may be impeached are t]ie president, the vice-president, and all civil officers of the United States, the term civil officers being used here in dis- tinction from military and naval officers, who are subject to military law and whose offences are tried by courts-martial. Since offending senators and representatives may be ex- pelled by a two-thirds vote of their respecti\'e houses, it has. been deemed unnecessary to impeach them. The offences LEGISLATIVE DEPARTMENT 149 for which officers may be impeached are "treason, bribery, or other high crimes and misdemeanors;" but the exact mean- ing of the last phrase has never been accurately determined. Since the adoption of the constitution there have been seven impeachment trials and two convictions. 184. The House: Presidential Election. The election of the president by the house of representatives has occurred twice — in the case of Jefferson in 1801, and of John Quincy Adams in 1825. In assigning this power to the house of representatives the convention, mindful of the fact that large executive powers (the confirmation of presidential appoint- ments and the ratification of treaties) had been given to the senate, felt that that body should have no voice in the ap- pointment of the executive. 185. The Senate : Executive Powers. Of the special pow- ers of the .senate, the two just mentioned — the ratification of treaties and the confirmation of appointments — are ex- ecutive in their nature ; the third — the power to act as a court of impeachment - — is judicial. Though the senate was created as a part of the federal legislature, it was at first looked upon principally as an executive body. Hamilton in The Federahst ^ speaks of the executive power as divided between the president and the senate; and the senate for the first five years of its existence conducted itself as an ex- ecutive body, holding its sessions until 1794 in secret. The senators looked upon themselves to a great extent as am- bassadors from the states, and the president and cabinet officers sometimes consulted in person with the senate. Not until after the creation of its standing committees in 181 6 did it become in legislation coordinate with the house. At ' The Federalist, Nos. 64-66. ISO CIVIL GOVERNMENT present we think of the senate as primarily a legislative body; but it may at any moment turn itself into an execu- tive body by going into "executive session." This it does when the subject under discussion is the confirmation of ap- pointments or the ratification of treaties. As a matter of fact, though the penalty for disclosing what goes on behind the closed doors of the senate is expulsion, it has been found very difficult to maintain secrecy, particularly in the matter of the confirmation of appointments. For this reason there has been some agitation in favor of abandoning the " secret " session. 186. The Senate: "Working of these Powers. It was the purpose of the convention in giving these powers into the hands of the senate to impose a check upon the power of the president. This it certainly does to some extent, though it is questioned whether the imposition of this check has operated entirely in the interests of good government. The participation of the senate in the treaty-making power, reducing as it does the difficulties always experienced^ by popular governments in dealing with foreign affairs, has gen- erally been approved by critics of our political arrangements, though even here the requirement of a two-thirds vote for ratification has been criticised as giving too much power into the hands of a troublesome minority. Such a minority, in- tent upon party or local rather than national interests, may find it possible to postpone indefinitely or prevent altogether the settlement of important foreign affairs. The value of the other executive function intrusted to the senate — the power of confirming presidential appointments — is in gen- eral more seriously questioned. It is asserted that the ar- rangement does not in practice prevent abuses of the presi- LEGISLATIVE DEPARTMENT igi dent's appointing power; that if the president and the ma- jority in the senate are of the same party, the appointments are arranged between them and the real object of the pro- vision is defeated; that if they are of opposite parties, the senate confirms the worst appointments in order to subject the president to hostile criticism in the next political campaign. 187. The Senate: Judicial Function. The only judicial function of the senate is to act as a court for the trial of im- peachment cases. The method of procedure is as follows. The charges against the officer impeached are preferred, as we have already seen, by the house of representatives, which prepares articles of impeachment, corresponding to the in- dictment in ordinary criminal trials. The house then chooses by ballot a number of "managers" to conduct the case be- fore the senate. The senate organizes for this purpose by putting its members under oath to conduct the trial impar- tially. If the president is being tried, the chief justice acts as presiding officer; in other cases, the president or presi- dent pro tempore of the senate. A two-thirds vote of the members is required for conviction, the object being to pre- vent the use of impeachment for party purposes. The ac- cused may appear in person or through counsel, witnesses are examined, evidence taken, and the senate then deliber- ates in secret session. In case of conviction the only pun- ishment that the senate has power to impose is removal from office and disqualification for further official service under the United States; but the officer is still liable to trial before the ordinary courts, if he has committed any crime. Dur- ing the trial the accused may continue his regular duties. In case of conviction the president cannot exercise his par- doning power. This power of trying impeachment cases was 152 CIVIL GOVERNMENT not granted to the senate by the convention without objec- tions, but the objections then i^rged have proved groundless. 188. Limitations upon Congress: Taxation. So far we have been deaHng with the powers granted to congress as ,a whole and with the special powers granted to the separate houses. We come now to some limitations imposed upon congress by the constitution — the things which congress may not do. The restrictions laid upon congress in the matter of taxation are two: (i) it may lay no capitation or other direct tax except in proportion to the census; (2) it may lay no tax or duty on exports. We have already noted that the general government does not at present levy any direct tax. If it should do so, however, it is required to levy it in proportion to population, i.e., the amount of revenue to be collected by the tax must be determined, and this must then be ap- portioned among the states according to population.' The prohibition laid upon congress in the matter of taxing exports was a practical necessity. The extent of-the country and the variety of its resources make it, and made it even in 1787, practically impossible to lay such a tax without working injustice and hardship somewhere. There was, nevertheless, in the convention, considerable difference of opinion on this point, not a few holding that the government would be in- complete without a power to tax exports as well as imports. 189. Commerce. Appropriations. The restrictions im- posed upon congress in the matter of commerce relate to the slave-trade and to interstate matters. The provision in regard to the slave-trade was the result of one of the com- ' The supreme court has decided that an income tax is a tax upon the property from which the income is derived and is therefore a direct tax and unconstitutional, since it is not levied in the manner prescribed by the constitution. LEGISLATIVE DEPARTMENT 153 promises of the constitution already noted elsewhere (§ 104). It will be remembered that in the convention the delegates from the slave-holding and slave-trading states objected to giving congress complete control over commerce, lest the economic interests of their states might suffer by a too sudden abolition of the slave-trade. The debate resulted finally in the concession to congress by the slave states of full ultimate control of commerce in return for a continu- ance of the slave-trade for a Umited period, congress being prohibited from forbidding the traffic prior to the year 1808. In regard to interstate affairs, congress is forbidden to make any regulation that shall give a preference to the ports of one state over those of another, or that shall obHge vessels bound to or from one state to enter, clear, or pay duties in another. Congress is also prohibited from drawing money from the treasury, "but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be pub- lished from time to time." 190. Other Restrictions : Habeas Corpus. A few other re- strictions are laid upon congress with the purpose of securing to the citizens of the United States personal Hberty and equality. These are the provisions in regard to the suspen- sion of the writ of habeas corpus, in regard to bills of at- tainder and ex post facto laws, in regard to titles of nobility, etc. The constitution provides that "The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebelUon or invasion, the pubhc safety may re- quire it.'-' The writ of habeas corpus is "a guarantee of personal liberty as old as Magna Charta." It is a writ granted by a court requiring a prisoner to be brought before 154 CIVIL GOVERNMENT the court in order that the legality of his detention may be investigated, and that he may be at once liberated if illegally detained. The question as to where the right to suspend the writ is lodged was left unsettled by the constitution. By judicial decision it has been given to congress, but that body may grant the right to the president. In the few cases where the writ has been suspended — namely, during the civil war — the power was exercised by the president. 191. Bills of Attainder : Ex Post Facto Laws. The passing of bills of attainder and ex posi. facto laws is absolutely for- bidden by the constitution. Bills of attainder are special legislative acts inflicting capital punishment for high offences such as treason, without a judicial trial. If the punishment inflicted is less than death, the bill is properly a "biU of pains and penalties" rather than attainder. The ex post jacto law is defined by Chief Justice Marshall as "one which renders an act punishable in a manner in which it was not punishable when committed." English jurists have held that the term appHes only to criminal not to civil law, and the United States supreme court has taken the same posi- tion; but from the discussion that took place in the conven- tion concerning this point, it would seem that the framers of the constitution meant by ex post facto laws all that are retroactive. 192. Titles of Nobility. Finally, "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the con- sent of congress, accept of any present, emolument, office, or title of any kind whatever from any king, prince, or for- eign state." At the time of the adoption of the constitution and even much later there existed a general feeling of an- LEGISLATIVE DEPARTMENT 155 tagonism to titles. They were regarded as inseparable from aristocratic and monarchical forms of government, and Ham- ilton called their prohibition the corner-stone of repubhcan- ism. The last part of the provision was inserted to preserve foreign ministers and United States officers from the danger of bribery by foreign governments. Library References. — Ashley, §§ 272-275, 292-297, 301-325, 396-398; Macy, Chaps. XXVI-XXVII, XXXVIII, XL; Macy, Firsl Lessons, Chaps. XVI-XVII; Dawes, Chaps. Ill, XV, pp. 129-130, 146-148; Hinsdale, Chaps. XXI-XXII, XXV-XXVI, pp. 330-333; Fiske, pp. 228-229, 234" 257, 263-268; Bryce, Vol I, Chaps. XI, XVI-XVII, XLVII; Wilson, §§ 1047-1052, 1084; Harrison, pp. 58-67; Curtis, Vol. I, Chaps. XXVI- XXVII; Wilson, Congressional Government, Chap. Ill, pp. 230-241, 275- 277; Clow, Chap. Ill; Dole, pp. 69-71, Chap. XVI; Alton, Chaps. XXIV, XXIX; Lalor, Article on Powers of 'Congress ; Woodburn, pp. 158-172, 177-182, 211-213, 231-239, 255-257, 305-310, Chap. VIII. QUESTIONS ON THE TEXT 113. Why are the general powers of congress enumerated in the federal constitution, while similar powers of state legislatures are not specified in state constitutions? 114. State five powers of congress. 115. Mention three important powers vested exclusively in the house of representatives and give the reason in each case. 116. Has the senate any executive power? Discuss fully. 117. State three purposes for which the government may prop- erly levy taxes. 118. Define taxes. Mention two kinds of taxes and discuss the justice of each. 119. Distinguish between direct and indirect taxes. 120. What are the sources of the revenue of the general gov- ernment? Does the United States government levy any direct tax at the present time ? State in substance the constitutional provision regarding the apportionment of direct taxes among the several states. 121. What are duties? State the manner in which duties are collected. What limitation is there to the powers of congress to levy duties? Give the reason for this limitation. 156 CIVIL GOVERNMENT 122. Distinguish between ad valorem and specific duties. De- fine tarifE; reciprocity. 123. What is an excise duty? On what articles are excise duties now laid? 124. Should congress be given the power to regulate commerce? Give reasons for your answer. 125. Define ports of entry. Give the name of one United States port of entry on the Atlantic coast, and one on the Pacific coast. 126. Show the importance of the power possessed by congress to borrow money on the credit of the United States. 127. To what extent is immigration now restricted? What is the object of the restrictions? 128. Show the necessity of the power possessed by congress to regulate interstate commerce. 129. Define bankrupt law. Why is a bankrupt law desirable? 130. Define piracy. Show the importance of the power pos- sessed by congress to define and punish felonies committed on the high seas. 131. Why. is the power to declare war vested in congress alone? 132. Deiine letters of marque; privateer. What name is given to property captured in time of war? What disposition is made of such property? 133. What is naturalization? Describe the process by which it is secured in this state. Is the process uniform in all the states ? 134. Define alien; citizen. What differences exist in the duties, rights and privileges of aliens, naturalized citizens and natural-born citizens ? 135. What classes of foreigners are refused citizenship in the United States? Why? 136. On what ground has the United States claimed the right to interfere when railway traffic has been interrupted by strikes ? 137. What is a copyright and how is it obtained ? State for how long a time it is issued. State its purpose. May it be renewed? 138. What is a patent? For how long a term is a patent issued? How may it be renewed ? What is the purpose of granting patents ? 139. Mention the chief peculiarity in the government of the District of Columbia. Explain the importance of congressional control over the District of Columbia. LEGISLATIVE DEPARTMENT 157 140. In what body is the government of a territory vested? What representation has a territory in congress ? ^ 141. What is the restriction in the constitution regarding the origin of revenue bills ? What is the object of this restriction ? 142. Define impeachment. What officers of the United States are subject to impeachment? 143. Mention (i) two powers of the senate not possessed by the house of representatives; (2) one power of the house not pos- sessed by the senate. 144. What is meant by executive session ? Which body of con- gress holds executive sessions? Mention two purposes for which executive sessions are held. On what ground is its abolition advocated ? 145. Define treaty. Show the importance of the power of the senate to ratify or reject treaties made by the president. 146. Show the importance of the power of the senate to reject nominations made by the president. 147. In whom is vested the power to try cases of impeachment? Give an account of the national court for the trial of impeach- ments as to jurisdiction and method of procedure. 148. Mention five restrictions imposed on congress by the con- stitution. 149. What application of the constitutional provision regarding the apportionment of direct taxes was recently made by the su- preme court in regard to the income tax law ? 150. Give the provision of the constitution in regard to (i) priv- ilege of the writ of habeas corpus, (2) bills for raising revenue, (3) drawing of money from the treasury. 151. Define appropriation. Show the importance to the people of the constitutional provision regarding appropriations. 152. Define writ of habeas corpus. Explain the importance of this writ as a protection to the right of personal liberty. 153. Define bill of attainder. 154. What is an ex post facto law? Are there any such laws in the United States ? Give a reason for your answer. 155. What is meant by a title of nobility? Why does the con- stitution forbid congress to grant such a title ? 156. Is an income tax a direct tax under the constitution? State your authority. CHAPTER X LEGISLATIVE DEPARTMENT: ITS WORKING 193. The Senate-chamber. The work of the national legislature is carried on in different parts of the capitol, the senate- chamber occupying a part of the north wing, the chamber of the house of representatives the south. The room occupied by the senate, naturally much the smaller of the two, is rectangular in form, the seats being arranged semicircular ly facing the chair of the presiding officer, which occupies a raised marble dais at the end of the room. The seats • are arm-chairs, each with its desk. Around the four sides of the room run galleries, one of which is reserved for the president of the United States. The open space back of the senators' chairs is furnished with sofas, and into this sen- ators may bring visitors. The bare aspect of the walls, un- broken by windows, for the room is lighted from above, is somewhat reheved by a few pictures. The democratic sen- ators occupy the right side of the room, the republicans the left; but because of the semicircular arrangement of the seats they face the chair, not each other. 194. Chamber of the House. The chamber occupied by the house is much larger, so large indeed as to make speak- ing there a difficult task. Like the senate-chamber, it is lighted from above and supplied with huge galleries running round all four sides and capable of seating 2,500 people. As in the senate, the seats of the members, revolving chairs and desks, are arranged in concentric rows about the speak- iS8 LEGISLATIVE DEPARTMENT 159 er's marble chair on its raised platform. Below and in front of the speaker rests the mace, and here too are seated the clerks and official stenographers, with the sergeant-at- arms to the right. As in the senate-chamber, there is an open space furnished with sofas back of the members' seats, to which certain visitors are admitted. 195. Character of Members. In the character of their members the two houses show a somewhat marked differ- ence, the senate containing a considerably larger proportion of men of superior intellectual capacity, political experience, and personal dignity. The great majority of the senators are successful lawyers, many of whom still practise before the supreme court; and there are many ex-governors, ex- representatives, ex-state judges, and ex-state legislators. In the senate of the 58th congress there were 20 ex-governors, 4 ex-Judges, and 33 ex-representatives. This means, that we have in the senate a body of men possessed already of considerable political training, whose political efficiency is sure to be increased by the training they will get as senators. This is not to say that the senate is made up of men different in kind from those in the house. Like the representatives, the senators are for the most part active politicians, who have made their way by means of the ordi- nary political methods; but the senate, because it confers on its members more power and greater dignity, a longer term of service and a more independent position, has proved more attractive to men of ability and ambition and has been able to draw to itself the ablest of those who have chosen a political career. In the house, as in the senate, lawyers are numerous, though they are for the most part not leaders in their profession. The rest are recruited from the ranks of i6o CIVIL GOVERNMENT the manufacturers, agriculturists, bankers, and journalists. Great railroad men, like great lawyers, are rare, and for the same reason. The attractions of a career in the house are not sufficient to overcome those of a successful practice at the bar or of a great railway business. Unlike the senate, the house of representatives has few very wealthy members, though few are very poor. Taking the house as a whole, it is not made up of men of the highest culture or the widest infor- mation, though there is no lack of character, shrewdness, and keen, if Umited, intelUgence. If they lack breadth of view, it is due to lack of opportunity rather than to natural incapacity. 196. Methods of Legislation. So much for the men by whom the work of national legislation is conducted. Let us now see something of the methods in use in the making of laws. All laws enacted by the national legislature make their first appearance in that body in the form of bills. A bill is simply a form or draft of a proposed law, and may be very radically changed before it is finally enacted. The constitution provides for three ways in which a bill, once introduced into the legislature, may become a law. (i) It may be passed by a majority of both houses and signed by the president. This is the normal way. (2) It may, how- ever, after passing both houses, meet with the disapproval of the president. Thereupon it is returned without his sig- nature to the house in which it originated, his objections are entered upon the journal, the bill is reconsidered, and may be repassed by a two-thirds vote of both houses, the vote being taken by yeas and nays. It then becomes a law with- out the president's signature. (3) It may be passed by a majority of both houses and sent to the president, who may neglect to return it within ten days, Sundays excepted. In LEGISLATIVE DEPARTMENT i6l that case, also, it becomes a law without the president's signature, unless congress adjourns in the meantime. The constitution does not, however, attempt to lay down rules as to the means by which congress shall accomplish the work intrusted to it. That body having been created, and its powers and Umitations clearly defined, it is left to work out its own salvation and evolve its own methods. As the field of legislation has grown wider and more complicated with the growth of the nation, the methods of dealing with it have also grown more complex, so that we cannot hope here to follow them in detail. We must be content if we can un- derstand clearly the more important features of our system of legislation. 197. Stages of a House Bill.* In order that a bill may be enacted into law it must pass through the following stages. First, it must be introduced. If it is introduced in the house, this is done by handing it to the speaker or laying it on his desk, in case it is a pubHc bill; or by handing it to the clerk of the house, in case it is a private bill. When reached in the order of business, the bill is read for the first time by title only and is then referred by the speaker to its proper committee. In the committee the bill comes up for discussion, after which the committee may decide either not to report it at all, to report it so late in the session that no ' In the senate the method of procedure is as follows: Each morning the presiding officer of the senate calls for the presentation of bills, resolu- tions, and petitions, and the senators, each as he may secure recognition, present such bills as they may desire. In presenting a petition the senator states briefly its purport and asks its reference to the appropriate committee. When a bill is offered, it is carried by a page to the clerk's desk, the title is read and an appropriate reference ordered by the presiding officer, unless the senate, by a vote, itself directs the reference. i62 CIVIL GOVERNMENT action can be taken upon it, to report it adversely, or to re- port it favorably. If the bill is dropped in committee it is, of course, "killed" without actually reaching the house at all. If it is reported adversely by the committee, it is gen- erally dropped by the house without debate, so that in general only those bills that are reported favorably by the committees are actually considered by the house. When re- ported, it is read a second time, this time in fuU, and is then placed on the calendar. This does not necessarily mean that it will come up at some definite time for further con- sideration. It may never get farther than the calendar, its fate depending less upon its importance than upon the skill and energy of the member who has it in charge. If a bill succeeds in reaching a third reading it is read by title only, unless a reading in full is demanded. The question is then put, "Shall the bill pass?" and the debate follows. When the "previous question" is called for, the debate is closed by the member reporting the bill, and the vote is taken. If the bill passes the house, it is signed by the speaker and the clerk and is then taken to the senate. Here it is at once referred by the presiding officer to its appropriate com- mittee, after which it passes through practically the same stages as in the house. If it passes the senate unamended, it goes to the president for his signature; but either house has the power of amending the bills of the other, and an amended bill must be returned to the house in which it originated and the amendment must be accepted before it can be regarded as passed by the two houses. In case either house refuses to accept an amendment of the other, the biU fails to become a law; or a conference committee is appointed, consisting of members from the senate and house committees LEGISLATIVE DEPARTMENT 163 concerned with the bill, and a compromise may be agreed upon. The different methods of disposing of bills that have passed both houses of the legislature have already been considered (§ 196). 198. The Committee System. The process of legislation thus described seems comparatively simple; as a matter of fact there is much here requiring explanation and comment. Let us look first at the committee system. It is almost in- evitable when a great nation like our own vests its law- making power in a representative body, that that body, if it is truly representative, should attain very considerable size. One of the most difficult problems of representative government is this one of getting large assembHes to per- form the work of legislation promptly and efficiently. Two plans for solving the problem have been worked out. One is the plan of having the majority party in the legislative body appoint a small committee of leaders to draft the ne- cessary measures, which are then adopted and intrusted to this group of leaders for execution. These leaders are held responsible. If their measures meet with the approval of the people, they can count on retaining the support of the majority in the representative body. If not, the opposing minority will become a majority and a new group of leaders will be substituted. This is in brief the EngHsh plan of solving the problem, the cabinet or ministerial system of government. The other is the plan of dividing the legis- lative body up into a number of small groups, each with its own field of action and each independent of the rest, the legislative body as a whole having the power either to adopt or reject the suggestions of the groups in regard to the mat- ters intrusted to them. This is the congressional plan of l64 CIVIL GOVERNMENT government, the committee system, by which our legislature accomplishes its work. 199. The Committees.' It is impossible here to review the history of the committee system in the United States, inter- esting though it is. A description of it as it exists and works at present must suffice. There are now in the house of rep- resentatives 48 regular committees, and 10 select com- mittees, each constituting what Senator Hoar has called a "little legislature," so far as the management of its own particular business is concerned. In addition to these the house may at any time create select committees for special purposes, such as the conference committee, men- tioned above, for the purpose of conferring with a like com- mittee from the senate. The house may also at any time go into "committee of the whole," i.e., the house may re- solve itself into a committee, in order to debate more freely some measure then pending. When this is done the speaker calls some other member to the chair and the special rules of the house are suspended. By far the greatest part of the work of congress is done in the regular standing committees, which are appointed by the speaker at the beginning of each new congress, and to which all bills are referred. Among the most important of the standing committees of the house are the committees on rules, on ways and means, on appro- priations, elections, banking and currency, accounts, rivers and harbors, judiciary, foreign affairs, and military affairs. In the senate there are 32 standing committees and 12 select com- mittees. There are also three joint standing committees. In the senate, it will be remembered, the committees are selected, not by the presiding officer, but by the senate itself. The ' Encyclopedia Americana, Vol. V, Article on the Congress of the United States. LEGISLATIVE DEPARTMENT 165 most important of the senate committees are those on finance, on appropriations, foreign affairs, privileges and elections, judiciary, and commerce. It is by no means always certain to what committee a bill should be referred, and this may become a matter of considerable importance to the fate of the bill, since, of two possible committees, one may be favorable, the other hostile. The disposition to be made of petitions, memorials, and private bills is indicated on them when they are handed to the clerk by the members intro- ducing them. Other bills are regularly referred to their proper committees by the speaker, but his action may be changed in three ways: (i) by unanimous vote of the house; (2) on motion of the committee claiming jurisdiction; (3) on the report of the committee to which the bill has been referred. If a dispute arises as to the reference of the bill, it is settled by vote of the house. 200. Power of the Committee. When a bill has once been referred, the power of the committee over it is rarely ques- tioned. Committee meetings for the consideration of bills are usually secret, and the public has no means of knowing how individual committee members have voted or what influences have been brought to bear on the committee. Open meetings for taking evidence on the bill and for hear- ing the arguments of its advocates and opponents are often held; but, unless the measure is one in which pubHc interest is already excited, the newspapers rarely report the pro- ceedings. Nominally the powers of the committee are Hm- ited to the consideration of bills submitted to it, i.e., it has no right to initiate bills of its own; but it may and does amend as freely as it chooses the bills submitted, frequently transforming them completely. Moreover, if it desires i66 CIVIL GOVERNMENT legislation on a subject concerning which no bill has been introduced, it can readily procure the introduction of the necessary measure. We have aheady seen that the com- mittee may practically "kill" a measure by reporting it adversely, by reporting it too late in the session, or by not reporting it at all; and by the employment of one or the other of these methods the vast majority of the bills intro- duced meet an early death. In the long session of the s6th congress there were introduced into both houses 12,152 bills of which only 1,215 "^^^^ enacted into law, i.e., about nine- tenths of the measures introduced failed to pass. The house may, if it suspects a committee of "smothering" a bill that public sentiment favors, order the committee to report it, or it may transfer the bill to another committee; but these restraints upon the power of the committee are rarely applied. 201. Reporting Bills. Even after the rigid sifting to which the measures introduced are subjected by the committees, there remains a great number of bills to be reported, and the house can afford but a very limited time for hearing and discussing the report of each committee. With the excep- tion of a few privileged committees — such as the one on rules, the one on ways and means, and the one on appro- priations, which may report at any time — each committee is allowed on the average about two hours for making its report for the whole session. This allows an extremely limited time for debate, and the result is that the house is practically forced to adopt the recommendations of the committees in order to accomplish anything at all. The member reporting the measure, usually the chairman of the committee, has the privilege of opening and closing the de- LEGISLATIVE DEPARTMENT 167 bate. He is allotted an hour in which to explain and defend his measure. He seldom, however, uses the whole of his time, but "yields the floor" for brief speeches to other mem- bers, both friends and opponents of the bill, previously agreed upon. He thus virtually controls the debate. At the end of the allotted period he moves that the report be accepted and at the same time "moves the previous ques- tion." This cuts off further amendnient and debate, and the bill is voted upon. 202. Log-Rolling. While it is doubtful whether there is ordinarily any great amount of unmitigated bribery prac- tised in securing legislation, the milder form of pohtical "jobbery" known as "log-rolling" is not infrequently re- sorted to. This device is used both while the bill is still in the hands of the committee and after it is reported to the house in case there is any danger of its meeting with real opposition on the floor. It is a bargain struck between members, each of whom has "an axe to grind." "You help me with my measure and I'll help you with yours," is the arrangement; and thus votes enough are secured in the com- mittee or friends enough on the floor of the house to pass a measure that would otherwise be rejected. 203. Filibustering. In spite of "log-rolling" and similar devices, however, the course of legislation does not always run so smoothly as the description given above might lead one to suppose. It has happened not infrequently that the opponents of a measure, while not numerous enough to prevent its passage if it were allowed to come to a vote, are stiU strong enough to obstruct business and prevent its being voted upon, with the object of extorting a compromise from the supporters of the measure. This process is known as i68 CIVIL GOVERNMENT "filibustering." It consists in the making of all sorts of motions that can delay the business in hand — motions to adjourn, motions to take a recess, and calling for the yeas and nays on either of these questions. The last is an ex- tremely effective and annoying means of obstructing busi- ness; first, because it consumes so much time, and second, because it is permitted by a rule that the house cannot alter, resting as it does on an express provision of the constitution. 204. Methods of Voting. In order to understand these tactics clearly we must know something of the methods of voting employed by the house. Ordinarily in taking the vote on a question the presiding officer simply calls in turn for the "ayes" and "noes," and judges by the volume of sound as to whether it has been carried or lost. If, how- ever, a doubt exists, a division is taken in one of three ways : either (i) those in favor and those opposed rise successively and are counted by the speaker; or, (2) if he is stUl in doubt or if a count is called for by one-fifth of those present, the speaker appoints two tellers, who stand in the middle gang- way and count, as the members pass between them, first those who vote in the affirmative and then those who vote in the negative; or, (3) if the yeas and nays are demanded by one-fifth of those present, that method is adopted. The clerk calls the roll of the house, each member who votes an- swering aye or no to his name. This usually consumes an hour or more. The roll is then called a second time in order to give those an opportunity to vote who did not vote on the first call, or to allow others to change their votes. Since the constitution provides that the yeas and nays must be taken on any question — questions of adjournment as well as questions of substance — at the demand of one-fifth of LEGISLATIVE DEPARTMENT 169 those present, it is easy to see how potent a means of ob- struction this may be made. 205. Restraint of Filibustering. Of late the house has adopted somewhat stringent rules to prevent filibustering, rules as stringent, perhaps, as are at all necessary. It should be remembered that it is a method that can be used suc- cessfully only by a large minority, fertile in expedients; and that the minority party will rarely combine for this purpose except on important questions. Moreover, if the question is one in which public interest has been awakened, the party that employs such obstructive tactics renders itself liable to popular disapproval, a risk that it is rarely willing to take. Since, in extreme cases, the device of "fihbustering" may be used as a safeguard against the abuse of the system of closure of debate by means of the "previous question," per- haps it would not be wise to prevent its employment alto- gether, even if that were possible. 206. Closure of Debate. In a legislative body so large as the house of representatives, it is necessary that every pos- sible means of expediting business be employed. We have already seen that one such means is found in the adoption by the house with Httle serious question of the recommenda- tions of the committees. Another is the system of closure of debate just mentioned. The debate is usually closed by " moving the previous question " in the form, ' ' Shall the main question now be put?" If this is ordered (and the motion for the previous question cannot itself be debated) the house must at once proceed to a vote on the main question. Any member may move this closure of debate without permis- sion from the speaker, and it may be passed by a bare majority of those present. In the senate no rule of closure 170 CIVIL GOVERNMENT exists, the small size of the body and its sense of its own dignity both operating to make such a rule less necessary than in the house. 207. Advantages and Disadvantages of the Committee System. In the foregoing discussion of the committee sys- tem it has already been suggested that it possesses both advantages and disadvantages. These may now be pointed out more definitely. Its chief advantages are: (i) It kills off worthless bills at an early stage of their existence, thus preventing waste of time on the part of the house. (2) Through it the house can accomplish vastly more legislation than would be otherwise possible, though it runs the risk of accepting the bad work of its committees as well as the good. (3) It promotes specialization in legislative work. Un- der it each leader in the house may be assigned the work for which he is specially fitted, and every subject of legis- lation may be put into the hands of those members who know most about it. (4) It makes it possible for congress to subject the ad- ministrative departments to investigation at any time. The committee cannot punish the departments for maladmin- istration, but it can make public the condition of affairs and subject them to public censure. (5) It makes possible cooperation between the executive and the legislative departments. Cabinet members cannot urge their measures on the floor of the house, but they may do so before the committees. On the other hand the following disadvantages of the sys- tem have been cited: (i) It breaks up the unity of the LEGISLATIVE DEPARTMENT 171 house; (2) it cramps debate; (3) it lessens the harmony of legislation; (4) it facilitates corruption; (5) it reduces re- sponsibility; (6) it dissipates the abihty of the house into inde- pendent groups; and (7) it lowers the interest of the nation in the proceedings of congress.* How the evils of our com- mittee system are to be remedied while its advantages are retained is one of the problems of practical pohtics for American citizens. 208. The Speaker. One more striking feature of our legislative system is the power over legislation intrusted to the speaker of the house of representatives. One writer calls him " the second, if not the first, political figure in the United States;" while another says of him that he is "the most in- teresting and important legislative officer in the American Commonwealth, if not in the world." We borrowed our speaker from the Enghsh house of commons, but we have radically changed his character. The English speaker, no matter what his poHtical afiihations or his standing in his party before election, must immediately on election forget his party and become simply a fair and judicial presiding officer. The American speaker, on the other hand, is, and is expected to remain, a party leader, using his office for party purposes. This does not mean that he is privileged to use unfair means for furthering party projects or that he may wrest the rules of the house from their obvious meaning in order to secure a party advantage; but he may make the fullest possible use of any means that his office legitimately places in his hands for furthering the interests of his party. 209. Sources of His Power : Appointment of Committees. His power over legislation is given him in three ways: (i) ' Woodburn, pp. 284 seq. 172 CIVIL GOVERNMENT through his power of appointing committees; (2) through his power of granting or withholding recognition to a member desiring to address the house; (3) through his position as chairman of the committee on rules. We have already seen that in addition to his power of appointing all the house committees with their chairman, the speaker has also the right to appoint the chairman of the committee of the whole. If we bear in mind how nearly absolute is the power of these committees over legislation, we can gain some idea of the immense influence exercised by the man who can practically make them what he chooses. In making up his committees he is bound to consider sectional and party interests as well as his own personal obligations; but beyond that he works with a free hand. He may secure or prevent legis- lation upon certain subjects and may direct it along such lines as he wishes by appointing upon the proper committees men who will act in accordance with his views; and he may enhance the influence of his own, that is of the majority party, and weaken that of the minority, by seeing to it that the best men of the minority are wasted upon unim- portant committees, while their insignificant men are given places on important ones. 210. Recognition. Through the speaker's power of rec- ognition he exercises almost as much influence over the course of legislation as through his power of appointing the committees. Originally the rule was that the speaker should recognize the member who first asked for recognition. In present practice there are few limitations on his power to recognize whom he pleases. Ordinarily it is customary for him to recognize the chairman of the committee, i.e., to recognize a committee in the person of its chairman, in LEGISLATIVE DEPARTMENT 173 preference to an individual member. Similarly, while a bill is passing through its various stages, preference is given to the member who has it in charge. Custom has placed upon him a few other restrictions also, but in emergencies he may use his power of recognition in such a way as to give him absolute control of legislation. He may prevent a meas- ure to which he objects from being voted upon at all by re- fusing recognition to any member who wishes to bring it to a vote. The only real limitation upon his absolute power in the matter of recognition is the possibihty of caUing down upon himself the disapproval of his own party members. 211. Committee on Rules. The third source of the speak- er's power over legislation is to be found in his chairmanship of the committee on rules — a small committee made up of only five members, three from the majority party and two from the minority, but a committee which has in recent years become by far the most powerful one in the house. Its three majority members are the ablest and most experi- enced members of their party, the party leaders. Under ex- isting rules this small committee has absolute power to de- cide what business shall come before the house. This it does by means of its exclusive power of initiating the special order (an order of the house naming a special time for the consideration of a measure). The power of the committee has, of course, been given to it by vote of the majority in the house and could be taken away from it- in the same man- ner. That it is permitted to retain it is due to the fact that some such directing committee is necessary to enable a body so large to accomplish its work. 212. The Party Caucus. One other agency employed by 174 CIVIL GOVERNMENT congress to facilitate the work of legislation should be no- ticed. This is the organization of parties in congress. If we are to have efficient and successful party government, it is clear that some sort of organization is necessary. The party must devise some means of informing its members of its wishes in regard to the measures to be voted on, some means of securing united action from its members on im- portant questions, some means of noting changes of opinion among its members. This work is accompUshed by means of the party caucus. At the beginning of every congress caucus committees are chosen, whose business it is to call the caucus meetings and to act as general party managers in the legislature. In matters of minor importance party mem- bers are allowed a good deal of freedom; but if a measure is deemed important enough to require concerted party action, it is made a "caucus measure." A meeting of aU the party members is called and all the force of party influence is exerted to secure a unanimous party vote. The member who "goes into caucus" on a measure is considered in honor bound to vote upon it in the house in accordance with the wishes of his party, and "bolting" is very rare. 213. The Necessity for Expediting Business. We have seen something of the way in which the house works and of the variety of agencies it employs for expediting business. The necessity for the employment of such agencies becomes obvious when we consider how very large is the number of bills introduced every year. In the 37th congress (1861-63) 1,026 bills were introduced. In the 57th there were 22,000. The proportion of those that pass is, of course, very small. The vast majority never reach a third reading. Many bills are introduced in the expectation that they wiU be "buried" LEGISLATIVE DEPARTMENT 17S in committee or on the calendar. They are introduced to satisfy a constituency, to gratify some private or local in- terest, and the house understands well enough what their fate is to be. Most of the biUs introduced are private bills — local or personal in- character, bills for satisfying claims against the government, granting pensions, etc. 214. Contrast between the Houses. More than one writer has described the impression made upon him on seeing con- gress at work, and all have noted the contrast between the two houses. About the senate there is an air of gravity and dignity. It has been described as making somewhat the im- pression of a diplomatic congress. At the same time it is "modern, severe, practical." "The faces are keen and for- cible as of men who have learned to know the world and have had much to do with it." The house, on the other hand, makes a general impression of disorder, due in part to "the raising and dropping of desk lids, the scratching of pens, the clapping of hands to call the pages, . . . the pattering of many feet, the hum of talking on the floor and in the galleries;" but due in part also to an "absence of dignity both in its proceedings and in the bearing and aspect of in- dividual members." Yet it may be questioned whether the house is not after all in some respects the more impressive body of the two. Mr. Bryce says of it : "This huge gray hall, filled with perpetual' clamor, this multitude of keen and eager faces, this ceaseless coming and going of many feet, this irreverent public, watching from the galleries and forcing its way onto the floor, all speak to the beholder's mind of, the mighty democracy, destined in an- other century to form one-half of civilized mankind, whose affairs are here debated. If the men are not great, the in- 176 CIVIL GOVERNMENT terests and the issues are vast and fateful. Here, as so often in America, one thinks rather of the future than of the pres- ent. Of what tremendous struggles may not this hall be- come the theatre in ages yet far distant, when the parlia- ments of Europe have shrunk to insignificance?" 215. Desirability of Career in Congress. It would seem as if a career in congress, the supreme legislative body of one of the greatest nations in the world, ought to offer attrac- tions at least equal to those of the professions and the higher spheres of commercial and industrial life. As a matter of fact, however, political life attracts comparatively few of the most highly gifted and ambitious. Not only is the congress- man's tenure of his position very precarious, but the position itself offers Kttle opportunity for distinction. The real work of legislation is done in the committee, and the world sees and knows nothing of it. Real merit and ability will gain recog- nition in congress as everywhere else, provided its possessor is permitted to remain there long enough to make his influ- ence felt, but comparatively few are so permitted. This is particularly true of the house. By the time a new member has mastered thoroughly the procedure of the house his term is at an end, and he has had no opportunity to distinguish himself. If he is returned for more than a second term, he is one of a fortunate few. The position of senator is naturally more desirable than that of representative. He has more power, more dignity, a more permanent and more inde- pendent position. In some respects, indeed, the position of senator is the most desirable in the political world. It is more permanent than that of president pr cabinet officer, it requires less labor, it involves less vexation by office-seekers ; but it is open to only a few. Of those who seek a political LEGISLATIVE DEPARTMENT 177 career the great majority must content themselves with the much less attractive work of the house. Library References. — Ashley, §§260-263, 283-291, 298-300; Macy, Chap. XXXIV; Macy, First Lessons, Chap. XVII; Dawes, Chaps. IV-V; Bryce, Vol. I, Chaps. XII-XV, XIX; Hinsdale, Chap. XXIV; Wilson, §§ 1061-1062, 1071-1077, 1080-1081; Congressional Directory; Wilson, Congressional Government, Chap. II, pp. 168-169, I93~2I9, Chap. VI; Harrison, Chap. Ill; Alton, Chaps. V-VI, VIII, XI, XV-XVI, XX-XXIII, XXV-XXVIII, XXX-XXXII; Lalor, Article on Parliamentary Law; Woodburn, pp. 223-226, 230-231, 257-301, 313-315; Fiske, pp. 228-230. QUESTIONS ON THE TEXT 157. What are legislative bills? Where may they originate under the national government ? What is the diflference between a bill and a law? 158. State the provision of the constitution regarding bills ve- toed by the president. Give a reason for this provision. 159. Give the different steps by which a bill becomes a law. 160. What are legislative committees? What are their rela- tions to legislation ? 161. Explain the necessity of legislative committees. State two evils that may result from transacting business through such committees. 162. State the advantages of committees in legislative bodies. What is meant by committee of the whole? State an advantage of considering a bill in committee of the whole. 163. What power has the speaker of the house over legislation? 164. How is a bill introduced in the senate? in the house? 165. If a committee attempts to smother a bill, how may con- gress regain possession of it? 166. How is a vote on a bill taken? In cases of doubt, what means may be resorted to? 167. Explain the meaning and use of the following terms as applied to congress: caucus, log-rolling, jobbery, bolting, special order, counting a quorum, filibustering. 168. Which house of congress is the more dignified, and why? Discuss fully. 169. Define the "cabinet, or ministerial system" of govern- ment; the "congressional, or committee system." 170. In how many ways may a committee "kill" a measure re- ferred to it ? In what other way may a committee shape legislation ? CHAPTER XI EXECUTIVE DEPARTMENT: PRESIDENT AND VICE- PRESIDENT 216. Executive Department. We come now to the con- sideration of another of the three great departments essen- tial to every complete government — the executive. We have seen how the constitution provided for the creation and organization of a ]a.-w-making department and endowed it with powers, and we have learned something of the way in which this branch of government has developed in actual practice and of the means by which it performs its func- tions. It is our task now to ask the same questions in regard to the IsiW-enforcing department: how was it created ? how is it organized ? what may it do ? how does it doit? 217. The Convention and the Presidency. The makers of our constitution believed firmly in the separation and co- ordination of the three branches of government. To a greater or less extent this separation existed in the govern- ments of the various states; and their undoubted superiority to the government of the confederation, in which such ex- ecutive functions as existed were united with the legislative, was attributed to this fact of separation. The desire to establish a similar separation of powers in the national gov- ernment with only so much interaction as was absolutely necessary in order to prevent the usurpation of power by any one of the three branches, is seen very clearly in the 178 EXECUTIVE DEPARTMENT 179 organization of all of them. It is seen particularly in the creation of what had not before existed, namely, the office of President of the United States. The congress of the con- federation had had a presiding officer whom they called a president ; but aside from the duty of presiding at the meet- ings of congress, his function differed not at all from those of his colleagues. He was in no sense the executive head of a government. 218. A Difficult Question. The problems with which the convention struggled in creating and organizing a separate executive department seem to have been in some respects the most troublesome with which they had to deal. Almost every question that arose in connection with the matter called forth serious debate. Whether there should be a single ex- ecutive or an executive body or council, what should be the length of the term, whether or not the executive should be reeligible, what should be the manner of choice — on all these points widely different opinions were entertained in the convention. One of them, the question as to the method of choice, is said to have occupied a seventh of the whole time of the convention. 219. Plan Adopted. We are now so accustomed in all our governments, national, state and local, to the practice of vesting executive authority in a single person, that the idea of a plural executive seems strange to us; yet in the conven- tion the plan of having a plural executive was warmly ad- vocated. To many of the men of that period the idea of a single executive savored of monarchy, and monarchy they could not abide. It was argued in the convention that the people would never ratify a constitution that" provided for a single executive. On the other hand, the failure of the con- i8o CIVIL GOVERNMENT federacy had convinced many that what the country needed above aU things was a strong executive, capable of acting vigorously and promptly; and this it was argued could never be secured through a council or assembly. This view finally prevailed and a single executive was agreed to, but the con- vention took good care to safeguard the liberties of the people in a variety of ways. They devised a mode of election that was intended to make him independent of the national legislature and free to devote himself solely to the interests of the whole people; they made him subject to impeachment and removal in case he betrayed the trust reposed in him; they limited his term of office; they gave the senate a share with him in certain very important executive functions; and they gave the control of the public purse into the hands of congress. It would seem sufficiently obvious that such limi- tations as these are hardly compatible with monarchical power such as the men of that time stood in dread of; yet it was deemed wise to attempt to prove in The Federalist that no very close analogy existed between the king and the president of the United States. 220. The Qualifications for the Presidency required by the constitution are that the candidate shall be a natural-bom citizen or a citizen at the time of the adoption of the con- stitution, that he shall be at least thirty-five years of age, and that he shall have been for fourteen years a resident- within the United States. The clause making ehgible those who were citizens at the time of the adoption of the consti- tution, even though foreign bom, has, of course, become in- operative. It was inserted in order not to bar out such men as Hamilton and Wilson, who, though not born within the United States, were among the ablest, most devoted, and EXECUTIVE DEPARTMENT i8i most patriotic citizens of the young republic. The phrase "natural-born citizens" has been interpreted to mean born within the jurisdiction of the United States. Thus children born to American citizens on American vessels in foreign ports, or to our ambassadors, consuls, or other representa- tives in foreign countries, or to American citizens travelling or temporarily sojourning abroad, do not become ineligible to this office. On the other hand, children born in this country to foreign representatives are not eligible. 221. Term and Reeligibility. Widely varying opinions were held in the convention as to what should be the length of the president's term of office, and the question was closely bound up with that of his reeligibility and the manner of election. Four years was the term fixed by the constitution, and the president was made reeligible. Some suggested three years and many favored a longer term, five, six, seven, and ten years being among the suggestions. Hamilton, in his desire to create a strong executive, favored a life term subject only to removal by impeachment. In general those who favored a long term were also in favor of making the president ineligible for reelection. Likewise, those who favored his election by congress (for that was one of the modes of election proposed) thought that he ought not to be made reeligible, since. that would increase the likelihood of his intriguing with congress for reelection. While the con- stitution places no limit on the reelection of the president, the custom of reelecting but once has become so firmly fixed that it would be very difficult to change it. Many now question the wisdom of allowing even a second term. They argue that under the present arrangement the president is likely to be more concerned about being president for two 1 82 CIVIL GOVERNMENT terms than about being a good president for one; and that he will in consequence strive to please the party managers, and only secondarily to serve the people. 222. Salary. While the constitution provides that the president shall receive compensation for his services, it makes no attempt to determine the amount of his salary. It only provides that it "shall neither be increased nor diminished during the period for which he shall have been elected," and that "he shall not receive within that period any other emolument from the United States or any of them." Con- gress first fixed the salary of the president at $25,000. In 1873 this was increased to $50,000, and has since remained unchanged. In addition to his salary the president is given the use of the national "executive mansion," the "White House." It may be noted in passing that the cost of main- taining the executive branch of our government (including the salaries of the president, the vice-president and the sec- retary to the president, together with the expenditures for the care of the executive mansion and a few other items) is extremely small compared with similar expenditures by for- eign governments. 223. Election: Methods Proposed in the Convention. These questions of the qualifications, term, salary, etc., of the chief executive were the easiest ones with which the con- vention had to deal in organizing the executive department. They met the most difl!icult one when they attempted to de- vise a method of election. When their work was finished, there was no other part of the constitution that they re- garded with so much satisfaction as the plan agreed upon; yet no other part has failed so completely to fulfil the ex- pectations entertained of it. In the convention almost every EXECUTIVE DEPARTMENT 183 possible method of choice was proposed. Some proposed that the president be elected by congress; others that he be elected by the executives of the states; others by the state legislatures; others by electors chosen by the state legisla- tures or by the people. Mr. Wilson of Pennsylvania pro- posed direct election by the people, apologizing at the same time for his suggestion, because he felt that it would appear chimerical to the convention. If there existed in the con- vention a deep-seated fear of monarchy, there was an almost equal distrust of pure democracy. It was not beUeved that the people would possess the information or the discernment necessary to enable them to choose the best man for the place; it was thought that they would be too much at the mercy of demagogues, and that, moreover, to leave the de- cision of so important a matter in their hands might result in tumult and disorder. On the other hand, if the choice were left to congress or any other' preexisting body that could be tampered with beforehand, there would be danger of intrigue and corruption. The convention deemed it de- sirable that the people should have some voice in the matter; but they thought it wise to place the immediate election in the hands of a specially chosen electoral college, who, after due deliberation, should choose as wisely as possible. Hence the double mode of election. 224. Method Chosen. As originally wrought out in the constitution, this method was as follows: Each state was to select, in whatever manner the state legislature might direct, a number of electors equal to the number of its senators and representatives in congress, but no United States officer was to be eligible to an electorship. The electors were then to meet in their respective states on a day fixed by law and i84 CIVIL GOVERNMENT vote for two persons, one of whom was to be an inhabitant of some other state than their own. They were then to send sealed to the capital a certified hst of the persons voted for with the number of votes received by each, and these lists were there to be opened by the president of the senate in the presence of both houses and counted. The person receiving the highest number of votes, provided that number were a majority of the whole number of electors, was to be president, and the person having the next highest number was to be vice-president., If two candidates had an equal number and that number a majority, or if no candidate had a majority, the house of representatives was to choose the president, in the first case from the two that were "tied," in the last case from the five highest on the Ust. The house was to vote by states, the whole representation from each state voting as one, two-thirds of all the states constituting a quorum, and a majority of all the states being necessary for election. In case of a tie for vice-president the senate was to elect that official. 225. A Defect Discovered. It will be noticed that ac- cording to this provision the electors might Vote for two persons without designating which one they desired for president and which for vice-president. The one receiving the greatest number of votes in excess of a majority was to be president; and the person receiving the next highest num- ber, whether it was a majority or not, was to be vice-presi- dent. The result wis that in the election of 1800, Jefferson, whom the electors desired for president, received the same number of votes as Burr, whom they had meant to elect vice-president. This gave the power of election to the house, and Jefferson was elected, though not without difficulty. EXECUTIVE DEPARTMENT 185 This incident led to the adoption of the Xllth amendment, which provides the present mode of election. 226. The Xllth Amendment. By this amendment it is provided that the president and the vice-president shall be voted for separately, and that distinct lists of those voted for shall be sent to the capital. The votes are to be opened and counted as provided before; and in case no candidate has a majority, the house is to elect as before, except that they are to choose from the three instead of the five highest. If, when the choice devolves upon the house, that body fails to elect a president before the 4th of March; the newly elected vice-president shall act as president. If the electors fail to elect a vice-president, that duty devolves upon the senate, which makes its choice from the two highest on the list voted on for vice-president. In. case neither president nor vice- president should be chosen before the 4th of March, the constitution makes no provision for the succession. 227. Another Defect in the constitutional provisions for election became apparent in the election of 1876. In that election there were 369 electoral votes to be cast, 185 being necessary to a choice. Of these Mr. Tilden, the democratic candidate, had unquestionably received 184; while Mr. Hayes had received 164 undisputed votes. In four states, how- ever (South Carolina, Florida, Louisiana and Oregon), with 21 electoral votes, both parties claimed the election. In all of these states both sets of electors had met, voted, and sent up certified returns. The question now arose, "Who shall decide which return is to be accepted?" All that the con- stitution says in regard to the matter is that "the president of -the senate shall, in the presence of the senate and house of representatives, open all the certificates and the votes shall i86 CIVIL GOVERNMENT then be counted." The republicans insisted that the vice- president, a republican, should decide, since he was presi- dent of the senate. The democrats maintained that since the count was to be made in the presence of congress, the reasonable inference was that that body was to decide upon the validity of it. In this case, however, the senate was re- pubHcan and the house democratic, so that the only result of leaving the decision to congress would be a deadlock. The difficulty was temporarily solved by the creation by congress of an electoral commission consisting of five sen- ators, five represehtatives, and five justices of the supreme court. The vote in the commission, which was made up of eight republicans and seven democrats, was given on strictly party lines and the republican candidate was elected. Later an act was passed by congress requiring the choice of electors to be settled by the laws of the state at least six days before the meeting of the electors. In case such set- tlement is not effected, the dispute is referred to congress, and if congress fails to decide, the electoral vote of the state is lost. 228. Time and Method of Choosing Electors. The con- stitution gives to congress the right to determine the time for choosing the electors in the various states, as well as the right to fix the day when the electors shall cast their votes. The only restriction is that the day fixed for the final vote shall be the same throughout the United States. The day first fixed upon by congress was the first Wednesday in De- cember, and the choice of the electors by the people was to occur thirty-four days earher. Later the time for choosing the electors was changed to the first Tuesday after the first Monday in November; while a still later act changed the EXECUTIVE DEPARTMENT 187 time for casting the electoral vote from the first Wednesday in December to the second Monday in January, the object being to give more time for the settlement of disputed elec- tions in the states. The method of choosing the electors was left by the constitution to the decision of the state legis- latures; consequently it would be possible for them to be chosen in a great variety of ways. As a matter of fact, the method is now uniform. Electors are chosen in every state on a common -ticket by direct popular vote. At one time the district plan of election was used in some of the states; but this had long been abandoned when, in 1891, it was revived in Michigan by an act of the legislature. The law was contested in the courts, but it was declared constitu- tional by the supreme court. It was, however, repealed in 1893. 229. Failure of the Electoral College. Such, then, is the method of the presidential election as provided by the consti- tution and by statute. How does it work in practice ? We have seen that in providing the method of double election the framers of the constitution were influenced by the belief that it would secure the choice of men especially fitted for the elec- torship, who would then, unfettered by outside influence, make the choice that seemed to them the wisest. Naturally they could not foresee the growth of our party system of gov- ernment, which was to render their carefully elaborated scheme a failure and make of the electoral college a mere machine for registering the choice of the people. For this is what it has become. Every elector has an unquestion- able legal right to vote for whom he pleases; but he is bound by a pledge of honor, by a custom as strong as any law, to vote for the candidate of his party. So completely has the i88 CIVIL GOVERNMENT elector become a mere party agent, whose sole business it is to ratify the choice already made, that in general nobody knows and nobody cares what his personal qualifications may be.^ The voter, when he casts his ballot, is in reality voting directly for the presidential candidate whose name it has been deemed wise, in order to avoid mistakes, to place at the top of the ticket, and only incidentally does he vote for the elec- tors. This failure, however, of the electoral coUege to re- tain its power of independent choice is probably not much to be regretted. With the development of the party system the college would have been almost certain to come directly under the control of the party organizations, and it is better that it should vote at the bidding of the people than at that of the party managers, even though the party managers may control the popular vote. 230. A More Serious Defect. Some of the other conse- quences resulting from the employment of this method of election under the system of party government are more serious. The present system of choosing the electors by general ticket over the whole state makes the election virtu- ally an election by states. The state "goes repubUcan" or it "goes democratic," i.e., it elects, with rare exceptions, its fuU complement of electors from a single party, and casts the whole number of its electoral votes for the candidate of that party. Now it may happen that in one state the plu- raUty of the winning party is very large and more than overcomes the small adverse pluraUties in a dozen states, while the electoral vote of the dozen states is greater than ' Divided state delegations are, to be sure, by no means unknown. Oc- casionally this is due to the rejection of a candidate on personal grounds; more frequently to other reasons. See Woodburn, p. 127, note. EXECUTIVE DEPARTMENT 189 that in the one state giving a larger plurality. For example, in the presidential election of 1900, Idaho, with three elec- toral votes, gave Mr. Bryan a plurality of 2,448 votes; Ken- tucky, with thirteen votes, gave him a plurahty of 7,975; Nevada, with three electoral votes, gave him 2,516, or a total pluraHty in the three states named of 12,939; Michi- gan, with • fourteen electoral votes, gave Mr. McKinley a plurality of 104,584. Thus Mr. McKinley, with 91,645 more votes than his opponent received, would have been defeated in the electoral college by a vote of 19 to 14, if the decision had been left to the four states above named. Thus it wiU be seen that the electoral college may be the means of defeating the clearly expressed wishes of the people. This actually happened in 1888 when Mr. Cleveland received a pluraKty over Mr. Harrison of 95,534. This verdict of the individual voters was reversed by the electoral college, which gave Mr. Harrison 233 electoral votes as against 168 for Mr. Cleveland. Moreover, under the present plan the struggle is concentrated in a few doubtful states. To win or lose them means to win or lose the election, and this nat- urally increases the temptation to poHtical corruption in those states. 231. Presidential Succession. The president is removable only on impeachment. Only one president, Andrew John- son, has been impeached, and he was acquitted. A vacancy in the presidential office may, however, occur in a variety of other ways — by the death or resignation of the incum- bent; by his inabihty, from whatever cause, to discharge the duties and powers of the office; by the refusal of the newly elected president to accept the office, though this is not likely ever to occur. In case a vacancy does occur in any of igo CIVIL GOVERNMENT these ways, the vice-president succeeds. Further than this the constitution makes no provision for the presidential suc- cession, but the deficiency has been suppHed by statute. By the presidential succession bill of 1886 it is provided that in case of the inability of both president and vice-presi- dent to perform the duties of the office, the cabinet oflScers shall succeed in the following order: (i) secretary of state, - (2) secretary of the treasury, (3) secretary of war, (4) at- torney-general, (5). postmaster-general,' (6) secretary of the navy, (7) secretary of the interior. A bill making the secre- tary of agriculture eighth and the secretary of commerce and labor ninth in the order of presidential succession was introduced in the fifty-eighth congress, but failed to become a law. 232. The President's Powers. What are the president's powers and duties? Just as we saw that to the national legislature are intrusted executive and judicial as well as legislative functions, so also we shall find that to an even greater extent the executive exercises legislative and judicial functions. His executive functions are: (i) To be commander-in-chief of the army and navy of the United States, and of the militia of the several states when called into the service of the United States; (2) To make treaties with the concurrence of two-thirds of the senate; (3) To nominate and, with the consent of the senate, appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers not other- wise provided for by the constitution or by statute; (4) To receive ambassadors and other public ministers; (5) To commission all officers of the United States; EXECUTIVE DEPARTMENT 191 (6) To take care that the laws be faithfully executed. His legislative powers are: - (i) To sign or veto measures passed by congress; (2) To inform congress of the state of the union and recommend measures for their consideration; (3) To call special sessions of congress; (4) To adjourn congress when the houses cannot agree upon the time of adjournment. His judicial function is to grant reprieves and pardons and to commute sentences for offences committed against the United States except in cases of impeachment. 233. Classification not Absolute. This classification must not be taken too absolutely, for a moment's consideration will show that some of these powers really fall into two classes. In making treaties, for instance, the president ex- ercises not only executive functions but legislative as well, since treaties are a part of the supreme law of the land. The appointment of judicial officers, also, while it is strictly an administrative act, has a distinctly judicial bearing. 234. His Legislative Powers. Some of these presidential powers require further discussion. Very important are the president's legislative powers. In the power to call extraor- dinary sessions of congress and to communicate his mes- sage he has a real power to initiate legislation. There is no legal bar to his constructing and presenting regular bills to congress, only the custom has never happened to grow up. Instead, the heads of the administrative departments make written reports and public recommendations, have private conferences with the congressional committees, and use their personal influence with party leaders in the house to secure ' See Woodburn, pp. 144-145. 192 CIVIL GOVERNMENT the necessary legislation. While the president's annual mes- sage may exercise considerable influence on legislation, it does not necessarily do so, particularly if the majority in congress is not of the president's party. The present plan of presenting the president's message is not the original one. Washington and Adams appeared in congress in person and addressed the two houses assembled in joint-session. Jef- ferson inaugurated the present custom of sending the message to be read in each house by the secretary or clerk, the most frequently alleged reason for the change being that he was a poor speaker. Whatever the reason, the. custom has be- come so firmly fixed that it would be extremely difficult for any president to break away from it. 235. The Veto. The president, however, exercises his most effective power over legislation in a negative way by means of the veto. We have referred before to the presi- dent's veto power (§ 196), but we have not studied fully the method of its working. When a bill that has passed the legis- lature comes to the executive mansion, it is usually sent to the head of the department concerned, or, if there is a question of its constitutionality, to the attorney-general. The presi- dent then takes it up with the report of the department, and either signs it or vetoes it in the manner prescribed by the constitution. In case congress adjourns within ten days (Sundays excepted) after sending a bill to the president, he may simply disregard it altogether, neither signing nor re- turning it. This so-called "pocket- veto," unlike the regu- lar veto, is an absolute one and may be employed very effectively to prevent congress from overwhelming the presi- dent at the end of a session with a host of bills. It is just EXECUTIVE DEPARTMENT 193 this hasty legislation crowded into the last few days of a session that needs the most careful scrutiny, and it is well that the president should be given some such power over it as that provided by the "pocket veto." 236. Restrictions on the Veto. The president's regular veto is, of course, a restricted one. In the first place, it may be overridden by a two-thirds vote of each house, i.e., by two-thirds of those present and voting. In the second place, the president must approve or disapprove the bill as a whole. He cannot veto one item or proposition and give his assent to the rest. It is this necessity that gave rise to the custom of attaching "riders" to important bills. The "rider" has been defined as "an unrelated piece of legislation attached to another legislative measure with the purpose of having it ride through on the merits of the measure to which it is at- tached." They are usually attached to appropriation bills, and virtually say to the president: "Sign this measure or find your own means for running the government." The practice of attaching riders to important bills became com- mon; but it gave rise to serious abuse, and public opinion has condemned it. 237. Working of the Veto. The veto power is an extremely important one and has worked remarkably well. It may prevent inexpedient and unwise legislation, and it must act in any case as an appeal to the sober second thought of con- gress and the nation. It was never intended to be a positive check upon legislation, nor does it in general act as one, but it does check overhasty legislation. It was originally given to the executive as a means of preventing the legislative de- partment from encroaching on his own powers or those of the judiciary; but it has come to be used on the much wider 194 CIVIL GOVERNMENT ground of general expediency also, and of this public opinion approves. Most of the presidents have made a very spar- ing use of the power; and where they have employed it freely, their course has in general been approved both by the nation at large and by congress, when it came to reconsider its action. 238. Calling Extra Sessions. The power of calling an ex- tra session of congress or of either house is granted to the president in order to enable him to meet an unforeseen emer- gency, such as the necessity of the immediate consideration of a treaty, the probability of war, the necessity of preserv- ing the credit of the country or providing funds to conduct the government. The power of convening congress in extra session has been rarely exercised. A special session of the house alone has never been called. Special sessions of the senate are more common, and it has become customary for the outgoing president to call such a session to act upon the nominations for cabinet and other officers which the new president will make immediately after his inaugu- ration. 239. Treaty-making Power. Another very important pres- idential power that is perhaps more legislative than ex- ecutive, is the treaty-making power. This power can be exercised only with the concurrence of two-thirds of the senators present. There is also, of course, the implied re- striction that the treaty shall be in all respects constitu- tional. The usual steps in the negotiation of a treaty are as follows. If friendly relations exist between the two nations concerned, the negotiations are conducted at the capital of the one from which the suggestion first came. If this is in Washington, the secretary of state acts for the United States, EXECUTIVE DEPARTMENT 19S and the minister of the foreign country concerned acts for his government. If the treaty is negotiated in some other country, the United States minister to that country, or some other person or persons appointed by the president, act for this government. In either case the president directs the general course of the negotiations. A peace treaty closing a war is generally negotiated in some neutral capital by special commissioners from the two or more nations con- cerned. After a treaty has been framed, it is sent to the senate, where it is discussed in executive session. The senate may approve it as it stands, may reject it, or may amend it. If amendments are made, they must be accepted by the president and by the other government interested. When it has been finally approved on both sides, dupUcate copies are made, signed by the chief officers of both govern- ments, and then exchanged. This is called the " exchange of ratifications." The president then publishes the treaty, proclaiming it at the same time as a part of the law of the land. . 