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Civil Government in the United States Considered with - Some Reference to Its Origins
by John Fiske
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[Sidenote: Baneful effects of mixing city politics with national politics.] The purification of our city governments will never be completed until they are entirely divorced from national party politics. The connection opens a limitless field for "log-rolling," and rivets upon cities the "spoils system," which is always and everywhere incompatible with good government. It is worthy of note that the degradation of so many English boroughs and cities during the Tudor and Stuart periods was chiefly due to the encroachment of national politics upon municipal politics. Because the borough returned members to the House of Commons, it became worth while for the crown to intrigue with the municipal government, with the ultimate object of influencing parliamentary elections. The melancholy history of the consequent dickering and dealing, jobbery and robbery, down to 1835, when the great Municipal Corporations Act swept it all away, may be read with profit by all Americans.[17] It was the city of London only, whose power and independence had kept it free from complications with national politics, that avoided the abuses elsewhere prevalent, so that it was excepted from the provisions of the Act of 1835, and still retains its ancient constitution.

[Footnote 17: See Parliamentary Reports, 1835, "Municipal Corporations Commission;" also Sir Erskine May, Const. Hist., vol. ii. chap, xv.]

In the United States the entanglement of municipal with national politics has begun to be regarded as mischievous and possibly dangerous, and attempts have in some cases been made toward checking it by changing the days of election, so that municipal officers may not be chosen at the same time with presidential electors. Such a change is desirable, but to obtain a thoroughly satisfactory result, it will be necessary to destroy the "spoils system" root and branch, and to adopt effective measures of ballot reform. To these topics I shall recur when treating of our national government. But first we shall have to consider the development of our several states.

QUESTIONS ON THE TEXT.

Give an account of city government in the United States, under the following heads:—

1. The American city:—

a. The mayor. b. The heads of departments. c. The city council. d. The judges. e. Appropriations.

f. The power of committees.

2. The practical workings of city governments:—

a. The contrast they show between theory and practice. b. Various complaints urged against city governments. c. Their effect upon the old-time confidence in the perfection of our institutions.

3. The growth of American cities:—

a. The cities of Washington's time and those of to-day. b. The population of cities in 1790 and their population to-day. c. City growth since 1840.

4. Some consequences of rapid city growth:— a. The pressure to construct public works. b. The incurring of heavy debts. c. The wastefulness due to a lack of foresight. d. The increase in government due to the complexity of a city. e. An illustration of this complexity in Boston. f. The consequent mystery that enshrouds much of city government.

5. Some evils due to the fear of a "one-man" power:— a. The objection to such power a century ago. b. Restrictions imposed upon the mayor's power. c. The division and weakening of responsibility. d. The lack of unity in the administration of business. e. The inefficiency of committees for executive purposes. f. The alarming increase in city debts.

6. Attempts to remedy some of the evils of city government:— a. The power of veto granted to the mayor. b. The limitation of city indebtedness. c. State control of some city departments.

7. Difficulties inherent in state control of cities:— a. Lack of familiarity with city affairs. b. The tendency to "log-rolling." c. Lack of time due to the pressure of state affairs. d. The failure of state control as shown in the rule of the Tweed ring.

8. The government of the city of Brooklyn:— a. The elevation of the "one-man" power above that of the "ring." b. Officers elected by the people. c. Officers appointed by the mayor. d. The principle of well-defined responsibility. e. The appointment of certain boards by the mayor. f. The holding of the purse-strings. g. The inadequacy of the township elective system, in a city like Brooklyn.

9. Restriction of the suffrage:— a. The dangers from large masses of ignorant voters. b. The responsibility for the debt of Philadelphia and other cities. c. The dangers from large classes who feel that political rights are denied them.

d. Suffrage as a "safety-valve."

10. The mixture of city politics with those of the state or nation:

a. The degradation of the English borough. b. The exemption, of London from the Municipal Corporations Act. c. The importance of separate days for municipal elections. d. The importance of abolishing the "spoils system."

SUGGESTIVE QUESTIONS AND DIRECTIONS.

(Chiefly for pupils who live in cities.)

1. When was your city organized?

2. Give some account of its growth, its size, and its present population. How many wards has it? Give their boundaries. In which ward do you live?

3. Examine its charter, and report a few of its leading provisions.

4. What description of government in this chapter comes nearest to that of your city?

5. Consider the suggestions about the study of town government (pp. 43, 44), and act upon such of them as are applicable to city government.

6. What is the general impression about the purity of your city government? (Consult several citizens and report what you find out.)

7. What important caution should be observed about vague rumours of inefficiency or corruption?

8. What are the evidences of a sound financial condition in a city?

9. Is the financial condition of your city sound?

10. When debts are incurred, are provisions made at the same time for meeting them when due?

11. What are "sinking funds"?

12. What wants has a city that a town is free from?

13. Describe your system of public water works, making an analysis of important points that may be presented.

14. Do the same for your park system or any other system that involves a long time for its completion as well as a great outlay.

15. Are the principles of civil service reform recognized in your city? If so, to what extent? Do they need to be extended further?

16. Describe the parties that contended for the supremacy in your last city election and tell what questions were at issue between them.

17. What great corporations exact an influence in your city affairs? Is such influence bad because it is great? What is a possible danger from such influence?

18. In view of the vast number and range of city interests, what is the most that the average citizen can reasonably be asked to know and to do about them? What things is it indispensable for him to know and to do is he is to contribute to good government?

BIOGRAPHICAL NOTE.

Section 1. DIRECT AND INDIRECT GOVERNMENT.—The transition from direct to indirect government, as illustrated in the gradual development of a township into a city, may be profitably studied in Quincy's Municipal History of Boston, Boston, 1852; and in Winsor's Memorial History of Boston, vol. iii. pp. 189-302, Boston, 1881.

Section 2. ORIGIN OF ENGLISH BOROUGHS AND CITIES.—See Loftie's History of London, 2 vols., London, 1883; Toulmin Smith's English Gilds, with Introduction by Lujo Brentano, London, 1870; and the histories of the English Constitution, especially those of Gneist, Stubbs, Taswell-Langmead, and Hannis Taylor.

Section 3. GOVERNMENT OF CITIES IN THE UNITED STATES.—J.H.U. Studies, III., xi.-xii., J.A. Porter, The City of Washington; IV., iv., W.P. Holcomb, Pennsylvania Boroughs; IV., x., C.H. Lovermore, Town and City Government of New Haven; V., i.-ii., Allinson and Penrose, City Government of Philadelphia; V., iii., J.M. Bugbee, The City Government of Boston; V., iv., M.S. Snow, The City Government of St. Louis; VII., ii.-iii., B. Moses, Establishment of Municipal Government in San Francisco; VII., iv., W.W. Howe, Municipal History of New Orleans; also Supplementary Notes, No. 4, Seth Low, The Problem of City Government (compare No. 1, Albert Shaw, Municipal Government in England.) See, also, the supplementary volumes published at Baltimore,—Levermore's Republic of New Haven, 1886, Allinson and Penrose's Philadelphia, 1681-1887: a History of Municipal Development, 1887.



