Civil government in the United States and in the state of Texas

Preface

This book has been written for use in the public schools in Texas. It deals with Civil Government in the dual form in which it exists in our American Institutions. The subject is presented in five parts. Part One treats of the General Principles of Government. Part Two, the Governments in the Colonies, and during the Confederation. Part Three, The United States. Part Four, the State Government in Texas, and Part Five, Some General Doctrines of Municipal Law.

This arrangement is believed to be the most natural and convenient, and to give to the student the best opportunity to master the subject in all its phases.

These general principles are the real spirit and genius of our institutions, of which our two Governments are the outgrow T th and embodyment. These principles made our forms of government not only possible, but practical and successful, but they w r orked slowly. It is therefore necessary to go back to the beginning of government in America and trace their processes of development through the Colonial Governments and the Confederation up to the State and the Union. This chronological order is important. The pupil should understand that the States preceded and created the Union. He should then be acquainted with the manner in which the United States Government was created, its nature, and the scope and limits of its powers.

vl Preface

He should further understand the effect of all this upon the respective State Governments, their present powers and functions, and their relations to the United States and to individuals. In presenting these last matters it is earnestly believed that it is better to deal specifically with some one State, and to present its government in concrete form. It is questionable whether a book which is so written as to be applicable equally to all the States can be the best for any one of them. As this text is prepared for use in Texas it treats of Government in that State, in the belief that this presentation should be the best for Texas schools. The study of government necessarily involves a consideration of its purposes and results, and as these are accomplished through laws, it seems that a complete treatment of the subject requires at least a brief presentation of some of the leading legal doctrines and rules, This is the object of Part Five, under the head of Municipal Law.

The Author.

Austin, Texas, January 25, 1908.

Part One. Principles Of Government

CHAPTEE I.

GENERAL CONCEPTION OF GOVERNMENT.

General Idea. To govern is to control, to regulate, to cause one who is governed to obey the will of one who governs.

Ideas Implied In. Governing therefore implies two persons : a governor, and one governed ; the making of rules by the first for the control of the second, and the securing of obedience to these rules from the one subject to them.

Making Rules. The governing person must exercise his judgment and will in determining what the other is to do. This determination, when formed and announced, becomes a rule of action to which the person governed must submit his will, and by which he must regulate his conduct.

Communicating Rules. It is clear that it would be unjust to the one subject to control, for the one governing to make rules which he does not communicate to the one to be governed, and yet to hold him responsible for disobedience in breaking them. On the other hand, it would be unjust to the one having the right to govern for the one subject to government to be excused from obedience because he would not inform himself of rules which had been properly published.

Hence we find that all laws made for the government of a people should be published before obedience to them is required, and furthermore, that no one is excused for disobedience because he has not taken the pains to actually inform himself regarding these after they are published. This is what is meant when we say that ignorance of the law never excuses one for breaking it.

Interpreting Rules. Frequently the meaning of a rule is doubtful; different individuals may construe it differently. Hence, if every one subject to the rule is to be governed alike by it, there must be some way by which to decide authoritatively what the rule means. This is interpreting or construing the rule. This is always done by him whose will is expressed in the rule. The interpretation placed upon it by him must be accepted by all others.

Applying Rules. If those who are subject to the rule always know, properly understand, and willingly obey it, the matters we have just discussed would complete the process of governing. But quite frequently rules are not obeyed, and hence there must be provision made for ascertaining when disobedience occurs. This can be done only by investigating the conduct of those suspected of disobedience and by comparing this conduct with the rule. If it conforms to the rule, there is no disobedience ; if it does not conform, there is. By such comparison each person's guilt or innocence is ascertained and declared.

This bringing together of rule and conduct is applying the general rules to individuals and passing judgment upon them.

Enforcing Penalties for Disobedience. Conviction of disobedience does not of itself insure enforcement of law. The process must go further and inflict upon those who have been convicted such punishment as is appropriate to the wrongs committed. Inflicting punishment for past wrongs cannot change the fact that the law has been broken, but it tends to prevent future violations not only by those punished, but also by others.

