STATE GQVERfflENT SERIES HISTORY AND _ £OVERNMENT(<2)(s>^ SOUTH DAKOTA G. M, SMI AND C.M.YOUNQ 1,5*5 CORNELL UNIVERSITY LIBRARY FROM The Dept. of Agricultural Economics Cornell University Library JK6525 1904 .S64 Dat< History and government of South Dakota, 54 olin 3 1924 030 494 300 "fiF1T>iS53E The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030494300 THE State Government Series EDITED BY B. A. Hinsdale, Ph.D., LLD. VOLUME V. HISTORY AND GOVERNMENT SOUTH DAKOTA George M. jsmith, M.A., and Clark M. Young, Ph.D. \ of the University of South Dakota GOVERNMENT OF THE UNITED STATES BY B. A. HINSDALE, Ph.D., LL.D. REVISED EDITION NEW YORK CINCINNATI CHICAGO AMERICAN BOOK COMPANY ' l,!ltA1iY ^ X Ml £3X General Works on Civil Government Andrews's New Manual of the Constitution. Clark's The Government : What it is ; What it does. Forman's First Lessons in Civics. Hinsdale's American Government. McCleary's Studies in Civics. Nordhoff's Politics for Young Americans. Peterman's Civil Government. Townsend's Analysis of Civil Government. Townsend's Shorter Course in Civil Government. Willoughby's Rights and Duties of American Citizenship. Copyright, 1898, by Werner School Book Company. Copyright, 1904, by American Book Company. VII i'.MH VI t'i Y51MI ; I. PREFACE TO THE REVISED EDITION The publication of a new edition gives the authors the opportunity to revise the book and make necessary changes. Successive legisla- tures have made changes in the constitution and the laws of the State which necessitated some modification of the text. Some minor additional changes have been made. The book has been brought up to date, and gives, we believe, a faithful presentation of the institutions of the State and Nation. It should be observed that the book consists of four parts more or less distinct, and any of these may be omitted at the discretion of the teacher. Where the time spent on civics is brief, the historical matter may be left out. Or both parts may be pursued at the same time in different classes, the historical matter being studied more as history proper. The value of Part II, the Origin and Development of our Civil Institutions, should not be underestimated. Pupils can hardly be made to appreciate the genius of our government until they have done something toward tracing the development of political institutions from their beginnings. Only as they learn how our civil and political institutions, originating in the needs of human society, have taken form and being by the slow processes of growth, and been changed and modified to meet changing conditions, can they clearly understand the nature of government and the tendencies inherent in our institutions. It is with sadness and a deep sense of loss that we record the death of the editor of the State Government Series of which this book\s a part, and author of Part IV of this text. On Thanksgiv- ing Day, 1900, Dr. Hinsdale was called from the scene of his labors and triumphs. A typical American, he rose to high position by his own efforts and ability, and for many years before his death was ranked as one of the few really great men in the educational 5 6 PREFACE work of this country. His friendship and counsel were enjoyed and appreciated by a wide circle of friends. His writings made him an important figure in both historical and educational fields. Of judicial and conservative temper, his influence has done much to hold educational theory within safe lines. A most thorough and painstaking student of history and politics, his writings in these fields contribute large values to human thought. He went to his reward full of years and honors, most sincerely mourned by the large circle of his students, respected and beloved by all who knew him, having achieved an enviable place in the world of thought 'and letters. The thanks of the editors are again due to all who by suggestion or criticism have aided in improving the book. The kindly re- ception which the book received in its first edition leads us to hope that in its new form it will be still more helpful to the teachers of the State. University of South Dakota, Vermillion, October 1, 1901. NOTE. The work of bringing the book up to date has been continued so as to include the changes necessitated by recent South Dakota laws. The recent changes in the Civil Government of the United States have also been incorporated in the text. CONTENTS Page Bibliography 9-10 General Introduction 1 1-28 Part I. — History. Chapter I. Early History and General Char- acter of the New Northwest 29-38 II. Geological History of South Da- kota 39-44 III. Physical Characteristics and Re- sources of the State 45*53 IV. Dakota in Pre-Territorial Days. . 54-65 V. Dakota as a Territory 66-79 VI. Admission to the Union, and State History 80-91 Part II. — Origin and Development of our Civil Institutions. VII. Definitions and General Prin- ciples 92-101 VIII. The Origin and Growth of our Local Institutions in General 102-114 IX. Development of the Institutions of Local Government in the United States 115-132 Part III. — Civil Institutions. oi_ S* ,£>*C X. The Government Land Survey.. 133-137 XL The Civil Township '. . . 138-144 XII. The School District 145-154 XIII. County Government 155-162 XIV. Municipal Government — The City and Town 163-171 XV. The State Government — Legis- lative Department 172-183 7 8 CONTENTS Chapter Page XVI. The Executive Department 184-192 XVII. Organization of the Judiciary Department 193-200 XVIII. Judicial Procedure 201-212 XIX. The State Militia 213-215 XX. Political Parties and Elections 216-222 Part IV. — Government of the United States. XXI. The Making of the Government. 223-231 XXII. Amendments Made to the Consti- tution 232-234 XXIII. The Source and Nature of the Government 235-237. XXIV. The Composition of Congress and the Election of its Members 238-250 XXV. Organization of Congress and its Method of Doing Business 251-257 XXVI. Impeachment of Civil Officers. . 258-261 XXVII. General Powers of Congress 262-274 XXVIII. Election of the President and the Vice-President 275-280 XXIX. The President's Qualifications, Term, and Removal 281-283 XXX. The President's Powers and Duties 284-292 XXXI. The Executive Department 293-297 XXXII. The Judicial Department 298-305 XXXIII. New States and the Territorial System 306-31 1 XXXIV. Relations of the States and the Union 312-319 Topics and Questions 320-329 Appendix 33°-334 !ndex 335-338 BIBLIOGRAPHY CIVICS. While it has been thought best not to attempt anything like a complete bibliography of the subject of Civics in the historical and institutional phases of local government, the following references will be found helpful to those pursuing the subject further than can be done in a brief treatise. These books may be obtained of any bookseller. Books foe Pupils. The American Government, B. A. Hinsdale, Chicago and N. Y., 1895. Politics for Young Americans, Charles Nordboff, N. Y., 1899. The Beginnings of New England, John Fiske, Boston, 1893. Epochs of American, History, 3 Vols., N. Y. and London, 1894. The Beginners of a Nation, Edward Eggleston, N. Y., 1896. History of American Politics, Alexander Johnson, N. Y., 1889. The Political History of the United States, Goldwin Smith, N. Y., 1893. Lectures on English History, M. J. Guest, London, 1879. The Making of England, J. R. Green, London. The Conquest of England, J. R. Green, N. Y., 1884. The City-State of the Greeks and Romans, W. W. Fowler, London, 1893. Books fob Teachers.. The Old Northwest, B. A. Hinsdale, N. Y., 1888. The American Commonwealth, James Bryce, N. Y., 1891. Studies in Historical and Political Science, Johns Hopkins Univer- sity, Vols. I, II, and III, Baltimore, 1889. Political Science and Constitutional Law, 2 vols. J. W. Burgess, Boston, 1891. Local Constitutional History of the United States, Geo. E. Howard, Baltimore, 1889. A Short History of the English Colonies in America, H. C. Lodge, N. Y., 1882. American Political Ideas, John Fiske, N. Y., 1884. The State, Woodrow Wilson, Boston, 1889. The Unwritten Constitution of the United States, C. G. Tiedeman, N. Y. and London, 1890. Direct Legislation by the People, Nathan Cree, Chicago, 1890. Practical Essays on American Government, Albert Bushnell Hart, N. Y., 1894. Sources of the Constitution of the United States, C. Ellis Stevens, N. Y., 1894. IO BIBLIOGRAPHY. Constitutional History of the United States, Geo. T. Curtis, N. T. 1889. Rise of the Republic of the United States, Richard Frothingham Boston, 1890. Constitutional History of the United States, 2 Vols., Geo. Bancroft N. Y., 1893. Origin and Growth of the English Constitution, Hannis Taylor, Bos ton and N. Y., 1892. English Constitutional History, Thos. Pitt Taswell-Langmead, Lon don, 1890. Growth of the English Constitution, E. A. Freeman, N. Y., 1890. History of the Origin of Representative Government in Europe, M Guizot, translated by A. E. Scoble, London, 1861. A Short Constitutional History of England, H. St. Clair Feilden Boston, 1895. In the study of the civil and political institutions of South Dako- ta, the following references will be of service : Compiled Laws of Dakota, 1887, and Territorial Session Laws of '89. Revised Codes of South Dakota, 1903. Laws of South Dakota. Organic Act for Dakota passed March 2, 1861, United States Stat utes at Large. Enabling Act for Admission of South Dakota, passed Feb. 22, 1889 United States Statutes at Large. Constitution of South Dakota, usually printed with the Session Laws of the State, but published separate by H. L. Bras Mitchell, S. D. Tereitoeial and State History. References for the Territorial and State history are few. The main recourse is to records and official documents. The following are, perhaps, most accessible : History of the Lewis and Clark Expedition, 4 Vols., N. Y., 1893. Historical Atlas of Dakota, A. T. Andreas, Chicago, 1884. (The most reliable Territorial history.) History of Southeastern Dakota, 1881. (Out of print.) Publications of the Territorial Department of Immigration and Statistics for the years 1887 and 1889. Facts about South Dakota, Department of Immigration and Statis- tics, 1890. Dakota : Statistical and General Information Regarding Dakota compiled by O. H. Holt, Chicago, 1885. A Preliminary Report of the Geology of South Dakota, J. E. Todd, 1884. (Valuable for data of material resources of the State, and Geological history.) History of South Dakota from Earliest Times, Doane Robinson, The Educator School Supply Company, Mitchell, 1900. The Black Hills, or the Lost Hunting Ground of the Dakotahs, An- nie D. Tallent, Nixon-Jones Printing Company, St. Louis, 1899. Early Empire Builders of the Great West, Moses K. Armstrong, E. W. Porter, St. Paul, Minn., 1901. GENERAL INTRODUCTION The character of the volumes that will comprise The State Government Series is indicated by the name of the series itself. More definitely, they will combine two important subjects of education, History and Govern- ment. It is proposed in this Introduction briefly to set forth the educational character and value of these sub- jects, and to offer some hints as to the way in which they should be studied and taught, particularly as limited by the character of the Series. 1. The Educational Value of the Study of History and Government. Not much reflection is required to show that both of these subjects have large practical or guidance value, and that they also rank high as disciplinary studies. 1. History. — When it is said that men need the expe- rience of past ages to widen the field of their personal observation, to correct their narrow views and mistaken opinions, to furnish them high ideals, and to give them inspiration or motive force; and that history is the main channel through which this valuable experience is trans- mitted to them — this should be sufficient to show that history is a very important subject of education. On this point the most competent men of both ancient and modern times have delivered the most convincing testi- mony. Cicero called history "the witness of times, the light of truth, and the mistress of life. " Dionysius of Halicarnassus said "history is philosophy, teaching by 1 1 12 GENERAL INTRODUCTION examples," and Lord Bolingbroke lent his sanction to the saying. Milton thought children should be taught "the beginning, the end, and the reasons of political societies." Another writer affirms that "history fur- nishes the best training in patriotism, and enlarges the sympathies and interests." Macaulay said: "The real use of traveling to distant countries, and of studying the annals of past times, is to preserve them from the contraction of mind which those can hardly escape whose whole commerce is with one generation and one neighborhood." In every great field of human activity the lessons of history are invaluable — in politics, religion, education, moral reform, war, scientific investigation, invention, and practical business affairs. The relations of history and politics are peculiarly close. There could be no science of politics without history, and practical politics could hardly be carried on. But, more than this, there can be no better safeguard than the lessons of history against the specious but dangerous ideas and schemes in relation to social subjects that float in the atmosphere of all progressive countries. In fact, there is ho other safeguard that is so good as these lessons; they are ex- perience teaching by examples. The man who has studied the history of the Mississippi Scheme, the South Sea Bubble, or some of the less celebrated industrial or economical manias that have afflicted our own country, is little likely to embark in similar schemes himself, or to promote them. The man who has studied the evils that irredeemable paper money caused in France in the days of the Revolution, or the evils that the Continental money caused in our own country, will be more apt to form sound views on the subjects of currency and bank- ing than the man who has had no such training. The GENERAL INTRODUCTION 1 3 school of history is a conservative school, and its lessons are our great defense against cranks, faddists, and dem. agogues. 2. Government. — Politics is both a science and an art. It is the science and the art of government. As a science it investigates the facts and principles of government; as an art it deals with the practical applications of these facts and principles to the government of the state. Now it is manifest that the art of politics, or practical government, directly concerns everybody. Few indeed are the subjects in which men, and particularly men living in great and progressive societies, are so deeply interested as in good government. The government of the state is charged with maintaining public order, se- curing justice between man and man, and the promotion of the great positive ends of society. For these pur- poses it collects and expends great revenues, which are ultimately paid from the proceeds of the labor of the people. Furthermore, in republican states, such as the American Union and the forty-six individual States that make up the Union, government is carried on by the people through their representatives chosen at popular elections. The voters of the United States are a great and growing body. Educational and other restrictions sometimes reduce the number of voters in a State, but this effect is more than counterbalanced by the increase in population in the nation at large. About 14,000,000 citizens vote in a presidential election. They vote also for National representatives, for State legislatures, executives, and judges, for county, township, and city officers, for the supervisors of the roads and the directors of the public schools. There is not a point in the whole round of National, State, and Local govern- ment that the popular will, as expressed at elections, 14 GENERAL INTRODUCTION does not touch. Every man is, therefore, directly con- cerned to understand the nature and operations of these governments, and almost equally concerned to have his neighbors also understand them. We have been dealing with practical politics exclu- sively. But the art of government depends upon the science of government. The government of a great country like our own, at least if a good one, is a com- plicated and delicate machine. Such a government is one of the greatest triumphs of the human mind. It is the result of a long process of political experience, and in its elements at least it runs far back into past history. It is, therefore, a most interesting study considered in itself. All this is peculiarly true of our own govern- ment, as will be explained hereafter. However, this complicated and delicate machine is not an end, but only a means or instrument; as a means or instrument it is ordained, as the Declaration of Independence says, to secure to those living under it their rights — such as life, liberty, and the pursuit of happiness; and the extent to which it secures these rights is at once the measure of its character, whether good or bad. It is also to be observed that a government which is good for one people is not of necessity good for another people. We Americans would not tolerate a govern- ment like that of Russia, while Russians could hardly carry on our government a single year. A good govern- ment must first recognize the general facts of human nature, then the special character, needs, habits, and traditions of the people for whom it exists. It roots in the national life and history. It grows out of the na- tional culture. Since government is based on the facts of human nature and human society, it is not a mere crea- GENERAL INTRODUCTION 1 5 ture of accident, chance, or management. In other words, there is such a thing as the science of govern- ment or politics. Moreover, to effect and to maintain a good working adjustment between government and a progressive society, is at once an important and difficult matter. This is the work of the practical statesman. And thus we are brought back again to the fact that the science of government is one of the most useful of studies. Mention has been made of rights, and of the duty of government to maintain them. But rights always imply duties. For example: A may have a right to money that is now in B's posssession, but A cannot enjoy this right unless B performs the duty of paying the money over to him. If no duties are performed, no rights will be enjoyed. Again, the possession of rights imposes duties upon him who possesses them. For example: The individual owes duties to the society or the govern- ment that protects him in the enjoyment of his rights. Rights and duties cannot be separated. Either implies the other. Accordingly, the practical study of govern- ment should include, not only rights, but also duties as well. The future citizen should learn both lessons; for the man who is unwilling to do his duty has no moral claim upon others to do theirs. The foregoing remarks are particularly pertinent to a republican government, because under such a govern- ment the citizen's measure of rights, and so of duties, is the largest. Here we must observe the important dis- tinction between civil and political rights. The first relate to civil society, the second to civil government. Life, liberty of person, freedom of movement, owner- ship of property, use of the highways and public insti- tutions, are civil rights. The suffrage, the right to hold 1 6 GENERAL INTRODUCTION office under the government, and general participation in public affairs are political rights. These two classes of rights do not necessarily exist together; civil rights are sometimes secured where men do not vote, while men sometimes vote where civil rights are not secured; moreover, both kinds of rights may be forfeited by the citizen through his own bad conduct. Evidently polit- ical rights are subordinate to civil rights. Men partic- ipate in govermental affairs as a means of securing the great ends for which civil society exists. But the great point is this — republican government can be carried on successfully only when the mass of the citizens make their power felt in political affairs; in other words, per- form their political duties. To vote in the interest of good government, is an important political duty that the citizen owes to the state. Still other political duties are to give the legally constituted authorities one's moral support, and to serve the body politic when called upon to do so. These duties grow out of the corresponding rights, and to teach them is an essential part of sound education. It has been remarked that good government rests upon the facts of human nature and society, that such a government is a complicated machine, and that it is an interesting subject of study. It is also to be observed that the successful operation of such a government calls for high intellectual and moral qualities, first on the part of statesmen and public men, and secondly on the part of the citizens themselves. There are examples of an ignorant and corrupt people enjoying measurable pros- perity under a wise and good monarch; but there is no example of a democratic or republican state long pros- pering unless there is a good standard of intelligence and virtue. This is one of the lessons that Washington GENERAL INTRODUCTION 1 7 impressed in his Farewell Address: "In proportion as the structure of a government gives force to public opinion, it is essential that public opinion shall be intel- ligent." Government deals with man in his general or social relations. Robinson Crusoe living on his island neither had, nor could have had, a government. Man is born for society; or, as Aristotle said, "man has a social instinct implanted in him by nature." Again, man is political as well as social; or, as Aristotle says, "man is more of a political animal than bees, or any other gregarious animal. " Hence the same writer's famous maxim, "Man is born to be a citizen." These last remarks bring before the mind, as a subject of study, man in his relations to his fellow men. The study of man in these relations has both practical and disciplinary value. At first man is thoroughly individual and egotistical. The human baby is as selfish as the cub of the bear or of the fox. There is no more exacting tyrant in the world. No matter at what cost, his wants must be supplied. Such is his primary nature. But this selfish creature is endowed with a , higher, an ideal nature. At first he knows only rights, and these he greatly magnifies; but progressively he learns, what no mere animal can learn, to curb his appetites, desires, and feelings, and to regard the rights, interests, and feelings of others. To promote this process, as we have already explained, government exists. In other words, the human being is capable of learning his relations to the great social body of which he is a member. Mere individualism, mere egotism, is compelled to recognize the force and value of altruistic conviction and sentiment. And this lesson, save alone his relations to the Supreme Being, is the greatest lesson 18 GENERAL INTRODUCTION that man ever learns. The whole field of social rela- tions, which is covered in a general way by Sociology, is cultivated by several sciences, as ethics, political economy, and politics; but of these studies politics or government is the only one that can be introduced in didactic form into the common schools with much suc- cess. In these schools civil government should be so taught as to make it also a school of self-government. It may be said that so much history and politics as is found in these volumes, or so much as can be taught in the public schools, does not go far enough to give to these studies in large measure the advantages that have been enumerated. There would be much force in this objection, provided such studies were to stop with the elementary school. But fortunately this is not the case. The history and the politics that are taught in the elementary school prepare the way for the history and the politics that are taught in the college and the uni- versity. Furthermore, and this is in one aspect of the subject still more important, they also prepare the way for much fruitful private study and reading in the home. II. Methods of Study and Teaching. Under this head history will be considered only so far as it is involved in politics. Our first question is, Where shall the study of government begin ? The answer will be deferred until we have considered the general features of the government under which we live. The United States are a federal state, and the Ameri- can government is a dual government. Our present National Government dates from the year 1789. It was created by the Constitution, which, in that year, took the place of the Articles of Confederation. At that time the State governments were in full operation, and it was GENERAL INTRODUCTION 1 9 not the intention of the framers of the Constitution, or of the people who ratified it, to supersede those govern- ments, or, within their proper sphere, to weaken them. Experience had conclusively shown that the country needed a stronger National Government, and this the people undertook to provide. So they undertook to accomplish in the Constitution the objects that are enumerated in the 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. " The Constitution also formally denied some powers to the United States and some to the States; that is, it for- bade the one or the other to exercise the powers so prohibited. (See Article I, sections 9, 10.) The under- standing was that the mass of powers not delegated to the Union exclusively, or forbidden to the States, continued to remain in the hands of the people in their State capacities. Moreover, this understand- ing was expressly asserted in Article X of the Amend- ments. Accordingly, the Government of the United States must be studied under two aspects, one National and one State. The case is quite different from what it would be in England or France, both of which countries have single or unitary governments. This duality makes the study more interesting, but more difficult, and suggests the question whether it should begin with the Nation or the State. The answer must be deferred until still other facts have been taken into account. 20 GENERAL INTRODUCTION . The powers that the State Governments exercise are exercised through a variety of channels. (1.) Some are exercised directly by State officers. For the most part these are powers that concern the State as a whole. (2. ) Some are exercised by county officers within the county. (3.) Some are exercised by town or township officers within the town or county. (4.) Some are exer- cised by city or municipal officers within the city. (5. ) A few fall to officers elected by divisions of townships, as road-masters and school directors. Items 2, 3, 4 and 5 of this enumeration constitute Local government, which the people of all the States, in some form, have retained in their own hand. Here we meet a political fact that distinguishes us from some other countries, the vigorous vitality of local institu- tions. France, for example, although a republic, has a centralized government; many powers are there exercised by national officers that here are exercised by local officers, while there the state often asserts direct control Dver the local authorities. Strong attachment to local self-government, and opposition to centralized govern, ment, is one of the boasted glories of the English-speak- ing race. Subject to the State constitution, the State Legislature is the great source of political power within the State. The county, the township, and the city owe their political existence and peculiar organization to the Legislature. Different States have organized local government in different ways. Speaking generally, there are three types — the Town type, the County type, and the Mixed type. The Town type is found exclusively in the New England States. It throws most of the powers of local government into the hands of the town, few into the hands of the county. The County type, which is found GENERAL INTRODUCTION 21 in the Southern States and in a few others, reverses this method; it throws all local powers into the hands of the county, and makes the sub-divisions of the county merely an election precinct, the jurisdiction of the justice of the peace, and perhaps the unit of the militia company, The Mixed, or Compromise system, as its name implies, combines features of the other two. It makes more use of the county, and less of the town, than New England; more of the township, and less of the county, than the South. It is found in the Central States and generally, but not universally, throughout the West. Now not much argument is needed to show that the study of government, even within the limits of the ele- mentary school, should embrace the two spheres in which the American Government moves, the sphere of the Nation and the sphere of the State. Neither is much argument called for to show that the study of the State should embrace Local government, as well as State government proper. The argument on the whole subject divides into two main branches — the one practi- cal, the other pedagogical. Unfortunately, the time given to the study of govern- ment in the schools has not always been wisely distrib- uted. For many years the National Government received disproportionate attention, and such, though perhaps in less degree, is still the case. But, important as the powers of the Nation are, the common citizen, in time of peace, has few relations with it outside of the Post Office Department, while his relations with the State are numerous and constant. President Gar- field, in 1871, said : "It will not be denied that the State government touches the citizen and his interests twenty times where the National Government touches him once." 22 GENERAL INTRODUCTION Still another point may be urged. An American State is a distinct political community. It is a separate commonwealth having its own constitution, laws, and officers. It has its own history. The people boast its services to the country. They point to its great names. They glorify the associations that cluster about its name. They dwell upon its typical or ideal life. All this is educative in a striking sense; such an environment necessarily reacts upon the people. Who can measure the effect of the old Bay State ideal, or the Old Dominion ideal, upon the people of either State ? Once more, Local government has received too little attention as compared with State government proper. Township or county government is on such a diminutive scale that to many it seems a subject unworthy of serious study. But it is important to teach the youth of the county that their future prosperity and happiness, as a rule, will depend upon what is done by road-masters, school directors, township trustees or supervisors, county commissioners or county courts, city authorities, and the like, far more than upon what is done by the Governor or the President. The common citizen is tenfold more concerned in the proceedings in the courts held by justices of the peace and by county judges than in the causes that are decided by the Supreme Court of the United States. Government is fundamentally an information or guid- ance study. It is put in the schools to teach the pupil how to perform his political duties intelligently when he comes to the state of manhood. In order that he may perform these duties intelligently, he must under- stand the nature and the ends of government, whether National, State, or Local, and the mode of its opera- tion. GENERAL INTRODUCTION 23 The fact is, however, that characteristic features of our government are ill understood by thousands of our citizens. The functions of the Executive and of the Judiciary are often confounded; likewise the functions of State authorities and National authorities. A multitude of citizens participate in every election of electors for President, who do not know how the President is elected. The line dividing the State sphere from the National sphere is a very hazy matter to many persons who consider themselves intelligent. Owing partly to this fact, and partly to the greater prominence of the Union, there is always a tendency in many quarters to hold the National authorities responsible for what the State authorities have or have not done. The adjust- ment of Local Government to the State and National Governments is another matter concerning which many are confused. Tax-payers can be found in every neigh- borhood who think the taxes that they pay to the town- ship or the county treasurer go to Washington. What has been said will suffice for the practical branch of the argument. Taking up the pedagogical branch, let us first observe the nature and the origin of the child's early education in respect to government. It is in the family, in personal contact with its mem- bers, that the child forms the habits of obedience and deference to others. It is here that he learns, in a rudi- mentary and experimental way, that he is part of a social whole. Here he acquires the ideas to which we give the names obedience, authority, government, and the like. His father (if we may unify the family govern- ment) is his first ruler, and the father's word his first law. Legislative, executive, and judicial functions are centered in a single person. These early habits and ideas are the foundations of the child's whole future education in government, both practical and theoretical. 24 GENERAL INTRODUCTION His future conception of the governor, president, king, or emperor is developed on the basis of the idea of his father; his conception of society, on the basis of the idea of his home; his conception of government by the State, on the basis of family government. Of course these early habits and ideas are expanded, strengthened, and adjusted to new centers. While still young, the child goes to school. This, on the governmental side, is but a repetition of the home. It is the doctrine of the law that the teacher takes the place of the parent: in loco parentis- The new jurisdic- tion may be narrower than the old one, but it is of the same kind. The education of the school reinforces the education of the home in respect to this all-important subject. The habits of obedience and deference are strengthened. The child's social world is enlarged. At first he thought, or rather felt, that he was alone in the world; then he learned that he must adjust himself to the family circle; now he discovers that he is a member of a still larger community, and that he must conduct himself accordingly. The ideas of authority, obedience, law, etc., are expanded and clarified. About the time that the child goes to school he begins to take lessons in civil government. This also is de- veloped on the basis of his previous home-training. It begins at the very door-step. The letter-carrier, the policeman, the justice of the peace, and the postmaster introduce him to the government of the outer world. Some or all of these officers he sees and knows, and others he hears about. The very mail wagon that rattles along the street teaches its lesson, and so do other symbols of authority that confront him. He attends an election and hears about the caucus. As he grows older, the town council, the court of the local magistrate, and the constable or sheriff teach him the GENERAL INTRODUCTION 25 meaning of the three great branches of government. His ears as well as his eyes are open. Politics is the theme of much familiar conversation to which he listens. With all the rest, he reads the newspaper, and so en- larges his store of political information. Still other agencies contribute to the grand result. The church, public meetings, societies of various kinds, all teach the lessons of order and discipline. Such, in general, are the steps by which the child makes his way out of the world of isolation and selfish- ness into the world of social activity and light. Such is the character of his early education in morals and politics. Nor is it easy to overestimate these early les- sons. To suppose that the child's political education begins when he first reads the Constitution of the United States, is like supposing that his moral education begins when he is first able to follow the preacher's sermon. All this training is unconscious and mainly incidental, and the more effective for that very reason. But such training will not meet the ends of intelligent citizenship. Nor can the political education of citizens be left to the newspaper and .the political speaker. Government must be formally taught in the schools. But what shall be the order of study ? Shall the child begin at Washing- ton, at the State capital, or at his own home ? In other words, shall he begin with the National Government, with the State government proper, or with Local gov- ernment ? For a time the student of government should continue to work on the material that lies right about him, just as the student of geography should find his first lessons at home. On this point the arguments already presented are decisive. The practical argument shows that this will be the most useful course to pursue. The peda- gogical argument shows that it is also the easiest, the 26 GENERAL INTRODUCTION most natural, and the most successful. In general then the method should be — first, the Local Government-, second, the State Government, and last, the National Government. We have now reached a point where we can define more clearly and fully the special object of the series ot books to which this is a general introduction. These books are designed for the first stage of the formal study of the subject of Government. They are written on the theory announced; viz. : That the-child's political education begins at home, and should for a time proceed from the home outward. The series is appropriately named The State Government Series. A volume will be given to a State. The successive volumes will first present an outline sketch of the civil history of the State, and then outline sketches of the State and National Governments as they now exist and operate. With two or three practical suggestions to teachers, this Introduction may fitly close. The first of these suggestions is that if the propel course be taken, the study of the National system will not be deferred until the pupil has made a complete survey of the State System. The State system can no more be understood alone than the National system alone. When the intelligent pupil, and particularly a boy, is old enough to take up one of the volumes of this series, he will already have made some progress in discriminating the two systems. He will know that Congress and the President belong to the Nation, the Legislature and the Governor to the State. But at the outset it may be ad- visable for the teacher to broaden and deepen this line of division. This can be done, if need be, in one or more oral lessons devoted especially to the subject. More- over, the teacher should keep an eye on this line from first to last. He should encourage the pupil to read the GENERAL INTRODUCTION 27 Constitution of the United States, and in particular should direct his attention to the general powers of Con- gress as summed up in Article I, section 8, which are the driving wheels of the National Government. The second observation is that unremitting care must be taken to make the instruction real. The common- places about the abstractness and dryness of verbal in- struction, and particularly book instruction, will not be dwelt upon, except to say that they apply to our subject with peculiar force. The study of history, when it is made to consist of memorizing mere facts, is to the common pupil a dry and unprofitable study. Still more is civil government dry and unprofitable when taught in the same manner. There is little virtue in a mere political document or collation of political facts. The answer that the school boy made to the question, "What is the Constitution of the United States?" is suggestive. He said it was the back part of the History that nobody read. Hence the book on government must be connected with real life, and to establish this connec- tion is the business of the teacher. On this point three or four hints may be thrown out. The teacher should not permit the Governor, for ex- ample, to be made a mere skeleton. He should see rather that he is made to the pupil a man of flesh and blood, holding a certain official position and exercising certain political powers. It is better to study the Governor than the Executive branch of the government; better to inquire, What does the Governor do? than, What are the powers of the Executive ? The teacher should stimulate the pupil to study the political facts about him. He should encourage him to observe the machinery of political parties, the holding of elections, council meetings, courts of local magis- trates, and the doings of the policeman, constable, and 28 GENERAL INTRODUCTION sheriff. This suggestion includes political meetings and conversations upon political subjects. By observation an undue personal attendance upon such proceedings is not meant. To that, of course, there might be several objections. Pupils in schools should be encouraged to read the newspapers, for political among other reasons. The publications prepared particularly for school use to which the general name of " Current Events " may be given, are deserving of recommendation. StilJ another thought is that the study be not made too minute. It should bear rather upon the larger features of the special topics. This remark is particu- larly applicable to the judiciary, which nearly all persons of ordinary education find more or less confusing. The suggestions relative to observation of political facts are peculiarly important in a country like our own. To understand free government, you must be in touch with real political life. In teaching Civil Government, the first point is to de- velop Civic Spirit — the spirit that will insist upon rights and perform duties. The last word is a word of caution. 'The method that has been suggested can easily be made too successful. Our American atmosphere is charged with political interest and spirit; and, while the pupil who takes a lively interest in current politics, as a rule, will do better school work than the pupil who does not, the teacher must exercise care that partisan spirit be not awakened, and that occupation in current events do not mount up to a point where it will interfere with the regular work of the school. B. A. Hinsdale. PART I HISTORY OF SOUTH DAKOTA CHAPTER I EARLY HISTORY AND GENERAL CHARACTER OF THE NEW NORTHWEST I • Elements that Shape History. — History is not only molded by men and their purposes, but by physical conditions, such as natural resources and climate — by the entire character of what is called our physical environment. The history of a State or sec- tion cannot be understood or its importance appreci- ated, unless we know its early conditions, its relations to other States or sections, and its physical character- istics. Thus, our National history is so intimately connected with colonial conditions, its politics so much an outgrowth of colonial politics, its spirit such a development of colonial spirit, that we must under- stand colonial history and conditions in order to appreciate its significance. To understand fully the facts of our own State history, it will be necessary for us to know something of the early history and develop- ment, as well as something of the general character, of that portion of the Great West of which it is a part. 29 30 HISTORY OF SOUTH DAKOTA 2. The Louisiana Purchase. — South Dakota forms one of the group of States sometimes called the New Northwest, whose eastern boundary is the upper Mis- sissippi, and its western the ocean. It is drained by the Missouri and Columbia Rivers and their branches. The great body of this region constitutes the northern part of the Louisiana Purchase, for which, in 1803, the United States paid France the sum of 80,000,000 francs ($15,500,000). The extreme northwestern part of the New Northwest was secured under the claim of discovery and exploration, based particularly on the work of the Lewis and Clark Expedition in 1804-6. Louisiana had been held first by France under claim of discovery, La Salle having secured it for his sovereign by his exploring trip down the Mississippi (1682) by way of the Great Lakes and the Chicago-Illinois portage. 3. Value of Louisiana to the United States By a treaty entered into at Paris in 1763, Louisiana came into the possession of Spain. Napoleon Bona- parte,' dreaming of world conquests which should make France the first nation in Europe, in 1800 con- ceived the idea of a great colonial empire in America, and by promises of political aid to Spain secured the return of Louisiana to France. His plans of empire miscarried, and in 1803 he was ready to sell this magnificent domain for a trifle. This purchase of territory by the United States was the beginning of her real greatness ; it was the " open sesame " to the political and industrial possibilities, the realization of which has been, at least partially, witnessed in the nineteenth century. The importance of this territory GENERAL CHARACTER OF THE NEW NORTHWEST 3 1 to the United States was fully realized by President Jefferson, who said, when there was a prospect of Napoleon establishing an empire there : " The day that France takes possession of New Orleans fixes the sentence which is to restrain her forever within her low-water mark. From that moment we must marry ourselves to the British fleet and nation." 4. The Old and the New Northwest The North- west Territory of our earlier National life, including the five central States bordering upon the Great Lakes, played a most important part in the history of the country.* In all our National struggles we owe much to 1 the moral fibre, intellectual power and political genius of the people of the Old Northwest, while industrially and commercially it is second only to the mother-States of the East. To-day, the New Northwest seems to be taking a similar part in the industrial and political development of the Nation, and the eyes of people are turned to see what shall come out of the West. This section has become prominent in industrial lines, and its political power and influence are already being recognized. When American history for the twentieth century shall have been written, there is little doubt that in it the New Northwest will have an important place; there can be little doubt that it will contribute much to the indus- trial and political greatness of the Nation in the future. 5. The Lewis and Clark Expedition The earliest reliable account given of the country now called the Dakotas is to be found in the journals of the Lewis and Clark Ex pedition, which, starting from *B. A. Hinsdale, The Old Northivest, N. Y., 1888. 32 HISTORY OF SOUTH DAKOTA near the mouth of the Missouri, followed the wind- ings of the river to the region of its head waters, crossed the mountains, and thence descended the Columbia to the ocean. While this account gives very little scientific information concerning this par- ticular region of country, it furnishes an interesting and valuable account of its general features, its inhab- itants, rivers, and wild game. Many places described in the journals of the expedition are familiar to the people of the Dakotas. Spirit Mound, a butte near Vermillion, was visited, possibly to test the supersti- tious belief of the Indians that " a small people lived there." The site of Yankton is described as " a handsome prairie gently rising from the river on the north side, a small distance above which are beautiful groves of Cottonwood on both sides of the river." The Big Sioux, the " Whitestone " (Vermillion), the "Jacques" (James), the Niobrara, the " Du Chien or Dog" (Cheyenne), and other tributaries of the Mis- souri are mentioned in the journals. Bon Homme Island is mentioned, this and other names indicating that the French had already been there. "A bluff with a stratum of black, resembling coal " was passed in what is now North Dakota, near Bismarck. The company spent the winter of 1804-5 in Fort Mandan, on the west bank of the Missouri, just south of the Knife River. The next year they wintered west of the mountains, and in 1806 returned the way they came to St. Louis.* 6. Early Fur Industry of the Northwest. — The * History of the Expedition under the Command of Lewis and Clark, 4 Vols., N. T., 1893. GENERAL CHARACTER OF THE NEW NORTHWEST 33 British and American fur companies were the pioneers in the settlement of this region, and the river banks were dotted with their outposts and trading stations at convenient points. The Lewis and Clark Expedi- tion gave a great impetus to the fur trade, and the bold and hardy pioneers of the fur companies followed the path it had made to the Pacific. The war of 1812 interrupted the business of these companies, but after 1 81 5 it rapidly assumed large proportions. The em- ployes of these companies carried their business throughout the whole New Northwest to the Pacific, and were both explorers and settlers. 7. General Features of the New Northwest. — Probably no other part of the Union has more varied natural resources, or the possibility of a greater diver- sity of industry, than this portion of the West. Its mountains are bountifully supplied with a variety of minerals; its rivers, in their upper courses, afford water power for manufacturing purposes; while its broad expanses of alluvial prairie lands, intersected by the valleys of the rivers, offer unrivaled opportu- nities for a diversity of agricultural pursuits. This great region, forming the northern part of the Louisiana Purchase, and including as well the territory west of the Rocky Mountains claimed by reason of the Lewis and Clark explorations, has been but little understood until recent years. The school geographies of the first half of the century located the "Great American Desert " in the southern part of this area, and not until hunters and traders had ventured to explore it, and were able to testify to its general char- acter, did the term cease to be applied. _ 34 HISTORY OF SOUTH DAKOTA 8. Its River Systems Two great rivers, with their tributaries, drain the territory of the North- western States, the Missouri and the Columbia; one sending its waters to the Gulf, and the other reaching the Pacific. Their sources, not many miles apart, are in the mountains of Idaho and Montana, fed by the snows and rains of the highlands. The Missouri rolls its turbid waters through mountain and plain for a distance of over three thousand miles. It affords a valuable water-way for transportation, and is navi- gable for more than two-thirds of its entire length. Its most important tributaries are from the west, among which are the Kansas, the Platte, the Niobrara, the Cheyenne, the Little Missouri, and the Yellow- stone. The latter is famous for its grand and pic- turesque scenery, and at its source is the National Park. The Columbia, taking its beginning in the two forks named after the explorers, Lewis and Clark, is the largest stream on the western coast. It is but little over one-third as long as the Missouri, and so abounds in water-falls and other obstructions that its navigation is not an important feature. The eastern tributaries of the Missouri are unimportant. The James River of the Dakotas has the distinction of being the longest unnavigable river in the world. 9. Mountains and Minerals — The Rocky Moun- tains form the western boundary of the great plains of the West, and carry in their granite depths most valuable and varied stores of minerals. The Black Hills of South Dakota and Wyoming are the only mountains of any importance not included in the Rocky Mountains proper. Colorado is the first State GENERAL CHARACTER OF THE NEW NORTHWEST 35 in the Union in the amount of gold and silver pro- duced, and fourth in the production of lead, while it has valuable deposits of coal and petroleum. Mon- tana is the first State in the production of copper, second of silver, and fifth of gold. Utah and Idaho also have valuable silver, gold, lead, and copper mines, — Idaho ranking first in the production of lead. South Dakota ranks fourth among the States in the production of gold. The State also has valuable mines of silver, copper, tin, mica, and graphite in the Black Hills ; other minerals, as iron, lead, nickel, etc., are to be found in more or less abundance. Wyoming, Montana, Wash- ington, and the Dakotas produce more or less coal of varying qualities, but their resources in this line have not been developed to any great extent. The coal of the Dakotas is known as lignite, but it is valuable for fuel. Deposits are to be found in the western parts of both States. 