Civil government in the United States

Front matter

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Chapter I. Definition Of Terms

The word " govern " is derived from the Latin

qubernare, meaning to steer, to pilot, and

+u *■ 'A A' * *- 1 ^r Government.

then to guide, direct, control. lo govern,

therefore, is to control, and government is control.

Thus the divine government is the control exercised

by the Creator over his creatures. Family government

is the control exercised by the head of a family over its

members. School government is the control exercised

by the teacher over the members of the school. When

a pilot would guide his vessel from one port to another,

he must know what courses he may take, he must

choose one of these, and he must have the means of

compelling the ship to take this course. These three

things — intelligence, will, and power — are necessary

to all control, and therefore to all government.

When the controlling will expresses its choice, says

what it would have done, this expression

becomes a rule of action for the governed,

to be followed until there is a new and different choice expressed. This expression of the controlling will is a law ; and government is control exercised by means of the establishment and enforcement of laws. Thus a father chooses to have his children rise at a certain hour in the morning, and retire at a certain hour in the evening. He tells them plainly what he would have them do ; and this expression of his will becomes a law of the family, and remains so, without a new expression, until he chooses to set aside the rule.

But the mere expression of the will may not insure control. The child needs to feel that he must obey. This feeling can come only when a penalty is connected with disobedience. This penalty consists in the infliction of pain in one form or another. Thus the father says that the child who disobeys the rule shall lose a part of his play-hour. But saying this will do no good, unless the child is sure that the father will do as he says. There must be a certainty that the penalty will be inflicted.

The difference between civil government and the others mentioned above is indicated in the meaning of the word " civil" This is derived from the Latin eivilis, — pertaining to citizens ; and a citizen is a member of a state or nation. The following definition of a state is nearly complete : * " A state is a community of persons living within certain limits of territory, under a permanent organization, which aims to secure the prevalence of justice by self-imposed laws." Some would insert after "justice," " and otherwise promote the common weal."

If we examine this definition, we see that the state does not consist of those who directly exercise power, —

* Woolsey's International Law.

DEFINITION OF TERMS. 13

not the king, not Congress, not those who vote, — but all the people, a community. The definition excludes wandering tribes of men, and all corporations, which have no limits of territory, and whose object is not justice.

If all the laws of the state are self-imposed, that is, if there is no power outside its body of people which dictates to it in any way, the state is said to be sovereign. This word does not admit of comparison : one state cannot be more sovereign than another ; and a small state, in this respect, stands on an equality with a large one. The sovereignty of a state consists in the absolute right to control its own members, and in the absolute right to resist any interference in its affairs by any other state. The first of these rights constitutes its internal sovereignty ; the second, its external sovereignty. From these statements it will be seen that Boston is not a state, that Massachusetts is not a sovereign state. The United States is a sovereign state or nation. Great Britain and Russia are both sovereign states.

Having now defined a state, we are prepared to define civil government as control by law exercised by the state over its members as such.

SUMMARY.

1. Government is control.

2. Intelligence, will, and power are necessary to government.

3. Laws are expressions of the controlling will, which become rules of action for the governed.

4. A law, to secure control, must be accompanied by a penalty, and a certainty that the penalty will be inflicted.

5. A state is a community of persons living within certain limits of territory, under a permanent organization, which aims to secure the prevalence of justice by self-imposed laws.

6. A sovereign state is one in which all the laws are self-imposed.

7. Civil government is control by law, exercised by a state over its members.

CHAPTER n.

SOURCE OF AUTHORITY IN THE STATE.

The question naturally arises, What right has the state to control me ? Why may not I do as I please ? To answer this question, we must learn how the state comes to exist.

The members of the state are human beings, and they are, therefore, social beings. They Necessity of are created with a nature which only the Society, society of fellow-beings can satisfy. They are made to love and hate and fear ; and they must have those near them upon whom to exercise these feelings. They have thoughts, and language to express them ; and they must be with those who can understand their language, and respond to their thoughts.