CHAPTER VI.

THE STATE.

Section 1. The Colonial Governments.

[Sidenote: Claims of Spain to the possession of North America.] In the year 1600 Spain was the only European nation which had obtained a foothold upon the part of North America now comprised within the United States. Spain claimed the whole continent on the strength of the bulls of 1493 and 1494, in which Pope Alexander VI. granted her all countries to be discovered to the west of a certain meridian which, happens to pass a little to the east of Newfoundland. From their first centre in the West Indies the Spaniards had made a lodgment in Florida, at St. Augustine, in 1565; and from Mexico they had in 1605 founded Santa Fe, in what is now the territory of New Mexico.

[Sidenote: Claims of France and England.] France and England, however, paid little heed to the claim of Spain. France had her own claim to North America, based on the voyages of discovery made by Verrazano in 1524 and Cartier in 1534, in the course of which New York harbour had been visited and the St. Lawrence partly explored. England had a still earlier claim, based on the discovery of the North American continent in 1497 by John Cabot. It presently became apparent that to make such claims of any value, discovery must be followed up by occupation of the country. Attempts at colonization had been made by French Protestants in Florida in 1562-65, and by the English in North Carolina in 1584-87, but both attempts had failed miserably. Throughout the sixteenth century French and English sailors kept visiting the Newfoundland fisheries, and by the end of the century the French and English governments had their attention definitely turned to the founding of colonies in North America.

[Sidenote: The London and Plymouth Companies.] In 1606 two great joint-stock companies were formed in England for the purpose of planting such colonies. One of these companies had its headquarters at London, and was called the London Company; the other had its headquarters at the seaport of Plymouth, in Devonshire, and was called the Plymouth Company. To the London Company the king granted the coast of North America from 34 deg. to 38 deg. north latitude; that is, about from Cape Fear to the mouth of the Rappahannock. To the Plymouth Company he granted the coast from 41 deg. to 45 deg.; that is, about from the mouth of the Hudson to the eastern extremity of Maine. These grants were to go in straight strips or zones across the continent from the Atlantic Ocean to the Pacific. Almost nothing was then known about American geography; the distance from ocean to ocean across Mexico was not so very great, and people did not realize that further north it was quite a different thing. As to the middle strip, starting from the coast between the Rappahannock and the Hudson, it was open to the two companies, with the understanding that neither was to plant a colony within 100 miles of any settlement already begun by the other. This meant practically that it was likely to be controlled by whichever company should first come into the field with a flourishing colony. Accordingly both companies made haste and sent out settlers in 1607, the one to the James River, the other to the Kennebec. The first enterprise, after much suffering, resulted in the founding of Virginia; the second ended in disaster, and it was not until 1620 that the Pilgrims from Leyden made the beginnings of a permanent settlement upon the territory of the Plymouth Company.

[Sidenote: Their common charter.] These two companies were at first organized under a single charter. Each was to be governed by a council in England appointed by the king, and these councils were to appoint councils of thirteen to reside in the colonies, with powers practically unlimited. Nevertheless the king covenanted with his colonists as follows: Also we do, for us, our heirs and successors, declare by these presents that all and every the persons, being our subjects, which shall go and inhabit within the said colony and plantation, and every their children and posterity, which shall happen to be born within any of the limits thereof, shall have and enjoy all liberties, franchises, and immunities of free denizens and natural subjects within any of our other dominions, to all intents and purposes as if they had been abiding and born within this our realm of England, or in any other of our dominions. This principle, that British subjects born in America should be entitled to the same political freedom as if born in England, was one upon which the colonists always insisted, and it was the repeated and persistent attempts of George III. to infringe it that led the American colonies to revolt and declare themselves independent of Great Britain.

[Sidenote: Dissolution of the two companies.] [Sidenote: Settlement of the three zones.] Both the companies founded in 1606 were short-lived. In 1620 the Plymouth Company got a new charter, which made it independent of the London Company. In 1624 the king, James I., quarreled with the London Company, brought suit against it in court, and obtained from the subservient judges a decree annulling its charter. In 1635 the reorganized Plymouth Company surrendered its charter to Charles I. in pursuance of a bargain which need not here concern us.[1] But the creation of these short-lived companies left an abiding impression upon the map of North America and upon the organization of civil government in the United States. Let us observe what was done with the three strips or zones into which the country was divided: the northern or New England zone, assigned to the Plymouth Company; the southern or Virginia zone, assigned to the London Company; and the central zone, for which the two companies were, so to speak, to run a race.

[Footnote 1: See my Beginnings of New England, p. 112.]

[Sidenote: 1. the northern zone.] [Sidenote: 2. The southern zone.] In 1663 Charles II. cut off the southern part of Virginia, the area covering the present states of North and South Carolina and Georgia, and it was formed into a new province called Carolina. In 1729 the two groups of settlements which had grown up along its coast were definitively separated into North and South Carolina; and in 1732 the frontier portion toward Florida was organized into the colony of Georgia. Thus four of the original thirteen states—Virginia, the two Carolinas, and Georgia—were constituted in the southern zone.

To this group some writers add Maryland, founded in 1632, because its territory had been claimed by the London Company; but the earliest settlements in Maryland, its principal towns, and almost the whole of its territory, come north of latitude 38 deg. and within the middle zone.

[Sidenote: 3. The middle zone.] Between the years 1614 and 1621 the Dutch founded their colony of New Netherland upon the territory included between the Hudson and Delaware rivers, or, as they quite naturally called them, the North and South rivers. They pushed their outposts up the Hudson as far as the site of Albany, thus intruding far into the northern zone. In 1638 Sweden planted a small colony upon the west side of Delaware Bay, but in 1655 it was surrendered to the Dutch. Then in 1664 the English took New Netherland from the Dutch, and Charles II. granted the province to his brother, the Duke of York. The duke proceeded to grant part of it to his friends, Berkeley and Carteret, and thus marked off the new colony of New Jersey. In 1681 the region west of New Jersey was granted to William Penn, and in the following year Penn bought from the Duke of York the small piece of territory upon which the Swedes had planted their colony. Delaware thus became an appendage to Penn's greater colony, but was never merged in it. Thus five of the original thirteen states—Maryland, New York, New Jersey, Pennsylvania, and Delaware—were constituted in the middle zone.

As we have already observed, the westward movement of population in the United States has largely followed the parallels of latitude, and thus the characteristics of these three original strips or zones have, with more or less modification, extended westward. The men of New England, with their Portland and Salem reproduced more than 3000 miles distant in the state of Oregon, and within 100 miles of the Pacific Ocean, may be said in a certain sense to have realized literally the substance of King James's grant to the Plymouth Company. It will be noticed that the kinds of local government described in our earlier chapters are characteristic respectively of the three original zones: the township system being exemplified chiefly in the northern zone, the county system in the southern zone, and the mixed township-county system in the central zone.

