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

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


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

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

_Pertinent Questions_.

In what sense are all men created equal? Is there anything in good blood?
What was meant by the "divine right" of kings to rule?

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

What constitutes libel? Slander?

On what basis may a mob be dispersed? What cases of petition have you

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

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

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

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

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

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

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

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



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

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

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

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



Bicameral. - The legislature of every state consists of two chambers or
houses. The _reason_ for this is that during colonial times most of the
legislatures consisted of two houses, the governor's council and the
representative assembly. Then on becoming states, each of the "old
thirteen," except Pennsylvania, organized bicameral legislatures. And the
new states, being largely settled by people from the older states,
naturally followed their example. The structure of congress has also had
much influence.

The _advantages_ to be derived from having two houses are numerous.
Perhaps the only one which it is necessary to mention here is that it
tends to prevent hasty legislation, because under this arrangement a bill
must be considered at least twice before passage.

Apportionment. - As the population of a state is changeful, the
constitution does not usually specify the number of members to compose
each house. This is determined, within certain limitations imposed in the
constitution, by the legislature itself. A re-apportionment is usually
made every five years, after a census by the state or general government.
The number of senators usually ranges between thirty and fifty; that of
representatives from seventy-five to one hundred and fifty.

Meeting. - The legislature meets biennially in most of the states. People
are beginning to understand that they may suffer from an excess of
legislation. Some of the English kings used to try to run the government
without parliament, and frequent sessions of parliament were then demanded
as a protection to popular rights. Hence our forefathers instinctively
favored frequent sessions of the legislature. But such necessity no longer
exists, and for many reasons the states have with a few exceptions changed
from annual to biennial sessions. [Footnote: Extra sessions may be called
by the governor. Mississippi has its regular sessions for general
legislation once in four years, and special sessions midway between.]

Election. - Senators and representatives are both elected by the people. In
some cases the states are divided into senatorial and representative
districts in such a way that each elects one senator and one
representative, the senate districts being of course the larger. In other
cases, the state is divided into senate districts only, and each senate
district chooses one senator and an assigned number of representatives.
The former plan prevails in Wisconsin, for instance, and the latter in
Minnesota. The number of representatives chosen in a senatorial district
varies from one to half a dozen, dependent upon population. Illinois has a
peculiar, and it would seem an excellent, plan. The state is divided on
the basis of population into fifty-one parts as nearly equal as possible.
Each of these districts elects one senator and three representatives. In
voting for representatives, a person may mass his three votes on one
candidate, or give them to two or three. The purpose is to enable a party
in the minority to secure some representation.

Term. - The length of term of legislators usually depends upon the
frequency of sessions. The general principle seems to be that
representatives shall serve through one session and senators through two.
How long, then, would you expect the respective terms to be in states
having annual sessions? In states having biennial sessions? By reference
to the comparative legislative table on page 293 confirm or reverse your

Vacancy. - In case of a vacancy in either house the governor orders a new
election in the district affected by the vacancy.

Individual House Powers. - Each house has certain powers conferred by the
constitution having for their object the preservation of the purity and
independence of the legislature. Among these are the following:

1. _Each house is the judge of the election, returns, and qualification of
its own members._ Each person elected to either house receives from the
canvassing board of the district through its clerk a certificate of
election, which he presents when he goes to take his seat. Should two
persons claim the same seat, the house to which admission is claimed
determines between the contestants. The contest may be based, among other
things, upon fraud in the election, a mistake in the returns, or alleged
lack of legal qualification on the part of the person holding the
certificate. Into any or all of these matters the house interested, _and
it only_, may probe, and upon the question of admission it may pass final

2. _Each house makes its own rules of procedure._ These, usually called
rules of parliamentary practice, you can find in the legislative manual.
Upon their importance as related to civil liberty, consult Lieber's Civil
Liberty and Self-Government.

The power to preserve order applies not only to members but to spectators
also. Disorderly spectators may be removed by the sergeant-at-arms. On the
order of the presiding officer such persons may be placed in confinement
during the remainder of the daily session.

Unruly members are as a general thing simply called to order. For
persistent disorder they may be reprimanded or fined. [Footnote: See Among
the Lawmakers, pp. 230-3.] But in extreme cases they may be expelled. To
prevent a partizan majority from trumping up charges and expelling members
of the opposite party, it is a common constitutional provision that the
concurrence of two-thirds of all the members elected shall be necessary
for expulsion.

3. _Each house chooses its own officers_. Each house has a presiding
officer, several secretaries or clerks, a sergeant-at-arms, a postmaster,
and a chaplain. The sergeant-at-arms usually has a number of assistants
appointed by himself, and there are a number of pages appointed by the
presiding officer. These, however, hardly count as officers. The only
exception to the rule enunciated is in those states having a lieutenant
governor, who is _ex officio_ president of the senate. Even in that case,
the senate elects in case of a vacancy, the person so elected being chosen
from among their own number and receiving usually the title of president
_pro tempore_.