10. Native Inhabitants — The early inhabitants were mainly members of the great Dakotah or Sioux Nation of Indians. The various tribes of this nation, including those distantly related, occupied that portion of the Northwest included between the Mississippi River and the Rocky Mountains, the area west of the mountains being occupied "by the Columbians. The Sioux originally held possessions as far east as the Great Lakes. One of their tribes remained in this region surrounded by the warlike Algonquins — the Winnebagoes, on Green Bay of Lake Michigan. It is believed by some that a part of the Sioux who lived east of the Mississippi are to be identified with the Mound-Builders, about whose origin there has 36 HISTORY OF SOUTH DAKOTA been so much speculation. In their later history the Sioux became famous for their horsemanship, having come into the possession of horses, probably through the Spanish occupation of Mexico, and through the visits of Spanish exploring parties that penetrated into their territory — those of Narvaez, Coronado, and De Soto. The Sioux were among the most vigorous and aggressive of their race, a fierce and high-strung people, devoted to war and the chase. Their homes were along the banks of the streams. The wild buffalo roamed in large herds over the western plains, and were hunted by the Indians ; buffalo meat was an important article of food, while the hides, skillfully tanned, made coverings for their lodges and supplied them with robes. I 1 . Indian Legends of Pipestone — Just beyond the eastern border of South Dakota, some thirty or forty miles northeast of Sioux Falls, are located the famous pipestone quarries, yielding a reddish, soft stone, easily cut, and now extensively used for orna- mental purposes. The Indians have various traditions concerning this stone and the locality where it is found. It is a tradition of the upper Missouri Indians that the pipestone was formed from the flesh of their ancestors. The story is that a great flood destroyed all the nations of the earth. To escape this flood, the tribes of red men assembled at this place, but all were overcome by the waters, save a maiden who was caught up by an eagle and carried to a place of safety, and whose descendants again peopled the earth. The flesh of those who perished was converted into the red pipestone. It is used to make the pipes which GENERAL CHARACTER OF THE NEW NORTHWEST T,7 are smoked as a symbol of peace, while the eagle feather is worn by the brave as a decoration. The locality where the pipestone is found is held to be neutral ground, belonging to all tribes in common. Another tradition of the Mississippi River Indians makes this locality the place where the Great Spirit called the tribes of red men together when they were at war, and, making a. great pipe from the rock, smoked it over them all and commanded them hence- forth to be at peace. This legend has been preserved in Longfellow's beautiful poem, " Hiawatha." Another legend identifies the place with the creation of man. Thus a group of Indian traditions is connected with this place and the red pipestone, and the locality has always been a Mecca for the Indians of the North- west. The following is a part of the legend embalmed in the poetry of Longfellow : " On the Mountains of the Prairie, On the great Red Pipe-stone Quarry, Gitche Manito, the mighty, He the master of life, descending, On the red crags of the quarry Stood erect, and called the nations, Called the tribes of men together. From the red stone of the quarry With his hand he broke a fragment, Moulded it into a pipe-head, Shaped and fashioned it with figures ; From the margin of the river Took a long reed for a pipe-stem, "With its dark green leaves upon it ; Filled the pipe with bark of willow, With the bark of the red willow ; 38 HISTORY OF SOUTH DAKOTA Breathed upon the neighboring forest, Made its great boughs chafe together, Till in flames they burst and kindled; And erect upon the mountains, Gitche Manito, the mighty, Smoked the calumet, the Peace-Pipe, As a signal to the nations." Note.- — The titles by which the different parts of the United States are held, are shown by B. A. Hinsdale, How to Study and Teach History, Chap. XX. CHAPTER II GEOLOGICAL HISTORY OF SOUTH DAKOTA* 12. Character of the Surface South Dakota is remarkable for its varieties of surface and varying altitudes. Bigstone Lake, on the eastern border, is less than a thousand feet above sea level, while some of the peaks of the Black Hills rise to a height of over seven thousand feet. This range of altitude surpasses that found in any of the States east of the Mississippi. Along the Missouri and James Rivers are found plains as level as a floor, while to the west of the Missouri, and in smaller areas on the summits of the " coteaus " (low hills or divides), are table lands with gentle undu- lations. In the Black Hills region may be found all the picturesque scenery and rugged wildness characteristic of the Rocky Mountains. Some of the streams have worn for themselves narrow canons hundreds of feet deep. The craggy heights, deep valleys, and wooded slopes of this region make the greatest possible con- trast with the rest of the State. Some portions of the State are exceedingly fertile, while others, known as the " Bad Lands," are devoid of vegetation and almost impassable. In some parts the alluvial plains afford no stones of any size, while in others, as at Sioux Falls, Dell Rapids, and in the Black Hills, large quarries of valuable building stone are found. 13. Surface Formation. — It is believed that in * This chapter may be omitted at the discretion of the teacher. 39 4-0 HISTORY OF SOUTH DAKOTA the beginning the earth was a molten sphere, sur- rounded by the gases of volatile substances, mingled with which was the vapor of what is now its vast bodies of water. As the body of the earth cooled, a crust appeared, which hardened and thickened, and became crumpled and broken as the cooling process continued. Several agencies contributed to surface formation, prominent among which was the bending and breaking of the crust as it became thicker and more dense, this process being complicated by vol- canic outbursts. Another important element in molding the surface was the action of water, which filled the low places of the earth's crust as it cooled and became folded and broken into irregular forms. The waves and currents of its early seas, the erosion and flooding of rivers, and the washings of the copious rains that deluged the earth in the earlier ages, were important factors in bringing the earth's surface to its present form and condition. The third great agency in surface formation was the ice sheets of a later age, which, working their way southward from the north, completely covered large areas of surface. They are known as glaciers. These heavy bodies of ice gradu- ally worked their way over the surface and crowded down the valleys, leaving, when they came to melt, immense piles and lines of rock and earth. All of this work was preparing the earth for the habitation of man; this was the period when the earth was in the laboratory and workshop of Nature, when its' soil was made, its surface fashioned, the great drainage systems of the continents traced, the mountains stored with minerals, and the whole environment arranged GEOLOGICAL HISTORY OF SOUTH DAKOTA 4 1 for the support of the varied and wonderful forms of vegetable and animal life of the present. 1 4. Dakota in Pre-Glacial Times Prior to the time of the glaciers, when the waters of the primeval ocean covered vast areas of what is now dry land, the eastern half of Dakota was a great inland sea. The Black Hills stood forth from this as an island, while to the northeast central Minnesota was a land-mass which extended eastward towards Labrador. The shore of this sea was gradually pushed westward by the elevation of the land, and the water was confined within narrow limits in the western portion of Dakota. The action of the waters of this sea contributed much to the geological formation of our State. The great beds of sandstone, now far below the surface, were originally the sand-driftings of the waters of this sea. It was during this period that the vegetation grew which formed the beds of lignite found in the western part of the State, and also in North Dakota. It was during this period that the great plains were leveled and the mountain peaks and ridges thrown up. The soil was sorted and sifted by the action of the waters and made ready for the use of man; coal was stored by the burying of great forests; the ores were pre- pared and stored for the miner; and it remained for later ages to bestow only the finishing touches to man's habitation. 1 5. The Glacial Period. — For some reasons not entirely understood, there was such a change of climate in the later geological age that vast fields of ice, hun- dreds of feet in thickness, were formed in the north, which gradually pushed their way south, filling the 42 HISTORY OF SOUTH DAKOTA river valleys, leveling hills and mountains, rending and crushing the rocks, and carrying over long dis- tances the debris thus produced. This debris, when the ice came to melt and recede, formed " moraines," or ridges of earth and boulders, which can yet be dis- tinctly traced in the eastern part of the State. Where surface rocks are to be found, the planing and scor- ing of the glacier, as it ground with its great weight over the rocks, can be readily seen. The boulder ridges that are commonly found in the eastern part of the State are debris left by the glaciers as they melted. The ice came into the Dakotas from the northeast, by way of the Red River Valley, and thence pushed over the divide into the valley of the James, which was then occupied by the Missouri, reaching the present channel of the latter at several points, viz., Walworth, Pierre, Running Water, and Vermillion. From these points the ice gradually receded, melting and forming lakes of water, and th& surplus waters were carried off by the rivers. Hence, glacial markings and glacial remains are to be found only in the eastern part of the State. 1 6. Benefits of the Ice Age Prof. J. E. Todd, State Geologist of South Dakota, thus summarizes the benefits of glacial action : " It gave the beauti- fully varied yet even topography which is found in the eastern part of our State. It mingled the vari- ous ingredients of the rocks over which it passed, and produced the uniform and rich soil which is charac- teristic of the whole region east of the Missouri. It produced, in many localities, beautiful lakes, valuable not only for ornamenting the landscape, but also for GEOLOGICAL HISTORY OF SOUTH DAKOTA 43 the storing of moisture in this region. Several of these have become known as summer resorts (among which are Lake Kampeska, Lake Madison, and Big Stone Lake). By the same influence the picturesque terraces were formed along the streams which are so admired both as to appearance and healthfulness for the location of towns and cities. The convenient storing of subterranean waters also has been, in many cases, perfected by the work of the ice."* 1 7. Soil and Surface.— The general facts of geol- ogy that have now been presented will help us to understand the common conditions of soil and surface in our State. In the eastern part, the surface has been formed and molded mainly by the action of ice, and modified by the action of the streams since that period. The subsoil of this section is the so-called " drift," resulting from glacial action, being the debris thereby produced, indiscriminately mixed and spread over the surface of the rocks. The soil itself is rich and very fertile. The level and slightly rolling character of the surface, as well as the contour of the valleys and ravines, is to be attributed to the planing and molding of the ice sheet. Stumps and logs are sometimes found buried in this drift thirty or forty feet below the surface, while pieces of wood have been taken out at a depth of sixty feet. Granite boulders are found in the drift that have come from far north in Canada. All this shows the thorough and promiscuous mingling of the materials of the sub- soil by glacial action. The ice did not reach west of the Missouri, and here water and volcanic action * A Preliminary Report of the Geology of South Dakota, 1894. 44. HISTORY OF SOUTH DAKOTA alone have produced the character of surface and soil. The greatest effects of the action of water are to be seen in the Black Hills, the cuttings and ero- sions of its rivers sometimes extending to hundreds of feet in depth. CHAPTER III PHYSICAL CHARACTERISTICS AND RESOURCES OF THE STATE 1 8. Physical Divisions of the State. — South Dakota may be roughly divided into three sections for the study of its surface and industries : ( i ) The Black Hills Region, which is mountainous and contains the only forests in the State; (2) The Table Lands, sur- rounding and adjoining the mountainous portions of the Hills, containing the major portion of the State west of the Missouri; and (3) The Eastern Section, which is characterized by the fertile valleys of its rivers. 1 9. The Black Hills This section lies in the five counties of Fall River, Custer, Pennington, Lawrence, and Meade. It covers an area of about five thousand square miles. Its system of mountains is but an outlier of the Rocky Mountains, and its mineral prod- ucts and general features are such as are common to that system. There is hardly a mineral of any importance that is not found in greater or less abun- dance in the Black Hills. The mountains are covered with heavy forests of pine and spruce, whose dark hue, when seen from a distance, caused the Indians to designate them in their own language as the Black Hills. Burr-oak and white elm are found on the foot- hills and in the valleys. The Indians early knew of the presence of gold in the Hills, but it was not known to white men prior to 1874, when an expe- 45 46 HISTORY OF SOUTH DAKOTA dition under the command of Lieut-Colonel Geo. A. Custer visited this region. Prior to this time, the In- dians had brought quantities of gold to the trading posts, and this shortly aroused sufficient interest to lead to the exploration of the region, before the whites had any treaty rights therein. The minerals of the Black Hills render it one of the most important parts of the State, and there is ample evidence that the mineral areas have not yet been adequately opened up, and that the output of the mining industry in the future will far surpass anything known in the past. 20. An Indian Tradition of the Hills. — The Indian is naturally superstitious. He is, to some extent, poly- theistic, worshiping the forms and forces of nature. He worships the Great Spirit, which is good, and is in constant fear of the Evil Spirit, to which is attributed all fearful and disastrous events. Mr. Gass, in his Journal of the Lewis and Clark Expe- dition, relates the following superstition which he heard from the Indians themselves : " The Evil Spirit was mad at the red people and caused the mountains (of the Black Hills) to vomit fire, sand, gravel, and large stones to destroy them ; but the Good Spirit had compassion and put out the fire, chased the Evil Spirit out of the mountains, and left the people unhurt. When they returned to their wickedness, the Great Spirit permitted the Evil Spirit to return to the moun- tains again and vomit up fire; but on their becoming good and making sacrifices, the Great Spirit chased away the Evil Spirit from disturbing them, and for forty snows he had not permitted it to return."* * Quoted by Andreas in his History of Dakota. PHYSICAL CHARACTERISTICS OF THE STATE 47 There are many volcanic peaks in the Hills, and this tradition probably refers to the time when these volca- noes were active. 2 1 . The Bad Lands. — This is a name given to a limited area of country southeast of the Black Hills, between the White and the Cheyenne Rivers. It is called " bad " because of the absence of vegetation and the difficulty of traversing it. The surface has been carved into curious shapes and fantastic forms by the washings of rains and the erosion or cutting of the streams. The region abounds in fossils, i. e., bones of animals that have been buried in the earth and preserved, at least in form. So numerous are the fossil remains that it is believed that at some period the animals must have perished here in droves, over- come by floods or storms. These bad lands have a world-wide notoriety, because of their wealth of fossil remains, and because of their peculiar appearance. Professor Todd gives the following description of these lands : "Approaching the bad lands over the ordinary undulating prairie, one suddenly comes to the verge of a cliff or the top of a ridge, and finds himself gazing, perhaps from a height of two or three hundred feet, upon a vast, barren labyrinth, covering many square miles, consisting mainly of crooked ravines and jagged ridges. In some places these ridges widen and rise into broad buttes, capped with tables of harder strata, supporting grassy meadows with a few gnarled cedars. The ravines, also, sometimes, widen into val- leys, having limited grassy flats interspersed with dry watercourses of almost snowy whiteness. Here and there, the clustered shapes take form, and you see the 48 HISTORY OF SOUTH DAKOTA » *■...-. -m PHYSICAL CHARACTERISTICS OF THE STATE 49 ruins of some strange city. Towers, walls, domes, chimneys, turrets, and spires appear so distinctly that you instinctively watch for the goblin inhabitants to appear. But you see only the gray ' chipmucks ' scampering into the crevices near you ; or, with stead- ier gaze, you recognize a few ' big-horns ' on the side of yonder gigantic cathedral, or a few scattering sheep in a distant valley. Such a description is particularly applicable to the bad lands along the White River, which are carved out of the lake deposits of the ter- tiary formation. The prevalent colors there are white and light shades of red, yellow, and gray, which are disposed in narrow, horizontal bands, cutting through all the forms like the layers of a vast onyx. About the head of Grand River, and in some localities along the Missouri, similar barren areas have been cut out of the dark drab clays of the cretaceous formation. Because of the greater uniformity of color and com- position and the general looseness of structure, they are less picturesque, though otherwise much resem- bling those of the White River. As a compensating feature, however, there occur beds of lignite, which here and there have been ignited and have burned with intense heat. Acres of black, lava-like slag appear, and stretches of clay burned to a brick-red salmon color. Here and there the resultant settling has opened deep fissures like those produced by earth- quakes, so that many are firmly convinced that volcanic forces have been at work there at no very distant day." 22. The Table Land Region. — The entire section of the State west of the Missouri, and not included in the Black Hills, is classed as table lands. Five 50 HISTORY OF SOUTH DAKOTA branches of the Missouri take their beginning towards the western part of the State, and flow across these lands from west to east. They are the White, the Bad, the Cheyenne, the Moreau or Owl, and the Grand Rivers. The face of the country is deeply cut by these rivers, whose valleys are from one to four hundred feet below the general level, the larger being of some width and terraced. The rainfall is not sufficient to render general farming feasible, and immense herds of cattle and horses and large flocks of sheep roam over the broad plains. It is in the care of these herds and flocks that the typical "cow- boy " of the West is employed. The wild prairie grasses are particularly nutritious, and cattle feed the year round upon these ranges. The finest meats that reach the eastern markets come from these ranges, and are fattened without corn or other grain. Valuable beds of lignite are found in the northwestern part. The section is crossed by two railroads from the Missouri River to the Black Hills, one a branch of the Northwestern system, and the other of the Milwaukee. A third line, of the Milwaukee system, extends north- westward from Evarts. 23. General Features of the Eastern Section. — The eastern section of the State is characterized by large and fertile river valleys that cross it from north to south, viz., the eastern half of the Missouri, the James River valley, reaching entirely across the State, and the valley of the Sioux on the eastern border; and in the southern part, the valley of the Vermillion stretches between the Sioux and the James and makes the southern part of the State virtually a PHYSICAL CHARACTERISTICS OF THE STATE 5 1 river valley section. The valley of the James is the lowest of the three valleys that cross the State, and has a very slight descent. In the northeastern part, the boundary of the State is formed by Lake Traverse and Big Stone Lake, while the whole upper valley of the Sioux is dotted with lakes, many of which are beautiful sheets of water, and are not only valuable for storing water, but arc utilized as pleasure resorts. The western half of the section lies wholly within the artesian basin, except some few elevated points, and artesian wells are successfully used for irrigation pur- poses and for water-power. The James River, which rises in North Dakota and flows entirely across our State, is an insignificant stream as to the volume of water that ordinarily flows in its channel. In the summer season it dwindles to a narrow creek in its upper course, often forming nothing but a series of deep pools. In the spring it carries a large volume of water, and has all the appearance of a large river. At this season, when rains are heavy, it overflows its banks in places. 24. Industries and Resources of the Eastern Sec- tion — The most fertile parts of the section are along the river valleys, which blend together as they reach the Missouri at the south. It is along these valleys that a diversified form of agriculture flourishes. As we leave the valleys and reach higher ground, we find that grazing and stock-raising industries predomi- nate. A belt of excellent building and ornamental stone is found along the stream valleys from Sioux Falls and Dell Rapids to the vicinity of Mitchell. Brick clays are found in the southeastern part of the 52 HISTORY OF SOUTH DAKOTA ARTESIAN WELL. State along the terraces of the Missouri and other streams, while deposits fitted for the production of Portland cement are found in several localities, notably on the Missouri at Yankton. The manufacture of this cement already promises to be an important industry. A diversified form of agricul- ture prevails in the southern and eastern parts of this sec- tion. In the northern and western parts, grazing and stock-raising take precedence, but by greater economy in util- izing the rainfall, together with a larger use of irrigation, the range of industry is widening. 25. Artesian Wells of the State. — The artesian-well basin of the State reaches from the Missouri River eastward to some distance beyond the James. The line of the eastern limit of the basin passes from near Britton, in Marshall | county, at the north, in a * southerly course, with a sharp deflection to the west in Han- son county, to Vermillion and Elk Point in the southern part PHYSICAL CHARACTERISTICS OF THE STATE 53 of the State. The pressure and flow of these wells vary much in different localities. A flow of more than 3,000 gallons per minute has been obtained from an 8-inch artesian well. The pressure varies from a few pounds to 200 pounds per square inch. The wells are from 100 to 1,500 feet in depth. They afford a valuable means of irrigation, and furnish. a convenient and cheap water-power. The supply of water found in these wells probably comes from the foothills of the Rocky Mountains, the Black Hills, and other ranges in Montana. The amount of this supply which can be utilized has been roughly estimated to .be 326,805,- 600,000 cubic feet annually. This amount of water would fill a river bed a mile wide, 20 feet deep, and nearly 600 miles long. CHAPTER IV DAKOTA IN PRE-TERRITORIAL DAYS 26. Trading Companies as Pioneers — It was not until 185 1 that white men had any legal claims to territory within the limits of the Dakotas. The pioneer work of the trading companies previous to this time opened up the way for a throng of settlers who early rushed in and established their claims by " squatter's " rights. Naturally, the companies fol- lowed the great rivers, which they used as highways and lines of communication. The Hudson Bay Company, chartered by Charles II. of England in ' 1670, was earliest in the field, having established itself in the north during the previous century; but American enterprise, early in the nineteenth century, entered into competition with it and took possession of a portion of the profitable trade with the Indians. The American Fur Company, organized in 1809 by John Jacob Astor, succeeded in controlling most of the fur trade in the Missouri Valley, and thus its busi- ness extended over the major portion of Dakota. The Hudson Bay Company succeeded only in holding its place in the north along the upper waters of the Mis- souri, on the Yellowstone, and beyond. The Columbia Fur Company, organized in 1822 by persons formerly in the employment of the Hudson Bay Company, located upon Lake Traverse, at the head of the Red River. By 1826, the American Company of Astor 54 DAKOTA IN PRE-TERRITORIAL DAYS 55 was able to monopolize the fur trade of the Missouri, and constructed a line of forts and trading houses on the river, which later became either sites for govern- ment posts or centers of early settlement. Some trading houses were also built on the James River during the early part of the century. The first actual settlement made by a white man in Dakota was in 1780, at Pembina, by a Frenchman in the employ- ment of the Hudson Bay Company. Fort Pierre was built a short distance above Pierre by Pierre Choteau in 1829, and it was under his conduct that the first steamboats ascended the Missouri about 1830. 27. Early Treaties with the Indians Dakota was obtained from the Indians piece-meal. The treaty of Traverse-de-Sioux, in 1851, gave the whites their first legal claim to land within the limits of the Dakotas. This treaty was negotiated with the upper bands of the Sioux Indians, and embraced a strip of land lying between the Big Sioux and what is now the Minnesota State line. It included the site of Sioux Falls, on the south, and the western shore of Bigstone Lake, on the north. The next treaty was in 1858, and secured for the whites, with two small reservations, the remainder of Dakota between the Big Sioux and the Missouri. The northern and western portions of the State were left in the hands of the Indians. The Consideration paid by the National Government for the valuable cession of 1858 was, in total amount, $1,600,000 in the form of annuities for a period of fifty years. The period of permanent settlement begins with the making of this treaty, and from this 56 HISTORY OF SOUTH DAKOTA time dates the movement to secure a territorial organ- ization and government for Dakota. 28. Later Treaties with the Indians — For several years after the Indian troubles of 1862, beginning with the New Ulm Massacre in Minnesota, the In- dians were warlike, and the United States troops were employed in subduing them.* In 1866 a peace com- mission was sent to form treaties of perpetual peace and friendship with the wild tribes of the Sioux on the Missouri River. The commission visited the various tribes of the upper Missouri in Montana, and finally succeeded in negotiating a treaty which went into effect in 1868, by which a large portion of North- ern and Eastern Dakota was opened up to settlement. In 1874 the discovery of gold in the Black Hills caused the whites to clamor for territory in that section. After many attempts, a treaty for the Black Hills region, included between the north and south forks of the Cheyenne River, was concluded in 1876. No special sum was paid for this tract, the Government binding itself to " provide all necessary aid to assist the Indians in the work of civilization." In 1868 a treaty with the Sioux Indians secured a small strip of territory west of the Missouri and included between the Cannon Ball and Heart Rivers, not reaching the western boundary of Dakota, but cornering upon the cession of 1876. The large area in Southwestern Dakota, lying between the Missouri River and the Black Hills' cession, remained as an Indian reserva- tion till 1889, when it also was secured by treaty. * See Sanford Niles' History and Civil Government of Minnesota, in State Series, pp. 80-84. DAKOTA IN PRE-TERRITORIAL DAYS S7 Practically, all of the remaining territory west of the Missouri was opened to settlement without treaty by an executive order in the year 1880. The last treaty with the Indians for Dakota Territory was made in 1892, when the reservation in Charles Mix County was opened to settlement. A large area in the central and northern part of the Territory was not covered by any treaty. The map opposite page 133 will show the various cessions that the Indians made by treaty. 29. Settlement of the Sioux Valley The some- what picturesque site of Sioux Falls had attracted the attention of early explorers. The Sioux was called by the Indians the " Thick-wooded River," and a graphic description of the falls had been given by Nicollet in his " Travels in the Northwest." This attractive location became widely known, and two independent movements were started for the settlement of the Sioux Valley. This region was originally attached to Minnesota, and the first form of the Enabling Act for the admission of that State made the Sioux the western boundary. Through the influence of land speculators, an amendment was made by which the boundary of Minnesota was made to run due south from the foot of Bigstone Lake to the Iowa State line, leaving a strip of land some thirty miles in width, to which the Indian title had been extinguished by the treaty of Traverse- de-Sioux. One of the land companies formed for the purpose of effecting a settlement in this region was the Western Town Company, of Dubuque, Iowa, organ- ized in 1856. The other company was organized at St. Paul, and was known as the Dakota Land Com- pany, receiving its charter from the Legislature of 58 HISTORY OF SOUTH DAKOTA Minnesota in the winter of 1856-7. Representatives of the Western Town Company were first on the ground in the latter part of May, 1856, and secured a portion of the land surrounding the Falls of the Sioux. Returning in the summer of the next year, they began the permanent occupation of their land. Members of the St. Paul Land Company reached the site of Sioux Falls in 1857, shortly after the settlers of the Dubuque Company had established themselves, and they took up a land claim 'south of that held by the others and began permanent occupation. In 1858 Minnesota was admitted to the Union as a State, and all that portion of the Dakotas east of the Missouri and White Earth Rivers, to the Minnesota and Iowa lines, was left in an unorganized condition, with neither legal name nor government. This condition of things con- tinued until the Territory of Dakota was organized in 1 86 1. During this time the settlers on the Sioux and in the Missouri Valley were without any regular means of government. The Sioux Falls settlement prospered from 1857 to 1862, at which time the Indian massacre in Minnesota, and the threatening attitude of the Indians in Dakota, compelled the settlers to leave, and the Sioux Valley remained de- serted from that time until 1865, when the whites again took possession under protection of United States troops that guarded the settlement until 1869. 30. The Settlement of Yankton. — Yankton and Yankton County are a nucleus around which is gath- ered much of the early history of Southeastern Dakota. For over twenty years Yankton was the capital of the Territory, and its best known and most important DAKOTA IN PRE-TERRITORIAL DAYS 59 place. Yankton was the pioneer settlement of the Missouri Valley, Vermillion being a close competitor and early rival. In 1858 a trading post was established at Yankton by the agents of Frost, Todd & Co., who had obtained a license to trade with the Indians. In the same year the company established a trading post at Vermillion. In 1859 the first white families settled in the counties of Yankton, Clay, and Union. The town site of Yankton was surveyed and established this year by the Upper Missouri Land Company, con- sisting of J. B. S. Todd, afterwards prominent in the politics of the Territory, A. W. Hubbard, and Enos Stutsman. One of the early settlers, well known in this early history, was Charles F. Picott, a half-breed, born in Dakota in 1830. He was granted 640 acres of land, covering a part of the site of Yankton, by the treaty of 1858, in compensation for valuable services as guide and interpreter. During the Indian outbreak that began in 1862, Yankton was a place of refuge for the Dakota settlers in the more exposed parts. Strong fortifications were erected, and a militia company, organized. These precautions and the friendship of the Yankton band of Indians saved the place from attack. Only a few of the Dakota settlers perished at the hands of the Indians during this time of Indian warfare, but the massacres in Minnesota had inaugu- rated a reign of terror. 3 1 . Early Settlements in Southeastern Dakota — From a trading post in 1859, Vermillion rapidly came to be a prosperous settlement, ranking in i860 as the second town in importance in the Territory. The first school-house ever built in the Territory was 60 HISTORY OF SOUTH DAKOTA erected at Vermillion in 1864. It was built of logs taken from the "timber" on the banks of the Mis- souri, and its exact location is still pointed out.* The first school in this house was taught by Amos F. Shaw in the winter of 1864-5. The three aspirants for the honor of being capital, in 1 860-1, were, in the order of their size and importance, Sioux Falls, Vermillion, and Yankton. Elk. Point and Bon Homme were two other early settlements on the Missouri, the former dating from 1859 and the latter from 1858. Bon Homme was settled by a colony from Mankato, Minnesota, immediately after the consummation of the treaty with the Indians in 1858. It prospered as an early settlement, but its site is marked now by only a country store and a few scattered residences. 32. Exploration and Settlement of the Black Hills. — It was not until 1877 that the region of the Black Hills was formally opened for settlement to the whites. The first regularly organized military and scientific expedition to the Hills was under the .command of Lieut. Geo. K. Warren in 1857, and was accompanied by Dr. F. V. Hayden as geologist and naturalist. A very good map of this section was made, which became the basis for all future surveys, but no gold was discovered. In 1874 Lieut. -Colonel Geo. A. Custer (killed in 1876 in the massacre on the Little Big Horn River in Montana) led an exploring party to the Hills, and reached the site of Custer City. N. H. Winchell was the geologist of the expedition. The next year settlers flocked to this section, and towns began to be established. Custer City was laid * See Appendix, page 333. DAKOTA IN PRE-TERRITORIAL DAYS 6 1 out in 1875. An attempt was ma'de to prevent, by military force, the operations of miners and settlers, since the territory by right yet belonged to the Indians, but the attempt was far from being success- ful. The whole section was settled with wonderful rapidity, and before the conclusion of the treaty of 1877 most °f the towns important in its later history were laid out, and settlers were comfortably estab- lished. Deadwood, the business capital of the Hills, sprang up from the activity in settlement which marked the year 1876. It owes its growth and pros- perity to rich placer and quartz mines in its immedi- ate vicinity. The name originated from the large amount of dead or dry timber which the miners found in the gulches. Lead City, named from the great gold lead of the quartz formation upon which the town is located, is the second place of commercial importance in the Hills. Its preliminary survey was made in 1 876. It is near this city that the great Homestake Mine is located, the greatest gold mine in the world. ) The mine was purchased by its present owners in 1877, and by its development has come to yield an immense profit, and has made the city. Other towns of the Hills that were the product of the activity of the year 1876 are Rapid City, Hill City, Spearfish, Central City, Sturgis, and some others of less importance. 33. Provisional or " Squatter " Government In 1858, when the eastern half of Minnesota Territory, having its western boundary on the Missouri River, was admitted as a State, the settlers of Eastern Dakota were left without organized government, in a 62 HISTORY OF SOUTH DAKOTA territory without legal name or recognition by the National Government. Under these circumstances the settlers were cut off from political rights, and if they were to have law and order it must come from their voluntary action. The political instinct of the American citizen here asserted itself, and for two years the settlers of the valleys of the Missouri and the Sioux elected " squatter " legislatures and " squat- ter " governors. The first of these provisional legis- latures was elected in 1858, printed notices of the election having been sent out by the authority of a " mass convention of the people of Dakota Ter- ritory," held in Sioux Falls. The session lasted but a few days, and the principal business done was to memorialize Congress for the organization of a new Territory, and to elect a governor and a delegate to Congress. Another provisional legislature assembled in 1859, and again petitioned Congress for the organi- zation of a Territory. This incident in the early set- tlement of Dakota shows the character of the settlers, who, left without legal organization, without law, and destitute of the machinery of government, thus met the emergency of the times, preserved order, effected a provisional political organization, and protected all rights. This instinct for political order is an inherit- ance from the Anglo-Saxon. 34. The Movement of Population. — The lines of settlement have moved across our country from east to west, practically upon parallels of latitude. The New England people and those from the North Central States have moved westward and preserved their lati- tude, so that South Dakota, in line with New England, DAKOTA IN PRE-TERRITORIAL DAYS 63 New York, Northern Ohio, Indiana, Illinois, Southern Wisconsin, and Northern Iowa, was settled by peo- ple from these States, who brought with them the political ideas and sentiments, the usages and customs of their earlier homes. It is from New York and Ohio that we have taken the models of our laws, while the basis of our local institutions and usages of government is essentially that of New England. This will more fully appear in the study of the civil govern- ment of the State. 35. Character of the Settlers. — It was not the well-to-do resident of the Eastern States that came to settle in the Dakota of early days ; neither was it the idle and the vicious. The early settlers of native Amer- ican descent were composed largely of three classes, viz. : ( 1 ) Those who had been unfortunate in business and desired to find a new country in which to make another start in life; (2) Young men whom the con- servatism of well-settled lines of business in the older communities rendered impatient, and who sought in the New West a better opportunity to make a begin- ning in life; and (3) Soldiers who came West at the close of the Civil War to avail themselves of the homestead privileges offered them by the Government. Added to these classes there was a large body of foreign immigrants, who, across the sea, had heard of these fertile acres, and came to have a part in the development of the New Northwest. These latter, with more or less ease, adapted themselves to the institutions and imbibed the sentiments of the native- born American settlers. In these beginnings of Our population may be traced the basis of that buoyant, 64 HISTORY OF SOUTH DAKOTA hopeful, and energetic disposition which characterizes the people of Dakota — people who have achieved marked success in the development of a new common- wealth. And what is true of Dakota is largely true of other portions of the Northwest. 36. Frontier Life The early settlements of Da- kota had all the characteristics of frontier life. Com- ing, as many of the settlers did, from the comfort and safety of the East, still they cheerfully took up the burdens of the new life and bore its hardships with- out complaint; but the early advent of railroads soon brought the conveniences and luxuries of older societies, and the period of frontier life was shortened in the Dakotas. True it is that in some parts of the State " sod shanties " are not far in the past, but fre- quently these sod shanties sheltered refinement and comfort. Very much of the pioneering of Dakota was done in the wake of the railroad, and thus we have witnessed here a wonderfully rapid growth, and conditions have been far removed from those known to the pioneer in the older States. But the poverty of the country is not the poverty of the city, and the poverty of pioneer life is not to be classed as poverty in its effects upon character. From the hard con- ditions of pioneer life have come some of America's greatest men. It is a life that develops courage and energy, and reveals strength of character. " The pov- erty of the frontier, where all are engaged in a com- mon struggle, and where a common sympathy and hearty co-operation lighten the burdens of each, is a very different poverty, different in kind, different in influence and effect, from that conscious and humili- DAKOTA IN PRE-TERRITORIAL DAYS 65 ating indigence which is every day forced to contrast itself with neighboring wealth, upon which it feels a sense of grinding dependence. The poverty of the frontier is, indeed, no poverty. It is but the beginning of wealth, and has boundless possibilities always open- ing before it."* * James G. Blaine. Note. — Unity of treatment made it desirable to include in this chapter some matter relative to settlement that, chronologically, does not belong in the Pre-Territorial Period. CHAPTER V DAKOTA AS A TERRITORY 37. Organization of the Territory. — The question of giving Dakota a Territorial organization came at a time When Congress was absorbed with the issues and ) complications that led to the Civil War. The demand of the Republican members of Congress, that the act should contain a clause forbidding the taking of slaves into the Territory, delayed the passage of the law until after the retirement of the Southern members, just prior to the inauguration of President Lincoln. The Organic Act, or law organizing the Territory of Da- kota, was signed by President Buchanan March 2, 1 86 1. In June following, President Lincoln appointed the necessary Territorial officers. 38. The Organic Act A Territory has no con- stitution, the place of one being taken by the law of Congress authorizing its organization and prescribing .its form of government. The first organic act ever passed for such a purpose in the history of the country was in 1787, and is known as the Ordinance of 1787. It was enacted by the Congress of the Confederation, and provided a plan of government, for the territory now known as the Old Northwest, and for its division into parts and the admission of the parts into the Union as independent States.* The early organic acts establishing Territories vested the legislative B. A. Hinsdale, The Old Northwest, Chaps. XV., XVI., XVII., and The American Government, Chap. XLI. 66 DAKOTA AS A TERRITORY 67 power at first in the governor and the judges, and afterwards in a legislature. The later acts vested it in an elective legislature from the beginning. The Or- ganic Act for Dakota was, in general, identical with those of other Western Territories. It contained the general provision of two sections of public land in every township for school purposes, which gave Dakota a total of over 5,000,000 acres of school lands. A peculiar provision of the act was found in the require- ment that " the river in said Territory heretofore known as the ' River aux Jacques,' or ' James River,' shall hereafter be called the Dakota River." This attempt to legislate upon the name of a river was far from being successful, as present usage testifies. We learn something of the primitive conditions of travel in the West at the time when Dakota became a Ter- ritory, from the fact that it required eleven days for the news of the passage of the Organic Act to reach Yankton. 39. Boundaries and Area Dakota originally in- cluded territory that is now found in five States, viz., portions of Idaho, Wyoming, Montana, and all of the two Dakotas. The boundary lines were as fol- lows : Starting in the channel of the Red River of the North where it is crossed by the forty-ninth parallel of north latitude, the line follows this river to Big Stone Lake; thence along the western boundaries of Minne- sota and Iowa to the point where the Big Sioux inter- sects the Missouri ; thence north along the channel of the Missouri to the mouth of the Niobrara ; thence up the Niobrara and Keya Paha Rivers to the forty-third parallel of north latitude ; thence west to the eastern 68 HISTORY OF SOUTH DAKOTA boundary of Washington; thence north to the forty- ninth parallel, and thence east to the point of begin- ning. The Territory thus organized included an area of over 350,000 square miles, and was nearly as large as the combined areas of France and Spain. By 1873, the parts of Montana, Wyoming, and Idaho included in Dakota were cut off, and the western boundary of the Territory was placed at 104 5' longitude west from Greenwich, the present boundary of the two Dakotas. In 1882, the forty-third parallel of latitude was made the southern boundary to the point where it intersects the Missouri, and the territory south of this line and north of the Niobrara and Keya Peha Rivers was added to Nebraska. The area of Dakota in its final form was 150,932 square miles, its extreme length north and south being about 430 miles, and the breadth east and west about 385 miles. 40. General Character of the Territorial Govern- ment. — Territorial government is peculiar in form, having considerably less local authority than is con- ferred by Statehood. This form of local government is peculiar to American institutions, and it was, per- haps, unconsciously patterned after the Thirteen Eng- lish Colonies, where the power of local legislation was usually granted, but the executive authority was held under the control of the home government. The Ter- ritorial government of Dakota conformed to the gen- eral plan applied to other Territories. The governor, secretary, chief justice and associate justices, United States attorney, and surveyor-general were appointed by the President, and their salaries were paid by the National Government. The general features of the DAKOTA AS A TERRITORY 69 Territorial organization were completed by the selec- tion of a delegate to Congress, elected by the quali- fied voters of the Territory for a term of two years. He had a right to a seat in the National House of Rep- resentatives and could participate in the discussions, but could not vote. 41. The Legislature — The legislative power was vested in two houses, the Council and House of Rep- resentatives, the former having, prior to 1884, not less than 9 or more than 13 members, and the latter not less than 13 or more than 26 members. Later this was changed, so that the membership of the Council was 24 and that of the House 48. The members of the legislature were elected like those of a State leg- islature. The scope of legislation in a Territory is nearly as wide as that of a State. The members of the Dakota Territorial legislature were paid $4.00 per day during the session, and the session was limited at first to forty, and later to sixty days. 42. The Judiciary. — The Judiciary of Dakota was vested in a series of courts, partly Federal and partly local in character. The Territorial courts were a su- preme court, a district court, probate courts, and jus- tice's courts. The probate and justice's courts were entirely local in character, and resembled the cor- responding courts of our State. The supreme court and the several district courts were presided over by the judges appointed by the President. At first there were a chief justice and two associate justices, but the number was later increased to five associates, as the Territory became more populous. Any two of these judges could hold a session of the supreme court, JO HISTORY OF SOUTH DAKOTA while the district courts were held by them individu- ally. The Territorial judicature reminds us of the Federal courts of the Nation, in the relations of the Supreme and Circuit courts. 43. Territorial Officers. — The first Governor of Dakota was William Jaynes, of Springfield, Illinois. He and his fellow officials did not arrive in the Terri- tory until May 27, 1861, and it is at this date that the civil history of the Dakotas begins. In the twenty- eight years of Territorial history there were ten gov- ernors ; the last one was A. C. Mellette, appointed by President Harrison in 1889, his term being less than a year, since Dakota was admitted as a State in No- vember of that year. The chief justices of the Terri- tory were, successively, Philemon Bliss, Asa Bartlett, Geo. W. French, Peter C. Shannon, A. J. Edgerton, and Bartlett Tripp. 44. The First Legislature The first legislature convened at Yankton in March, 1862, and continued in session until May 15. It passed 91 general laws, 25 private laws, and 21 memorials to Congress. The Council consisted of 9 members and the House of 13. Some of the acts are of especial interest. One act incorporated The Old Settlers' Historical Association ; another established the Territorial penitentiary at Bon Homme; another located the seat of government at Yankton; a fourth located the Territorial University at Vermillion. A series of acts established the early counties of the Territory; civil and criminal codes were enacted; and, in general, the loose ends of civil life, which two years of disorganization had produced, were gathered up> .and that degree of law and order DAKOTA AS "A TERRITORY 71 established which would meet the contingencies of pi- oneer life. 45. Periods of Territorial History. — The twenty- eight years of Territorial life may be divided into three periods, viz.: (i) The Early Period, from 1861 to 1872; (2) The Middle Period, from 1872 to 1880; and (3) The Later Period, from 1880 to 1889. Each of these periods is characterized by peculiar conditions and distinct tendencies. During the first period, the Territory was without railroads, and this fact, together with the Indian troubles, delayed settlement and growth. The second period was marked by the ad- vent of railroads, peaceful relations with the Indians, and a constantly expanding settlement and growth. The third period was marked by activity in railroad building, the rapid settlement of remote portions of the Territory, and the growth, in the older settled portions, of large and prosperous towns. It was a period of remarkable growth and development. 46. The Early Period.— The settlement of Dakota during the early period of Territorial life was accom- plished under many difficulties. The Indian trouble! from 1862 to 1868 actually drove many settlers out of the country and materially limited immigrationyfTrle population at the time the Territory was organized was about 2,000; in 1868 it was estimated at 12,000, while in 1870 it was only 14,182. In 1868 the Sioux were located upon the reservation west of the Missouri known as the Big Reservation. From this time on there was no particular danger of Indian depredations, and Indian difficulties practically disappear from Da- kota history. But the greatest check upon rapid set- I 72 HISTORY OF SOUTH DAKOTA tlement in this pe riod was the utter lack of railro ads. , Tlray wrTinTTEaTuntiT 1872 the streams~of settle- ment had only followed the Missouri, the James, and the Big Sioux valleys, in the southern part of the Territory, while in the north there was little done in the way o"f settlement outside of the immediate valley of the Red River. In 1870 the first telegraph line was built into the Territory — from Sioux City to 1 Yankton. The first public land entry in what is now j North Dakota was made in 1871. ' In 1865 Congress appropriated $85,000 for the open- ing of wagon roads through the Territory towards the Rocky Mountain gold fields. One road was con- structed from Niobrara to Virginia City ; another from Sioux City up the valley of the Missouri to the mouth of the Cheyenne River; and a third from the Minne- sota line to Cheyenne, Wyoming, to intersect the road to Virginia City west of the Black Hills. The con- struction of these roads undoubtedly gave an impetus to immigration and guided settlers further into the country than they otherwise would have gone in the early period. The Middle- Period — Dakota could hardly ave been settled in half a century without railroads. he period of active settlement and prosperous growth [dates from the building of railroads across the plains ,d along the valleys. The northern part of the Ter- ritory could have been but little more than an immense cattle range without this aid; likewise a large part of the southern portion could never have been settled with- out these pioneers, while the richer portions along the rivers, although aided by river transportation, must DAKOTA AS A TERRITORY 73 have gone through a long period of slow growth and toilsome progress without the iron highways, which es- tablished close relations with the great commercial cen- ters of the East. The first railroad track laid in Da- / kota was that of the Northern Pacific, which, coming I from the East, reachedFargrr-J&Httary i, 1872. The same year the Dakota Southern was built west from Sioux City, reaching Yankton in 1873, about the time the Northern Pacific reached Bismarck. The Northern Pacific, the northernmost of the transcontinental lines, was completed in 1883; and its extension across Da- kota, with connections east and west, contributed much to hasten the settlement and development of the north- ern part of the Territory. In 1880 the Territory had a population of 135,177, and a railroad mileage of 689 miles. 48. The Later Period — During the period of Ter- ritorial life from 1880 to 1889 there was rapid growth and development. There was great activity in rail- road building. The increase in railroad mileage was significant, growing from 689 miles in 1880 to 4,483! in 1889. Eastern capital was extensively employee for the building of railroads and towns, and for im- provements upon the farms of settlers. The farms of the south, the ranches of the west, and the wheat fields of the north were made to yield a wealth of production which attracted the attention of home seekers in this and other countries. The competition of Western farm products with those of the East in Eastern markets attracted attention to the resources of the West, and brought increased immigration. With a constantly increasing immigration came a rapid expan- 11- I ed" 74 HISTORY OF SOUTH DAKOTA sion of industry and business. Here is to be found the " boom " period of Dakota history, when the noisy excitement and extravagant claims of the " boomer " led to investments that proved unwise, causing loss, and somewhat delaying real progress. The influx of settlers was phenomenal. Towns sprang up almost in a day along the lines of railroad as they were pushed into the remote sections. Throughout the entire period there was a steady development of the resources of the Territory, and, in the later years, there came the steadying influence and conservative spirit of well- established industry and prosperous business. 