[Sidenote: House of Burgesses in Virginia.] The London and Plymouth companies did not perish until after state governments had been organized in the colonies already founded upon their territories. In 1619 the colonists of Virginia, with the aid of the more liberal spirits in the London Company, secured for themselves a representative government; to the governor and his council, appointed in England, there was added a general assembly composed of two burgesses from each "plantation," [2] elected by the inhabitants. This assembly, the first legislative body that ever sat in America, met on the 30th of July, 1619, in the choir of the rude church at Jamestown. The dignity of the burgesses was preserved, as in the House of Commons, by sitting with their hats on; and after offering prayer, and taking the oath of allegiance and supremacy, they proceeded to enact a number of laws relating to public worship, to agriculture, and to intercourse with the Indians. Curiously enough, so confident was the belief of the settlers that they were founding towns, that they called their representatives "burgesses," and down to 1776 the assembly continued to be known as the House of "Burgesses," although towns refused to grow in Virginia, and soon after counties were organized in 1634 the burgesses sat for counties. Such were the beginnings of representative government in Virginia.

[Footnote 2: The word "plantation" is here used, not in its later and ordinary sense, as the estate belonging to an individual planter, but in an earlier sense. In this early usage it was equivalent to "settlement." It was used in New England as well as in Virginia; thus Salem was spoken of by the court of assistants in 1629 as "New England's Plantation."]

[Sidenote: Company of Massachusetts Bay.] The government of Massachusetts is descended from the Dorchester Company formed in England in 1623, for the ostensible purpose of trading in furs and timber and catching fish on the shores of Massachusetts Bay. After a disastrous beginning this company was dissolved, but only to be immediately reorganized on a greater scale. In 1628 a grant of the land between the Charles and Merrimack rivers was obtained from the Plymouth Company; and in 1629 a charter was obtained from Charles I. So many men from the east of England had joined in the enterprise that it could no longer be fitly called a Dorchester Company. The new name was significantly taken from the New World. The charter created a corporation under the style of the Governor and Company of Massachusetts Bay in New England. The freemen of the Company were to hold a meeting four times a year; and they were empowered to choose a governor, a deputy governor, and a council of eighteen assistants, who were to hold their meetings each month. They could administer oaths of supremacy and allegiance, raise troops for the defence of their possessions, admit new associates into the Company, and make regulations for the management of their business, with the vague and weak proviso that in order to be valid their enactment must in no wise contravene the laws of England. Nothing was said as to the place where the Company should hold its meetings, and accordingly after a few months the Company transferred itself and its charter to New England, in order that it might carry out its intentions with as little interference as possible on the part of the crown.

Whether this transfer of the charter was legally justifiable or not is a question which has been much debated, but with which we need not here vex ourselves. The lawyers of the Company were shrewd enough to know that a loosely-drawn instrument may be made to admit of great liberty of action. Under the guise of a mere trading corporation the Puritan leaders deliberately intended to found a civil commonwealth in accordance with their own theories of government.

[Sidenote: Government of Massachusetts; the General Court] After their arrival in Massachusetts, their numbers increased so rapidly that it became impossible to have a primary assembly of all the freemen, and so a representative assembly was devised after the model of the Old English county court. The representatives sat for townships, and were called deputies. At first they sat in the same chamber with the assistants, but in 1644 the legislative body was divided into two chambers, the deputies forming the lower house, while the upper was composed of the assistants, who were sometimes called magistrates. In elections the candidates for the upper house were put in nomination by the General Court and voted on by the freemen. In general the assistants represented the common or central power of the colony, while the deputies represented the interests of popular self-government. The former was comparatively an aristocratic and the latter a democratic body, and there were frequent disputes between the two.

It is worthy of note that the governing body thus constituted was at once a legislative and a judicial body, like the English county court which served as its model. Inferior courts were organized at an early date in Massachusetts, but the highest judicial tribunal was the legislature, which was known as the General Court. It still bears this name to-day, though it long ago ceased to exercise judicial functions.

[Sidenote: New charter of Massachusetts] Now as the freemen of Massachusetts directly chose their governor and deputy-governor, as well as their chamber of deputies, and also took part in choosing their council of assistants, their government was virtually that of an independent republic. The crown could interpose no effective check upon its proceedings except by threatening to annul its charter and send over a viceroy who might be backed up, if need be, by military force. Such threats were sometimes openly made, but oftener hinted at. They served to make the Massachusetts government somewhat wary and circumspect, but they did not prevent it from pursuing a very independent policy in many respects, as when, for example, it persisted in allowing none but members of the Congregational church to vote. This measure, by which it was intended to preserve the Puritan policy unchanged, was extremely distasteful to the British government. At length in 1684 the Massachusetts charter was annulled, an attempt was made to suppress town-meetings, and the colony was placed under a military viceroy, Sir Edmund Andros. After a brief period of despotic rule, the Revolution in England worked a change. In 1692 Massachusetts received a new charter, quite different from the old one. The people were allowed to elect representatives to the General Court, as before, but the governor and lieutenant-governor were appointed by the crown, and all acts of the legislature were to be sent to England for royal approval. The general government of Massachusetts was thus, except for its possession of a charter, made similar to that of Virginia.

[Sidenote: Connecticut and Rhode Island] The governments of Connecticut and Rhode Island were constructed upon the same general plan as the first government of Massachusetts. Governors councils, and assemblies were elected by the people. These governments were made by the settlers themselves, after they had come out from Massachusetts; and through a very singular combination of circumstances[3] they were confirmed by charters granted by Charles II in 1662, soon after his return from exile. So thoroughly republican were these governments that they remained without change until 1818 in Connecticut and until 1842 in Rhode Island.

[Footnote 3: See my Beginnings of New England, pp. 192-196.]

We thus observe two kinds of state government in the American colonies. In both kinds the people choose a representative legislative assembly; but in the one kind they also choose their governor, while in the other kind the governor is appointed by the crown. We have now to observe a third kind.



