When the thirteen original states were colonies, they derived their governing powers from CHARTERS granted to them by the king, as cities and some counties are granted charters by the state. When they won their independence the people of each state substituted a CONSTITUTION for the charter; the difference between a charter and a constitution being that the former is given TO the people by some higher authority, while the latter is adopted BY the people themselves. All of our states alike, whether created before or after the Union was formed, are self-governing under constitutions of their own making.
Counties and towns, cities and villages, have no powers of self- government except those granted to them BY THE STATE. The national government, also, may exercise only such powers as are given to it by the people VOTING AS STATES. Each state, on the other hand, is self-governing in its own right, and may exercise through its government any power whatever, excepting only those which it voluntarily surrendered upon entering the Union. (See pp. 94, 449; also Constitution, Art. I, Sec. 10 and Art. IV.)
The state constitution is the supreme law of the state and is supposed to represent the direct voice of the people. Since the Union was formed, state constitutions have been framed by conventions of delegates elected especially for the purpose, and in most cases have been submitted to the people for their ratification. Amendments may be proposed either by such conventions or by the state legislatures, but they must also be ratified by the people. Some of the states have completely revised their constitutions several times, and amendments have been very numerous.
State constitutions are long documents, containing a great deal of detail regarding the organization and powers of government. In this respect they differ from the national Constitution, which is brief and speaks in broad, general terms. Recent constitutions are longer than earlier ones, partly because there is a greater variety of problems to be dealt with, but also because of a growing tendency to limit the powers of legislatures and administrative officers.
After a DECLARATION OF RIGHTS, which all state constitutions contain, the constitution is concerned chiefly with the organization, powers and duties of the government. Each state may organize its government as it sees fit, provided only that it is "republican" in form as required by the federal Constitution (Art. IV, sec. 4). This means that it must be a form of representative self-government.
While the state governments differ from one another in matters of detail, the general plan is the same in all. Each consists of three branches: the legislative branch for lawmaking; the executive branch for law enforcement and administration; and the judicial branch for the interpretation of the laws and for the administration of justice in accordance with the law. These three branches are organized on the principle of a SEPARATION OF POWERS, to prevent encroachment by one upon the powers of the others, and to make each a check upon the powers of the others.
In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men. [Footnote: Constitution of Massachusetts, Part I, Art. XXX.]
Investigate and report on:
The meaning of "a government of laws, and not of men."
The entrance of your state into the Union.
The history of your present state constitution.
The powers surrendered by your state when it entered the Union.
Compare the length of your state constitution with that of the federal Constitution.
The principal parts of which your constitution is composed.
Number of amendments to your state constitution. When the latest amendments were adopted and why.
The declaration of rights in your state constitution.
Checks exercised by the legislature upon the executive and judicial branches; by the executive upon the legislative and judicial branches; by the judicial upon the legislative and executive branches.
The chief executive officer of the state is the governor, who is elected by the people for a term which varies, in the different states, from one to four years. It is his duty to see that the laws of the state are faithfully executed. The constitution makes him the commander-in-chief of the state militia, which he may call upon to enforce the laws or to quell disorders. It also gives him the power to pardon persons convicted of crime, in the exercise of which power he is sometimes assisted by a special board of pardons and sometimes by the legislature; but the consideration of the pleas of such persons and their friends for pardon often consumes much of his time.
A great deal of the governor's time is also taken up with duties devolving upon him as the official representative of the state on ceremonial occasions, as in the laying of corner-stones of public buildings, attending state fairs, and making speeches at public meetings of all kinds. By virtue of his office he is also a member of many boards and commissions whose meetings he must attend.
The governor also has some part in lawmaking. In all states except North Carolina he has the power to VETO bills passed by the legislature. This check upon the legislature is not absolute, for the legislature may overcome the governor's veto by again passing the bill, usually by a two-thirds vote. The governor may also influence legislation by means of his messages to the legislature in which he recommends measures which he believes should be enacted into law. In case of opposition by the legislature, the governor often carries his proposals directly to the people, who quickly make known whether or not they support him. The governor may call special sessions of the legislature to consider measures of especial importance.
