Section 3. _the State Governments._

In pointing out this inconvenience attendant upon the American plan of separating the executive and legislative departments, I must not be understood as advocating the European plan as preferable for this country. The evils that inevitably flow from any fundamental change in the institutions of a country are apt to be much more serious than the evils which the change is intended to remove. Political government is like a plant; a little watering and pruning do very well for it, but the less its roots are fooled with, the better. In the American system of government the independence of the executive department, with reference to the legislative, is fundamental; and on the whole it is eminently desirable. One of the most serious of the dangers which beset democratic government, especially where it is conducted on a great scale, is the danger that the majority for the time being will use its power tyrannically and unscrupulously, as it is always tempted to do. Against such unbridled democracy we have striven to guard ourselves by various constitutional checks and balances. Our written constitutions and our Supreme Court are important safeguards, as will be shown below. The independence of our executives is another important safeguard. But if our executive departments were mere committees of the legislature--like the English cabinet, for example--this independence could not possibly be maintained; and the loss of it would doubtless entail upon us evils far greater than those which mow flow from want of leadership in our legislatures.

We must remember that government is necessarily a cumbrous affair, however conducted.

The only occasion on which the governor is a part of the legislature is when he signs or vetoes a bill. Then he is virtually in himself a third house. As an executive officer the governor is far less powerful than in the colonial times. We shall see the reason of this after we have enumerated some of the principal offices in the executive department. There is always a secretary of state, whose main duty is to make and keep the records of state transactions. There is always a state treasurer, and usually a state auditor or comptroller to examine the public accounts and issue the warrants without which the treasurer cannot pay out a penny of the state's money. There is almost always an attorney-general, to appear for the state in the supreme court in all cases in which the state is a party, and in all prosecutions for capital offences. He also exercises some superintendence over the district attorneys, and acts as legal adviser to the governors and the legislature. There is also in many states a superintendent of education; and in some there are boards of education, of health, of lunacy and charity, bureau of agriculture, commissioners of prisons, of railroads, of mines, of harbours, of immigration, and so on. Sometimes such boards are appointed by the governor, but such officers as the secretary of state, the treasurer, auditor, and attorney-general are, in almost all the states, elected by the people. They are not responsible to the governor, but to the people who elect them. They are not subordinate to the governor, but are rather his colleagues. Strictly speaking, the governor is not the head of the executive department, but a member of it. The executive department is parcelled out in several pieces, and his is one of the pieces.

Such, in brief outline, is the framework of the American state governments. But our account would be very incomplete without some mention of three points, all of them especially characteristic of the American state, and likely to be overlooked or misunderstood by Europeans.

The smallest civil division in France is the commune, which may be either rural or urban. The commune has a municipal council which elects a mayor; but when once elected the mayor becomes directly responsible to the prefect of the department, and through him to the minister of the interior. If these greater officers do not like what the mayor does, they can overrule his acts or even suspend him from office; or upon their complaint the President of the Republic can remove him.

Hence it is commonly remarked that while the general intelligence of the French people is very high, their intelligence in political matters is, comparatively speaking, very low. Some persons try to explain this by a reference to peculiarities of race. But if we Americans were to set about giving to the state governments things to do that had better be done by counties and towns, and giving the federal government things to do that had better be done by the states, it would not take many generations to dull the keen edge of our political capacity. We should lose it as inevitably as the most consummate of pianists will lose his facility if he stops practising. It is therefore a fact of cardinal importance that in the United States the local governments of township, county, and city are left to administer themselves instead of being administered by a great bureau with its head at the state capital. In a political society thus constituted from the beginning it has proved possible to build up our Federal Union, in which the states, while for certain purposes indissolubly united, at the same time for many other purposes retain their self-government intact. As in the case of other aggregates, the nature of the American political aggregate has been determined by the nature of its political units.

Compared with the vast prerogatives of the state legislatures, these limitations seem small enough. All the civil and religious rights of our citizens depend upon state legislation; the education of the people is in the care of the states; with them rests the regulation of the suffrage; they prescribe the rules of marriage, the legal relations of husband and wife, of parent and child; they determine the powers of masters over servants and the whole law of principal and agent, which is so vital a matter in all business transactions; they regulate partnership, debt and credit, insurance; they constitute all corporations, both private and municipal, except such as specially fulfill the financial or other specific functions of the federal government; they control the possession, distribution, and use of property, the exercise of trades, and all contract relations; and they formulate and administer all criminal law, except only that which concerns crimes committed against the United States, on the high seas, or against the law of nations. Space would fail in which to enumerate the particulars of this vast range of power; to detail its parts would be to catalogue all social and business relationships, to examine all the foundations of law and order.

