other specific functions of the federal government; they control the possession, distribution, and use of property, the exercise of trades, and all contract relations; and they formulate and administer all criminal law, except only that which concerns crimes committed against the United States, on the high seas, or against the law of nations. Space would fail in which to enumerate the particulars of this vast range of power; to detail its parts would be to catalogue all social and business relationships, to examine all the foundations of law and order." 1 Illustration English his This enumeration, by Mr. Woodrow Wilson, is so much to the point that I content myself with transcribing it. A very remarkable illustration of the preponderant part played by state law from recent in America is given by Mr. Wilson, in pur- tory. suance of the suggestion of Mr. Franklin Jameson.2 Consider the most important subjects of legislation in England during the present century, the subjects which make up almost the entire constitutional history of England for eighty years. These subjects are "Catholic emancipation, parliamentary reform, the abolition of slavery, the amendment of the poor-laws, the reform of municipal corporations, the repeal of the corn laws, the admission of Jews to parliament, the disestablishment of the Irish church, the alteration of the Irish land laws, the establishment of national education, the introduction of the ballot, and the reform of the criminal law." In the United States only two of these twelve great subjects could be dealt with by the federal government: the repeal of the 1 Woodrow Wilson, The State: Elements of Historical and Practical Politics, p. 437. 2 Jameson, "The Study of the Constitutional and Political History of the States," J. H U. Studies, IV., v. corn laws, as being a question of national revenue and custom-house duties, and the abolition of slavery, by virtue of a constitutional amendment embodying some of the results of our Civil War. All the other questions enumerated would have to be dealt with by our state governments; and before the war that was the case with the slavery question also. A more vivid illustration could not be asked for. Independ How complete is the circle of points in which the state touches the life of the American citizen, we may see in the fact that our state courts make a ence of the complete judiciary system, from top to botstate courts. tom independent of the federal courts. An appeal may be carried from a state court to a federal court in cases which are found to involve points of federal law, or in suits arising between citizens of different states, or where foreign ambassadors are concerned. Except for such cases the state courts make up a complete judiciary world of their own, quite outside the sphere of the United States courts. We have already had something to say about courts in connection with those primitive areas for the administration of justice, the hundred and the county. In our states there are generally four grades of courts. There are, first, the justices of the peace, with jurisdiction over" petty police offences and civil suits for trifling sums." They also conduct preliminary hearings in cases where persons are accused of serious crimes, and when the evidence seems to warrant it they may commit the accused person for trial before a higher court. The mayor's court in a city usually has jurisdiction similar to that of justices of the peace. Secondly, there are county and municipal courts, which hear appeals from justices of the peace and from mayor's courts, and have original jurisdiction over a more important Constitution courts. grade of civil and criminal cases. Thirdly, there are superior courts, having original jurisdiction over the most important cases and over wider of the state areas of country, so that they do not confine their sessions to one place, but move about from place to place, like the English justices in eyre. Cases are carried up, on appeal, from the lower to the superior court. Fourthly, there is in every state a supreme court, which generally has no original jurisdiction, but only hears appeals from the decisions of the other courts. In New York there is a "supremest court, styled the court of appeals, which has the power of revising sundry judgments of the supreme court ; and there is something similar in New Jersey, Illinois, Kentucky, and Louisiana.1 In the thirteen colonies the judges were appointed by the governor, with or without the consent of the council, and they held office during life or good behaviour. Among the changes made in our state constitutions since the Revolution, there have been few more important than those which have affected the position of the judges. In most of the states they are now elected by the people for a term of years, sometimes as short as two years. There is a growing feeling that this change was a mistake. It seems to have lowered the general character of the judiciary. The change was made by reasoning from analogy: it was supposed that in a free country all offices ought to be elective and for short terms. appointive judges. But the case of a judge is not really analogous to that of executive officers, like mayors and governors and presidents. The history of popular liberty is much older than the history of the United States, and it would be difficult to point to an in1 Wilson, The State, pp. 509-513. Elective and stance in which popular liberty has ever suffered from the life tenure of judges. On the contrary, the judge ought to be as independent as possible of all transient phases of popular sentiment, and American experience during the past century seems to teach us that in the few states where the appointing of judges during life or good behaviour has prevailed, the administration of justice has been better than in the states where the judges have been elected for specified terms. Since 1869 there has been a marked tendency toward lengthening the terms of elected judges, and in several states there has been a return to the old method of appointing judges by the governor, subject to confirmation by the senate.1 It is one of the excellent features of our system of federal government, that the several states can thus try experiments each for itself and learn by comparison of results. When things are all trimmed down to a dead level of uniformity by the central power, as in France, a prolific source of valuable experiences is cut off and shut up. QUESTIONS ON THE TEXT. 1. Modifications of state government during the present century: a. Property qualifications for office. b. The distinction between the upper and the lower house. c. The advantage in retaining a two-chambered legislature. 2. The suffrage : a. The persons to whom it is granted. b. The qualifications established. c. The persons excluded from its exercise. 3. The separation of the executive and legislative departments : a. The relation of the great executive officers to legislation in Europe. b. The work of legislation in the United States. 1 For details, see the admirable monograph of Henry Hitchcock, American State Constitutions, p. 53. c. The most serious of the dangers that beset democratic government. d. Important safeguards against such a danger. 4. The state executive :— a. The governor as a part of the legislature. b. Officers always belonging to executive departments. c. Officers frequently belonging to executive departments. d. The relation of the governor to other elected executive officers. 5. The ordinary functions of the governor : a. Advising the legislature. b. Commanding the militia. c. Pardoning criminals or commuting their sentences. d. Vetoing acts of the legislature. 6. Why is the power to veto particular items in a bill appropriating public money an important safeguard against corruption? 7. Local self-government in the United States left unimpaired : a. The extent of state supervision of towns and counties. b. The spirit thus developed in American citizens. 8. A lesson from the symmetry of the French government :a. The departments and their administration. b. The prefect and his duties. c. The department council and its sphere of action. d. The commune. e. The French system contrasted with the American. f. A common view of the political intelligence of the French. g. The probable effect of excessive state control upon the political intelligence of Americans. 9. The greatness of the functions retained by the states under the federal government : a. Powers granted to the government of the United States. b. The reason for granting such powers. c. The powers denied to the states. d. The reason for such prohibitions. e. The vast range of powers exercised by the states. f. The most important subjects of legislation in England for the past eighty years. g. The governments, state or national, to which these twelve subjects would have fallen in the United States. 10. Speak of the independence of the state courts. |