[Sidenote: Counties palatine in England] [Sidenote: Charter of Maryland] After the downfall of the two great companies founded in 1606, the crown had a way of handing over to its friends extensive tracts of land in America. In 1632 a charter granted by Charles I to Cecilius Calvert, Lord Baltimore, founded the palatinate colony of Maryland. To understand the nature of this charter, we must observe that among the counties of England there were three whose rulers from an early time were allowed special privileges. Because Cheshire and Durham bordered upon the hostile countries, Wales and Scotland, and needed to be ever on the alert, their rulers, the earls of Chester and the bishops of Durham, were clothed with almost royal powers of command, and similar powers were afterwards granted through favouritism to the dukes of Lancaster. The three counties were called counties palatine (i.e. "palace counties"). Before 1600 the earldom of Chester and the duchy of Lancaster had been absorbed by the crown, but the bishopric of Durham remained the type of an almost independent state, and the colony palatine of Maryland was modelled after it. The charter of Maryland conferred upon Lord Baltimore the most extensive privileges ever bestowed by the British crown upon any subject. He was made absolute lord of the land and water within his boundaries, could erect towns, cities, and ports, make war or peace, call the whole fighting population to arms and declare martial law, levy tolls and duties, establish courts of justice, appoint judges, magistrates, and other civil officers, execute the laws, and pardon offenders. He could erect manors, with courts-baron and courts-leet, and confer titles and dignities, so that they differed from those of England. He could make laws with the assent of the freemen of the province, and, in cases of emergency, ordinances not impairing life, limb, or property, without their assent. He could found churches and chapels, have them consecrated according to the ecclesiastical laws of England, and appoint the incumbents.[4] For his territory and these royal powers Lord Baltimore was to send over to the palace at Windsor a tribute of two Indian arrows yearly, and to reserve for the king one fifth part of such gold and silver as he might happen to get by mining. "The king furthermore bound himself and his successors to lay no taxes, customs, subsidies, or contributions whatever upon the people of the province, and in case of any such demand being made, the charter expressly declared that this clause might be pleaded as a discharge in full." Maryland was thus almost an independent state. Baltimore's title was Lord Proprietary of Maryland, and his title and powers were made hereditary in his family, so that he was virtually a feudal king. His rule, however, was effectually limited. The government of Maryland was carried on by a governor and a two-chambered legislature. The governor and the members of the upper house of the legislature were appointed by the lord proprietary, but the lower house of the legislature was elected, here as elsewhere, by the people; and in accordance with time-honoured English custom all taxation must originate in the lower house, which represented the people.

[Footnote 4: Browne's Maryland: the History of a Palatinate, p. 19.]

[Sidenote: Charter of Pennsylvania.] [Sidenote: Mason and Dixon's line] Half a century after the founding of Maryland, similar though somewhat less extensive proprietary powers were granted by Charles II. to William Penn, and under them the colony of Pennsylvania was founded and Delaware was purchased. Pennsylvania and Delaware had each its house of representatives elected by the people; but there was only one governor and council for the two colonies. The governor and council were appointed by the lord proprietary, and as the council confined itself to advising the governor and did not take part in legislation, there was no upper house. The legislature was one-chambered. The office of lord proprietary was hereditary in the Penn family. For about eighty years the Penns and Calverts quarrelled, like true sovereigns, about the boundary-line between their principalities, until in 1763 the matter was finally settled. A line was agreed upon, and the survey was made by two distinguished mathematicians, Charles Mason and Jeremiah Dixon. The line ran westward 244 miles from the Delaware River, and every fifth milestone was engraved with the arms of Penn on the one side and those of Calvert on the other. In later times, after all the states north of Maryland had abolished slavery, Mason and Dixon's line became famous as the boundary between slave states and free states.

[Sidenote: Other proprietary governments.] At first there were other proprietary colonies besides those just mentioned, but in course of time the rights or powers of their lords proprietary were resumed by the crown. When New Netherland was conquered from the Dutch it was granted to the duke of York as lord proprietary; but after one-and-twenty years the duke ascended the throne as James II., and so the part of the colony which he had kept became the royal province of New York. The part which he had sold to Berkeley and Carteret remained for a while the proprietary colony of New Jersey, sometimes under one government, sometimes divided between two; but the rule of the lords proprietary was very unpopular, and in 1702 their rights were surrendered to the crown. The Carolinas and Georgia were also at first proprietary colonies, but after a while they willingly came under the direct sway of the crown. In general the proprietary governments were unpopular because the lords proprietary, who usually lived in England and visited their colonies but seldom, were apt to regard their colonies simply as sources of personal income. This was not the case with William Penn, or the earlier Calverts, or with James Oglethorpe, the illustrious founder of Georgia; but it was too often the case. So long as the lord's rents, fees, and other emoluments were duly collected, he troubled himself very little as to what went on in the colony. If that had been all, the colony would have troubled itself very little about him. But the governor appointed by this absentee master was liable to be more devoted to his interests than to those of the people, and the civil service was seriously damaged by worthless favourites sent over from England for whom the governor was expected to find some office that would pay them a salary. On the whole, it seemed less unsatisfactory to have the governors appointed by the crown; and so before the Revolutionary War all the proprietary governments had fallen, except those of the Penns and the Calverts, which doubtless survived because they were the best organized and best administered.

[Sidenote: At the time of the Revolution there were three forms of colonial government: 1. Republican, 2. Proprietary, 3. Royal.] There were thus at the time of the Revolutionary War three forms of state government in the American colonies. There were, first, the Republican colonies, in which the governors were elected by the people, as in Rhode Island and Connecticut; secondly,the Proprietary colonies, in which the governors were appointed by hereditary proprietors, as in Maryland, Pennsylvania, and Delaware; thirdly, the Royal colonies,[5] in which the governors were appointed by the crown, as in Georgia, the two Carolinas, Virginia, New Jersey, New York, Massachusetts, and New Hampshire. It is customary to distinguish the Republican colonies as Charter colonies, but that is not an accurate distinction, inasmuch as the Proprietary colonies also had charters. And among the Royal colonies, Massachusetts, having been originally a republic, still had a charter in which her rights were so defined as to place her in a somewhat different position from the other Royal colonies; so that Prof. Alexander Johnston, with some reason, puts her in a class by herself as a Semi-royal colony.

[Footnote 5: Or, as they were sometimes called, Royal provinces. In the history of Massachusetts many writers distinguish the period before 1692 as the colonial period, and the period 1692 to 1774 as the provincial period.]

[Sidenote: In all three forms there was a representative assembly, which alone could impose taxes.] These differences, it will be observed, related to the character and method of filling the governor's office. In the Republican colonies the governor naturally represented the interests of the people, in the Proprietary colonies he was the agent of the Penns or the Calverts, in the Royal colonies he was the agent of the king. All the thirteen colonies alike had a legislative assembly elected by the people. The basis of representation might be different in different colonies, as we have seen that in Massachusetts the delegates represented townships, whereas in Virginia they represented counties; but in all alike the assembly was a truly representative body, and in all alike it was the body that controlled the expenditure of public money. These representative assemblies arose spontaneously because the founders of the American colonies were Englishmen used from time immemorial to tax themselves and govern themselves. As they had been wont to vote for representatives in England, instead of leaving things to be controlled by the king, so now they voted for representatives in Maryland or New York, instead of leaving things to be controlled by the governor. The spontaneousness of all this is quaintly and forcibly expressed by the great Tory historian Hutchinson, who tells us that in the year 1619 a house of burgesses broke out in Virginia! as if it had been the mumps, or original sin, or any of those things that people cannot help having.