The governor is a more influential officer today than he was in the early part of our history. In colonial times he was the direct representative of the king, or of the colonial proprietor, and the people sought in every way to limit his powers. After the colonies became states this habitual fear of the governor continued, and he was placed under the control of the legislature. As time went on, however, the legislature fell under the suspicion of the people, while the governor was more and more looked to as their leader. Thus, for example, the veto power was given to him, increasing his influence while it curbed that of the legislature.
But the power and influence of the governor are by no means as great in relation to state government as are the powers of the President in relation to the national government. In fact, the executive branch of our state governments has been notoriously weak, and its weakness is of the same kind as that noted in county government: the lack of an effective, responsible head.
In our national government the executive power is concentrated in the hands of one man. State constitutions seem to confer the same powers upon the governor. The constitution of Indiana says, "The executive powers of the State shall be vested in a Governor"; and that of Pennsylvania says, "The supreme executive power shall be vested in the Governor." But the Pennsylvania constitution also says, "The executive department shall consist of a Governor, Lieutenant Governor, Secretary of the Commonwealth, Attorney General, Auditor General, State Treasurer, Secretary of Internal Affairs and a Superintendent of Public Instruction" (Art. IV, Sec. I). Four of these officers besides the governor are elected by the people.
In all states the governor "shall take care that the laws be faithfully executed" (Pennsylvania constitution). For the execution of the laws, however, he is dependent not only upon a number of principal executive officers such as those named above, but also upon a large number of less important administrative officers. Governor Lowden, of Illinois, a few years ago said:
Administrative agencies have been multiplied in bewildering confusion. They have been created without reference to their ability economically and effectively to administer the laws. Separate boards govern the penitentiaries, the reformatories, and the educational institutions. Several boards and commissions have charge of matters affecting the agricultural interests. Administration of laws affecting labor is parceled out among numerous agencies, including several boards having jurisdiction of mining problems and several free employment agencies, each independent of the other. Our finance administration is chaotic, illogical and confused.
The administration of the health laws is divided between boards and commissions, with no effective means of coordination. Our educational agencies are not harmonious. Over one hundred officers, boards, agencies, commissions, institutions and departments are charged with the administration of our laws. No systematic organization exists, and no adequate control can be exercised … Under the present system the governor cannot exercise the supervision and control which the people have a right to demand. [Footnote: Charles E. Woodward, "The Illinois Civil Administrative Code," reprinted from Proceedings, Academy of Political Science, July, 1918.]
This condition of affairs is characteristic of state governments generally. Some of the numerous officers are appointed by the governor, but many of them are elected by the people or appointed by the legislature. Their terms of office do not coincide with that of the governor, so that he finds in office many persons whom he did not appoint, and whom he cannot remove. Often they may be of an opposite political party. Thus the very organization of the state executive department is such as to make it impossible for the governor to perform the duty, imposed upon him by the constitution, of seeing to it that the laws are faithfully executed. It must be remembered, moreover, that the execution of the laws is also dependent largely upon a multitude of local officers over whom the state exercises little control. It is apparent how imperfect must be the teamwork of the people through this organization.
Why have the people put up with this sort of thing? For one thing, they have not understood where the trouble lies. There is also seen the influence of the political "boss," who thrives under this confusion. But among the causes is the desire of the people to maintain control over government. They have attempted, in their constitutions, not only to say just what services should be performed for them, but also to specify just what machinery should be used for their performance. For every new service, they have created a new and independent piece of machinery. Then, to make their control complete, as they thought, they have made most of their new officers elective. Experience has shown that control of this kind has been gained only at the sacrifice of efficient service, through failure to provide trained leadership and effective organization. Moreover, experience has also shown that control of this kind is largely a delusion; for the people cannot keep in touch with their multitude of officers, and in many cases yield their control, often unknowingly, to the political "boss."
In noting these defects, it is not to be concluded that our state governments have been a failure in all respects. Far from it. Notable progress has been made toward the ideals toward which we have been striving. We have tried one experiment after another, some of which have been highly successful, but others of which have not met the test of new conditions. It is important, however, that we should face our failures squarely and profit by them.