49. Political Life in the Later Period It was during this period that the political life of Dakota be- gan to assume larger proportions, and to take on greater activity. In 1883 the capital was removed from Yankton to Bismarck, very much to the discon- tent of the people of the southern part of the Territory, who constituted a majority of the population. The removal of the capital served to arouse a strong senti- ' ment in f i ayor..of i th i e l division of the Territor y. Per- haps the dominant issue in the southern part from 1883 until admission as a State in 1889 was the question of division and admission, and around this gathered much of the political life and sentiment of the time. As settlement advanced, township and county organization was effected. Usually the first form of political organ- ization was the county, the township following later. When the period of Statehood opened, many counties had no township organizations, the business of local government being centered in the county. The school district sometimes appeared before the township, and DAKOTA AS A TERRITORY 75 was thus one of the earliest forms of political organiza- tion for l»cal government. Public schools, colleges, and private schools were founded during this period. In general, society became organized, and definite lines of development and growth appeared which mark the change from pioneer conditions to those of a stable and better organized type of social and political life. 50. Railroads of the Territory. — As has been said, the railroads were the pioneers in the settlement and development of Dakota. Without their aid its de- velopment would have been very much delayed. Three systems of railroads played an important part in the eastern half of the Territory in its early history. They were the Northern Pacific, the Chicago, Mil- waukee & St. Paul, and the Chicago & Northwestern. 61. The Northern Pacific System The North- ern Pacific crossed the Territory in the north, and afforded an outlet to a large area of very fertile coun- try. The charter, for the organization of a company to construct the Northern Pacific was granted by Con- gress in 1864, the proposed line to run from Lake Superior to Puget Sound, with a branch to Portland, Oregon, a total distance of about 2,000 miles. After many discouragements and reverses, the road was com- pleted in 1883 ; ,the failure, in 1873, of the great bank- ing house of Jay Cooke & Co., which had fathered the gigantic enterprise, nearly worked the defeat of the project. This great transcontinental route has been, and now is, one of the great arteries of commerce for the Northwest; it is a National highway, which alone has brought whole States into touch with industry and y6 HISTORY OF SOUTH DAKOTA civilization, where else the Indian would have roamed in the idleness of his natural state. The fanciful theory was advanced that the building of this road through the mountains to the Pacific would open up a way for the warm winds of the Japan current to reach the plains of the interior, and enrich them with a tropical climate; but, while no such climatic change has oc- curred, the great region whose annual product this road carries to market — the mountains, the forests, and the fertile valleys and plains through which it passes — have yielded a wealth of fabulous amount, — a wealth that has built cities, made States, and enriched the Nation. 52. Railroads of the Eastern Section. — The other systems of railroad that were important to the Ter- ritory belong mainly to the southern part, and ex- tend as far westward as the Missouri River. The Chicago, Milwaukee & St. Paul system is interlaced through the eastern part of South Dakota with the Chicago & Northwestern, the former reaching the river at Chamberlain, and the latter at Pierre; whence they have recently (1907) been continued to the Black Hills, thus uniting the eastern and western parts of the State, an event of great importance to its future development. 53. Railroads of the Black Hills In the west- ern part of the Dakotas, railroads were important in settlement and development, but the mileage was very limited, and confined entirely to the region of the Black Hills. Prior to Statehood, two roads had entered the Hills, viz., the Fremont, Elkhorn & Mis- souri Valley road, and the Burlington & Missouri River line. The total mileage of these roads in DAKOTA AS A TERRITORY "j"] Dakota up to 1889 did not exceed 250 miles; but they were of the greatest importance to the Black Hills country, in that they gave it connection with outside markets, and made shipment of the rich ores of that section possible. 54. Commerce and Industry of the Territory. — Agriculture, including stock-raising, was the main occupation during Territorial days, although in the later period, from 1880, the mining industry was im- portant. In the eastern and northern parts, flouring mills early appeared, and this form of manufacturing has steadily increased in importance. In the south- eastern part, the presence of clay suitable for brick- making led to a local development of this industry. In the Black Hills, the most important source of wealth was the mines, although the rich valleys and fertile plains surrounding the Hills made agriculture a profitable industry,- while the stock-raising of the western plains began to assume importance in late Territorial days. The northeastern part became noted for the fine quality of wheat grown, and the large wheat farms of the Red River Valley have become known the world over, their products commanding the highest price in the markets. 55. Education in the Territory From the first, the people of Dakota showed themselves favorable to schools. Several institutions of higher learning were early founded, and common schools spread throughout the rural districts as fast as population thickened and townships were organized. As previously remarked, in some instances the school district preceded the town- ship. Both the district and the township systems 78 HISTORY OF SOUTH DAKOTA of rural school organization were in vogue during Territorial days, and, although a vigorous con- test was waged to unify the system, there was bequeathed to the State a mixed system of school organization. The University of South Dakota was established by Territorial legislation in 1862, and its first building was erected in 1882. A second Univer- sity, the University of North Dakota, was established at Grand Forks in 1883, and its buildings were erected the same year. Two normal schools were established by act of the legislature in 1881, one at Spearfish, and one at Madison. The School of Mines, located at Rapid City, has been important as a tech- nical school; while the Agricultural College, located at Brookings, has been important as an industrial school. By the close of the Territorial period, the annual expenditure of Dakota for educational purposes had reached nearly $2,000,000, exceeding most of the Southern and some of the Northern States. In 1885, the Territory stood No. 17 among the States and Territories for the amount of money expended for education. In addition to the system of public schools, the various religious denominations had established a number of institutions of higher education prior to the close' of Territorial days. 56. Character of Population Dakota received a large number of immigrants from foreign countries during the days of settlement and the later period of Territorial growth. Her citizens of native descent came mainly from (1) other Western States, (2) the North Central States, and (3) New England. The foreign element in her citizenship is mainly comprised DAKOTA AS A TERRITORY 79 in the following classes : Scandinavians, Germans, Ger- man-Russians, Bohemians, and Irish. Mennonites settled in Yankton and Bon Homme and one or two other counties, and live in communistic colonies, own- ing everything as a society, and managing all their affairs in common. " The leading features of the Mennonite bodies have been baptism on profession of faith, refusal of oaths, of civic office, and of support for the State in war, and a tendency to asceticism."* * Century Dictionary. CHAPTER VI ADMISSION TO THE UNION, AND STATE HISTORY 57. The Movement for Division and Admission. — The question of division was mooted early in the history of the Territory. In 1871 a memorial was addressed to Congress by a unanimous vote of the legislature, asking for a division on the forty-sixth parallel. Similar memorials were addressed to Con- gress in 1872, 1874, and 1877. I n 1870, th e legis- lature changed its attitude to one of protest against admission as one State, and in 1881 a memorial was _ sent to W ashington^ askiag for"a d^vTsicm into three "States" "FToTn 1880 to I883" There waS 1 "a very large volume of emigration into Dakota, and from this time dates a well-defined movement for division and admission. The removal of the capital in 1883 from Yankton, together with the defeat, in the Territorial legislature, of a bill authorizing a constitutional con- vention, served thoroughly to arouse the people of the southern part of the Territory on the subject. In the summer of 1883, on popular initiative, there assembled at Huron a convention to consider " the advisability of calling a constitutional convention." It consisted of 188 delegates from thirty- four counties in the southern part of the Territory, and this con- vention resolved that division on the forty-sixth par- allel " was the fixed and unalterable will of the people." The convention adopted an address to the people, ap- 80 ADMISSION TO THE UNION, AND STATE HISTORY 8l pointed an executive committee, with Ex-Governor Edmunds as its chairman, and issued a call for a constitutional convention to meet at Sioux Falls, Sep- tember s, of that year. 58. The First Constitutional Convention At the appointed time, in obedience to the call, 150 delegates assembled at Sioux Falls in the capacity of a consti- tutional convention. Bartlett Tripp, of Yankton, was made the chairman. The convention was in session fourteen days, and agreed upon a constitution. This constitution was submitted to the people in November, at the time of the regular election, and was adopted by a vote of 12,356 to 6,814 in forty-two counties of the Territory. It came to nothing. 59. The Second Constitutional Convention. — The legislature of 1885 enacted a law providing for a constitutional convention for South Dakota prepara- tory to its admission, which was believed to be near at hand. The convention, consisting of 112 delegates, met at Sioux Falls, September 8, 1885, and was called to order by J. H. Teller, Secretary of the Territory. A. J. Edgerton, of Sioux Falls, was elected president of the convention. After a sixteen days' session the convention adjourned, having formulated a constitu- tion. This constitution, which was widely published, became known as the " Sioux Falls Constitution," and was afterwards the model for the present State consti- tution. In November the constitution was submitted to a popular vote, and at the same election a full ticket of State and legislative officers was elected. A. C. Mellette, of Coddington County, was elected provi- sional governor. 82 HISTORY OF SOUTH DAKOTA 60. A Provisional State Government. — A pecul- iar question here arose. Could a Territory volun- tarily, of its own motion, throw off its Territorial form of government and assume the form and powers of a State? The question was argued in the press and on the " stump." There were many who held that the authorization of Congress was not necessary in order that a Territory might become a State, but that, when it presented itself to Congress with the organization and the character of a State, it must be admitted. This radical and extreme doctrine did not prevail, and the less revolutionary course of agitation and appeal was followed. However, the provisional legislature met at Huron on the second Monday of December, 1885, and proceeded to effect an organiza- tion. It listened to Governor Mellette's message, and elected two United States Senators, but adjourned, after some discussion, to await the action of Congress. It was confidently believed that Congress would admit South Dakota and recognize the constitution and State officers already provided. But the people of the south- ern part of the Territory, now numbering from 250,000 to 300,000, were doomed to another disappointment, for Statehood was yet several years distant. The spirit exhibited by the people at this time is characteristic of the active, but conservative and law-abiding, Anglo- Saxon American citizen. 6 1 . Significance of Statehood The distinction between a State and a Territory does not pertain merely to forms of local government and relations sustained to the National Government ; there are social and industrial, as well as political differences, which II ADMISSION TO THE UNION, AND STATE HISTORY 83 distinguish one from the other. Statehood impliesT) settled condition of society, a well-integrated and in- telligent population, and a degree of development in business and industry. The two Dakotas, in 1889, when they became States, reasonably fulfilled these conditions. In the character of her population as regards intelligence and morals, in the number of her citizens, in the expansion of her industries, in railroad mileage, in the prosperous and hopeful outlook for the future, South Dakota possessed all the conditions requisite for a successful career as a State. ^_J 62. The Enabling Act for Dakota The admis- sion of new States into the Union is entirely in the power of Congress. It establishes the boundaries, fixes' the time of admission, and determines the manner and requirements of it. The act authorizing a body of people occupying a common territory to form a State constitution and frame a State government is known as an Enabling Act. The Enabling Act for the Da- kotas also applied to Montana and Washington, and was known at the time as the " Omnibus Bill," be- cause it thus grouped into one the various measures that had been proposed for the admission of these States. We are interested only in the terms of this act that apply to South Dakota. It required that, at the time of the election of delegates to the constitu- tional convention, a vote should be again taken upon the Sioux Falls Constitution, and, if this was sup- ported by a majority it was to become the basis of the permanent constitution. This constitution received a majority of the votes, and it only remained for the convention to make the amendments required 84 HISTORY OF SOUTH DAKOTA in order to conform to the details of the En- abling Act. 63. The Constitutional Convention of 1889. — The third and last constitutional convention for South Dakota convened in Sioux Falls, July 4, 1889. The convention was made up of 76 delegates. Judge A. J. Edgerton was unanimously chosen president. The convention remained in session thirty-two days, and its work was to amend the Sioux Falls Constitution of 1885, in compliance with the requirements of the En- abling Act. Two supplemental articles were submitted with the constitution for adoption or rejection upon a special vote. One of these provided for the prohi- bition of the manufacture and sale of intoxicants ; the other was a proposition to adopt the principle of mi- nority representation in electing the legislature of the State. This latter was a plan whereby a voter would be at liberty to cast as many votes for one candidate for representative as there were candidates to be elected, or make any other distribution of his total vote for representative. The purpose of this was to give the minority party a chance to secure representa- tion in the House of Representatives. The article for prohibition was ratified, but was repealed in 1897. The proposition for minority representation failed to receive a majority of the votes. The constitution thus formed was submitted to a popular vote, October 1, 1889, and received 66,411 votes, while only 3,247 were cast against it. Pierre was chosen as the tem- porary capital, and then the permanent capital the following year. Huron was the other contestant for the honor. ADMISSION TO THE UNION, AND STATE HISTORY 85 64. Compact with the United States The En- abling Act required that the constitution should be republican in form, and " make no distinction in civil or political rights on account of race or color, except as to Indians not taxed, and not to be repugnant to the Constitution of the United States and the princi- ples of the Declaration of Independence." In addi- tion to these general terms, it was also required that the constitution should contain the following provi- sions, irrevocable without the consent of the United States and the people of the State: First — " That perfect toleration of religious senti- ment shall be secured, and that no inhabitant of said State shall ever be molested in person or property on account of his or her mode of religious worship." Second — This article of the compact required (i) that the State should forever disclaim all right and title to unappropriated public lands within its borders ; (2) That United States public lands should not be taxed by the State 5(3) That lands belonging to a citizen of the United States residing outside of the State should not be taxed higher than the lands of citizens of the State. Third — " That the debts and liabilities of the Ter- ritory shall be assumed and paid by the State." Fourth — " That provision shall be made for the establishment and maintenance of systems of public schools, which shall be open to all the children of the State, and free from sectarian control." The terms of this compact illustrate in part the peculiar relations that exist between a State and the Nation. It is by these and similar provisions that our 86 HISTORY OF SOUTH DAKOTA National Government becomes a federation instead of a confederation. We can scarcely think of a sovereign State hampered by restrictions like these. 65. Character of the Constitution. — The constitu- tion as submitted contained twenty-six articles, and embraced many of the details of State organization. It contained a Bill of Rights of twenty-seven sections. There are two theories of constitution-making, one of which is illustrated by this constitution. The older plan of a State constitution was to embody in it the bare outlines of State governmental machinery, in- cluding only the most general principles. The other theory, of later conception and practice, is to embody in a constitution certain forms of legislation that are supposed to be of a permanent character. In the latter plan, the duties of officers are minutely described, county courts and county and township organ- ization are provided for, and very little of the regular organization of government is left to the ordinary course of legislation. The constitution of South Da- kota corresponds to the second type. Opinions differ as to the wisdom of the course. Governor Mellette said before the constitutional convention of North Da- kota : " If you know the proper things to embrace in a constitution, the more there is in it the better. One of the greatest evils is excessive legislation — the constant change of laws every two years, and the squab- bles and debates over the different questions that constantly arise." Judge T. M. Cooley, of Michigan, who also addressed the convention of North Dakota, said : " Do not, in your constitution-making, legislate too much. Leave something for the legislature. You ADMISSION TO THE UNION, AND STATE HISTORY 87 have to trust somebody in the future, and it is right and proper that each department of the government should be trusted to perform its legitimate functions." The constitutions of both North and South Dakota contain much that is strictly legislative in character. 66. First Session of the State Legislature. — The proclamation by which South Dakota became a State was issued by President Harrison, November 2, 1889, but the first Legislature met under the terms of the Enabling Act, October 15, and organized and elected two United States Senators. The Senators chosen were F. R. Pettigrew and G. C. Moody. The Repre- sentatives that had been elected were O. S. Gifford and J. A. Pickler. After electing Senators, the Legis- lature adjourned to meet on the first Tuesday after the first Monday in January, 1890. 67. Religious Influence and Church Development. — Religious influences have been characteristic of Da- kota at all periods of its growth. Catholics and Protestants came into the Territory at an early day, not only for the purpose of active religious work, but for the further purpose of securing a foothold for their various organizations, and thus preempting the field. Thus, it was not uncommon during Territorial days to find a small town of a few hundred inhabitants with five or six church organizations. This state of things is still to be found in some parts of the State. As population thickened church organizations grew and multiplied. The Methodists are credited with being the first religious body to begin work in South Dakota, excepting missionary work among the Indians. The work of the Methodists was begun at Vermillion in 88 HISTORY OF SOUTH DAKOTA i860. The Presbyterians were the first to organ- ize in North Dakota, at Fargo, in 1871. Bishop Marty, of the Catholic Church, as Vicar Apostolic, came to Dakota in 1880 and organized a bishopric, the inde- pendent work of several priests having effected several Catholic organizations prior to this date.* From this small beginning there was rapid growth, until, at the time of Statehood, the bishoprics of North and South Dakota were established. By this time nearly all the Protestant denominations were represented in South Dakota, and, together with the Catholics, they had established churches in every city, town, and hamlet. In the more thickly settled portions of the State, relig- ious organizations have built churches in many rural districts, which may, in the future, become new centers of population. 68. Church Schools. — Many religious bodies have established schools and colleges, and are maintaining them with success. The Presbyterians have a college at Pierre and an academy at Scotland. The Baptists maintain an institution of collegiate rank at Sioux Falls. The Methodists have colleges at Mitchell and Hot Springs. The Episcopalians have a school at Sioux Falls. The Norwegian Lutherans maintain Augustana College at Canton and a Normal School at Sioux Falls. The Congregationalists have colleges at Yankton and Redfield, and an academy in Charles Mix County. The Catholics have schools of academic grade at Sioux Falls, Deadwood, and Aberdeen. While their schools at Vermillion, Sturgis, and Mitchell are parochial in character, they also maintain academic * Official Statistics of Commissioner of Immigration for 1889. ADMISSION TO THE UNION, AND STATE HISTORY 89 courses. They also have a large number of parochial schools in the more important cities and towns of the State. Various Protestant denominations, as well as the Catholics, have established and now maintain mission schools among the Indians. The latter have six such schools in the State. 69. The State and Education. — The public school system of the State is liberally endowed by the grant of two sections of land in every township. Some of this has been sold, and the remainder is leased by the State, so that already a considerable fund has accumu- lated, the income of which is being used for the benefit of the common schools. The State institutions of higher education have received liberal endowments of public lands, but this has not yet become available, and these institutions are supported by direct taxation. The State University is located at Vermillion, and receives a generous patronage. The Legislature of 1901 au- thorized a law school in connection with the Univer- sity. The Agricultural College located at Brookings, is not only of educational value but also of practical utility for the farming industry. The State has four Normal Schools, located respectively at Madison, Spearfish, Springfield, and Aberdeen, the latter estab- lished by the Legislature of 1901. The State also maintains a School for Deaf Mutes at Sioux Falls, while the Reform School at Plankinton is to be re- garded as educational to a degree. The education of the blind is provided for by the Asylum for the Blind at Gary, established in 1895. Grants of public lands constitute the endowment of the educational institu- tions of the State. 90 HISTORY OF SOUTH DAKOTA 70. The First Decade of State History — South Dakota has now passed through more than a decade of its history as a State. The limits of our space will not permit us, and neither would it be profitable for us, to enter into the minutiae of this period. The industrial progress of the State has been along the lines of the previous Territorial development, with very few exceptions. The opening of the Reservation west of the Missouri, in 1889, brought that table-land region into use as a stock-raising district. The mining industry of the Black Hills has had a steady growth, and the min- eral resources of this region have attracted wide attention. In the eastern and northern parts of the State, the agricultural industry has much enlarged, and a more varied line of products is now obtained than formerly. In the south- eastern part much corn is raised, and the fattening of hogs and cattle for market has become almost a special industry. A movement is now on foot to test the soil of the State as to its adaptability for raising the sugar beet, and there seems little question as to the possibility of developing this industry. Population has not in- creased as rapidly as at some periods of Territorial life. GOV. MELLETTE. ADMISSION TO THE UNION, AND STATE HISTORY 91 The census of 1890 gave the State a total population of 328,808. In 1900 the number was 401,570. More settled conditions of society prevail as the years go by, and the spirit of business conservatism has strength- ened during the first decade of State life. Education has advanced ; city schools have enlarged and improved their buildings and equipment; colleges have strength- ened and developed ; the State institutions of education have improved their standards of scholarship, and increased their enrollment of students for the higher lines of work; the standard of teaching in the public schools has been raised, and the real culture and refinement of the people have increased as prosperity has advanced. The extension and strengthening of church influence has been as marked in this period as the development of education, and thus the home, the church, and the school are laying the foundation for the future greatness of our commonwealth. PART II ORIGIN AND DEVELOPMENT OF OUR CIVIL INSTITUTIONS CHAPTER VII 7 1 . Society Society consists of human beings living together in such relations that one is, to a greater or less degree, dependent upon the other. Only in this relation can men exist as civilized beings. Not even the savage can live entirely alone, without inter- course with his fellows. No individual is capable of supplying all his wants as a member of society. He must look to others for many of his daily necessities. The food he eats, the clothes he wears, the tools he uses, are to be obtained only by the aid and assistance of others. 72. Rights. — In society the individual man can- not do as he pleases. A man living alone would have neither rights nor duties; but as soon as several per- sons are gathered together in society, each must give up something for the good of the whole, and each is under obligation to do certain things for the common interest. Thus arise common rights and common * See B. A. Hinsdale, The American Government (Introduction). 92 DEFINITIONS AND GENERAL PRINCIPLES 93 duties. Common rights are ..generally divided into a number of classes. Some of them arise from man's nature, and hence are called natural rights. The most important of these are : (a) the right to personal secur- ity, i. e., the right to be undisturbed in person and reputation; (b) the right of personal liberty, or the right to come and go without restraint; (c) the right of freedom of speech, including the right to publish whatever one pleases, so long as others are not injured thereby; (d) the right to assemble for any lawful purpose to petition the legally constituted authorities; (e) the right to freedom from unreason- able search and seizure; (/) the right of private prop- erty, that is, the right to use and dispose of anything one can call his own, including time and labor; and (g) the right of religious liberty, or the right to wor- ship in such a way and to hold such religious opinions as one may choose, or none at all. These rights are, of course, limited by the interests of society at large, which feels itself authorized to sacrifice any or all of them in times of danger. Society is, however, under obligation to compensate the individual, as far as possible, for the losses arising from the violation of such rights. 73. The State. — It is important to keep in mind the difference between society, the state, and the gov- ernment. Society is composed merely of the individ- uals who may be associated together, without regard to their union or organization. It is the whole mass, unorganized and disunited, each one seeking his own interests, without regard to the wants and wishes of others. The state, on the other hand, is. the same 94 DEVELOPMENT OF OUR CIVIL INSTITUTIONS body of individuals united into a compact mass, and endowed with power to carry out the collective will. It is the whole body of people in their organized capac- ity. The government is the agency by which this will is executed. It consists of persons selected for this purpose, and entrusted with the necessary power and authority. The state is a body politic, since it expresses the will of the citizens ; it is a body corporate, since it can thus act as a single individual. 74. Government. — Society, as it has always ex- isted, needs regulation and control. Men are selfish, and not sufficiently instructed in their duties towards others. They are not sufficiently aware of the binding nature of these duties, and the strong take advantage of the weak, and use their own wealth and power to the disadvantage of the less fortunate. To prevent this, government comes into being, to regulate and control society in the interests of the whole. It is the instrument of society to execute the collective will of the whole body. Government is the means by which personal rights are secured and the administration of justice effected. 75. Co-operation — In society, many things must be done that the individual could not accomplish alone. Roads and bridges must be built and kept in repair, schools be established and maintained, and provision made for those who, unaided, cannot obtain for themselves the necessities of life. In cities, streets must be paved, protection against fire secured, arrange- ments made by which the inhabitants can be supplied with pure water, sewers constructed, and many other things done which are of vital interest to all and ob- DEFINITIONS AND GENERAL PRINCIPLES 95 tainable only by co-operation. A further office of government, then, is to secure for the individual that which he could not possibly obtain for himself alone. It is to be observed that one of the significant signs of the times is a demand for the extension of this func- tion of government into wider and wider fields. It is worthy of notice that the control of railroads, tele- graphs, and other so-called " natural monopolies " is now widely advocated in further extension of this fea- ture of government. 76. Taxation. — These things cannot be done with- out great labor and expense. It is therefore held that the cost should be borne by the different individ- uals composing society, according to their means. It is, then, necessary to determine the value of the prop- erty held by the various members, and to apportion the part of the expenses to be borne by each. Hence arises the right of taxation, or the right of the govern- ment to demand from each person under its jurisdic- tion such a part of the total expenditures as shall be just and right; but it is a right that should be exer- cised only in the interests of all. When, as often happens, the right is so exercised as to confer very unequal benefits upon society, it becomes a dangerous form of oppression and tyranny. 77. Authority The government must have au- thority and power to enforce its just demands. This authority is vested in it by the action of society over which it rules, or rather whose wishes it executes. Government must be strong enough to execute its purposes, and to overcome and suppress all resistance on the part of individuals who seek 96 DEVELOPMENT OF OUR CIVIL INSTITUTIONS to avoid doing their part in subserving the common interests. 78. The Nature of Government.- — Government is not a " social contract," since it is imposed on man by his surroundings, his own nature, and the condi- tions under which he finds himself. Its foundations are believed to lie in the family, and some are inclined to look upon the state as one great family. That the highest interests of society are only to be subserved by some sort of government, is a self-evident fact, and most are willing to admit, with Aristotle, that " man is born to be a citizen." This is, of course, only another way of saying that man cannot exist and make progress except in society. 79. Different Kinds of Government. — When un- checked authority is lodged in the hands of a single individual, the government is sometimes known as an unlimited monarchy. Such governments exist to-day only in Russia and on the continents of Asia and Africa. When the power of the ruler is limited and defined by law, and others have a share in determin- ing the various questions that arise from time to time in the administration of the affairs of the state, it is known as a limited monarchy. Such are most Euro- pean governments at the present day. When, how- ever, the authority is exercised directly by the people, who meet and determine public matters, it constitutes a democracy. Such a. democracy was found in some of the cities of ancient times, and for a short period in the Colony of Plymouth. When, however, the numbers become so great that it is impossible for all to assemble and consult in regard to public interests, DEFINITIONS AND GENERAL PRINCIPLES 97 the people may still execute their will through repre- sentatives. The state then becomes a republic, or a representative government. The danger in monarchy- is found in its tendency to despotism and the oppres- sion of the people. Democracy, on the other hand, has always shown a tendency towards hasty and ill- considered action, and it too often happens that unprincipled demagogues rather than high-minded statesmen control popular opinion and carry popular elections. Hence, the weakness of democracy has always been disorder and the strife of factions. Democracy is impractical in large states, unless the principles of the initiative and the referendum can be so adapted as to secure a sure expression of the popular will. 80. The Initiative The inability of large masses of people to meet and consult in regard to public measures has led to various efforts to secure an expression of the popular will through the ballot-box. The most popular of these are known as the initiative and referendum. Under the first of these the people can formulate any measure and have it sub- mitted to popular vote whenever a certain number of electors, fixed by law, shall petition the govern- ment to do so. If, for instance, it were desired to make a change in the mode of taxation, it would first be necessary to secure the requisite number of names to a petition to enable a vote to be had in regard to it. 81 • The Referendum. — The referendum merely requires the legislature to submit to the people im- portant measures passed by that body before they 98 DEVELOPMENT OF OUR CIVIL INSTITUTIONS shall take effect. It has been successfully employed in Switzerland for many years. 82. Defects in Republican Form of Government. — The experience of years has shown certain weaknesses in representative government. Chief of these is the difficulty of fixing responsibility. One department or officer seeks to shift this upon another, until it often happens that it is impossible to ascertain who is to blame for the failure to obtain proper legislation or secure a redress of grievances. 83. Centralized and Decentralized Government — Governments may be divided into two classes in another respect; (1) those in which all the various acts of government proceed from a single, center, and (2) those in which these acts proceed from several different centers. The former are said to be cen- tralized, and the latter decentralized governments. France is an example of the former, while our own country is the most conspicuous example of the latter. In France, the mayor of the most remote city or commune in the remotest province may be removed by the government at Paris; while the President of the United States has no more power to interfere with the local affairs of a city in South Dakota than has the Czar of Russia. If the local affairs of the various States were regulated from Washington, our govern- ment would be centralized. As it is, our governmental affairs are conducted from various centers, all inde- pendent of each other, with powers so regulated that there can be no conflict between them. Each is simply required to confofm to the fundamental law, called the constitution, and to the statutes applicable DEFINITIONS AND GENERAL PRINCIPLES 99 to each. The units of government are the Nation, the State, the county, the city, the town, the township, and the school district. 84. Dual Government — In this way our system of dual government has grown up. We are subject to two chief units, the Nation and the State, since the other lesser units are regarded as organs of the State. Such a dual government is sometimes called a federal government. In this case the National Government has control of all matters which are supposed to interest directly the whole country, while matters of a more strictly local nature are left to the control of the State and its subordinate units. In this way matters relating to war and peace, the coinage of money, commerce and foreign relations, the postoffice, etc.,- are National matters, and are placed in charge of the National Government; while the punishment of most crimes, the maintenance of schools, and the expendi- ture of money for all local purposes are relegated to the States, and by them may be still further given over to the inferior units. These two governments, then, do> not overlap in respect to jurisdiction; the citizen is called upon to obey the National Government in some things, the local government in others, and may there- fore be said to be subject to two jurisdictions. 85. The Independence of the State — While the State Government is subordinate to the National Government in all matters covered by the jurisdiction of the latter, in its own sphere it is absolutely inde- pendent. The acts of its legislature and the decisions of its courts cannot be questioned in any way regard- ing matters coming strictly under their authority, and IOO DEVELOPMENT OF OUR CIVIL INSTITUTIONS not granted by the Constitution to the General Government. The State is not, however, independent, since it is only one of a large number of States like itself, forming a federal union. For this purpose important powers have been granted the General Gov- ernment, and they are no longer exercised by the States. 86. Three Departments of Government. — It will be seen that the powers of government may be divided into three classes. We have, first, the law- making power; here the representatives of the people act directly for them in this most important governmental capacity, that of determining what the laws shall be; second, the executive department, which secures the execution of the laws, and sees that the will of the people is carried into effect; third, the judicial department, which interprets and expounds the law and secures justice in its execution. In an absolute monarchy, all these powers are centered in one person. In proportion as a nation has progressed towards civil liberty, these powers have been sepa- rated until, at the present day, in most states, they are in entirely different hands. In this way one department, is made a check upon another, and the absorption of all power by any one is prevented. This is sometimes spoken of as a system of checks and balances. 87. The Constitution — The National Government and each State has an organic law, known as a constitution. This constitution determines the general form of the government, the various powers of the several departments, the general character of the laws that may be passed, and the manner of their DEFINITIONS AND GENERAL PRINCIPLES IOI administration. The constitution is made or adopted by the people themselves, as is the case in South Dakota. The laws are made by the legislature, deriving its authority from the constitution. The adoption of the constitution by the people of each State is an instance of the use of the principle of the referendum. Ordinary laws can be changed by the legislature; the constitution can be changed only by the people, or in accordance with the manner pre- scribed by them. The constitution is the most permanent and binding form of law. 88. The Sanctity of the Law The importance of good government is seen in the fact that it is one of the essentials of all social progress. No people can make progress under a government unstable, ill- administered, and subject to constant change. Life and property can be secure only in governments where the law is held sacred, and due respect is given to its operation. This does not mean that agitation for the repeal of bad laws is not a duty; it does mean that, so long as laws remain upon the statute book, they should be enforced. There is, perhaps, no better way of securing a repeal of a bad law than by its rigid and impartial enforcement. At any rate, no influence is more potent for evil in a government like ours than the notion that a law is not to be obeyed unless it is approved. The attempt to overthrow the government by force is made a crime called treason, and punished with death. The failure to enforce law to humor the whim of even a majority, is to weaken the power of all government and to cultivate a spirit of lawlessness that is fatal to all authority. CHAPTER VIII THE ORIGIN AND GROWTH OF OUR LOCAL INSTITU- TIONS IN GENERAL 89. The Early Germans The first settlers of this country were Englishmen, who brought with them English ideas and English institutions. Yet the story of these ideas dates far back beyond the reach of authentic history, and our local institutions have their origin in the depths of the forests of Ger- many. Our first glimpse of the ancestors of the English people is in the pages of Caesar and Tacitus, who wrote near the beginning of the Christian era. We find a people dwelling, in those days, in the wilds of Germany, speaking the same language and possess- ing the same religion, but agreeing in little else. No general government existed, and the social body seems to have been composed of a number of distinct tribes, each almost isolated from the other, unless common interests and common dangers compelled them to unite for the purpose of war. 90. Their Village Communities. — Each tribe was composed of a large number of villages. One of these village communities, the direct ancestor of the English township, was known as a mark. Each pos- sessed a definite tract of land, which the marksmen appear to have owned in common, though a distinct portion was assigned to each freeman within the village or mark as a homestead. The remainder was ORIGIN AND GROWTH OF LOCAL INSTITUTIONS IO3 divided into two parts : ( I ) the tilled land, which was again divided into smaller lots and assigned to indi- viduals from year to year, to be tilled under the laws of the mark; and (2) the waste or pasture land, which all used in common, and which reminds us of the land held under the name of " commons " in early New England. 9 1 . The Markmoot or Town-meeting The early German village was surrounded by a hedge or stock- ade for the purpose of protection and defence. The possession of a homestead entitled the holder to be regarded as a member of the mark, and gave him all the rights of a citizen. One of these rights was a voice in the markmoot or town-meeting, which con- trolled all local matters of interest to the mark. It met every spring, at least, and made all necessary laws for the proper management and tillage of the lands owned in common. There existed also a village council,- which settled some questions of minor impor- tance to the mark. 92. The Hundred — In addition to the markmoot, there existed among the Germans another tribal divi- sion of considerable importance. This was called in Latin the pagus. Otherwise it was known as the hundred, and is spoken of, also, as the canton and the gau. In this, justice seems to have been dispensed. The hundred was a judicial body, before which came all cases arising in the marks composing it, unless they were of sufficient importance to be left to the decision of the full meeting of the tribe. 93. The Tribal Meeting. — This tribal meeting ap- pears to have been both legislative and judicial. Here 104 DEVELOPMENT OF OUR CIVIL INSTITUTIONS were settled all questions of peace and war, and here officers were appointed to dispense tribal justice in the hundreds and the marks. Political action seems, however, to have been the chief business of the assem- bly, and the tribesmen met as soldiers fully armed. The exact difference between the tribal jurisdiction and that of the hundred and mark is perhaps not cer- tainly known, but apparently it was akin to that be- tween the superior and inferior courts of the present day. 94. Classes in the German State In determin- ing who should have the right to sit in these various assemblies, two ideas seem to have prevailed; indeed, they were so interwoven that it is difficult to disentangle them : ( i ) No man could be a marksman who was not a freeholder; but (2) with this was combined the idea of rank or station. The primitive Germans were divided into the nobles, the freemen, the freedmen, and the slaves. The basis of society, however, seems to have been the freeman. He alone had his assignment of land within the mark, and possessed all the rights of the marksman. He could take part in the mark, hundred, and tribal meeting; he might keep and bear arms, and could engage in private war in company with any whom he might in- duce to join him. 95. The Nobles — Of the origin of the noble class, we are not fully informed. Whether they were those families who had raised themselves above the others by distinguished service in war, or whether they were the descendants, in the more direct line, of the founders of the tribe, it is impossible to say. At any rate, they ORIGIN AND GROWTH OF LOCAL INSTITUTIONS IO5 held a high place in the tribe; they had privileges that distinguished them above the common people, and a greater penalty was imposed for taking the life of a noble than for taking that of a simple freeman. 96. The Freedmen and Slaves The slaves con- stituted the dependent class who were obliged to work for their masters, or, under exceptional circumstances, were allowed to manage their own affairs on condition of furnishing a certain amount of grain, cattle, or clothing each year. Of the actual condition of the class of freedmen who had once been slaves, we know little. They stood between the freemen and the slaves, and probably had no voice in public matters. 97. The Teutonic or Germanic Invasion of Eng- land. — In the fifth century of the present era, some of these Teutonic tribes began the invasion of England. Coming in detachments and settling here and there along the coast, they gradually overran the country, reproducing in England the institutions with which they had been familiar in their earlier home. The different conditions, however, brought about changes which finally ended in creating practically a new form of organization. The village community, which on the continent had been called the mark, now appears as the "tun," or town, and becomes the unit of po- litical organization. Henceforth, the town is not merely a community engaged in the cultivation of land, but one busied with civic affairs. The tie of kinship, always stronger and more prominent in primitive com- munities, was largely lost, and that of common inter- ests substituted in its stead. 98. Representation. — The town-meeting still reg- 106 DEVELOPMENT OF OUR CIVIL INSTITUTIONS ulated the internal and local affairs of the town and elected its own officers, consisting of the headman or reeve, the beadle or messenger, and the tithingman or petty constable. It was represented in the hundred- meeting by the reeve and four picked men. Here we have the beginning of the representative system, which has attained such a development that it has now be- come the means by which popular government is pos- sible for millions of people, widely scattered and having a variety of conflicting interests. 99. The Meeting of the Hundred. — The hundred too, appeared as the court where all important cases were first tried. This meeting, in later times at least, occurred monthly, and was convened by the chief offi- cer, the hundred-reeve, who was at first elected, but afterwards, as in earlier times on the continent, was appointed by a higher authority. The jurors were, in theory at least, all the freeholders of the hundred; in practice, cases were decided by twelve picked men, and all suits had to be instituted here before being considered by a higher tribunal. The powers of the hundred constantly diminished, till it practically dis- appeared, being retained only for some minor and comparatively unimportant purposes. 100. The Early Kingdoms and Their Union By the constant arrival of newcomers from the parent tribes, the Teutonic invaders of England gradually got possession of a large part of the island and estab- lished numerous kingdoms in the new land. Perhaps these kingdoms dimly represented the tribes of the old home; perhaps they came from developed hun- dreds; or, again, they may have been the creation of ORIGIN AND GROWTH OF LOCAL INSTITUTIONS IO7 strong and able leaders, who were enabled by the necessities of war to rule over large bodies of people. ' At any rate, each kingdom consisted of village or town communities organized into hundreds, in which the ideas of local government were fully developed. Soon the stronger of these came to absorb the weaker ones, until they were all united in the seven petty kingdoms that constituted the so-called " heptarchy " of early English history. A continuation of this process finally united all the people of Teutonic stock in England under one government. In this way a new adjustment took place ; the petty kingdoms became the shires (shares) of the now consolidated state, while the previous shire, if it existed at all, became the hun- dred of the new kingdom. 101. The Shire. — The chief or leader of the tribe had been known as the "ealdorman" (alderman), and the chief officer of the shire, as the new division of the state was called, retained that title, now that the petty kingdoms had been consolidated. He was at first elected by the people, while another officer, the shire-reeve (sheriff), held office by royal decree. The latter thus became the agent wha looked after the interests of the king, while the ealdorman (alder- man) represented the people. As the shire more nearly represented the old tribe than any other organ- ization of the state, the shiremoot came to represent the old tribal meeting, and cases of importance arising in the hundreds came here for final settlement. This made the shiremoot a judicial body, and in it the townships and hundreds were represented, the former by its reeve and four picked men, and the latter by 108 DEVELOPMENT OF OUR CIVIL INSTITUTIONS its reeve and twelve men. The great landowners and lords of the manors, as well as the officers of the church, had seats in it. It thus took on a double character; it was a legislative body as well as a court of appeal, and it became the means by which the king enforced his authority in local matters. The shire was also the unit for the collection of the taxes levied by the king. 102. The Rise of the Manor Meanwhile the changed circumstances in which the invaders found themselves had given rise to a change in the owner- ship of land. On the Continent, the greater portion of the tilled land had belonged to the community, while only a small portion within the village had been owned by the individuals. In England, when the conquered land was divided among the invaders, private owner- ship of lands was greatly increased, and the chiefs and great leaders received large tracts to be held in severalty. Private ownership thus increased year by year, until, little by little, the land passed largely into the hands of private parties. At first, however, large quantities were held in common, and this gave rise to the distinction of folkland, of that of the community, and bokland (bookland), or that owned by private parties. The large share which had been given to the chiefs gave rise to the class of great landowners who afterwards received the right of sac and soc, i. e., the right to hold court and administer justice on their own estates, and to retain the fees arising there- from. Others, also in later times, received land from the king on similar terms, and the great estates, afterwards known as manors, in this way came into ORIGIN AND GROWTH OF LOCAL INSTITUTIONS IOQ. existence. We have thus a new governmental unit taking its place in the state beside the township and the hundred, viz., the manor. 