If a man lives alone, all these human faculties become dwarfed and stunted for want of exercise ; and he is not so much of a man as he might have been. All experience shows that the highest degree of manhood can be attained only in society, and that out of it man grows brutish. A life of solitude, like that of a hermit, always seems unnatural and undesirable. There are stories of human beings who have been exposed in infancy, and have grown up among the brutes ; and they are found to have lost the human likeness. They walk upon their hands and feet ; their language consists of inarticulate cries and noises ; they are afraid of men. Instead of human reason, they have only the instinct of the brute. Centuries ago, Aristotle wrote, " Whoever lives voluntarily out of civil society must have a vicious disposition, or be an existence superior to man." Society, then, is a necessity to man, both for his preservation and for his happiness.

But there are two causes, either of which would make Government society a failure. Men are selfish, as well as a Necessity. social. Every man has a disposition, more or less strong, to have his own way; and these ways necessarily conflict with each other. If the strongest should succeed, the weak would suffer. Hence quarrels would arise, and society would become a scene of strife and confusion ; and the very thing which was designed to preserve human life, and be a means of good to men, would come to be a source of evil.

When men come together in society, they have common wants, which they cannot satisfy as individuals. For instance, the common defence must be provided for ; roads and bridges must be built ; money must be coined. Men are not only selfish, but they differ in ability to judge wisely ; and it would be impossible for all to agree as to the best time and way of doing these things. They would, therefore, remain undone.

To remedy these two evils, society must organize itself permanently, first, to control the evil inclined and protect the weak; and then to devise and carry out plans for the common necessity and convenience. Society so organized is a state, and the control which it exercises is civil government. The origin of this is evident. It is a necessity of society, and society is a necessity of man's nature.

SOURCE OF AUTHORITY IK THE STATE. 17

We are now prepared to answer the question as to the authority of the state. Since civil govern- Authority

ment is necessary in order that the ends from God.

for which society exists may be secured, and since these ends are determined by the nature of man as created, it follows that government comes from God, and that the state derives its authority from him.

Men in society find themselves under a law of their

nature which bids them organize and

A , -, , , Duty of Society,

govern. As m every other case, they are

free to obey or disobey, being answerable only to God,

who has made the law. But if they disobey they suffer

the consequences. They have no security for life and

property ; virtue and intelligence are wanting ; vice and

crime prevail : in a word, they are savages ; and sooner

or later they become the prey of some society which has

better fulfilled the end of its creation. All history is

full of illustrations of this truth. Our own Indian

tribes bear witness that men cannot violate this first

duty of society with impunity.

Government, therefore, is a trust committed to society

by the Creator ; and society must not only Government a

accept the trust, but it is responsible for Trust.

the way in which it executes it. It is in duty bound

to have the best possible government ; though what

this shall be, it may determine for itself.

summary.

1. Men are social beings ; therefore society is a necessity.

2. Men are selfish, and differ in opinion ; therefore government is necessary.

3. The state derives its authority from God.

4. Society is under a law requiring it to establish government.

5. Civil government is a trust for which society is responsible to God.

Chapter III. The Government : Its Functions And Depart- Ments

In the preceding chapter, we have seen that government is a trust committed to the state. The object of the present chapter is to show by what agencies the state fulfils this trust. In all cases society vests its powers in a portion of its members.

Those persons, more or less numerous, who directly exercise control over the members of the The Goverastate, constitute the government thereof. ment< Thus, in the United States, the President and all officers under his control, Congress, and the courts of justice, together form the government.

It is necessary to fix carefully in the mind the distinction between the state and the governor £ • j_i i i i i i? Distinction *be-

ment. lne iormer is the whole body of tweentheGovpeople organized for the purpose of con- eminent and trol ; the latter is that part of the whole body through which the control is exercised. The state is supreme: the government is subordinate. The right to control rests primarily with the state; secondarily, with the government. All powers belong to the state, being given by the Creator : whatever power the government may have it receives from the state. The government may change : the state remains.

The state is responsible to God ; the government, to the state. This is the meaning of the expression in the Declaration of Independence, that governments derive their just powers from the consent of the governed.

As to the way in which they have come to possess Authority how these powers, governments may be divided obtained. m t two classes: first, those to which the

people have made formal grants of specified and limited authority; second, those which hold their powers by the tacit consent of the state. It is probable, that, in the early history of the world, all governments were of the latter class. Sometimes a single man, having, in a superior degree, the elements of control, physical strength and skill, courage, and sagacity, came to be recognized by a simple pastoral people as having authority over them. He became their leader in war, and their judge in times of peace. It was likely that his children would share with him the respect and confidence of the people, and in their turn become rulers. Thus, in a simple way, hereditary kingship would come to exist.