At the present time there is a marked effort to overcome the defects that we have just noted, and a good deal of progress toward it has been made in some states. One of the most progressive states in this particular is Illinois, which has recently enacted a law for the reorganization of its executive branch of government.
Under the new "Civil Administrative Code" of Illinois, the executive branch of government is organized in nine departments: the departments of finance, of agriculture, of labor, of mines and minerals, of public works and buildings, of public welfare, of public health, of trade and commerce, and of registration and education.
At the head of each department is a director, who is appointed by the governor, is responsible to him, and whose term of office is the same as that of the governor.
Each department is organized into various bureaus, or other subdivisions, with officers in charge who are directly responsible to the director of the department. Thus, in the department of agriculture there is an assistant director, a general manager of the state fair, a superintendent of foods and dairies, a superintendent of animal industry, a superintendent of plant industry, a chief veterinarian, a chief game and fish warden, and a food standard commission of three members.
All subordinate employees in all departments are appointed under a civil service law which requires competitive examinations.
Associated with most of the departments are "advisory boards" consisting of citizens who serve without pay. Thus, the department of agriculture has a board of agricultural advisers composed of fifteen persons, and a board of state fair advisers of nine persons, not more than three of whom shall be appointed from any one county.
The things aimed at in this reorganization are: (I) fixing responsibility for the entire service-organization in one place— with the governor; (2) responsible, trained leadership in each department of service; (3) responsiveness of leadership to the people's wants, as provided for by the advisory boards; (4) a system of accounting and records that will make for efficiency and economy, and that will inform the people as well as the officers of government.
Investigate and report on:
The name of the governor of your state, his political party, when elected, for how long a term.
Advantages and disadvantages of a long term for the governor.
The constitutional powers of the governor of your state.
The influence of the governor of your state with the people.
The principal executive and administrative officers of your state.Those that are elective and those that are appointive.
A complete list of the administrative bureaus, boards, commissions, and other state agencies, with their duties.
The application of Governor Lowden's statement regarding Illinois to your state.
Any proposed reorganization of the executive branch of your state government.
The legislative branch of government consists, in all states, of a legislature ("general assembly," "legislative assembly," or "general court") composed of two "houses" or "chambers," the house of representatives and the senate. The senate is the "upper house," and is usually from one-third to one-half the size of the "lower house"; in Massachusetts only one-sixth the size.
A bill to become a law must pass both houses separately, each house acting as a check upon the other, thus securing greater deliberation in lawmaking. The senate is supposed to be, and usually is, a more conservative, or cautious, body than the house of representatives, partly because of its smaller size which makes possible a more careful consideration of business. Its members are elected from larger districts, thus increasing the opportunity to select able men. A higher age qualification is required for membership in the senate than in the house of representatives; and only a part of the senate is elected at each election, so that it is a continuing body, always containing members of experience, while the lower house may be almost entirely changed at each election.
It is a theory of our representative government that representation should be proportional to population. To secure this result, each state is divided into election districts presumably of as nearly equal population as possible, the senatorial districts being the larger. In practice, however, these districts do not always have representation proportional to their population. The county is often the unit of representation, or in New England the town, and these districts vary greatly in population. An attempt is made to equalize the difference by providing that no district shall have less than one representative, and often that none shall have more than a certain number. Inequalities nevertheless exist. In Connecticut, thirty- four of the most populous towns and cities have sixty-eight members in the lower house, whereas if the distribution were made on the basis of population they would be entitled to 186 members. Again, four of the smallest Connecticut towns, with a total population of 1567, have five members; four of the most populous cities, containing 309,982 inhabitants, have only eight members, whereas on the basis of population they would be entitled to eighty-seven. [Footnote: C.A., Beard, America Government and Politics, p. 521.]
Partisan influences often enter into the districting of states for representation, the party in power trying to fix boundaries so as to ensure keeping their majority in the legislature.
Investigate and report on the following:
Number of members in the lower and upper houses of your legislature.