240. The Appointing Power conferred upon the president is probably the power that gives him his greatest political influence. The necessity of giving him large appointing powers grows naturally out of the duty laid upon him to " take care that the laws be faithfully executed." It will be seen, however, that the constitution gives congress authority to reduce very considerably the president's power over ap- pointments. "The congress may by law vest the appoint- ment of such inferior officers as they think proper ... in the courts of law or in the heads of departments." Besides the ambassadors and other pubhc ministers, consuls, and judges appointed by the president with the consent of the 196 CIVIL GOVERNMENT senate, a large number of other officers whose positions have been estabhshed by law, among them the heads of the ex- ecutive departments, receive their appointments in the same way. The president cannot, of course, examine personally into the fitness of all his appointments. He must depend largely upon the advice of the heads of departments and upon the recommendations of senators and representatives of his own party from the states in which the office is located. Partly in consequence of this fact there has grown up, in the case of those appointments requiring the confirmation of the senate, a custom that greatly limits the appointing power of the president. This is the custom known as "senatorial courtesy," by which the senate almost invariably refuses to confirm an appointment unless it meets with the approval of one or both of the senators in whose state the office is located, provided those senators are members of the ma- jority party in the senate. 241. The Life of the President is an extremely busy one. Mr. Harrison pictures it thus: "It (the White House) is an office and a home combined — an evil combination. There is no break in the day — no change of atmosphere. The blacksmith, when the allotted hours of work are over, banks his fire, lays aside his leather apron, washes his grimy hands and goes home. . . . There is only a door — one that is never locked — between the President's office and what are not very accurately called his private apartments. . . . The mail that comes daily to the Executive Mansion is very large; in the early months of an administration it is enormous, as many as eight hundred letters being sometimes received in a day. . . . Unless the President is very early, he will find some callers waiting for him as he passes through the EXECUTIVE DEPARTMENT 197 Cabinet room to his office. . . . His time is so broken into bits that he is often driven to late night work, or to set up a desk in his bedroom, when preparing a message or other paper requiring unbroken attention. . . . For the first year and a haK of an administration the president spends from four to six hours of each day talking about things he will not have to act upon for months, while the things that ought to be done presently are hurtfuUy postponed. . . . This is only an outline of a business day and its surroundings, but it will serve, perhaps, to show that the life of the President is a very busy one. What contrariety and monotony! One signature involves the peace of the nation, another its finan- cial policy, another the life of a man, and the next the pay- ment of ten dollars from the National Treasury." * 242. Great Statesmen and the Presidency. It is generally admitted that, taken as a whole, our presidents have not been the greatest statesmen that our country has produced. For this a variety of reasons has been assigned. Of those who choose a political career, only a few, and those not neces- sarily the greatest, find opportunity to commend themselves to their countrymen in such a way as to secure them a nomi- nation to the presidency. The methods of congress in large measure cut them off from such opportunities. Further, really great men are seldom highly popular men. Mr. Bryce has summed up the reasons for the lack of really great men in the list of the presidents as follows: "Great men are not chosen president, first, because great men are rare in politics; secondly, because the method of choice does not ' Harrison: "This Country of Ours," pp. 169-179. Since Mr. Har- rison wrote this statement a suite of offices has been built for the use of the president. 198 CIVIL GOVERNMENT bring them to the top; thirdly, because they are not, in quiet times, absolutely needed." ^ 243. Executive Power not Perfect. Like every other gov- ernmental agency ever created, the arrangements by which the executive power of our government is organized have their defects. It has been pointed out that the supremacy of the office, by far the highest in the gift of the nation, offers too great a stimulus to ambition; that it lures the statesman from the strict path of rectitude and induces him to seek popularity at whatever cost. Again, the frequent re- ciirrence of the turmoil accompanying a presidential election is looked upon by many as undesirable, particularly as such agitation is often wholly unnecessary, the issues being not real ones, but issues manufactured by politicians in order to keep or to gain place. The discontinuity of policy resulting' from our frequent change of presidents is also pointed to as a defect. Even when the new president is of the same party as his predecessor, there is likely to be considerable change; and if of the opposite party, there ensue radical changes re- sulting too frequently in the replacing df tried and experi- enced men by men new to the work. It is also noted that at the close of each administration there is Ukely to occur a period of inactivity. The outgoing president hesitates to embark on any new line of policy, since it may be com- pletely changed by his successor. 244. The Vice-President. In the constitution as it was originally adopted the qualifications of the vice-president were not expHcitly stated, though the natural implication was that they must be the same as those of the president. By the Xllth amendment, however, it was explicitly stated ' Bryce, Vol. I, p. 84. EXECUTIVE DEPARTMENT 199 that "no person constitutionally ineligible to the office of president shall be eligible to that of vice-president of the United States." The time of electing the vice-president and the length of his term are the same as in the case of the presi- dent. His only duties are to preside over the meetings of the senate and to succeed the president. In the senate he is a mere moderator. He has no power of appointing com- mittees and no vote except a casting vote. The office has been generally regarded as of Uttle importance, of so little importance indeed, that capable men have avoided, if pos- sible, a nomination to it. The result is that as a rule ob- scure and inferior men have been elected to the office. The danger is not inconsiderable that such men may be called upon to fiH the presidential chair and discharge the duties of an office for which they were never intended. Five presidents have died in office. It has been suggested that this defect in our system be remedied by giving the vice- president more power, either by giving him a seat in the cabinet, or by giving him a vote in the senate, or by both these devices.^ Library References. — Ashley, §§ 269, 326-351, 394-400; Macy, Chap. XXIII, pp. 139-140; Macy, First Lessons, Chap. XVIII; Dawss,' Chaps. VI-VII; Fiske, pp. 230, 232-244; Bryce, Vol. I, Chaps. V-VIII, XX-XXI; Hinsdale, Chaps. XXVIII-XXXII; Wilson, §§ 1097-1108; Curtis, Vol. I, Chap. XXIX; Harrison, Chaps. IV-X; Federalist; Madison's Debates of the Federal Convention; Wilson, Congressional Government, pp. 43-52, 242- 256; Dole, Chaps. XIV, XVIII; Alton, Chaps. X, XII, XVII; Lalor, Article on Executive; Woodburn, Chap. III. ' See Theodore Roosevelt, "American Ideals," pp. 187-188. 200 CIVIL GOVERNMENT QUESTIONS ON THE TEXT 171. Describe the executive department of the United States government. 172. State the requirements for eligibility to the office of presi- dent. Give- a full reason for such requirements. 173. State the particulars in which the constitutional qualifi- cations of the president and a member of the house of representa- tives differ. Account for this difference. 174. What office in the United States is restricted to natural- born citizens? Why this restriction? 175. Give the length of term and salary of the president. Give reasons for a six-year term with no reelection. 176. Give in substance the provision of the constitution in reference to the compensation of the president. 177. Describe the three methods by which the convention pro- posed to elect the president. Describe the method adopted, and state why its original purpose has not been accomplished. 178. Explain why the manner provided in the constitution for choosing the president by electors was preferred to other methods that were proposed. 179. How is the vice-president chosen? Over what body does he preside? 180. What is meant by the electoral college? What determines the number of electors to which a state is entitled ? To how many electors is this state entitled? 181. State how a member of the electoral college is chosen, and mention his chief duty. 182. Give arguments for or against choosing the president by direct popular vote. 183. Give arguments sustaining the present mode of electing the president and vice-president. 184. Describe the manner of choosing a president in case the electoral college fails to elect. State the limitations under which this is done. 185. Describe the manner of choosing the vice-president in case no person has a majority of all ballots cast by the electoral college. 186. In case of death of both president and vice-president, who then becomes president? State the substance of the present law of the presidential succession. EXECUTIVE DEPARTMENT 20I 187. Mention four powers of the president. 188. Mention three leading powers of the president, and give two powers possessed by the president subject to approval by the senate. ■ 189. Mention with reference to the president (i) two executive powers, (2) one legislative power, (3) one judicial power. 190. What judicial power has the president ? 191. What is meant by reprieve, pardon, commutation? Ex- plain why the chief executive is given power in these matters. 192. How does the constitution make the president responsible for legislation ? 193. What is the president's message ? Briefly describe it. 194. Give in substance the provision of the constitution regard- ing the power of the president to convene and to adjourn congress. 195. What is the veto power? Explain the importance of the veto power in a republic. 196. "The issue is now with congress. Prepared to execute every obligation imposed upon me by the constitution and the law, I await your action." Comment on the powers and duties of the president and of congress, referred to in this extract from President McKinley's message on the Cuban question (1898). 197. What are treaties, and by whom may they be made for the United States? 198. Describe the process of making and ratifying a treaty. 199. In whom is vested the power to appoint ambassadors? 200. Give the constitutional qualifications of the vice-president. CHAPTER XII EXECUTIVE DEPARTMENT: PRESIDENT'S ASSISTANTS 245. The Cabinet was not, like the presidency, created by the constitution. When the organization of the executive power was under discussion, it was proposed that an execu- tive council be created to act as a check upon the president; and there was also some discussion as to the wisdom of forming an advisory body to assist him, without giving it any power to control his action. Neither of these plans, however, received the sanction of the convention, and the constitution makes no provision for a body possessing the character and functions of the president's cabinet. The only approach to such a provision is found in the clause giving the president the right to "require the opinion in writing of the principal officer in each of the executive de- partments upon any subject relating to the duties of their respective offices." There were, then, to be executive de- partments whose chief officers were to advise and otherwise assist the president; but it was evidently contemplated by the convention that such assistance would be required from each separately,, not that they would be formed into a coun- cil for the purpose of consulting and advising upon matters of general administrative policy. The executive depart- ments have been created by acts of congress; but the cabi- net with its peculiar functions, though made up of the heads of these departments, is the creation neither of constitutional nor of statute law. Its relations to the president and to 202 EXECUTIVE DEPARTMENT 203 congress have been determined by custom only. It has no legal position as an advisory body, and the president is in no way legally bound by its advice, though its opinion may and usually does have influence with him. No official record is kept of cabinet meetings. 246. Relations of Cabinet Officers to President. The head of an executive department is more than a mere adminis- trator of the business of his department. The actual per- formance of such duties can be intrusted to the assistant secretaries, the heads of bureaus, and minor officials; but the secretary must understand his department as a whole, must know its needs, must see that it is administered in con- formity with the pohcy of the administration. His function as member of the cabinet is even more important than his function as head of the department. He is first of all the president's adviser not only in regard to the business of his own department but in matters of general policy as well. Under our present system of party government, therefore, it is important that there should be harmony in the cabinet, if a poUcy is to be chosen and consistently pursued. The sec- retary ought to be not only of the president's pohtical party but also in close personal sympathy with him. It is now thoroughly understood that, if a cabinet member find?, him- seM out of harmony with the president's poUcy, it is his duty to resign or the president's privilege to remove him. It is for this reason that the president is given so free a hand in the choice of his cabinet, and partly for this reason also that he usually forms an entirely new cabinet upon his accession to office, even though he may be of the same pohtical party as his predecessor. All cabinet members are appointed by the president, nominally with the consent of the senate 204 CIVIL GOVERNMENT (though the senate practically never refuses its consent), and all receive the same compensation, $8,000 per annum. The president alone has the power to remove them. 247. Executive Departments : Organization. The executive departments are very thoroughly organized. They are di- vided first into bureaus, each with a commissioner at its head, who is directly responsible to the secretary. The bureaus are again divided into divisions, each with its chief of division responsible to the commissioner; while subordinate to these chiefs of division and responsible to them is the great army of clerks employed in the administrative work of the govern- ment. 248. Executive Departments: History. Those depart- ments whose heads form the president's cabinet, have been created from time to time by acts of congress, as the need for them became apparent. When the government was organiz- ing under the constitution in 1789, congress created three de- partments — the department of state, the department of the treasury, and the department of war; and the heads of these departments (called secretaries) together with the attorney- general, whose office was created the same year, formed Wash- ington's cabinet. The department over which the attorney- general has control, the department of justice, was not created until 1870. In 1798 there was added the navy department, naval affairs having been up to this time attended to by the war department; and in 1829 the postmaster-general, whose office had existed since colonial times and whose department had been conducted since its creation in 1794 as a part of the treasury department, was made a cabinet member. The department of the interior was added in 1849. A depart- ment of agriculture was organized in 1862, but its head was EXECUTIVE DEPARTMENT 205 not made a cabinet officer until 1889. Finally, in 1903 the department of commerce and labor was established. It will be seen, then, that the creation of a new executive de- partment and the calling of its chief officer into the presi- dent's cabinet are not always coincident. The departments have been created in the following order: state, treasury, war (1789); post-ofiice (1794); navy (1798); interior (1849); agriculture (1862); justice (1870); commerce and labor (1903). Their chief ofiicers have become members of the president's cabinet in the following order: secretary of state, secretary of the treasury, secretary of war, attorney-general (1789); secretary of the navy (1798); postmaster-general (1829); secretary of the interior (1849); secretary of agricul- ture (1889); secretary of commerce and labor (1903). 249. State Department. The chief cabinet officer is the secretary of state, commonly called the head of the cabinet. At cabinet meetings he occupies the seat of dignity at the right of the president. His chief duty is the conduct of foreign affairs; and since the president, because of the press- ure of other business, is compelled to give him a very free hand, he practically controls the foreign pohcy of the nation, subject only to the restraints imposed by the senate. Tlius he is brought much more prominently into public notice than are the other cabinet officers. It is his business, ex- cept in cases where special officers have been appointed for the purpose, to conduct all negotiations with foreign coun- tries. He receives the representatives of foreign powers and presents them to the president, conducts all official corre- spondence with them, carries on all necessary correspondence with United States ministers and consuls to foreign coun- tries, and issues passports to citizens of the United States 2o6 CIVIL GOVERNMENT who wish to travel abroad. So far his duties are concerned with foreign affairs, but he has also some domestic duties to perform. It is through him that the president communi- cates with the executives of the states, and to him is given the custody and publication of the laws and treaties of the United States, and the custody of the great seal (the official seal of the United States). He is given three assistant sec- retaries, and his department is divided into seven bureaus: the diplomatic bureau; the consular bureau; the bureaus of indexes and archives; of accounts; of rolls and library; of appointments; and of passports. 250. Treasury Department: Financial Duties. The sec- ond of the great executive departments is that of the treas- ury. It concerns itself principally, as its name implies, with the finances of the nation, but not exclusively, for it performs also a great variety of miscellaneous duties. The principal financial duties of the secretary of the treasury are to estimate the probable revenues and the probable expen- ditures of the government, and to prepare plans for the cre- ation and improvement of the public revenue. These esti- mates and plans he submits to congress in his annual report, in order to furnish that body with some sort of guide in the making of appropriations and the imposition of taxes. It is his duty also to superintend the collection of revenue, to issue warrants for the payment of all money from the United States treasury, and to superintend the coinage and printing of money. 251. Internal Revenue Bureau. We ]iave already seen that the sources of the national revenue are customs or im- port duties, and excises or internal taxes of various kinds. Until the outbreak of the civil war, the United States had no EXECUTIVE DEPARTMENT 207 permanent system of internal taxation. Then in 1862 an internal revenue bureau was organized under the treasury department and a commissioner of internal revenue ap- pointed. 252. The Treasurer. All money belonging to the United States is in charge of the treasurer of the United States. It is his duty to receive all revenue and to pay it out on the warrants issued by the secretary of the treasury or by a des- ignated assistant, to redeem the notes of the national banks, and to manage the independent treasury system. This sys- tem was estabUshed by congress at the suggestion of Presi- dent Van Buren in 1840 for the purpose of making the United States the custodian of its own money instead of de- positing it with private corporations; but the law establish- ing it was repealed the next year, and not reenacted until 1846, during President Polk's administration. Besides the main treasury at Washington, subtreasuries have been estab- lished at Boston, New York, Philadelphia, Baltimore, Cin- cinnati, Chicago, St. Louis, New Orleans, and San Francisco. 253. "War Department: Military Duties. The war depart- ment, as its name implies, has control of the military affairs of the nation; but it acts also as a department of public works, and has contributed not a httle toward the advance- ment of science by conducting the exploring expeditions sent out from time to time by the government. With the ex- ception of the secretary of war and the assistant secretary the principal officers are officers of the United States army. Of those whose duties are strictly or mainly military the most important are the adjutant-general, whose duty it is to issue orders for the muster and the movement of troops, to conduct the correspondence of the department and to 2o8 CIVIL GOVERNMENT keep the records; the inspector-general, who inspects all military posts, all public works carried on by army officers, aU military prisons, and the military academy, and reports as to equipment, discipline, sanitary condition, finances, etc. ; the quartermaster-general, who has charge of the clothing and general army supphes; the commissary- general, who attends to the food supply; the surgeon-general, who super- intends the medical service; the chief of ordnance, who at- tends to the supply of arms;, the judge-advocate-general, who reviews and records the proceedings of all courts-martial and courts of inquiry, and acts as legal adviser to the de- partment; and the chief signal officer, who superintends all mihtary signaUing by means of flags, heUograph, or other devices, and who has charge of the construction and opera- tion of military telegraph hnes. 254. Public Works. It is through the chief of engineers and his corps that the war department performs in large measure the functions of a department of public works. Under their direction fortifications are located and constructed, bridges and docks are built, and great sums of money are expended annually in improving rivers and harbors. 255. Department of Justice. Though the department of Justice was not created until 1870, the office of attorney-gen- eral, as the chief officer of the department is called, has ex- isted since 1789. He is the legal adviser of the president and of the heads of departments, has the general supervision of the work of the United States district attorneys and marshals, conducts all suits to which the United States is a party, is in general "pubUc prosecutor and standing counsel" for the United States. The law officers of the various departments are under his direction and control. The work of the de-. EXECUTIVE DEPARTMENT 209 partment is very large and the office of attorney-general one of the most important and responsible under the govern- ment. 256. Post-office Department. We have before seen some- thing of the great volume of business conducted by the post- office department (§ 172). The postmaster-general, who is the head of the department, became a member of the cabi- net during President Jackson's administration in 1829. The work of the department is divided among four bureaus, each under the direction of an assistant postmaster-general. These assistants have the general management of the post-offices with their clerks and carriers, and of the transportation of the mails; the providing of stamps and the management of the finances; the appointment of those postmasters whose ap- pointment is intrusted to the department; and the direction of the inspectors of the department. The department pro- vides for the free delivery and collection of mail, for a money order and registry system, for a railway mail service, and for the estabHshment of star routes (routes over which mail is transported by some means other than railroad or steam- boat). The postmaster-general has the power of appointing all the officers of the department except the assistant post- masters-general and the postmasters whose salaries are $1,000 or more. He may also, with the consent of the presi- dent, let contracts for the transportation of mail and make postal treaties with foreign countries. 257. Navy Department. Until the establishment of the department of the navy in 1798, naval matters were looked after by the war department. The navy department has gen- eral superintendence of the construction, manning, equip- ment, and employment of war vessels. These duties it per- 210 CIVIL GOVERNMENT forms by means of seven bureaus, whose heads are naval officers. These are the bureaus of yards and docks, equip- ment and recruiting, ordnance, construction and repair, steam engineering, suppHes and accounts, and medicine and surgery. Their duties are indicated by their names. Tlie supervision of the naval academy at Annapolis and of the naval observatory at Washington is also a part of the work of the department. 258. Department of the Interior. This department, which is under the direction of the secretary of the interior, per- forms, like the treasury department, a great variety of im- portant functions. There are two assistant secretaries in the department besides six commissioners and two directors. The titles of these commissioners and directors give some idea of the scope and character of the work of the depart- ment. They are the commissioner of the general land office, the commissioner of education, the commissioner of pensions, the commissioner of Indian affairs, the commissioner of rail- roads, the commissioner of patents, and the director of the geological survey. 259. The Land Office. The most important bureau of the department is the general land office, which has charge of all the public lands of the United States, and whose duty it is to direct the survey and sales of this property and to issue titles to it. At different periods during its history the United States has in various ways come into possession of vast tracts of territory. The first of these pubhc lands, it will be remembered, was known as the northwest territory, whose cession to the United States by the states claiming it was completed in 1786. Later North Carolina, South Carolina and Georgia ceded their claims to western lands, and since then the government has obtained enormous tracts EXECUTIVE DEPARTMENT 211 by purchase, and by conquest, or by both, and by annexa- tion. Among these additions may be mentioned the Lou- isiana purchase from France (1803), the purchase of Florida from Spain (1821), the purchase of Alaska from Russia (1867), and the acquisition of extensive territory from Mexico (1848), as the result of the war with Mexico. 260. System of Surveys. Under the direction of the land office large portions of this vast domain have been disposed of in various ways. Before any disposal could be made of them, however, it was necessary that they should be sur- veyed. Accordingly, a system of surveys, known as the rect- angular system, was very early adopted. A base and a meridian Une crossing each other at right angles were first laid off, and from these the land was divided into rectangular townships, each six miles square. Each township was di- vided into sections of 640 acres each, and each section into quarter sections. Each section was numbered, and section 16, and later sections 16 and 36, were set apart for the sup- port of the common schools. 361. Land Grants. Besides these grants in aid of educa- tion, other large grants of pubhc lands have been made to the states for educational purposes. The states have also received from the general government large grants of swamp and saHne lands and large grants of other land for purposes of internal improvement. Between 1828 and 1846 the gen- eral government granted to the states for the improvement of rivers and the building of canals, wagon-roads, raihoads, etc., a total of 162,230,099 acres. Besides these state grants the United States has also given land bounties to honorably discharged soldiers and sailors in return for military and naval service, the grant partaking somewhat of the cha.racter 212 CIVIL GOVERNMENT of a pension; and has granted large tracts to railroad com- panies, in order to promote the construction of railroads and thus develop the country. Many millions of acres have also been given to settlers upon compliance with certain laws re- quiring them to settle upon and improve the land. Thus great numbers of settlers from the eastern states and from Europe have found homes in the west. 262. Bureau of Education. The commissioner of education through his bureau collects statistics as to the condition and progress of education in the various states and in foreign countries, for the purpose of aiding in the establishment and maintenance of efficient school systems. Except in Alaska, the commissioner has only advisory power in the actual operation of the school systems. There he directs their management. 263. Pension Bureau. The pension bureau examines and adjusts all claims for pensions or bounty lands given in re- turn for military or naval service rendered in time of war. According to the report of the commissioner of pensions for 1900 there were paid out in pensions for that year approxi- mately $140,000,000. The question as to the advisability of granting pensions so liberally as has been done by our gov- ernment has been much discussed. Mr. Harrison says of it: "There are -two views of the pension question — one from the 'Little Round Top' at Gettysburg, looking out over a field sown thickly with the dead, and around upon bloody, blackened, and maimed men cheering the shot-torn banner of their country; the other from an office desk on a busy street, or from an endowed chair in a university, looking upon a statistical table." ' ' Harrison, p. 285. EXECUTIVE DEPARTMENT 213 264. Bureau of Indian Affairs. One very interesting branch of the work of the interior department is that con- ducted by the bureau of Indian affairs. Up to 1871 the Indian tribes were treated by the government as independent nations; but a law passed that year made them the "wards of the nation." Their interests are now protected xmder the bureau of Indian affairs by a board of Indian commis- sioners, whose duty it is to oversee the expenditure of money and inspect the goods purchased for them; by a number of inspectors, who visit the agencies to examine into their con- dition; and by agents, who with the aid of teachers, me- chanics, and farmers, try to promote civiHzation among them. The Indian schools at Hampton and Carhsle are also under the supervision of the bureau. 265. Commissioner of Railroads. It is the business of the commissioner of railroads to receive the reports and to ex- amine the books and accounts of the railroads that have been aided through land grants or otherwise by the govern- ment, and to see that the laws relating to the management of those roads are enforced. 266. Patent Bureau and Geological Survey. The work of the patent bureau and the process by which patents are secured have been considered elsewhere (§ 173). In addi- tion to the work of the bureaus outlined above, the depart- ment of the interior conducts also the work of the geological survey under the immediate control of an officer called a director. The work of the geological survey is to examine the geological structure and to determine the mineral re- sources and mineral products of the United States. The survey of the forest reserves is also conducted by this bureau. 214 CIVIL GOVERNMENT 267. Department of Agriculture. It is the business of the department in general to acquire and diffuse among the people useful information on subjects connected with agriculture. The names of some of the bureaus and di- visions convey some idea of the scope of the work. There are the bureaus of animal industry, of plant in- dustry, of forestry, and of chemistry of soils; the divisions of vegetable physiology and pathology, of entomology, of biological survey, of seeds, of botany, and of gardens and grounds; the office of pubhc road inquiries; and the weather bureau. One of the most important services ren- dered by the department is that performed through the bureau of animal industry, which inspects meat intended for export, inspects live animals, both those intended for ex- port and those imported, inspects diseased cattle, and pre- vents the spread of disease among cattle. The bureau of plant industry studies plant life with a view to assisting the farmer. It attempts to discover methods of improving crops, introduces new varieties of fruits' and vegetables, and studies methods of controlling the spread of Weeds and noxious plants. Another important branch of the work of the de- partment of agriculture is that conducted by the weather bureau. Through its agency, daily forecasts and warnings of storms are sent all over the country, and storm signals are displayed at many points along the coasts. The depart- ment also supervises numerous experiment stations through- out the country, furnishing them advice and assistance in carrying on experiments, and suggesting lines of investi- gation. In Alaska, Hawaii, and Porto Rico it has estab- lished experiment stations under its own immediate di- rection. EXECUTIVE DEPARTMENT 215 268. The Department of Commerce and Labor was estab- lished by congress in 1903, and the head of the depart- ment was made a cabinet officer. Much of the work hereto- fore done by other departments and independent boards is now included in the department of commerce and labor. This department includes the lighthouse board, the hght- house estabhshment, the steamboat inspection service, the bureau of navigation, the work of the United States ship- ping commissioners, the national bureau of standards, the coast and geodetic survey, the work of the commissioner- general of immigration, the immigration service at large, the bureau of statistics, the census office and all that per- tains to it, the department of labor, the fish commission, and the office of commissioner of fish and fisheries. The bureaus of industrial promotion a'nd of corporations have been created and form a part of the new department. It also has juris- diction over the Alaskan fisheries and over Chinese exclu- sion. 269. General Wor\ of Department. The bureau of immi- gration prepares and revises all regulations pertaining to immigration, decides cases as to the right of aliens to enter the country, investigates supposed violations of the ahen- contract-labor laws, and supervises the work done by the inspectors of immigrants. The bureau of statistics collects and publishes annually statistics on foreign commerce. This work is extremely valuable to members of congress in the framing of tariff laws and in the preparation of special legislation for particular industries, and is also used as the basis of aU our commercial treaties. The department of commerce and labor provides for the coast and geodetic survey, by which a survey of the whole coast and all har- 2i6 CIVIL GOVERNMENT bors is made for the purpose of locating shoals, rocks, etc., as well as an accurate survey of land lines across the con- tinent; for the location of suitable buoys and lighthouses to mark the dangers to navigation thus ascertained; and for the maintenance of Ufe-saving service for the rescue of those who may be imperilled by disasters on water. This service not only covers the long line of our sea coast, but also our larger inland waters as weU. 270. The Bureau of Corporations has power to investigate the organization, conduct, and management of the busi- ness of any corporation, joint stock company or corporate combination engaged in commerce among the several states and with foreign nations, excepting common carriers, and to gather such information and data as wiU enable the presi- dent of the United States to make recommendations to con- gress for legislation for the regulation of such commerce, and to report such data to the president from time to time as he shall require; and the information so obtained, or as much thereof as the president may direct, shall be made public. 271. Independent Boards and Commissions. In addition to the regular executive departments there have been created at different times commissions and boards, executive in char- acter, though not connected with any of the departments. Among these are the civil service commission and the in- terstate conunerce commission. Special officers or boards exist also for the purpose of conducting the work of the government printing office, of the library of congress, of the Smithsonian institution, of the national museum, and of the bureau of ethnology. The work of the interstate commerce commission has been already described (§156), EXECUTIVE DEPARTMENT 217 The civil service commission consists of three commission- ers, only two of whom may be of the same poUtical party, appointed by the president with the advice and consent of the senate. There are also a chief examiner and a secre- tary. It is the duty of the commission to provide for com- petitive examinations to test the fitness of candidates for the civil service, and to regulate and improve that service. Library References. — Ashley, Chap. XV; Macy, Chaps. XXIV-XXV, XXyil-XXXI; Macy, First Lessons, Chap. XIX; Dawes, Chaps. VIII-IX; Bryce, Vol. I, Chap. IX; Fiske, pp. 244-250; Harrison, Chaps. XI-XIX; Wilson, §§ 1109-1120; Hinsdale, Chap. XXXIII; Curtis, Vol. I, pp. 574-576; Congressional Directory; Wilson, Congressional Government, pp. 257-275, 277-293; Dole, Chap.' XIV; Lalor, Article on State Department, Treasury Department, etc.; Woodbum, pp. 189-193. QUESTIONS ON THE TEXT 201. Was the cabinet contemplated by the constitutional con- vention, or provided for in the constitution ? Discuss fully. 202. Name with their titles the persons composing the president's cabinet. How are the members of the cabinet chosen ? 203. Should the cabinet officers have seats in congress ? Why ? 204. Mention in order of rank the officers composing the presi- dent's cabinet; in order of their creation by law. 205. Give the name and the three chief duties of the incumbent of the most important position in the president's cabinet. 206. What are the principal duties of the secretary of state? How is this office filled? Give five duties of the secretary of com- merce and labor. 207. Give salary of secretary of state ; of the other cabinet officers. 208. Through what department does the United States conduct its business with other nations? 209. How is the secretary of the treasury chosen ? What is the length of his term of office, and what is his salary ? What are the chief duties of secretary of the treasury ? 210. Describe the duties of adjutant-general; inspector-general; quartermaster-general. To what department of government do they belong? 2i8 CIVIL GOVERNMENT 211. Describe the mode of appointment and state the principal duties of the attorney-general of the United States. 213. How many classes of mail are there ? What are the postal rates for each ? In which class do letters belong ? newspapers ? 213. What is the basis of the classification of post-offices? By whom are postmasters appointed? 214. What are the principal duties of the department of the interior? Mention the two ways of looking at the pension question as given by ex-President Harrison. 215. What is meant by preemption of public lands? By a homestead claim ? By a timber claim ? 216. What direct aid has the United States government ^ven to education in the different states ? 217. Mention two duties of the commissioner of education. 218. What of&cer is at the head of the department of agricul- ture? Is he a cabinet officer? 219. What officer was last added to the president's cabinet? What is the nature of his duties? 220. What department of the cabinet has charge of taking the national census? How often and in what years is the census of the United States taken ? Of the state ? 221. Describe two of the executive departments of the govern- ment, giving the principal duties of each department. 222. What are the duties of the civil service commission? What is the "civil service"? What is the "spoils system"? 223. What is the chief provision of the system of civil service ? Give an argument in favor of this system. 224. State which executive department of the government would consider each of the following: (i) transportation of mail; (2) deal- ings with the Indians; (3) collection of duties on imports; (4) nego- tiation of treaties; (5) violation of interstate commerce laws; (6) cus- tom houses; (7) patents; (8) diplomatic correspondence; (9) army supplies; (10) education; (11) passports; (12) collection of revenue; (13) arsenals and armories; (14) pensions; (15) coast survey; (16) census; (17) foreign relations; (18) erection of lighthouses; (19) copyrights. CHAPTER XIII JUDICIAL DEPARTMENT: FEDERAL COURTS 273. Necessity of Federal Judiciary. "Laws are a dead letter without courts to expound and define their true mean- ing and operation." Under the confederation there ex- isted no separate federal judiciary, and the judicial powers vested in congress were extremely limited (§§ 84, 85). It had become clear that somewhere in the nation there must exist an authority empowered to interpret the laws and treaties of the United States and to determine whether or not acts passed by congress harmonized with the funda- mental law of the land as embodied in the constitution — in other words, to pass upon their constitutionahty. It had become equally clear that such interpretation could not safely be entrusted to the state courts. In the first place, such an arrangement would be sure to result in a complete lack of uniformity. The same point might and probably would be decided in ways as various as the courts before which it was brought. In the second place, the state courts were un- fitted for the work, both because of the nature of many of the matters in dispute, and because of the character of the parties to federal suits. Matters of a quasi-international character, such as admiralty jurisdiction, are obviously not matters to be properly adjudicated by the courts of any particular state; nor could state courts be completely trusted, because of local prejudices, to do full justice between citizens of their own states and citizens of another, or between their 219 220 CIVIL GOVERNMENT own states and the federal government. Moreover, state courts, being authorities coordinate with and independent of one another, suppHed no means for settling disputes between states. And finally, since the constitution and the federal laws made under it were to be applicable not to the states only but to the individual citizen as well, it was more than ever necessary that a federal judiciary be created to interpret and apply these laws. 273. The Federal Courts. Only one of the federal courts, namely, the supreme court, was directly created by the constitution. It was left to congress to provide such infe- rior courts as might be necessary; and accordingly, by the judiciary act of 1789, not only was the supreme court or- ganized, but circuit courts and district courts were created and their functions were defined. Later it was found neces- sary to estabhsh also a court of claims and a circuit court of appeals; so that the federal judiciary at present consists of the supreme court, the court of claims, the circuit courts of appeals, the circuit courts, and the district courts, besides a number of other courts under the control of congress but differing somewhat from the regular federal courts. 274. The Judges. If the judicial department of the gov- ernment was to be made separate from and coordinate with the other two departments, it was necessary that the judges should be made as independent of them as possible. Moreover, the makers of the constitution were particularly anxious to secure the independence of the judiciary, regard- ing this as the surest means of safeguarding the liberties of the people from the encroachments of the legislature and the executive. Accordingly, the constitution provides that "The judges, both of the supreme and inferior courts, shall JUDICIAL DEPARTMENT 221 hold their ofl5ces during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office," i.e., their- tenure of office is a life tenure subject to removal only by impeachment, and that is a process rarely resorted to. Four times only since the adoption of the constitution has it been employed against federal judges, and only once against a judge of the supreme court. It is further pro- vided by the constitution that judges of the supreme court shall be appointed by the president with the advice and consent of the senate; and though no distinct provision is made for the appointment of the inferior federal judges, the president appoints them under the provision of the con- stitution which says that the president shall appoint, all officers not otherwise provided for by the constitution or by congress. 275. Jurisdiction: One Class of Cases. The constitution also defines very clearly the classes of cases over which the federal courts may exercise jurisdiction. Over some of these cases jurisdiction has been given to the federal courts because of the nature of the questions involved; over others, because of the nature of the parties to the suit. To the first class belong (i) aU cases arising under the constitu- tion, laws, or treaties of the United States; (2) all cases of admiralty or maritime jurisdiction; and (3) controversies between citizens of the same state claiming lands under grants of different states. Over cases arising under the constitution, laws, or treaties of the United States the juris- diction of the federal courts is not exclusive, i.e., such cases may be begun in the state courts; but in case the decision of the state courts is adverse to federal authority, these 222 CIVIL GOVERNMENT cases can be finally adjudicated only by the federal courts. The reason for the rule is clear. The federal authority must be the final judge of the extent of federal powers. To give the state courts power to render final judgment in such cases would be to make them, and not the United States, the ultimate authority. Over cases belonging to classes (2) and (3) above, the federal courts exercise exclu- sive jurisdiction. Maritime and admiralty cases, since they affect either commerce or international relations, both of which are regulated by the United States and not by the states, and since decisions in such cases should be uniform, can be properly dealt with only by the United States courts. 276. Another Class of Cases. The cases in which juris- diction is given to the federal courts because of the nature of the parties to the suit are the following: (i) Cases affecting ambassadors, other public ministers, and consuls; (2) Controversies to which the United States is a party; (3) Controversies between two or more states; (4) Controversies between a state and citizens of another state; (5) Controversies between citizens of different states; (6) Controversies between a state or its citizens and for- eign states, citizens, or subjects. In aU these cases the jurisdiction of the federal courts is exclusive. As regards the first of these classes it may be said that since ambassadors, ministers, and consuls are per- sons having an international character, it would hardly be fitting that cases affecting them should be dealt with by state courts. Similarly, it is not in keeping with the sov- ereign character of the United States that it shoiild be com- JUDICIAL DEPARTMENT 223 pelled to sue or to be sued in a state court. In all the rest of these cases it was felt that a state court would be likely to be prejudiced. 277. Xlth Amendment. Two of these classes of con- troversies, (4) and (6), have been so far withdrawn from federal jurisdiction by the passing of the Xlth amend- ment, as to prevent a citizen or citizens of another, state or foreign state from suing a state in the federal courts. These provisions were doubtless never intended to give to a private individual the right to sue a state, but rather to give to the state an opportunity to appear as plaintiff in a federal court against citizens of other states. The clause was, however, soon interpreted, in the case of Chishokn vs. Georgia, by a decision of the supreme court in 1793, as applying to cases in which a state is defendant also. The decision was re-, ceived with disfavor and alarm by the states. It was thought that it violated the sense of dignity of a state to be dragged into court as defendant at the instance of a private individ- ual. Accordingly, the Xlth amendment was proposed by congress and duly ratified by the states. It provides that "The judicial power of the United States shall not be con- strued to extend to any suit in law or equity commenced' or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state." Under this amendment some of the states have found it pos- sible to repudiate their debts with impunity. 278. Transfer of Cases. Any case that has been begun in a state court may be transferred to a federal court, provided the defendant can rest his case on a federal law. The judi- ciary act of 1789 lays down the rules for thus removing a case from one court to the other. It may be done (i) if the 224 CIVIL GOVERNMENT state court, in judging the case, has decided against the validity of a treaty or a law of the United States or some authority exercised under the United States; or (2) if the state court has decided in favor of the validity of a state law or exercise of authority as against the constitution, laws, or treaties of the United States; or (3) if the state court has decided against a privilege, right, title, or immunity claimed under the United States constitution, laws, or treaties. The reason for the rule is sufficiently clear. No state construc- tion of a federal law can be admitted to be final, if that con- struction in any way abridges federal authority. 279. Treason. Besides giving to congress power to estab- lish federal courts inferior to the supreme court, the consti- tution gives into its hands also the power to declare the pun- ishment for treason. It defines treason as follows: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." While granting this power, however, the constitution takes care to safeguard the interests of the in- dividual by imposing some limitations. It is provided that "No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on con- fession in open court;" and further, that "no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted." Corruption of blood was a punishment sometimes formerly inflicted as a penalty for treason or felony. By it the person attainted was dis- abled from inheriting any property, from retaining any which he might possess, and from transmitting any to his posterity. In accordance with the power granted it, con- gress intrusts the trial for treason to a tribunal appointed by JUDICIAL DEPARTMENT 225 itself and has decreed death as a punishment, or, at the dis- cretion of the court, "imprisonment at hard labor for not less than five years, and a fine of not less than ten thousand dollars." 280. The Supreme Court, as was noted above, was directly created by the constitution, and compensation was provided for the judges; but no limitations were imposed as to the number of judges to be appointed or the amount of salary to be paid to each. These details were left to be determined by congress. The number of judges fixed by the judiciary act of 1789 was six. This number has since been increased to nine, one chief justice and eight associate justices. The chief justice receives an annual salary of $13,000, while the associates receive $12,500 each. 281. The Jurisdiction of the Supreme Court is also deter- mined by the constitution, i.e., the constitution declares in what classes of cases the supreme court has authority to administer justice. It has original jurisdiction (the right to entertain an action from the beginning) in all cases affecting ambassadors, other pubHc ministers, and consuls; and in cases to which a state is a party. In other cases it has ap- pellate jurisdiction, i.e., cases may be brought before it from the inferior federal courts, or from state courts under certain conditions before described (§278). 282. The Sessions of the Supreme Court are held annually in Washington, beginning on the second Monday in October. Excepting on Saturday and Sunday, sessions are held daily from twelve to four. The room, formerly occupied by the senate, is a semicircular hall with a low, domed ceiling. Aroimd the room runs a screen of Ionic columns, forming a loggia and supporting a gallery. In front is the bench of the 226 CIVIL GOVERNMENT court, the chair of the chief justice in the centre, those of the eight associates on the sides. The justices appear in black gowns. The presence of at least six judges is required in order that a decision may be pronounced — a rule that doubtless delays the work of the court to some extent, but secures a thorough consideration of every case. The court goes over each case twice. First the opinion of the major- ity is ascertained. This is then written out by one of the judges, and is reviewed and criticised by the court before it is adopted as the judgment of the court. 283. The Circuit Courts were established by congress in accordance with the power granted it by the constitution to estabhsh "inferior courts." The United States is at present divided into nine judicial circuits, in each of which court is held annually. To each circuit is allotted one justice of the supreme court, and each has in addition at least two circuit judges, who receive an annual salary of $7,000 each. The justice of the supreme court is required by law to attend court in each district of his circuit at least once in two years. A circuit court may be held either by a circuit judge sitting alone, or by the supreme court justice assigned to that cir- cuit sitting alone, or by the district judge of the district in which the court is held, or by any two of them, or by all of them sitting together. 284. Circuit Court of Appeals. In addition to the circuit courts, a circuit court of appeals for each circuit was estab- lished in 1891. The judges of each circuit together with the supreme court justice of the circuit make up this court, and any two of them constitute a quorum. To this court cases may be brought on appeal from the district and circuit courts, and in some classes of cases a further appeal may be taken JUDICIAL DEPARTMENT 227 to the supreme court. These courts were established in the hope of reUeving the supreme court of some of its work, which had grown extremely heavy. 285. The District Courts are the lowest class of "inferior courts " established by congress. The country is divided into eighty-five judicial districts, including eleven territorial dis- tricts, each with its district court. The judges receive a salary of $6,000 per annum. 286. The Court of Claims, established in 1855, consists of a chief justice whose annual salary is $6,500 and four asso- ciate justices, each with a salary of $6,000. It holds an annual session in Washington for the purpose of dealing with the claims of private persons against the federal government. Cases may be appealed from it to the supreme court. 287. Other Courts. In addition to these inferior federal courts, congress has under its control also the court of private land claims, consisting of one chief justice and four associate justices, each with a salary of $5,000 per annum; the supreme court of the District of Columbia; and the territorial courts, whose judges are commonly appointed for only four years. 288. Marshals and District Attorneys. In order that the federal courts may execute the powers entrusted to them, there is appointed usually in each district an officer called the United States marshal, whose duty it is to execute the warrants or other orders of the district and circuit courts, and to perform duties corresponding in general to those of sheriff in the state governments. In case the marshal meets with resistance in the performance of his duty, he is entitled to call upon the citizens for assistance. If they cannot or will not help him, or if their help is insufficient, he may apply to the government at Washington for the assistance of United 228 CIVIL GOVERNMENT States troops. Besides this federal sheriff, there is appointed usually in each district also a federal prosecutor called the United States district attorney. It is his duty to institute proceedings against all persons transgressing the federal laws. Both the United States marshals and the district attorneys are under the direction of the attorney-general as head of the department of justice. 289. The Procedure of the Federal Courts is prescribed by congress, subject only to certain limitations imposed by the constitution for the purpose of safeguarding the rights of the individual, such as the provision securing the right of trial by jury in criminal cases. 290. Defects of the Judicial System. The judicial depart- ment of our federal government has elicited more applause from critics, both at home and abroad, than has any other department. Yet it is not without its defects. It has been pointed out that in the inferior courts the salaries are in gen- eral inadequate, and that in the more populous places the staff is insufficient to cope with the business entrusted to it. Even the supreme court, much as it has been praised, has not wholly escaped criticism. It has been said of it that to a certain extent it feels the touch of pubhc opinion — a tendency that is perhaps inevitable and not wholly to be de- plored; and that it has not always followed former decisions, a course that tends to unsettle the law. Its weakest point, however, lies in the fact that congress possesses the power to change the number of judges constituting the court — a power which enables it, if it can secure the cooperation of the pifesident, to "pack" the court. Thus, if congress and the president are determined to secure a certain decision, congress needs only to increase sufficiently the number of JUDICIAL DEPARTMENT 229 judges, and the president to appoint men who will give the desired opinion, in order to accomplish their ends; but while this course is possible, it is hardly probable. 291. Excellences. On the whole, however, the excellences of our judicial system have far outweighed its defects. It has proved extremely stable; and, through the independence and superior character of the judges in even the inferior federal courts, it has done much to counteract the evils aris- ing from the existence of an elective and iU-paid state judi- ciary. The supreme court has been most highly praised; and certainly its most grudging critic must admit that it has on the whole kept well out of politics, that its judges have been men of excellent legal abihty and the highest moral character, that it has escaped all suspicion of corruption, and has maintained to a remarkable degree its judicial impar- tiahty and its credit and dignity in the eyes of the people. Library References. — Ashley, §§ 374-388, 404-406; Macy, Chaps. XIX, XXI-XXII; Macy, First Lessons, Chap. XX; Dawes, Chap. X; Hinsdale, Chaps. XXXIV-XXXVI, XXXVIII-XXXIX; Willson, §§ 1082-1096; Fiske, pp. 260-262; Curtis, Vol. I, Chaps. XXVIII, XXX; Bryce, Vol. I, Chaps. XXII-XXIV; Harrison, Chaps. XX-XXI; Wilson, Congressional Government, pp. 34-3S, 37-4°; Alton, Chap. XVIII; Lalor, Article on Ju- diciary Treason; Woodburn, Chap. VI. QUESTIONS ON THE TEXT 225. Give an outline of the system of the United States courts. How are their members chosen ? 226. Explain why judges enjoy longer terms of office under the constitution than officers in the executive and legislative depart- ments of government. 227. How may judges of the supreme court be removed? 228. Mention five classes of cases in which the United States courts have jurisdiction. Define jurisdiction. 230 CIVIL GOVERNMENT 229. Define treason and give its punishment. How may a per- son be convicted of treason ? 230. Describe the organization and state the principal function of the highest court of the United States. 231. What court decides whether a United States law is con- stitutional ? 232. Mention two classes of cases in which the supreme court has jurisdiction. 233. What is meant by original jurisdiction? 234. In what cases has the supreme court original jurisdiction? 235. In whom is vested the power to try cases against foreign ambassadors ? 236. State in regard to the judges of the supreme court, (i) num- ber, (2) length of term, (3) salaries. 237. Who is the present chief justice of the supreme court? How long does he hold office ? 238. Tell what you can of the United States court of claims. 239. Give arguments tending to establish or to controvert the following: "The constitution follows the flag." 240. Give two defects, and two points in favor of the system of federal courts. CHAPTER XIV THE STATES IN THEIR RELATIONS TO THE CONSTITUTION 292. Admission of New States. Even before the adoption of the constitution, the admission of new states into the union was contemplated by the general government. The ordi- nance of 1787 had provided for the formation of states out of the Northwest Territory and for their admission to the union on terms of equaUty with the original thirteen, and the new constitution contained a provision similar in char- acter but wider in scope. It provided that "New states may be admitted by the congress into this union; but no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the congress." When the constitution was framed it was the expectation of the framers that all the territory then belong- ing to the United States would ultimately be formed into states; and the policy thus entered upon was subsequently extended to the Louisiana purchase and other early addi- tions to the territory of the United States. Since the Alaska purchase, however, and the more recent addition of our in- sular possessions, serious questions have arisen in regard to the policy to be pursued. The power to admit or to re- fuse to admit a territory to statehood hes with congress. No conununity can demand admission as a constitutional right. Neither does admission depend upon population, though in general it is readily granted when the territory 231 232 _ CIVIL GOVERNMENT possesses a population as large as that of a congressional district. Sometimes, however, for political reasons, admis- sion is granted to a territory with a much smaller popula- tion, as was done in the case of Nevada, which was admitted with a population of only 20,000, mainly for the purpose of securing its vote for the Xlllth amendment. 293. Methods of Admission. Admission to statehood is secured by one of the two following methods: (i) Upon ap- plication of the territory, congress passes an "enabling act," authorizing the people to form themselves into a state. The governor then calls a convention of delegates to draw up a constitution, which must contain no provisions repugnant to the constitution of the United States or the declaration of independence, and which must provide for the new state a re- publican form of government. Sometimes, also, the enabling act has required the new state to give over to the United States all title to unappropriated public lands within the territory, to guarantee religious liberty, and to provide a system of public schools free from sectarian control. When this constitution has been ratified by the people of the ter- ritory, the act of congress becomes operative and the terri- tory becomes a state and may elect its representatives in the usual way. (2) Sometimes, however, the territory, before applying for admission, has akeady elected a constitutional convention and framed a constitution. This it submits to congress for approval, at the same time applying for admis- sion. If congress approves the constitution thus made, it passes an act accepting and ratifying it, and the territory becomes a state. 294. Guarantees to the States: Republican Government. In order to safeguard the interests of the states the constitu- THE STATES 233 tion provides certain guarantees. First of all it is provided that the United States " shall guarantee to every state in this union a republican form of government." Since the general government was to be a federal republic, it was a practical necessity that that of the states should be of the repubhcan type. 295. Protection against Invasion. In addition to this guar- antee to the states it is further provided that the United States "shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence." The necessity of protecting the states from invasion was im- posed upon the general government by another clause of the constitution denying to the states the right to maintain troops or ships of war in time of peace. In case of invasion no formal application from the state for the promised pro- tection is necessary. The president is authorized by law to use the army and navy of the United States in such cases, or to call out the mUitia, without such application. 296. Against Domestic Violence. While the last clause of the above provision guarantees to the states the protection of the general government against domestic violence also, such protection is furnished only upon appHcation of the legislature or of the executive of the disturbed state. The presumption is that every state is capable of enforcing its own laws and that the state is the best judge of its own ability or inability to do so. By the requirement that aid be furnished only on the demand of the state, the general gov- ernment is deprived of all opportunity to meddle with state affairs under pretext of protecting the state. It has been decided by the supreme court, however, in a case growing 234 CIVIL GOVERNMENT out of the Chicago riots in connection with the great railway strike of 1894, that in case such disturbances interfere with the execution of federal laws, the president may send troops to suppress them without application from the state. 297. Obligations upon the States : Public Records. While the constitution thus guarantees to the states certain priv- ileges, it also imposes upon them certain duties toward each other. It requires that "fuU faith and credit shall be given in each state to the pubHc acts, records, and judicial pro- ceedings of every other state;" and further provides that " congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." Legislative acts are proved or made au- thentic by the affixing of the seal of the state, and court records by the certificate of the judge, the signature of the clerk and the affixing of the seal of the court, where there is one. It is evident that, unless the legislative acts and court records of one state were accepted in the others, the states would soon be involved in endless confusion and Htigation. 298. Privileges of Citizens. Another of the obKgations laid upon the states by the constitution is that they grant to the citizens of each state "ah the privileges and immunities of citizens in the several states." By this provision a state is prohibited from denying to citizens of the United States coming to it from outside its own borders any of the priv- ileges granted to its own citizens. It must not regard them as aliens; it must not discriminate against them by legisla- tion; it must permit them to come and go as freely, to acquire and enjoy property as freely, as it does its own citizens; it must grant them the same legal protection that it grants its own. THE STATES 235 299. Fugitive Criminals. The constitution, provides also for the return of fugitive criminals. "A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on de- mand of the executive authority of the state from which he fled, be deHvered up, to be removed to the state having juris- diction of the crime." This process of securing the surren- der of fugitive criminals is called extradition. The demand or requisition is addressed by the executive authority of the state having jurisdiction of the crime to the executive of the state in which the criminal is found; and it rests with the latter to determine whether the person demanded is a fugitive from the justice of the state making the demand. The requisition is made in official form, by making complaint on oath or by presenting an ofiicial copy of the indictment. 300. Limitations of State Power. In addition to guar- anteeing to the states certain privileges and imposing upon them certain duties toward each other, the constitution also lays upon their powers certain Umitations, denying some powers to them absolutely, others provisionally. 301. Absolute Limitations : Foreign Affairs. Thus it denies to them absolutely the power to do certain acts whose per- formance by the states would be a practical denial of the supremacy of the national government. It is a function of only absolutely sovereign states to enter into treaties, alli- ances, or confederations with other powers. To grant such a power to the individual states of the union would be to de- clare them independent of the general government, hence it is expressly denied to them by the constitution. So also with the right to grant letters of marque and reprisal. This is. a part of the war-making power, which belongs to the 236 CIVIL ■ GOVERNMENT whole nation, not to any single portion of it. To grant it to the states would be to subject the whole nation to the risk of being involved in a war at any moment. 302. In the Matter of Money, also, the constitution lays upon the states certain prohibitions. It forbids them (i) to coin money, (2) to emit bills of credit, and (3) to make any- thing but gold and silver coin a tender in payment of debts. The power of coining money had already been granted to the general government for the sake of securing uniformity in the monetary system. To have left a like power with the states would have been to defeat that end and to leave the confusion as great as it had been before the adoption of the constitution. The other provisions in regard to money were also dictated by the experience of the framers of -the constitution during the revolution and under the V^^s of confederation. When we were studying the coimition of affairs under the confederation we saw something*of the dis- astrous effects that followed the issue of bills oTtredit (promises to pay, i.e., paper money) and of making such bills legal tender. 303. Personal Liberty. The constitution also denies to the states absolutely the power to interfere with the personal hberty and equality of citizens by passing any bill of at- tainder, any ex post facto law, or any law impairing the obli- gation of contracts, or by granting any title of nobility. All of these prohibitions except that in regard to the passing of laws impairing the obligation of contracts are laid, not upon the states only, but upon the United States as well, and we have aheady studied their meaning and purpose. The clause regarding the obligation of contracts, like so many others, was the result of experience. Under the confedera- THE STATES 237 tion the power of the majority had often been used to change existing laws regulating contracts. The debtor class in par- ticular had employed this means of escaping their burdens and had thus wrought no little injustice. 304. Provisional Limitations. Besides these absolute Hmi- tations upon the powers of the states there exist also some provisional ones. Some of these relate to matters of taxa- tion. The states are forbidden, without the consent of con- gress, to lay any tax upon exports or imports except such as may be necessary in order to pay the expense of inspection^ If a tax is laid and the revenue from it exceeds the expense of inspection, all such excess must be paid into the national treasury. The inspection laws of the state are, moreover, subject to the revision and control of congress. The states are hkewise forbidden to lay tonnage duties (duties levied on ships according to their carrying capacity) except with the consent of congress. It will be remembered that the regulation of commerce was one of the powers given into the hands of congress. If that power of regulation were to be effective, it was necessary that the laying of import and ex- port duties and of tonnage duties should also be under the control of that body. In the matter of war also the states are forbidden independent action except under certain con- ditions. They are forbidden to keep troops or ships of war in time of peace except with the consent of congress, or to engage in war, unless actually invaded or in such imminent danger that delay is impossible. The object of these restric- tions is, of course, to ensure the safety of the union as against the states. Closely connected with them is the prohibition upon the states to enter into any agreement or compact with each other or with a foreign power, except with the consent 238 CIVIL GOVERNMENT of congress, the object being to prevent any alliance hostile to the union or to the exercise of the powers delegated to the United States. 305. Doctrine of National Sovereignty. Besides stating thus distinctly the limitations, both absolute and provisional, placed upon the powers of the states, the constitution at- tempts to define still more clearly the relations between the state and the national government as follows: "This con- stitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the consti- tution or laws of any state to the contrary notwithstanding." Moreover, it is further provided that not only every United States officer, but every state officer as well, shall take an oath to support the constitution of the United States. This is the constitutional statement of the doctrine of national sovereignty, the doctrine of the supreme authority of the national government over every state and every individual, which was only fuUy estabUshed by the civil war. In in- terpreting it we must take into account always the fact that the national government is a government of delegated pow- ers, and that "powers not delegated to the United States by the constitution, nor prohibited by it to the states, are re- served to the states, respectively, or to the people." 306. Division of Powers : Reserved Powers. Let us look a Httle more closely into the meaning of this division of pow- ers between the state and the national government. In modern free governments all governmental powers must be THE STATES 239 conceived of as originating with the people. In our own system some of these powers are exercised by the state authorities, some by the national authorities. Those be- longing to the states are nowhere expressly enumerated. In so far as the constitution defines- them at all, it does so negatively, either by making specific grants of power to the national government, by laying express prohibitions upon the states, or by reserving certain powers to the whole people. All other powers, without definite enumeration, are reserved to the states. The powers exercised by the national authorities, on the other hand, are powers delegated by the people through specific grants; and within the sphere of the powers thus specifically granted the national authority is supreme. We have already seen that certain specific powers are prohibited to the states and that certain others are pro- hibited to the United States. It should be noted also that certain powers are denied to both these authorities. Thus the sovereign people in order to preserve certain rights be- lieved to be indispensable, reserved to themselves a sphere within which neither state nor national authority can oper- ate. There are thus two classes of reserved powers — those reserved to the states and those reserved to the people. 307. Concurrent Powers. Besides these reserved powers and besides those specifically granted to the national gov- ernment, there should be mentioned another class of powers known as concurrent powers — powers that may be exercised by both state and national government. These concurrent powers arise through the fact that the mere grant of a spe- cific power to the national government does not of itself con- stitute a prohibition upon the states to exercise such a power. 240 CIVIL GOVERNMENT For example, congress has been granted the power to pass uniform bankruptcy laws and has at various times exercised this power. Several national bankruptcy laws have been passed and repealed. But the states have also possessed and exercised the power to pass bankruptcy laws which, however, cannot apply to existing contracts. To be sure, the operation of all such state laws is suspended, if, or in so far as, they are found to conflict with a national law; but upon the repeal of the national law, the state law becomes again operative, and the state retains as fully as ever its power to legislate upon the subject. 308. Classes of Powers. To sum up, we may follow Mr. Bryce in distinguishing the following classes of governmental powers in the United States: (i) Powers vested in the national government alone; (2) Powers vested in the states alone; (3) Powers exercisable by either the national government or the states; (4) Powers forbidden to the national government; (5) Powers forbidden to the state governments. To these might be added another class — namely, (6) pow- ers vested in the people alone and exercisable only by the difficult process of amending the constitution. 309. Conflicts of Authority. When conflicts of state and national authority arise, it becomes the duty of the courts, and, in the last resort, of the supreme court of the United States, to define the limits of state and national jurisdiction. In making such decisions the courts have followed the rule that the state is presumed to have jurisdiction wherever its powers have not been limited by the United States constitu- tion or its own constitution; while the national government THE STATES 241 possesses a particular power only if it can be shown to have been granted, either specifically or by implication, in the constitution. Library References. — Ashley, §§ 133-135, 238-246, 561-562; Macy, Chaps. XXXIX-XLI; Macy, First Lessons, Chap. II; Dawes, Chaps. XIV-XV; Hinsdale, Chaps. XXVII, XL-XLII, XLIV-XLV, XLIX; Fiske, pp. 253-258; Wilson, §§ 891-893; Bryce, Vol. I, Chaps. XXVII- XXX; Curtis, Vol. I, Chaps. XXVII-XXVIII, XXXI-XXXII, Vol. II, Chap. VIII; Wilson, Congressional Government, Introduction; Lalor, Article on State Sovereignty ; Woodburn, pp. yj-Sy. QUESTIONS ON THE TEXT 241. By what authority are new states admitted into the union? 242. Describe the process of admitting a new state into the union. 243. State and explain the restriction in the constitutional pro- visions for the admission of new states. 244. Give the provisions of the constitution by which no state shall pay more than its just share of taxes. 245. Give the substance of the constitutional provision regard- ing fugitive criminals. 246. A person having committed a crime in one state flees to another state; how may he be captured and returned? What is this process called? 247. Give the substance of the constitutional provision regard- ing (1) public records; (2) protection to states by the nation. 248. Mention five things that the constitution forbids a state to do. 249. Mention three important powers denied to the states, and give a reason in each case. 250. Mention two governmental powers held by the United States and prohibited to the states. Give a reason in each case. 251. Define legal tender. Is an American trade dollar a legal "tender ? 252. What is the provision of the constitution regarding the laying of duties on imports or exports by any state ? Why is this provision necessary? 253. What prohibition is laid on the states regarding treaties? Give the reason for this prohibition. 242 CIVIL GOVERNMENT 254. "The states are forbidden to issue letters of marque, to coin money, to emit bills of credit, to pass ex post facto laws, or to make anything but gold and silver coin a tender in payment of debt." Explain these prohibitions. 255. Give the constitutional provision regarding powers re- served to states. 256. Mention two points of difference between the rights en- joyed by a state and the rights enjoyed by a territory. 257. Give in substance the provision of the constitution regard- ing the protection to states by the nation. CHAPTER XV THE BILL OF RIGHTS: THE INDIVIDUAL IN HIS RELATIONS TO THE CONSTITUTION 310. The Bill of Rights. When the constitution was sub- mitted to the people for ratification, one of the chief objec- tions raised against it was that it contained no "bill of rights," no sufficiently exphcit guarantee of the rights of the individual against the encroachments of the federal power. Several of the states, while ratifying it, accompanied their acceptance with a recommendation that certain amend- ments be added, safeguarding the liberties of the indi- vidual. Numerous amendments were proposed by the various states, many of them covering the same ground. The first congress passed twelve, of which ten were ratified by three-fourths of the state legislatures, and were declared in force in 1791- These first ten amendments constitute our American bill of rights, so called from their resemblance to the EngUsh biU of rights enacted in 1689. 311. Restriction only upon the Federal Government. It should be noted in connection with these first ten amend- ments that they were designed as restrictions upon the United States, not upon the states, and that they have been so interpreted by the courts. Unless the states are specifically mentioned, it is held that the limitations imposed by the United States constitution are imposed on the national government only. Thus, if a state should by its constitu- tion abolish the right of trial by jury, no national law, 243 244 CIVIL GOVERNMENT constitutional or statute, would be brought to bear to pre- vent. The reason for this iS clear enough, if we remember the circumstances under which the constitution came into existence. It was framed in the hope of estabUshing a better government than that of the old confederation, and the government created by it was the national government, not those of the states. Some of the state constitutions ex- isted before the federal, and generally guaranteed to their citizens the rights afterwards provided for in thfe federal con- stitution by these amendments. The federal bill of rights was passed in order to secure to the citizens of the United States the rights already guaranteed to them as citizens of the states by their state constitutions; and the limitations of the federal constitution, unless otherwise expressly stated, apply to the national government and to it alone. 