Quorum. - It would hardly be possible for all members to be present every
day, therefore a number less than the whole should have authority to act.
But this number should not be very small. The several constitutions fix
the quorum for each house, usually at a majority of the members elected to
it. But a smaller number has power of adjournment from day to day, so that
the organization may not be lost; and it may compel the attendance of
absent members, by sending the sergeant-at-arms after them.

Publicity. - On the theory that legislators are servants of the people, we
would naturally expect the proceedings to be made public. And so they are.
Publicity is secured in the following ways:

1. In accordance with the constitutional provision, each house keeps a
journal of its proceedings which it publishes from time to time, usually
every day.

2. Spectators are admitted to witness the daily sessions.

3. Newspaper reporters are admitted, and are furnished facilities for
making full and accurate reports.

Privileges of Members. - In order that their constituents may not, for
frivolous or sinister reasons, be deprived of their services in the
legislature, the members of each house are _privileged from arrest_
"during the session of their respective houses, and in going to and
returning from the same." Nor can civil suit be brought against them
during that time. But they may be arrested for treason, (defined in the
constitution), felony, or breach of the peace, because if guilty they are
unworthy of a seat in the legislature.

And in order that there may be the utmost _freedom of speech_ in the
legislature, that any member who knows of wrong being done may feel
perfectly free to say so, the constitution of each state provides that
"for any speech or debate in either house, they shall not be questioned in
any other place."

Compensation. - Members of the legislature receive for their services a
salary, which is sometimes specified in the constitution, but which is
usually fixed by law. In the latter case no increase voted can be in
effect until a new legislative term begins. This proviso is, of course,
designed to remove the temptation to increase the salary for selfish ends.

In some countries no salary is paid to legislators, the theory being that
with the temptation of salary removed only persons of public spirit will
accept election. Our argument is that unless some remuneration be given,
many persons of public spirit and possessed of capacity for public service
would be barred from accepting seats in the legislature. In other words,
the state wants the services of her best citizens, and does not wish lack
of wealth on the part of any competent person to stand in the way. On the
other hand, that there may be no temptation to continue the sessions for
the purpose of drawing the pay, the constitution provides, where a _per
diem_ salary is paid, that members shall not receive more than a certain
sum for any regular session, or a certain other sum for any extra session.

Prohibitions on Members. - To secure for his legislative duties the
undivided attention of each member, the constitution provides that "no
senator or representative shall, during the time for which he is elected,
hold any office under the United States or the State." In some states, as
in Minnesota, the office of postmaster is excepted. And in order that
legislators may be freed from the temptation to create offices for
themselves or to increase the emoluments of any office for their own
benefit, it provides that "no senator or representative shall hold any
office under the state which has been created or the emoluments of which
have been increased during the session of the legislature of which he was
a member, until one year after the expiration of his term of office in the

Eligibility. - To be eligible to the legislature a person must be a
qualified voter of the state, and a resident thereof for, usually, one or
two years; and shall have resided for some time, usually six months or a
year, immediately preceding election, in the district from which he is
chosen. This last provision is made to preclude people who have not been
living in the district, and who therefore cannot know it or be interested
particularly in its welfare, from representing it in the legislature.

Sole Powers. - The mode of making laws is discussed in another place.
[Footnote: See "How Laws Are Made," page 344.] In making laws the houses
have concurrent jurisdiction - they both take part. But there are some
parts which belong to each house separately, besides the election of
officers before mentioned. The house of representatives has in all states
the sole power of impeachment, [Footnote: For mode of proceeding see page
331.] and in some states of originating bills for raising revenue. This
latter power is given to it because being elected for a short term it is
more directly under the control of the people than is the senate.

The power to impeach is vested in the representatives because for the
reason stated, they seem more immediately in fact as well as in name to
represent the people, who it will be remembered are always the complainant
in criminal cases. And the senate has the sole power of trying
impeachments. [Footnote: When the governor is being tried, the lieutenant
governor cannot act as a member of the court.] The length of term frees
the members from the fear of immediate punishment in case of an unpopular
verdict. And if they are right time will show it. Historically, this
division of power in cases of impeachment is derived from colonial
practice and from the constitution of the United States.

The senate has also the sole power of confirming or rejecting the
appointments of the governor.

Forbidden Laws. - In addition to the laws forbidden in that part of the
constitution called the bill of rights, the legislature is usually
forbidden to pass laws authorizing any lottery; or granting divorces; or
giving state aid to private corporations; or involving the state in debt,
except in case of war or other emergency.

_Pertinent Questions._

Define constitution. What is a law? What is meant by common law? Statute
law? Equity?

