'CTF/^ COUNTIES OF NEW YORK STATE Name Albany Allegany. . . . Broome ! Cattaraugus^ ' Cayuga '< Chautauqua.. ' Chemung ' Chenango. .. ' Clinton : Columbia . .. ' Cortland Delaware Dutchess. . . . Erie. ^ Essex. .. . P'ranklin. . . . Fulton ! Genesee Greene ' Hamilton . . . Herkimer . . . Jefferson.. .. I Kings 55 Lewis 26 Livingston . . 4o Madison •t1 ^Monroe 42 Montgom'ry* 2 Nassau — ". . fi New York. . . 49 Niagara 44 Oneida 46 Onondaga 27 Ontario^ 9 Orange •''0 Orleans •^3| Oswego 34 Otsego.; .. .. lu Putnam 3 Queens 38 Rensselaer .. 5 Eichmond.. . « Rockland. .. 61 St. Lawrence 40 i Saratoga 36j Schenectady. 35 Schoharie. '. . 30 Schuyler Seneca Steuben.. . Suffolk.... Sullivan. . Tioga Tompkins Ulster 1806 1808 1799 1808 1836 1798 1788 1786 1808 1797 1683 1821 17991 1808 1838 1802 1800 1816 1791 1805 1683 1805 1821 '806 1821 1772 1898 1683 1808 i798 1794 1789 1683 1824 1816 1791 18121 1683 1 1791 Formed from what Original Genesee Tioga Genesee Onondaga Genesee Tioga Herkimer and Tioga. Washington Albany.'. Onondaga Ulster and Otsego Original Niagara Clinton Clinton ^Montgomery Ontario ~. Albany and Ulster Montgomer}- Montgomery Oneida Original Oneida Genesee and Ontario.. Chenango Genesee and Ontario.. Albany Queens Original Genesee Herkimer Herkimer Montgomerj- Original Genesee Oneida and Onondaga. Montgomery Dutchess. .'. Original .\lbany Warren Washingtont Wayne Westchester. Wyoming. . . . Yates 1683 Original 1798 Orange 1802 Clinton, Montgomery I and Herkimer. ... . 179liAlbanv 1809! Albany. 17951 Albany and Otsego 1854;Steube'n, Chemung, and Tompkins 1804'Cavuga 1796'Ontario , 1683 Original 1809|Ulster 1791 ^Nlontgomer}^ |1817jCavuga and"^ Seneca. ., 1683 Original 1813: Washington 1772; Albany. 1823; Ontario and Seneca.., 1683|Original 1841 Genesee 1823lOntario Origin of name Duke of York Allegany river John Broome Indian name . Indian tribe Indian name Chemung river Chenango river George Clinton Columbus Pierre VanCortlandt Delaware river Duchess of York — Lake Erie County of England. . Benjamin Franklin. Robert Fulton Genesee river Nathaniel Greene. . . Alexander Hamilton Nicholas Herkimer. . Thomas Jefferson. . . King Charles II Morgan Lewis Robert R. Livingston James Madison James Monroe Richd Montgomery. William of Nassau.. Duke of York Niagara river Indian tribe Indian tribe Lake Ontario Son of Duke of York City of Oswego Indian name Israel Putnam Wife of Charles II.. Van Rensselaer fam- ilv Son of Charles II — Descriptive- St. Lawrence river.. Indian name. .. Indian name — Indian name — Philip Schuyler. Indian tribe Baron Steuben County of England. John Sullivan Indian name Daniel D. Tompkins. Irish r^arldom of Duke of York. .. Joseph Warren George Washington. Anthony Wayne Town of Westchester Joseph C. Yates County Seat Albany Belmont Binghamton Little Valley , . . . . Auburn Mayville Elmira Norwich Plattsburgh Hudson Cortland Delhi Poughkeepsie. ... Buffalo Elizabethtown ..! Malone Johnstown Batavia Catskill Sageville Herkimer Watertown Brooklyn Lowville Genesee Morrisville Rochester Fonda :Mineola Lockport Utica Syracuse Canandaigua Goshen, Newburgb Albion Pulaski, Oswego.. Cooperstown Carmel .Jamaica Trov Richmond. . Clarkstown. Canton Ballston Spa. Schenectady. . Schoharie. . .. Watkins: Ovid, Waterloo. Bath Riverhead Monticello Owego Ithaca Kingston Caldwell Argyle Lyons White Plains . Warsaw Penn Yan Popula- tion, 1900 165.571 41,501 69,149 65.643 66.234 88,314 54,06a 36,563 47,43a 43,211 27,576 46.413 81,670 433,686 30,707 42.853 42,842 84,561 81.478 4,947 51,049 1,166,582 27,427 87.059 40,.545 217,8.54 47.488 55.448 2.050.600" 74,961 132,800 168,735 49,605 108,859 30,164 70.881 48;939 13,787 152,999 121,697 67,021 38,298 89,083 61,089 46,852 26.854 15,811 28,114 82.822 77.582 82,306 27.951 33,830 88,422 29,948 45,624 48.660 183.375 30,413 20,318 * Changed from Tryon, 1784. t Changed from Charlotte, 1785. Total. 7,268.012 PRESIDE^'T THEODORE ROOSEVELT A MANUAL OF CIVICS FOR NEW YORK SCHOOLS C. W. BARDEEN EDITOR OF THE SCHOOL BULLETIN « SYRACUSE, N. Y. C. W. BARDEEN, PUBLISHEK 1902 Copyright, 1901. by C. W. Bardeen THE LIBRARY OF eONGfTESS, Two OortEs Receiveb JAN. 16 1902 Co»»VI?IOHT ENTRY CLASS ^XXo. Wo. COPY a j ^\f^ ^ 2.^ REFERENCES Heavy faced numbers in parentheses, like (210), refer to con- secutively numbered paragraphs of the national.and state consti- tutions, pages 612 to 676. Numbers separated hj colon from a date refer to chapters of the state laws of that year; thus 521:1901 is chapter 521 of the laws passed by the New York legislature of 1901. B with roman and Arabic numerals refers to the second edition of Bryce's American Commonwealth: thus B ii. 612 refers to page 612 of the 2d volume. Prentice stands for Prentice's History of New York; Hadley. for Hadlev's Education of the American Citizen. (iv) PEEFACE It is now a quarter of a century since I first published Northam's Civil Government, the early editions of which bore upon the title-page the words " for common schools ", the distinc- tion of the book. Civil government had been hitherto a high school study, ranked in common estimation in the group with logic and mental and moral philosophy. The book was a great as- sistance to the movement that began about that time to introduce the subject lower down, espe- cially in the 8th and 9th grades. The success of the book may be judged from the fact that it has passed through 177 editions, and that only last October 1,150 copies were ordered for a single institution, the New York City Normal college. As a presentation of the facts of civil govern- ment that book has never had a rival. But there has recently developed, especially in regents schools, a demand for more of the history and the philosophy of civics. In deference to that demand this book has been written, and is believed to present all the valuable features of its predecessor, with an adequate response to the requirement for broader treatment. The regents (V) vi bardeen's civics syllabus has been followed directly ; and to make sure that the book covered all the topics now taught in New York schools under the name of civics, all the regents questions in civics for the ten years 1891-1901 have been published in a separate volume, with references by page to this book. All questions in the uniform and the state examinations from the beginning not cov- ered by these regents questions have been added, and it may be said with confidence that this book traverses the entire ground indicated by these questions. The advantage of historical treatment is not likely to be overestimated-. It presents frequent opportunities for comparison, always one of the most effective phases of teaching, and suggests frequent contrast of our condition with that of our forefathers, which leads to an appreciation of pur privileges, and a sense of our duties. So closely related is civics with history and with political economy that it is often difficult to know where to draw the line in teaching. Many topics are here suggested which it would be im- possible to dwell upon, in the effort throughout to encourage reflection and discussion. In mechanical structure the book has an open page, and is indexed so fully by headlines that one may turn in an instant to any part he wants to find. A marked feature is the thousands of PREFACE Vll cross-references. I have aimed not only to make it easy for the student to look these up, but to compel him to do so, that his information may be welded together, instead of lying in his memory as isolated facts pigeonholed without connection. Teachers will appreciate the etymological refer- ences which are given in connection with most of the leading terms. These are made a means, not an end, and have been omitted where not likely to be helpful ; it is, for instance, of little use to the pupil to know that reciprocity comes from reciprocus, of unknown origin. But where the etymology is given it will be found a help to understanding and fixing the words. The references to Bryce's American Common- wealth^^ are frequent for three reasons : (1) be- cause it is a book found in most school libraries ; (2) because it is the most comprehensive view of American institutions that has appeared ; (3) be- cause the quotations give opportunity to point out that a good many features in which he found our institutions defective have been reme- died in New York, especially the conditions sur- rounding the primary meeting and the ballot. There is no pessimism in this book. I believe in our national government, and in the constitu- tion and laws of New York, and I have endeav- * 2d edition : indicated throughout the book by B, with number of the volume and page. VUl ored to make pupils who use this book beheve in them. It is not a time to despair of the repubhc when Seth Low is mayor of New York, Ben- jamin B. Odell governor of the state, and Theo- dore Roosevelt president of the United States. Aristotle calls man '' a political animal ". This book is an attempt to make New York boys and girls intelligent political animals. I have had in mind this statement of President Had- ley 's, from whose book I have quoted frequently : '' Among the many demands which are made upon our schools and colleges at the present day, none is more universally voiced than the demand for a fuller course of political education. And for this there is good reason. With the grow- ing complexity of modern life, the difficulties of social organization and government are increas- ing. With the growing pressure toward spe- cialized training for varied spheres of usefulness, the danger that we shall sacrifice the general basis of higher education which will enable us to cope with these difficulties is also increas- ing. It is not enough for our schools to fit men and women to be parts of a vast social machine ; it must prepare them to be citizens of a free commonwealth. If our educational system fails to do this, it fails of its fundamental object."^ Hadley, " Tlie Education of the American Citizen." page 185. TOPICAL ANALYSIS I. Introduction 15 kinds of government 15 practical value of civics 18 II. The town 22 history — tun, mark, clan, tribe 22 in New England, in New York 25 the town-meeting t6 source and school of democracy ! -. . . . 27 III. Powers of the town 28 legislative, by-laws, local taxes 28 judicial, justice's court 29' executive, town-meetings 30 IV. The town officers 34 many years day fees bo?ids supervisor*! 1 2 $2, $4 -|- + . . 34 town clerk*t 1 2 2 + . . 35 justices*! 4 4 2 -f- _}_ . , 35 constables 1-5 2 _^ _|_ . , 37 assessors^ 3 2 2 -j- 0..38 collector 1 2 -|- _}_ • . 39 overseer qf poor 1 or 2 2 2 () - -|- . . 40 liigliway com'r:{: lor 3 2 2 + . . 41 pound master. 1 1 -|- . . 43 auditors 3 2 -[- . . 43 town board* 2 . . 43 board of healthff 2 . . 45 fence vieM'ers:}: 1.50 . . 46 V. Subdivisions of the town 48 election districts, officers 48 highway districts, pathmasters 49 school districts, meetings 51 (1) Z TOPICAL ANALYSIS hew per many years day fees bonch trustee lor 3 lor 3 " .. 55 clerk 1 1 . . 56 collector 1 1 + + . . 56 treasurer^ 1 1 + + . . 57 librariani 1 1 . . 57 union free school 57 VI. The county 59 history, the hundred, the shire 59 representative government 62 board of supervisors 64 VII. Cothstty civil officers ' 66 (For supervisors see town officers, page 34.) sherife 1 3 "- -^ + . . 66 clerk 1 3 treasurer 1 3 sup't of poor 1 or 3 3 engineer? 1 3 side-path com'rs^ 5 or 7 5 . . 71 notaryi ? 2 + . . 73 school com'r 1-4 3 $1,200 . . 73 loan commissioner^ ... 2 -|- -|- . . 74 VIII. The corxTY court 76 + .. 68 -4- + •• 69 4- .. 70 ..70 jvidge 1 6 to 110,000 $1,500 surrogate 1 6 to . . 77 $10,000 district attorney 1 3 ? . . 79 grand jury i . . '. 16-23 1 . . 81 trial juryi 12 1 . . 83 com'r of jurors^ 1 . . 83 IX. The villaCxE 87 incorporation, 4 classes 87 president 1 1 1 . . 90 trustees 2-8 2 ? . . 90 assessors? 3 3 ? -|- . . 91 collector? 1 1 ? -|- -j. . . 91 1 Appointive. All other ofiRcers named are elected. COUNTY, VILLAGE, CITY 6 hoiv per many years day fees bonds police justice 1 4 ? ? . . 92 clerk^ 1 engineer^ ?. 1 street commissioner^.. 1 policeman^ 1 board of healtli^ 1 board of education ... 1 inspectors of election? 4-}- ? ? .. 92 ? .. 92 .. 92 ? ? .. 92 .. 9S ? .. 93 ? .. 93 comparison with town and city 94 X. The city 96 history, borough, city, guilds 96 3 classes, officers* 101 XI. The Greater New York 110 the 5 boroughs 110' aldermen 73 2 $1,000 ..111 president 1 2 5,000 . .111 clerki 1 6 7,000 ..111 mayor 1 2 15,000 . . 112 comptroller 1 2 15,000 . . 112 chamberlain 1 2 12,000 ..112 sup't of schools! 1 6 8,000 . . 112 board of education^ . . 46 5 ..113 district boards^ 46 . . 113 board of examiners^ . . 4 4 5,000 ..113 president of borough . 4 2 7'5O0 ..114 city court judges 7 10 10,000 ..114 court of ses., recorder 1 14 10,000 ..114 city judge 1 14 10,000 . . 114 justices 3 14 10,000 . . 114 special sessions judges 10 10 o'ooo ..115 15 6 6,000 magistrates* 12^ 10 6,000 ..115 7,000 municipal courts 23 10 ^'S?? ..115 6,000 *There is so much vuriation in cities that tabulation would be indefinite. 4 TOPICAL ANALYSIS XII. The STATE 118 history of constitution . . 119 Magna cliarta 120 petition of right, bill of rights; 121 English constitution 123 charters, written constitutions 125 2 principles of American government, 129 constitution vs. laws 132 4 constitutions of New York 133 XIII. The bill of rights 136 rights, natural, personal, civil, political 136 personal rights 137 securitj' 137 habeas corpus 137 searches and seizures 138 ex post facto laws 139 bills of attainder 140 corruption of blood 140 trial by jury 141 excessive bail and fines 141 ' counsel and witnesses 141 liberty 143 free speech and press, slander, libel 144 religious liberty, marriage, divoi'ce 145 property rights 147 feudal sj'stem 147 alienation, quarter sales, allodial lands 148 eminent domain ^ 150 personal property, contracts 151 political rights 152 XIV. The electiae franchise 154 qualifications of electors 154 woman suffrage, age 154 citizenship, naturalization 155 . ' . residence, registration 158 lunatics, paupers, poll tax 159 bribery, betting on election 160 educational qualifications 161 majority, plurality 162 STATE XV. Elections 164 general election . . 165 manners of voting 165 xVustralian ballot, voting machines 167 nominations 171 conduct of elections 172 XVI. PRniAKY MEETINGS 176 history of the caucus 176 New York system 177 political , parties 180 politicians, bosses, heelers. . '. the citizen's duty XVII. 9 salary $10,000 184 186 . . 189 191 192 militia 198 2 5.000 ..198 200 The (4()vekn()r powers appointments extradition, pardons, lieutentant-governor. . XVIII. State administrative officers elected hoivf/ianij years secretary of state comptroller. treasurer.. attorney general engineer sup't of public instruction*. appolntetl superintendent of insurance, superintendent of banking. . sup't of public works state architect excise commissioner superintendent of prisons. . . commissioner of labor agricultural commissioner . . . commissioner of health health officer salary $5,000. . 6,000. . 5,000. . 5,000. . 5,000. . 5,000. . .200 .200 .201 .201 .201 201 7,000. . 7,000 . 6,000. . 7,500. . 6,800t. 6,000. . 3,500. . 4,500. . 3,500. . 12,500. . .202 202 202 .202 .203 .203 .204 .204 .205 .205 Elected by joint ballot. + Including allowance for expenses. TOPICAL ANALYSIS XIX court of claims board of charities prison commission railway commissioners tax commissioners quarantine commissioners . assessors lunacy commission civil service commission. . . forest commission forest preserve board ex-officio boards canvassers canal fund canal board land office classification , equalization public buildings superintendent^ how many 5 12 3 3 3 3 3 3 3 3 5 6 7 ^ 7 4 5 3 1 years 6 8 4 o 3 3 3 4 salary 5,000. . none. . 2,500^. 8,000. . 3,000f. 2,500. . 2,500. . 6,200+. 3,000. . 5,000 none .206 .20& .206 .207 .207 .207 .208 .208 . . .209 ...210 . . .210 5,000 . . .210 . . .211 ...211 ...211 . . .211 . . .212 ...212 ...212 XX. XXI. salaries of clerks. . t 218- History of New York legislature 214 council of twelve, 1641 214 eight men, 1648; nine men, 1647 215 land-tag, 1664 .21& first general assembly-, 16^8 217 first royal assembly, 1691 218 committee of sixty, 1775 a 219 provincial congress, 1775 . 219 The legislature as a whole 220 first session, 1777 220 comparison with parliament 221 bicameral system 228 The two houses separately 227 how many years salary assembly 150 1 |1,500 227 President only. *** See page 210. STATE / organization and officers 227 how many years salary senate 50 2 $1,500 230 powers of the senate 230 XXII. Law-making powers 232 limitation by constitution, referendum 232 limitations as to scope 234 as to manner 236 quorum 237 XXIII. How LAWS ARE MADE 238 introduction of bills 238 three readings 238 obstructive debate 239 committee of the whole 240 concurrence of both houses 241 veto, appropriation bills 241 checks against majority rule 243 XXIV. Legislation by committees 245 dangers of committee system. . . , 248 lobbjing. log-rolling 249 XXV. Courts op law 252 common vs. statute law 253 civil vs. criminal law 256 2 functions of courts 257 history of judiciary 257 attorneys and counsellors 259 judges, appointed or elected 261 XXVI. The st'ate courts 263 justice's court 30 county court 76 supreme court 263 justices 76 14 $6,000-$14,000. . . .263 proceedure of civil suit 264 of criminal suit, 267 special term, government by injunction 269 appellate division 271 court of appeals 273 judges 7 14 $12,000tt....273 8 TOPICAL ANALYSIS XY VII. United States couktjs 27.") supreme court 275 necessity and jurisdiction 275 district courts 278 relation to state courts 278 circuit courts 280 circuit court of appeals. 280 court of claims 231 territories, District of Columbia 281 judges, all having life tenure 282 hoxv mainj salary supreme 9 $10,000^ ... .227 appeals 6,000 ....280 circuit 25 6,000 .... 280 district 74 5,000 ....278 territory 3,00!) 281 District of Col. . . . 6 5,000 ... .282 appeals 3 6,000^ ....282 claims 5 4,500 281 XXXVIII. Constitutionality of statutes 286 not questioned in England 288 interference of congress 289 comparison of courts '. 291 XXIX. Taxation 292 indirect taxes 294 the Raines law 295 excises, internal revenue 296 revenue or protective tariff 297 direct taxes '. 298 assessment, personal propert}'. 300 XXX. The common schools 304 necessity of education 304 liistor}' of education in Xew Y^ork 305 free schools, 1867 306 compulsory education, 1894 306 supervision 307 state superintendent '. . .309 X Chief judge $500 more. NATION 9 funds, appropriations 310 training of teachers 313 , charitable and penal institutions 314 XXXI. Academies and colleges 318 regents of the University 318 literature fund 319 examinations 320 union free schools 321 Cornell university 323 XXXII. The confederation 324 previous experiments. 324 United colonies of New England, 1(543 324 Albany convention, 1754 325 stamp-act congress, 1765 , 325 1st continental congress, 1774 326 2d continental congress, 1775 327 comparison of two declarations 327 articles of confederation 330 XXXIII. The national constitution 332 weakness of the confederation 332 adoption of constitution .... 332 modelled on state constitutions 333 compared with that of England 334 2 points of difficult}', the solution 336 works through national officers 337 the United States us 338 source of authority, amendments 338 XXXIV. Relation of the nation to the states 342 exclusive national powers 342 exclusive state powers 343 coordinate powers 344 powers forbidden to both 344 forbidden to nation 344 forbidden to states 347 except with consent of congress 347 guarantees to each state 349 comparison with articles of confederation 350 the nation gaining in power 353 10 TOPICAL ANALYSIS XXXV. Territories and new states 855 ordinance of 1787 ^ 355 acquisitions of territor}^ 356 homestead laws 356 political status of a territory 358 admission as a state "359 can it withdraw ? 360 District of Columbia 360 years salary XXXVI. The president 4 $,50,000 362 electoral college 363 national convention 368 succession in case of death 370 qualifications and salary 371 XXXVII. Powers of the president 373 legislative, the veto : 373 judicial, the pardon 374 executive 374 relation to congress 375 sometimes exceeded 378 comparison with governor 379 with king of England 380 vice-president 4 $8,000 380 XXXVIII. Civil service reform 382 appointing power of president 382 history of civil service reform 383 laws of 1853 and of 1883 387 hoiv nuiny yrs. salary civil service commissioners, U. S.. 3 ? $3,500,388 New York 3 ? 3,000.209- XXXIX. The president's CABINET.. 8 ? 8,000.390 comparison with New York 390 with English ministry 392 XL. State, avar, navy, post-office departments 396 state department 396 attornej^ general's office 396 war department 397 armv and militia 897 NATION 11 navy department. 400 post-office department 401 XLI. Treasury department 405 uniform weights and measures 406 coinage of money 406 gold and silver 409 borrowing money, greenbacks 413 national banks 415 regulating commerce 418 DEPARTirENT OF AGRICULTURE 421 XLII. Department of the interior 421 Indian affairs 431 land office, pensions, census 422 patents, copyrights 423 bureau of education 425 national library 426 Smithsonian institute 426 XLIII. Congress 428 comparison with parliament 429 with legislature 430 long and short sessions 432 membership, quorum 432 officers, rules, privileges 434 process of law-making 437 power of committees 438 classified powers 442 how many years salary XLiy. House OF REPRESENTATIVES 368 2 $5,000. .445 apportionment, qualifications 445 requirement of residence 447 speaker 1 2 $8,000.. 451 XLY. United States SENATE 50 6 $5,000. .453 principal compromise of the constitution 453 purposes, method of election, officers 453 executive powers 457 judicial power, impeachment 458 legislative powers 460 XLYI. International law 462 12 TOPICAL ANALYSIS ambassadors, ministers, consuls.. 464 treaties of intercourse 467 declaration of war 468 non-combatants 470 neutral nations. 472 treaties of peace 474 XLVII. Principles of GovERisr.MBNT 476 theories of government 476 monarchy, absolute, limited 477 democracj^ republic 481 8 departments \ 482 centralized or local 483 the federal principle 484 the laissez-faire theory 491 XLVII. Persoxal rights 492 security, liberty 492 parents and guardians 498 master and servant 495 duties of the citizen 495 obedience 495 public service 496 public spirit 497 military service 498 duty of revolution 499 omnipotence of public opinion 499 XLIX. Property rights 507 conditions of wealth 510 theories of socialists '..... 512 capital, interest, usury .• 512 monopolists, trusts 514 contracts, 5 conditions 517 marriage, bigamy 521 insurance 522 damages f or • non-f ultilment 523 bankrupt laws 524 negotiable paper 526 real estate titles 531 leases, appurtenances 531 PRINCIPLES OF GOVERNMENT 13 deeds, mortgages 534 personal property 539 wills, conditions, codicils 540 L. Crimes and punishments • 544 felonies and misdemeanors 545 perjurj^ treason, anarchy 546 bribery, extortion, embracery 548 suicide, murder, assault 550 larceny, robbery, burglarj^ piracy 552 arson, forgery, counterfeiting 553 accessories, attempts, extradition 553 Comparative chart of GO\nERNMENTS 556 Tables and maps 558 Declaration of independence 591 Articles of confederation 595 Ordinance of 1787 604 Constitution of the United States .612 Constitution of New York 630 BARDEEN'S CIVICS CHAPTEE I INTRODUCTION The man who steered a Koman ship was called the gubernator, and from that word we get our English word government, the steering of con- duct so as to reach the desired ends of living. As the wise pilot varies the course as httle as possible, so a wise government interferes only when necessary ; but as a ship without a rudder drifts to ruin, so mankind without government would go to destruction. There are many kinds of government. Man must be self-goyerned ; the man with an ungov- ernable temper is unhappy and dangerous. Till he arrives at maturity he is subject to family government ; the child is learning by ex- perience what is wise or unwise in conduct, but the world can not wait for him to try all the experiments — he must by obedience to his par- ents get and give the advantage of the accumu- lated experience in conduct of many generations. When he goes to school he becomes subject to school government. He learns that he must be (15) 16 INTRODUCTION regular and punctual in attendance, prepare the lessons assigned, study quietly, follow promptly the signals for concerted action ; in short that he must obey the teacher, even if he does not al- ways see why. At recess, too, he finds a system of playground government. The games are played by rules which he must learn and follow, or he will not be allowed to play. He must yield to the direc- tion of the captain of the nine, and obey the decision of the umpire. He must not be greedy or he will be despised ; he must not be boastful or he will be laughed at ; he must not cheat or he will be shunned. He finds himself surrounded by more or less definite rules of conduct, insti- tuted by the boys themselves but recognized as binding. Before he is very old he learns that he and his playmates and his teachers and his parents are all under a pervasive system of government. He sees policemen with authority to forbid cer- tain acts, and to arrest and lock up people. He finds that everybody who owns a house pays taxes on it, and as it is often done grumblingly he knows some authority compels the payment. He hears now and then of elections and of offi- cers, and is told that such a man is a judge, that such a man is supervisor, that such a man is sheriff. He hears a good deal about the law, KINDS OF GOVERNMENT 17 and what is done to those who violate it. So he comes to reahze that when he no longer feels parental and school and playground authority, he will s bill be under a similar but much more extensive authority, which he learns to call civil government, or the government of the people as a community (so called from the Latin word civis, the state) ; and he will naturally be inter- ested in civics, orl^he science of civil government. He has studied the rules of base-ball, so as to know how to play correctly. He will want to study civics, so as to know how to exercise his duties as a citizen. His experience at home and in school and on the playground has taught him the advantages of governmeut. He knows that boys never accomplish much in a body unless they have a recognized leader, and he will see that men too must need leaders. Single persons could not build bridges or school-houses, or maintain a post-office system, and there must be some one to direct, with authority to compel. He knows that people have selfish instincts which only authority will restrain; that the httle would be at the mercy of the big, the weak at the mercy of the strong, the quiet and indus- trious at the mercy of the noisy and the lawless, unless there were in the community a sense of justice and a power to enforce it. IS INTRODUCTION He knows that when people are together each must do his share of whatever is for the com- mon good ; each must respect the rights of others, and if he is unwilling to do so must be com- pelled to. But who shall direct ? who shall do this com- pelling ? He knows how leaders among boys are chosen, and he will naturally want to know if leaders among men, these directors and compel- lers, are chosen in the same way. He is ready to recognize the advantages of civil government if it is wisely framed and hon- estly administered ; and he should feel the same interest in learning about it that he feels in dis- cussing the rules of base-ball or the management of the captain of the track-team. That is what this book is to teach him. Of all the knowledge he gets in school, none is of more practical value than this. As a boy he may or may not belong to a ballrclub, but when he becomes 21 years old he will certainly be a citizen, with as much right and as much duty as any other citizen to help form and direct and maintain the civil government under which 'he lives. He knows that boys accomplish things by a long pull, a strong pull, and a pull all to- gether. He will be right in thinking that men accomplish things in the same way, and that a knowledge of civics will help them do it. IMPORTANCE OF CIVIL GOVERNMENT 19 But how about the girls ? Are they also in- terested in civics? A century ago this would have seemed unlikely, for in those days a girl's education was based on ' ' accomplishments ' ' — music, dancing, '' polite conversation", and per- haps a little French, the object being to make her attractive to men. But in these days the education of girls is becoming as broad as that of boys, and most of the same paths of useful- ness are open to them. • Men no longer find it necessary to adapt their conversation to women, but talk with them upon all the current topics of the day, expecting to find them intelligent and well-informed. In many places women have taken the lead in movements for civic reform, and the potency of their influence is recognized wherever such reforms are undertaken. Moreover the discrimination of sex is disap- pearing in civil government. In some states women have the same rights as men to vote and hold office. ^ In New York they have these same rights in school elections ; and the legislature of 1901 gave to women who are property owners the right to vote upon propositions to raise money. Women have then the more reason to know about civil government because as they begin to exercise these rights the public will be watchful to see whether they do so in- telligently. 20 INTRODUCTION It is a capital idea occasionally to turn the civ- ics class into a debating-club. There are many questions that are not yet decided, usage differ- ing in different states: as for instance whether the local managemeEt of schools should be by district or by township ; whether judges should be appointed or elected; whether the right to vote should depend upon sex or education or property, etc. Even principles pretty well set- tled, as that a republican form of governmeDt is preferable to a monarchy, may be more firmly fixed by a debate in which all that can be said in opposition is brought forward and refuted. Frequently there are local questions under dis- cussion by the parents, as whether a new school- house shall be built, that may be profitably dis- cussed in the class. Such discussion should always be fair and candid, the object being not to triumph in debate but to contribute toward the true solution of the problem. The rules of debate should be fol- lowed, and the class should have access to Gore's ' ' Manual of Parliamentary Practice ' ' or some similar work. The most important rules arc these : 1. There must be a chairman, whose rulings are to be promptly obeyed. 2. No one may speak until he has arisen, ad- DEBATING CLUBS 21 dressed the chairman, and been recognized by name. 3. The one thus recognized "has the floor"; that is he must be allowed to speak without in- terruption so long as he uses proper language, confines himself to the question, and does not exceed the time limit, if there be one. A debating club may be formed outside the class, and if well managed is likely to prove of great value to its members. It is said that nearly all the men who have had powerful influ- ence as English statesmen were trained in the debating clubs of Oxford and Cambridge. It might be well to turn the school for an hour or two into a school meeting (see page 54). The forms will be found in the code of Public In- struction (1887 ed., pp. 180-195). The pupils will elect a chairman and clerk, trustees, and col- lector, and consider the powers named oh page 54. A town-meeting (see page 31) or a mock court (see page 263) may be held in like manner. Pupils are advised to attend such meetings and become familiar with the actual proceedings. CHAPTEK II THE TOWN In most of the United States the unit of civil government is the town. In the case of schools or of roads the town is sometimes divided into districts (see page 48), but this is only for special purposes ; for general civil powers the town is the unit. The word town comes from the old English word tun, meaning the fence or stockade with which our German ancestors long before their invasion of England in A. D. 449 used to sur- round their groups of houses and the untiUed land or mark about them, for purposes of defence. The town of the low- Dutch tribes that settled in England was originally the stationary home of a clan (from clann, a Gaehc word meaning children, descendants), which grew up from a nucleus of one or more families wandering about together in search of food and united for aggres- sive or defensive warfare. This prevailed under different names among all uncivilized peoples; among the AmericaD Indians a group of clans was called a tribe (from Latin trihus, originally a third part of the people, afterward merely a (32) HISTORY 23 division). It developed into a union of those who claimed a common ancestor, and prevailed especially in Scotland and Ireland. The prefixes Max (son of), and Ua or 0' (grand- son of) arose in this way. Thus MacCarthargh (McCarthy) was the son of Cartach ; Ua Concho- bair (O'Connor) was the grandson of Conchobair. ''As they fought side by side on the field, so they dwelt side by side on the soil. Harling abode by Harling, and Billing by Billing, and each ' wick ' and ' ham ' and ' stead ' and ' ton ' took its name from the kinsmen who dwelt in it. In this way, th^ house or ' ham ' of the Billings was Billingham, and the town or township of the Harlings was Harlington. " i In this primitive Teutonic democracy, de- scribed by Tacitus as vicus and still prevailing in its essentials in the smaller cantons of Switzer- land, the lowest territorial unit was the hide (Anglo Saxon h'td) of land, estimated at 80 to 120 acres, and supposed to be enough for the maintenance of a single family. The lowest political unit was the enlarged family, the gens of the Romans, tracing descent from a common forefather ; and its territory was called the town. The cultivated land was fenced in and formed the town proper. In other lands it was known as the Gemeinde (Germany), the commune (France), 1 Green's Short History of the English People, 24: THE TOWN or the mir (Eussia). It has always been the smallest political unit with its own assembly and its own organization. Two other names are often used for the town. Originally the towns as thus introduced in England were democracies, but during the long contests that followed the invasion, though the inhabitants still had some of their former privi- leges, they all became subject to lords, and the towns were regarded as estates. In this sense they were then called manors (from Latin manere, to remain, the permanent residence of the lord and his tenants). When England became a Christian country the church assumed many of the functions of government, especially taxation, and divided the country into parishes (from Greek pcira and oikos, beside the dwelling), usually retaining the geographical boundaries of the towns'; so the name town lost its original significance, and now usually means there what we call a city ; it is often applied as here to village or city life as distinguished from country life. (See page 97.) In like manner, since the abolition in England in 1868 of compulsory church rates, the parish has ceased to be of importance there in local govern- ment. 1 In New England the town was originally a lEnc. Brit, xviii, 296. HISTORY 25 parish, practically a church congregation grouped about the " meeting house ", which served for civil as well as for rehgious assemblies. In some colonies only church members could vote. The size of the township was determined largely by the distances from which it was convenient to attend the central church, and when a new church was needed a new town was formed. Towns in Connecticut and the West were formed by congregations coming from Massachusetts, which made grants of land not to individuals but to groups of people who wanted to attend the same church. These towns were self- organized, self- governed, and had many features of the community proper, where everything is owned in common. Every town had its ''common", land open to all for pasturage ; and some towns had common wood- lands. In New York during the first 30 years under the Dutch there was little local government ; the local officers for such settlements as were formed on the Hudson and on Long Island were ap- pointed by the governor. In 1653 New Amster- dam was incorporated on the plan of Dutch towns, and some of the English towns on Long Island had organizations similar to those of New England. The town is now organized or its boundaries changed by the board of supervisors. 