This enumeration, by Mr. Woodrow Wilson, is so much to the point that I content myself with transcribing it. A very remarkable illustration of the preponderant part played by state law in America is given by Mr. Wilson, in pursuance of the suggestion of Mr. Franklin Jameson. Consider the most important subjects of legislation in England during the present century, the subjects which make up almost the entire constitutional history of England for eighty years. These subjects are Catholic emancipation, parliamentary reform, the abolition of slavery, the amendment of the poor-laws, the reform of municipal corporations, the repeal of the corn laws, the admission of Jews to parliament, the disestablishment of the Irish church, the alteration of the Irish land laws, the establishment of national education, the introduction of the ballot, and the reform of the criminal law. In the United States only two of these twelve great subjects could be dealt with by the federal government: the repeal of the corn laws, as being a question of national revenue and custom-house duties, and the abolition of slavery, by virtue of a constitutional amendment embodying some of the results of our Civil War. All the other questions enumerated would have to be dealt with by our state governments; and before the war that was the case with the slavery question also. A more vivid illustration could not be asked for.

How complete is the circle of points in which the state touches the life of the American citizen, we may see in the fact that our state courts make a complete judiciary system, from top to bottom independent of the federal courts. An appeal may be carried from a state court to a federal court in cases which are found to involve points of federal law, or in suits arising between citizens of different states, or where foreign ambassadors are concerned. Except for such cases the state courts make up a complete judiciary world of their own, quite outside the sphere of the United States courts.

QUESTIONS ON THE TEXT.

1. Modifications of state government during the present century:--

a. Property qualifications for office. b. The distinction between the upper and the lower house. c. The advantage in retaining a two-chambered legislature.

2. The suffrage:--

a. The persons to whom it is granted. b. The qualifications established. c. The persons excluded from its exercise.

3. The separation of the executive and legislative departments:--

a. The relation of the great executive officers to legislation in Europe. b. The work of legislation in the United States. c. The most serious of the dangers that beset democratic government. d. Important safeguards against such a danger.

4. The state executive:--

a. The governor as a part of the legislature. b. Officers always belonging to executive departments. c. Officers frequently belonging to executive departments. d. The relation of the governor to other elected executive officers.

5. The ordinary functions of the governor:--

a. Advising the legislature. b. Commanding the militia. c. Pardoning criminals or commuting their sentences. d. Vetoing acts of the legislature.

6. Why is the power to veto particular items in a bill appropriating public money an important safeguard against corruption?

7. Local self-government in the United States left unimpaired:--

a. The extent of state supervision of towns and counties. b. The spirit thus developed in American citizens.

8. A lesson from the symmetry of the French government:--

a. The departments and their administration. b. The prefect and his duties. c. The department council and its sphere of action. d. The commune. e. The French system contrasted with the American. f. A common view of the political intelligence of the French. g. The probable effect of excessive state control upon the political intelligence of Americans.

9. The greatness of the functions retained by the states under the federal government:--

a. Powers granted to the government of the United States. b. The reason for granting such powers, c. The powers denied to the states. d. The reason for such prohibitions. e. The vast range of powers exercised by the states. f. The most important subjects of legislation in England for the past eighty years. g. The governments, state or national, to which these twelve subjects would have fallen in the United States.

10. Speak of the independence of the state courts.

11. In what cases only may matters be transferred from them to a federal court?

12. The constitution of the state courts:--

a. Justices of the peace; the mayor's court. b. County and municipal courts. c. The superior courts. d. The supreme court. e. Still higher courts in certain states.

13. The selection of judges and their terms of service:--

a. In the thirteen colonies. b. In most of the states since the Revolution. c. The reasons for a life tenure. d. The tendency since 1869.

14. Mention a conspicuous advantage of our system of government over the French.

SUGGESTIVE QUESTIONS AND DIRECTIONS.

1. Was there ever a charter government in your state? If so, where is the charter at the present time? What is its present value? Try to see it, if possible. Pupils of Boston and vicinity, for example, may examine in the office of the secretary of state, at the state house, the charter of King Charles (1629) and that of William and Mary (1692).

2. When was your state organized under its present government? If it is not one of the original thirteen, what was its history previous to organization; that is, who owned it and controlled it, and how came it to become a state?

3. What are the qualifications for voting in your state?

4. What are the arguments in favour of an educational qualification for voters (as, for example, the ability to read the Constitution of the United States)? What reasons might be urged against such qualifications?

5. Who is the governor of your state? What political party supported him for the position? For what ability or eminent service was he selected?

6. Give illustrations of the governor's exercise of the four functions of advising, vetoing, pardoning, and commanding (consult the newspapers while the legislature is in session).

7. Mention some things done by the governor that are not included in the enumeration of his functions in the text.

8. Visit, if practicable, the State House. Observe the various offices, and consider the general nature of the business done there. Attend a session of the Senate or the House of Representatives. Obtain some "orders of the day."

9. If the legislature is in session, follow its proceedings in the newspapers. What important measures are under discussion? On what sort of questions are party lines pretty sharply drawn? On what sort of questions are party distinctions ignored?

10. Consult the book of general or public statutes, and report on the following points:--

a. The magnitude of the volume. b. Does it contain all the laws? If not, what are omitted? c. Give some of the topics dealt with. d. Where are the laws to be found that have been made since the printing of the volume? e. Are the originals of the laws in the volume? If not, where are they and in what shape?