1 03. The Parish. — Christianity was early intro- duced into England, and local churches were soon established. The districts assigned to each church would naturally be the township and manor, although in individual cases a larger or smaller district might be made. Heathen shrines or places of worship may have existed in the townships, which, when purified and consecrated, became Christian churches. The township may thus have been both a parish and a manor, and in this way the three organizations came to overlap each other. Thus, the one or the other would be dominant as circumstances would dictate. At any rate, the parish, long years after, acquired power and prominence at the expense of the other two. 104. The Development of Anglo-Saxon Institu- tions. — We are now prepared to form an idea of the whole development that took place prior to the Norman conquest of England. Settlers from the mainland of Europe came in larger or smaller bodies, each under its own ealdorman or leader. These set- tlers were for years engaged in a war of conquest. Their leaders thus acquired increased power, and the ealdormen of the various tribes gradually obtained the dignity of kings. But the smaller and weaker kingdoms were soon swallowed up by the larger and more powerful ones, until, finally, all were absorbed in the so-called "heptarchy" (seven kingdoms), and even these finally became united in one. The petty 110 DEVELOPMENT OF OUR CIVIL INSTITUTIONS kingdoms themselves became the shires of the larger ones of which they had become a part, and retained a large share of their local authority. The power of the king gradually increased, being exercised largely through the shire and the hundred, while two new organizations, the manor and the parish, had arisen beside them, often covering the same ground as the township. The representative idea formerly em- i bodied in the shiremoot now found expression in the courts of the shire and hundred, while the great increase of territory rendered impossible the old assembly of all the freemen of the tribe. Hence, the tribal council, which formerly consisted of the chiefs, and had charge of minor matters only, became changed in form and assumed new powers and duties. It now consisted of the ealdormen of the shires, the bishops of the church, and the great landholders, who met at the call of the king to act as his advisers. In this form it is known as the " Witenagemote " or assembly of the wise. i 1 05i The Norman Conquest In this state of affairs some change was made by the Norman Con- quest. William the Conqueror landed upon the southern shore of England in 1066, and, overthrowing ' Harold, the English king, soon made himself master of the whole country. He brought with him Norman ideas, and effected many changes, but still the old framework of government was allowed to stand; for while the distinctive features of local government remained, the great work of the "Normans was the development of the national side of governmental life. The powers of the king were largely extended, and ORIGIN AND GROWTH OF LOCAL INSTITUTIONS III the shire was adopted as the instrument of the king in local affairs. 106. The Shire of the Seventeenth Century At the time of the colonization of America the shire had lost the greater part of its legislative functions, and had become mainly a judicial and administrative division of the state. The ealdorman had disap- peared, and the sheriff had become the most important officer, and, being appointed by the king, became his immediate representative. Justice was administered by justices who traveled from shire to shire for this purpose, under the direction of the king. The shire- moot had become the county court and held two ses- sions, at one of which the king's justices appeared, while the other, the ordinary session, was held at first by the viscount or sheriff. The institution known as the jury system had been evolved, and the county had become the medium of communication between the king and his people,, in this way combining the functions of a local and a national court. 1 07. Functions of the Seventeenth Century Shire. — The entire work of the county or shire may now be classed under the following heads: (a) Ordinary judicial functions ; (b) the preservation of the peace — this would naturally fall to the sheriff as the repre- sentative of the king; (c) military affairs — the county had become the unit of military organization ; (d) redress of grievances — all petitions were for- warded to the king and parliament through the county court, and relief was obtained by the same means; (e) taxation — all national taxes were now levied through the county court, although the hundred still appears in 112 DEVELOPMENT OF OUR CIVIL INSTITUTIONS connection with it for some minor purposes. It will thus be seen that the old shiremoot has practically- disappeared, and a new organization has taken its place, viz., the county court, while administrative, functions have largely taken the place of the legisla- tive powers that formerly belonged to it. The ordi- nary session of the court had come to be held by county justices of the peace, and was known as the " quarter sessions," since it was held four times a year. The officers of the county, then, were the sheriff; the coroner, who held courts of inquiry in cases of wreckage, destructive fires, or sudden deaths; the justices of the peace, who were selected by the king; and the constables, also selected by the king, and having the appointment and control of the police of the county. To the first settlers of this country, then, the county was merely a district for judicial and ad- ministrative work. 1 08. The Later Form of the Parish. — The parish, too, experienced a great enlargement of its functions. Not only had the church as a state organization come to possess largely increased powers, but the local churches had come into the possession of land and estates, which so greatly increased the duties of the ministers that church wardens were appointed to look after this part of the work. Lack of sufficient income from property and tithes rendered some form of tax- ation necessary, and this gave rise to the vestry meetings, so called, perhaps, because they were held in the vestry of the church. This was simply the old townmoot in a new form, but it was held under the auspices of the church. In this all who paid a parish ORIGIN AND GROWTH OF LOCAL INSTITUTIONS II3 tax had a voice. The parish soon gained other civil functions, and thus came to do double duty, (a) as a civil township under the lead of the parish constable, and (6) as a church organization under the leadership of the minister. The care of the poor was also laid upon it, and the church wardens in this way came to be overseers of the poor. The parish had now assumed a large share of the powers of the civil town- ship, while the latter organization had fallen more and more into the background, not, however, to be entirely forgotten. It is also important to remark that the manor had been more and more restricted by law, so that the parish had now become the more important of the lower organizations, and had far the greater powers. 1 09. Some Special Phases of Parish Development. — About the time the first immigrants were coming to this country, a new feature was introduced into parish government, viz., the committee of assist- ance. It was the duty of this committee to advise the officers of the parish in the performance of their duties. They were at first elected in open parish meetings, and in this feature remind us of the select- men of New England. Later they acquired the power to fill vacancies in their own body, and thus became a self-perpetuating organization. It is inter- esting to note that a similar self-perpetuating organi- zation appears a little later in Virginia, in connection with the government of the shire or county. I 10. Some Principles of Government The rep- resentative features that had in earlier times been embodied in local government disappeared with the 114 DEVELOPMENT OF OUR CIVIL INSTITUTIONS lapse of centuries, only to reappear in the govern- ment of the whole state. The Witenagemote had become the House of Lords, while a new body, the Commons, had sprung up beside it, representing the people. The history of England for three centuries before the settlement of America was a history of the resistance of the people to the encroachments of the king. Aided and trained by their experience in local government, they " had succeeded in transferring the representative feature to the nation, and had estab- lished the House of Commons to guard their rights. This represents the English people, as distinguished from the nobles and clergy. The long struggle, ending only with the Declaration of Rights in 1689, resulted in firmly fixing in the minds of the people several principles that they believed to be essential to all good government, and with which the first emigrants to America came fully imbued. These were: (a) A single executive so restricted by law that his powers could not be used to deprive the people of their rights ; ( b ) self-government through the local units of the parish and the shire; (c) a legislature composed of two houses, one of which at least must represent the people; (d) an independent judiciary; (e) the complete control of taxation by the people, either directly or through their representatives. We know that it needed further effort and another severe struggle before our fathers could be secure in the enjoyment of the rights which these principles were meant to guard. CHAPTER IX DEVELOPMENT OF THE INSTITUTIONS OF LOCAL GOV- ERNMENT IN THE UNITED STATES Ml. Motives for Colonization The two motives which worked most powerfully in bringing about the English colonization of America were : ( i ) the desire for wealth, and (2) the wish to escape ecclesiastical persecution and obtain religious independence. The former motive was dominant in the Southern colonies, while the latter prevailed almost wholly among the emigrants to New England. We may expect, then, to find a different spirit pervading each section, and to learn that the evolution which their local institutions now underwent and their adaptation to a new country proceeded along slightly different lines. Each set of colonies established here the institutions with which they had been best acquainted, but each introduced different modifications, and made changes according to their own peculiar sentiments and social needs. I 12. The Early Settlers of New England — The men who settled New England had been in the fore- front of the great social and religious struggle which had rent the people of England into two hostile factions, and drenched her soil with blood. The efforts of the Church to maintain her supremacy resulted in kindling the fires of persecution, and in driving from the shores of England thousands of the noblest of her sons. The Pilgrim and Puritan had US Il6 DEVELOPMENT OF OUR CIVIL INSTITUTIONS seen all the powers of the state exerted to stifle reli- gious freedom, and to compel conformity to the estab- lished forms of worship. It was only natural, then, that they should strive, in erecting the framework of government in their new home, to avoid in some measure the errors of the past. This was to be accom- plished, however, only by the process of growth and the wisdom that comes from experience. I 13. Reversion to an Earlier Type Two inter- esting phenomena appear in the development of the local government of New England: (i) On the one hand, a large number of new officers and new functions are created, and (2) on the other hand, there is a reversion to the earlier type, and the institutions of a thousand years before reappear, practically unchanged, in the New England town. This may not have been a conscious process, but merely the imparting of new life and vitality to a form of government not wholly extinct in England, which now revived and underwent further evolution. I 14. The New England Town. — The name town now reappears, while parish is kept for strictly ecclesi- astical purposes. The word township is used only • when it becomes necessary to distinguish the whole landed district from the village, which formed the center of the new life. The house lots, the common lands for cultivation, the common meadows and pas- ture lands everywhere reappear, and new land is apportioned by lot among the inhabitants, according to the number of heads in each family. The com- munity, too, exercised the right to restrict its members in the disposal of their lands and communal rights LOCAL GOVERNMENT IN THE UNITED STATES 117 without the consent of the town-meeting or the officers of the town. They decreed that no person should sell or convey, without the consent of the proper author- ities, the lands possessed by him within the township; the new comers could be admitted and become pos- sessed of communal rights only upon consent of the officers. The majority in town-meeting even sought to control its members after the fashion of the ancient marksmen, and one -instance is on record where a citizen was obliged to procure the public consent to his own brother's remaining in his house as a guest till he could establish a home, either in that town or some other one. I 1 5. The Town-Meeting. — The old townmoot re- appeared with full authority to govern the internal affairs of the town, with largely increased functions and full legislative authority. All males of legal age seem to have had a share in its deliberations, non- freeholders, as well as those possessed of communal rights, although a property qualification seems to have been early established. When assembled, they pro- ceeded to the choice of a moderator, as the presiding officer is still called. He had entire charge of the meeting; no one could speak without his permission, and he could impose fines for disorderly conduct, or even compel the withdrawal of the disorderly parties. When thus organized, the town-meeting had full power in all prudential affairs. It could direct the raising of money by taxation, and govern the expendi- ture of the same. It chose all the important officers of the town, as must have been the case with its early predecessor, the mark; likewise, the records of the Il8 DEVELOPMENT OF OUR CIVIL INSTITUTIONS early town are full of orders in regard to the manage- ment of the common lands, the use of fields and pas- tures, regulations in regard to cattle running at large, the laying out of roads, and the allotment of lands. A new feature is the orders in regard to the establish- ment and management of schools. I 16. The Town as a School District — Many of the Massachusetts townships, by their own acts, became school districts, and- maintained schools before required to do so by the General Court (Legis- lature) of the Colony. The town of Dorchester created a school board, and passed an elaborate school ordinance as early as 1645. This ordinance is per- haps the first New England school law in existence, at least in so extensive a form. It provided for the appointment of a school board of three members, and arranged for the funds necessary to pay running ex- penses. It directed the hiring of a teacher, and made regulations in regard to the management of the school. It fixed the time of opening and closing the school, and required the teacher every Monday morn- ing to examine the pupils upon the subject of the ser- mon of the previous day. It required the school to be opened and closed with prayer, and directed the teacher to discipline the pupils for misdemeanors com- mitted upon the Sabbath. It made the course of study to consist of " humane learning and good litera- ture," to which it added the catechism, and provided for the settlement of cases of dissatisfaction arising out of the infliction of too severe corporal punishment.* * On the early schools of New England, see B. A. Hinsdale, Horace Mann and the Common School Revival in the United States. LOCAL GOVERNMENT IN THE UNITED STATES IIO, I 1 7. Township Officers — The chief officers of the town were the selectmen, who were the representa- tives of the townsmen during the interval between the annual meetings. They were responsible to that meeting, but were given liberal powers to act mean- while. Their proceedings were recorded in the book in which were kept the proceedings of the town- meeting, and are often indistinguishable from them. It was the duty of the selectmen to call the annual meeting, and they had entire charge of the administra- tion of financial affairs. They assessed the taxes, authorized their collection, audited all accounts, and were the legal representatives of the town before the courts. They admitted new comers into the com- munity, and made rules in accordance with which strangers were entertained. No real estate could change hands without their consent, and they were authorized to fix a penalty for any violation of this rule of the town. The common lands were under their control; they regulated the number of cattle to be pastured upon them by any family, and granted permission to cut the grasses upon the marshes; they laid out roads, established boundary lines, and fixed the height and kind of fences which might be built. In short, they had charge of all internal affairs. The full reach and extent of their authority may be seen from a simple list of the subordinate officers appointed by them; viz., hog-reeves, water-bailiffs, cow-keepers, fence-viewers, town-drummers, constables, tithing- men, perambulators, town treasurers, ringers and yokers of swine, pound-keepers, sealers of weights and measures, town bellmen, cullers of staves, measurers 120 DEVELOPMENT OF OUR CIVIL INSTITUTIONS of corn, overseers of wood, corders, overseers of chim- neys and of chimney sweepers, gaugers, viewers of casks, and firewards. They were often constituted overseers of the poor, looked after schools, were required to set idle and disorderly persons at work and to bind out poor children as apprentices. In Plymouth colony they could even try actions of debt, settle disputes between settlers and Indians, and had a censorship over private morals, in one case issuing an order that no " single person " should live otherwise than as a member of some well- ordered family. In all this we see how distinctly they represented the townsmen in their legislative capacity. I 18. The Town Self-Governing It will now be evident that the town was in the fullest sense a self- governing community. The existence of a number of these communities side by side, would soon call for some form of general government, since common in- terests would demand more or less of united action. It had been the intention to hold a general court of all the freemen of the colony four times a year. At this a governor, deputy governor, and eighteen assistants were to be chosen, who were to meet once a month. The primary assembly soon became impossible from the increase of population, and a ' representative assembly took its place (compare the tribal meeting of the marksmen). The general court, or legislature, of the Colony thus became both a legislative and a judicial body, apparently acting co-ordinately with the governor and assistants. At first they met together, but soon separated into two houses, the upper one LOCAL GOVERNMENT IN THE UNITED STATES 121 formed of the assistants, and the lower one composed of the deputies from the townships. I 1 9. Creation of the County. — It was not for several years that the need of county or shire govern- ment was felt, so thoroughly did the town meeting and general court do their work. In 1636, it was ordered that the magistrates should hold four great quarter courts yearly at Boston, all business of importance having been hitherto conducted by the general court and the court of assistants. At the same time, quar- ter sessions were established at Ipswich, Salem, New- ton, and Boston, in distinction from the "great courts" previously mentioned. In 1643, f° ur shires were for- mally established, which was little more than a recog- nition of facts already existing. The work of the shire (county) thus began with the exercise of judicial functions. During the next century, various changes of the charter of the Massachusetts colony followed, in consequence of which the county acquired power at the expense of the town. In other New England col- onies, practically the same results were reached in slightly different ways. I20. Functions of the Old New England County. — In general, the functions of the county were as fol- lows : It was given charge of all probate matters ; it directed the laying out and construction of roads and bridges between two or more towns; it appointed commissioners to solemnize marriages; it could fine the selectmen and the assessors, and could appoint the latter if the town failed to do so ; it even invaded the province of the parish by appointing ministers and providing for their maintenance, when the proper 122 DEVELOPMENT OF OUR CIVIL INSTITUTIONS authorities failed to attend to these duties; it was given authority to fine the towns themselves for neg- lect of certain matters made mandatory by law; and the by-laws of the town were not valid unless approved by the county court. When the fines and fees were not sufficient to defray the necessary expenses of the county, the county was authorized to make a levy for this purpose. The task of equalizing assessments was given to the county. The militia of each county con- stituted a regiment, of which each town furnished a company. Here, too, originated that feature which has become so prominent in modern politics, the nom- inating convention. 121. The Modern New England County The continued increase in population and the necessity of uniformity in local law caused the general court to assume many functions formerly exercised by the town, while others were given to the county. As at present organized, in Massachusetts, the county is constituted as follows : It must maintain court houses and jails, and suitable buildings for the preservation of deeds, wills, and court records. Its commissioners, as the chief officers are called, have general charge of all county property, provide for the care and mainte- nance of all public buildings belonging to the county, determine the amount of the county tax, and apportion it among the towns. They may lay out or discontinue county highways, and construct bridges; they have charge of the jails and houses of correction, appoint their keepers, making all needful rules for their man- agement. The other officers are a sheriff, by far the most important, a treasurer, register of deeds, regis- LOCAL GOVERNMENT IN THE UNITED STATES 123 ter of probate, and justices of the peace, including the so-called trial justices. The superior court (an inferior State court) is held at least twice each year in each county. There is also a probate court presided over by a probate judge, and the towns are grouped into districts in which a district court is held. It is possible that we have in this a survival of the old hundred-court. The county has no legislative power and there are no representative features left. Out- side of the above features, the towns are independent and subject only to the control of the State, since their powers are defined and limited only by the State law. 122. The Modern New England Township. — The New England township at the present day is a body politic and corporate, with all that these terms imply. It has complete control of its own affairs, and may raise money by taxation for the following pur- poses: To support schools, take care of the poor, maintain highways, care for burial grounds, maintain a fire department, destroy dangerous and noxious animals, support public libraries, detect offenders, repair and decorate soldiers' graves, aid and support disabled soldiers and sailors, and defray all other necessary town charges. The flexibility of the latter statement may be understood from the fact that, at the time of the Civil War, the towns raised and spent thousands of dollars to fill the quota of soldiers to be raised by each to avoid the necessity of a draft. 123. The Officers of the Town. — The officers of the town are the selectmen (who, as in early times, are the representatives of the freemen during the 124 DEVELOPMENT OF OUR CIVIL INSTITUTIONS interval between the annual meetings), assessors, overseers of the poor (although the selectmen usually discharge the duties of these two), town clerk, treasurer, collector of taxes, constable, and school committee. The assessment and collection of taxes are independent of the State and county, which look to the town for their share of the proceeds. The school committee has entire control of the schools, except that by a recent law two or more towns may join in employing a superintendent when unable to do so independently. There are also surveyors of the highways, field drivers, fence viewers, surveyors of lumber, measurers of wood, and sealers of weights and measures. It is only within recent years that sev- eral of the other offices mentioned in Section 117 have become extinct. On the whole, the town, though shorn of some of its ancient authority and power, is still the most important unit in the State. 124. The First Settlers of the South The men who settled Virginia came with purposes far different from those of the people who planted their homes upon the bleak shores of New England. They had no quarrel with either Church or State, and, coming as they did upon a purely business venture, they had no grievances for which they sought redress. They accordingly reproduced the institutions of the home land, with only such changes as the new conditions seemed to demand. While the New England colo- nists were nearly all of like social standing, in Virginia the various social classes of England were generally represented. Thither came the pauper and the crim- inal, as well as the gentleman and the tradesman, while LOCAL GOVERNMENT IN THE UNITED STATES 1 25 the early introduction of slavery profoundly affected social relations, and tended to prevent the growth of purely democratic ideas. 126. Physical Conditions Unlike the people of New England, the residents of Virginia did not live in close villages, but scattered in large plantations over the country. Each plantation constituted a world by itself, having its own slaves and workmen and its aristocratic owner. The rivers, opening the whole eastern part of the country to colonization, prevented the growth of cities for a long time, since each planter could have his goods brought by ship almost to his door, and it was easy to dispose of the products of his plantation as the return cargo. The law of entail, by which the eldest son inherited the father's estate to the exclusion of the younger children, tended all through colonial times to prevent the division of great estates and promoted the growth of aristocratic ideas. This condition of things prevented the adoption of the township or open parish meeting, and conse- quently the only resource was the select vestry and county government. 126. The Parish in Virginia. — We have seen that, when colonization began in the seventeenth century, the most important local unit in England was the parish. This had absorbed into itself both the ecclesiastical functions of the church and the powers of the old township. It had also lost a large part of its old democratic organization, and had become in large measure a close corporation, with powers con- centrated in the hands of a few men. It was this centralized parish that appeared in Virginia, In New 126 DEVELOPMENT OF OUR CIVIL INSTITUTIONS England, the political side of the English township, as well as many of the powers exercised by the county, appeared in the town government. In Virginia, an almost complete reproduction of English usages is found. The names of hundred and manor are indeed used, but they were without doubt parishes in fact, and soon became such in name. At any rate, the name parish appears in the records of Elizabeth City in 1631, and, since the term "church wardens of hundreds " appears also, it would seem that the three names were at first used without close discrimination. The parish, at first, was governed by twelve selected men, who at an early day seem to have been chosen by the voters of the parish, but they soon acquired the power of filling the vacancies in their own number, thus closely following the English model. 127. The Parish Officers— While the chief authority was in the hands of the select vestry, the executive power rested in the church wardens, who had the general oversight of parish matters. They made the assessment of the parish tax, provided a residence for the parish minister, had the care of the poor, and looked after the establishment of boundary lines. They attended to the collection of the tax and disbursed all parish funds, watched over the morals of the community, and were required to present to the county court persons guilty of various offenses, a function which they performed conjointly with the grand jury. They were elected by the vestry from its own members. The minister was also an important officer. He presided at all parish meetings, solem- nized marriages, and, in conjunction with the parish LOCAL GOVERNMENT IN THE UNITED STATES 1 27 clerk, kept a record of all christenings, marriages, and deaths in the parish. By an act of 1662, the parish was authorized to send two representatives to the county court, who should have an equal voice with the justices in making by-laws, an evident attempt to re- store the ancient representation of. the "reeve and four " in the shiremoot. 128. Organization of County Government. — The county, like the parish, was closely copied from English institutions. It became, after the parish, the chief instrument in local government. , The county court, modeled after the English quarter ses- sions, became the agent for transacting many kinds of business which came before the New England town- meeting. The court was composed of justices ap- pointed by the governor. However, as the court recommended suitable persons to the governor for appointment, the court soon became, like the vestry, a close corporation controlling its own membership. The number of justices was usually eight, of which four constituted a quorum for the purposes of busi- ness. An inferior court for the trial of petty cases might, however, be held by a single justice. The court had jurisdiction in all cases of " life and limb," and in all civil cases involving less than f 16 its deci- sion was final. The court appointed its own clerk. The sheriff was its executive officer, and was origi- nally a member of the court itself, a condition of things that reminds us of the ancient right of the sheriff to preside at the shiremoot. 129. Functions of the County Government. — The court had charge of roads and bridges, divided 128 DEVELOPMENT OF OUR CIVIL INSTITUTIONS the county into districts, for which it appointed high- way surveyors, had the appointment of constables, and could establish parishes, although this power was later assumed by the legislature. All ferries were under its control; it could offer a reward for the destruction of dangerous and noxious animals; it could appoint tobacco viewers, admit attorneys to practice, and levy all taxes except those intended for the support of the parish. It thus exercised a large share of the functions of local government. The county was also the military unit, and the chief com- mand within its limits was vested in a commander or county lieutenant, who was appointed by the gov- ernor, thus again reminding us of the lord-lieutenant of the English shire. As an executive officer of the county, he was empowered to enforce the laws against certain minor offenses-, such as drunkenness and pro- fanity, and was authorized to see that the people at- tended church on the Sabbath. 130. The Later Development. — It will now be seen that the county court had legislative, judicial, and administrative functions. The evolution which Ameri- can local government has undergone has resulted in placing these functions in separate hands. The legis- lative functions have been largely taken from the county court and given over to the State legislature, while the administrative features have mostly been given to a special board, known in some States as commissioners, in others as supervisors. In other words, the court has been divided into two sections, to one of which the judicial duties have been partially left, while all administrative and executive duties have LOCAL GOVERNMENT IN THE UNITED STATES 129 passed to the other. The county court has thus been shorn of its old-time power, and in most States even its judicial functions have largely passed over to the judges appointed by the State and holding court within the county, while only minor matters are left to the county. In some places only probate matters are now within the jurisdiction of the county court. 131. Other Southern Colonies The Virginia colony was typical of local government in the South. At first, however, the manor and hundred retained far more power in the other colonies than in Virginia ; but after the Revolution, these gradually lost impor- tance, while the county gained at their expense. 1 32. Local Government in Pennsylvania. — It was reserved for the people of Pennsylvania to reproduce the primitive shire with far more power than it had had in any place since the days of the English heptarchy.* All the powers of local government were thrown into the hands of the county, while the lower units were almost wholly ignored. The county became the unit of representation in the legislature, while the county court became the organ through which the will of the people was executed in all local matters. The county court thus acquired not only all the powers of the county in other colonies, but those of the New England town-meeting as well, leaving to the people merely the choice of the persons who should exercise these powers. The increase of popu- lation has, however, caused the township to develop itself for many minor purposes, and the division of the county court has here also thrown the main * See Section 104. 9 I3O DEVELOPMENT OF OUR CIVIL INSTITUTIONS features of county administration into the hands of a board of three commissioners. Among the matters given to the township boards are the care of roads, the support of the poor, election matters, etc. It will be seen that the township is developing at the expense of the county. 133. The Two Systems of Local Government. — It will now be seen that two widely different systems of local government have been developed, starting with practically the same ideas : one in which the township is the important factor, while the county remains of much less importance; another in which the county discharges the important features of local administration, while only comparatively unim- portant matters are entrusted to minor organiza- tions. 134. Local Government in New York. — In New York a compromise system appeared. Here the county exists side by side with the town, and powers are more evenly divided between them. The county board is representative and is made up of the super- visors of the towns. Each local unit thus has its rep- resentative in the county legislature, or shiremoot, as the new board may fairly be called. This board has charge of all county affairs and a general oversight over much that is done in the townships. Under its care are all county roads and bridges, and it must provide for their care and maintenance; it has the oversight of all county property, audits the accounts of all county and township officers, and directs the raising of funds for the payment of all claims against either township or county. It levies all taxes except LOCAL GOVERNMENT IN THE UNITED STATES I3I those for the support of schools, and constitutes for many minor purposes a county legislature. 1 35. Contrasts Between the Three Systems. It will be observed that, in New England, the county grew up at the expense of the town, while in Pennsyl- vania, the township has grown up at the expense of the county. In Pennsylvania, county affairs are managed by a board of three commissioners ; in New York, by representatives elected by the townships. In New York, the poor are maintained partly by the county, partly by the town, while in Pennsylvania they are cared for wholly by the county. In New England, on the other hand, the township has entire charge of the poor, except in those cases that cannot fairly be charged to any of the townships. The schools in all these States are maintained by the townships or other local units, but are partly under county control, es- pecially in New York and Pennsylvania. New Eng- land has the township meeting, with full powers re- stricted only by statute law; New York has retained it, but has transferred many of its powers to the board of supervisors; while in Pennsylvania its powers are exercised by a township board. 136. Local Government in the West. — The de- velopment of local institutions in the West has been marked by rivalry and conflict between the township system of New England and the county system of Virginia. In Michigan, the people were not satis- fied with the restricted powers first given to the townships, and the powers and functions of the town- ships here have been increased, until now they are nearly as extensive as are those of the Massachusetts I32 DEVELOPMENT OF OUR CIVIL INSTITUTIONS township. Southern Illinois was settled by people who brought the political ideas of Virginia, while the northern portion of the State was settled mainly by men from Ohio, New York, and New England. At first the county system prevailed, but finally the large increase in population in the northern part brought about the adoption of the local option plan, and under this the township system has gradually gained ground, until to-day it prevails in the greater portion of the State. West of the Mississippi the same tendencies and conditions may be traced. At first, while the population was sparse and widely scattered, the county system was exclusively used, as best adapted to the immediate needs of the people; but later the town- ship has steadily encroached upon the exclusive county organization. This may be seen in the history of our own State. At the first, only county organization was to be found. Toward the close of the Territorial period, township organization rapidly gained ground, and it is only in the newer counties now that both systems of organization are not to be found side by side. This produces a compromise or mixed system of county organization, which possesses peculiar strength and promises to spread wider and wider. "/ ""P „ „ TC G MAR. I«T P. I « »■ , ,- ST - i -fl \ %\ , /SL-4 — r~ZS — »»"■ ^3 *■ F levlekjfc ^ ... h Jhltprook. ' '^PmCSt Kiddor ™-*L o iafce/ /§& Britten fcffineto' ./ / «/m7a rshall |ro^ F"l;»^ r/j? <9I .""/Spain c:„i,+„^ a^fcuffton. 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LINOOL 60 ~<~ — 100 Greenwich TSn« 97 L;,L. poates, ENSB-, INDIAN CESSIONS AND RESERVATIONS IN THE DAKOTAS 1 — Not covered by treaty. 2 — Fort Buford Military Reserve (abandoned). 3 — Executive Order, April 12, 1870, establishing Arickaree, Gros Ventre, and Mandan Indian Reservation. 4 — Executive Order, July 13, 1880, restoring certain land to public domain mentioned in Executive Order April 13, 1870, and reserving land for use of Arickaree, Gros Ventre, and Mandan Indians. 5 — Agreement with Arickaree, Gros Ventre, and Mandan Indians, Dec. 14, 1886. 6 — Treaty with Sioux Indians, April 29, et seq., 1868. 7 — Agreement with Sioux and Northern Arapaho and Cheyenne Indians, September 26, 1876. 8 — Agreement with Sioux Indians, March 2, 1889. U— Treaty with Yankton Sioux, April 19, 1858, and Agreement, Dec 31 , 1S92 10— Treaty with Sioux, July 23, IS51 . 11— Treaty, Sisseton and Wahpeton Sioux, February 19, 1-417, and Agreement with Sis- seton and Wahpeton Sioux, Sept. 20, ISffV, 12 — Agreement with Sisseton and Wahpeton Sioux, December 12, 1-89. 13— Act of Congress approved February Hi, 1S113. 14— Treaty with Red Lake and Pembina Chippewa Indians, Oct. 2, 1S6S. 15— Executive Orders, December 21, 1-H2, March 29 and June 3, 1S-4, establishing Turtle Mountain Reservation. Act of Congress, April 12, UW4. 16— Agreement, November 2, HHH , ratified by act of April 27, 19i»4. 17— Agreement with Rosebud Indians, September 14, 1901, ratified by act of April 23, 1904. PART III THE CIVIL INSTITUTIONS OF SOUTH DAKOTA CHAPTER X THE GOVERNMENT LAND SURVEY 137. Origin of the Land Survey The present system of land surveys was, in its main features, orig- inated by the Continental Congress in 1785, and was based, it is believed, upon the suggestions of Jeffer- son.* The system is known as the " rectangular system of land surveys," since the township and all its smaller subdivisions, when Nature permits, are rectangular in form as a result. It was applied, orig- inally, to the Western Territory beyond the Alleghen- ies and east of the Mississippi, which had been ceded by the individual States to the United States and ac- quired by purchase from the Indians. It was later extended to all public lands. A .general land office was established in 18 12 as a part of the Treasury De- partment and given control of all public land surveys. The general land office was transferred to the De- partment of the Interior, at its creation in 1849. * See B. A. Hinsdale, The Old Northwest, Chap. XIV., and Ohio in State Series, Chap. VII. 133 134 THE CIVIL INSTITUTIONS OF SOUTH DAKOTA C 6 5 c 4 d 3 2 6 5 4 3 2 1 1 2 3 4 5 6 1 a a 3 b 4 5 6 3 D DIAGRAM SHOWING PLAN OF GOVERNMENT SURVEYS. C D is the principal meridian, and IB is the base line. Town- ships are numbered each way from the base line, and ranges are numbered each way from the principal meridian, a is township 3, south, in range 3, west ; b is township 3, south, in range 4, east ; c is township 4, north, in range 3, west ; d is township 4, north, in range 4, east. 138. Base Line. — According to this system, as in use at the present time, the base of all measurements for any given large area is taken from two lines, one a meridian, known as a principal meridian, and another intersecting this at right angles, known as a base line. Twenty-four principal meridians have been established for Government surveys. On each side of the princi- pal meridian, range lines are run, six miles apart ;' and on each side of the base line, parallel lines are run, six miles apart. The last are called township lines, and THE GOVERNMENT LAND SURVEY 135 the land divisions thus created are known as Congres- sional Townships. 139. Range and Township Lines. — Thus range lines and township lines divide the' land into townships six miles square. Townships are divided into sections and quarter sections. Townships are numbered con- secutively north and south of the base line, while ranges are numbered east and west of the principal meridian. Sections are numbered by beginning in the northeast corner . of the township, and proceeding west and east alternately till No. 36 is reached. Quarter sections are located in a section by designating them as the north- east quarter, northwest quarter, southeast quarter, and southwest quarter. N W 6 5 4 8 2 1 7 8 9 10 — — 12 18 17 16 15 14 18 19 20 21 22 23 24 30 29 28 27 28 25 31 32 33 34 35 36 DIAGRAM OF A TOWNSHIP SUEVET. Locate the N. W. %, Sec. 11; the N. W. %, N. W. %, Sec. 11; the N. E. %, N. W. %, Sec. 11; the S. W. %, S. W. %, Sec. 16. 140. Correction Lines. — As the intervals between the meridians diminish as we go north, owing to the I36 THE CIVIL INSTITUTIONS OF SOUTH DAKOTA shape of the earth, it is necessary to make corrections frequently in order that the townships may, as nearly as possible, be six miles each way. Range Lines Correction Line Range Lines Base Line. DIAGRAM OP CORRECTION LINE. Correction Lines are usually run every twenty-four miles, as the survey advances northward, and on these lines, called " standard parallels," the meridian range lines are founded six miles apart, and thus the correct interval between range lines is preserved. In actual surveying operations some correction line near the lo- cality is selected for what may be called a sub-base line, and the work is based upon that. Townships are always numbered, however, from the original base line. The local or sub-base line for the survey in this State, east of the Missouri, is the westward extension of the line between Minnesota and Iowa, forming the southern boundary of Minnehaha, Davison, and Brule counties. Besides this there are seven other correc- tion lines, counting the one forming the northern boundary, the seventh standard parallel, numbered from the sub-base line. 141. The Principal Meridian The principal me- ridian from which the survey in this State east of THE GOVERNMENT LAND SURVEY 1 37 the River proceeds, is coincident with 90 58' longi- tude, west from Greenwich, and starts from the mouth of the Arkansas River. The base line, at right angles with this, from which township lines are run, starts at the mouth of the St. Francis River, in Arkansas, and extends westward. The number of any township in the eastern part, multiplied by six, will give the dis- tance in miles from this line; and the number of any range, multiplied by six, will give the distance from the principal meridian, in miles. 142. Base Line in Western Part The western part of the State has a survey not connected with that of the eastern part. Its base line is the parallel of 44 north latitude. 1 43. School Sections — In this State, and in all the newer Western States, sections 16 and 36 of every township are reserved from settlement to be sold or leased for the benefit of the public schools.* * Before 1850, the rule was Section 16 ; since that time, Sections 16 and 36. See B. A. Hinsdale, Report of the Commissioner of Education, Part III., Chap. I., pp. 1264 et segq. Again, from 1785 to 1796 the method of numbering sections was different from the one followed since that time, as shown in this block of figures : 36 30 24 18 12 6 35 29 23 17 11 5 1 34 28 22 16 10 4 33 27 21 15 9 3 32 26 20 14 8 2 31 25 19 13 7 1 CHAPTER XI THE CIVIL TOWNSHIP 144. The Civil Township in South Dakota — The principle of local control in local affairs is deeply- seated in all people of English descent. Both in Eng- land and in America this idea has lived through all the manifold changes in governmental affairs. Local interests most concern the individual citizen, and hence township matters are managed directly by the people themselves in annual assembly, or are dele- gated to a board of officers chosen in open town meet- ing, and made immediately responsible to the electors. In South Dakota, as in other parts of the West, county government was organized first, on account of the sparseness of population. It naturally assumed the greater share of power; and, while the deliberative town meeting exists for minor purposes, its powers are so limited that it is not the great educator in civic affairs that it is in New England. Arrangements are made so that any county can be organized into civil townships as soon as desired by a majority of the voters, and there appears to be a tendency to enlarge the powers of the township from time to time as oc- casion seems to require. 145. The Civil Township Defined A township is a body corporate and politic. In its corporate capacity it has power to sue and be sued, to purchase and hold land, within its limits, for the corporate use 138 THE CIVIL TOWNSHIP 1 39 of its inhabitants ; to make such contracts and to hold such personal property as may be necessary for the exercise of its powers; and to make necessary orders and regulations regarding the use and control of the property held by it. It is also a body politic, since it has political functions to perform as a part of the county and State, and also since it is a government for affairs of a purely local nature. 146. Organization of the Township. — The bound- aries of the civil township correspond commonly with those of the Congressional township, except when natural barriers make this undesirable. Upon petition of a majority of the voters in any Congres- sional township having at least twenty-five qualified voters, the county commissioners must proceed to establish the boundaries of the proposed civil town- ship, and call a meeting for the election of officers. After the boundaries are established and the officers elected, the township is said to be organized, and it thereafter manages its affairs as an independent political body. 147. Organization and Conduct of a Town-Meet- ing — The annual town-meeting of each organized township is held on the first Tuesday in March. Special meetings may be called by the board of super- visors. The clerk of the township is required to post three notices ten days previous to the time of holding the meeting, announcing the time and place. The meeting is called to order by the town clerk, and the first business is the election of a moderator, or presid- ing officer. The moderator announces the order of business coming before the meeting. The town clerk 140 THE CIVIL INSTITUTIONS OF SOUTH DAKOTA acts as clerk of the meeting, and keeps a record of all its acts. Three judges of election are chosen at the meeting, who decide all disputed points arising in the election of officers. All important officers must be chosen by ballot. Every qualified elector of the town- ship has a right to vote in the meeting. 1 48. Powers of the Town-Meeting The electors assembled in town-meeting have the following powers : (a) To elect the town officers required by law; (b) to determine the number of poundmasters and make rules for pounds; (c) to direct all actions at law involving the township; (d) to determine, upon the petition of twenty-five voters, whether intoxicating liquors shall be sold within the limits of the township; (e) to impose penalties, not to exceed ten dollars for each offense, for the violation of the rules and by laws of the township; (/) to vote to raise and appro- priate money for the construction and repair of roads and bridges, and for other public improvements within the township, for the support of the poor, and for all other necessary expenses of the township. 1 49. By-Laws — Townships are permitted to make rules and regulations concerning matters coming within their authority, and such rules and regulations are known as by-laws. They must be passed by the town-meeting, and be posted in three places in order to be binding upon the inhabitants. By-laws are laws of the township in the same sense that laws passed by the legislature are laws of the State. " By " is an old Norse word meaning town. The town meeting is a democratic assembly in the truest sense. THE CIVIL TOWNSHIP I4I 150. Officers of the Township The officers of the township are the board of supervisors, the town clerk, treasurer, assessor, justices of the peace, con- stables, and overseers of highways. They are elected at the annual town-meeting, and they must assume office within ten days after receiving notice of their election. Before the newly elected officer can assume the duties of his office, however, he must qualify ; that is, take an oath of office, and in most cases give a bond. In his oath of office he must swear to support the Constitution of the United States and that of the State of South Dakota, and to discharge faithfully the duties of his office to the best of his ability. When, from any cause, a vacancy in a township office exists, the vacancy is filled by the justices of the peace and the board of supervisors, who together choose some person to hold the office until the next annual meeting. All officers of the township are elected for terms of one year, except the justices and constables, elected one each year for terms of two years, and the supervisors for terms of three years. Overseers of highways are elected by the voters of their respective road districts. 151. Board of Supervisors. — The supervisors of the township are three in number, elected one each year for three years ; and the senior member of the board acts as its chairman. The board is required to meet four times each year. It fixes and approves the bonds of all township officers, audits all accounts against the township, and draws warrants for the payment of the same. It acts as a township board of equalization, as a township board of health, and has charge of all township business not committed to other officers. It 142 THE CIVIL INSTITUTIONS OF SOUTH DAKOTA is required to report annually to the town meeting the financial condition of the township, together with the estimate of the expenses for the coming year. It acts also as a board of registration. 152. The Treasurer. — The treasurer receives all money of the township, and pays out the same only upon the warrant of the supervisors. Within five days previous to the annual town-meeting, he must make out a complete account of all money received and paid out by him as treasurer, and present the same at the meeting. One copy of his report must be filed with the town clerk, and one with the county auditor. His bond must be fixed by the supervisors at twice the amount of money he is supposed to handle. The counties, by a law passed in 1893, were given an opportunity to make the township treasurer the collector of taxes instead of the county treasurer. Few, if any, have done so. 153. The Clerk.— > The clerk is the officer who has charge of the records, books, and papers belonging to the township. He keeps an account of all acts of the board of supervisors and of the town-meetings. He may administer oaths, and may take acknowledgments of deeds and other business documents. He is required to notify the clerk of the circuit court of the election of all justices of the p°ace and of all con- stables. The. amount of his bond is determined by the supervisors. 154. The Assessor The assessor is a very im- portant officer, for his duties require him to obtain a list of all taxable properties within the limits of his township. He is provided by the county commis- THE CIVIL TOWNSHIP I43 sioners with blanks for this purpose. He must require every person possessing taxable property within the township to make a list of the same under oath or affirmation, and he is required to list such property at a fair valuation. He is also required to collect various facts in regard to wealth and population. He must give a bond in such sum as may be fixed by the supervisors. 155. The Justice of the Peace .Two justices of the peace are elected in each organized township. They cannot enter upon the duties of their office until they have filed with the county auditor a certified copy of the oath of office, and have given bonds in not less than five hundred dollars. The jurisdiction of the justice of the peace is limited, in civil cases, to matters wherein the sum in controversy is not more than one hundred dollars, and in criminal matters to cases where the fine is not more than one hundred dollars, or imprisonment not more than thirty days. Justices of the peace may administer oaths, solemnize mar- riages, and take acknowledgments of deeds and other instruments. They are conservators of the peace, and may cause the arrest of any person violating the same. They must report quarterly to the county com- missioners, who audit their accounts and allow their bills. All fines collected by them must be turned over to the county. 