26 THE TOWN Whenever the EngHsh colonists in America retained the forms of the Enghsh church, thej called the towns parishes, the name disappear- ing when the church and the government be- came distinct. In South Carolina this term was used up to the civil war, and it is still used in Louisiana. The word township is often used synonymously with town, but it refers more specifically to the territory covered by certain boundaries. Con- gressional townships, established by national sur- veys, are 6 miles sqilare, and may have limited gov- ernments of their'own, under provisions differing in different states. There may be within the town- ship a more elaborate town government distinct from that of the township. A form of township government has sometimes been maintained, as in New Haven till recently, and in Chicago till 1901, long after the original town had been merged in a city, and it was impracticable to separate the interests of the town from those of the city. In the clan, in the tun, in the town and manor and parish, one feature has always been charac- teristic — the people have governed themselves directly and in the simplest way through formal meetings, where all had equal right to speak and to vote. This town meethig reahzes Abraham Lincoln's ideal of '^government of the people, by the people, and for the people ". POLITICAL IMPORTANCE 27 The Greek ecclesia, held in the agora, and the Roman comitia, held in the forum, were some- thing like modern New England town meetings. The first American town meeting was held in Dorchester, Mass., in 1633, and it was agreed to hold such meetings monthly, determining all matters relating to the town by a majority vote. The influence of the town meeting was consid- ered so important by Jefferson that he said: ' ' These wards, called townships in New England, are the vital principle of their governments, and have proved themselves the wisest invention ever devised by the wit of man for the perfect exer- cise of self-government and for its preservation. * ^ * W^e owe to them the vigor given to our Eevolution in its commencement in the Eastern states." Bryce says (i.591): "The town meeting has been not only the source but the school of democ- racy." But he remarks (i.567): "When, how- ever, the town meeting has grown to exceed seven or eight hundred persons, and still more when any considerable section are strangers, such as the Irish or French Canadians who have latterly poured into New England, the institu- tion works less perfectly, because the multitude is too large for debate, factions are likely to spring up, and the new immigrants, untrained in self-government, become the prey of wire-pullers or petty demagogues. ' ' CHAPTER III POWERS OF THE TOWN In law the powers of the town are pohtical and corporate. The town is a body politic (from Greek poUtes, a citizen), being, so far as pertain to the powers entrusted to it, the entire body exercising pohti- cal functions. . It is also a body corporate (from Latin corpor- are, to shape into a body); that is, in business matters it may act as a single person — may borrow money ; may buy, rent, and sell property for public uses ; may make contracts ; may sue and be sued ; etc. The three functions of government are (1) legislative (from Latin lex and lator, proposer of a law), law-making; (2) jiulicial (from Latin judex, judge) law-interpreting; and (3) executive (from Latin exsequi, to foUow to the end), law- enforcing. (1) Legislative Powers The legislative powers of the town are largely limited to passing by-laws (or town- laws, the Danish prefix meaning town, as in Derby) for the (28} POWERS OF THE TOWN 29 regulation of local matters, so as to preserve peace, good order, and the public health. These regulations are subordinate to the laws of the state and of the nation. Thus in 1901 the New York legislature passed a law restrain- ing local authorities from limiting the speed of automobiles to less than 8 miles per hour. The most important legislation committed to towns in New York is the power to determine whether Hcenses to sell hquor shall be granted. If the vote is for '' no license " the sale of hquor in the town except upon physician's certificate is unlawful. In New England the general levying of taxes is done by the town, but in New York and usu- ally elsewhere it is done by the county, the amount required by the State being seldom more than one-tenth of the amount raised. (See page 299). Strictly local expenditure is however deter- mined by the town, and the tendency is to in- crease its poAyer% recent laws giving it power to provide water and sewer systems, etc. (See page 45.) (2) Judicial Powers In the early days of the New England towns the judicial power was unlimited; the town of Plymouth executed one of its citizens for mur- der. But now the judicial power of the town is 1481:1897. 30 POWERS OF THE TOWN vested in the 4 justices of the peace, each of whom has power to hold a justice's court, where he hears and determines small cases, both civil and criminal. A justice may issue warrants (from old high German werm, to grant, hence something grant- ed) for the arrest of persons accused of crimes ; and summonses (from Latin sub, under, and monere, to warn) and subpoenas (from Latin sub, under, and j9oe?za, punishment) requiring persons to come to court to defend suits or to give testi- mony. He may try civil cases where the amount involved does not exceed ^200. While his crimi- nal jurisdiction is mainly over small offences, he sometimes examines persons charged with seri- ous crimes, and either acquits them or remands them for trial to a higher court (see page 77). (3) Executive Powers The powers of the town are mainly executive ; and as the voters of the town cannot get together every day to transact business, their principal duty at town meeting is to elect officers to do this executive work. In New York town meetings are held bien- nially in the odd years, on the second Tuesday of February ^ unless some other date is fixed by the ^ In Erie county the time is the second -Tuesday of March. In counties having more than 130,000 the time is that of the general election (34, 174:1901) and the term of office of those elected begins on January 1 following. TOWN- MEETING 31 board of supervisors, which must be between February 1 and May 1 (law of 1897), or at the time of the general election, the first Tuesday after the first Monday in November. Special town meetings may be called on peti- tion of 25 taxpayers, or by the town clerk. A town primary, or caucus (see page 176) is held by each of the principal political parties, and the nominations must be filed with the town clerk at least 15 and not more than 20 days before the town meeting. Vacancies arising may be filled by the party committee (see page 183), but must be filed at least 6 days before town meeting. The county clerk prepares the printed ballots containing all such nominations (see page 168). ^ The primary prepares a list containing the names of at least 2 persons qualified to serve as inspectors of election for each election district in the town, which list, duly certified, is filed with the town clerk, like the partv certificate of nomination. The Town Meeting The presiding officer is a justice of the peace (see page 36), and the clerk is the town clerk (see page 35). The election is conducted all day as described on page 166. The meeting is called to order at noon, and any voter may offer a pro- 1174:1901. B2 POWERS OF THE TOWN position. All are at liberty to discuss it, and the vote is usually by aye and no^ (see page 165). Questions of expenditure must be introduced before 2 p. m., and if the amount is more than 1500 it must be voted by ballot. ^ In such case the town clerk posts the proposition in conspicu- ous places at least 10 days before the meeting, and has printed ballots prepared both for and against. No town, county, village, or city may give or loan its property or credit to any individual, association, or corporation ; or become directly or indirectly owner of stocks or bonds in any asso- ciation or corporation; or incur any indebtedness except for town, county, village, or city pur- poses, including such provision for the aid or sup- port of its poor as may be authorized by law (250). For requirements as to voters see page 154:. Upon propositions to raise money only those are allowed to vote who own or whose wives own property assessed upon the last'preceeding assess- ment roll. 1 Women who own such property and have the other qualifications of voters except sex, are allowed to vote on such propositions. ^ The map on p. 486 shows how one of the coun- ties of the state is divided into towns. For table of the towns and cities of the state by counties, see p. 575. Turn to the map of the state on the inside of the first cover, and consider what would 1 598:1901. 2509:1901. TOWN MEETING 3B be the effect if there were no units smaller than the 61 counties there showrt, and consider what modifications in the town meeting would be necessary to adapt it to so large a unit. For analysis of town government and tabulated list of officers see page 1. CHAPTER rV THE TOWN OFFICERS Town officers in New York are mostly elected for 2 years, except the justices of the peace, who are elected for 4 years. For salary and other details see table, page 1. They are as follows : The supervisor (from Latin super and vi- dere, to oversee) is the chief executive officer of the town (179). Besides (1) representing the town on the county board of supervisors (see page 64), and county board of canvassers (see page 173), and (2) being chairman of the town board (see page 43), he (3) receives the school money of the town and pays it out by order of the trustees ; (4) receives and pays out all money raised for defraying town charges, except that raised for the support of the poor (see page 40), and for high- ways and bridges (see page 41); (5) keeps a record in a book for that purpose of all money received and paid out, and delivers it to his successor ; (6) represents the town in all suits in which it is a party, and in other transactions. Cases as to disputed valuation of school prop- (84) supervisor; town clerk 35 erty, where a district is partly in one town and partly in another, are adjusted by the supervis- ors of the two towns. For his duties in making up petit jury list see page 81. For his duties as to assessment roll see page 39. » The pay is for town work ^2.00 a day; and for county work $4. 00 a day, with 8 cents a mile for once going and returning from his residence to where the sessions are held. He also receives a percentage for paying out school money, and for copying the assessment roll (see page 39) 3 ceats a hne for the first 100 written lines, 2 cents a hundred for the second 100, and 1 cent a line for aU in excess of 200. In counties having more than 130,000 and less than 150,000 the members of the board of super- visors receive an annual salary of 8250; with additional pay for such services as shall be a town charge, with mileage as above, and fees as above, and 1 cent for each line of the tax-roll actually extended by them. ^ The town clerk is the recording officer of the town. Besides (1) acting as recording clerk of town meeting (see page 31), (2) calling special town meetings (see page 31), he (3) has custody of all the records, books and papers of the town; 34:1901. 36 TOWN OFFICERS (4) files the papers, chattel mortgages, certi- ficates of oaths, and other papers required by law (see page 535), and certifies to them when required ; (5) reports to the board of supervisors all money voted by the to^vn since their last meet- ing; (6) notifies persons of their election to office; (T) reports to the county clerk immediately the name of any constable elected and qualify- ing; and ^vithin 20 days the names of all persons except inspectors of election elected at any town meeting, and whether they have qualified, and in the case of constables, reports to the county clerk immediately the names of any elected; (8) immediately notifies the county clerk when- ever a vacancy exists in the office of justice of the peace, with the date and the cause ; (9) keeps the record of births, deaths, and marriages in the town ; (10) delivers to his successor all books, papers, etc., belonging to the office. The pay is $2.00 a day for the time employed, with fees for recording and filing papers. There are 4 justices of the peace (223) whose duties as (1) judicial officers of the town have already been described (see page 29). They also (2) take acknowledgment of conveyances of property (see page 535); TOWN CLERK; CONSTABLES 37 (3) administer oaths; and act as members of (4) the town board (see page 43), and (5) the board of health (see page 45). The term of office is 4 years, 2 being elected biennially. Their pay is mostly by fees, but they receive 12.00 a day when employed by the day. Before taking office they must qualify before the county clerk, and execute an undertaking with 2 sureties to pay over on demand to the person authorized to receive them all moneys received by them by virtue of their office. ^ They may be removed for cause (223). The constables (1) serve the warrants, sum- monses, and subpoenas issued by justices ; (2) arrest and have custody of persons accused of crime, and bring them before the justice for trial ; (3) collect money upon execution (see page 40), and if necessary sell property to satisfy the same ; (4) see thlat order is preserved in the com- munity ; (5) attend the higher courts »when so directed by the sheriff (see page 66). The number is determined by vote of town- meeting, but may not exceed 5. The pay is mostly by fees. In counties of more than 200,- 000 and less than 300,000 the fees for summon- 1398:1901. 38 TOWN OFFICERS ing a jury in civil or criminal action is 13.00 without mileage. ^ The word constable (from Latin comes com- panion, and stabulum, stable) meant in the mid- dle ages master of horse, and hence a high offi- cer in monarchical establishments. The consta- ble of France was the first officer of France, and had command of the army. The lord high con- stable of England was also commander of the army and keeper of the peace of the nation, with high judicial powers. The office was abol- ished in France in 1667, and the present powers of the constable in England are similar to those in the United States, where he is to the justices court what the sheriff is to the county court (see page 67). The 3 assessors (from Latin assidere, to sit by, as judges) besides acting (1) as fence-viewers (see page 46), (2) make an inventory of all the real estate (property in houses and land) in the town, record- ing the number of acres owned by each person, and estimating the real value of the land, includ- ing the buildings thereon ; (3) make an inventory of the personal property (all property other than real estate, such as money, stocks, bonds, mortages, merchandise, etc.), and after deducting just debts and exempt property assess it at its full value ; 1377:191. ASSESSORS ; COLLECTOR 39 (4) meet on the 3d Tuesday of August and on Sept. 1 of each year to hear complaints and to rectify mistakes in the assessment roll ; (5) on or before Sept. 1 deliver the assessment roll to the town clerk, to remain on view for 15 days, public notice being given ; (6) on or before Sept. 1 deliver to the super- visor a copy of the roll, making oath that it is correct according to the best information they have been able to obtain. The supervisor delivers the roll to the board of supervisors at their next meeting. The board of supervisors examines the rolls from the dif- ferent towns, equalizes and fixes the taxes for the county, issues warrants for their collection, and delivers them with the roll to the supervisor. He delivers the same to the collector on or be- fore Dec. 15, and delivers a copy of the same to the town clerk. A board of three State asses- sors afterwards takes these county roUs and equalizes fche taxation. See pages 208, 212. The collector (from Latin con^ together, and legere, to gather) (1) receives from the supervisor (see page 65) the tax-list and warrant; (2) notifies the public that he has received it, and where taxes may be paid ; (3) if the tax is not paid within 30 days calls upon the owner of the property and demands payment ; and if payment is still refused or neg- 40 TOWN OFFICERS lected may levy upon any personal property and sell it at public sale, refunding to the owner what- ever is received above the tax and cost of collec- tion. 1 When unable to find personal property to collect upon, he so reports to the county treas- urer. 2 Property thus sold may be redeemed under cer- tain conditions. (4) pays over the money collected to the super- visor and other officers named in the warrant ; (5) pays on or before Feb. 1 to the county treasurer (see page 69) all money collected for the county and State. The pay is by fees of 1 ^ upon taxes paid in during the first four weeks after the warrant is posted, and 5 ^ on those paid afterward. He gets extra fees where property is sold for taxes. The overseer of the poor looks after persons in indigent circumstances, and provides for them either at home or in the county poor-house, so far as the town is legally holden or may direct. Paupers who have no legal settlement in any town, that is are not legal residents therein, are supported by the county ; hence it is part of the duty of the overseer of the poor to ascertain whether the responsibility rests on the town or on the county. When a town pauper is sent to the county poor-house (see page 69), the town pays for his maintenance. In some counties all 1 159:1901. 2517.1901. OVERSEER OF POOR; HIGHWAY COMMISSIONER 41 paupers are supported by the county, as a county charge. When temporary aid is furnished, in the hope of enabhng persons to help themselves and not become a permanent burden upon the commun- ity, it is called out-door relief. It is always bet- ter to prevent poverty than to sustain it. The pay is 12.00 a day. The number may be one or two, as the town determines by vote. The town may also vote to have 1 overseer ap- pointed by the town board ; in this case the term of office is 1 year beginning May 1, and the salary is fixed by the town board, but may not exceed $1,000. Paupers in the whole Union in 1880 were 88,- 665, of whom 67,067 were inmates of the alms- houses, and 21,598 in receipt of out- door relief. This was only 1 to 565 of the whole population. In England and Wales in 1881 there were 803,- 126 paupers, to a population of 25,974,439, or 1 to 32 of population, i The highway commissioners besides (1) acting as fence-viewers (see page 46), (2) have the care and general supervision of the highways and bridges; (3) when directed by a jury called for that pur- pose may lay out new roads or discontinue old ones ; IB. i. 588. 42 TOWN OFFICERS (4) upon petition of all the owners of the prop- erty through which the road is to pass may lay out a road without a jury ; (5) meet with commissioners of other towns to consider laying out and altering roads extend- ing into both towns ; When the commissioners of different towns cannot agree, a board of 3 commissioners is ap- pointed by the county judge ;^ (6) divide the town into road districts, and ap- point an overseer for each (see page 49) ; (7) require reports from these overseers on May 1 of each year of repairs needed, and per- sonally inspect the same within 20 days, and superintend the repairs ; (8) assess each taxable inhabitant in each dis- trict and determine the amount of tax for each, and the amount of work needed oh the road ; (9) receive the reports and the unexpended money from the overseers, expend the road money as directed by the town, and report to the town board ; (10) inspect the highways and bridges between Sept. 1 and Sept. 15 of each year, and if it ap- pears that the required labor has not been per- formed, report to the supervisor what is due; whereupon, the supervisor, after a hearing, re- ports the same to the board of supervisors, and 1 162:1901. BOARD OF AUDITORS ; TOWN BOARD 43 the labor, estimated at $1.50 a day, is collected like unpaid taxes. Where a railway is seeking right of way through a town the matter is referred to the highway commissioners, and their responsibility may thus become very serious. For county roads see page 70 ; for side-paths see page 71. Where a pound (from Anglo-Saxon pz^ncZ, an enclosure) is maintained by public authority for the restraint of animals wandering astray or trespassing, there is a poundm aster, to keep beasts delivered to him until reclaimed and charges paid. Some States have also a field driver, whose duty it is to take stray animals to the pound. A board of auditors may be elected by towns that vote to have such a board. It hears and examines all claims against the town for money, and certifies their correctness to the supervisor. It also examines the accounts of the overseers of the poor and of the highway commissioners, and in certain cases, of justices of the peace and constables. Besides these officers directly elected, there are certain boards made up of persons elected for other purposes and acting on these boards ex officio (by virtue of office). The town board consists of the supervisor, who 44 TOWN OFFICERS is chairman, the town clerk, and the justices of the peace or any two of them. It holds at least two meetings annually at the town clerk's office. (1) On the Tuesday preced- ing the biennial town meeting and on the corres- ponding dates in each alternate year, to audit the accounts of all officers who receive and dis- burse money for the town. The board makes a statement and appends a certificate thereto show- ing the accounts of each officer, and files the same in the office of the town clerk open to the public for inspection. (2) On the Thursday preceding the annual meeting of the board of supervisors, to audit accounts and allow or reject charges, claims and demands against the town. Duplicates of ac- counts allowed and certificates for the same must be made and signed by the majority of the board. One of these duplicates is to be kept on file in the town clerk's office, and one is to be delivered to the supervisor of the town to be laid before the board of supervisors at their annual meeting. This work is done by the board of audi- tors (see page 43), where the town elects such a board. The board of supervisors causes the amounts specified in these certificates to be levied and raised upon the towns in the same manner as they direct to levy and raise for other town TOWN BOARD; BOARD OF HEALTH 45 charges. The town tax hst for each town is made by some one ordered by the board of super- visors, usually by their clerk. The town board appoints inspectors of election (page 48) and truant officers (see page 307). It is also authorized by law to fill vacancies oc- curring in the town offices. Such appoint- ments hold until the next biennial town meeting, except in cases, of justice of the peace when the term expires Dec. 31, succeeding, in which case the appointee fills only the unexpired term. It also has the care of abandoned ceme- teries ;i and on petition of a majority of the owners of taxable real property may establish a v^ater district and appoint water commission- ers ; ^ or establish a sewer system and appoint sewer commissioners. ^ In Erie county its powers are much extended. ^ The board of health is made up of the super- visor, jusfcicete, town clerk, and a citizen appointed by these. It appoints a health oificer, who must be a physician, and enforces sanitary regu- lations for the town, co-operating with the state commissioner (see page 205) when required. It supervises the registration of births, deaths, and marriages. 386:1901. 2 471:1901. 3348:1901. ^ggs-igoi. 46, TOWN OFFICERS The assessors and the highway commissioners constitute the fence yiewers, who (1) settle dis- putes as to partition fences ; (2) order changes and removals in fences ; (3) determine where fences or streams or other hne fences shall be placed, and divide the expenses among the owners ; (4) settle damages arising for trespasses of cattle on account of poor fences ; (5) appraise damages for sheep killed by dogs, etc. They serve only on application: The pay is $1.50 a day. Where the township system of schools prevails town officers are elected to take care of them — in Indiana a trustee ; in Pennsylvania a board of school directors ; in New England a school com- mittee. In some states there are surveyors of lumber, who measure and mark lumber offered for sale ; and sealers, who test and certify weights and measures used in trade. Bonds (from Sanscrit bandh, to bind) are re- quired of the supervisor, justices of the peace, constables, collector, overseer of the poor, and highway commissioners, since all of them handle money belonging to the town, and the town must be secured against loss. The following oatli of office must be taken BONDS ; OATH OF OFFICE 47 (277) by all officers before they enter upon their duties : *' I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the State of New York, ' and that I will faithfully discharge the duties of the office of , according to the best of my ability. ' ' A further oath must be taken (278) that the officer has not used bribery, which is a felony ^ (280). No other oath, declaration, or test is required as a qualification for any office of public trust (278). The county clerk administers this oath to the justices of the peace, and a justice of the peace to all other town officers except inspectors of election, one of whom administers it to the chairman, and the chairman to the others. iBi.444. CHAPTER V SUBDIVISIONS OF THE TOWN While the town is for most purposes the unit of government, it is in some states divided into districts for elections, for the care of roads, and for the management of schools. Election districts are established by the town board for the convenience of voters in towns so large that it is inconvenient to meet at a single poll. For each election district, whether the entire town or a subdivision of it, 4 inspectors of election are appointed by the town board within 30 days after each biennial town meeting, 2 from each of the lists furnished by the town primaries of the two parties which cast the highest and the next highest number of votes at the last preced- ing election 1 (see page 183). If more than one Hst is presented by either party, that is used which comes from the faction of the party was recognized as regular at the last preceding state convention of the party, or that is recognized by the state committee. ^ 2 poll clerks are appointed, by the town board. They keep the poll book, and enter by continu- 1 536:1901. 2536.1901. (48) ELECTION AND HIGHWAY DISTRICTS 49 ous numbers the names of the voter voting, and the number of ballots voted, compare the poll book with the register, and complete the tally sheet. 2 ballot clerks are appointed, by the town board. They deliver the official ballots to the voters, announce the voter's name and the num- ber of the ballot, and take care of the unvoted ballots. Each of these officers must be a quahfied voter in the district, of good character, able to speak and read the English language understandingiy and to write it legibly, with a general knowledge of the duties of the office. He must not be a candidate for any office voted for in the district ; or hold any public office except notary public, commissioner of deeds, assessor, justice of the peace, village trustee, water commissioner, over- seer of highway, or a school district office ; or be employed in any pubhc office or by any public officer except these. ^ The term of office is 2 years. Highway Districts We have seen (page 42) that the highway com- missioners divide the town into road -districts, and appoint for each an overseer or patlimaster. The pathmaster is to repair and keep in order all roads and bridges. He makes a list of the names 1 536:1901. 50 SUBDIVISIONS OF THE TOWN of the inhabitants of his district hable to work on the highway, and dehvers it within 16 days of his appointment to the town clerk for the use of the commissioner of highways. He notifies these persons when to work on the road, sees that their taxes are worked out or paid ; collects all fines and commutation money ; on or before Sept. 1 reports to the highway commissioner (see page 42) all names of delinquents and the amount due, charging $1.50 for each day's labor so due; and pays over to him the amount of money remaining in his hands unexpended. His pay above his time for taxes is 12 J cts. an hour. Whatever may have been the advantages of this system in the past, it is now wasteful and ineffective. The roads are '^ mended" usually by digging out the gutters and heaping the dirt into the centre. The natural soil when it is wet is muddy, when it is dry is dusty, and when it is frozen is rough. Most good roads are macada- mized (so named from a Scotchman named Maca- dam who invented the process) — that is, covered to a considerable depth with small broken stone, that wears down to a hard surface. But this is an expensive process and requires scientific super- vision entirely out of district reach. New York has now a good-roads law (see page TO), which provides that upon vote of the supervisors of a county the State will supervise and pay half the HIGHWAY AND SCHOOL DISTRICTS 51 cost of thoroughly made roads. Thus far the amounts appropriated by the legislature have been insufficient to meet the demand from all over the State for roads of this kind. Most States authorize the building of plank or macadamized roads by private corporations, which are repaid for the cost of construction and maintenance by toll (from the Anglo Saxon word meaning what is counted out in payment), which is paid by travellers at certain points marked by gates. The modern tendency is to change toll-roads into public roads. The importance of good roads was recognized in the provision of the United States constitu- tion (32) giving to congress power ' ' to establish post-offices and post-roads ' ' ; and though the railway has made the necessity less, it is still a serious matter of public economy that the high- ways should be well made and well kept. School Districts The school district is a survival of the early schools of New England, where each parish (see page 24) had its school as well as its church, the pastor often being the school teacher. When other sects got foothold this was no longer prac- ticable, and the school became entirely separated from the church. As the towns grew to include several parishes, they also included several school districts, which for a long time retained their individual control. 52 SUBDIVISIONS OF THE TOWN New England, New Jersey, Pennsylvania, In- diana and many other states have discarded the district system, on the ground that the unit is too small to secure intelligent and economical naanagement, to provide satisfactory instruction, or to give numbers enough to attain the best re- sults. Many efforts have been made to establish the town system of schools in New York, but thus far without success. Some approximation toward it has come from the law permitting small districts to contract with larger districts to instruct their children, the smaller district usu- ally providing a conveyance to carry the children to the school-house. In the western states, where the rectangular townships of 6 miles square prevail, it is cus- tomary to build roads on the mile lines, and put a school-house on each alternate cross-roads, giv- ing 9 for the town. The 16tK and sometimes the 36th sections in each township were in 17 8 T set by congress for school maintenance. Georgia makes the entire county a school dis- trict for the support of public schools. The annual meeting is held on the 1st Tuesday in August. But if a district contains 300 or more children of school age, the election of school district officers must be held on the following day. Special meetings are called by the trustees. The SCHOOL DISTRICTS 53 clerk or some other person, if the office be vacant or he refuses to act, must serve a notice upon each quahfied voter at least 5 days before the day of the meeting, stating the purpose for which the special meeting is called ; no other business can be transacted. A qualified voter is any person, man or woman, (a) of 21 years of age, (b) who has resided in the district for the preceding 30 days, (c) a citizen of the United States ; and (1) who owns or hires or holds under contract to purchase real property in such district liable to taxation for school pur- poses, or (2) who is a parent of a child of school age that has attended the district school at least 8 weeks within one year preceding; or (3) who has permanently residing with him or her any such child; or (1) who owns and was assessed on the last preceeding assessment roll of the town exceeding $50 of personal property, exclusive of such as is exempt from execution. The voter piust have all the qualifications (a), (&), (c); and one of the qualifications (1), (2), (3), (4). When the right to vote depends upon chil- dren not their own residing in a family, only the head of the family may vote. Unlike the election district and the road dis- trict, which are mere convenient subdivisions of the town, the school district is a political unit, with legislative and executive powers. (Com- pare with powers of the town, page 28). 