unlimited, except by the constitutional provisions that the President
shall be commander-in-chief, and that military appropriations shall
not be made for more than two years. Congress can raise and support
armies, create and maintain a navy, and provide for the organization
and use of the state militia. Congress may also declare war, and make
rules concerning captures on land and sea.
_Foreign relations_. Congress as a body has little direct control over
foreign relations, though the Senate shares the treaty-making power
with the President. But Congress has the power to create diplomatic
and consular posts, as well as "to define and punish piracies and
felonies committed on the high seas, and offences against the law of
nations." Congress also exercises control over immigration and
naturalization.
_Economic interests_. Congress may regulate commerce with foreign
countries, among the several states, and with the Indian tribes. The
exclusive power to coin money, and otherwise control the monetary
system, is vested in Congress. Congress may make uniform laws on
bankruptcy throughout the United States, and fix the standards of
weights and measures. The establishment of post offices and post
roads, and the protection of authors and inventors through legislation
on patents and copyrights, are also functions of Congress.
_Territories_. Congress has the power to dispose of, and make all
needful rules and regulations respecting, the territory or other
property belonging to the United States. Congress likewise exercises
exclusive control over the District of Columbia, and over all places
purchased by the Federal government for the erection of forts,
arsenals, and similar buildings. Congress also has the right to
determine the admission to the Union of new states, and "to dispose of
and make all needful rules and regulations respecting the territory or
other property belonging to the United States."
_Crime_. In criminal matters the power of Congress is slight. For
example, it cannot say what constitutes treason, since that crime is
defined by the Constitution. However, Congress may provide for the
punishment of counterfeiters and persons committing crimes on the high
seas or offences against international law. It may also define certain
crimes against Federal law, and prescribe penalties therefor.
_Control over the judiciary_. The judiciary is an independent branch
of government, but Congress may determine the number of Supreme Court
judges, fix their salaries within certain limits, and define their
appellate jurisdiction. Congress may also determine the jurisdiction,
and define the procedure, of the inferior Federal courts.
_Implied powers_. Last among the powers of Congress is the authority
granted to it by the Constitution to make all laws which shall be
deemed necessary and proper for carrying into execution the powers
expressly granted to Congress by the Constitution. It is under the
authority of this clause, that the implied powers of Congress have
been so greatly expanded.
QUESTIONS ON THE TEXT
1. What influences are responsible for the fact that Congress is a
two-chambered body?
2. Discuss the term and qualifications of Senators.
3. How were Senators elected prior to 1913? How are they elected at
the present time?
4. What are the chief privileges and immunities of Senators?
5. Discuss the membership of the House of Representatives.
6. What is the nature of the Congressional district?
7. What are the qualifications for Representatives?
8. Who may vote for Representatives?
9. What is gerrymandering?
10. What three powers are exercised exclusively by the Senate?
11. What are the special powers of the House?
12. Under what two heads may the general powers of Congress be
classified?
13. Outline briefly the chief powers of Congress.
REQUIRED READINGS
1. Beard, _American Government and Politics_, chapter xiii.
2. Guitteau, _Government and Politics in the United States_, chapters
xxii and xxiii.
3. Munro, _The Government of the United States_, chapter xiv.
4. Reed, _Form and Functions of American Government_, chapter xxi.
QUESTIONS ON THE REQUIRED READINGS
1. What was the Connecticut compromise? (Guitteau, pages 248-249.)
2. Why does the Constitution provide that one third of the Senate
shall retire every second year? (Reed, page 255.)
3. What criticism has been brought against the principle of the equal
representation of states in the Senate? (Guitteau, page 249.)
4. Compare the growth of the Senate with the growth of the House of
Representatives. (Reed, page 258.)
5. What is the relative position of the two houses of Congress? (Reed,
pages 257-258.)
6. What is the right to "frank"? (Reed, page 258.)
7. What are the "supplementary" powers of Congress? (Munro, page 217.)
8. What are the powers of Congress with respect to weights and
measures? (Beard, page 259.)
9. What was Jefferson's attitude toward the powers of Congress?
(Munro, page 209.)
10. What is the scope of the implied powers of Congress? (Munro, page
214.)
TOPICS FOR INVESTIGATION AND REPORT
I
1. Congressional districts in your state.
2. The biography of one of the Senators representing your state in
Congress.
3. Make a study of your Representatives in Congress, with respect to
their age, length of service, political principles, and attitude
toward such national questions as the tariff, military defense and
taxation.
4. A brief comparison of Congress with your state legislature.
II
5. Place of the Senate in our National government. (Reinsch, _Readings
on American Federal Government_, pages 127-134.)
6. The House of Representatives in the United States compared with the
British House of Commons. (Kaye, _Readings in Civil Government_, pages
149-155.)
7. Gerrymandering. (Beard, _Readings in American Government and
Politics_, pages 219-220; see any other standard text on American
Government.)
8. The immunities of Congressmen. (Cleveland, _Organized Democracy_,
chapter xxvii.)
9. Relation of the two houses of Congress. (Bryce, _The American
Commonwealth_, vol. i, chapter xviii.)
10. The Senate as a judicial body. (Bryce, _The American
Commonwealth_, vol. i, chapter x.)
11. Constitutional limitations on the powers of Congress. (Munro, _The
Government of the United States_, chapter xx.)
12. Relation of Congress to the President. (Bryce, _The American
Commonwealth_, vol. i, chapter xx.)
13. The war powers of Congress. (Any standard text on American
government.)
14. The taxing power of Congress. (Any standard text on American
government.)
15. Other financial powers of Congress. (Any standard text on American
government.)
16. The power to regulate commerce. (Any standard text on American
government. An excellent reference is Munro, _The Government of the
United States_, chapter xvii.)
17. The postal powers of Congress. (Young, _The New American
Government and its Work_, chapter xiii.)
18. The control of Congress over territories. (Kimball, _The National
Government of the United States_, chapter xxii. See also any other
standard work on American government.)
FOR CLASSROOM DISCUSSION
19. Direct versus indirect election of Senators.
20. To what extent, if to any, should Congressmen consider the needs
of their local district as of more importance than the needs of the
nation as a whole?
21. Should the interval between the election of Representatives and
the meeting of Congress be shortened?
22. Should we retain equal representation of states in the Senate, or
should this principle be discarded as "undemocratic"?
CHAPTER XLIII
CONGRESS IN ACTION
A. ORGANIZATION OF CONGRESS
548. CONGRESSIONAL SESSIONS.--The Federal Constitution requires
Congress to assemble at least once a year, and Congress has provided
that the date of meeting shall be the first Monday in December. In
addition to such special sessions as may be called either by the
President or by Congress itself, there are two regular sessions. One
of these is the long session, from December of each odd year until
Congress adjourns, generally sometime during the following summer. The
other is the short session, beginning when Congress assembles in
December of each even year, and ending at noon on the 4th of March
following.
The two houses of Congress jointly fix the time for adjournment, but
in case they cannot agree upon this point, the President has the right
to adjourn them to such time as he thinks fit. During the
congressional session, neither house may, without the consent of the
other, adjourn for more than three days, nor to any other place than
that in which the two houses are sitting. Since 1800 congressional
sessions have regularly been held at Washington, D. C., the National
capital.
549. INTERNAL ORGANIZATION.--Each house of Congress has the right to
determine its own rule of practice, punish members for disorderly
conduct, and, by a two-thirds vote, expel a member. Members guilty of
acts of violence or abusive language may be punished by a vote of
censure, or may be obliged to apologize to the house. For the
commission of a grave offense, a Congressman may be expelled from the
house to which he was elected.
The Constitution requires that "each house shall keep a journal of
its proceedings, and from time to time publish the same, excepting
such parts as may in their judgment require secrecy; and the yeas and
nays of the members of either house shall, at the desire of one fifth
of those present, be entered upon the journal." The object of this is
to secure a permanent record of legislative action, as well as
publicity of proceedings. The vote by yeas and nays fixes
responsibility for his vote upon each member by making it a matter of
public record. The _Congressional Record_, an official account of
Congressional debates and proceedings, appears daily during
Congressional sessions. This is supposedly a verbatim report of what
is said in each house, but as a matter of fact members are allowed to
edit and revise their remarks before these are printed. In the case of
the House, many of the published speeches have never been delivered at
all.
550. THE OFFICERS OF CONGRESS.--In the House of Representatives the
chief officer is the Speaker, or presiding officer. The Speaker is
chosen from the membership of the House by that body itself. As will
be pointed out shortly, this officer is an important personage.
In the Senate the Vice President of the United States acts as the
presiding officer. In the absence of the Vice President, or in case
that officer succeeds to the Presidency, the Senate itself chooses a
president _pro tempore_ to occupy the chair. The presiding officer of
the Senate is much less powerful than the Speaker of the House, indeed
he is little more than a chairman or moderator.
There are a number of additional officers of Congress, who are chosen
by the respective houses from outside their own membership. These
officers include a clerk, who in the Senate is called the secretary;
the door-keeper; the sergeant-at-arms; the postmaster; and the
chaplain. Nominally these officers are chosen by each house, but as a
matter of practice the choice is made by the caucus of the majority
party, which is held a few days before the organization of each house.
551. THE SPEAKER OF THE HOUSE OF REPRESENTATIVES.--A few days before
the organization of the House, the caucus of the majority party
settles upon its choice for Speaker. The candidate chosen invariably
receives the solid vote of his party in the House, since it is a rule
of the caucus that party members who take part in its discussions must
abide by its decisions.
As chairman of the House, the Speaker performs the customary duties of
a presiding officer. He opens and closes the sittings of the House,
maintains order, and decides questions of parliamentary law. The
Speaker acts as the official representative of the House in its
collective capacity, and authenticates all official proceedings by his
signature. It is he who announces the order of business, states the
question, and announces the vote. He also has the right to appoint the
chairman of the committee of the whole. The Speaker takes part in
debate and may also vote.
552. POWER OF THE SPEAKER OVER LEGISLATION.--In addition to performing
the customary duties of a presiding officer, the Speaker possesses
important powers over legislation. The imperfect organization of the
House, and its lack of effective leadership, as well as the vast
amount of business coming before it, have tended to centralize much of
the legislative power of the House in the hands of this officer.
The Speaker of the House has the power to determine to which committee
a bill shall be referred. Thus he may determine the fate of a measure
by sending it to a committee which he knows to be hostile to the bill,
or to a friendly committee, just as he likes.
It is the Speaker who decides when a member is entitled to the floor,
and no motion or speech can be made except by a member who has been
duly recognized by the chair. There are a number of unwritten rules in
this regard, but in the last analysis the Speaker may recognize only
persons whom he desires to have speak. Thus Congressmen who are not of
the Speaker's party may be kept from making themselves heard upon
important measures. When a bill is before the House, the chairman of
the committee in charge of the measure usually hands the Speaker a
list of Congressmen who are to be heard upon the floor. By recognizing
only those whose names appear on this list, the Speaker may confine
the discussion to members who are favored by himself and his party.