Illustrations. All these conditions are present in school government. The teacher is the governing body; the pupils are those to be governed. The teacher makes rules and communicates them to the pupils. Some of the pupils obey; others do not. As to the first, the end of government is accomplished, and there is no need for further action. But as to the second, government has so far failed, and to make it effective enforcement is necessary. So the teacher must investigate the conduct of those suspected of disobedience, judge them by the rules, and punish those found to be guilty.

We find the same principles underlying all competitive games. Those having authority make and publish rules by which certain games are to be played. These are binding upon all who undertake to play in such games, but there are always some who will not voluntarily obey the rules. Therefore the makers of the rules, anticipating this, provide for the selection of officers whose duty it is to watch the game, detect disobedience, and inflict the proper penalties.

Necessity for Government. Government is necessary to the general well-being of every people. Man is a social animal. He neither will nor can live alone. Each individual is dependent upon others for his comfort and development, if not for his life. On the other hand, each has the capacity to disturb and injure others. Unfortunately there are some who are more disposed to injure others than to properly control themselves. Hence there must be some governing body, having and exercising control over individuals, severally and collectively, in order to restrain them from unduly injuring one another or the community at large. If in any community every one were free to do just as he pleased, there could be no order nor security. The enjoyment of life, liberty, and property by each individual would depend entirely upon his own capacity to protect himself. Liberty and property would in fact lose their meaning, and life would be stripped of all that makes it desirable.

Political Power, The power within any people which makes and enforces the laws by which that people is governed, and which protects it from outside interference, is called political power.

Subject Matter of Political Power. In advanced communities this power does not undertake to control men in everything that they may feel, think, say, or do, but only in those matters and to such extent as is necessary in order to protect each individual in his just and equal rights, and the community at large from disorder. To state it differently, political power extends only to such conduct on the part of those subject to it as is injurious to the just and equal rights of other individuals, or to the general welfare of the community.

Purpose of Government. The purpose of government is to protect each individual and the general public from undue and unjust interference by others. This enables each to work out his own development along his chosen lines of action, so long as he does not in so doing unjustly encroach upon the equal and similar rights of others.

It is often found that the best and surest means of protection against individuals is to develop them to such & state of self-respect and self -helpfulness as to relieve them from the temptation to injure others, or to enable them to resist such temptation if it should be presented.

Sovereignty. A certain amount of political power is sovereignty. How much of such power is necessary to entitle it to that designation is doubtful. This is one of the questions upon which theory and practice are hard to reconcile.

The theorist says that to be sovereign, political power must be supreme and unlimited. It is certain that such power as this is sovereign. Still, the practical question arises, may not power limited in some respects still be sovereign? If we answer this in the negative, do we not prove too much? Under such a definition, has there ever been or could there ever be a sovereign? Has there ever been a state whose power was not limited as to territory? Rome boasted that she was Mistress of the World, yet there were always outlying districts over which her power did not extend. It seems that if we are to deal with sovereignty as a practical thing, we must accept territorial limitations upon it. Is this the only limitation which can be admitted? Must sovereignty necessarily be unlimited as to subject-matter? May not political power which is the highest and ultimate power over designated public affairs be justly termed sovereign as to those affairs, though there may be other matters which affect the same people over which it has no authority? Practically it seems that the people of the United States and of the several States have answered this question in the affirmative. In our American institutions we have the people of the United States exercising political power over designated matters, operating through the United States Government; and the people of the respective States exercising political powers over all matters not within the jurisdiction of the people and Government of the United States, and operating through their respective State Governments.

The jurisdiction of the people of the United States and of their Government extends throughout the territory of all the States, and embraces all persons within them, but it includes only such matters as are given over to this people and this Government in the Federal Constitution. The jurisdiction of the people of each State and of their Government extends to so much of the territory of the United States as is within the boundaries of the particular State, and to so many of the people of the United States as live within that State. It does not include those matters given over to the people of the United States and their Government; but over all other matters it is supreme. So we have two peoples and two governments operating in the territory and over the inhabitants of each State; yet each people and each government is limited as to the matters over which its powers extend. Each within the sphere of its political activity is the highest and uncontrolled power, subject to no other authority and accountable to no one for its conduct. Each is equally without power as to the matters properly within the jurisdiction of the other. This is the practical condition in which the citizens of the United States are placed, and from which there is no escape except by revolution. Must we not, then, either accept this idea of sovereignty— limited as to subject-matter, or agree that there is no sovereign power in our American institutions? The Constitutions of the United States and of the several States are based upon the theory of sovereign power over limited subject-matter, and the Supreme Courts of the United States and the several States hold to and announce the same doctrine. On such authority we may safely accept it.