156. The Constable. — Two constables are elected in each organized township. The duty of the con- stable is to assist in preserving the peace. He serves all legal processes issued by the justice, makes arrests, and summons witnesses. He may arrest, without a 144 THE CIVIL INSTITUTIONS OF SOUTH DAKOTA warrant, persons discovered by him in the act of vio- lating the law. He is the ministerial officer of the justice's court, but he may also be called upon to serve papers issued by the county court. He is required to be present on election days for the purpose of preserv- ing order around the polls. 1 57. The Overseer of the Highways One over- seer of highways is elected at the annual town-meeting for each road district into which the township is di- vided. These overseers have charge of the repairs on roads and bridges, and must keep the same free from obstructions. 158. Compensation of Township Officers — The assessor receives $3 per day for the time actually em- ployed, but not to exceed $60 a year in any one con- gressional township. The town clerk and supervisors receive $2.50 per day when attending to business within the township limits, and $3 per day when their duties call them outside such limits. But no supervisor can receive as such compensation more than $35 in one year, and the town clerk is paid by fees, and not per day, for filing papers and posting notices. The justice of the peace and constable are paid wholly by fees. The treasurer receives two per cent, of all township moneys paid into his hands. CHAPTER XII THE SCHOOL DISTRICT 169. Origin of the School District The school district was known first in fact, if not in name, in Massachusetts during colonial times. The first general law establishing schools was passed in that colony in 1647. By this a township was required to maintain a school whenever it had fifty householders, thus mak- ing the township practically a school district. The desire to bring the school as near as possible to the pupils led to the creation of additional schools in each township; and, finally, in 1789, the school district as distinct from the township was established by law. The school district thus became a body politic and corporate, practically independent of the township,' having its own officers with special powers and duties. In the West, in sparsely settled districts, it has often happened that the organization of the school district has preceded that of the township, and has been itself a forerunner of township government* 1 60. Kinds of School Organization In South Dakota, when the boundaries of the school district coincide with those of the township, it may happen that several separate schools will be established within it. These may all be under the authority and super- vision of a single board of control. This is known as the township system of organization. These township * See Hinsdale, Horace Mann, etc., and G. H. Martin, The Evolu- tion of the Massachusetts Public School System. MS I46 THE CIVIL INSTITUTIONS OF SOUTH DAKOTA districts may be divided into several sub-districts, in each of which is a school. All of the schools of the township district are under the control of the school board, thus reducing the number of officers and uni- fying the system. When, however, the township is broken up into several independent districts, each being a body politic and corporate, and having its own officers unconnected with any other district in the township, the organization is known as the district system. In the district system the officers control but a single school, while in the township system the school board has control of all the schools which it may have been found necessary to establish within the town- ship.* 161. The Two Systems in South Dakota The early development of the school system in this State was on the plan of district organization, but before the close of Territorial days an effort was made to intro- duce the township system. This resulted in a compro- mise, by which the district plan was retained in some counties and the township system adopted in others. The first State law on the subject, passed in 1891, permitted both systems to be retained, and also pro- vided a plan by which township districts, upon petition and vote of the people, might adopt the district system ; while, vice versa, one-school districts might combine and adopt the township system. The result has been that both systems continue to exist side by side. The law of 1901 also contains a provision for the continued existence of both. * See Report of Committee of Twelve on Rural Schools, N.E.A. 1897, pp. 22, 23. THE SCHOOL DISTRICT I47 1 62. School District Defined A school district is a body politic and corporate for all school purposes. Its officers are separate and distinct from those of the township. The school meeting held in each district bears a general resemblance to the annual meeting of the township. 1 63. Powers of Electors In addition to the elec- tion of all officers for the district, the voters assembled in school meeting have the following powers: (a) They may instruct the board regarding the manage- ment of the schools; (b) they may determine what branches of study shall be taught in addition to those prescribed by law; (c) they may determine the time school shall be held; (d) they determine the tax levy for school purposes, not to exceed two per cent of the taxable property in the district; (e) they may direct as to repairs and improvements, removal of school houses, erection of new ones, etc. It is the duty of the board to carry all such instructions into effect, provided that the instructions shall not prevent the members of the board from exercising a sound discre- tion in all matters pertaining to the duties of their office. The voters of a school district have the further power of authorizing the issue of bonds for the purpose of building and furnishing school houses, and of pur- chasing ground upon which to locate them. This ad- justment of powers and functions is practically an application of the principles of the initiative and refer- endum. 1 64. The School Board. — In all districts the school board consists of three members, the chairman, clerk, and treasurer, one of whom is elected each year at the I48 THE CIVIL INSTITUTIONS OF SOUTH DAKOTA annual meeting. The members of the school board are the executive officers of the democracy of the school district. Here, as in the township, is an excellent illus- tration of democratic organization and administration. Such democracy, however, is possible only in the smaller units of government. 165. Powers and Duties of the School Board — Under the limitations stated in paragraph 163, the school board has the management of the schools and school property under the provisions of the law. They must organize and maintain schools for the accommo- dation of all the children of school age in the district. They are given power to provide for the transportation of children to and from the school where the distance is considerable. They may use their discretion as to the admission of non-resident pupils. The board is required to assist the teachers in the government and discipline of the schools. The board may suspend or expel from school any pupil insubordinate or habitually disobedient. Such suspension or expulsion, however, cannot be for a shorter period than ten days nor for a longer period 'than the current term. The board em- ploys teachers for the schools, and has the right to dismiss a teacher at any time for plain violation of contract, gross immorality, or flagrant neglect of duty. The board may issue bonds for building and furnishing school houses when authorized to do so by a majority vote of the school electors at any regular or special meeting. When bonds are issued, the board is re^ quired to levy an annual tax sufficient to pay the in- terest and principal of the bonds when due. But no tax levy for this purpose can be greater than fifteen THE SCHOOL DISTRICT I49 per cent in any one year of the debt to be paid. Bonds so issued cannot be sold for less than their par value. All taxes voted by a school district are reported to the county auditor, and placed by the auditor on the annual tax list. All taxes for the support of the schools are levied by the school districts or their officers, save a. tax of one dollar per capita levied by the county com- missioners. The powers of the school board are thus seen to be both legislative and executive. In the dis- missal of teachers and the expulsion of pupils, they possess judicial powers. Parties aggrieved at any ac- tion of the school board may appeal to the circuit court. A further appeal may be had to the supreme court of the State. Like other public officers, each member of the board, before entering upon the duties of his office, must take an oath to support the constitution and faithfully and impartially to perform the duties of such office. 166. The Chairman — In addition to his regular duties as a member of the board, the chairman pre- sides at its meetings, and countersigns all warrants of the board. He acts as a judge of election in the dis- trict, and is the presiding officer at the annual school meeting. 167. The Clerk. — Besides acting as a regular member of the board, the clerk must keep a record of the acts of all school meetings in the district: He also acts as clerk of the board, and gives notices as required by law. He draws and signs all warrants for the payment of school money, and must give bonds for the faithful performance of his duties. He is authorized to take an annual enumeration of all 150 THE CIVIL INSTITUTIONS OF SOUTH DAKOTA children of school age in the district, and must report to the county superintendent all receipts and expendi- tures of school money, the amount and condition of school property, all indebtedness of the district, the number of schools and teachers, and the attendance of all schools held in the district. He transmits all communications from the district to the county superintendent and county auditor, and receives all communications from them in behalf of the dis- trict. 1 68. The Treasurer. — The treasurer serves as a regular member of the board, and also receives, keeps, and pays out all the money belonging to the district upon the warrant of the board. He must report annually, to the school board and to the county superintendent, all receipts and expenditures of dis- trict money. Three copies of this report must be posted in the district. He must give bonds for the faithful discharge of his duties and the safe keeping of all school money that may come into his hands. 1 69. The Annual Election The annual election of school officers takes place on the third Tuesday in June. The district clerk must give ten days' notice of the meeting, specifying the time and place and the hours of voting. The chairman and clerk act as judges of election. In districts having one school, the polls must be open at two o'clock and be kept open for two hours. In districts having more than one school, they must also be opened at two o'clock, but must be kept open four hours. The voting must be by ballot, and the persons having the greatest number of votes shall receive the certificate of elec- THE SCHOOL DISTRICT I5I tion issued by the district clerk. In case of a tie, the choice is decided by lot. 1 70. Meetings of the School Board. — The school board is required to meet three times a year, viz., on the second Tuesday in July and the last Tuesdays in November and March. The clerk shall, however, call special meetings when requested to do so by a' majority of the board. Written notice of a special meeting must be given to each member of the board. 171. Vacancies in School Offices. — Whenever a vacancy, by reason of death, resignation, or removal, occurs in the office of chairman, clerk, or treasurer of the school board, the vacancy is filled by the county superintendent, who appoints an officer to serve until the next annual meeting. The vacancy is then filled by election for the remainder of the term. 172. Compulsory Education — Attendance at school during the entire term of public school is required of every child between the ages of eight and fourteen years ; but the district board may decrease the time each year to not less than sixteen weeks, of which twelve weeks must be consecutive. Attendance at a private school or private instruction for a like period will be accepted instead of attendance at the public schools. Parents or guardians of truant children may be fined. 1 1 73. School Finances. — The funds for the support of the schools are derived from various sources. Chief of these is taxation and the proceeds of the sale of the school lands. The school grant amounted to 3,521,400 acres, of which 2,828,320 acres be- longed to the common schools. A minimum price for this land was fixed by the constitution, and the 152 THE CIVIL INSTITUTIONS OF SOUTH DAKOTA money received from its sale constitutes a general fund to be forever devoted to school purposes. Only the interest of this fund can be spent. The county commissioners each year levy a tax of one dollar upon each voter in the county. In case of failure of any district to levy sufficient tax to support at least •six months of school, the county commissioners are authorized to levy a tax sufficient for that purpose. All other taxes for the support of the schools are levied either by the school board or the electors in annual meeting. All money" received from the State is divided each year among the school districts of each county ac- cording to the number of children of school age. This apportionment is made by the county superintendent. 1 74. Qualifications of the Teacher Teachers' certificates are signed by the State superintendent and the county superintendent, and are issued only to per- sons at least eighteen years old. They are of four grades. First grade certificates are valid in any county in the State, for three years. The applicant must have passed an examination in orthography, reading, writing, arithmetic, geography, physical geography, English grammar, physiology and hygiene, history of the United States, civil government, current events, American litera- ture, South Dakota history, drawing, and didactics ; and must have skill in teaching and good moral character certified by the county superintendent. Second grade certificates are good only in the county in which the examination is held (or in any other county, if endorsed by the county superintendent thereof), and for a period of two years. The requirements are the same as for the first grade, excepting the examination in current THE SCHOOL DISTRICT I S3 i events, American literature, and physical geography. Third grade certificates may be issued to those failing to pass the examination for the second grade ; but they are valid only for one district, and for a period of one year. Primary certificates differ from second grade certificates in two respects : they are valid for five years ; and the examination covers kindergarten and primary methods, and omits civil government. Applicants for certificates of any grade must pay a fee of one dollar, to be deposited with the county treasurer, one half to the credit of the county institute fund, and one half to the credit of the State. 175. Powers and Duties of the Teacher. — Only persons possessing a certificate in force in the district where the teacher is to be employed can make a valid contract to teach. All contracts must be in writing, and must be signed by the teacher and at least two members of the school board. The contract must specify the date at which the school shall begin, the time for which it is to continue, the wages per month, and the time of payment. Two copies of the contract must be made, one to be retained by the district clerk, and one to be kept by the teacher. Certain conditions are understood to be a part of every teacher's contract, and need not be expressed. These are: (a) The teacher shall not hold school during any of the legal holidays; (&) schools shall be adjourned during the session of the county institute; (c) teachers shall re- ceive into the school all pupils sent there by order of the school board; (fl*e an outgrowth of the Thirteen Eng- lish Colonies planted on the eastern shore of North America in the years 1607-1732. The process by which this change was effected, will be briefly described in this chapter. 312. The Colonial Governments. — The Kings of England gave to the companies, proprietors, and associations that planted the Colonies certain political powers and rights. These powers and rights were formally granted in documents called charters and patents; they were duly protected by regular govern- ments, and so became the possession of the people of the Colonies. While differing in details, these governments were alike in their larger features. Thdre was in every Colony (1) an Assembly or popular house of legislation; (2) a Council, which served as an upper house of legislation in most of the Colonies and as an 224 THE GOVERNMENT OF THE UNITED STATES advisory body to the governor in all of them; (3) a Gov- ernor, and (4) Courts of Law. The members of the as- sembly were chosen by the qualified voters. The mem- bers of the council and the governors were elected by the people in Connecticut and Rhode Island, and were appointed by the proprietors in Maryland and Pennsyl- vania, and by the king in the other colonies. The judges were generally appointed by the king or his representatives. Powers of local government were distributed to local officers in every Colony. 3 1 3. The Home Government. — The Kings who granted the charters and patents, for themselves and their descendants, guaranteed to their subjects who should settle in the Colonies and their children, all liberties, franchises, and immunities of free denizens and native subjects within the realm of England. Previous to the troubles that led to the Revolution, the Home govern- ment commonly left the Colonies practically alone as free states to govern themselves in their own way. Still they were colonies. The charters enjoined them not to infringe the laws of England, and Parliament passed an act expressly declaring that all laws, by-laws, usages, and customs which should be enforced in any of them contrary to any law made, or to be made, in England relative to said Colonies, should be utterly void and of none effect. Moreover, the power to decide what was so contrary the Home government retained in its own hands. 3 1 4. Dual Government.— Thus from the very begin- ning the Colonies were subject to two political authorities; one their own Colonial governments, the other the Crown and Parliament of England. In other words, govern- ment was double, partly local and partly general. This fact should be particularly noted, for it is the hinge upon THE MAKING OF THE GOVERNMENT 225 which our present dual or federal system of government turns. The American, therefore, as has been said, has always had two loyalties and two patriotisms. 3 1 5. Division of Authority. — In general, the line that separated the two jurisdictions was pretty plainly marked. It had been traced originally in the charters and patents, and afterwards usage, precedent, and legislation served to render it the more distinct. The Colonial gov- ernments looked after purely Colonial matters; the Home government looked after those matters that affected the British Empire. The Colonies emphasized one side of the double system, the King and Parliament the other side. There were frequent disagreements and disputes; still the Colonists and the Mother Country managed to get on together with a good degree of har- mony until Parliament, by introducing a change of policy, brought on a conflict that ended in separa- tion. 3 1 6. Causes of Separation. — The right to impose and collect duties on imports passing the American cus- tom houses, the Home government had from the first as- serted and the Colonies conceded. But local internal taxation had always been left to the Colonial legislatures. Beginning soon after 1160, or about the close of the war with France, which had left the Mother Country burdened with a great debt, Parliament began to enforce such taxes upon the people directly. These taxes the Colonies resisted on the ground that they were imposed by a body in which they were not represented or their voice heard. Taxation without representation they declared to be tyranny. At the same time, the acts relative to American navigation were made more rigorous, and vigorous measures were taken to enforce them. In the meantime the Colonies had greatly increased in 226 THE GOVERNMENT OF THE UNITED STATES numbers and in wealth, and the idea began to take root that such a people,' inhabiting such a country, could not permanently remain' dependent upon England but must become an independent power. The Stamp tax was one of the objectionable taxes. 3 1 7. Independence. — The Home government dropped or changed some of its obnoxious measures, but still adhered to its chosen policy. New and more obnoxious measures were adopted, as the Massachusetts Bay Bill and the Boston Port Bill. The Congresses of 1*765 and 1774 protested, but to no real purpose. Some of the Colonies, like Massachusetts, began to take measures looking to their defense against aggression; and the attempt of General Gage, commanding the British army in Boston, to counteract these measures led to the battle of Lexington, April 19, 1775, and immediately brought on the Revolutionary war. All attempts at composing the differences failing, and the theater of war continuing to widen, the American Congress, on July 4, 177^3, cut the ties that bound the Thirteen Colonies to England. After eight years of war the British govern- ment acknowledged American Independence. 3 1 8. The Political Effects of Independence.— The Declaration of Independence involved two facts of the greatest importance. One was the declaration that the Colonies were free and independent States, absolved from all allegiance to the British crown. ■ The other was the formation of the American Union. The original members of the Union as States and the Union itself were due to the same causes. The language of the Declaration is, "We, the representatives of the United States of America, in general congress assembled, . . . do, in the name, and by the authority, of the good people of these Colo- nies, solemnly publish and declare" their independence. THE MAKING OF THE GOVERNMENT 227 The States' took their separate position as a nation among the powers of the earth. Thus, before the Rev- olution there were Colonies united politically only by their common dependence upon England; since the Revolution there have been States united more or less closely in one federal state or union. 3 1 9. The Continental Congress. — The body that put forth the Declaration of Independence, known in history as the Continental Congress, had, in 1775, assumed con- trol of the war in defense of American rights. It had adopted as a National army the forces that had gathered at Boston, had made Washington its commander-in-chief, and had done still other things that only governments claiming nationality can do. And so it continued to act. First the American people, and afterwards foreign gov- ernments, recognized the Congress as a National govern- ment. But it was a revolutionary government, resting upon popular consent or approval, and not upon a writ- ten constitution. A government of a more regular and per- manent form was called for, and to meet this call Con- gress, in 1777, framed a written constitution to which was given the name, "Articles of Confederation and Perpet- ual Union." Still Congress had no authority to give this constitution effect, and could only send it to the States and ask them for their ratifications. Some delay ensued, and it was not until March 1, 1781, that the last ratifica- tion was secured and the Articles went into operation. 320. The Confederation. — The government that the Articles providedfor was very imperfect in form. It con- sisted of but one branch, a legislature of a single house called Congress. Such executive powers as the Govern- ment possessed were vested in this body. The States ap- pointed delegates in such manner as they saw fit, and had an equal voice in deciding all questions. Nine States were 228 THE GOVERNMENT OF THE UNITED STATES necessary to carry the most important measures, and to amend the Articles required unanimity. In powers the Government was quite as defective as in form. It could not enforce its own will upon the people, but was wholly dependent upon the States. It could not impose taxes or draft men for the army, but only call upon the States for money and men ; and if the States refused to furnish them, which they often did, Congress had no remedy. Much of the disaster and distress attending the war grew out of the weakness of Congress, and when peace came, the States became still more careless, while Con- gress became weaker than ever. Meantime the state of the country was as unsatisfactory as that of the Govern- ment. The State governments were efficient, but they looked almost exclusively to their own interests. Com- mercial disorder and distress prevailed throughout the country. As early therefore as 1785 the conviction was forcing itself upon many men's minds that something must be done to strengthen the Government or the Union would fall to pieces. 32 1 . Calling of the Federal Convention.— In 1785 Commissioners representing Virginia and Maryland met at Alexandria, in the former State, to frame a compact concerning the navigation of the waters that were common to the two States. They reported to their respective Legislatures that the two States alone could do nothing, but that general action was necessary. The next year commissioners representing five States met at Annapolis to consider the trade of the country, and these commissioners concluded that nothing could be done to regulate trade separate and apart from other general interests. So they recommended that a general convention should be held at Philadelphia to consider the situation of the United States, to devise further pro- THE MAKING OF THE GOVERNMENT 229 visions to render the Articles of Confederation adequate to the needs of the Union, and to recommend action that, when approved by Congress and ratified by the State Legislatures, would effectually provide for the same. This recommendation was directed to the Legislatures of the five States, but copies of it were sent to Congress also and to the Governors of the other eight States. So in February, 1787, Congress adopted a resolution invit- ing the States to send delegates to such a convention to be held in Philadelphia in May following. And the Legislatures of all the States but Rhode Island did so. 322. The Constitution Framed.— On May 25, 1787, the Convention organized, with the election of Washing- ton as President. It continued in session until September 17, when it completed its work and sent our present National Constitution, exclusive of the fifteen Amend- ments, to Congress. In framing this document great difficulties were encountered. Some delegates favored a government of three branches; others a government of a single branch. Some delegates wanted a legisla- ture of two houses; some of only one house. Some delegates wished the representation in the houses to be according to the population of the States; others were determined that it should be equal, as in the Old Congress. Differences as to the powers to be exercised by Congress were equally serious. There were also controverted questions as to revenue, the control of commerce, the slave trade, and many other matters. Furthermore, the opinions that the dele- gates held were controlled in great degree by State considerations. The large States wanted representation to be according to population; a majority of the small ones insisted that it should be equal. The commercial States of the North said Congress should control the 230 THE GOVERNMENT OF THE UNITED STATES subject of commerce, which the agricultural States of the South did not favor. Georgia and the Carolinas favored the continuance of the slave trade, to which most of the other States were opposed. But progress- ively these differences were overcome by adjustment and compromise, and, at the end, all of the delegates who remained but three signed their names to the Constitu- tion, while all the States that were then represented voted for its adoption. What had been done, however, was to frame a new constitution and not to patch up the old one. The body that framed it is called the Fed- eral Convention. 323. The Constitution Ratified. — The Convention had no authority to make a new constitution, but only to recommend changes in the old one. So on the comple- tion of its work, it sent the document that it had framed to Congress with some recommendations. One of these was that Congress should send the Constitution to the States, with a recommendation that the Legislatures should submit it to State conventions to be chosen by the people, for their ratification. Congress took such action, and the States, with the exception of Rhode Island, took the necessary steps to carry out the plan. Ultimately every State in the Union ratified the Constitution ; but North Carolina and Rhode Island did not do so until the new Government had been some time in operation. Nor was this end secured in several of the other States, as Massachusetts, New York, and Virginia, without great opposition. 324. Friends and Enemies of the Constitution. — Those who favored the ratification of the Constitution have been divided into these classes: (1) Those who saw that it was the admirable system that time has proved it to be; (2) those who thought it imperfect but still be- THE MAKING OF THE GOVERNMENT 23 1 lieved it to be the best attainable government under the circumstances; (3) the mercantile and commercial classes generally, who believed that it would put the industries and trade of the country on a solid basis. Those who opposed it have been thus divided: (1) Those who re- sisted any enlargement of the National Government, for any reason; (2) those who feared that their importance as politicians would be diminished; (3) those who feared that public liberty and the rights of the States would be put in danger; (4)those who were opposed to vigorous government of any kind, State or National. 1 325. The New Government Inaugurated. — The new Constitution was to take effect as soon as nine States had ratified it, its operation to be limited to the number ratifying. When this condition had been complied with, the Continental Congress enacted the legislation neces- sary to set the wheels of the new Government in motion. It fixed a day for the appointment of Presidential Elec- tors by the States, a day for the Electors to meet and cast their votes for President and Vice-President, and a day for the meeting of the new Congress. The day fixed upon for Congress to meet was March 4, 1789; but a quorum of the House of Representatives was not secured until April 1, and of the Senate not until April 6, owing to various causes. On the second of these dates the Houses met in joint convention to witness the counting of the Electoral votes. Washington was declared elected Pres- ident, John Adams Vice-President. Messengers were at once sent to the President- and Vice-President-elect summoning them to New York, which was then the seat of government. Here Washington was inaugurated April 30. The Legislative and Executive branches of the Government were now in motion. •G. T. Curtis: History of the Constitution, Vol. II, pp. 495, 496. CHAPTER XXII AMENDMENTS MADE TO THE CONSTITUTION The American Government. Sections 457-4.60; 467-U74; 536-537; 604-607; 623-652. It was anticipated that amendments to the Constitu- tion would be found necessary, and a method was ac- cordingly provided for making them. This method em- braces the two steps that will now be described. 326. Proposing an Amendment. — This may be done in either of two ways. First, Congress may propose an amendment by a two-thirds vote of each House; sec- ondly, Congress shall, on the application of the Legisla- tures of two-thirds of the States, call a convention of the States for that purpose. The first way is evidently the simpler and more direct of the two, and it is the one that has always been followed. 327. Ratifying an Amendment. — This also may be done in one of two ways. One is to submit the amend- ment to the Legislatures of the States, and it becomes a part of the Constitution when it is ratified by three- fourths of them. The other way is to submit the amend- ment to conventions of the States, and it becomes binding when three-fourths of such conventions have given it their approval. Congress determines which of the two ways shall be adopted. The first is the simpler and more direct, and it has been followed in every instance. 328. Amendments I-X. — One of the principal ob- jections urged against the Constitution when its ratifica- tion was pending in 178 7-88, was the fact that it lacked a bill of rights. Such a bill, it may be observed, is a 231! AMENDMENTS MADE TO THE CONSTITUTION 233 statement of political principles and maxims. The States had fallen into the habit of inserting such bills in their constitutions. At its first session, Congress' undertook to remedy this defect. It proposed twelve amendments, ten of which were declared duly ratified, December 15, 1791. These amendments, numbered I to X, are often spoken of as a bill of rights. 329. Amendment XI. — Article III of the Constitu- tion made any State of the Union suable by the citizens of the other States and by citizens or subjects of foreign states. (See section 2, clause 1.) This was obnoxious to'some of the States, and when such citizens began to exercise their right of suing States a movement was set on foot to change the Constitution in this respect. An amendment having this effect was duly proposed, and was declared ratified January 8, 1798. 330. Amendment XII. — According to the original Constitution, the members of the Electoral colleges cast both their ballots for President and neither one for Vice- President. The rule was that the candidate having most votes should be President, and the one having the next larger number Vice-President, provided in both cases it was a majority of all the Electors. In 1800 it happened that Thomas Jefferson and Aaron Burr had each an equal number of votes and a majority of all. The Democratic-Republican party, to which they be- longed, had intended Jefferson for the first place and Burr for the second. The election went to the House of Representatives, and was attended by great excite- ment. Steps were taken to prevent a repetition of such a dead-lock. This was accomplished by an amendment declared ratified September 25, 1804. 33 1 . Amendment XIII. — Slavery was the immediate exciting cause of the Civil War, 1861-65. In the course 234 T HE GOVERNMENT OF THE UNITED STATES of the war President Lincoln, acting as commander-in- chief of the army and navy of the United States, declared all the slaves held in States and parts of States that were engaged in the war against the Union free. The other Slave States, Delaware, Maryland, Kentucky, Tennes- see, and Missouri, and parts of Louisiana and Virginia, his power did not reach as they were not in rebellion. The conviction grew strong throughout the country that slavery should not survive the war. This conviction asserted itself in Amendment XIII, which took effect December 18, 1865. 332. Amendment XIV.— At the close of the Civil War Congress was called upon to deal with the im- portant question of readjusting the States that had seceded from the Union. It was thought necessary to incorporate certain new provisions into the Constitution. So an elaborate amendment was prepared and duly rati- fied. It was declared in force July 28, 1868. The most far-reaching of the new provisions were those in relation to citizenship contained in the first section. 333. Amendment XV. — Down to 1870 the States had fixed the qualifications of their citizens for voting to suit themselves. At that time most of the States, and all of the Southern States, denied suffrage to the negroes. The emancipation of the slaves, together with Amend- ment XIV, made the negroes citizens of the United States and of the States where they resided. But the negroes had no political power, and so no direct means of defending their civil rights. To remedy this state of things a new amendment was proposed and ratified, bearing the date of March 30, 1870. It declared that the right of citizens to vote should not be abridged, either by the United States or by any State, on account of race, color, or previous condition of servitude. CHAPTER XXIII THE SOURCE AND NATURE OF THE GOVERNMENT The American Government. Sections 223-262; 610-613; 615-620; 6s5- 6 5 8 ; 773-782- The source of the Government of the United States, and some of its leading features, are either stated or suggested in the first paragraph of the Constitution. This paragraph is commonly called the Preamble, but it is really an enacting clause, since it gives the instrument its whole force and validity. 334. The 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." The following propositions are either asserted or im- plied in this language : — 1. The Government proceeds from the people of the United States. They ordain and establish it. It is therefore: a government of the people, by the people, and for the people. 2. The ends for which it is ordained and established are declared. It is to form a more perfect union, estab- lish justice, etc. 3. It is a constitutional government. It rests upon a written fundamental law. On the one part it is opposed 235 236 THE GOVERNMENT OF THE UNITED STATES to an absolute government, or one left to determine its own powers, like that of Russia ; and on the other, it is opposed to a government having an unwritten consti- tution, consisting of maxims, precedents, and charters, like that of England. 4. The terms Union and United States suggest that it is a federal government. The peculiarity of a federal state is that local powers are entrusted to local author- ities, while general powers are entrusted to general or national authorities. How this division of powers orig- inated, and how it affected the country in 1785-1789, was pointed out in the last chapter. The government of a State has been described in Part III. of this work. Part IV. is devoted to the Government that is over all the States. 5. The same terms suggest that the Government is one of enumerated powers. It must be remembered that when the Constitution was framed thirteen State governments were already in existence, and that no one dreamed of destroying them or of consolidating them into one system. ' The purpose was rather to delegate to the new Government such powers as were thought necessary to secure the ends named in the Preamble, and to leave to the States the powers that were not delegated, unless the contrary was directly specified. 335. The Constitution in Outline. — The Constitu- tion is divided into seven Articles, which are again divided into sections and clauses. Article I. relates to the Legislative power. Article II. relates to the Executive power. Article III. relates to the Judicial power. Article IV. relates to several subjects, as the rights and privileges of citizens of a State in other States, the surrender of fugitives from justice, the admission of SOURCE AND NATURE OF THE GOVERNMENT 237 new States to the Union, the government of the National territory, and a guarantee of a republican form of government to every State. Article V., a single clause, relates to the mode of amending the Constitution. Article VI. relates to the National debt and other engagements contracted previous to 1789 and the su- premacy of the National Constitution and laws. Article VII., consisting of a single sentence, pre- scribes the manner in which the Constitution should be ratified, and the time when it should take effect. The fifteen Amendments relate to a variety of sub- jects, as has been explained in Chapter XXII. 336. The Three Departments. — It has been seen that the Constitution distributes the powers of government among three departments, which it also ordains and establishes. This was done partly to secure greater ease and efficiency of working, and partly as a safe- guard to the public liberties. Absolute governments are simple in construction, concentrating power in the hands of one person, or of a few persons; while free governments tend to division and separation of powers. In the words of Mr. Madison: " The accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. "* ' »• The Federalist, No. 47. CHAPTER XXIV THE COMPOSITION OF CONGRESS AND THE ELECTION OF ITS MEMBERS The American Government. Sections 263-301; 324-330. 337. Congress a Dual Body. — From an early time, the English Parliament has consisted of two chambers, the House of Commons and the House of Lords. Such a legislature is called bicameral, as opposed to one that is unicameral. The words mean consisting of two cham- bers and of one chamber. The great advantage of a bicameral legislature is that it secures fuller and more deliberate consideration of business. One house acts as a check or balance to the other; or, as Washing- ton once put it, tea cools in being poured from the cup into the saucer. Countries that English- men have founded have commonly followed the example of the Mother Country in respect to the duality of their legislatures. Such was the case with the Thirteen Colonies, but such was not the case with the American Confederation from 1775 to 1789. In the Convention that framed the Constitution, the question arose whether the example of England and of the Colonies, or the example of the Confederation, should be followed. It wasfinally decided that all the legislative powers granted to the new Government should be vested in a Congress 288 CONGRESS AND ELECTION OF ITS MEMBERS 239 which should consist of a Senate and a House of Repre- sentatives. 338. Composition of the Two Houses. — The House of Representatives is composed of members who are apportioned to the several States according to their respective numbers of population, and are elected for two years by the people of the States. The Senate is composed of two Senators from each State who are chosen by the Legislatures thereof, and each Senator has one vote. The composition of Congress at first sharply divided the Federal Convention. Some members wanted only one house. Others wanted two houses. Some members were determined that the States should be represented in the new Congress equally, as had been the case in the old one. Others were determined that representation should be according to population. These controversies were finally adjusted by making two houses, in one of which representation should be equal and in the other proportional. This arrangement explains why New York and Nevada have each two Senators, while they have respectively thirty-seven members and one member in the House of Representatives. This equality of representation in the Senate is the most unchangeable part of the National Government. The Constitution expressly provides that no State shall, without its- own consent, ever be deprived of its equal suffrage in the Senate, which is equivalent to saying that it shall never be done at all. No such provision is found in relation to any other subject. 339. Qualifications of Representatives and Sena- tors. — A Representative must be twenty-five years old, and must be a citizen of the United States of at least 24O THE GOVERNMENT OF THE UNITED STATES seven years' standing. A Senator must be thirty years of age and must be nine years a citizen. The Representative and the Senator alike must be an inhabitant of the State in which he is elected or for which he is chosen. Previous absence from the State, even if protracted, as in the case of a public minister or consul to a foreign country, or a traveler, does not unfit a man to sit in either house. Representatives are not required by law to reside in their districts, but such is the custom. No person can be a Senator or Representative, or an Elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who having once taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an Executive or Judicial officer of any State, to support the Constitution of the United States, has afterwards engaged in insurrection or rebellion against the same, or given assistance to their enemies. But Congress may remove this disability by a two-thirds vote of each house. 340. Regulation of Elections. — The times, places, and manner of electing Senators and Representatives are left, in the first instance, to the Legislatures of the States, but they are so left subject to the following rule: " Con- gress may, at any time, by law, make or alter such reg- ulations, except as to the places of choosing Senators." Defending this rule in 1788, Mr. Hamilton said: "Every government ought to contain in itself the means of its own preservation; while it is perfectly plain that the States, or a majority of them, by failing to .make the necessary regulations, or by making improper ones, could break up or prevent the first elections of the Houses of CONGRESS AND ELECTION OF ITS MEMBERS 241 Congress. " The right to name the places where Senators shall be chosen is denied to Congress for a very sufficient reason. If Congress possessed that power it could deter- mine, or at least largely influence, the location of the State capitals. 341. Elections of Senators. — Previous to 1866, the Legislature of every State conducted these elections as it pleased. Sometimes the two houses met in joint con- vention, a majority of the whole body determining the choice. Sometimes the two houses voted separately, a majority of each house being required to elect. It is obvious that the two methods might operate very differ- ently. If the same political party had a majority in both houses, the result would probably be the same in either case; but if the two houses were controlled by different parties, then the party having the majority of votes on a joint ballot would probably elect the Senator. If the second plan was followed, and the two houses differed in regard to a choice, there were delays, and elec- tions were sometimes attended by serious scandals. So Congress, in 1866, passed a law providing that the Legis- lature next preceding the expiration of a Senator's term, in any State, shall, on the second Tuesday after its meeting and organization, proceed to elect a Senator in the following manner: — 1. Each house votes, viva voce, for Senator. The next day at twelve o'clock the two houses meet in joint session, and if it appears from the reading of the journals of the previous day's proceedings that the same person has received a majority of all the votes cast in each house, he is declared duly elected. 2. If no election has been made, the joint assembly proceeds to vote, viva voce, for Senator, and if any 242 THE GOVERNMENT OF THE UNITED STATES person receive a majority of all the votes of the joint assembly, a majority of all the members elected to both houses being present and voting, such person is declared duly elected. 3. If a choice is not made on this day, then the two houses must meet in joint assembly each succeeding day at the same hour, and must take at least one vote, as before, until a Senator is elected or the Legislature ad- journs. 4. If a vacancy exists on the meeting of the Legislature of any State, said Legislature must proceed, on the second Tuesday after its meeting and organization, to fill such vacancy in the same manner as in the previous case; and if a vacancy occur when the session is in prog- ress, the Legislature must proceed, as before, to elect on the second Tuesday after they have received notice of the vacancy. 342. "Vacancies. — When a vacancy occurs in the recess of the Legislature of a State, owing to death or other cause, the Governor makes an appointment that continues until the next meeting of the Legislature, when the vacancy is filled in the usual manner. In all cases of vacancies the appointed or newly elected Senator only fills out the term of his predecessor. 343. Division of Senators. — The Senators are equally divided, or as nearly so as may be, into three classes with respect to the expiration of their terms, as follows: Class 1, 1791, 1797 1893, 1899 Class 2, 1793, 1799 1895, 1901 Class 3, 1795, 1801 1897, 1903 The two Senators from a State are never put in the same class; and as the terms of the first Senators from a State now admitted to the Union expire with the terms CONGRESS AND ELECTION OF ITS MEMBERS 243 of the classes to which they are assigned, one or both of them may serve less than the full term of six years. 344. Electors of Representatives. — The persons who may vote for the most numerous branch of the State Legislature in any State, or the house of representatives, may also vote for members of the National House of Rep- resentatives. Usually, however, a State has only one rule of suffrage; that is, a person who may vote for members of the lower house of the State Legislature may vote also for all State and local officers. Practically, there- fore, the rule is that State electors are National electors; or, in other words, the Constitution adopts for its purposes the whole body of the State electors, whoever they may be. In Wyoming, Colorado, Idaho, and Utah women vote on the same terms and conditions as men. But in most of the States only males twenty-one years of age and upwards, having certain prescribed qualifica- tions, are permitted to vote. In Massachusetts, Missis- sippi, and many other States, there is an educational qualification for the suffrage. 345. Apportionment of Representatives in the Constitution. — The Constitution provides that members of the House of Representatives shall be apportioned among the several States according to their respective numbers. The original rule for determining these num- bers was that all free persons, including apprentices or persons bound to service for a term of years, but excluding Indians not taxed (or Indians living in tribal relations), and three-fifths of all other persons, should be counted. The "other persons" were the slaves. The abolition of slavery and the practical disappearance of apprentice- ship have considerably simplified matters! The Four- teenth Amendment to the Constitution provides that Representatives shall be apportioned according to 244 THE GOVERNMENT OF THE UNITED STATES population, counting the whole number of persons in a State, excluding Indians who are not taxed. This rule is applied to the people of the States regardless of age, sex, color, or condition. The Constitution further pro- vides that the number of Representatives shall not exceed one for every 30,000 people, but that every State shall have one Representative regardless of popula- tion. 346. The Census.— The Constitution of 1*787 fixed the number of members of the House of Representatives at 65, and apportioned them among the States as best it could, using the information in respect to population that was accessible. It also provided that an actual enumera- tion of the people should be made within three years of the first meeting of Congress, and that it should be re- peated thereafter within every period of ten years. This enumeration was also called the census. In conformity with this provision, decennial censuses of the United States have been taken in 1790, 1800, 1810, etc. 347. Method of Apportionments. — The decennial apportionment of members of the House is made by Con- gress, and that body has performed the duty in different ways. The apportionment of 1893 was made in the fol- lowing manner: First, the House was conditionally made to consist of 356 members. Next, the population of the country, not counting the Territories, was divided by this number, which gave a ratio of 173,901. The popu- lation of every State was then divided by this ratio and the quotients added, giving 339. The numbers of Repre- sentatives indicated by these quotients were then assigned to the several States, and one Representative each in addition to the seventeen States having fractions larger than one-half the ratio, thus making the original num- ber, 356. CONGRESS AND ELECTION OF ITS MEMBERS 245 When a new State conies into the Union, its Rep- resentative or Representatives are added to the number previously constituting the House. 1 348. Elections of Representatives. — For fifty years Congress allowed the States to elect their Represen- tatives in their own way. The State Legislatures fixed the times and the places and regulated the manner of holding the elections; the elections were conducted with- out any regulation or control whatever being exercised by the National Government. Very naturally there were considerable differences of practice. Congress has now exercised its power of regulation in three points : 1. In 1842 Congress provided by law that, in every case where a State was entitled to more than one Representative, the members to which it was entitled should be elected by districts composed of contiguous territory equal in number to the number of Representa- tives to be chosen, no district electing more than one. It is, however, provided that when the number of Repre- sentatives to which a State is entitled has been diminished at any decennial apportionment, and the State Legislature has failed to make the districting conform to the change, 1 The Numbers of the House and the Ratios of Representation are set down in the following table, with the period: Period. Size of House. Ratio. 