The Speaker has the power to decide points of order, and otherwise to
deal with such obstructions to legislative business as the
filibustering tactics of the minority party. Often this power is
exercised in connection with the quorum. The quorum or number of
members who must be present in order that business may be transacted,
is fixed by the Constitution as a majority of each house. Formerly it
was the habit of minority members to remain silent at roll-call, so
that if several members of the majority party were absent, it might be
that no quorum would appear. In such a case legislative business would
be blocked. But in 1890 Speaker Reed adopted the practice, since
become invariable, of counting as present members actually in the
House, whether or not they respond to their names at roll-call. The
Speaker also checks filibustering by disregarding all motions and
appeals which he thinks are made simply for the purpose of obstructing
legislative business.
553. THE COMMITTEE ON RULES.--Of great importance in the House is the
committee on rules. This committee has the power to decide upon the
order for considering bills, and to determine the length of debates.
It also determines the time when the vote shall be taken. This it does
by "reporting a rule," that is to say, by presenting a report as to
the time and conditions under which the House shall consider a
measure. This report takes precedence over all other business. Thus
the fate of a bill may be determined by the committee on rules.
Previous to 1910 this committee consisted of the Speaker, and two
majority and two minority members named by the Speaker. But in the
61st Congress, there occurred what has been called the "revolution of
1910." This "revolution" opposed Speaker Cannon's policy of using for
personal and partisan purposes his power to appoint the other members
of the committee on rules. As the result of a violent agitation the
House finally placed marked restrictions upon the Speaker's control
over the committee. The membership of the committee on rules was
increased, first to ten, and then to twelve. Of these twelve members
eight belong to the majority party and four are minority members. The
committee is no longer chosen by the Speaker, but is selected by the
House itself. The Speaker is even excluded from membership in the
committee.
554. THE CONGRESSIONAL COMMITTEE SYSTEM. [Footnote: For a discussion
of the advantages and disadvantages of the committee system see
Chapter XXXVI.]--In both houses of Congress the assembly is divided
into a number of committees, each of which is charged with the
consideration of legislation dealing with particular subjects.
Previous to 1911 the Speaker appointed all House committees, but since
that date all committees have been chosen by the House as a body,
though in practice the decisions are made by the caucuses of the
majority and minority parties, held just before the organization of
the House. Similarly, the Senate chooses its own committees from lists
drawn up by the caucuses of the two political parties. In either
house, the minority party has such representation upon committees as
the majority party chooses to allow. There are in the House more than
fifty of these committees, while in the Senate the number is even
larger. In the House of Representatives the more important committees
are those on rules, ways and means, appropriations, judiciary, banking
and currency, interstate and foreign commerce, and rivers and harbors.
B. THE MAKING OF A FEDERAL LAW [Footnote: A more detailed account of
the law-making process may be found in Reed, _Form and Functions of
American Government_, Chapter XXII.]
555. HOW LEGISLATION IS INITIATED.--The course of congressional
legislation may be illustrated by following a bill through the House
of Representatives.
Any member of the House may introduce a bill by filing it with the
clerk. The title of the bill is printed in the _Journal and Record_,
this constituting a first "reading." The bill is then delivered to the
Speaker, who refers it to the proper committee. Once a bill has
been passed to the committee its fate rests largely with that body.
The committee may confer with certain administrative officers, listen
to individuals interested in the subject, summon and examine other
persons, and then reach a decision upon the bill. The committee may
amend the bill as it pleases. If unfavorable to the measure, the
committee may report it adversely, or too late for legislative action.
Indeed, it may even fail to report it at all. Theoretically the House
may overrule the committee's decision on a bill, but so generally are
the committee's recommendations followed by the House that the adverse
action of the committee virtually kills a bill.
556. THE BILL IS REPORTED TO THE HOUSE.--Let us suppose that the
committee reports the bill back to the House. The measure is then
placed upon a calendar and here awaits its turn, unless the committee
on rules sees fit to direct the immediate attention of the House to
it. The second reading is an actual and full reading of the bill for
the purpose of allowing amendments to be offered. After the second
reading, which may result in the adoption of amendments, the Speaker
puts the motion, "Shall the bill be engrossed and read a third time?"
Debate is then in order. If the vote which follows is in the
affirmative, the bill is read a third time, but only by title. The
question of passage is put by the Speaker immediately after the third
reading.
557. DEBATE UPON THE BILL.--Debate in the House of Representatives has
little influence upon most bills, the fate of a measure being
practically determined by the committee considering it. Most speeches
are frankly intended for political purposes, and for circulation in
the Congressional Record, rather than as actual and positive
influences upon the bill which is being discussed.
Debate in the House is limited in several ways. No member may spend
more than an hour in debate upon any question, except the member in
charge of the bill. This member may have an additional hour at the
close. In the committee of the whole, speeches are limited to five
minutes. No member may speak more than once on the same subject
without special permission from the chair. The single exception to
this rule is the member who has introduced the bill. Before debate
begins, the chairman of the committee in charge of the bill arranges,
in consultation with the Speaker, a list of members who are to be
heard upon the bill. No other members are ordinarily recognized by the
Speaker in the ensuing debate.
After a certain amount of discussion the member in charge of the bill
will generally move the previous question in order to cut short the
debate and bring the House to a direct vote upon the question.
558. THE VOTE.--In the House voting may be by any one of three
methods. Voting may be by "sound of voices." In this case the Speaker
calls in turn for the "ayes" and "noes," and decides by the volume of
the sound whether the motion has been carried or lost. This is usually
the method first employed, but either of the other two methods may be
demanded before or after voting by sound of voices has been employed.
Voting may be by tellers. When this is decided upon the members pass
between tellers appointed by the Speaker--those in the affirmative
first--and are counted. This method requires the demand of one fifth
of a quorum.
Voting may be by yeas and nays. In this event, the clerk calls the
roll and each member, as his name is reached, answers "aye" or "no,"
the vote then being recorded. The Constitution provides that one fifth
of the members present may demand the yeas and nays. Since it takes a
long time to call the roll of the House, demands for roll-calls are
frequently employed by minorities with the intent of obstructing
legislative business.
559. THE BILL GOES TO THE SENATE.--A bill defeated in the House never
reaches the Senate, of course.
But if it receives a majority vote in the House, it is engrossed and
sent to the Senate. Here the bill goes through practically the same
stages as in the House. [Footnote: In the Senate, however, debate is
unlimited.]If the Senate rejects the bill, the measure is dead. If the
Senate passes the bill without amendment, it is returned to the House,
and enrolled on parchment for signature by the President. If the
Senate amends the bill, the bill and the attached amendments are
returned to the House. If the House disagrees with the proposed
changes, it may either ask for an inter-house conference, or it may
simply send a notice of its disagreement to the Senate. In the latter
case, the Senate either reconsiders its amendments, or asks for a
conference. In case of a conference, each house appoints an equal
number of "managers," who arrive at some sort of compromise, and
embody this in a report. This report is acted upon by each house in
separate session.
560. THE BILL GOES TO THE PRESIDENT.--Bills killed in Congress never
reach the President, but a measure duly approved by both houses is
then sent to the chief executive for his approval. If he signs it, the
bill becomes law. If he does not approve it, he may return it with his
objections to the house in which it originated. If this house votes
for the passage of the measure by a two-thirds majority, and if this
action is concurred in by the other house, the measure becomes law
over the veto of the President. If the President neither signs nor
returns the measure within ten days, it automatically becomes law.
However, measures reaching the President during the last ten days of
the congressional session become law only if signed by him. His
failure to sign a bill reaching him under these circumstances
constitutes a "pocket veto."
QUESTIONS ON THE TEXT
1. Distinguish between the two regular sessions of Congress.
2. Describe the internal organization of the houses of Congress.
3. Name and briefly characterize the chief officers of Congress.
4. What are the customary duties of the Speaker of the House?
5. By what means does the Speaker influence legislation?
6. What is the nature and function of the committee on rules? What
changes in the character of this committee occurred in 1910?
7. Outline the organization of the Congressional committee system.
8. How may a bill be introduced into the House of Representatives?
9. Outline the steps in enacting a Federal law.
10. Discuss the nature and limits of the Presidential veto.
REQUIRED READINGS
1. Beard, _American Government and Politics_, chapter xiv.
2. Guitteau, _Government and Politics in the United States_, chapter
xxiv.
3. Munro, _The Government of the United States_, chapter xxi.
4. Reed, _Form and Functions of American Government_, chapter xii.
QUESTIONS ON THE REQUIRED READINGS
1. What is the relation of party organization to leadership in
Congress? (Beard, pages 267-269.)
2. Discuss the constitutional rights of the minority in the House
of Representatives. (Beard, pages 288-289.)
3. What is the influence of the Senate upon our national financial
policy? (Munro, pages 307-308.)
4. What are the chief advantages of the committee system? (Guitteau,
pages 275-276.)
5. What are the chief defects of this system? (Guitteau, pages 275-
276.)
6. What effect has the practice of unlimited debate in the Senate
had upon legislative business? (Beard, pages 275-276.)
7. What is one of the most important defects of Congressional
legislation? (Munro, pages 310-311.)
8. What is the "morning hour"? (Reed, page 273.)
9. What is done with a bill which the President has signed? (Reed,
page 277.)
10. To what extent is Congress responsive to Public Opinion? (Munro,
page 299.)
TOPICS FOR INVESTIGATION AND REPORT
I
1. Compare the internal organization of Congress with the organization
of your state legislature.
2. Compare the officers of Congress with the officers of your state
legislature.
3. Compare the committee system of Congress with the committee system
in your state legislature.
4. Compare the practice of debate in the National House of
Representatives with the use of debate in the lower house of your
state legislature.
5. Compare Congress with your state legislature with respect to volume
of legislation.
6. The business of Congress. (McCall, _The Business of Congress_.)
7. Rules of the Senate. (_Manual of the Senate_.)
8. The Senate at work. (Bryce, _The American Commonwealth_, vol. i,
chapter xii.)
9. Rules of the House of Representatives. (_Manual of the House of
Representatives_.)
10. The Speaker of the House. (Follett, _The Speaker of the House of
Representatives_.)
11. Leadership in the House. (Beard, _American Government and
Politics_, pages 280-286.)
12. The career of Speaker Clay, Blaine, Reed, or Cannon. (Consult an
encyclopedia, or special biographies of these Speakers.)
13. The House of Representatives at work. (Bryce, _The American
Commonwealth_, vol. i, chapter xiv.)
14. Congressional finance. (Bryce, _The American Commonwealth_, vol.
i, chapter xvii.)
15. The committee system in Congress. (Bryce, _The American
Commonwealth_, vol. i, chapter xv; McCall, _The Business of Congress_,
chapters in and v.)
16. An Englishman's view of legislation in the Congress of the United
States. (Bryce, _The American Commonwealth_, vol. i, chapter xvi.)