312. Classes of Guarantees. Let us look now a httle more closely at these hmitations which the people deemed it necessary to impose upon the newly formed government, in order to protect the citizen against possible encroach- ments upon his individual rights. They fall into three main classes: (i) provisions guaranteeing to him the right of personal Hberty; (2) those guaranteeing the right of per- sonal security; (3) those guaranteeing the right of private property. 313. The Right of Petsonal Liberty is secured by the sev- eral provisions of the 1st amendment. This attempts to secure, first of aU, freedom of religion by providing that "Congress shall make no law respecting an establishment of reKgion, or prohibiting the free exercise thereof." As we all know, many of the settlements in this country had been made primarily for the purpose of providing a means THE BILL OF RIGHTS 245 of escape from the restrictions of a state church, and in such communities the desire for the separation of state and church was natural. Moreover, in view of the religious intolerance shown by many of the colonies, and the great variety of sects existing there, such a separation provided the only means of avoiding religious disturbances. The amendment also denies to congress the power of "abridg- ing the freedom of speech or of the press." This right of free speech and of a free press is one that our nation has guarded jealously, so jealously that it may be ques- tioned whether the right is not frequently abused. Finally, the amendment provides for securing "the right of the people peaceably to assemble, and to petition the govern- ment for a redress of grievances." This " right of petition" had been secured in England by the bill of rights of 1689. It might be supposed that the mere fact of possessing a repubUcan form of government assured such a right to the people of the United States; but they evidently wished to make assurance doubly sure by making the provision a part of the constitution. The right of peaceable assembly was not generally recognized in Europe until a later period than that of our constitution. 314. The Right of Personal Security (to be secure from injury in body or character) is guaranteed by a number of amendments or parts of amendments. The Ilnd amend- ment secures to the people the right to keep and bear arms, the reason assigned in the constitution itself being that a well regulated militia is necessary to the security of a free state. By the IVth amendment provision is made also for security against the unwarrantable seizure of persons as well as of property. It is required that persons shall be 246 CIVIL GOVERNMENT seized only upon warrants issued upon probable cause and supported by oath or afl&rmation, and the person to be seized must be particularly described. Especial pains are taken to secure to persons accused of crime every oppor- tunity for their vindication and defense. All of the Vth amendment except the last clause, aU of the Vlth amend- ment, and all of the Vlllth are devoted to the provision of such guarantees. Unless the person accused is a member of the army or of the navy or of the mihtia in actual ser- vice, he can be held to answer for a capital or otherwise infamous crime only on the indictment or presentment of a grand jury.^ If the penalty endangers life or limb, he cannot be tried twice for the same offense. He cannot be compelled to be a witness against himself, and he cannot be deprived of Hfe, liberty, or property without due process of law. By the Vlth amendment it is provided that the accused shall be given a speedy public trial by an impartial jury of the district in which the crime was committed; he must be informed as to the nature and cause of the accu- sation; he must be confronted with the witnesses against him; he must be permitted to compel, if necessary, the ' A grand jury consists in most of the states of from 12 to 23 men, chosen by lot in every district to inquire into all the offenses committed in the dis- trict since the meeting of the last grand jury. Usually cases are brought before it by a public prosecutor, who formally charges certain persons with particular crimes. If the grand jury thinks the evidence against an ac- cused person sufficient to warrant a trial, it returns an indictment (a written accusation presented by a grand jury under oath, and upon the suggestion of the public prosecutor, to a court having jurisdiction of the offense charged therein) or a presentment (a written accusation presented by a grand jury upon its own motion, from its own knowledge or upon evidence laid before it). When an indictment has been found, the accused is given a copy of it and allowed time to prepare his defense. If he is unable to pay for coun- sel, the judge must appoint one, whose services are paid for out of the pub- lic treastrry. THE BILL OF RIGHTS 247 attendance of favorable witnesses; he must be permitted to secure or must be given the assistance of counsel for his defence. Finally, by the Vlllth amendment the re- quirement of excessive bail, the imposition of excessive fines, and the infliction of cruel and unusual punishments are forbidden. 315, The Right of Private Property is Kkewise guaranteed by several of these amendments or by parts of them. One of the annoyances to which the colonists had been subjected by the British government was the "billeting" of soldiers upon them. It was probably this experience that suggested the Ilird amendment, by which it was provided that no soldier should be quartered in any house in time of peace without the owner's consent; nor in time of war, except in a manner prescribed by law. The IVth amendment also, which, as we have already seen, provides against the un- warrantable seizure of persons, makes provision likewise against unreasonable searches or seizures of property, by requiring that searches be undertaken only on warrants issued upon an oath attesting a cause and describing the place to be searched and the things to be seized; while the last clause of the Vth amendment provides that no private property shall be taken for pubhc use without just compen- sation. Finally, by the Vllth Amendment it is provided that in civil suits, where the value in controversy exceeds $20, the right to trial by jury shall be preserved; and any reexamination of a case thus tried must be conducted ac- cording to the rules of the common law. 316. General Guarantees. It would seem as if the above provisions, together with similar ones contained in the con- stitution as originally adopted, must furnish ample security 248 CIVIL GOVERNMENT for the rights of the individual; but in order to deprive the federal government still more completely of any possible opportunity to encroach upon them, there was added the IXth amendment, declaring that "The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people;" and the Xth, already considered elsewhere (§ 306), by which all powers not delegated to the United States nor prohibited to the states, are reserved to the states or to the people. Library References. — Ashley, §§ 554-560, 571-573; Macy, pp. 30-31 ; Dawes, Chaps. XI-XII; Curtis, Vol. I, Chaps. XXXIV-XXXV, Vol. II, Chap. VI; Fiske, pp. 269-270; Hinsdale, Chap. XL VII; Montgomery, pp. 221-222; Lalor, Article on Bill of Rights; Woodbum, pp. 84-85. QUESTIONS ON THE TEXT 258. Define a bill of rights. 259. What provision is there in the constitution regarding free- dom of speech and of the press? Discuss briefly the reasons for this provision. Is it likely to be abused? How? 260. State the substance of that provision of the constitution which insures religious freedom. 261. Give in substance that provision of the constitution that secures (i) personal liberty; (2) protection to private property. 262. What rights are secured by the constitution to persons accused of crime ? 263. What provision is made for trial by jury in civil cases? 264. What does the constitution provide with reference to search warrants? Explain the importance of this provision. CHAPTER XVI MISCELLANEOUS PROVISIONS 317. The Public Debt. We have still to consider a few miscellaneous provisions of the constitution not studied in the preceding chapters. Of these, two concern themselves with the national debt, one forming part of the constitution as originally adopted, the other forming part of the XlVth amendment. By the first it was provided that all debts contracted before the adoption of the constitution should be as valid against the United States under the constitution as under the confederation. In this provision the framers of the constitution were merely declaring their adherence to the generally accepted principle of public law that a nation does not invalidate its debts or other contracts by changing the form of its government; but the measure doubtless tended in no small degree to inspire confidence in the new govern- ment. The other provision of the constitution dealing with the pubHc debt grew out of the civil war. It constitutes the fourth section of the XlVth amendment and provides that "The validity of the pubhc debt of the United States . . . including debts incurred for payment ... for services in suppressing insurrection or rebellion, shall not be ques- tioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of in- surrection or rebellion against the United States, or any claim for the loss or emancipation of any slave'; but all such debts, obligations, and claims shall be held illegal and void." 249 250 CIVIL GOVERNMENT In other words, the United States assures the validity of all debts incurred in the suppression of the rebellion, but re- fuses itself to pay and requires the states to refuse to pay any incurred in support of the insurrection. 318. Ratification. The Vllth and last article of the con- stitution proper provided for its ratification. Conventions were to be called in the various states for the purpose of rati- fying the instrument, and the acceptance of nine states was to be sufiicient for its establishment between those states. We have already seen something of the difficulties in the way of ratification and of its ultimate accompHshment (§§ 105- 106). 319. Amendment. One of the conditions indispensable to the permanency of a constitution is a provision for its own amendment. States grow and change; and unless their constitutions, particularly if they are embodied in written documents, provide some means by which they can be made to conform in an orderly way to the altered conditions, the only recourse is to revolution, peaceful or otherwise. One of the chief defects of the articles of confederation, it will be remembered, was the practical impossibility of. amending them. Profiting from their experience with them, the dele- gates to the constitutional convention attempted to provide a method of amendment which should be thoroughly prac- ticable, and should yet be difficult enough to prevent hasty and ill-considered changes. 320. Possible Methods, As finally provided by article V of the constitution, amendments may be both proposed and ratified by two methods. They may be proposed either (i) by a two-thirds vote of both houses of congress, or (2) by a convention summoned by congress at the request of the MISCELLANEOUS PROVISIONS 251 legislatures of two-thirds of the states. They may be ratified either (i) by three-fourths of the states through their state legislatures, or (2) by three-fourths of the states through conventions specially called for the purpose. It is left with congress to propose the method of ratification to be followed. Some restrictions were laid upon this power of amendment, however. The clauses in regard to the importation of slaves and the laying of direct taxes were not to be affected by amendment; and it was further provided that no state should be deprived of its equal suffrage in the senate with- out its own consent. 321. Method Used. Up to the present time aU aniend- ments to the constitution have been proposed and ratified by the first of the two methods described above, i.e., con- gress has framed and proposed the amendments and the state legislatures have ratified them. No special conventions have ever been summoned for either purpose. The consent of the president to a constitutional aniendment has been held by the supreme court to be unnecessary on the ground that "an amendment ... is an act in constitution-making and does not come within the provisions of the constitution investing the president with a negative." * 322. Existing Amendments. The number of proposed amendments that have been brought before congress for its consideration is very large, but only nineteen have ever re- ceived the necessary two-thirds vote and been submitted to the states. Of these, fifteen only have been ratified and be- come part of the constitution. These fifteen may be divided into three groups. In the first of these groups we find the first ten amendments, the bill of rights, whose origin and \ Woodbum, p. 154. 252 CIVIL GOVERNMENT purpose have been i already discussed (Chapter XV). They are hardly to be considered as true amendments to the con- stitution. They "ought to be regarded as a supplement or postscript to it, rather than as changing it." In the second group we find the Xlth and Xllth amendments, which, though they deal with quite different subjects, may really be classed together, since both are attempts to correct minor defects that have become apparent in the actual working of the constitution. These two amendments have also been discussed in connection with the matters with which they deal (§§ 226, 277). To the third group belong the last three amendments (XIII, XIV, and XV), which grew out of the civil war and which register in the written constitution the poHtical results achieved by that struggle. 323. Xlllth Amendment. These three amendments we have not before considered. It should be noted in regard to them that they were ratified under very unusual circum- stances and cannot be regarded as the free expression of the then existing desires of three-fourths of the states. By the Xlllth amendment slavery, except as a punishment for crime, is abolished in the United States and in all places subject to their jurisdiction. By the emancipation procla- mation freedom had been granted to all slaves in the states then in rebellion, but that did not include all the slave-hold- ing states, and in certain places slavery could still claim a legal right to existence. The ratification of the necessary number of states was obtained in 1865, and in December the amendment was declared a part of the constitution. 324. The XlVth Amendment was a part of the plan of reconstruction entered upon at the close of the war. It was proposed by congress in 1866 and declared in force MISCELLANEOUS PROVISIONS 253 two years later. It defines citizenship by declaring that it is possessed by all persons born or naturalized in the United States and subject to the jurisdiction thereof, thus making the freed slave a citizen. It forbids the states to make any laws abridging the privileges of citizens, depriving any per- son of life, liberty or property without due process of law, or denying to any person the equal protection of the laws — provisions likewise intended primarily to secure federal protection for the freedman. By section 2 of the amend- ment an attempt was made also to secure political rights for the negro, by providing that any state denying to male citizens twenty-one years old the right to vote should have its representation in congress cut down in proportion to the number of citizens thus debarred from voting. This pro- vision has never been made effective. The amendment also imposed some political disabilities upon certain classes of participants in the war. All state or United States officers who had taken part in the rebellion were rendered incapable of further office-holding until such disability should be re- moved by congress. An act of 1898 finally removed the last disability imposed by this section. 325. By the XVth Amendment, proposed by congress in 1869 and declared in force a year later, a direct attempt was made to secure full political rights for the negro. It had become clear that the indirect plan embodied in the second section of the XlVth amendment was destined to remain ineffective for a long time, if not forever. The XVth amend- ment provided that the right of citizens to vote should not be abridged on account of race, color, or previous condition of servitude. The wisdom of the policy that dictated the amendment has been much discussed. Like the second 254 CIVIL GOVERNMENT section of the XlVth amendment, it has proved ineffective; for wherever the pohtical consequences of the negro vote have been unpleasing to the white citizens, the states have found means of suppressing it. Library References. — Ashley, §§ ii6, 212, 248-249, 253, 277; Dawes, pp. 413-417; Hinsdale, Chaps. XLIII, XLVI, XLVIII; Fiske, pp. 269- 270; Wilson, §§ 1045-1046; Bryce, Vol. I, Chaps. XXXII; Curtis, Vol. I, Chap. XXXII, Vol. II, Chaps. XI-XII; Lalor, Article on Constitution; Woodburn, pp. 154, 338, 356. QUESTIONS ON THE TEXT 265. In what two ways may amendments to the constitution be proposed? State one mode of ratification of an amendment. 266. How long after its adoption before any amendments were made to the constitution? Give the substance of any of these amendments. 267. How many amendments have been made to the constitu- tion ? Explain the purpose of the last three amendments. 268. What amendments are included in the "bill of rights"? 269. What are the principal provisions of the amendments of the constitution which have been adopted since the close of the civil war? CHAPTER XVII THE UNWRITTEN CONSTITUTION 326. Development of the Unwritten Constitution. In the foregoing description of our national government reference has more than once been made to the existence of well- estabhshed political institutions and usages for which our written constitution makes no provision, but which have nevertheless become as fixed a part of the governmental machinery as have any of the institutions provided for by the written instrument. Such institutions and usages exist by the law of the unwritten constitution. In an earlier chapter (§42) it was pointed out that constitutional govern- ment may exist as well under an unwritten constitution — a constitution consisting of a mass of well-established prece- dents, usages, and statutes — as under a written one, in which such fundamental laws find expression in a single written document. Not only is this true, but it should be noted also that wherever a written constitution remains long in use without undergoing more or less extensive revision, it does so by virtue of the fact that there grows up beside it or within it an unwritten constitution, changing and expand- ing with the needs of the nation living under it. This un- written constitution has been called the flesh and blood of the constitution rather than its skeleton. Such a growth has taken place in the United States. Our real constitution to-day consists not only of the document so carefully elab- orated by the convention of 1789, but of numerous judicial 255 256 CIVIL GOVERNMENT decisions, legislative acts, and political customs, which have originated in attempts to interpret or supplement it. Thus, while our constitution has undergone very little change by way of amendment or revision of the written document, it has, by means of its unwritten portion, readily adapted itself to the ever changing needs of a rapidly expanding people. 327. Original and Inherent Powers. One of the most important changes brought about by the growth of our un- written constitution is the enlargement of the powers of the ' national government. It has been frequently averred that our national government is one of strictly enumerated powers; that it can do only those things which it has been given the right to do by an express grant of power, or at most by im- pUcation. This is unquestionably what the makers of the written constitution intended. As a matter of fact, however, the national government does exercise other powers than those expressly delegated to it or impKed in the exercise of its delegated powers. In other words, the national gov- ernment exercises not only delegated and implied powers, but original and inherent powers as well; and the exercise of such powers has been held by the courts to be constitu- tional. In making the Louisiana purchase, and in passing the legal tender acts of the civil war, the national govern- ment was exercising powers neither delegated to it by the constitution nor clearly implied in such grants of power as it had received. A more recent example of the exercise of original powers by the national government is to be seen in the acquisition of territory as a result of the Spanish- Ameri- can war and in the establishment of governments for the acquired territory. THE UNWRITTEN CONSTITUTION 257 328. Presidential Electors only Party Agents. Other in- stances of practices and precedents that have all the force of constitutional provisions have been noticed in the pre- ceding pages, but may be briefly recalled here. In our discussion of the electoral college the fact was noted (§ 229) that presidential electors are required by party cus- tom to vote in the electoral college for the candidates se- lected by their party at the nominating convention and at the polls. This custom, though it does not transgress the letter of the written constitution, nevertheless defeats the purposes of the framers in creating the electoral college. It was in- tended that this body should be made up of men versed in public affairs and acquainted with the merits of public men, and that it should exercise a wise discretion in its choice of the chief executive. In the first two presidential elections this ideal was more or less fully attained, though even in the second election party influence began to make itself felt in the selection of the vice-president. There was a some- what general expectation at least that for vice-president the federalists would vote for John Adams and the antifeder- aHsts for George Clinton. By the time of the third presi- dential election party organization was sufficiently devel- oped and party influence sufficiently strong to control the votes of most of the electors; and by the time of the fourth it had become so clearly understood that the elector's duty was merely to ratify his party's choice, that . the struggle centred about the formally nominated candidates for presi- dent and vice-president rather than about the electors. Gradually the elector lost every vestige of the discretionary power with which the framers of the constitution had in- tended to endow him and became the merest party agent. 2S8 CIVIL GOVERNMENT It is conceivable that an elector might be found rash enough to exercise his undoubted legal right to vote contrary to the wishes of those who elected him, and no legal penalty could be inflicted upon him; but such a course would mean for him political suicide. He would be looked upon as having be- trayed a public trust and as deserving of the severest con- demnation. No provision of the written constitution is more strongly safeguarded by the support of pubUc senti- ment than is this unwritten law requiring the elector merely to register the vote of his party. 329. Reeligibility of the President. Another unwritten rule that has come to have in practice the force of con- stitutional law is the rule Umiting the reeligibility of the president. The written constitution sets no limit. The ex- isting rule that the president shaU be reelected but once had its origin in the example of Washington. At the close of his second term he expressed his intention of decKning reelection on the ground that the unlimited reeligibihty of the president was not in keeping with republican institu- tions. He deemed it advisable to set the limit at two terms. Jefferson, who might also have been elected for a third term, followed the example of his predecessor; and pubhc opinion set the seal of its approval upon the custom so strongly that few serious attempts have been made to elect a president for a third term. An attempt in the repubKcan convention of 1880 to renominate Grant for a third term failed in spite of his popularity with his own party, and the decision there rendered has up to the present time been accepted as final. To be sure, the election of a president for a third term is quite within the bounds of possibiUty, and, if it should occur, would have to be regarded as a THE UNWRITTEN CONSTITUTION 259 repeal of the unwritten rule against it; but so long as the rule commands the support of pubUc opinion it must be re- garded as a part of the unwritten constitution. 330. Custom and the President's Power of Removal. It is by a rule of the unwritten constitution also that the president possesses the power to remove, without the consent of. the senate, officers appointed by him with the advice and consent of that body. The written constitution does not provide for the removal of officers except by the process of impeachment.' It is obviously necessary that there shall reside somewhere the power to remove incompe- tent or unfit officials whose offences fall short of actual vio- lations of law. A debate upon the question as to where such power should be lodged arose in the first congress in connection with a biU for organising the first departments. It was held by some members that the consent of the senate was necessary for removal as well as for appointment; by others that the power of removal should belong to the presi- dent alone. Congress adopted the latter view, and it was not until President Jackson's abuse of the power revealed its possible danger that the wisdom of this construction of the constitution was seriously questioned. Even then no legislative action was taken, and it was only when the con- flict with President Johnson arose that congress made any attempt to interfere with the president's power of removal. By the tenure of office act passed in 1867 the consent of the senate to the removal of presidential appointees was made necessary, and thus the construction of the constitution adopted by the first congress was set aside. But it was not ' Art. I, Sec. s of the constitution provides that either house may expel a member by a two-thirds vote. 26o CIVIL GOVERNMENT for long. Just a month after the inauguration of the next president came the repeal of aU those provisions of the act that interfered with the president's power of removal, and in 1886 what was left of the act was repealed. "It is now gen- erally held by pubhcists of both parties that the Tenure of Office Act was unconstitutional and would have been so held by the courts if it could have been tested." \ Since its repeal there has been practically no question that the power to remove appointees without the consent of the senate is one of the president's constitutional prerogatives. 331. The Senate and the President's Nominations. Closely allied with this unwritten rule in regard to the president's power of removal is another touching the mat- ter of appointments. In accordance with this rule the senate invariably confirms the president's nominations for cabinet officers. The control of other presidential appoint- ments has passed very largely into the hands of the senate. It confirms or rejects them on any ground it chooses — for party reasons or for even less commendable ones. Not so with the cabinet ; the president is allowed a free hand in the choice of his immediate assistants, and the senate con- firms his nominations without question. It is, of course, conceivable that the president might make a nomination so obviously unfit that the senate would reject it; but such a nomination is very improbable. 332. The Cabinet and the Unwritten Constitution. This custom of tmquestioning confirmation by the senate of cab- inet nominations finds its justffication in the character and function of the cabinet itself. The nature of this body as it exists to-day and its relation to the president and to con- ' Woodburn, p. 189, text and note. THE UNWRITTEN CONSTITUTION 261 gress are matters governed entirely by the law of the un- written constitution. Its function and its relation to other branches of the government have been aheady discussed (§§ 245-246); but it should be noted that in the cabinet we have a poUtical institution of very great importance which is not only regulated by the law of the unwritten constitution, but is indeed a creation of it. 333. The Committee System. Another important politi- cal arrangement which has become a part of our constitu- tion, though the makers of our written constitution did not foresee it or provide for it, is the committee system by which congress accomplishes its work. The system grew up as the easiest and most natural method of solving the problems confronting the first congress. Congress, unlike the British . parliament, had no official leaders charged with the duty of preparing measures and presenting them for its considera- tion. That duty belonged to the whole body, which soon found that the most effective method of accomphshing its work was by dividing it among the members. At first measures were usually debated in committee of the whole, and then there was delegated to a special committee the task of preparing a bill in accordance with the conclusions reached in the debate. As time went on permanent com- mittees were appointed to deal with certain regularly recur- ring lines of business, and thus was gradually developed the extensive and complex committee system of the present, whose working we have akeady studied (§§ 198-200). 334. Finally, our whole System of Party Govermnent, so important a part of our real constitution, has developed under the guidance of unwritten law. Our written consti- tution nowhere contemplates such a system, and its growth 262 CIVIL GOVERNMENT has wrought profound changes in the character of our government. The president, who was intended to stand out- side of and above all parties, has become avowedly a party leader. The speaker of the house of representatives, whom the constitution barely mentions and who was intended to act merely as a presiding officer, has come to wield tre- mendous influence over the course of legislation. The de- velopment of the party caucus, of the party convention, of our whole elaborate party organization and machinery, though not in contravention of the letter of the written con- stitution, is nevertheless contrary to the wishes and expecta- tions of the framers of that instrument. All these estab- lished institutions, usages, understandings, form parts of our unwritten constitution. If the student is to arrive at any adequate conception of the true nature of our govern- ment he must not lose sight of the existence of this ever changing unwritten constitution side by side with the written instrument under which it has grown up. Library References. — Ashley, §§ 229-230; Bryce, Vol. I, Chap. XXXIV; Woodburn, pp. 86-93; Hildreth, Vol. IV, p. 105 ff.; Curtis, Vol. II, Chap. Ill; Tiedeman, Unwritten Constitution of the United States; also, see Library References for Chapter VII. QUESTIONS ON THE TEXT 270. State one objection to an unwritten constitution as a basis of national government. 271. Is it the written or the unwritten constitution which deter- mines the following: (i) no state has a right of its own motion to secede from the union; (2) presidential electors are expected to vote for their party nominee? Give reasons for your answer. 272. What determines that a member of the federal house of representatives shall reside in the district from which he is chosen ? Give reasons for and against this practice. THE UNWRITTEN CONSTITUTION 263 273. How is the real business of the federal senate and house of representatives conducted? Explain the system. How did it come to be ■established ? 274. The members of the various committees in the federal senate are elective. What is the practice in the house of repre- sentatives ? Explain. 275. How may a party caucus in congress determine legislation? Are the members of the party bound by the action of the caucus? Is this phase of our government a matter of the written or unwritten constitution ? Explain. 276. Under our written cqnstitution, has the federal government the right in matters essentially national to exercise such original and inherent powers as belong to a sovereign state ? Explain. 277. What is meant by " senatorial courtesy " ? How far is it applied in the matter of presidential appointments ? Explain. 278. By whom are the presidential appointees removable ? Is this matter determined by constitutional provisions ? Explain. 279. How was the cabinet created? What regulates its action and its relation to the president and to congress ? Discuss fully. 280. What penalty is inflicted for violations of the provisions of the unwritten constitution ? What would happen, for instance, if a presidential elector should vote contrary to the wishes of his party, or a member of congress to the decision of his party caucus? CHAPTER XVIII STATE GOVERNMENTS 335. In our study of the federal constitution we have already considered the relation of the states to the national government (Chapter XIV). We must now attempt to outline in a general way the government of the states them- selves. 336. National Expansion since 1789 has been very rapid. Since that date there have been added to, the union 32 new states with an area of 2,393,715 square miles and a total population, according to the last census, of almost 46,006,000. The area of the original thirteen is but 3255065, and their present population about 28,700,000. "Westward," indeed, "the march of empire takes its way," and the power which New England and her sister states once exercised in politics is now shared with, if not entirely transferred to, the great states of the Mississippi valley and of the far west. 337. Diversities and Uniformities among the States. When we consider how dissimilar are the elements that compose our population, how great the extent and how varied the character and climatic conditions of the territory over which that population is spread, and finally, how large a measure of poKtical independence is left to the states by the federal constitution, we might expect a much wider diversity of pohtical arrangements between the states than actually exists. Diversities there are, to be sure, but they are in matters of detail. In general outhne the governments of 264 STATE GOVERNMENTS 265 these forty-five great commonwealths are surprisingly alike. This similarity must be attributed in part to direct copying of portions of the constitutions of the older states by the newer ones; in part to the constant movement of popula- tion, which tends to prevent the growth of local pecuUari- ties; in part to the influence of railways, newspapers, and telegraphs, which tends in the same direction; in part to the absence among the newer states of both natural and historical boundaries and of separate traditions. In all the states we shall find written constitutions, which provide sys- tems of government aUke in all essential particulars. 338. Origin of State Constitutions. The state constitutions are the direct descendants of the royal charters under which the early EngHsh settlements in America were made. From the beginning the Enghsh colonists in America were accus- tomed to the idea of a fundamental law, usually written, which created for them a frame of government, and which emanated from an authority superior to the ordinary law- making power in the colony. This superior authority re- sided at first in the British crown or in the crown and parliament; but when the colonies became independent com- monwealths it passed over, not to the legislatures, but to the people of the newly created states. In the ten colonies that were either proprietary governments or royal provinces (§§ 49~5o) it was deemed necessary to frame new constitu- tions or to make considerable alterations in the old ones; but in the three charter colonies (§ 48), viz., Massachusetts, Rhode Island, and Connecticut, the colonial charters were made to serve as state constitutions with only such changes as were made necessary by the substitution of the authority of the people for that of the crown. We have already seen 266 CIVIL GOVERNMENT how largely the federal constitution was influenced by the preexisting state constitutions. As might be expected, it has in its turn influenced the constitutions of states admitted to the union since its adoption; but still more have they been influenced by the constitutions of the older states from which the settlers of the newer states have come. The original constitutions of the first thirteen states, as well as the constitutions of the newer states, have been not only fre- quently amended but even entirely remodelled, so that the constitutions now in force in the several states date from all periods of our history. 339. Methods of Constitution-Making. At first state con- stitutions were formed either by the legislatures or more commonly by special constitutional conventions. These con- ventions were rarely required to submit their work to the people for approval; they were empowered not only to draft but also to adopt the constitution. Up to 1810 only three out of the twenty-five constitutions adopted had been sub- mitted to the voters for ratification. Gradually these meth- ods have been superseded by another. In practically all the states, constitutions are now framed by specially elected conventions, whose work is then submitted to the voters for ratification or rejection. 340. The Present Process. In detail the present process of forming a state constitution is practically as follows : A res- olution is passed, in some states by a two-thirds vote, in others by a majority vote of the members of the state legis- lature, calling for a constitutional convention. If, at the next election, the voters signify a desire for revision of the constitution, another resolution of the legislature prescribes the number of members for the convention, the election dis- STATE GOVERNMkNTS 267 tricts, and the mode of election. When the convention has met and finished its work the new draft is submitted to the people for ratification, though only one- third of the states require such popular sanction. Usually it is accepted or re- jected as a whole, though extra clauses on certain subjects are occasionally voted upon separately. In some states con- stitutional revision is required at stated intervals. 341. Constitutional Amendments. If, instead of general revision, certain specific amendments to the constitution are desired, such amendments are first proposed by the state legislature. In a few of the states the proposal for amend- ment may be passed by a mere majority of the members of the legislature; others require a three-fifths vote, others a two-thirds vote, while still others require that the proposal be passed by two successive legislatures by votes varying in different states from a majority to three-fourths of the mem- bers elected. After the proposed amendments have been passed by the requisite majorities they are submitted to the people for ratification, and in this popular vote Ukewise special majorities are required by the different states. While the process of amendment may seem at first sight somewhat difficult, it has not been found so in practice. Constitu- tional changes in the states have been made frequently — too frequently, some critics beheve. The fact that the more recent constitutions require the consent of only one legisla- ture rather than of two successive ones to a proposed change, would seem to indicate a tendency to make the process a shorter and thus an easier one. When we come to consider the contents of state constitutions, we shall see that they deal in the most detailed manner with a great variety of matters, many of which are of such a character that laws 268 CIVIL GOVERNMENT concerning them must be subject to somewhat frequent alteration : hence, constitutional revision is probably no more frequent than is necessary. 342. Contents of State Constitutions: Historical Changes. The earlier state constitutions were brief, usually containing little more than a bill of rights and a frame of government. As might be expected in the case of governments formed under revolutionary influences, the new governments con- sisted of a strong legislature, a comparatively weak execu- tive, and a carefully organized and independent judiciary. As revolutionary influences died away there followed a sec- ond period in the history of constitution-making, lasting from about 1800 to the civil war. In the constitutions of this period the political tendency of the time toward democracy is clearly manifest. Over a large part of the country it be- comes an estabUshed principle that constitutions shall be enacted by popular vote. The suffrage is widely extended until it becomes practically manhood suffrage, except, of course, in the case of the negro. The legislature begins to be regarded as a mere body of agents to whom are intrusted no very large discretionary powers,' and who must apply to the sovereign people for any extension of their powers. Very significant is the increasing length of the constitutions of this period, due to the incorporation of a mass of provisions dif- fering from ordinary statutes only in having been enacted directly by the people instead of the legislatures. The con- stitutions enacted since the civil war have shown a slight reaction against the democratic tendencies of the earlier pe- riod. There has been a disposition to strengthen the execu- tive and judicial departments of the government, and to curtail the power of the legislature both by laying restric- STATE GOVERNMENTS 269 tions upon it and by resorting frequently to direct legisla- tion by the people. 343. Existing State Constitutions usually contain a defini- tion of the boundaries of the state, a bill of rights, and pro- visions for the estabhshment of the three departments of government with their officers and functions together with regulations concerning the suffrage. In addition to these more essentially constitutional provisions, there occur a great number of miscellaneous provisions dealing with matters which properly belong to the domain of ordinary law; e.g., articles concerning taxation, education, local government, corporations, pubUc lands, the administration of the state debt, the management of public institutions, the sale of in- toxicants, and many others. These later constitutions, moreover, not only cover this great variety of subjects, but they deal both with these and with the properly constitu- tional provisions, in much greater detail than was attempted in the earlier ones. Doubtless the principal motive in thus crowding into the constitutions much that might better take the form of laws on the statute books is popular distrust of the legislatures and consequent desire to legislate directly upon certain important subjects. 344. The State Governments. I n every state the govern- ment is divided into the three Hepartmer i ts —\ legislative, ex- ecutive, and^judicial. The state legislatures are all bicam - ^al, the smaller house being termed in aU states the sen,at£, the larger usually the hflusfi-o f representativ es,.tl:iough in six states it is known as the assembly," in three as (the house of delegates. / The state executive consists of the ggvgoier and a number of other officials. The jtate judiciary consists of at least one state court with a number of minor courts. - **-— -—-- —— — ^ 270 CIVIL GOVERNMENT 345. Suffrage and Elections. Although in most of the states the suffrage approaches very nearly to universal man-\ hood suffrage, still the qualifications are by no means uni- ' form. Most of the states demand that the voter shall be of the male sex, twenty-one years of age, and a resident of the state for a certain length of time, and that he shall not be a criminal or a pauper. Beyond this the qualifications vary viridely. In Wyoming, Colorado, Idaho, and Utah, women are allowed to vote. A majority of the states demand that the voter be a citizen; in others no such qualification exists, or a simple declaration of intention to become a citi- zen is sufficient. Mississippi, Massachusetts, New Hamp- shire, Cormecticut, and Delaware impose an educational test requiring the would-be voter to read or to read and write. In Idaho the suffrage is denied to polygamists. Some of the states require that the voter register his name and certain other facts before he can vote. The reason for tlie age re- quirement is obvious. The residence qualification, if carried to the length it is in New York state, ^ tends not only to pre- vent repeating (voting more than once) at the ballot box but to secure from the voter some familiarity with local conditions before he casts his vote for a local officer. Citizenship, pre- supposes a certain interest in the affairs of a state which may, perhaps, not exist in the alien voter. In the more thickly settled districts, particularly in the cities, registration has been found a helpful means of combating the evil of repeating. 346. The Voting is usually done on a single day between sunrise and sunset. For the election of United States officers I a uniform day has been fixed by law, viz., the first Tuesday \ ' The state constitution demands residence in the state for one year, in the county for four months, and in the election district for thirty days. STATE GOVERNMENTS 271 after the first Monday in November. Polling places are provided in charge of officers prescribed by state law. The voting is by ballot or by voting machines. Most of the states have adopted the Aiistra.lia.r i cyctpm pf haHnting-^ or some modification of it, in order to secure secrecy. By this system the voter, having been given an official ballot printed by the state and containing in parallel columns the names of all the candidates to be voted for at that election, with the party emblem, a circle, and the name of the party at the top of each column, enters a closed booth or room, alone. If he wishes to vote for all the candidates of his party (i.e., a " straight ticket "), he places a mark in the circle at the top of the column containing their names. If, on the other hand, he wishes to vote for one or more candi- dates from other parties than his own (i.e., a " split ticket "), he places a cross opposite the name of each candidate for whom he wishes to vote. He then hands the ballot to the proper officer for deposit in the ballot box. If the officer in charge of an election, or even a bystander, thinks that the voter does not possess the necessary qualifications, he may question his right to vote. This is called "challenging." The person challenged must then "swear in his vote," i.e., take an oath that he is entitled to vote at that election. In New York illegal voting is punishable by a period of imprisonment from three months to a year in length, and for certain offences of this nature an additional penalty is pro- vided depriving the convicted person of the right of suffrage for a period of five years after conviction. In New York also and in Florida betting on elections is forbidden by law. 347. Election. After the election the voting places are closed and the election officers count or canvass the votes. 272 CIVIL GOVERNMENT If the number of ballots does not agree with the list made of the voters, then it is the custom to draw out of the box the number in excess. Sometimes, especially when voting for the. officers of the larger divisions of the state, as the county, congressional district, or state, the votes are can- vassed by two or three sets of officers. In most of the stated a plurality only is necessary for an election. By plurality is meant the excess of the number of votes cast for the lead- ing candidate over those cast for each of his competitors in) cases where there are more than two candidates and no one receives a majority of the votes. Thus, if A gets 450, B 300, and C 250 votes, out of a total vote of 1,000, A is said to have a plurality over his competitors. In several of the New England states a majority — i.e., at least one over half of the total number of votes cast — is necessary to elect. It very often happens that a person is elected on a plurality vote who is really the choice of but a small part of the voters; on the other hand, under the New England system it may be necessary to resort to a new election, no candidate hav- ing the necessary number of votes for a choice. 348. Th fi^Legislature : Organization . The members of both houses of the state legislature are chosen by popular vote,' usually from districts equal in number to the members of the respective houses. The basis of representation, there- fore, does not differ ia the two houses except that the sena- tors are elect ed from larger districts . Otherwise the houses differ merely in the number of members, the length of term and their special duties.'' ..Ihg_state_senates now consist _o n the average of about thirty members. Nevada has the small- est senateVhumbering fifteen members; Minnesota the largest — sixty-three. In most of the states the term of the senator STATE GOVERNMENTS 273 is longer than that of the representative, ranging from two years to four. In most of the states also the senate is only 1 partially renewed at each election, so that this body possesses 1 a continuity which the other house lacks. Some of the states also fix a higher age qualification for the senator, and imtil 1897 Delaware imposed a property qualification. 349. The J,ower Houses are in general about three times as lar ge as the senates, but the size of the hou ses varies geatly from state to state.._^ In the west and south the houses are generally smaller than in the other states, particularly in New England, where the stronger local sentiment demands representation for smaller districts. The length of term varies from o ne year to four, m ost of the states electing for two. Except for a lower age qualification and a shorter pe- riod of residence for representatives, the qualifications for members of the two houses are essentially the same. The ^ requirement that both senators and representatives shall be residents of the districts from which they are elected is made in some states by the constitution, and everywhere by custom. 350. Sessions.. Inmost of the states the sessions of the le gislature are |biennial ?\ Only six states (MassacEuietts, New York, New JerseyTRliode Island, South Carolina, and Georgia) now hold annual sessions, among them, naturally, those which hold annual elections for members of the legis- lature. In most states also the length of the session is limited, u sually to sixty days, but in three states (South Carolina, Wyoming, and Oregon) to forty. The governor may, however, convene the legislature in extra session, either on his own initiative or at the request of a certain proportion of the members. ' In some of the southern states the legislature regularly meets but once in four years. Alabama is an example of this custom. 274 CIVIL GOVERNMENT 351. Procedure. In organization and procedure the state legislature is very similar to the national. The Heutenant- governor, wherever provision is made for such an officer, is usually the presiding officer of the senate. The speaker, as the presiding officer of the house is called, is chosen by the members. In most of the states a majority of the members, of each house constitutes a quorum. As in the national] legislature, there are regulations securing to the members freedom of speech in the house and exemption from arrest! during the session, providing for the expulsion of members] by a two-thirds vote, for adjournment, for the keeping of journals, the judging of elections of members, the reading of bills, etc. The committee system is in use in all the states, and in most of them measures must be approved by at least one-half of all the members of both houses before they are submitted to the governor. 352. Restrictions on Powers of Legislatures. We have aheady seen (§§ 305-307) that under the federal consti- tution the states possess all those powers not delegated to the United States by the constitution nor prohibited by it to the states. The powers of the states are not, hke those of the national government, delegated powers, nor do any of the state constitutions expi-essly delegate powers to their legislatures. Except where specific limitations have been imposed upon it, the state legislature has power to deal with any subject coming before it. The people of the states have, however, shown a growing jealousy of the powers of their legislatures by placing upon them various important Kmi- tations and prohibitions. Upon certain subjects, varying from state to state, the legislatures are forbidden to pass any measures at all. Mr. Bryce classifies these forbidden meas- STATE GOVERNMENTS 275 ures as follows: (i) statutes inconsistent with democratic principles, e.g., granting titles of nobility or creating a profi- erty qualification for suffrage or office; (2) statutes against public policy, e'.g., tolerating lotteries, impairing the obliga- tion of contracts, etc.; (3) statutes special or local in their appUcation; (4) statutes increasing the state debt beyond a certain Kmited amount, or permitting a local authority to increase its debt beyond a prescribed amount. In addition to these prohibitions upon legislation, the constitutions im- pose also a number of restrictions as to the treatment of biUs, the majorities necessary to pass certain bills, the method of voting, the reading of bills and the intervals between read- ings, as well as regulations against changing the purpose of a bill during its passage, and requiring that only one subject be included in a bill and that that subject be expressed in the title. 353. Special Powers of the Houses. In most of the states each house possesses special powers. The power of im- pir'arhmeT if hplnnnr s fn the, lower ho use, but the senate acts as a. court for the trial of impeachment case s. A two- thirds vote is usually required for conviction. The_jenate_,also po^esses the power of conlirmiiig appointments made by the governor. On the other hand tne poweT^ originating jnoney bills resides, in a majority of the states, with the lower house. In Vermont the power of proposing amend- ments to the constitution is given to the senate alone, in Connecticut to the house. 354. Th e Tgyecutive: Its Cha racter. The organization of the executive power of thestates dmers very materially from that of the federal government. We have seen that the pre sident is the real executive head of the natio n. In him the chief executive authority is vested and to him are re- 276 CIVIL GOVERNMENT s ponsible the offi cials who3(3jr!JQiateL.the^fed£nal»law. He appoints them and he may at any time remove them for cause. In other words, the_.£x^£Utiy,e. - aaath©rity of the nation is centr alized. In the states, on the other hand, it is very much decentralized. The relations existing between the governor and the other principal administrative officers of the state are very different from those existing between the president and his cabinet. These state officials usually ate not the governor's appointees. They are generally elected either directly by the people or by the legislatures and are in nowise responsible to the governor. Even where, as happens in a few of the states, some of these officials are appointed by the governor with the con&rmation of the sen- ate, they are still not dependent upon him. Their duties are prescribed either by the constitutions of their states or by statute, and they are removable only for just legal cause. They are not the governor's subordinates., or- agents; they are his colleagues . Moreover, it cannot even be said that the governor and the other central administrative officials together make up the whole of the state executive. The power is stiU further shared by a large number of local offi- cials — county, town and municipal officers — who, though they execute state law, are so little responsible to the central executive authority that they are not usually regarded as state officers at all, but only as officers of their districts. Neither the governor, nor any one of his colleagues with the possible e xception of the superintendent of p rlnrgti'f>n^ exercisesany real control over the local authorities by whom the laws are actually administered. 355. The Governor. In spite of this diffusion of execu- tive power, however, the position of the state governor is STATE GOVERNMENTS 277 b y no means insignifican t. ' If he is, as he has been called, only a "piece" of the executive, still he is a very important piece. Though he has no real control of the other execu- tive officers and administrative boards, still he has general o versight o f them. He has s ome power of appointmen t, though not very extensive. As '^ m mandej -in-chi ef^of the state militia, it is his duty to see that 'order is preserved within the state and to repel invasion in case such occurs. The governor also has the power under certain restrictions to grant rep ^^'^yf ^"^ pard onstojTgrson f^ convicte d -of . r gp] p. . His most important duties, however, are those which have to do with the leg i^^j|it"'"p and which give him some control overlegi^donrfi At the beginning of each session he sends a message to the legislature for the purpose of informing the law-makers of the condition of the commonwealth and of recommending such meas ures as he aeems necessary."^ In , case the houses fail- to agree on the time of adjournment he may adjourn Qifcm. d, In most states, also, he may call special sessions, either with or without the request of a portion of the legislature. / Most important of all, however, is his power of vetoing measures that he does not approve, a power given him m every state except two (Rhode Island and North Carolina). Bills may, of -course, be passed over the governor's veto by m ajorities v arying widely in the several states. In many ofthe states the governor may veto par- ticular items in appropriation bills; other bills must be ap- proved or disapproved entire. 356. The Governor's Colleagues. In addition to the gov- ernor all the states have a number of other central executive officers, though not all the states have exactly the same ones. Many of them have lieutenant governors who succeed to 278 CIVIL GOVERNMENT the governorship in case the governor is for any reason in- capacitated. A-11 of-the m-have secretaries ol jtat£.aQd all haxg. treasurers. ^ Nearly all have _attOTn^a=geaera.l. Most of them have sugerintendentsoE^e^ucation, though some have boards .aiL-Sducation instead. Sornehave auditors:, in others the same duties are performed hy comptrpH ers. In three of the states (Maine, New Hampshire, and Massa- chusetts) there exist governor's councils.^ The secretaries -of state keep and affix the seal of the ^common wealth and keep all state records. "^TE eJlfeasurers have ch arge of thej)ublic funds^ whic h they pa_y out only onwarran^jsgyed hy the auditors or comptrollers. J^The auditors or comE; troUers haVe general__supervision of^ate_ finances. Like the national secretary of the treasury they present to the legisla- tures estimates of the a mount of money needed fo r state pur- poses, though the state legislatures in general feel themselves even less bound than does congress by such recommendations. ,The attorneys-g eneral are the legal adviser s of the states and conduct all state cases before the courts"'J The super- intendent_of_ e ducat ion oversees the educational system of the state, often apportiomng the school moneys and deciding disputes involving school authorities. In addition to these central executive officers there are in many of the states va- rious departments in charge of superintenderits_or boards, e.g., departments of health, of labor, of agriculture,^ of hilar- ities and correction. In most cases these departments have not yet been given sufficient power to render their control effective, and a large part of the duties which naturally be- long to them are still under local control. 357. Election, Terms, and Qualifications of Executive Offi- cers. Not only the governor but the other central executive STATE GOVERNMENTS 279 officers as well are chosen Ky riiV^r-t pr^pi^jpn- ■■rr.tp over the whole state. The terms vary in the different states. In general the terms of the other principal officers are the same as that of the governor and lieutenant governor. In most of the states the term is either tw2_ar f nv rr yea rs ; occasionally, however, one or three. Most of the states prescribe certain minimum qualificationSjjcovenng_age, residence, and citizen- ship, which always apply to the governor and Jieutenant governor, and generally to the other most important officers. All these officials are removable by impeachment. 358. Thejaidiciaigt- Justice in the states is administered through a system of courts which exist quite i ndependently of federal_law. The two~systeins„ of, courts, fede]; al^ ^p4._ state, are entirely separate^ so that for cases falling within their jurisciiction the decision of the state courts is final. Only in cases involving f ederal law or in cases in which the nature of the parties to the suit is such' that no state court has complete jurisdiction (e.g., suits between citizens of dif- ferent states) does an appeal lie to the federal courts. 359. The System of Courts. The judicial systems of the different states vary so considerably that only the most gen- eral description is applicable to all of them. Usually there are fqjir grades of state courts. The lowest are those pre- sided over bv^i ustices of the peace and having jurisdiction over petty civil and criminal cases. Their decisions are al- most always subject to appeal to higher courts. Next above them gtand the county or municipal cou rts, which hear ap- peals from them a!nd have original jurisdiction in civil cases where the amount involved is large, and in criminal cases of the graver character. Next rnme the supf^rinr miirts. called also circuit or district courts, which hear appeals from the aSo CIVIL GOVERNMENT lower courts and have original jurisdiction of the most gen- eral character in both civil and criminal cases. The highest court in the state is usually the supremg^ court. . In most of the states its jurisdiction is only appellate, though in a few of the older states it has original jurisdiction as well. In five of the states (New York, New Jersey, Louisiana, Ken- tucky, and Illinois) there are courts higher than the su- preme court called courts of appeal. 360. S pecial Co mfs. In addition to these, some of the states provide special courts for the trial of cases in equity (cases arising QWt.jafr grievances for which. the.xommQoJS'W furnishes no remedy). Usually, however, instead of pro- viding special courts, the states have given jurisdiction over such cases to one or more of the regular courts. Much more general is the special probate 4:aurt, whose business it is to see to the disposition of the property of deceased persons. In many states, however, this function is also performed by the ordinary courts. 361. ^Jud ges. The judges of most of the state courts, both higher and lower, are elected, those of the supreme court usually by the p&ople of the state at large; those of c ircuit. county, municipal, andother courts, by the electors of the area in which they _serve. In some states, however, the higher judges are chosen by the legislature; jji a few others they are. appointed by the governor^ith the advice and con- sent of the senate, and in three of the New England states they are appointed by the governor and council. 362. Th e Term of _O ffice_varies from two years to tenure during good behavior. In general the higher judges hold office for longerJermsJJiaajiQj;he_iQHetjQues. Justices of the peace are usually elected for two^orjour years, circuit STATE GOVERNMENTS 281 judges facJQUK. or- six"yra3:s, supreme judges for eight or ten. Most of the states impose an Sgrarid residence quah- fication. upon candidates for judgeships, and some require tests of legal fitness also. 363. State Finances. The state government like the na- tional government cannot exist without money. The power to tax the people of t he state is therefore vestpd in pvprv staite'legislalOT'e. ""Although the budget of the state is not large in proportion to the wealth of its inhabitants," a con- siderable revenue is required, not only to pay the officers and the militia, b ut to sustain the various enterprises in which the~state is interested, such as asylums and institu- tions for the unfortunate, schools, canals, and the like. If the state is in debt, some of this revenue goes toward paying the interest on its bonds. 364. Taxes. State taxes usually take the form of direct taxes on real estate a nd personal property , gr in some cases on collateral i nheritance^ . A few states impose a poll tax, which is often a prerequisite for voting. Almost every state in addi- tion imposes certa in indirect taxes, ^ uch are the taxes on par- tic ular trades o r occupations, which sometimes take the form of hcensejaxes; or tne . taxes on^ franchises, i.e., jhe, right to operate railroads, etc. ; or again taxes on raihoad stock. 365." Exemptions. Certain "prop^ft!5r"a're'""e'xefflpir" ftom taxation. Among these are pubUc buildings, since they are used for public purposes, and it is for such purposes that taxation is levied; ins titutions -or societi£ &jQE-.the. improve- ment of the people, such as schools, ^uu^es, .charitable institutions a nd agricultural soci eties; the necessary imple- ments of the farmer or mechanic;~ari3nni!ed States sequii- ties. iri'^someTstates," possibly with the idea of encouraging 282 CIVIL GOVERNMENT thrift and industry, the law exempts deposits in savings- banks from taxation. 366. Assessment. The first step toward raising revenue by direct taxation is ass essment.^ Certain local officers, known as apEiaisers pr_,j5iSessacSj chosen by the local gov- ernments but acting under state laws, ascertain the value of the real estate and personal property of the various lo- calities. As the contribution of the communities is Based on this valuation, it is to their interest to put it as low els possible, and thus to avoid their share of the state burdens. To correct abuses of this sort, many states have a state board of equalization for the purpose of having the taxable property of the localities equally and fairly valued. Their work is sometimes supplemented by similar county boards. Many states have also taken the assessment of certain sorts of widely diffused property, e.g., railways, telegraph and telephone lines, out of the hands of the local assessors and have established boards of state assessors to deal with them. 367. Apportionment and Collection. When the state has determined the amount to be raised, it is apportione d through- out the state according to the amount of taxable property as determined by the returns received from the assessors. The amount to be raised is divided by the amount of taxable property, and the per cent obtained constitutes the state tax rate. With the valuation of the county property before them it is easy for the county officials to ascertain in a sim- ilar manner the county rate, and the town officers the town rate. State, county, and town taxes are usually paid in one sum. When the collector receives the taxes the town offi- cers retain the part raised for town purposes and send the remainder to the proper county officers, who similarly retain STATE GOVERNMENTS 283 the county taxes and remit the rest to the state authorities. Indirect taxes are usually paid directly to state officials. 368. Restrictions upon Taxing Power. Various restric- tions have been imposed upon the states by their constitu- tions in this matter of raising and spending money. "Taught by sad experience of reckless legislatures," the people limiq the amount that may be raised annually by taxation. Some-' times this limitation takes the form of a requirement that the sum raised shall be no more than sufficient to meet c\ir\ rent needs. In their fear of state indebtedness they have limited the amount that may be borrowed, sometimes to an absolute sum, sometimes to a certain percentage of the assessed valuation of the taxable property. They have be- sides forbidden the state to contract debts without immedi- ately providing a sinking-fund to discharge the obligation. Similar restrictions also exist to prevent indiscriminate bor- rowing on the part of the local governments under state jurisdiction. 369. Education. One of the most important functions en^ trusted to the state governments, is the maintenance and control of the pubUc school system. In this Work of edu- cating the masses, a work so important under a repubUcan form of government, the national government by extensive land grants has aided the states most Uberally; but it has left the control of the pubhc schools, both elementary and higher, to the states. 370. The School System. The earliest public schools were organized not by the states but by th g localities t hat desired them, and they formed no part of any systenj. Gradually, however, as the need for better organization, better instruc- tion, and greater uniformity became apparent, the states be- 284 CIVIL GOVERNMENT gan to regulate public education by law. At first there were no state school officials, and the attempt at state con- trol was to a great extent ineffective. Now, however, the schools are everywhere iompletely regulated by state Jaw, thou^nK"Taw is still,jidministergd for the most part by local officers. In each state the law determines, among other things, what shall be the administratjvt janit for the school system — county, town, or districtj prescribes a min- imum Ust of subjects to be taught;, fixes a minimum^^school year; and lays down the requirements which must be met by the teachers of the state. 371. Various Grades of Schools are maintained by all the states. The common schooR —aometimes called district schoolSj_and graded .sc hools. , . furnish facilities to everyone de- siring an elementary education. High schools and acade- mies give instruction in the academicBrancKeTand prepare for' college; while a higher education is to be obtained in colleges and universitie s.— xaa^ny of which are supported wTioiry or in part by state funds. Most of the states of the west maintain at least one state university, where tuition is fre6 to its citizens. They have also established technical n-nrTayf irnltura.l" s'chonis find rpHeres for the purpose of in- creasing the industrial efficiency of "tEeir citizens. The states also endeavor to secure the best instruction possible by crgating normal schgpls for the training of teachers and by fixing tests for candidates for jppsjtions as teachers. 372. State Administration of Schools. In nearly every state in the union the educational system is under the gen- eral supervision of a state boar d of education_gr a stat e su- perintendentTpr^botn^ liiese officials are chosen in various ways in the different states, though the boards are perhaps STATE GOVERNMENTS 285 more frequently appointed by the governor or legislature, the superintendents more often elected by the people. It is the business of these of&cials to interpret and enforce the ,, school laws ; to care for the state school funds ; to attend to \ the examination of teachers, except where that duty has been Wtrusted to county boards; and in some cases to select the iext-books. It is their duty also to study educational meth- ods and to keep themselves generally informed in educa- tional matters with a view to improving as rapidly as pos- sible the schools of their state. \ 373. Local Administration of Schools. Below these state of&cials there are usually county boards of education and county com missioner ^ "'• ei|pAi5i»>t«-«>4gwfa: The examination of teardlersis usually conducted by these boards under^^jte- law. The county commissioners "wI^^UB^fflten^nts are charged with the duty of visiting and inspecting the schools and distributing the school funds among them. In the rural sections school law is administered by officers usually called trustees chosen for a term of three years by the people of either the school district or the township. Cities have, under state laws of course, their own separate school systems, ad- ministered by their own boards of education and city super- intendents. 374. Compulsory Education. Many states regard an ele- /jmentary education as a matter so important and so closely /connected with the stability of repubUcan institutions that / they have enacted laws compelling the attendance of all / children between certain ages for a certain length of time j each year. I 375. Importance of State Government. As indicated above the federal government left to the states all those powers not 286 . CIVIL GOVERNMENT delegated by them to the nation nor forbidden by the con- stitution to the states. How vital, then, are the issues at stake in our state elections! President Garfield said: "The state government touch es the citizen an d his interests twenty times where the national government touches him once. For the' p eace of our'ltreet s'ang'lh^'Eealth of biir cities ;'1br the/ad ministration of justice m nearly all that relates to the security of peraen and property, and the' pu nishm ent of crime J for the education of our children, ard the care of unf ortunate aii5~dependent n'Tizena ; for the colle ction and assessment of much the larger portion of our_direct_itaxes, and for the proper expendi^ture of "the same — ^■for all this, and much more, we depend upon the honesty and wisdom of our General Assembly (of Ohio) and not upon the Con- gress at Washington." When it is remembered further that all the important reforms that have agitated the people of England during the last century, with the possible exception of the com laws and the aboHtion of slavery, would have been proper objects for our state rather than our national government, the relative importance of good management in state affairs becomes apparent. Library References. — Ashley, §§ 412-437, Chaps. XIX, XXII; Macy, Chaps. VIIT-XI, XIII; Macy, First Lessons, Chaps. III-XV, XXIV, XXVIII; Dawes, Chaps. XIII-XIV; Fiske, pp. 173-188; Hinsdale, Chaps. XLIX-LIV; Bryce, Vol. I, Chaps. XXXVI-XLV; Wilson, §§ 885- 994; Dole, Chaps. XV-XVII, XIX; Lalor, Article on Constitutional and Legal Diversities in States; Woodburn, Chap. VII. QUESTIONS ON THE TEXT 281. In some states, women, aliens, infamous criminals, idiots, minors, and lunatics are excluded from voting. Give reasons for or against the exclusion in each case. STATE GOVERNMENTS 287 282. Should paupers be allowed to vote? Give reasons. 283. Give a reason for the law requiring registration of voters. Why is such a law more important in a city than in a snlall village ? 284. Give one reason why a legislature should consist of two bodies. 285. Give arguments for or against biennial sessions of the state legislature. 286. What is the capital of a state, and why so called ? 287. Describe the process of assessing property for the purpose of taxation, and show how the amount of money to be raised by each town is fixed. 288. Mention three kinds of property that are usually exempt from taxation, giving reasons. Why has the state the right to impose taxes? 289. What is meant in general by a compulsory education law? Why is such a law desirable ? 290. May a state levy and collect an income tax? 291. What government touches the individual the more fre- quently — city, state, or national ? Why ? 292. Mention the different ito^e courts. What is a police court ? 293. Under what circumstances may cases be transferred from state to federal courts? 294. If legislation on any subject is desired by citizens of the state, how is the attention of the legislature secured ? CHAPTER XIX LOCAL GOVERNMENT 376. Tjrpes of Local Government. We have already traced in outline the origin of the various forms of local govern- ment in the United States (§§ 51-65). It remains for us now to study in somewhat greater detail existing ar- rangements. Aside from municipal government there are, as we saw in Chapter III, three types of local govern- ment: the town (township) type, the county type, and the mixed or compromise type, each predominant in its own section of the country. In the six New England states local government is town government. In the south the county is the characteristic unit. Elsewhere the mixed sys- tem prevails, though with considerable variety of form, the preponderating influence falling now to the town, now to the county. 377. The Town System. It should be remembered that the term " town " as used in New England is the name of a rural, not an urban district. Elsewhere these districts are usually called townships. The characteristic feature of town government is the town meeting or general assembly of the voters of the town, which is held annually, generally in the spring, or oftener if summoned. Notice of the time and place of meeting and of the business to be considered must be given at least ten days before the meeting occurs. This body passes all laws necessary for the government of the tOAAm, elects new officers, receives the reports and audits the 288 LOCAL GOVERNMENT 289 accounts of outgoing officers, votes the amount of money required for current expenses and appropriates it to the various local purposes, and in general manages local matters of every kind. 378. The General Executive Officers of the Town, called selectmen, vary in number from three to nine and are elected annually. In addition to these there are also usually a town clerk, a treasurer, assessors, a collector, a school com- mittee, surveyors of highways, constables, and justices of the peace. Their names serve to indicate their duties. Where local needs demand, there are also such officials as cemetery and library trustees. 379. The County in New England. To the towns belong all the reaUy vital functions of local government. The county exists in New England, but its functions are compar- atively unimportant. It is first of all a judicial district and elects the necessary judicial officers. The chief administra- tive officers are the county commissioners and the county treasurer. Their principal duties are the care and mainten- ance of the county buildings — court houses, prisons, etc. ; the issuing of certain licenses; the laying out of inter-town roads; and the apportionment of the county tax among the towns. 380. The County System. In the south the unit of local government is the county. It performs not only the judicial fimctions and such other administrative functions as fall to the share of the county in New England, but most of those that there belong to the towns as well. Its principal officers are the board of county commissioners, the county treasurer, the auditor, and the superintendents of roads, of education, and of the poor. The county has also its full complement 290 CIVIL GOVERNMENT of judicial officers, including sheriff, clerk, surrogate, coroner and state's attorney. There are sometimes also assessors and collectors of taxes. County officers are nearly all elected by the people, usually for two or four years. 381. Smaller Divisions. Though the county is the unit of local government where the county system prevails, stiU there exist subdivisions smaller than the county. These vary from state to state both in name and in character. In a few states they are called townships and do not differ appreciably from the townships of many of the middle and western states; but nowhere is there anything corresponding to the New England town with its primary assembly — the tovyn meeting. The officers of these minor local divisions exercise their powers for the most part under the control of the county authorities. Most important among them are the local school officers. Several writers have pointed out that where the tovmship system is growing up in the south, it is growing up out of school organization, so that the school "is becoming the nucleus of local self-government in the South now, as the church was in New England two centuries ago." 382. The Mixed System. The township- county system, in use throughout the middle and northwestern states, presents very considerable variations. Under this plan of local gov- ernment, county and town are much more thoroughly inte- grated than in New England or the south; but the system stUl presents two main types, one of which emphasizes the importance of the town, the other that of the county, accord- ing to the extent to which the township system has been adopted. Where the township has a vigorous life of its own, there the town meeting is found, exercising very real if some- LOCAL GOVERNMENT 291 what less extensive power than that of New England. Where it is less developed there is no town meeting; there is only popular election of officers, who thereupon constitute the ex- ecutive machinery of the town. In general the number and character of township officers vary with the degree of de- velopment attained by the township system, the less devel- oped townships electing fewer officers. The selectmen of the New England town have everywhere disappeared, at least in name. The officers most nearly corresponding to them in function are called in some states supervisors, in others trustees. Sometimes one, sometimes more, are elected in each township; and they not infrequently perform duties that in the New England town are performed by several different officers. 383. The County in the Mixed System. Naturally, wher- ever the importance of the township has been emphasized that of the county has tended to decline; but the county is everywhere under the mixed system of more significance than in New England. Its organization and its functions vary somewhat widely. Its central administrative authority is sometimes a board composed of the supervisors of the townships. Sometimes it is a board of three or more com- missioners elected directly by the people of the county. Besides the functions performed by the New England coun- ties, these counties of the township-county system are often charged with the duty of poor relief, with the general over- sight of township expenditure, and with the business of tax equalization. Library References. — Ashley, Chap. XX; Macy, pp. 12-19; Fiske, pp. 54-57, 73-74, 81-94; Hinsdale, pp. 397-405; Biyce, Vol. I, Chaps. XLVIII- XLIX; Wilson, §§ 995-1028; Dole, Chap. X. 292 CIVIL GOVERNMENT QTJESTIOHS ON THE TEXT 295. How are counties formed? Towns? School districts? 296. Discuss the present importance of the town as a unit of government. 297. Mention the legislative body of a county. Give the chief executive officer and his duties. 298. How are the poor provided for by different localities ? 299. Is there any good "reason why county officials should be partisans? What proportion of their duties relate to political policies ? Is administrative ability essential ? 