11. Is everybody expected to know all the laws?

12. Does ignorance of the law excuse one for violating it?

13. Suppose people desire the legislature to pass some law, as, for example, a law requiring towns and cities to provide flags for school-houses, how is the attention of the legislature secured? What are the various stages through which the bill must pass before it can become a law? Why should there be so many stages?

14. Give illustrations of the exercise of federal government, state government, and local government, in your own town or city. Of which government do you observe the most signs? Of which do you observe the fewest signs? Of which government do the officers seem most sensitive to local opinion?

15. Are the sessions of the legislature in your state annual or biennial? What is the argument for each system?

For answers to numbers 16, 17, 18, and 19, consult the public statutes, a lawyer, or some intelligent business man. A fair idea of the successive steps in the courts may be obtained from a good unabridged dictionary by looking up the technical terms employed in these questions.

16. What is the difference between a civil action and a criminal?

a. In respect to the object to be gained in each? b. In respect to the party that is the plaintiff? c. In respect to the consequences to the defendant if the case goes against him?

17. Give an outline of the procedure in a minor criminal action that is tried without a jury in a lower court. Consider (1) the complaint, (2) the warrant, (3) the return, (4) the recognizance, (5) the subpoena, (6) the arraignment, (7) the plea, (8) the testimony, (9) the arguments,(10) the judgment and sentence, and (11) the penalty and its enforcement.

What is an appeal?--This procedure seems cumbrous, but it is founded in common sense. What one of the foregoing steps, for example, would you omit? Why?

18. Give an outline of the procedure in a criminal action that is tried with a jury in a higher court. The action is begun in a lower court where the first five stages are the same as in number 17. Then follow (6) the examination of witnesses, (7) the binding over of the accused to appear before the higher court for trial, (8) the sending of the complaint and the proceedings thereon to the district or county attorney, (9) the indictment, (10) the action of the grand jury upon the indictment, (11) the challenging of jurors before the trial, (12) the arraignment, (13) the plea, (14) the testimony, (15) the arguments, (16) the charge to the jury, (17) the verdict, and (18) the sentence, with its penalty and the enforcement of it. What are "exceptions?"--Why should there be a jury in the higher court when there is none in the lower? What is the objection to dispensing with any one of the foregoing steps? Does this machinery make it difficult to punish crime? Why should an accused person receive so much consideration?

19. Give an outline of the procedure in a minor civil action. Consider (1) the writ, (2) the attachment, (3) the summons to the defendant, (4) the return, (5) the pleading, (6) the testimony, (7) the arguments, (8) the judgment or decision of the judge, and (9) the execution.--If the action is conducted in a higher court, then a jury decides the question at issue, the judge instructing the jurors in points of law.

20. Suppose an innocent man is tried for an alleged crime and acquitted, has he any redress?

21. Is the enforcement of law complete and satisfactory in your community?

22. What is your opinion of the general security of person and property in your community?

23. Is there any connection between public sentiment about a law and the enforcement of that law? If so, what is it?

24. Any one of the twelve subjects of legislation cited on page 177 may be taken as a special topic. Consult any modern history of England.

25. Which do you regard as the more important possession for the citizen,--an acquaintance with the principles and details of government and law, or a law-abiding and law-supporting spirit? What reasons have you for your opinion? Where is your sympathy in times of disorder, with, those who defy the law or with those who seek to enforce it? (Suppose a case in which you do not approve the law, and then answer.)

26. May you ever become an officer of the law? Would you as a citizen be justified in withholding from an officer that obedience and moral support which you as an officer might justly demand from every citizen?

BIBLIOGRAPHICAL NOTE.

The State.--For the founding of the several colonies, their charters, etc., the student may profitably consult the learned monographs in Winsor's Narrative and Critical History of America, 8 vols., Boston, 1886-89. A popular account, quite full in details, is given in Lodge's Short History of the English Colonies in America, N. Y., 1881. There is a fairly good account of the revision and transformation of the colonial governments in Bancroft's History of the United States, final edition, N.Y., 1886, vol. v. pp. 111-125.

The series of "American Commonwealths," edited by H.E. Scudder, and published by Houghton, Mifflin & Co., will be found helpful. The following have been published: Johnston, Connecticut: a Study of a Commonwealth-Democracy, 1887; Roberts, New York: the Planting and Growth of the Empire State, 2 vols., 1887; Browne, Maryland: the History of a Palatinate, 2d ed., 1884; Cooke, Virginia: a History of the People, 1883; Shaler, Kentucky: a Pioneer Commonwealth, 1884; King, Ohio: First Fruits of the Ordinance of 1787,1888; Dunn, Indiana: a Redemption from Slavery, 1888; Cooley, Michigan: a History of Governments, 1885; Carr, Missouri: a Bone of Contention, 1888; Spring, Kansas: the Prelude to the War for the Union, 1885; Royce, California: a Study of American Character, 1886; Barrows, Oregon: the Struggle for Possession, 1883.

In connection with the questions on page 183, the student is advised to consult Dole's Talks about Law: a Popular Statement of What our Law is and How it is Administered, Boston, 1887. This book deserves high praise. In a very easy and attractive way it gives an account of such facts and principles of law as ought to be familiarly understood by every man and woman.