[Sidenote: The governor's council was a kind of upper house.] This representative assembly was the lower house in the colonial legislatures. The governor always had a council to advise with him and assist him in his executive duties, in imitation of the king's privy council in England. But in nearly all the colonies this council took part in the work of legislation, and thus sat as an upper house, with more or less power of reviewing and amending the acts of the assembly. In Pennsylvania, as already observed, the council refrained from this legislative work, and so, until some years after the Revolution, the Pennsylvania legislature was one-chambered. The members of the council were appointed in different ways, sometimes by the king or the lord proprietary, or, as in Massachusetts, by the outgoing legislature, or, as in Connecticut, they were elected by the people.

[Sidenote: The colonial government was like the English system in miniature.] Thus all the colonies had a government framed after the model to which the people had been accustomed in England. It was like the English system in miniature, the governor answering to the king, and the legislature, usually two-chambered, answering to parliament. And as quarrels between king and parliament were not uncommon, so quarrels between governor and legislature were very frequent indeed, except in Connecticut and Rhode Island. The royal governors, representing British imperial ideas rather than American ideas, were sure to come into conflict with the popular assemblies, and sometimes became the objects of bitter popular hatred. The disputes were apt to be concerned with questions in which taxation was involved, such as the salaries of crown officers, the appropriations for war with the Indians, and so on. Such disputes bred more or less popular discontent, but the struggle did not become flagrant so long as the British parliament refrained from meddling with it.



[Sidenote: The Americans never admitted the supremacy of parliament;] The Americans never regarded parliament as possessing any rightful authority over their internal affairs. When the earliest colonies were founded, it was the general theory that the American wilderness was part of the king's private domain and not subject to the control of parliament. This theory lived on in America, but died out in England. On the one hand the Americans had their own legislatures, which stood to them in the place of parliament. The authority of parliament was derived from the fact that it was a representative body, but it did not represent Americans. Accordingly the Americans held that the relation of each American colony to Great Britain was like the relation between England and Scotland in the seventeenth century. England and Scotland then had the same king, but separate parliaments, and the English parliament could not make laws for Scotland. Such is the connection between Sweden and Norway at the present day; they have the same king, but each country legislates for itself. So the American colonists held that Virginia, for example, and Great Britain had the same king, but each its independent legislature; and so with the other colonies,—there were thirteen parliaments in America, each as sovereign within its own sphere as the parliament at Westminster, and the latter had no more right to tax the people of Massachusetts than the Massachusetts legislature had to tax the people of Virginia.

In one respect, however, the Americans did admit that parliament had a general right of supervision over all parts of the British empire.[6] Maritime commerce seemed to be as much the affair of one part of the empire as another, and it seemed right that it should be regulated by the central parliament at Westminster. Accordingly the Americans did not resist custom-house taxes as long as they seemed to be imposed for purely commercial purposes; but they were quick to resist direct taxation, and custom-house taxes likewise, as soon as these began to form a part of schemes for extending the authority of parliament over the colonies.

[Footnote 6: except in the regulation of maritime commerce.]

In England, on the other hand, this theory that the Americans were subject to the king's authority but not to that of parliament naturally became unintelligible after the king himself had become virtually subject to parliament.[7] The Stuart kings might call themselves kings by the grace of God, but since 1688 the sovereigns of Great Britain owe their seat upon the throne to an act of parliament.

[Footnote 7: In England there grew up the theory of the imperial supremacy of parliament.]

To suppose that the king's American subjects were not amenable to the authority of parliament seemed like supposing that a stream could rise higher than its source. Besides, after 1700 the British empire began to expand in all parts of the world, and the business of parliament became more and more imperial. It could make laws for the East India Company; why not, then, for the Company of Massachusetts Bay?

[Sidenote: Conflict between the British and the American theories was precipitated by George III.] Thus the American theory of the situation was irreconcilable with the British theory, and when parliament in 1765, with no unfriendly purpose, began laying taxes upon the Americans, thus invading the province of the colonial legislatures, the Americans refused to submit. The ensuing quarrel might doubtless have been peacefully adjusted, had not the king, George III., happened to be entertaining political schemes which were threatened with ruin if the Americans should get a fair hearing for their side of the case.[8] Thus political intrigue came in to make the situation hopeless. When a state of things arises, with which men's established methods of civil government are incompetent to deal, men fall back upon the primitive method which was in vogue before civil government began to exist. They fight it out; and so we had our Revolutionary War, and became separated politically from Great Britain. It is worthy of note, in this connection, that the last act of parliament, which brought matters to a crisis, was the so-called Regulating Act of April, 1774, the purpose of which was to change the government of Massachusetts. This act provided that members of the council should be appointed by the royal governor, that they should be paid by the crown and thus be kept subservient to it, that the principal executive and judicial officers should be likewise paid by the crown, and that town-meetings should be prohibited except for the sole purpose of electing town officers. Other unwarrantable acts were passed at the same time, but this was the worst. Troops were sent over to aid in enforcing this act, the people of Massachusetts refused to recognize its validity, and out of this political situation came the battles of Lexington and Bunker Hill.

[Footnote 8: See my War of Independence, pp. 58-64, 69-71 (Riverside Library for Young People).]

QUESTIONS ON THE TEXT.

1. Various claims to North America:—

a. Spanish. b. English. c. French.

2. What was needed to make such claims of any value?

3. The London and Plymouth companies:—

a. The time and purpose of their organization. b. The grant to the London Company. c. The grant to the Plymouth Company. d. The magnitude of the zones granted. e. The peculiar provisions for the intermediate zone. f. First attempts at settlement.

4. To what important principle of the common charter of these two companies did the colonists persistently cling?

5. The influence of these short-lived companies upon the settlement and government of the United States:—

a. A review of the zones and their assignment. b. The states of the northern zone and their origin. c. The states of the southern zone and their origin. d. The states of the middle zone and their origin. e. The influence of the movement of population on local government in each zone.

6. Early state government in Virginia:—

a. The part appointed and the part elected. b. The first legislative body in America. c. The dignity of its members. d. The reason for the name "House of Burgesses."

7. Early state government in Massachusetts:—

a. The Dorchester Company. b. The government provided for the Company of Massachusetts Bay by its charter. c. The real purpose of the Puritan leaders. d. The change from the primary assembly of freemen to the representative assembly. e. The division of this assembly into two houses, with a comparison of the houses. f. The reason for the name "General Court." g. The loss of the charter and the causes that led to it. h. The new charter as compared with the old.

8. Compare the early governments of Connecticut and Rhode Island with the first government of Massachusetts.

9. What two kinds of state government have thus far been observed?

10. Early state government in Maryland:—

a. The favouritism of the crown as shown in land grants. b. The palatine counties of England. c. The bishopric of Durham the model of the colony of Maryland. d. The extraordinary privileges granted Lord Baltimore. e. The tribute to be paid in return. f. The ruler a feudal long. g. Limitations of the ruler's power.

11. Early state government in Pennsylvania and Delaware:—

a. The powers of Penn as compared with those of Calvert. b. One governor and council, c. The legislature of each colony. d. The quarrels of the Penns and Calverts. e. Mason and Dixon's line.

