The government of the American people

Front matter

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Preface

This book is a story of the development of government in America. The writers beheve from experience and observation that there are four main reasons why books on Civil Government, for both the grammar grades and the high school, have proved unprofitable, and why there is such widespread complaint about the study of civil government in the schools, (i) The books used, with some exceptions, are too elementary in treatment, and so at once offend the sense of boys and girls ; or, (2) they are made up of isolated topics which have no continuity and give no idea of government even in its simplest forms, and therefore fail to leave any impression as a whole upon the mind of the pupil ; or, (3) they are practically mere analyses of the Constitution ; or, (4) they are written in a style which makes necessary a large amount of interpretation in order that the pupil may understand the many unfamiliar terms and expressions. This book is written with the belief that pupils have the ability (which we often underrate) to understand and appropriate ideas of government if expressed mainly in terms to which they are accustomed and in a style that does not require interpreting. Especially is this true if the explanation of government is progressive and moves from the simpler to the more complex forms.

There are two things, therefore, that seem to the

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writers most desirable, and even absolutely necessary. They are (i) that the story itself should have a decided continuity ; (2) that the facts and forms of government should be connected in an unbroken narrative with those historical events upon which they depend, and without which it is impossible that they be rightly understood. These two requirements seem necessary for clearness and interest, and can be conformed to without subordinating the matters of government to the historical part of the narrative.

The book may be used for three classes of pupils : first, for those of the seventh and eighth grades in the grammar school, whose preparation requires mainly a reading book on government, to be supplemented by oral instruction ; second, for pupils of the eighth or ninth grade, whose preparation calls for a study book, with the questions confined mainly to the text; and third, for those more advanced students whose preparation calls for a more philosophical study of the text, with the aid of references and a large use of the suggestive questions. According to the class he has to deal with, the teacher may make much or little of the opportunities in the book for study and outside reading. He may use one chapter merely for reading, and another for both reading and study, and another for more difficult and advanced work. This will be possible and profitable, because the continuity of the book is fairly complete and the progression of the story natural and easy.

Suggestive questions have been placed at the end of each series of chapters. They are for such classes and schools as use the book in grades where the pupils are advanced enough to do some independent thinking.

PREFACE V

Teachers should observe caution in the use of these questions, and should be certain that their pupils are mature enough to warrant such use. Outlines of present forms of government will also be found at the end of each Part for the benefit of less advanced pupils. The use of the book as a mere reading exercise will be of great value. It will supplement the knowledge of American history already gained, and will attractively connect the growth of our government with historical facts already well understood by the student.

Those using the book for reading • only may, if they find it best, dispense with the questions entirely, taking care to see that the pupils read intelligently and get some correct and lasting impressions as to the growth and character of our government. When used as a reading book it should be supplemented by oral instruction, which, when rightly used, will bring out the details of present government as far as pupils of the last years of the grammar schools are able to observe them.

Many of the details of present government which are often included in a book of this kind we have left to teachers and pupils to work out for themselves. As aids to this we have put in the questions and outlines as noted above. These details are the very things pupils can and ought to get for themselves, and we think it of great importance that they have this opportunity for independent thought and research.

Extended notes, bibliographies, and suggestions for teachers will be printed separately as a Teachers' Manual.

We are under many obligations to Dr. Joseph R. Wilson, principal of the Portland Academy, Portland,

VI PREFACE

Oregon ; Professor H. B. Buckhara, State Normal School, Monmouth, Oregon ; and Mr. Walter H. Gushing, principal of the High School, Medford, Mass., for criticisms that have greatly aided in the revision of the manuscript. Dr. Henry D. Sheldon, assistant professor of philosophy and education in the University of Oregon, Superintendent Edward D. Ressler, of the public schools of Eugene, Oregon, and other Oregon teachers have given valuable suggestions. The suggestions and criticisms of the publishers of the book, and especially of Mr. M. W. Richardson, have been invaluable.

Frank Strong.

Joseph Schafer.

Eugene, Oregon, June 17, 1901.

Contents

PAGE

INTRODUCTION i

Part I. Chapter

TOWNSHIP AND COUNTY GOVERNMENT.