In many cases, power has been seized by force, and the people, finding resistance useless, have yielded to the usurpation. Succeeding generations have forgotten that the government was not legitimate, and have suffered its authority to be unquestioned.

There are many states now existing, in which this process has been going on for hundreds and thousands of years ; one individual after another assuming control, until the people fail to recognize their own rights and their own responsibility. Such are Russia, Turkey, and the states of Asia. Most of the governments of Europe, and all those of America, are illustrations of the first

ITS FUNCTIONS AND DEPARTMENTS. 21

Since to govern is to control by law, the functions of the government are, to make laws, to in- Functions and terpret and apply them, and to execute Departments, them ; and these functions call for three departments, — legislative, judicial, and executive.

The relation of these departments to each other may be shown by an illustration. The legisla- Relation of Detive department may make a law saying that P artments - no person shall pasture his own cattle on another man's land, and affix a penalty thereto. John Smith is accused of pasturing his horse in his neighbor's field, and thereby violating law. Justice requires, that, if guilty, he shall be punished. The question of his guilt is decided by the judicial department. He is brought before a court, where he may deny the act charged, or, admitting it, plead that the word " cattle " in the law does not include horses. In the latter case, the first business of the court is to explain the law. If the decision is that horses are cattle, the act charged being admitted, then the law applies to Smith, and the penalty must be inflicted. A mandate is issued by the court to an executive officer, who proceeds to carry out the sentence by imprisoning the man, or by collecting money from him as a fine.

This case may be used to illustrate another most important principle. After the court has decided that the word "cattle" includes horses, it becomes a law that no man shah pasture his horse on another's land. If a similar case arises, it is only necessary to refer to this decision ; it becomes a precedent for judgment.

Thus it appears that the courts of justice are all the time making law. In fact, much the Laws made larger part of all the rules and principles b y Courts.

that guide the administration of justice in any state is

established, not by the legislative department, but by

the judiciary.

This difference in origin gives rise to a division of law

into two great departments, — statute law, and law that

is not statute, included by writers on the subject under

the term unwritten law.

Statute law includes all enactments made by legislative bodies, and promulgated by them

Statute Law. , r™ n i j» ,-

as laws, lnese are tormed irom time

to time, as circumstances make them necessary. In

process of time some become useless, and are repealed,

or changed, or they remain on the statute-book without

force. In order to simplify this mass of laws, they are

sometimes revised, arranged in a systematic form, and

adopted in a body, as comprising all the statute law in

force at the time. The so-called Public Statutes of

Massachusetts and other States are illustrations of this

process.

The unwritten law consists of all those judicial deci- TheTTnwrit- sions which have become authoritative ten Law. through all the periods of the nation's

history. This branch of law is a gradual growth, keeping pace with the development of the people's civilization.

As new relations come to exist in society, new cases are constantly coming before the courts for adjustment. In the absence of statutes, the courts must establish principles, which come to have all the force of laws. The chief difference between them and statutes is, that the legislative department may at any time make laws which shall set them aside. Statutes covering the same ground are always superior to the unwritten law.

ITS FUNCTIONS AND DEPARTMENTS. 23

The term " common law," as used in England and the United States, includes all that portion of the unwritten law of England that has not been set aside by statutes, or by more recent decisions.

SUMMARY.

1. The government of a state consists of those members who directly exercise control within it.

2. The government is subordinate to the state, receiving its authority from it, and being responsible to it.

3. Governments have derived their authority from the state in two ways : first, by formal grants ; second, by tacit consent.

4. There are three departments of government : the legislative, which makes the laws ; the judicial, which interprets and applies them ; the executive, which puts them into operation.

5. Laws are made by the courts of justice, as well as by the legislature.

6. Laws made by the legislature are called statutes ; all others are included in the term " the unwritten law."

Chapter IV. Forms Of Governments, And Means By Which They Are Limited

The following forms of governments have been described by writers upon the subject : —

An Absolute Monarchy is a government in which the Absolute laws are made by one person, and inter-

Monarchy, preted and executed by officers responsible

only to him. Examples : Russia, Turkey, Persia.

A Limited Monarchy is a government in which there Limited Mon- i s an hereditary executive, and a legislative archy. department whose members are chosen

periodically by the people, the judiciary being responsible directly to the sovereign. Examples: England, Sweden and Norway, Denmark. Rarely, in such governments, the sovereign is elected.