FOR CLASSROOM DISCUSSION
17. Should the Speaker of the House be deprived of the power to refer
bills to whatever committee he chooses?
18. Should the powers of the presiding officer of the Senate be
increased?
19. Is debate in the House of Representatives too greatly restricted?
20. Should the privilege of "franking" be restricted?
21. Should the President's power to veto bills be extended? Should it
be restricted?
CHAPTER XLIV
THE FEDERAL COURTS
A. FRAMEWORK OF THE FEDERAL COURTS
561. CONSTITUTIONAL BASIS OF THE FEDERAL JUDICIARY.--The Federal
Constitution makes only slight reference to the structure of the
Federal courts. It merely provides that the judicial power of the
United States shall be vested in one Supreme Court, and in such
inferior courts as Congress may from time to time ordain and
establish.
In accordance with this provision, Congress in 1789 passed the
Judiciary Act, which still forms the basis of our Federal judicial
system. The Judiciary Act provided for the organization of the Supreme
Court, and also created a system of circuit and district courts. It
likewise distributed Federal jurisdiction among the three grades of
courts, established the office of Attorney General, and provided for a
Federal marshal in each judicial district. In order to relieve the
Supreme Court of part of its appellate jurisdiction, Congress in 1891
created nine circuit courts of appeals. In 1912, Congress abolished
the circuit courts which had been established by the Act of 1789.
At the present time, thus, there are three grades of Federal courts:
the Supreme Court, nine circuit courts of appeals, and eighty-one
district courts. In addition there are several special Federal courts.
562. FEDERAL JUDICIAL AGENTS.--All Federal judges are appointed by the
President, subject to confirmation by the Senate. They hold office for
life, or during good behavior. Since Federal judges can be removed
from office only by impeachment, they are relatively independent, both
of the appointing power and of the popular will.
Judges receive salaries which may be increased, but which cannot be
diminished, during their term of office. Each of the eight associate
justices of the Supreme Court receives an annual salary of $14,500,
while the Chief Justice receives $14,900 a year. Circuit judges
receive a salary of $7000 a year. Each district court judge receives
$6000 a year. Upon reaching the age of seventy years, any Federal
judge who has held his commission for at least ten years, may resign
and continue to draw full salary during the remainder of his life.
Some additional judicial agents may be mentioned. In each Federal
judicial district there is an United States marshal, who is charged
with the duty of enforcing the orders of the court. There is also in
each district a Federal prosecutor, who has the title of United States
district attorney. It is this officer who institutes proceedings
against persons violating Federal law. Both marshals and district
attorneys work under the direction of the Attorney-General of the
United States.
563. THE SUPREME COURT.--At the head of the Federal judicial system
stands the Supreme Court. This tribunal holds its annual sessions at
Washington, D. C., usually from October until May. By far the most
important business coming before this court involves questions of
constitutional law. [Footnote: Jurisdiction over questions of
constitutionality is a form of appellate jurisdiction. In addition,
the Supreme Court has original jurisdiction in (1) cases affecting
diplomatic and consular officers, and (2) cases to which a State is a
party. In practice, however, the original jurisdiction of the Supreme
Court has been relatively unimportant. ] Cases involving questions of
constitutionality are always brought up to the Supreme Court, from
either the lower Federal courts, or from the state courts. Cases of
this kind are brought before the Supreme Court either on appeal or by
writ of error.
When a case is submitted to the Supreme Court, each justice makes an
independent study of it, and a conference is then held, in which the
various sides of the question are discussed and a decision reached.
The Chief Justice then requests one of his colleagues to prepare the
"opinion of the court," containing the conclusions reached by the
majority. In important cases, the disagreeing minority prepares a
"dissenting opinion," setting forth their reasons for believing that
the case should have been decided otherwise. This dissenting opinion
does not, however, affect the validity of the decision reached by the
majority of the justices.
564. THE CIRCUIT COURT OF APPEALS.--The United States is divided into
nine circuits, in each one of which a Circuit Court of Appeals
exercises jurisdiction. The Circuit Court consists of three judges. As
a general proposition this court has appellate jurisdiction to review
the decisions of the district courts, but in some instances cases may
be taken from the district courts directly to the Supreme Court of the
United States. In cases in which jurisdiction results from the fact
that the suit is one between an American citizen and an alien, or
between citizens of different states in the Union, the decision of the
Circuit Court of Appeals is generally final. The jurisdiction of this
court is also final in all cases arising under the revenue, patent,
and copyright laws of the United States.
565. THE DISTRICT COURT.--The lowest of the regular Federal courts is
the District Court. One of these courts exists in each of the eighty-
one districts into which the country is divided. For each district
court there is generally a separate district judge, who holds court at
one or more places within the district.
The matters which may be brought before a Federal District Court are
various. Among other things, the jurisdiction of the court extends to
all crimes and offenses cognizable under the authority of the United
States, cases arising under the internal revenue, postal and copyright
laws, proceedings in bankruptcy, all suits and proceedings arising
under any law regulating immigration, and also all suits and
proceedings arising under any law to protect trade and commerce
against monopoly.
566. SPECIAL FEDERAL COURTS.--Besides the three sets of Federal
courts described above, Congress has from time to time created a
number of special courts.
The Court of Claims was created in 1855. It consists of five justices,
sitting at Washington, and exercising jurisdiction over cases
involving claims against the United States.
In 1911 Congress created the Court of Customs Appeals, consisting of
five judges who may review the decisions of the Board of General
Appraisers with respect to the classification and taxation of imports.
Congress has also provided a system of territorial courts to handle
cases arising in the territories and in the District of Columbia.
Courts-martial for the trial of military and naval offenses have also
been provided for by congressional statute.
B. THE FEDERAL COURTS IN ACTION
567. JURISDICTION OF THE FEDERAL COURTS.--The Federal courts exercise
limited, rather than general, jurisdiction. That is to say, they have
authority to try only such cases as are specifically placed within
their jurisdiction by the Constitution, or by congressional statute.
Cases falling within the jurisdiction of the Federal courts may be
grouped under two heads: First, cases affecting certain parties or
persons, and second, cases relative to certain matters.
Under the first head may be grouped cases affecting ambassadors, other
diplomatic representatives, and consuls. In the same group are
controversies to which the United States is a party, controversies
between two or more states, controversies between a state and the
citizens of another state, controversies between citizens of different
states, and controversies between a state, or the citizens thereof,
and foreign states, citizens or subjects thereof.
Under the second head fall three types of cases: First, controversies
between citizens of the same state claiming lands under grants of
different states. Second, cases of admiralty and maritime
jurisdiction, and third, cases in law or equity arising under the
Constitution or laws of the United States, or treaties made under
their authority.
568. THE WRIT OF HABEAS CORPUS. [Footnote: For the general arrangement
of the material in Sections 568-570, I am indebted to Professor
Beard's _American Government and Politics_, to which text
acknowledgment is here made.]--In the exercise of their judicial
functions the Federal courts have the power of issuing three great
writs affecting the rights of citizens.
Of these the most famous is the writ of _habeas corpus_. This writ is
designed to secure to any imprisoned person the right to have an
immediate preliminary hearing for the purpose of discovering the
reason for his detention. Where the writ is properly issued, the
prisoner is brought into court for a summary examination. If it is
found that he has been detained in violation of law, he is released;
if not, he is remanded for trial.
Federal judges may not issue writs of _habeas corpus_
indiscriminately. A writ can be issued only in the following cases:
First, when a prisoner is in jail under Federal custody or authority;
second, when an individual is in jail for some act done or omitted in
pursuance of a law of the United States or the order, process, or
decree of some Federal court or judge; third, when an individual has
been detained because of violation of the Constitution or some law or
treaty of the United States; and fourth, when a citizen of a foreign
country claims to be imprisoned for some act committed with the
sanction of his government.
569. THE WRIT OF MANDAMUS.--The writ of mandamus may be used against
public officials, private persons, and corporations, for the purpose
of forcing them to perform some duty required of them by law. Properly
used, the writ of mandamus is called into action to compel executive
officers to perform some administrative duty. The court will not
intervene, however, where the duty is purely discretionary and its
performance dependent either upon the pleasure of the official, or
upon his interpretation of the law. Usually the applicant for a writ
of mandamus must show that he has no other adequate legal remedy, and
that he has a clear legal right to have the action in question
performed by the officer.
570. THE WRIT OR BILL OF INJUNCTION.--This writ may be of several
distinct types. It may take the form of a mandatory writ, ordering
some person or corporation to maintain a _status quo_ by performing
certain acts. For example, striking railway employees may be ordered
to continue to perform their regular and customary duties while
remaining in the service of their employer.
The injunction may take the form of a temporary restraining order
forbidding a party to alter the existing condition of things in
question until the merits of the case have been decided. This is often
used in labor disputes.
Sometimes the writ is in the form of a permanent injunction ordering a
party not to perform some act, the results of which cannot be remedied
by any proceeding in law. This, too, has often been used in labor
disputes.
571. JUDICIAL INTERPRETATION OF THE STATUTES.--The crowning feature of
the American judiciary is its power to pass upon the constitutionality
of state and Federal laws. The Constitution does not give to the
courts the power to declare state or Federal statutes invalid on the
ground that they conflict with the Federal Constitution, but in the
famous case of Marbury _v._ Madison in 1803, Chief Justice Marshall
demonstrated that under the Constitution the Supreme Court must
possess the power of declaring statutes null and void when they
conflict with the fundamental law of the land. In deciding against the
validity of a law, the court does not officially annul it, but merely
refuses to enforce the statute in the particular case before the
court. Thereupon, the executive officials who might be charged with
the administration of that particular law, neglect to enforce it.
572. GENERAL POLICY OF THE FEDERAL COURTS.--The Federal courts have
consistently refused to decide abstract questions not presented in the
form of a concrete case between parties to an actual suit. The Supreme
Court, for example, will take no notice of a statute until the
question of its constitutionality arises in the form of a concrete
case.
The Federal courts have consistently refused to interfere in purely
political questions, the decision of which rests with executive or
legislative authorities. For example, the court will not touch
questions of the existence of war or peace, or the admission of a new
state into the Union.
In reaching a decision, two forces are brought to bear upon the
courts. First, the character of previous decisions in similar or
analogous cases influences a decision. Second, important consideration
is given the demands of justice or equity in the particular case in
hand, regardless of precedent. Generally speaking judicial decisions
strike a course midway between these two extremes.
QUESTIONS ON THE TEXT
1. What does the Federal Constitution say concerning the structure of
the Federal courts?
2. What act forms the basis of our Federal judicial system?
3. How are Federal judges chosen, and what are their salaries?
4. Name some judicial agents other than judges.
5. What is the nature and function of the Supreme Court?
6. What is the nature and function of the Circuit Court of Appeals?
Over what cases has it jurisdiction?