54 SUBDIVISIONS OF THE TOWN Its legislative powers include principally (1) the erection and care of school buildings, (2) fixing the amount of school tax for the coming year, (3) selection of text-books, and (4) entering into contract with another school to instruct its chil- dren. The first two of these powers are not unlim- ited. The school commissioner has power to order repairs upon the school-house, or to con- demn it and order another built ; nor can it vote more than S500 for building, hiring, or purchas- ing a school-house without approval of the school commissioner, or build a school-house un- til he has approved in writing of the plans for ventilation, light, and heating. If it fails to vote money enough to pay such teachers wages as the trustees choose to fix, the trustees may levy a tax to cover the amount required. The minimum length of the school year is fixed by law at 32 weeks. Its executiye powers are exercised through the following school officers, all elected for one year, except in the case of trustees where there are 3. All these officers must be (1) residents of the district, (2) qualified to vote at its meetings, and (3) able to read and write. No school commis- sioner or supervisor may be trustee, nor may a trustee be clerk, collector, or librarian. A major- ity vote is required (see page 161). SCHOOL DISTRICTS 55 There may be 1 trustee elected for one year, or 3 elected for 3 years each. The trustee is the chief executive officer of the district, with the sole power of making contracts and accepting work done. He has custody of the school prop- erty, employs the teachers, ^ admits and expels pupils, establishes the regulations and courses of study, raises by tax the money needed, and makes the annual report. In the hiring of teachers he is limited to those legally qualified, that is, holding either (1) a uni- form certificate, (2) a training class certificate, (3) a normal diploma, (4) a college graduate cer- tificate, (5) a state certificate, or (6) a temporary license. This licensing of teachers is under con- trol of the state superintendent (see page 309). ^ He gets no salary, but may be fined |5 if he refuses to serve, and $10 if he undertakes to serve and neglects his duty. He may be removed by the state superintendent for neglect or disobedi- ence of orders. In fixing the course of study, he is required to provide temperance instruction. The law requires that the nature of alcoholic drinks and other narcotics and their effects on the human system shall be taught to pupils between the 3d year primary and the 2d year of the high school by 1 B ii.286. 2 For further particulars see Bardeen's School Law, pp. 89-104. 56 SUBDIVISIONS OF THE TOWN text-books in the hands of all pupils, and in the three lowest grades orally. ' This law has caused extended and warm dis- cussion. Its friends claim that it is a needed protection of the young against intemperance; its enemies, that it calls their attention to that of which they might better remain in ignorance. The clerk makes out and keeps the records of the school district, posts notices of meetings, calls a special meeting when office of trustee is vacant, notifies persons elected to office, etc. He receives no pay for his services, but is fined $50 if he neglects to deliver the records to his successor. The collector must give a bond approved by the trustee. He receives from the trustee the tax warrant, collects the taxes, levies upon and sells personal property for unpaid taxes, and pays out money received upon order of the trustee. He returns the tax-list and warrant to the trustee, to be given to the town clerk for preser- vation ; and reports his collections, receipts, and disbursements to the school meeting, and on or before the 1st Tuesday in March to the supervisor. He is paid by 1 ^ upon money received within 2 weeks of posting the notice and 5 ^ on sums collected thereafter. If he levies upon property, he receives 10 cts. a mile for travelling expenses. A vacancy in the office is filled by the trustee. UNION SCHOOL DISTRICTS 57 A treasurer may be elected by majority vote as custodian and disbursing officer of all school money, paying out the same on order of the trustee. A librarian is appointed by the trustee, usu- ally a teacher, to have charge and supervision of the library. Tacancies in the office of trustee are filled by election if held within 30 days ; otherwise through appointment by the commissioner. Those in other offices are filled by the trustee. A union free school may be established in any district by a majority vote at a meeting called for the purpose. A board of education of not fewer than 3 or more than 9 is elected in place of the trustees of the ordinary district. It has, besides all the powers of trustees, the following additional powers : (1) to elect the clerk and treasurer, (2) to fill vacancies on the board, (3) to adopt text-books, (4) to purchase furniture, — powers that in com- mon districts belong to the district meeting ; (5) to purchase apparatus, (6) to repair school- houses and furniture, (7) to provide fuel and other necessaries, without the restriction in amount imposed on trustees ; (8) to hold gifts and legacies, (9) to remove 58 SUBDIVISIONS OF THE TOWN members of the board, to appoint (10) a superin- tendent (in villages of 5,000), and (11) an attend- ance officer, (12) to establish truant schools, (18) to levy without vote of the district a tax for con- tingent expenses — powers that do not exist in the ordinary district. The school meeting also has greater powers than in an ordinary district, including (11) to vote a tax for a school- house without limit or approval of commissioner, (15) to provide free text-books, and (16) to establish an academical department (see page 322). For further details as to legal provision for education see page 304. For table of district officers see page 2. CHAPTEE VI THE COUNTY As in the Eoman system several gentes brought together formed the curia, so m the Teutonic and Enghsh systems, several towns were brought together to form the hundred, and disputes be- tween the towns were settled at the hundred moot, like the town moot or meeting, but on a larger scale. Mr. Green says in his " Short History of the English People " : " The four or ten villagers who followed the reeve of each township to the general muster of the hundred, were held to represent the whole body of the township from whence they came. Their voice was its voice, their doing its doing, their pledge its pledge. The hundred moot, a moot which was made by this gathering of the representatives of the town- ships that laV within its bounds, thus became at once a court of appeal from the moots of each separate village, as well as of arbitration in dis- pute between township and township. ' ' The name must at first have meant a numeri- cal hundred of some kind, but lost its proper force aud was used in a purely conventional sense as a geographical division. (59) 60 THE COUNTY It fell out of use in England, but appears in Delaware, where it is used instead of town for the divisions of counties (see next page). A group of hundreds formed a tribe or ga or shire ; as the town was a stationary clan, so the shire was a stationary tribe. In early Enghsh history this corresponded with an American state, having a fuU and separate organization. It might be independent, it might lean upon a stronger neighbor, it might become a division of a kingdom, but it was the lowest group that had a distinct political power. The English nation grew out of the union of these shires, which retained their self-government long after they had been united under one king. The name shire comes from shear, and means something shorn off. The old tribal divisions were wiped out in the Danish contest of the 9th century, and in the English re-conquest the land was mapped off or sheared out into shires, grouped conveniently about a central town, and bearing its name instead of that of the ancient tribe, as Worcestershire. The town in which the public buildings of the county are erected is known as the sliire town. In use the word shire became supplanted large- ly by the corresponding French word county, the territory held by a count, (from French comte, HISTORY 61 Latin comes, a Gompanion, a title never intro- duced into England, though the wife of an earl is called a countess). As such it has spread itself through all lands ruled, settled, or influenced by England. In the southern states the county became the unit, if indeed there could be said to be an inde- pendent life below the* state. 1 Divisions of the county were only for minor conveniences, as for election districts, for limiting the jurisdiction of a justice of the peace, etc. These divisions were sometimes called towns, but in Alabama and Kentucky they were called precincts, in Georgia militia districts, in Tennessee civil districts, in Virginia and West Virginia magisterial districts, in Louisiana wards or parishes, in Mississippi beats, in Delaware hundreds. The school is now becoming the nucleus of self-government in the south, as the church was in New England 200 years ago. ^ While in l^ew England the town has a distinct name, with historical associations of which the inhabitants are proud, in the south these associa- tions all cluster about the county. In the western States so many of the emi- grants were from the south that the New Eng- land township system was largely modified by the county system. ^ IB i.563, 561 586. ^ ^ i.571. 3 3 j 573, 62 THE COUNTY In New England each county had its own regi- ment of mihtia, as each town had its own com- pany, but in general the county was not an im- portant division. In New York the Dutch settlers created towns and manors and villages, but no counties. After the English conquest in 1664: a new system grew up, giving the county more prominence than in New England, and the town more prominence than in the south. Originally the county busi- ness was mostly judicial; but in 1703 a board of supervisors was constituted, made up of one supervisor from each township. This board has control over the towns, but is made up of repre- sentatives from the towns, thus forming in the fullest sense a represeutatiye goyernment. We have seen (page 26) that the township sys- tem is a pure democracy, and that the representa- tive system was introduced when a few of the villages went to the muster of the hundred (see page 59). The sliire-moot was a still more important assembly. It was attended by a reeve and 4: free- men from every hundred, deputed to act on be- half of those whose interests they had come to guard. '' The shire-moot was also the general folk-moot of the tribe, assembled in arms, to whom their leaders referred the decision of ques- tions of peace and war ' ' ; but for minor matters REPRESENTATIVE GOVERNMENT 63 it was not practical for the entire tribe to assem- ble, and it was found wiser for each town to send men who knew its particular needs and would endeavor to secure them. New York by putting more of the important business under county control has a government less purely democratic and to a greater extent representative than New England. Counties are organized by the legislature. Pennsylvania carries the county system still farther. Instead of a board of supervisors elected one from each town, it has a board of three commissioners elected by the county at large. In New York each town of the county, large and small, has an equal representation in the board of supervisors. In Pennsylvania each town is represented only proportionally to its number of voters. The difference is the same as that between the representation of states in the United States senate and house (see page 453). Where one of the towns in a county is very much larger than the others, usually part or aU of it becomes a city, and each ward of the city elects a supervisor. Hence when city charters are granted by the legislature the towns are care- ful to see that the number of wards created does not give the city disproportionate representation. In 1901 the town of Oneida, Madison county, became a city. The charter as originally drawn 64 THE COUNTY provided for 6 wards, but the number had to be reduced to 3 before the charter was granted. In New England the towns used to send each one member to the legislature, and this is still the case in Connecticut, where, in 1901, 12 cities with a population of 484,000 sent the same num- ber to the house of representatives as 12 towns with a population of 8,800. The tendency of such representation is to make action provincial, the members caring more for the interests of their own section than for that of the state at large. Statistics of the counties of New York with map are given on the first two inside cover pages of this book, and the counties as they existed during the revolutionary war on the following page. The town is its own legislature, but the legisla- ture of the county is the board of supervisors (257). Of the duties of the supervisor as a town officer we have already spoken (page 34), and of the duties of the board of supervisors as a board of county canvassers we shall speak later (page 173). We are now to consider its legisla- tive duties. These are : (1) to pass upon the abstracts of accounts as audited by the several town boards or boards of auditors (see page 43) ; (2) to receive the reports of the county officers BOARD OF SUPERVISORS 65 and to audit their accounts and all lawful claims against the county ; (3) to equalize the assessed valuation in the towns, to apportion the state and county taxes (see page 300), to cause tax lists and warrants to be made out, and to issue warrants to the collec- tors (see page 39) ; (4) to fix the salary of 'the various county officers ; (5) to make appropriations for county expenses (247); (6) to divide the county into towns, and into assembly and school comraiesioner districts ; (T) to fix the time for town meetings (page 31) ; (8) to appoint at its pleasure a county engineer (see page 70). It has supervision of the county houses, jails, and other county property and may change the county seat. The board is organized by the election of a chairman; and of a clerk, who records and pub- lishes the proceedings, and sends to the state comptroller (see page 200) on or before the 2d Mon- day in December the aggregate and equalized valuation of the real and personal estate in each tax district in the county and the amounts of tax assessed for all purposes, with valuation and other statistics as to corporations. CHAPTER VII THE COUNTY CIVIL OFFICERS The other officers of the county are elected at the general state election (see page 165). The term of office is 3 years, except in the case of the county judge and the surrogate, whose terms are 6 years (for reason, see page 262) ;i and of the loan com- missioners (see page 74) who are appointed by the governor, for 2 years. In New York and Kings counties the terni is 2 or 4 years (260). Yacaiicies in the offices of county judge, surro- gate (219); sheriff, district attorney, and coroners are ffiled by the governor ; county treasurer and superintendent of the poor, by the board of super- visors ; school commissioner, by the county judge. The sheriif is the executive officer of the county. He may not hold any other office during his term, and so great is his power that to prevent abuse of it he is not eligible for re-election. He may be removed by the governor upon charges (260). The headman of the old English township was called the town reeve, and of the shire, the shire reeve, shortened into sheriff. He is the chief ministerial officer of the court. ^ The corres- ponding officer of the feder.al courts (see 284) is called marshal. 1 In Greater New York 14 years. ^ g i.570. (66) SHERIFF ; CORONERS 67 His duties are (1) to execute civil and criminal processes — that is personally or by deputy, to serve legal papers, summon jurors, levy execu- tions, sell property levied on, etc. ; (2) to be present at the drawing of jurors (see page 82), and cause them to be legally summoned ; (3) to attend the courts held in the county, and have custody of the prisoners, — he is '' the right arm of the judge ' ' ; (4) to have charge of the jail and the prisoners ; (5) to keep peace in the county, for which pur- pose he may summon and compel the assistance of citizens when necessary. He has the appointment of deputies and is responsible for them. He is paid by fees ; or in some counties by salary, or by salary and fees. He gives a bond with 2 sureties for $15,000, which must be re- newed each year. As headman of the county the sheriff in early English times had judicial functions, and in 1194, as a check upon the sheriff, a law was passed directiij^ the counties to elect coroners (from corona^ crown, because this officer was originally prosecuting officer for the crown), to hold court in the name of the king. This tradi- tion remains only in the 3d and 4th of the duties named below. New York counties have 4 cor- oners who (1) look after and inquire into all mat- 68 COUNTY CIVIL OFFICERS ters concerning persons slain, or who have died mysteriously ; (2) subpoena witnesses, ascertain as far as possible all the facts in regard to the death, and issue warrants for arrest of parties presumed to be guilty, to be held for the grand jury, and report to the district attorney ; (3) in case of a vacancy in the office of sheriff, and there being no under-sheriff, one of the cor- oners designated by the county judge performs the duties of sheriff until said vacancy be filled by election or appintment ; (4) have power to arrest the sheriff upon crimi- nal processes. They are to make reasonable charges for hold- ing inquests, to be audited by the board of super- visors. For performing the duties of the sheriff they receive the same fees as the sheriff. When a coroner cannot be secured for an inquest, a justice of the peace may act. ^ The county clerk is the recording officer of the county. He (1) records deeds, mortgages, satisfac- tion papers, etc., and has custody of the records. In New York, Kings, and Westchester coun- ties there is a separate officer called the register (257), who has charge^ of the recording of deeds, mortgages, etc. ; (2) prepares the ballots for elections, is clerk of the board of county canvassers (see page 173), 1 379:1864. 2174.1901. COUNTY CLERK AND TREASURER 69 and records the election returns, and transmits the results to the secretary of state ; (3) draws the grand and petit juries (see page 81), and makes return of the same ; (J:) is clerk of the courts held in the county (225), administers the oath to jurors and witnesses, and records the judgments. He is paid by fees or by salary, and may be re- moved on charges by the governor (260). The county treasurer (from Greek thesauros, a store laid up) is the financial officer of the county. He (1) receives the money collected by the town collectors for state and county taxes ; and may sell lands for unpaid taxes ^ (see page 40) ; (2) pays over to the comptroller (see page 200) the amount due the state ; (3) pays out the amount due the county, as directed by law ; (4) receives from the comptroller the school money due the county, and pays the same over to the supervisors, as directed by the school commissioner's certificate; (5) makes annually a general financial state- ment to the board of supervisors ; (6) when his time has expired deUvers his books and county funds to his successor, upon forfeit of 81,2502. ^g tohquorlaw, see page 203. His salary is fixed by the board of supervisors 1 517:1901. 2 113:1901. 70 COUNTY CIVIL OFFICERS at least 6 months before election, and cannot be increased or diminished during his term of office. The superintendent of the poor (there may be 1 or 3) has the general charge of the county poor- house, appoints persons to take charge of it, ad- mits inmates (see page 40), and may send insane persons to the state asylums at the county expense. In counties where there are no adequate hos- pital accommodations for indigent persons requir- ing treatment, he may upon certificate of a physician approved by the board of supervisors send at the expense of the county such persons to the nearest hospital approved by the state board of charities (see page 206). The town overseer of the poor (see page 40) may do the same at the expense of the town. ^ He renders to the board of supervisors an an- nual account of his action and his expenditures. He is paid by the day, or by salary fixed by the board of supervisors. A county engineer may be appointed by the board of supervisors, which fixes his salary. The term of office is 3 years, but he may be re- moved at the pleasure of the board. ^ His duties are to construct highways under the good roads law, ^ under which the board of super- visors may, and upon petition of the owners of a majority of the hneal feet fronting upon it 1103:1901. 2 239:1901, sus-iggs. sup't of poor : side-path commissioners T1 must, pass a resolution that public interest de- mands that a certain highway be improved. Thereupon the state engineer must investigate the need. If he approves, he recommends the kind of improvements he judges wisest, with esti- mate of the cost of the same, and forwards the plan and estimate to the board of supervisors. If the board vote that the improvement be made, it notifies the state engineer, who adver- tises for bids and superintends the construction of the road through the county engineer, if there be one, or if not through some competent person whom he appoints. Of the cost of the improvements 50 % is paid by the state, and if the road was built by peti- tion 15 ;;^ by the county and 35 ^ by the town in which the highway is located ; if it was not built by petition, 35 "}(> is paid by the county and 15^ by the town. The road shall thereafter be main- tained by the highway commissioners under direction of t]ie state engineer as a county road, the expense to be apportioned among the towns benefited. ^ (See page 50.) On petition of 50 resident wheelmen, the county judge of any county except Albany may appoint from resident citizens 5 or 7 citizens who are cychsts, as a county board of side-path commissioners, 2 each to serve 5 years from Jan. 1 of the year of appointment. 1464:1901. 2640:1900. 72 COUNTY CIVIL OFFICERS The board may construct and maintain side- paths along any public road or street, provided they obtain the written approval, in a town of the commissioner of highways or of the super- visor, in a village of the trustees, and in a city of the common council. Where there is a regu- larly constructed sidewalk they must obtain also the consent of the persons owning the abutting lands. The paths must not be less than 3 or more than 6 feet wide except by consent of the owners of the abutting lands. The board each year adopts a badge to be attached to the bicycle and determines the amount of fee, not less than 50 cents or more than 11.00,1 q^ payment of which the badge is given, to be attached to the left side of the front fork, and without such badge no wheel must be ridden upon a side-path. The money so received for badges constitutes a side-path fund, to be deposited with the county treasurer, and to be drawn on warrants signed by a majority of the board (1) for repairing existing paths, (2) for constructing new ones, (3) for planting shade- trees along the paths by consent of the owners of abutting lands, (4) for maintaining order on the paths, and (5) for the necessary expenses, including repayment of the necessary personal disbursements of the members of the board, who receive no other payment. 1 In Monroe county the fee is 25 cts. NOTARY PUBLIC ; SCHOOL COMMISSIONER Y3 No horses, cattle, or other animals may be driven upon a side-path, and no person must ride a wheel at a rate faster than 10 miles an hour when passing another wheelman or a pedestrian. Any person wilfully obstructing or injuring a side-path or violating any of the other provisions here given is guilty of a misdemeanor. A notary public is authorized to administer and certify oaths, and affidavits, to protest unpaid notes and drafts, etc. Their number varies. They are appointed for 2 years by the governor, with approval of the senate, and are paid by fees. A notary may act as notary in any other county than his own upon filing in the county clerk's office therein a certificate with a fee of 11.00.1 The County School Officers The school commissioner (large counties are divided into two, three, or four commissioner districts, with a commissioner for each) is the educational officer of the county. A trustee or member of a board of education vacates the office when elected commissioner, and the commissioner must not engage in teach- ing during his term of office. Women are eli- gible to the office. The salary from the State is $1,000, and the board of supervisors must allow 1657:1901. 74 COUNTY CIVIL OFFICERS and may allow more for travelling expenses. Vacancies are filled by the county judge. He (1) on the 3d Tuesday of March apportions the school money among the districts (see page 31), sending duplicate certificates of the appor- tionment to the county tr-easurer and to the state superintendent, and certifying to the supervisor of each town the amount apportioned to each district ; (2) visits the schools, and makes recommenda- tions as to courses of instruction, discipline, etc. (3) may condemn school-houses if he finds them unfit for use ; (4) upon evidence of moral character and abihty to teach grants to those who have passed the uniform examination certificates to teach, and may annul them ; (5) examines teachers classes, and grants cer- tificates to those who pass the examinations; (6) makes arrangements for teachers institutes ; (7) defines and alters the boundaries of school districts ; (8) on Aug. 1 makes a report to the state superintendent, including an abstract of the re- ports received from trustees. Two loan commissioners have charge of the investments of the United States deposit fund, under direction of the comptroller. They are appointed by the governor for a term of 2 years, SCHOOL COMMISSIONER ; LOAN COMMISSIONERS T5 and must give bonds. They receive as fees |- % on the first $25,000 or less, \% from $25,000 to $50,000, and J ^ on more than $50,000 (in New York \ % in sums exceeding $50,000). The United States deposit fund comes from a surplus in 1836 of 30 million dollars in the United States treasury, which congress distributed among the States,^to be deposited, or kept till called for by congress. The share of New York was about 4 millions. It is loaned through the state on mortgages of from $200 to $2,000 (in New York city, from $500 to $5,000) at 5 ^ interest for 5 years. ^ All such mortgages must be submitted to the supervisors at their annual meeting, with full accounts, and this board re- ports to the comptroller as to the sufficiency of the securities. Though never called for, or likely to be, this is called the United States deposit fund. 2 For further particulars as to school supervision and school funds, see page 308. For analysis of county government and tabu- lated list of county officers see page 2. 1360:188 2413.1897 CHAPTEE VIII THE COUNTY COURT The shire or county court of England was an important institution. Here were brought the cases that had proved too difficult for the hun- dred moot or court, and its decisions became features of the common law of England. Originally representative in their nature, with the growth of the power of land-owners these courts fell under control of the lords ; so when the king sent justices to hold courts through the counties, the change was welcomed by the people. The Magna Charta requires a king's justice to hold court four times a year in each county. These king's judges had opportunity to compare the customs in the different parts of the kingdom, and thus to evolve a system of law. After the king's justices of the peace had assumed control of the hundred court, aU the justices of the shire were called together four times a year and organized as a court of quarter sessions (so called because held four times a year), made up of the justices of the peace and the grand jury, which displaced the representative county court; and this was the form of court transferred to this country. (76) COUNTY JUDGE AND SURROGATE 77 The English county court had both judicial and legislative functions, and when the settlers in Massachusetts increased so rapidly that it was no longer possible for all the freemen to meet, it became the model for the representative assem- bly established. Though it has lost its judicial functions, the legislature of Massachusetts is still known as the General Court. At present the county court is the next in rank above the justices court (see page 30). It has appellate (from Latin ad and pellere, to drive to) jurisdiction over cases appealed from the jus- tices court. Its original jurisdiction, that is the jurisdiction in cases begun in this court, covers : (1) civil cases for the recovery of money when the sum claimed does not exceed |2,000 and both parties reside in the county ; and (2) criminal cases not extending to murder and extraordinary crimes. The county judge (1) is the presiding judge, and may by request of the judge of another county hold court in that county. (2) In counties of less than 40,000 inhabitants he performs the duties of the surrogate. (3) When commissioners of highways fail to agree he may appoint 3 commissioners to decide . the matter 1 (see page 42). The surrogate (from Latin sub, under, and 1 162:1901. 78 COUNTY COURT OFFICERS rogare to ask, to substitute^ because these duties were formerly performed by church officers) : (1) takes proof of wills (see page 540) of real or personal property ; (2) grants letters testamentary or administra- tive (see page 542) ; (3) attends to the settlement of the estates of deceased persons ; (4) appoints guardians for children without parents, and directs in the care and management of their estates ; (5) holds surrogate's court when required (218). The prolbate (from Latin probare, to prove) of a will is the proof before the surrogate that it is really the last will and testament of the person deceased. No county judge or surrogate may hold office after Dec. 31 of the year in which he reaches 70 years of age. Their salaries are fixed by the legis- lature. In counties having more than 120,000 population, they are not allowed to practise in a court of record or to act as referee. They must be attorneys and counsellors at law (see page 259). The district attorney is the attorney of the county, and must be a counseUor-at-law in the supreme court. He presents to the grand jury complaints made to him accusing persons of crime, questions the witnesses, draws bills of indictment when found (see page 82), and prose- cutes the cases in the county and supreme courts. DISTRICT ATTORNEY 79 In some states he is called the prosecuting attor- ney, or the state's attorney, since it is as the representative of the state and not of the county that he is conducting a prosecution. If he fails faithfully to prosecute a person charged with hribery he may be removed by the governor (260). His salary is fixed by the supervisors. He is allowed to keep up his private practice, but is not allowed to take a fee for prosecuting a case as district attorney. It is one of the oldest and most fundamental principles of our system of government that a man is presumed to be innocent till he is proved guilty. He can not be compelled to testify against himself (112), and neither district attor- ney nor judge can decide that he is guilty. The district attorney makes out as strong a case as he can against the accused person, and the judge states what the law is, and whether certain acts would constitute guilt. But whether these acts were committed can be determined only by trial by jury (from Latin jus, an oath, because a jury is a body of men sworn to inquire into a matter and declare the truth), a body of men impanelled and sworn to inquire into and try any matter of fact, and to render their true verdict according to the evidence brought forward. This comes from Magn'a charta (see page 120): 80 COUNTY COURT OFFICERS '* No man shall be taken, or imprisoned, or dis- seized, or outlawed, or banished, or any ways injured ; nor will we pass upon him, nor send upon him [that is condemn him] unless by the legal judgment of his peers, or by the law of the land." There have been other methods of determin- ing guilt. Up to' 121 5, when it was condemned by the church, trial by ordeal was practised. If a man was accused before the court by 12 persons he might be thrown into deep water, in which if he sank he was proved innocent. The Nor- mans preferred trial by battle, where the accuser and the accused fought it out in the presence of the court, and victory showed which told the truth. The expression " judgment of his peers " is literally construed in England ; in 1901 Earl Rus- sell, a peer, was tried for bigamy by the house of lords, also peers of England. A man must be judged by those of the same rank. In the United States as there are no orders of nobility a man is tried by his peers if he is tried by im- partial men. This right is assumed to every citizen by both the New York (108) and the United States (90) constitutions. Even in a justices court (see page 30) 12 men are summoned by the constable and 6 are drawn for duty. In higher courts the THE GRAND JURY 81 process is more elaborate, precautions being taken to secure fair trial. Trials by jury are required in criminal cases, but in civil cases may be waived by mutual con- sent (113). It is said that when in 1066 William the Conqueror wanted information about his new kingdom he would summon 12 men of the neighborhood to give the facts under oath. It became a practice for the sheriff to call up 12 men to decide between claimants, and so it be- came the custom to summon 12 jurors for court trials. For centuries this jury duty was the only share ordinary citizens had in important governmental business. In England a distinction came to be made. The common freemen served on the ordinary jury, thereafter called petit jury, and the gentle- men of the county on a grand jury, which per- formed the different function of giving prelim- inary examination to the person brought before them on presentment either discharging him or holding him for trial by a petit jury. This sys- tem has come down to us (112, 117). No one can be held to answer for a capital or otherwise infamous crime except on indictment by the grand jury (112). Each year the board of su- pervisors apportions 300 names among the towns of the county in proportion to population. Each supervisor selects the names from his own town 82 COUNTY COURT OFFICERS and hands in a list of them, and these hsts are deposited in a box in the county clerk's office. Not more than 20 or less than 14 days before the court sits the county clerk in presence of the county judge and sheriff puts his hand into the box and without seeing any of them draws out 24 names. This constitutes the grand jury, Hst and not less than 16 or more than 23 are allowed to sit. The justice appoints their foreman, and they appoint a clerk who takes testimony. Only the witness and the district attorney may be present, and they must retire when the ballot is taken. If a majority finds the accused guilty it is said to indict him (from Latin in and dicere, to pro- claim). The district attorney draws up a bill of indictment and the foreman in presence of the jury hands it to the court, whereupon the in- dicted person unless already in custody is arrested by the sheriff. The power and responsibility of the grand jury being so great, most citizens are ready to serve, and appointment is considered an honor. In large cities the conviction of criminals would be difficult were not great care taken in the selection of the grand juries. In New York city the grand jurors are selected in September by a commission consisting of the chief judge of the court of appeals, the mayor, the recorder, THE TRIAL JURY 83 and one judge of the court. This commission selects from the petit jury hst 1,000 names, and in the middle of each month 36 names are drawn by the county clerk as above for the following month. The trial jury, often called petit jury (from French petit, small), is drawn for each case from lists made up once in 3 years by the supervisor, town-clerk, and assessors of the several towns, and deposited in a box in the county