Qualifications for membership and term of office in each house.
Names of your own representative and senator.
Secure a map showing legislative districts of your state. Locate your own.
Whether representation in your legislature is proportional to population.
The "gerrymander": what is it, and has it been used in your state?
The legislature controls our lives at almost every turn.
It has control over the whole domain of civil law; [Footnote 2: See below, p. 437.] that is, it lays down the rules governing contracts, real and personal property, inheritance, corporations, mortgages, marriage and divorce, and other civil matters. It defines crime; that is, it prescribes those actions of the citizen which are to be punished by fine or imprisonment or death. It touches the property of the citizen not only by regulating its use, but also by imposing upon it a burden of taxation. Finally, it has control over the vast domain known as the police power, under which it makes regulations concerning public health, morals, and welfare, devises rules for the conduct of business and professions, and in other ways restrains the liberty of the citizen to do as he pleases. [Footnote 3: C.A. Beard, America Government and Politics,, p. 516.]
In view of this importance, it would seem that the people would have the keenest interest in their state legislatures and the greatest respect for them. This has not always been the case. As one writer says, "it has become almost fashionable" to speak slightingly of legislatures and their members, and to talk of them as if they were wholly corrupt and dishonorable. If the very best men the community affords are not always chosen for the difficult and responsible work of lawmaking, the people have no one to blame but themselves. Moreover, the members of our legislatures average up very much like their neighbors, and most of them are sincerely desirous of serving their state and do so to the fullest extent possible under the conditions that exist.
It is indeed time that a different attitude should be assumed toward these bodies. … Acquaintance with actual legislatures will immediately reveal the fact that they are fairly representative of the American people, and that there is in them, a great deal of honest effort to grapple with the difficult problems of legislation. … Before all, there ought to be a sustained effort to support the men who are with honest purpose struggling for equitable and effective legislation. …[Footnote: Paul S. Reinsch, American Legislatures and Legislative Methods, p. 126.]
Most of the unwise and harmful legislation has been due, not to wrong intentions on the part of legislators, but to the difficulty encountered by a body of men of average intelligence and of little experience in dealing with public questions, in getting information necessary to enable them to decide wisely with respect to the multitude of complicated problems that come before them during the brief session of the legislature.
In the lower house of one typical legislature only 19 out of the 252 members had ever been members of a legislature before, 123 were farmers, 6 lawyers, 10 physicians, 48 merchants and manufacturers, 3 bankers, 5 preachers, 6 insurance men, 2 hotel proprietors, 3 liverymen, 14 laborers or artisans, 6 "apparently with no occupation except that of general politician and office- seeker."
Of the thirty members of the senate of the same legislature, 9 were farmers, 4 lawyers, 4 physicians, and 13 merchants. Seven of these had completed their education in "academies," while 13 had never got beyond the public schools.
These men had to decide, in the course of a few weeks, upon an astonishing variety of problems, some of them of the greatest complexity, and all of them affecting the lives of the citizens of the state in a multitude of ways. It is not surprising that serious mistakes are sometimes made. [Footnote: C. A. Beard, American Government and Politics, p. 525 (from S. P. Orth, "Our State Legislatures," Atlantic Monthly, vol. xciv, pp. 728 ff.)]
The mere writing of a bill in language that will convey the exact meaning intended, and that will not involve undesirable and unexpected results, is a difficult matter that requires the skill of men trained for it.
In a number of states an attempt has been made to meet these natural difficulties by the establishment of legislative reference libraries, or bureaus, in charge of highly trained students who collect all available information relating to every possible subject of legislation, keep records of legislation in other states, and place the material in convenient form at the disposal of the legislators. Sometimes they provide expert service in the writing of bills in the proper form. It is said that such legislative reference bureaus have already greatly improved the quality of legislation in some of the states.
It would be impossible for a legislature, acting as a body, to give consideration to more than a small fraction of the bills that come before it.
It is said that it is not unusual for more than 2500 bills to be introduced at a single session. Legislatures are in session from 40 to 90 days. If the session were 60 days, and the working day 10 hours, there would be but 15 minutes for each of 2500 bills. This time would be divided between the two houses. Besides, a great deal of business must be transacted other than the consideration and passage of bills.