7. What matters may be brought before the District Court?
8. What is the purpose of the Court of Claims?
9. Name some other special Federal courts.
10. What two classes of cases fall within the jurisdiction of the
Federal courts?
11. What is the nature and purpose of the writ of _habeas corpus_?
12. What is the purpose of the writ of mandamus?
13. What three forms may the writ or bill of injunction take?
14. What is the crowning feature of the American judicial system?
15. Outline the general policy of the Federal courts.
16. What two forces help determine a decision?
REQUIRED READINGS
1. Beard, _American Government and Politics_, chapter xv.
2. Guitteau, _Government and Politics in the United States_, chapter
xxviii.
3. Munro, _The Government of the United States_, chapter xxiv.
4. Reed, _Form and Functions of American Government_, chapter xxiii.
QUESTIONS ON THE REQUIRED READINGS
1. Into what two branches may law be divided? (Munro, page 355.)
2. What is equity? (Munro, page 351.)
3. What are the judicial functions of the Attorney-General of the
United States? (Beard, page 300.)
4. What different grades of law are administered in the Federal
courts? (Guitteau, page 338.)
5. Discuss the part played by partisan politics in judicial decisions.
(Beard, pages 310-312.)
6. What classes of people are exempted from jury service? (Munro, page
354.)
7. Distinguish between the original and the appellate jurisdiction of
the Supreme Court. (Guitteau, pages 334-335.)
8. How are cases presented to the Supreme Court? (Beard, page 296.)
9. What is the significance of the Marbury v. Madison case? (Reed,
page 284.)
10. Name some other historical decisions which have been handed down
by the Supreme Court. (Guitteau, pages 339-340.)
TOPICS FOR INVESTIGATION AND REPORT
I
1. Make a study of the Federal judicial district in which you live,
with respect to territory embraced in the district, names and powers
of Federal judicial agents, etc.
2. If possible, visit a near-by Federal court and observe the conduct
of a trial.
II
3. The American doctrine of judicial supremacy. (Haines, _The American
Doctrine of Judicial Supremacy_.)
4. The American system of courts compared with the European system of
courts. (Bryce, _The American Commonwealth_, vol. i, chapter xxv.)
5. Restraints on judicial officers in the United States. (Cleveland,
_Organized Democracy_, chapter xxxiii.)
6. Procedure in the United States Supreme Court. (Reinsch, _Readings
on American Federal Government_, pages 716-717.)
7. The courts and the Constitution. (Beard, _The Supreme Court and the
Constitution_; Bryce, _The American Commonwealth_, vol. i, chapter
xxiii.)
8. The constitutionality of government regulation of commerce,
(Goodnow, _Social Reform and the Constitution_, chapter vi.)
9. Attitude of the courts toward social legislation. (Goodnow, _Social
Reform and the Constitution_, chapter viii.)
10. The Marbury v. Madison case. (Consult an encyclopedia.)
11. The Dartmouth College case. (Consult an encyclopedia.)
12. The life of John Marshall. (Consult an encyclopedia.)
13. Characteristics of a good judge. (Kaye, _Readings in Civil
Government_, pages 247-250.)
14. Evolution of the judiciary. (Gettell, _Introduction to Political
Science_, chapter xx.)
15. Relation of the judiciary to the executive branch of government.
(Gettell, _Introduction to Political Science_, chapter xx.)
16. Relation of the judiciary to the legislative branch of government.
(Gettell, _Introduction to Political Science_, chapter xx.)
FOR CLASSROOM DISCUSSION
17. Should Federal judges enjoy life terms, or should their terms of
service be limited to a specific number of years?
18. Did the framers of the Constitution intend that the Supreme Court
should pass upon the constitutionality of Acts of Congress? (See
Beard, _The Supreme Court and the Constitution_.)
19. Do you believe that there should be any restriction upon the
present power of the Supreme Court to pass upon the constitutionality
of Acts of Congress?
20. In the leading European countries what corresponds to our Supreme
Court is divided into a number of sections. Do you believe that our
Supreme Court ought to be reorganized on a similar plan? (See Munro,
_The Government of the United States_, page 369.)
B. STATE AND LOCAL GOVERNMENT
CHAPTER XLV
CONSTITUTIONAL BASIS OF STATE GOVERNMENT [Footnote: For a fuller
discussion of the constitutional basis of state government, see
Chapter XXII of Beard's _American Government and Politics_. ]
573. CONSTITUTIONAL LIMITATIONS ON STATE GOVERNMENTS.--Under the
Articles of Confederation the states exercised practically sovereign
powers; in the interests of a strong National government the
Constitution adopted in 1789 distinctly limited the scope of state
government. The Federal Constitution transferred many important powers
from the states to the Federal government, and imposed certain
specific limitations upon state governments. The more important of
these limitations are as follows:
No state may, without the consent of Congress, lay or collect imposts
and duties upon exports and imports. The single exception to this
constitutional prohibition is that a state may lay such imports or
duties as are absolutely necessary for executing its inspection laws.
No state may lay a tonnage duty without the consent of Congress.
No state may levy a tax on the property, lawful agencies, or
instrumentalities of the Federal government. This is not a
constitutional limitation, but was deduced by Chief Justice Marshall
from the nature of the Federal system. In recent years, however, this
doctrine has been modified to mean that no state may tax a federal
instrumentality if such a tax would _impair its efficiency in
performing the function which it was designed to serve._
States may legislate concerning local commercial matters, but no state
may interfere with interstate commerce. No state may pass any law
impairing the obligation of contracts. The states have practically no
control over the monetary system. They may not coin money, emit bills
of credit, or make anything but gold and silver coin legal tender.
States may charter and regulate state banks, however, and may also
authorize a state bank to issue notes for circulation.
No state may make or enforce any law which abridges the privileges or
immunities of citizens of the United States. No state shall pass any
bill of attainder, by which is meant a legislative act which inflicts
punishment upon some person without ordinary judicial trial. Nor may
any state pass an _ex post facto_ law, that is to say, a law which
imposes punishment for an act which was not legally punishable at the
time when it was committed. Lastly, no state may deprive any citizen
of life, liberty, or property without due process of law, nor deny to
any person within its jurisdiction the equal protection of the law.
574. POWERS OF STATE GOVERNMENTS.--Federal law is the highest law of
the land, and no state constitution, state statute, or local law or
ordinance, may contravene it. But beyond this restriction, the
authority of the state is supreme. Just as state government must defer
to Federal authority, so local government is subservient to state
authority. Just as the Federal Supreme Court may declare
unconstitutional any executive or legislative act, either of the
National, state, or local authorities, so the Supreme Court of any
state may declare null and void the acts of state or local authorities
which conflict with its constitution. Though they are limited by the
Federal Constitution in matters which are preeminently national, the
states reserve to themselves a vast body of authority. Almost all of
the ordinary activities of life are controlled by state or local
governments, rather than by the Federal government.
575. CLASSIFICATION OF STATE CONSTITUTIONS: ACCORDING TO AGE.--Each
of the forty-eight states in the Union has a written constitution. To
bring out the fundamental similarities and differences among the
various state constitutions, these documents may be classified in
two ways, first as to age, and second, in the light of democratic
development.
If state constitutions are classified on the basis of age, it will be
noted that the constitutions of Massachusetts, Connecticut, Rhode
Island, and other New England states show signs of having been
strongly influenced by colonial precedents. Next come constitutions
which in form and general content stand midway between the earlier New
England constitutions and those of more recent years. The
constitutions of New York (1894), Pennsylvania (1873), Indiana (1851),
Wisconsin (1848), Kentucky (1891), Minnesota (1857), and Iowa (1857),
are examples. Next come those constitutions of the southern states
which have been revised within the last quarter of a century. Finally,
we may note that California, Oregon, Oklahoma and a few other western
states have recently drafted new constitutions in which there has been
a more or less radical departure from the precedents set in the older
commonwealths.
576. CLASSIFICATION OF STATE CONSTITUTIONS: IN THE LIGHT OF DEMOCRATIC
DEVELOPMENT.--Between 1776 and 1800 American state constitutions were
generally brief and conservative. Between 1800 and 1860 the growing
tendency toward democratic control resulted in the formation of state
constitutions which were more and more liberal. During this period
fear of the masses was superseded by distrust of the executive and an
unbounded faith in the people acting in their collective capacity. The
suffrage was extended, the governor and often state judges came to be
elected by direct vote, and the power of the state legislature was
enlarged.
After 1860 there was a reverse movement. This was due partly to a
growing faith in the executive, and partly to a reaction against the
abuse of power by state legislatures. Particularly the more recent
state constitutions have limited the power of the state legislature,
increased the power of the executive, provided for the centralization
of the state administration, and shortened the ballot. The present
tendency among state constitutions is to continue in the direction of
the above-mentioned reforms.
A. THE PARTS OF A STATE CONSTITUTION
577. THE BILL OF RIGHTS.--A vital part of a state constitution is the
bill of rights, roughly corresponding to the first ten amendments to
the Federal Constitution. Generally the bill of rights affirms the
principle of republican government, maintains that all powers are
inherent in the people, and declares that all free government is
formed by the authority of the people. A typical bill of rights also
provides that the laws of the state shall not be suspended except by
the legislative assembly, and includes the traditional limitations on
behalf of private rights. These include the right of free speech; the
right to jury trial; the free exercise of religious worship; the right
peaceably to assemble and petition the government for redress of
grievances; the privilege of the writ of _habeas corpus_ except in
case of rebellion, invasion, or public danger; the prohibition of
excessive bail, and cruel and unusual punishments; and compensation
for private property when taken for public use.
578. THE FRAMEWORK OF GOVERNMENT.--A second part of a typical state
constitution deals with the distribution of powers, the limitations
upon state officials and other elements in the framework of
government. Especially in the more recent constitutions is the form of
state government outlined in considerable detail. In addition to
providing a system of checks and balances by separating the executive,
legislative, and judicial powers of state government, this part of the
constitution defines and limits the suffrage, provides for the
organization of the state legislature, and prescribes the limitations
under which the legislature must operate. The election of the Governor
and other important state officials is provided for, as is the
relation of rural and municipal government to the state government.
This part of the constitution likewise creates the state judicial
system, though the regulation of details with regard to jurisdiction,
procedure, and appeals is generally left to the discretion of the
state legislature.
579. STATE FINANCES.--A third division of a typical state constitution
places a number of limitations upon the financial powers of the state
legislature. These provisions are often detailed and complicated and
hence are difficult to summarize. Their general purpose, however, is
to fix a debt limit beyond which the legislature cannot go, and to
compel that body to make adequate provision for the payment of
interest and principal in the case of debts which shall be incurred.
580. CONTROL OF ECONOMIC INTERESTS.--The more recent state
constitutions provide in considerable detail for the regulation of
economic interests within the state. The activities of industrial
organizations are often narrowly restricted. In many states the
constitution provides for a corporation commission with large powers
in the regulation of rates and charges, as well as general supervision
of corporate business. Many recent constitutions specify the
conditions under which women and children may be employed in
industrial establishments.