A Representative Democracy, or Republic, is a government in which both the chief executive epu 1C ' and the members of the legislative depart-

ment are chosen periodically by the people. The judiciary may be appointed by the executive, or be elected by the people. Examples : United States, Mexico, States of Central America.

A government in which the whole body of people meet to make the laws is sometimes called a Pure Democracy. This is possible only

FORMS OF GOVERNMENTS. 25

in a small state. The government of some of the early English colonies in America Avas of this sort.

There have been states in which all the functions

of government were in the hands of a few

° , ,« . , -, c , Other Forms,

people, self-appointed, ouch a government is an Oligarchy. If a class of nobles rules the state, the government is called an Aristocracy.

Some governments combine several different features. Thus, in the government of England, the executive department represents the monarchy. The legislative department consists of two bodies, one aristocratic, the other republican. In most states, the legislature consists of two bodies ; in others, of one.

These various forms may be divided into two classes, — absolute, and limited. In a certain Absolute Govsense, no government now existing is ernments. really absolute. In all so called absolute governments there are immemorial customs which restrict the sovereign in the exercise of power, and each ruler follows in the steps of his predecessor. If his people are at all intelligent, he will not dare to make radical changes. But there is no way to call him to account except by rebellion, and history shows that nations will submit to oppression for a long period rather than take up arms against the established government.

An absolute government may furnish civil liberty to its subjects, and may do much to promote their happiness ; but, at any time, a different man may come into power, and anarchy or oppression ensue. There is no security beyond the present. For this reason, such a government cannot be, in the highest sense, a good one, though it may be the best possible under the circumstances: indeed, it may be the only form possible over a rude, lawless people.

Since the possession of power creates a desire for

more, the tendency of all governments is Constitutions. r ., , T . ,

awa}^ irom the people. It becomes necessary for a state which values its welfare, to impose some restraints upon its government. It must express its will definitely, and hold the government answerable as subject to law. This law by which the state controls the government is its constitution. It usually specifies the rights of the people, which the government is to respect; states how the departments shall be constituted, thus fixing the form of the government ; enumerates in detail the functions of each ; provides a mode of calling the government to account, and of making needed changes ; prescribes the manner in which the will of the state shall be expressed ; and makes provision for changing the constitution itself.

Thus the constitution of the United States asserts the rights of the people ; says that there shall be a President, a Congress of two houses, and certain courts of justice ; gives to the President power to pardon, to act as commander-in-chief of the army and navy, and to execute the laws ; gives Congress powers over finance, territory, and commerce ; fixes the term of office of all members of the government ; states who shall vote, and how the constitution may be amended.

It will be seen that the constitution becomes the fundamental law of a state, and that all others must accord with it. If they do not, they are void. This question of constitutionality of laws is usually decided by the judicial department, never by the citizen.

Constitutions are of two kinds. Some are written Written Con- instruments drawn up and adopted at one etitutions. time, either by the people for themselves i

FORMS OF GOVERNMENTS. 27

when establishing a new form of government, as in the United States ; or by the existing government, as in the case of Austria, which, after the exercise of arbitrary power, wished to conciliate the discontented people of Hungary.

Others are unwritten, having no distinct, definite form, but consisting of all legislative acts, unwritten Conroyal grants, and judicial decisions, by stitutions. w r hich at any time the form of the government has been established, and by which the rights of the people are guaranteed, and the powers of the government restricted. Such is the British constitution, which has been growing into its present form for a thousand years. It bears the marks of all the social and political changes which have succeeded each other during the rule of Saxon, Norman, and English sovereigns. In another place the development of this constitution will be noticed.

The unwritten constitution is open to the objection that it may be changed by the government itself, and thus cease to express the people's will. Thus a certain parliament changed its term of office from three to seven years, thereby prolonging its power, and preventing a new expression of the people's will. In the United States, with its written constitution, such a change could only be made by the people.

How shall the government be made to obey the constitution, so that it may be effective to pre- checks upon the vent arbitrary rule ? This is done in two Government. wa}'s. Usually, the departments are so constituted that each acts as a check upon the other. Thus in the United States, the President must approve all bills passed by a majority in Congress, before they can become laws. The Senate must consent to all treaties, and to all important appointments made by the President. Without such consent they are not valid. The judges are appointed by the President and Senate, and they decide upon the constitutionality of laws made by Congress. If either branch of the government attempts to violate the constitution, the others may in this way prevent it.