To make possible the handling of all this work, each house is organized in standing committees. As bills are introduced, they are referred to their appropriate committees, in which most of the work of lawmaking is done. Most of the bills so referred are never reported back to the legislature at all, and those that are reported are in most cases acted upon by the legislature in accordance with the committees' reports, with little general discussion. The procedure followed in referring bills to committees and in considering them when they are reported back is determined by a complexity of rules that are confusing to the outsider and that cannot be explained in detail here. But their declared purpose is to save time and to enable the legislative business to move smoothly. The small committees can work to better advantage than the large body of men in either chamber. The work is divided up so that the few members of each committee can concentrate their attention upon a few subjects and gain experience in handling special kinds of problems.
On the other hand, it is to this organization that we owe some of the bad lawmaking for which our legislatures are blamed. It tends to remove legislation from the control of the people, and results in what is often called "invisible government," government that is carried on out of sight of the people. It opens a door to partisan influences and to control by political "bosses" and self-seeking "interests." In the lower house the committees are appointed by the speaker, who is the presiding officer, and who is always chosen by the members of the majority party in the house from their own number. The senate committees are sometimes appointed by the presiding officer of the senate, who is often the lieutenant- governor, and sometimes elected by the senate itself. But the chairmen and the majority of the members of all committees in both houses belong to the majority party, which is thus enabled to control legislation for partisan ends if it so desires, and it often does so.
Bills may be "killed" in committee, or reported unfavorably, or so amended as to change their meaning entirely, merely at the will of the party leaders, or of "bosses" and interests outside of the legislature. A large part of the work of the committees is carried on in secret. Although "hearings" may be held at which citizens may present arguments for and against proposed measures, these may be mere matters of form. Influential interests may maintain a lobby at the legislature, which means that they are represented there by agents who seek to influence the members of the legislature, and especially of the committees, sometimes by corrupt methods. The lobby often works by secret methods, whereas the "hearings" are public.
The party leaders in control, of whom the most important are the speaker of the house, the rules committee, the chairmen of committees, and the "floor manager," by dictating the procedure to be followed, may at times make it practically impossible for a member of the minority party, or one who has incurred the displeasure of the leaders, to gain a hearing. The following description gives an idea of what may happen: [Footnote: From a pamphlet issued by the Illinois Legislative Voters' League in 1903, and quoted by C. A. Beard, American Government and Politics, pp 539, 540.]
Consider the petty annoyances to which a decent member outside the "organization" may be subjected, and the methods by which legitimate legislation, backed by him, may be blocked. The bill goes to an unfriendly committee. The chairman refuses to call the committee together, or when forced to call it, a quorum does not attend. … Action may be postponed on various pretexts, or the bill may be referred to a sub-committee. The committee may kill the bill by laying it on the table. On the other hand, the committee may decide that the bill be reported to the house to pass. Then a common practice is for the chairman to pocket the bill, delaying to report it to the house till too late to pass it. When finally reported to the house, it goes on the calendar to be read a first time in its order. Then begins the advancing of bills by unanimous consent, without waiting to reach them in order. Here is where the organization has absolute control. Unanimous consent is subject to the speaker's acuteness of hearing. His hearing is sharpened or dulled according to the good standing of the objector or of the member pushing the bill. If one not friendly to the house "organization" wants to have his bill considered over an objection, he must move to suspend the rules. The speaker may refuse to recognize him, or may put his motion and declare it carried or not carried as suits his and the organization's desires. So the pet bills are jumped over others ahead of them on the calendar, while
[Footnote: From a pamphlet issued by the Illinois Legislative Voters' League in 1903, and quoted by C. A. Beard, American Government and Politics, pp 539, 540.] the ones not having the backing of the house "organization" are retired farther and farther down until their ultimate passage becomes hopeless. If the bill of the independent member reaches a second reading, it may be killed by striking out the enacting clause or by tacking on an obnoxious amendment that makes it repulsive to its former friends. … To carry out the will of the organization, the speaker declares amendments carried or the contrary by a viva voce vote. Demands for roll-calls are ignored by him in violation of the members' constitutional rights. …
It is such practices as these that have brought state legislatures into bad repute, and that have resulted in measures to curb their power. Instead of leaving it entirely to them to make their own rules of procedure, many of these rules are now prescribed by the state constitutions. It was in order to restrain the legislatures that the veto power has been given to the governors of all states but one, and that sessions of legislatures have been limited to brief periods of from forty to ninety days, and then only once in two years. For the same reason state constitutions have taken away powers that legislatures once commonly abused, as in running the state deeply into debt, or in legislating in the interest of particular localities or particular groups; and have provided in great detail for many things that were formerly left to the discretion of the legislatures. For the same reason some states have adopted the initiative and referendum.