581. PROVISION FOR THE GENERAL WELFARE.--An increasingly important
part of the state constitution deals with the general welfare. Such
vital concerns as the public school system are dealt with. In a
typical western state, for example, the constitution requires the
legislature to provide free instruction in the common schools of the
state for all persons between the ages of five and twenty-five. The
same document sets aside certain revenues for educational purposes.
The safeguarding of the public health, and detailed provision for the
creation and maintenance of public institutions for the dependent,
defective, and delinquent classes, are other concerns of this part of
the state constitution.
582. PROVISION FOR AMENDMENT.--In about two thirds of the states the
constitution provides for its own amendment by a constitutional
convention composed of delegates elected by the voters of the state.
The convention method is universally employed when a new constitution
is desired. Sometimes the state constitution provides for the holding
of such conventions at regular intervals, but generally the initiative
is left to the legislature. When, by vote or by resolution, this body
declares in favor of a convention, the proposition is placed before
the voters. If a majority of these favor the project, the legislature
arranges for the election of delegates, and fixes the time and place
of the convention sessions. After the convention has completed its
work, it is customary for the new constitution to be submitted to the
people for approval.
Another common way of amending the state constitution, found in every
state except New Hampshire, is through legislative action subsequently
ratified by popular vote. By this method separate constitutional
amendments may be adopted, without necessitating a wholesale revision
of the constitution. Such individual amendments are usually proposed
by the legislature and are later submitted to popular vote. In some
states only a majority vote of the legislature is required for the
proposal of amendments, but ordinarily a special majority of two
thirds or three fourths of the members of each house is required. In a
few states, amendments cannot be considered until they have been
proposed by two successive legislatures. After the amendment has been
proposed for the second time, it must be ratified at the polls.
Within the last decade several states, particularly in the West, have
adopted a more direct method of amending the constitution. This is
through the Initiative and Referendum. [Footnote: The general question
of the Initiative and Referendum is treated in Chapter XXXVII.] In
Oregon, for example, 8 per cent of the legal voters may petition for a
proposed amendment to the constitution. The proposal is then submitted
to the voters, and if it receives a majority of all votes cast, it
becomes part of the state constitution. Arizona, Arkansas, California,
Colorado, Michigan, Missouri, Nebraska, Nevada, North Dakota, and
other states allow this type of constitutional amendment.
QUESTIONS ON THE TEXT
1. What are the chief limitations imposed upon state governments by
the Federal Constitution?
2. Discuss the range of authority enjoyed by state governments.
3. Classify state constitutions on the basis of age.
4. Discuss the classification of state constitutions in the light of
democratic development.
5. What is the nature of a "bill of rights"?
6. Discuss the framework of government as provided for in the state
constitution.
7. What provision for state finances does a typical state constitution
contain?
8. What are some of the provisions in state constitutions concerning
economic interests?
9. How may a state constitution provide for the general welfare?
10. Describe the three ways in which state constitutions may be
amended.
REQUIRED READINGS
1. Beard, _American Government and Politics_, chapter xxii.
2. Guitteau, _Government and Politics in the United States_, chapter
viii.
3. Munro, _The Government of the United States_, chapter xxviii.
QUESTIONS ON THE REQUIRED READINGS
1. What is the significance of the "Revolutionary constitutions"?
(Guitteau, page 86.) 2. What is the relation of present-day state
constitutions to the original colonial charters? (Munro, page 404.) 3.
Distinguish between the "constituent" and the "law-making" power.
(Munro, page 405.) 4. Into what two parts may the early state
constitutions be divided? (Guitteau, page 86.) 5. Discuss the check
and balance system as provided for in the constitutions of the various
states. (Guitteau, page 89.) 6. What authority controls the admission
of new states into the Union? (Beard, pages 443-445.) 7. What does the
constitution of Oklahoma say concerning the writ of _habeas corpus_?
(Beard, page 449.) 8. Describe the procedure in a constitutional
convention. (Munro, pages 410-411.) 9. What is the relation of the
state constitution to the state courts? (Beard, pages 452-453.) 10.
Enumerate the principles which commonly govern the attitude of the
state courts toward the acts of the state legislature. (Beard, pages
452-453.)
TOPICS FOR INVESTIGATION AND REPORT
I
1. The history of your present state constitution.
2. The bill of rights in your state constitution.
3. The framework of government as provided for in the constitution of
your state.
4. Methods by means of which your state constitution may he amended.
5. Classify and briefly characterize the amendments which have been
appended to the constitution of your state.
II
6. Meaning of the term "constitution." (Gettell, _Readings in
Political Science_, pages 282-283.)
7. Types of constitutions. (Gettell, _Readings in Political Science_,
pages 284-285; Kimball, _State and Municipal Government in the United
States_, chapter ii.)
8. Methods of amending constitutions. (Gettell, _Readings in Political
Science_, pages 299-300.)
9. Difficulties of constitutional amendment in the United States.
(Gettell, _Readings in Political Science_, page 301.)
10. Procedure in the state constitutional convention. (Massachusetts
Constitutional Convention Bulletins, No. i. Hoar, _Constitutional
Conventions._)
11. Recent changes in constitutions. (Dealey, _Growth of American
State Constitutions from 1776 to the end of the Year 1914._)
12. Present tendencies in state constitutions. (Reinsch, _Readings on
American State Government_, pages 443-449.)
13. The constitution of Oklahoma. (Reinsch, _Readings on American
State Government_, pages 450-464.)
14. A comparison of constitutional amendment in Europe and
constitutional amendment in the United States. (Borgeaud, _Adoption
and Amendment of Constitutions in Europe and America_.)
15. British constitutions. (Gettell, _Readings in Political Science,_
pages 286-287; 292-293.)
16. French constitutions. (Gettell, _Readings in Political Science,_
pages 297-298.)
17. German constitutions. (Gettell, _Readings in Political Science,_
pages 298-299.)
FOR CLASSROOM DISCUSSION
18. Does the Federal Constitution too narrowly restrict the activities
of the state governments?
19. Does the bill of rights in your state constitution adequately
protect your rights?
20. Does the constitution of your state too narrowly restrict the
financial powers of the state legislature?
21. Is your state constitution too easy of amendment? Is it too
difficult of amendment?
22. Recent state constitutions tend to be very long and detailed. What
are the advantages and disadvantages of this development?
CHAPTER XLVI
THE STATE EXECUTIVE
A. THE GOVERNOR
583. THE ELECTION OF THE GOVERNOR.--In every state in the Union the
Governor is elected by popular vote. In most of the states this
election takes place, together with that of other state officials, on
the Tuesday following the first Monday in November. Usually a
gubernatorial candidate is required to be at least thirty years of
age. He must be a United States citizen, and also a resident of his
state of at least five years' standing.
The Governor's term varies from two years in Massachusetts to four
years in more than twenty states. In general, the term of office is
increasing. The average salary received by a state Governor is $5000 a
year.
584. LIMITATIONS UPON THE GOVERNOR.--A number of factors operate to
limit the power of the state Governor.
The Federal Constitution limits his authority by declaring that
persons charged with crime in, and escaped from, a neighboring state,
must be delivered up to the executive authorities of the state in
which the crime is charged to have been committed.
The executive power of state government is not concentrated under the
Governor, but is shared by the Governor with a host of administrative
officials. Many of these officials are elected directly by the people,
and cannot, therefore, be held accountable by the Governor.
Furthermore, the actual execution of the state laws rests primarily
with municipal and other local officials, and over these officers the
Governor has little or no control. The express powers of the President
of the United States have been rather liberally interpreted by the
courts, but the powers of the state Governor have generally been
construed in a narrow and literal sense. In many states the power of
the Governor rarely or never extends beyond the express limits imposed
by the state constitution.
585. EXECUTIVE POWERS OF THE GOVERNOR.--The Governor is charged by the
state constitution to see that the laws are faithfully executed. This
is similar to the chief duty of the President of the United States,
but whereas the President is aided by subordinate administrative
officials over whom he has complete control, the Governor must act
through a large number of state and local officials over whom he has
little effective control.
Of some value, however, is the power of the Governor to exercise
general supervision over the various executive officers of the state.
He enjoys, in addition, the power to appoint many of the subordinate
administrative officials. Usually these appointments must be confirmed
by the upper house of the state legislature. In most cases the
Governor cannot remove officials so appointed without the consent of
the senate or council.
The Governor is commander-in-chief of the armed forces of the state,
and when the regular officers of the law are unable to cope with
domestic violence, he is empowered to call out the militia. In this
connection, the Governor has the power of suspending the writ of
_habeas corpus_, though most states declare that this writ may not be
suspended except in times of rebellion and invasion. Two or three
states have recently provided that the writ of _habeas corpus_ may not
be suspended in any case whatsoever.
586. LEGISLATIVE POWERS OF THE GOVERNOR.--In general the Governor
occupies the same relation to the state legislature, as does the
President toward Congress. Thus the Governor may send periodic
messages to the legislature, and may recommend such legislative
measures as he believes desirable. The Governor often communicates
with the legislature concerning the financial condition and needs of
the state. The Governor may also call special sessions of the state
legislature, for the consideration of urgent matters. In case the two
houses of the legislature are unable to agree upon a time for
adjournment, the Governor may adjourn the state legislature.
In one respect the Governor's power of veto exceeds that of the
President, for in about two thirds of the states the Governor may veto
individual items in appropriation bills. This privilege is denied the
President, who must accept or reject a measure as a whole. Like the
President, the Governor influences legislation through his relations
with the leaders of his party in the legislature, as well as through
his power of the patronage.
587. JUDICIAL POWERS OF THE GOVERNOR.--In almost every state the
Governor has considerable control over the issuance of pardons and
reprieves, in the case of all offenses committed against the state. In
some states the power to issue pardons and reprieves is exercised with
the consent of the state legislature, in other states the Governor
shares this power with a board of pardons; in a few states the
Governor may act alone.
588. TENDENCY OF THE GOVERNOR'S POWER TO INCREASE.--The earlier state
constitutions tended to restrict the powers of the Governor, and to
extend liberal grants of power to the state legislature. Of recent
years the abuse of legislative power has tended to encourage suspicion
of the legislature and a growing confidence in the Governor. As a
consequence, the Governor's term is in many states increasing. In the
effort to shorten the ballot and concentrate responsibility for the
state administration upon some one official, various states are
increasing the appointive power of the Governor. In a few states the
Governor now has authority to make special inquiries into the workings
of the various executive departments, with a view to checking
inefficient and irresponsible methods of work. In some states the
Governor's share in budget-making is increasing. In the majority of
states the general tendency toward a shorter ballot, the
reorganization of the state administration, and other methods of
reforming state government, will probably continue to enlarge the
power and influence of the Governor.