1789-1793 65 1793-1803 105 33,000 1803-1813 141 33,000 1813-1823 181 35,000 1823-1833 212 40,000 1833-1843 240 47,700 1843-1853 223 70,680 1853-1863 234 93,503 1863-1873 241 127,941 1873-1883 292 130,533 1883-1893 332 151,911 1893-1903 856 173,901 1903-1913 386 194,182 246 THE GOVERNMENT OF THE UNITED STATES the whole number shall be chosen by the State as a unit and not by districts. It is also provided that if the number apportioned to any State is increased, and the Legislature fails to district the State, the old districting shall stand, but that the additional member or members shall be elected by the State as a whole. Representa- tives elected on a general ticket, and not by district tickets, from States having more than one member, are called Representatives-at-large. Since 1872 Congress has prescribed that the districts in a State must, as nearly as practicable, contain an equal number of inhabitants. Congress has never constituted the Congressional dis- tricts, as they are called, but has always left that duty to the State Legislatures. As a rule the division of the States into districts, when once made, is allowed to stand for ten years, or until a new apportionment is made; but not unfrequently it is changed, or the State is re-districted, as the saying is, for the sake of obtaining some political advantage. The operation called "gerrymandering" 1 is only too well known in American history. 2. In 1871 Congress enacted that all votes for Repre- sentatives should be by printed ballots, but since 1899 voting machines also have been allowed. 3. In 1872 Congress prescribed that the elections should be held on the Tuesday next after the first Monday in November in every even numbered year, 1874, 1876 .... 1896, 1898, etc. Later legislation exempted from the 'The Century Dictionary gives the following history of this word: "Gerrymander . In humorous imitation of Salamander ; from a fancied resemblance of this animal to a map of one of the districts formed in the redistricting of Massachusetts by the Legislature in 1811, when Elbridge Gerry was Governor. The districting was intended (it was believed, at the instigation of Gerry), to secure unfairly the election of a majority of Democratic Senators. It is now known, however, that he was opposed to the measure." CONGRESS AND ELECTION OF ITS MEMBERS 247 operation of this rule such States as had prescribed a different day in their constitutions. Accordingly Oregon elects her Representatives the first Monday of June, Vermont hers the first Tuesday of September, and Maine hers the second Monday of the same month. In nearly every case, if not indeed in every one, the State elects State officers at the same time that the elections of the National House of Representatives are held. Moreover, the elections of Representatives are con- ducted by the same officers that conduct the State elec- tions. These officers count the votes and make the returns required by law. The Representative receives his certificate of election from the Governor of his State. If a vacancy occurs in any State, owing to any cause, the Governor issues a proclamation, called a writ of elec- tion, appointing a special election to fill the vacancy. 349. Compensation of Members of Congress. — Senators and Representatives receive a compensation from the Treasury of the United States. Congress fixes by law the pay of its own members, subject only to the President's veto. 1 1 The compensation at different times is exhibited in the follow- ing table : 1789-1815 $ 6.00 a day. 1815-1817 1500.00 a year. 1817-1855 8.00 a day. 1855-1865 3000.00 a year. 1865-1871 5000.00 a year. 1871-1873 7500.00 a year. 1873-1907 5000.00 a year. 1907- 7500.00 a year. Save for a period of only two years, Senators and Representa- tives have always received a mileage or traveling allowance. At present this allowance is twenty cents a mile for the necessary dis- tance traveled in going to and returning from the seat of govern- ment. The Vice-President and the Speaker of the House of Representatives now receive each a salary of $ 12,000 a year. 248 THE GOVERNMENT OF THE UNITED STATES 350. Privileges of Members of Congress. — In all cases but treason, felony, and breach of the peace, Sen- ators and Representatives are exempt from arrest during their attendance at the session of their respective houses and in going to and returning from the same. In other words, unless he is charged with one or more of the grave offenses just named, a member of either house cannot be arrested from the time he leaves his home to attend a session of Congress until he returns to it. Further, a Senator or Representative cannot be held responsible in any other place for any words that he may speak in any speech or debate in the house to which he belongs. This rule protects him against prosecution in the courts, even if his words are slanderous. Still more, speeches or debates, when published in the official report called "The Congressional Record," are also privileged matter, and the speakers cannot be held accountable for libel. This freedom from arrest and this exemption from responsibility in respect to words spoken in the discharge of public duty, are not privileges accorded to the Senator and Representative in their own interest and for their own sake, but rather in the interest and for the sake of the people whom they represent. If they were liable to arrest for any trivial offense, or if they could be made to answer in a court of law for what they might say on the floor of Congress, the business of the country might be interfered with most seriously. The rights of legislative bodies must be rigidly maintained. The one rule given above is necessary to protect the freedom of representation, the other to protect the free- dom of debate. 35 1 . Prohibitions Placed Upon Members of Con- gress. — No Senator or Representative can, during the time for which he was elected, be appointed to any civil CONGRESS AND ELECTION OF ITS MEMBERS 249 office under the United States that is created, or the pay of which is increased, during such time. Appointments to many offices, and to all of the most important ones, are made by the President with the advice and consent of the Senate. Moreover, the President is always interested in the fate of measures that are pending before Congress, or are likely to be introduced into it. There is accord- ingly a certain probability that, if he were at liberty to do so, the President would enter into bargains with ' members of Congress, they giving him their votes and he rewarding them with offices created or rendered more lucrative for that very purpose. This would open up a great source of corruption. A Senator or Representa- tive may, however, be appointed to any office that ex- isted at the time of his election to Congress, provided the compensation has not been since increased. Still he cannot hold such office while a member of Congress. On the other hand, the Constitution expressly declares: "No person holding any office under the United States shall be a member of either house during his continu- ance in office." 352. Length of Congress. — The term Congress, is used in two senses. It is the name of the National Legislature as a single body, and it is also the name of so much of the continuous life of that body as falls within the full term of office of the Representative. We speak of Congress, and of a Congress. Thus there are a First, Second, .... and Fifty-fourth Congress, filling the periods 1789-1791, 1791-1793 1895-1897. The length of a Congress was fixed when - the Convention of 1787 made the Representative's term two years. The time of its beginning and ending was due to an accident. The Old Congress provided in 1788 for setting the new Government in operation; it named 250 THE GOVERNMENT OF THE UNITED STATES the first Wednesday of March, 1789, as the day when the two Houses of Congress should first assemble, which happened to be the fourth day of that month. Thus a point of beginning was fixed and, as the rule has never been changed, our Congresses continue to come and go on the fourth of March of every other year. The pres- ent procedure is as follows: Representatives are chosen in November of every even year, 1892, 1894, 1896, while their terms, and so the successive Congresses, begin on March 4 of every odd numbered year, 1893, 1895, 1897. While Representatives come and go together at in- tervals of two years, Senators come and go in thirds at the same intervals. The result is that while a House of Representatives lasts but two years, the Senate is a per- petual body. 353. Meeting of Congress. — Congress must assem- ble at least once every year, and such meeting is on the first Monday of December, unless by law it names another day. Hence every Congress holds two regular sessions. Furthermore, Congress may by law provide for special sessions, or it may hold adjourned sessions, or the President, if he thinks it necessary, may call the houses together in special session. As a matter of fact, all of these things have been done at different times. As the law now stands the first regular session of Congress begins on the first Monday of December following the beginning of the Representative's term, and it may continue until the beginning of the next regular session, and commonly does continue until midsummer. The second regular session begins the first Monday of December, but can continue only until March 4 of the next year, or until the expiration of the Representative's term. It is the custom to call these the long and the short sessions. CHAPTER XXV THE ORGANIZATION OF CONGRESS AND ITS METHOD OF DOING BUSINESS The American Government. Sections 275; 2g3~2o$; 312-323; 33i-3to- 354. Officers of the Senate.— The Vice-President of the United States is President of the Senate, but has no vote unless the Senators are equally divided. The Senate chooses its other officers, the Secretary, Chief Clerk, Executive Clerk, Sergeant-at-Arms, Door Keeper, and Chaplain. The duties of these officers are indicated by their titles. The Senators also choose one of their number President pro tempore, who presides in the absence of the Vice-President or when he has succeeded to the office of President. The Senate is a perpetual body, and is ordinarily fully organized, although not in actual session, at any given time. 355. Officers of the House of Representatives. — The House chooses one of its members Speaker, who pre- sides over its proceedings. It also chooses persons who are not members to fill the other offices, the Clerk, Sergeant-at-Arms, Postmaster, and Chaplain. The Speaker has the right to vote on all questions, and must do so when his vote is needed to decide the question that is pending. He appoints all committees, designat- ing their chairmen, and is himself chairman of the important Committee on Rules. His powers are very great, and he is sometimes said to exercise as much 251 252 THE GOVERNMENT OF THE UNITED STATES influence over the course of the Government as the President himself. The Speaker's powers cease with the death of the House that elects him, but the Clerk holds over until the Speaker and Clerk of the next House are elected, on which occasions he presides. It is com- mon to elect an ex-member of the House Clerk. 356. The Houses Judges of the Election of the^r Members. — The Houses are the exclusive judges of the elections, returns, and qualifications of their members; that is, if the question arises whether a member has been duly elected, or whether the returns have been legally made, or whether the member himself is qualified, the house to which he belongs decides it. In the House of Representatives contested elections, as they are called, are frequent. As stated before, the Governor of the State gives the Representative his certificate of elec- tion, which is duly forwarded to Washington addressed to the Clerk of the House next preceding the one in which the Representative claims a seat. The Clerk makes a roll of the names of those who hold regular certificates, and all such persons are admitted to take part in the organization of the House when it convenes. Still such certificate and admission settle nothing when a contestant appears to claim the seat. The House may then investigate the whole case from its very beginning, and confirm the right of the sitting member to the seat, or exclude him and admit the contestant, or declare the seat vacant altogether if it is found that there has been no legal election. In the last case, there must be a new election to fill the vacancy. The Governor of the State also certifies the election of the Senator. A Senator- elect appearing with regular credentials is admitted to be sworn and to enter upon his duties, but the Senate is still at liberty to inquire into his election and qualifi- THE ORGANIZATION OF CONGRESS 253 cations, and to exclude him from his seat if, in its judg- ment, the facts justify such action. In respect to qualifications, it may be said that persons claiming seats, or occupying them, have been pronounced disqualified because they were too young, or because they had not been naturalized a sufficient time, or because they have been guilty of some misconduct. From the decision of the Houses in such cases there is no appeal. 357. Quorums. — The Houses cannot do business without a quorum, .which is a majority of all the members; but a smaller number may adjourn from day to day, and may compel the attendance of absent members. Whether a quorum is present in the House of Representatives or not, is determined by the roll-call or by the Speaker's count. If a quorum is not present, the House either adjourns or it proceeds, by the method known as the call of the House, to compel the attendance of absentees. In the latter case officers are sent out armed with writs to arrest members and bring them into the chamber. When a quorum is obtained, the call is dispensed with and business proceeds as before. In several recent Con- gresses a rule has prevailed allowing the names of members who were present but who refused to vote to be counted, if necessary, for the purpose of making a quorum. 358. Rules of Proceedings. — Each house makes its own rules for the transaction of business. The rules of the Senate continue in force until they are changed, but those of the House of Representatives are adopted at each successive Congress. Still there is little change even here from Congress to Congress. Owing to the greater size of the body, the rules of the House are much more complex than the rules of the Senate. The rules of both Houses, like the rules of all legislative 254 THE GOVERNMENT OF THE UNITED STATES assemblies in English-speaking countries, resfultimately upon what is known as Parliamentary Law, which is the general code of rules that has been progressively developed by the English Parliament to govern the transaction of its business. Still many changes and modifications of this law have been found necessary, to adapt it to the purposes of Congress, and especially of the House of Representatives. 359. Power to Punish Members. — The Houses may punish members for disorderly behavior, and by a vote of two-thirds may expel members. These necessary powers have been exercised not unfrequently. In 1842 the House of Representatives reprimanded J. R. Gid- dings, of Ohio, for introducing some resolutions in rela- tion to slavery; while the Senate in 1797 expelled William Blount, of Tennessee, for violating the neutrality laws, and in 1863 Mr. Bright, of Indiana, for expressing sym- pathy with the Southern secessionists. From the deci- sions of the Houses in such cases there is no appeal. 360. Journals and Voting. — The Houses are re- quired to keep a full history of their proceedings in records called journals, and to publish the same except such parts as in their judgment require secrecy. But as the House of Representatives always sits with open doors, the provision in respect to secrecy has no practical effect in that body. It is also null in the Senate except in executive sessions. These are secret sessions held for the transaction of special business sent to the Senate by the President, as the consideration of treaties and nomi- nations. The yeas and nays must be called, and must be entered on the journal, when such demand is made by one-fifth of the members present. The object of these rules is to secure full publicity in regard to what is done in Congress. On the call of the roll, which is the only THE ORGANIZATION OF CONGRESS 255 form of voting known in the Senate, members are entered as voting yea or nay, as absent or not voting. In the House votes are taken in three other ways: by the viva voce method, the members answering aye or no when the two sides of the question are put; by the mem- bers standing until the presiding officer counts them; by the members passing between two men called tellers, who count them and report the numbers of those voting on the one side and on the other, to the Chair. 36 1 . Mode of Legislating. — A bill is a written or printed paper that its author proposes shall be enacted into a law. Every bill that becomes a law of the United States must first pass both Houses of Congress by ma- jority votes of quorums of their members. Still more, this must be done according to the manner prescribed by the rules, which on this subject are very minute. For example, no bill or joint resolution can pass either house until it has been read three times, and once at least in full in the open house. The presiding officers of the two Houses certify the passage of bills by their signatures. When a bill has thus passed Congress it is sent to the President for his action, who may do any one of three things with it. 362. Action of the President. — 1. The President may approve the bill, in which case he signs it and it becomes a law. 2. He may disapprove the bill, in which case he sends it back to the house that first passed it, or in which it originated, with his objections stated in a written mes- sage. In such case he is said to veto it. This house now enters the message in full on its journal and pro- ceeds to reconsider the bill. If two-thirds of the mem- bers, on reconsideration, vote to pass the bill, it is sent to the other house, which also enters the message 256 THE GOVERNMENT OF THE UNITED STATES on its journal and proceeds to reconsider. If two-thirds of this house also vote for the bill, it becomes a law notwithstanding the President's objections. The bill is now said to pass over the President's veto. In voting on vetoed bills the Houses must vote by yeas and nays, and the names of those voting are entered on the journal. If the house to which the bill is returned fails to give it a two-thirds vote, the matter goes no farther; if the second one fails to give it such vote, the failure is also fatal. In either case the President's veto is said to be sustained. 3. The President may keep the bill in his possession, refusing either to approve or disapprove it. In this case, it also becomes a law, when ten days, counting from the time that the bill was sent to him, have expired, not in- cluding Sundays. However, to this rule there is one important exception. If ten days do not intervene be- tween the time that the President receives the bill and the adjournment of Congress, not counting Sundays, it does not become a law. Accordingly the failure of the President to sign or to return a bill passed within ten days of the adjournment defeats it as effectually as a veto that is sustained by Congress could defeat it. The President sometimes takes this last course, in which case he is said to "pocket" a bill or to give it a "pocket" veto. 363. Orders, Resolutions, and Votes. — Every order, resolution, or vote to which the concurrence of both Houses of Congress is necessary, save on questions of adjournment, must be sent to the President for his approval. This rule prevents Congress enacting meas- ures to which the President may be opposed by calling them orders, resolutions, or votes and not bills. Still the resolutions of a single house, or joint resolutions that merely declare opinions and do not enact legislation, are not subject to this rule. Nor is it necessary for the Pres- THE ORGANIZATION OP CONGRESS 2$ 7 ident to approve resolutions proposing amendments to the Constitution of the United States. 364. The Committee System. — To a great extent legislation is carried on in both Houses by means of com- mittees. These are of two kinds. Standing committees are appointed on certain subjects, as commerce, the post- office, and foreign affairs, for a Congress. Special com- mittees are appointed for special purposes. The House of Representatives has about sixty standing committees; the Senate not quite so many. All House committees are appointed by the Speaker. Senate committees are elected by the Senators on caucus nominations. The standing committees of the House and of the Senate consist of from three to seventeen members each. The committees draw up bills, resolutions, and re- ports, bringing them forward in their respective houses. To them also bills and resolutions introduced by single members are almost always referred for investigation and report before they are acted upon in the house. 365. Adjournments. — The common mode of ad- journment is for the two Houses to pass a joint resolution to that effect, fixing the time. The President may, in case of a disagreement between the Houses respecting the time of adjournment, adjourn them to such time as he thinks proper; but no President has ever had occasion to do so. Neither House, during the session of Congress, can, without the consent of the other, adjourn for more than three days, or to any other place than the one in which Congress shall be sitting at the time. It is therefore practically impossible for the two Houses to sit in differ- ent places, as one in Washington and the other in Bal- timore. As is elsewhere explained, the Senate may sit alone to transact executive business, if it has been con- vened for that purpose. CHAPTER XXVI THE IMPEACHMENT OF CIVIL OFFICERS The American Government. Sections 302-311; 4.84. 366. Irripeachment Defined. — In the legal sense, an impeachment is a solemn declaration by the impeaching body that the person impeached is guilty of some serious misconduct that affects the public weal. In the United States, the President, Vice-President, and all other civil officers are subject to impeachment for treason, bribery, or other high crimes and misdemeanors. In England, military officers and private persons may be impeached as well as civil officers. The other crimes and misde- meanors mentioned in the Constitution are not necessa. rily defined or prohibited by the general laws. In fact, few of them are so treated. Impeachment is rather a mode of punishing offenses that are unusual, and that, by their very nature, cannot be dealt with in the general laws. Thus Judge Pickering was impeached in 1803 for drunkenness and profanity on the bench, and Judge Chase the next year for inserting criticisms upon Presi- dent Jefferson's administration in his charge to a grand jury, while President Johnson was impeached in 1867, among other things, for speaking disparagingly of Con- gress. But none of these acts were prohibited by the laws. Senators and Representatives are exempt from impeachment. 367. The Power of the House.— The House of Representatives has the sole power of impeachment, as £58 THE IMPEACHMENT OF CIVIL OFFICERS 259 the House of Commons has in England. The following are the principal steps to be taken in such case. The House adopts a resolution declaring that Mr. be im- peached. Next it sends a committee to the Senate to inform that body of what it has done, and that it will in due time exhibit articles of impeachment against him and make good the same. The committee also demands that the Senate shall take the necessary steps to bring the accused to trial. Then the House adopts formal articles of impeachment, defining the crimes and misdemeanors charged, and appoints a committee of five managers to prosecute the case in its name, and in the name of the good people of the United States. These articles of impeachment are similar to the counts of an indictment found by a grand jury in a court of law. 368. The Power of the Senate. — The action of the House of Representatives settles nothing as to the guilt or innocence of the person accused. The Constitution places the power to try impeachments exclusively in the Senate, as in England it is placed exclusively in the House of Lords. So when the House has taken the first step described in the last paragraph, the Senate takes the action that is demanded. It fixes the time of trial, gives the accused an opportunity to file a formal answer to the charges that have been made against him, and cites him to appear and make final answer at the time that has been fixed upon for the trial. The Senators sit as a court, and when acting in such a capacity they must take a special oath or affirmation. When the President is tried, the Chief Justice presides. No person shall be convicted unless two-thirds of the Senators present vote that he is guilty of one or more of the offenses charged. As the Vice-President would have a personal interest in the issue should the President be put on trial, owing to 26o THE GOVERNMENT OF THE UNITED STATES the fact that the Vice-President succeeds to the presi- dency in case of the removal of the President, it would manifestly be a gross impropriety for him to preside in such case. He would be in a position to influence the verdict. 369. The Trial. — The Senate sits as a court, as be- fore explained. The ordinary presiding officer occupies the chair on the trial, save in the one excepted case of the President. At first the House of Representatives at- tends as a body, but afterwards only the five managers are expected to attend. The accused may attend in person and speak for himself; he may attend in person, but entrust the management of his cause to his counsel; he may absent himself altogether, and either leave his cause to his counsel or make no defense whatever. Wit- nesses may be brought forward to establish facts, and all other kinds of legal evidence may be introduced. The managers and the counsel of the accused carry on the case according to the methods established in legal tribu- nals: When the case and the defense have been pre- sented, the Senators discuss the subject in its various bearings, and then vote yea or nay upon the various arti- cles that have been preferred. The trial is conducted with open doors, but the special deliberations of the Senate are carried on behind closed doors. A copy of the judgment, duly certified, is deposited in the office of the Secretary of State. 370. Punishment in Case of Conviction. — The Constitution declares that judgment in cases of convic- tion shall-not go further than to work the removal of the officer convicted from his office, and to render him dis- qualified to hold and enjoy any office of honor, trust, or profit under the United States. It declares also that all persons who are impeached shall be removed from office THE IMPEACHMENT OF CIVIL OFFICERS 26 1 on conviction by the Senate. Here the subject is left. It is therefore for the Senate to say whether, in a case of conviction, the officer convicted shall be declared dis- qualified to hold office or not, in the future, and this is as far as the discretion of the Senate extends. Whatever the punishment may be, it is final and perpetual. The Pres- ident is expressly denied the power to grant reprieves and pardons in impeachment cases. This is because such power, once lodged in his hands, would be peculiarly liable to abuse. But this is not all. If the crimes or misdemeanors of which an officer has been convicted are contrary to the general laws, he is still liable to be in- dicted, tried, judged, and punished by a court of law just as though he had not been impeached. 37 I . Impeachment Cases. — There have been but eight such cases in the whole history of the country. William Blount, Senator from Tennessee, 1797-98 ; John Pickering, District Judge for New Hampshire, 1803-1804 ; Samuel Chase, Justice of the Supreme Court, 1804- 1805; James Peck, District Judge for Missouri, 1829- 1830; W. W. Humphreys, District Judge for Tennessee, 1862 ; Andrew Johnson, President of the United States, 1867 ; W. W. Belknap, Secretary of War, 1876 ; Charles Swayne, District Judge for Northern Florida, 1905. Only Pickering and Humphreys were found guilty. CHAPTER XXVII THE GENERAL POWERS OF CONGRESS The American Government. Sections 341-418. In a free country the legislative branch of the govern- ment tends to become the most powerful of all the branches, overtopping both the executive and the judi- ciary. This is true in the United States. The powers of Congress are divisible into general and special pow- ers, of which the first are by far the more important. The general powers are described in section 8, Article 1, of the Constitution, and occupy eighteen clauses. They will now be described. 372. Taxation. — Revenue is the life- blood of govern- ment. The first Government of the United States failed miserably, and largely because it could not command money sufficient for its purposes. When the present Government was constituted, good care was taken to guard this point. It was clothed with the most ample revenue powers. Congress may, without limit, lay and collect taxes to pay the debts and provide for the common defense and general welfare of the United States. These taxes are of two kinds, direct and indirect. Direct taxes are taxes on land and incomes and poll or capita- tion taxes. Here the taxes are paid by the person owning the land or enjoying the income. Taxes on imported goods, called custom duties and sometimes imposts, and taxes on liquors paid at the distillery or brewery, and on cigars and tobacco paid at the factory, are indirect taxes. Here the tax is added to the price of the article 262 THE GENERAL POWERS OF CONGRESS 263 by the person who pays it in the first instance, and it is ultimately paid by the consumer. Taxes of the second class are collectively known as internal revenue to distinguish them from customs or duties, which might be called external revenue. The term excise, used in the Con- stitution, but not in the laws, applies to this great group of taxes. They are collected through the Internal Revenue Office in the Treasury Department. Direct taxes have been levied only five times by the National Government. Customs and internal revenue have al- ways been its great resources. 373. Special Rules. — In levying taxes Congress must conform to several rules that the. Constitution pre- scribes. All taxes must be uniform throughout the United States. In legislating on commerce and revenue, Con- gress must take care not to show a preference for the ports of one State over those of another State. Direct taxes, like Representatives, must be apportioned among the States according to population. And finally, no tax or duty can be laid on any article of commerce exported from any State. 374. Borrowing Money — Bonds. — Public expendi- tures cannot always be met at the time by the public revenues. It becomes necessary in emergencies for gov- ernments to borrow money and contract debts. Congress borrows money on the credit of the United States. The principal way in which it exercises this power is to sell bonds. These bonds are the promises or notes of the Gov- ernment, agreeing to pay specified amounts at specified times at specified rates of interest. During the Civil War more than five billion dollars of such bonds were sold, many of them to replace others that were cancelled. At the present time a large amount of Government bonds is-outstanding. 264 THE GOVERNMENT OF THE UNITED STATES 375. Treasury Notes. — Congress also authorizes the issue of Treasury notes, called by the Constitution " bills of credit. " They are paid out by the Treasury to meet the expenses of the Government, and while they continue to circulate they constitute a loan that the people who hold them have made to the Government. Such notes were occasionally issued before the Civil War, and since that event they have played a very important part in the history of the National finances. In 1862 Congress authorized the issuance of Treasury notes that should be a legal tender in the payment of all debts, public and private, except duties on imports and interest on the National debt. These notes were not payable on demand, or at any particular time; they did not bear interest, and were not for the time redeemable in gold or silver, which, since 1789, had been the only legal-tender currency of of the country. In 1879 the Treasury, in obedience to a law enacted several years before, began to redeem these notes in gold on presentation, and it has continued to do so until the present time. Still they have never been retired from circulation, or been cancelled on redemption, but have been paid out by the Treasury the same as other money belonging to the government. They are popularly called " greenbacks." 376. Commerce. — Congress has power to regulate commerce with foreign nations, among the States, and with the Indian tribes. The exclusive control of commerce by the States, under the Confederation, was a principal cause of the hopeless weakness of that government. (See Chap. XX.) It may indeed be said that the com- mercial necessities of the country, more than anything else, compelled the formation of the new Government in 1789. Tariff laws, or laws imposing duties on imported goods, are regulations of commerce, and so are laws THE GENERAL POWERS OF CONGRESS 265 imposing tonnage duties, or duties on the carrying capacity of ships, and laws prescribing the manner in which the foreign trade of the country shall be carried on. The construction or improvement of harbors, the building of lighthouses, surveys of the coasts of the country, and laws in relation to immigration all come under the same head. In order the better to regulate commerce among the States, Congress created the Interstate Commerce Commission, and it has passed a law in relation to the subject of trusts. The Constitu- tion lays down the rule that vessels bound to or from one State shall not be required to enter, clear, or pay duties in another State. 377. Naturalization. — All persons born or natural- ized in the United States and subject to their jurisdiction are citizens of the United States, and of the State in which they reside. Citizenship, or the state of being a citizen, is membership in the state or body politic. Congress has provided that a foreigner, unless he belongs to the Mongolian race, may become a citizen or be naturalized, as the saying is, on his compliance with certain condi- tions'. A residence of five years is necessary. At least two years before his admission to citizenship the alien must declare on oath, before a court of record, his inten- tion to become a citizen. On the expiration of the two years, he must sign a petition and later prove to the court by two citizen witnesses that he has resided in the United States at least five years, and in the State or Territory at least one year ; that he is a man of good moral character; that he is attached to the Constitution, and well disposed to the United States. If not a " homesteader " he must be able to speak English. He must also swear to support the Constitution, must renounce all allegiance to any foreign state or prince, 266 THE GOVERNMENT OF THE UNITED STATES and lay aside any title of nobility that he has held. He then receives a certificate stating that he is a citizen of the United States, and he becomes entitled to all the rights of a native-born citizen, except that he can never be President or Vice-President. His wife and his chil- dren under twenty-one years of age also become citizens. All laws in relation to naturalization must be uniform. The States may confer political rights upon foreigners, as the right to own land and vote within the State, but they cannot confer citizenship. 378. Bankruptcies. — A person who is insolvent, or unable to pay his debts, is termed a bankrupt; and a' law that divides the property of such person among his cred- itors and discharges him from legal obligation to make further payment, is termed a bankrupt law. Congress has power to pass uniform laws in relation to this subject. It has passed four such laws, one in 1800, one in 1840, one in 1867, and one in 1898. The first three were in force only about sixteen years. The States sometimes pass insolvent laws, having somewhat the same effect as bankrupt laws, but they are always subject to the National bankrupt law when there is one in force. 379. Coinage of the United States. — Congress coins money and regulates its value and the value of for- eign coin circulating in the country. This power, taken in connection with other powers, enables Congress, if it chooses, to regulate the whole subject of money. At the present time the National mints are open to all persons for the coinage of gold. Depositors of standard gold are charged merely the value of the copper used in alloying the coin. The gold coins of the Government are the double-eagle, eagle, half-eagle, quarter-eagle, three-dollar piece, and one-dollar piece. These coins are legal tender in payment of all debts, public and THE GENERAL POWERS OF CONGRESS 267 private. 1 Silver coins are now struck at the mints only on account of the Government, and not on account of private persons. These coins are the half-dollar, quar- ter-dollar, and dime, which are legal tender for debts not exceeding ten dollars. The Government also strikes coins of base metal for small change; the five-cent piece and the one-cent piece, which are legal tender in sums not exceeding twenty-five cents. At different times still other coins have been struck, and some of them are still in circulation. Mention may be made of the dollar, the trade dollar, the two-cent piece, and the half-dime. 380. The Silver Dollar.— The silver dollar was the original money-unit of the United States. It was coined, though never in very large quantities, from the founding of the mint in 1792 until 1873, when it was dropped from the list of legal coins. This fact is expressed in the phrase, "silver was demonetized." The minor silver coins, however, were produced as before. Congress also authorized for several years a new coin, called the trade dollar. In 1878 Congress restored the old silver dollar to the list of authorized coins, and in- structed the Secretary of the Treasury to purchase silver bullion for the Government and to coin it into dollars, not less than $2,000,000, nor more than 14,000,000, a month. These dollars were also made a legal tender. In 1890 Congress passed a further act instructing the Secretary to purchase 4,500,000 ounces of silver a month on Government account, as before, and to coin it after July, 1891, at his discretion. In 1893 Congress repealed the purchase clause of the previous act, and the further 1 Legal- tender money is money with which a debtor can legally pay a debt; that is, if he offers or tenders this money to his credi- tor, and his creditor refuses to take it, he is not obliged to make Other payment. 268 THE GOVERNMENT OF THE UNITED STATES coinage of silver dollars was discontinued. At no time since 1873 have private persons been permitted to deposit silver at the mints for coinage. 38 1 . Fineness and "Weight of Coins and Ratio of Metals. — The gold and silver coins of the United States are nine-tenths fine; that is, nine parts of the coins are pure metal and one part is alloy. This is called standard metal. Since 1834, the gold dollar has contained 23.2 grs. of pure metal and 25.8 grs. of standard metal. Since 1792 the silver dollar has contained 371^ grs. of pure metal, and since 1837, 412 J^ grs. of standard metal. It is com- mon to call the last named coin the 412J^ gr. dollar. The amount of pure silver in a dollar's worth of the minor coins is 347.22 grs., and of standard silver 385.8 grs. The ratio of the gold dollar to the silver dollar is popularly said to be 1 to 16. Exactly it is 1 to 15.988. This has been the legal ratio since 1837. When it was estab- lished Congress assumed that 16 grs. of silver (nearly so) were equal to one grain of gold in value. 382. Gold and Silver Certificates. — To dispense with the necessity of handling so much metallic money, Congress has provided for the issuance of gold and silver certificates. One of these certificates is simply a state- ment that in consequence of the deposit of dol- lars of gold or silver, as the case may be, in the Treasury, the Government will pay the holder of the certificate the corresponding amount. These certificates pass as money, but are not a legal tender. 383. Counterfeiting. — Congress provides by law for punishing counterfeiting the coin and securities of the United States, its notes, bonds, etc. The term counter- feiting includes (1) manufacturing or forging coins or paper securities; (2) putting forged coins or securities in circulation; and (3) having them in possession for THE GENERAL POWERS OF CONGRESS 269' that purpose. A person guilty of any one of these three offenses is punishable on conviction by a fine of not more than $5,000 and by imprisonment at hard labor for not more than ten years. ' Counterfeiting the notes of the National banks, letters patent, money orders, postal cards, stamped envelops, etc., is punishable by severe penalties; as is also counterfeiting the coins and securi- ties of foreign governments. 384. The Independent Treasury. — Previous to 1846, save for a short period, the Government had no treasury of its own, but kept its money in the banks and checked it out as it had occasion. In the year named a treasury was established in the Treasury Building at Washington, provided with rooms, vaults, and safes, and a Treasurer was appointed. Subtreasuries were also established in the principal cities of the country and put in charge of officers known as Subtreasurers. Sub- treasuries are now to be found in New York, Boston, Philadelphia, Baltimore, Cincinnati, Chicago, St. Louis, New Orleans, and San Francisco. 385. The National Banks. — In 1863 and 1864 Con- gress provided for the creation of the present system of National banks, which have played so important a part in the business of the country. These banks are directly managed by boards of directors chosen by their stock- holders, but they are supervised by the Comptroller of the Treasury, whose office is established in the Treasury Department. Their notes or bills, which are fully secured by National bonds belonging to the banks that are deposited in the office of the Comptroller at Wash- ington, constitute a National currency. 386. Weights and Measures. — Congress has power to fix the standard of weights and measures, but has never fully exercised the power. In general the standards in 270 THE GOVERNMENT OF THE UNITED STATES use are the same as those in use in England. The Eng- lish brass Troy pound is the legal Troy pound at the mints, while the Imperial avoirdupois pound and the wine gallon rest upon usage. Congress has authorized the use of the metric system of weights and measures, but has not made it compulsory. 387. The Postal Service. — Congress has created the vast postal system of the country, the cost of which in the year 1906 was more than $178,000,000. The mails are carried by contracters. Postmasters paid $1,000 or more a year are appointed by the President for a term of four years; all others by the Postmaster-General at his pleasure. A great majority of the postmasters do not receive regular salaries, but a percentage on the income of their offices. Towns having gross post-office receipts of $10,000 or more have free mail delivery by letter-carriers. In such towns and at all houses within a mile of a post-office, letters bearing a special 10-cent stamp are delivered by a special carrier immediately on their receipt. Letters may also be registered to secure their greater safety in delivery on payment of an 8-cent fee. Money orders are also sold by certain post-offices called money-order offices, which to a limited extent take the place of money in the transaction of business. 388. Rates of Postage. — There are four classes of domestic mail matter bearing different rates of postage. All postage must be prepaid in the form of stamps. 1. Letters, postal cards, and other written matter, and all packages that are closed to inspection. Save on postal cards and drop letters mailed at non-delivery offices, the rate is two cents an ounce or fraction of an ounce. 2. Periodicals, magazines, etc. The rate on matter of this class when sent from a registered publishing THE GENERAL POWERS OF CONGRESS 2"}\ office, or a news agency, is one cent a pound; when sent otherwise, it is one cent for every four ounces. 3. Books, authors' copy accompanying proof-sheets, etc., are charged one cent for two ounces or fraction of the same. 4. Merchandise limited to 4-pound packages is charged one cent an ounce. 389. Copyrights and Patent Rights. — For pro- moting science and the arts, Congress provides that au- thors may copyright their works and inventors patent their inventions for limited times. The author of a book, chart, engraving, etc., by means of a copyright, enjoys the sole liberty of printing, publishing, and selling the same for twenty-eight years, and on the expiration of this time he, if living, or his wife or his children if he be dead, may have the right continued fourteen years longer. An inventor also, by means of letters patent, enjoys the exclusive right to manufacture and sell his invention for seventeen years, and on the expiration of that period the Commissioner of Patents may ex- tend the right, if he thinks the invention sufficiently meritorious. Copyrights are obtained from the head of the Library of Congress, patent rights from the head of the Patent Office, both at Washington. The cost of a copyright is one dollar and two copies of the book or other work. The cost of a patent right is $35.00. Every article that is copyrighted or patented must be appro- priately marked. 390. Piracies and Felonies. — Congress defines the punishment of piracies and felonies on the high seas, and offenses against the Law of Nations. In a general sense piracy is robbery or forcible depredation of property on the seas, but Congress has by law declared some other acts, as engaging in the slave trade, to be piracy. 272 THE GOVERNMENT OF THE UNITED STATES Felonies, strictly speaking, are crimes punishable by death. The Law of Nations is a body of rules and regulations that civilized nations observe in their inter- course one with another. The high seas are the main sea or ocean, which the law of nations limits by a line drawn arbitrarily at one marine league, or three miles, from the shore. 39 I . Powers of Congress in Relation to "War. — Congress has the power to declare war, which in mon- archical countries is lodged in the Crown. It raises and supports armies. It provides a navy. It makes rules for the government of the army and navy. It provides for calling out the militia of the States to execute the laws of the Union, to suppress insurrection, and repel invasion. It provides for organizing, arming, and disciplining the militia, and for the government of such of them as may be called into the service of the United States; but the States have authority to appoint the officers and to train the militia according to the discipline that Congress has prescribed. These powers are very far-reaching. Act- ing under the laws of Congress, President Lincoln, in the course of the Civil War, called into the service of the Union fully 3,000,000 men. A navy counting hundreds of vessels was also built. At present the army consists of less than 100,000 officers and enlisted men. The navy of Civil War times soon became anti- quated; but since about 1885 a fine modern navy has been built, — one of the great armaments of the world. The soldiers of the United States are divided into the regular troops and the militia. The former are in constant service; the latter are the citizen soldiery en- rolled and organized for discipline and called into service only in emergencies. In the fullest sense of the word, the militia are the able-bodied male citizens of the States THE GENERAL PpWERS OF CONGRESS 2"]^ between the ages of eighteen and forty-five. The Pres- ident cannot call them into active service for a longer period than nine months in any one year. In service, they are paid the same as the regular troops. 392. The Federal District.— Previous to 1789 the United States had no fixed seat of government, and Con- gress sat at several different places. The resulting evils led the Convention of 1787 to authorize Congress to exer- cise an exclusive legislation over a district, not more than ten miles square, that particular States might cede and Congress might accept for a capital. The cession of Maryland and the acceptance of Congress made the Dis- trict of Columbia the Federal District, and an act of Congress made Washington the Capital of the Union. The various branches of the Government were established there in 1800. The District is now governed by a board of three commissioners, two appointed by the President and Senate, and one an engineer of the army who is detailed by the President for that purpose. Congress pays one-half the cost of government, the people of the District the other half. Congress also has jurisdiction over places within the States that have been purchased for forts, arsenals, magazines, dock-yards, and other needful public buildings. 393. Necessary Laws. — It must be borne in mind that the government of the United States is a government of delegated powers. Still these powers are not all expressly delegated. There are powers delegated by implication, as well as powers delegated in words. Con- gress is expressly authorized to make all laws that are necessary for carrying into effect the powers that have been described above, and all other powers that the Constitution vests in the Government of the United States, or any department or officer of that Government. 274 THE GOVERNMENT OF THE UNITED STATES Congress improves harbors, erects lighthouses, builds post-offices and custom houses, and does a thousand other things that are not particularly named in the Con- stitution, because in its judgment they are necessary to the execution of powers that are particularly named. The power to establish post-roads and post-offices, for example, or to create courts, involves the power to build buildings suitable for these purposes. This is known as the doctrine of implied powers. Looking over the general powers of legislation that are vested in Congress, described above, we see how necessary they are to a strong and efficient government. They are the master power, the driving force, of our whole National system. If these eighteen clauses were cut out of the Constitution, that system would be like a Steamship without an engine. CHAPTER XXVIII ELECTION OF THE PRESIDENT AND THE VICE-PRESIDENT The American Government. Sections 44.6-474.. It is the business of the Executive Department of the Government to enforce the laws that the Legislative De- partment makes. Government in a free country begins with law-making, but it ends with law-enforcing. We are now to examine in two or three chapters the National Executive. 394. The Presidency. — Congress consists of two Houses, and each house consists of many members, but the Executive office is single, entrusted to one person. The Constitution vests the executive power in the Presi- dent of the United States. This difference is due to the nature of the things to be done. Legislation demands varied knowledge, comparison of views, and deliberation. Administration calls for vigor, unity of purpose, and sin- gleness of responsibility. The burden of National ad- ministration is imposed upon the shoulders of one man. 395. Presidential Electors. — The President and the Vice-President are elected by Electors appointed for that purpose. Each State appoints, in such manner as its Legislature may determine, a number of Electors equal to the whole number of its Senators and Representa- tives in Congress. Early in the history of the Govern- ment, different modes of appointing Electors were followed. Since the Civil War, with a single exception, there has been only one mode. All the States now pro- ceed in the same way. This is to submit the question to 275 276 THE GOVERNMENT OF THE UNITED STATES the people of the States at a popular election. With this point clearly in mind, we shall go forward to de- scribe the whole series of steps that are taken in electing the President and the Vice-President of the United States. 396. Presidential Nominations. — Government in the United States, as in other free countries, is carried on by means of political parties. These party organizations desire to elect the President and control the Government. They hold National conventions, generally in the period June-August of the year before a President is to take his seat, to nominate candidates for President and Vice- President, and to adopt a statement of party doctrines or principles called a platform. These conventions are constituted under fixed rules, and are convoked by National committees. The Republican and Democratic conventions consist each of four delegates-at-large from every State, and twice as many district delegates as the State has members in the House of Representatives. As a rule the delegates-at-large are appointed by State party conventions, and the district delegates by district conventions. In the Republican convention a majority vote suffices to nominate candidates; in the Democratic convention the rule is two-thirds. 397. Electoral Tickets. — The next step is to make up the State Electoral tickets. First, State conventions name two Electors for the State called Electors-at-large, or Senatorial Electors. The conventions that name the delegates-at-large to the National conventions may, and often do, name also the candidates for Electors-at-large. Next district Electors are put in nomination, one from a Congressional district, generally by district conven- tions. The names of the candidates put in nomination by a given party brought together constitute the State ELECTION OF PRESIDENT AND VICE-PRESIDENT 277 party ticket. No Senator or Representative, or other person holding an office of trust or profit under the United States, can be appointed an Elector. The two steps that have been described belong wholly to the field of voluntary political action. The Consti- tution and the laws have nothing whatever to do with them. 398. Choice of Electors. — Congress fixes the day upon which the Electors are chosen. It is the same in all States, Tuesday following the first Monday of Novem- ber, the day on which members of the House of Represen- tatives are generally elected. Persons who may vote for State officers and for Representatives may also vote for Electors. State officers conduct the election, and the Governor gives the successful candidates their certifi- cates of election. The appointment of the Electors is popularly called the Presidential election. It is so in fact but not in law. In point of law the people do not elect the President and the Vice President, but only Elec- tors who elect them. In point of fact, as we shall soon see, they do both. All that the National authority has done up to this point is to fix the time of the appoint- ment of Electors. Hereafter that authority directs every step in the process. 