Studies in Civics Part 10

Their purpose.--A const.i.tution in the American sense of the term is a written instrument defining the powers of government and distributing those powers among the branches or departments thereof. It is the fundamental law, the voice of the people granting or withholding power. A primary purpose of the instrument is to give form and authority to the government; another is to protect individuals and minorities from the tyranny of the majority. Each of the states has a const.i.tution.

Their origin.--In most of the countries of Europe, including England, what is called the const.i.tution is not written. It consists largely of the maxims of experience, the principles sanctioned by custom. When a new political custom becomes prevalent it gradually becomes recognized as part of the const.i.tution.

Written const.i.tutions in this country probably arose from the fact that the charters granted to the colonies and securing to them privileges, were in writing. And these written charters themselves grew out of a practice prevalent in England of securing the rights of towns and cities by written charters wrung from the king. Some general charters of liberties, too, had been secured. Among these may be mentioned the charter granted by Henry I.

in 1100; the Magna Charta, or great charter, wrung from King John in 1215; and the Pet.i.tion of Right, the Habeas Corpus Act, and the Bill of Rights, secured in the seventeenth century.

Some of the charters granted to colonies were so liberal in their terms that they were adopted as const.i.tutions when the colonies became states.

The charter of Connecticut remained its const.i.tution till 1818. And even in 1842 it was with difficulty that the people of Rhode Island could be prevailed upon to give up the old charter for a new const.i.tution.

Their Contents.--The state const.i.tutions are very much alike in their general characteristics. After a preamble, setting forth the purpose of the instrument, they usually contain a bill of rights, intended to secure personal liberty and other personal rights. They then distribute the powers of government among three branches or departments, and provide for the organization and general procedure of each. Then follow miscellaneous provisions, relating to franchise, education, amendments, etc.

Their usual defects.--We have flourished so wonderfully under our system of government that we naturally have a great reverence for our national and state const.i.tutions. So far has this feeling gone that a large number of people seem to fancy that there is some magic in the very word const.i.tution. As a consequence state const.i.tutions are usually too long; they contain too many miscellaneous provisions. Most of these relate to transient or petty matters which, if made affairs for public action at all, should be left to legislation. Changes in the const.i.tution weaken our respect for it. Rarely should anything go into that great charter which has not stood the test of time, unless it has the promise of endurance as a necessary safeguard of the rights and liberties of the people.

BILLS OF RIGHTS.

These usually a.s.sert or guarantee the following:

Republican Principles.--That governments are inst.i.tuted by the people and for their benefit; that all persons are equal before the law; that no t.i.tle of n.o.bility shall be granted.

Freedom of Conscience.--That there shall be perfect religious freedom, not, however, covering immoral practices; that there shall be no established or state church; that no religious test shall be required for the performance of any public function.

Freedom of Speech.--That any one may freely think, and publish his opinions, on any subject, being responsible for the abuse of this right.

Freedom of a.s.sembly.--That the people may peaceably a.s.semble to discuss matters of public interest and to pet.i.tion the government for redress of grievances. This, of course, does not permit meetings designed to arrange for the commission of crime.

Freedom of Person.--That there shall be no slavery; nor imprisonment for debt, except in cases of fraud; nor unwarranted searches or seizures of persons or property; that no general warrants shall be issued; that the writ of _habeas corpus_ shall not be suspended, except in certain emergencies; that persons may freely move from place to place.

Security of Property.--That private property shall not be taken for public use without just compensation therefor, previously paid or secured; that to prevent feudal tenure of land, long leases of agricultural land shall not be made, in most states the longest permitted term being twenty-one years.

Right to bear Arms.--That the right of the people to keep and bear arms shall not be infringed.

Freedom from Military Tyranny.--That the military shall be in strict subordination to the civil power; that there shall be no standing army in time of peace; nor shall any soldier in time of peace be quartered in private houses without the consent of the owner.

Forbidden Laws.--That no _ex post facto_ law, no law impairing the obligation of contracts, nor any bill of attainder shall be pa.s.sed; that there shall be no special laws in certain specified cases.