B. THE STATE ADMINISTRATION
589. THE OLDER GROUP OF ADMINISTRATIVE OFFICERS.--Aside from the
Governor, the administrative officers of the state fall into two
groups: First, the older officers, who are relatively few, and who are
almost always elective; and second, the newer officers, boards, and
commissions, who are relatively numerous, and who may be either
elective or appointive.
The first group comprises such officers as the Lieutenant Governor,
the Secretary of State, the State Treasurer, the Auditor or
Comptroller, and the Attorney-General. These older officers are
usually elected at the general state election for a term varying from
state to state. These officers are not under the control of the
Governor, but fulfill duties prescribed by the constitution, and are
responsible only to the people and to the courts. They may be, and
often are, of a different political party than the Governor, and since
they are not under the control of that official, they often work at
cross-purposes with him. This lack of co÷rdination is in striking
contrast to the harmony of action existing between the President of
the United States and the heads of the Federal Executive Departments.
590. THE NEWER GROUP OF ADMINISTRATIVE OFFICERS.--As state government
has increased in complexity, the older group of administrative
officers has been supplemented by the addition of a large number of
new officers.
These newer administrative officials are quite numerous, but their
general character may be indicated by dividing them into two classes:
The first class includes individual officers, such as, for example, a
superintendent of prisons, a state architect, a state historian, a
commissioner of health, a food inspector, a geologist, a commissioner
of corporations, a commissioner of banking, a superintendent of public
works, and a state surveyor.
Besides individual officers, the newer group of administrative
officials includes a large number of boards and commissions which have
been created by the state legislature and endowed with large powers
for the study and control of specific matters. The following boards
and commissions are examples of this second class: A state civil
service commission, a tax commission, a board of charities and
correction, a water supply commission, a tax equalization board, a
quarantine commission, a voting machine commission, a board of
pharmacy, a highway commission, and a public service commission.
591. DEFECTS OF STATE ADMINISTRATION. [Footnote: For a fuller
discussion of this problem, see Chapter XXXVI.]--The enlargement of
the state administration by this creation of numerous individual
offices, boards, and commissions indicates an attempt on the part of
state governments to grapple with the problems of democracy.
Nevertheless, this rapid growth of the state administration has had
serious consequences. Once created, many of the newer officers have
attempted to perpetuate themselves. State legislatures have been
harassed by boards and commissions seeking unnecessary appropriations.
Politicians without expert training or ability are often placed on
boards and commissions dealing with technical matters.
Responsible and efficient state government is rendered difficult by
the inability of the Governor effectively to control the few elective
officials who constitute the older group of administrative officers;
an even greater difficulty arises from the creation and expansion of
the newer group of officers. The excessive number of individual
officers, boards, and commissions makes for inefficient and
irresponsible government. Some of these officials are elected by the
people, others are appointed by the Governor. Their terms vary so
widely that, as Professor Beard has pointed out, the appointing power
never has an opportunity to make a clean sweep and introduce more
efficient administrative methods. There is little or no co÷rdination
between the various administrative offices, and very little
centralization of responsibility.
592. THE STATE OF CIVIL SERVICE.--The spoils system has long
constituted a defect, not only in the Federal government but in
American state government as well. [Footnote: This problem is further
discussed in Chapter XXXIV.] And as in the case of the National
government, this evil has been attacked primarily through the merit
system. New York state led the way in 1883 by passing a comprehensive
Civil Service Act. This law provided for a commission authorized to
co÷perate with the Governor in preparing rules, classifying the state
civil service, and conducting the examinations for the positions to be
filled. Since then, Massachusetts, Wisconsin, Colorado, New Jersey,
California, Ohio, Illinois, and other states have adopted some type of
civil service system.
State civil service laws are largely modelled after the national Civil
Service Act of 1883. In most of the legislating states laws of this
type provide for competitive examinations of a practical nature; they
prohibit political and religious interrogatives; and they forbid the
assessment of holders of civil service positions for political
purposes. Appointment and promotion are upon the basis of merit,
although as in the case of the Federal civil service, the standards
for judging the character and capacity of individual officeholders
have not yet been perfected.
QUESTIONS ON THE TEXT
1. What are the qualifications of the state Governor?
2. What limitations restrict the power of the Governor?
3. Outline the executive powers of the Governor.
4. What are the chief legislative powers of the Governor?
5. Describe the judicial powers of the Governor.
6. Is the power of the Governor increasing or decreasing?
7. Into what two groups may state administrative officers be divided?
8. Name some of the officials in the older group.
9. Discuss the character of the newer group of officials,
10. Name the chief defects of state administration.
11. Discuss the state civil service.
REQUIRED READINGS
1. Beard, _American Government and Politics_, chapter xxiv.
2. Guitteau, _Government and Politics in the United States_, chapter x.
3. Munro, _The Government of the United States_, chapters xxx and xxxi.
4. Reed, _Form and Functions of American Government_, chapter x.
QUESTIONS ON THE REQUIRED READINGS
1. How many states elect the Governor for two years? (Beard, page
490.)
2. How is the Governor of Mississippi elected? (Beard, page 489.)
3. What is the function of the lieutenant governor? (Beard, pages 499-
500.)
4. What are the functions of the state treasurer? (Beard, page 500.)
5. What are the chief duties of the attorney-general of the state?
(Beard, page 500.)
6. Discuss the impeachment process in state government. (Beard, pages
508-509.)
7. Name some miscellaneous duties of the Governor. (Reed, page 116.)
8. What is the nature of the Governor's messages? (Reed, page 118.)
9. How is a vacancy in the Governorship filled? (Munro, page 433.)
10, Name some states in which the movement for the consolidation of
state administrative offices is active. (Guitteau, page 112.)
TOPICS FOR INVESTIGATION AND REPORT
I
1. Term, qualifications, and salary of the Governor of your state.
2. A short biography of the present Governor of your state.
3. Platform on which the present Governor of your state was elected
4. A comparison of the influence exerted by the President of the
United States upon the National legislature, and the influence exerted
upon the state legislature by the Governor of your commonwealth.
5. A classification of the administrative officers of your state.
6. History of the merit system in your state.
II
7. A comparative study of state governors in the United States.
(Beard, _American Government and Politics_, page 491.)
8. The legislative power of the Governor. (Mathews, _Principles of
American State Administration_, chapter iii.)
9. The veto power of the Governor. (Munro, _The Government of the
United States_, pages 435-438.)
10. Some special functions of the Governor. (Mathews, _Principles of
American State Administration_, chapter v.)
11. The administrative power of the Governor. (Mathews, _Principles of
American State Administration_, chapter iv.)
12. Relation of the Governor to law enforcement. (Reinsch, _Readings
on American State Government_, pages 26-40.)
13. The organization of the state administration. (Mathews,
_Principles of American State Administration_, chapter vii.)
14. The work of the state administration. (Munro, _The Government of
the United States,_ chapter xxxi; Kimball, _State and Municipal
Government in the United States,_ chapter ix.)
15. The selection of state officials. (Mathews, _Principles of
American State Administration,_ chapter viii.)
16. The removal of state officials. (Mathews, _Principles of American
State Administration, Principles of American State Administration,_
chapter ix.)
FOR CLASSROOM DISCUSSION
18. Should the veto power of your state Governor be still further
restricted? Should it be enlarged?
19. Should the administrative offices in your state be reorganized and
consolidated?
20. Ought the merit system in your state to be extended?
21. Advantages and disadvantages of choosing administrative officials
by direct vote.
CHAPTER XLVII
THE STATE LEGISLATURE
593. STRUCTURE OF THE STATE LEGISLATURE.--The representative branch of
state government is known under different names in various states, but
the term "state legislature" is in more or less general use.
The state legislature is invariably a two-chambered body; the upper
house is the smaller and is called the senate, while the lower and
more numerous branch is variously known as the house of
representatives, house of delegates, or assembly.
Usually the state senate differs from the lower house in certain
important particulars. The senatorial districts from which members of
the upper house are elected are always larger than are the districts
from which members to the lower house are chosen. Senators are usually
chosen for longer terms than are representatives. As in the case of
the National Senate, the senate (in most states) is made a continuous
body by the provision that its members shall begin their terms at
certain periodic intervals. In the lower house of the state
legislature, on the other hand, all of the members take their seats at
the same time.
594. BASIS OF REPRESENTATION.--For the purpose of electing members of
the state legislature, practically all of the states are divided into
numerous senatorial and representative election districts. Some states
apply the rule that representatives in the state legislature shall be
apportioned among districts containing practically an equal number of
inhabitants.
Other states, however, provide exceptions to this rule. For example,
Alabama, Florida, New York and other states provide that each county
shall have at least one member in the house. Often the result of this
arrangement is that the smaller or more sparsely populated counties
are over-represented in the state legislature, while the more populous
counties are under-represented.
Several states, notably Connecticut and Vermont, arrange
representation in the state legislature so that with respect to
population, cities are under-represented and rural districts are over-
represented. [Footnote: For a discussion of the problem of minority
representation in state legislatures, see Chapter XXXV.]
595. MEMBERSHIP.--The state constitution determines the qualifications
of those who are entitled to vote for state legislators. [Footnote:
For an enumeration of these qualifications, see Chapter XXXIII,
Section 415.] Generally, anyone qualified to vote for a state
legislator is also eligible to membership. However, holders of both
Federal and state offices are excluded from sitting in the state
legislature.
In some states the term of a senator is the same as that of a
representative, but generally senators are elected for a longer term
than are members to the lower house. Representatives are generally
chosen for two years, senators for four.
In all states, members of the legislature are paid, either a fixed
annual salary or a _per diem_ allowance based upon the length of the
legislative session. In most states senators and representatives
receive equal compensation.
All state legislators are privileged from arrest or civil process
during the session. In addition they enjoy the usual privilege of free
speech in their official capacities.
596. ORGANIZATION.--Formerly state legislatures met annually, but at
present the great majority convene only once in two years. In the
effort to cut down the amount of superfluous legislation, a number of
state constitutions now restrict the legislative session to from forty
to ninety days. The legislature may adjourn itself to meet later in
special session, or the Governor may call special sessions. The
Governor may adjourn the legislature, if the two houses fail to agree
upon a time for adjournment.
In internal organization, the state legislature resembles Congress.
Except that the lieutenant governor is often the presiding officer of
the senate, each house chooses all of its own officers. Each house
determines its own rules of procedure and keeps a journal of its
proceedings. In addition, each house exercises the right of deciding
upon the qualifications of its members, and disciplines and punishes
its members for misconduct. As in the national legislature, work is
expedited by the committee system. The party is a dominant force in
the state as well as in the national legislature.
597. POWERS OF THE STATE LEGISLATURE--The law-making powers of the
state legislature extend to practically all subjects. The presumption
is that this body has a right to legislate upon any subject, unless
specific prohibitions have been imposed upon it by either the Federal
or the state constitution.