12. What other proprietary governments were organized, and what was their fate?

13. Why were proprietary governments unpopular? (Note the exceptions, however.)

14. Classify and define the forms of colonial government in existence at the beginning of the Revolution.

15. Show that these forms differed chiefly in respect to the governor's office.

16. A representative assembly in each of the thirteen colonies:—

a. The basis of representation. b. The control of the public money. c. The spontaneousness of the representative assembly.

17. The governor's council:—

a. The custom in England. b. The council as an upper house. c. The council in Pennsylvania.

18. Compare the colonial systems with the British (1) in organization and (2) in the nature of their political quarrels.

19. What was the American theory of the relation of each colony to the British parliament?

20. What was the American attitude towards maritime regulations?

21. What was the British theory of the relation of the American colonies to parliament?

22. How was the Revolutionary War brought on?

23. Describe the last act of parliament that brought matters to a crisis.



Section 2. The Transition from Colonial to State Governments.

[Sidenote: Dissolution of assemblies and parliaments.] [Sidenote: Committees of Correspondence.] During the earlier part of the Revolutionary War most of the states had some kind of provisional government. The case of Massachusetts may serve as an illustration. There, as in the other colonies, the governor had the power of dissolving the assembly. This was like the king's power of dissolving parliament in the days of the Stuarts. It was then a dangerous power. In modern England there is nothing dangerous in a dissolution of parliament; on the contrary, it is a useful device for ascertaining the wishes of the people, for a new House of Commons must be elected immediately. But in old times the king would turn his parliament out of doors, and as long as he could beg, borrow, or steal enough money to carry on government according to his own notions, he would not order a new election. Fortunately such periods were not very long. The latest instance was in the reign of Charles I, who got on without a parliament from 1629 to 1640.[9] In the American colonies the dissolution of the assembly by the governor was not especially dangerous, but it sometimes made mischief by delaying needed legislation. During the few years preceding the Revolution, the assemblies were so often dissolved that it became necessary for the people to devise some new way of getting their representatives together to act for the colony. In Massachusetts this end was attained by the famous "Committees of Correspondence." No one could deny that town-meetings were legal, or that the people of one township had a right to ask advice from the people of another township. Accordingly each township appointed a committee to correspond or confer with committees from other townships. This system was put into operation by Samuel Adams in 1772, and for the next two years the popular resistance to the crown was organized by these committees. For example, before the tea was thrown into Boston harbour, the Boston committee sought and received advice from every township in Massachusetts, and the treatment of the tea-ships was from first to last directed by the committees of Boston and five neighbour towns.

[Footnote: 9: The kings of France contrived to get along without a representative assembly from 1614 to 1789, and during this long period abuses so multiplied that the meeting of the States-General in 1789 precipitated the great revolution which overthrew the monarchy.]

[Sidenote: Provincial Congress] In 1774 a further step was taken. As parliament had overthrown the old government, and sent over General Gage as military governor, to put its new system into operation, the people defied and ignored Gage, and the townships elected delegates to meet together in what was called a "Provincial Congress." The president of this congress was the chief provincial executive officer of the commonwealth, and there was a small executive council, known as the "Committee of Safety."

[Sidenote: Provisional governments; "governors" and "presidents."] This provisional government lasted about a year. In the summer of 1775 the people went further. They fell back upon their charter and proceeded to carry on their government as it had been carried on before 1774, except that the governor was left out altogether. The people in town-meeting elected their representatives to a general assembly, as of old, and this assembly chose a council of twenty-eight members to sit as an upper house. The president of the council was the foremost executive officer of the commonwealth, but he had not the powers of a governor. He was no more the governor than the president of our federal senate is the president of the United States. The powers of the governor were really vested in the council, which was an executive as well as a legislative body, and the president was its chairman. Indeed, the title "president" is simply the Latin for "chairman," he who "presides" or "sits before" an assembly. In 1775 it was a more modest title than "governor," and had not the smack of semi-royalty which lingered about the latter. Governors had made so much trouble that people were distrustful of the office, and at first it was thought that the council would be quite sufficient for the executive work that was to be done. Several of the states thus organized their governments with a council at the head instead of a governor; and hence in reading about that period one often comes across the title "president," somewhat loosely used as if equivalent to governor. Thus in 1787 we find Benjamin Franklin called "president of Pennsylvania," meaning "president of the council of Pennsylvania." But this arrangement did not prove satisfactory and did not last long. It soon appeared that for executive work one man is better than a group of men. In Massachusetts, in 1780, the old charter was replaced by a new written constitution, under which was formed the state government which, with some emendations in detail, has continued to the present day. Before the end of the eighteenth century all the states except Connecticut and Rhode Island, which, had always been practically Independent, thus remodelled their governments.

[Sidenote: Origin of the Senates.] These changes, however, were very conservative. The old form of government was closely followed. First there was the governor, elected in some states by the legislature, in others by the people. Then there was the two-chambered legislature, of which the lower house was the same institution after the Revolution that it had been before. The upper house, or council, was retained, but in a somewhat altered form. The Americans had been used to having the acts of their popular assemblies reviewed by a council, and so they retained this revisory body as an upper house. But the fashion of copying names and titles from the ancient Roman republic was then prevalent, and accordingly the upper house was called a Senate. There was a higher property qualification for senators than for representatives, and generally their terms of service were longer. In some states they were chosen by the people, in others by the lower house. In Maryland they were chosen by a special college of electors, an arrangement which was copied in our federal government in the election of the president of the United States. In most of the states there was a lieutenant-governor, as there had been in the colonial period, to serve in case of the governor's death or incapacity; ordinarily the lieutenant-governor presided over the senate.

[Sidenote: Likenesses and differences between British and American systems.] Thus our state governments came to be repetitions on a small scale of the king, lords, and commons of England. The governor answered to the king, with his dignity very much curtailed by election for a short period. The senate answered to the House of Lords except in being a representative and not a hereditary body. It was supposed to represent more especially that part of the community which was possessed of most wealth and consideration; and in several states the senators were apportioned with some reference to the amount of taxes paid by different parts of the state.[10] When New York made its senate a supreme court of appeal, it was in deliberate imitation of the House of Lords. On the other hand, the House of Representatives answered to the House of Commons as it used to be in the days when its power was really limited by that of the upper house and the king. At the present day the English of Commons is a supreme body. In case of a serious difference with the House of Lords, the upper house must yield, or else new peers will be created in sufficient number to reverse its vote; and the lords always yield before this point is reached. So, too, though the veto power of the sovereign has never been explicitly abolished, it has not been exercised since 1707, and would not now be tolerated for a moment. In America there is no such supreme body. The bill passed by the lower house may be thrown out by the upper house, or if it passes both it may be vetoed by the governor; and unless the bill can again pass both houses by more than a simple majority, the veto will stand. In most of the states a two-thirds vote in the affirmative is required.

[Footnote 10: See my Critical Period of American History, p. 68.]

QUESTIONS ON THE TEXT.