I. Local Government in Virginia and Massachusetts 17

II. Expansion of American Institutions .... 25

III. The County System in the West 29

IV. The Township System in the West 36

, V. Present Tendencies in Local Government . . 43

VI. The Management of Schools and Roads . . 48

THE NATIONAL GOVERNMENT. "

XV. The Constitution i6o

XVI . The Federal Congress 172

XVII. The Federal Executive 191

XVIII. The Federal Judiciary 205

XIX. Other Important Provisions of the Constitution 215

Appendix

(a) The Constitution of the United States ,227

(d) The States classified according to Origin 244

THE GROWTH OF CIVIL GOVERNMENT IN OREGON.

(a) The Rise of a Western State 247

(d) The First Organic Law, with questions and outhnes . . 261

(c) Provisional Constitution of Oregon 269

(d) State Constitution of Oregon, with questions and outhnes 277

Indexes 309

THE GOVERNMENT OF THE AMERICAN PEOPLE

Introduction

Government a Growth. Governments, in their manner of growth, are much like plants. As the giant oak was once a tiny shoot with a few twigs and leaves, always in danger of being destroyed by some browsing animal, so the greatest nations had their small and uncertain beginnings. The growth of the tree is indicated year by year by a larger output of leaves and by the regular addition of new rings to its trunk ; that of the nation, by the gradual enlargment of its boundaries and the constant increase in the things done to develop its resources.

Not only is there a similarity in the growth of trees and of nations from small beginnings to great results, but there is still another resemblance. We now know that in the course of long periods of time plants go through great changes in their general appearance, their form and structure. Thus in ages far remote, of which we have no records except those which the strata of the earth furnish us, the oak was not an oak, but an altogether different kind of plant. Very slowly, century by century, its form changed, its appearance and structure changed, until it became the tree which everybody recognizes as the oak.

Just so with the ideas, the customs and habits, which taken together form a poUtical system. They have not been " struck off " by the skillful hand of man, nor have they been invented in their complete form by some cunning brain. They have simply grown by changing from one shape to another, little by little, until they appear at last in the form in which we know them.

This growth is somewhat like that of the language we speak or read, and in which all of our ideas on politics are expressed. We have some difficulty in understanding the writings of our ancestors of early colonial times. In studying the English writers of five hundred years ago we keep a special dictionary at hand to explain words used then which are not used now, or are used in a different way. When we get back a thousand years, to the time of King Alfred, the English language is not our English language at all. It is then Anglo-Saxon, which has to be learned from grammar and dictionary just as we learn German, French, or Latin. The differences between this language and our own are as great as those between modern English and modern Dutch or Swedish. In fact, the language used by the early Anglo-Saxons is just as closely related to modern Swedish or Dutch as it is to modern English, for the people who became Swedes and Dutchmen were, as we know, of the same race as the Angles and Saxons who were the ancestors of the English. And not only were they of the same race, but their original home was in the same place, that is, the country now occupied by the German Empire. In all of these forms of language, therefore, we find common elements, or, as the grammarians call them, *' roots," from which the languages have grown by very slow changes.

The Germans. Taking our political system as a whole, we may say that it has been inherited from the Englishmen who colonized America nearly three hundred years ago. To be sure, many others besides Englishmen have settled in this country since that time, but they have had only a very slight influence on the way in which the government has been carried on. Our plan of governing by towns and counties, especially, is directly connected with the plan of governing by towns and counties in England at the time when Englishmen first began to come to America.

But when we have traced our ideas of government thus far back we are not yet at the point of beginning, nor even as far as we can safely go. For we know that the English themselves inherited many of their ideas from the Angles and Saxons, who came into the Island of Britain (later England) more than a thousand years before. As we have seen, the early home of these people was in what is now Germany. Therefore we must go back to the gloomy forests of the Rhine and the Elbe to get a glimpse of the political life from which our system of government has grown.

By good fortune we are enabled to do this ; for, a little more than eighteen hundred years ago, Tacitus, a Roman historian. Wrote an account of these people of the woods and the marshes, to whom such great interest attaches to-day.

At that time nearly all the civilized people of the world were embraced within the boundaries of the great Roman Empire. It took in all the territory around the Mediterranean Sea and extended northward as far as the river Danube and the river Rhine. These two streams, rising near one another and flowing, one eastward and southward, the other northward and westward, made a nearly unbroken line extending from the Black Sea to the North Sea.