The Federal Constitution forbids any state legislature to emit bills
of credit, coin money, or pass laws impairing the obligation of
contracts. Neither bills of attainder nor _ex post facto_ legislation
may be enacted by a state legislature. The Federal Constitution
likewise declares that state legislatures may neither abridge the
privileges and immunities of citizens of the United States, nor
deprive persons of life, liberty, or property without due process of
law. No state may deny to any person within the state jurisdiction the
equal protection of the laws.
Restrictions imposed by the state constitution fall into several
groups. These include restrictions in favor of trial by jury,
religious freedom, and other privileges usually embodied in a bill of
rights; provisions controlling the grant of special favors to
corporations; restrictions upon the financial powers of the state
legislature; provisions defining the framework of state government;
and prohibitions upon the power of the legislature to pass special and
local laws. [Footnote: A special or local law is one which applies to
some particular individual or corporation, or to some particular city,
county, or other locality. Prohibitions upon special and local laws
are necessary in order to prevent the legislature from extending
special favors to particular individuals or localities. ]
598. HOW A STATE LAW IS MADE.--Bills may originate in either house of
the state legislature, except that in most states money bills must
originate in the lower chamber.
To illustrate law-making in the state legislature, let us assume that
a bill is introduced in the lower house. This may be done by any one
of several methods. Any member of the house may deposit a bill in a
box near the speaker's desk. Sometimes a bill is introduced by the
report of a committee, or even by a messenger from the senate. When
the bill has been introduced, it is given a first reading. With the
consent of the house, the speaker then refers the measure to the
appropriate committee. The adverse report of the committee generally
kills the bill; but if the bill is favorably reported, and this report
is approved by the house, the bill is placed on the order of second
reading and is debated section by section, unless by unanimous vote it
is advanced to the third reading. If the bill passes the second
reading, it is generally referred to the committee on revision. It is
then engrossed, reported back to the house for the third reading and
the final vote. Sometimes the yeas and nays of this final vote are
entered upon the journal, so that responsibility may be fixed upon
each member.
The bill then goes to the senate, where the procedure is very much
like that of the house, except that the committee of the whole
sometimes takes the place of the order of the second reading as
conducted in the house.
599. THE BILL GOES TO THE GOVERNOR.--In every state except North
Carolina, a bill which has passed both branches of the legislature
must then go to the Governor for approval. If this officer signs it,
it becomes law. If he disapproves of it, he returns it with his
objections to the house in which it originated. In spite of this
objection by the Governor the legislature may enact the measure into
law, if a sufficiently large majority in each house votes in favor of
the bill. This majority is usually two thirds of the members in each
house.
Generally the Governor has a ten-day period in which to consider
bills. If a bill is not returned to the legislature with his
objections within this period, it automatically becomes law without
his signature, unless the adjournment of the legislature prevents its
return to that body. In most states the Governor has the important
privilege of vetoing particular items in appropriation bills, while
sanctioning the rest of the measure.
600. DEFECTS IN STATE LEGISLATION. [Footnote: For a fuller discussion
see Chapter XXXVI.]--There is, among students of American government,
a general agreement that the legislative procedure of the various
states evidences a number of serious defects.
One of these defects is the absence of responsibility. Any member of
the state legislature may introduce as many bills as he likes, but he
need not assume responsibility for any of them.
Another serious evil is the lack of experience and technical skill on
the part of legislators. Legislators are frequently ignorant of the
subject matter with which they are called upon to deal. There is a
tendency for legislators to ignore the effect of a new statute upon
the existing body of law. Nor is the constitutionality of the measure
contemplated always taken into account. Ill-advised and pernicious
legislation is the result.
Log-rolling and lobbying constitute another defect of state
legislation. Log-rolling leads to the passage of numerous bills
without their adequate scrutiny by individual members, and without
either individual members or legislative committees assuming
responsibility for those measures. The pressure exerted upon state
legislatures for legislation favoring special interests is still
great.
601. THE REFORM OF LEGISLATIVE PROCEDURE.--A few states have attempted
to overcome the lack of technical information on the part of
legislators by providing for expert bill drafters. In New York, for
example, the state legislature has been provided with a number of
competent bill drafters whose duty it shall be, during the session of
the legislature, to draw bills, examine and revise proposed bills, and
advise as to the legal effect of any legislation. These bill drafters
may be set to work on the request of either house, or of a committee,
member, or officer thereof.
A large number of states now have a legislative reference bureau which
keeps a careful record of the laws passed in the various states of the
Union. This bureau maintains a library, and issues bulletins for the
guidance of legislators.
In 1909 Wisconsin created the office of reviser. This officer keeps a
loose-leaf system of laws, and collects court decisions affecting
statutes. At the beginning of each session this officer also presents
to the committees on revision of each house of the legislature, bills
providing for such consolidation and revisions as may be completed
from time to time. The reviser supervises the preparation, printing,
and binding of such compilations of particular portions of the
statutes as may be ordered by the head of any state department.
There is an increasing tendency to curb lobbying in state
legislatures. The laws of New York and Wisconsin may be taken as
typical. That of New York provides that every person retained or
employed for compensation as a counsel or agent by any person, firm,
corporation, or association, to promote or oppose, directly or
indirectly, the passage of any bill or resolution, must be registered
every year in the office of the secretary of state, and must give the
name of the person by whom he is retained. The Wisconsin law provides
that legislative agents or counsels may not attempt to influence
members privately, but must confine themselves to arguing before
committees and filing printed briefs with the members of the
legislature.
QUESTIONS ON THE TEXT
1. Discuss the structure of the state legislature.
2. In what ways does the senate usually differ from the lower house?
3. What is the basis of representation in the state legislature?
4. How are the qualifications of state representatives determined?
5. Compare the term of senator with that of state representative.
6. Outline the organization of the legislature.
7. Compare the organization of the state legislature with that of the
national legislature.
8. What is the scope of power enjoyed by the state legislature?
9. What limitations are placed upon state legislatures?
10. Describe the making of a state law.
11. Discuss the veto power of the Governor.
12. What are some defects of state legislation?
13. Outline some attempts to eliminate these defects.
REQUIRED READINGS
1. Beard, _American Government and Politics_, chapter xxv.
2. Guitteau, _Government and Politics in the United States_, chapter
ix.
3. Munro, _The Government of the United States_, chapter xxix.
4. Reed, _Form and Functions of the United States Government_, chapter
xi.
QUESTIONS ON THE REQUIRED READINGS
1. Under what four heads may the limitations on state legislatures be
grouped? (Guitteau, page 101.)
2. What limitations are imposed upon state legislatures by the
republican nature of state government? (Guitteau, page 102.)
3. In what states are annual legislative sessions held? (Guitteau,
page 96.)
4. Why has the legislative session been shortened in some states?
(Reed, pages 123-124.)
5. Under what three heads may state legislative power be classified?
(Guitteau, page 100.)
6. What is the most important of the powers of the state legislature?
(Reed, page 128.)
7. What are the non-legislative duties of the state legislature?
(Guitteau, pages 100-101.)
8. What can be said as to the personnel of the state legislature?
(Reed, page 126.)
9. What is a "rotten borough"? (Beard, page 521.)
10. Why are state laws frequently of inferior quality? (Munro, page
428.)
TOPICS FOR INVESTIGATION AND REPORT
I
1. A comparison of the upper with the lower house of your state
legislature.
2. Gerrymandering in your state.
3. Occupations and professions represented in the membership of your
state legislature.
4. The character of legislation recently enacted by your state
legislature.
II
5. Development of the law-making department. (Gettell, _Readings in
Political Science_, pages 341-342.)
6. General principles of legislative organization. (Gettell, _Readings
in Political Science_, page 343.)
7. Advantages of the bicameral system. (Gettell, _Readings in
Political Science_, page 344.)
8. The function of the legislature. (Gettell, _Readings in Political
Science_, page 357.)
9. The lobby. (Reinsch, _Readings on American State Government_, pages
79-84.)
10. Financial procedure in state legislatures. (Reinsch, _Readings on
American State Government_, pages 56-61.)
11. The actual work of making a law. (Reed, _Form and Functions of
American Government_, chapter xii.)
12. Legislative apportionments. (Reinsch, _American Legislatures and
Legislative Methods_, chapter vii.)
13. Obstacles to intelligent law-making. (Gettell, _Readings in
Political Science_, pages 358-359.)
14. Danger of over-legislation in the United States. (Gettell,
_Readings in Political Science_, page 361.)
15. The legislative reference bureau. (Reinsch, _Readings on American
State Government_, pages 63-73.)
16. The relation of the state legislature to local government
(Gettell, _Introduction to Political Science_, chapter xxii.)
17. Public forces influencing legislation. (Reinsch, _American
Legislatures and Legislative Methods_, pages 275-298.)
FOR CLASSROOM DISCUSSION
18. Would shortening the length of the legislative session improve the
character of legislation in your state?
19. Should members of the state legislature be residents of the
districts from which they are chosen, or should they be chosen on a
state-wide ticket?
20. Should our state legislatures be made unicameral? (See Munro, _The
Government of the United States_, pages 416-418.)
CHAPTER XLVIII
THE STATE COURTS
A. SOURCES OF LAW
602. ENGLISH COMMON LAW.--One important source of our system of
jurisprudence is the English common law. This law is not found in the
enactment of statutes, but consists of court decisions spread over
several centuries. The common law has been defined as "that rule of
civil conduct which originated in the common wisdom and experience of
society," and which "in time became an established custom, and has
finally received judicial sanction and affirmance in the decisions of
the courts of last resort." [Footnote: W. C. Robinson, quoted in
_Government and Politics in The United States_, by W. B. Guitteau,
Houghton Mifflin Co., Boston, 1920.] The common law began its
development in early England, and with the settlement of America was
transplanted to this country. Though radically modified by American
constitutional and statutory enactments it still remains the basis of
our legal system.
603. EQUITY.--Common law tended to become so stereotyped and so
inflexible that in some cases an application of the law worked an
injustice. Very early in English history this situation gave rise to a
new form of jurisprudence called equity. Equity is that legal system
which supplements common and statute law by aiming to secure justice
where a strict application of law would work an injustice. Equity
developed in England after the Norman Conquest, and, like the common
law, was transferred to this country in colonial times. A distinct set
of chancery or equity courts was created to administer equity in early
America, but at present equity is administered by the same judges that
preside over the regular state law courts. Both equitable and legal
relief may be secured in one suit.
604. STATUTES.--Another important source of law is the statutes
enacted by the state legislature. Most state laws relate to the
structure and functions of government, but statutory enactment is also
employed to regulate a few branches of private law, including
principally matters which affect the public at large as well as
private individuals. Examples are laws relating to wills and
succession to property, marriage and divorce, partnerships, and
corporations.
The scope of the statutes is widening, and during the last half
century several fields of the common law have been covered by statute.
Criminal law, criminal procedure, and civil procedure have been
codified in various states. Some states have attempted to codify the
entire civil law, but experience has proved that this may easily
render the law too rigid.