clerk's office, as in case of the grand jury. The county clerk draws as above 36 names for each term of court, and these serve for both the county and the supreme court. For each case the clerk in presence of the court draws out names until 12 satisfactory per- sons are obtained. A justice of the supreme court may order the drawing of an additional number of jurors, not to exceed 24 ; and at a trial term of either su- preme or county court the court may order the clerk to draw and the sheriff to notify any num- ber of additional trial jurors the court may think necessary. In some counties a commisioner of jurors re- ceives the lists of persons qualified to serve as jurors prepared by the supervisors, assessors, and town clerks of the towns and cities of the county; examines the names as to qualification; writes 84 COUNTY COURT OFFICERS certificates of those entitled to exemption ; makes an alphabetical list of those qualified; files the same in his ofiice and in that of the county clerk, and deposits in the jury box slips with the names written upon them. From this box are drawn the names of the trial and grand jurors for the courts of record, and sometimes fists are furnished for lower courts. On or before Dec. 1 he must return to the county clerk for fifing certified copies of the lists prepared by him of the persons liable to serve as trial jurors for the ensuing jury year. He may from time to time strike off the names of a per- son found by him to be unfit or disqualified. ^ In counties of 150,000 to 300,000 he is ap- pointed by the justices of the supreme court and the county judge ; and in counties except Onon- daga containing a city of not less than 60,000 or more than 120,000, by the county judge, sur- rogate, and county clerk. New York county has a special law. ^ A struck jury is sometimes ordered by the court when the case is intricate or it appears that an impartial trial could not be had by the ordinary jury. In this case the county clerk selects from the jury fist 48 names as likely to be impartial, after which the party who obtained the order strikes one name from the fist and the opposing 1 J73;1901, 602:1901. THE TRIAL JURY 85 party another until only 24 names are left. These 24 are summoned and the jury drawn from them as before. Unanimous agreement of the 12 jurors is re- quired in every case. If they agree the verdict is reported by the foreman. If they cannot agree, they are discharged and the case must be tried over or withdrawn. It is the custom in New York to keep a jury locked up till it reports. This puts it in the power of an obstinate juryman to compel his 11 associates to remain in confinement till the court chooses to discharge them, and has sometimes enabled him to bring the other 11 around to his side. In certain cases the judge has the power to set the verdict aside and order a new trial, but this entails expense and delay, and sometimes results in the release of a prisoner undoubtedly guilty. The qualifications of a juror are to be (1) a male citizen of the county ; (2) between 21 and TO years old; (3) assessed for personal property to the amount of $250, or owner of real estate to the value of $150, or husband of a woman who is the owner of real estate belonging to her in her own right ; (4) in possession of his natural faculties, and not infirm or decrepit ; 86 COUNTY COURT OFFICERS (5) of fair character, approved integrity, and sound judgment, and well informed. Yet the present method of selecting jurors in New York tends to discourage and even to ex- clude men of intelligence, one of the questions asked being whether the juror has read in the newspapers of the case to be tried, and whether he has formed an opinion. Hence few of the men whose judgment would be most trustworthy desire to serve on a trial jury, and those who accept the duty without trying to shirk it often do it at considerable sacrifice as a duty they owe as citizens. United States circuit and district courts (see page 278) draw both grand and trial juries from the jury hsts of the county where the case is tried. Persons over 60 years old may claim exemp- tion from sitting on juries, as also may post- masters, clergymen, physicians, teachers, editors and reporters on daily journals, members of fire companies or national guards, pohcemen, loco- motive engineers, and some others. The proceedings in county court are conducted hke those in the supreme court (see page 264). CHAPTEE IX THE VILLAGE The town and county government already out- lined has proved satisfactory for rural commu- nities. But when a large number of people live closely together, as in villages, new necessities arise. There must be adequate sewerage, and this usually requires an artificial water supply; the streets must be lit at night, and patrolled by regular policemen ; there must be apparatus to check fires, etc. All these things are expensive, and require skilled supervision. The rest of the town can hardly be asked to tax itself at town- meeting for expenditure by which the small por- tion of the town is benefited. Hence when a village becomes of considerable size, it asks to be incorporated (from Latin in and corporare, to form into a body) ; and gets from the legislature a charter (from Latin charta, a paper, something written and hence definite). ^ Sometimes a portion of a town is put under a special law with practically village privileges, as '' the area or territory known as Sylvan Beach ^ '. ^ The village (from Latin vicus (see page 23), while a part of the town and with the town a 1 B i.624. 2 813:1896; 361 :1901. (87) 88 * THE VILLAGE part of the county, has if thus incorporated some special functious. The government becomes municipal (from Latin munia, official duties, and capere, to take care of), ^ to a considerable degree self -governed. The inhabitants pay their share of the town and county taxes, but they levy further taxes upon themselves for village pur- poses. They make use of the county court and its officers, but frequently have a special court to take the place of the town justices court. In New York to be incorporated a village must be an entire town or a territory not exceeding one square mile, not including part of a city or village, and must have a population of not less than 200. ^ If 25 adult freeholders residing in the territory dehver to the supervisor a proposition to form a village signed by the persons proposing such in- corporation and depositing the sum of |50, within 10 days the supervisor must post in 5 public places in the territory, and twice in the newspaper pubhshed therein, a notice that the proposition has been received, and that on a given day, not less than 10 nor more than 20 days after such notice, a hearing shall be had. After such hearing the supervisor determines whether the proposition complies with the law, and if so orders an election to decide for or against incorporation. 1 See pa^e 97. ^ 541399^ INCORPORATION 89 If the vote is not to incorporate, the fees and expenses of the election are taken from the $50, and the remainder returned to those making it. New York has 4 classes of villages. An enum- eration of the inhabitants is taken .under direc- tion of the board of trustees in the month of January, 1902, and each fourth year thereafter. On the basis of this enumeration the villages are divided into four classes : the 1st class containing a population of 5,000 or more; 2d class 3,000 to 5,000; 3d' class 1,000 to 3,000; 4th class less than 1,000. For list of the 164 largest villages see page 570. The qualifications for a voter are in addition to those for voting at tov^n-meeting (see page 32), (1) that he has been a resident of the village for 30 days; and (2) for voting upon propositions to raise money, that he be the owner or husband of the owner of property in the village assessed upon the last assessment roll. ^ The election's held on the 3d Tuesday of March. The terms of office are all 1 year, except that of the trustees, which is 2 years, that of the asses- sors, which is 3 years, and that of the police jus- tice, which is 4 years. The following officers are elected by the people. The terms of office begin at noon on the first Monday after the annual election, except in case 1009:1901, 90 VILLAGE ELECTED OFFICERS of the police justice, whose term begins on Jan. 1 succeeding his election. The president is the executive officer and the head of the police force. He has no salary. The trustees (in cities of the 4th class 2 ; of the 3d class, 2 or 4 ; of the second class 2 to 6 ; of the 4th class, 2 to 8) are elected at large, that is from the city as a whole ; but a village of the 1st class may by vote at a special election decide to elect trustees by wards (see page 98). The board of trustees is made up of the presi- dent of the village and the elected trustees. It has the management and control of the finances and property of the village except such as is under the protection of the board of health or boards of commissioners. It may borrow money temporarily; fix the bonds of treasurer, collector, police justice, street commissioner, and such other officers as it requires to give bonds; establish fire limits, appoint pohcemen, designate an official paper; must cause a map of the village to be made and kept on file ; may give names to the streets, em- ploy an attorney, establish and maintain a village clock and scales, construct drains, establish and maintain a water supply, provide for lighting the streets, establish a scale of licenses, limit the speed of railway trains, etc. It is restricted hke cities as to amount of expenditure (see page 100). TRUSTEES; TREASURER; COLLECTOR 91 Unless the village votes not to impose a poll tax (see page 159), all men between the ages of 21 and TO residing in the village are liable to an annual poll tax of one dollar, except sailors and soldiers who have lost a leg, exempt firemen, active members of the fire department, clergy- men, paupers, idiots, and lunatics. The annual meeting of the board is held at 7 o'clock on the Monday evening following the annual election. Special meetings may be called by the president, or by any two trustees by written notice. Trustees have no salary except when acting as inspectors of election or as assessors. Upon petition of 25 electors 3 assessors may be elected at the annual meeting. Otherwise the trustees act as assessors. In villages of the 1st or 2d class the board of trustees may direct that assessors be elected. The treasurer is the chief fiscal officer. He receives the money belonging to the village and pays it out upon orders signed by the president and countersigned by the clerk. In a village of the 1st or 2d class by vote of the people this office may be fiUed by appoint- ment of the board of trustees. The collector has duties similar to those of the town collector (see page 39). A village of the 1st class may vote not to have a collector. 92 VILLAGE APPOINTED OFFICERS The police justice has substantially the duties of a justice of the peace (see page 36). Villages may establish or may discontinue this office. The following officers are appointed by the board of trustees. The board of trustees also fills all vacancies in the offices already mentioned. The clerk has the custody of the corporate seal, and of the books, records, and papers of the vil- lage ; notifies all officers elected of their election ; acts as clerk of the board of trustees and of each board of village officers. He keeps a record of their proceedings and an account of all orders drawn on the treasurer of the village. This office may be made elective by vote of the village. A village of the 1st or 2d class may have a deputy clerk. Women are eligible to either ofiice. The street commissioner has charge of the construction, improvement, and repairs of the public grounds, squares, parks, streets, culverts, wells, etc. He is ex-ofificio a member of the police department. This office may by vote of the village be made elective. A village engineer, may be appointed if so voted by the village. Policemen preserve order and arrest offenders against the law. POLICE JUJ^TICE; MUNICIPAL BOARDS 93 A board of health of not fewer than 3 or more than 7 has the powers and duties estabhshed by the pubHc health law (see page 205). A municipal board may be established with the powers of boards of fire, water, light, sew- erage, or cemetery commissioners; or these separate boards may be established, with duties corresponding with their names. In a village of the 1st class, boards of com- missioners or the municipal board may be com- posed of 3 or 5 members, but in other villages such boards must consist of 3 members. The term of office is 3 or 5 years, according to the number of members. Such existing boards may be consolidated or abolished by adopting a propo- sition therefor at election. None of these officers have salaries. The board of education usually has the powers of the board of education in union schools, but in the larger villages sometimes has more or less of the extendeli powers given to boards of edu- cation in cities (see page 107). In villages of only one election district (con- taining not more than 800 quahfied voters), the trustees and clerk act as inspectors; but in vil- lages of more than 800 inhabitants the trustees appoint 2 inspectors of election for each election district, of different parties (see page 48). 94 THE VILLAGE They may also appoint for each district a poll clerk and a ballot clerk. It is to be noted that the trustees have the power to make ordinances, corresponding with the town by-laws. Eligibility. — The president, trustees, municipal board, and fire, water, Hght, sewer, and ceme- tery commissioners must at time of election and during office be owners of property assessed upon the last preceding assessment roll of the village. This is not required of the boai"d of health. A person may not hold at the same time any two village offices except those of collector and constable, or water and light commissoner. We have seen that these multiplied officers are made necessary by new conditions arising from a closer population. As the village grows larger and the population still closer, it approaches the indefinite line between the village and the city. What are the advantages the large village would gain in becoming a city ? The principal difference between the govern- ment of a village and that of a city is that in the former the amount of taxes to be levied is fixed by the people, while in the latter it is fixed by the common council, corresponding with the village board of trustees. It is manifest that in the greater New York it would be impossible for the voters to get together to vote on propositions TOWN, VILLAGE, CITY COMPARED 95 to raise money ; even in places not too large for this it is much easier to carry appropriations for improvements through a common council than through a village meeting. So in general city government means more latitude of expenditure and more rapid improvements. Bryce says: ^' The motive for passing from town government to city government in general has been the same everywhere — to acquire a certain readiness of action, and to make more available the credit of the community in order to provide adequately for its own growth. "^ The principal differences in the powers of the town, the village, and the city, with the more important of the corresponding offiers,. are given below. poicer town taxation people by-law 1 people ordinance ) milage people board city council council officers supervisor board president board mayor council constables collector police treasurer* police treasurer justice of peace police jus- tice* poHce jus- tice 1 B i.624. *May retain the same name and duties as town officers. CHAPTER X THE CITY As the feudal lords of England spread out their power over the towns, the more thickly popu- lated villages built walls to preserve their hber- ties, and were called boroughs (from the Anglo- Saxon beorgan, to defend, a place strongly de- fended). By annexing outlying townships these boroughs sometimes grew as large as a shire, and had their own sheriff and what corresponded with a county court. The voting inhabitants were called burgesses. Freeman says that the borough '^ was simply several townships perched tightly together; a hundred smaller in extent and thicker in population than other hundreds. ' ' ^^ The meaning of the. word ' borough ' has undergone many changes. It seems at first to have denoted a walled town or city, but it was soon applied especially to such of them as pos- sessed some kind of organization for the trans- action of the local business. At a later period the term implied the right to be represented in parliament. The term ' municipal borough ' was introduced when the larger corporations were reformed in 1835, to denote a place to which (96) HISTORY 9T the new powers of self-government was applied, whether such a place were a parliamentary borough or not. It has now became nearly equivalent to '^municipality', * * * an organ- ization for the self-government of a city or town by means of a corporation empowered generally to maintain peace and order, and to manage the affairs of its inhabitants. " ^ A city (from Latin civitas, a city) was in Eng- land an incorporated town that was or had been the seat of a bishop. Thus while the voters of Oxford were called citizens, the voters of Cambridge were called burgesses, because Cam- bridge had never been the seat of a bishop. In the United States there is no such distinction, and city is the word usually employed. The word borough has been introduced in some states, as in Pennsylvania, where it is inter- mediate between a village and a city. It is used of the divisions of the Greater New York (see page 110). ^ In the development of the English borough or city a prominent part was played by the guilds (from Anglo-Saxon gild, tribute, a society where payment was made by members), brotherhoods of tradesmen and artisans who united to protect themselves and their property against the over- bearing lords and their lawless retainers. Event- lEnc. Brit, xvii.27. See page 88. 98 THE CITY ually the various guilds of carpenters, saddlers, grocers, butchers, etc., formed a united brother- hood and got control of the city government. Only members of guilds were allowed the privi- leges of citizenship ; ^ the aldermen (from Anglo- Saxon ealdor, an elder) or heads of the various guilds became the head men of the various wards and met in the guild hall, which presently be- came the city hall, sharing the executive power with the common council, elected at large by the citizens, as our senate and house of representa- tives share the powers of congress. In Ameri- can cities these two bodies are often combined, the aldermen form-ing, usually with the mayor, the common council, ^ which is the legislative body of the city, corresponding with the board of trus- tees of the village, but with enormously greater powers, having the right to appropriate money which in vOlages is left to popular vote (see page 89). The aldermen are usually elected one from each ward, partly on the theory that each will look after the interests of his own section, and partly because the party which is in a minority in the city at large may have a majority in cer- tain wards and thus secure representation. But the feeling is growing, on the one hand that aldermen should represent the whole city and not 1 Enc. Brit, iv.63. ^ b i.596. COMMON COUNCIL 99 parts of it, and on the other hand that city poh- tics should be strictly local and dissociated from national issues. If the man is for the office, not the office for the man, then the most capable men in the city should be chosen, without regard to the accidental circumstance of what wards they reside in. In some cities, including all the 2d class cities of New York, the president of the common council is elected from the city at large, as an additional number of the council. In these cities the president has a salary of $1,000, and the aldermen have |500 in cities of less than 100,- 000, and 1750 in cities of more than 100,000. ^ '' The functions of city governments may be divided into three groups — (a) those which are delegated by the state out of its general coercive and administrative powers, including the police power, the granting of licenses, the execution of laws relating to adulteration and explosives ; (6) those which though done under general laws are properly matters of local charge and subject to local regulation, such as education and the care of the poor ; and (c) those which are not so much of a political as of a purely business order, such as the paving and cleansing of streets, the maintenance of proper drains, the provision of water and light. In respect to the first, and to 1534:1901. L.ofC. 100 THE CITY some extent of the second of these groups, the city may be properly deemed a pohtical entity ; in respect of the third it is rather to be compared to a business corporation or company, in which the tax-payers are shareholders, doing, through the agency of the city officers, things which each might do for himself though with more cost and trouble. All three sets of functions are dealt with by American legislation in the same way, and are alike given to officials and a legislature elected by persons of whom a large part pay no direct taxes. " ^ The importance of electing honest and com- petent men to the Common council can not be over-estimated; yet it often happens that men whom no one would trust privately with hun- dreds of dollars find themselves elected to the council and in control of millions. Their powers are somewhat limited by the provisions of the constitution already quoted (see page 32), with the further restrictions that the total indebted- ness must never exceed 10 ^ of the assessed valuation of real estate, except for bonds to secure water-supply; and that the annual tax shall not exceed 2 ^ of the assessed valuation (250). But their authority is still enormous. The reasons that make a government of its own important for the village make it still more 1 B i. 599. 2 B I 503^ 618. ELECTIONS 101 necessary in the larger and more thickly popu- lated city. The interests involved are enormous, and the character of the administration is of momentous importance to every citizen. Yet at present the government of large cities is exceed- ingly unsatisfactory, because the control is in the hands of professional politicians, largely through the neglect of citizens to exercise their right to vote, especially at the primaries ^ (see page 176). In New York cities are incorporated by the legislature (275). There are no restrictions as to the number of inhabitants. In 1901 Oneida was incorporated with a population of Y,738, though there Vere in the state at the time 9 vil- lages with a larger population, four of them with more than 10,000 (see table, page 570). Whenever a decided majority of the voters de- sire it and there is no objection in the county (see page 63) the legislature will usually grant a city charter. For the pur|)ose of making general legislation practicable. New York cities are divided into 3 classes (276), the 1st class including those with 250,000 or more inhabitants; the 2d those hav- ing from 50,000 to 250,000; and the 3d class the rest. 2 For classified list of cities in New York see page 572. Election in cities of the 1st and 2d classes oc- iBi.632. 2Brycei.581. 102 THE CITY curs at the general state election in the odd- numbered years, so as to dissociate local from state and national elections. ^ The term of office is 2 years. There is great variety in the number and in the naming of city officers ; the list of the offi- cials and employes of the Greater New York published Jan. 31, 1901, contains 399 newspaper pages, 2 yet even this is said to be incomplete, and it is estimated that the city has 50,000 em- ployes to whom it pays 50 millions a year in sala- ries. Syracuse paid in 1900 ^902,079.61 in sala- ries, besides $205,467.43 for wages to day laborers. The following are the most important officers. The mayor (from Latin major, greater) is the principal executive officer and the head of the city government, corresponding with the president of the village. The modern tendency is to increase his powers, giving him a longer term of office, and entrusting to him the ap- pointment of many of the other city officers. Our forefathers were afraid of such one-man power as had been exerted by the governors of the colonies, and shrank from giving extensive power to any individual. But experience has shown that when city charters divide up the power they divide up also the responsibihty, and when evil results, each branch of the govern- IB i. 598. 2 The City Record, Jan. 31, 1901. THE MAYOR 103 ment throws the blame upon the rest. ^ Few mayors dare face pubhc opinion in the appoint- ment of men as unworthy as may easily slip through the machinery of a popular election, and a mayor who knows that all the praise or all the blame will be his, has every incentive to make his administration an honorable one. Moreover, the greater the responsibility, the greater care there will be in electing to the office ; so the tendency to increase the mayor's powers seems altogether healthful. ^ Over all the acts and ordinances of the com- mon council, the mayor has the right of veto (Latin, I forbid), and a measure so vetoed can not become a law unless repassed by the com- mon council by a two- thirds vote. Much un- wise legislation is prevented in this way, even when the political opposition to the mayor in the common council is much larger than the two- thirds required to pass the bill over his veto ; for the veto calls public attention to the evils of the bill, and often creates public sentiment against it which the council does not dare oppose. ^ In New York the attempt has been made to give him also a sort of veto power over legisla- tion. When a bill relating to a city has been passed by the legislature, the house in which it originated must at once transmit a certified copy 1 B i.614. 2 B i.603, 627 ; Hadley, 80. ^ g iQ THE STATE These were highly prized, and the American colonies learned to depend for a guarantee of their rights upon written charters. Plymouth was a mere voluntary association until in 1691 it became a part of Massachusetts under a char- ter granted by WiUiam IIT, in place of the char- ter revoked by James II. ^ The charter granted in 1606 by King James to the London and Plymouth companies contained a guarantee, '' forever irrevocable, unless by consent of both parties, that became the great bulwark of colonial rights and liberties in the contests of a later day." It said: ''Also, we do, for us, our heirs, and successors, declare, by these presents, that all and every the persons being our subjects, which shall dwell and inhabit within every and any of the said several colonies and plantations, and every of their children and posterity, which shall happen to be born within any of the limits and precincts of the said colonies and plantations, thereof, shall have and enjoy all liberties, franchises and immunities of free denizens and natural subjects within any of our other dominions, to all intents and purposes, as if they had been abiding and born within this our realm of England, or in any other of our dominions." Two of the original 13 colonies, Ehode Island iBi.458. THE FIRST AMERICAN CONSTITUTION 127 and Connecticut, after beginning as unauthor- ized associations obtained direct charters. These charters permitted the colonies to choose their own governor, to elect their own legislature, and to estabhsh courts of justice, with only the restriction that no law should be passed that was contrary to the laws of England. These char- ters proved so satisfactory that Connecticut was governed by hers, instead of by a constitution, till 1818, and Rhode Island tiU 1842. i It was because George III assumed to tax the colonists in violation of their charters and of what they believed to be the Enghsh consti- tution that the revolutionary war broke out. In 1639 the free planters of Connecticut had met at Hartford and adopted a constitution, the first on record, and many of its features were continued in the charter granted in 1662. In 1671 the New Plymouth colony pubhshed a re- vision of the laws under the title, " General Laws and Liberties of New Plymouth Colony", which had many of the features of the modern constitution. In 1669 John Locke prepared his '"' grand model", "The fundamental constitu- tions of South Carolina", which proved imprac- ticable and in 1693 was set aside. ^ When the revolution had made the American colonies independent of England, the power B i.4l6. 2 B i_445_ I OS THE STATE rested absolutely In the hands of the people, ^ and the continental congress advised the colonial governments to form permanent governments. Accordingly each colony, except Connecticut and Rhode Island, adopted a written constitution, or- daining the methods under v^hich it v^as to govern itself. '' A state constitution is not only independent of the central national government (save in cer- tain points already specified), it is also the funda- mental organic law of the state itself. The state exists as a commonwealth by virtue of its con- stitution, and all state authorities, legislative, executive, and judicial, are the creatures of, and subject to, the state constitution. " ^ " The people and the government must be clearly distinguished. The people make the con- stitution and the government follows it."^ These constitutions were based largely upon the charters. * All of them provided for the three departments of government, executive, legisla- tive, and judicial. Usually the colonial assembly became the house of representatives; a new upper house was elected in place of the governor and his council, who had formed the senate ; and a judiciary was created. All contain a " bill of rights" (see page 136); and various minor pro- visions define the boundaries of the state, pre- iBi.429, 400. 2^1.420. ^BiMS. *Bi.414. FEATURES OF AMERICAN CONSTITUTIONS 129 scribe qualifications of voters, and establish requirements for schools, corporations, etc. The first New York constitution quoted the act of the continental congress recommending the col- onies to form governments of their own, and the entire Declaration of Independence. Massachusetts still lives under her constitution of 1780, which has indeed been amended at var- ious dates, yet not to such an extent as to efface its original features. ^ Bryce says (i.299): ^' All the main features of American govern- ment may be deduced from two principles. One is the sovereignty of the people, which expresses itself in the fact that the supreme law — the con- stitution — is the direct utterance of their will, that they alone can amend it, that it prevails against every other law, that whatever powers it does not delegate are deemed to be reserved to it, that every power in the state draws its authority, whether directly, like the house of representatives, or in the second degree like the president and the senate, or in the third degree, like the federal judiciary, from the people, and is legally responsible to the people, and not to any one of the other powers. ^' The second principle, itself a consequence of this first one, is the distrust of the various organs 1 B i.440. l;^() THE STATE and agents of government. The states are care- fully safeguarded against aggression bj the cen- tral government. So are the individual citizens. Each organ of government, the executive, the legislature, the judiciary, is made a jealous observer and restrainerof the others. Since the people, being too numerous, cannot directly man- age their affairs, but must commit them to agents, they have resolved to prevent abuses by trusting each agent as little as possible, and sub- jecting him to the oversight of other agents, who will harass and check him if he attempts to overstep his instructions. ' ' These state constitutions have served as models for later state constitutions and for the United States constitution, but the recent tendency has been to extend the suffrage and other democratic features 1 and also to go into much greater detail, and to fix in this unyielding law such matters as private law, education, corporations, municipal indebtedness, etc. ^ Thus the lUinois constitution of 1870 requires warehouse keepers in cities of 100,000 or more to. make a weekly statement of the contents, and to keep a copy of the statement posted in the warehouse on which shall be noted each day the changes in the stores. Other state constitutions forbid duelling, and, like that of New York (120), 1 B i.439. 2 B |_ 428 433. THE CONSTITUTION AND STATUTE LAW 131 lotteries. The provisions regarding slavery in the first state constitution of Missouri led to the famous Missouri Compromise of 1820. Sev- eral states have constitutional provisions forbid- ding or regulating the sale of intoxicating hquors. 1 The Oregon constitution of 1857 for- bade a Chinaman to own or work a mining claim. Such constitutional provisions do not give the state additional power, but they hmit the power of the legislature. 2 Bryce says (ii.395): '' The people have more direct control over legislation through a convention making a con- stitution than they have over the action of a legislature. The delegates to a convention go straight from the election to their work, have not time to forget, or to devise means of evad- ing, their pledges, are less liable to be ' got at ' by capitalists. They constitute only one house, whereas the legislature has two. There is no governor to stand in the way with his veto. ' ' And again (1.421): ^'A state constitution is really nothing but a law made directly by the people voting at the polls upon a draft submitted to them. The people of a state when they so vote act as a primary and constituent assembly, just as if they were all summoned to meet in one place, like the folkmoots of our Teutonic iBi.423. 2 B i.250. 428. 438, 439. 1^2 THE STATE forefathers. It is only their numbers that pre- vent them from so meeting in one place, and obhge the vote to be taken at a variety of poUing places. Hence the enactment of a constitution is an exercise of direct popular sovereignty to which we find few parallels in modern Europe, though it was familiar enough to the republics of antiquity, and has lasted till now in some of the cantons of Switzerland. ' ' ^ The differences between a provision of the con- stitution and a statute law (a law passed by the legislature), may be thus summarized : A statute law 1. Must conform to the constitution. 2. Made by the legis- lature and the execu- tive. 3. May be repealed easily and quickly. The constitution 1. Supreme. 2. Made by delegates chosen by the people for that purpose. 3. Can not be re- pealed, but may be made obsolete by amendments. 4. Can be amended only by complicated process occupying much time. 5. Can not be set aside by the courts. 4. May be amended easily and quickly. 