1. The dissolution of assemblies and parliaments:—

a. The governor's power over the assembly in the colonies. b. The king's power over parliament in England. c. The danger of dissolution in the time of the Stuarts. d. The safety of dissolution in modern England. e. The frequency of dissolution before the Revolution.

2. Representation of the people in the provisional government of Massachusetts:—

a. The committees of correspondence. b. Their function, with an illustration from the "tea-ships." c. The provincial congress. d. The committee of safety. e. The return to the two-chambered legislature of the charter.

3. Executive powers in the provisional government of Massachusetts;—

a. The foremost executive officer. b. Where the power of governor was really vested. c. Why the name of president was preferred to that of governor. d. The example of Massachusetts followed elsewhere. e. The end of provisional government in 1780.

4. The council transformed to a senate:—

a. The principle of reviewing the acts of the popular assembly. b. The borrowing of Roman names. c. The qualifications and service of senators. d. The lieutenant-governor.

5. Our state governments patterned after the government of England:—

a. The governor and the king. b. The Senate and the House of Lords. c. The House of Representatives and the House of Commons. d. Some differences between the British system and the American.



Section 3. The State Governments.

[Sidenote: Later modifications.] During the present century our state governments have undergone more or less revision, chiefly in the way of abolishing property qualifications for offices making the suffrage universal, and electing officers that were formerly appointed. Only in Delaware does there still remain a property qualification for senators. There is no longer any distinction in principle between the upper and lower houses of the legislature. Both represent population, the usual difference being that the senate consists of fewer members who represent larger districts. Usually, too, the term of the representatives is two years, and the whole house is elected at the same time, while the term of senators is four years, and half the number are elected every two years. This system of two-chambered legislatures is probably retained chiefly through a spirit of conservatism, because it is what we are used to. But it no doubt has real advantages in checking hasty legislation. People are always wanting to have laws made about all sorts of things, and in nine cases out of ten their laws would be pernicious laws; so that it is well not to have legislation made too easy.

[Sidenote: The suffrage.] The suffrage by which the legislature is elected is almost universal. It is given in all the states to all male citizens who have reached the age of one-and-twenty. In many it is given also to denizens of foreign birth who have declared an intention of becoming citizens. In some it is given without further specification to every male inhabitant of voting age. Residence in the state for some period, varying from three months to two years and a half, is also generally required; sometimes a certain length of residence in the county, the town, or even in the voting precinct, is prescribed. In many of the states it is necessary to have paid one's poll-tax. There is no longer any property qualification, though there was until recently in Rhode Island, Criminals, idiots, and lunatics are excluded from the suffrage. Some states also exclude duellists and men who bet on elections. Connecticut and Massachusetts shut out persons who are unable to read. In no other country has access to citizenship and the suffrage been made so easy.

[Sidenote: Separation between legislation and the executive.] A peculiar feature of American governments, and something which it is hard for Europeans to understand, is the almost complete separation between the executive and the legislative departments. In European countries the great executive officers are either members of the legislature, or at all events have the right to be present at its meetings and take part in its discussions; and as they generally have some definite policy by which they are to stand or fall, they are wont to initiate legislation and to guide the course of the discussion. But in America the legislatures, having no such central points about which to rally their forces, carry on their work in an aimless, rambling sort of way, through the agency of many standing committees. When a measure is proposed it is referred to one of the committees for examination before the house will have anything to do with it. Such a preliminary examination is of course necessary where there is a vast amount of legislative work going on. But the private and disconnected way in which our committee work is done tends to prevent full and instructive discussion in the house, to make the mass of legislation, always chaotic enough, somewhat more chaotic, and to facilitate the various evil devices of lobbying and log-rolling.

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.[11]

[Footnote 11: In two admirable essays on "Cabinet Responsibility and the Constitution," and "Democracy and the Constitution," Mr. Lawrence Lowell has convincingly argued that the American system is best adapted to the circumstances of this country. Lowell, Essays on Government, pp. 20-117, Boston, 1890.]

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.[12] 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.

[Footnote 12: The state executive.]

[Sidenote: The governor's functions: 1. Advisor of legislature. 2. Commander of state militia. 3. Royal prerogative of pardon. 4. Veto power.] The ordinary functions of the governor are four in number. 1. He sends a message to the legislature, at the beginning of each session, recommending such measures as he would like to see embodied in legislation. 2. He is commander-in-chief of the state militia, and as such can assist the sheriff of a county in putting down a riot, or the President of the United States, in the event of a war. On such occasions the governor may become a personage of immense importance, as, for example, in our Civil War, when President Lincoln's demands for troops met with such prompt response from the men who will be known to history as the great "war governors." 3. The governor is invested with the royal prerogative of pardoning criminals, or commuting the sentences pronounced upon them by the courts. This power belongs to kings in accordance with the old feudal notion that the king was the source or fountain of justice. When properly used it affords an opportunity for rectifying some injustice for which the ordinary machinery of the law could not provide, or for making such allowances for extraordinary circumstances as the court could not properly consider. In our country it is too often improperly used to enable the worst criminals to escape due punishment, just because it is a disagreeable duty to hang them. Such misplaced clemency is pleasant for the murderers, but it makes life less secure for honest men and women, and in the less civilized regions of our country it encourages lynch law. 4. In all the states except Rhode Island, Delaware, Ohio, and North Carolina, the governor has a veto upon the acts of the legislature, as above explained; and in ordinary times this power, which is not executive but legislative, is probably the governor's most important and considerable power. In thirteen of the states the governor can veto particular items in a bill for the appropriation of public money, while at the same time he approves the rest of the bill. This is a most important safeguard against corruption, because where the governor does not have this power it is possible to make appropriations for unworthy or scandalous purposes along with appropriations for matters of absolute necessity, and then to lump them all together in the same bill, so that the governor must either accept the bad along with the good or reject the good along with the bad. It is a great gain when the governor can select the items and veto some while approving others. In such matters the governor is often more honest and discreet than the legislature, if for no other reason, because he is one man, and responsibility can be fixed upon him more clearly than upon two or three hundred.

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.

[Sidenote: In building the state, the local self-government was left unimpaired.] First, while we have rapidly built up one of the greatest empires yet seen upon the earth, we have left our self-government substantially unimpaired in the process. This is exemplified in two ways: first, in the relationship of the state to its towns and counties, and, secondly, in its relationship to the federal government. Over the township and county governments the state exercises a general supervision; indeed, it clothes them with their authority. Townships and counties have no sovereignty; the state, on the other hand, has many elements of sovereignty, but it does not use them to obliterate or unduly restrict the control of the townships and counties over their own administrative work. It leaves the local governments to administer themselves. As a rule there is only just enough state supervision to harmonize the working of so many local administrations. Such a system of government comes as near as possible toward making all American citizens participate actively in the management of public affairs. It generates and nourishes a public spirit and a universal acquaintance with matters of public interest such as has probably never before been seen in any great country. Public spirit of equal or greater intensity may have been witnessed in small and highly educated communities, such as ancient Athens or mediaeval Florence, but in the United States it is diffused over an area equal to the whole of Europe. Among the leading countries of the world England is the one which comes nearest to the United States in the general diffusion of enlightened public spirit and political capacity throughout all classes of society.

