Thirdly. The State Government, which is nothing but the colonial government developed and somewhat democratized, with a governor chosen originally by the legislature, now always by the people at large, and now in all cases with a legislature of two chambers. From the original thirteen States this form has spread over the Union and prevails in every State. Lastly. The Federal Government, modelled after the State Governments, with its President chosen, through electors, by the people, its two-chambered legislature, its judges named by the President.1 Out of such small beginnings have great things grown. It would be endless to describe the minor differences in the systems of the thirty-eight States. I will sketch the outlines only, which, as already observed, are in the main the same everywhere. Every State has An executive elective head, the governor. A number of other administrative officers. A system of courts of justice. Various subordinate local self-governing communities, counties, cities, townships, villages, school districts. The governor and the other chief officials are not now chosen by the legislature, as was the case under most of the older State Constitutions, but by the people. They are as far as possible disjoined from the legislature. Neither the governor nor any other State official can sit in a State legislature. He cannot lead it. It cannot, except of course by passing statutes, restrain him. There can therefore be no question of any government by ministers who link the executive to the legislature according to the system of the free countries of modern Europe and of the British colonies. Of these several powers it is best to begin by describing the legislature, because it is by far the strongest and most prominent. An American State legislature always consists of two houses, the smaller called the Senate, the larger usually called the House 1 One might add another generation at the beginning of this genealogy by deriving the English corporate company from the Roman collegia, and a generation at the end by observing how much the constitution of modern Switzerland owes to that of the United States. of Representatives, though in six States it is entitled "The Assembly," and in three "The House of Delegates." The origin of this very interesting feature is to be sought rather in history than in theory. It is due partly to the fact that in some colonies there had existed a small governor's council in addition to the popular representative body, partly to a natural disposition to imitate the mother country with its Lords and Commons, a disposition which manifested itself both in colonial days and when. the revolting States were giving themselves new Constitutions, for up to 1776 some of the colonies had gone on with a legislature of one house only. Now, however, the need for two chambers has become an axiom of political science, being based on the belief that the innate tendency of an assembly to become hasty, tyrannical, and corrupt, needs to be checked by the coexistence of another house of equal authority. The Americans restrain their legislatures by dividing them, just as the Romans restrained their executive by substituting two consuls for one king. The only States that ever tried to do with a single house were Pennsylvania, Georgia, and Vermont, all of whom gave it up the first after four years' experience, the second after twelve years, the last after fifty years. It is with these trifling exceptions the quod semper, quod ubique, quod ab omnibus of American constitutional doctrine.2 1 Upon this subject of the division of the legislature, see Kent's Commentaries, i. 208-210; and Story's Commentaries on the American Constitution, §§ 548-570. It deserves to be remarked that the Pennsylvanian Constitution of 1786, the Georgian Constitution of 1777, and the Vermont Constitutions of 1786 and 1793, all of which constituted one house of legislature only, provided for a second body called the Executive Council, which in Georgia had the duty of examining bills sent to it by the House of Assembly, and of remonstrating against any provisions they disapproved, and in Vermont was empowered to submit to the Assembly amendments to bills sent up to them by the latter, and in case the Assembly did not accept such amendments, to suspend the passing of the bill till the next session of the legislature. In 1789, Georgia abolished her Council, and divided her legislature into two houses; Pennsylvania did the same in 1790; Vermont in 1836. Both Pennsylvania and Vermont had also a body called the Council of Censors, who may be compared with the Nomothetæ of Athens, elected every seven years, and charged with the duty of examining the laws of the State and their execution, and of suggesting amendments. This body was abolished in Pennsylvania in 1790, but lasted on in Vermont till 1870. All these experiments well deserve the study of constitutional historians. 2 It ought to be noted as an illustration of the divergences between countries both highly democratic that in the Swiss cantons the legislatures consist of one chamber only. In most of these cantons there is, to be sure, a referendum and a small executive council. Another remarkable divergence is that whereas in America, and especially in the West, the tendency is towards "rotation" in Both houses are chosen by popular vote, generally 1 in equal electoral districts, and by the same voters, although in a few States there are minor variations as to modes of choice.2 The following differences between the rules governing the two Houses are general : 1. The senatorial electoral districts are always larger, usually twice or thrice as large as the House districts, and the number of senators is, of course, in the same proportion smaller than that of representatives. 2. A senator is usually chosen for a longer term than a representative. In twenty-four States he sits for four years, in one (New Jersey) for three, in eleven for two, in two (Massachusetts and Rhode Island) for one year only. 3. In most cases the Senate, instead of being elected all at once like the House, is only partially renewed, half its members going out when their two or four years have been completed, and a new half coming in. This gives it a sense of continuity which the House wants. 