The Seat of Sovereignty. In different peoples sovereignty is seated or vested in different persons. In some, it is in one individual; in others, in more than one, but yet a small number; in others, in a large proportion of those governed; and, perhaps, in a very few instances, in all of those governed.

These differences in the location of sovereignty are the principal distinctions which separate the different forms of government. We are, however, concerned with them now only so far as they affect the necessity for organization by sovereignty for the purpose of exercising its powers.

Organization Where All Political Power is in One Person. In those peoples in which sovereign power is vested without limitation in one individual, he can exercise these powers to a large extent in person. Therefore there is no need for extensive organization. What the sovereign wills is law, and he can apply and enforce this law at his pleasure. This is the extreme of centralized power, and results in the simplest, though far from the best, form of government. This condition, or something approaching it, has existed at some time in almost all countries of which we have any knowledge.

Organization Where Political Power is Distributed Among a Few. When sovereign power is vested in more than one person, even though the number is small, some arrangement for concerted action becomes necessary. In such a people the law represents the joint will of all those invested with sovereignty, not the will of a single individual. This joint will can only be developed and ascertained by concert of action. After their joint will is ascertained they must act together in applying and enforcing it. Entering into a common understanding as to the manner of accomplishing all this is simply organizing for the exercise of their political power, or of governing.

Organization Where Political Power is Widely Distributed. In many peoples sovereign power is distributed among a large number of persons, frequently among thousands, and in some cases among millions. It is manifestly impossible for such numbers as these to continuously act together in the exercise of their powers. Governing is a continuous process. These large numbers therefore must either abandon the undertaking as impracticable, or devise some method of organization by which the ordinary exercise of these powers can be entrusted to a few, leaving the great body of the people free to go about their usual occupations. On the other hand, if all political power were given over to the few, this would be limiting sovereignty to those thus endowed, and the community would thereby be placed in the class just considered. How can these difficulties be avoided and the desired end be accomplished?

The world struggled long to find a practical answer to this perplexing question. The best yet given is Representative Democracy. This is the form of political organization in which sovereign power is vested in and retained by all or by a large proportion of those governed, who act personally and directly in the exercise of their greatest and most important functions, but who delegate to certain of their number authority to represent and act for them in the ordinary processes of governing. This organization is more complex than is required in those communities in which all power is in an individual or in a small number. Its end, however, is the same: to enable those vested with political power to exercise it in the control of those subject to such power; in other words, to enable sovereignty to govern.

Definition of a Government, As the sole end designed by sovereignty in organizing these agencies is to enable it to govern, and as the actual operation of these agencies is governing, it is quite natural to call the system of these agencies a Government.

We may, therefore, define a Government as the system of agencies which sovereignty creates and maintains for the purpose of exercising its powers of control over those subject to it.

Illustrations. The Government of the United States means all the agencies created by and under the Federal Constitution through which the people of the United States exercise their political power over those matters placed within their jurisdiction by that Constitution. The term includes each and all of the three departments of Government, and all the officers of each; i. e., the President and all executive officers under him, Congress and all its subordinate officers, and all the United States judges, from the highest to the lowest, and all their subordinates.

So also when we speak of a State Government, we mean the sum or aggregate of all the agencies through which the people of a particular State exercise their political power over those subjects not given over in the United States Constitution to the Federal Government. The term includes the Governor and all his assistants and other executive officers, the State Legislature, and State Judiciary. All of these go to make up the State Government.

Law. Sovereignty, acting either directly or through its governmental agencies, makes Law; that is, it establishes rules by which its governmental agencies and all others subject to its power are to be controlled. A law is an authoritative rule of conduct, proceeding from a power capable of enforcing it, for the control of those who are subject to it. It must proceed from a source having power to enforce it. It must be directed to, or operate upon, those subject to such power. It must be mandatory, requiring obedience; not merely advisory. It must be continuous ; that is, must be intended to regulate conduct habitually, either permanently or for a designated time. It must prescribe penalties for disobedience and provide for their enforcement; otherwise those not disposed to obey would disregard it.