300. Give illustrations of the exercise of federal government, state government, and local government in your own town or city. Of which government do you observe the most signs? Of which the fewest signs? Of which government do the officers seem most sensitive to local opinion ? CHAPTER XX MUNICIPAL GOVERNMENT 384. Rapid Growth of Cities. "There is no denying that the government of cities is the one conspicuous failure of the United States," writes an eminent observer of American political conditions. Whether we accept this conclusion, or that of a prominent educator and man of affairs that the "average American city is not going from bad to worse . . . the general tendency is toward improvement," the concen- tration of more than thirty per cent of our population in cities makes the problem of municipal government one of the most important in America. The American of the pres- ent is confronted with problems of government of which his forefathers of a hundred and twenty-five years ago never dreamed. 385. Difficulties of Municipal Government. In part these difficulties have come about through the mere rapidity with which our cities have grown up. In a few decades, some- times in a few years, very considerable populations have found themselves gathered about some railroad junction or the plant of some great industrial enterprise and confronted with the necessity of supplying themselves as soon as pos- sible with Hght, pavements, sewers, schools, pubKc buildings of all kinds, in order to provide for their own convenience, health, and safety. Under such circumstances the demand is always for the immediate supply of the people's needs, not for the best and most economical means of permanent sup- 293 294 CIVIL GOVERNMENT ply. The result is that considerable sums of money are ex- pended on mere makeshift public improvements, which raust soon be replaced by something better planned and more permanent. Then, too, when public works are undertaken thus hastily, the temptation to extravagance, if not to actual dishonesty, is considerably increased. This necessity for the expenditure of great sums of money within a very short period for public works makes it necessary for the cities to borrow largely, so that nearly all our cities are bearing great burdens of municipal debt, whose management increases in no small measure the difficulties of municipal government. Finally, increase in the size of cities results in an astonishing increase in the complexity of municipal government, in the number and variety of matters to be attended to by the municipal authorities; and the more complex it becomes, and the more highly specialized and technical becomes the service of the different departments, the less is it possible for the ordinary citizen, or even the extraordinarily well-informed citizen, to criticise it all intelligently. If, therefore, muni- cipal government in the United States has been "a con- spicuous failure," it is a condition of affairs not greatly to be wondered at nor altogether to be despaired of. 386. The City: Its Character. In the United States the term " city " is applied to a community, which, on account of its dense population, has secured a charter from the state legislature, granting it a special form of government. For purposes of study, however, there should be included along with cities proper the large number of incorporated villages and boroughs, and the towns of the south and west, which are cities in miniature and are created either by a particular act of incorporation or by conforming to certain general state MUNICIPAL GOVERNMENT 295 laws. The same problems, only on a smaller scale, arise in these divisions; the same offices appear, though not so nu- merous. The description, then, of city government apphes in general to the government of these smaller communities. The difference is one of degree. 387. Functions of City Government. City government may be said to have two sets of functions to perform correspond- ing to the twofold nature of the city, first as a subdivision of the state, and second as a centre of population more or less dense. As a subdivision of the state the city is charged with the execution of certain state laws, some of them entirely gen- eral in character, such as those providing for the preserva- tion of the peace, granting hcenses, preventing adulteration of food and the like; some of them general, but having to do especially with local government, such as those requiring the maintenance of schools and the care of the poor. In addition to this administration of state law, the city must provide for its own local needs in such matters as the pav- ing, grading, and cleaning of streets, the furnishing of water, of light, of fire protection, and of protection against disease. .388. Organization of City Government. The city charter, or the act of incorporation, outlines more or less in detail the frame of government. Ever)rwhere the same separation between executive, legislative, and judicial departments which was seen in the state and national governments is character- istic of the city government. The chief executive official is the mayor, who is assisted by other executive officers or boards, some of them elected directly by the people, others appointed by the mayor or the city legislature. The legis- lative body consists sometimes of one chamber, sometimes 296 CIVIL GOVERNMENT of two, the whole body being in either case elected directly by the people. Where there are two houses, the upper house is usually called the board of aldermen, the lower the common council. These differ " very much as the two houses of a state legislature differ, in the number and size of the districts which their members represent." Where there is but one chamber it is called in some cases the board of aldermen, in others the common council. The judicial department consists of a number of judges, usually elected by the voters, but sometimes appointed by the state. 389. Recent Changes. When we come to examine the or- ganization and powers of these departments in more detail, we shall find that the executive and the legislative depart- ments differ considerably in different cities according as the city charter has or has not been recently revised. There has been, we shall find, a tendency toward centralization of power in the hands of a single executive authority — the mayor — with a corresponding curtailment of the powers of the legislature. In other words, city government, at least in its executive department, is coming to resemble the na- tional rather than the state government. 390. The Executive Department: Usual Form. In cities whose governments have not been recently reorganized — and that means in most of our cities — the executive department is organized on a plan very similar to that prevailing in the state governments. There is a chief executive, the mayor, chosen by popular vote, usually for two or four years. Then there is a number of other executive officials, or boards, or both, some of them chosen by the people, some possibly appointed by the council or even by some state authority, over whom the mayor is in general unable to exercise any MUNICIPAL GOVERNMENT 297 control. He usually has a somewhat limited power of ap- pointment and removal. Like the state governor, he owes his chief influence to his power of vetoing the acts of the legislature; though his veto, like the governor's, may of course be overridden by a sufiicient majority. 391. In the Centralized City Government the position of the mayor is very different. He is the real executive head of the city and is held strictly responsible for the administra- tion of all its affairs. In the extreme centralized type, the people elect almost no executive officials except the mayor. Under the Brooklyn charter of 1882, which was the first charter of this kind, the people elected besides the mayor, only the comptroller and the auditor. All the other chief administrative officers were appointed by the mayor without confirmation by the common council. In most of the city governments that have been recently reorganized the example of Brooklyn has been followed to a greater or less extent, and the principle of concentrated responsibility has been more or less fully adopted. Not only have the mayors been given large powers of appointment and removal, but they have in some cases been made members, together with the chief financial officers of the corporation, of a board of estimate, which calculates the amount to be raised for various pur- poses by taxation and then transmits its estimates to the city council, which may approve them or cut them down but cannot increase a single item. 392. Administrative Departments. Along with the move- ment toward centraHzation of power has gone an attempt at better classification and organization of the great adminis- trative departments, which are so important in city govern- ment. Under the decentrahzed form of city government 298 CIVIL GOVERNMENT there is usually a great number of these departments, the officials of which are chosen in a variety of ways, and which perform their functions for the most part independently of each other. In general it has been found that this practice not only makes it impossible to secure unity of administra- tion; it also increases the temptation to "log-roUing," at least, if not to something worse. Moreover, in cities of this type, the general tendency has been to trust executive work to boards or commissions rather than to individuals, with a resulting division of responsibiUty and lack of efficiency. Consequently, in the cities that have recently remodelled their governments, the number of departments has been reduced by abolishing some and by consolidating others, whose functions were aUied, into one great department with a number of subordinate bureaus. Thus we find a depart- ment of pubHc works with such bureaus as those of streets, street cleaning, engineering, and water supply. The heads of these great departments are called conmiissioners and are appointed by the mayor, who holds them to strict accounta- bihty for the administration of their departments. They in turn appoint the heads of bureaus whom they hold respon- sible to themselves, and thus the principle of definite re- sponsibihty permeates the whole system. Under the cen- traUzed system the management of the departments is en- trusted usually to a single head; but in a few cases where it is felt that deliberation is required, the work is entrusted to a board or commission, which then appoints a chief or super- intendent to execute the plans it adopts. 393. The City Legislature. Where the legislature consists of two houses, the members of the lower house are usually elected by wards, those of the upper by divisions larger than MUNICIPAL GOVERNMENT 299 wards or sometimes by general ticket. Where there is but one chamber, each ward usually sends a representative, though in a few cities election is by general ticket or by specially created election districts. The term is usually either two or four years. 394. Its Powers. Since the city government is created by act of the state, its legislature of course possesses only such powers as are delegated by the state, and in exercising them it is subject always to interference on the part of the state. These powers are enumerated and defined in the charter or in the general or special act of incorporation by which the city becomes a city. They consist usually of the power to pass aU such ordinances and by-laws as may be necessary for the comfort, convenience, or safety of the citizens; of the power to lay taxes for the support of the city govern- ment; of the power to borrow money for permanent im- provements, subject always to the limit of municipal indebt- edness fixed by the state and also subject often to the special consent of the voters; and of the power to grant franchises. It should be noted that not the whole legislative power of the city is given to the legislature. Besides the legislative power exercised negatively by the mayor through his veto, "certain executive boards, such as the police and health boards, may make proclamation of necessary regulations, which possess thereupon the same force as ordinances passed by the councils. 395. Recent Restrictions. In recent charters the powers of the legislative branch of city government have been greatly curtailed. We have already seen that the creation of boards of estimate has reduced its power in the matter of taxation until it has scarcely more than the power of revision, Mr. 300 CIVIL GOVERNMENT Low has pointed out that in New York "that tendency" (viz., to restrict the powers of the city legislatures) "has been acted upon to so great an extent as to deprive the com- mon council of every important function that it ever pos- sessed, except the single power to grant public franchises." The same writer declares this problem of properly organiz- ing the legislative powers of the municipahty to be " the great unsolved organic problem in connection with municipal gov- ernment in the United States." 396. The Judicial Department. The city courts are merely a part of the judicial system of the state. Besides the poHce justices, usually elected by the people for short terms, there are in the larger places, several superior judges chosen for longer terms. The city courts have jurisdiction of aU cases arising under city ordinances as well as of minor criminal and civil suits in which state law is involved. Appeal to a higher court is possible in most cases. 397. The Village. The characteristic features of the in- corporated village or borough governments can be noted briefly. A board of trustees presided over by a mayor, pres- ident, or chief burgess, is given extensive power of making by-laws and considerable power of taxation for local im- provements as weU as for local administration. The other officers are the treasurer, clerk, collector, street commissioner, and sometimes overseers of the poor. In general the vil- lage or borough possesses a somewhat smaller measure of independence than does the city. 398. Some Problems of City Government. As we saw at the beginning of the chapter, the conditions under which our cities have grown up have been such that the problems presented to the citizens for solution have been, and still MUNICIPAL GOVERNMENT 301 are, numerous and difificult. It is worth while to examine some of these a little more closely. 399. Finances: Income. One of the most thorough tests of the ef&ciency of a city government is its administration of its finances. It was the wide-spread mismanagement of financial affairs, with extravagant expenditures and the ac- cumulation of enormous municipal debts, that first directed public attention to the shortcomings of municipal govern- ment and subjected it to the searching criticism of recent years. A city derives its income from a variety of sources. Its chief reliance is upon the general property tax levied upon all real estate and, so far as it is discoverable, upon all per- sonal property. Besides this general tax very considerable sums are derived from special assessments upon property whose value is enhanced by public improvements made in the neighborhood. Where the city furnishes water, gas, electricity, or any similar service, a part of its income is de- rived from the charges made for such service; where such businesses are in the hands of private corporations, the city stiU, as a usual thing, derives an income from them through the sums paid for the franchises. In addition to these sources of income there are the licenses issued for the carry- ing on of various kinds of business, and fines paid as a pen- alty for violation of law. 400. Expenditures. The money thus obtained is expended in a great variety of ways. The officers who administer the city's affairs must usually be paid for their services, so that a part of it is expended for salaries. Large sums are spent for poUce and fire protection, for lighting the city, and for the care of its streets. The largest single item of expense is usually that for education; on the average about a sixth of 302 CIVIL GOVERNMENT the total expenditure is devoted to the public schools. Where there is municipal ownership of water- works, lighting plants, etc., the expenses of operating these industries are a part of the city's expenditure. Finally, no insignificant item is the iuterest on the municipal debt. 401. Municipal Debts. While the existence of municipal indebtedness is not necessarily an evil nor an unfailing sign of extravagance or corruption on the part of city authorities, still it must be admitted that the rapid increase of city debts has at times seriously menaced the prosperity of many of our cities. Unquestionably there has been no small amount of extravagance and corruption. Most municipal indebted- ness has, however, been incurred in the attempt on the part of our rapidly growing cities to build up what one writer has called their "permanent plant" — water- works, pavements, sewers, schools, municipal buildings, pubhc improvements of all kinds. Such undertakings have often been unwisely be- gun and wastefuUy managed, and the resulting evils of over- taxation and excessive indebtedness have brought about at- tempts on the part of the states to "curb the recklessness of city councils." Almost all the states have now hmited the amount of indebtedness that a city may incur to a certain percentage (usually two to ten per cent) of the assessed value of the taxable property. 402. Extension of Municipal Functions. Another prob- lem with which the cities find themselves more and more frequently confronted is the question of the extension of municipal functions. There is general agreement that it is the proper function of the city to pave and clean its streets, to furnish sewers, to provide schools and public parks; but the question often arises as to how much further the city's MUNICIPAL GOVERNMENT 303 activity should extend. Should it undertake to furnish water, for example, or light, or street-car service ? If it is the func- tion of the city to protect the health of its citizens by proper sanitary arrangements, why should there not be also pubHc baths and laundries? If it rightly provides pubUc schools and Ubraries, why not municipal art galleries and free concerts? If public parks, why not playgrounds and gymnasiums ? 403. Present Practice. The business of supplying water and, to a still greater extent, that of supplying gas, electricity, and street-car service, has until recently been left to private enterprise. In the case of the water-supply there has of late been a general tendency toward municipal ownership. More than half the water-works plants of the United States are now owned by cities, and of the large cities very few are dependent upon private companies. Of gas and electric light plants a much smaller proportion are municipal; while street railways are still almost entirely in the hands of private enterprise. Since the purity of the water supply is of such great importance to the health of the community, it is not surprising that the necessity for municipal ownership should have made itself most distinctly felt in that connection. 404. Franchises. Where the furnishing of water, light, and transportation is still in the hands of private persons or cor- porations, the question of the granting of franchises becomes an important one. These industries require for their oper- ation the use of the city streets; and since the streets are public property, the privilege of using them for such pur- poses must be obtained from the city council, or, in some cases, from the state legislature, by means of a grant called a franchise. There can be no question that the city coun- 304 CIVIL GOVERNMENT cils have greatly abused this power of granting franchises, and the charge of corruption so often made against council- men has been in many cases only too true. A franchise of this nature is ordinarily very valuable and, as the city grows, becomes increasingly so; yet many of them have been given away, either through the ignorance or the indifference of councihnen, or more often through corruption, the votes of councihnen having been paid for in money or in stock of the company receiving the franchise. Cities are now attempting to control these evils by regulating the conditions under which franchises may be granted. Where such reforms have been attempted it is usually required that the term of franchises be hmited to fifteen or twenty years, that they be sold to the highest responsible bidder, and that a certain minimum per cent of the gross receipts from the business concerned be paid into the city treasury. 405. Municipal Ownership. The question of the desira- bility of municipal ownership of these industries has been much discussed. In the case of the water supply municipal ownership has generally proved more satisfactory than pri- vate or corporate ownership. That it would do so in the case of the others is not proved. Opponents of municipal ownership urge against it the argument that it would in ah hkehhood be used by the political party in power for the furthering of its own ends. Places would be filled with poHtical adherents regardless of their fitness, and the busi- ness would be badly and wastefuUy managed. Advocates of municipal ownership reply that extravagance and corrup- tion under that system could not possibly be greater than that which now prevails in the granting of franchises and that such extensions of municipal activity are the best MUNICIPAL GOVERNMENT 305 means of awakening the interest and public spirit of the citizens. 406. Causes of Municipal Mismanagement: Defective Organization. Various causes have been assigned for the generally admitted imperfections of city government. As we saw in the earlier part of this chapter, they have been partly due to what have been called "mechanical defects in the structure of municipal governments." Our city govern- ments have apparently been constructed on a wrong theory — the theory that cities are states in miniature. The prin- ciple of division of power, which works very well in the state and national governments and in the rural districts, does not seem to be applicable to the cities. There is need of some method of fixing and enforcing responsibility. We have seen that some of our cities have met the difficulty with a considerable degree of success by concentrating power in the hands of the mayor; but this does not completely solve the problem of the organization of municipal government. The question of what shall be done with the city council remains. Up to the present, attempts to "reform" it have consisted principally of measures depriving it of its powers or placing limitations upon its exercise of them. Will this process be continued until the city council disappears alto- gether, or will some method be found of fixing responsibihty upon the members of the legislature as well as upon the executive ? 407. Injluence of State and National Politics. Another fre- quently mentioned cause of bad city government is the car- rying over of state and national political' issues into city affairs. Rarely, if ever, have the questions confronting the voter in municipal elections anything whatever to do with 3o6 CIVIL GOVERNMENT party differences; yet they are at present, with occasional marked exceptions, regularly decided in accordance with party affiliations. This state of affairs is in part due to the wide-spread influence of the "spoils system," which looks upon public office as the legitimate reward of party service and which keeps the party machinery "oiled and greased and always working at high pressure;" in part to the fact that the regular party organizations are almost the only permanent political organizations in the cities. Occasion- ally, particularly after exposure of the operations of some corrupt ring or dishonest official, our cities have been seized with what the newspapers term a "spasm of reform." In- dependent movements are organized, independent candidates are nominated and perhaps elected, but such movements have generally been only temporary. They are usually too poorly organized to stand long before the assaults of the regular party organizations. The adoption of civil service reform methods, which has been brought about within re- cent years in some of our cities, furnishes a means of com- bating the "spoils system;" and efforts have also been made with some degree of success to remove the city from the influence of state and national politics by holding municipal elections at such times that they will not coincide with state and national elections. 408. Lack of Civic Spirit. The fundamental cause of mu- nicipal mismanagement, however, as of all pohtical misman- agement, is to be found in what has been called "the lack of civic spirit" on the part of the citizens. The explanation of this defect is often looked for in the existence in our cities of large foreign populations, to whom our pohtical ideals and methods are strange, and who can fit themselves but MUNICIPAL GOVERNMENT 307 slowly into our political system. Doubtless our foreign born population increases the difficulties of the problem some- what; but our shortcomings in this respect cannot be justly charged to them nor even to the ignorant and vicious classes. They are primarily due to the indifference of our so called "good" citizens or to their absorption in other affairs. Mr. Bryce says in this connection: "We find able citizens ab- sorbed in their private business, cultivated citizens unusually sensitive to the vulgarities of practical politics, and both sets therefore unwilling to sacrifice their time and tastes and comfort in the struggle with sordid wirepullers and noisy demagogues." So long as this condition is general we need hope for no very marked improvement in municipal govern- ment. 409. Reform Influences. Our cities are, however, making progress toward better things. Systematic efforts to arouse public interest in municipal affairs are now made in nearly all our great cities through permanent organizations, such as good government clubs and municipal reform leagues. Through the patient and persistent efforts of such organiza- tions the number of those who are awake to their civic duties daily increases. "In the increase of that number, . . . rather than in any changes of mechanism, lies the ultimate hope for the reform of city governments." Library References. — Ashley, Chap. XXI; Macy, Chap. XII; Fiske, Chap. V; Bryce, Vol. I, Chaps. L-LII; Wilson, §§ 1029-1036; Dole, Chap. XIII; Wilcox, Chaps. III-IV; Zuehlin, American Political Progress ; Baker, Municipal Engineering and Sanitation. 3o8 CIVIL GOVERNMENT QUESTIONS ON THE TEXT 301. Explain why the problems of local government are more difficult in a large city than in a village. 302. Define city charter. Mention three topics treated of in a city charter. 303. What is the name of the legislative body of a city ? Vl'hat are its enactments called? Mention four important matters on which it may legislate. 304. Why is concentration of power in the hands of the mayor believed to give better government ? 305. What are the advantages of choosing councilmen by elec- tion at large or on a general ticket ? Is it advisable to choose part of the council on a general ticket and part by wards? Why? 306. What is an incorporated village? A city? State the object of these corporations and show wherein the city differs from the village. 307. State two advantages that may result to a village from incorporation. Mention a possible disadvantage. 308. Mention the legislative body of a village. Give the chief executive officer, and his duties. 309. To whom do the streets belong? Has anyone a right to grant perpetual franchises upon them? 310. What is a franchise tax? Give two reasons for or against the enactment of a franchise tax law. 311. Discuss the desirability of municipal ownership of water- works; of lighting plants; of street railways. 312. Is it wise in the interests of good local government to unite the choice of city, county, state, and national officers in one elec- tion ? Why ? 313. Show why the influence of political parties upon the man- agement of city affairs has not been good. Is independence of parties possible? Why are cities rather than counties and states subject to "ring" rule? 314. Give arguments for or against state control of the police departments of large cities. 315. How may municipal government be improved? Illustrate your answer by an example. How are you going to help improve it? CHAPTER, XXI AMERICAN POLITICS AND POLITICAL PARTIES 410. Importance of Parties. In the study of our political system as described in the foregoing pages we have several times touched upon a phenomenon which must now be ex- amined more closely if we wish to understand how our gov- ernment actually does its work. This is the phenomenon of political parties. With us government is unquestionably party government. It would be difficult indeed to overesti- mate the importance of the r61e played by party in this coun- try. Ever3'where and always the wishes of the people, so far as tljey find expression in the government at all, do so through some organized political party. As a recent writer has said: "There is scarcely a law made, an official chosen, or a policy discussed, concerning which the political party does not exercise the predominating influence." To the youth training for citizenship, therefore, it cannot but be a matter of some importance to know something of the history of political parties in the United States, something of the policies which the various parties haVe advocated, and par- ticularly something of the methods by which the work of parties is accomphshed. 411. Earliest Parties in the United States. It is unneces- sary to our present purpose to inquire into the history of poli- tical parties in the United States before the constitutional convention of 1787. The debates of the convention and the discussion over the adoption and ratification of the constitu- tion revealed the most important of the issues upon which 309 3IO CIVIL GOVERNMENT men were to divide for the first time in our history into two great political parties. The firs); question at issue between the two parties was the question of the acceptabihty of the constitution itself. We have already seen (§§ loo, io6) that in the constitutional convention, as well as in the state con- ventions called to ratify the constitution, two opposing opin- ions were strongly held. One party, to which the name federalist soon came to be applied, contended urgently for a strong central government, those holding extreme views even cherishing, it is said, some hope of a monarchy.^ The antifederalists, on the other hand, were opposed to the con- stitution, the extremists wishing at most for a mere league between the thirteen independent states, and even the more moderate ones deeply distrustful of the new instrument, and willing to ratify it only because they despaired of obtaining anything more satisfactory. 412. Changes in Antifederalist Party. There was at first among the antifederahsts, too httle agreement to make them an effective poUtical opponent. Almost their only point of agreement was their opposition to the constitution. Gradually, however, this opposition died away, and the party as a whole accepted the constitution unreservedly, merely insisting that the document should be so construed as to forbid any extension of the powers of the federal gov- ernment beyond those expressly granted. In other words, the party became a "strict construction" party. Gradually, too, the discordant elements became more united, until finally fear of the growing power of the central government and sympathy with the principles that had led to the es- tablishment of the French republic and its declaration of ' Johnston, American PolUicSi p. 15. AMERICAN POLITICS 311 war against England, consolidated them into a political party with a definite body of opinion and a positive name of its own. They called themselves republicans or demo- cratic-republicans, because of their sympathy with the French repubHcans, and under the leadership of Jefferson soon became a power to be reckoned with. 413. Policies. The federalists, as was just said, advo- cated first of all a strong central government; and, since a liberal construction of the provisions of the constitution was in general favorable to a wide extension of the powers of the federal government, the party was from the beginning a "loose or liberal construction" party. It was quite in ac- cord with this poKcy of extending the powers of the federal government that the federahsts should advocate, as they did, the imposition of a tariff for the protection of manufac- tures, the expenditure of pubUc money by the general gov- ernment on far-reaching internal improvements, and the establishment of a national bank. To all of these pohcies the democratic-repubHcans were strongly — at times bit- terly — opposed. The party was the defender of the pre- rogatives of the states as against the federal government, in general the assertor of democratic principles, with an abid- ing faith in the ability of the people to manage their own affairs if let alone. To all extensions of federal power it was, in theory at least, unalterably opposed. Neither party, however, foimd itself able xmder stress of circumstances to hold unswervingly to its avowed principles. We shall find the federalists ia the Hartford convention advocating ex- treme strict construction principles; while the democratic- repubUcans, on the other hand, once they had become the party in power, found themselves more than once compelled, 312 CIVIL GOVERNMENT in order to adminster the government successfully, to sanc- tion the widest extensions of federal authority. The policy advocated by the federalist party made it naturally the party of the mercantile and manufacturing classes and attracted in general the more conservative element of the population, who had been shocked by the excesses of the French revo- lution, and who attributed these excesses to the influence of democratic theories. It found its strongest support in New England and the middle states, where the commercial interest centred. The democratic-republican party was the party of the masses, the great agriculturiil portion of the community, and of the south. 414. The Federalist Supremacy. When the government was first organized under the new constitution, parties were in a state of considerable confusion. The federalists, to be sure, were already fairly well organized and possessed of a more or less definitely formulated policy; but the antifederal- ists had not yet learned to act together. The more moderate members of the party, if it may be called a party at all, at first voted generally with the federalists; and thus it came about that the federalists, though they were probably nu- merically the weaker party, came first into power. Wash- ington, who had been elected by both parties and who was not a member of either, tried to maintain the balance as evenly as possible between the two parties, but was thrown, partly through Hamilton's influence but more through the exigencies of administration, upon the side of the federalists. Thus the federalists at first had the upper hand and were able to pass a number of important measures before their defeat in 1800 deprived them permanently of control of the government. AMERICAN POLITICS 313 415. The Public Debt. Most important among these were the measures recommended by Hamilton in his famous report on the settlement of the pubUc debt. Hamilton's recommen- dations were three in number : first, that the foreign debt of the confederacy should be paid in full according to the terms of the original contracts; second, that the "domestic debt" (that owed to citizens of the United States) should also be paid at par; and third, that certain portions of the debts of the several states should be assumed and paid by the United States as a part of its own debt. With the first recommenda- tion all agreed, and it was passed without dissent. The second aroused much opposition, but Hamilton after long debate succeeded in convincing the majority that the credit of the new government depended upon the payment of the certificates at their full face value, and this recommendation also was finally passed. The third recommendation in- volved the question of the powers of the federal government, and the antifederalists were unitedly opposed to it. Before the matter was settled the arrival of seven new members from North Carolina, which had come into the union in No- vember, 1789, so strengthened the antifederalists that the recommendation was defeated by a majority of two. It was only by means of a bargain witli Jefferson that Hamilton finally secured the passage of a measure similar to but not exactly like that outlined in his original report. It was agreed that, in return for the passage of this measure, another should be passed locating the national capital per- manently upon the Potomac after it had remained in Phila- delphia for ten years. 416. Among other Important Measures passed through Hamilton's influence in spite of strenuous opposition were 314 CIVIL GOVERNMENT one providing for the establishment of a United States bank and one for raising revenue by means of an internal revenue tax or excise. The bill for establishing a national bank raised again the question of the powers of the federal govern- ment and met with the opposition which that question al- ways aroused. Nevertheless the bill passed both houses of the legislature, and received the president's signature after very careful dehberation, in the course of which he called for the written opinions of the members of his cabinet. The arguments then presented by Hamilton in favor of the es- tablishment of the bank and by Jefferson against it have hardly been added to or improved upon since, although this question of a United States bank remained a bone of con- tention between the parties for half a century. Under Ham- ilton's leadership also was estabUshed, for the support of the general government, a system of indirect taxation which was destined to remain long in use. The two methods of raising money down to the present day (1904) for the sup- port of the federal government — the tariff and the internal revenue tax — were initiated by him. 417. Decline of Federalists and Rise of Democratic-Re- publicans. We have seen that the contending factions in- cluded at first under the general term "antifederaUsts" soon coalesced to form the much better organized and much more formidable democratic-republican party. For this re- sult the federalists themselves were in large part responsible. It soon became evident that the federaUst party as a whole entertained views in regard to the powers of the central gov- ernment which pubUc opinion was not yet wilHng to sanction. It trampled too recklessly on the sentiment of local and per- sonal independence, and was too willing to subordinate and AMERICAN POLITICS 31 S even to sacrifice the ever jealously guarded prerogatives of the states to the interests of the general government. The inevitable result was to aUenate the more moderate section of the antifederalistSj who had at first voted with their natural opponents. After Washington's retirement from office the federahsts succeeded in electing his successor, Adams; but during his administration their injudicious ex- ercise of power in the passage of the alien and sedition acts sealed their fate. In the presidential election of 1800 the democratic-republicans were successful, and the federal- ists never again came into power, though they remained a strong minority for some time after that election. 418. The Hartford Convention. It was the famous Hart- ford convention that gave the party its death-blow. This assembly of delegates from the New England states, the stronghold of the federahsts, was called in 1814 for the purpose of conferring upon the subject of the grievances of these states arising out of the conduct of the war by the ad- ministration. The convention seems to have been entirely legitimate in its object; but the secrecy of its proceedings gave rise to a suspicion that its designs were treasonable, and it proved the pohtical ruin of the party with which it originated. With the close of the war the federahst party disappears. 419. A Period of Transition. For a short time party spirit declined, and in 1820 Monroe was reelected by every vote save one in the electoral college. It would hardly be accurate, however, to say that the democratic-repubUcans held the field. If the federahsts toward the end of their career, moved by sectional interests, had adopted strict con- struction principles, it was no less true that the democratic- repubhcans had sanctioned a more and more Uberal inter- 3i6 CIVIL GOVERNMENT pretation of the constitution; so tliat by 1820 the altitude of the party on this question had changed completely. It was not so much an "era of good feeling," as this second ad- ministration of Monroe is frequently called, as it was an era of transition, in which old party lines had been to a great extent obliterated, and new ones had not yet been clearly drawn. Indeed, it was not an era of good feeling at all; but, so far, at least, as the political leaders were concerned, an era of very ill feeUng, in which party divisions were based on personal animosities rather than principles. 420. Rise of Democrats and National Republicans. It was under the influence of the personal hostility of two great leaders, Clay and Jackson, that two distinct political parties were again formed about 1830. One of these, knoAvn henceforth as the democratic party, reasserted the principles of the Jeffersonian republicans. It demanded strict con- struction of the constitution, defended states' rights, and declared hostility to protection. The other party, called at first national republicans, later whigs, was formed out of those elements of the democratic-republican party that had adopted loose construction principles. To a considerable extent they maintained the traditions of the federalists as the democrats did those of the democratic-republicans. They believed, among other things, in internal improvements and protection of home industries by means of the tariff. 421. The Slavery Question. Meantime another question was forcing itself upon public attention — the question of the extension of slavery west of the Missouri. At first both parties tried to keep it out of politics, but in vain. In the end, they were obliged to adapt their poHcies to it. By 1852 the democratic party had become distinctly the pro- AMERICAN POLITICS 317 slavery party; but the whigs were still attempting a policy of compromise — a policy which soon proved fatal to them. In the presidential election of 1852 they suffered a crushing defeat, and two years later the remnant of the party finally broke to pieces over the bill for organizing Kansas as a territory. 422. Rise of Republican Party. The democrats were not left long without an opponent, however. Very promptly a new party arose, which united the antislavery forces under the name of repubhcans. In the presidential election of i860 dissensions within the democratic ranks gave the victory to the new party, and Lincoln was elected to the presidency. From that time until the present, with the exception of the two Cleveland administrations (188 5-1889, 1 893-1897), the republicans have retained control of the presidency. 423. Parties since 1880. The issues growing out of the civil war may be said to have been settled by 1875 or 1880. Since then the two great parties have remained the same in name. New issues have arisen, though no great all- absorbing question hke that of slavery has centred pubhc attention upon itself to the exclusion of everything else. Among the later questions upon which the parties have di- vided may be mentioned the tariff question, which was most prominent from 1880 to 1892; the question of the free coinage of silver, which held the foremost place from 1892 to 1898; and the questions growing out of the Spanish- American war, which have been uppermost since 1898. 424. The "Work of Parties. Such is, in brief outline, the history of poUtical parties in the United States. Let us now see something of the way in v/hich parties have organized themselves for the work that they have to do. The poHti- 3i8 CIVIL GOVERNMENT cal party performs three functions. It is its business (i) to formulate the political principles of its members and to out- line the policies which they wish to have carried out; (2) to provide the machinery by which its members may nominate candidates representative of their opinions; and (3) to or- ganize the voters of the party in such a way that its candi- dates may, if possible, be elected. At the present" time the first two of these purposes are effected through the agency of the party convention, the last through the permanent committee. 425. History of the Convention: the Congressional CaU" cus. The party convention has grown up gradually in the course of our party history. For the first two presidential elections there was no need for nominations, since all parties desired the election of Washington. In 1796 also, though there were two candidates, each was the unanimous choice of his own party, and it did not occur to either party to make a formal nomination. The first need for a nomination arose in 1800. The federalists had already agreed upon Adams and the democratic-republicans upon Jefferson as their re- spective candidates for the presidency, but the latter party was in doubt about its candidate for vice-president. Ac- cordingly a meeting of the republican members of congress was called and nominated Aaron Burr. The meeting was notable in two respects: it was the first congressional caucus ever held, and it made the first formal party nomination. For the next four elections the candidates were regularly nominated by congressional caucuses; but this method of nomination, which had aroused opposition from the first on the ground that it deprived the people of the right to choose their own candidates, met with less and less approval as AMERICAN POLITICS 319 time went on. In the election of 1824, when the demo- cratic-republican party had the political field practically to itself, the nominee of the congressional caucus was defeated, and no more congressional caucuses were held. 426. Various Methods of Nomination. For a time there was no uniform method of making nominations, candidates being recommended by state legislatures and by popular assembUes held somewhat at random. In 1832 one of these assembHes, after indorsing the nominations previously made by the whigs, formulated a series of ten resolutions, which is notable as the first political "platform" ever adopted by a nominating convention. By 1840 these somewhat hap- hazard assemblies had become regular national conventions made up of delegates from nearly all of the states. In that year such conventions were held by. both democrats and whigs, and the example has since been invariably followed by all political parties. 427. The Convention Perfected. In the years that have followed since its adoption the national convention has grad- ually perfected its form. To quote Mr. Bryce: "The early conventions were to a large extent mass meetings. The later and present ones are regularly constituted representa- tive bodies, composed exclusively of delegates, each of whom has been duly elected at a party meeting in his own state, and brings with him his credentials." ' 428. The Convention : Its Organization and Work. At the present time the national convention of each of the parties meets in the summer preceding a presidential election. Each state sends twice as many delegates as it has senators and representatives in the national legislature. Occasionally a '■ Bryce, Vol. II, p. 178. 320 CIVIL GOVERNMENT state's whole delegation is chosen by the state convention; but generally the state convention chooses four delegates (corresponding to the two senators), while conventions in the congressional districts choose two each. There are four regular convention committees ■ — on organization, on cre- dentials, on rules, and on resolutions. Usually about two days are consumed in the preliminary work of organization. About the third day the committee on resolutions reports the "platform" — a formal declaration of the principles of the party and a statement of the issues for which it stands in the campaign. This may be adopted with little or no opposi- tion, or it may call forth much debate and may be accepted only after considerable modification. The platform once accepted, nominations for candidates for president are in order, and these are made by the state delegations as the roll of the states is called. After a candidate for president has been selected a candidate for vice-president is chosen, and the work of the convention is done. 429. Party Differences. The conventions of the two great parties employ practically the same methods. They differ, however, in two respects. In the democratic national con- vention the vote is by states, i.e., the entire state delegation votes as the majority may decide, although more than one candidate may be voted for if the majority agrees to it. The democrats also require a two-thirds vote for nomination. In the republican convention, on the other hand, each delegate may vote regardless of the wishes of the majority of the delegates from his state; and a majority vote of the delegates constitutes a nomination. 430. State and Local Conventions. The convention sys- tem has been universally adopted also in state and local AMERICAN POLITICS 321 politics; and practically all nominations for important elec- tive offices, except those for president and vice-president, are made in the state and local conventions. The delegates to the state conventions are chosen by the local conventions; while the delegates to the local conventions — city, county, and even congressional district conventions — are chosen in the primaries. The procedure in these minor conventions is modelled closely on that of the national convention. 431. The Committees: National Committee. When once the nominations are made, the conduct of the campaign is entrusted by each party to a series of permanent committees — one for the country at large and one for each state, county, city, town, and ward — which together constitute what is often spoken of as the "machine." The national com- mittee is composed of one member from each state selected either at the national convention, usually after the wishes of the nominees have been consulted, or at the state conven- tions, which are held just before each national convention. This committee fixes upon the place and time for holding the national convention and issues the call for that meeting. It also collects and disburses the money necessary in con- ducting the campaign. Money for campaign purposes is obtained by contributions from interested members of the party. Part of it is handed over to the local committees and part retained by the national committee for the purpose of furnishing campaign literature and paying speakers to tour the country. 432. Lower Committees. Since state and local elections occur much more frequently than national ones, the work of the "lower" committees is more nearly continuous. The state conamittee, made up of representatives from the coun- 322 CIVIL GOVERNMENT ties, names the time and place for the state convention, oversees the local committees, and takes charge of state and congressional elections. The "lowest" committees — county, city, town, and ward — are in many respects the most important in the whole system, since they are able to bring a personal influence to bear directly upon the voters. This they do not only at elections by seeing that as large a vote as possible is cast for the party candidates, but in the primaries, where they exert themselves to the utmost to secure the selection of such delegates to the "higher" con- vention as meet their approval. 433. The Primary: Its Importance. If the student has followed the foregoing discussion of the convention and committee system, he must have become aware that the vitally important point in the whole system is the primary,* as the initial meeting of the party voters for the choosing of delegates or candidates in a definite locality is called. It is here that the whole political machine is set in motion. When once the voters in this primary assembly have chosen their delegates to the next higher convention, the matter is out of their hands; and if they have erred in this initial choice, if they have allowed the primary to be dominated by a corrupt "machine," there is no remedy. On election day the voter must either cast his ballot for the candidates who have been nominated in the regular way by their re- spective parties, or he must waste his vote altogether. ' In many states, notably in the south, the mass caucus for the choosing of delegates to county or district conventions where candidates for oiSce are nominated (see §430) has been quite generally superseded by primary elections provided for by state law. At these primary elections all elective officers are chosen from lists of candidates furnished by the state committee of the political party holding the primary. The method of choosing at these primaries is by Australian ballot. Candidates thus nominated are voted for in the November elections. AMERICAN POLITICS 323 434. Necessity of Organization. Under present political methods the success of our government, national and local, is dependent upon the nomination of satisfactory men for office; and the nominations, as we have already seen, must be con- trolled, if at all, through the primary. To this fact men of questionable political methods are keenly alive. They know that unless they can control the primary their occupation is gone; and they attempt, therefore, by a carefully planned organization before the caucus is called, to secure the ap- pointment of delegates representing their peculiar notions of government. If they are to be prevented from securing the adoption of their methods, men of higher political ideals must organize and control results. Too often such men not only fail to make preparation, but even stay away from the caucus. Those principles which secure control of the caucus can easily control the rest of the political machinery, which may be so dangerous and yet is so indispensable in a repre- sentative form of government. 'No one who remains away from the caucus when he might attend, has any right to blame others for the results of his own negligence. One man at the caucus has more power in shaping the policy of his country than ten men at the polls on election day. 435. The Necessity of Parties. The question may be asked: "What is the necessity for pohtical parties? Could we not do as well without them?" A party may be gener- ally defined as a union of individuals holding the same gen- eral opinions upon the questions named in the constitution or platform of the organization and striving to carry these opinions into effect. This definition suggests some of the facts which make political parties a necessity. It suggests first that different men hold different opinions in regard to 324 CIVIL GOVERNMENT political affairs, as they do in regard to other things; and these different opinions find voice through the poUtical party. Furthermore it suggests that men naturally desire to see their poHtical behefs embodied in the actual government by the nomination and election of representatives who hold identi- cal or at least similar views; and this work of nomination and election is one that can in general be accomplished only through the political party. 436. The Duty of the Citizen. It is the plain duty of every American citizen to belong to some political party, to attend its primaries, and to take an active part in them. If the principles are not satisfactory and the policies need changing, then it is his duty to take an active part in changing the principles and policies. The primary is the only purely democratic meeting in state and national politics. There it is every man's privilege to express his views, and to form, in the interest of good government, factions that are feared by corrupt party leaders. If he wishes to do this success- fully, let him learn to debate. Let him learn to express him- self clearly and forcibly. Let him study the great speeches that have changed the destiny of mankind. Let him take an intelligent part in the affairs of his party, and the country will be safe. Library References. — Ashley, §§ 151-161, Chaps. VII-IX, XXIII, XXIX; Macy, Chaps. XLII-XLVI; Macy, First Lessons, Chap. XXVII; Fiske, pp. 240-241, 271—281; Hinsdale, p. 112; Bryce, Vol. I, Chap. XLVI, Vol. II, Parts III-V; Johnston, American Politics; Wilson, §§ 873-880; Montgomery; Dole, Chaps. XX-XXII; Lalor, Articles on Party Govern- ment in the United States, Nominating Conventions, Abuses in Politics, etc. McMaster; Schouler; Channing ; Harper's Book of Facts. AMERICAN POLITICS 325 QUESTIONS ON THE TEXT 316. What is meant by "strict constructionists" ? Under what names have they been known at different times in our history? Who were their opponents, and what have they been called? 317. Of present day political parties, which represents the' "strict constructionists"? Are their opponents still represented? 318. What three recommendations did Hamilton make to the first congress concerning the finances of the confederation? Dis- cuss the fairness of each. 319. What was the origin of our present system of internal revenue? of our tariff? 320. What great issues have played an important part in the political history of our country? 321. Explain the term "rotation in office" and "tenure of office" as applied to government service. 322. What is meant by the "spoils system"? When was it introduced ? 323. Give the successive steps in the process of nominating and electing (i) a candidate for the presidency; (2) a candidate for membership in the house of representatives. 324. What is a party "platform"? 325. Define caucus; convention; primary. 326. Explain the importance of the caucus as a factor in a rep- resentative form of government. 327. Mention two benefits and two evils due to the prominence of political parties in our system of government. 328. Give arguments either to establish or to controvert the following: "Parties appear to be necessary in all free governments." CHAPTER XXII INTERNATIONAL LAW 437. International Law has been defined as "the system of rules that civilized nations acknowledge to be obligatory as their common law for regulating their mutual rights and duties in peace and war." This body of law has come into existence within comparatively recent times. When Chris- tian states began to communicate with one another they soon reaUzed that they each had certain rights and certain corre- sponding obligations. Moreover they soon recognized that as nations have a common nature and a similar end to ful- fil, there is an equality of rights between them, and that by observing the common rules growing out of the principle involved in the golden rule they promote the interest and advantage of all. 438. The Origin of International Law has already been intimated. It starts with intercourse, which begins when a state has entered into official relations with other states. It is not enough for an individual to land at a foreign port with a cargo of goods; that does not constitute intercourse in the legal sense. It is only when nations have entered into official commercial or poHtical relations, usually by treaty, followed by an exchange of ministers, that true intercourse is established. With this intercourse comes a recognition of mutual rights and obligations, and certain rules are ob- served in the relations between states. As nations advance in civilization they tacitly or by formal agreement renounce 326 INTERNATIONAL LAW 327 certain barbarous practices and thus add a number of new rules to the body of international law. Most of the rules observed by civilized nations can be traced to one of two sources. They are either the outcome of treaties by which "states acting in pairs or groups have agreed to be bound by certain principles in their relations with each other," or they have found their way into the law books as the result of certain formal customs growing out of international action. 439, Compared with Municipal Law. When this branch of law is compared with the ordinary law governing the individual in his relations to the state of its subdivisions, certain differences appear (Chapter XXIII). One note- worthy difference between them is the lack of precision and the comparative uncertainty of international law, "There is no authority set above the nations whose command it is" and its enforcement, therefore, depends largely upon the moral sentiment of the states that have consented to it. It is true that it is sometimes confirmed, and violations of it are pun- ished by municipal laws, as in the United States; and there always remains the last means of securing its observance, namely, war. These methods, however, are inadequate and unsatisfactory as compared with the means of enforcing mu- nicipal law. The legislatures of states are ever ready to make or to change a law governing the individual, but there is no similar body that can be importuned to make laws regulat- ing the relation's of nations. When there is added to this the lack of a regular judicial system to pass upon violations of international law, its rules would appear to have no very strong claim upon the consideration of the civilized world; but the sentiment of justice, which exists in every human 328 CIVIL GOVERNMENT breast alike, permeates nations also, and the spirit of fair play gives to the rules of international law an authority in some cases as powerful and far reaching as that of munici- pal law. 440. Sovereignty. Before entering upon a consideration of some of the rights and obligations recognized by the law of nations, we must return to our definition of sovereignty. In § 30 we found that sovereignty is the supreme power by which a state is governed. A completely sovereign state is one that possesses the supreme power of governing itself in all its relations, internal or external. Such a state may estab- lish its own form of government; may make and enforce its own laws, impose taxes, and exercise the right of eminent domain; may support military and naval forces; may plant colonies, establish protectorates, and acquire new territory; may enter into relations with other nations; and may make war and peace. Such a state may also surrender its sovereign rights and be merged in another state, or it may surrender a part of them and become a member of a federation or a confed- eration; but if, by such surrender, it resigns the right to enter into relations with other nations and to make war, it thereby loses at least its external sovereignty, and the law of nations is no longer apphcable to it. So long as a state retains the power of self-government in its relations with other states, it remains, in the view of international law, a sovereign state and may claim equality of rights with all other sovereign states. 441. Recognition. When a -community in the process of its development has attained "an independent exist- ence, performing the functions of a state and able to take upon itself state responsibilities," it is entitled to INTERNATIONAL LAW 329 recognition ^ as a state by other sovereign states. It remains, however, the prerogative of every nation to decide for itself whether an independent state be really estabhshed, and it may, therefore, recognize a community where the new order of things has not yet been f uUy accepted. On the other hand, recognition of a revolted colony or of a revolutionary party while armed strife is still in progress is evidence of hostility toward the mother country or the disturbed state, and may be made a ground for war. When a state has gained recog- nition from one or more sovereign states, it is entitled to enter into relations with the states thus recognizing it; but it is not admitted into fuU membership in the society of nations illiitil it has been recognized by all. 442. Jurisdiction. Every state possesses territory over which and within which it exercises sovereign rights. Such exercise of a state's authority is called its jurisdiction. A state acquires territory in a variety of ways — "by discovery and possession; by purchase; by conquest; by treaty; and by prescription, or uninterrupted and exclusive possession dur- ing such a length of time as to make it unreasonable for another nation to set up a prior or an adverse title." The territory of a state includes (i) not only all the land but also all the waters (interior seas, lakes, and rivers) lying wholly ' In the matter of recognition, the United States has borne an important part. Before the American revolution there was no theory of recognition. The attitude taken by the United States towards France during the French revolution, in recognizing any government accepted by the French people, was a decided step in advance; but it was not until the doctrine of neutrality had been defined by Washington's cabinet, in the proclamation of 1794, that the doctrine of recognition could assume a definite form. The United States has always taken the high ground of international right, and it was this principle that actuated President Monroe in his proclamation in 1823 recognizing the South American republics in their struggle for independ- ence. Paxson, F. L. : The Independence of the South American Republics. 330 CIVIL GOVERNMENT within its boundaries; and (2) the sea to a distance of about three miles from the coast. Claims to exclusive jurisdiction over httoral seas or bays have usually been held invalid where such waters must be used by another nation in order to obtain access to its territory from the high seas, or where they are not somewhat narrowly enclosed by promontories belonging solely to the claimant. Where a river forms a boundary the jurisdiction of the state- extends to the middle of the stream or to the middle of the channel that is best adapted for navigation. Over all its own citizens within these territorial limits and over all others who may be so- journing within its borders either as alien residents or as travellers, the state exercises jurisdiction. It exercises also a certain amount of exterritorial jurisdiction — e.g., by the rule of international law that makes inviolable the persons of diplomatic agents, together with their embassies, legations, residences, and all property belonging to them in their diplomatic capacity. 443. Intercourse has already been defined. It is not some- thing that can be demanded as a right except in extreme cases, as when "one nation cannot do without the products of another, or must cross its borders to get at the rest of the world." On the other hand, when it is once granted, it can- not be terminated without a violation of international law. China or Japan could not refuse intercourse now without precipitating a war, since every nation having intercourse with those countries now regards it as a precious right to be safeguarded by every possible means. 444. Diplomatic Agents. For the purpose of facilitating intercourse, nations have found it advisable to maintain in foreign countries agents to represent them and to further INTERNATIONAL LAW 331 their interests. These agents belong either to the diplomatic service or to the consular service. Diplomatic agents are divided into four classes: (i) ambassadors, legates and nun- cios of the pope; (2) ministers plenipotentiary and envoys; (3) ministers resident; and (4) charges d'affaires. The first three classes, though they differ in rank, perform the same sort of service. It is their business to safeguard the general and more important interests of the nation that they repre- sent, and they not infrequently negotiate important treaties between their own countries and those to which they are accredited. In the United States these agents are appointed by the president with the advice and consent of the senate, and are under the general direction of the secretary of state. They reside at the capital of the coimtry to which they are accredited or accompany the court of the sovereign. Partly as a mark of respect to the country which they represent, and partly in order that they may be independent of the foreign government and transact their business with the greatest convenience, they are accorded certain privileges. Not only are their persons inviolable so that no force can be employed against them by public authority or by private persons without violating the rules of international law, but they are not even subject to the civil or criminal jurisdiction of the courts in the country where they reside. Their fam- ilies, including even the domestic servants, are likewise in- violable, and their goods are exempt from local jurisdiction. 445. The Consular Service. Consular officers of the United States are divided into two classes, principal and subordi- nate. The principal officers are consuls-general, consuls, and commercial agents. Subordinate officers are vice-consuls- general, deputy consuls-general, vice-consuls, deputy consuls, 332 CIVIL GOVERNMENT vice-commercial agents, deputy commercial agents, consular agents, and consular clerks. There are also interpreters, marshals of consular courts, 'and ofl&ce clerks. Commercial agents are appointed directly by the president; all others are appointed by and with the advice and consent of the senate. It is their business to promote the commercial interests of their own state and to protect its citizens in foreign countries. These ofhcers make monthly reports noting improvernents in manufacturing and in agricultural processes, and give in- formation regarding good markets for our products and the best markets in which to purchase foreign products. Occa- sionally consular officers are charged with the performance of diplomatic as well as consular functions. 446. Treaties. The rights to which every state is entitled are subject to more or less modification. A nation may sacrifice many of its privileges either by wilful abuse of them or by a definite and voluntary abandonment of them. They are often greatly modified by treaty. A treaty is a compact made between two or more sovereign states by their properly recognized authorities or by their duly author- ized agents. Not all treaties are binding. They must con- form to certain rules prescribed by law. They must be made through the constituted authorities of the nations, or by "persons specially deputed by them for that purpose." Thus, if the power to make treaties be vested in the legisla- ture, a treaty made through the executive department would be null and void. Similarly, an agreement whereby the treaty-making power criminally and flagrantly sacrifices the interests of the nation has no binding force. In short, the same general rules apply to treaties that apply to ordi- nary contracts between individuals (Chapter XXIII). An INTERNATIONAL LAW 333 agreement, therefore, made by force or fraud or entered into to commit an unlawful act is not recognized as having bind- ing force. Unless some other time is agreed upon, treaties go into effect when they are signed by an authorized agent. In case a treaty deals with a subject already the subject of earlier treaties, if there be no provision in the later treaty to the contrary, it is regarded either as explaining or as abro- gating the earlier ones. 447. Pacific Methods of Redressing Injuries : Arbitration. Between nations, as between individuals, it is inevitable that disputes should arise and that injuries should be given and received. War is the ultimate means of securing redress for such injuries and should be resorted to only when all pacific methods of obtaining satisfaction have failed. Various peace- ful methods of settling disputes have been found. Among them the method of arbitration is of growing impoi;tance. When this is resorted to, the nations concerned in the dispute agree to submit their differences to an independent tribunal and to accept its decision. In 1899 an international peace conference was held at the Hague, which resulted in the establishment of a permanent international court of arbitra- tion. This court cannot, of course, compel nations to bring their differences before it for settlement; but it, has exercised no little influence toward averting war. 448. Other Methods. Besides arbitration a variety of other measures may be employed for obtaining satisfaction from an offending nation before recourse is had to war. Among these are embargo, reprisal, and retorsion. An em- bargo consists in detaining vessels in port either for political purposes or by way of reprisal. An embargo may be either civil or hostile. A nation lays a civil embargo by way of 334 CIVIL GOVERNMENT seK-protection (e.g., to protect its commercial vessels from capture); a hostile one by way of reprisal in order that an offending nation may be persuaded to do justice. Literally the word reprisal signifies simply retaking what is one's own, but in international law its meaning has been extended to include reimbursement for injuries sustained. Thus prop- erty may be seized and retained until redress is obtained; or sold, if the offending nation refuses to render satisfaction. Retorsion consists in the adoption by an injured nation of retaliatory measures toward the offender — "treating it or its subjects in similar circumstances according to the rule which it has set." 449. War. When all peaceful methods of obtaining satis- faction have failed, there remains to every nation a last re- sort, namely, war. War is "an interruption of a state of peace for the purpose of attempting to procure good or pre- vent evil by force." A war is said to be just when it has a good cause and a proper and sufficient object. This is an- other way of saying that it may be waged (i) to defend any right which the state is bound to protect, e.g., to defend its territory from invasion or protect its citizens when they are maltreated by a foreign nation; (2) to redress a wrong, e.g., an insult to its flag, its ambassador, or its good name, or a violation of treaty rights; (3) to prevent apprehended injury, e.g., to prevent a disturbance of the balance of power or to right great and flagrant wrongs against religion or liberty, since these wrongs may affect all states. A formal declara- tion of war is no longer necessary. The state, however, which commences the struggle, must indicate in some way its changed feelings. This may be done by withdrawing its ambassador or by refusing intercourse. It must also give its INTERNATIONAL LAW 335 ovvTi subjects and neutrals warning as to the changed rela- tions, in order that the former may not suffer in property or person, and that the latter may act accordingly. 450. Effect on Subjects of the Enemy. The nations en- gaged in hostihties are called belligerents. If the subjects of one beUigerent nation be residing or traveUing in the territory of another, they are usually permitted to remain and to retain such property as they possess, provided they conform to the rules of conduct prescribed for them; but they may be re- quired to leave the country within a specified time. Under such circumstances they are given a reasonable time to effect the removal of their property. All trade between belligerents ceases, and any contracts or agreements entered into between subjects of the belligerent countries after the war breaks out are void. The law, however, allows the creditor to collect any debts which may have been contracted before the out- break of hostilities. 451. Combatants and Non-Combatants. A distinction is made on both land and sea between combatants and non- combatants. A combatant has been defined as a person "authorized by a government to wage war," i.e., any person "directly engaged in carrying on war, or concerned in the belligerent government, or present with its armies and assisting them." The passive inhabitants are non-combat- ants. In this class are included any persons who may be present with an army for the purpose of humanity or religion, such as surgeons, nurses, and chaplains. There is a differ- ence, of course, in the treatment accorded to these two classes. Combatants are liable to capture or even to death, if they refuse to yield; but they may be exchanged when captured for captives taken by their opponents, or they may 336 CIVIL GOVERNMENT be given up for a ransom. While in captivity they are en- titled to maintenance in comfort at the expense of the state effecting their capture. Officers and others whose word can be reHed upon may be released on their parole not to serve during the war, or until exchanged or ransomed. 452. Their Property. All the property of combatants is liable to plunder and confiscation, as well as all pubUc mon- eys, military stores, and buildings belonging to either belK- gerent. Property that does not contribute to the prosecution of the war should be exempt from violation. Non-combat- ants who remain quiet and take no part in the hostilities are not liable to molestation. Their property is not subject to capture except in extreme cases. Often it is taken at a fair value to satisfy the immediate needs of a hostile force. In rare cases it is taken without compensation, although even then in some cases receipts are given for the property. 453. Cruel and Unfair Methods Forbidden. The law de- bars belligerents from using certain kinds of weapons or employing certain stratagems in maintaining hostiUties. Any weapon which inflicts needless pain or produces a lin- gering death is prohibited, as is also the use of poison or of poisoned weapons. Nations are bound to maintain their plighted faith and are not allowed to importune or seduce the subjects of another to betray their country. If savage or semi-barbarous troops are employed by a civilized nation, it is required that they be kept under such control that they will conform to the ordinary rules of modern warfare. 454. Truce. BeUigerents may agree to a temporary sus- pension of Kostihties at one or more places. Such an agree- ment is called a truce and becomes binding upon the parties thereto "from the time when they have agreed to its terms," INTERNATIONAL LAW 337 and upon private citizens when they have had time to be informed of its existence. The existence of a truce does, not prevent either party from making preparations for a renewal of the struggle. 455. Siege. In conducting a siege the property and per- sons of non-combatants cannot be so readily safeguarded as in other cases. The law does not permit the bombard- ment of open, undefended towns. Usually the bombard- ment of a fortified or defended town is preceded by a notice. In that case the inhabitants may secure some protection for their hves and property. In case of bombardment, steps should be taken to spare so far as possible all buildings de- voted to rehgion, art, science and charity, and all hospitals, provided such buildings are not used for mihtary purposes. Usually the greatest loss of life and property among non- combatants follows when a place has been taken by assault, as it is often difficult to determine when aU resistance has ceased. All killing which takes place after resistance has been overcome is murder. The plunder of fallen towns by victorious troops is forbidden. 456. Warfare with Barbarous Nations. In waging war with savages, a Christian state is sometimes tempted to go back to barbarous or savage methods of warfare. Even here, where the provocation may be great, the rules of land war- fare require the state to show good faith and humanity; to treat the prisoners well; to respect treaties and truces; in short, to deal with them as they would with a civiUzed state no matter how barbarous or inhuman their conduct may be. 457. Captures on the Sea. The laws as to the capture of property on the sea differ considerably from those in use on land. - All property of a belligerent nation or its subjects is 338 CIVIL GOVERNMENT here looked upon as lawful prey, no distinction being made between the property of combatants and non-combatants. The precise rules governing its capture will be stated in con- nection with the rights and obligations of neutrals. Such property when captured is called a prize, and, when passed upon by a court, becomes the property of the captor. 458. Privateering. It has been the custom in the past for each beUigerent to grant letters of marque and reprisal to the owners of private vessels, authorizing them to seize the property of either beUigerent on the sea. Such vessels are called privateers. At an international congress held at Paris in 1856 it was agreed by aU the great nations except the United States and Spain that privateering should be abol- ished. The United States also was wilHng to aboUsh priva- teering on condition that all private property except contra- band of war should at all times be exempted from seizure on the high seas, but this condition was not accepted by the congress. At the outbreak of the Spanish-American war in 1898 our government issued a decree forbidding privateering. 459. Blockade. Usually a declaration of war is followed by an attempt to blockade the ports of the enemy. This too is designed to interfere with the commercial intercourse of nations. A blockade consists in "obstructing the passage into or from a place on either element, but is more especially appKed to preventing communication by water." Any ves- sel attempting to pass a blockade is Kable to capture. No blockade, however, is regarded as binding, unless there be present a sufficient force to render access dangerous. The name of paper blockade has been given to all so-called block- ades that do not satisfy this condition. Due notification must be given of a blockade, and vessels in port before a INTERNATIONAL LAW 339 blockade is declared are usually allowed to proceed to their destinations. 460. Rights of Neutrals. Some of the most difficult of international questions have arisen in connection with at- tempts to define the rights of neutrals. A neutral state has been defined as "one which sustains the relations of amity to both the belligerent parties, or, negatively, is not an enemy; , . . on£ which sides with neither party in a war." A nation may preserve a strict neutrality or an imperfect neu- trahty. In the former case it stands absolutely aloof, ren- dering no assistance to either. In the latter case, however, it may impartially allow both belligerents to transport troops across its frontiers or may furnish one, according to pre- vious engagement, a certain contingent of troops or vessels for prosecuting the war. Neutrality entitles nations to cer- tain privileges, such as the right "to preserve their territory inviolate," and "their sovereignty uninvaded." To this end > they may demand that no battles be fought within their jurisdiction, or that no troops or suppHes be carried through their territory. They may demand also that the same re- spect be shown their flag, their representatives, their prop- erty, their prerogatives, as was shown in times of peace. 