399. Meeting of the Electors. — On the second Mon- day of January, following their appointment, the Electors meet at their respective State capitals to vote for Presi- dent and Vice-President. They name in their ballots the person for whom they vote as President, and in distinct ballots the person for whom they vote as Vice- President. No Elector can vote for persons for both ' offices from the same State that he himself resides in: one at least of the two candidates must belong to another State. The voting over, the Electors make distinct lists 278 THE GOVERNMENT OF THE UNITED STATES of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they sign, certify, and seal. Three copies of these lists are made. Two of them they send to Washington addressed to the President of the Senate, one by mail and one by a special messenger. The other copy they deliver to the Judge of the United States District Court for the district in which they meet and vote. Congress by law names the day on which the Electors give their votes, and it must be uniform through- out the Union. The casting of their ballots by the Elec- tors is the formal but not the real Presidential election. 400. Counting the Electoral "Votes. — On the sec- ond Wednesday of February, the day named by Congress, the Senate and the House of Representatives meet in the hall of the House to witness the counting of the Elec- toral votes. The President of the Senate presides, the Speaker of the House sitting by his side. He opens the certificates of votes and hands them to tellers appointed by the Houses, who read and count the votes. The President of the Senate declares the result. The person having the greatest number of votes cast for President, if a majority of all, is declared President; the person having the greatest number of votes for Vice-President, if a majority of all, is declared Vice-President. 40 1 . Election of the President by the House. — If no person has received for President the votes of a major- ity of all the Electors appointed, the House of Represen- tatives must immediately choose the President from the three candidates who have had the most votes for that office. This election is by ballot. The votes are taken by States, the Representatives from a State having one vote. Nevada balances New York, Delaware Pennsylvania. A quorum to conduct the election consists of a member ELECTION OF PRESIDENT AND VICE-PRESIDENT 279 or members from two-thirds of the States, and a majority of all the States is necessary to a choice. Twice has the House of Representatives chosen the President, Thomas Jefferson in 1801 and John Quincy Adams inl825. Both of these elections were attended by great excitement. If the House fails to choose a President, when the choice devolves upon that body, by March 4 following, then the Vice-President acts as in the case of death, removal, or resignation of the President. 402. Election of the Vice-President by the Sen- ate. — If no person voted for as Vice-President has a majority of all the Electors appointed, then the Senate shall choose to that office one of the two candidates standing highest on the list of candidates for the Vice- Presidency. A quorum for this purpose consists of two- thirds of the whole number of Senators, and a majority of all the Senators is necessary to a choice. 403. Miscellaneous Provisions.— The Electors ap- pointed from a State are often called a college; the Elec- tors from all the States the Electoral colleges. Most of the States have empowered their colleges to fill vacancies that may occur in their number. In 1887 Congress passed an act to provide for and regulate the counting of votes for President and Vice-President, and the decision of questions arising thereon. This law gives the States jurisdiction over disputed appointments of Electors. It also prescribes the method of proceeding when plural returns are made from any State and in cases where objections are made to a single return. 1 1 The method of electing President and Vice-President outlined above, is that prescribed by the Constitution as originally framed, together with the Twelfth Amendment. For the change intro- duced by this Amendment, see the Amendment in connection with Article II, section 1, clause 3, of the Constitution at first framed. 28O THE GOVERNMENT OF THE UNITED STATES 404. The Electoral System. — When the framers of the Constitution devised the method of election by means of Electoral colleges, they assumed that the Electors would be picked bodies of men, who would vote for the best men for President and Vice-President, regard- less of popular feeling and private interest. It may be said that in the case of Washington the plan worked as they expected, but since his second adminis- tration it has never done so. No other part of the Constitution has proved so disappointing as the method of electing the President. In 1804 the Constitution was amended to correct evils that had declared themselves in the election of 1800; but the Twelfth Amendment, while accomplishing its immediate purpose, did not prevent the whole plan becoming a miserable failure. The men of 1181 did not foresee the part that politics and political parties would play in American affairs. As we have seen, the President and Vice-President are really named by one of the two great political conventions. The Electors are not chosen to exercise their own best judgment, but to cast their ballots for the party candi- dates. When once elected, the Electors are not legally bound to vote for these candidates, for the Constitution and laws make no mention of parties and conventions; but they are bound as party men and as men of honor, for they have consented to be elected on this under- standing. As the system works, they have no free will whatever, and practically the Electoral colleges are pieces of useless political machinery. CHAPTER XXIX THE PRESIDENT'S QUALIFICATIONS, TERM, AND REMOVAL The American Government. Sections 450; 476-482. 405. Qualifications. — The President must be a natural-born citizen of the United States. He must have attained the age of thirty-five years, and have been a resident of the country fourteen years at the time of his election. The Vice-President must have the same qualifications as the President. 406. Length of Term.— The term of office of both the President and the Vice-President is four years, and the two officers are eligible to successive re-elections. It has often been contended that it would be better to give the President a term of six or seven years, and then make him ineligible to a second election. 407. The President's Salary. — This is fixed by Con- gress. From 1789 to 1873 it was $25,000 a year; since 1873 it has been $50,000. Congress also provides the President the furnished house known as the White House for an official residence. The President's salary can neither be increased nor diminished after he has entered on the duties of his office. The first of these two prohi- bitions makes it impossible for him to enter into bargains with members of Congress, whereby they shall receive something that they deem desirable, at the same time that his compensation is increased. The second prohibition makes it impossible for Congress to reduce his compen- sation, and so to make the President its dependent or creature. All changes in the salary must therefore be prospective. Still further, the President cannot, during 281 282 THE GOVERNMENT OF THE UNITED STATES his continuance in office, receive»any other public emol- ument than his salary, such as a gift or present from the United States or from any State. The salary of the Vice-President is #12,000. 408. The President's Oath. — Before entering on the duties of his office, the President must take the fol- lowing oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the office of Presi- dent of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States." This oath is in general a defini- tion of the President's duties. He is exclusively an executive officer. The occasion on which the President takes this oath is popularly called his inauguration, and is marked by a good deal of parade and ceremony. The custom now is to conduct the inauguration on the East Front of the Capitol at Washington. The Chief Justice administers the oath, and the President delivers an address called his inaugural address. With the excep- tion of the oath, none of these ceremonies are required by the Constitution or the laws, and they might be dispensed with. It is also customary for the Vice- President to take his oath in the Senate Chamber and to deliver a short speech to the Senators. 409. The Vice-President. — The only reason for creating the office of Vice-President was to have a proper officer at hand who could succeed to the Presidency in the case of a vacancy. The Vice-President becomes Pres- ident when the President is removed, dies, resigns, or is unable to discharge the powers and duties of his office. The President can be removed oniy by conviction on im- peachment. If he resigns he must file his resignation in writing in the office of the Secretary of State. Just what inability to discharge the duties of his office is, has never president's qualifications, term, removal 283 been settled. President Garfield performed but one ex- ecutiveact from July2, 1881, to his death, which occurred September 19 following. It was much discussed at the time whether a case of inability had arisen, but with no practical results. Five Vice-Presidents have become Presidents by succeeding to the office. When the Vice-President becomes President, he succeeds to all the powers, dignities, responsibilities, and duties of the office for the unexpired portion of the term and ceases to be Vice-President. The Constitution provides that the Vice-President shall be the President of the Senate, but this is merely for the purpose of giving dignity and con- sequence to an officer who, for the most part, would otherwise have nothing to do. 4 1 0. The Presidential Succession. — Who shall succeed to the Chief Executive office in case both the President and Vice-President die, resign, are removed, or are unable to perform the duties of the office ? The Constitution says that Congress shall by law provide for such a case, declaring what officer shall act as President until the disability be removed or a President be elected. The present law, which dates from 1886, declares that first the Secretary of State shall succeed, then the Sec- retary of the Treasury in case of his death, removal, etc. ; afterwards the Secretary of War, the Attorney-General, the Postmaster-General, the Secretary of the Navy, and the Secretary of the Interior( American Government, p. 267), in this order. No one of these officers, however, can suc- ceed unless he has been confirmed by the Senate and has all the qualifications that are required of the Presi- dent. If one of them succeeds he fills the unexpired portion of the term the same as the Vice-President. However, a case of the removal, etc., of both the Presi- dent and the Vice-President has never yet occurred. CHAPTER XXX THE PRESIDENT'S POWERS AND DUTIES The American Government. Sections 4.83-511. As is remarked in another place, the oath that the President takes on his inauguration is a general defini- tion of his duties. Still the Constitution declares further that he shall take care that the laws be faithfully exe- cuted, and shall commission all officers of the United States. More than this, it describes his duties with more or less detail. 411. Army and Navy. — The President is comman- der-in-chief of the army and navy of the United States, and of the Militia of the States also when they are called into the National service. The effective control of the National forces requires unity of judgment, decision, and responsibility. It is obvious that a congress or a cabinet would be a very poor body to place at the head of an army. The power entrusted to the President is a great one, but he cannot well abuse it so long as Congress alone can declare war, raise and support the army, pro- vide the navy, make rules for the government of the military and naval forces, and provide by law under what conditions the President may call out the militia. The President delegates to chosen officers his authority to command the army and the navy in actual service. 412. The Pardoning Power. — Power to try, convict, and pass judgment upon persons charged with crimes and offenses under the laws of the United States is lodged in the courts alone. But courts sometimes commit mis- 284 THE PRESIDENT'S POWERS AND DUTIES. 285 takes, and sometimes special circumstances arise that make it proper to exercise clemency towards persons who are undergoing punishment for crime. Again, it inay be wise to exercise clemency while the offender is on trial, or even before trial begins. So the President i s authorized to grant reprieves and pardons for offenses against the United States, except in cases of impeach- ment. A reprieve is a temporary suspension of punish- ment that has been decreed; a pardon is a full release from punishment either before or after it has been decreed. Commonly, however, a pardon comes after conviction. 4 1 3. Treaties. — A treaty is a solemn engagement or contract entered into between two or more sovereign or independent states. They relate to such subjects as com- merce and trade, the rights of citizens of one country in the other, etc. Treaties also deal with the graver sub- jects of peace and war. The power to enter into a treaty properly belongs to the executive branch of govern- ment, as dispatch, secrecy, and unity of purpose are called for. As it might be dangerous in a republic to lodge the power exclusively in the Executive's hands, it is provided that the President, by and with the advice and consent of the Senate, shall have power to make treaties with foreign states. 4 1 4. Mode of Making a Treaty. — Commonly the steps that are taken are the following: First, the treaty is negotiated or agreed upon by the powers. The nego- tiation is conducted on the part of our Government by the Secretary of State, a minister residing at a foreign capital, or a minister or commissioner appointed for the purpose. The President, acting through the Depart- ment of State, directs the general course of the negotia- tion. Secondly, the treaty, when it has been negotiated, is wholly in the President's hands. If he disapproves 286 THE GOVERNMENT OF THE UNITED STATES of it, he may throw it aside altogether. If he approves it, or is in doubt whether he should approve it or not, he submits it to the Senate for its advice. Thirdly, the treaty is now wholly in the Senate's hands, except that the President may at any time that he chooses withdraw it from the Senate's further consideration. The Senate may approve or disapprove the treaty as a whole, it may propose amendments, or it may refuse to act at all. If the Senate amends the treaty it is practically a new one, and both the President and the foreign power must assent to it in its new form. The fourth step is an ex- change of ratifications. This is a formal act by which the powers concerned signify that all the steps re- quired to ma"ke the treaty binding have been taken. Finally, the President publishes the -treaty and by pro- clamation declares it to be a part of the law of the land. The Senate considers treaties in executive session, and its advice and consent in most cases is merely approval or disapproval of what the President has done. A two- thirds vote of the Senate is necessary for the ratification of a treaty. 415. Appointment of Officers. — The President nominates, and by and with the advice and consent of the Senate, appoints ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers of the United States that are provided for by law, unless the Constitution itself provides for them. Con- gress may, however, place the appointment of such in- ferior officers as it thinks proper in the President alone, in the heads of Departments, and in the courts. The President appoints his private secretary and clerks. . The appointment of a somewhat larger number of officers is placed in the courts, while the appointment of a very great number is vested in the heads of the Executive THE PRESIDENT'S POWERS AND DUTIES 287 Departments. Thus, the appointment of all postmasters whose salary is less than $1,000 is placed in the hands of the Postmaster-General. When all these exceptions have been made, a large number of appointments still remains to be made by the President and the Senate. 4 1 6. Mode of Appointment. — The first step to be taken in filling an office is for the President to make a nomination in writing to the Senate, specifying the office and nanjing the officer. The Senate refers the nomination to its proper committee, as of a judge to the Committee on the Judiciary, or of a foreign minister or consul to the Committee on Foreign Relations. The committee investigates the subject and reports the nomination back to the Senate, either with or without a recommenda- tion that the nomination be confirmed. The Senate then grants or withholds its confirmation, as it is called. The Senate acts in such a case, as in the case of treaties, in executive session. If the Senate refuses to confirm, the President makes a second nomination, and so on until the place is filled. The Senate sometimes refuses to confirm a nomination if the Senators from the State where the office is, or one of them, objects to it. This is especially the case when the Senator or Senators be- long to the political party that for the time has a major- ity of the body. This custom, which is wholly without support of law, is known as the courtesy of the Senate. 4 1 7. Ambassadors and Other Public Ministers. — Public ministers are representatives that one state or nation sends to another to look after its interests. Ambas- sadors are the highest rank of ministers. The other grades are envoys extraordinary or ministers plenipotentiary, ministers-resident, commissioners, and charge's d'affaires. The United States now have ambassadors at the capi- tals of ten or more important countries, and represent- 288 THE GOVERNMENT OF THE UNITED STATES atives of inferior grade at many other capitals. The salaries paid these representatives, who are collectively called the diplomatic service, range from $5,000 to $17,500. The duties and rights of ministers are defined by the Law of Nations, called also International Law. 4 1 8. Receiving Ministers. — It is the duty of the President to receive ambassadors and other public min- isters sent by foreign powers to our Government. This ceremony involves the recognition of the power from which the minister comes, and also his own recognition as a man acceptable to the United States. The President can refuse to receive a minister because he is personally objectionable, and can dismiss him for the same reason. 4 1 9. Consuls. — The duties of consuls are fixed by treaties and by the municipal law of the nation appoint- ing them. In general it may be said that they look after the commercial interests of the country at large, and as- sist their countrymen in obtaining commercial rights and privileges. They also perform many other duties. They are business agents and do not rank as ministers. Some- times, however, diplqmatic duties are entrusted to them. A consul-general exercises supervision over the consuls of his country within the country to which he is sent, or within some designated portion of it. The President appoints about 60 consuls-general and about 250 consuls. They receive salaries, ranging from $2000 to $12,000 a year. 420. Military and Naval Officers. — Unless other- wise provided by law, military and naval officers are appointed in the same manner as civil officers. Still the President, as commander-in-chief, has exclusive control of the commands to which they are assigned. He assigns officers to their places of duty, and removes them for what he deems sufficient reasons. Since 1866 the law THE PRESIDENT'S POWERS AND. DUTIES 289 has been that no officer in the military or naval service shall, in time of peace, be dismissed from service except upon, and in pursuance of, the sentence of a court-mar- tial, or in commutation thereof. 42 1 . Removal from Office. — The President has the power of removal as well as of appointment. When the Senate is in session a removal is made in the following way: The President sends to the Senate a nomination, just as though the office were not already filled. If the Senate confirms this nomination, the President then com- missions the officer and he enters upon the duties of his office. The former incumbent holds the office until the last of these steps has been taken. If the Senate refuses to confirm, the President must send in a second nomination or allow the incumbent to remain undis- turbed. In a recess of the Senate a removal is made in a somewhat simpler way. The President now ap- points directly, and at the same time gives the appointee his commission, who enters upon his office at once. When the Senate meets at its next session, the Presi- dent must send to that body, for its action, the name of the appointee. If the Senate confirms the nomination, that is the end of the matter. If it refuses to confirm, the President must then make a second nomination. In either case the removal of the former incumbent is final and absolute. 422. Vacancies. — When a vacancy in any office oc- curs while the Senate is in session, the President makes a nomination, and matters proceed just as explained in the last paragraph. When the vacancy occurs in a recess of the Senate, the President appoints and commissions the officer, and the Senate acts on the nomination at its next session just as in the case of a removal made in the recess. 29O THE GOVERNMENT OF THE UNITED STATES 423. The Civil Service. — The persons who serve the Government in civil or non-military capacities are collect- ively called the civil service. They are divided into two classes called officers and employes. The two classes are not separated by any consistent rule or practice. Officers, who are much inferior in numbers to employes, are ap- pointed and removed. Employes are employed and dis- charged, not appointed and removed. Laborers in the navy yards, arsenals, and the like are employes; so are many persons in continued service at custom houses and in other offices as well as many clerks. In 1893 the civil service consisted of about 200,000 persons. Of these 69,000 were postmasters and 40, 000 others served in the Post-office Department. Twenty-two thousand were workmen. The others were distributed among the other Departments of the Government. 424. Civil Service Reform. — Until a short time ago it was the custom for the President and others who were clothed with the appointing power to make appoint- ments and removals of officers for political reasons. The same practice prevailed also in respect to employes. On a change of the administration, and especially when it involved a change of party, great numbers of officers and employes would be removed or discharged to make room for others. A Democratic administration was expected to turn out the Republicans, and a Republican administration to turn out the Democrats. This was called the spoils system. Soon after the Civil War the civil service began to attract the attention of the country. Men saw that the spoils system was ac- companied by great abuses and corruption. In 1882 an act was passed under which the service has been materially reformed. This act does not apply to any office where the joint action of the President and THE PRESIDENT'S POWERS AND DUTIES 2gl Senate is required to make an appointment. It pro- vides that in the Departments at Washington, and in custom-houses and post-offices where as many as fifty clerks are employed, appointments shall be made by reason of merit or fitness. Competitive exam- inations are held, and when a new appointment is to be made in any Department or office, as to fill a vacancy, it must be filled from the four persons stand- ing highest on the list of those who have passed the examinations. This is called the eligible list. Every State or Territory is entitled to its fair share of the ap- pointments, and no person can be finally appointed until he has served a probation of six months. This is called the merit system. The President, in the exercise of his discretion as the executive head of the Government, has extended this system to many classes of officers and employes that the law does not in terms include. Men- tion may be made of the Government Printing Office and of the Postal Railway Service. 425. The President's Message. — The President is required to give Congress information of the state of the Union from time to time, and to recommend to its consideration such measures as, in his judgment, are necessary and expedient for the good of the country. At the opening of each session of Congress, he sends to the Houses a written communication that is styled a message, conveying such information and making such recommendations. He also sends in from time to time special messages, conveying special infor- mation or recommendations as occasion requires. The communications in which the President makes nomina- tions, transmits treaties to the Senate, and assigns his reasons for refusing to sign bills are also known as messages. The heads of the several Departments make 292 THE GOVERNMENT OF THE UNITED STATES annual reports to the President, and these the President transmits at the same time that he sends in his annual message. Collectively they are called the Executive Documents. 426. Special Sessions of Congress.— The Presi- dent, on extraordinary occasions, may call the Houses of Congress together in special session. In such cases he transmits a message explaining why he does so, and recommending such action as he thinks necessary to be taken. He may also convene either House of Congress alone, and it is the custom for the President, just before retiring from office, to issue a proclamation calling the Senate together immediately following the inauguration of his successor. This gives the new President an opportunity to nominate his Cabinet and such other officers as he thinks important to appoint at that time. No President has ever found it necessary to call the House of Representatives by itself. CHAPTER XXXI THE EXECUTIVE DEPARTMENTS The American Government, Sections 511-524.. The executive business of the Government is trans- acted through the nine Executive Departments, that Congress has by law created. The President's office in the White House exists only for his per- sonal convenience and is not an office of record. All the public records are kept in the Departments through which the business is transacted. The Departments are established in Government buildings in Washington. The names of the Departments, with the dates of their establishment, are as follows: State, Treasury, War, Justice, formerly called the Office of the Attorney General, and Post-Office, 1789; Navy, 1798; Interior, 1849 ; Agriculture, 1889 ; and Commerce and Labor, 1903. The heads of these Departments all receive the same salary, $12,000 a year. 427. Department of State. — At the head of this De- partment stands the Secretary of State, who is considered the head of the Cabinet. There are also three Assistant Secretaries of State. Under the direction of the President, the Secretary conducts the foreign and diplomatic business of the country. The originals of all treaties, laws, and foreign correspondence are in his custody. He also has in his possession the seal of the United States, and affixes it to public documents that require it, and also authenticates the President's proclamations with his signature. The business of the Department is conducted through various bureaus, such as the Bureau 293 294 THE GOVERNMENT OF THE UNITED STATES of Indexes and Archives, the Diplomatic and the Con- sular Bureaus, etc. 428. Department of the Treasury. — The Secretary of the Treasury proposes plans for the public revenues and credit, prescribes the manner of keeping the public accounts, superintends the collection of the revenue, issues warrants for the payment of moneys appropriated by Congress, and makes an annual report of the state of the finances. The several auditors of the Department examine and settle the accounts of the different branches of the public service. The Comptroller supervises the work of the auditors. The Register signs all bonds, notes, silver and gold certificates, etc., of the United States, and keeps a record of them. The Treasurer has the moneys of the Government in his custody, receiving and disbursing them. The Comptroller of the Currency looks after the National Banks, and the Commissioner of Internal Revenue after that part of the public service. There are also directors of the Mint and of the Bureau of Engraving and Printing. The head of the Depart- ment is assisted by three Assistant Secretaries. 4-29. Department of "War. — The Secretary of War directs the military affairs of the Government. He superintends the purchase of military supplies, directs army transportation and the distribution of stores, has the oversight of the Military Academy at West Point, and looks after the supply of arms and munitions of war. The Chief of Staff is the Secretary's professional adviser, and supervises the ten bureaus of the Department, namely, those of the Adjutant, Inspector, Judge- Advo- cate, Quartermaster, Commissary, Paymaster, and Sur- geon Generals, the Chief of Engineers, the Chief of Ordnance, and the Chief Signal Officer. There is also an Assistant Secretary of War. THE EXECUTIVE DEPARTMENTS 2Q<\ 430. Department of Justice.— The head of this De- partment is the Attorney-General, who is the responsible adviser of the President and the heads of the other Executive Departments on matters of law. He and his assistants look after the interests of the Government in the courts, prosecuting or defending law suits to which the United States are a party, and passing upon the titles of all lands purchased by the Government for forts or public buildings. There are in the Department a Solicitor General, several Assistant Attorney-Generals, a Solicitor of the Treasury, a Solicitor of Internal Rev- enue, a Solicitor for the Department of State, and many other assistants. The District Attorneys in the differ- ent judicial districts are also under the direction of the Attorney-General. 431. Post -Office Department. — Subject to the President, the Postmaster-General is the head of the vast postal service of the country. He has a larger number of subordinates than all the other heads of Departments together. The First Assistant Postmaster-General has general charge of post-offices and postmasters and their appointment and instruction, of bonds and commis- sions, salaries and allowances, and the city free delivery system. The Second Assistant has charge of the trans- portation of mails, including contracts, inspection, rail- way adjustments, mail equipment, railway mail service, and foreign mails. The Third Assistant has general charge of the finances of the department, including accounts and drafts, postage stamps and stamped envel- opes, money orders, registered letters, and classification of mail matter. The Fourth Assistant has charge of the rural free delivery system, post-office supplies (blanks, stationery, etc.), dead letters, and the making of post- route maps. 296 THE GOVERNMENT OF THE UNITED STATES 432. Department of the Navy. — The Secretary of the Navy stands to this Department in the same relation that the Secretary of War stands to the War Department. There is one Assistant Secretary. The several bureaus of the department are : Yards and Docks, Equipment, Navigation, Ordnance, Medicine and Surgery, Supplies and Accounts, Steam Engineering, Construction and Repair. The Military Academy at Annapolis is also subject to the Secretary of the Navy. 433. Department of the Interior. — The business in- trusted to the Department of the Interior is more mis- cellaneous and diversified in character than that intrusted to any other Department. The Secretary has general oversight of the Patent Office, General Land Office, Bureau of Pensions, Indian affairs, and the Office of Education. The most extensive of these subordinate offices is that of Pensions, which disburses $140,000,000 annually. The Commissioner of Education collects facts and statistics in regard to education and publishes them in an annual report. There are two Assistant Secre- taries of the Interior. 434. Department of Agriculture. — It is the duty of the Secretary of Agriculture to diffuse among the people useful information on the subject of agriculture, in the most general and comprehensive sense of that term. He has the supervision of all quarantine regulations for the detention and examination of cattle exported and imported that may be subject to contagious diseases. The Weather Bureau, over which " Old Probabilities " presides, is in this Department. There is one Assistant Secretary. 434a. Department of Commerce and Labor. — It is the duty of this Department to promote "the foreign and domestic commerce, the mining, manufacturing, THE EXECUTIVE DEPARTMENTS 297 shipping, and fishery industries, the labor interests, and the transportation facilities." This it does largely by the publication of statistics and other information. It also enforces the laws for the protection and regulation of commerce. Among the Bureaus included in this Department are those of Statistics, Manufactures, Cor- porations, Labor, Immigration, and Navigation, the Lighthouse Board, the Census Office, and the Commis- sion of Fish and Fisheries. At the head of the Depart- ment is the Secretary of Commerce and Labor ; there is also an Assistant Secretary. 435. The Cabinet.— The heads of the nine Depart- ments constitute what is called the Cabinet. This name, however, is a popular and not a legal one. The law creates the Departments and defines the duties of their heads. The Constitution empowers the President to call for the opinions in writing of these officers on mat- ters relating to their several duties. The heads of De- partments are responsible to the country so far as their duties are defined by law; for the rest they are respon- sible to the President. They meet frequently with the President to discuss public business. The President defers more or less, as he pleases, to the views that they offer, as he does to the views that they expressed singly in writing or in conversation, but the Cabinet as such has no legal existence and is not responsible. No - official record is made of its meetings. The Constitution makes the President alone accountable for the faithful execution of the laws. Heads of Departments hold their offices subject to the President's will; but he holds, with exceptions given, four years. 1 1 See the Cabinet and the President's responsibility. See The American Government, paragraphs 522, 523. 524, and Note. CHAPTER XXXII THE JUDICIAL DEPARTMENT The American Government. Sections 525-577. The third of the independent branches of the Govern- ment of the United States created by the Constitution is the Judiciary. Its functions and organization will now be described. 436. Judicial Power Defined. — It is the business of the judiciary to interpret the law and apply it to the ordinary affairs of life. The judiciary does not make the law, but it declares what is law and what is not. This it does in the trial of cases, popularly called lawsuits. A case is some subject of controversy on which the judicial power can act when it has been submitted in the man- ner prescribed by law. It is particularly to be noted that the judicial power is strictly limited to the trial and determination of cases. Some cases involve questions of law, some questions of fact, some questions of both fact and law, and all come within the scope of the judicial power. A court is a particular organization of judicial power for the trial and determination of cases at law. 437. Vesting the Judicial Power. — The judicial power of the United States is vested in one Supreme Court and in such inferior courts as Congress sees fit to ordain and establish. The Constitution thus creates the Supreme Court, and it also provides that its head shall be the Chief Justice of the United States. At the present time the inferior courts are the District Court, the Circuit Court, the Circuit Court of Appeals, the 298 THE JUDICIAL DEPARTMENT 299 Court of Claims, and the Courts of the District of Columbia and the Territories. 438. Extent of the Judicial Power. — The judicial power is co-extensive with the sphere of the National Government. It embraces all cases that may arise under the Constitution and the laws of the United States, and the treaties entered into with foreign nations. It includes all cases affecting ambassadors, other public ministers, and consuls; all cases of admiralty and maritime juris- prudence; cases to which the United States are a party; cases that arise between two or more States, or between a State and foreign states; cases between citizens of , different States, and cases between citizens of the same State who claim lands granted by different States, and cases between citizens of a State and foreign states, citizens, or subjects. 439. Kinds of Jurisdiction. — A court has jurisdic- tion of a case or suit at law when it may try it, or take some particular action with regard to it. There are several kinds of jurisdiction. A court has original jurisdiction of a case when the case may be brought or begun in that court. It has appellate jurisdiction when it may re-hear or re-examine a case that has been decided or has been begun in some inferior court. The methods by which this is done are called appeal and writ of error. An appeal brings up the whole question, both law and fact, for re-examination; a writ of error, the law only. A court has exclusive jurisdiction of a case when it is the only court that can try it or can dispose of it in some particular manner. Two or more courts have concurrent jurisdiction of a case when either one may try it, pro- vided the case comes properly before it. 440. The District Court. — Congress has created seventy-nine Judicial Districts, in each one of which a Dis- 300 THE GOVERNMENT OF THE UNITED STATES. trict Court is organized. There is at least one district in every State, and in the most populous States there are two or more. A few of the District judges preside over two districts; but as a rule each district has its own judge, besides a District Attorney, who is the local law officer of the Government, a Clerk who keeps the records of the court and issues legal papers under its seal, and a Marshal who is the executive officer of the court. A District court must hold at least two terms every year. It has a limited range of jurisdiction in civil cases, and especially in admiralty and maritime juris- prudence; that is, in matters relating to shipping and navigation. It also has jurisdiction of many crimes and offenses committed in the district. 441. The Circuit Court. — The seventy-nine districts are grouped in nine Circuits. The first circuit contains four States and four districts, the second three States and six districts, andsoon. Oneof thejusticesoftheSupreme Court is assigned to each circuit, and is called the Cir- cuit Justice. There are also two or more Circuit judges in each of the nine circuits. The Circuit court sits from time to time in every district that the circuit contains. It may be held by the Circuit Justice, by one of the Circuit judges, or by the District judge of the district where the court is for the time sitting, or by any two of these sitting together. The district attorneys, clerks, and marshals mentioned before serve these courts also. The Circuit court has original jurisdiction in civil cases where the amount in controversy is $2,000, not counting costs, in copyright and patent cases, and many others. It has original jurisdiction in criminal cases, and in capital cases an exclusive one. Once it was also a Court of Appeals from the District court, but its appellate juris- diction has been abolished. THE JUDICIAL DEPARTMENT 301 442. The Circuit Court of Appeals. — In every cir- cuit there is also a Circuit Court of Appeals. It consists of three judges, of whom two constitute a quorum. The Circuit Justice, the Circuit judges, and the District judges of the circuit are competent to sit in this court. The last, however, can sit only for the purpose of making a quorum in the absence of the Circuit Justice or of one or both of the Circuit judges. The law designates the places where these courts shall be held. First circuit, Boston; second, New York ; third, Philadelphia ; fourth, Richmond, Virginia; fifth, New Orleans; sixth, Cincinnati; seventh, Chicago; eighth, St." Louis, and ninth, San Francisco. The Circuit Court of Appeals can review many decisions made by the Districts and Circuit courts. In patent, revenue, criminal, and admiralty cases its decisions are final. These courts are exclusively courts of appeals, and they were created expressly to relieve the Supreme Court of a part of its business. 443. The Court of Claims.— The Government of the United States carries on vast business operations, and, as is natural, points of dispute are constantly arising. Formerly a person having a claim against the Govern- ment that the Executive Departments could not or would not pay, had no redress but to go to Congress for relief. This was unsatisfactory both to claimants and to the Government. To meet this difficulty, the Court of Claims was created and was given jurisdiction over cer- tain classes of claims against the Government. The method of procedure is for the claimant to enter a suit in court, which is regularly tried and determined. If judgment is rendered against the Government, Congress appropriates money to pay it. This court consists of a Chief Justice and four Associate Justices, and sits only in Washington. Congress has also vested a limited 302 THE GOVERNMENT OF THE UNITED STATES jurisdiction in respect to claims in the District and Circuit courts also. 444. The Federal District and the Territories. — Congress has established special courts for the District of Columbia and the Territories. The Supreme Court of the District consists of a Chief Justice and five Associate Justices, any one of whom may hold a court with power similar to that exercised by the District judges in the States. The Territorial judicial system is similar to this, but the judges are fewer in number. 445. The Supreme Court. — The Supreme Court con- sists of the Chief Justice of the United States and eight Associate Justices. It holds one regular term each year at Washington, beginning the second Monday of Octo- ber. This court has original jurisdiction in all cases relating to ambassadors and other public ministers and consuls, and those to which a State is a party. It has appellate jurisdiction, both as to law and fact, in all cases originating in the inferior courts, save such as Congress by law shall except. Nearly all the cases that the Supreme Court passes upon are appellate cases. Appeals may be made to it, and writs of error lie to it, from the District and Circuit courts, from the Court of Appeals, and from the Supreme Courts of the Federal District and the Territories. 446. Appointment of Judges. — The National judges are appointed by the President by and with the advice and consent of the Senate. The appointments are for good behavior, by which expression official behavior is meant. Nothing is more necessary to a judicial system than the independence of the judges. If they were elected by the popular vote, they might court the popu- lar favor to secure an election. If they served for fixed periods, they might court the Senate and President to THE JUDICIAL DEPARTMENT 303 secure re-appointment. The courts of the Federal District and of the Territories do not come within the Constitutional provisions. However, Congress has made the tenure of the first good behavior, and of the second a term of four years. 447. Pay of the Judges. — The salary of a judge can not be diminished while he continues in office, but it may be increased. If Congress could reduce the judge's salary after he had entered upon his term, it might control his action and make him dependent upon its will. The salary of the Chief Justice is $13,000; of the Associate Justices, $12,500; of the Circuit Judges, $7,000; arid of District Judges, $6, 000. Any judge who has held his commission ten years and has attained to the age of seventy, may resign his office and continue to draw his salary during the remainder of his life. 448. Concurrent Jurisdiction of National and State Courts. — The Constitution gives the Supreme Court an original jurisdiction, in cases affecting public ministers and consuls, and cases to which a State may be a party. Congress has gone further and declared the jurisdiction of the National courts in certain cases to be an exclusive one. Patent and admiralty cases, for example, are of this class. Outside of this exclusive jurisdiction, Congress has given the State courts a civil jurisdiction concurrent with that of the National courts. Still more, some criminal offenses under the National laws may be prosecuted in the State courts, as those arising under the postal laws. 449. Appeals from State Courts. — The Constitu- tion, laws, and treaties of the United States are the su- preme law of the land. If the constitution or the laws of a State conflict in any way with this supreme law, such constitution or laws, so far as the confliction extends, 304 THE GOVERNMENT OF THE UNITED STATES are null and void. Moreover, the power to decide what is, and what is not, a connection with the National authority rests with the National judiciary. Hence, any case arising in the courts of a State that involves the National authority may be appealed to the National courts. Such cases are said to involve Federal ques- tions. To this extent, therefore, the courts of the United States are the final and authoritative interpreters of the constitutions and laws of the States. 450. Rules Regulating Trials. — A jury system like that found in the States is a part of the National judiciary. All crimes, save in cases of impeachment, must be tried by an impartial jury of the State and judicial district where they have been committed. Crimes committed in the Federal District or in a Terri- tory must be tried in the District or Territory. Crimes committed on the sea are tried in the district in which the accused is arrested, or into which he is first brought when the ship returns to the United States. No person can be put on trial for a capital or infamous crime until he has first been indicted by a grand jury; in such case the trial must be a speedy and public one, and the accused must be informed of the accusation made against him. He shall have the benefit of the compulsory power of the court to compel the attendance of witnesses, and shall also have the assistance of a lawyer for his defense. Ex- cessive bail can not be required, or excessive fines be imposed, or cruel or unnatural punishments be inflicted. No person who has once been tried for an offense and found innocent, can be put on trial for that offense the second time. In a criminal case no man can be com- pelled to testify against himself, nor can any person be deprived of life, liberty, or property until he has been adjudged guilty according to the common course of the THE JUDICIAL DEPARTMENT 305 law. In any civil suit at common law where the amount in controversy is more than twenty dollars, the right of trial by jury is also preserved. Rules like these will be found in the jurisprudence of the several States. These rules, however, relate exclusively to the National tribu- nals. The Fourteenth Amendment declares that no State shall deprive any person of life, liberty, or property without due process of law. 45 I . Military Courts. — Cases arising in the military and naval service are tried in special courts called courts-martial. This is true of the militia also when they are employed in the public service in time of war or public danger. In ajl such cases as these the rule in regard to an indictment by a grand jury has no appli- cation. 452. Treason. — Treason against the United States is either making war against them, or siding with their ene- mies, rendering them aid and comfort. No person can be convicted of this crime, which is considered the greatest of all crimes, except on the testimony of two witnesses to the same offense, x>r on his own confession of guilt in open court. Congress has enacted two modes of punishment for treason at the discretion of the judge trying the case. The traitor shall suffer death; or he shall be imprisoned at hard labor for not less than five years, be fined not less than $10,000, and be pro- nounced incapable of holding any office under the United States. CHAPTER XXXIII NEW STATES AND THE TERRITORIAL SYSTEM The American Government. Sections 584.-597. The Territorial System of the United States has played a very important part in their history. It is proposed in this chapter to show how it originated, and to describe its principal features. 453. The Original Public Domain. — At the time of the Revolution seven of the thirteen States claimed the wild lands lying west of the Alleghany Mountains and extending to the Mississippi River and the Northern Lakes. These were then National boundaries. In time these States yielded their claims. When the Con- stitution was framed in 1787, the country northwest of the Ohio River had already come into possession of the Old Congress. The Southern cessions were made later. In general, the cessions to the Nation in- cluded both soil and jurisdiction — the ownership of the land and the right to govern the territory. The North- western cessions constituted the first Public Domain of the United States; that is, a territory belonging to the Nation in common. The Constitution gave Congress the power to dispose of the National territory, and to make all needful rules and regulations for its govern- ment. Before this, however, Congress had established a government over the existing domain, which was styled the Northwest Territory. 454. Annexations.— Besides the islands acquired in 1898 and after, seven annexations of territory have been made to the United States: Louisiana purchase, 306 NEW STATES AND THE TERRITORIAL SYSTEM 307 1803; Florida, 1819; Texas 1845; Oregon, 1846; the two Mexican annexations, 1848 and 1853, and Alaska, 1867. These annexations, with a single exception, were additions to the public domain and became at once subject to the control of Congress. This exception was Texas, which had been an independent power and was admitted to the Union as a State at once without passing through the Territorial probation. Subsequently Texas sold that part of her dominion which now forms the eastern part of the Territory of New Mexico to the United States. 455. Provision for New States. — The claimant States made their cessions of Western territory on the con- dition that, as rapidly as it became ready, such territory should be divided into new States to be admitted to the Union on an equality with the old ones. So a provision was inserted in the Constitution that authorized Con- gress to admit new States to the Union. But this was not all; some controversies had already arisen concern- ing the formation of new States out of old ones. So it was provided that no new State should be formed within the jurisdiction of any State, nor should any new State be formed by uniting two or more States, without the consent of the Legislatures concerned as well as of Congress. 456. Territories of the United States. — In a broad sense the whole dominion of the United States is their territory, States and Territories alike. But in common usage the term territory is limited to so much of the whole dominion as has not been formed into States. Still further, as thus limited the word is employed in two senses. An organized Territory is a part of the dominion having certain boundaries and a fully developed Territorial Government. Arizona, New Mexico, and Hawaii are now the only Territories of this class. An unorganized 308 THE GOVERNMENT OF THE UNITED STATES Territory either has no government at all, or has a very rudimentary one carried on by officers sent from Washing- ton. Thus civil government is administered in Alaska, which is an unorganized Territory, by a Governor and other officers appointed by the President and Senate. 457. Government of an Organized Territory. — Such a government is set up by Congress. The Governor, Secretary, and Territorial Judges are appointed by the President for four years, and are paid from the National Treasury. The Legislature consists of a house of representatives and a council, the members of which are elected by the qualified voters of the territory. The Legislature legislates on subjects of local con- cern, subject to the Constitution and laws of the United States. For example, it may establish counties and townships and local self-government for the people. It may also establish a Territorial system of schools. The Governor exercises powers similar to those exer- cised by the Governor of a State, while the Secretary performs duties similar to those performed by a State Secretary of State. There are also a District Attor- ney and a Marshal appointed by the President. A Territory can not be represented in Congress or partici- pate in the election of President and Vice-President. Still an organized Territory is permitted to send a dele- gate elected by the people to the House of Representa- tives, who may speak but not vote. It will be seen that the status of a Territory is in all respects inferior to that of a State. A Territory is an inchoate State. 