RECAPITULATION.

To govern is to regulate, to control. It implies two persons, the one exercising control and the one subject to it. It involves making and announcing rules by the one governing and obedience by the governed. If the latter refuses to obey, then the one governing must enforce obedience, which involves interpreting the rules, applying them to the disobedient person, and inflicting punishment upon him.

Necessity for external control grows out of the nature of man. The power which organizes and maintains civil government is called political power.

Political power undertakes to regulate only that conduct which, if uncontrolled, would be injurious to individuals or to the public.

Unlimited political power is unquestionably sovereignty.

There has never been an example of unlimited political power. It is always limited as to territory, if in no other respect.

In the United States sovereignty is divided, also, as to subject-matter, some political matters being within the jurisdiction of the people of the United States, and others being within the jurisdiction of the people of each of the several States. The political power of each of these governments, State and Federal, over these respective matters, is practically sovereign.

A government is the aggregate of the agencies which a sovereign creates and maintains for the purpose of exercising its political powers and controlling those subject to its jurisdiction.

A law is a rule of conduct established by a sovereign for the purpose of creating and maintaining a government, or of controlling the conduct of those subject to its authority.

QUESTIONS.

I. 1. State the general idea contained in government. 2. Explain in order the steps involved in making and enforcing rules. 3. Apply these principles in some illustration not given in the text.

II. Explain why government is necessary.

III. 1. Define political power. 2. Over what subject-matter does it extend? 3. What is its purpose?

IV. 1. What is meant by sovereignty? 2. How far can political power be limited and still be sovereign? 3. How is sovereignty divided in the United States? 4. What sovereign powers does each State retain?

V. 1. What is meant by the seat of sovereignty? 2. How does it differ in different forms of government? 3. Explain the different organizations which these differences in the seat of government make necessary.

VI. 1. Define a government. 2. Distinguish between sovereignty and a government.

VII. 1. Define a law. 2. By whom is it made, and what elements must it have?

CHAPTER II.

FORMS OP GOVERNMENT.

Differences in Governments. Governments differ principally in the following respects : first, in the seat of sovereignty; second, in the purposes for which they are organized and maintained, and third, in the number and nature of the agencies constituting them. The second and third of these differences depend largely upon the first.

Absolute Monarchies. Those governments in which all political power is vested in and exercised by one person are called Monarchies. In them the will of the one ruler, called a monarch or some other appropriate name, is the supreme law. Theoretically, there is but little need for governmental agencies. This one individual can make, apply and execute the law. If for convenience or other reason he delegates any of his authority to another, such delegation is subject to recall at any time. Neither the person to whom the power is delegated, nor those interested in its exercise, have any vested right in it or its continuance. The delegation of authority will last so long, and only so long, as the sovereign desires. Eights cannot be said to exist under such conditions, except in the sovereign.

Fortunately this absolute form of government is usually short-lived. The limitations of human nature assert themselves even against the so-called absolute sovereign, and he has always been compelled to call in others to assist him in the exercise of his powers. These assistants have uniformly obtained some fairly permanent recognition and status, until they have become parts of the government itself ; and to this extent its nature is changed into the class next to be considered.

Limited or Constitutional Monarchies. Closely resembling the Monarchy proper, or Absolute Monarchy as it is sometimes called, and in many instances growing out of it, is the Limited or Constitutional Monarchy. In this form of government one person is declared to have all sovereign power, but he holds this subject to limitations by virtue of which others share to some extent in the powers and duties of sovereignty. The nature and extent of the power vested in such others differs greatly in different governments. In some cases they are very extensive and important; in others they are of little consequence. In every case the enjoyment and exercise of them constitute limitations on the power of the monarch, and from this arises the name, Limited Monarchy. If the limitations are extensive, and have become permanent parts of the plan of government, it is called a Constitutional Monarchy.

In some instances the encroachments upon the powers of the monarch, and the assumption of the functions of sovereignty by others, are so great and so firmly established that they change the nature of the government so that, while it still retains the name and outward form of a monarchy, it becomes in fact government of another form. This is and for a long time has been the case with the English Government. At one time it was a real monarchy. Later it became a constitutional monarchy, in name and nature. It still bears this name, and has an hereditary sovereign who is said to rule, but in fact the people have long since taken over all the essential powers and functions of sovereignty, and there is perhaps no republic in the world in which the people have more power than in England.