5. Is rendered nuU and void if pronounced by the courts unconsti- tutional. iBi.417, 448, 456. THE CONSTITUTION OF NEW YORK 133 New York has had 4 constitutions, those of 1777, 1821, 1846, and 1894. The last is stiU in force. That of 1777 was adopted by the con- vention alone ; the others have been ratified by the people. In 1777 a convention of delegates chosen by the 12 counties met at Kingston and on April 20 adopted the first state constitution. It was more liberal in its provisions than that adopted at the time by any of the other twelve states. '^ It guaranteed absolute freedom of religious worship to every citizen. ' ' Except in two particulars, its provisions have been mostly retained. (1) A council of appoiiitmeut was cre- ated, consisting of one senator from each dis- trict, appointed by the assembly, and presided over by the governor, who had a casting vote. This council appointed all the judiciary officers, from the chief justice to the justice of the peace. A convention was called in 1801, but not a vote could be obtained for the abolition of this fea- ture, which had proved a useful part of the machinery of the party in power. The conven- tion of 1821 abohshed this council, but retained its powers, dividing them between the governor and senate, and the two houses in joint session. The revision of 1846 made all judges and jus- tices of the peace elective by the people. (2) A council of revision was also created, con- i;U THE STATE sisting of the governor, the chancellor, and the judges of the supreme court, to which all bills l)assed by the legislature had to be submitted before they could become laws. This council was abolished by the revision of 1821, and its powers transferred to the governor (see page 21:1). Minor changes that have since been made are treated under the topics concerned. The con- stitution drafted by the convention of 1867 was mostly rejected by the people, and that drafted by the convention of 1894 is given in full (page 628). All references to this constitution are in heavy -faced figures referring to the para- graphs as numbered, and should always be com- pared with the original. Numbers below 110 refer to corresponding sections of the national constitution, and are cited for convenience of comparison. Amendments may be made at any time. They must first be passed by concurrent resolu- tion of both houses of the legislature, and again succeeding the next election of senators; after which they must be submitted to popular vote, and if a majority of those voting approve, they become a part of the constitution (287). Thus the amendment marked 169 a was adopted by the legislature in 1899, and again, after the elec- tion of senators in 1900, by the legislature of AMENDMENTS 135 1901. It was then submitted to the people at the general election of 1901 and adopted. The present constitution requires that at the general election in 1916 and every 20th year thereafter the question whether there shall be a convention to revise the constitution shall be submitted to the voters, and if a majority favor, . such a convention shall be called (288). The convention of 1894 which adopted the present constitution was made up of 3 delegates from each senate district and 15 delegates at large, and the members received the salary and mileage of members of assembly (see page 223). It met in Albany May 8, and adjourned after proposing the constitution Sept. 29. The con- stitution in its present form was adopted by the people at the general election, Nov. 6. The changes made are shown in the dates at the end of each section. CHAPTER XIII THE BILL OF RIGHTS The constitution begins by imposing certain limitations on the power given to the govern- ment of the state, applying to the legislative, the executive, and the judicial departments. These are a numeration in more detail of the * ' inalienable rights ' ' of the Declaration of Inde- pendence (see page 591), of which those there specified are life, liberty, and the pursuit of happiness. From the statute passed in the time of WiUiam and Mary (see page 123) this part of the constitution is commonly called the bill of rights. ^ It is found in most state constitu- tions, and is embodied in amendments to the federal constitution (84-92). ^ Aright is a just claim. A natural right — as the Declaration of Independence calls it, an in- alienable right — is a right inherent in all. A personal right belongs to one as an individual, such as security, liberty, religious freedom, acquirement of property, and may be civil or political. A civil right belongs to one as a member of a community, such as government protection. (136) HABEAS CORPUS 137 A political right belongs to one as a citizen, and in a republic involves his share in the gov- ernment as to vote. Political rights come from a constitution; vrithout this, poHtical rights do not exist (see page 119). Eights may be forfeited. A man's first right is to life, but he may lose this right if he takes the life of another. He has a natural right to hberty, but he may forfeit it if he wantonly transgresses the liberty of others, as by assault or theft. Rights may be lost through no fault of the person, as when a man loses his liberty if he becomes insane and therefore dangerous. But this forfeiting of these rights must be by due process of law (11 7, 88), which Daniel Web- ster defines as ^ ' the general law ; a law which hears before it condemns ; which proceeds upon inquiry, and renders judgment only after trial." (1) Personal Rights Security (from Latin se and cura, without care) is provided for by several restrictions upon the government, especially by the provision that the writ of habeas corpus shall not be suspended except when public safety may require it, and only in cases of rebellion or invasion (115, 45). A writ is a written instrument^ issued by a judge having competent authority, commanding the person to do or not to do some action speci- (MX PERSONAL KKIHTS; SEC^UKITY lied. A writ of habeas corpus (Latin, you may liave the body) is directed to the officer who detains a person, commanding him to produce the person at a certain time and place and show reason wliy he detains him. Unless jast and legal course is shown the person is discharged. This ensures that every accused person shall know the exact nature of the charge agaiost him, and prevents illegal detention or imprison- ment. Sometimes it enables parents to get con- trol of their children, and relatives to secure the release of persons confined under allegation of insanity. The suspension of habeas corpus in times of rebellion or invasion may become a necessity. On April 27, 1861, President Lincoln ordered it suspended,^ and on March 3, 1863 congress took the same action. It has never been suspended by the state of New York. The writ is granted in the discretion of the judge, and only upon affidavit giving the facts and stating that the detention is contrary to law. Federal judges often grant the writ to persons imprisoned under state authority for violation of federal law, and state judges have sometimes released federal prisoners. Security requires that the citizen be protected against unreasonable searches and seizures, either SEARCHES; SEIZURES; EX POST FACTO LAWS 139 of person, or of houses, papers, and effects ; and the national constitution forbids that these shall be made except upon oath of probable cause, particularly describing the place to be searched and the person or thing to be seized (87). To search a man's person or his home is a per- sonal indignity, and warranted only upon strong presumption of guilt. If my watch is stolen and I am confident another man has it in his pocket I may appeal to a policeman to search him ; or if I am sure the man has it in his house, I may make affidavit before a magistrate and secure a search-warrant by which some officer will search the house. But I am responsible if the complaint or affidavit is on insufficient grounds; and there can be no searching on general princi- ples, to discover what may happen to be found. All that can be asked of a person is to obey the laws that exist. If an act which he does legally to-(^ay may by a law passed to-morrow be made illeg;al, he would have no security. Hence the provisions in the national constitu- tion (46/51) forbidding the passage of any law which is ex post facto (Latin, after the act), a law declaring an act punishable that was not pun- ishable at the time it was committed. A law that increased the penalty for a crime would be ex post facto if it made the penalty retro-active. Thus from 1801 to 1820 to engage UO PERSONAL RIGHTS; SECURITY in the slave-trade was punishable by fine and iniprisoument ; in 1820 it was made punishable by death. Had the latter law been made to apply the penalty to offences prior to 1820, it would have been ex post facto, and unconstitutional. The constitution does not allow any bill of altaindor, a legislative act inflicting capital pun- ishment for crime without judicial trial. This would be an encroachment on the judiciary. While congress may not convict of treason it may declare what the punishment shall be (71), but no attainder of treason shall work corruption of })lood or forfeiture except during the life of the person attainted. In England such acts of parliament were com- mon, and not only did the person attainted for- feit all his property, but his blood became so ^ ' cor- rupted" that he could not inherit or transmit property, so that his children could not inherit from his ancestors. Treason was punishable by death in its most horrid and revolting forms. Treason has often been made to include crimes that involve breach of personal faith; thus it was petit treasou for a servant to kill his master, the act involving breach of faith as well as mur- der. To attempt to kill a sovereign or to wage war against him or adhere to his enemies was hii^h treason. Under a tyrannical sovereign, judges often declared an act to be treasonable 141 which had not been supposed to be so, this new interpretation having the effect of ex post facto law. This was called constructive treason, and was forbidden under Edward III. If the decision of a prisoner's guilt or inno- cence were left to a judge, the prisoner's safety- would depend upon the honor, the fairness, the intelligence, and sometimes upon the whim of a single man. Hence the provisions (113, 69, 90) that he have trial by jury (see page 83). When a man is held for trial, he is placed in custody unless he can furnish bail, a written obligation by which he and other persons bind themselves, if he does not appear for trial, to forfeit a sum of money, the amount of which is determined by the judge. It would be easy to name a sum so great that the prisoner's friends could not furnish it, so the constitution makes provision against excessive bail ( 116, 91). What amount of bail is excessive depends up- on the circurQstances of the case — the gravity of the offence, the pecuniary condition of the prisoner and his friends, etc. If an arrested man could be convicted on the testimony of the officer arresting him, or if he were obliged to defend himself against a skilled prosecuting lawyer, he might be unjustly con- demned; so it is provided (117, 89) that in all trials the accused person be allowed to appear 142 PERSONAL RIGHTS; SECURITY with a lawyer to defend him. In practice the government even pays his lawyer's fees when the prisoner is unable to do so. He also has the right (89) not only to be con- fronted with the witnesses against him, but also to have compulsory process for obtaining wit- nesses in his favor. Before 1688 a person arraigned for a capital crime was allowed neither counsel nor witnesses. If a man who had been put on trial and ac- quitted could again be arrested and tried for the same offence, he might be harrassed the rest of his life; so it is provided (117, 88) that no man shall be twice put on trial for the same offence. Of course if the jury fail to agree, he may be tried again (see page 85), as that renders the first trial of no effect. When a prisoner is convicted, his sentence is imposed by the judge. It is provided (116, 91) that no excessive fines (from LiSitm finis, an end, a sum of money paid to make an end of the suit) be imposed or cruel and unusual punish- ments inflicted. Whether a fine is excessive depends upon the abihty of the man to pay it. While a street laborer might find it impossible to raise $10, Mr. J. Pierpont Morgan might think it economy to pay a fine of $10,000 rather than lose a day's time in serving on a jury, though there are 143 judges who would not hesitate to condemn him for shirking his duty as a citizen. The cruelty of punishment must be largely a question of public opinion, which no longer per- mits slitting of ears and drawing and quarter- ing. The pillory and the whipping-post are in most states unusual punishments, though the latter is still used in Delaware. In examining prisoners in their custody the police sometimes resort to torture to force con- fession, as in the case of Czolgosz, the assassin of McKinley. When a man is arrested, it is necessary to make sure that at trial evidence be brought for- ward from witnesses (from Anglo-Saxon witan, to know). Often, though entirely innocent spectators, witnesses have been imprisoned for long periods to ensure their appearance at the trial. The constitution provides (116) that they shall not be unreasonably detained. All these rights seems to this American gener- ation commonplace and matter of course, like abundance of air and water. But their establish- ment is comparatively recent, and is the result of struggles for liberty that lasted for many gener- ations. We have seen (page 121) that within 400 years a monarch's whim could put to death any man in his kingdom. Liberty (from Latin liher^ free) is something U4 PERSONAL RIGHTS; LIBERTY more than security. Security protects a person as he is; hberty gives him a chance to make himself something more than he is. The first condition of hberty is free speech (119, 8-1). Every citizen may freely speak, write, and pubhsh his sentiments on all subjects ; and no law may be passed to abridge this right. For the abuse of this privilege, however, the citizen is justly held accountable (119). In pri- vate matters, if a person tells malicious untruths of another, it is slander (from Greek sJcandalon, a snare), and may lead to suit for damages ; if he publishes malicious untruths it is libel (from Latin libellus, a little book), and may lead to suit for damages and to criminal prosecution. In all such trials, however, if it can be proved that what was uttered was true, and pubhshed with good motives and for justifiable ends, the person must be acquitted (119). Even to send a dunning note upon a postal card is held to be libellous. But beyond this there are times when what would ordinarily be allowable free speech becomes dangerous and unpermissi- ble. "I believe in free speech," said the Duke of Wellington, ''but not on board a man-of- war." When the nation is in danger great mischief may be done by talk that would ordin- arily pass unnoticed. During the civil war those who proclaimed FREE SPEECH 145 open sympathy with the south were called "" cop- perheads " . After the assassination of McKinley Senator WelUngton of Maryland was expelled from the Union League club of Baltimore for declaring himself an enemy of McKinley and indifferent. All sorts of immoral writings and publications are subject to heavy penalties. A free press (119, 84) is the free speech not of individuals but of the public, and has the same guarantee, subject to even greater responsibility. In many foreign countries there is still censor- ship of the press ; that is, before publication arti- cles must be submitted to a government inspector. This makes a free press impossible ; under our laws no court of justice can take notice of writ- ings intended for publication. The right of petition (from Latin j^etere, to ask) is also guaranteed (120, 84), provided the people assemble peaceably. Religious liberty (114^ 84), natural as it seems to us, was at one time the rarest and most highly prized of rights. It has been said that the history of the world is a history of religious persecution. It is further provided that no religious test shall ever be required as a qualification for any office (281, 82). As to appropriations, see p. 323. The form of oath taken in court accompanied 14() PERSONAL RIGHTS; RELIGIOUS LIBERTY by kissing the Bible, is a recognition of Chris- tianity, but it is provided (114:) that no person shall be rendered incompetent as a witness on account of his religious belief; and members of the Society of Friends, who object to oaths, are allowed to affirm. The religious liberty granted is of conscience and not unrestrainedly of action; otherwise persons might profess religious beliefs that would permit licentiousness and other practices inconsistent with the peace or safety of the state (114). Marriage is protected by the provision that no divorce shall be granted except by due judicial proceedings (120). Until 1902, New York did not require a form of marriage, but it now^ requires that a mar- riage be solemnized either (1) by (a) a clergy- man; (6) a mayor, recorder, alderman, police justice, or pohce magistrate in a city; (c) a jus- tice or judge of a court of record, or of a munici- pal court, or a justice of the peace; or (2) that a written contract of marriage shall be signed by both parties and by at least 2 witnesses, and shall be filed within 6 months after its execution in the office of the clerk of the town or city in which the marriage shall be solemnized. The cons titution prohibits gambling, including 1339:1901. PROPERTY RIGHTS ; REAL PROPERTY 147 pool-selling and book-making upon races, and (see page 130) lotteries (120); and it punishes betting upon elections (see page 160). (2) Property Eights Next to personal security and liberty comes the individual right to property. '' You take my life When you do take the means whereby I live." Aristotle says that the state having begun as a means of making life possible, continues as a means of making hfe prosperous. Property (from Latin projyriiis, one's own) is that which belongs to one as an individual. It may refer to characteristics, as the properties of oxygen; but in its commoner use it refers to material possessions. The child learns to say of a toy, ^'This is mine," and to feel injured if another takes it away. Property in land and the buildings upon it is called real property. There are several provisions of the state con- stitution which come from the patroon system that at one time prevailed, being an introduction here of the feudal (from Anglo-Saxon feoh, cat- tle, which were often required of the tenant) system. In 1629 the West India company offered to any member of the company who should within 4 years place upon the land so granted a colony of 50 adult settlers a tract of 148 PROPERTY RIGHTS ; REAL PROPERTY land of 16 miles frontage on any navigable water, or 8 miles on both sides, to extend into the interior as far as he chose. The owner was called a patroou (from Latin pater, a father —a patron or defender). He must purchase the lands so granted from Indians laying claim to them, and must support a minister and a school- master, but was to be for ten years protected by the government ' ' against all inlandish and owf- Za?^d^s/^- wars and powers. " ^ In this way a large portion of the land along the Hudson and Mohawk came under control of these patroons, who exercised absolute control, making and executing laws, and even inflicting the death penalty. The tenants had few civil and no political rights. Eensselaerwyck estab- lished a manorial court, and made it a condition of renting land that the tenant should agree not to appeal from its decisions. Although restric- tions were imposed from time to time, the leases still contained many humiliating provisions. ^ In 1839 the Van Eensselaer heirs demanded, besides long arrears of interest left uncollected by Stephen Van Eensselaer, the enforcement of their right to one-fourth of the sales of products of the land in case of alienation (from Latin alius, another — sale to another) thus caUed quarter 1 Prentice, 50-52, 63, 401, 404-6. 1 Debates and Proceedings in the convention for the Eevision of the Constitution, 1846, pp. 802-5, 815-17, 907-10. REVOLT AGAINST THE PATROON SYSTEM 149 sales. Thousands of farmers formed themselves into anti-rent associations, armed and disguised themselves as Indians, and committed such depredations that Gov. Seward issued a procla- mation against them, while to assist him in serv- ing the papers, the sheriff called out a posse of TOO men with mihtia from Troy and Albany. The legislature of 1840 appointed commissioners to adjust the difficulty, but the landlords refused to accept the terms offered, and violence was repeated in 1845, when a Delaware county sher- iff was murdered, and Gov. Wright ordered out the militia. V The legislature of 1846 abohshed distress for rent, and the constitution of 1846 set a time limit to leases and declared feudal tenures abol- ished, as they had been for 15 years by statute. In the same year the anti-renters elected John Young governor, and he pardoned the 54 anti^ renters who had been imprisoned. In 1852 the court of appeals decided that even previous to 1846 aU reservations of quarter-sales were unconstitutional, which practically ended the anti-rent movement as an organization. The present constitution declares that the original and ultimate property in all lands within the state belongs to the people (121); that all feudal tenures are abolished (122); that aU lands are allodial (from Latin allodium^ entirely 150 PROPERTY RIGHTS; REAL PROPERTY one's own), so that, subject only ^to escheat (from Latin cadere, to fall — the eversion of prop- erty, to the state in case the o vner dies without heirs), the entire and absolute property is vested in the owners (123); that no lease of farming land in which is reserved rent or service of any kind shall be valid if for longer than 12 years (12-t); that all fines (see page 142— a sum of money paid by the tenant for the privilege of transferring property), quarter sales, and like restraints upon alienation shall be void (125); and that no purchase of lands from the Indians shall be valid unless made with consent of the legislature (126). By statute 1 an alien (see page 155) can own real property only after making written declara- tion of his intention to become a citizen; and minors, idiots, or persons of unsound mind can not tranfer it. Eeal estate may however be taken from the owuer against his will. When land is needed for a pubhc use, the state may take it by right of eminent domain (from Latin dominus, owner — the superior dominion of the sovereign power). This right apphes as well to personal as to real property, but is seldom appHed to personal prop- erty except in time of war when supplies are needed. 547:1896. PERSONAL PROPERTY 151 When land is required for public buildings, for highways, for water- works, for canals, the legis- lature may take it. It may delegate to a railway company the right to take land for its road. The constitution provides, however, that when private property is so taken there must be just compensation (117^ 118). Land may be taken for roads legally pronounced necessary, and for drains, dykes, and ditches, but only under proper restrictions and with just compensation, and never by special act of legislature (118). Of course real estate may be sold for unpaid taxes or for legal judgments otherwise uncollect- able (see page 69). Taxes might be made so high as to result almost inevitably in the confiscation of property (see page 300). The state ha& also much control over real estate m its police power. It may render a brewery useless by enacting that no beer shall be manu- factured. It may regulate the leasing of tene- ment houses so as to render buildings untenant- able, and it forbids the use of private houses for '' sweat-shops". All property which is not real property is known as personal property, including furniture, clothing, money, bonds, stocks, mortgages, etc. Personal property is also protected. In former times sovereigns often distressed their subjects by quartering soldiers upon them — that is by 152 POLITICAL RIGHTS; THE FRANCHISE scalding soldiers to private houses for lodging and meals. This is one of the complaints in the Declaration of Independence (see page 591). The constitution provides that in time of peace this shall not be done without consent of the owner, or in time of war except in a manner prescribed by law (88). A man's house is his castle; and though he be onlj a tenant, the house is his while he oc- cupies it. The legislature is forbidden (128^ 51) to pass laws impairing contracts (see page 523). Of course laws may be passed putting con- ditions upon future contracts, but not chang- ing the conditions of those that have been made. This applies to grants by the legislature (128), which are irrevocable. Daniel Webster won a great victory for Dartmouth college when he proved unconstitutional the attempt of the New Hampshire legislature to transfer the govern- ment of the institution from the charter trustees to trustees appointed by the legislature. (3) Political Eights The chief political right of the citizen is to vote, and of this he can not be deprived except by the law of the land or the judgment of his peers (112). This right is so important that we give it a separate chapter. A PRICELESS HERITAGE 153 • Besides these constitutional guarantees, per- sonal and property rights are confirmed by a multitude of statutory provisions, some of the more important of which are treated later in separate chapters, pages 492 and 507. The cor- responding duties these rights entail are spoken of on page 495. It is difficult for an American child of this country to reahze how precious is his heritage until he begins to read history, and compare his security and liberty with that of other times and climes. Everyone of the rights treated in this chapter represents the sacrifices for lofty purpose of those who have gone before us. It is for this generation not only to hold fast to all that is good, but to go on perfecting the structure of government. New York has done its part ; its constitution and its laws repre- sent to-day the fore-front of present attainment. But there is much stiU to be achieved, and it is the duty of all citizens not only to comprehend and appreciate the government under which they live, but to aid in perfecting it. CHAPTEE XIV THE ELECTIVE FRANCHISE A franchise (from French franc, free) is a par- ticular privilege granted by a sovereign, a con- stitution, or a statute. The elective franchise, or the right to vote, is conferred by the state constitution (130). A vote is sometimes called a suflPi^age ^ (from Latin sub and fr anger e, to ^ break, because a broken potsherd was formerly used in voting). Those who have the right to vote are often called freemen or electors. New York limits the suffrage to (1) males ; (2) of the age of 21 ; who have been (3) citizens 90 days; (4) inhabitants of the state 1 year; and residents (5) of the county 4 months and (6) of the election district 30 days ,(130); (7) duly reg- istered if required (133); and who are not (8) lun- atics, (9) idiots, (10) paupers (132) ; or convicted of (11) giving or receiving bribes (131/281), of (12) betting upon election (131), or of (13) any infam- ous crime. ^ We will consider these in detail. (1) Woman suffrage has been granted in full in several states, and in part in several others. Women have been allowed to vote at school 1 Titus Andronicus, i.2; iv.3. 2 654:1901. (154) LIMITATIONS OF THE RIGHT TO VOTE 155 meetings in New York since 1880, and those who own property have been allowed to vote on questions involving the expenditure of money since 1901 (see pages 19, 32). (2) The age of 21 is fixed almost universally as that of " coming of age ", including release from parental authority, and the recognition of suffi- cient maturity to act with judgment and dis- cretion. (3) Citizens (from T'rench cite^ a city) are natives of this country, and natives of other countides who have become citizens by naturalization (99). When naturalized, an alien (from Latin alien- us, compare page I-IS, belonging to another coun- try) has all the rights of native citizens except that of being elected president or vice-president (57, 97). Until he is naturalized, an alien is a subject of the country from which he came. In one-fourth of the states citizenship is not required. ^ Bryce says (ii.290; see also ii.95): '^ From the. immigrants neither national patriotism nor a sense of civic duty can as yet be expected ; the pity is that they have been allowed civic power. ' ' By the common law an ahen could not hold real estate, and in some states an act of the legisla- ^ B i.3l9, 406. Indiana, for instance, gives the franchise to aliens who have resided a year in the United States and 6 months in Indiana, and who have declared their purpose to l)ecome citizens. 15(1 POLITICAL RIGHTS; THE FRANCHISE ture is still required to enable him to hold such property (see page 150). New York requires (130) that the voter shall have been a citizen for 90 days. Congress has entire control of the naturaliza- tion of aliens (29) ; which is of course necessary, since if New York required 2 years residence and Massachusetts 6 years, an alien naturalized in New York might move to Massachusetts and demand recognition as a citizen (09, 73). The original law of congress (1790) ma^e the term of residence before naturalization 2 years, but in 1795 it was made 5 years. From 1798 to 1802 it was 14 years, but has since been 5 years. There must also be 1 year of residence in the state where he is naturalized. At any time after becoming a resident an ahen may file in a circuit or district court of the United States or any court of record of a state a declaration of intention to become a citizen, and 2 years longer must intervene before he receives his naturalization papers. He must file with the clerk of the court to which he is to apply, 14 days before his request is acted on, a written application giving his name, his resi- dence, and the names and residences of the wit- nesses he is to bring. A record of these state- ments is kept on file open to pubhc inspection. When he applies he must renounce allegiance to NATURALIZATION 157 all foreign powers, and swear to support the constitution of the United States, whereupon he receives a certificate of citizenship. When he becomes naturalized, his children under 21 if residents here become citizens. If he has declared his intention and has died before becoming naturahzed, his wife and children may- become citizens on taking the proper oath. This declaration is not required of minors who have resided in the United States from 18 to 21, have continued to reside here tiU time of applica- tion, and have resided here 5 years. Persons born out of the limits of the United States ; of fathers who are at the time citizens of the United States, are citizens of the United States ; but the rights do not descend to persons whose fathers never resided in the United States. Until 1870 the privilege of naturahzation was confined to white persons. In 1882 congress de- nied the privilege to the Chinese. The 14th amendment (99) declares the negroes to be citi- zens, and the 15 th (104) secures them the suf- frage. 1 The act of congress of 1875 giving all persons the right to equal enjoyment of inns, public conveyances, places of amusements, etc., was declared by the supreme court to be uncon- stitutional so far as the states were concerned. The political disabilities imposed by the 14th iBii.157. 158 POLITICAL rights; the franchise amendment (101) on some of those who had participated in the civil war were removed by congress, and proclaimed by the president in 1S6T and 1868. i {4:, 5, 6) Residence is required, that a man may be known to have the right to vote ; and that he may have personal interest in the issues pre- sented, and acquaintance with the circumstances that prevail. No one gains or loses a residence by presence or absence (1) in the service of the United States, (2) while engaged in navigation upon the waters of the state, (3) while a student of any seminary of learning, (4) while kept at any charitable in- stitution, or (5) while confined in prison (132). New York requires residence not only in the state for 1 year and in the county for 4 months, but in the election district for 30 days. This is to prevent frauds at elections by ^'colonizing" voters just before election, without giving time to investigate. If disqualified to vote for any officer a man k disqualified to vote for all. Thus by moving from one district in the dty to another within 30 days of election he loses the right to vote at that election not only for city but for county and state officers. (7) Regictratioii (see page 177) is required at ^Bii.157. LIMITATIONS OF THE RIGHT TO VOTE 159 least 10 days before election, that there may be time to detect any frauds. (8) Lunatics (from Latin luna^ the moon — be- cause formerly supposed to be influenced by changes in the moon), and (9) idiots (from Greek idiotes, an ignorant person) are plainly unfit to exercise the franchise. (10) Paupers (from LiSitm pauper, contracted in English to poor) are allowed to vote in most states, though it seems unreasonable that those who have not ability to support themselves should vote as to the disposition of the property of others. 1 On the other hand the actual possession of property is not now required. The New York constitution of 1777 made such a requirement, and Ehode Island maintained a small property qualification tiU 1888. ^ But it is the American idea that every man who supports himself, rich or poor, pays taxes directly or indirectly, and is interested that the government should be rightly administered. In some states only those can vote who pay a polP tax, a tax of a specified amount levied upon every citizen without regard to the amount of property he owns. This sometimes prevents poor citizens from voting, and sometimes tempts a candidate to 1 B i.464. 2 B i 123, 465. ^ ggg page 165. 1(10 POLITICAL RIGHTS; THE FRANCHISE offer to pay it for those who will vote for him. Though a man own property in a dozen states he can vote only where he has his residence. ^ (11) Bribery (from French bribe, the scraps given to a beggar) is provided against in the constitutions of most of the states. In Tennes- see a person convicted of bribery is for 6 years thereafter disqualified from holding office. Bribery may consist in offering gifts to influ- ence a voter at an election or to influence official acts of an officer or a legislator. When a bribe is offered and refused, only the one offering is criminal ; but if the bribe is accepted both are equally guilty. While bribery is often the direct payment of money, it may assume other forms. In strict construction the promise of an office should the party be successful might be so considered; though this has been construed leniently, since it is difficult to draw the hne between a party and a personal service. But when a contractor is promised a certain contract, or a newspaper a certain kind of advertising, or a corporation cer- tain privileg(3s, the bribery is no less real (282- 284). 2 (12) Betting upon election disqualifies a person from voting, his interest to win the bet being Mi i. 585. 