On one side of this line were cultivated fields, good dwellings, admirable roads, and large cities. In short, here was the home of the most advanced people of that time, who had a civilization not very different from our own. But on the other side of the line all was different. The country was wild, dark, cold, and forbidding. It was a land where the forests were as yet almost unbroken, except for occasional spots which were under a rude system of cultivation. There were no roads, no bridges across the streams, and no cities. The people who lived there were not civilized, but barbarous, somewhat as were the Indians of the Six Nations in what is now Central New York.

And yet these people, the early Germans, were our ancestors. Even in their barbarous state they had some of the personal and political traits for which their descendants have become justly famed. Among these were, especially, courage in war and the love of personal freedom. The German warriors were the terror of all their foes. Gathered round some chosen leader they often attacked the Romans for the sake of the plunder which Roman lands and cities afforded. The Roman soldiers noted the huge size of these barbarians and had good reason to dread the fierceness of their onset, because the Germans always fought for victory. Even Caesar had a good deal of trouble with them fifty years before Christ. As time went on and the German tribes became more united, the difficulties of the Romans increased. It became harder and harder to keep the Germans from breaking into the Empire to rob and plunder, or to settle down upon the well tilled lands which were so much more fruitful than their own. At last they actually conquered the Roman Empire, which up to that time had ruled the world.

The Political System of the Germans. We have said that we get our ideas of government from the early- Germans. What are these ideas ? ^ At first sight this barbarous people hardly seems to have had a political system, and yet the beginnings were there. Every German, like every American Indian, belonged to some tribe.2 As the Indians were Sioux, Mohawks, or Cherokees, so the Germans were Goths, Lombards, or Vandals. A tribe was simply a number of people speaking the same dialect and having some idea of blood relationship. They did not live all together in a compact territory, but were scattered over a large tract of country, just as the Indians were. Like them, too, they lived in groups. Those who were very closely related by blood formed a village, and this broke the tribe up into a number of somewhat separate parts. Looked at in another way, therefore, the tribe may be said to have been made up of a considerable number of villages whose inhabitants were closely related by blood. These villages were really more important in some ways than the tribe itself, for here the people lived close together and had to make exact rules to govern their relations to one another. The German village was probably a row or two of rudely built huts, each hut having a small plot of ground about it. This land belonged to the household itself, to be used as the members saw fit. Outside of the village was a large field, which, unlike the house lots, was used by the villagers in common. That is to say, no individual man owned any part of it absolutely, but each head of a family received a strip or several

^ See Stubbs, Constitutional History of Etigland^ i., chapter ii.

2 On the political arrangements of the barbarous Indians, which closely resemble those of the Germans, see Fiske's History of the United States^ pp. 4-7.

strips each spring to cultivate during the summer. The next year another distribution would be made by lot, no man perhaps securing the same strips of field two years in succession. This is the kind of primitive farming arrangements which has received the name of ** the common field system." It remained in use in some form for a very long period. Even now, in some parts of England and of Germany, there are traces of it in the ridges which at one time made the boundaries between these strips in the common fields.

The early Germans, however, were much more interested in raising cattle and sheep than they were in tilling the soil. Therefore each village had a large tract of waste land or woodland, which was used as a common pasture by all of the villagers. Here some one of their number herded the cows and sheep belonging to them all, doubtless receiving food from them in payment for the work. Thus there were three kinds of land, so far as the rights of an individual in it were concerned : the house lot which was his own, the common field in which he drew his strips each year, and the waste or pasture into which he turned his cattle with those of his neighbors and kinsmen. This was a rather complex system, requiring a good deal of regulation, and therefore some kind of government was absolutely necessary. It was also needed to settle disputes between individuals, to punish offenders, and in general to keep the affairs of the village from falling into disorder.

For these purposes the villagers made their own government. We do not know the details of it, but it is supposed that the freemen came together each spring, perhaps under a sacred tree, and there allotted to each man his strips of field, made rules about the number of cattle and sheep each family could turn into the woodland and pasture, punished the less serious crimes, admitted new members to the village, etc. In fact, this village gathering of our Germanic ancestors was a good deal like a New England town meeting, with which it is often compared. Thus the villagers lived together and attended to their own local needs.