Investigate and report on:
Powers possessed by either house of your legislature not possessed by the other.
Powers denied your legislature by the federal Constitution.
Powers denied your legislature by your state constitution.Reasons.
Attitude of the people of your community toward your legislature.
Why service in the legislature does not attract more of the most capable men of the state.
The vocations of the members of your legislature.
Number of bills introduced, and the number passed, at the last session of your legislature.
The purpose of some of the most important laws enacted by your legislature at its last session.
Why it is difficult to write a bill correctly.
The legislative reference library, or bureau, of your state (if any).
The committees in each house of your legislature.
Procedure by which a bill becomes a law in your state.
The speaker of the House of Representatives in your state.
"Invisible government" in your state.
Laws regulating the "lobby" in your state. Frequency and length of legislative sessions in your state.
Some of the greatest abuses of governing power have been in connection with the appropriation of money. They have been due not so much to dishonesty as to bad organization and loose business methods, both in the executive and legislative branches of government. When the executive branch consists of a large number of more or less independent parts, each trying to make the best showing possible, it is quite to be expected that each will seek to get from the public treasury all the money possible without reference to the needs of other parts or to the resources of the state. When, in addition, there is no central executive authority with power to hold the heads of the various parts responsible for their acts, and no uniform or businesslike system of keeping accounts, either of money expended or of work accomplished, it is easy to see the opportunity for wastefulness and inefficiency.
On the other hand, the methods of making appropriations in the legislature have been equally conducive to wastefulness. Appropriation bills pass through the same legislative machinery as all other bills and are subject to the same dangers. Moreover, they are handled by different committees that act as independently of one another as do the various executive departments. In Illinois, for example, until recently "requests for appropriations were submitted informally by each office, department, or board; and separate bills were prepared by the several departments and institutions, and introduced by individual members of the General Assembly," l[Footnote: John A. Fairlie, Budget Methods in Illinois, Annals of the American Academy of Political and Social Science, November, 1915; quoted by W. F. Willoughby, in The Movement for Budgetary Reform in the States, p. 45.] then being referred to different committees according to the subjects to which they related. At the session of 1913, 94 separate appropriation acts were passed.
A number of the states have sought to remedy this defect in government by the adoption of a budget system (see Chapter XIII). Illinois has perhaps made the complete reform in this matter. We have already seen how that state has reorganized its executive branch of government, which is the first necessary step. In this reorganization there was created a finance department, to which all the administrative departments submit a careful estimate of the money needed for their various lines of work, together with a detailed statement of work done and money spent during the two preceding years. The finance department considers all these statements and estimates in their relation to one another and to the financial resources available for the next two years, and submits to the governor a comprehensive and detailed budget. On the basis of this, a single appropriation bill is prepared by a single committee of the legislature. Public hearings are held, the people are given opportunity to know just what the government has done and intends to do, and the governor and his finance department may be held responsible.
No single change would add so largely to both democracy and efficiency as the introduction of proper budget methods. [Footnote: Foreword to Public Budgets, Annals of the American Academy of Political and Social Science, November, 1915; quoted by W. F. Willoughby, The Movement for Budgetary Reform in the States, p. 2.]
Investigate and report on:
Method of making appropriations in your state.