2 Bii. 150-159. DISQUALIFICATIONS 161 assumed to be greater than to secure the elec- tion of the person best quahfied. (13) Infamous crimes are spoken of on page 545. The United States constitution forbids a state to deprive a person of the elective franchise on account of race, color, or previous condition of servitude (104), but otherwise leaves the matter entirely to the states, making the electors for members of congress the same in each state as those whom the state permits to vote for the most numerous branch of the legislature (3). It provides that if any male citizens 21 years old are not allowed to vote the representation of, the state shall be proportionally diminished (100) ; but though several of the southern states have passed laws practically excluding most of the negro vote by imposing educational or property qualifications^ congress did not diminish their representation in that body by the apportion- ment of 1901. As a rule the Chinese have no political rights. As to whether educational qualifications should be demanded in good faith there is a difference of opinion. Bryce says: '' Education ought, no doubt, to enhghten a man; but the educated classes, speaking generally, are the property- holding classes, and the possession of property 1 B i.465^ 162 POLITICAL RIGHTS; THE FRANCHISE i does more to make a man timid than education does to make him hopeful."^ In cities and villages of 5,000 inhabitants, be- fore every general election 4 meetings of regis- tration are held on the 4:th and 3d Fridays and the Jrth and 3d Saturdays before election, to be open in New York and Buffalo 7 a. m. to 10 p. m. ; elsewhere 8 a. m. to 9 p. m. In other places 2 meetings are held, on the 4:th and 3d Saturdays, from 9 a. m. to 9 p. m. Each pohtical party entitled to file certificates of nominations (see page 172) may appoint not more than 2 watchers to attend the meetings for registration, and sit within the guard rail. ^ A person who offers to register (see page 177) may be challenged (from Latin calumnia, accusa- tion) by any qualified voter present. Thereupon the chairman of the board of inspectors must re- quire the challenged person to fill out under oath a challenge affidavit, a book being supphed to each board. This asks questions as to identity, resi- dence, conviction of felony, etc., and gives height, weight, color of hair, hair on face, and kind of nose. If he so fills out the affidavit as to convince the inspectors that he is entitled to vote, they must enrol his name; but if not, his name is to be entered as disquahfied. To fill out the statements falsely is to be guilty of perjury 'Bii.244. 2 3QQ.19QJ CHALLENGES 163 (see page 546). At the close of each day the copy of the statements in the a:^ davit is dehv- ered to the sheriff or pohce officer for investiga- tion, and if any statement be found untrue, the facts are presented to the district attorney for presentation to the grand jury (see page 82). A person may also be challenged when he offers to vote, and required to answer orally the questions upon the affidavit already mentioned, and unless he answers them satisfactorily his vote is not received. ^ A majority (from Latin major, greater; see page 102) of votes is more than one-half of all the votes cast; a plurality (from L^tin plus, more) is more for one candidate than for any- other. Thus if of 1,000 votes A receives 450, B 350, and C 200, A has a plurality but not a majority. In most of the New England states a majority is required to elect the highest officers, and in the case above a new election would be required, or would be thrown into the legislature. So New York and most other states require only a plurality vote. In the election of supervisor, where the vote is a tie a special election must be held. ^ 1544:1901. 2 349:1901. CHAPTER XV ELECTIONS In all forms of government the choice of offi- cers is the most important consideration. No matter how wisely laws are framed, they are useless unless they are justly and wisely ad- ministered. In monarchial governments most officers are appointed directly or indirectly by the sovereign, but in a republican government all officers are elected directly or indirectly by the people. The tendency is strong at present to make elective offices fewer, and to give to those elected the power to appoint the minor officers (see page 102); but the elected officers are responsible to the people for the appointments they make, and when their terms of office expire are not likely to be re-elected unless their appointments have been wise — so the power is still in the hands of the people. Elections (from Latin eligere, to choose) are periodical determinations by the people of who shall represent them in the various offices estab- lished by law. They are frequent, as the times of town, village, city, state, and national officers expire and their successors are to be chosen. (164) NOTICES OF ELECTION 165 New York provides that state elections shall come in the even-numbered and in the larger cities municipal elections in the odd-numbered years (279) so that the issues may be kept distinct. The general election in New York and many other states occurs on the Tuesday following the first Monday in November (149). This is in leap-years the day of the presidential election, and has been adopted in many counties for the town-meetings (see page 31). Notice of election is sent by the secretary of state to all county clerks at least 3 months before each general election, stating the day and nam- ing each state officer to be voted for; and the notice, with corresponding notice of the election of local officers, is published by the county clerk in newspapers designated. ^ Special elections may be held only upon due public notice. The voting-places or polls (from low German polle, meaning head, hence person, and hence place where voting is done) are appointed at con- venient places in each election district (see page 48), and are open from 6 A. M. to 5 p. m. ^ The usual manner of voting is by ballot (from French hallotte a little round ball, still commonly used in voting for candidates for clubs). 1333:1901. 2 654:1901, 100) ELECTIONS • There are other ways of voting, as by the voice, or viva voce (Latin, by the Hving voice), where those in favor are called upon to say aye, and afterward those opposed to say no. English members of parliament were elected in this way until 1871. But this is suitable only in small meetings, as the fewer in number may shout the louder and seem to be more numerous. Another way is by show of hands, or by standing, those in favor and those opposed being called in turn and the numbers counted. Both of these methods require all the voters to be present at the same time, while by the ball(^t the voting may extend over a long period. Both of them involve open voting, which may lead a man to vote against his convictions, to oblige a friend, not to offend an employer, or to earn a bribe. The ballot is therefore a protec- tion to the timid, and, if really secret, a defence against corruption. It was provided for in some of the colonial charters, and is now almost uni- versaU y required. New York requires that except for certain town officers (see page 31) election must be by ballot, " or by such other method as may be pre- scribed by law, provided that secrecy in voting be preserved" (134). By the original ballot systom, separate tickets for the various offices were prepared and dis- MANNERS OF VOTING 167 tributed by the candidates or the parties, and dropped by the voter into a box. This did not ensure secrecy. The ballots for the different candidates could sometimes be distinguished; and a briber who had given a voter a ticket could watch him till he deposited that very ticket in the box.^ The Australian 2 ballot used in New York has these advantageous features : (1) A stall is pro- vided for the voter, where he may cast his vote in secrecy, — at least one stall for every T5 voters, and in which no voter is allowed to remain more than 5 minutes, so that there may be plenty of time to vote; (2) The names of all the candidates nominated by all the parties are printed on a single ticket, so that the voter can choose freely and intelli- gently; (3) The ballots are provided at public expense, so that the?-e is no advantage to a wealthy party, and no excuse for levying assessments upon candidates. ^ The form of the Australian ballot is shown on page 169, where it is used in a voting machine. •The names of all candidates are printed on a single large sheet, those of each party arranged in a column, with the emblem of the party over it or at the left-hand side. 1 B ii,136, 138. ^ go called because first used there. ^ b ii.l35. ins ELECTIONS Those shown are the eagle (repubUcan), the star (democrat), the workman's arm (labor), the fountain (prohibition), the clover (people's), th(^ ship (natic^nal democrat), and the anchor (independiMit reform). On the ballot a large circle is placed over its party emblem, and the voter may vote the "straight ticket", that is for all the candidates of his party, by marking a cross in this circle. If he wishes to "spht" his ticket, that is to vote for some candidates of one party and some of another, he puts a cross before each name for which he desires to vote. The voter receives the ballot folded and gives it back folded in the same way, so that it can not be seen how he has voted. Yotiiig machines are authorized by congress and by the laws of many states. In New York three voting machine commissioners ^ are ap- pointed by the governor for a term of 5 years. One of them must be an expert in patent law, and two mechanical experts. When they have examined a voting hiachine and reported to the secretary of state that it may be safely used, it may be adopted at elections. Where this is used no ballot clerks are elected. The form usual in this state is as follows : 466:1899. A VOTING MACHINE 169 A full Australian ballot is placed upon the front of the machine, in full view of the public, 17(1 ELECTIONS luitil the voter enters the booth, when a curtain automatically encloses him. At the head of each ticket, over the party emblem, is a brass knob. The voter selects the one he wishes to vote, pulls the knob to the right, and lets it slip back, which casts a vote for the entire list of candidates below. This leaves a pointer point- ing to each name on the straight ticket. If the voter wishes to vote for some other candidate for some office, he turns back the pointer from the name he does not wish to vote for, and turns the pointer to some name in the same line that he wishes to vote for. If he does not wish to vote for any name on the printed ballots, he may move to the right a slide in the blank col- umn and write the name on the paper. If he turns back the pointer from a name but does not vote for some other name in the same line, his vote for the office on that line will be blank. When he has voted he opens the curtain and the lever registers his ^ote and turns back the pointers, thus concealing what he has done. In the cut given, the voter has pulled the knob for the democratic ticket, but has split the ticket by voting for the repubhcan candidates for the 6th and 10th offices, the prohibition candidate for the 8th, and an unnominated name for the 12th. To vote yes on the amendments or questions proposed in the right hand column, he moves the THE MACHINERY OF KOMINATIONS iTl pointer up to the '' yes " ; to vote no he moves it down to the " no ". In the cut given he has not voted upon the questions given. The voter may not remain more than ' one minute in a booth, and election districts using the machines must not contain more than '600 voters. In some states each voter may vote for only part of those nominated, so as to give the minority a chance to elect one or more candi- dates. Thus in Pennsylvania each county is governed by a board of three commissioners, elected for three years, upon a minority vote system, the elector being allowed to vote for two candidates only. ^ That these Australian baUots should be printed at public expense, laws are necessary regarding nominations (from Latin nomen, name), which must be filed as follows : ^ "« S tvith whom days before election t. a,s It ■ If state secretaryof state, not more than 40, and not less than 30 25 city city clerk 35 25 20 county county clerk 35 25 20 village village clerk 20 15 10 town town clerk 20 15 10 In special elections ordered by the governor nominations must be filed not less than 15 days iBi.580. 2 645.1901. I7i> ELECTIONS before the election. All nominations must be publicly advertised, those at general elections in designated newspapers for 6 days, and those for town or village elections by posted notices at 10 places for 1 day. i To be recognized upon the ballot, certificates of indipendent nominations must be filed, signed by electors as follows : kind of office filed with ichom number required state secretary of state 6,000 cities of 1st class city clerk ^ 2,000 cities of 2d class city clerk 1,000 cities of 3d class city clerk 500 ward^ city clerk 100 county'^ county clerk 1,000 assembly county clerk 500 commissioner district county clerk 500 village^ viUage clerk 100 town^ tov^n clerk 100 Vacancies occurring in party nominations may be fiUed by a majority of the committee of the party which filed the certificate. Besides (1) attending to the registration of voters (see page 177), the inspectors (see page 48) (2) make ready the polling places, ballot boxes, etc. ; (B) preside at election, receive the votes and deposit them in the boxes prepared; (4) at the close of the election count them and » 054:1901. 2 Except in New York and Brooklyn. 3 New York, Kings, and Erie require 2,000. * When an assembly or school commissioner district, 500. CANVASSING THE RETURNS 173 (5) prepare a certified statement of the result and two certified copies. One of the certified copies is dehvered to the supervisor, or in his absence to an assessor. The other certified copy, with the poll books, one tally sheet, and one of the registers used, they file in the town clerk's office within 24 hours after completing the can- vass. The original certified statement, with the sealed packages of void and protested votes, stubs and unvoted ballots, the record of chal- lenged and assisted voters, one of the tally sheets, and 3 copies of the register, must be filed within 24 hours in the county clerk's office, for him to keep sealed. If the election is for the choosing of town, city, village, or district officers, the inspectors determine who is elected aiid declare the result. But for other elections the returns are referred to the county board of canvassers. This is the board of supervisors ^ (see page 64), which meets on the Tuesday next following the election. It elects one of its members chair- man, and the county clerk is clerk of the can- vass. It receives all the records of the election from the county clerk and the supervisors, can- vasses the votes, and make certified statements to be filed and recorded in the office of the county 1 In New York city, and in counties containing a city of the 2d class the county board of canvassers is the city board of can= vassers (208:1901). 17:1: ELECTIONS clerk. Of the results of the election for presi- dential electors, congressmen, state officers, and constitutional amendments, he makes 3 certified copies and within 5 days mails one to the secre- tary of state, one to the governor, and one to the comptroller. Of the persons elected as county officers, to the assembly, and as school commissioners, he sends within 20 days after a general and 10 days after a special election a Hst to the secretary of state ; to whom he also sends before Dec. 15 a certified copy of the official canvass by election districts of the votes cast in the county. The state board of canvassers (see page 210) meets on or before the 15th of December after a general election, or within 40 days after a special election, to canvass the votes, after which the secretary of state notifies the persons elected. The present system of elections is the result of much ingenuity and experiment, and New York has omitted no approved safeguard of an honest ballot. Her system of registration (see pages 162, 177) gives both parties opportunity to assure themselves that only the qualified voter has op- portunity to cast his ballot ; the enclosed booth (see pages 167, 170) ensures secrecy while he prepares his ballot; the Austrahan or blanket ballot gives him the widest liberty of choice as to candidates, and prevents detection of the ADVANTAGES OF THE NEW YORK SYSTEM 175 choice he makes. A form of ballot previously used was called the paster ballot, provision be- ing made for pasting names over those printed upon the ballot — an awkward and ineffective expedient. In the Australian ballot, the voter has all the nominated names before him, with hberty and opportunity to substitute any other name for any office. The effectiveness of the present system was shown in the election of 1901 in New York city, where the party in power did not carry a single office. A ballot that can work an overturn like that is capable of working the will of the people, and it is the fault of the people if their will is not carried out. CHAPTEE XVI PRIMARY MEETINGS Party nominations are made through the pri- mary meeting or caucus. The history of the caucus is interesting. Washington was chosen president without nomi- nation, by common consent. In 1796 the federals informally agreed to nominate Adams, and the democrats to .nominate Jefferson. In 1800 a congressional federal, caucus nominated Adams and Pinkney and a republican caucus Jefferson and Burr.i Similar nominations were made in 1804. In 1808 the federals made no caucus nominations ; but a republican caucus was sum- moned by the senator who had presided in 1804, thus taking on a feature of permanence. ' In 1812 the caucus became a '' committee of corre- spondence ' ' made up of one member from each state; but 70 federal delegates from 11 states met in New York and nominated DeWitt Chnton for president, thus forming the first national convention. ^ Members of state legislatures, especially in New York and Virginia, also held caucuses to nominate state officers; but this was soon ob- iB ii.l71. 2B ii. 171-183, 214. (176) HISTORY OF THE CAUCUS 177 jected to, on the ground that it threw pohtical power into the hands of a few men. In 1817 the New York repubhcan caucus admitted dele- gates from counties that had no representatives in the legislature; and soon delegates were ad- mitted 'from all the counties, so that a party con- vention took the place of the nominating caucus. The system has grown till it dominates every election, even for town officers. It has afforded unscrupulous politicians a means of nominating only their own henchmen, and thus of filling offices with men who were unscrupulous and corrupt. The more respectable voters have often neglected the caucus, and sometimes when they have attended they have been deprived of their rights. Bryce considers this one of the great dangers of the repubhc. New York, however, has a system of laws covering primary elections that affords every convenience and safeguard that has been devised. There is first for cities and villages of 5,000 inhabitants, where personal acquaintance can not be depended upon, a system of roj^istratioii (from Latin re and gerere^ to carry back) that ensures every voter the right to cast his vote at caucus, and gives assurance that no wrongful votes can be counted (133). ^ The board of inspectors of each election dis- 1179:1898; 473:1899; 506:1900; 167:1901. 178 PRIMARY MEETINGS trict (see page 48) makes quadruplicate registers, cue copy by each of the 4 inspectors, in which the names of the registered voters are entered alphabetically, with 19 columns giving such full information as should prevent any possibility of fraud. 1 Only those duly registered to vote may participate in primaries, and in a separate envelope they may register for the primaries at the same time they register to vote. The general county committee of each party is elected at the annual primary meetings in September, ^ either directly or by conventions of delegates elected at this time. Bryce says (ii.l09) that of the lOOT primaries and conventions held in New York city prepara- tory to the elections of 1884, 633 took place in liquor saloons ; but the present New York law for- bids holding a primary within 300 feet of a saloon. The auiiual primary day is the Yth Tuesday, in leap years the 10th Tuesday, before the general election. In presidential years there is an additional official primary day, the last Tuesday in March. While the smaller local officers are filled directly by the primary meeting, it would be impracticable for all the voters to gather to nominate for county and other offices, and so by the representative system the primary meeting elects delegates to a nominating convention. ^ 1113:1901. 2 167:1901. ^B ii.80. THE NEW YORK SYSTEM 179 Thus a town caucus nominates delegates to an assembly district convention, which nominates delegates to a state convention, which nominates delegates to the national convention at which candidates for president and vice-president are nominated. At a nominating convention a temporary chairman is elected, who appoints a committee on credeutials. When the accredited delegates are determined on, a permanent chairman is elected, and the convention is duly organized. After it has made its nominations, and perhaps passed resolutions expressing its sentiments on certain jfolitical issues, it adjourns and vanishes, the rest of the business of the campaign being in the hands of the committee (see page 183). ^ It is usually felt that all the delegates are bound by the action of the caucus or conven- tion, though sometimes those who have failed to nominate their candidate " bolt " the ticket, nominating an independent candidate or voting for the candidate of the other party. ^ The importance of the primary meeting is manifest, since unless respectable voters attend and vote, all control is left in the hands of the unscrupulous. ^ So, too, citizens should be will- ing to serve as delegates to the many nominating B ii.81. 82. 90. ^ b ii.84. ^ b ii.108. 162. 169. 183. ISO PRIMARY MEETINGS conventions, not grudging the time and travel- ling required to secure the best candidates. ^ The state even in the constitution (135) recog- nizes political parties. Bryce says (ii.74): " There are three ways by which in self-gov- erning countries candidates may be brought before electors. One is by the candidate's offer- ing himself, appealing to his fellow -citizens on the strength of personal merits, or family connec- tions, or wealth, or local influence. This was a common practice in most English constituencies till our own time ; and seems to be the practice over parliamentary Europe still. '' Another is for a group or junto of men in- fluential in the constituency to put a candidate forward, intriguing secretly for him or openly recommending him to the electors. This also largely prevailed in England, where in countries four or five of the chief land owners used to agree as to the one of themselves who should stand for the county ; or chose the eldest son of a duke or a marquis as the person whom his rank designated. So in Scotch boroughs a little knot of active bailies and other citizens combined to bring out a candidate, but generally kept their action secret, for ' the clique ' was always a term of reproach. The practice is common in France iBii.383. POLITICAL PARTIES 181 now, where the committees of each party recom- mend a candidate. ^ ' The third system is that in which the candi- date is chosen neither by himself nor by the self - selected group, but by the people themselves, i. e. by the members of a party, whether assembled in mass or acting through representatives chosen for the purpose. This plan offers several ad- yantages. It promises to secure a good candi- date, because presumably the people will choose a suitable man. It encourages the candidate, by giving him the weight of party support, and therefore tends to induce good men to come for- ward. It secures the union of the party, be- cause a previous vote has determined that the candidate is the man whom the majority prefer; and the minority are therefore likely, having had their say and been fairly out- voted, to fall into line and support him. This is the system which now prevails from Maine to California, and is indeed the keystone of transatlantic pontics." '' Numbers without organization are helpless and with it omnipotent. " ^ He says again (ii.38): ''What constitutes a party? In America there is a simple test. Any section of men who nominate candidates of their own for the presidency and vice- presidency of the United States are deemed a national party. " Bii.lO. 182 PRIMARY MEETINGS In New York to be recognized as a party, an organization must have cast at the last election for governor at least 10,000 votes. ^ In England parties date from the struggle of the Stuart Kings with the puritan party in the house of commons, and in the reign of Charles II began to be known as whigs and tories. ^ '' The essence of the English parties has lain in the existence of two sets of views and. tenden- cies which divide the nation into two sections — the party, let us say, though these general terms are not very safe, of movement and the party of standing still, the party of hberty and the party of order. "^ In America the fundamental distinction of parties has been the same — between progressives and conservatives; between those who favor a strong government and those who are more in- tent upon preserving individual liberty ; between those who say the United States is and those who say the United States are (see page 338). Alexander Hamilton wanted a strong govern- ment, and thought first of order; he founded a party known first as federalist, then as national republican, then as whig, and since 1856 as republican. Thomas Jefferson feared centraliza- tion of power, and thought first of liberty. ^ 1664:1901. -'Bii.SO. ^ g ii.21. ^ B ii.6. PARTY MACHINERY 183 His party was first called republican, but since 1830 has been known as democratic. ^ These are only general distinctions; many other issues have arisen and have divided the parties on other lines, such as foreign policy, a United States bank, slavery, and free trade. Additional parties have been founded; nine parties nominated candidates for president in 1900. But this general line of cleavage has al- ways divided the country into two great parties, and is hkely always so to divide it. ^ This is in many ways advantageous. When parties have nearly equal support, the party out of power keeps a close watch upon the party in power, which in turn is compelled to avoid cause for criticism. Party organization results in party machinery. Each party has national, state, congressional, county, town, city, ward, and other commit- tees. ^ These committees aim to keep peace in the party, preventing dissensions and schisms; to bring in new voters, sometimes from the opposite party, but oftener those coming of age to vote, or just naturalized, or new-comers ; and to keep up interest in the party by speeches and hterature.^ A close record is kept of every voter in every district ; and if there is a possi- iBii.ll. • Bii.16, 20. 3311^73. '-Bii.73. 1S4 PRIMARY MEETINGS bility of bringing him within the party, no pains is spared to do so. ^ This involves a good deal of work, so much that some men give it practically their entire time ; and these become professional politicians (from Greek polites ; see page 28), who attend caucuses, and see that their adherents attend, get chosen as delegates, secure offices for them- selves and their friends, and always have some- thing definite and clean-cut to suggest when the general public is purposeless and ready to be led.^ The word politician is not necessarily a term of reproach. There is truth as well as satire in the definition of Thomas B. Reed that a states- man is a successful politician who is dead. Alex- ander Hamilton, of whom Talleyrand said that only Fox and Napoleon were his equals, was. in his own time called derisively the stepfather of his country. ^ But if the rest of the.community is to abandon the management of politics to those who carry it on to make a living, the standard becomes low. Bryce says (ii.383): ''Those who study these questions most critically and think the most care- fully fear more for the republic from the indiffer- ence of the better classes than the ignorance of the lower classes. We hear endless talk about 1 B ji.73, 79. 2 3 i 6 . ij gg^ 283. ^ B ii.7, 8. POLITICS 185 the power of the labor vote, the Irish vote, the German vote, the granger vote, but no combina- tion at the ballot-box to-day is as numerous or as powerful as the stay-at-home vote." And again (ii.46T) : '' The deepest deficiencies in our system of government are the prominence of inferior men in politics, and the absence of distinguished figures. * * * if the natural leaders of the community are absorbed in pri- vate business, shrink from what they call the regularities of practical politics, and refuse to sacrifice their time and tastes and comfort in the struggle with wire-pullers and demagogues^ the latter will prevail, and what is known as ' the machine ', with a ' boss ', sitting like a spider in the midst of his web " becomes all-powerful." '^ What the client was to his patron at Eome, what the vassal was to his lord in the Middle Ages, that the heelers and workers are to their boss in these great transatlantic cities. They render a personal feudal service, which their suzerain repays with the gift of a livelihood ; and the relation is all the more cordial because the lord bestows what costs him nothing, while the vassal feels that he can keep his post only by the favor of the lord. " ^ When the bosses of the two parties unite forces under an agreement to divide the spoil, we have 1 B ij. 1 08. ISf) PRIMARY MEETINGS what is called a ring. '' The typical boss regards the boss of the other party much as counsel for the plaintiff regards counsel for the defendant. They are professionally opposed, but not neces- sarily personally hostile. "^ When a ring has fastened its clutches on a city or a state, it is seldom dislodged till some shocking abuse of power awakens the entire community to a sense of danger. The organization being thus formed and in working trim, it is extended beyond the national and state issues with which the party is properly concerned to those of city and village and town, as though there could be such a thing as a repub- lican gas lamp or a democratic asphalt pave- ment. 2 The only safety lies in the general recognition in the community of the duty to attend primary meetings, and thus secure that only safe men are nominated for office. At present this duty is even more important than that of voting at elections. It is usually easier to work within the party than to try to form a third party ; and when those determined upon good government are as active and as untiring as those in control they are pretty sure to arouse public sentiment sufficiently to carry the primary. ^ Failing in this reformers sometimes nominate an inde- 1 B ii.llO. 2]3 i 543^ jj 51 3 ^^^qo ^qq THE voter's most IMPORTANT DUTY 187 pendent set of candidates, or persuade the op- posite party to nominate men personally unob- jectionable. In New York great parties are so evenly balanced that the independent element is always large enough to turn the scale. CHAPTER XVn THE GOVERNOR When the colonies became states, they all con- tinued the office of governor, making him elected by the people instead of appointed by the crown. 1 It was the one colonial office that had universally justified itself. Bryce says (i.276; see also 271, 283, 293, 509): *' In these colonies the executive power had been vested either in a governor sent from England by the crown, or in certain proprietors, as they were called, persons to whom the English crown had granted hereditary rights in a province. Along with these authorities there had existed representative assemblies, who made laws and voted money for the purposes of their respective commonwealths. They did not control the gov- ernor because his commission issued from the British crown, and he was responsible thereto and not to the colonial government. A gover- nor had no parliamentary cabinet, but only offi- cials responsible to himself and the crown. His veto on acts of the colonial legislature was fre- quently used ; and that body, with no means of iBi.459. (189) 190 THE GOVERNOR ' , controlling his conduct other than the refusal to vote money, was a legislature and nothing more. Thus the Americans found and admired in their colonial (or state) systems, a separation of the legislative from the executive branch, more complete than in England, because in the colonies no ministers sat in the legislature. And being already proud of their freedom, they attributed its amplitude chiefly to this cause." In Connecticut and in Ehode Island the gover- nor had been elected by the people, and in these colonies the governor did not have the power of veto. The power of the state governors was how- ever much more restricted, i A colonial gOTernor " could convene and dissolve the assembly; could suspend members and fill vacancies ; could erect courts, appoint justices of the peace, and pardon all offences, — treason and murder alone excepted. " 2 A state governor has the powers of veto and of pardon ; he has command of the mihtia, and may recommend legislation. But local legisla- tion controls and local ofPxcers execute so large a part of the government of the state that except in emergencies his authority is comparatively narrow^ (see page 102). Yet the office has great dignity. In the early 1 B i.277, 508. 2 Prentice 140, 258, 469. ^ Hadley, 80. QUALIFICATIONS AND ELECTION 191 days of the nation a governor sometimes re- fused to yield precedence to the president; in 1795 John Jay resigned his place as chief justice to become governor of New York. ^ The qualifications required in New York are (1) that he be a citizen of the United ^States, (2) a resident of the state for the past 5 years, and (3) at least 30 years old (184). The salary is ^10,000 and a furnished residence (186). The term is 2 years (183). It was 3 years till 1821; then 2 years till 1874; then 3 years till 1894. The election is by plurality vote at the general election; but in case the two candidates receiv- ing the most votes have an equal number, the legislature at its next session by joint baUot chooses one of the two for governor (185). He is the executive officer of the government ; ' ' he shall expedite all such measures as may be resolved upon by the legislature, and shall take care that tl^e laws are faithfully executed (186)." In the veto (191) he has legislative power, and this is treated under the head of the legislature, on page 242. His power to convene the legisla- ture and to suggest legislation is often important. Bryce says (i.509): " In a commercial crisis, like that which swept over the union in 1837, when the citizens are panic-stricken and the legislature hesitates, much may depend on the initiative of 1 B A75, 509. 