But we have not forgotten that they were also members of a tribe. Matters of common interest to all the villages, such as wars with neighboring people, had to be settled by a government which could act for the whole tribe. Here again the Germans showed their love for self-government by each man taking a personal part in the tribal assembly. At an appointed time, new moon or full moon, all who were old enough to bear arms would get together at some central place. They always came armed with the regular weapons of warfare, the spear and the shield. In the assembly one man had just as good a right to speak as another, and when any one spoke in such a way as to please his hearers they applauded by striking their shields with their spears.

In these assemblies some tribes elected kings, and all chose officers called princes, to govern over a smaller division called the cantouy which was a sort of halfway house between the village and the tribe. The assemblies also acted as courts of justice, and issued orders for the hanging of traitors and the smothering of cowards in the mire. Each canton had also a court in which the freemen took part. Hence the Germanic system of government was made up of three parts, the village, the canton, and the tribe. The village was much like our township, because all had a part in the government ; the canton a little like our county, and the tribe in some ways like our state, or like a small independent nation.

The Political System of the Germans as m.odified by the Settlers in Britain. As we already know, the Island of Britain, now England, was conquered by certain German tribes (Angles, Saxons, and Jutes) in 449 A. D. That is to say, in that year a band of German warriors, crossing over in ships, landed near London and began to conquer the country. As time went on, more and more Germans came, each band with its leader, and continued the warfare until the Celts, as the natives were called, had been either slaughtered or driven into the fastnesses of the mountains. This was accomplished by about the year 600 a. d.

Now these warlike bands, coming over usually with their wives and children, and sometimes bringing their cattle too, naturally wished to settle upon the land'they conquered. In doing so, what plan would they follow ? There can be but one answer. They would do as people always do, — follow the plan they were used to. The closely related families grouped together and got permission to settle in some spot which they liked. Here appeared the village,^ with its rows of huts and its house lots, the common field near by, and the meadow, pasture, and woodland at a distance. Here too was reproduced the Germanic village government by all the freemen uniting together. In like manner the tribal assembly and the court of the canton appeared in England. There was, however, a change of names. The village was now called the township (tunscipe),^ and the canton was known as the hundred. This name may have been derived from the fact that the district called the hundred furnished a hundred armed men when the tribe engaged in war.

1 For the reproduction of the Germanic village in England see Green, Short History of the English People, pp. 1-4.

2 So called from the " tun," or hedge surrounding the village.

The tribal assembly became the shire court, and this change requires a word of explanation. In the course of the fighting against the Celts, the tribes had seen the need of having a single ruler, who should hold office steadily during a number of years. Therefore they chose kings, and allowed them to become life rulers. In this manner the conquering tribes became small local kingdoms, each independent of ail the others. When, about 600 a. d., the tribes or kingdoms got through fighting the Celts, they naturally fell to fighting one another. Of course they were not all of equal strength, and the result was that the weaker ones lost their independence and became parts of the stronger kingdoms which had overpowered them. Finally these larger kingdoms warred among themselves until but one was left, and that now included all the rest.

What then became of the earlier kingdoms } Were they entirely destroyed } Not at all. They were allowed to remain as subordinate parts of the larger kingdom, with local governments of their own, but with certain officers who were responsible to the king of the whole country, the ruler of England. The name shire, meaning " share " of the larger kingdom, was given to such divisions. Afterwards they were often called counties. By this name we shall speak of them henceforth.

The Rise of Representative Governraent. We have said that the old Germanic system of government by three divisions, village, canton, and tribe, reappeared in England in the form of township, hundred, and county. But a difference in the method of carrying on the government of the last two gradually came in. All the freemen met in the town meeting, just as they did in the village meeting in Germany ; but they did not all attend the hundred court or the county court. Instead, each township sent its representatives, consisting of the reeve, or head officer, the parish priest, and four " best men," which probably means leading men of the township. These attended both the hundred court and the county court. Other freemen had a right to attend the county court if they chose to do so.