Movement for a budget system in your state.
Why a budget system tends toward (1) economy, (2) efficiency, (3) democracy.
Questions are continually arising as to the meaning of laws, or as to how they apply in particular cases. To answer these questions the judicial branch of government exists, comprising a system of courts. The courts are sometimes called upon to decide whether a law passed by the legislature, or an act of an administrative officer, is in harmony with the constitution, and if not, to declare such law or act invalid. The judicial branch of government is therefore the people's organization to keep the other branches of government within their constitutional powers.
In most cases that come before the courts, however, the law is perfectly clear when once the facts in the case are known. It is therefore the business of the courts also to ascertain the facts. There are two classes of cases that come before the courts, civil cases and criminal cases; and the law that applies to the two classes is known as civil law and criminal law. A civil case is one that involves a dispute between individuals, or an injury done by one individual to another. Such would be a dispute over a boundary line between the properties of two individuals, or over the payment of a debt; or a personal injury due to the carelessness of some one, or an injury to property or to health through maintaining a nuisance of some kind. In such cases the court, after ascertaining the facts, merely sees that justice is done, as by the payment of damages to the injured party by the one doing the injury. A criminal case is one in which a person is charged with having violated a law of the community. The injury is one against the community as a whole, and not merely against an individual. It is the community that appears in court against the accused person, and not merely one of his neighbors. In such cases the court first ascertains the guilt or innocence of the accused person; and if he is guilty, imposes a PUNISHMENT upon him, such as a fine, or imprisonment, or even death, according to the nature of the crime.
The judicial branch of government, then, is that part of the governmental organization that seeks to adjust, by peaceful and just means, the inevitable conflicts that arise in community life.
The lowest in the series of state courts are the JUSTICES' COURTS, of which there is at least one in every township. They are presided over by justices of the peace. Only cases of small moment come before justices' courts: civil cases involving very small amounts, and cases of minor infractions of the law punishable by small fines or by short terms in jail. Persons accused of more serious crimes may have a preliminary examination in a justice's court and, if the evidence warrants it, be committed to jail to await the action of the grand jury (see below). Most cases in a justice's court are disposed of by the justice of the peace alone; but a jury trial may be demanded in all criminal cases, and in civil suits "where the value in controversy shall exceed twenty dollars" (Const., Amendments VI, VII).
More serious cases, civil or criminal, are tried in the COUNTY, or DISTRICT, courts before a judge and a JURY. Cases that have been tried in a justice's court may be APPEALED to the county or district court, where there is sure to be a jury trial, and where the judge is more learned in the law than is a justice of the peace. It is the business of the jury to decide on the facts in the case on the evidence furnished in the trial, and in civil cases to award the amount of damages, if any, to be paid; while the judge sees that the procedure is in accordance with the law, instructs the jury as to the law in the case, and in criminal cases fixes the penalty within the limits permitted by the law.
It was stated above that in criminal cases it is the COMMUNITY that appears against the accused. The community appears in the person of the district attorney, otherwise called the prosecuting attorney, state's attorney, or county solicitor. It is the business of this officer to gather evidence of crimes committed in the community and, in most cases, to submit it to the GRAND JURY, which is a body of citizens carefully chosen to consider such evidence. If the grand jury considers the evidence against the accused sufficient to warrant bringing him to trial, it brings in an INDICTMENT against him. The prosecuting attorney then prosecutes the case for the community against the accused. It is of course his duty to secure exact justice; sometimes, however, he seems interested only in securing the CONVICTION of the accused.
Our state and national constitutions seek to protect carefully the rights of a person accused of crime. He is assumed to be innocent until he has been proved otherwise. He is guaranteed a "speedy and public trial, by an impartial jury." He must be "confronted with witnesses against him," and have "compulsory process for obtaining witnesses in his favor," and "assistance of counsel for his defense" (Const., Amendment VI). He cannot be compelled to be a witness against himself, nor be deprived of life, liberty, or property, without "due process of law" (Amendment V). "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (Amendment VIII).