461. Property of Neutrals. The law governing the prop- erty of neutrals is most important. Their property, as in time of peace, is free from molestation wherever it may be found, unless it is contraband of war. It is difficult to define with exactness what is contraband, as the practice of nations has varied. It is usual to regard as contraband anything that "appertains immediately to the uses of war," such as firearms, bullets, and powder. Treaties are often made be- tween nations, specifying what articles wjll be treated by 340 CIVIL GOVERNMENT them as contraband in case of war. It is usual, moreover, for belligerents to issue a Hst of articles which they intend to treat as contraband. A neutral cannot send these arti- cles into either country without wronging the other nation, and therefore they become liable to capture. If neutral goods be found on an enemy's ship they are still free from capture, although the ship itself is lawful prize. The law also pro- tects the goods of an enemy on a neutral vessel, aUvays ex- cepting contraband of war. Both belligerents may exercise the right of search to enforce these rules. They may over- haul a neutral vessel, excepting a public vessel, examine her papers and her cargo, and on her refusal to submit to such examination, may take possession of her as a prize. 462. The Duties of Neutrality are largely implied in the term " neutral." Neutrals must discharge toward both belli- gerents aU those duties which humanity requires; must not permit one to transport troops across their territory, unless this privilege is accorded. equally to the other; and must not. loan money, supply troops, or otherwise assist in the prose- cution of the war. The law, however, makes a careful dis- tinction between the obligations resting upon the nation and upon the individual inhabitants, and does not regard it as a breach of neutrality for the individual to loan his money, sell mihtary supplies, or even lend his assistance in person to the prosecution of the struggle. 463. Intervention. In case a war is conducted in too cruel a manner or is wantonly and unnecessarily protracted, neutral nations may intervene. Intervention may, however, be resorted to on other grounds as well, as, for instance, "to preserve sovereign rights or interests, to maintain the balance of power, to prevent iniquitous revolutions, or to suppress INTERNATIONAL LAW 341 crime of governments against their peoples." The neces- sity of preserving the balance of power has been the most common ground for interference with each other's affairs on the part of European nations. According to this principle no European nation must make or attempt to make acqui- sitions that are hkely to prove dangerous to the independ- ence, influence, or territorial integrity of another. As yet the application of this theory has not been extended beyond the continent of Europe. Intervention may, of course, al- ways be resisted, either by the nation directly affected by it, or, under some conditions, by other nations. Thus the Monroe doctrine was an assertion of the right of the United States to resist foreign interference with American affairs, as well as of its right to intervene for the purpose of preventing such interference. Intervention is always interference and is justifiable only in extreme cases. As a rule, it is "illegal, impolitic, and inexcusable." 464. Mediation. International controversies are sometimes settled by mediation on the part of neutral- nations. Medi- ation is very similar to the attempts of private persons to reconcile two friends who have had a dispute. It may be sought by one or both of the parties concerned or it may be offered by the neutral nation. It is, of course, necessary that the nation which acts as mediator shall be friendly, impartial, and acceptable to both parties. Ordinarily it is not incum- bent upon the nations involved to accept an offer of media- tion, though the offer of a powerful nation may under some circumstances amount practically to compulsion. Neither is it ordinarily incumbent upon the parties to the controversy to accept the advice of the mediator. Nations have in gen- eral been careful not to offer mediation inopportunely, and 342 CIVIL GOVERNMENT such offers must always be courteously received, even though they may not be accepted. Library References. — Ashley, §§ 625-627; Wilson, §§ 1216-1217; Wool- sey, International Law, Lawrence, International Law; Dole, Chaps. XLII— XLV; Lalor, Article on International Law; Standard Dictionary; Encyclo- pedia Americana, Article on Consular Service of the United States. QUESTIONS ON THE TEXT 329. Define nation; sovereignty; ambassador. 330. Over what territory and waters has a sovereign state ab- solute jurisdiction ? 331. Distinguish between the character of the duties performed by a foreign minister and the character of the duties performed by a consul. In what way are these officers chosen ? 332. What are the chief duties of an ambassador? Explain why ambassadors are not subject to the laws of the countries to which they are sent. 333. When was the Hague conference formed? What was the object of forming an international court of arbitration ? 334. What is an embargo? What is its object? How many kinds of embargo are there ? 335. Mention some of the causes that would justify a nation in resorting to war. 336. Under what obligations to other nations is a nation going to war ? Is a declaration of war necessary to a state of war ? 337. State the essential rights of non-combatants in time of war. 338. Define contraband of war; imperfect neutrality; non-com- batants. 339. Has a nation a right to raise a "black flag" when going to war with another ? Why ? 340. How do the laws governing the capture of the property of a belligerent on sea differ from those governing its capture on land ? Define belligerents. 341. What is a blockade? Define a paper blockade. Is a paper blockade binding? 342. What is meant by neutrality in case of war between foreign powers? What restrictions does neutrality impose? INTERNATIONAL LAW 343 343. State the Monroe doctrine. Why is its maintenance im- portant in this country ? What are the dangers from a too exten- sive application of it ? 344. What is the rule regarding neutral goods on an enemy's vessel? An enemy's goods on a neutral vessel? 345. Define intervention. Under what circumstances may neu- tral nations intervene ? 346. What is meant by the "balance of pow^r " in Europe? Is there any principle corresponding to it on this continent? CHAPTER XXIII MUNICIPAL LAW 465. Statement of Subject. Intercourse between nations is regulated by international law. Similarly, the intercourse of . every state with its citizens and subjects and of those sub- jects with each other is regulated by law, and to this is ap- plied the term " municipal law." In studying the constitution of the United States and those of the different states, we have been dealing with one portion of municipal law as it exists in this country. In addition, however, to these fundamental laws outlining our frame of government and guaranteeing to individuals certain vitally important rights, there exists a great body of law intended to define clearly and to secure, on the one hand the rights of individuals in their relations with the state and with each other, on the other, the rights of the state, i.e., of the public, as against -individuals. It is the aim of this chapter to direct attention very briefly to the most important of these provisions of municipal law. 466. Municipal Law and Individual Rights. One princi- pal object of municipal law has been the preservation and vindication of individual rights, not only of those funda- mental rights guaranteed in this country by our federal and state constitutions, but also of the innumerable rights aris- ing out of the telations of husband and wife, parent and child, guardian and ward, and master and servant. If these rights were simply recognized as existing, without more definite prescription, by rules emanating from the legisla- 344 MUNICIPAL LAW 345 ture or other sources, of the precise manner in which they are to be safeguarded, the recognition would avail little. Hence the necessity for this great body of municipal law. 467. Common and Statute Law. In an earlier chapter (§ 16), we glanced at the way in which individual rights have developed in organized society. As these rights grad- ually gained general recognition, society began to follow cer- tain rules in punishing violations of them. These rules be- came in time thoroughly established customs, and finally received judicial sanctiori in the decisions of the highest courts. It is these unwritten laws, which have originated in this way, that now make up what is known as our common law. In addition to this common law the state has pre- scribed certain rules of conduct, sometimes modifying, some- times supplementing it. These written enactments consti- tute the statute law. Many of the rules of common law have been superseded by them, and the practice has been in some cases reversed. 468. Civil and Criminal Law. The state recognizes a very important distinction in applying these rules to its citizens. Certain offences are in the nature of private wrongs, as when one person interferes with another's rights of property in a breach of contract, or injures his reputation by slander. On the other hand, there is another class of offences, such as murder and burglary, which are looked upon as pubUc wrongs. These "reach through and beyond the individual wronged to the social fabric of which he forms a part, and violate the peace and order of the state." The former are termed civil offences; the latter criminal offences or crimes. 469. Property and Estates Defined. To the protection of the right of private property and the redress of the wrongs by 346 CIVIL GOVERNMENT which it is violated, the law devotes the greater share of its attention. Property may be of two kinds, real and personal. Real property is immovable property, including land and whatever may be growing or erected thereon, and all that is beneath the soil; personal property is movable property — such things as may be taken by the owner wherever he goes. The law carefully distinguishes between the property itself and the interest which the owner may have therein. This interest is called an estate. These estates may be of differ- ent kinds. There are but two recognized interests in per- sonal property, viz., an absolute and a qualified estate. In the former the estate cannot be lost without some act on the part of the owner, whereas the latter may be lost without his act or default. Not all the different estates in real property need be considered here. The more important are an estate in fee, an estate for years, an estate for life, and an executory estate. An estate in fee is one given to a person and his heir "absolutely without any end or limit." An estate for years is an interest limited by a term of years. An estate for life is limited by the life of the holder or some other speci- fied person. An executory estate is an estate created to commence at some future time. 470. Contracts : Defined and Classified. A contract is one of the means of acquiring an estate in both real and personal property. A contract is "an agreement between two or more persons, upon sufficient consideration, to do or not to do a particular thing." Contracts may be classed as to form as written or oral, and as to the time when they go into operation as executory or executed. An executed contract is " one in which nothing remains to be done by either party, and where the transaction is completed at the moment the MUNICIPAL LAW 347 agreement is made." An executory contract is an agree- ment to "perform some future act." A sale accompanied by delivery and payment would be an example of the former; an agreement to build a house within a year, of the latter. Contracts may also be classed as express and implied. An express contract is one where the terms are "openly and fully uttered and avowed at the time of making." It is not necessarily a written contract. A formal contract is an ex- press contract, written or oral. A lease would be an ex- ample of this kind of contract. An implied contract is one ihat is largely a matter of inference and deduction. When one person hires another to perform a piece of work, nothing may be said as to the remuneration. The contract is an im- plied, one in so far as hiring presupposes payment for the labor. 471. Conditions Governing Contracts. Every contract must satisfyfour conditions in order to be enforceable, (i) The par- ties contracting must be competent. Four classes of persons are usually regarded as incompetent : (a) infants, (6) married women, (c) insane persons, and (d) persons under guardian- Ship. The term "infant " is applied to persons under a certain age, usually twenty-one. An infant, however, may contract for the necessaries of life. A married woman may also make contracts which involve her own property. The term " guard- ian " is appHed to any one upon whom the care of the person or estate of a minor has been conferred by law. Any con- tracts involving the minor, or ward, as he is called, are made by the guardian. (2) If a contract be made under fear of injury it is voidable at the pleasure of the contracting party. (3) A contract must be based on a sufficient consideration. This may be of two kinds: pecuniary, or convertible into 34^ CIVIL GOVERNMENT money; or founded on mere love or affection or gratitude. There must be a subject-matter to be contracted for. In other words, the parties to a contract must make an agree- ment as to property, "whether it be a material object or a mere right and obligation." (4) Finally there must be "an actual contracting by proposal on the one side and accept- ance on the other;" the parties must mutually assent to the agreement. The other rules which determine the validity of a given contract depend upon the law of the place where the contract is made and is to be performed. The law of all states generally requires that contracts involving land or running over a long term of years shall be written. 472. A Breach of Contract involves a civil suit, but the law governing such an action is determined entirely by the place where the suit is brought. A statute of limitations re- quires that the suit be brought before the court within a reasonable time. The law, generally speaking, knows no other remedy than the payment of money for a breach of contract. This kind of reniedy is often inadequate or un- satisfactory, as no amount of money can compensate the aggrieved party under certain conditions. The fulfilment of the letter of the contract or cessation of a particular line of conduct is often the only just means of settling the differ- ence. The general law of contract as outlined above applies alike to real and personal property. There are so many points of difference, however, in the laws governing the various estates in real and personal property that it is necessary to consider the two kinds of property separately. 473. Real Property : Deeds and Mortgages. Two common methods of transferring estates in real property are by deeds and by mortgages. A deed is a written instrument transfer- MUNICIPAL LAW 349 ring an estate to another to take effect during the lifetime of the grantor. A deed may either create an estate where none before existed or modify one aheady created. To the former class belong deeds of bargain and sale, gifts, grants and leases; to the latter, assignments. Besides conforming to the general conditions governing contracts, these instruments must be written, must be set forth legally and in an orderly manner, must be free from any erasures or interlineations not explained in the instrument, and must be sealed and deKvered. These are signed by the grantor, and must be acknowledged and witnessed. In some cases, when the transfer is made by a married man, the wife also must sign the instrument. If she fails to sign it, she still retains in the property her dower interest which she acquired by marriage. In no case can any estate be transferred by a deed without the delivery of the same during the lifetime of the grantor. Although recording a deed is not essential to its validity, it insures the grantee against the claims of the grantor's creditors and of his subsequent bona fide pur- chasers or mortgagees. In other words, it may prevent a second transfer or secure the first purchaser in the posses- sion of the property. A mortgage is a written instrument given as security for money loaned, whereby the debtor creates an estate in real property conditioned to become void on the payment of the obligation. In case the person giving a mortgage fails to meet the obligation incurred thereby, his property is sold to satisfy the debt. This procedure is called foreclosure. " 474. Gift and "Will. The title to real property may also be acquired through gift or by will. A gift is the "voluntary conveyance or transfer of property without consideration of 35o CIVIL GOVERNMENT money or of blood." A gift may be made in expectation of death, and becomes voidable in case of the recovery of the donor. Delivery is essential to the validity of a gift in case the property is subject to actual delivery. As real, property cannot be delivered, some act equivalent to delivery is neces- sary to malce the gift vaHd. A debtor on the verge of in- solvency may not give away his property to the prejudice of his creditors. A will is the disposition of one's property to take effect after death. It may be modified by a codicil, which is simply an addition to or quaUfication of a will. A will disposing of real property must be in writing and must be signed by the testator (the person making the will). He must be competent, as in the case of a contract. In nearly all of the states he must sign the will in the presence of wit- nesses, and the witnesses must attest to the genuineness of his signature. A will may be revoked at any time by destroying it, by making a new will expressly revoking the old one, or by the testator's marriage and the birth of a child. A will usually provides for the carrying out of its provisions by some person, called an executor (if a man) or an executrix (if a woman). 475. Lease. A lease has already been mentioned as a form of deed. It is a transfer of an estate for years in real prop- erty. "This is one of the most important estates known in law." It is a contract between a landlord and tenant im- plying certain responsibilities as to each other and the prop- erty. A lease, in common with all contracts, must be written when it involves a long period of years. Usually the law demands that leases for a longer period than a year shall be written. The tenant is bound to take good care of the prop- erty entrusted to him, i.e., he must return it to the landlord MUNICIPAL LAW 3SI in the same condition in which he received it, allowing, of course, for the ordinary wear and tear. If the property needs to be repaired, the tenant is Uable for the ordinary repairs; the landlord for all others. If the tenant violates the con- tract in any respect, he may be evicted. The landlord can- not, however, take the law into his own hands and proceed to set the tenant's goods into the street. He must first apply to the courts, and they entrust the execution of the process to the sheriff or a similar officer. If the owner of a piece of prop- erty sells it during the period of its occupancy by a tenant, the tenant may remain until his lease expires but pays the rent to the new owner. If the tenant prefers, he may quit the property, as the contract was primarily between him and the original owner. If he has sown crops with the knowl- edge that his lease will expire before the time for harvesting the same, he forfeits their ownership to the landlord. Other- wise, he is entitled to the results of his labor, even if his lease is for an indefinite period and subject to the will of the land- lord for its termination. An assignment occurs when the tenant transfers his entire interest in the property to a new tenant. In this case the new tenant pays the rent directly to the landlord. A sublease is given where the tenant lets a part of his interest to another. In this case the rent is paid to the tenant. In case the lease is for an indefinite period, the landlord is required, when he wishes to secure possession of the property, to serve upon the -tenant a notice to quit. 476. Appurtenances. When real property is transferred there are various minor rights, called appurtenances, which go with it. When a house is transferred, the new owner acquires the right to the blinds, the keys, the trees on the lot, 352 CIVIL GOVERNMENT and any minerals which may be beneath the soil. Appur- tenances may be of other kinds, such as the right of way across another's property, or the right to the use of a stream. They may be acquired either by grant or by long use. They may be forfeited by granting them back to the original pos- sessor or to a new one, or by disuse for a period of twenty years. 477. Personal Property : Sale. The principal contracts by which estates in personal property may be acquired are con- tracts of sale, contracts of agency, contracts of partnership, and contracts of indorsement. A sale proper is the trans- fer of personal property for money. It must be carefully distinguished from barter. The latter implies simply an exchange of one thing for another, presumably its equiva- lent in value. In a true sale, one of the things exchanged must be money. As a sale is a contract relation, it must, of course, satisfy the conditions governing a valid contract. There are some special conditions which must likewise be satisfied. Perhaps the most important of these is that the property must have an "actual or potential existence" to constitute a valid transfer. DeHvery, however, is not neces- sary to make the sale binding. The right of possessing the goods passes to the buyer the moment he tenders the price; and if the goods are sold on credit, the buyer is likewise entitled to their immediate possession. If the buyer fails to secure the goods and leaves them with the seller, he not only runs the risk of losing them in case of their destruction by fire, but he may be defrauded of them by the original possessor's selling them a second time, in which case the orig- inal possessor may be sued for damages. Any sale made by a debtor to a third party with the understanding that the MUNICIPAL LAW 353 thing sold shall remain in his hands is void. The law pro- vides, however, that if a chattel mortgage be given by the debtor to the third party purchasing, the sale is valid, no matter how many creditors the man may have, or who has possession of the goods. A chattel mortgage is simply a paper given as security for the money tendered, and prevents the debtor from reselling the goods, thus protecting the pur- chaser. 478. Transfer of Title. The general rule as to the transfer of title or right to the property is that the seller can transfer only those rights which he has in the property. If, then, the property be stolen property, the purchaser obviously ac- quires no right to the same, as the seller transferred none. An exception is made, however, in the case of negotiable paper which may be stolen before it is due. The reason for this is that such paper is so readily transferred from one per- son to another that many might suffer if the ordinary rule were appHed. When the seller covenants or undertakes to insure that the thing which is sold is his own, he is said to warrant the title. Such action secures the purchaser against loss in case of misrepresentation. Likewise, if he expressly guarantees the quality, the purchaser is also secured against loss. Where the seller does not say anything about the quaUty, the purchaser buys at his own risk and cannot re- cover from the seller if the goods do not measure up to a certain standard. In case property be sold on credit, the seller sometimes retains the title to the property until full payment is made. 479. Liens. A lien may be defined as the "right vested in one man to retain possession of the property of another until some charge upon it or some pecuniary claim on account of 354 CIVIL GOVERNMENT it has been satisfied." A lien, then, usually implies the pos- session of the article, and is lost when the article has passed out of the hands of the creditor. "In trade, however, a lien sometimes continues even after the delivery of property, if it be the general usage and the right of lien be made a part of the contract." 480. Agency. Agency is a "relation between two or more persons by which one party ... is authorized to do certain acts for . . . the other," called a principal. This relation- ship is a very common one in the business world. The clerk in the store, the cashier in the bank, the superintend- ent of a railroad, are all agents acting for principals. In general the principal is liable for acts of the agent. If, how- ever, the agent exceeds his authority, or is acting for himseK while pretending to act for his principal, or refuses to disclose his principal, he becomes liable for his acts. An agent often has a lien upon the property of the principal. This can be illustrated by the commission merchant. It is his business to sell goods, usually in bullc, for his principal on a commission. If the commission is not forthcoming, he may exercise his right of lien by holding the goods consigned to him to be sold. The broker differs somewhat from the commission merchant. He never has goods in his posses- sion, but it is his business to bring the buyer and the seller together. He is also paid a commission. 481. Partnership. A contract of partnership is "a con- tract by which two or more persons unite their property or labor in some lawful business, and agree to divide the profits or bear the loss in certain proportions." By this contract each member of the partnership acquires an interest in the partnership property and becomes at the same time liable MUNICIPAL LAW 355 for any engagements or transactions made by any other member of the concern. In all matters pertaining to the partnership the act of one partner binds all. A secret part- ner becomes liable with the others if his identity is disclosed. There are various ways in which partnerships are dissolved. The most common means are by an act of the parties, by the act of God, and by the act of law. Either party may dissolve it, if it be for an indefinite period. If it be for a term of years, it may only be dissolved by the courts or by the "act of God," as by the death of one ,of the partners. In case of a dissolution, notice must be served upon all having dealings with the firm, but a newspaper notice suffices for the general public. 482. Negotiable Paper : Forms. A contract of indorsement transfers an interest in negotiable paper. This is any paper that may be sold and passed from hand to hand under certain limitations, as we pass coin or bank bills, i.e., paper which is capable of ready transference from one person to another. Checks, bills of exchange, and promissory notes are forms of negotiable paper. A bill of exchange or a draft is a "request by one person to another to pay a third person a certain sum of money mentioned in the paper." The per- son executing or signing the draft is the drawer; the person called upon to pay the same, the drawee; and the person who is designated to receive the money is the payee. A check is very similar to a bill of exchange. It is an order upon a bank given by one person in favor of another. The bank then stands in the relation of drawee. A promissory note is a simple promise by one person to pay another a specified sum. There are only two parties to a note, viz., the maker, the one signing the note; and the payee, the one in whose 3S6 CIVIL GOVERNMENT favor it is made. "No precise words of contract are essen- tial in a promissory note, provided they amount in a legal effect to a promise to pay." (Spalding, Encyclopedia, p. 149.) The usual form is as follows : $ . Place , Date . Ninety days after date I promise to pay John Doe, or bearer {or order), five hundred dollars, at , with interest thereon, at the rate of per cent per annum, from date {or maturity) until paid. Value received. (Signed) D. R. The law is more strict about the wording of a bill of ex- change. The following is the usual form : $ . Place , Date . days {or months) after sight {or date) pay to John Doe, or order, dollars, value received (on account of , or, and charge to the account of). To B. (at) . (Signed) D. R. The following is the usual form for a check : % . Place , Date First National Bank, pay to the order of John Doe, dollars. (Signed) D. R. 483. Use. These forms of negotiable paper make unne- cessary the handling of large sums of money and the conse- MUNICIPAL LAW 357 quent inconvenience and danger attendant upon its use, and therefore have a wide use in the business world. If A living in New York owes B living in New Orleans a sum of money, and A has money deposited in a bank in New York, he goes to this bank and secures from it an order upon a bank in New Orleans with which the New York bank does busi- ness to pay B the amount of the debt. If B happens to have money in this bank, the amount is placed to his credit. In the course of a few months the amount advanced by these banks in similar transactions may balance, and consequently but httle actual money may change hands. Again, C may owe A the amount of A's debt to B or more, and by A's draw- ing an order upon C to pay B, two obligations may be dis- charged by a single transaction. The check also answers much the same purpose. 484. Indorsement: Kinds. AU these forms, of paper are transferred and made negotiable by indorsement. This is any writing on the back transferring the rights of the holder to some other person. An indorsement in blank con- sists in simply writing the name of the indorser on the back of the paper, and this makes it transferable to any one holding it. A full indorsement is where there appears on the back of the paper the name of the person in whose favor it is made. A quaUfied indorsement is where the Uability of the indorser is limited, either by adding the word " cashier," which serves to indicate that he is the agent of some corporation, or the words "without recourse to me." 485. Liabilities of Indorsement. Indorsement implies lia- bility on the part of the indorser. In the case of a promissory note the maker is, of course, the principal debtor. If the payee indorses it and sells it to another, he, too, becomes 358 CIVIL GOVERNMENT liable to the purchaser for the amount of the note in case it is not paid when due. Every indorser as well as the maker then may be sued for the payment of the note. When a bill of exchange is presented to the drawee, he is not morally or legally bound to honor the same. If, however, he prom- ises to pay the amount to the payee or holder when it be- comes due, he is said to accept it. This operation makes him a party to the contract and transfers the burden of the obligation from the maker to the drawee. If he refuses to accept the bill, then the holder looks to the maker and in- dorsers for the amount involved. A notice is usually served in this event on the drawee and indorsers. When negotiable paper is transferred after maturity, the new possessors ac- quire no further rights or incur no obligations but those inherent in the bill when it became due. The purchaser then takes the. note at his peril. If no time payment is speci- fied in the paper, it is payable immediately. Forged paper acquires no value by transference, and may, therefore, cause loss to many. A note or bill does not begin to draw interest until maturity, unless otherwise specified therein. 486. Transfer of Personal Property by Gift and Will. The law of gift and will has aheady been considered in connec- tion with real property. Much that was said in that con- nection applies as well to personal property. As personal property is movable property, actual delivery is necessaj^^ to constitute a valid gift. The other conditions as to revoca- tion and the rights of creditors are the same as in similar transfers of real property. The requisites for a will of per- sonal property differ so much in the different states that it is impossible to state them here. The law usually requires such a will to be in writing except in cases of great necessity, MUNICIPAL LAW 359 "as of a soldier in actual military service, or of a sailor while at sea." Property disposed of in this way is known as a legacy. A legacy is always conditioned on the debts which the testator may have incurred during his lifetime and which still remain unsettled. Such a wiU may be revoked by de- struction or express revocation. When a person dies with- out leaving a will, he is said to die intestate. The property is then entrusted by the courts to a person called an admin- istrator, .who must distribute the property according to law. Each state prescribes carefully who shall inherit property. 487. Personal Security : Libel and Slander. Only a few of the laws guaranteeing the security of the individual need be considered here. The law guarantees the personal security of all as to reputation by laws against slander and hbel. These offences are similar in character in that they consist of false statements that will injure the character of another. A libel, however, must be written or printed; a slander is simply an oral statement. The punishment of Ubel is much more severe, and it is even accounted a crime against society because of its wide circulation as compared with slander. The punishment for slander is usually a fine (or'damages) varying with the offence; the punishment of libel may in- clude both fine and imprisonment. 488. Relations of Parent and Child. The laws thrown about the relations of parent and child and of husband and wife form one of the greatest bulwarks of our institutions. The law recognizes in both relations mutual rights and du- ties. The parent among other things is entitled to the cus- tody of the child, and if the child be working he is also en- titled to his wages. He may punish the child, but not with excessive cruelty. The child, on the other hand, is entitled 360 CIVIL GOVERNMENT to support. If the parent denies this, the child may secure it by contracting with some other person for it. If, how- ever, the father die and the mother be left with the support of minor children, the law generally does not demand that she support them. The father is obliged to support his minor children even if they possess property of their own. Children who are able are obhged to support indigent parents. 489. Relations of Husband and Wife. The most impor- tant relations between husband and wife are in general those arising under the marriage contract. The same general rules which were mentioned above as applying to all contracts apply to the marriage contract. The age at which the law allows persons to enter into the marriage relation is called the age of consent. This is usually twenty-one for man and eighteen for woman. The law does not recognize a marriage of near relatives. The ceremony required to constitute a valid marriage must be of a nature to show that the assent of the parties is mutual and that they are aware of the terms of the agreement which they are making. Marriages are sometimes contracted in New York state by drawing up a formal con- tract in the presence of the proper authorities and signing the same in the presence of witnesses. The wife is entitled on marriage under the common law to the dower right, i.e., the right to the use of one- third of any real estate her hus- band may have had at the time of the marriage or that he may acquire during the marriage. The husband, how- ever, acquires no right by marriage to the property of his wife, excepting in case she dies intestate after children are born to the family. The common law long recognized the dependence of the wife, and would not permit her to enter into any contract relation after marriage. This, of course. MUNICIPAL LAW 361 placed her property at the disposal of her husband. The statute law has changed this, and she may sell and transfer her separate property as though she were single. The wife is entitled to support under the marriage contract, and may compel her husband to support her even if they have sep- arated, providing the separation is through some fault of his. If the wife be responsible for the separation, or if a court has granted them a divorce, then his responsibility for her sup- port is terminated. 490. Crimes : Punishment. There remain for consideration those offences which not only threaten the rights of an in- dividual but in a larger sense are wrongs against society. Violations of any of the laws already considered are largely matters of individual injustice. Crimes are public wrongs, and as such must be considered apart. The state makes a careful distinction, and punishes these public wrongs with greater severity than those in which individuals only are in- volved. In the latter case, a money penalty in the shape of a fine or a short imprisonment is sufficient to satisfy the in- jury. In the former the state inflicts a penalty with two objects in view, viz., "to reform the offender and deter him and others from committing like offences, and to protect society." The punishment varies from a simple fine to im- prisonment and death. Capital punishment, however, has lost favor in recent years with the progress of humane ideas throughout the civiUzed world. 491. Crimes against Person. It is possible to note only some of the more important offences against society. Trea- son, the principal offence against the sovereignty of the state, has already been defined in another connection. Of the offences against the lives and persons of individuals, the most 362 CIVIL GOVERNMENT important are murder, manslaughter, and robbery. Homi- cide is the general name applied to the taking of human Hfe by human agency. If the killing be premeditated, or com- mitted in connection with the commission of a crime, it con- stitutes murder; if the kiUing be without mahce or intention, it is manslaughter. Robbery is taking from another with criminal intent his property by violence or by putting him in fear of injury. 492. Crimes against Property. The conmion crimes against private property are arson, burglary, larceny, and embezzlement. Arson is "maUciously burning another's house ... or other property." * Arson in the first degree is burning an inhabited dwelling at night. Burglary is "breaking and entering the house of another . . . with in- tent to commit a felony." ^ Larceny is criminally taking away the property of another without his consent and with the intent to convert it to the offender's own use. It differs, then, from robbery in that violence does not enter into the act. Grand larceny is where the amount taken is large; petit larceny, where it is of small value. Embezzlement (classed as larceny in some states) may be confused with larceny. It consists primarily in employing or removing as one's own what may have been entrusted to one. Forgery is an offence against public and private securities, and consists in wilfully making or altering any writing with intent to defraud. 493. Crimes against Public Morals. Bigamy and polyg- amy are offences against public morals. The first consists in contracting a second marriage when another already ex- ists; the latter in having plural wives or husbands. * See Spauldmg Encyclopedia. * Ibid. MUNICIPAL LAW 363 494. Criminal Intent: Accessories. The intent to commit a- crime is punishable no less than is its actual commission, although the punishment is often not so severe in case of a failure to commit the act. A person planning a crime, as weU as the actual perpetrator, is also liable to punishment. The law recognizes two classes of accessories, those before the fact and those after the fact. The latter consist of per- sons who assist the criminal to escape, or who willingly render him any assistance to thwart the ends of justice after the act has been committed. The power to arrest a person com- mitting a crime is vested in any one who may see the act. If a person be only suspected of committing a crime, he can only be arrested on a warrant sworn to before a court and executed by an officer of the court. 495. Criminal and Civil Suits : Procedure Compared. The procedure in criminal and civil suits is similar in some re- spects. There are, however, marked differences, as will be noted in a careful examination of the steps in each. The parties involved are termed the plaintiff and the defendant. In a criminal case the person accused is the defendant, and the people of the state are the plaintiffs or parties bring- ing the action. In like manner, in a civil case the party bringing the suit is termed the plaintiff and the other the defendant. 496. Civil Suit. The first step in a civil case is usually a summons served by the plaintiff or his lawyer requiring the defendant to appear in person or through his lawyer at a given place, usually a court, to answer the complaint in an action. The summons may be accompanied by the com- plaint. If they are separate documents, then the complaint or charge is served on the appearance of the defendant or 364 - CIVIL GOVERNMENT his lawyer. If the latter fails to appear, then the court en- ters judgment against the defendant. If he appears, he files his answer or demurrer. If these papers, called the pleadings, agree, then the plaintiff takes judgment, as there is no need of a trial. A trial is for the purpose of ascertain- ing the facts in the case and applying the law to the facts as determined by the evidence. At the desire of either party involved, the law allows the case to be tried before a jury. In some cases the hearing is before a judge alone. In jury cases, after a jury has been impanelled, the plaintiff or his lawyer opens the case and examines witnesses to prove his assertions, each of whom is subject to a cross-examination by the other side to bring out any facts likely to be preju- dicial to the plaintiff or favorable to the defendant. The defendant's side is then presented, his witnesses are exam- ined, and then cross-examined by the opposing counsel. The case is then summed up, usually by the defendant fol- lowed by the plaintiff. The judge then instructs the jury as to the law involved, and the jury retire to deliberate on the case. When they return they render through their chair- man (one of their number chosen by them) a decision called a verdict. The defeated party usually pays the costs of bring- ing the action and drops the case, or takes an appeal to a higher court. 497. Criminal Suit. The national and state constitutions contain clauses requiring the grand jury to find an indictment before a person can. be tried for an infamous or capital crime. This step may or may not be preceded by the arrest of the criminal. The law regards every man as innocent until he is proved guilty, and treats him accordingly through- out the trial. After a "true bill" indicting him has been MUNICIPAL LAW 365 found, a time is appointed for his trial, and he secures or is furnished counsel for his defence. He may secure the at- tendance of witnesses by a subpoena, which is a writ compel- ling the attendance of persons having a knowledge of the crime. Before the trial the criminal is arraigned and allowed to plead guilty or not guilty. If he pleads guilty, the .court proceeds to fix the sentence. The state of New York does not permit a man to plead guilty to an offence punishable by death. If he pleads not guilty, the state arranges for a trial, which is conducted in much the same way as in a civil suit. It is the business of the. jury to determine the guilt or inno- cence of the accused on the basis of the evidence, and the judge fixes the sentence. Library References. — Macy, Chaps. XV-XVI, XX; Macy, First Les- sons, Chap. XV; Townsend, Commercial Law, Chaps. I-IV, VII, XI-XII, XIX-XX;' Bigelow, Bills and Notes, Chaps. II-VI, X-XVI; Dole, Chaps. XV, XXXVIII; Wharton; Spalding, Encyclopedia; Clark. QUESTIONS ON THE TEXT 347. Define law, common law, statute law. 348. Distinguish between constitution an(i a statute law. 349. Define personal property. 350. Define real estate, fee simple, estate in fee. Define a guardian. 351. What is a life estate in real property? 352. What is a contract? Mention three things essential to the validity of a contract. Give an example of a contract that is not binding. 353. What is the fundamental rule of law with regard to con- tracts ? 354. Mention three exceptions to this rule. 355. Mention two classes of persons who cannot be compelled to fulfill a contract. 356. Define the following classes of contracts: (i) oral; (2) writ ten; (3) express; (4) implied. 366 CIVIL GOVERNMENT 357. What is the consideration of a contract ? Is it necessary to the validity of a contract? 358. What persons are infants in the eyes of the law? In what respect are their powers limited? 359. Describe the process of transferring the title to real estate in this state. 360. Define the statute of limitations, deed, warranty deed, dower. 361. Explain the meaning of the term " adverse possession " as applied to real estate. 362. In purchasing real estate what investigations as to title should be made, and what formalities observed? Give reasons. 363. Explain the purpose of each of the following steps in the sale of real estate: signature of conveyor's wife; acknowledgment of signature; delivery of deed to purchaser; recording of deed. 364. What is meant by recording a deed of real estate? Give two reasons why it is important that deeds be recorded. 365. Where is the record of deeds and mortgages of real estate kept? 366.' What is a mortgage? What precaution should be taken by the mortgagee to make his claim secure in case of (i) a mort- gage on land; (2) a chattel inortgage? 367. Mention three things essential to the validity of a real estate mortgage, and explain how the holder of such a mortgage may enforce his claim in default of payment. 368. Who may make a will? Define codicil. 369. What is a will? What formalities as to signature and wit- nesses are necessary to give validity to a will? Mention two ways in which a will may be revoked. 370. Define lease. What effect has the sale of leased property on the rights or liabilities of the tenant? When may a landlord evict his tenant and how must he proceed? 371. Define right of way. 372. In what manner is personal property transferred? Define lien. 373. Explain what is meant by filing a chattel mortgage. Why are such steps necessary? 374. Define partnership, agency. 375. State the fundamental rule which determines how fal a principal is bound by the acts of his agent. • 376. What is commercial paper ? Negotiable paper? MUNICIPAL LAW 367 377. How may the holder of a note payable to his order transfer it and avoid liability for its payment ? 378. What are indorsements? Mention three kinds of indorse- ments. 379. In case an indorsed note is not paid at maturity, what step is necessary to make the indorser liable? 380. Explain the importance of the words "for value received" in a promissory note. . 381. State the differences between an administrator and an ex- ecutor. 382. Define letters testamentary. 383. If no will be made, how is the property of a man divided among his widow and children ? 384. Define slander, libel; distinguish between them. 385. State briefly the legal rights and obligations existing be- tween parent and child. 386. Define crime. What is the object of punishing crime? 387. Is lynch-law ever justifiable? Give a reason for your answer. 388. What is a felony ? Define arson. 389. Define burglary, robbery. 390. Define perjury; forgery; usury. 391. Distinguish between (i) murder and manslaughter; (2) larceny and robbery. How is each punishable ? 392. Resolved: That capital punishment be abolished. Debate this question. 393. Resolved: That the fines system tends to unequalize justice, and should, therefore, be abandoned. 394. A person is arrested, charged with larceny; mention two rights possessed by the prisoner and give the successive steps that will result in his conviction or acquittal. 395. What is a warrant; a subpoena? 396. Define bail. Mention an offence that is not bailable. 397. What is meant by indictment; conviction; acquittal? 398. Give the smallest and the largest number of which a grand jury may be composed. What are the duties of a grand jury? 399. Tell how a grand jury is drawn. 400. Distinguish between a grand and a petit jury as to (i) number of members; (2) duties; (3) mode of conducting business. 401. Describe the proceedings in an ordinary civil case. 368 CIVIL GOVERNMENT 402. Describe the different steps in the process of collecting a debt by a suit at law. 403. A claims that B owes him $500 and refuses to pay it; de scribe the legal procedure necessary to collect the debt. 404. Define summons. By the service of what papers is a suit at law begun? 405. What is a plaintiff? What is a defendant? 406. What is an oath? Defihe affirmation. APPENDIX ARTICLES OF CONFEDERATION Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Dela- ware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. Article I. — The style of this Confederacy shall be, "The United States of America." Article II. — Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled. Article III. — The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and gen- eral welfare, binding themselves to assist each other against all force offered to, or attacTcs made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever. Article IV. — - The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States ; and the people of each State shall have free ingress and egress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively ; provided that such restrictions shall not ii CIVIL GOVERNMENT extend so far as to prevent the removal of property imported into any State to any other State of which the owner is an inhab- itant ; provided also, that no imposition, duties, or restriction shall be laid by any State on the property of the United States or either of them. If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State shall flee from justice and be found in any of the United States, he shall, upon demand of the governor or executive power of the State from which he fled, be delivered up and removed to, -the State having jurisdiction of his offense. Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State. Article V. — For the more convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the Legislature of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year. No State shall be represented in Congress by less than two, nor by more than seven members ; and no person shall be capable of being a delegate for more than three years in any term of six years ; nor shall any person, being a delegate, be capable of holding any ofBce under the United States for which he, or another for his benefit, receives any salary, fees, or emoluments of any kind. Each State shall maintain its own delegates in any meeting of the States and while they act as members of the Committee of the States. In determining questions in the United States, in Congress assembled, each State shall have one vote. Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress ; and the members of Congress shall be protected in their persons from arrest and imprisonment during the time of their going to and from, and attendance on, Congress, except for treason, felony, or breach of the peace. ARTICLES OF CONFEDERATION iil Article VI. — No State, without the consent of the United States, in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agree- ment, alliance, or treaty with any king, prince, or state ; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state ; nor shall the United States, in Congress assembled, or any of them, grant any title of nobility. No two or more States shall enter into any treaty, confeder- ation, or alliance whatever between them, without the consent of the United States, in Congress assembled, specifying accu- rately the purposes for which the same is to be entered into, and how long it shall continue. No State shall lay any imposts or duties which 'may interfere with any stipulations in treaties entered into by the United States, in Congress assembled, with any king, prince, or state, in pursu- ance of any treaties already proposed by Congress to the courts of France and Spain. No vessels of war shall be kept up in time of peace by any State, except such number only as shall be deemed necessary by the United States, in Congress assembled, for the defense of such State or its trade ; nor shall any body of forces be kept up by any State in time of peace, except such number only as, in the judgment of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State ; but every State shall always keep up a well- regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use in public stores a due number of field pieces and tents, and a proper quantity of arms, ammunition, and camp equipages. No State shall engage in any war without the consent of the United States, in Congress assembled, unless such State be actu- ally invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a iv CIVIL GOVERNMENT delay, till the United States, in Congress assembled, can be con- sulted ; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States, in Congress assembled, and then only against the kingdom or state, and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States, in Con- gress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States, in Congress assembled shall determine otherwise. Article VII. — When land forces are raised by any State for the common defense, all ofificers of or under the rank of Colonel shall be appointed by the Legislature of each State respectively by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment. Article VIII. — All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States, in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted to, or surveyed for, any person, as such land and the buildings and improvements thereon shall be estimated, according to such mode as the United States, in Congress assem- bled, shall, from time to time, direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the Legislatures of the several States, within the time agreed upon by the United States, in Congress assembled. Article IX. — The United States, in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the Vlth article ; of sending and receiving ambassadors ; entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on ARTICLES OF CONFEDERATION v foreigners as their own people are subjected to, or from prohib- iting the exportation or importation of any species of goods or commodities whatever ; of establishing rules for deciding, in all cases, what captures on land and water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated ; of granting letters of marque and reprisal in times of peace ; appointing courts for the trial of piracies and felonies committed on the high seas ; and establishing courts for receiving and determining finally appeals in all cases of captures ; provided that no member of Congress shall be appointed a judge of any of the said courts. The United States, in Congress assembled, shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction, or any other cause whatever ; which author- ity shall always be exercised in the manner following : Whenever the legislative or executive authority, or lawful agent of any State in controversy with another, shall present a petition to Congress, stating the matter in question, and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint, by joint consent, commis- sioners or judges to constitute a court for hearing and determining the matter in question ; but if they cannot agree. Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thir- teen ; and from that number not less than seven nor more than nine names, as Congress shall direct, shall, in the presence of Con- gress, be drawn out by lot; and the persons whose names shrll be so drawn, or any five of them, shall be commissioners or judges to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the deter- mination ; and if either party shall neglect to attend at the day appointed, without showing reasons which Congress shall judge vi CIVIL GOVERNMENT sufiScient, or, being present, shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the secretary of Congress shall strike in behalf of such party absent or refusing ; and the judgment and sentence of the court to be appointed in the manner before prescribed, shall be final and conclusive ; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sen- tence or judgment, which shall in like manner be final and deci- sive ; the judgment or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress for the security of the parties concerned ; provided that every commissioner, before he sits in judgment, shall take an oath to be administered by one of the judges of the supreme or superior court of the State where the cause shall be tried, "well and truly to hear and determine the matter in question according to the best of his judgment, without favor, affection, or hope of reward." Provided, also, that no State shall be deprived of territory for the benefit of the United States. All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdictions, as they may respect such lands, and the States which passed such grants, are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settle- ment of jurisdiction, shall, on the petition of either party to the Congress of the United States, be finally determined, as near as may be, in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States. The United States, in Congress assembled, shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States ; fixing the standard of weights and measures throughout the United States ; regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State, within its own limits, be not infringed or violated ; establishing and regulating ARTICLES OF CONFEDERATION vii post-offices from one State to another, throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office ; appointing all officers of the land forces in the service of the United States, excepting regimental officers ; appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States ; making rules for the government and regulation of the said land and naval forces, and directing their operations. The United States, in Congress assembled, shall have authority to appoint a committee to sit in the recess of Congress, to be denominated " A Committee of the States," and to consist of one delegate from each State ; and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction ; to appoint one of their number to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years ; to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses ; to borrow money or emit bills on the credit of the United States, transmitting every half year to the respective States an account of the sums of money so borrowed or emitted ; to build and equip a navy ; to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State, which requisition shall be binding ; and thereupon the Legislature of each State shall appoint the regimental officers, raise the men, and clothe, arm, and equip them in a soldier-like manner, at the expense of the United States ; and the officers and men so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on by the United States, in Congress assembled ; but if the United States, in Congress assem- bled, shall, on consideration of circumstances, judge proper that any State should not raise men, or should raise a smaller number than its quota, and that any other State should raise a greater number of men than the quota thereof, such extra number shall viii CIVIL GOVERNMENT be raised, officered, clothed, armed, and equipped in the same manner as the quota of such State, unless the Legislature of such State shall judge that such extra number cannot be safely spared out of the same, in which case they shall raise, officer, clothe, arm, and equip as many of such extra number as they judge can be safely spared, and the officers and men so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on by the United States, in Congress assembled. The United States, in Congress assembled, shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regu- late the value thereof, nor ascertain the sums and expenses neces- sary for the defense and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander-in-chief of the army or navy, unless nine States assent to the same ; nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States, in Congress assembled. The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances, or military operations as in their judgment require secrecy ; and the yeas and nays of the delegates of each State on any question shall be entered on the journal when it is desired by any delegate ; and the delegates of a State, or any of them, at his or their request, shall be furnished with a transcript of the said journal except such parts as are above excepted, to lay before the Legislatures of the several States. Article X. — The Committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States in Congress ARTICLES OF CONFEDERATION ix assembled, by the consent of nine States, shall, from time to time, think expedient to vest them with ; provided that no power be delegated to the said Committee, for the exercise of which, by the Articles of Confederation, the voice of nine States in the Congress of the United States assembled is requisite. Article XI. — Canada, acceding to this Confederation, and joining in the measures of the United States, shall be admitted into and entitled to all the advantages of this Union ; but no other colony shall be admitted into the same, unless such admission be agreed to by nine States. Article XII. — All bills of credit emitted, moneys borrowed, and debts contracted by or under the authority of Congress before the assembling of the United States in pursuance of the present Confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States and the public faith are hereby solemnly pledged. Article XIII. — Every State shall abide by the determinations of the United States in Congress assembled on all questions which by this Confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual ; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the Legislative of every State. And whereas it hath pleased the great Governor of the world to incline the hearts of the Legislatures we respectively represent in Congress to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union know ye, that we, the undersigned delegates, by virtue of the power and authority to us given for that purpose, do, by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained. And we do further solemnly plight and engage the faith of our respective constituents, and they shall abide by the determinations of the United States in Congress assembled on all X CIVIL GOVERNMENT questions which by the said Confederation are submitted to them ; and that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual. In witness whereof we have hereunto set our hands in Congress. Done at Philadelphia in the State of Pennsylvania the ninth day of July in the year of our Lord one thousand seven hundred and seventy-eight, and in the third year of the independence of America. CONSTITUTION OF THE UNITED STATES Preamble We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. ARTICLE I.— LEGISLATIVE DEPARTMENT Section i. — Congress All legislative powers herein granted shall be vested in a Con- gress of the United States, which shall consist of a Senate and House of Representatives.^ Section 2. — House of Representatives The House of Representatives shall be composed of members chosen every second year by the people of the several States,,and the electors in each State shall have the qualifica- Electaon 01 tions requisite for electors of the most numerous branch of the State Legislature. No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen. Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, 1 The term of each Congress is two years. It assembles on the first Monday in December and " expires at noon of the fourth of March next succeeding the beginning of its second regular session, when a new Congress begins.'* xii CIVIL GOVERNMENT according to their respective numbers/ which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.^ The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every thirty thousand, but each State shall have at least one representative : and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three ; Massachusetts, eight ; Rhode Island and Providence Plantations, one ; Connecticut, five ; New York, six; New Jersey, four; Penn- sylvania, eight ; Delaware, one ; Maryland, six ; Virginia, ten ; North Carolina, five ; South Carolina, five ; and Georgia, three. When vacancies happen in the representation from any State, the executive authority ^ thereof shall issue writs of Vacancies , . . £„ , election to nil such vacancies. The House of Representatives shall choose their Speaker* and Ofacers other officers ; and shall have the sole power of Impeachment impeachment. Section 3. — Senate The Senate of the United States shall be composed of two Number senators from each State, chosen by the Legislature of Senators: thereof, for six years ; and each senator shall have '^'^'=t'°° one vote. Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the senators of the first class shall be vacated at the expiration of the second year ; of the second class, at the expiration of the fourth year; of the third class, at 1 The apportionment under the census of 1900 is one representative for every 193,291 persons. 2 The word "persons" refers to slaves. This paragraph has been amended (Amendments XIII and XIV) and is no longer in force. 8 Governor. 4 The Speaker is one of the representatives; the other officers — clerk, sergeant-at-arms, postmaster, doorkeeper, etc., — are not. CONSTITUTION OF THE UNITED STATES xiii the expiration of the sixth year, so that one-third may be chosen every second year; and if vacancies happen by resignation, or other- wise, during the recess of the Legislature of any State, the executive^ thereof may malce temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies. No person shall be a senator who shall not have attained to the ,fi f ^S® °^ thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen. The Vice-President of the United States shall be president President of of the Senate, but shall have no vote, unless they Senate be equally divided. The Senate shall choose their other officers, and also a presi- dent pro tempore, in the absence of the Vice- President, or when he shall exercise the office of President of the United States. The Senate shall have the sole power to try all impeachments : When sitting for that purpose, they shall be on oath or affirma- tion. When the President of the United States is ImBeacliment t'''6d, the Chief-Justice shall preside: and no per- son shall be convicted without the concurrence of two-thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and Judgment enjoy any office of honor, trust, or profit under the in Case of United States ; but the party convicted shall never- Conviction theless be liable and subject to indictment, trial, judgment, and punishment, according to law. Section 4. — Both Houses The times, places, and manner of holding elections for senators Manner of ^'^'^ representatives shall be prescribed in each State electing by the Legislature thereof; but the Congress may Members at any time, by law, make or alter such regulations, except as to the places of choosing senators.'^ 1 Governor. 2 This is to prevent Congress from fixing the places of meeting of the state legislatures. xiv CIVIL GOVERNMENT The Congress shall assemble at least once in every year, and Meetings of such meeting shall be on the first Monday in Decem- Congress ber, unless they shall by law appoint a different day. Section 5. — The Houses separately Each house shall be the judge of the" elections, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller Organization mj^^er may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties, as each house may provide. Each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the ^"'^° concurrence of two-thirds, expel a member. Each house shall keep a journal of its proceedings, and from time to time pubUsh the same, excepting such parts as may in their judgment require secrecy, and the yeas and jouma ^^^^ ^^ ^j^^ members of either house on any ques- tion shall, at the desire of one-fifth of those present, be entered on the journal. Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. Section 6. — Privileges and Disabilities of Members The senators and representatives shall receive a compensation ^ for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all Pay and cases, except treason, felony, and breach of the peace. Members ^^ privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same ; and for any speech or debate in either house, they shall not be questioned in any other place. 1 Five thousand dollars a year and twenty cents for every mile of travel each way from their homes at each annual session. There is also an allowance of one hundred and twenty-five dollars for stationery and newspapers. CONSTITUTION OF THE UNITED STATES xv No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, .1 ' ^™* or the emoluments whereof shall have been increased, on Members , . , . , , , ,. „ durmg such time ; and no person holding any office under the United States shall be a member of either house during his continuance in office. Section 7. — Method of passing Laws All bills for raising revenue shall originate in the House of Representatives ; but the Senate may propose or concur with amendments as on other bills. Every bill which shall have passed the House of Representa- tives and the Senate shall, before it become a law, be presented to the President of the United States; if he approve. How Bills jjg gj^^jj gj jj ^^^ j£ j^^j Yie shall return it, with become Laws ® ' ' 'j^ his objections, to that house m which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsidera- tion, two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law. Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be Resolutions, presented to the President of the United States ; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed .by two-thirds of the Senate and House of Representatives, accord- ing to the rules and limitations prescribed in the case of a bill. CIVIL GOVERNMENT Section 8. — Powers granted to Congress The Congress shall have power: To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense corre'sf ^"'^ general welfare of the United States ; but all duties, imposts, and excises shall be uniform throughout the United States; To borrow money on the credit of the United States ; To regulate commerce with foreign nations, and among the several States, and with the Indian tribes ; To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures ; To provide for the punishment of counterfeiting the securities and current coin of the United States ; To establish post-offices and post-roads ; To promote the progress of science and useful arts, by securing, for limited times, to authors and inventors the exclusive right to their respective writings and discoveries ; To constitute tribunals inferior to the Supreme Court ; To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations ; To declare war, grant letters of marque and reprisal,^ and make rules concerning captures on land and water ; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years ; To provide and maintain a navy ; To make rules for the government and regulation of the land and naval forces ; To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions. To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively 1 Letters granted by the government to private citizens in time of war, authorizing them, under certain conditions, to capture the ships of the enemy. CONSTITUTION OF THE UNITED STATES xvii the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress ; To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States, ^ and to exercise like authority over all places purchased by the consent of the Legis- lature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful build- ings ; — And To make all laws which shall be necessary and proper for car- Implied rying into execution the foregoing powers, and all Powers other powers vested by this Constitution in the gov- ernment of the United States, or in any department or officer thereof. Section 9. — Powers forbidden to the United States The migration or importation of such persons as any of the States now existing shall think proper to admit, Absolute shall not be prohibited by the Congress prior to on^Coneress *'^^ y^^^ °"^ thousand eight hundred and eight, but a tax or duty may be imposed on such impor- tation, not exceeding ten dollars for each person.^ The privilege of the writ of habeas corpus ^ shall not be sus- pended, unless when in cases of rebellion or invasion the public safety may require it. No bill of attainder * or ex-post-f acto law ^ shall be passed. No capitation or other direct tax shall be laid, unless in propor- tion to the census or enumeration hereinbefore directed to be taken. 1 The District of Columbia. 2 This refers to the foreign slave trade. " Persons " means " slaves." In 1808 Congress prohibited the importation of slaves. This clause is, of course, no longer in force. 3 An official document requiring an accused person who is in prison awaiting trial to be brought into court to inquire whether he may be legally held. 4 A special legislative act by which a person may be condemned to death or to outlawry or banishment without the opportunity of defending himself which he would have in a court of law. 5 A law relating to the punishment of acts committed before the law was passed. xviii CIVIL GOVERNMENT No tax or duty shall be laid on articles exported from any State. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another ; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another. No money shall be drawn from the treasury but in conse- quence of appropriations made by law ; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. No title of nobility shall be granted by the United States : And no person holding any office of jwofit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. Section io. — Powers forbidden to the States No State shall enter into any treaty, alliance, or confederation ; grant letters of marque and reprisal; coin money; Absolute gjjjij. ^jjjjg q£ credit; make anything but gold and Prohibitions ., . , . r T , on the States silver coin a tender in payment of debts ; pass any bill of attainder, ex-post-facto law, or law impairing the obhgation of contracts, or grant any title of nobility. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection Conditional j^^^g ^^^ ^j^g „g^ produce of all duties and imposts. Prohibitions , . , , „ . , „ , on the States '^"^ "y ^"y State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships-of-war, in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. CONSTITUTION OF THE UNITED STATES xix ARTICLE II. — EXECUTIVE DEPARTMENT Section i. — President and Vice-President The executive power shall be vested in a President of the United States of America. He shall hold his office , during the term of four years, and, together with the Vice-President, chosen for the same term, be elected, as follows : Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole num- „, ^ ber of senators and representatives to which the Electors _ , .,,.,„ State may be entitled m the Congress : but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector. [^ The electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each ; which list they shall sign and cer- Proceedings of jjf ^^^ transmit sealed to the seat of the govern- Electors and ^ r ■,•,-,■■, r, ■,- , , . , of Congress ment of the United States, directed to the president of the Senate. The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed ; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President ; and if no person have a majority, then from the five highest on the list the said house shall, in like manner, choose the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote ; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the 1 This paragraph in brackets bas been superseded by the Twelfth Amendment, XX CIVIL GOVERNMENT choice of the President, the person having the greatest number of votes of the electors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice-President.] The Congress may determine the time of choosing the electors, Time of ^"'i the day on which they shall give their votes ; choosing which day shall be the same throughout the United Electors States.i No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this 1"il.'^°f' ?° Constitution, shall be eligible to the office of Presi- of President , . , , „ ,,..,, dent; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years resident within the United States. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice-President, and the Congress may by law pro- vide for the case of removal, death, resignation, or inability, both of the President and Vice-President, declaring what officer shall then act as President ; and such officer shall act accordingly until the disability be removed, or a President shall be elected. The President shall, at stated times, receive for his services a compensation '' which shall neither be increased nor diminished during the period for which he shall have been ScLIaiv elected, and he shall not receive within that period any other emolument from the United States, or any of them. Before he enter on the execution of his office, he shall take the following oath or affirmation : — " I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States." 1 The electors are chosen on the Tuesday next after the first Monday in November, preceding the expiration of a presidential term. They vote (by Act of Congress of Feb. 3, 1887) on tha second Monday in January following for President and Vice-President. The votes are counted, and declared in Congress on the second Wednesday of the following February. 2 The President now receives fifty thousand dollars a year ; the Vice-President, eight thousand dollars. CONSTITUTION OF THE UNITED STATES xxi Section 2. — Powers of the President The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, „.,.. when called into the actual service of the United Military ....... Powers • States ; he may require the opinion, m writing, of the principal officer in each of the executive depart- Reprieves and ments, upon any subject relating to the duties of their respective offices ; and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur ; and he shall nominate, and by and with the advice and consent of the Senate shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise pro- ments vided for, and which shall be established by law : but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. Fill Vacancies Section 3. — Duties of the President He shall from time to time give to the Congress information! of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient ; he may, on extraordinary occasions, con- vene both houses, or either of them, and in case of disagreement 1 The President gives this information by sending a message to Congress at the opening of each session. Washington and John Adams read their messages in person to Congress. Jefferson, however, sent a written message to Congress by his private secretary, and this custom has since been followed. xxii CIVIL GOVERNMENT . between them with respect to the time of adjournment, he may adjourn them to such time as he shall think Convene proper; he shall receive ambassadors and other public ministers ; he shall take care that the laws be faithfully executed, and' shall commission all the officers of the United States. Section 4. — Impeachment The President, Vice-President, and all civil officers of the United States, shall be removed from office on Removal of impeachment for, and conviction of, treason, brib- Offlcers ^ ,,.,'. , ■ J • ery, or other high crimes and misdemeanors. ARTICLE III. — JUDICIAL DEPARTMENT Section i. — United States Courts The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The established judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation 1 which shall not be diminished during their con- tinuance in office. Section 2. — Jurisdiction of United States Courts The judicial power shall extend to all cases, in law and equity, , arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under Federal jjjgjj. authority ; — to all cases affecting ambassa- General '^°'"^' ot'^sr public ministers, and consuls ; — to all cases of admiralty and maritime jurisdiction ; — to controversies to which the United States shall be a party ; — to controversies between two or more States; — -between a State and citizens of another State ;^ — between citizens of different 1 The chief justice of the Supreme Court receives ten thousand five hundred dollars a year ; the associate justices, ten thousand dollars. 2 But compare the Eleventh Amendment. CONSTITUTION OF THE UNITED STATES xxiii States ; — between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens or subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all other uprem cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury ; and such trial shall be held in the State where the said crimes shall have been committed : but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. Section 3. — Treason Treason against the United States shall consist only in levying Treason war against them, or in adhering to their enemies, defined giving them aid and comfort. No person shall be convicted of treason unless on the testi- mony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted. ARTICLE IV. — RELATIONS OF THE STATES TO EACH OTHER Section i. — Official Acts Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. CIVIL GOVERNMENT Section 2. — Privileges of Citizens The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in Fugitives another State, shall, on demand of the executive authority of the State from which he fled, be deliv- ered up, to be removed to the State having jurisdiction of the crime. No person^ held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence Fugitive ^£ any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. Section 3. — New States and Territories New States may be admitted by the Congress into this Union ; but no new State shall be formed or erected within the jurisdic- tion of any other State ; nor any State be formed f "J^^"" by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have power to dispose of and make all needful rules and regulations respecting the terri- Terrltory ^ ^j. Qthgr property belonging to the United and Property of „/^ , ''..^ / ^,. ° ^^.