We see, therefore, that in England, as among the early Germans, there was local self-government, but it was in some measure representative. We see, also, that another part has been added to the system. The Germans had three parts, beginning with the village and ending with the tribe ; the English had four, beginning with the township and ending with the government of the nation. This national government was made up of the king and a body of men who at first helped the king to make laws. It was called the Witan, or council of "wise men," and included usually the king's great officers, the head men of the church, such as bishops and archbishops, and the head men or aldermen of the county. The common freemen did not get as far as the national government. They were represented in the county court, and might attend it in person if they chose. But they got no higher than the county court. Here was a great danger and difficulty. How could men preserve their rights as freemen if they had no influence in the national government which made the laws and managed the most important affairs ?

Extension of the Representative Idea. The way in which this question was settled by the English people has been a great lesson to all nations. They simply extended the idea of representation, with which they were familiar in their local governments, so as to give them a part in national affairs as well. Men chosen by these local governments at last made up one house in

INTRODUCTION II

the Parliament, and that house (the House of Commons) had most to do with matters of taxation. The people then had hold of the purse-strings of the nation, and by managing them wisely they could keep the king pretty completely under their control. For no nation can get along without money to pay its expenses, and those who control the supply of money will, in the long run, control the government. This result was not reached at once. It took centuries of time and a constant and determined effort to enable the freemen to win the right to control taxation. The story of that struggle makes up a considerable part of the political history of England, and we can only give a few hints to show how the process was carried on.

In the first place we have to remember that, following the custom of the early Germans, the people of the English townships and counties had the right to lay taxes upon themselves. When the king wanted money he would have the sheriff of the county make arrangements for it with the representatives of the people, who got together in the county court. Sometimes he sent a special officer to make such arrangements. The important point in this whole matter is that the property of Englishmen could not be taken from them, even by the king, without their having something to say about it themselves. As time went on and the needs of the king grew greater, there was a strong effort to tax the people in new and burdensome ways. A part of the people were lords or barons, who, as individuals, had the right to consent to taxes levied upon them. But kings violated this right whenever they could do so with safety. Finally, in 12 15 the barons miadewar upon King John and compelled him to sign the Great Charter,^ * See Green, Short History^ chapter iii.

by which he definitely gave up the right to tax them (except for three special purposes) without their consent.

For the purpose of giving this consent the king was to call all the barons, including the heads of the church, to a common council of the kingdom. This body, which was not new, but was now definitely established, became the House of Lords in the English Parliament. Before the end of the century (1295) the House of Commons, of which we have already spoken, was added. It was made up of two classes, members elected to represent the counties, and other members chosen from the boroughs or towns.

One reason why King Edward the First (in 1295) called these classes to the common council or Parliament was that this was the most convenient way of laying taxes upon the people. Instead of sending a justice or other officer to the county court to bargain with the people of the county and the towns as to how much money they were willing to raise for the king, he now had them send men to London to talk with him personally about the matter. In this way the king could probably make a better bargain, and at any rate the method was a much more convenient one. King Edward the First did not suspect that this body of men would finally control the government through their right to consent to taxation, but that is exactly what happened.

Other Forms of Representation. These men, the knights of the shires and burgesses of the towns, represented the entire population of the county or the town which elected them. This shows how the representative idea worked up through the entire system. Other forms of it grew up in England, some of which are of

INTRODUCTION I3

the greatest interest to Americans. One of these is the jury.i It arose during the twelfth and thirteenth centuries, in some such way as this : the local townships and hundreds were held responsible for all crimes committed within their boundaries. In 1166, the king^ ordered that four men of each township and twelve men of each hundred should hunt out all law-breakers in their townships and hundreds, and bring them before the judge to be tried for their crimes. This was the beginning of the grand jury, which hears charges against a man, and if the charges are thought to be txMQ presents him for trial, or " indicts " him. The trial now takes place before another body of men, always twelve in number, called the trial jury or petit jury. This jury system, which is considered one of the greatest safeguards of personal liberty, grew up in England long before the colonists began to come to America. Since the juries were supposed to act in place of the communities which chose them, we see that this is simply another form of representation.

Local Governments about 1600. We are now ready to take a glance at the English system of local government as it was about the time that America began to be settled by Englishmen. Many changes had occurred in the thousand years since the Saxons brought in the Germanic township, hundred, and county ; and yet to a surprising extent the old principles of government remained.^