Aristocracy. When the sovereign power is vested in a small number of some select class or classes, the government is called an Aristocracy. This form used to be more common than it now is. It has resisted the democratic tendencies of the world's progress less successfully than the monarchical form, and there are now few, if any, actual examples of it.

Democracies. When sovereign power is vested in all those governed, or in such a large proportion of them as to thoroughly identify the governing class with all kinds and conditions of those governed, the government is called a Democracy. These are of two classes, Pure Democracies and Representative Democracies.

Pure Democracies. In Pure Democracies all those sharing in the sovereign power act directly in the discharge of governmental functions: that is, they, by direct action, form and express the collective will of those entitled to participate in the government, and directly apply and enforce it. This form of government for any large number of people is manifestly impracticable. The body is too unwieldy and cumbersome to be effective. In very small communities, and as to matters affecting only themselves, it is the ideal plan of self-government.

Representative Democracies. A Representative Democracy is a government in which the governing classes exercise many of their political powers through chosen agents, usually called officers. In communities of large population or area this is the only practical form of democracy. All of the individuals having a share in the political power of the community act directly in organizing a representative government. In this organization they provide for the exercise of the ordinary powers of sovereignty through designated officers, giving to them respectively such powers as they desire them to have, and placing upon them such limitations as they think best. These several agencies and their organization and operation constitute the Representative Democratic government with which we are now dealing. In America such governments are called Republican, and are created by written instruments known as Constitutions.

Officers. In these Constitutions provision is always made for the election of officers who are to discharge the duties and exercise the powers conferred upon the government. In the great majority of instances the length of time for which these officers shall serve is stated in the law. Upon the expiration of that period the offices must be refilled. In most instances the selection of the successors is made by the voters of the district in which the officers are to serve, so that in this matter also the sovereign people act directly.

Nature of an Officer's Power. After an officer is selected and takes charge of his office he exercises, not his own powers, but the powers of sovereignty. He is an agent for and representative of the people, under whose authority he acts, and all his official action is taken in a representative capacity. Considered as an individual, he has no more authority than any private person, but in his representative or official capacity, within the limits of his authority, he stands for and exercises the powers of the whole sovereign people. This is what is meant by the expression that "a public office is a public trust."

The True Seat of Sovereignty in Democratic Governments. As has been stated, democracies are governments in which sovereign power is vested and distributed among all or a large proportion of the people. They are spoken of as governments by the people, and in the constitutions creating such governments it is often stated that "All political power is inherent in the people.' ' It is easy to misunderstand these and similar expressions, and conclude that political power inheres in each individual as a matter of personal right. This is not correct. It is "the people'' in a collective sense who are sovereign. It is the collective judgment and will which is supreme; not the will of the individual. It is this collective will which determines who shall and who shall not enjoy political privileges, and it is not until the people have granted such a privilege that the one enjoying it can claim it as a right. The highest and most important political right is the right to vote. Even this is not a primary and personal one. It exists only in those upon whom the collective judgment and will of the people have conferred it. In every State there are many persons who are not permitted to vote, even though they be citizens. These excluded classes include minors, and usually all females, and adult males not possessing prescribed qualifications. It is within the power of sovereignty to change these qualifications, either by increasing or lessening them. By the Reconstruction measures, just after the late war, suffrage was extended to the adult males of a race which had previously been disfranchised. By a number of constitutional amendments many of the States of the Union have added to the qualifications for suffrage, so that many persons who once had the right to vote are now deprived of it. In this matter, as in all others in a popular government, it is the will of the majority, lawfully declared, which governs, and the will of the individual must yield to it.

Subdivisions of a State and of Its Powers. In every large community, no matter what its form of government, there is diversity of interest. There are matters which pertain to and directly involve the welfare of the whole people. There are others which are strictly local. They may be of great importance to the small section to which they relate, and yet not affect the public at large. These conditions render necessary another division of power, the people of the whole State retaining power over those matters in which the interests of all are involved, and giving up to the control of the people in the several localities all matters which affect them only. In order to do this effectively it is necessary to form local subdivisions of the State's territory; hence we have counties, parishes, townships, etc.