In some states there is another set of courts immediately above the county courts, known as CIRCUIT, DISTRICT, or SUPERIOR, courts. The districts in which these courts have jurisdiction include several counties. The cases courts handled by them are either cases of appeal from the lower courts, or cases of greater importance than those over which the lower courts have jurisdiction.
The highest court in the state is the SUPREME COURT, sometimes called the COURT OF APPEALS, or the COURT OF ERRORS. In the supreme court several judges sit together, and there is no jury. The cases that come before it are for the most part cases of appeal from the lower courts, although there are certain classes of cases that come before it in the first instance. The supreme court is the final judge as to whether acts of the legislature are in conformity with the state constitution.
In addition to the courts named above there are sometimes others to deal with special classes of cases. In cities there are MUNICIPAL COURTS and POLICE COURTS, both in the same class with justices' courts. There are JUVENILE COURTS to deal with juvenile offenders; PROBATE, or SURROGATE, COURTS to settle the estates of persons who have died; COURTS OF CLAIMS to settle claims against the state; and CHANCERY COURTS, or courts of EQUITY, which administer justice in cases that the ordinary law will not reach.
For example, the LAW will permit a man's property to be taken to satisfy a mortgage; EQUITY requires that the property be sold and the surplus over the amount of the mortgage returned to the owner. The LAW will grant damages for any injury inflicted; EQUITY will, by an injunction, forbid a repetition of the injury.
The judges of the state courts were originally appointed by the governors, or by the legislatures. With the movement toward more democratic forms of government, the states began to introduce provisions in their constitutions for the election of judges by the people, and they are now so chosen in most states, though in a number they are appointed by the governor, and in a few by the legislature. It is highly important that judges should be controlled in their decisions solely by the desire to render justice, and that they should be removed as far as possible from partisan influences. Popular election of judges is most prevalent because it seems to give to the people the most direct control over their courts. On the other hand, it is opposed by many because it makes possible the election of incompetent judges, and because it does not necessarily remove the matter from partisan influences. In three states (California, Oregon and Arizona) the judges are subject to recall by the people.
The terms during which judges hold office also vary greatly among the states. In three states they hold office for life (Massachusetts, Rhode Island and New Hampshire). In the other states their terms vary from two to twenty-one years.
It seems to be the opinion of most students that the state courts would be improved if their judges were appointed by the chief executive and should hold office for life, or during good behavior, as is the case in the federal courts.
Investigate and report on:
Civil law and criminal law.
What makes an act a "crime."
Difference between a "crime" and a "misdemeanor."
Justices' courts in your community.
Procedure in a justice's court.
The organization of your county court.
Who is your county (or district) judge.
Procedure in your county court, and how it differs from that in the justice's court.
Organization and work of the grand jury.
How a trial jury is selected.
The citizen's duty to serve on the jury.
Rights of an accused person.
Meaning of "bail," "indictment," "due process of law," "counsel for defense," "subpoena," "true bill."
Circumstances under which an appeal may be made.
The supreme court of your state.
The work of a juvenile court.
State Constitution.
Reports of the several departments of the state government.
In LESSONS IN COMMUNITY AND NATIONAL LIFE: Series B: Lesson 18,How state laws are made and enforced.
The Civil Administrative Code of the State of Illinois, compiled by Louis L. Emmerson. Secretary of State, Springfield, Ill.
The Illinois Civil Administrative Code, by Charles E. Woodward,The Academy of Political Science, Columbia University, New YorkCity.
Beard, Chas. A., AMERICAN GOVERNMENT AND POLITICS, Part iii, State government.
Hart, A. B., ACTUAL GOVERNMENT, Part iii, State governments in action.
Reed, T. H., FORM AND FUNCTIONS OF AMERICAN GOVERNMENT, Part iii,State government.
Bryce, James, THE AMERICAN COMMONWEALTH, vol. i, Part ii, TheState governments.
In Long's AMERICAN PATRIOTIC PROSE: Invisible government (ElihuRoot), pp. 261-264.
In Foerster and Pierson's AMERICAN IDEALS: How to Preserve theLocal Self-Government of the States (Elihu Root), pp. 48-55