^ ^. , „ , Dnited States States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. Section 4. — Protection of the States The United States shall guarantee to every State in this Union a republican form of goveriiment, and shall protect each of them against invasion, and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence. 1 " Person " here includes slave. This was the basis of the Fugitive Slave Law. It is now superseded by the Thirteenth Amendment. CONSTITUTION OF THE UNITED STATES xxv ARTICLE v. — AMENDMENTS The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two-thirds "^ _ of the several States, shall call a convention for proposed . ' proposmg amendments, which, m either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by °T1 the Congress ; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner afEect the first and fourth clauses in the ninth section of the first article ; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. ARTICLE VI. — GENERAL PROVISIONS All debts contracted, and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the confederation. This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the Constitatfon* United States, shall be the supreme law of the land ; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. The senators and representatives before mentioned, and the members of the several State Legislatures, and all executive and Official Oath judicial ofiicers, both of the United States and of the several States, shall be bound by oath or aiflSrma- Eeligious Test ^^^ ^^ support this Constitution ; but no religious test shall ever be required as a qualification to any office or public trust under the United States. XXVI CIVIL GOVERNMENT ARTICLE VII. — RATIFICATION OF THE CONSTITUTION The ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same. Done in convention, by the unanimous consent of the States present, the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, and of the independence of ^the United States of America the twelfth. In witness whereof, we have hereunto subscribed our names.^ GEORGE WASHINGTON, Fresideftij and Deputy from Virginia. NEW HAMPSHIRE John Langdon Nicholas Oilman MASSACHUSETTS Nathaniel Gorham RuFUS King CONNECTICUT William Samuel Johnson Roger Sherman NEW YORK Alexander Hamilton NEW JERSEY William Livingston David Brearley William Paterson Jonathan Dayton PENNSYLVANIA Benjamin Franklin Thomas Mifflin Robert Morris George Clymer Thomas Fitzsimons Jared Ingersoll James Wilson Gouverneur Morris DELAWARE George Read Gunning Bedford, Jr. John Dickinson Richard Bassett Jacob Broom MARYLAND James M'Henry Daniel of St. Thomas Jenifer Daniel Carroll VIRGINIA John Blair James Madison, Jr. NORTH CAROLINA William Blount Richard Dobbs Spaight Hugh Williamson SOUTH CAROLINA John Rutledgh Charles C. Pinckney Charles Pinckney Pierce Butler GEORGIA William Few Abraham Baldwin Attest: WILLIAM JACKSON, Secretary. 1 There were sixty-five delegates chosen to the convention *. ten did not attend ; sixteen declined or failed to sign ; thirty-nine signed. Rhode Island sent no delegates. CONSTITUTION OF THE UNITED STATES xxvii AMENDMENTS Article I.^ — Congress shall make no law respecting an Religion establishment of religion, or prohibiting the free Speech, Press, exercise thereof ; or abridging the freedom of Assembly, speech, or of the press ; or the right of the people Petition peaceably to assemble, and to petition the govern- ment for redress of grievances. Article II. — A well-regulated militia being necessary to the . security of a free State the right of the people to keep and bear arms shall not be infringed. Article III. — No soldier shall, in time of p'eace, be quar- tered in any house, without the consent of the Soldiers • ,.■ c i. ^ • ^ i. owner; nor in time of war but m a manner to be prescribed by law. Article IV. — The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants Searches' shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Article V. — No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indict- ment of a grand jury, except in cases arising in the •j/™""*,. land or naval forces, or in the militia, when in Prosecutions ' ' actual service in time of war and public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ; nor shall be compelled in any criminal case to be a witness against himself, nor to be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use, without just compensation. Article VI. — In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury 1 These amendments were proposed by Congress and ratified by the Legis- latures of the several States, pursuant to the fifth article of the Constitution. The first ten were offered in 1789 and adopted before the close of 1791. They were for the most part the work of Madison. They are frequently called the Bill of Rights, as their purpose is to guard more efficiently the rights of the people and of the states. xxviii CIVIL GOVERNMENT of the State and district wherein the crime shall have been com- mitted, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusa- tion i to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Article VII. — In suits at common law, where the value in controversy shall exceed twenty dollars, the right Suits at q£ j^j^j jjy jjjfy gi^g^ij jjg prescrvcd, and no fact La^"" t"^*^ ^y ^ i'"'y ^^^^^ ^^ otherwise reexamined in any court of the United States than according to the rules of common law. Article VIII. — Excessive bail shall not be required, nor Bail, excessive fines imposed, nor cruel and unusual Punishments punishments inflicted. Article IX. — The enumeration in the Constitution of cer- tain rights shall not be construed to deny or dis- Eeserved parage others retained by the people. Powers Article X. — The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Article XI. i — The judicial power of the United States shall Judicial not be construed to extend to any suit in law or Power equity, commenced or prosecuted against any of granted ^jig United States by citizens of another State, or by citizens or subjects of any foreign state. Article XII.'* — The electors shall meet in their respective States, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves ; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President ; and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-Presi- dent, and of the number of votes for each, which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the president of the Senate; — 1 Proposed in 1794 ; adopted in 1798. 2 Adopted in 1804. CONSTITUTION OF THE UNITED STATES xxix the president of the Senate shall, In the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted ; — the person having the greatest number of votes for President, shall be the Presi- Method ol jg^j^ jf gy^jj number be a majority of the whole President and number of electors appointed; and if no person Vice-President have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choos- ing the President, the votes shall be taken by States, the repre- sentation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of electors appointed ; and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President ; a quorum for the pur- pose shall consist of two-thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. Article XIII.-' Section i. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof b r^hed *^^ party shall have been duly convicted, shall exist within the United States, or any place sub- ject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. Article XIV.^ — Section i. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are 1 Adopted in 1865. 2 Adopted in 1S68. XXX CIVIL GOVERNMENT citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of Negroes made j^^ United States ; nor shall any State deprive any Citizens • 1 J person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, representatives in Congress, the executive or judicial offi- cers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Sections. No person shall be a senator or representative in Congress, or elector of President or Vice-President, or hold any office, civil or military, under the United States, or under any State, who having previously taken an oath as a member of Con- gress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each house, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pen- sions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave ; but all such debts, obligations, and claims shall be held illegal and void. CONSTITUTION OF THE UNITED STATES xxxi Section s. Congress shall have power to enforce, by appro- priate legislation, the provisions of this article. Article XV.^ — Section i. The rights of citizens of the Negroes United States to vote shall not be denied or made Voters abridged by the United States, or by any State, on account of race, color, or previous condition of servitude. Section 3. Congress shall have power to enforce this article by a.ppropriate legislation. 1 Adopted in 1870. INDEX ABSOLtFTE Monarchy, 30. Accessories, 363. Administrator, 359. Admiralty jurisdiction, 221, 222. Admission of states to union, 231— 232. Agency, 354. Agriculture, department of, 214. Albany congress, S7~S9- Aldermen, board of, 296. Alien, defined, 139. Alien and sedition acts, 315. Amendment, of articles of confed- eration, 69, 70; of federal consti- tution, 250-251; of state constitu- tions, 267-268. Amendments, XlVth, 139, 249, 252- 253; Xllth, 185; Xlth, 223; 1st -Xth, 243-248; Xlllth, 252; class- ified, 251-252; XVth, 253-254. Anarchists, defined, 14; excluded from U. S., 129. Anarchy, impracticability of, 14-15. Annapolis convention, 75-76. Antifederalists, views of, 85-86; his- tory of, 309-310. Anti-trust law, federal, 131. Appointing power of president, 195- 196; of senate, 150-151. Apportionment and collection of - taxes, 282-283. Appurtenances, 351-352. Arbitration, international, 333. Aristocracy, 23, 26. Aristotle, his classification of gov- ernments, 23-24. Armies of Europe, 135. Army, U. S., regular, 134-135- Articles of confederation, drafting and adoption of, 65-66; ratifica- tion of, 66-67; provisions of, 67- 6g; defects of, 69-70; state of gov- ernment under, 72-74; textof, i-x. Aryan peoples, 11. Assembly, right of peaceable, 245. Assessment of taxes, 282. Assignment by tenant, 351. Attainder, bills of, 154. Attorney-general, federal, 204, 208- 209. Australian system, 27r. Authority, conflicts of between state and nation, 240-241. Bail, excessive, 247. Balance of power, 334. Bank, U. S., question of, 314. Bankruptcy laws, federal, 131-132. Belligerents, 335. Bigamy, 362. Bill of attainder, 154. Bill of exchange, 355, 356. Bill of rights, federal, 243-244. Bills of credit, 236. Bills, legislative, revenue bills in the house of representatives, 147-148; stages of, 161-162; reporting of, 166-167; number of in congress, 174-175- Blockade, 338-339. Bond, government, nature of, 124. Borrowing, methods of, 124. Bounties, land, 211-212. Bryce, quoted, 95-96, 102-103, i97' 198. Bureau, of education, 212; pension, 212; patent, 213; of Indian affairs, 213- TTT-V IXDEX C^f.~"x-r -C b^cis oc rg-rcgsg^ntr- Cj=-rrit"~ir ir s^ aft oi-ir, ^~ i- C&«Kse^ esdItesHsav. ra:^ O^-carsss^ ASuutjw 5 — 5^^ Crr~^ c->crs. isieri^ ^-?r; sck^. ss'-.-vcsi. toMMMafsaJI, ct-Cix, Cbe% SacaatiaKa^ i>. r-5: ^ciarers»T^.i:j.:^f c«iaas»£9'. Cteirirx~e. : r>. ; >-; wjcr pif^nsrs.. -^l;— 1 5:r; I>^■^rtK■ fc- toners al iscsss. ij> — ^;5t; ~'rrri- Crci£. iir. ti:i-cs agw*. t5:r-rj;; r.x-:i>.-v5s ol C-~Ct;« ey?^..-tri^ ri£;.:n; .-c. : >--: >c- Sirf ir* ^>^---'^; ^-erras; eie«w»~<; im->;-rs. j;--ir : rcrccssrirr c.t- >« -rr.. ; tones a*. 5l-5r- ~ Cccscir-;x-c, «l(^iBK4. ;5- L3yd z^rd-c-rdVriLrxTjr^^ C^ir:?c:r..;':Srir... l\ >.- c^i::"'rv. Indiivcl taxes, ui-i.'.'. Individual rights, how secured, 16; subjecl to change, 17. Indorsement, ,557 ,158. Intercourse, ,5,^0, Interior, dcparlmenl of, 210-213. Internal revenue, 1.1 J -1J3. International arbitration, ,^i?. International law, delinilion and origin, ,^('-337; compared with nnmifipal, 327-538. Interstate commerce, control of, i.'O- 130; intei'slate commerce act and •commission, 130-1,?!. Intervention, 340-341. Intestacy, 350. Invasion, protection against guaran- teed, 333. TUDQES, federal, 220-221. Judicial power of senate, 151-152. Judiciary, federal, need of, 219; de- fects of, 228-2 .jcj; excellences of, 229; see also courts, federal; state, 279-28:; municipal, 300. Jurisdiction, of federal courts, 221- 2."j; of stiile courts, 279-280; Cl- ient of a state's, 3:^0-330. Jury, trial by, ^4(1. Justice, department of, 208-209. Justice of peace, 279. KiNsiiii' theory of government, 11- I.AND, surveys, system of, 311; boun- ties, JH-31J; grants to states, jii- 213; Ki-ants to indiviiluals, 212. Landlord and tenant, 350-351. Larceny, 3(13. Law, of nature, 10; municipal, 3.14; common, 345; statute, 345; civil, 345; criminal, 345; inlernational, .vf international hnv. Laws, naturali/.ation, 139. Lease, 350. '■'•Riu-y, 350. Legal tender acts, 134. Legislation, methods of, 160-161. Legislature, municipal, 298-300; II. S., .\ri' congress, U. S. Legislatures, state, J72-J75. Lettei-s of marque and reprisal, 137- 13S. Libel and slander, 350. Lien, law of, 353-354. Lieutenant-governor, 274, 277-37S. , Library references, origin and na- ture of government, 31; forms of go\'ernment, 37; colonial gtivern- ment, 53-53; attempts at union, 6.\; articles of confederation, 70; formation ami adoption of consti- tution, .'^7; origin and nature of constitution, 96; legislative de- partment, 117; legislative depart- ment, powers and limitations, 155; xxxvm IMM X »^(. *"; ewuuw vU^jMvttuout, «\iswU,«\<\H»s (><\vvis.i\v(\s. .-v^; vm- j;\>\vnuuoi\ls, .s^o; Used jivnvm law, iO^, \4>HvM>S V1(S»U VAVHJJIVSS, \\.' >\\; VXmW st,\tvs. .' ;7, Loco) s^nvnmioiU, v\ilik(\Jat 4v 51; liv>n. ;■; -S, M.iUHUv. dotiiKsl, .-;•.■. ManHU- omi ix-(>ris,»l, lodv-i-s »>f, i^i;- M,ii>ihi>ls, I', S„ .vj .-.'S, M.»tu,n\ l>,il fi»n\iK, ».', Mi>vv>f, -vr> .-vj'. I w 11^;; ^U-i,iU(H(i>'s of. I v^; ^lur i\ctor of, 150 irv, M<\-is<»>>v, v>f |>iv,nji\>|>citv, i_;,*x, Militio, i,!5 i_iO, , Ministi'iint f\n\>tioi\s vif ^ivvn\n»ont, l,'^ 10. Minor, _;,|7, MiM'il svsttin of Uniil mivi'unni'iit, 5,-, JOO .'01, Moiijinliv, ;il>solntt', ,\tv~nsi\v« of. Mu\vn»(ucn«,vU»\Wv>Uitivv~vto(Mtin>cut., 4\)^ ■ 4v>r; ;uiin>ni,-^Urt(>vv vlt'|<«Hn\«MU«> -\\" \'.'^, ivgis-irtwuv, .\j^ ^^v; ju. Uiviiin, ,«\>Kk'tns of, l nu)tnv«n,-«jtx-nH-ul., vjh>,vv\*» MunKi|M) ow no(>ilu(>, ^{ys^ _'n-v> , >-».>, N,iUon;it (vjHiMioiins, ^<>p, X,nion,il s\nv'ix\«lliof inl'S ,v>i \).', Nc>tiu,\U-.,itiou, ilonnvsl, i^iS; li(\\s, ^^^>, l\o\\ svMii\\l, 1 ;o; \Wuii-\l to rhiiu\>vV, 140, NillniV, li>\V of, lv^, Nei\ij;,uion Kiw^, i ■,*<, Niivv, f, 8., (50 >,«^ Uo|ViHtmoul kv(, .SV -MO. NogotialvK- |M|HM', li>\v xMna'rni(\ji. ^vv\ «,\o: v>w of, iso ,<_vr, NonlKils, iighls i\nvVvlniii-s of, _<,w ■ Now l''n);li\nvl iMnfrvloinov, vO 5J, New Ki\jiliUHl, amnlv in, so v"i, Ninlli !inu-niln\t'Ut, .'^H, Nvitos, tiv«svuy, niilinv vif, >.>4, OniKoi' of )j\i\oiniiu'nt, i_\ >0, *K liloii'iu V, .',(, Oligiiulw, i.\, Oulin,inu' of i ilv, joo. Oii.nin of ,>;liili", llH>om\>t aMumiin)}, o u. rw'KK, n>>K^'li I'tuxlon, liv |in'si(li'nl, vui, I'iiivnl iinil iluUI, U-jjcil U'liidous, .isij .(do. INDKX xxxix Piirish, orijjin of, .(ti; in l''.ngli>Mil, 51; in Vii'sinia, 51-5^. Vailiiuwi'iil, comiitiivil with n>ii~ gvess, 01. Pnvlios, orij>in of in U.S., 85-80; inn>ortiini'o of, _iini«ition rtml WMrk, ,(>i)- Party ainvonlions, i\ational, ,iiS- _Uo; slitto anil loail, ,i.'o-;^M. Party jjovornntont, jCu-joj, Tiirly platform, ,^jo. Tatent Innvau, Ji,(. Vntonls ami iMinrijjhts, i.|i-\.(j. Valriaivhal faniiW, lo-ii, Patrian-hy, tloiii\tHl, J5. Vayoo. 3v5-^50. Ttusiou Inirt'ati, Ji J. PtHiplt's, A\ rai\. 1 1. Porsoiial lil>i-rty ami soinrily guar- anttHxl, i.(4 j-i;. Personal \MMperty, .uf- Votil laiwny, ^^oj. Pirsicv, >_ij. PlaiuiilT, ,(0,5. Pleadings, ,ir\.(. PUir!\litv, iltiined, J7J. Tolitital rishls, 17. Polyganty, ,;tu. Torts of entry, ijS. l\vsial sorvict- of l".S., 140-141- l\v>; classes ol, ,\(o. Pn-sentntent, j.(0. I'lvsivleney, views of i\>nve(\tion avn- i-ernin)*. tjS-iSo; mialilWations fi>r, i.So-iSi; (.U'ftvls of. loS. Pivsi,Unt. Ievn» of, u^r iSj; iwligi- Uilitv of. >S>->.8j, j5S--'5o; sivlary of, is,-; metlioil of ettvtion. i."^j- 1S4; (HTOVi-s »>f, eiuin>erate«l, Jgo- lot; legislative powers, I9i-n)5; veto power, ioj-n).|; treaty n\ak.- ing power, io.(-u)5; a\>poiulin); power, ig5-U)0; juilieial power, 11)1 ; life of, ile.seriheU, 100-107; power of ivmoviil, ji;o-Jt'o; eabi- net noi^inations amlinneil, 3O0. PtwsiUentitil election by house of reptt-sentalives, 140. Pivsulential eleetoi-s, ehoiee of, iSo- 1S7; ili.seix-tionarv power of, i8; - 1S8; J57--\';S. Pivsiilential sueeession, iSo-100. Pi-esidents, character of, 107 -loS. I'lvss, fix-edoiu of, ^.(5. Pivvioiis ipiestion, lOo. Primary, importaiut- of, ,?jj-,ij^v Principal and agi-nt. 354. Private pn>perty, right of, .-47. Privattvring, 1,57, 3,(8. Pri.-e, ,5,^8. Prv>liate courts, aSo. PrvxeiUux', in impeachnxent ca.ses, 151 15 j; in civil .suit, ,(0,( ,504 ; in criminal suit, 3missory note. .^ss-.^Sf- PiMprietary ginernment. 4>-4-; lM\>pcrtv, military, 1,58; private, right of, 247; liability to captuix-, .vM'.v^'*' 1*'*' '*"*' personal, ,540; stoleni ,55,!: of wife, ,\oo-)0i, Pivtection, i>olicy of, detiiuHl, uj. Public acts, iXH-i^r^ls, etc., of states. Public debt, ivnstttuttonal \m>vis- ions auu-t-rning, j.io-J5o; Hamil- ton on, ,!i,!. P\»re democracy, ,5 1 . Ql'.\t.Hfio,vriONS for prx-sidency, >8o- 181. Questions on the text, origin and natmv of gvnermucnt. ai-."-"; foriws of gv>wrnment, .>8-,5o; a>- lonial government, 5,5; attempts at union, 04; articles of a>nfe«leni- tion, 71; formation and adoption of a>nstitulion, 87; origin and na- ture of ^institution, 06, legislative department, 117-118; jxiwers of xl INDEX legislative department, 155-157; working of legislative department, 177; executive department, 200- 201; executive department, presi- dent's assistants, 217-218; judi- cial department, 229-230; rela- tions of state to nation, 241-242; bill of rights, 248; miscellaneous provisions, 254; unwritten consti- tution, 262-263; state govern- ments, 286-287; local govern- ment, 292; municipal government, 308; American politics, 324-325; international law, 342-343; muni- cipal law, 365-368. Raiwoads, commissioner of, 213. Ratification of constitution, 84-86; provided for, 250. Real and personal property, estates in, 346. Recognition, by speaker, 172-173; of states, 328-329. Recording of deed, etc., 349. Reeligibility of president, 181-182, 258-259. Reform, municipal, 307. Registration, of vessels, 128-129; of voters, 270. Religion, freedom of, 244-245. Removal, president's power of, 259- 260. Representation, principle of, 32. Representative democracy, 31. Representatives, qualifications, 100- loi; term, 101-103; election of, 103; at-large, 104. Representatives, house of, see house of representatives. Reprisal, 334. Republican form of state govern- ments, 232-233. Republican party, rise of, 317. Requisition, 235. Reserved powers, 239. Restraints of government, 12-13. Retorsion, 334. Revenue bills in house of represen- tatives, 147-148. Revenue, internal, defined, 122-123. Revolution, when justified, 16. Riders on bills, 193. Right of private property, 247. Rights, individual, how secured, 16; subject to change, 17; classifica- tion of, 17; political, 17; civil, 17- 18. Robbery, 362. Royal province, 42-43. Salary of president, 182. Sale, law of, 352-353. Schools, local administnition of, 285. See also education. Search, right of, 247, 340. Secession, right of, 93. Second continental congress, 63-64. Senate, origin and character of, 107- 109; officers of, 112; executive powers of, 149-151; executive ses- sion of, 150; judicial power of, 151-152; chamber of, 158; con- firmation of cabinet nominations, 260. Senators, election of, 110-112. Shire, English, 48-49. Siege, 337. Silver, free coinage of, 317. Slander and libel, 359. Slave trade, 83, 84. Slavery question, 316-317. Societies, primitive, 8. Society, defined, 7-8. Sovereignty, defined, 27, 328; doc- trine of national, 238. Speaker, power of, 171-173. Speech, freedom of, 245. Stamp act congress, 59-60. State, defined, 8-9; origin of, 9-1 1; ancient city, 25; unitary, 27; fed- eral, 28-29. Stale (of U. S.), government, early, 44-45; constitutions, origin of, 265-266; constitutions, amend- ment of, 267-268; constitutions, contents of, 268-269; govern- ments, described, 269; elections, 270-271; legislatures, 272-274; ex- ecutive officers of, 278-279; courts, 279-281; finances, 281; taxes, 281- 282; government, importance of, 285-286. INDEX xU States, modem, classification of, 27- 30- States (of U. S.), formation of original thirteen, 43-44; relations to fed- eral government, 92-93; admission to union, 231—232; guarantees to, 232-234; obligations toward each other, 234-235; limitations upon, 235-238; diversities and uniformi- ties of, 264-265; suffrage in, 270. Statute law, defined, 345. Subpoena, 365. Succession, presidential, 189-190. Suffrage in nation, 99-100; in states, 270. Summons, 363. Supreme court, state, 280. Supreme court, U. S. organization of, 225; jurisdiction of, 225; ses- sions of, 225-226. Survey of public lands, 211; geo- ogical, 213. Tariff, defined, 121-122. Taxes, classification of, 119— 120; in- direct, 121-122; federal, collection of, 123; state, 281-282; state, as- sessment of, 282; state, apportion- ment and collection of 282-283. Taxing power, necessity for, 19-20; of congress, 119; restrictions upon, 283. Tenant, rights and duties of, 350- 351- Term of president, 181-182. Territories, government of, 143-146. Territory, Northwest, 143, 210, 231; acquisition of by U. S., 210-211. Testator, 350. Theocracy, defined, 25—26. Theories concerning origin of state, 9-11. Thirteenth amendment, 252. Title, transfer of, 353. Titles of nobility, 154-155. Tonnage, 237. Town, origin of, 45-46; in early New England, 47; system of local gov- ernment, 288-289. Township-county system of local government, 290-291. Transfer of cases from state to fed- eral courts, 223—224. Treason, 224-225. Treasury, department of, 206-207. Treasury notes, nature of, 124. Treaties, how made, 194-195; de- fined, 332-333. Tribal government, 25. Tribe, formation of, 12. Truce, 336-337. Trusts, defined, 131; regulation of, 131- Twelfth amendment, 185. Union, relation to states, 92-93. Unitary state, 27. United colonies of New England, 56— S7- United States bank, question of, 314. Unwritten constitution. 34-35, 255- 256. Vacancies in congress, 105. Verdict, 364. Veto, of president, 192-194; of gov- ernor, 277. Vice-president, 198-199. ■ Village government of, 300. Virginia county in, 50. Votes, canvassing of, 271—272. Voting, methods of in congress, 168- 169; Australian system, 271; ille- gal, 271. War, declaration of, 133-134; de- fined, 334; just causes of, 334; effect of on subjects, 335. War department, 207-208. War powers of congress, 132-136. Warfare, forbidden methods of, 336; with barbarous nations, 337. Warrant, 363. Washington, in constitutional con- vention, 77. Weights and measures, 132. Whig party, 316. Will, 350, 359. CIVICS OF NEW YORK STATE BY FRANK DAVID BOYNTON Superintendent of Schools, Ithaca, New York GINN & COMPANY BOSTON • NEW YORK ■ CHICAGO • LONDON J) Copyright, 1904, by FRANK DAVID BOYNTON ALL RIGHTS RESERVED GINN & COMPANY ■ PRO- PRIETORS . BOSTON • U.S.A. PREFACE This little book was prepared as a supplement to the author's School Civics, and its close dependence upon that book will be at once obvious. It excludes so far as possible all discussion included in the larger work, assum- ing that the student will have familiarized himself with such matters before taking up the special study of New York state. At the same time it is believed that the ground is completely covered and that the treatment is sufficiently full so that the book will serve as a satisfactory supplement to any good secondary school text-book on civics. IxpACA, N.Y. CONTENTS Bibliography vi I. Development oj? the Constitution . . . . i II. The Bill or Rights „ 8 III. Suffrage: How and when exercised . . , 12 IV. Legislative Department . 19 V. The Governor and Other Executives , , 26 VI. Judicial Department , 36 VII. Restriction on State's Action ...... 41 VIII. Education and the State 44 IX. Miscellaneous State Duties 51 X. Local Government . 54 XL The Constitution of New York ..... 69 XII. Index 119 BIBLIOGRAPHY Fiske, John, Dutch and Quaker Colonies in America. 2 v. Houghton, Mifflin & Co., Boston, 1902. Roberts, E. H., New York: The Planting and Growth of the Empire State. 2 V. Houghton, Mifflin & Co., Boston, 1899. Anderson, J. J. and Flick, A. C. Short History of the State of New York. Maynard, Merrill & Co., New York, 1902. Murhn, E. L. The New York Red Book. J. B. Lyon, Albany. Latest edition. Published annually. Secretary of State. Legislative Manual. Brandow Printing Co., Albany. Latest edition. Published annually. State Librarian. New York at Gettysburg. 3 v. Albany, 1902. Roberts, J. A. New York in the Revolution. Albany, 1898. Revised Statutes of the State of New York. Latest edition. Election Laws of the State of New York. Latest edition. Albany. An Australian Ballot and, if possible, a small sample section of a voting machine. Consolidated School Law of the State of New York. Latest edition. Albany. Boynton, F. D. School Civics. Ginn & Company, Boston and New York, 1904. CIVICS OF NEW YORK STATE CHAPTER I DEVELOPMENT OF THE CONSTITUTION 1. Introduction. The boys and girls of the Empire State may justly be proud of their birthright. In'all the country's history New York state has borne an important part. In the war for independence it fell to the lot of this state to have the pivotal battle fought upon its soil. Creasy says that the battle of Saratoga was one of the fifteen battles that have changed the destiny of the world. In this war New York state furnished 43,645' men, standing second only to Massachusetts in the number furnished; and during the civil war it sent, for the defence of the union, 448,850 men, a far larger number than was furnished by any other state. At Gettysburg, the pivotal battle- of the civil war, "more than one-fourth of the Union army marched there under the flag of the State of New York; more than one-fourth of those who fell there followed those colors to their graves." ^ Not only historically, however, is New York state great. Its vast wealth, great natural resources, diversified industries, and dense population (7,268,012 in 1900) make it unquestionably the most important state in the union. In point of popula- tion it outranks the Netherlands, European Turkey, Portu- gal, Sweden, Belgium, Switzerland, Denmark, Canada and ' Roberts, J. A., New York in the Revolution, pp. 7-15. 2 jsfew York at Gettysburg, Vol. I, p. 7. Albany, 1902. 2 CIVICS OF NEW YORK STATE a majority of the South American repubhcs. In 1903 it expended upon pubUc education the enormous sum of $42,- 441,908.19. New York city is the financial, commercial and literary center as well as the largest city of the western hemisphere; while among the great cities of the world, it is second only to London. 2. Discovery: the Indians. When in 1524 Verrazano ex- plored what is now known as New York bay, he found the islands of the bay and the shores of the mainland occupied by the Algonquin Indians. In 1609, when Henry Hudson sailed up the river which now bears his name, he found its shores also possessed by the Algonquins. The rest of the territory now known as New York state, was possessed by the tribes of the Iroquois League or "Five Nations." These powerful Indian tribes, banded together in two organizations, figure largely in the history of the state. Of the two, the Iroquois are of more importance than the Algonquins. The Iroquois, or "Five Nations," included the Mohawks, Onei- das, Onondagas, Cayugas and Senecas, and were located about the waters which now bear their names. From this region, fertile in soil, abounding in game, with facihties for rapid transportation by means of natural water-ways, they were enabled with only comparatively short carries, to send their war parties down the Ohio to the Mississippi, down the Susquehanna and Delaware rivers to the bays, into the Great Lakes, through the Mohawk river into the Hudson to lakes George and Champlain, — in short, this powerful league some 17,000 strong, was able to sweep the country with its war parties north and south, east of the Mississippi. Thus New York state was the empire part of the new world long before white men visited its shores. DEVELOPMENT OF THE CONSTITUTION 3 3. A Dutch Colony : Dutch East India Company. Henry Hudson, an English navigator, had been employed by the Dutch East India Company to find a short route to the rich trading fields of Asia. In the spring of 1609, Hudson with a small crew, in the ship called the Half Moon, sailed north of Norway and Sweden, but was soon stopped by the ice. Turning westward he finally reached the coast of Maine and continued south as far as Chesapeake bay; then return- ing northward, he entered New York bay and sailed up the Hudson river, hoping that he had found the desired passage to Asia. Finding himself unable to proceed more than a Uttle distance above the present site of Albany, however, he . returned disappointed in his main quest and sailed for home to report to his employers. 4. Other Expeditions. Encouraged by Hudson's report, a company of Dutch merchants planned several trading ex- peditions. In 1614- the New Netherlands Company was formed,' and was granted a charter which gave it commer- cial control of that region of country lying "between New France and Virginia." The New Netherlands Company grew into the Dutch West India Company. 5. Dutch "West India Company. This company, besides exclusive trading rights, was given power to plant and govern colonies. Through their agent, known as director-general, the company exercised almost absolute control over the affairs of the settlers. When Peter Minuit came over as governor in 1626, a council of five was created to advise with and assist him. Governor Kieft, however, with the knowledge that he alone was held responsible for the government of the province, reduced the number of the council to two, one ' Wilson, A History of the American People, Vol. I, p. 73. 4 CIVICS OF NEW YORK STATE other person and himself; and as he had two votes to the other member's one, he was practically an autocrat. The other officers of importance were the koopman, or commissary and secretary; and the schout, or sheriff and customs collector. The government was scarcely established, however, before the people began to demand a share in its operations. Kieft was forced to make some concessions, and promised greater privileges, but this promise was not fulfilled until the arrival of Stuyvesant. In 1647 Stuyvesant yielded to the demand for popular representation in so far as to order an election by the people of eighteen of their own number, from whom he was to choose nine as advisers. Since, however, this body met only when called upon, it was but a very slight beginning toward constitutional government. The govern- ment of the colony under all of its six directors-general, or governors, was rude and harsh, in spite of the fact that the settlers coming largely from Holland, itself a repubUc, had liberal notions of political and religious liberty. These no- tions found expression in concessions wrung from the gov- ernors, in the estabUshment of churches, and in the main- tenance of schools. As early as 1633 New Amsterdam had a school teacher,' and in 1638 a school tax was levied. 6. An English Colony. England based her claim to New Netherlands mainly upon the explorations of the Cabots. In 1664 Charles II of England conveyed to his brother James, the Duke of York, a tract of land which included New Neth- erlands. The same year an Enghsh fleet entered New York bay, and Dutch rule in the colony was practically at an end. From 1664 to 1776 New Netherlands, now named ' Adam Roelandson, the first school teacher, came to New Netherland in 1633. DEVELOPMENT OF THE CONSTITUTION S New York in honor of James, Duke of York, remained an English province excepting for a brief period of about fifteen months (1673-1674), when it was again under Dutch rule, but was conveyed back to England by treaty at the close of the war with Holland. Though the temporary change of masters in 1664, which was made permanent by treaty in 1674, made the government of the province no less auto- cratic in form, it brought about a very real change in prac- tice. "The despotism of Kieft and Stuyvesant was con- tinued, only now, instead of the iron clutch, it was the stroke of velvet." When the government was formally organized in 1674, Edmund Andros came out as governor and was as- sisted by a council of ten. The latter body was not chosen by the colonists; but the appeal for popular representation was too strong to be resisted, and in 1683 Governor Dongan, who had just succeeded Andros, called together the first popular assembly in the colony under English rule. 7. The Colonial Assembly. This body, made up of the governor, his council of ten, and eighteen delegates repre- senting the people, met in October, 1683, and adopted, among other important legislative measures, a "charter of Hberties," which was confirmed by the Duke of York. This charter made many important concessions, providing among other things for the meeting of a popular assembly and grant- ing to the representatives of the people the right to lay their own taxes. This Hberality soon suffered a check, however, and in 1687,^ after the accession of the Duke of York to the throne as James II, the assembly was dissolved, not to be reestablished until after the accession of WiUiam and Mary. In 1691 Governor Sloughter was sent out to take charge of ' Roberts, E. H., Vol. I, p. 193. 6 CIVICS OF NEW YORK STATE the government of the colony. The assembly was reestab- lished, and promptly passed acts declaring the rights and privileges of the people and reaffirming the charter of Hber- ties. These acts marked the beginning of a struggle be- tween the assembly and the colonial governors that ended only with the outbreak of the revolution. On the opening of hostihties New York promptly joined the patriot cause, and on July 9, 1776, the provincial congress formally took the name of representatives of the state of New York. 8. Constitutions. New York has had four constitutions. She had existed as a state for nearly a year (from July, 1776, to April, 1777) before her first constitution was adopted by the state assembly. This first constitution, like most of the early state constitutions, was modelled somewhat closely upon that of England. The government consisted of a chief executive, of a legislature made up of two chambers, and of a system of courts. The constitution declared the people to be the only source of poUtical power, and provided for a secret ballot and for complete religious Uberty. In 182 1 this constitution was thoroughly revised and new provisions were made for new conditions. In 1846 it was again re- vised and somewhat radical changes were made. Among other things it was provided that many officers heretofore chosen by the legislature or appointed by the governor should be elected by the people. In 1866 a convention was called to revise the constitution of 1846, but the people, rejected the work of the convention with the exception of the judi- ciary article.' The constitution of 1846 remained thus al- niost unchanged until 1894, when a new revision, our present constitution, was made (see appendix). In all of these consti- ' Roberts, E. H., Vol. II, p. 569. DEVELOPMENT OF THE CONSTITUTION 7 tutions the main provisions have been substantially the same. The tendency, however, has been to give more power to the people and less to the governor and the legislature. 9. Amendment and Revision. An amendment to the con- stitutionmay be proposed in the senate and assembly, and if passed by two successive legislatures must be submitted to the people for ratification. If it receives a majority vote the amendment becomes a part of the constitution on the first day of January next following election. At the general election in 1916, and every twenty years thereafter, and at such other times as the legislature may by law direct, the question, " Shall there be a convention to revise the constitu- tion and amend the same? " shall be decided by the voters of the state. QUESTIONS ON THE TEXT 1. Describe the government of the colony of New York in the period just before the revolution. What important changes were made after separation from the mother country? 2. State two important particulars in which the constitution adopted in 1894 differs from the constitution that preceded it. 3. Mention two important amendments to the constitution passed by the constitutional convention of 1894. Discuss the im- portance of these measures. 4. How may the constitution of New York be amended ? What are the provisions of the constitution for its revision ? 5. Mention the chief points of difference between the constitu- tion of the United States and that of the state as to the manner of amendment. 6. Explain why the amendment of the constitution is made more diflScult than the repeal of a statute law. 7. Describe the process by which the last revision of the con- stitution was made. By what authority was this revision finally established ? CHAPTER II THE BILL OF RIGHTS 10. Federal and State Bills of Rights Compared. We have glanced briefly at the history of our constitution; let us now examine somewhat more fully into the character of the gov- ernment provided by it. In the federal constitution the bill of rights was an afterthought added by way of amendment at the demand of several of the states. In the New York state constitution, as in most of the state constitutions, it stands first, as a matter of primary importance. In the state governments, which touch the interests of the individ- ual so much more closely than does the federal government, such a series of guarantees is much more essential. The bill of rights of the New York state constitution, Uke that of the federal constitution, seeks to secure to the individual the fundamental ciVir rights of personal liberty, personal se- curity and private property; but it goes further and provides in much greater detail the methods by which these rights are to be secured. 11. Personal Liberty. The provisions which secure lib- erty of person and of thought are very similar to those of the United States constitution. Every citizen is privileged to express his sentiments freely, and, in case he is prosecuted for libel, may be acquitted if he can prove that the facts are as he stated and 'were published "with good motives and for justifiable ends." Full liberty of conscience is accorded to every one, although this liberty is not to be made a cloak for THE BILL OF RIGHTS 9 practices inconsistent with the peace and welfare of the state. It is expressly provided that no person on the witness stand shall be declared incompetent to testify because of any pecul- iar ideas he may entertain on religious subjects. The citi- zens of the state may also assemble peaceably, and, if they choose, petition the government without fear of interference from the authorities. 12. Personal Security, or the right to be secure in person and in reputation, is the subject of many important provi- sions. In case of arrest for any cause, the accused may claim the privilege of a writ of habeas corpus. Excessive bail and excessive fines are forbidden. With a few ex- ceptions, a person accused of serious crime can be held for trial only on indictment by a grand jury. He is, more- over, entitled to trial by a jury of his peers (equals), and may have counsel for his defence. In case he is not able to pay counsel, it must be provided for him. He cannot be compelled to witness against himself, and may confront the witnesses brought against him. Witnesses, however, may not be tmreasonably detained. If acquitted, he cannot be retried for the same offence; if found guilty, he cannot be fined excessively or be punished in a cruel or unusual man- ner. In short, no arbitrary proceedings may be employed to deprive a person of his life, liberty, or property, or any privilege he may enjoy as a citizen. The marriage relation is partially protected by a restriction on granting divorces. No divorce can be granted without the parties concerned bringing the matter before the court having jurisdiction; in other words, a divorce can be granted only by a formal judicial proceeding. Finally, in cases of injuries resulting in death, the right to recover damages is never to be abro- lO CIVICS OF NEW YORK STATE. gated, and the amount recoverable is not to be restricted by law. 13. Private Property. The rights of the state over private property are limited. If private property is taken for public use, the owner must be compensated. In cases where such compensation is not to be made by the state, a jury of not less than three men appointed by a court of record must determine the amount of money to be paid- for the property taken. Some of the provisions of the constitution dealing with property in lands grew out of conditions existing during colonial times. While the colony was still Dutch, a system of feudal tenures had been estabUshed under the patroons, as the great land-holders were called. By the con- stitution all such feudal tenures are abolished; and in order to prevent the development of a land-holding aristocracy, which might work mischief similar, to that wrought by the patroons, another provision forbids the leasing of agricul- tural lands, with the reservation of any rent or service, for a longer period than twelve years. The interference of one land-holder with another in the matter of constructing roads and ditches is the subject of two important restrictions. In case a private road is desired, the law provides for the pre- cise manner in which it shall be opened. The need for the road, as well as the amount of damage due the party whose land is involved, must be determined by a jury. The party benefited must, of course, pay any expense involved as well as compensate his neighbor. Laws of a general character only are to be made in providing for draining lands by ditches. In either case no special law may be passed to suit the convenience of any single individual or group of indi- viduals. The state recognizes the harmfulness of gambling, THE BILL OF RIGHTS li and has sought to curtail this waste of money and energy by forbidding lotteries or the sale of lottery tickets, pool-selling, book-making, or any other form of gambling. QUESTIONS ON THE TEXT 8. Give in substance the provision of the constitution in ref- erence to freedom of worship and of religious opinion. 9. Give in substance the provision of the constitution in ref- erence to disfranchisement of citizens. 10. Give in substance the provision of the constitution in refer- ence to damages for injuries causing death. 11. What is the greatest length of time for vsrhich agricultural lands may be leased ? Why is this restriction made ? 12. Give in substance the provision of the constitution in ref- erence to opening private roads. CHAPTER III SUFFRAGE : HOW AND WHEN EXERCISED 14. Who May Vote. Any male citizen at least twenty-one years of age, unconvicted of bribery oi* other infamous crime, who has been a citizen of the United States for ninety days, a resident of the state for one year, of the county for four months, and of the election district for thirty days next preceding an election, may vote for any elective ofl&cer. A duly qualified voter may vote for all ofl&cers directly chosen by the people — national, state, county, town, city. If for any reason, such as a change of residence, he loses his right to vote for any, he does for aU. Students, soldiers, sailors, travellers, etc., do not lose their right to vote because of their occupation, and may return to their homes just before any election and vote. 15. Registration. In order to prevent fraud at elections all qualified voters residing in cities and villages of 5,000 or more inhabitants are required to appear in person and regis- ter, i.e., give their names and addresses in full, These are written down in a book, each party keeping a correct copy. In rural districts registry lists are made out without requiring each voter to appear in person. For town and village elec- tions no registration is required, unless these elections fall at the time of the general elections. Party workers see to it that their members attend to registration. 16. Elective Officers and Election Districts. For election purposes the state is divided into a great number of districts 12 SUFFRAGE : HOW AND WHEN EXERCISED 13 (about 4,600 primary -districts). Sometimes these districts are created solely for election purposes; sometimes divisions already existing for other purposes are used also as election districts. Certain officers are elected by the people of the whole state, so that for this election the whole state may be said to form a single election district. These officers are the governor, Heutenant governor, comptroller, attorney gen- eral, secretary of state, treasurer, state engineer and surveyor, and judges of the court of appeals. The largest election districts within the state are the judicial districts, eight in number, for the election of supreme court justices. In addi- tion to these there are 37 congressional districts for the elec- tion of members of congress, 50 senatorial districts for the election of state senators, 150 assembly districts for the elec- tion of assemblymen, 113 school commissioner districts, and about 10,683 common school districts. Besides these there are 61 counties in the state, which are used also as election districts for the election of county officers; and these are sub- divided into towns, or into towns, villages, and cities, each with its own officers to elect. Not all these officers are voted for at any single election. 17. Time of Elections. Once each year a general election is held throughout the state on the same day, the Tuesday following the first Monday in November. At this election are chosen, whenever necessary to fill offices about to be- come vacant, state and county officers, state senators and assemblymen, judges of the supreme court and of the court of appeals, members of congress, and presidential electors. Town, city, and village elections are held separately. Town officers are chosen at town meetings, which are required by law to be held the first Tuesday in February unless the board 14 CIVICS OF NEW YORK STATE of supervisors shall change the time/ Cities of the first and second ■classes (cities of the first class have a population of more than 250,000; of the second between 50,000 and 250,- 000) are required to hold their election in the odd numbered years at the time of the general election in November, the object being to separate municipal from state and national elections. Cities of the third class (less than 50,000 in popu- lation) and villages usually elect their officers at a separate election in the spring, although some cities of the third class have secured special legislation permitting them to hold their charter elections in November. 18. Candidates : How Chosen. The candidates to be voted for at these various elections have been duly nominated by their respective parties some time before the election. In every city ward and in every town each political party has its committee whose duty it is to call a party caucus or pri- mary before each election. At these primary meetings the , party nominates its candidates for local offices, and, when necessary, chooses delegates for the county and as- sembly district conventions. Again, in each county and as- sembly district the parties have their committees, whose duty it is to call a meeting of the delegates chosen in the primaries. These delegates in convention nominate candi- dates for county and assembly district offices, and, when necessary, appoint delegates to thej congressional, senate, and state conventions. In each of these districts again there are committees whose duty it is to call the delegates for each district together, and the state committee calls the state convention. In these district conventions candidates for the state senate and for congress are nominated; while in the ' See Revised Statutes, p. 4089. SUFFRAGE: HOW AND WHEN EXERCISED 15 state convention delegates to the national convention are chosen. Finally, in the national convention,. arfe nomi- nated the candidates for the presidency and' the vice- presidency. It will be seen, therefore, that the primary is the point of first importance, inasmuch as it sets in motion a series of events resulting in the nomination of candidates for all elective offices — town, city, county, state, national. It is at the primary that the individual counts most. In a country so large as ours it is the only purely democratic meeting possible, the others being of necessity representa- tive or delegated bodies. Whatever is to be done for the cause of good government must be done in the primary. 19. The Voting : by Ballot. All officers are chosen by bal- lot or by some method of secret voting, unless the law speci- fies to the contrary. The usual methods of voting are by means of the Australian ballot or of the voting machine. The voting places or polls are in charge of local officers known as inspectors of election. Where the Australian bal- lot is used, the voter is given a single ballot, or sheet of paper, upon which are printed the names of all the candidates who have been duly nominated. These names are arranged in parallel columns according to their respective political par- ties. Each column is preceded by the name of the party, the party emblem and a circle. The voter takes this ballot to a booth (a small room). If he wishes to vote for all the candidates of his party (a straight ticket), he makes a cross with a "pencil having black lead" * in the circle at the head of his party's column. If, on the other hand, he desires to vote for candidates not named on his party ticket (i.e., to vote a split ticket), he places a cross before the name of each ' See election laws, p. 103, for 1904. i6 CIVICS OF NEW YORK STATE person for whom he wishes to vote. Finally, if he wishes to vote for candidates whose names do not appear upon any ticket, a blank column is provided for the purpose where he can write their names. When he has marked his ballot, he returns it, properly folded, to the inspector, who first tears off the stub and then deposits the voted ballot in one box, the stub in another. The stub of the ballot has the same number as the name of the voter on the poll list; the ballot itself is not numbered. When a man has voted, his name is checked off from the registration list by the poU clerks. 20. By the Machine. The method of voting by the ma- chine is very similar to that of voting by ballot. The voter enters a booth, which is a part of the machine. On one side is a series of levers, each at the top of the column of names to be voted for. In fact, the face of the machine resembles the blanket or Australian ballot with the exception of the circles at the head of the columns. If a person wishes to vote a straight ticket, he simply pulls doAvn the lever at the head of his party's column and leaves the booth. If he wishes to vote a split ticket, he pulls down any one of the levers at the top of the columns and proceeds to manipulate the Uttle indicators opposite the names so that they point to the names of the candidates who represent his choice. If he wishes to vote for candidates whose names do not appear in any column, a blank column is provided where he may write their names. By an ingenious mechanism the puUing down of one lever or one indicator locks all others, so that it is impossible to vote more than one ticket or for more than one candidate for the same office. Upon the voter's leaving the booth, the machine registers his vote and the total vote, and sets all levers for the next voter. SUFFRAGE : HOW AND WHEN EXERCISED 17 21. The Counting. All voting must cease at 5 o'clock, and the votes must be counted by the inspectors, the room re- maining open to the public meantime. The chairman of the board of inspectors immediately announces the result pubHcly, after which three certified copies are made, speci- fying the number of votes cast for each county and each state officer.' " One of these certificates is sent to the super- visor, one to the town or city clerk, and one to the county clerk, together with the stubs and the unvoted ballots. After six months the voted ballots are destroyed. The supervisors of the county meet on Tuesday immediately following elec- tion, and, as a county board of canvassers, ascertain, from the reports sent in by the towns, who have been elected to county ofl&ces and the vote of the county for state offices. The supervisors make three certificates stating the results of the re- turns from their counting, and send one to the governor, one to the secretary of state, and one to the comptroller. The sec- retary of state summons the attorney-general, the state treas- urer, the comptroller, and the state engineer and surveyor, to meet him in Albany on or before December 15. This body constitutes the state board of canvassers. At this meeting the county returns are carefully gone over and the result of the voting for state officers is officially announced. A plurality only, not a majority, is necessary for election to any office. * No certificates are made for town, city, village or school elections held at a different time than the general election. New York city acts under special law. l8 CIVICS OF NEW YORK STATE QUESTIONS ON THE TEXT 13. Who are qualified to vote in this state? To what extent are women permitted to vote ? 14. Give the constitutional qualifications of a voter, and show the importance of these qualifications. 15. What are the essential provisions of the constitution in re- gard to bribery of voters and bets on the result of an election? 1 6. Give the substance of the provision of the constitution re- garding registration of voters. Give reason for this provision. 17. When is the general election held in this state? Mention the chief provisions for securing an honest ballot. ' 18. What national and state officers will be chosen the coming November election? Give complete list. 19. Describe the process of choosing a governor from the pri- mary to the final result. 20. What are the advantages of the present mode of voting in this state over that which formerly prevailed? What are the dis- advantages ? 21. Explain what is meant by the terms "blanket ballot" and " paster ballot." 22. Describe the blanket (Australian) ballot. What are the essential advantages of its use? 23. State the essential features and the purpose of the primary law enacted by the legislature in 1898. CHAPTER IV LEGISLATIVE DEPARTMENT 22. Organization. The state legislature, like the national legislature, consists of two houses, the senate and the as- sembly. This division can be traced back to colonial times when the legislative power was divided between the council and the colonial assembly, but there is now no such reason as exists in the case of the national legislature for its contin- uation. Both houses of the state legislature are represen- tative of the people in exactly the same way, and the quali- fications for membership in both are the same. The term of the senator is, to be sure, longer than that of the assembly- man; but this difference in time is not sufficient to give added weight or dignity to the upper house. The chief difference lies in the fact that the senator represents a con- stituency three times as large as does the assemblyman. There is an important advantage in the two-chamber plan, however, in that more time is required for the passage of a bill through the two houses than through one. In this way the pubHc is sometimes able to express its opinion in such a material way as greatly to influence legislation. 23. The Assembly. The number of assemblymen is fixed ■ by the constitution at 150. These are apportioned through- out the state on the basis of population, aliens excluded. At the conclusion of each census, the legislature immedi- ately defines the boundaries of the new assembly districts; thus at each census the boundaries of the assembly districts 19 20 CIVICS OF NEW YORK STATE may be changed. Each county except Hamilton is entitled to one assemblyman. The number of people represented by an assemblyman is ascertained by dividing the total population entitled to representation by 150. If a county contains a population equal to one and one-half times the number represented by an assemblyman, the county is given two members. The remaining members are apportioned among those counties having a population equal to or greater than that represented by two assemblymen. Assemblymen are elected by the direct vote of the qualified voters of the district. If more than one assemblyman is assigned to a county, the county is divided into assembly districts. 24. Assembly Officers. The principal officers of the as- sembly are (i) the speaker, who presides over the rneetings and appoints the assembly committees; (2) the clerk, who records the proceedings; (3) the sergeant-at-arms, who pre- serves order; (4) the librarian; and (5) the doorkeeper. Of these, only the speaker is a member of the assembly. He is elected by the assembly for a term of one year. 25. The Senate consists of fifty members also apportioned on the basis of population. The senate districts, Hke the assembly districts, are to be changed after every state cen- sus, ^o tha,t they shall so far as possible contain an equal number of citizens, excluding ahens. Senators, hke as- semblymen, are elected by direct vote of the people. Senate districts must consist of contiguous territory, and no county can be divided unless entitled to two or more senators. 26. Officers of the Senate. The lieutenant governor is ex officio president of the senate. As presiding officer he has no vote except in case of a tie. A president pro tempore is chosen by the senate from its own,number to preside in the LEGISLATIVE DEPARTMENT 21 absence of the lieutenant governor. The other officers are similar to those of the assembly. 27. Members : Qualifications, Term, etc. The only quali- fication imposed by the constitution for membership in the state legislature is that the candidate shall not, at the time of his election or within one hundred days previous thereto, hold any federal or city office; and the acceptance of such office after election shall vacate the member's seat in the legislature. Senators are elected for a term of two years, assemblymen for one; and both receive a salary of $1,500 per year, with an allowance for travelling expenses to and from the capitol. As in the national legislature, members are not to be questioned in any other place for anything they may say in debate in the house. 28. Sessions. The sessions of the legislature are annual beginning the first Wednesday in January. No time Kmit is fixed, but the legislature usually adjourns the latter part of March or the first of April. Special sessions may be called at any time by the governor. 29. Procedure, The rules for conducting business are partly prescribed by the constitution. A quorum usually consists of a majority of the members elected to each house; but when a bill imposing, perpetuating, or renewing a tax, or continuing or renewing an appropriation, or re- leasing, discharging, or commuting a claim against the state, is under final consideration, three-fifths of the members must be present, and the vote must be recorded on the journal. Each house judges as to the qualifications of its members, chooses its officers, makes the necessary rules, and appoints its committees. Both houses must keep journals and pub- lish their proceedings, excepting such parts as demand secrecy; 22 CIVICS OF NEW YORK STATE and all sessions of both houses are open to the pubHc except when the nature of the business demands secrecy. Neither house can adjourn for more than two days without the con- sent of the other. As in the national congress, the work of the legislature is done by the committee system (Boynton School Civics, pp. 163-166), and the methods of obstructing and advancing legislation are the same. There are 27 stand- ing committees in the senate and 37 in the assembly. 30. How a Bill becomes a L^w. Any bill may originate ia either house and may be amended by the other. The steps in the passage of a bill in the state legislature are almost the same as in congress.' The state constitution requires in addition that a copy of the bill in its final form shall be laid on each member's desk at least "three calendar legisla- tive days" before its final passage unless the governor has certified to the necessity for immediate action on the meas- ure. A biU becomes a law in one of three ways: (i) it may receive a majority of the votes in both houses and the signature of the governor; (2) if the governor refuses to sign the bill, it is returned to the house in which it originated, and if it then receives two-thirds of the votes of both houses it becomes a law without the signature of the governor; (3) if the governor fails to sign a bill within ten days, Simdays excepted, and the legislature has not adjourned in the mean- time, the bill becomes law. The governor is given tliirty days after final adjournment of the legislature to consider the bills left in his hands. Bills not signed within this time fail to become law. The governor may reject one or more items of an appropriation bill without vetoing the whole measure. If a bill appropriates public money or public prop- ' Boynton, School Civics, pp. 161-163. LEGISLATIVE DEPARTMENT 23 erty for "local or private use," two- thirds of the members must signify their approval before the governor can sign it. All bills appropriatiag money must definitely state the pur- pose for which the appropriation is made, and the money must be spent within two years. 31. Powers of the Legislature. The power of the legisla- ture is hmited only by the federal and state constitutions. These it cannot change and must not violate, but otherwise it may pass any law it pleases. In addition to enacting laws, the legislature elects two United States senators. The choice is made by the senate and assembly meeting and voting together, i.e., in joint session. The senate may, with the judges of the court of appeals, sit as a court of impeach- ment; and it has also some authority over the appointments of the governor. The assembly may bring charges of impeach- ment against high state officials — the governor, lieutenant- governor, judges, etc. (See also special restrictions outlined in Art. Ill, § 18, of the state constitution.) QUESTIONS ON THE TEXT 24. Explain the advantage to the people of a legislature con- sisting of two houses. 25. Why are members of assembly elected more frequently than senators? Why is the number of members of assembly greater than that of senators ? 26. Give the divisions of the legislature of this state; the title of the presiding officer of each. 27. State the provisiops of the constitution regarding represen- tation in the legislature. 28. When and how is the number of members of the assembly apportioned among the several counties? Give a brief account of the last apportionment, and state the objections which have been made thereto. 29. State the number of members in each branch of the present legislature. Give the length of term and salary of each. 24 CIVICS OF NEW YORK STATE 30. What is the privilege of the presiding officer of each branch of the legislature as to voting? What are the duties of the sergeant- at-arms ? 31. Compare the office of president of the senate with that of speaker of the assembly, touching on (i) mode of election, (2) priv- ilege of voting, (3) power with reference to the appointment of standing committees. 32. How many state senators and how many members of as- sembly are to be elected this year? 33. State the conditions which would render a person ineligible to the legislature. 34. Justify the following provision in the state constitution: "For any speech or debate in either house of the legislature the members shall not be questioned in any other place." 35. Under what circumstances and by whom may a special session of the legislature be called? 36. What proportion of the members of each house of the legis- lature constitutes a quorum to do ordinary business? Mention two cases in which a two-thirds vote is required to pass a bill. 37. Explain the necessity of legislative committees. State two evils that may result from transacting business throilgh such com- mittees. 38. How are contested elections in each branch of the legisla- ture decided ? 39. What are the present constitutional provisions regarding the passing of bUls by the legislature? 40. Describe fully the process of enacting a law in this state. 41. Explain in detail the process of making a statute law. Men- tion three constitutional conditions that must be observed in making a statute law. 42. Mention the provision of the constitution in reference to the state legislature as to printing of bills. Give a reason for this provision. 43. Give in substance an important provision of the constitu- tion in reference to appropriation bills. 44. Mention three restrictions imposed by the constitution on the legislature. Give reason for such limitation. 45. What body decides whether the legislature has exceeded its powers in any case? What is the scope of the powers of the legislature ? LEGISLATIVE DEPARTMENT 25 46. Mention one difference between the senate and the assem- bly as to (i) organization, (2) powers. 47. Give two powers common to the assembly and the senate. Mention one power possessed by the senate but not by the assembly. 48. Give in substance the provision of the constitution in refer- ence to the trial of impeachment. 49. State with reference to an impeachment trial, (1) comjibsi- tion of the court, (2) vote required for conviction, (3) limits of pun- ishment in case of conviction. CHAPTER V THE GOVERNOR AND OTHER EXECUTIVES 32. General Provisions. The executive of&cers of the state are so numerous that it is possible to consider only the more important. There are, however, certain general provisions of the constitution which apply to all ahke. In the first place, with the exception of the governor and the lieutenant governor, the state prescribes no special quahfications for its executive officers. Every state officer must take an oath to support the constitution of the United States and of the state of New York, and to perform his duties faithfully. In order to guard against corruption, a heavy penalty is imposed upon officers accepting a bribe. No official whose compensation is fixed by law is allowed to receive an additional compen- sation, nor can the salary of an officer be increased or diminished during his term of office. To minimize the in- fluence exercised by large corporations upon legislation, the constitution provides that no state ofiicer shall be per- mitted to accept a free pass, free transportation, or other special privileges from a railroad, telegraph or telephone company. 33. The Governor. The most important officer in the state is the governor. A candidate for this position must be at least thirty years of age, a citizen of the United States, and a resident of the state for five years next preceding his election. He is elected by direct vote of the people for a 26 THE GOVERNOR AND OTHER EXECUTIVES 27 term of two years at a salary of $10,000 per year with the free use of the executive residence. In case of a tie vote, the legislature chooses by joint ballot a governor from the persons having an equal number of votes. The governor is removable only by impeachment. In case of removal by death, resignation, or impeachment, or in case of disabiUty of any kind, he is succeeded by the Heutenant governor. In the event of the inabihty of the latter to serve, the office devolves upon the president pro tempore of the senate, and in case of his failure to serve, upon the speaker of the assembly. 34. Powers of the Governor. The powers of the governor are (i) executive, (2) legislative, and (3) judicial. His ex- ecutive duties are to enforce the provisions of the constitu- tion and all measures passed by the legislature. He is com- mander-in-chief of the miUtary and naval forces of the state and transacts all necessary business with the officers of the state, civil and military, many of the more important of whom he appoints. His legislative power consists chiefly in his exercise of the veto; yet his annual message points out, many times, desirable legislation, and in case he is a strong party leader and his party is in the majority in the legisla- ture, such suggestions are generally followed; he may also convene the legislature, or the senate alone, in extra session whenever, in his opinion, the occasion requires. His judicial power consists in his power to grant reprieves, pardons, and commutations, excepting in cases of impeachment. Even in cases of treason he may suspend the execution of the sen- tence until the next session of the legislature. He must, however, report annually to the legislature all cases of the exercise of this power. 28 CIVICS OF NEW YORK STATE 35. The Lieutenant Governor. Though the lieutenant governor occupies a less commanding position than does the ' governor, it would be a great mistake to select for the place a man who would not make a good governor should he for any reason be called upon to assume the duties of that office. Like the governor, he is elected by direct vote of the people for a term of two years. His salary is $5,000 per year. He is ex o;^«o president of the senate; and by having the casting vote in case of a tie, and by his power of recognizing mem- bers who desire to speak, he may materially affect legisla- tion. He is also ex officio member of certain administrative boards and commissions. 36. Other Administrative OflBcers. The governor is as- sisted in the performance of the executive work of the state by a large number of administrative officers, boards and commissions, of whom some are elected directly by the people, others are appointed by the governor with the advice and consent of the senate. Some of these officials correspond exactly in name and function to the president's assistants, the heads of the great executive departments in the national government; but their relation to the governor differs very considerably from the relation of the president's assistants to him. The administrative officers of the state, particu- larly those elected directly by the people, are practically in- dependent of the chief executive. They do not form an ad- visory council and need not hold political views in harmony with his. The elective officers are not subject to removal by the governor; and even in the case of appointive officers the governor can exercise his power of removal only under restrictions (see Art. V, § 3 of the state constitution). These officers are to a large degree the managers of the state's THE GOVERNOR AND OTHER EXECUTIVES 29 business, for the state, like the individual, has its purely business interests. These interests are varied and require the personal attention of a large corps of assistants. Some of the more important business matters are the collection and distribution of the taxes; the administration of schools, charitable institutions, prisons, and canals; the purchase, sale and care of pubHc lands; the payment of employees, etc. It is simply good business management on the part of the people so to protect their business agents that they cannot be interfered with to any great extent while discharging their obhgations to the state. The important facts concerning these numerous officers may be gathered from the following tables: Elected by the People at General Election Secretary of state . 2 yrs. $5,000 Comptroller . 2 yrs. $6,000 Treasurer 2 yrs. $5,000 Attorney- general 2 yrs. $5,000 State engineer and surveyor ' 2 yrs. $5,000 Superintends the publication and distribu- tion of the laws; custodian 0|f the great seal and keeper of the state archives; ex officio a member of certain boards and commissions, e.g., the canal board, state board of equalization, etc. Audits the pubUc accounts; manages the state funds; loans its moneys; superin- tends the collection of state taxes; mem- ber of certain boards. Custodian of the state moneys, which he pays out on proper warrants. Prosecutes and defends all actions in which the state is interested; manages all the legal business of the oflScers and departments of the state. Surveys and supervises the public lands and canals. ' Must be a practical engineer. 30 CIVICS OF NEW YORK STATE Appointed by the Governor with Advice and Consent of Senate Commissioner of agriculture Commissioner of excise State board of charities (12) Civil service commission (3) Forest, fish and game rommis- 3yis. syrs- Syrs. Not fixed 4yrs. $4,000 Sio a day for at- tendance at meet- ing; not to exceed $500 a year $3,0 Appoints a director of farmers' institutes and other officers to enforce the laws. Appoints ex- pert butter and cheese makers to examine and inspect butter and cheese factories and im- part information as to best methods of making and impro- ving quality of these prod- ucts. Has access to all places where diary products are made and may examine same to de- tect violations of the law. With his assistants issues liquor tax certificates and collects pay therefor; receives reports of violations of the law. Visits, inspects and supervises all institutions or associations which are of a charitable, cor- rectional or reformatory char- acter, public or private, with the exception of those entrusted to the commission in lunacy 'and state commission of pris- ons; frames rules for reception and retention of inmates; re- ports annually to legislature. Aids the governor in preparation of rules with which to test fit- ness and capacity of applicants for employment in the public service of the state, to the end that appointments and promo- tions shall be made on the basis of merit and competition. Acquires forest lands for state,but lands not to be purchased with- out consent of governor; propa- gates and distributes among the waters of the state, food and game fish, and has charge of state hatcheries; enforces laws for protection of fish and game. ' Appoints a deputy and acts with two commissioners of the land office designated by the governor. THE GOVERNOR AND OTHER EXECUTIVES 31 Appointed by the Governor with Advice and Consent of Senate (Continued) Commissioner of health . . . Commissioner of department of labor . . . State commis- sion in lunacy (3) State commis- sion of prisons (3) - - • • Commissioners of quarantine (3) Board of rail- road commis- sioners (3) 4 yrs. syrs. 6 yrs. 4yrs. 3 yrs. 5 yrs- l3.So° $3.5°° $5,000 President, $2,500; other members, their •expenses only $2,500 8,000 Looks after the interests of health and life of people of state; in- quires into cause of disease, es- pecially epidemics; investigates source of mortality and effect of localities, employments and other conditions upon public health; collects vital statistics; looks after health as it relates to sale of food, drugs, etc. Sees to enforcement of factory lavifs; collects labor statistics, and investigates strikes and labor troubles, seeking to medi- ate between parties or to arbi- trate their differences. Has exclusive jurisdiction over all institutions for care of insane; examines into their condition, inquires into their methods of management and government; licenses private institutions. Supervises the expenditures of all state hospitals; requires an- nual reports from state hospi- tals. Visits and inspects all institutions used for the detention of sane adults charged with crime; aids in securing their just, humane and economic administration; investigates their management and the conduct of their offi- cials; protects and preserves health of prisoners; arranges for their employment. Take charge of the quarantine es- tablishment of New York har- bor and make rules and regula- tions for its government. Supervises all railroads in the state as to the manner in which they are maintained and oper- ated with reference to the se- curity and accommodation of 32 CIVICS OF NEW YORK STATE Appointed by the Governor with Advice and Consent of Senate {Continued) State tax com- missioners (3) Superintendent of banks . . Superintendent of insurance . Superintendent of public works 3yrs. 3yrs. 3yrs. 2 yrs. 7. tf., for term of governor who nom- inates him, or until his successor qualifies $5,000 7,000 $7,000 0,000 the public ; investigates all acci- dents resulting in loss of life or injury; supervises abolition of grade crossings ; examines books and affairs of railroad companies; reports annually to legislature. Visit officially every county once in two years and inquire into the methods of assessment and taxation; furnish local assessors witlj instruction ; hear and determine appeals from local equalizations within the sev- eral counties; report annually to legislature. Supervises banks operated under state laws, savings banks, trust, loan and mortgage companies or associations, etc. Receives reports from these, banks re- porting quarterly, savings banks and all others in general, semi-annually. Reports annu- ally to legislature. Controls and supervises insur- ance companies doing business in the state; requires all life and casualty companies of the state and all foreign insurance companies to d^osit securities with him for the protection of policy-holders; has power to re- fuse a company right to trans- act business in the state. Re- ports annually to legislature. Carries out laws relating to repair and navigation of canals, their construction and improvement, except so far as the execution of such laws may be confided to state engineer and surveyor; subject to the control of legisla- ture, makes rules and regula- tions for navigation or use of THE GOVERNOR AND OTHER EXECUTIVES 33 Appointed by the Governor of Senate (Continued) with Advice and Consent Superintendent of state prisons Health oflficer of the port of New York the canals; has charge of ex- penditure of all moneys appro- priated by legislature for pub- lic improvements authorized by special acts. Supervises state prisons and con- victs therein, discipline, police, contracts and penal concerns thereof subject to existing laws; appoints agents and wardens, physicians and chaplains of prisons; reports annually to legislature. Superintends and controls the quarantine establishment and the care and treatment of the sick. Chosen by Joint Beillot of the Legislature ' Eleven regents of the univer- sity of the state of New York II yrs. Commissioner of education ^ 6 yrs. No compen- sation $7,Soo and $1,500 for expenses To incorporate to alter or revoke the charters of universities, col- leges, academies and high schools; to distribute to them state funds to which they are entitled; to in- spect their workings and require annual reports; to establish ex- aminations and confer certificates and degrees; to choose a commis- sioner of education; to supervise the state library and museum; in short, to supervise the pubUc school system through the com- missioner of education by approv- ing his appointments, etc. To have in charge the immediate supervision and control of the schools of the state, the qualifica- tion and licensing of teachers, dis- tribution of public school funds, teachers' institutes, etc. ' The legislature also chooses two United States senators by joint ballot for a term of six years at a salary of $5,000 per year. ^ The. first commissioner of Education under the unification law passed by the legislature of 1904 was selected by the legislature for a term of six years, his successor to be chosen by the regents. 34 CIVICS OF NEW YORK STATE QUESTIOHS ON THE TEXT 50. State the conditions of eligibility to the office of governor, giving reasons. 51. State the length of term and the salary of the chief execu- tive of this state. 52. Give the provisions of the constitution in relation to free passes on railways. State the reason for this provision. 53. Give the mode of electing the governor and five of his duties. 54. Give in substance the provision of the constitution in ref- erence to the succession to the governorship in case of the death, resignation, etc., of the governor. 55. What control has the governor over legislation? On what grounds is this arrangement justifiable? 56. State the qualifications, term of office, salary, and chief duties of the lieutenant governor. 57. When is the lieutenant governor not entitled to a casting vote ? Why this restriction ? 58. Mention the elective state officers, and give the length of term of each. 59. Mention the principal duties of the following officers: (i) attorney-general, (2) state engineer and surveyor, (3) comptroller, (4) state treasurer. 60. In what respects are the duties of the secretary of state of the United States and of the state (i) similar, (2) dissimilar? 61. Distinguish between the duties of the state comptroller and those of the state treasurer. Which officer is the more*important? Give reasons for your answer. 62. A break in the banks of the Erie canal causes the destruc- tion of a farmer's property. Who would be responsible for the loss and what steps could be taken to recover damages? 63. Name two state officers appointed by the governor. 64. Name one state commission and mention its principal duties. 65. State the manner of obtaining office, the length of term and the chief duty of the commissioner of excise. 66. Describe the organization and mention the principal func- tions of the state board of charities. 67. Describe the organization, and state the principal function of the civil service commission. THE GOVERNOR AND OTHER EXECUTIVES 35 68. What is meant by the civil service? What are the provi- sions of the constitution of this state regarding the civil service? What important change was made in this law in 1899? 69. Give in substance the provision of the constitution in ref- erence to civil service appointments and promotions. 70. What are the principal duties of the department of health ? 71. Describe the department of labor touching on (i) organiza- tion, (2) principal functions. 72. What provision does the state make for caring for the in- sane ? Give reasons for such provision. 73. Describe the state commission of prisons as to method of appointment of members, their compensation and duties. 74. Describe the board of railway commissioners as to number of members, method of appointment, salaries, term of office and chief duties. 75. Describe the organization, and state the principal function of the state tax commission. 76. How are the inequalities of assessment in different towns and counties corrected? 77. Give with reference to each of the following officers (i) manner of obtaining office, (2) length of term, (3) chief duty superintendent of banks, superintendent of state prisons, superin tendent of insurance, superintendent of public works. CHAPTER VI JUDICIAL DEPARTMENT 37. Courts and Judges. The business of interpreting the law is vested in a regular series of courts — justice's court, county court, supreme court, appellate division of the supreme court and court of appeals. No judge of any of these courts, excepting justices of the peace, may receive any fees or per- quisites of office in addition to his regular salary, which is determined by law and cannot be increased or diminished during his term of office. Every member of these courts, excepting justices of the peace and the county judge in Ham- ilton county, must be an attorney and counselor of this state. None of these officers, however, except justices of the peace and county judges and surrogates in counties of less than 120,000 population, may carry on any private practice or act as a referee in the state during his term of office; and the legislature may impose a similar prohibition upon county judges and surrogates in other counties. When a judge has reached the age of seventy years he must retire. 