By reference to the comparative legislative table in the appendix, tell
the most common name applied to the legislative body; any peculiar names;
the names most commonly applied to the respective houses; the usual
qualifications of members; the frequency of regular sessions, and the
month of meeting most usual. Why is this time of year so uniformly chosen?
What relation do you see between the frequency of sessions and the term of
members? What is the relation between the terms of the respective houses?
How does the number of senators compare with the number in the lower
house? What state has the largest house? The smallest? Why is the term
_senate_ so common? Look up the derivation of the word. In what section of
the country are the terms the shortest? Can you account for this? Which
states require the highest qualifications in members?

Find out whether in your state there are any requirements not given in the
tabulation. By reference to the legislative manual or other source of
information find out any other facts of interest, such as the names of the
speaker and other legislative officers; the number of your senatorial
district, and the name of your senator; of your representative district,
and the name of your representative; what committees are appointed in each
house, and on which your local representatives are, and how they came to
be selected for these particular committees; how vacancies are filled in
the legislature; any contested elections that have occurred in your state
and the basis of the contest; some of the important rules of parliamentary
practice; the salary paid members in your state; any cases of impeachment,
the charge, and the outcome; other forbidden laws.

If two persons claim the same seat in the senate, who will decide between
them? In the lower house? What are the returns, and where are they kept?
What appeal from decision is there? If your legislature is now in session,
write to your representatives asking them to send you regular reports of
the proceedings. Don't expect to get such reports for the whole session,
however; that would be asking too much. From the newspapers, report on
Monday the principal proceedings of the previous week. Have you ever seen
a legislature in session? What is to keep a member of the legislature from
slandering people?

State five powers which can be exercised only by the senate. Five, in some
states four, which can be exercised only by the lower house.

Are you eligible to the legislature? If not, what legal qualifications do
you lack? Could a member of the legislature be elected governor or United
States senator?

At the last election did you preserve any of the tickets? Could you secure
any of the ballots that were actually used in voting? Why?



Officers. - The chief executive office in every state is that of governor.
There is in each a secretary of state and a state treasurer. Most states
have also a lieutenant governor, a state auditor or comptroller, an
attorney general, and a state superintendent of public instruction. In
nearly every case these offices are created by the state constitution.

Eligibility. - The qualifications required in the governor and lieutenant
governor are age, citizenship of the United States, and residence within
the State. The age qualification is required because the responsibilities
are so great as to demand the maturity of judgment that comes only with
years. The requirement of citizenship and that of residence are so
obviously proper as to need no comment.

For the other offices the qualifications required in most states are
simply those required in a voter. [Footnote: For which see page 298.]

Election. - In every state the governor is elected by the people, and in
most states the other officers are also. In a few states, some of the
officers are chosen by the legislature on joint ballot, or are appointed
by the governor and confirmed by the senate.

Term. - The terms of office of the governors are given in the table. Unless
otherwise stated, the term of the other officers in each state is the same
as that of the governor thereof. For the highest efficiency the term of a
state officer should not be very short, two years being better than one,
and four years better than two. When the term is four years, it may be
well to limit the number of terms for which an officer may be elected. In
some cases this is done.

Removal. - These officers and the others provided by statute may be removed
on impeachment by the house of representatives, and conviction by the

Vacancy. - For the office of governor there is in every state a line of
succession appointed in its constitution. By reference to the comparative
table, it will be seen that there is considerable uniformity in the order
of succession. In case of a vacancy in any of the other elective offices,
the most usual plan is for the governor to make a temporary appointment
until a new election can be held. For an appointive office, the
appointment is usually good until the end of the next legislature or for
the remainder of the term.

Salary.-The salary attached to each office is usually fixed by law,
subject to the constitutional limitation that it shall not be increased
nor diminished during the term of the incumbent. See page 294.

The Duties of the Officers.

Governor. - The great, the characteristic duty of the governor is to see
that the laws are faithfully executed. Since this may sometimes require
force, he is made by the constitution commander-in-chief of the military
forces of the state, and may call out these forces to execute the laws,
suppress insurrection, or repel invasion.

He appoints, "by and with the advice and consent of the senate," most of
the important state officers and boards, as provided by law. The advice of
the senate is rarely if ever asked. But its consent must be obtained to
make any such appointment valid.

As his duties continue through the year and have to do with the whole
state, and as he may require the opinion, in writing, of the principal
officer in each of the executive departments upon any subject pertaining
to the duties of their respective offices, he is supposed to know more
than any other person about the situation and needs of the state as a
whole; and it is, therefore, made his duty to communicate by message to
each session of the legislature such information touching the affairs of
the state as he deems expedient. The regular message is sent at the
opening of the legislative session, and special messages at any time
during the session as they seem to be needed. On extraordinary occasions
he may convene the legislature in extra session.

To place another obstruction in the way of hasty legislation, the governor
(except in Delaware, North Carolina, Ohio, and Rhode Island) has a limited
veto. [Footnote: See comments on the president's veto, page 150.]

In the administration of justice mistakes are some times made. An innocent

Online LibraryJames T. McClearyStudies in Civics → online text (page 6 of 31)