102 THE GOVERNOR th(^ governor, to whom the eyes of the people naturally turn. His right of suggesting legisla- tive remedies, usually neglected, then becomes insignificant, and may abridge or increase the difficulties of the community. ' ' He appoints several thousand officers ; some of the most important of them are named on pages 196, 202-209. He may also remove many officers for cause, as is frequently noted in the following pages. But this power is his only when it is expressly conferred upon him. He can not interfere even with an election inspector who performs his duties properly. He is the highest officer in the state, but he is not a master ; he is like all other officers the servant of the people, and his powers are limited to those named in constitution and statute. Bryce says (i.239) : '^ In free countries an indi- vidual citizen is justified in disobeying the orders of a magistrate if he correctly thinks his orders to be in excess of the magistrate's legal power, because in that case they are not really the orders of a magistrate, but of a private person affect- ing to act as a magistrate. In England, for instance, if a secretary of state, or a pohce con- stable, does any act which the citizen affected by it deems unwarranted, the citizen may resist, by force if necessary, relying on the ordinary courts POWERS 193 of the land to sustain him. This is a conse- quence of the Enghsh doctrine that all executive power is strictly limited by law, and is indeed a corner-stone of English liberty." The governor represents the state in its deal- ings with other states (72) and with the federal government. He has the power of extradition (see page 554). When a criminal escapes from one state to another, the governor of the former makes upon the governor of the latter a requisi- tion (see page 554) for his delivery to the former state, and this the governor usually grants (74). In the case of a criminal he may pardon (from Latin per, perfectly, and donare, to give — to grant full release from the punishment), reprieve (from Latin re and probare to try, to postpone the execution of a death sentence), or commute (from Latin com and mutare, to change, to ex- change it for one of less severity) the sentence, except in (?ase of treason, when he may only suspend sentence till the next meeting of the legislature ; and in cases of impeachment, where he has no authority (187). This power formerly belonged to kings, as the fountain heads of justice. It has often proved pernicious. He is commander in chief (186) of the militia (from Latin miles, a soldier). Every able-bodied resident of the state between the ages of 18 19-1 THE GOVERNOR and 45 is liable to service in the militia (269), and though in time of peace only those are Hable who voluntarily enlist (270), in time of war all those liable may be called upon. They are known as the enrolled militia. The states are not allowed to maintain a standing army (52), which is a permanent force of soldiers with no other occupation. The active or enlisted militia of New York is made up of not less than 10,000 enlisted men, uni- formed, armed, equipped, and drilled, and ready for active service (271); but in ordinary times giving only an occasional evening and now and then a day for drill or a week for encampment. A national law passed in 1792 and unrepealed but of course long disregarded requires every able-bodied citizen between the ages of 18 and 45 to be " constantly provided with a good mus- ket or firelock, of a bore sufficient for balls the 18th part of a pound, a sufficient bayonet and belt, 2 spare flints and a knapsack, a pouch with a box therein to contain not less than 24 cart- ridges ", or ^'a good rifle, shot pouch and pow- der horn, 20 bafls and J lb. of powder ", and that "each officer shaU be armed with a sword or hanger and a spontoon." The right to carry weapons is affirmed by the national constitution (85). Many states how- CHIEF OF 'the militia 195 ever forbid the carrying of concealed weapons. Some are exempt from military duty in time of peace, such as clergymen, physicians, judges and clerks of courts of record, pilots, mariners, railway conductors and engineers, etc. ^ In the early days of the republic the militia was trained chiefly at the annual muster (from Latin monstrare, to show), where the men from all over the state gathered for a week's drill (see page 62). This proved insufficient, and at pres- ent there are companies of enlisted men who are drilled in state armories in all cities and princi- pal villages, where full equipments are provided and kept. These companies are known in New York as the national guard. Commissioned officers are those holding com- missions (from Latin con and mittere, to send with, to entrust). They may not be removed from office during the term for which appointed or elected unless (1) by the senate on recom- mendation of the governor, (2) by the sentence of a court-martial, (3) upon the findings of an examining board, or (4) for absence without leave for a period of 6 months or more (271). The manner of choosing the officers of militia regiments has been fixed by statute (273) as fol- lows: (1) The privates of a company elect the officers of the company. 1212:1898. IDtJ THE GOVERNOR (2) The commissioned officers of the various companies elect the field-officers of the regiment or hattahon. (3) The field officers of the regiment or bat- talion elect the brigadier generals and brigade inspectors. (4) The governor appoints with approval of the senate the major generals and the commis- sary general ; and absolutely the military secre- tary, the adjutant general, chiefs of staff depart- ments, and his own aides-de-camps (273). (5) Staff officers are appointed by the com- manding officer of the regiment or battahon. It will be seen that this system is thoroughly representative. Officers are however after elec- tion required to pass an examination in Enghsh ; geography, especially of New York state; arith- metic ; American history ; and military discipline and tactics. The national constitution ordains (41) that congress may provide for organizing, arming, and disciplining the mihtia, may prescribe the discipHne for training, and may provide for gov- erning such part of them as may be employed in the service of the United States. This is of course necessary, so that when troops are assem- bled from different states they may be familiar with the same drill. Congress has power to call out the militia to CHIEF OP THE MHJTIA 197 execute the laws, to supress insurrections and to repel invasions (rtO), and has delegated this power to the president; but this refers to the militia in its general sense, as embracing the able-bodied men between 18 and 45. The presi- dent has no control over mihtia regiments. When men are called for, however, it is custom- ary for the state to enhst them through the machinery of these companies, the members having opportunity to enhst f6r United States service, and the places of the rest being filled by enlistment from outside. In the war with Cuba enlistment provided sufficient men; but during the civil war the number of men required was so great that it be- came necessary to resort to conscription (from Latin con and scribere, to write), the number required being chosen by draft (from Anglo- Saxon dragan, to draw) from the entire number of citizens liable, those drafted being compelled to go or to furnish substitutes. The mihtia has been called out 5 times : in the whiskey rebelhon of 1794, in the war of 1812, in the civil war of 1861, in the Spanish war, and to suppress the Philippine insurrection. At the close of the civil war the militia in the United States service numbered more than a million. During the civil war the governors were of 198 THE GOVERNOR immense importance, and those like Morgan of New York and Andrews of Massachusetts who responded promptly to the president's calls for troops were among his most powerful assistants. When necessary to preserve the peace the militia may be summoned by the governor, by the mayor of a city, or by the sheriff. Prompt action is in such cases of the greatest importance. Bryce says (i.509): ''In the Pennsylvania riots of 1877 it was the accidental absence of the governor on a tour in the west which enabled the forces of sedition to gather strength. Dur- ing the most recent disturbances which large strikes, especially among railway employes, have caused in the west, the prompt action of a gov- ernor has preserved or restored tranquiUity in more than one state ; while the indecision of the governor of an adjoining one has emboldened strikers to stop traffic, or to molest workmen who had been hired to replace them." Sometimes the local and state forces are in- sufficient to preserve peace, and then the legisla- ture, or the governor if the legislature is not in session, may call on the president for aid (see page 348). This happened during Dorr's rebeUion in Ehode Island. The required qualifications and manner of election of the lieutenant governor are the same THE MEUTENANT GOVERNOR 199 (183-185^ 189) as those of governor (see page 191). His principal dignity is the possibihtj of his succeeding to the duties of governor, should the latter die, or resign, or be otherwise unable to perform his duties (188, 189). If he dies or is incapable of filling the office of governor, or is absent from the state, the duties of the governor are performed by the president pro tem. of the senate (see page 230), or if he for like reasons is unable tp assume them, by the speaker of the assembly (189; compare page 370). He is president of the senate, and in case of tie has the casting vote (189), but not other- wise, since he is not an elected member. He serves on various boards (see page 210). His salary is $5,000 (190). Por comparison of the governor's power with that of the president see page 3T9. CHAPTER XVIIl state administrative officers (1) Elected by the People Besides the governor and lieutenant governor, the people elect every 2 years 5 administrative officers (192) as heads of the principal depart- ments of the state business. The elections come in the even-numbered years (193). The salary of comptroUer is 16,000 ; of the other four S5,000. The secretary of state keeps the records, books, deeds, maps, etc., of the state; attests the sig- nature of the governor; files the laws passed by the legislature and supervises their pubhca- tion; sends notices of election, receives the elec- tion returns, and notifies persons elected; re- ceives and records all pardons; and reports annually to the legislature statistics of pauper- ism, crime, and other subjects as required. The comptroller (see page 104) is one financial manager of the state. He directs and superin- tends the collection of taxes and other amounts due the state (see page 69) ; audits, examines, and directs payment of claims against the state ; and negotiates temporary loans when necessary. He reports to the legislature the receipts and expen- ditures for the past year, with estimate for the coming year, (200) ELECTED ADMINISTRATIVE OFFICERS 201 The fact that he receives 11,000 more salary than any of the other elected administrative officers, shows how important his duties are considered. The treasurer (see page 69) keeps the state's bank account. He receives and guards the moneys of the state, and pays them out upon warrants drawn by the comptroller, the auditors of the canal department, or the superintendents of the banking department and of the depart- ment of public instruction. No money may be drawn from the treasury except by specific appro- priation (174^ 49). He may be suspended by the governor and another person appointed (198). The attorney-general corresponds with the county district attorney (see page 78). He prose- cutes and defends all suits to which the state is a party; is the legal advisor of the legislature and of the other state officers, and prepares drafts of contracts, etc., needed; and prosecutes criminals in the supreme court when required. The state engineer and surveyor must be a practical civil engineer (192). He superintends the survey and sales of state lands, and^ keeps all records of survey ; he inspects the canals and appoints division engineers upon them. (2) Elected by Joint Ballot The superintendent of public instruction (see page 309), like the regents of the university (see 202 APPOINTED STATE ADMINISTRATIVE OFFICERS page :>18), and United States senators (see page 4-"):)) is elected by joint ballot of the legislature. (3) Appointed by the Governor with Consent OF THE Senate The state pays higher salaries to some officers appointed by the governor with consent of the senate than to those elected by the people. The superintendent of insurance, for instance, gets $7,000 a year; but this is paid by fees from the insurance companies, ^ which it is his duty to investigate, and which must have his author- ization. His term is 3 years. The superintendent of banking investigates banks and trust companies, which report to him quarterly. If he finds them insolvent, he closes them. His salary of $7,0002 is collected from them.s His term is 3 years. The superintendent of public works (194) has charge of the public works of the state, the most important of which are the canals, of which he appoints all the officers and workmen. His term expires with that of the governor who nomin- ates him, and who may suspend or remove him. His salary is $6,000. He performs all the duties of the former canal commissioners (194). See page 211. The state architect has architectural charge of all the buildings constructed by the state. 1690:1892, 2 134:1897. » 472:1901. THE RAINES LAW 203 The excise commissioner has control of the operation of the Hquor tax law (known as the Eaines law)i. He appoints a deputy; special deputies for the larger counties; and not to ex- ceed 60 special agents to investigate all matters pertaining to the sale of liquors. Taxes are collected on May 1 of each year as follows : In places having a popu- lation exceeding 1,500,000 500,000 50,000 10,000 5,000 1,200 Others Liquor to be drunk on the premises $800 $650 $500 $350 $300 $200 $100 Liquor not to be drunk on the premises, in quan- tities not less than 5 gallons 500 400 300 200 100 75 50 In counties where there is a city of the first class these taxes are paid to the special deputy commissioner ; in all other counties to the county treasurer, who receives as compensation 1 ^ in counties containing all or part of a city of the 1st or 2d class, 2 ^ in those containing a city of the 3d class, and 3 ^ in all others. Of the amount collected J less cost of ^collection is paid to the general tax revenue of the state, and | to the town or city where collected. The term of office is 5 years and the salary $5,000, with $1,800 in lieu of expenses. The superintendent of state prisons (195) has control of the state prisons, of which he appoints the agents, wardens, physicians, and chaplains, all other officers of the prisons being appointed 1112:1896. 2(U APPOINTED STATE ADMINISTRATIVE OFFICERS by the agent and warden, except the clerk, who is appointed by the comptroller. His term is 5 years, but he may be removed by the governor. His salary is 86,000. The coiiiiiiissioiier of labors inspects the manu- factories of the state, and secures labor statistics, reporting upon the same. His term is 4 years, and his salary $3,500. He has the appointment of 2 deputies at |2, 500, who with him form a board of mediation and arl)itratiou, whose duty it is so far as possible to prevent and adjust labor strikes. The state agricultural commissioner promotes farming interests by inspecting butter and cheese factories, appointing 5 expert butter and cheese makers to attend fairs and explain improved methods. He suppresses contagious diseases among cattle, killing them when necessary, the owners to get compensation from the court of claims. He also appoints inspectors to examine into diseases of trees and fruits. He has charge of the state weather bureau. The state agricul- tural experiment station at Geneva reports to him. His term is three years and his salary $4,000, with not to exceed |500 for necessary expenses. The legislature of 1901 appropriated 1100,000 19:1901. BOARDS AND COMMISSIONS ^05 for the expenses of the state fair commission, for the state fair held annually in Syracuse. The commissioner of health ^ is the head of the department of health, and must be a graduate of an incorporated medical college with at least 10 years experience as a physician. He makes inquiry as to the causes of disease and the effect of localities, employments, and other conditions upon the public health. He may reverse or modify an order of a local board of health, and appoint a health officer where the local board fails to do so. He reports public nuisances to the governor. There is in the department a bureau of vital statistics, to register marriages, births, and deaths. The term is 4 years, and the salary $3,500 and expenses. The health offtcer of the port of New York must be a doctor of medicine of 10 years experience, and is resident physician of the Swinburne island hospital. In conjunction with the quarantine commissioners he maintains the quarantine regu- lations of the port (see page 207). His term is 4 years, and his salary $12,500. Boards and Commissions Much of the administrative work of the state is done by boards or commissions. They are 29:1901. 200 APPOINTED STATE ADMINISTRATIVE OFFICERS all appointed by the governor and confirmed by the senate except as otherwise noted. The court of clayns audits private claims against the state and of the state against private persons, and decides what amount is due. It meets at Albany on the 2d Tuesdays of January, April, September, and November, and holds ad- journed sessions elsewhere as it may determine. The attorney general or a deputy attends each session in behalf of the state. There are 3 members, 2 and only 2 of whom must be practising attorneys and counsellors in the supreme court. The term is 6 years and the salary ^5,000. The board of charities (251) visits and inspects state and local institutions of a charitable, eleemosynary, correctional, or reformatory char- acter. It makes contracts for the maintenance of state paupers. It is composed of 12 members, 1 from each judicial district with 1 additional from Kings and 3 from New York. The term is 8 years, and the members receive no salary. A commission of prisons (251) visits and in- spects all institutions for the detention of sane adults charged with crime. The president, who is designated by the governor, receives a sal- ary of ^2,500, and the other two serve without BOARDS AND COMMISSIONS 207 pay, all being reimbursed for their expenses. ^ It appoints a clerk, at a salary of $3,000, and other employes. The term is 4 years; but when a state officer is appointed, his appointment ter- minates when his term of office expires. The board of railway commissioners has duties in reference to railways similar to those of the superintendents of insurance and banking. It may examine the books of all companies, and must examine into the causes of accidents that injure persons. It reports to the attorney general any evidences of unsatisfactory management, and makes an annual report to the legislature. There are 3 commissioners. The term is 5 years, and the salary $8,000. One is selected from each of the two great political parties ; the third upon a recommendation of a majority of the New York chamber of commerce, board of trade and transportation, and national anti- monopoly league. The board of tax commissioners investigates the methods of assessment within the state, fur- nishes local assessors with necessary information, visits every county of the state at least once in 2 years, to see that all property not exempt is assessed at full value, hears appeals from any supervisor who thinks his town unjustly treated in equalization of taxes (see page 65), etc. 1 12:1901. 20S APPOINTED STATE ADMINISTRATIVE OFFICERS The 3 quarantine commissioners, with the health officer of the port of New York, examine in- comiDg vessels to prevent the introduction of contagious disease. All vessels are stopped at the station on Staten island. If contagious disease is found those affected are moved to a floating hospital, and the vessel is fumigated and disinfected. The term of ofi&ce is 3 years and the salary 82,500.1 The state assessors visit each county at least once in 2 years, and prepare facts for the board of equalization. They have power to subpoena witnesses, and to demand information of all local officers. There are 3, appointed for 3 years; salary 12,500. The commission in lunacy (251) visits and in- spects public and private institutions for the treatment of the insane. It supervises the ex- penditures of public institutions, and licenses private ones. It appoints physicians as ex- aminers in lunacy. It consists of 3 citizens of the state, of whom the president must be a graduate of an incor- porated medical college with 1 years experience as a physician, and 5 years experience in the 4 268;1900. BOARDS AND COMMISSIONS 209 treatment of mental and nervous diseases, or 2 years experience in treatment of the insane. Another must be an attorney of not less than 10 years standing. The term is 6 years, and the salary is $5,000, with $1,200 for expenses. ^ The state hospitals for the insane are located as shown on the map on page 561. Each hospital is managed by a board of 7 managers appointed by the governor. The civil service comiiiissiou conducts the civil service examinations of the state (see page 381), certifying who have passed successfully and in what order. It also inspects the civil service examinations conducted by the municipal civil service commissioners appointed by the mayors in cities (see page 109). It meets in Albany at least once in every month except August. There are 3 commissioners, not more than 2 of the same political party, at a salary of $3,000^ and necessary travelling expenses. They appoint a chief examiner at $3,600. The term of office is unlimited, but any member may be removed by the governor. In New York the constitution provides (200) that while the examination shall be as far as possible competitive, honorably discharged soldiers and sailors of the civil war are entitled to preference" ^^ 1137:1901. 2 66.1900. 210 EX-OFFICIO STATE BOARDS The forest, flsli, and game commissiou has charge cf the propagation and distribution of food and game fish and shell fish. It consists of a com- missioner appointed for 4 years at $5,000 a year, and 2 associate commissioners who with him form the forest preserve board, whose duty it is to acquire for the state such lands in the Adiron- dack park or the forest reserve ^ (see page 567) as it may deem advisable. These associates serve only till Jan. 1, 1903, after which the 2 associates are to be appointed by the governor from the commissioners of the land office (see page 211). (3) Ex-OFFicio Appointments The following state boards are made up of state officers whose duties on these boards are ex-officio (Latin, on account of office). NAME OF BOARD ■< s:: 1 ■? 2 ^ ■^ 2 1 '^ '^ board of canvassers coniniissioners of canal fund. canal board commissioners of land ofTice. board of classification board of equalization * trustees of yuljlic buildins^s.. regents of the university t.. . . 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 ^ 1 1 1 1 1 1 1 1 1 1 1 1 608:1900. * The tax commissioners are also included (see page 203). t Partly e.v -officio and partly elective. Includes sup't public instruc- tion. See page 318. CANVASSERS; CANALS, CLASSIFICATION 211 The bpard of canvassers meets on Dec. 15 after each general election, and within 40 days after each special election, and canvasses the certified statements of the county boards of canvassers^ tabulates the results, and files them with the secretary of state, who thereupon transmits a copy to each person elected. ^ The commissioners of the canal fnnd (196) have charge of (1) the canal fund, made up of the real estate belonging to the canals, and moneys received for sale of lands, surplus waters, and fines ; and (2) the canal debt sinking fund. The canal board (196) has general charge of the state's property in canals, as the superintendent of public works (see page 202) has of the work- ing of the same. It determines whether lands caken for canals have been abandoned, or may be sold advantageously, investigates all transac- tions concerning canals, examines plans made by the state engineer, etc. The canals are shown on page 563. They are forever to remain the property of the state and under its management (238). No tolls are to be exacted (239), and provision is made for their improvement (240). The commissioners of the land office (196) have the general care of all lands owned by the state. The board of classification ^ fixes the prices at 1379:1897. 2418:1901. 2V2 EX- OFFICIO STATE BOARDS which all labor performed and all articles manu- factured in the charitable institutions are fur- nished to the state or its institutions, except that prices of articles furnished by penitentiaries to the counties in which they are situated shall be fixed by the supervisors (in Kings and New York counties, by the commissioners of charities and correction). The board determines the styles, patterns, designs, and qualities of the articles to be made. For restrictions see 182. The board of equalization is made up of the commissioners of the land office (see page 211), and the 3 commissioners of taxes (see page 206). It meets at Albany on the 1st Tuesday of Sep- tember in each year, to examine and revise the valuations of real and personal property of the several counties as returned to the board of tax commissioners, and to fix the aggregate amount of assessment for each county, upon which the comptroller is to compute the state tax. The trustees of public buildings have charge of the capitol, state haU, geological hall, executive mansion, etc., and allot space to the different departments. They appoint a superintendent of public buildings, with a term of 2 years and a salary of $5,000. He appoints the employes of the maintenance department at salaries fixed by the trustees. CANVASSERS; CANALS; CLASSIFICATION 213 The salaries of clerks and other employes of the state were fixed in 1901 ^ as follows : Grades 1 2 3 J^ 5 6 7 8 9 10 $360 $480 $600 $720 $900 |1200 $1500 $1800 $2100 $2400 Original appointment is to be so far as possible in the 1st grade, and no higher grade is to be filled from outside if there is a person employed in a lower grade competent for promotion. No promotions are to be made except of those who have served 6 months in the next lower grade. For tabulated list of state officers see page 5. 1521:1901. CHAPTEE XIX HISTORY OF LEGISLATION IN NEW YORK We have seen (page 125) how parhament grew to supreme control in England, and became the model for the legislatures of the colonies. The history of the growth of legislative power in New York is especially interesting. The first charter of New York was granted in 1614 by the legislature of the Dutch Eepublic to the Amsterdam company, but was superseded in 1621 by a more distinct charter granted to the Dutch West India company, which practi- cally governed New York until it came under control of the Enghsh in 1664. The first formal government was established in 1626 under Gov. Peter Minuit, who with a council of 5 men^ a secretary, and a sheriff had entire legislative, executive, and judicial power, subject only to the chamber of deputies at Amsterdam. The council of twelve, 1641.— In 1641 Gov. Kief t feared , a general Indian war, and sum- moned all the heads of famihes to a council, ^^the first popular meeting ever held in New Netherland, the first recognition of the right of the people to a voice in the affairs of the colony. ' ' i 1 Prentice, p. 67. (214) UNDER DUTCH CONTROL 215 These elected a council of 12 select men to con- sider the condition of affairs. In 1642 this council met again, and asked that 4 persons be chosen from their number to have access to the council, so that taxes might not be imposed on the colony in the absence of the 12. Gov. Kieft dismissed them and forbade them to meet again, thus for the time putting an end to popular government. The eight men, 1643. — But in 1643 the Indian outbreak became serious, and Gov. Kieft asked the people to appoint 8 men as a council. This body appealed to Holland, complaining against the governor, and in 1644 begged for his recall, which occurred in 1647. The nine men, 1647. — Gov. Stuyvesant, who followed him, found the people clamoring for self-government of Holland, and finally allowed an election by the people of 18 men, from whonl the governor and his council choose 9 men " to advise and assist the governor ivlien called up- on. " In 1699 these nine men petitioned Holland to establish " a suitable burgher government re- sembling that of the Fatherland", and further urged that the country should be freed from the control of the West India company. Thereupon Holland ordered that the adminis- tration and collection of taxes should be regu- lated by the people, that a burgher government 2 1 HISTORY OF LEGISLATION IN NEW YORK should be established in Manhattan, and that the nine men should be continued 3 years and have jurisdiction in cases "between man and man". In 1653 Gov. Stuyvesant yielded to the order that a burgher government should be established, but he himself named the officers, defined their duties, and assured them they did not in any way hmit his powers. A general convention met Dec. 10, in which 8 villages were repre- sented. It prepared an address complaining of the arbitrary acts of the governor. Grov. Stuyve- sant ordered the delegates to disperse on pain of his highest displeasure, and the people again appealed to Holland. Ill 1658 the two burgomasters (governing magistrates) and five schepens (aldermen) were appointed from men selected by the people, and in 16G0 the schout (prosecuting attorney, judge, and sheriff) was elected by the people. In 1663, when English and Indian hostilities were threat- ened. Gov. Stuyvesant even sought advice from these municipal authorities, and on their advice summoned The laiult-tag, 1664, which was an assembly with representatives from 9 villages, while the governor met with them. Enghsh control succeeded the Dutch on Aug. 26, 1661:, but Gov, NicoUs continued the courts UNDER ENGLISH CONTROL 2lT the Dutch had established, and inferior officers were allowed to retain their places until the cus- tomary elections. In February, 1665, the new municipal govern- ment was appointed by the retiring members, while the governor named the mayor. The Duke'S laws, compiled from those in use in other English colonies, were announced in 1665, establishing four principles that are still a part of the fundamental law of the state: (1) equal taxation (174), (2) trial by jury (113), (3) obligatory military duty (269), (i) freedom of re- ligious worship (114). The first general assembly, 1683, was called by Gov. Dongan, to consult with the governor and council ^ ' what laws are fit and necessary to be made and established for the good of the people of the colony". It consisted of 17 members elected by the people, and enacted 14 laws. Of these 13 were approved by the governor and council, hilt the most important one was held back — a charter of liberties and privileges. This granted to every freeholder the right to vote ''without let or hindrance ", and declared that no tax should be levied except by act of the governor, his council, and ' ' the people met in general assembly", a recognition of representa- tive government. When in 1685 the Duke of York became James II he obiected to this last 2 I S HISTORY OF LEGISLATION IN NEW YORK expression, and refused to confirm the charter ; and in 1()ST the assembly was dissolved. Under William and Mary, Gov. Sloughter called the first royal assembly, 1691, convened by order of the crown. This, like the assembly of 1683, consisted of IT members and passed 14 laws. It reaffirmed the charter of liberties. With succeeding governors the assembly had- occasional friction, usually gaining from every contest some additional power. When in 1760 the chief- justice died. Gov. Golden recommended to the crown the appointment of a man from Massachusetts. This the people resented as an attempt to make the judiciary independent of the assembly, and the assembly refused to vote a salary for him. In the issues which led to the revolutionary war. New York was foremost ; and in June, 1767, the assembly was forbidden to exercise any further legislative functions until' it conformed to the requirements of the king by making provision for British troops. The assem- bly continued its sessions until permanently dis- solved by the governor, Feb. 2, 1768. The new assembly elected that month proved no more tractable, but after the meeting of the first continental congress it failed by a vote of 11 to 12 to indorse the action of that body, and refused to elect delegates to the second. On May 1 it was prorogued by the governor, and it TINDER ENGLISH CONTROL 219 never met again. In December, 1775, Gov. Tryon removed part of the records to an armed ship lying in the harbor, where they remained till returned to the city of New York in 1781. In June, 1776, the other records were removed to Kingston. The committee of sixty, 1775, was chosen by the patriotic element of New York to carry into effect the suggestions of the continental con- gress ; and this issued a call for a provincial con- vention, to choose delegates to the second con- tinental congress. After the battle of Lexington it issued a call for an election by freeholders of a new committee of one hundred ''for the present unhappy exigency of affairs ", which took charge of municipal affairs, and also of the election of delegates to The New York provincial congress, 1775. This met on May 22, and provided for the govern- ment until the state should adopt a constitution. The date of the battle of Lexington, April 19, 1775, was fixed upon as the day on which the rule of England ceased. CHAPTER XX THE LEGISLATURE CONSIDERED AS A WHOLE The state constitution was adopted April 20, 17 77, and the election was held in June. Bryce says (i.511, 428) the state legislature is so much the strongest force in the several states that we may almost call it the govern- ment, and ignore all other authorities. It does not, like congress, get its power from the con- stitution, but as representing the people has all powers not regulated and hmited by the con- stitution. The first legislature met in Kingston in Octo- ber, but on approach of the British adjourned and met in January, 1778, at Poughkeepsie. It afterwards met in each of these places, in Al- bany, and in New York. Albany became the permanent capitol in 1797. The New York legislature is indirectly mod- elled upon parliament 1, but with many marked differences, among which the following may be named. iBi.180, 4o9. (220) LEaiSLATURE AND PARLIAMENT 221 Ifew York legislature Limited by national and state constitutions. Governor has power of veto. All bills may origin- ate in either house. Senate elected bien- nially. Assembly, 150 mem- bers, elected for one year. No property qualifi- cations for electors of legislators. Salary $1,500. Parliament Supreme. Veto power no long- er exercised. Appropriation bills can originate only in house of commons. House of lords here- ditary. Commons, 658 mem- bers, elected for 7 years, but may be dissolved at any time. Only those can vote for members who oc- cupy dwelling renting for .^50 a year. No salary. Annual sessions are held, beginning on the first Wednesday in January. The original constitutions of ten of the states fixed upon 1 year. South Carolina upon 2 years, and Ehode Island and Connecticut upon 6 months. ''So essential to republicanism was this principle deemed that the maxim ' where annual elections end tyranny begins ' had passed into a proverb. ' ' ^ Now however all the iBi.193. ooo THE LEGISLATURE states belonging to the original 13, except Massa- chusetts, Rhode Island, New York, New Jersey, and South Carolina, have biennial sessions, ^ while many of the states have limited the num- ber of days a legislature may sit, the last restric- tion often resulting in haste and recklessness in rushing bills through without due discussion. ^ The (lualifications prescribed for members are only negative. No person is ehgible to the legislature, vt^ho at the time of his election, is, or within 100 days previous thereto has been (1) a member of con- gress, (2) a civil or mihtary officer under the United States, or (3) an officer under any city government. If any person after his election to the legisla- ture is elected to congress, or appointed to any office, civil or military, under the government of the United States, or under any city govern- ment, his acceptance thereof vacates his seat (US), Of course he must be 21 years of age, and a citizen. An oath of office is required (280, 82), with a further oath (281) that the member has been con- cerned in no bribery (see page 160). This oath is usually administered by the secre- tary of state, but may be taken previously be- 1 B i.533. 