38. Justice's Courts. The lowest court for the trial of cases both civil and criminal is the justice's court presided' over by a justice of the peace. This is primarily a town court, though justice's courts still exist in many of the cities. Most city governments, however, have provided special courts, which have absorbed much of the business of jus- tice's courts. The justices, four in each town, are chosen by the voters in town-meeting for a term of four years. They 36 JUDICIAL DEPARTMENT 37 are paid by fees. Their jurisdiction is limited to petty crim- inal cases, and to civil cases whfere the amount involved does not exceed $2c«d. They may, however, issue warrants for the arrest of persons suspected of graver offences, and may after examination admit them to bail or hold them to await the action of the grand jury. 39. County Courts. The court next higher than the jus- tice's court is the county court. As its name implies, its jurisdiction is Umited to the boundaries of he county. It has both original and appellate jurisdiction over most of the cases, either civil or criminal, arising in the county. Its jurisdiction in civil cases is limited to cases in which the amount involved does not exceed $2,000. In every county except the county of Kings, which has two county judges, there is a single county court presided over by a judge chosen by 'the voters of the county for a term of six years at a salary fixed by law but varying in different counties. Coumty judges may be removed by a two-thirds vote of the senate on the recommendation of the governor; but such removal may be made only for cause and after the judge shall have been in- formed of the charge against him and shall have been given opportunity to defend himself. 40. The Supreme Court is the next court higher than the county court. The state has been divided into eight dis- tricts, in each of which this court holds its sessions. The judges, seventy-six in number, are elected by the direct vote of the people of their respective districts for a term of four- teen years, at a salary ^ of $7,200 per year. The first district ^ is entitled to twenty- two judges; the second to twelve; the third, fourth, and sixth, to six each; the fifth and seventh, to ' In the first and second districts the salary is $17,500. ^ See New York Red Book for these districts. 38 CIVICS OF NEW YORK STATE seven each; and the eighth, to ten. The judges are remov- able by concurrent resolution of the two houses of the legislature, providing two-thirds of the members concur. The supreme court has original and appellate jurisdiction in civil and in criminal cases. 41. Appellate Division of the Supreme Court. To Kghten the labors of the court of appeals another court was created in 1894, called the appellate division of the supreme court. The governor chooses from time to time twenty-two judges from the seventy-six supreme court judges to serve as an ap- pellate division. For facilitating the work of this court, the state has been divided into four departments, seven judges having been assigned to the first, and five to each of the other three. No more than five justices may sit in any case, four are necessary to constitute a quorum, and the concurrence of three is necessary to a decision. One from each department is named- chief justice, and he must be a resident of the depart- ment for which he is chosen. The chief justice serves during his entire term of office. The associates are appointed for a term of five years or for such part thereof as remains of their term of fourteen years at the time of their appoint- ment. The jurisdiction of this court is strictly appellate. 42. Court of Appeals. The highest court in the state is the court of appeals. The judges are seven in number and are chosen by the direct vote of the people of the whole state. Their term is for fourteen years and their salary is $13,700 per year. One of their number is chosen as chief justice, and receives $14,200. No judge of this court can be re- moved without the action of two-thirds of the members of both houses of the legislature. Temporary vacancies are filled by the governor with the advice and consent of the JUDICIAL DEPARTMENT 39 senate until the time of the next general election. This court is almost continuously in session in rooms in the capi- tol building at Albany. Five judges are necessary to con- stitute a quorum and the concurrence of four is necessary to a decision. Its jurisdiction is strictly limited to reviewing questions of law, excepting where the judgment is of death. That is to say, this court deals only with cases brought up from the lower courts on appeal, and examines them only with a view to determining whether the law has been prop- erly interpreted. It is only. in grave criminal cases that it examines into the facts. 43. Special Courts. Besides the regular system of state courts, there are certain special courts, the court of impeach- ment, the court of claims and the surrogate's court.' The first has been referred to (§31). The court of claims con- sists of three judges appointed by the governor with the ad- vice and consent of the senate for a term of six years, at a salary of $5,oc«d per year each. One of their number is desig- nated by the govemoi: as presiding judge. Its jurisdiction extends to cases of private claims against the state and of the state against a claimant. The jurisdiction of the surrogate's court is often exercised by the county court. In counties with a population of over 40,000, a special surrogate's court for the trial of cases involving the settlement of wills and estates of deceased persons may be had. The term and the salary of the siUTOgate, excepting in the counties of New York and Rensselaer, is the same as that of the county judge. * See Article vi, section 15, page 98. 40 CIVICS OF NEW YORK STATE QUESTIONS OK THE TEXT 78. Outline the system of state courts. What kind of jurisdic- tion has the court of appeals? Supreme court? County court? 79. Mention three courts in the state having appellate jurisdic- tion; one having original jurisdiction only. 80. What is the limit in a civil action of the jurisdiction of a justice's court? of the county court? 81. Give the manner of obtaining office, length of term, manner of compensation and two duties of the county judge. 82. Mention the terms of the supreme court in this state. Give the number of judicial districts in the state. i 83. Describe the appellate division of the supreme court as to (i) jurisdiction, (2) number, manner of obtaining office and length of term of members. 84. Describe the highest court of this state as to (i) number of members, (2) conditions of eligibility, (3) length of term, (4) juris- diction. 85. Compare the judges of the court of appeals with those of the United States supreme court with reference to (i) number, (2) manner of obtaining office, (3) length of term. 86. Give in substance the provision of the constitution in refer- ence to removal of judges. 87. In what court of this state would a murderer be tried? To what other court might he appeal? 88. Write on the court of claims. 89. State the manner of obtaining office, the length of term and the chief duty of a judge of the. court of claims. 90. Mention two duties of the surrogate. 91. Distinguish between the duties of a grand jury and those of a petit jury. Describe the process of finding an indictment. 92. Give an outline of the method of legal procedure in ordi- nary civil cases.' 93. Give an outline of the method of procedure in criminal cases.'' 1 Boynton, School Civics, pp. 363-364. 2 Ibid, pp. 364-365. CHAPTER VII RESTRICTION ON STATE'S ACTION 44. State Debts. Various restrictions, designed as checks upon a possible abuse of power by those in authority, have been placed upon the state by its constitution. These con- cern especially financial matters. In some of the states the recklessness and improvidence of state, legislatures and ad- ministrators have created debts that have crippled the state and its citizens for many years. Against such dangers this state has sought to guard itself by a series of constitutional provisions declaring what may and what may not be done in the matter of creating debts. The state may, of course, con- tract debts. Contingencies may arise, such as war or invas- ion, necessitating unforeseen expenditures and making debt inevitable. The constitution carefully specifies, however, the conditions under which debts may be created. The state may contract debt (i) to meet casual deficits or failures in the revenues, and (2) to meet expenses not provided for; but such debts must never exceed $1,000,000 in amount. It may also contract debts for the purpose of repelling invasion, suppres- sing insurrection, or defending itself in war. If the state con- tracts a debt for any other purpose, it must carefully observe the following regulations: (i) the debt is not to be contracted unless it be authorized by law for some single work or ob- ject specified therein; (2) the state must'provide at once for its payment by a law laying a direct annual tax sufficient to pay the interest as it falls due and to cancel the entire obli- 41 42 CIVICS OF NEW YORK STATE gation within eighteen years; (3) not only must the vote on such a measure in the legislature be taken by ayes and noes and be duly recorded on the journal; but (4) the measure must be submitted to, the people for action before it can become a law and must receive a majority vote. Three months must elapse after the passage of the bill before it is submitted to the people, and no other bill or amendment to the constitu- tion may be submitted at the same time. 45. State Credit. In order to prevent public money from being used to "sanction a vast mass of private enterprises in which public rights and pubhc interests become the sport of speculators," the state is forbidden by the constitution to loan its credit to any private undertaking. The state, like the individual, refuses to allow any claims against it which have become outlawed by lapse of time. 46. Forests and Canals. Besides these provisions which have to do with its finances, the state is also debarred from making any disposition of its forests and canals. The pres- ervation of the water supply is of such importance that forest lands owned by the state or hereafter to be acquired as part of the forest preserve must be maintained as wild forest lands. They may not be leased, sold or exchanged, or be taken by any corporation, public or private; nor can the timber grow- ing there be sold, removed or destroyed. In like manner the state cannot sell, lease or otherwise dispose of the Erie, Oswego, Champlain, Cayuga and Seneca, or Black River canals; nor can it enforce any tolls on the persons or prop- erty which may be transported on them. RESTRICTION ON STATE'S ACTION 43 QUESTIONS ON THE TEXT 94. Give in substance the provisions of the constitution in re- gard to contracting debts on the part of the state. 95. Give the substance of the provision of the constitution re- garding the forest preserve. Give reason for this provision. 96. Give in substance the provision of the constitution in refer- ence to tolls on the canals and the manner of providing funds for canal maintenance and improvement. 97. "Give in substance the constitutional provision in relation to prison labor. State a reason for this provision. (See Art. III. § 29, of the state constitution.) CHAPTER VIII EDUCATION AND THE STATE 47. Introduction. From its earliest history the state has been interested in the education of its citizens, first as a Dutch colony, then as an English colony, and finally as a state. The first legislature that met under the constitution, 1784, received a message from the first constitutional gov- ernor, George CHnton, urging the immediate encouragement of the schools. Since that date almost every legislature has had under consideration some important educational ques- tion or appropriation. 48. Historical Sketch. The first step taken by the legisla- ture toward the creation of an educational system for the state was the incorporation of the state board of regents in 1784. Three years later at the request of the regents the legislature ' revised the school law so as to extend the control of the re- gents over aU the instrumentahties for higher education in the state; and in 1795, through the persuasion of the board, the state made a Hberal appropriation for the purpose of es- tablishing a system of common schools. The people were however, unwilling to entrust the management of these com- mon schools to the board of regents; and in 1854, after a long period of struggle over their management, during which nothing very effective was done toward organizing the system, it was decided that the elementary schools should be administered independently, and the department of pub- lic instruction was created. Thus it came about that the 44 EDUCATION AND THE STATE 45 educational system of the state has been until very recently administered by two separate and quite independent 'bodies, one the board of regents of the university of the state of New York, whose function was to "encourage and promote edu- cation in advance of the common elementary branches;" the other, the department of pubhc instruction, exercising con- trol over the whole elementary school system. 49, Present System. By the educational unification law of 1904, this dual administrative system was aboHshed. The board of regents was continued, but their number was fixed at eleven and their term at eleven years. The office of su- perintendent of pubKc instruction was abolished and the duties of that officer were transferred to a newly created commissioner of education, who exercises his powers under the direction of the board of regents. There are three as- sistant commissioners of education appointed by the com- missioner and approved by the board of regents. The salary of the commissioner is $7,500 with $1,500 for expenses, that of the assistant commissioners $5,000 each. The work is divided as follows: colleges and technical and professional schools are under the first assistant commissioner, high schools under the second, and elementary schools under the third. There are also a director of libraries and home edu- cation, a director of science work and state museum, and seven chiefs of divisions. 50. Free School System. In 1903 there were 11,726 school districts in the state, and 11,878 schoolhouses. The total valuation of the school property of these districts in 1903 was estimated at $99,668,241, and the number of children attending school was 1,256,874. There are nearly 40,000 school teachers in the state, and the expenditure for 1 903 for 46 CIVICS OF NEW YORK STATE public education was over $43,000,000. In this state there is no reason for ignorance. All this great array of possi- bilities is free to all residents of the state in the districts in which they reside, since state aid to schools is supplemented by local taxation on a most liberal scale. 51. Common Schools. The state is divided into 113 school commissioner districts, which are subdivided into 10,683 common school districts. The school commissioner is a state officer paid out of the treasury of the state a salary of $1,000 per year and $200 from the county for expenses. He is the superintendent of the common schools in his district and of such village schools as have not a separate superin- tendent. Each school district has one or three trustees, a clerk and a collector. The care of the school property, the hiring of a teacher, the prescribing of a course of study, and the levying of a school tax to supplement the aid received from the state (a quota of $125, together with a small amount for attendance, library, etc.), are the chief duties of the school trustees. They have also the power to make repairs on the schoolhouse to the extent of $50 and to purchase books and apparatus to the amount of $25. The duties of the clerk and collector are implied by their names. If the voters of a school district or of two or more adjoining dis- tricts desire, they may change the common school district to a union school district and elect a board of education of from three to nine members. When this is done the board of education has power to establish an academic depart- ment and kindergartens, to prescribe a course of study, to decide upon the books to be used, and to furnish, if it chooses, free text-books and supplies. It may also appoint a super- intendent of schools. In cities and villages of 5,000 popu- EDUCATION AND THE STATE 47 lation or more, the state pays $800 to the district, providing the superintendent is not required to teach. City school systems are organized in accordance with their local char- ters and provide graded schools of primary, elementary, grammar, and high school grade. These schools like com- mon schools, are free to all residents of the city, and state aid is supplemented by local taxation. 52. Compulsory Attendance. Not only has the state pro- vided free schools for all its children, but it has gone a step farther and made attendance compulsory. In this matter, the state dictates to the parent and protects the rights of the child in the matter of his education. Children between the ages of eight and fourteen years who are mentally and phy- sically capable of attending school must attend school regu- larly or receive equivalent instruction from a tutor. Chil- dren fourteen to sixteen years old may secure a permit to work, if they have attended school at least one hundred and thirty days since their thirteenth birthday. If not legally employed they must be in school up to sixteen years of age. Permits are granted by the health officers upon the signed statement from the schools showing that the applicant has met the provisions of the law in all particulars. Attendance officers are appointed to see that the provisions of the law are carried out. It is illegal to employ any child without such permit, and parents and employers are subject to prose- cution and fine for evading the law. Attendance officers may arrest a truant pupil without a warrant. 53. Qualification and Training of Teachers.* Schools re- ceiving state aid must meet the state requirements in the '■ At this time the commissioner of education has outlined a plan for the fol- lowing changes. The uniform examination system is to be gradually abolished 48 CIVICS OF NEW YORK STATE qualification of their teachers. It is illegal to pay state money or money raised by local taxation for the support of common or public schools to an unlicensed teacher, and trustees and boards of education authorizing such expendi- ture are personally liable and may be made to reimburse their communities. There are the following kinds of li- censes: (i) certificates issued by school commissioners as the result of the uniform system of teachers' examinations, con- sisting of three grades; (2) normal school diplomas; (3) col- lege diplomas from those colleges having an approved peda- gogical course ; (4) state certificates secured by examinations ; (5) college graduates' certificates issued to graduates of col- leges after three years' teaching; (6) training class and train- ing school certificates; (7) temporary licenses granted for a short term by the state department during an emergency or pending an examination; (8) certificates from other states that have been accepted and approved by the authorities in this state; (9) special examinations in cities having a mini- mum requirement not less than that set by the state. For the preparation of teachers, the state provides a normal college at Albany and eleven normal schools located as fol- lows: Plattsburg, Potsdam, Newpaltz, Jamaica, Oswego Oneonta, Cortland, Brockport, Buffalo, Geneseo, and Fre- and elementary and academic certificates are to be issued on regents examina- tions in approved subjects. Training class and state certificates are contin- ued. College graduates ' certificates will be granted for two years to any graduate of an approved college, will be renewed for a year if the holder passes meantime an examination in the principles of teaching, and will then be made valid for life. Special certificates will be granted, not on examina- tion, but on evidence satisfactory to the commissioners, and certificates of other states issued on corresponding standards will be accepted. Only normal and college graduates and holders of state certificates may hereafter teach in schools maintaining an academic department. EDUCATION AND THE STATE 49 donia. It also provides training schools and training classes in high schools, and recognizes the work done in college for the training of teachers. 54. State Aid. To those schools maintaining training classes the state gives direct aid at the rate of $100 for the teacher in charge and $500 for instruction for a class of at least ten members with a small amount per capita for those in excess of ten. In training schools, it pays $100 for the teacher's quota and $1 per week for each member of the class. To encourage high school attendance, the state ap- propriates $200,000 for the purpose of paying the tuition of non-resident high school pupils in attendance upon those schools wiUing to pay the balance over and above the $20 which the state allows. There are nearly 800 schools doing high school work. QUESTIONS ON THE TEXT 98. Give an outline of the educational system of New York state. 99. Describe the university of the state of New York, stating the number of regents, their term of service, mode of election and powers. 100. State the mode of appointment, the length of term and the principal duties of the commissioner of education. 101. State the chief provisions of the compulsory education law in this state. Why is such a law important in a republic? 103. Give the length of term, salary and three principal duties of a school commissioner in the rural sections of this state. 103. Mention the chief differences between the powers of a board of education of a union school and the powers of the trustees of a common school district. 104. Name the officers of a union free school district. 105. Describe the process of forming a union school district. 106. Mention five different ways in which a person may become legally qualified to teach in a public school in this state. 50 CIVICS OF NEW YORK STATE 107. Name the ofl&cers of a common school district. How often and by whom are they elected? 108. Give the title of the chief officer of a common school dis- trict. Mention three of his duties. 109. Describe the process of opening and conducting the an- nual meeting of a common school district. 110. Give mode of election, length of term, manner of compen- sation and two duties of the school district collector. HI. What are the provisions of law concerning temperance instruction in this state? CHAPTER IX MISCELLANEOUS STATE DUTIES 55. State Protection. The protection of the state against invasion and domestic violence is secured by making every male citizen between the ages of eighteen and forty-five years residing in the state Uable to military duty unless exempted by United States law or by the laws of the state. This body constitutes the miHtia. Members of local fire departments; local oflScers such as justices of the peace, county judges and sheriffs; professional men such as doctors, ministers, teach- ers, and a few others — are among those exempted by law from military duty. Those mentally or physically incapacitated are also exempted. This force has been partially organized by the legislature. The organized land force is called the, national guard; the naval force, the naval militia. Thei state must, according to the constitution (Art. XI, § 3), provide for a force of "not less than 10,000 enhsted men, fully uni- formed, armed, equipped, disciplined and ready for active service." The legislature has by law increased this number to 20,000, of whom 2,000 are naval miUtia. The governor is commander-in-chief of this force. It is his duty to "appoint the chiefs of the several staff departments, his aides-de- camp and miHtary secretary," the officers commanding the naval miUtia, the officers of the signal corps, and, with the advice and consent of the senate, all major-generals. The legislature has provided by law for the appointment of the remaining officers. The national guard is conamanded by a 51 52 CIVICS OF NEW YORK STATE major-general; the naval militia by a commodore or captain. The organization of the national guard is left partly to the governor. The law, however, provides that a regiment shall consist of eight to twelve companies, troops or batteries. All enlisted men must serve at least five years. While on duty they receive a compensation which varies from $1.25 to $2.00 a day. The officers are also paid by the day. 56. Corporations. The state exercises definite control over corporations for the general benefit of the individual citizen. The term corporations is defined by the constitution as in- cluding all associations and joint-stock companies having any of the powers or privileges of corporations not possessed by individuals or partnerships. All corporations except muni- cipal corporations are formed in accordance with general laws, excepting where in the judgment of the legislature the objects cannot be attained under general laws, and are sub- ject to a special tax for the support of the state. Municipal corporations are formed by special act of the legislature. The control over banks is especially stringent. Banks that issue paper money must register their notes and bills and provide ample security for their redemption in specie. The legislature is forbidden to enact any law authorizing these banks to suspend specie payment. If a bank fails, it must pay the holders of its bills in preference to any of its otiier creditors. The stockholders are personally liable for debts of the bank in proportion to their amount of stock. Sav- ings banks are not allowed any capital stock, and the trustees are not allowed any interest, direct or indirect, in their profits nor in any loan or use of the money. MISCELLANEOUS STATE DUTIES 53 QUESTIONS ON THE TEXT 112. Describe the military system of the state. 113. Mention four classes of persons who are exempt from' mili- tary duty. Give a reason for such exemption. 114. What is the provision of the constitution regarding the number of the militia that must be ready for active service ? 115. Describe the militia of the state touching on (i) persons composing it, (2) duties. 116. State the powers of the governor with reference to the militia. Has the president of the United States authority to call out the state militia? Give a reason for your answer. 117. Who is the commander-in-chief of the militia? Under what circumstances may_this militia be .employed outside the state ? 118. State the manner of obtaining office, the length of term, and the chief dutyof the adjutant-general. 119. Give in substance the constitutional provision in relation to the liability of stockholders of banks. State a reason for this provision. 120. Describe the process of assessing property for the purpose of taxation, and show how the amount of money to be raised by each town is fixed. 121. Describe the process by which state taxes are levied and collected in this state. 122. What property is exempt from taxation? CHAPTER X LOCAL GOVERNMENTS 57. Local Divisions. Counties, towns, villages, and cities have been created by the state to provide for local needs. Although these local divisions are allowed a great deal of freedom in the matter of administering their own affairs, they are by no means independent of the state. The laws creat- ing them and providing for their government are state laws based upon constitutional provisions; and the local officers who administer both state and local laws, are in reahty state officers as well. 58. Restrictions upon Local Government. The most im- portant restrictions placed by the state upon these divi- sions are contained in the state constitution. These have to do mainly with the question of local indebtedness. The tendency of these governments has been toward extrava- gance and waste in administering their financial affairs. They are, therefore, forbidden to incur any indebtedness excgpt for_strictly Jocal purposesT The construction of a raihoad in a county, for example, carmot be regarded as justi- fying local expenditure. Many of the earlier projects of this sort were assisted by the county or town interested; but these divisions contracted such enormous debts that the con- stitution now forbids a county, town, village, or city to give any money or property, or to loan its money or credit to aid any individual, association, or corporation. Counties and cities are expressly limited in this matter of incurring debt. 54 LOCAL .GOVERNMENTS 55 It is forbidden that the amount of debt at any one time should exceed ten per cent of the assessed value of theii; real estate. A limitation is also laid upon them in the matter of taxation. In cities of over ioo,ooc, or in counties containing such cities, the amount to be raised by taxation in any one year for city or county purposes must not exceed two per cent of the assessed value of the property in the county or city; but this two per cent is additional to the amount that must be raised annually for the extinction of existing in- debtedness. 59. The County : Board o f Supervisors. Ea ch town ' in the county elects a supervisor, who is at the same time a town officer, to represent its interests in the^ county. These off.- cers constitute the board of su pervisors ancTmake all needful regulations^toFTEe" county. At the annual meeting they choose one of their numbe r chairman for the ensuing year. They lay the county tax^nd Jook after the county properties. They are chosen for two years and are usually paid four dollars a day for time spent as county officers. 60. The Sheriff ' is the chief executive officer of the county. He hai~charge ofthe comity^JalTand is custodian of the pris- oners confined there. He also serves various writs. By a speciaT provision of the state constitution he is forbidden to hold any other office during his term as sheriff and^s inelig- ible for "TeStection to succeed" hiniselfr His term is three ' If the -county contains a city, each ward usually elects a supervisor to meet with the other supervisors of the county. ' Sheriffs, county clerks, district attorneys and registers are chosen for three years usually, but in New York and Kings counties and in counties having the same boundaries as cities, these officers may be chosen for two or four years as the legislature may direct. (Art. X, § i.) S6 CIVICS OF NEW YORK STATE years and he is paid in some counties by fees, in some by fees and a salary, in some by salary only. 61. The Dis trict Attorney is primarily a state officer m that he is the state's attorney in crimmal cases. He brings crinimal_cf[ettces to the attention of the grand jury and prosecutes those accused of crimes in the county or supreme court. He is elected for th ree.4^ars, and is paid a salary fixed by the board of supervisors. 62. The County Cler^ Js the custodian of the county rec- ords, of deeds and mortgages, and of judgments of the courts. In New York, Kings and Westchester counties, however, there is a separate officer called a register for re- cording deeds and mortgages. The county clerk is also clerk of all the courts held in the county. He is elected for three years and is paid by fees. 63. The CountjL,. Treasurer receives and pays out the moneys as directed by the board of supervisors. The state school money belonging to the county is received by him and paid out to the towns. He usually collects the hquor tax in the county in accordance with the provisions of the Raines law. He is elected for three years and is paid a salary fixed by the board of supervisors. He also receives fees. 64. The Superija±findfiUJLQf_the Poor looks after the poor in the county. He manages the poorhouse and aids the des- titute. There may be from one to three such officers in the county. They are elective and serve for three years at a salary fixed by the board of supervisors. 65. The Coroners (not more than four in number) investi- gate all suspicious or accidental deaths with a view to de- termining their cause. They may hold an inquest to de- termine these facts and even submit the matter "to a jury. LOCAL GOVERNMENTS 57 They are elected for three years and are paid by fees or a salary. 6 6. County Judg g^ The judicial business of the county is entrusted either to the county judge or to the county judge and a surrogate. Both officers are elective and the term is six years. They are paid by salary, which varies in different counties. (For their duties, see the chapter on the judiciary.) 67. The School Commissioner is the agent to look after educational~matters. He examines and licenses teachers and inspects the schools in, his district. The counties are usually divided into two districts, each of which elects a com- missioner. He serves for three years and receives an annual salary of $iooo from the state and $200 from the county. 68. Removal of County Officers. Sheriffs, county clerks, district" attorney, and registers are removable by the gov- ernor. (For the removal of judicial officers, see chapter on judiciary.) 69. The Town Meeting' is the legislative body of the town. It is heI3~biennially on the second Tuesday of February; but the county board of supervisors "may, by resolution, fix a time when the biennial town meetings in such county shall be held which shall be either on some day between the first day of February and the first day of May inclusive," or on general election day of odd numbered years. It may also be summoned on the petition of twenty-five taxpayers or by the supervisor. The presiding officer is a justice of the peace. Every voter in the town is entitled to a share in its dehberations. The town officers are chosen at its meetings, and questions of town pohcy are discussed and voted upon. ' See also Boynton's School Civics, pp. 45, 46, 47, 288-289. 58 CIVICS OF NEW YORK STATE These questions have to do with the laying of taxes, the regulation of town properties and the like. '*^ 70. The Supervisor is the town treasurer and also its rep- resentative in the county board. He serves for two years and is paid two dollars a day' while in the service of the town proper. 71. The Town Clerk is custodian of the town records and clerk of the town meeting. He not only keeps the records of the vote in the town and the proceedings of town meeting, but also records births, deaths and marriages. He is paid two dollars a day' and fees. His term is two years. 72. The Assessors are three in number and appraise the property of individuals residing in the town to deter- mine each property owner's share of the state and local taxes. They serve for two years and are paid two doUars a day.' 73. Collector. When the assessors have finished theur work and made out the tax list, this is turned over to the collector who collects the amount of tax assessed to each. He receives a certain per cent as his compensation. His term is for two years. 74. Constables. The town provides from one to five offi- cers, known as constables, to preserve the peace of the town and to make arrests. They serve for two years and are paid by fees. 75. The Highway Commissioners (one or three in num- ber) care for the roads and bridges in their districts. They are often charged with the duty of opening a new road or building a new bridge. They serve for two years and are paid two dollars a day.' ' For actual service. LOCAL GOVERNMENTS 59 76. Overseers of the Poor, The care of the poor is also entrusted to one or two town officers known as overseers of the poor. Their duties are similar to those of the super- intendents of the poor in the county. They serve for two years and are paid two dollars a day. 77. The Number of Inspectors of Election depends upon the number of election districts in the town. There are four for each district, two chosen by the town meeting and two appointed by the town board. They are representatives of the two parties casting the highest number of votes in the previous election. Their business is to serve at elections and to count the votes cast. They serve for two years and are paid two dollars a day. 78. The Justices of the Peace are four in number. They serve four years and are paid by fees and also by the day. (For their duties see chapter on judiciary.) 79. Villages and Cities. The duty of incorporating cities and villages, and of restricting their powers of taxation, of assessment, borrowing money, contracting debts and loan- ing their credit, with a view to preventing abuses, is en- trusted by the state constitution to the legislature. 80. Formation of Villages. The legislature has accord- ingly provided that a territory not exceeding one square mile or an entire town, containing in either case a population of at least two hundred and not including a city or village, may be incorporated. The first step toward incorporation must be taken by the people themselves. At least twenty-five adult freeholders and residents of the territory must submit a proposition for incorporation to their supervisor. If he consents, the matter is submitted to the voters at a general election; if not, the freeholders may appeal to the county 6o CIVICS OF NEW YORK STATE court. In any case the proposition must be finally passed by a majority of the voters. 81. Village Government differs from that of the town in its greater complexity and in the fact that it is less demo- cratic. Officers are multiphed in order to provide for wants more numerous than the simple town government can con- veniently meet. Incorporation usually means, therefore, an increase in taxation, and is sometimes avoided on that ac- count. When a village is incorporated, it still remains a part of the town in which it is situated, though the duties of some of the town officers jnay be affected by the change. 82. Villages Classified. For convenience in legislating for these divisions, villages have been classified according to population. Those of the first class must contain 5,000 inhabitants or over; of the second class, 3,000 or less than 5,000; of the third class, 1,000 or less than 3,000; and of the fourth class, less than 1,000. 83. The Time for Electing Village Officers is uniformly throughout the state the third Tuesday in March, unless the date coincides with that of the town meeting of the town in which any part of the village may be situated or with that of a general election. In that case the election is held on the following day. 84. The Chief Executive Officer of the village is the presi- dent, chosen by the voters for one year. He is the head of its police force, presides over the meetings of the board of trustees and enforces its ordinances. He receives no com- pensation for his services. 85. The Trustees (from two to eight in number) consti- tute the village legislature. They make all needed ordi- LOCAL GOVERNMENTS 6i nances, regulate the financial affairs of the village, and ap- point some of its minor officers. They are elected by the voters for a term of two years. Like the president, they receive no compensation. 86. The Village Clerk ^ is appointed by the trustees to have charge of the village records. He serves for one year. His compensation is fixed by the trustees. 87. The Village Treasurer is elected by the voters of tlie village and serves one year. He is custodian of all moneys collected in the village for state or local purposes. His com- pensation is fixed by the trustees. 88. The Street Comiaissioner ^ is appointed by the trus- tees to care for the village streets. He serves one year and his compensation is fixed by the trustees. 89. Assessors.^ Each village has three assessors who are elected by the voters of the village to assess the value of the personal property in the village limits. They serve three years and are paid by the day. 90. Police Justice. A village may have a police justice. It is an elective office and its incumbent serves four years. He tries petty civil and criminal cases and is paid by fees or by salary. 91. Jonnation of Cities. Cities differ from villages in the greater complexity of their governments. They are formed by special acts of the' state legislature. A majority of the voters must express a desire for incorporation and a charter is then drawn up and submitted to the legislature. If this meets with their approval and there is no objection raised in the county, the request is granted. It is not required that ' May be made elective at option of village. ' The board of trustees or a committee of the board may act as assessors. 62 CIVICS OF NEW YORK STATE a certain minimum population be reached before incorpora- tion can be secured. 92. Cities Classified. Cities like villages have been classed according to population. Cities of the first class are those containiag a population of 250,000 inhabitants or more; of the second class, those containing 50,000 and less than 250,000; of the third class, all others. 93. Cities and the State Legislature. The state may, of course, legislate for these divisions, even though it has granted them a large measure of seK-govemment. It can- not, however, make laws for cities with the same freedom as for other local divisions. The state constitution ex- pressly provides that special city laws, i.e., those which relate to a single city or less than all the cities of one class, must be submitted to the city for its approval before they are- finally acted upon by the governor. The bill is sub- mitted to the mayor, and if approved by him (in cities of the first class) or by the legislative body and the mayor (in other cities), it is then sent to the governor for his signature. In some cases the legislature may require the concurrence of the legislative body as well as of the mayor in a city of the first class. In case the bill is not approved by the city, or if it is not acted upon by the city in fifteen days, the. legis- lature may pass it over the city's veto. It must in any case have the governor's approval, or be passed over his veto like other bills. 94. The Election of City Officers in cities of the first and second classes is held on the Tuesday succeeding the first Monday in November in the odd numbered ye'ars. All other cities elect their officers on general election day or at charter elections usually held in the spring. LOCAL GOVERNMENTS 63 95. Cities of the First Class. There are only two cities of the first class, viz., New York and Buffalo. As New York is the second largest city in the world, the problem of its government is a very important one. The city is divided for purposes of administration into five boroughs. A mayor, comptroller and president of the board of alder- men are elected by the whole city. In addition each bor- ough choses a borough president, and each of the seventy- three aldermanic districts an alderman. The board of aldermen, which is presided over by the president, con- stitutes the legislative body of the city. The five borough presidents may also share in its deUberations. It holds monthly meetings and may be called in special session at the discretion of the mayor. The ordinances of this body must also be submitted to him for his approval. He exercises almost the same power in this capacity as the governor of the state. 96. The Mayor is the chief administrative officer of the city. He appoints the heads of the fifteen administrative de- partments of the city, with the exception of the department of finance. He also has the appointment of other city offi- cers. In addition to his powers over legislation he may, in his annual statement of the financial condition of the city and its government, recommend measures for action at the hands of the board of aldermen. 97. The Borough President is entrusted with important powers and duties. Besides sharing in the deliberations of the board of aldermen, he looks after the construction of roads, the repair and cleaning of streets, the disposal of sewage, and the construction and maintenance of public buildings in his borough. Each borough has a local board of improvement, consisting of the borough president and the 64 CIVICS OF NEW YORK STATE aldermen of the district, for the consideration of improve- ments and complaints. 98. Cities of the Second Class: Mayor and Legislature. There are five cities of the second class, viz., Rochester, Syracuse, Albany, Troy and Utica. The chief executive is the mayor, elected by the voters to serve two years. His salary varies from $2,500 to $5,000 a year, depending upon the size of the city. His duties are similar to those of the mayor of greater New York. The law-making body is also similar in organization and powers to that in New York. Its members are elected and serve for two years. The aldermen are elected by districts, one from each ward. 99. Departments. The administrative work in cities of both the first and the second class is performed by departments. Of these the most important are the department of finance, of public works, of public instruction, of public safety, of assessment and taxation, of charities and correction, and of law. Their names suggest in part their duties. With the exception of the comptroller — who is the head of the de- partment of finance — and the assessors, the chief officers of these departments are appointees of the mayor. The comp- troller is elective. This official along with the mayor, presi- dent of the common council, corporation counsel, and city engineer constitute a board of estimate and apportionment to determine the amount of money needed by the city. The department of public safety is subdivided into a police, a fire and a health department. The duties of the depart- ment of law are vested in a corporation counsel, who acts as the city's adviser in legal matters. 100. Judiciary. These cities have been given, in addition to the regular state courts {q. v.), a police court presided LOCAL GOVERNMENTS 65 over by an elective police justice who serves six years. He tries petty civil and criminal cases. 101. Cities of the Third Class. The government of cities of the third class is much less complex and is determined almost entirely by their charters. The division into depart- ments, which characterizes cities of the first two classes, has not been followed so closely in cities of the third. A presi- dent of the common council is often wanting. The relations of the mayor to the common council are very similar to his relations to that body in larger cities. Various offices have been created by the charter to provide for local needs, many of which are filled by the mayor. QUESTIONS ON THE TEXT 123. May a town or county bond itself in aid of a railway? Give reason for the provision in regard to this. 124. Trace the development of the county from its introduction on American soil, and give an outline of the form it has assumed in this state.' 125. Compare the county of this state with the shire of Eng- land.^ 126. Describe the government of a county, legislative, execu- tive, and judicial departments. 127. What is the usual length of term of county officers? Men- tion one county officer whose term is longer. Give a reason for this difference. 128. Name the legislative body of a county. Who presides over this body. How often are its members elected? Give three of its duties. 129. Who is the chief executive officer of the county? What is the length of his term ? Give three of his duties. How is he paid? 130. Name one county officer who is not eligible to election as his own successor in office. ' Boynton, School Civics, pp. 48-51, 291. ^ Ibid, pp. 49-52. 66 CIVICS OF NEW YORK STATE 131. How is the district-attorney chosen? How long is his term of office? What are his duties in criminal cases? How is he paid? 132. Give the term of office, compensation, and principal duties of the following county officers: treasurer, clerk, judge, school com- missioner, coroner. 133. Describe a town meeting. In what respect does it differ from a New England town meeting. 134. Mention two matters on which the town meeting may legislate. 135. Give reasons for and against the election of town officers at the general election in November. 136. Mention the officers composing the town board. State the principal duties of this board. 137. Name three elective officers of a town. Give the compen- sation and principal duties of each. 138. Name the chief officer of the town, three of his duties, and how he is paid. 139. Give with reference to the following officers, (i) the mode of election, (2) length of term, (3) two principal duties, (4) manner of compensation: collector, clerk, overseer of the poor, assessors, constable, highway commissioner. 140. What are the' provisions in this state for the maintenance of public roads? What are the defects in these provisions? How are public roads cared for in rural districts ? 141. Explain the difference between the government of a town and that of a village. 142. How may a village charter be obtained? Mention three important duties of a village board of trustees. 143. How does a city derive its powers of local government? Why should it have powers differing from those of rural dis- tricts ? 144. Into how many classes are the cities of this state divided? Why is such a division made? Describe the government of a city of one of these classes. 145. What are the constitutional restrictions in this state on legislation concerning cities? Give the reason for such restriction. 146. State in substance the provisions of the state constitution regarding any bill passed by the legislature for a special city law. LOCAL GOVERNMENTS 67 147. Give the provisions of the state constitution regarding the time of election of city officers in cities of the first and second classes. State the reasons for this 'provision. 148. Describe the local government of the town, village, or city in which you live. Give the title and duties of each cf three of the officers in the local government described. THE CONSTITUTION OF THE STATE OF NEW YORK PREAMBLE We the People of the State of New York, grateful to Almighty God for our Freedom, in order to secure its blessings, do estab- lish THIS Constitution. ARTICLE I Section i. Persons not to be disfranchised. — No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers. Section 2. Trial by jury. — The trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. Section 3. Freedom of worship : religious liberty. — The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all mankind; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so con- strued as to excuse acts of licentiousness, or justify practices in- consistent with the peace or safety of this state. Section 4. Habeas corpus. — The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebdlion or invasion, the public safety may require its suspension. Section 5. Excessive bail and fines. — Excessive bail shall not be required nor excessive fines imposed, nor shall cruel and unusug,! 69 70 CIVICS OiF NEW YORK STATE punishments be inflicted, nor shall witnesses be unreasonably de- tained. Section 6. Grand jury — bill of rights. — No person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of militia when in actual ser- vice, and the land and naval forces in time of war, or which this state may keep with the consent of congress in time of peace, and in cases of petit larceny, under the regulation of the legislature), unless on presentment or indictment of a grand jury; and in any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions. No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal case to be a wit- ness against himself; nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation. Section 7. Compensation for taking private property: private roads : drainage of agricultural lands. — When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law. Pri- vate roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first de- termined by a jury of freeholders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited. General laws may be passed permitting the owners or occupants of agricultural lands to construct and maintain for the drainage thereof, necessary drains, ditches and dykes upon the lands of others, under proper restrictions and with just compensa- tion, but no special laws shall be enacted for such purposes. Section 8. Freedom of speech and press: criminal prosecutions for libel. — Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indict- CONSTITUTION OF NEW YORK 71 ments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. Section 9. Right to assemble and petition: divorce: pool-selling, lotteries and gambling, laws to prevent. — No law shall be passed abridging the right of the people peaceably to assemble and to pe- tition the government, or any department thereof; nor shall any divorce be granted otherwise than by due judicial proceedings; nor shall any lottery or the sale of lottery tickets, pool-selling, book- making, or any other kind of gambhng hereafter be authorized or allowed within this state; and the legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section. Section 10. Escheats. — The people of this state, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the state; and all lands the title to which shall fail, from a defect of heirs, shall revert, or escheat to the people. Section II. Feudal tenures abolished. — All feudal tenures of every description, with all their incidents, are declared to be abol- ished, saving however, all rents antl services certain which at any time heretofore have been lawfully created or reserved. Section 12. Allodial tenures. — All lands within this state are declared to be allodial, so that, subject only to the liability to es- cheat, the entire an,d absolute property is vested in the owners, according to the nature of their respective estates. Section 13. Leases of agricultural lands. — No lease or grant of agricultural land, for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid. Section 14. Fines and quarter-sales abolished. — All fines, quar- ter-sales, or other like restraints upon alienation, reserved in any grant of land hereafter to be made, shall be void. Section 15. Purchase of lands of Indians. — No purchase or contract for the sale of lands in this state, made since the four- teenth day of October, one thousand seven hundred and seventy- 72 CIVICS OF NEW YORK STATE five; or which may hereafter be made, of, or with the Indians, shall be valid, unless made under the authority, and with the con- sent of the legislature. Section i6. Common law and acts of the colonial and state legislatures. — Such parts of the common law, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony, on the nineteenth day of April, one thou- sand seven hundred and seventy-fi.ve, and the resolutions of the congress of the said colony, and of the convention of the state of New York, in force on the twentieth day of April, one thousand seven hundred and seventy-seven, which have not since expired, or been repealed or altered; and such acts of the legislature of this state as are now in force, shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this con- stitution, are hereby abrogated. Section 17. Grants of land made by the King of Great Britain since 1775: prior grants. — All grants of land within this state, made by the king of Great Britain, or persons acting under his authority, after the fourteenth day of October, one thousand seven hundred and seventy-five, shall be null and void; but nothing con- tained in this constitution shall affect any grants of land within this state, made by the authority of the said king or his predeces- sors, or shall annul any charters to bodies politic and corporate, by him or them made, before that day; or shall affect any such grants or charters since made by this state, or by persons acting under its authority; or shall impair the obligation of any debts, con- tracted by the state, or individuals, or bodies corporate, or any other rights of property, or any suits, actions, rights of action, or other proceedings in courts of justice. Section 18. Damages for injuries causing death. — The right of action now existing to recover damages for injuries resulting in death, shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation. CONSTITUTION OF NEW YORK 73 ARTICLE- II Section i. Qualification of voters. — Every male citizen of the age of twenty-one years, who shall have been a citizen for ninety days, and an inhabitant of this state one year next preceding an election, and for the last four months a resident of the county and for the last thirty days a resident of the election district in which he may offer his vote, shall be entitled to vote at such election in the election district of which he shall at the time be a resident, and not elsewhere, for all officers that now are or hereafter may be elective by the people; and upon all questions which may be sub- mitted to the vote of the people, provided that in time of war no elector in the actual military service of the state, or of the United States, in the army or navy thereof, shall be deprived of his vote by reason of his absence from such election district; and the legis- lature shall have power to provide the manner in which and the time and place at which such absent electors may vote, and for the return and canvass of their votes in the election districts in which they respectively reside. Section 2. Persons excluded from the right of suffrage. — No person who shall receive, accept, or offer to receive, or pay, offer or promise to pay, contribute, offer or promise to contribute to an- other, to be paid or used, any money or other valuable thing as a compensation or reward for the giving or withholding a vote at an election, or who shall make any promise to influence the giving or withholding any such vote, or who shall make or become di- rectly or indirectly interested in any bet or wager depending upon the result of any election, shall vote at such election; and upon challenge for such cause, the person so challenged, before the offi-' cers authorized for that purpose shall receive his vote, shall swear or affirm before such officers that he has not received or offered, does not expect to receive, has not paid, offered or promised to pay, contributed, offered or promised to contribute to another, to be paid or used, any money or other valuable thing as a compensation or reward for the giving or withholding a vote at such election, and has not made any promise to influence the giving or withholding of any such vote, nor made or become directly or indirectly inter- 74 CIVICS OF NEW YORK STATE ested in any bet or wager depending upon the resiilt of such elec- tion. The legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime. Section 3. Certain occupations and conditions not to affect residence. — For the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his presence or ab- sence, while employed in the service of the United States; nor whUe engaged in the navigation of the waters of this state, or of the United States, or of the high seas; nor while a student of any sem- inary of learning; nor while kept at any almshouse, or other asylum, or institution wholly or partly supported at public expense or by charity; nor while confined in any public prison. Section 4. Registration and election laws to be passed. — Laws shall be made for ascertaining, by proper proofs, the citizens who shall be entitled to the right of suffrage hereby established, and for the registration of voters; which registration shall be completed at least ten days before each election. Such registration shall not be required for town and village elections except by express provision of law. In cities and villages having five thousand inhabitants or more, according to the last preceding state enumeration of inhabitants, voters shall be registered upon personal application only; but voters not residing in such cities or villages shall not be required to apply in person for registration at the first meeting of the officers having charge of the registry of voters. Section 5. Manner of voting. — All elections by the citizens, except for such town officers as may by law be directed to be other- wise chosen, shall be by ballot, or by such other method as may be prescribed by law, provided that secrecy in voting be preserved. Section 6. Registration and election boards to be bi-partisan, except at town and village elections. — All laws creating, regulat- ing or affecting boards or officers charged with the duty of register- ing voters, or of distributing ballots at the polls to voters or of receiving, recording or counting votes at elections, shall secure equal representation of the two political parties which, at the gen- eral election next preceding that for which such boards or officers CONSTITUTION OF NEW YORK 75 are to serve, cast the highest and the next highest number of votes. All such boards and officers shall be appointed or elected in such manner, and upon the nomination, of such representatives of said parties respectively, as the legislature may direct. Existing laws on this subject shall continue until the legislature shall otherwise provide. This section shall not apply to town meetings or to village elections. ARTICLE III Section i. Legislative powers. — The legislative power of this state shall be vested in the senate and assembly. Section 2. Number and terms of senators and assemblymen. — The senate shall consist of fifty members, except as hereinafter provided. The senators elected in the year one thousand eight hundred and ninety-five shall hold their offices for three years, and their successors shall be chosen for two years. The assembly shall consist of one hundred and fifty members, who shall be chosen for one year. Section 3. Senate districts. — The state shall be divided into fifty districts to be called senate districts, each of which shall choose one senator. The districts shall be numbered from one to fifty, inclusive. [Here follows an enumeration of the districts.] Section 4. Enumerations and reapportionments. — An enumer- ation of the inhabitants of the state shall be taken under the direc- tion of the secretary of state, during the months of May and June, in the year one thousand nine hundred and five, and in the same months every tenth year thereafter; and the said districts shall be so altered by the legislature at the first regular session after the return of every enumeration, that each senate district shall contain as nearly as may be an equal number of inhabitants, excluding aliens, and be in as compact form as practicable, and shall remain unaltered until the return of another enumeration, and shall at all times consist of contiguous territory, and no county shall be divided in the formation of a senate district except to make two or more senate districts wholly in such county. No town, and no block in a city inclosed by streets or public ways, shall be divided in the 76 CIVICS OF NEW YORK STATE formation of senate districts; nor shall any district contain a greater excess in population over an adjoining district in the same county, than the population of a town or block therein adjoining such dis- trict. Counties, towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants, excluding aliens. No county shall have four or more senators unless it shall have a full ratio for each senator. No county shall have^ more than one- third of all the senators; and no two counties or the territory thereof as now organized, which are adjoining counties, or which are sep- arated only by public waters, shall have more than one-half of all the senators. The ratio for apportioning senators shall always be obtained by dividing the number of inhabitants, excluding aliens, by fifty, and the senate shall always be composed of fifty members, except that if any county having three or more senators at the time of any apportionment shall be entitled on such ratio to an additional sen- ator or senators, such additional senator or senators shall be given to such county in addition to the fifty senators, and the whole num- ber of senators shall be increased to that extent. Section 5. Apportionment of assemblymen: creation of assem- bly districts. — The members of the assembly shall be chosen by single districts, and shall be apportioned by the legislature at the first regular session after the return of every enumeration among the several counties of the state, as nearly as may be according to the number of their respective inhabitants, excluding aliens. Every county heretofore established and separately organized, except the county of Hamilton, shall always be entitled to one member of assembly, and no county shall hereafter be erected unless its popu- lation shall entitle it to a member. The county of Hamilton shall elect with the county of Fulton, until the population of the county of Hamilton shall, according to the ratio, entitle it to a mem- - ber. But the legislature may abolish the said county of Ham- ilton and annex the territory thereof to some other county or counties. The quotient obtained by dividing the whole number of inhab- CONSTITUTION OF NEW YORK 77 itants of the state, excluding aliens, by the number of members of assembly, shall be the ratio for apportionment, which shall be made as follows: One member of assembly shall be apportioned to every county, including Fulton and Hamilton as one county, containing less than the ratio and one half over. Two members shall be apportioned to every other county. The remaining mem- bers of assembly shall be apportioned to the counties having more than two ratios according to the number of inhabitants, excluding aliens. Members apportioned on remainders shall be apportioned to the counties having the highest remainders in the order thereof respectively. No county shall have more members of assembly than a county having a greater number of inhabitants, excluding aliens. [Here follows an enumeration of the counties with the number of members apportioned to each.] In any county entitled to more than one member, the board of supervisors, and in any city embracing an entire county and having no board of supervisors, the common council, or if there be none, the body exercising the powers of a common council, shall assemble on the second Tuesday of June, one thousand eight hundred and ninety-five, and at such times as the legislature making an appor- tionment shall prescribe, and divide such counties into assembly districts as nearly equal in number of inhabitants, excluding aliens, as may be, of convenient and contiguous territory in as compact form as practicable, each of which shall be wholly within a senate district formed under the same apportionment, equal to the number of members of assembly to which such county shall be entitled, and shall cause to be filed in the oiEce of the secretary of state and of the clerk of such county, a description of such districts, specifying the number of each district and of the inhabitants thereof, excluding aliens, according to the last preceding enumeration; and such apportionment and districts shall remain unaltered until another enumeration shall be made, as herein provided; but said division of the city of Brooklyn and the county of Kings to be made on the second Tuesday of June, one thousand eight hundred and ninety-five, shall be made by the common council of the said city and the board of supervisors of said county, assembled in joint session. In counties having more than one senate district, the same 78 CIVICS OF NEW YORK STATE number of assembly districts shall be put in each senate district, unless the assembly districts cannot be evenly divided among the senate districts of any county, in which case one more assembly district shall be put in the senate district in such county having the largest, or one less assembly district shall be put in the senate dis- trict in such county having the smallest number of inhabitants, excluding aliens, as the case may require. No town, and no block in a city inclosed by streets or public ways, shall be divided in the formation of assembly districts, nor shall any district contain a greater excess in population over an adjoining district in the same senate district, than the population of a town or block therein adjoining such assembly district. Towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants, excluding aliens; but in the division of cities under the first appor- tionment, regard shall be had to the number of inhabitants, ex- cluding aliens, of the election districts according to the state enu- meration of one thousand eight hundred and ninety-two, so far as may be, instead of blocks. Nothing in this section shall prevent the division, at any time, of counties and towns, and the erection of new towns by the legislature. An , apportionment by the legislature, or other body, shall be subject to review by the supreme court, at the suit of any citizen, under such reasonable regulations as the legislature may prescribe; and any court before which a cause may be pending involving an apportionment, shall give precedence thereto over all other causes and proceedings, and if said court be not in session it shall convene promptly for the disposition of the same. Section 6. Compensation of members. — Each member' of the legislature shall receive for his services an annual salary of one thousand five hundred dollars. The members of either house shall also receive the sum of one dollar for every ten miles they shall travel, in going to and returning from their place of meeting, once in each session, on the most usual route. Senators, when the sen- ate alone is convened in extraordinary session, or when serving as members of the court for the trial of impeachments, and such members of the assembly, not exceeding nine in number, as shall CONSTITUTION OF NEW YORK 79 be appointed managers of an impeachment, shall receive an addi- tional allowance of ten dollars a day. Section 7. Civil appointments of members void. — No member of the legislature shall receive any civil appointment within this state, or the senate of the United States, from the governor, the governor and senate, or from the legislature, or from any city gov- ernment, during the time for which he shall have been elected; and all such appointments and all votes given for any such mem- ber for any such office or appointment shall be void. Section 8. Persons disqualified from being members. — No per- son shall be eligible to the legislature who, at the time of his election, is, or within one hundred days previous thereto has been, a mem- ber of congress, a civil or military oflBicer under the United States, or an oflGicer under any city government. And if any person shall, after his election as a member of the legislature, be elected to con- gress, or appointed to any office, civil or military, under the gov- ernment of the United States, or under any city government, his acceptance thereof shall vacate his seat. Section 9. Time of elections. — The elections of senators and members of assembly, pursuant to the provisions of this constitu- tion, shall be held on the Tuesday succeeding the first Monday of November, unless otherwise directed by the legislature. Section 10. Powers of each house. — A majority of each house shall constitute a quorum to do business. £ach house shall de- termine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its Own members; shall choose its own officers; and the senate shall choose a temporary president to preside in case of the absence or impeachment of the lieutenant governor, or when he shall refuse to act as president, or shall act as governor. Section ii. Journals: open sessions: adjournments. — Each house shall keep a journal of its proceedings, and publish the same, except such parts as may require secrecy. The doors of each house shall be kept open, except when the public welfare shall require secrecy. Neither house shall, without the consent of the other, adjourn for more than two days. 8o CIVICS OF NEW YORK STATE Section 12. Members not to be questioned for speeches. — For any speech or debate in either house of the legislature, the members shall not be questioned in any other place. Section 13. Bills may originate in either house. — Any bill may originate in either house of the legislature, and all bills passed by one house may be amended by the other. Section 14. Enacting clause of bills. — The enacting clause of all bills shall be "The people of the state of New York, represented in senate and assembly, do enact as follows," and no law shall be enacted except by bill. Section 15. Maimer of passing bills. — No bill shall be passed or become a law unless it shall have been printed and upon the desks of the members, in its final form, at least three calendar legislative days prior to its final passage, unless the governor, or the acting governor, shall have certified to the necessity of its im- mediate passage, under his hand and the seal of the state; nor shall any bill be passed or become a law, except by the assent of a majority of the members elected to each branch of the legisla- ture; and upon the last reading of a bill, no amendment thereof shall be allowed, and the question upon its final passage shall be taken immediately thereafter, and the yeas and nays entered on the journal. Section 16. Private and local bills not to embrace more than one subject. — No private or local bill, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title. Section 17. Existing law made applicable to be inserted. — No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act. Section 18. Cases in which private and local bills shall not be passed: restrictions as to laws authorizing street railroads. — The legislature shall not pass a private or local bill in any of the follow- ing cases: Changing the names of persons. CONSTITUTION OF NEW YORK 8l Laying out, opening, altering, working or discontinuing roads, highways or alleys, or for draining swamps or other low lands. Locating or changing county seats. Providing for changes of venue in civil or criminal cases. Incorporating villages. Providing for election of members of boards of supervisors. Selecting, drawing, summoning or impanelling grand or petit jurors. Regulating the rate of interest on money. The opening and conducting of elections or designating places of voting. Creating, increasing or decreasing fees, percentage or allow- ances of public officers, during the term for which said officers are elected or appointed. Granting to any corporation, association or individual the right to lay down railroad tracks. Granting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever. Granting to any person, association, firm or corporation, an ex- emption from taxation on real or personal property. Providing for building bridges, and chartering companies for such purposes, except on the Hudson river below Waterford, and on the East river, or over the waters forming a part of the boun- daries of the state. The legislature shall pass general laws providing for the cases enumerated in this section, and for all other cases which in its judgment, may be provided for by general laws. But no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of, that portion of a street or high- way upon which it is proposed to construct or operate such rail- road be first obtained, or in case the consent of such property owners cannot be obtained, the appellate division of the supreme court, in the department in which it is proposed to be constructed, may, upon application, appoint three commissioners who shall de- termine, after a hearing of all parties interested, whether such rail- 82 CIVICS OF NEW YORK STATE road ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners. Section 19. Private claims not to be audited by legislature. — The legislature shall neither audit nor allow any private claim or account against the state, but may appropriate money to pay such claims as shall have been audited and allowed according to law. Section 20. Two-thirds bills. — The assent of two-thirds of the members elected to each branch of the legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes. Section 21. Appropriation bills. — No money shall ever be paid out of the treasury of this state, or any of its funds, or any of the funds under its management, except in pursuance of an appropria- tion by law; nor unless such payment be made within two years next after the passage of such appropriation act; and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object to which it is to be applied; and it shall not be sufficient for such law to refer to any other law to fix such sum. Section 22. Restrictions as to provisions in the appropriation or supply bills. — No provision or enactment shall be embraced in the annual appropriation or supply bill, unless it relates specifically to some particular appropriation in the bill; and any such provision or enactment shall be limited in its operation to such appropriation. Section 23. Certain sections not to apply to commission bills. • — Sections seventeen and eighteen of this article shall not apply to any bill, or the amendments to any bill, which shall be reported to the legislature by commissioners who have been appointed pursu- ant to law to revise the statutes. Section 24. Tax bills to state tax distinctly. — Every law which imposes, continues or revives a tax shall distinctly state the tax and the object to which it is to be applied, and it shall not be sufficient to refer to any other law to fix such tax or object. Section 25. When ayes and nays necessary: three-fifths to con- stitute quorum. — On the final passage, in either house of the legislature, of any act which imposes, continues or revives a tax, CONSTITUTION OF NEW YORK 83 or creates a debt or charge, or makes, continues or revives any appropriation of public or trust money or property, or releases, discharges or commutes any claim or demand of the state, the question shall be taken by yeas and nays, which shall be duly en- tered upon the journals, and three-fifths of all the members elected to either house shall, in aU such cases, be necessary to constitute a quorum therein. Section 26. Boards of supervisors. — There shall be in each county, except in a county wholly included in a city, a board of supervisors, to be composed of such members and elected in such manner and for such period as is or may be provided by law. In a city which includes an entire county, or two or more entire coun- ties, the powers and duties of a board of supervisors may be de- volved upon the municipal assembly, common council, board of aldermen, or other legislative body of the city. Section 27. Local legislative powers. — The legislature shall, by general laws, confer upon the boards of supervisors of the sev- eral counties of the state such further powers of local legislation and administration as the legislature may, from time to time, deem expedient. Section 28. Extra compensation prohibited. — The legislature shall not, nor shall the common council of any city, nor any board of supervisors, grant any extra compensation to any public officer, servant, agent or cojitractor. Section 29. Prison labor : contract system abolished. — The legis- lature shall, by law, provide for the occupation and employment of prisoners sent'enced to the several state prisons, penitentiaries, jails and reformatories in the state; and on and after the first day of January, in the year one thousand eight hundred and ninety- seven, no person in any such prison, penitentiary, jail or reforma- tory, shall be required or allowed to work, while under sentence thereto, at any trade, industry or occupation, wherein or whereby his work, or the product or profit of his work, shall be farmed out, contracted, given or sold to any person, firm, association or corpo- ration. This section shall not be construed to prevent the legisla- ture from providing that convicts may work for, and that the prod- ucts of their labor may be disposed of to, the state or any political 84 CIVICS OF NEW YORK STATE division tliereof, or for or to any public institution owned or man- aged and controlled by the state, or any political division tliereof. ARTICLE IV Section i. Executive power. — The executive power shall be vested in a governor, who shall hold his office for two years; a lieutenant governor shall be chosen at the same time, and for the same term. The governor and lieutenant governor elected next preceding the time when this section shall take effect, shall hold ofl&ce until and including the thirty-first day of December one thou- sand eight hundred and ninety-six, and their successors shall be chosen at the general election in that year. Section 2. Qualifications of governor and lieutenant governor. — No person shall be eligible to the of6ce of governor or lieutenant governor, except a citizen of the United States, of the age of not less than thirty years, and who shall have been five years next preceding his election a resident of this state. Section 3. Election of governor and lieutenant governor. — The governor and lieutenant governor shall be elected at the times and places of choosing members of the assembly. The persons respectively having the highest number of votes for governor and lieutenant governor shall be elected; but in case two or more shall have an equal and the highest number of votes. for governor, or for lieutenant governor, the two houses of the legislature at its next annual session shall forthwith, by joint ballot, choose one of the said persons so having an equal and the highest number of votes for governor or lieutenant governor. Section 4. Duties and powers of governor: compensation. — The governor shall be commander-in-chief of the military and naval forces of the state. He shall have power to convene the legislature, or the senate only, on extraordinary occasions. At ex- traordinary sessions no subject, shall be acted upon, except such as the governor may recommend for consideration. He shall com- municate by message to the legislature at every session the condi- tion of the state, and recommend such matters to it as he shall judge expedient. He shall transact all necessary business with the CONSTITUTION OF NEW YORK 85 officers of government, civil and military. He shall expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws are faithfully executed. He shall re- ceive for his services an annual salary of ten thousand dollars, and there shall be provided for his use a suitable and furnished executive residence. Section 5. Reprieves, commutations and pardons to be granted by governor. — The governor shall have the power to grant re- prieves, commutations and pardons after conviction, for all offences exqept treason and cases of impeachment, upon such conditions and with such restrictions and limitations, as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Upon conviction for treaso'n, he shall have power to suspend the execution of the sentence, until the case shall be reported to the legislature at its next meeting, when the legislature shall either pardon, or commute the sentence, direct the execution of the sentence, or grant a further reprieve. He shall annually communicate to the legislature each case of re- prieve, commutation or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon or reprieve. Section 6. When lieutenant governor to act as governor. — In case of the impeachment of the governor, or his removal from office, death, inability to discharge the powers and duties of the said office, resignation, or absence from the state, the powers and duties of the office shall devolve upon the lieutenant governor for the residue of the' term, or until the disability shall cease. But when the governor shall, with the consent of the legislature, be out of the state, in time of war, at the head of a military force thereof, he shall continue commander-in-chief of all the military force of the state. Section 7. Qualifications