4. In some States the age at which a man is eligible for the Senate is fixed higher than that for the House of Representatives; and in one (Delaware) he must own freehold land of 200 acres or real or personal estate of the value of £1000. Other restrictions on eligibility, such as the exclusion of clergymen (which still exists in six States, and is of old standing), that of salaried public officials (which exists everywhere), that of United States officials and members of Congress, and that of persons not resident in the electoral district (frequent by law and practically universal by custom), apply to both Houses. In some States this last restriction goes so far that a member who ceases to reside in the district for which he was elected loses his seat ipso facto. office, in Switzerland an official and a member of a legislature is usually continued in his post from one term to another, in fact is seldom displaced except for some positive fault. At one time officials were steadily re-elected in Con necticut. 1 In Connecticut, every town which had members in 1874 still returns two members, whatever its size, and new towns obtain two members when they reach 5000. Thus a great many very small places have two members each, and the State is governed by the representatives of "rotten boroughs." As they form the majority, they have hitherto refused to submit to the people a constitutional amendment for a redistribution of seats on the basis of equal population. 2 For instance, in Rhode Island every town or city, be it great or small, returns one senator. In Illinois, every district returns one senator and three representatives, but the latter are elected by minority voting. I have dwelt in an earlier chapter (Chap. XIV.) on the strength of this local feeling as regards congressional elections, and on the results, to a European eye mostly unfortunate, which it produces. It is certainly no weaker in State elections. Nobody dreams of offering himself as a candidate for a place in which he does not reside, even in new States, where it might be thought that there had not been time for local feeling to spring up. Hence the educated and leisured residents of the greater cities have no chance of entering the State legislature except for the city district wherein they dwell; and as these city districts are those most likely to be in the hands of some noxious and selfish ring of professional politicians, the prospect for such an aspirant is a dark one. We shall see presently that some of these State legislatures sadly need reform in their methods and their tone. Nothing more contributes to make reform difficult than the inveterate habit of choosing residents only as members. Suppose an able and public-spirited man desiring to enter the Assembly or the Senate of his State and shame the offenders who are degrading or plundering it. He may be wholly unable to find a seat, because in his place of residence the party opposed to his own may hold a permanent majority, and he will not be even considered elsewhere. Suppose a group of earnest men who, knowing how little one man can effect, desire to enter the legis lature at the same time and work together. Such a group can hardly arise except in or near a great city. It cannot effect an entrance, because the city has at best very few seats to be seized, and the city men cannot offer themselves in any other part of the State. That the restriction often rests on custom, not on law, makes the case more serious. A law can be repealed, but custom has to be unlearned; the one may be done in a moment of happy impulse, the other needs the teaching of long experience applied to receptive minds. The fact is, that the Americans have ignored in all their legislative as in many of their administrative arrangements, the differences of capacity between man and man. They underrate the difficulties of government and overrate the capacities of the man of common sense. Great are the blessings of equality; but what follies are committed in its name! The unfortunate results of this local sentiment have been aggravated by the tendency to narrow the election areas, allotting one senator or representative to each district. Under the older Constitution of Connecticut, for instance, the twelve senators were elected out of the whole State by a popular vote. Now (Amdts. of A.D. 1828) the twenty-four senators are chosen by districts, and the Senate is to-day an inferior body, because then the best men of the whole State might be chosen, now it is possible only to get the leading men of the districts. In Massachusetts, under the Constitution of 1780, the senators were chosen by districts, but a district might return as many as six senators: the Assembly men were chosen by towns,1 each corporate town having at least one representative, and more in proportion to its population, the proportion being at the rate of one additional member for every 275 ratable polls. In 1836 the scale of population to representatives was raised, and a plan prescribed (too complicated to be here set forth) under which towns below the population entitling them to one representative, should have a representative during a certain number of years out of every ten years, the census being taken decennially. Thus a small town might send a member to the Assembly for five years out of every ten, choosing alternate years, or the first five, or the last five, as it pleased. Now, however (Amdts. of A.D. 1857), the State has been divided into forty Senatorial districts, each of which returns one senator only, and into 175 Assembly districts, returning, one, two, or, in a few cases, three representatives each. The composition of the legislature has declined ever since this change was made. The area of choice being smaller, inferior men are chosen; and in the case of the Assembly districts which return one member, but are composed of several small towns, the practice has grown up of giving each town its turn, so that not even the leading man of the district, but the leading man of the particular small community whose turn has come round, is chosen to sit in the Assembly. Universal manhood suffrage, subject to certain disqualifications in respect of crime (including bribery) and of the receipt of poor law relief, which prevail in many States-in eight States no pauper can vote-is the rule in nearly all the States. A property qualification was formerly required in many, but now exists only in Rhode Island, where the possession of real estate valued 1 A town or township means in New England, and indeed generally in the United States, a small rural district, as opposed to a city. It is a community which has not received representative municipal government. See Chapter XLVIII. post. |