458. Admission of New States. — This subject has been committed wholly to the discretion of Congress. Congress makes the boundaries of the State, fixes the conditions of admission, gives the State its name and NEW STATES AND THE TERRITORIAL SYSTEM 3O9 determines the time of admission. Congress settles some of the details in the act creating the Territory, and still others in a law providing for its admission called an Ena- bling Act. The principal steps to betaken are the follow- ing: First, the people of the Territory elect the members of a convention to frame a State constitution. Secondly, the convention thus elected performs the duty duly com- mitted to it. Thirdly, the constitution is submitted to the people for their approval. Fourthly, Representa- tives and Senators are elected to represent the new State in Congress. Fifthly, comes the formal act of admission, which is sometimes performed by the Presi- dent, who issues a proclamation to that effect in com- pliance with a law previously passed, and sometimes is performed by Congress passing an act called an act of admission. 459. States Admitted. — Thirty-three new States have been admitted to the Union. Vermont, Maine, West Virginia, and Kentucky were formed from old States and were never Territories. The facts in regard to Texas have been stated already. The other States, twenty-eight in number, have been formed from the public domain ; and, save California alone, have passed through the Territorial probation. 460. Dependencies. — After the Spanish-American war of 1898 a modified form of Territorial government was developed for the foreign dependencies of the United States. Porto Rico and the Philippines each have a legislature, of which one branch is elected by popular vote, and they are represented at Washington by " resi- dent commissioners," who act much like Territorial delegates. In each of these dependencies the local subdivisions are given large powers of local self- government. 3IO THE GOVERNMENT OF THE UNITED STATES 46 I . The Public Lands. — Beginning in Southeastern Ohio, in 1786, the Government has caused the public lands to be surveyed according to a practically uniform system. They are first cut up into townships six miles' square, and then these are subdivided into sections of 640 acres, which again are divided into lots of 160, 80, and 40 acres. The sections are now numbered, back and forth, in the following manner: 6 5 4 3 2 1 7 8 9 10 11 12 18 17 16 15 14 13 19 20 21 22 23 24 30 29 28 27 26 25 31 32 33 34 35 36 Such a township as this is called a Congressional town- ship. As a rule, the States have based their divisions of counties and townships on the Government surveys, and it is this fact that gives the maps of the Western States such a checker-board appearance. In general Congress has followed a very liberal policy in respect to the public lands, selling them at low prices, giving them away as bounties to soldiers and to settlers under the homestead law, and granting them to States and rail- roads and other corporations to stimulate education and public improvements. 462. School Lands. — Beginning with Ohio, admitted to the Union in 1803, and continuing to Wisconsin, ad- NEW STATES AND THE TERRITORIAL SYSTEM 3 1 1 mitted in 1848, Congress gave section No. 16 in every Congressional township to the people of the township for the use of common schools. Beginning with Cali- fornia, in 1850, and continuing to the present, it has given sections 16 and 36 in every township for that purpose. Congress has also given every public-land State, or State forrned out of the domain, two townships of land for the support of a State university, and some of them more than two. It has also given lands for agricultural colleges and normal schools, and for other educational purposes. 463. New States. — The following table contains the names of the new States, and the dates of their admis- sion to the Union: Vermont, March 4, 1791. Kentucky, June 1, 1792. Tennessee, June 1, 1796. Ohio, February 19, 1803. Louisiana, April 8, 1812. Indiana, December 11, 1816. Mississippi, December 10,1817. Illinois, December 3, 1818. Alabama, December 14, 1819. Maine, March 15, 1820. Missouri, August 10, 1821. Arkansas, June 15, 1836. Michigan, January 26, 1837. Florida, March 3, 1845. Texas, December 29, 1845. Iowa December 28, 1846. Oklahoma, November 16, 1907. Wisconsin, May 29, 1848. California, September 9, 1850. Minnesota, May 11, 1858. Oregon, February 14, 1859. Kansas, January 29, 1861. West Virginia, June 19, 1863. Nevada, October 31, 1864. Nebraska, March 1, 1867. Colorado, August 1, 1876. North Dakota, Nov. 2, 1889. South Dakota, Nov. 2, 1889. Montana, November 8, 1889. Washington, Nov. 11, 1889. Idaho, July 3, 1890. Wyoming, July 10, 1891. Utah, January 4, 1896. Chapter xxxiv RELATIONS OF THE STATES AND THE UNION The American Government. Sections 419-4.45; 578-588; 598-603; 608-620; 623-681; 644-654; 773-782. Part III of this work describes the government of a single State. The preceding chapters of this Fourth Part describe the Government of the Union in its general features. It is very obvious that either one of these governments, by itself, would be very imperfect. It is equally obvious that they supplement each other. Each one is essential to the other and to society, and neither one is more essential than the other. The two together make up one system of government. The governments of the States are part of the Government of the Union, and the Government of the Union is a part of the gov- ernments of the States. The citizen is subject to two jurisdictions, one State and one National. Both of these jurisdictions have been created by the Ameri- can people, and each one is exclusive and independ- ent within its sphere. In other words, the United States are a federal state, and their Government is a federal government. Moreover, experience shows that such governments are complicated and delicate, and that they will not work well unless the two parts, local and general, are well adapted each to each like the parts of a machine. 464. The State Sphere. — The sphere of the State is well marked off. Matters of local and State concern are committed to its exclusive authority. Within its sphere, 312 RELATIONS OF THE STATES AND THE UNION 313 the State is perfectly free to do what it pleases, taking good care not to infringe upon the sphere of the Union. It is the great business of the State government to pre- serve the peace and good order of society within its borders. It defines civil and political rights; defines and punishes crime; protects the rights of property, of person, and of life; regulates marriage and divorce; provides schools and education for the people, and does a hundred other things that it deems necessary to pro- mote the physical, intellectual, and moral well-being of the people. 465. The National Sphere. — This is equally well defined. Matters of general, common, or National interest are committed to the Union. Here are the powers to levy taxes and borrow money for National purposes; to regu- late foreign commerce; to conduct war; to carry on the post-office; to manage foreign relations, and to exercise the many other powers that are delegated by the National Constitution. It will be seen that these are matters in which the whole American people are interested. Within its sphere, the Nation is just as free and unlimited as the State is within the State's sphere. 466. The State and the Union. — Neither one of these ! jurisdictions is, strictly speaking, limited to matters purely local or purely national. The State does more than merely to look after local interests. The Union does more than merely to see to National affairs. Either authority does some things that, at first thought, might seem to belong exclusively to the other. In this way, great strength is imparted to the whole system, and it is made to do its work more thoroughly. This a series of paragraphs will show. 467. National Functions of the States.— The State participates directly in carrying on the Government of 314 THE GOVERNMENT OF THE UNITED STATES the Union. It defines the qualifications of electors, estab- lishes Congressional districts, conducts the elections of Representatives, elects members of the United States Senate, and appoints Presidential Electors. All these things are purely voluntary. The States cannot be com- pelled to do them, but if they should refuse or neglect to do them the whole National system would fall into ruins. But, more than this, the Union employs the State militia, and imposes duties upon the governors and judges of the States. 468. Prohibitions Laid on. States. — The successful working of the National system makes it necessary that certain prohibitions shall be"laid on the States. No State can enter into any treaty, alliance, or federation; coin money, issue paper money, make anything but gold and silver a tender in payment of debts, pass any law interfering with contracts, or grant any title of nobility. No State, without the consent of Congress, can levy duties or imposts on imports and exports, beyond what is necessary to pay the cost of its inspection service. No State can, without the consent of Congress, lay any ton- nage tax on ships, keep troops or ships of war in time of peace, or enter into any compact or agreement with an- other State or a foreign power. No State can engage in war, unless it is actually invaded or in immediate danger of invasion. 469. Duties of State to State. — If the National System is to work smoothly, it is obvious that a good understanding among the States is necessary. The Con- stitution accordingly lays various commands upon the States in respect to their relations one to another. The acts, records, and judicial processes of any State are re- spected by every other State, so far as they can have any application. For example, a marriage contracted or a RELATIONS OF THE STATES AND THE UNION 315 divorce granted in one State is a marriage or a divorce in every other State. Citizens of one State passing into an- other State are entitled to all the rights and privileges that the citizens of such State enjoy. If a person who is charged with any crime in one State flees from justice and is found in another State, it is the duty of the Gov- ernor of the State to which he has fled to surrender him on the demand of the Governor of the State from which he has fled, that he may be brought to trial and, if guilty, to punishment. 470. Privileges and Immunities of Citizens. — Section one of Amendment XIV. declares all persons born and naturalized in the United States and subject to their jurisdiction, to be citizens of the United States and of the State wherein they reside. It contains also the following declarations: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Union owes several important duties to the State. 47 I . Republican Form of Government. — The Union guarantees to every State a republican form of gov- ernment. If a non-republican government should be established in any State by revolution or otherwise, it would be the duty of the Union to interfere and see that republican government be re-established. Power to decide in such cases what a republican form of govern- ment is, belongs to Congress. 472. Invasion and Domestic Violence.— The Union must also protect the States against invasion, and in emergencies against domestic violence. These duties are 316 THE GOVERNMENT OF THE UNITED STATES the more necessary because the Constitution denies to the States the right to keep troops and ships of war in time of peace. If any State is invaded it is the duty of the President to call out the National forces to repel the invasion. In the first instance it is the duty of the State authority to suppress domesticviolence within its borders, but if such authority in any case thinks the assistance of the United States to be necessary or advisable, it has the right to call for such assistance. The Legislature, if it be in session, and otherwise the Governor, makes the call. This call is addressed to the President, who takes such steps as he thinks necessary to accomplish the object. 473. The National Authority and the Public Peace. — There are, however, certain emergencies in which the President can act directly to suppress domestic violence. When such violence interferes with the oper- ations of the National Government, he need not wait for the State Legislature or Governor to call for assist- ance, but is in duty bound to act at once to protect the operations of the Government and so to restore the public peace. Thus, when the United States mails and inter- State commerce were interrupted in Chicago in 1894, President Cleveland ordered the National forces to pro- tect the mails and the railroads. 474. Supremacy of the Union. — The Constitution, laws, and treaties of the United States are the supreme law of the land. They supersede State constitutions and laws whenever these constitutions and laws encroach upon the supreme law. To secure this end, the judges of the State courts, in interpreting and declaring the law, must side with the United States, rather than with the State, in all cases of confliction. To secure this supre- macy the more completely, Senators and Representatives RELATIONS OF THE STATES AND THE UNION 317 of the United States, members of the State Legislatures and all executive and judicial officers, both of the United States and of the States, must take an oath or affirmation to support the Constitution of the United States. But no religious faith, opinion, or rite can be made a qualification for holding any office of public trust under the United States. There are also many prohibitions laid upon the National authority. Several of these have been dealt with al- ready in other places; others will be mentioned in this place. 475. "Writ of Habeas Corpus. — In countries where this writ is recognized, a sheriff or other officer, or even a private individual, who has a person in his custody whom he is depriving of his liberty, can be made to show cause why he holds him. The person who is held as a prisoner, or other person in his interest, appeals to a court of competent jurisdiction for a writ of habeas corpus, which commands the officer or other person to bring his prisoner into court. If he can show no suffi- cient cause for holding him, the prisoner is set at liberty. This writ is one of the great bulwarks of personal liberty, and the Constitution provides that the privilege of the writ shall not be suspended unless in time of rebellion or invasion when the public safety requires it. 476. Bills of Attainder and Ex Post Facto Laws. — A bill of attainder is a legislative act that inflicts pun- ishment of some kind upon a person without a judicial trial. An ex post facto law is a law that places some pun- ishment upon an act that was not placed upon it when the act was done. Both the State Legislatures and Con- gress are forbidden to pass any bill of attainder or ex post facto law. 3l8 THE GOVERNMENT OF THE UNITED STATES A statement of several restrictions that are imposed upon the States or the Union, or both States and Union, may fitly close this work. 477. Titles of Nobility. — These would plainly be out of character, and be corrupting in tendency in a republican country. Republicanism assumes the equality of citizens. So it is provided that neither the United States nor any State shall grant any title of nobility. Furthermore, no officer of the United States can, with- out the consent of Congress, accept any present, office, or title from any king, prince, or foreign state. 478. No National Church. — Congress can pass no law in relation to a state church or establishment of re- ligion, or prohibit the free exercise of religion. All churches and religions are, so far as the National author- ity is concerned, put on the same level. The separation of Church and State is a fundamental principle of Amer- ican polity. 479. Freedom of Speech and the Right of Pe- tition. — Congress can pass no law abridging the free- dom of speech or of the press, or denying or limiting the right of citizens peaceably to assemble and to petition the Government for a redress of grievances. This pro- vision, however, is no defense of license of speech or printing, such as slander or libel, or of public tumult and disorder. 480. Soldiers in Private Houses. — Tyrannical rulers have often accomplished their purpose of oppres- sion by quartering soldiers in the houses of citizens, to overawe and intimidate them. In the United States soldiers can not be quartered in private houses without the consent of the occupants in time of peace, and not in time of war save in a manner that is prescribed by law. RELATIONS OF THE STATES AND THE UNION 319 * 48 I . The Militia. — Tyrannical governments have often found it necessary, in order to accomplish their purpose, to suppress the citizen soldiery, or to deny the people the right to keep and to bear arms. Our Con- stitution provides that, since a well regulated militia is necessary to the security of every state, the right of the people to keep and bear arms shall not be infringed. 482. Searches and Seizures. — Oppressive rulers have often, or generally, held themselves at perfect liberty to search the papers and persons of citizens or subjects, in order to find evidence for criminating them or for establishing their own tyranny the more thor- oughly. Our Constitution provides that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated. Warrants for the purpose of making such seizures shall not be issued by magistrates unless there is probable cause for issuing them, which must be sworn to by the complainant; and even then they must particularly describe the place to be searched and the persons and things to be seized. TOPICS AND QUESTIONS. I. Territorial and State History. I. Trace the relation between the physical conditions of the thirteen colonies and their development. , 2. Show the relation between the natural resources of the different sections of the United States and their dis- tinctive and peculiar development. 3. What was the constitutional question involved in the Louisiana Purchase? 4. Contrast the New Northwest with the Old North- west as to geographical extent and natural resources. Compare the industrial and political development of these sections. 5. What part of the New Northwest was acquired by purchase, and what part by right of exploration ? 6. What has determined the character of industry in the various parts of the New Northwest ? 7. Where are glaciers found at the present day? Are the results of their action now similar to the effects found in Dakota? 8. Locate any moraines that have been found in your immediate vicinity. 9. Draw a map of the State, locating its mineral re- gion, its artesian basin, its wheat fields, and grazing districts. 10. Name the treaties that gave the white man rights to land in South Dakota. II. Name the difficulties and hindrances encountered by the early settlers. 320 TOPICS AND QUESTIONS 321 12. Consider the value of the railroads in the settle- ment of the Territory. What would be the effect on land values if all railroads were withdrawn from the State? 13. Name the initial points of settlement in the eastern and western parts of the State. 14. What is the political principle involved in squatter government ? 15. Contrast the early settlers of Dakota with the settlers of the thirteen colonies. 16. Contrast the conditions of settlement in Dakota and in the thirteen colonies. 17. Contrast Territorial and State government. 18. Compare the growth of population and industry in the three periods of Territorial life. 19. Contrast the educational resources of the West and East. 20. What peculiar question of political rights arose in connection with the movement for admission? 21. What is an enabling act? 22. What are the conditions of the compact made be- tween South Dakota and the United States? 23. What conflicting theories exist in regard to con- stitution-making? Which theory is exemplified by our state constitution? II. Origin and Development of Civil Institutions. 1. Define the terms society, state, government, and constitution. 2. What are rights? What are your rights as a pu- pil in school? 3. Mention instances of political or state co-operation in your own school district, township, town, city, etc. 322 THE CIVIL INSTITUTIONS OF SOUTH DAKOTA 4. Why is the right of taxation necessary? How is it abused? 5. Distinguish between the state and the government. Which has sovereignty? 6. State the arguments for and against the initiative and the referendum. Illustrate each. 7. Distinguish between centralized and decentralized governments. Give examples of each. 8. In what ways does the individual feel the authority of the National Government? 9. Consider the effects upon society of the failure to enforce law. 10. In what is a State independent of the National Government ? 11. What are the main features of early German insti- tutions ? 12. Compare and contrast the markmoot and the mod- ern town-meeting. 13. Distinguish between the Anglo-Saxon township, manor, hundred, and shire. 14. Contrast the English shire of the seventeenth cen- tury with the county of Dakota. 15. What were the main principles of government held by the early English colonists? 16. Contrast the motives of the early New England settlers with those of the early settlers in Dakota. 17. Contrast the New England town with the Dakota township. 18. What evidence is there that the social and political sentiment of early New England survives in the New Northwest ? 19. Contrast the townships of New England, New York, Pennsylvania, and South Dakota. 20. Contrast the physical conditions of the colonies. TOPICS AND QUESTIONS 323 of the North and the South, and likewise their social and political institutions. 21. What evidence is there that the political institu- tions and social sentiments of the early colonies have moved westward on parallels of latitude? III. Local Institutions of the State. 1. The Township. 1. What are the purposes of the town-meeting? 2. Distinguish between the congressional and the civil township. 3. What powers of government are exercised by the supervisors of a township? 4. What is an election precinct? How many in your county ? 5. Has your county the township or the district sys- tem of school organization? 6. Has the school district any relation to the town- ship? 7. What differences in management do you find be- tween the rural school district and the city school district ? 8. Why should we have a compulsory education law ? 9. Is this law a violation of the principle of local control of local affairs? 10. Is it of any consequence to one township or city how another township or city manages its educational affairs ? 11. Is it of any consequence to one State how another conducts its schools? 12. When and by whom can a pupil of the public schools be arrested binder the provisions of the compul- sory school law? 13. What are the duties of the overseers of highways? 324 THE CIVIL INSTITUTIONS OF SOUTH DAKOTA 14. Has our system of road management been a satis- factory one? 15. What objections are there to it? 16. Would it be a violation of the principle of local control of local affairs _to place the management of the roads in the hands of the State ? 17. Why should not the affairs of the township be placed in the hands of the supervisors, as those of the county are in the hands of the commissioners? 2. The City and Town. 1. Distinguish between a city, town, and village. 2. What is the right of eminent domain? When can it be exercised by the city council? 3. What is the essential difference in government be- tween a town and a city? 4. Is the county seat of your cotinty a town or a city? 5. How are bonds issued by a city? 6. What is an ordinance? State the various steps in its passage. 7. Why should the functions of government be more clearly defined, and the departments be more distinct in city than in town government? 8. What has been the weak p6int in modern city government ? 9. What is the " spoils system " in politics ? What evils have resulted from it? 10. Why should not the township have a single chief executive as well as the city? 11. Why should not the city vote on all appropriations as well as the township? 1.2. Why^ should a township be restricted in, the pur- TOPICS AND QUESTIONS 325 poses for which it may appropriate money, while the city is given large freedom in this respect? 13. What things should each local community be al- lowed to manage for itself? 14. Has the increase in rapidity of communication and travel modified the principle of local control of local af- fairs ? 15. Have the people of the surrounding townships any interest in the affairs of the city ? 16. Have the people of the city any interest in the management of the affairs of the surrounding townships ? j. The County. 1. What functions of government do the county com- missioners perform? 2. What is a board of equalization, and what func- tions does it perform? 3. What are mortgages, and where are they recorded ? 4. Why should mortgages and other such papers be put on the public records? 5. What is a bill of sale ? Why should it be recorded ? 6. Distinguish between an indictment and a present- ment. 7. Distinguish between a summons, a warrant, a sub- poena, and a writ. 8. Why should the affairs of the county be left in the hands of a board, while those of the township are com- mitted to the town-meeting? 9. Why should not the county be allowed to vote on all appropriations of money? 10. Would the referendum enable them to do this? 11. Why should not the county have a single execu- tive head? 12. Is the referendum anything more than the exfeen- 326 THE CIVIL INSTITUTIONS OF SOUTH DAKOTA sion of the principle of the township government to the county and State? 13. What relations exist between the county, township, and school district? 14. What are the different forms that county govern- ment has assumed? IV. The State. 1. Legislative Department. 1. Why make it one of the qualifications of senators and representatives that they must hold no office under the State or the United States? 2. Why should senators and representatives be privi- leged from arrest? 3. Why should the House elect its speaker while the presiding officer of the Senate is elected at the gen- eral election? 4. What can be said in favor of the committee sys- tem? 5. What are the steps taken in making a law by means of the initiative ? 6. Describe the formation of the committee of the whole and explain its purpose. 7. Our State constitution provides that appropriation bills ma)' originate in either house. Why this variation from the usage of Congress? 8. Why is special or private legislation forbidden in certain cases? 9. Why should each house be made the judge of the elections and qualifications of its own members? 10. What are the qualifications of an elector in this State? 11. What is a bill of rights? Where did it originate? 12. Why should one be placed in the constitution? TOPICS AND QUESTIONS 327 13. Is there one in the constitution of the United States ? 14. Point out the applications of the theory of " checks and balances " in the State government. 15. Why should there be two houses in the legislature ? 16. Would legislation be equally good with only one? 17. Why should the governor be given the power to veto legislation? 18. Why should he not have an absolute veto? 19. Has the modern party system affected the working of our government? 20. Has its influence been good or bad? 21. Can you suggest any changes in government to counteract the influence of parties? 22. Why should not the qualifications of representa- tives and senators be made much higher than those of an elector, so as to secure the best talent of the com- munity ? 2. Executive Department. 1. Why should part of the State officers be ap- pointed ? 2. Would it be an improvement to have them all elected ? 3. Does the fact of appointment make them more or less a factor in politics ? How is it in the National Gov- ernment ? 4. How would the theory of our government be changed if the governor were to appoint the county officers ? 5. Why should not the governor be allowed to ap- point all the other executive officers of the State? 6. Would this not give the governor more power to secure good government? 328 THE CIVIL INSTITUTIONS OF SOUTH DAKOTA 7. What dangers would there be in this plan? 8. How many boards of equalization are there in the State? 9. Why should there be a board of pardons? 10. When can the governor call out the militia? 11. Under what circumstances can the President of the United States send troops into the State? 12. What is a corporation? 13. How would you proceed to form a corporation? 14. Of what advantage is a public examiner? 15. What accounts does he examine? 16. The constitution provides that no person shall be eligible to certain offices for more than two successive terms. Why ? 17. Distinguish between the duties of the secretary of State for a State and for the Nation. 18. Why should not the governor be given the pardon- ing power without the intervention of a board of par- dons? 3. Judicial Department. 1. When can the writ of habeas corpus be suspended? 2. What is meant by the freedom of the courts? 3. Why should the State judges be elected, while the United States judges are appointed? 4. What are some of the provisions of our govern- ment to secure personal liberty? 5. What questions are decided respectively by the judge and jury? 6. Why should questions of fact not be tried by the supreme court? 7. When would you use a writ of habeas corpus? mandamus? injunction? TOPICS AND QUESTIONS 329 8. When is a search warrant issued? Under what circumstances ? 9. Why should not a person be obliged to give evi- dence against himself? 10. Why is the freedom of speech and of the press an important one? 11. What is libel? Slander? 12. Is there any protection to-day against either of these ? 13. Can a person be imprisoned for debt in this State ? 14. What have been some of the difficulties of govern- ment in America? 15. In what governmental units have the most evils existed ? 16. In which department of the State have these evils existed most? 17. Can you suggest any remedy? 18. Can the courts correct any of those evils? 19. Should the people of a State be allowed to manage their own affairs in their own way? 20. Have the people of California no interest in good government in South Dakota? 21. Are the people of South Dakota affected by bad government in California? 22. Is the world, practically, as large as when the Battle of Bunker Hill was fought? 23. Do men try to govern it, practically, on the same principles as then? 24. Are they likely to succeed ? 25. Can free government exist without the right to vote? 26. Is democracy the best form of government? 27. Has any other ever succeeded in the long run? APPENDIX BRAINTREE RECORDS. The following extracts taken from the records of the town of Braintree, Mass., will perhaps be of interest as showing the nature of early township government in that colony. So far as the authors know, these records have not been previously printed : 9 mo. 1641. Against any inhabitant selling ye land without offer- ing it first to the selectmen to a stranger ; — it is ordered that noe inhabitant shall sell or dispose of any house or land to any that is not received as inhabitant into the town without it being first offered unto the men that are appointed to dispose of the town's affairs ; and in case it is not bought by them within twenty days after the first offer that they shall have liberty to dispose of it only to such as the town shall approve on, and therefore it is agreed that every acre of land or house so disposed on without the townsmen's consent shall pay the whole sum of nineteen shillings and seven pence. 4th of the second month 1641. Moreover it is further ordered that noe man that is not received an inhabitant into the town shall have liberty to build any house or cottage within the libertys of the towne without the consent of those that are chosen to dispose of the town's affairs. 29th 10th month 1645. Town March to the Elders. At a town meeting there being present, Wilde, James Penniman, Martin San- ders, Thomas Nickniss, Samuel Bass, Peter Brackitt, it is ordered that the fourteen acres of town march shall be improved to the elder's use Mr. Thompson and Mr. Flint (to) snch time as the townsmen shall (see fit) otherwise to dispose of it. 29th 11 mo. 1650. A petition of David Mattalls to the selectmen of Braintree. To our loving brethren and neighbors, the townsmen of Braintree, these are to certifie you that all we whose names are underwritten doe stand to a joint and equal purchase of the com- mon, one to pay as much as another and to have every man alike equal part or share of it not that we intend hereby that any man 330 APPENDIX 33I not having cattell of his own answerable to his share of the common shall either directly or indirectly take in from any other town or townes any manner of cattel to summer them upon the common thereby or wronge the towne (we profess against it) provided this hinder not any one of us the inhabitants aforsayd to hire oxen or cows for his own proper use or servis. Steven Kinsley in the name of the rest. 10th 9th month 1646. A grant of taking timber off of the com- mon for a man's own use. But not to sell out of the town. At a meeting being present Samuel Bass, James Penniman, Gregory Belshor, Henry Adams, Samuel Adams, it is ordered that every man that is an inhabitant of the towne shall have liberty to take any timber off the common for any use in the towne (provided) so they make not sale of it out of the towne and in case any shall make sale of it out of the towne either in boards or bolts or any other ways whole or sawne they shall pay for every two tunne of timber five shillings a tunne to the towne. 6th 3d Mo. 1653. An order against strangers coming into towne without consent of the Selectmen. There being met together Martin Sanders, Samuel Bass, James Penniman, Richard Brachit, William Allio. Upon consideration of great ill conveniences that may come to the town of Braintree by persons coming in to inhabite amongst us ; It is therefore ordered that noe person or persons shall come in to inhabite amongst us without the consent of the Selectmen upon the penalty of nineteen shillings fine for every three days they shall stay amongst us and it is further ordered that no inhabitant shall receive any person or inmate into their house above three days without the townmefl's consent upon the forfeiture of nineteen shillings and eleven pence. And it is furder ordered that noe man shall build house or cottage within the township of Braintree without the Townesmen consent upon the forfeiture of such penalty aa the Selectmen shall see cause to put and upon them.* Martin Sanders, Richard Brachit, William Allio. 29th 8th mo. 1656. A vote passed at a publike meeting about the common. * It is worth while to notice that just such regulations as this are still in force in parts of Germany. It would be interesting to know whether they arose independently in the two countries or have a common origin in the German mark. 33 2 THE CIVIL INSTITUTIONS OF SOUTH DAKOTA The inhabitant? of Braintree having publike notis given six weeks before the vote passed to give a publike meeting for the ordering and disposing of the common for future times. At which meeting the inhabitants that were met voted the Common for to lye as a free Common unto all inhabitants of the towne that are legally taken in by the Selectmen and such to have like privileges as the grand pur- chasers. But when it was voted at the said meeting there was but four men that dissented or voted against it which were by name as is here underwritten Robert Stevens, John Harbour, Sr., William Vega, Samuel Thompson. March . A vote passed by the towne at a generall meet- ing in year 67 the grant. The Hon'l Generall Courte in way of answer to » petition presented by the deputy of our Towne granted six thousand acres of land to the towne of Braintree ; In case the said grant be layed out and confirmed by the court, it is the vote of the towne 'that every accepted inhabitant wch is an householder in the towne of Braintree shall have an equall interest in the land granted and that every such an inhabitant and householder shall have his equall portion of charge in the seeking of it and laying of it out and all charges as shall follow and every man shall bring in his twelve in money at the present time at or before the 8th day of this instant March. Appendix 333 THE FIRST SCHOOL HOUSE IN DAKOTA. The statement that the first school house erected in Dakota was built at Vermillion in 1864 has been gener- ally accepted until recently (1901). Mr. Doane Robin- son, Secretary of the State Historical Society, has dis- covered evidence that the first school house in the Terri- tory was located at Bon Homme. The evidence in sup- •port of this is from several people who were in Bon Homme from the time of its first settlement in 1858. Mrs. W. T. Williams, nee Rounds, of Tyndall, who was a resident of Bon Homme from the time of its first settlement for many years, was a pupil of the first school in Bon Homme. Mrs. Williams gives very positive evidence relative to the first and second schools taught in Bon Homme, and her testimony is supported by that of several others. In a letter to the writer Mrs. Williams states the case as follows : I " Our family, in company with a number of others, arrived in Bon Homme about Nov. 12th, 1859. Shortly after we were settled, Mr. D. P. Bradford came and built a house for his family, who were then living in Sioux City. His family came to Bon Homme on the first boat in the spring of 1860. The river opened very early that spring, some time in February, and it was probably the latter part of April or the first of May when they arrived. The first school house was built after they came, and as it was a primitive affair it did not take long to build it. Within two weeks of the arrival of the Bradfords, Miss Emma Bradford, second daughter of D. P. Bradford, then about sixteen years of age, was installed as teacher. She taught a three months' term of school. There were ten pupils as follows : John and Le Anna Bradford ; Melissa, John, and Ira Brown ; Ann, Mary, and George McDaniels ; George and Delia 334 THE CIVIL INSTITUTIONS OF SOUTH DAKOTA Rounds. Miss Emma Bradford returned to Sioux City in the fall of 1860 to continue her studies in the schools of that place. In 1861 there was a good deal of building and improvement in the town, but there was no school, from the lack of a teacher, I suppose. In 1862, at the time of the Indian trouble, we had what we considered a fine new school house,* built by Mr. Shober at his own expense. It was made of hewn logs, had a rough cotton-wood floor, cotton- wood shingles on the roof, three windows of two sash each with 8x10 glass, and a ceiling overhead of thin, cotton-wood boards which warped until they looked as though they had been run through a fluting machine. But in that building we never had a school. The people all went to Yankton that year and fortified themselves against the Indians. When the scare was over, very few of them ever returned, some going back to their homes in the East, and a few settling in Iowa. We returned to Bon Homme, and in the spring of 1864 my mother bought from Mr. Shober this new school house. Sometime in June, 1864, there arrived in Bon Homme about a dozen families of what was called the " Syracuse Colony," under the direction of Jas. S. Foster. Mrs. Foster opened a school shortly after their arrival in Mr. Bradford's house, which had been used during the winters of 1862-3 as soldiers' barracks, there having been a squad of soldiers kept in Bon Homme for the protection of the settlers, and as a relay in carrying the dispatches to the forts above us on the river. Mrs. Foster taught a three months' term of school, — and this is the history of the first and second schools in the old town of Bon Homme." The testimony of others resident in Bon Homme dur- ing these years goes to corroborate the facts as recited by Mrs. Williams. Mr. Robinson, in a letter to the writer, says : " I think it can be accepted as true that the first building erected for school purposes was built at Bon Homme in the spring of 1860." The school house built at Vermillion in 1864 has the distinction of having been used continuously for school purposes from the time of its erection until late in Ter- ritorial days, 1873, when a large brick building was erected by the people of Vermillion to take the place of their first school house. * This, then, was the second school house built in Bon Homme. INDEX THE FIGURES REFER TO PAGES Adjutant general, 214. Ambassadors and other public min- isters, 287. Amendment, ratification of, 232. Amendments, I-X, 232; XI, XII, XIII, 233; XIV, XV, 234. American Fur Company, 64. Anglo-Saxon institutions, develop- ment of, 109. Apportionment of Representatives, method of, 243. Arms, right of people to keep and bear, 319. Army and navy, command of, 284. Artesian wells of State, 52. Astor, John Jacob, 54. Attainder, bills of, 317. Attorney-general, 186. Auditor, State, 185. B Bad Lands, 47, 49. Bankruptcy, 266. Banks, National, 269. Bill of Rights, State, 173. Black Hills region of South Da- kota, 45; Indian tradition of, 46; exploration and settlement of, 60. Board of agriculture, State, 192a; canvassers, 189; charities and corrections, 190; education, coun- ty, 161; embalmers, State, 192b; equalization, State, 188; health, State, 191; health, county, 161; medical examiners, State, 192c; pardons, 191; pharmacy, 192b; re- gents, 189; railroad commission- ers, 190. Bonds, United States, 263. Bon Homme, settlement of, 60. Borrowing money, by Congress, 263. Boundaries and area of Dakota, 67. Cabinet, 298. Cases or actions, judicial, 201; in equity, 201-203. Census, 280. Certificates, teachers, 152; revoca- tion of, 154. Certiorari, writ of, 210. Checks and balances, theory of, 174. Choteau, Pierre, 55. Church, national, 318. Circuit court, 197; judges, officers, districts of, 198. City and county government, rela- tions, 168. City government, origin of, 163. Cities, classes, incorporations, de- partments, and officers of, 164; mayor, council, 165; auditor, 166; treasurer, city attorney, assessor, city engineer, president and vice- president of council, 167; chief of police, justices of the peace, 168. Citizens, privileges and immunities of, 315, 319. Civil service, 290. Coinage, United States, 266; silver dollar : 267; fineness and weight of coins, weight of metals, 268; counterfeiting, 268. Colonial governments, character of, 223; relations to home govern- ment, dual character of, 224; divi- sion of authority, 225. Colonization, American, motives for, 115. Columbia Fur Company, 54. Commerce and industry of the Ter- ritory, 77; power of congress over, 264. Committee system, 181, 257. Committee of the whole, 178. Commissioner, food and dairy, 192 ; of insurance, 188; school and pub- lic lands, 186. Compact with the United States, 85. Compulsory education, 151. Confederation, 227. Congress, dual character of, 238; composition of the two houses, 239; compensation and members, 247. Constitutional convention, first, 81; second, 81; third, 84. Constitution, defined, 100; State, 173, 86. Constitution, National, framing of, 229; ratification of, 230; friends and enemies of, 230; amendment of, 232; preamble of, 235; outline of, 236. Consuls, 288. Continental Congress. 227. Cooley, Judge T. M., on constitu- tion making, 86. Co-operation, political, 94. 335 336 INDEX Copyrights and patent rights, 271. County, definition and organization of, 155; " officers and commission- ers, 156; register of deeds, clerk of the circuit court, auditor, 157; treasurer, sheriff, coroner, 158; superintendent of schools, State's attorney, 159; survey, judge, as- sessor, 160; board of health, board of education, compensation of of- ficers, 161; county government, general features of, 155, 17S; or- ganization of, in the South, func- tions of, 127; later development of, 128 ; county, New England, 121-123. Court of justice, defined, 193; juris- diction of, 193. Court, procedure, civil cases, 205- 209; criminal, 209. Courts, United States, 299-302; mil- itary, 305; jurisdiction of, 299, 303. Crimes, defined, 205. Custer City, settlement of, 60. Custer, Lieut-Colonel Geo. A., 60. D Deadwood, settlement of, 61. Departments, National executive, State, 293 ; treasury, war, 294 ; justice, post-office, 295; navy, in- terior, agriculture, commerce and labor, 296. Departments of National govern- ment, 237, District, federal, government of, 273. Districts, State, representative and . . senatorial, 177. Division and admission, movement for, 80. Ealdorman, 107. Eastern section of South Dakota, 45, 50; industries and resources of, 51. Early Period of Territorial life, 71. Education of the Territory, 77; of the State, 89. Election of State executive officers, 187; ballots, time of, 219; pre- cincts and judges, manner of vot- ing, assistance to voters, 220; canvass of vote and making re- turns, 221. Elections, congressional control of, 240. Electoral system, 280; tickets, 276; votes, counting of, 278. Electors, presidential, 275; choice of, meeting of, 277; special pro- visions, 279. Elk Point, settlement of, 60. Emergency clause, 180. Enabling act, 83. Engineer of Irrigation, 1S7. England, Teutonic invasion of, 105. English kingdoms, early, 106. Error, writ of, 211. Ex post facto laws, 317. Federal Convention^ calling of, 228. Food and Dairy Commission, 192. Freedom of speech, 318. Frontier life, 64. Fur industry of the Northwest, 32,33. Q Germans, early, 102 ; Classes of, nobles, 104; freedmen and slaves, 105. Glacial period in Dakota, 41. Government defined, 94; authority, 95; nature and kinds of, 96; re- publican, defects of, 98; central- ized ana decentralized. 98; dual, 99; departments of State, 100; English, 113. Governor, duties of, 184. H Habeas Corpus, writ of, 317. Historical Society, State, 192. History, elements that shape, 29. Holidays, school, 154. House of Representatives, National, officers of, 251. Houses of legislature, National; judges of election of members, 252; quorums, rules of proceed- ings, 253; power to punish mem- bers, journal and voting, 254 ; mode of legislating, 255; com- mittee system, adjournments, 257. House, State, organization of, 176; Speaker, 177. ■ Hudson Bay Company, 54. Hundred meeting, 106. Hundred of the Germans, 103. Ice Age, benefits of, 42. Independence of Colonies, political effects of, 226. Indictment, bill o'f, 204. Information, prosecution upon, 205. Initiative, legislative, 97, 183. Injunction, writ of, 211. Inspector of mines, 187; of oils, 188. Impeachment, defined, power of the House in cases of, 258; power of the w Senate, m 259; trial of cases, punishment in case of conviction, 260; cases of, 261. J Judiciary National, power defined, vesting of power, 298 _; extent of power, kinds of jurisdiction, courts of, 299; appointment of judges, 302; pay of judges, con- current jurisdiction of National and State courts, 303; rules regu- INDEX 337 lating trials, 30 i; military courts, 305. Judiciary, State, 194. Tunes drawing of, 195. Jury, petit, grand, functions of, 203. Jury system, 195. Land survey, origin of, 133; plan of, 134, 310; base line of, 134; range and township lines, correction lines, 136; principal meridian, 136; base line in western part of State, 137; diagram of township, 135, 310; lana office, 133. Later period of Territorial life, 71, 73. Law, sanctity of, 101; common, stat- ute, 203. Laws, necessary, 273. Lead City, settlement of, 61. Legislature, first Territorial, 70; first State, 87; State, 175. Legislation, National, course of, 255- 257; State, course of, 177-180. Library board, county, 163. Lieutenant-Governor, 185. Lobbying, 180. Local government in the South, in Pennsylvania, 129; in New York, two systems of, 130; contrast be- tween systems of, in the West, 131. Louisiana purchase, importance of, 30. Lewis and Clark expedition, 31; de- scription of Dakota, 32. M Mandamus, writ of, 210. Manor, rise of, 108. Markmoot, 103. Mellette, A. C, provisional gov- ernor, 81, 82; on constitution making, 86. Mennonites, 79. Middle period of Territorial life, 71, 72. Military and naval officers, 288. Militia, State, defined, 213. Minnesota, admission of, 58. Minority representation, vote on, 84. Monopolies, natural, 95. N National authority, prohibitions up- on, 317-319. National Government, inauguration of, 231. National Guard, 213; officers of, 214, 215. Naturalization, 265. New England, local government of, character of early town govern- ment, 116, 120; town meeting, 117; school district, 118; township officers, early, 119; county crea- tion and functions of, 121; coun- ty, modern, 122 ; township, mod- ern, officers of, 123. New Northwest, 30; general features of, 33; river system, mountains and minerals, 34; native inhabit- ants, 35. Nobility, titles of, 318. Nominations, presidential, 276. Nominations to State offices by con- ventions, certification of, inde- pendent, 218; publication of, 219. Norman Conquest, 110. Northern Pacific Railway System, 75. Officers, National, appointment of, 286; mode of appointment, 287; removal from office, 289. Officers, Territorial, 70. Officers, South Dakota township, 141-144; New England township, 119; South Dakota county, 156; compensation county officers, 161 ; city, 164-169; town, 169-171; State, 199; National guard, 214. Old Northwest, 31. Omnibus Bill, 83. Organic Act for Dakota, 66. Organization of Dakota as a Terri- tory, 66. Parish in England, origin of, 109; later form of, 112; special phases of, 113; in Virginia, 125; officers of, 126. Parties, origin of, 216; organization of, State, 217; National, 221. Periods of Territorial history, 71. Petition, right of, 318. Picott, Charles F., 59. Pipestone legends, 36. Piracies and felonies, 271. Physical divisions of the State, 45. Political life in Later Territorial Period, 74. Population, movement of, 62. Population, Territorial, character, 78. Postage, rates of, 270. -r Postal service, 270. Powers, implied, of Congress, 273. Pre-Glacial Period in Dakota, 41. Presentment, criminal, 204. ' Presidency, 275. Presidential Succession, 283. President, election of by the House, 278; qualifications of, term of of- fice, salary, 281; oath, 282; com- mander-in-chief of army and navy, pardoning power, 284; making treaties, 285; appointment of offi- cers, 286-289; receiving Ministers, 288; message of, 291. Prohibition, vote on, 84. Prohibition, writ of, 211. Provisional State government, 82; officers, 81. 33« INDEX Provisional or " squatter " govern- ment, 61. Public domain of United States, original, annexations of territory, 306; Territories, 307. Q Quo warranto, writ of, 210. R Railroads, first in Dakota; mileage, 73; of the Territory, 75-77; of Eastern Section, of Black Hills, 76; of North Dakota, 75. Referendum, 97, 183. Registration of voters, 220. , Rights, classes of, 92. i Religious influence and church de- velopment, 87. Representatives, first State, 87; State, qualifications of, 176; Na- tional, qualifications of, 239; elec- tors and appointment, 243 ; elec- tion of, 245-247. Salaries of State officers, 199. School board, 147; powers and du- ties of, 148*; officers of, 149, 150; meetings of, 151 ; compensation of, 154; vacancies in school offices, 151. School district, early New England, 118, 145; South Dakota, kinds of, 145; definition of, powers of elec- tors, 147. School finances, 151. School-house, first in Dakota, 59, 333; lands, 310; sections, 137. Schools of Religious denominations, 88. Secretary of State, 185. Senate, National, officers of, 251; State, organization of, 176. Senator, National, qualifications of, 239; election of, 241; appointment, classes of, 242. Senator, State, qualifications of, 175; appointment of, 184. Senators, first State, 87. Separation of Colonies from Eng- land, causes of, 225. Settlement, first in Dakota, 65; con- ditions of," in the South, 125. Settlers of Dakota, character of, 63; of New England, 115; of the South, 124. Sheriff, 107. Shire, Anglo-Saxon, 107; seven- teenth century, functions of, 111. Sioux Falls, settlement of, 57. Society defined, 92. Soil of Dakota, 43. Soldiers, quartering of in private houses, 318. Soldiers' Home, 192a. Southeastern Dakota, early settle- ments in, 59. Special Legislation, 182. State and Federal government, rela- tions of, 312, 313, State Courts, appeals from, 303. State, defined, 93. State Geologist, 187. State government, 172; departments, 173. State history, first decade of, 90. Statehood, significance of, 82. State institutions, 89. State, National functions of, 313; prohibition upon, 314; duties of, to other States, 314; invasion and domestic violence in, 315; inde- pendence, 99. States, provision for new, 307; ad- mission of, 308; number admitted, 309; names of States and dates of admission, 311. St. Paul Land Company, 57. Subpoena, 212. Superintendent of Public Instruc- tion, 186. Supreme Court of State, 196; judges, officers, and districts of, 197. Table Land Region of South Da- kota, 45, 49. Taxation, National, 262; rules, 263; theory of, 95. Teacher, qualifications of, 152; pow- ers and duties of, 153. Telegraph, first in Dakota, 72. Territorial government, general character of, 68, 308; Legislative, Judiciary, 69. Territory, Indian, 309. Town-meeting,, Anglo-Saxon, charac- ter of, 105; South Dakota, 139; New England, 117. Towns, government, 163, 169 ; offi- cers, board of trustees, 169; presi- dent of board, clerk, marshal, treasurer, 170; justice of the peace, assessor, street commission- ers, and fire wardens, 171. Township, modern New England, 123. Township, South Dakota civil, defi- nition of, 138; organization, 139, 172; town-meeting of, 139; powers and by-laws of town-meeting, 140; board of supervisors, 141; treas- urer, clerk, assessor, 142; justices of the peace, constable, 143 ; over- seer of highways, compensation of officers, 144. Trading companies, 54. Treason, 305. Treasurer, State, 185. Treasury notes, 264. Treasury, United States, 269. Treaties and mode of making, 285. Treaties with the Indians, 55, 56. Tribal-meeting, Teutonic, 103. INDEX U Union, supremacy of, 316. V Veterinary Surgeon, 188. Veto, of governor, 180; of president, 255. Vermillion, settlement of, 59. Vice-president, election "of, by Sen- ate, 279; relations to presidency, 283. Village communities, 102. 339 W Wagon roads, congressional appro- priation for, 72. Wardens, fish and game, 192c. Weights and measures, 269. Western Town Company, 57. Witenagemote, 110, 114. Writs, court; habeas corpus, man- damus, quo warranto, certiorari, 210; injunction, prohibition, error, 211; subpoena, warrant, 212. Yankton, settlement of, 58.