[Sidenote: Instructive contrast with France.] A very notable contrast to the self-government which has produced such admirable results is to be seen in France, and as contrasts are often instructive, let me mention one or two features of the French government. There is nothing like the irregularity and spontaneity there that we have observed in our survey of the United States. Everything is symmetrical. France is divided into eighty-nine departments, most of them larger than the state of Delaware, some of them nearly as large as Connecticut, and the administration of one department is exactly like that of all the others. The chief officer of the department is the prefect, who is appointed by the minister of the interior at Paris. The prefect is treasurer, recruiting officer, school superintendent, all in one, and he appoints nearly all inferior officers. The department has a council, elected by universal suffrage, but it has no power of assessing taxes. The central legislature in Paris decides for it how much money it shall use and how it shall raise it. The department council is not even allowed to express its views on political matters; it can only attend to purely local details of administration.

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.

[Sidenote: In France whether it is nominally a despotic empire or a republic at the top, there is scarcely any self-government at the bottom. Hence government there rests on an insecure foundation.] Thus in France people do not manage their own affairs, but they are managed for them by a hierarchy of officials with its head at Paris. This system was devised by the Constituent Assembly in 1790 and wrought into completeness by Napoleon in 1800. The men who devised it in 1790 actually supposed that they were inaugurating a system or political freedom(!), and unquestionably it was a vast improvement upon the wretched system which it supplanted; but as contrasted with American methods and institutions, it is difficult to call it anything else than a highly centralized despotism. It has gone on without essential change through all the revolutions which have overtaken France since 1800. The people have from time to time overthrown an unpopular government at Paris, but they have never assumed the direct control of their own affairs.

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.

[Sidenote: Vastness of the functions retained by the states in the American Union.] Secondly, let us observe how great are the functions retained by our states under the conditions of our Federal Union. The powers granted to our federal government, such as the control over international questions, war and peace, the military forces, the coinage, patents and copyrights, and the regulation of commerce between the states and with foreign countries,—all these are powers relating to matters that affect all the states, but could not be regulated harmoniously by the separate action of the states. In order the more completely to debar the states from meddling with such matters, they are expressly prohibited from entering into agreements with each other or with a foreign power; they cannot engage in war, save in case of actual invasion or such imminent danger as admits of no delay; without consent of Congress they cannot keep a military or naval force in time of peace, or impose custom-house duties. Besides all this they are prohibited from granting titles of nobility, coining money, emitting bills of credit, making anything but gold and silver coin a tender in payment of debts, passing bills of attainder, ex post facto laws, or laws impairing the obligation of contracts. The force of these latter restrictions will be explained hereafter. Such are the limitations of sovereignty imposed upon the states within the Federal Union.

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.[13]

[Footnote 13: Woodrow Wilson, The State: Elements of Historical and Practical Politics, p. 437.]

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.[14] 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.

[Footnote 14: Jameson, "The Study of the Constitutional History of the States" J.H.U. Studies, IV., v.]

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.[15] 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.

[Footnote 15: Independence of the state courts.]

[Sidenote: Constitution of the state courts.] We have already had something to say about courts in connection with those primitive areas for the administration of justice, the hundred and the county. In our states there are generally four grades of courts. There are, first, the justices of the peace , with jurisdiction over "petty police offences and civil suits for trifling sums." They also conduct preliminary hearings in cases where persons are accused of serious crimes, and when the evidence seems to warrant it they may commit the accused person for trial before a higher court. The mayor's court in a city usually has jurisdiction similar to that of justices of the peace. Secondly, there are county and municipal courts, which hear appeals from justices of the peace and from mayor's courts, and have original jurisdiction over a more important grade of civil and criminal cases. Thirdly, there are superior courts, having original jurisdiction over the most important cases and over wider of the state areas of country, so that they do not confine their sessions to one place, but move about from place to place, like the English justices in eyre. Cases are carried up, on appeal, from the lower to the superior court. Fourthly, there is in every state a supreme court, which generally has no original jurisdiction, but only hears appeals from the decisions of the other courts. In New York there is a "supremest" court, styled the court of appeals, which has the power of revising sundry judgments of the supreme court; and there is something similar in New Jersey, Illinois, Kentucky, and Louisiana.[16]

[Footnote 16: Wilson. The State, pp. 509-513.]

[Sidenote: Elective and appointive judges.] In the thirteen colonies the judges were appointed by the governor, with or without the consent of the council, and they held office during life or good behaviour. Among the changes made in our state constitutions since the Revolution, there have been few more important than those which have affected the position of the judges. In most of the states they are now elected by the people for a term of years, sometimes as short as two years. There is a growing feeling that this change was a mistake. It seems to have lowered the general character of the judiciary. The change was made by reasoning from analogy: it was supposed that in a free country all offices ought to be elective and for short terms. But the case of a judge is not really analogous to that of executive officers, like mayors and governors and presidents. The history of popular liberty is much older than the history of the United States, and it would be difficult to point to an instance in which popular liberty has ever suffered from the life tenure of judges. On the contrary, the judge ought to be as independent as possible of all transient phases of popular sentiment, and American experience during the past century seems to teach us that in the few states where the appointing of judges during life or good behaviour has prevailed, the administration of justice has been better than in the states where the judges have been elected for specified terms. Since 1869 there has been a marked tendency toward lengthening the terms of elected judges, and in several states there has been a return to the old method of appointing judges by the governor, subject to confirmation by the senate.[17] It is one of the excellent features of our system of federal government, that the several states can thus try experiments each for itself and learn by comparison of results. When things are all trimmed down to a dead level of uniformity by the central power, as in France, a prolific source of valuable experiences is cut off and shut up.

[Footnote 17: For details, see the admirable monograph of Henry Hitchcock, American State Constitutions, p. 53.]

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.



CHAPTER VII.

WRITTEN CONSTITUTIONS.

[Sidenote: In the American state there is a power above the legislature.] Toward the close of the preceding chapter[1] I spoke of three points especially characteristic of the American state, and I went on to mention two of them. The third point which I had in mind is so remarkable and important as to require a chapter all to itself. In the American state the legislature is not supreme, but has limits to its authority prescribed by a written document, known as the Constitution; and if the legislature happens to pass a law which violates the constitution, then whenever a specific case happens to arise in which this statute is involved, it can be brought before the courts, and the decision of the court, if adverse to the statute, annuls it and renders it of no effect. The importance of this feature of civil government in the United States can hardly be overrated. It marks a momentous advance in civilization, and it is especially interesting as being peculiarly American. Almost everything else in our fundamental institutions was brought by our forefathers in a more or less highly developed condition from England; but the development of the written constitution, with the consequent relation of the courts to the law-making power, has gone on entirely upon American soil.

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