Civil Government in the United States Considered with Some Reference to Its Origins Part 21

The smallest civil division in France is the _commune_, which may be either rural or urban. The commune has a munic.i.p.al 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 Const.i.tuent a.s.sembly 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 inst.i.tutions, 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 a.s.sumed 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 towns.h.i.+p, 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 const.i.tuted 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 t.i.tles of n.o.bility, coining money, emitting bills of credit, making anything but gold and silver coin a tender in payment of debts, pa.s.sing 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 princ.i.p.al and agent, which is so vital a matter in all business transactions; they regulate partners.h.i.+p, debt and credit, insurance; they const.i.tute all corporations, both private and munic.i.p.al, 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. s.p.a.ce 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 relations.h.i.+ps, 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 ill.u.s.tration 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 const.i.tutional history of England for eighty years. These subjects are Catholic emanc.i.p.ation, parliamentary reform, the abolition of slavery, the amendment of the poor-laws, the reform of munic.i.p.al 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 const.i.tutional 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 ill.u.s.tration could not be asked for.

[Footnote 14: Jameson, "The Study of the Const.i.tutional 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 amba.s.sadors 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: Const.i.tution 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 _munic.i.p.al 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 const.i.tutions 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 a.n.a.logy: 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 a.n.a.logous 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 Hitchc.o.c.k, _American State Const.i.tutions_, 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.