Rights of Accused Persons.--(a) _Before trial_. That no unwarranted searches or seizures shall be made; that, except in capital offenses, the accused shall, while awaiting trial, be bailable; that, except in minor cases, a person shall not be held to answer for a criminal offense unless on the presentment or indictment of a grand jury. (b) _On trial_. That the accused person shall have a speedy and public trial in the district where the crime was committed; that trial by jury shall remain inviolable; that the accused shall be informed of the nature of the charge against him; that he shall be confronted with the witnesses against him; that he may be heard in his own defense and shall have the benefit of counsel in his behalf; that he shall not be required to witness against himself; that he shall have compulsory process to compel the attendance of witnesses in his behalf; that he shall not be deprived of life, liberty or property without due process of law. (c) _After trial_. That no cruel or unusual punishment shall be inflicted; that no one shall twice be placed in jeopardy for the same offense.

Rights not enumerated.--There is usually a final statement that the enumeration of the above rights shall not be construed to deny or impair others inherent in the people.

COMMENTS ON THE ABOVE.

The rights above enumerated are among those which to us in America to-day seem almost matters of course. It seems strange that any one ever seriously questioned the fairness or the justice of the claims there set forth. But in enumerating them we are treading on sacred ground. Their establishment cost our ancestors hundreds of years of struggle against arbitrary power, in which they gave freely of their blood and treasure.

Many of these rights are guaranteed in the const.i.tution of the United States, but only as against the general government. That they may not be invaded by the state government, the people have reserved them in the state const.i.tutions.

_Pertinent Questions_.

In what sense are all men created equal? Is there anything in good blood?

What was meant by the "divine right" of kings to rule?

Could a Mormon practice polygamy in this state, it being part of his religious creed? Why? Can an atheist give evidence in court?

What const.i.tutes libel? Slander?

On what basis may a mob be dispersed? What cases of pet.i.tion have you known?

What is a general warrant? A pa.s.sport? Why may _habeas corpus_ be suspended in time of war.

Give instances of private property taken for public use. What is meant by feudal tenure? How long a lease of agricultural lands may be given in this state? How about business property in a city?

May a person lawfully carry a revolver in his pocket? Why?

What is meant by the military being subordinate to the civil power? Which outranks, the secretary of war or the general of the army? Why should the statement be made about quartering soldiers, in view of the preceding statement?

What is meant by an _ex post facto_ law? Why forbidden? May a law be pa.s.sed legalizing an act which was performed as a matter of necessity but without authority?

What is to hinder an enemy of yours from having you arrested and cast into prison and kept there a long time? What is the purpose of bail? Why regarded as an important element of liberty? Why should a grand jury have to indict a person who has been examined and held for trial by a justice of the peace? Does a prisoner charged with murder or other high crime remain in handcuffs during his trial? Name the three or four most important guarantees to an accused person. Why are so many provisions made in his behalf?

If a ruler should wish to subvert the liberties of a people used to these guarantees, where would he begin?

What are some of the advantages possessed by a written const.i.tution over an unwritten one? Of an unwritten over a written one? Is any part of our const.i.tution unwritten?

CHAPTER XI.

BRANCHES OF GOVERNMENT.

Regulations and Laws.--When the school officers, acting for the people of the district, state formally what may and what may not be done by teachers and pupils, the formal expressions of governing will are called rules and regulations. Similar expressions by the town, village, city, or county authorities are called ordinances or by-laws. But when the state expresses its will through the regular channels, the formal expression is called a law.

The Three Branches of Government.--After a law is made it needs to be carried into effect. Incidentally questions will come up as to its meaning and application. Government, then, has three great functions or powers with regard to law.

In our government, and to a greater or less extent in all free countries, these powers are vested in three _distinct_ sets of persons. If one person or group of persons could make the laws, interpret them, and enforce obedience to them as interpreted, the power of such person or persons would be unlimited, and unlimited power begets tyranny. One of the purposes of a const.i.tution is to limit the power of the government within its proper sphere, and to prevent misuse of authority; and this organization of the government in three departments, each acting independently so far as may be, and acting as a check upon the others, is one of the modes of limitation.

The law-making, the law-interpreting, and the law-enforcing branches are called respectively the legislative, the judicial, and the executive branches.

CHAPTER XII.

THE LEGISLATIVE BRANCH.