and duties of lieutenant governor: suc- cession to the governorship. — The lieutenant governor shall pos- sess the same qualifications of eligibility for office as the governor. He shall be president of the senate, but shall have only a casting vote therein. If during a vacancy of the office of governor, the lieutenant governor shall be impeached, displaced, resign, die, or 86 CIVICS OF NEW YORK STATE become incapable of performing the duties of his office, or be ab- sent from the state, the president of the senate shall act as governor until the vacancy be filled or the disability shall cease; and if the president of the senate for any of the above causes shall become in- capable of performing the duties pertaining to the office of governor, the speaker of the assembly shall act as governor until the vacancy be filled or the disability shall cease. Section 8. Salary of lieutenant governor. — The lieutenant governor shall receive for his services an annual salary of five thou- sand dollars, and shall not receive or be entitled to any other com- pensation, fee or perquisite, for any duty or service he may be re- quired to perform by the constitution or by law. Section 9. Bills to be presented to the governor : approval : passage of bill by legislature if not approved. — Every bill vjrhich shall have passed the senate and assembly shall, before it becomes a law, be presented to the governor; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it shall have originated, which shall enter the objections at large on the journal, and proceed to reconsider it. If after such recon- sideration, two-thirds of the members elected to that house shall agree to pass the bill, it shall be sent together with the objections, to the other house, by which it shall likewise be reconsidered; and if approved by two-thirds of the members elected to that house, it shall become a law notwithstanding the objections of the governor. In all such cases, the votes in both houses shall be determined by yeas and nays, and the names of the members voting shall be en- tered on the journal of each house respectively. If any bill shall not be returned by the governor within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the legislature shall, by their adjournment, prevent its return, in which case it shall not become a law without the approval of the governor. No bill shall become a law after the final adjournment of the legislature, unless approved by the governor within thirty days after such adjourn- ment. If any bill presented to the governor contain several items of appropriation of money, he may object to one or more of such items while approving of the other portion of the bill. In such CONSTITUTION OF NEW YORK 87 case, he shall append to the bill, at the time of signing it, a state- ment of the items to which he objects; and the appropriation so objected to shall not take effect. If the legislature be in session, he shall transmit to the house in which the bill originated a copy of such statement, and the items objected to shall be separately reconsidered. If on reconsideration one or more of such items be approved by two-thirds of the members elected to each house, the same shall be part of the law, notwithstanding the objections of the governor. All the provisions of this section, in relation to bills not approved by the governor, shall apply in cases in which he shall withhold his approval from any item or items contained in a bill appropriating money. ARTICLE V Section i. State officers. — The secretary of state, comp- troller, treasurer, attorney-general and state engineer and surveyor shall be chosen at a general election, at the times and places of electing the governor and lieutenant governor, and shall hold their offices for two years, except as provided in section two of this article. Each of the officers in this article named, excepting the speaker of the asseinbly, shall, at stated times during his continuance in office, receive for his services a .compensation which shall not be increased or diminished during the term for which he shall have been elected; nor shall he receive to his use any fees or perquisites of office or other compensation. No person shall be elected to the office of state engineer and surveyor who is not a practical civil engineer. Section 2. First election of state officers. — The first election of the secretary of state, comptroller, treasurer, attorney-general and state engineer and surveyor, pursuant to this article, shall be held in the year one thousand eight hundred and ninety-five, and their terms of office shall begin on the first day of January following, and shall be for three years. At the general election in the year one 'thousand eight hundred and ninety-eight, and every two years thereafter, their successors shall be chosen for the term of two years. Section 3. Superintendent of public works: appointment: pow- ers and duties of. — A superintendent of public works shall be 88 CIVICS OF NEW YORK STATE appointed by the governor, by and with the advice and consent of the senate, and hold his oi£ce until the end of the term of the gov- ernor by whom he was nominated, and until his successor is ap- pointed and qualified. He shall receive a compensation to be jixed by law. He shall be required by law to give security for the faith- ful execution of his office before entering upon the duties thereof. He shall be charged with the execution of all laws relating to the repair and navigation of the canals, and also of those relating to the construction and improvement of the canals, except so far as the execution of the laws relating to such construction or improve- ment shall be confided to the state engineer and surveyor; subject to the control of the legislature, he shall make the rules and regu- lations for the navigation or use of the canals. He may be sus- pended or removed from office by the governor, whenever, in his judgment, the public interest shall so require; but in case of the removal of such superintendent of public works from office, the governor shall file with the secretary of state a statement of the cause of such removal, and shall report such removal and the cause thereof to the legislature at its next session. The superintendent of public works shall appoint not more than three assistant super- intendents, whose duties shall be prescribed by him, subject to modification by the legislature, and who shall receive for their ser- vices a compensation to be fixed by law. They shall hold their office for three years, subject to suspension or removal by the super- intendent of public works, whenever, in his judgment, the public interest shall so require. Any vacancy in the office of any such assistant superintendent shall be filled for the remainder of the term for which he was appointed, by the superintendent of public works; but in case of the suspension or removal of any such assist- ant superintendent by him, he shall at once report to the governor, in writing, the cause of such removal. All other persons employed in the care and management of the canals, except collectors of tolls, and those in the department of the state engineer and sur- veyor, shall be appointed by the superintendent of public works, and be subject to suspension or removal by him. The superin- tendent of public works shall perform all the duties of the former canal commissioners, and board of canal commissioners, as now CONSTITUTION OF NEW YORK 89 declared by law, until otherwise provided by the legislature. The governor, by and with the advice and consent of the senate, shall have power to fill- vacancies in the oifice of superintendent of public works; if the senate be not in session, he may grant commissions which shall expire at the end of the next succeeding session of the senate. Section 4. Superintendent of state prisons : appointment : pow- ers and duties of. — A superintendent of state prisons shall be ap- pointed by the governor, by and with the advice and consent of the senate, and hold his office for five years, unless sooner removed; he shall give security in such amount, and with such sureties as shall be required by law for the faithful discharge of his duties; he shall have the superintendence, management and control of state pris- ons, subject to such laws as now exist or may hereafter be enacted; he shall appoint the agents, wardens, physicians and chaplains of the prisons. The agent and warden of each prison shall appoint all other officers of such prison, except the clerk, subject to the approval of the same by the superintendent. The comptroller shall appoint the clerks of the prisons. The superintendent shall have all the powers and perform all the duties not inconsistent herewith, which were formerly had and performed by the inspectors of state prisons. The governor may remove the superintendent for cause at any time, giving to him a copy of the charges against him, and an opportunity to be heard in his defence. Section 5. Commissioners of the land office: of the canal fund: canal board. — The lieutenant governor, speaker of the assembly, secretary of state, comptroller, treasurer, attorney-general and state engineer and surveyor shall be the commissioners of the land office. The lieutenant governor, secretary of state, comptroller, treasurer and attorney-general shall be the commissioners of the canal fund. The canal board shall consist of the cornmissioners of the canal fund, the state engineer and surveyor, and the super- intendent of public works. Section 6. Powers and duties of boards. — The powers and duties of the respective boards, and of the several officers in this article mentioned, shall be such as now are or hereafter may b^ prescribed by law. , ^ , , 90 CIVICS OF NEW YORK STATE Section 7. State treasurer : suspension by governor. — The treas- urer may be suspended from office by the governor, during the recess of the legislature, and until thirty days after the commence- ment of the next session of the legislature, whenever it shall appear to him that such treasurer has,' in any particular, violated his duty. The governor shall appoint a competent person to discharge the duties of the office during such suspension of the treasurer. Section 8. Certain offices abolished. — All offices for the weigh- ing, gauging, measuring, culling or inspecting any merchan- dise, produce, manufacture or commodity whatever, are hereby abolished; and no such office shall hereafter be created by law; but nothing in this section contained shall abrogate any office cre- ated for the purpose of protecting the public health or the interests of the state in its property, revenue, tolls or purchases, or of sup- plying the people with correct standards of weights and measures, or shall prevent the creation of any office for such purposes here- after. Section 9. Civil service appointments and promotions. — Ap- pointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the late civil war, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, without re- gard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section. ARTICLE VI Section i. Supreme Court: how constituted: judicial districts. — The supreme court is continued with general jurisdiction in law and equity, subject to such appellate jurisdiction of the court of appeals as now is or may be prescribed by law not inconsistent with this article. The existing judicial districts of the state are con- CONSTITUTION OF NEW YORK 91 tinued until changed as hereinafter provided. The supreme court shall consist of the justices now in office, and of the judges trans- ferred thereto by the fifth section of this article, all of whom shall continue to be justices of the supreme court during their respec- tive terms, and of twelve additional justices who shall reside in and be chosen by the electors of, the several existing judicial districts, three in the first district, three in the second, and one in each of the other districts; and of their successors. The successors of said justices shall be chosen by the electors of their respective judicial districts. The legislature may alter the judicial districts once after every enumeration, under the constitution, of the inhabitants of the state, and thereupon reapportion the justices to be thereafter elected in the districts so altered. Section 2. Judicial departments: appellate division how consti- tuted : governor to designate justices : reporter : time and place of holding cotirt. — The legislature shall divide the state into four judicial departments. The first department shall consist of the county of New York; the others shall be bounded by county lines, and be compact and equal in population as nearly as may be. Once every ten years the legislature may alter the judicial depart- ments, but without increasing the number thereof. There shall be an appellate division of the supreme court, consisting of seven justices in the first department, and of five justices in each of the other departments. In each department four shall constitute a quorum, and the concurrence of three shall be necessary to a de- cision. No more than five justices shall sit in any case. From all the justices elected to the supreme court the governor shall desig- nate those who shall constitute the appellate division in each de- partment; and he shall designate the presiding justice thereof, who shall act as such during his term of office, and shall be a resident of the department. The other justices shall be designated for terms of five years or the unexpired portions of their respective terms of office, if less than five years. From time to time as the terms of such designations expire, or vacancies occur, he shall make new designations. A majority of the justices so designated to sit in the appellate division in each department shall be residents of the department. He may also make temporary designations in 92 CIVICS OF NEW YORK STATE case of the absence or inability to act of any justice in the appellate division or in case the presiding justice of any appellate' division shall certify to him that one or more additional justices are needed for the speedy disposition of the business before it. Whenever the appellate division in any department shall be unable to dispose of its business within a reasonable time, a majority of the presiding justices of the several departments at a meeting called by the pre- siding justice of the department in arrears may transfer any pend- ing appeals from such department to any other department for hearing and determination. No justice of the appellate division shall exercise any of the powers of a justice of the supreme court, other than those of a justice out of court, and those pertaining to the appellate division or to the hearing and decision of motions submitted by consent of counsel. From and after the last day of December, eighteen hundred and ninety-five, the appellate division shall have the jurisdiction now exercised by the supreme court at its general terms, and by the general terms of the court of common pleas for the city and county of New York, the superior court of the city of New York, the superior court of Buffalo and the city court of Brooklyn, and such additional jurisdiction as may be con- ferred by the legislature. It shall have power to appoint and re- move, a reporter. The justices of the appellate division in each department shall have power to fix the times and places for holding special and trial terms therein, and to assign the justices in the departments to hold such terms; or to make rules therefor. Section 3. Judge or justice not to sit in review: testimony in equity cases. — No judge or justice shall sit in the appellate division or in the court of appeals in review of a decision made by him or by any court of which he was at the time a sitting member. The testimony in equity cases shall be taken in like manner as in cases at law; and, except as herein otherwise provided, the legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and in equity that it has heretofore exercised. Section 4. Terms of oflace : vacancies, how filled. — The official terms of the justices of the supreme court shall be fourteen years from and including the first day of January next after their election. When a vacancy shall occur otherwise than by expiration of term CONSTITUTION OF NEW YORK 93 ia the office of justice of the supreme court the same shall be filled for a full term, at the next general election, happening not less than three months after such vacancy occurs; and, until the vacancy shall be so filled, the governor by and with the advice and consent of the senate, if the senate shall be in session, or if not in session, the governor may fill such vacancy by appointment, which shall continue until and including the last day of December next after the election at which the vacancy shall be filled. Section 5. City courts abolished: judges become justices of su- preme court : salaries : jurisdiction vested in supreme court. — The superior court of the city of New York, the court of com- mon pleas for the city and county of New York, the superior court of Buffalo, and the city court of Brooklyn, are abolished from and after the first day of January, one thousand eight hun- dred and ninety-six, and thereupon the seals, records, papers and documents of or belonging to such courts, shall be deposited in the offices of the clerks of the several counties in which said courts now exist; and all actions and proceedings then pending in such courts shall be transferred to the supreme court for hearing and deter- mination. The judges of said courts in office on the first day of January, one thousand eight hundred and ninety-six, shall, for the remainder of the terms for which they were elected or appointed, be justices of the supreme court; but they shall sit only in the counties in which they were elected or appointed. Their salaries shall be paid by the said counties respectively, and shall be the same as the salaries of the other justices of the supreme court residing in the same counties. Their successors shall be elected as justices of the supreme court by the electors of the judicial districts in which they respectively reside. The jurisdiction now exercised by the several courts hereby abolished, shall be vested in the supreme court. Appeals from inferior and local courts now heard in the court of common pleas for the city and county of New York and the superior court of Buffalo, shall be heard in the supreme court in such manner and by such justice or justices as the appellate divisions in the respec- tive departments which include New York and Buffalo shall direct, unless otherwise provided by the legislature. 94 CIVICS OF NEW YORK STATE Section 6. Circuit courts and courts of oyer and terminer abolished. — Circuit courts and courts of oyer and terminer are abolished from and after the last day of December, one thousand eight hundred and ninety-five. All their jurisdiction shall there- upon be vested in the supreme court, and all actions and proceed- ings then pending in such courts shall be transferred to the supreme court for hearing and determination. Any justice of the supreme court, except as otherwise provided in this article, may hold court in any county. Section 7. Court of appeals. — The court of appeals is con- tinued. It shall consist of the chief judge and associate judges now in office, who shall hold their offices until the expiration of their respective terms, and their successors, who shall be chosen by the electors of the state. The official terms of the chief judge and associate judges shall be fourteen years from and including the first day of January next after their election. Five members of the court shall form a quorum, and the concurrence of four shall- be necessary to a decision. The court shall have power to appoint and to remove its reporter, clerk and attendants. Whenever and as often as a majority of the judges of the court of appeals shall cer- tify to the governor that said court is unable, by reason of the accu- mulation of causes pending therein, to hear and dispose of the same with reasonable speed, the governor shall designate not more than four justices of the supreme court to serve as associate judges of the court of appeals. The justices so designated shall be re- lieved from their duties as justices of the supreme court and shall serve as associate judges of the court of appeals until t he caus es undisposed of in said court are jreduced_ta_twJ3— hundred^ when they shall return to the supreme court. The governor may des- ignate justices of the supreme court to fill vacancies. No justice shall serve as associate judge of the court of appeals except while holding the office of justice of the supreme court, and no more than seven judges shall sit in any case. Section 8. Vacancy in coiurt of appeals, how filled. — When a vacancy shall occur otherwise than by expiration of term, in the office of chief or associate judge of the court of appeals, the same shall be filled, for a full term, at the next general election happening CONSTITUTION OF NEW YORK 95 not less than three months after such vacancy occurs; and until the vacancy shall be so filled, the governor, by and with the advice and consent of the senate, if the senate shall be in session, or if not in session the governor may fill such vacancy by appointment. If any such appointment of chief judge shall be made from among the associate judges, a temporary appointment of associate judge shall be made in like manner; but in such case, the person appointed chief judge shall not be deemed to vacate his office of associate judge any longer than until the expiration of his appointment as thief judge. The powers and jurisdiction of the court shall not be suspended for want of appointment or election, when the number of judges is sufficient to constitute a quorum. All appointments under this section shall continue until and including the last day of December next after the election at which the vacancy shall be filled. Section 9. Jurisdiction of court of appeals. — After the last day of December, one thousand eight hundred and ninety-five, the jurisdiction of the court of appeals, e xcept where the judgment. i s o f death , shall be limited to the review of questions of law. No unanimous decision of the appellate division of the supreme court that there is evidence supporting or tending to sustain a find- ing of fact or a verdict not directed by the court, shall be reviewed by the court of appeals. Except where the judgment is of death, appeals may be taken, as of right, to said court only from judg- ments or orders entered upon decisions of the appellate division of the supreme court, finally determining actions or special pro- ceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance, judgment absolute shall be rendered against them. The appellate division in any department may, however, allow an appeal upon any question of law which, in its opinion, ought to be reviewed by the court of appeals. The legislature may further restrict the jurisdiction of the court of appeals and the right of appeal thereto,^biiLlii£jdght to appe al shall not depend upon the amount involved . The provisions of this section shall not apply to orders made or judgments rendered by any general term before the last day of December, one thousand eight hundred and ninety-five, 96 CIVICS OF NEW YORK STATE but appeals therefrom may be taken under existing provisions of law. Section io. Judges not to hold any other office. — The judges of the court of appeals, and the justices of the supreme court shall not hold any other office or public trust. All votes for any of them, for any other than a judicial office, given by the legislature or the people, shall be void. Section ii. Removal of judges. — Judges_^f__t3ie„CQUrt of ap- peals and justices of the supreme-court may be removed by con- current resolution of both houses of the legislature, if two-thirds of all the members elected to each house concur therein. AH other judici al officer Sj^ except justices of the peace and judges or justices of inferior courts not of record, may be rem oved by the senate, on the recommendation of the governor, if two-thirds of all the mem- bers elected to the senate concur therein. But no officer shall be removed by virtue of this section except for cause, which shall ,be entered on the journals, nor unless he shall have been served with a statement of the cause alleged, and shall have had an oppor- tunity to be heard. On the question of removal, the yeas and nays shall be entered on the journal. Section 12. Compensation: age restriction: assignment by gov- ernor. — The judges and justices hereinbefore mentioned shall re- ceive for their services a compensation established by law, which shall not be increased or diminished during their official terms, ex- cept as provided in section five of this article. No person shall hold the office of judge or justice of any court longer than until and including the last day of December next after he shall be sev- enty years of age. No judge or justice elected after the first day of January, one thousand eight hundred and ninety-four, shall be entitled to receive any compensation after the last day of December next after he shall be seventy years of age; but the compensation of every judge of the court of appeals or justice of the supreme court elected prior to the first day of January, one thousand eight hundred and ninety-four, whose term of office has been, or whose present term of office shall be, so abridged, and who shall have served as such judge or justice ten years or more, shall be continued during the remainder of the term for which he was elected; but any CONSTITUTION OF NEW YORK 97 such judge or justice may, with his consent, be assigned by the governor, from time to time, to any duty in the supreme court while his compensation is so continued. Section 13. Trial of impeachments. — The assembly shall have the power of impeachment, by a vote of a majority of all the mem- bers elected. The court for the trial of impeachments shall be composed of the president of the senate, the senators, or the major part of them, and the judges of the court of appeals, or the major part of them. On the trial of an impeachment against the gov- ernor or lieutenant-governor, the lieutenant-governor shall not act as a member of the court. No judicial officer shall exercise his office, after articles of impeachment against him shall have been preferred to the senate, until he shall have been acquitted. Before the trial of an impeachment the members of the court shall take an oath or affirmation truly and impartially to try the impeachment according to the evidence, and no person shall be convicted without the concurrence of two-thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, or removal from office and disqualification to hold and enjoy any office of honor, trust or profit under this state; but the party ilnpeached shall be liable to indictment and punishment ac- cording to law. Section 14. County courts. — The existing county courts are continued, and the judges thereof now in office shall hold their offices until the expiration of their respective terms. In the county of Kings there shall be two county judges and the additional county judge shall be chosen at the next general election held after the adoption of this article. The successors of the several county judges shall be chosen by the electors of the counties for the term of six ye ars. County courts shall have the powers and jurisdic- tion they now possess, and also original jurisdiction in actions for the recovery of money only, y^erp the dpfpnHants resirip .in, the c£u«ity, and in which the complaint demands judgment for a sum not exceeding two thousa nd_jiollars. The legislature may here- after enlarge or restrict the jurisdiction of the county courts, pro- vided, however, that their jurisdiction shall not be so extended as to authorize an action therein for the recovery of money only, in 98 CIVICS OF NEW YORK STATE which the sum demanded exceeds two thousand dollars, or in which any person not a resident of the county is a defendant. Courts of sessions, except in the county of New York, are abol- ished from and after the last day of December, one thousand eight hundred and ninety-five. All the jurisdiction of the court of ses- sions in each county, except the county of New York, shall there- upon be vested in the county court thereof, and all actions and proceedings then pending in such courts of sessions shall be trans- ferred to said county courts for hearing and determination. Every county judge shall perform such duties as may be required by law. His salary shall be established by law, payable out of the county treasury. A county judge of any county may hold county courts in any other county when requested by the judge of such other county. Section 15. Surrogates' courts: surrogates, their powers and jurisdiction: vacancies. — The existing surrogates' courts are con- tinued, and the surrogates now in office shall hold their offices until the expiration of their terms. Their successors shall be chosen by the electors of their respective counties, and their terms of office shall be six v£ aJS. except in the county of New York, where they shall continue to be fourteen years. Surrogates and surro- gates' courts shall have the jurisdiction and powers which the surrogates and existing surrogates' courts now possess, until otherwise provided by the legislature. The county judge shall be surrogate of his county, except where a separate surrogate has been or shall be elected. In counties having a population exceed- ing forty thousand, wherein there is no separate surrogate, the legislatur,S--majr_ prcivide for the election of a separate officer to be surrogate, whose term of office shall be six years. When the sur- rogate shall be elected as a separate officer, his salary shall be es- tablished by law, payable out of the county treasury. No county judge or surrogate shall hold office longer than until and including the last day of December next after he shall be seventy years of age. Vacancies occurring in the office of county judge or surro- gate shall be filled in the samp manner as like vacancies occurring in the supreme court. The compensation of any county judge or surrogate shall not be increased or diminished during his term CONSTITUTION OF NEW YORK 99 of office. For the relief of surrogates' courts the legislature may confer upon the supreme court in any county having a population exceeding four hundred thousand, the powers and jurisdiction of surrogates, with authority to try issues of fact by jury in probate cases. Section 16. Local judicial officers. — The legislat ure- may, on application of the board of supervisors, proyide_faE_tli.e_jele£tion of local officers, not to exceed two in any county, to discharge the duties of county judge and of surrogate, i n cases of their inabi lity or of a vacancy, and in such other cases as may be provided by law, and to exercise such other powers in special cases as are or may be provided by law. Section 17. Justices of the peace: district court justices. — The electors of the several towns shall, at their annual town meetings, or at such other time and in such manner as the legislature may direct, elect just ijceg^ of the peace, whose term of office shall be faux-jcears. Jn case of an election to fill a vacancy occurring be- fore the expiration of a full term, they shall hold for the residue of the unexpired term. Their number and classification may be reg- ulated by law. Justices of the peace, and judges or justices of in- ferior courts not of record, and their clerks may be removed for cause, after due notice and an opportunity of being heard by such courts as are or may be prescribed by law. Justices of the peace and district court justices may be elected in the different cities of this state, in such manner, and with such powers and for such terms, respectively, as are or shall be prescribed by law; all other judicial officers in cities, whose election or appointment is not otherwise provided for in this article, shall be chosen by the electors of such cities, or appointed by some local authorities thereof. Section 18. Inferior local courts. — Inferior local courts of civil and criminal jurisdiction may be established by the legislature, but n p inferi or local court hereafter created shall be a court of record. The legislature shall not hereafter confer upon any inferior or local court of its creation, any equity jurisdiction or any greater juris- diction in other respects than is conferred upon county courts by or under this article. Except as herein otherwise provided, all lOO CIVICS OF NEW YORK STATE judicial officers shall be elected or appointed at such times and in such manner as the legislature may direct. Section 19. Clerks of courts. — Clerks of the several counties shall be clerks of the supreme court, with such powers and duties as shall be prescribed by law. The justices of the appellate divi- sion in each department shall have power to appoint and to re- move a clerk, who shall keep his office at a place to be designated by said justices. The clerk of the court of appeals shall keep his office at the seat of government. The clerk of the court of appeals and the clerks of the appellate division shall receive compensation to be established by law and paid out of the public treasury. Section 20. Wo judicial officer, except justice of the peace, to receive fees : not to act as attorney or counselor. — No judicial officer, except justices of the peace, shall receive to his own use any fees or perquisites of office; nor shall any judge of the court of appeals, or justice of the supreme court, or any county judge or surrogate hereafter elected in a county having a population ex- ceeding one hundred and twenty thousand, practice as an attorney or counselor in any court of record of this state, or act as referee. The legislature may impose a similar prohibition upon county judges and surrogates in other counties. No one shall be eligible to the office of judge of the court of appeals, justice of the su- preme court, or, except in the county of Hamilton, to the office of county judge or surrogate, who is not an attorney and counselor of this state. Section 21. Publication of statutes. — The legislature shall pro- vide for the speedy publication of all statutes, and shall regulate the reporting of the decisions of the courts; but all laws and judicial decisions shall be free for publication by any person. Section 22. Terms of office of present justices of the peace and local judicial officers. — Justices of the peace and other local judi- cial officers provided for in sections seventeen and eighteen, in office when this article takes effect, shall hold their offices until the ex- piration of their respective terms. Section 23. Courts of special sessions. — Courts of special ses- sions shall have such jurisdiction of offences of the grade of mis- demeanors as may be prescribed by law. CONSTITUTION OF NEW YORK lOi ARTICLE VII Section i. State credit not to be given. — The credit of the state shall not in any manner be given or loaned to or in aid of any individual, association or corporation. Section 2. State debts: power to contract. — The state may, to meet casual deficits or failures in revenues, or for expenses not pro- vided for, contract debts; but such debts, direct or contingent, singly or in the aggregate, shall not at any time exceed one million of dollars; and the moneys arising from the loans creating such debts shall be applied to the purpose for which they were obtained, or to repay the debt so contracted, and to no other purpose what- ever. Section 3. State debts to repel invasions. — In addition to the above limited power to contract debts, the state may contract debts to repel invasion, suppress insurrection, or defend the state in war; but the money arising from the contracting of such debts shall be applied to the purpose for which it was raised, 'or to repay such debts, and to no other purpose whatever. Section 4. Limitation of legislative power to create debts. — Except the debts specified in sections two and three of this article, no debts shall be hereafter contracted by or on behalf of this state, unless such debt shall be authorized by a law, for some single work or object, to be distinctly specified therein; and such law shall im- pose and provide for the collection of a direct annual tax to pay, and sufiicient to pay, the interest on such debt as it falls due, and also to pay and discharge the principal of such debt within eighteen years from the time of the contracting thereof. No such law shall take effect until it shall, at a general election, have been submitted to the people, and have received a majority of all the votes cast for and against it at such election. On the final passage of such bill in either house of the legislature, the question shall be taken by ayes and noes, to be duly entered on the journals thereof, and shall be: "Shall this bill pass, and ought the same to receive the sanction of the people?" The legislature may at any time, after the approval of such law by the people, if no debt shall have beeri contracted in pursuance I02 CIVICS OF NEW YORK STATE thereof, repeal the same; and may at any time, by law, forbid the contracting of any further debt or liability under such law; but the tax imposed by such act, in proportion to the debt and liability which may have been contracted, in pursuance of such law, shall remain in force and be irrepealable, and be annually collected, until the proceeds thereof shall have made the provisions hereinbefore specified to pay and discharge the interest and principal of such debt and liability. The money arising from any loan or stock creating such debt or liability shall be applied to the work or ob- ject specified in the act authorizing such debt or liability, or for the repayment of such debt or liability, and for no other purpose whatever. No such law shall be submitted to be voted on, within three months after its passage, or at any general election when any other law, or any bill, or any amendment to the constitution, shall be submitted to be voted for or against. Section 5. Sinking fund: how kept and invested. — The sinking funds provided for the payment of interest and the extinguishment of the principal of the debts of the state shall be separately kept and safely invested, and neither of them shall be appropriated or used in any manner other than for the specific purpose for which it shall have been provided. Section 6. Claims barred by statute of limitations. — Neither the legislature, canal board, nor any person or persons acting in behalf of the state, shall audit, allow, or pay any claim which, as between citizens of the state, would be barred by lapse of time. This provision shall not be construed to repeal any statute fijdng the time within which claims shall be presented or allowed, nor shall it extend to any claims duly presented within the time allowed by law, and prosecuted with due diligence from the time of such presentment. But if the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed. Section 7. Forest preserve to be kept as wild forest lands. — The lands of the state, now owned or hereafter acquired, con- stituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or ex- CONSTITUTION OF NEW YORK 103 changed, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed. Section 8. Canals not to be sold: not applied to certain canals: disposition of funds. — The legislature shall not sell, lease or other- wise dispose of the Erie canal, the Oswego canal, the Champlain canal, the Cayuga and Seneca canal, or the Black River canal; but they shall remain the property of the state and under its man- agement forever. The prohibition of- lease, sale or other disposi- tion herein contained, shall not apply to the canal known as the Main and Hamburg street canal, situated in the city of Buffalo, and which extends easterly from the westerly line of Main street to the westerly line of Hamburg street. All funds that may be de- rived from any lease, sale or other disposition of any canal shall be applied to the improvement, superintendence or repair of the remaining portion of the canals. Section 9. No tolls to be imposed : contracts for work and ma- terials: no extra compensation. — No tolls shall hereafter be im- posed on persons or property transported on the canals, but all boats navigating the canals, and the owners and masters thereof, shall be subject to such laws and regulations as have been or may hereafter be enacted concerning the navigation of the canals. The legislature shall annually, by equitable taxes, make provision for the expenses of the superintendence and repair of the canals. All contracts for work or materials on any canal shall be made with the persons who shall offer to do or provide the same at the lowest price, with adequate security for their performance. No extra compensation shall be made to any contractor; but if, from any unforeseen cause, the terms of any contract shall prove to be un- just and .oppressive, the canal board may, upon the application of the contractor, cancel such contract. Section 10. Canal improvement and cost thereof. — The canals may be improved in such manner as the legislature shall provide by law. A debt may be authorized for that purpose in the mode prescribed by section four of this article, or the cost of such im- provement may be defrayed by the appropriation of funds from the state treasury, or by equitable annual tax. I04 CIVICS OF NEW YORK STATE ARTICLE VIII Section i. Corporations, how formed. — Corporations may be formed under general laws; but shall not be created by special act, except for municipal purposes, and in cases where, in the judg- ment of the legislature, the objects of the corporation cannot be attained under general laws. All general laws and special acts passed pursuant to this section may be altered from time to time, or repealed. Section 2. Corporations, dues of.— Dues from corporations shall be secured by such individual liability of the corporators and other means as may be prescribed by law. Section 3. Corporation: term defined. — The term corpora- tions as used in this article shall be construed to include all as- sociations and joint-stock companies having any of the powers or privileges of corporations not possessed by individuals or partner- ships. And all corporations shall have the right to sue and shall be subject to be sued in all courts in like cases as natural persons. Section 4. Savings bank charters : restrictions upon trustees : special charters not to be granted. — The legislature shall, by gen- eral law^, conform all charters of sa%'ings banks, or institutions for savings, to a uniformity of powers, rights and liabilities, and all charters hereafter granted for such corporations shall be made to conform to such general law, and to such amendments as may be made thereto. And no such corporation shall have any capital stock, nor shall the trustees thereof, or any of them, have any in- terest whatever, direct or indirect, in the profits of such corpora- tion; and no director or trustee of any such bank or institution shall be interested in any loan or use of any money or property of such bank or institution for savings. The legislature shall have no power to pass any act granting any special charter for banking purposes; but corporations or associations may be formed for such purposes under general laws. Section 5. Specie payment. — The legislature shall have no power to pass any law sanctioning in any manner, directly or in- directly, the suspension of specie payments, by any person, associ- ation or corporation, issuing bank notes of any description. CONSTITUTION OP NEW VORK tog Section 6. Registry of bills or notes. — The legislature shall provide by law for the registry of all bills or notes, issued or put in circulation as money, and shall require ample security for the re- demption of the same in specie. Section 7. Liability of stockholders of banks. — The stock- holders of every corporation and joint-stock association for banking purposes, shall be individually responsible to the amount of their respective share or shares of stock in any such corporation or asso- ciation, for all its debts and liabilities of every kind. Section 8. Billholders of insolvent bank preferred creditors. — In case of the insolvency of any bank or banking association, the billholders thereof shall be entitled to preference in payment, over all other creditors of such bank or association. Section 9. Credit or money of the state not to be given. — Neither the credit nor the money of the state shall be given or loaned to or in aid of any association, corporation or private under- taking. This section shall not, however, prevent the legislature from making such provision for the education and support of the blind, the deaf and dumb, and juvenile delinquents, as to it may seem proper. Nor shall it apply to any fund of property now held, or which may hereafter be held, by the state for educational purposes. Section 10. Counties, cities and towns not to give or loan money or credit : limitation of indebtedness. — No county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation, or become directly or indirectly the owner of stock in, or bonds of, any association or corporation; nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes. This section shall not pre- vent such county, city, town or village from making such provision for the aid or support of its poor as may be authorized by law. No. county or city shall be allowed to become indebted for any purpose or in any manner to an amount which, including existing indebted- ness, shall exceed ten per centum of the assessed valuation of the real estate of such county or city subject to taxation, as it appeared by the assessment-rolls of said county or city on the last assessment lo6 CIVICS OF NEW YORK STATE for state or county taxes prior to the incurring of such indebtedness; and all indebtedness in excess of such limitation, except such as may now exist, shall be absolutely void, except as herein otherwise provided. No county or city whose present indebtedness exceeds ten per centum of the assessed valuation of its real estate subject to taxation, shall be allowed to become indebted in any further amount until such indebtedness shall be reduced within such limit. This section shall not be construed to prevent the issuing of certificates of indebtedness or revenue bonds issued in anticipation of the col- lection of taxes for amounts actually contained, or to be contained in the taxes for the year when such certificates or revenue bonds are issued and payable out of such taxes. Nor shall this section be construed to prevent the issue of bonds to provide for the supply of water; but the term of the bonds issued to provide the supply of water shall not exceed twenty years, and a sinking fund shall be created on the issuing of the said bonds for their redemption, by raising annually a sum which will produce an amount equal to the sum of the principal and interest of said bonds at their maturity. All certificates of indebtedness or revenue bonds issued in antici- pation of the collection of taxes, which are not retired within five years after their date of issue, and bonds issued to provide for the supply of water, and any debt hereafter incurred by any portion or part of a city, if there shall be aHy such debt, shall be included in ascertaining the power of the city to become otherwise indebted. Whenever the boundaries of any city are the same as those of a county, or when any city shall include within its boundaries more than one county, the power of any county wholly included within such city to become indebted shall cease, but the debt of the county heretofore existing shall not, for the purposes of this section, be reckoned as a part of the city debt. The amount hereafter to be raised by tax for county or city purposes, in any county containing a city of over one hundred thousand inhabitants, or any such city of this state, in addition to providing for the principal and interest of existing debt, shall not in the aggregate exceed in any one year two per centum of the assessed valuation of the real and personal estate of such county or city, to be ascertained as prescribed in this section in respect to county or city debt. CONSTITUTION OF NEW YORK 107 Section ii. State board of charities: state commission in lu- nacy: state commission of prisons. — The legislature shall provide for a state board of charities, which shall visit and inspect all institutions, whether state, county, municipal, incorporated or not incorporated, which are of a charitable, eleemosynary, correc- tional or reformatory character, excepting only such institutions as are hereby made subject to the visitation and inspection of either of the commissions hereinafter mentioned, but including all re- formatories, except those in which adult males convicted of felony shall be confined; a state commission in lunacy, which shall visit and inspect all institutions, either public or private, used for the care and treatment of the insane (not including institutions for epileptics or idiots); a state commission of prisons which shall visit and inspect all institutions used for the detention of sane adults charged with or convicted of crime, or detained as witnesses or debtors. Section 12. Boards appointed by governor. — The members of the said board and of the said commissions shall be appointed by the governor, by and with the advice and consent of the senate; and any member may be removed from office by the governor for cause, an opportunity having been given him to be heard in his defence. Section 13. Existing laws to remain in force. — Existing laws relating to institutions referred to in the foregoing sections and to their supervision and inspection, in so far as such laws are riot in- consistent with the provisions of the constitution, shall remain in force until amended or repealed by the legislature. The visitation and inspection herein provided for shall not be exclusive of other visitation and inspection now authorized by law.- Section 14. Maintenance and support of inmates of charitable institutions. — Nothing in this constitution contained shall pre- vent the legislature from making such provision for the education and support of the blind, the deaf and dumb, and juvenile delin- quents, as to it may seem proper; or prevent any county, city, town or village from providing for the care, support, maintenance and secular education of inmates of orphan asylums, homes for de- pendent children or correctional institutions, whether under public io8 CIVICS OF NEW YORK STATE or private control. Payments by counties, cities, towns and vil- lages to charitable, eleemosynary, correctional and reformatory in- stitutions, wholly or partly under private control, for care, support and maintenance, may be authorized, but shall not be required by the legislature. No such payments shall be made for any inmate of such institutions who is not received and retained therein pur- suant to rules established by the state board of charities. Such rules shall be subject to the control of the legislature by general laws. Section 15. Cominissioners continued in office. — Commission- ers of the state board of charities and commissioners of the state commission in lunacy, now holding office, shall be continued in office for the term for which they were appointed, respectively, un- less the legislature shall otherwise provide. The legislature may confer upon the commissions and upon the board mentioned in the foregoing sections any additional powers that are not inconsistent with other provisions of the constitution. ARTICLE IX Section i. Common schools. — The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated. Section 2. Regents of the university. — The corporation cre- ated in the year one thousand seven hundred and eighty-four, un- der the name of the regents of the university of the state of New York, is hereby continued under the name of the university of the state of New York. It shall be governed and its corporate powers, which may be increased, modified or diminished by the legislature, shall be exercised by not less than nine regents. Section 3. Common school, literature, and the United States de- posit fimds. — The capital of the common school fund, the capital of the literature fund, and the capital of the United States deposit fund, shall be respectively preserved inviolate. The revenue of the said common school fund shall be applied to the support of common schools; the revenue of the said literature fund shall be applied to the support of academies; and the sum of twenty-five CONSTITUTION OF NEW YORK 109 thousand dollars of the revenues of the United States deposit fund shall each year be appropriated to and made part of the capital of the said common school fund. Section 4. No aid to denominational schools. — Neither the state nor any subdivision thereof shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of'any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught. ARTICLE X Section i. Sheriffs, clerks of counties, district attorneys and registers : governor may remove. — Sheriffs, clerks of counties, district attorneys and registers in counties having registers, shall be chosen by the electors of the respective counties, once in every three years and as often as vacancies shall- happen, except in the counties of New York and Kings, and in counties whose boundaries are the same as those of a city, where such officers shall be chosen by the electors once in every two or four years as the legislature shall direct. Sheriffs shall hold no other office and be ineligible for the next term after the termination of their offices. They may be re- quired by law to renew their security, from time to time; and in default of giving such new security, their offices shall be deemed vacant. But the county shall never be made responsible for the acts of the sheriff. The governor may remove any oflicer, in this section mentioned, within the term for which he shall have been elected; giving to such officer a copy of the charges against him, and an opportunity of being heard in his defence. Section 2. Appointment or election of officers not provided for by this constitution. — All county officers whose election or appointr ment is not provided for by this constitution, shall be elected by the electors of the respective counties or appointed by the boards of supervisors, or other county authorities, as the' legislature shall direct. - All city, town and village officers, whose election or ap- pointment is not provided for by this constitution, shall be elected no CIVICS OF NEW YORK STATE by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as the legislature shall designate for that purpose. All other officers, whose election or appointment is not provided for by this constitution, and all officers, whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the legislature may direct. Section 3. Duration of term. — When the duration of any office is not provided by this constitution, it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment. Section 4. Time of election. — The time of electing all officers named in this article shall be prescribed by law. Section 5. Vacancies in offices, how filled. — The legislature shall provide for filling vacancies in office, and in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy. Section 6. Political year. — The political year and legislative term shall begin on the first day of January; and the legislature shall, every year, assemble on the first Wednesday in January. Section 7. Removal from office for misconduct, etc. — Provis- ion shall be made by law for the removal for misconduct or mal- versation in office of all officers, except judicial, whose powers and duties are not local or legislative and who shall be elected at general elections, and also for supplying vacancies created by such removal. Section 8. Office deemed vacant. — The legislature may de- clare the cases in which any office shall be deemed vacant when no provision is made for that purpose in this constitution. Section 9. Compensation of officers. — No officer whose salary is fixed by the constitution shall receive any additional compensa- tion. Each of the other state officers named in the constitution shall, during his continuance in office, receive a compensation, to be fixed by law, which shall not be increased or diminished during the term for which he shall have been elected or appointed; nor shall he receive to his use any fees or perquisites of office or other compensation. CONSTITUTION OF NEW YORK m ARTICLE XI Section i. State Militia. — All able-bodied male citizens be- tween the ages of eighteen and forty-five years, who are residents of the state, shall constitute the militia, subject however, to such exemptions as are now, or may be hereafter created by the laws of the United States, or by the legislature of this state. Section 2. Enlistment. — The legislature may provide for the enlistment into the active force of such other persons as may make application to be so enlisted. Section 3. Organization of militia. — The militia shall be or- ganized and divided into such land and naval, and active and reserve forces as the legislature may deem proper, provided, however, that there shall be maintained at all times a force of not less than ten thousand enlisted men, fully uniformed, armed, equipped, disci- plined and ready for active service. And it shall be the duty of the legislature at each session to make sufficient appropriations for the maintenance thereof. Section 4. Appointment of military officers by the governor. — The governor shall appoint the chiefs of the several staff depart- ments, his aides-de-camp and military secretary, all of whom shall hold office during his pleasure, their commission to expire with the term for which the governor shall have been elected; he shall also nominate, and with the consent of the senate, appoint, all major-generals. Section 5. Manner of election of military officers prescribed by legislature. — All other commissioned and non-commissioned offi- cers shall be chosen or appointed in such manner as the legislature may deem most conducive to the improvement of the militia, pro- vided, however, that no law shall be passed changing the existing mode of election and appointment unless two-thirds of the members present in each house shall concur therein. Section 6. Commissioned officers : removal. — The commis- sioned officers shall be commissioned by the governor as com- mander-in-chief. No commissioned officer shall be removed from office during the term for which he shall have been appointed or elected, unless by the senate on the recommendation of the gov- 112 CIVICS ,0F NEW YORK STATE ernor, stating the grounds on which such removal is recommended, or by the sentence of a court-martial, or upon the findings of an examining board organized pursuant to law, or for absence without leave for a period of six months or more. ARTICLE XII Section i. Organization of cities and villages- — It shall be the duty of the legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, as- sessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and in contracting debt by such municipal corporations. Section 2. Classification of cities: general and special city laws: how passed by legislature and acceptance by cities. — All cities are classified according to the latest state enumeration, as from time to time made, as follows: The first class includes all cities having a population of two hundred and fifty thousand, or more; the second class, all cities having a population of fifty thousand and less than two hundred and fifty thousand; the third class, all other cities. Laws relating to the property, affairs or government of cities, and the several departments thereof, are divided into general and spe- cial city laws; general city laws are those which relate to all the cities of one or more classes; special city laws are those which re- late to a single city, or to less than all the cities of a class. Special city laws shall not be passed except in conformity with the provis- ions of this section. After any bill for a special city law, relating to a city, has been passed by both branches of the legislature, the house in which it originated shall immediately transmit a certified copy thereof to the mayor of such city, and within fifteen days there- after the mayor shall return such bill to the house from which it was sent, or if the session of the legislature at which such bill was passed has terminated, to the governor, with the mayor's certificate thereon, stating whether the city has or has not accepted the same. In every city of the first class, the mayor, and in every other city, the mayor and the legislative body thereof concurrently, shall act for such city as to such bill ; but the legislature may provide for the CONSTITUTION OF NEW YORK 113 concurrence of the legislative body in cities of the first class. The legislature shall provide for a public notice and opportunity for a public hearing concerning any such bill in every city to which it relates, before action thereon. Such a bill, if it relates to more than one city, shall be transmitted to the mayor of each city to which it relates, and shall not be deemed accepted unless accepted as herein provided, by every such city. Whenever any such bill is accepted as herein provided, it shall be subject as are other bills, to the action of the governor. Whenever, during the session at which it was passed, any such bill is returned without the accept- ance of the city or cities to which it relates, or within such fifteen days is not returned, it may nevertheless again be passed by both branches of the legislature, and it shall then be subject, as are other bills, to the action of the governor. In every special city law which has been accepted by the city or cities to which it relates, the title shall be followed by the words "accepted by the city," or "cities," as the case may be; in every such law which is passed without such acceptance, by the words "passed without the ac- ceptance of the city, " or " cities," as the case may be. Section 3. Election of city officers, when to be held: extension and abridgment of terms. — All elections of city officers, including supervisors and judicial officers of inferior local courts, elected in any city or part of a city, and of county officers elected in the coun- ties of New York and Kings, and in all counties whose boundaries are the same as those of a city, except to fill vacancies, shall be held on the Tuesday succeeding the first Monday in November in an odd-numbered year, and the term of every such officer shall expire at the end of an odd-numbered year. The terms of office of all such officers elected before the first day of January, one thou- sand eight hundred and ninety-five, whose successors have not then been elected, which under existing laws would expire with an even-numbered year, or in an odd-numbered year and before the end thereof, are extended to and including the last day of Decem- ber next following the time when such terms would otherwise ex- pire; the terms of office of all such officers, which under existing laws would expire in an even-numbered year, and before the end thereof, are abridged so as to expire at the end of the preceding 114 CIVICS OF NEW YORK STATE year. This section shall not apply to any city of the third class, or to elections of any judicial -officer, except judges and justices of inferior local courts. ARTICLE Xni Section i. Oath of office. — Members of the legislature, and all officers executive and judicial, except such inferior officers as shall be by law exempted, shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the state of New York, and that I will faithfully discharge the duties of the office of , according to the best of my ability;" and all such officers who shall have been chosen at any election shall, before they enter on the duties of their respective offices, take and subscribe the oath or affirmation above prescribed, together with the following addition thereto, as part thereof: "And I do further solemnly swear (or affirm) that I have not directly or indirectly paid, offered or promised to pay, contributed, or offered or promised to contribute any money or other valuable thing as a consideration or reward for the giving or withholding a vote at the election at which I was elected to said office, and have not made any promise to influence the giving or withholding any such vote," and no other oath, declaration or test, shall be required as a qualification for any office of public trust. Section 2. Official bribery and corruption. — Any person hold- ing office under the laws of this state who, except in payment of his legal salary, fees or perquisites, shall receive or consent to receive, directly or indirectly, any thing of value or of personal advantage, or the promise thereof, for performing or omitting to perform any official act, or with the express or implied understanding that his official action or omission to act is to be in any degree influenced thereby, shall be deemed guilty of a felony. This section shall not affect the validity of any existing statute in relation to the offence of bribery. Section 3. Offer or promise to bribe. — Any person who shall offer or promise a bribe to an officer, if it shall be^ received, shall be CONSTITUTION OF NEW YORK iiS deemed guilty of a felony and liable to punishment, except as herein provided. No person .offering a bribe shall, upon any prosecution of the ofiScer for receiving such bribe, be privileged from testifying in relation thereto, and he shall not be liable to civil or criminal prosecution therefor, if he shall testify to the giving or offering of such bribe. Any person who shall offer or promise a bribe, if it be rejected by the officer to whom it was tendered, shall be deemed guilty of an attempt to bribe, which is hereby declared to be felony. Section 4. Person bribed or offering a bribe may be a witness. — Any person charged with receiving a bribe, or with offering or promising a bribe, shall be permitted to testify in his own behalf in any civil or criminal prosecution therefor. Section 5. Free passes, franking privileges, etc., not to be re- ceived by public officers : penalty. — No public officer or person elected or appointed to a public office, under the laws of this state, shall directly or indirectly ask, demand, accept, receive or consent to receive for his own use or benefit, or for the use or benefit of another, any free pass, free transportation, franking privilege or discrimination in passenger, telegraph or telephone rates, from any person or corporation, or make use of the same himself or in con- junction with another. A person who violates any provision of this section, shall be deemed guilty of a misdemeanor, and shall forfeit his office at the suit of the attorney-general. Any corpora- tion, or officer or agent thereof, who shall offer or promise to a public officer, or person elected or appointed to a public office, any such free pass, free transportation, franking privilege or discrimina- tion shall also be deemed guilty of a misdemeanor, and liable to punishment except as herein provided. No person, or officer or agent of a corporation, giving any such free pass, free transporta- tion, franking privilege or discrimination hereby prohibited, shall be privileged from testifying in relation thereto, and he shall not be liable to civil or criminal prosecution therefor if he shall testify to the giving of the same. Section 6. Removal of district attorney for failure to prosecute: expenses of prosecutions for bribery. — Any district attorney who shall fail faithfully to prosecute a person charged with the viola- tion in his county of any provision of this article which may come Ii6 CIVICS OF NEW YORK STATE to his knowledge, shall be removed from office by the governor, after due notice and an opportunity of being heard in his defense. The expenses which shall be incurred by any county, in investi- gating and prosecuting any charge of bribery or attempting to bribe any person holding office under the laws of this state within such county, or of receiving bribes by any such person in said county, shall be a charge against the state, and their payment by the state shall be provided for by law. ARTICLE XIV Section i. Amendments to constitution, how proposed, voted upon and ratified. — Any amendment or amendments to this con- stitution may be proposed in the senate and assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments- shall be entered on their journals, and the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election of senators, and shall be published for three months previous to the time of making such choice; and if in the legislature so next chosen, as aforesaid, such proposed amendment or amend- ments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the legislature to submit each proposed amendment or amendments to the people for ap- proval in such manner and at such times as the legislature shall prescribe; and if the people shall approve and ratify such amend- ment or amendments by a majority of the electors voting thereon, such amendment or amendments shall become part of the constitution from and after the first day of January next after such approval. Section 2. Future constitutional conventions : how caUed: elec- tion of delegates: compensation: quorum: submission of amend- ments : officers : rules : vacancies : taking effect. — At the general election to be held in the year one thousand nine hundred and six- teen, and every twentieth year thereafter, and also at such times as the legislature may by law provide, the question, "Shall there be a convention to revise the constitution and amend the same?" shall be decided by the electors of the state; and in case a majority CONSTITUTION OF NEW YORK 117 of the electors voting thereon shall decide in favor of a convention for such purpose, the electors of every senate district of the state, as then organized, shall elect three delegates at the next ensuing general election at which members of the assembly shall be chosen, and the electors of the state voting at the same election shall elect fifteen delegates-at-large. The delegates so elected shall convene at the capitol on the first Tuesday of April next ensuing after their election, and shall continue their session until the business of such convention shall have been completed. Every delegate shall re- ceive for his services the same compensation and the same mileage as shall then be annually payable to the members of the assembly. A majority of the convention shall constitute a quorum for the transaction of business, and no amendment to the constitution shall be submitted for approval to the electors as hereinafter pro- vided, unless by the assent of a majority of all the delegates elected to the convention, the yeas and nays being entered on the journal to be kept. The convention shall have the power to appoint such officers, employfe and assistants as it may deem necessary, and fix their compensation, and to provide for the printing of its documents, journal and proceedings. The convention shall determine the rules of its own proceedings, choose its own officers, and be the judge of the election returns and qualifications of its members. In case of a vacancy, by death, resignation or other cause, of any dis- trict delegate elected to the convention, such vacancy shall be filled by a vote of the remaining delegates representing the district in , which such vacancy occurs. If such vacancy occurs in the office of a delegate-at-large, such vacancy shall be filled by a vote of the remaining delegates-at-large. Any proposed constitution or con- stitutional amendment which shall have been adopted by such con- vention, shall be submitted to a vote of the electors of the state at the time and in the manner provided by such convention, at an election which shall be held not less than six weeks after the ad- journment of such convention. Upon the approval of such con- stitution or constitutional amendments, in the manner provided in the last preceding section, such constitution or constitutional amendment shall go into effect on the first day of January next after such approval. Ii8 CIVICS OF NEW YORK STATE Section 3. Amendments of convention and legislature submitted coincidently. — Any amendment proposed by a constitutional con- vention relating to the same subject as an amendment proposed by the legislature, coincidently submitted to the people for approval at the general election held in the year one thousand eight hundred and ninety-four, or at any subsequent election, shall, if approved, be deemed to supersede the amendment so proposed by the legis- lature. ARTICLE XV Section i. Time of taking effect. — This Constitution shall be in force from and including the first day of January, one thousand eight hundred and ninety-five, except as herein otherwise provided. Done in Convention at the Capitol in the city of Albany, the twenty-ninth day of September, in the year one thousand eight hundred and ninety-four, and of the Independence of the United States of America the one hundred and nineteenth. In witness whereof, we have hereunto subscribed our names. Joseph Hodges Choate, President and Delegate-at-Large. Charles Elliott Fitch, Secretary. See latest edition of Legislative Manual for Senate and Assembly Districts. INDEX Administrative departments of cit- ies, 64. Administrative ofl&cers of state, 26-33. Algonquin Indians, 2. Andros, governor of N.Y., 5. Appeals, court of, see court of ap- peals. Appellate division of supreme court, organization, procedure, jurisdic- tion, 38. Aristocracy, land holding, prevented, 10. Assembly, number and apportion- ment of members, 19-20; officers, 20. . Assembly, peaceable, right of, 9. Assembly districts, 13, 19-20. Assemblymen, term and salary, 21. Assessors (town), 58. Attorney-general, how chosen, 13, 29; salary, duties, etc., 29. Bails and fines, excessive, 9. Banks, control of state over, 52. Battle of Gettysburg, N.Y. state in, i; of Saratoga, i. Bibliography, vi. Bill, legislative, how passed, 22-23. Bill of rights, federal and state com- pared, 8. Bills, appropriation, require two- thirds vote, 22-23. Board of aldermen, see city legisla- ture. Board of aldermen, president of, 63. Board of estimate and apportion- ment (city), 64. Board of railroad commissianers, 31. Board of supervisors, 55. Book-making forbidden, 11. Borough president, 63. Bribery, penalty for, 26. Cabots, explorations of, 4. Candidates, how chosen, 14-15. Canvassers, county board of, 17. Canvassers, state board of, 16-17. Canvassing votes, 16-17. Caucus, 14. Certificates of election, 17. Charter, city, 61. Charter of liberties, 5-6. Churches, in New Netherlands, 4. Cities, debt limitations of, 54-55; incorporation of, 61; classified, 62; relation to state legislature, 62; ad- ministrative departments of, 64; elections in, 62; government of first class cities, 63, 64; govern- ment of second class cities, 64; of third class, 65. City, elections in, 14; charter, 61; controller, 63, 64; legislature in first class, 63; in second class, 64; judiciary, 64-65; legislature in third class, 65. City of New York, see New York city. City schools, 46-47. Civil service commission, salary, du- ties, etc., 30. Civil War, N.Y. state in, i. Collector, 58. Colonial government in N. Y., Dutch, 3-=-4; EngHsh, 4-5. Commission in lunacy (state), 31. Commissioner, of agriculture, salary, duties, etc., 30; of excise, 30; of 119 I20 INDEX department of labor, 31; of educa- tion, 33, 45. Commissioners of quarantine, 31. Committees, legislative, 22. Committees, party, see party com- mittees. Common school, districts, 13; sys- tem established, 44. Comptroller, how chosen, 13; salary, duties, etc., 29; city, 63-64. Compulsory education, 47. Congressional districts, 13. Constables, 58. Constitution (N.Y. state), amend- ment and revision of, 7; text of, 69-118. Constitutional government in N.Y., beginnings of, 4, 5-6. Constitutions of N.Y. state, of 1777, 6; of 1821, 6; of 1846, 6; of 1895, 7. Conventions, party, see party con- ventions. Coroners, 56-57. Corporation counsel (city), 64. Corporations, control of state over, 52- Council, governor's, in New Nether- lands, 3-4. Counties, number in state, 13; debt limitations of, 54-55. Counting votes, see canvassing votes. County, courts of, jurisdiction and number, 37; judges, number, sal- ary, removal, 37; officers of, 55-57; clerk of, 56; treasurer of, 56; judge of, 57; officers of,removal, 57. Court, of appeals, organization, pro- cedure, etc., 38-39; of claims, 39; supreme, see supreme court; su- preme, appellate division, see ap- pellate division of supreme court. Courts, county, see county courts. Creasy, quoted, i. Credit, state, see state credit. Debt, limitation of cities and coun- ties, 54-55- Debts, state, see state debts. Department of public instruction, 43-45- Director-general, of Dutch West In- dia Co., 3-4. District-attorney, 56. Districts, election, 12-13; assembly, common school, congressional, ju- dicial, school commissioner, sen- atorial, 13. Divorce, restriction on, 9. Dongan, governor of N.Y., 5. Dutch colonial government in N.Y., 3-4- Dutch West India Co., 3-4. Education, in New Netherlands, 4; board of regents incorporated, 44; common schools established, 44; educational unification law, 45; compulsory, 47 ; state aid of, 47-49. Educational unification law, 45. Election, districts for, 12-13; <^^^- tificates of, 17; inspectors of, ,17, 59; of village officers, 60. Elections, time of, 13; general, 13- 14; separate, 13-14; city, village, 14. English in N.Y., 4-5. Executive officers, qualifications of, 26. Explorations, of Verrazano, 2; of Hudson, 3. Feudal tenures abolished, 10. First colonial assembly in N.Y., 5. Forest, fish and game commissioner, 3°- Forest and canals, disposal of for- bidden, 42. Gambling, forbidden by constitu- tion, 10-11. Gettysburg, battle of, N.Y. state * in, I . Government, constitutional, inN.Y., 4- Govemor, qualifications, how chosen, etc., 26; removal, powers of, veto, message, pardoning power, 27. Governor's assistants, 28-29. Governor's council in New Nether- lands, 3-4. Grand Jury, g. INDEX 121 Habeas Corpus, 9. Health commissioner (state) salary, duties, etc., 31. Health officer of port of N.Y., 33. Highway commissioners, 58. Hudson, explorations of, 3. Indians in N.Y. state, 2. Injury, right to recover damages for,' 9-10. Impeachment, 23; court of, 39. Indictment, 9. Inspectors of elections, 17, 59. Iroquois Indians, 2. Judges, fees forbidden to, salaries, qualifications, retirement of, 36; of court of appeals, how chosen, 13; of supreme court, see supreme court judges. Judicial districts, see districts, judi- cial. Judiciary, city, 64-65. Jury, trial by, 9. Justice's courts, 36-37; jurisdiction, of. 37- Justices of the peace, 36-37, 59. KiEET, Dutch governor of New Netherlands, 3-4. Koopman, 4. Laws, general, pertaining to drain- ing lands, 10. Legislature, advantage of bi-cameral system, 19; difference between houses, 19; quahfications for mem- bership, organization, 19; pro- cedure, sessions, 21; powers of, special powers of houses, 23; see also senate, assembly; city, see city legislature. Libel, 8. Liberties, charter of, 5-6. Liberty, personal, 8-9; of conscience, Licenses, teachers', kinds of, 48. Lieutenant-governor, how chosen, 13; duties, etc., 26-27, 28. Local governments, divisions of, 54; relation to state, 54; restrictions upon, 54-55- Lotteries, forbidden, 11. Marmage relation, protected, 9. Mayor, in cities of first class, 63; second class, 64; third class, 65. Message of governor, 27. Mihtary duty, classes exempt from, SI- Militia, organized, how constituted, 51; number and organization of, 51-52- Minuit, Peter, 3. New Netherlands, ceded to Eng- land, 5. New Netherlands Co., 3. New York, before white occupation, 2 ; Indians in, 2 ; discovery and ex- ploration of, 2; as Dutch colony, 3-4; as English colony, 4-6. New York city, importance of, 2; government of, 63-64. New York colony becomes state, 6. New York state, in revolution, in civil war, populaton of, i; great- ness of, 1-2; constitutions of, see constitutions of New York state. Normal schools and colleges, 48. Oath of office, 26. Officers, state, elective, 12-13. Officials, compensation of, 26. Overseers of the poor (town), 59. Pardoning power of governor, 27. Party, caucus of, 14; committees, conventions, 14-15. Patroons, 10. Personal liberty and security, 8-9. Plurality, 17. Pool-selling, forbidden, 11. PoUce justice, village, 61. Primary, 14-15. Prison commission, 31. Private property, compensation for, 10; right to, protected, 10. Property in lands, constitutional provisions concerning, 10. 122 INDEX Property, private, see private prop- erty. Protection furnished by state, 51—52. Punishments, cruel and unusual for- bidden, 9. Questions on the text, development of the constitution, 7 ; bill of rights, 11; suffrage, 18; legislative de- partment, 23-25; governor and other executors, 34-35; judicial department, 40; restrictions on state's action, 43; education, 49— 50; miscellaneous state duties, 53; local governments, 65-67. Regents of university of state of New York, 33; board of, incor- porated, 44; given control of whole educational system, 45. Registration of voters, 12. Religious liberty, 8-9. Revolution, N. Y. state in, i . K%ht of peaceable assembly, 9. Right to vote, see suffrage. Rights, bill of, see bill of rights. Rights and privileges of people de- clared, 6. Roads, constitutional provisions con- cerning, 10. Saratoga, battle of, i. School, tax for in New Netherlands, 4; commissioner districts, 13; chil- dren, number of, 45; teachers, 45; property, value of , 45 ; commis- sioner, salary and duties, 46, 57; trustees, duties, 46. Schools, city, 47; normal, 48; see also education. Schout,. 4. Secretary of state, how chosen, 13; salary, duties, etc., 29. Senate, number and apportionment of members, 20; officers, 20-21. Senatorial districts, 13. Senators, term and salary, 21. Sheriff, 55-56. Sloughter, governor of N.Y., 5. Split ticket, 15. State aid of education, 47-49. State board of charities, salary, du- ties, etc., 30. State credit, 42. State debts, creation and extinction of, 41-42. State engineer and surveyor, how chosen, 13; salary, duties, etc., 29. State officers, elective, 12-13. Straight ticket, 15. Street commissioner, 61. Stuyvesant, governor of New Neth- erlands, 4. Suffrage, qualifications for, 12. Superintendent, of banks, 32; of in- surance, of public works, 32; of state prisons, 33; of poor (county). Supervisor as town officer, 58. Supervisors, board of, 55. Supreme court, organization and jurisdiction of, 37—38. Supreme court judges, 36-37. Supreme court, appellate division of, 38- Surrogate's court, 39. Tax commissioners, state, 32. Taxes, school, in New Netherlands,4. Teachers, training of, 47-48. Tenures, feudal, see feudal tenures. Training schools and classes, 48. Treasurer, how chosen, 13; salary, etc., 29. Trial by jury, 9. Town clerk, 58. Town meeting, 13-14, 57-58. Town officers, 58-59. Union school districts, 46. Verrazano, explorations of, ^. Veto of governor, 22, 27. Village, character of government, 60; elections, 60; president, 60; trus- tees, 60-61; assessors, clerk, treas- urer, 61. Villages, incorporation of, 59-60; classified, 60; officers of, 60-61. . Voters, qualifications of, 12; regis- tration of, 12. Voting, by ballot, 15; by machine, 16.