605. OTHER SOURCES OF LAW.--The state constitution, the Federal
Constitution, and Federal laws and treaties with foreign countries are
other sources of state law.
In summary, the various kinds of law which are enforceable in the
state courts may be considered as forming a pyramid, built upward by
the following steps: English common law, equity, state statutes, the
state constitution, Federal statutes, treaties with foreign nations,
and the Federal Constitution.
B. STRUCTURE OF THE COURTS
606. THE JUSTICE OF THE PEACE.--State courts are arranged in a
progressive series. At the bottom of this series is the justice of the
peace, who exercises jurisdiction over petty offenses and over civil
cases involving very small amounts. Generally there is a justice of
the peace in each township or other local district. In large cities
the civil and criminal jurisdiction of the justice of the peace is
usually divided between two sets of courts: first, the municipal or
city courts, with a minor civil jurisdiction; and second, the police
or magistrates' courts with jurisdiction over petty criminal offenses.
The police or magistrates' courts have the power to make preliminary
investigations in case of felonies or serious misdemeanors.
607. THE COUNTY COURTS.--Above the justices of the peace there are, in
most states, a number of county courts, exercising limited
jurisdiction. These courts, sometimes called courts of common pleas or
district courts, have jurisdiction over civil cases involving
considerable sums, as well as jurisdiction over most criminal
offenses. In addition these courts usually consider appeals from the
judgments of justices of the peace.
608. SUPERIOR OR CIRCUIT COURTS.--In many states there is a superior,
circuit, or district court immediately above the county courts, though
in some states this tribunal takes the place of the county courts. The
superior court has jurisdiction over civil cases involving unlimited
sums, as well as unlimited original jurisdiction over criminal
matters. It may also try all cases over which the lower courts have no
jurisdiction.
609. THE SUPREME COURT.--At the head of the state judicial system
there is a court of last resort, known in various states by different
names. It may be called the court of appeals, the court of errors and
appeals, or simply the supreme court. Practically all of the cases
coming before this court are appealed from the lower courts.
Ordinarily it deals with points of law rather than of fact.
610. SPECIAL COURTS.--In addition to the regular state courts there
are sometimes special tribunals for special purposes. Examples of such
courts are the probate or surrogates' courts for the settlement of the
estates of deceased persons; children's courts for the treatment of
cases involving children; courts of domestic relations; and courts of
claims for hearing claims against the state.
611. STATE JUDGES.--In almost all of the states judges are chosen by
popular vote, though in half a dozen states the choice of these
officials still lies with the legislature or with the Governor, or
with both acting jointly. Judges of the higher state courts are
generally chosen for a long period of time, even for life, while the
judges of the lower courts are chosen for relatively short periods.
Salaries vary from practically nothing but fee money for some justices
of the peace to an average of $7000 a year for justices of the supreme
court. The qualifications imposed upon judges include a minimum age of
25 to 35 years, and citizenship for a varying period of years. Another
common requirement is residence within the state, or even residence
within the judicial district. For judges of the higher courts it is
the custom to demand membership in the legal profession. Judges may be
removed by impeachment, and, in a few states, by use of the Recall.
612. OTHER COURT OFFICIALS.--The district or prosecuting attorney is
an important official. Generally he is chosen by the voters of the
county, though in some instances he is elected from larger areas. The
district attorney represents the state in all criminal cases, and
conducts the prosecution. This officer conducts a preliminary
investigation into crimes and determines whether or not a prosecution
should be instituted. If the decision is in the affirmative, he
presents the case to the grand jury. If the grand jury returns an
indictment, that is, if it demands that the accused be held for trial,
the prosecuting attorney conducts the prosecution at the ensuing
trial.
The clerk, or recording officer, is generally appointed by the court,
though he may be elected by popular vote. The constable or sheriff is
elected by popular vote. The clerk and the constable are charged with
the execution of all orders, judgments, and decrees of the court.
C. POWERS AND PROCEDURE
613. RELATION OF STATE TO FEDERAL COURTS.--The framework of American
government includes a dual system of courts, the Federal courts and
the state courts. The jurisdiction of the Federal courts is
specifically defined by the Federal Constitution, while the state
courts have a jurisdiction which is limited only by the prohibitions
of the state and Federal Constitutions. The two systems of courts are
independent in the exercise of their respective powers, and have
separate jurisdictions. In some cases, however, the state courts
have a concurrent jurisdiction with the Federal courts, and a litigant
has a choice of tribunals before which to bring suit. In most suits
the decision of the state supreme court is final, but cases involving
Federal law may be appealed for final decision to the Supreme Court of
the United States.
614. POWER TO DECLARE STATE STATUTES UNCONSTITUTIONAL.--Just as the
Federal courts are the final interpreters of all domestic law, so the
state courts have the power to pass upon the constitutionality of
statutes enacted either by the state legislature or by local law-
making bodies. The state constitution is the fundamental law of the
state, and it is the duty of the state courts to see that all state
and local legislative acts conform to this fundamental law.
615. POWER OVER EXECUTIVE OFFICIALS.--Through their power to pass upon
the legality of executive acts, the state courts exercise some degree
of control over executive officials. If a state governor were
illegally to remove an official from office, for example, the courts
could reinstate the latter.
The state courts also have the power to issue writs of mandamus and
injunction. The former may be used, under certain circumstances, to
compel an executive officer to perform his duty; the latter writ may
be used to prevent either state officials or private individuals from
committing illegal acts.
616. CIVIL JURISDICTION.--The jurisdiction of the state courts is
either civil or criminal.
The purpose of civil law is to protect the rights of the individual
and to redress his wrongs. The individual rights which are the concern
of civil law fall under three heads: First, the right of personal
security, including the right of protection against violence; second,
the right of personal liberty, including the rights set forth in the
bill of rights of the state constitution; third, the rights of
property, including the right to acquire and hold property, and the
right to demand fulfilment of contracts made under state law.
617. CIVIL PROCEDURE.--If an individual believes that his rights have
been violated, he, as plaintiff, is entitled to file a complaint with
the proper court. The sheriff or constable then summons the defendant
to appear in court, and the clerk of the court issues a summons or
subpoena to all witnesses which either party to the suit desires to
have testify. Generally either party may demand a trial by jury. Both
plaintiff and defendant are ordinarily represented by counsel which
present the different sides of the case to the judge and jury. The
judge decides what evidence may be properly presented to the jury.
After the closing argument of the plaintiff's counsel, the judge
instructs the jury on the legal points involved in the case. The jury
then retire and attempt to reach an unanimous decision. If able so to
agree, they return a verdict for either plaintiff or defendant, and
after the verdict has been accepted by the court, judgment is
rendered. If the jurors have been unable to come to an unanimous
decision, the case is ordinarily tried with another jury, though in a
few states an unanimous verdict in civil cases is not required.
If the decision of the court is accepted as final, the judgment is
enforced. On the other hand, the dissatisfied party may appeal the
case to the next higher court on the ground that the verdict was
contrary to the weight of evidence, or because of errors of law
committed by the judge. Under certain circumstances the judge who
tries the case may be induced to grant a new trial.
618. CRIMINAL JURISDICTION.--The purpose of criminal law is to punish
those who have committed public wrongs, _i.e._ wrongs against the
state or community. Crimes are of two types: first, felonies,
including such grave offences as murder, arson, burglary, and larceny;
and second, misdemeanors, including such lesser offenses as bribery,
knowingly receiving stolen goods, libel, assault and battery, and
disturbance of the peace. Usually felonies are punished either by
death, or by a long prison sentence. Misdemeanors are ordinarily
punished by fines or by imprisonment for a short term.
619. CRIMINAL PROCEDURE.--A criminal proceeding usually begins with
the arrest of the accused person. Generally, though not always, arrest
is in pursuance of a warrant. As soon after arrest as possible, the
accused is brought before a magistrate for a preliminary examination.
If the examining magistrate finds that there is probable cause for
holding him for trial, the accused is committed to jail to await
trial. Unless the charge is murder, however, the defendant may be
released on bail.
If the charge is a serious one, indictment by the grand jury is the
next step. If this jury decides that the evidence is insufficient, the
charge is dismissed and the prisoner released. The grand jury meets in
secret, and hears only the charges against the accused. These are
generally presented by the prosecuting attorney. After the defendant
is indicted, the prisoner is brought into court and allowed to plead.
If he pleads guilty, the judge may forthwith impose sentence and there
is no trial. If the plea is "not guilty," a trial is arranged, a jury
of twelve men impanelled, and the trial begins.
The case is opened by the prosecuting attorney, since it is the duty
of the state to assume the defendant innocent until he is proved
guilty. The prosecuting attorney presents his witnesses, each of which
the defendant's attorney may cross-examine, and in turn allows the
defendant's attorney to present the defense. The prisoner is not
questioned at any stage in the trial, unless he is willing to take the
stand as a witness in his own behalf.
After the prosecuting attorney and the defendant's counsel have
completed their case, the judge sums up the evidence brought out by
each side, and instructs the jury as to the law involved. The jury
then retire and attempt to reach a verdict. Generally such a verdict
must be unanimous, and if this cannot be secured, the jury is
dismissed and the case is held for re-trial. If the verdict is "not
guilty," the prisoner is discharged; if he is found guilty, sentence
is imposed by the court, either immediately or at some future
date. [Footnote: For a discussion of the legal aspects of the problem
of crime, see Chapter XXI.]
QUESTIONS ON THE TEXT
1. What is meant by the term "common law"?
2. Define equity. How did it arise?
3. What is the importance of the statutes as a source of state law?
4. What are some other sources of law?
5. Describe the work of the justice of the peace.
6. What is the jurisdiction of the county courts?
7. What is the chief function of the state supreme court?
8. Name some special state courts.
9. What is the function of the district attorney?
10. What is the relation of state to Federal courts?
11. Discuss the chief powers of state courts.
12. What is the scope of the civil jurisdiction of the state courts?
13. Describe a civil trial.
14. What are the two types of crimes?
15. Outline the steps in a criminal trial.
REQUIRED READINGS
1. Beard, _American Government and Politics_, chapter xxvi.
2. Guitteau, _Government and Politics in the United States_, chapter
xi.
3. Munro, _The Government of the United States_, chapter xxxiv.
4. Reed, _Form and Function of American Government_, chapter xiii.
QUESTIONS ON THE REQUIRED READINGS
1. Define common law. (Guitteau, page 115.)
2. What is the relation of the old Privy Council to the origin of
English common law? (Guitteau, page 116.)
3. What is a tort? (Beard, pages 558-559.)
4. What is the relation of the state judiciary to the other
departments of state government? (Reed, page 160.)
5. To what extent do the Federal courts interfere with the decisions
of the state courts? (Munro, page 492.)
6. By what three methods may judges be chosen? (Beard, page 550.)
7. Name some states in which judges are not chosen by the people. How
are judges chosen in these states? (Beard, page 550.)