But the most effective way of preventing the exercise limitation of 0I * unconstitutional authority is by limit- Term. i n g t^ term of office of the members of the government. At the expiration of a specified time, the office becomes vacant, and the people are called upon to re-fill it. They may re-appoint the former incumbent. This is a verdict of approval of his administration. If they select a new man, the act may imply dissatisfaction. When the people have this power of changing the government at their will, it becomes impossible for any usurpation of authority to continue. It is only when men may be re-elected to the same office that this limitation of term becomes a salutary check. If they must give up the position, whether faithful or not, the temptation is strong to use it for selfish ends. The election ceases to be a popular judgment upon the character of the administration. For this reason, the principle of rotation in office is one of the most mischievous that can guide the action of an intelligent people.

We have described a constitution as a formal expres- Expression of s i° n of the will of the state, granting au- Popular Will, thority to the government; and we have also said that under limited governments the state is frequently called upon to pass judgment upon the administration. It is important to show how the state expresses its will. What is the voice of the people ?

The whole body of people comprising the state includes some who are not capable of judging wisely

FORMS OF GOVERNMENTS. 29

concerning the general good; to this class evidently belong children and imbeciles. Every state is therefore divided into two classes, — those who have Voters and a voice in public affairs, and those who Non-Voters, have not ; the voting, and the non-voting. The line of division varies greatly in different states. In most women are included in the latter class. Sometimes color is made a ground of disqualification for voting, sometimes poverty, sometimes a certain form of religious belief, sometimes the inability to read and write. In all cases those who do vote decide who may vote. In every state, for the non-voting class the government is absolute ; they are responsible for it only on the ground of tacit consent. Those who have a voice in the conduct of public affairs are said to have political liberty.

Voting is expressing a choice ; and it seldom happens that a large number of people are Majority unanimous in their opinions. In case of Rule - disagreement, either the few or the many must give up to the others, or there will be no decision. Justice requires that the will of the smaller number shall submit to that of the larger. Hence the common rule that the majority decides.

It appears, therefore, that, when we speak of an election as expressing the will of the state, we mean that it is the choice of more than half of the voting population, submitted to by all the others. This supposes that all persons vote who can do so, which is far from being the case. Thus in one State the returns of one election were as follows : —

Population 1,651,652

Voting class 351,056

Votes for successful candidate for governor . . . 83,639

It appears that only one in twenty of the members of the State actually expressed a preference for the governor chosen in that year. In other years a larger proportion of the voters had voted, but seldom more than one in eight of the members of the State. Many schemes have been devised by which the minority may also be represented, but none have come into general use.

SUMMARY.

1. The forms of government that have existed are, absolute monarchy, limited monarchy, republic, democracy, aristocracy, oligarchy.

2. Absolute governments are restricted by custom, but cannot be called to account except by rebellion.

3. A constitution is a law by which the state controls the government.

4. The constitution is the fundamental law, and all others must accord with it.

5. Some constitutions are written instruments ; others are without definite form.

6. The departments of a government should be able to check one another.

7. The authority of government is limited by limiting the term of service of its members.

8. The whole body of people in the state is divided into voters and non-voters.

9. The voice of a majority of those who vote is considered to express the will of the state.

10. This is usually a very small part of the whole body.

Chapter V. Obligations Of The Government

"We have seen that the people commit to a part of their number their authority, to be used for the common good. We have now to examine this trust in detail, and ascertain what a government should do to be a good one.

Its several obligations may be classified in three divisions : first, to secure justice to the members of the state ; second, to promote the general welfare ; third, to defend the state.

In order to secure justice, it is the duty of the government to protect every individual, with- justice, how out distinction, in the enjoyment of his secured, natural rights. These rights are included under four heads, — the right of personal security, the right of personal liberty, the right of private property, and the right of religious belief and worship.

The Right of Personal Security is the right to enjoy life, body, health, and reputation. It personal Seenmeans not merely the right to live, but to rit ylive in safety and tranquillity, without fear and without the necessity for self-defence. No greater reproach can be brought against a state than to say that human life is not secure within its territory. When deeds of violence and blood are frequent and unpunished, the government fails to meet its first great duty.