467. 2 ^ i.534. PROVISIONS COMMON TO BOTH HOUSES 223 fore any justice of the supreme court, judge of a county court, mayor or recorder of any city, clerk of any county or court of record, or the attorney general or lieutenant governor. TJie salary is 11,500, with $1.00 for every ten miles travelled in going to and returning from the place of meeting, once each session, on the most usual route. Senators convened in extraordinary session get 110 a day additional. In impeachment trials the senators, and the members of assembly not to exceed 9 who are appointed managers of the impeachment, re- ceive 110 a day additional. See page 230. Members are exempt from arrest in civil suit while attending sessions and for 14 days before and after each session. ^ Each house has power to expel its members upon report of committee. The legislature consists of the senate and the assembly. Bryce says (i.461): '' The need for two cham- bers is deemed an axiom of political science, be- ing based on the belief that the innate tendency of an assembly to become hasty, tyrannical and corrupt, needs to be checked by the co-existence of another house of equal authority. The Americans restrain their legislatures by dividing them, just as the Eomans restrained their execu- 1 682:18927 5l>4 ' THE LEGISLATURE tive by substituting two consuls for one king. The only states that ever tried to do with a single house were Pennsylvania, Georgia, and Ver- mont, all of whom gave it up : the first after 4 yeare experience, the second after 12 years, the last after 50 years." On the other hand the bicameral system is often criticised. ^' When the object was the creation of pubhc sentiment, two houses secured twice as much pubhcity as one ; but when the object is despatch of pubhc business, two houses result in divided responsibility, with all the con- sequent delays and chicane. "^ The two houses have coordinate power in legis- lation ;2 and when vacancies occur elect by joint ballot United States senators (see page 455), regents of the University (see page 318), and the superintendent of public instruction (see page 309). Most legislatures follow the EngHsh prece- dent of restricting the initiative in appropriation bills to the lower house as more directly repre- senting the people (see page 451); but there is reason for this in New York, since both houses are equally representative (see page 229). The legislature has all powers not restricted by the state constitution (see page 136), or delegated to the national constitution (see page 342). Be - 1 Iladley, p. 78. 2 j^ i 433 RESTRICTIONS UPON LEGISLATIVE POWER 225 sides the restrictions in the bill of rights (112- 129), there are restrictions against private or local bills deahng with matters that should be treated only under general legislation (158-170). The tendency to guard against granting privileges to certain corporations is shown by the amend- ment of 1901. Although the legislature had al- ready been forbidden to grant a corporation any exclusive privilege, annuity, or franchise what- ever (169), this amendment specifically forbids it to grant exemption from taxation on real or personal property (169 a). CHAPTEE XXI THE TWO HOUSES CONSIDERED SEPARATELY The lower or popular house of the legislature is called in New York the assembly. ^ It consists of 150 members (14:2), elected an- nually by assembly districts, the state being divided as nearly as possible according to popu- lation by the last census, except that every county has one member save Hamilton, which is united in an assembly district with Fulton. Every other district must be whoUy within the limits of a county, and every district must be whoUy within a senate district (14:4; see page 229). See map, page 581. This division of the state gives much more equitable representation than that by towns, which still prevails to some extent in New Eng- land (see page 61). ^ The organization of the assembly occurs on the day of the opening of the legislature. The clerk of the last assembly, furnished by the secretary of state with an official list of the members elect, calls the assembly to order, and the first business is the election of a speaker (see page 121). The speaker has the appointment of a multi- 1 B i.460. 2Bi5G3. (227) THE STATE ASSEMBLY 229 tude of officers 1, such as his own clerk, stenog- rapher, and messenger, a postmaster, 10 general messengers, 2 committee messengers, 35 clerks of committees, 12 stenographers, etc. The other officers chosen by the assembly with their salaries are a clerk ($3,500 with $750 for indexing and not to exceed $750 for extra ser- vices and engrossing); a stenographer ($1,500); the sergeant-at-arms ($6.00 a day) ; and his assist- ants, a principal and 2 assistant doorkeepers ($5.00 per day). The upper or restricted house of the legislature is called the senate, but unlike the upper houses of most legislatures (see page 453) is elected in practically the same manner as the assembly, the only difference being that there are 50 members instead of 150, and that to prevent large cities from having too preponderating an influence in the senate, it is provided that no county shall have more than J and no two adjoining counties more than J of aU the senators (140); and if any county having 3 or more senators at the time of any apportionment shall be entitled on such ratio to an additional senator or senators, such additional senator or senators shaU be given to such county in addition to the 50 senators, and the whole number of senators shall be increased to that extent (14:1). 1467:1901, 230 THE TWO HOUSES OF THE LEGISLATURE The senate districts are shown in the map on page 581. The state will be redivided into sen- ate districts in 1906, according to the census of 1005. The term is 2 years, and election occurs in the even years. The organization of the senate is similar to that of the assembly, except that since the lieutenant- governor is ex- officio the presiding officer, no speaker is elected. Instead a president pro tem- pore is elected, to preside when the lieutenant- governor is not present (see page 199). The senate elects the same officers as the assembly, except the speaker, at the same sal- aries (see page 229), with the addition of a finan- cial clerk (^1,500), who in the assembly is ap- pointed by the clerk. The executive power of the senate Hes in its duty to confirm or reject appointments by the governor to such offices as those named on pages ?02 to 209. Its judicial power lies in impeachment (from Latin pes, foot, hence to fetter), which is an indictment brought against public officers by the assembly (218), acting in this case as a grand jury (see page 81). The court consists of the senators or a majority of them, and the judges of the court of appeals, or a majority of them, and the heutenant gov- ernor unless the charges are brought against the IMPEACHMENT 231 governor or lieutenant governor (218) when as an interested person he is disquahfied. A special oath is required to try the impeachment accord- ing to the evidence, a f vote of all members present is required for conviction, and judgment does not extend beyond removing the guilty per- son from office, and disquahfication to hold office of honor, trust, or profit under the state; but such person is liable to indictment and punish- ment according to law (218). The usual proceeding in the assembly is to appoint a committee to inquire into the alleged unlawful conduct of the officer complained of. If the committee reports in favor of impeach- ment and the assembly adopts the report, articles of impeachment are prepared and laid before the senate by a committee appointed. For corresponding power of the national sen- ate see page 458. In England the proceedings are similar, the house of commons finding the impeachme^nt and the house of lords trying it. CHAPTER XXII LAW-MAKING POWERS While the senate has some important execu- tive and one judicial power (see page 230), the main business of the legislature is^ as the name indicates (see page 28) to make laws (136). That in this it represents the people is kept in mind by the required enacting clause of every bin, ' ' The people of the state of New York, represented in senate and assembly, do enact as foUows" (154). Hence the power is absolute (171) except so far as it is limited by restrictions set by the con- stitutions (see page 132) of the state and of the United States, and by the laws of congress. The latter two will be considered later (see page 286). Cooley says : ' ' Plenary power in the legislature is the rule. A prohibition to exercise a particu- lar power is an exception. " ^ On questions upon which they do not Hke to commit themselves, like the regulation of the liquor traffic, legislators, are often glad to reheve themselves of responsibihty by referring the matter to popular vote, through a proposed amendment to the constitution. ^ iBi.324. 2Bi.451 (232) THE REFERENDUM 233 In South Dakota a law for referendum (from Latin re and ferre, to carry back) was recently- passed, under which 5 per cent of the voters may by petition presented within 90 days after ad- journment of the legislature require any law to be submitted to the people. In practice it has thus far been found impossible to secure the sig- natures of 5 per cent of the voters to such a petition, showing that the people are fairly satis- fied with the action of their representatives. Even on constitutional amendments (see page 134) the vote is usually hght. At the general election of 1901 while 332,968 votes were cast in New York county for district attorney, only 174,929 were cast for or against the amendment offered (169 a), 155,575 being left blank. Legislators a;^e however always glad to receive letters from their constituents expressing their views upon questions before them, and much good legislation has been secured and bad legisla- tion prevented by systematic letter-writing to members on the part of those interested. ^ There are few questions upon which a legislator will not vote as his constituents desire, if only he can be sure what they desire. The^^restrictions imposed by the constitution of New York are as follows as to scope : 1 B i.5^3. 234 LAW-MAKING POWERS The legislature is powerless to pay claims except as legally audited (172); makc^ payments except by appropriation and within 2 years (174); include in an appropriation bill any provision not relating to some particular appropriation in the bill (175); pass a tax bill which does not state the object to which it is to be applied (177); pass any private or local bill embracing more than one subject (156); grant any extra compensation to any public officer (181); give work to convicts the products of which shall be sold except to the state or some pohtical division of it (182). On the following subjects the legislature may pass general laws affecting the whole state alike (171), but may not pass special laws: changing names of persons (158); opening or closing roads (159); changing county-seats (160) ; changing place of trial (161); incorporating villages (162) ; election of supervisors (163) ; choosing jurors (164) ; rate of interest (165); conduct of elections (166); changing salaries during term of office (167); LIMITATIONS AS TO SCOPE 235 railroad franchises (168^ I'^'l); any exclusive privileges (169) ; building bridges, except as specified (170); These restrictions are sometimes evaded. Thus the constitution forbids that an act shall be passed affecting the elections of any single county; but by passing a law applying to all counties in the state having a population of more than 300,000 and less than 500,000, the legisla- ture makes a law general in form that applies only to Erie county. ^ Bryce refers frequently (i.482, 508, 550) to the tendency of legislatures to go so far into details in their laws as to obhterate executive discre- tion, specifying the purposes to which money is to be applied, and supervising the expenditure by its own committees. The most questionable use of legislative power is the extent to which it interferes in the government of cities. ^ The population of New York city is nearly one-half that of the state of New York ; but the state has power to extinguish the municipality, to govern the city by a single state commissioner appointed for the purpose, or to leave it without any gov- ernment whatever. The city would have no right of complaint to the national president or congress against such a measure. ' ' Massachu- ^ Bryce i.529 (see table of population, inside first cover.) 2Bi.516. <2'M\ LAW-MAKING POWERS setts has lately remodelled the city government of Boston just as the British parliament might remodel that of Birmingham. " ^ In Pennsylvania a law of 1901 sustained by the supreme court permits the governor to ap- point recorders in the place of the mayors of Pittsburg, Allegheny, and Scranton. Another law of 1901 provided for the incorporation of railways either elevated or underground with surface rights in all the streets of the cities not already occupied by railways. In Philadelphia 14 franchises covering 120 miles of streets were at once called for, and though one citizen offered 2 J millions for the franchises, the mayor gave them away for nothing, and with indecent haste. These requirements are made as to manner : To ensure deliberation, every bill must be printed in its final form and put on the desks of the members at least 3 days prior to its final passage (155). To ensure intelligent voting, every bill chang- ing an existing law, must have the law as it ex- ists inserted (157) for comparison. To ensure a representative majority, every bill appropriating money or property must have (a) if for local or private purposes the assent of J of all the members elected to each house (173); and {b) if for (1) laying a tax, (2) creating a pub. 1 -"^ i.407. LIMITATIONS AS TO MANNER 23? lie debt, (3) appropriating public money, or (4) releasing any claim of the state, a majority vote taken by yeas and nays, | of all the members elected to constitute a quorum. A quorum (a Latin word meaning '' if whom ") is the number of persons required in a legislative body to do business. In England the number required for a quorum in the house of lords is 3 ; in the house of com- mons 40. 1 Usually a majority of these elected constitutes a quorum (150), and a majority of these may pass a bill. Thus of the 150 members of assem- bly 76 constitute a quorum, and 39 may pass a bill. Note however : upon appropriation bills | of all members elected must give assent (173); upon the final passage of bills imposing a tax, creating a debt, or making an appropriation of public trust money f of all members elected must be present (178); to repass a. vetoed bill the votes of f of all members elected are required (191). For comparison of the requirements in con- gress see page 430. iBi.196. CHAPTER XXIII HOW LAWS ARE MADE The process of making a law begins by the in- troduction of a bill, which is in the form of a law or statute, and if passed and approved with- out amendment becomes a statute. A bill may be introduced (a) by order of the house ; (6) by message from the other house ; (c) by report of committee ; or {d) by a member in- dividually, in the senate by rising in his place and asking leave to present it ; in the assembly by depositing it in the '' bill-box ". By the last method, two copies of the biU must be deposited, endorsed by its title, and giving the name of the member introducing it. The clerk has charge of the box, and at the close of each day's session records each bill and hands one copy to the presiding officer for ex- amination, while the other copy is filed with the librarian for public inspection. At the next regular session the presiding officer announces the introduction of all such bills for their first reading (by title), and refers them by consent of the house to their appropriate com- mittees (see page 245). (238) THE THREE READINGS 239 The committee maj report against the bill, in which case if the house concurs the bill is re- jected. But if it reports it, with or without amendments, it is placed on the order of second reading. Here the bill is subject to debate and amend- ment, and must be read section by section. If amended it must be reprinted, and reported by the committee on printed and engrossed bills as correctly printed, before going to the tliird read- ing (155). Here no amendments are permitted except to fill blanks or by unanimous consent, or reported by a committee to which it has been referred. The three readings are compulsory, and must be on different days. A bill reported by a com- mittee to which such bill has not been referred must pass through first and second readings as though introduced by a member. Sometimes the rules as to readings are sus- pended, and a bill is introduced and passed im- mediately, without reading or reference to a committee. When bills have been favorably reported by the committee and are on their final passage, a minority will sometimes delay their passage by what is called obstructive debate, a series of speeches made without hope of influencing the majority but to consume time. This is some- 1>40 HOW LAWS ARE MADE times called filibustering (corrupted from English freebooter). ^ The remedy is what is called '' the provious question ", which is moved in the form, ''Shall the main question now be put?" and when ordered closes the debate and brings the house to a vote on the main question. ^ Both houses sometimes go into commitee of the whole, the speaker selecting some other chair- man and himself taking a seat upon the floor. It can not conclude any business and it can not adjourn ; but when it has completed the discus- sion desired, some member moves that the com- mittee do now rise, the presiding officer re- sumes the chair, and the chairman reports the business transacted in the committee. If the committee desires to adjourn, it first rises and reports progress to the speaker. The object of this committee is to give greater freedom in debate; the ayes and noes can not be demanded; in the senate committee there is no limit to the number of times a member may speak, and in the house committee the previous question does not apply. Sometimes a bill before the house involves party interests to such an extent that it is im- portant to command every vote. In such case a caucus (see page 176) of the members of the party in the house is called, by the results of ^Bi.l31. 2Bi.i31. THE VETO 241 which every member of the party is supposed to abide. ^ If the bill is passed by receiving the required vote, it is dehvered by the clerk to the other house, where it goes through the same process. If amended in this other house it must be re- turned to the first house for concurreDce, with- out which concurrence the bill is defeated. If passed in the same form by both houses, it is dehvered by the clerk of the house in which it originated to the governor. If signed by the governor (191), it is sent by him to the secretary of state, and is numbered in turn as a chapter of the laws of the year in which it is passed. After the adjournment of the legislature aU bills in the governor's hands to become laws must be signed within 30 days. The frequent references to laws in this volume are by chapter and year ; thus, 18:1901 is chap- ter 18 of the laws of 1901. If left unsigned by the governor, (a) if retained by him 10 days (Sundays excepted) during the session of the legislature, it becomes a law with- out his signature (191); {b) if the legislature by' adjournment within the 10 days prevents ita return, the bill does not become a law (191); (c) after the final adjournment of the legislature, it does not become a law (191). i~Bi.20l. 2-1.^ HOW LAWS ARE MADE If vetoed (see page 103) by the governor, it is returned by him with his objections to the house in which it originated. The house must enter the objections upon its journal and proceed to reconsider the bill. If it is then passed again by I of the members elected, it is sent with the governor's objections to the other house, and if approved by f of the members elected to that house becomes a law (191) ; otherwise not. In appropriation bills, the governor may ap- prove part of the items, and object to one or more of the others, in which case the disap- proved are again considered by the two houses as in case of return of entire biUs (191). This privilege was first given to New York governors by the constitution of 1846, and is unquestionably a wise one. Without it a corrupt legislature could force him to approve appropria- tions that he knew to be steals on penalty of stopping all the machinery of government for want of money to carry it on. It has been adopted in other states. The veto is a legislative power, and makes the governor in some sense a third house of the legislature. It was formerly possessed by the kings of England, but it has not been exercised since 180T, and as the constitution is now inter- preted has passed away. The king has no such veto. He must sign his own death-warrant if THE VETO 243 the two houses unanimously send it up to him, or abdicate. ^ ' ' Considering that the arbitrary use, by George III and his colonial governors, of the power of refusing bills passed by a colonial legislature had been a chief cause of the revolution of 1TT6, it is to the credit of the Americans that they in- serted this apparently undemocratic provision (which, however, existed in the constitution of Massachusetts of 1780) in the constitution of 1789. It has worked wonderfully well. " * * * '' It is an interesting commentary on the tenden- cies of democratic government, that in America reliance is coming to be placed more and more, in the nation, in the state, and in the city, upon the veto of the executive as a protection to the community against the legislative branch. "^ The checlis against majorities provided by the constitution are many, and have proved efficient. Thus a bill fails (1) if passed only by one house; (2) if passed by both houses and vetoed by the governor, unless repassed ; (3) if decided by the court of appeals to be un- constitutional. Sometimes an executive has refused to execute a law passed over his veto, so that it becomes inoperative until another governor is elected. 1 Bagehot, The English constitution. ^B\M, 283, 469, 244 HOW LAWS ARE MADE In the national constitutional convention it is probable an absolute veto would have been given to the president had not Benjamin Franklin pro- tested, saying it had been tried in Pennsylvania, where no good law could be passed without a private bargain with the governor. Of the presidents, Washington vetoed 2 bills; Madison 1, Monroe 1; John Adams, Jefferson, J. Q. Adams, none; Grant 41, Cleveland 343. The first bill passed over a veto was in Tyler's administration. CHAPTER XXIV LEGISLATIVE COMMITTEES We have seen that when first introduced a bill is referred to a committee, and that the house does not take action upon it till reported by the committee ; of most bills the fate is prac- tically decided in committee, ^ which can amend the bill, or delay reporting it till too late for action, or report it adversely. ^ The house may direct the committee to report forthwith, and may restore an amended bill to its original form ; but in practice the decision of the committee is rarely overruled. -^ • Hence the most important work of each mem- ber is done not in the general sessions but in the committee, and the house ' ^ has become not so much a legislative assembly as a huge panel from which such committees are selected. " ^ As the committees are named by the presiding officer, it is in his power by his choice of mem- bers largely to shape the legislation of the house, as well as to reward his friends and punish those who have opposed him. ■' 1 B i.l50, 648 ; ii.252. 2 3 i 153 3 3 i 143^ 154^ I57 4Bi.l55. 5 13 1136 (245) 24:6 LEGISLATIVE COMMITTEES As the presiding officer of each house is, un~ hke the speaker of parliament (see page 451), a pohtical partisan, he gives the most important places on the committees to members of his own party. Every member is, however, placed upon some committee, and most of them are placed upon several. Besides special committees, appointed to deal with questions that arise outside the regular work of standing committees, both houses- have the following standing committees : 12. villages, 13. internal affairs, 14. Indian affairs, 15. military affairs, 16. pubhc health, 17. taxation and re- trenchment, 18. public education, 19. privileges and elec- tions, 20. rules, 21. public printing, 22. printed and en- grossed bills. These committees deal practically with the same subjects though under different titles : 1. judiciary. 2. codes. 3. revision. 4. railroads. 5. canals. 6. commerce and nav- igation. 7. insurance, 8. banks. 9. agriculture, 10. trades and manu- factures, 11. cities. WORK BY COMMITTEES 247 senate 23. finance, 24. ways and means, 25. forest, fish, and 26. fisheries and game, game laws, 27. penal institutions, 28. state prisons. The following committees are found only in one house: senate 29. miscellaneous cor- 30. roads and bridges, porations ; assembly 37. general laws; 38. labor and indus- tries ; public lands and forestry ; claims ; federal relations. 39. 40 41 31. electricity, gas, and water; 32. excise; 3 3 . pubh c i nstitutions ; 34. soldiers home ; 35. charitable and re- ligious societies; 36. unfinished busi- ness ; The senate committees have from 3 to 11 members each; the house committees, 5 to 11 members. The most important committee in the assem- bly is that of ways and means, and its chairman is the leader of his party in the house. ^ Some bills deal with a subject embraced under the jurisdiction of two or more committees, and iBi.146, 173. 248 LEGISLATIVE COMMITTEES its fate may depend upon which of these com- mittees it is referred to. ^ From the fact that the work of the legislature is so largely done in committees, there is com- paratively little scope for oratory. ^ The new memher who has had some reputation in his local lyceum, and expects to sway the assembly by his eloquence, soon finds that the legislature is not conducted on the plan of school exhibitions. Macaulay says: ''Armies have won victories un- der bad generals, but no army ever won a vic- tory under a debating society." Parhament was made large in order to influence pubhc opinion. ' ' The abandonment of the duty of debate as to the common interest, and the sub- stitution of the work of negotiation as to the private and partisan interests of the several dis- tricts, have tended to convert the representative assembly from an object of public confidence to one of public distrust. ' ' ^ The committee system is probably ineyitable, * but it has many dangers. In the first place the responsibility is divided. Since the action upon a bill is by a committee of several members, no one of them can be held personally accountable, — he may claim to have been outvoted. On the other hand, as there are few members on a com- mittee each vote is powerful, and a corporation iBi.153. 2Bi.i41; ii. 268. » Hadley. p. 96. ^Bi.lSO. DANGERS 249 whose interests are affected can afford to pay an enormous price for the vote of a member subject to temptation. ^ A member's action may be deflected by other influences than a money bribe, and it is important for great corporations, always on guard lest their interests be injured by legislative action, to keep at Albany agents skilled in dealing with members of the legislature, known as lobbyists (so called from the lobby, the space just outside the hall, where members meet their friends). ^ These agents are often ex-members, of wide acquaintance and long experience, and are fre- quently paid much higher salaries than members receive. They are so numerous that they are often spoken of as the third chamber. Georgia has pronounced lobbying a crime, and California has declared it to be a felony. ^ It is claimed that corpora tior^s have the right to em- ploy a lobbyist as a party in a law- suit employs an attorney; but Bryce urges (i. 650) that in a law-suit the judge is surrounded by safe-guards of habit and opinion that would cut short his career were he to yield to such influences as often have weight with the members of a committee. How strong some of these influences are re- garded is shown by the provisions in the con- 1 B i,516, 648 ; ii.l52, 156. ^g i.i56, ^ 3 j 445^ 250 LEGISLATIVE COMMITTEES stitution against bribery (282) and even against accepting passes on railroads (285). ^ Action on a committee may also be unduly influenced by other members of the committee. Two members, each of whom has a bill to get through, or one of whom desires to prevent his railroad from being interfered with while the other wishes an item inserted in the appropri- ation bill, make a compact by which each aids the other. This is log-rolling -J you help me roll my log, which is too heavy for my unaided strength, and I help you to roll yours. Sometimes a member brings in a bill directed against some railroad or other great corporation, merely in order to levy blackmail upon it. This is technically called a strike. ^ Bryce says (ii.l53): "An eminent railroad president told me that for some years a certain senator regularly practised this trick. When he had brought in his bill he came straight to New York, called at the railroad offices, and asked the president what he would give him to withdraw the bill. ' ' ^ Some lawyers who are elected to the legisla- ture receive from powerful corporations retainers as lawyers, without the expectation of any ser- vice outside the legislature. ^ iBii.154. 2 i-iadley, p. 79. ^ g j 5^3^ *Bii.l54. 5 B ii.loo. THE LEGISLATURE TRULY REPRESENTATIVE ,251 From such instances there has arisen a ten- dency to undervalue the work of the legislature, to suspect the integrity of the members, and to refer to membership as conferring no dignity. The fact remains, however, fhat it is, as it was intended to be, fairly representative of the people of New York. Election to the assembly is rightly regarded an honor, and election to the senate is a distinguished honor. The various districts are represented not only by the men the electdi"s have chosen but by men who have a right to speak for their electors. If an assem- blyman or a senator is corrupt and known to be corrupt and yet is re-elected, it is reasonably cer- tain that he comes from a corrupt district. But with all the criticisms that may be made upon the men New York has chosen to represent her, it is still true that the body of civil and criminal law they have enacted is to-day in the forefront of modern jurisprudence, an honor to the state and a panoply to its citizens. CHAPTER XXV COURTS OF LAW We have considered the executive and the legislative departments of the state government, and we come now to the third, the judiciary. The primary condition of government is that it has laws and that it enforces them. The laws may be elementary and insufficient; the^ may not all be enforced. But unless there is a recog- nized force that compels obedience to law there is no government ; there is auarcliy (from Greek a privative and arche, government, without gov- ernment), where every man does as he happens to please, and there is no compelling authority to preserve order and administer justice. Law in its general sense is a rule of action, as the law of gravitation. As a rule of conduct, it is in its relation to a person's conscience the moral law or the law of nature ; as based upon the teachings of the Bible it is known as revealed or divine law (see page 15). As used in civics it is an ofticially established rule for regulating social, action, prescribing some things and forbid- ding others. In a republic it is the controlling will of the people expressed as to a particular rule of conduct (see page 232). (252) WHAT LAW IS 253 The common law is the accumulation of legal decisions through many generations, the decision of each judge becoming a precedent for other judges, and the repeated decisions of many judges becoming fixed law (see page 59). ^' This is not law," remarked a judge before whom Daniel Webster was pleading. '' It was law until your honor spoke, ' ' was the reply. The justice's court is ''the humblest court in the land, the court of greatest antiquity, and the court upon which all other courts are founded. ' ' ^ In the early English town meetings justice between man and man was administered directly, the old men stating the custom in such matters, and the entire community voting upon each case. Such cases formed the basis of the Common Law of England. Justices of the 'peace were ap- pointed in 1191, and received that name under Edward III (1327-1377), who empowered them to try felonies. See pages 29, 36. In provision for jury trial in the federal con- stitution (90) the term common law is used in contra distinction from equity, admiralty, and maritime jurisprudence, in all of which the courts determine both law and fact. The su- preme court had been vested (68) with appellate jurisdiction both as to law and fact. This amendment (90) was to correct the misapprehen- 1 Thorpe. 254^ COURTS OF LAW sioii that the supreme court was authorized to review the decision of the jury in mere matters of fact. New York authorizes the common law (1-7). Common law is based upon the accumulated common sense of generations, and usually ap- peals to the common sense of the present genera- tion. When it fails to do so it is disregarded, or is supplanted by statute law (see page 132). ^ The law is an instrument for the protection of the people, and when it begins to oppress the people it will be overturned (127). ''In a free country all decisions of the courts rest upon the general consent and conscience of the people themselves."^ ' ' Bentham may be said to have overthrown a theory which was historically false and phopheti- cally true, and substituted one which was his- torically true and prophetically false. Things have been law, not because they were just or even logical, but because the courts enunciated them. But it is safe to prophesy that this state of things will continue only so long as the courts are respected by the public as being at once just and logical. It is right as well as convenient for the lawyer to assume that whatever the courts command will be law; but only because the courts show themselves clearer- sighted than the ' B i.482. ^ B ii.445. THE FOUNDATION OF LAW 255 body of the nation. The authority of the Eng- lish courts, while nominally derived from the crown, has been practically derived from their own good sense and progressiveness. " ^ On the other hand, the machinery of the law sometimes seems to the people insufficient, and then what is called lynch law deals with crimes that seem likely to go unpunished. Sometimes a volunteer jury is summoned, but often the supposed criminal is simply seized and executed. ^ Such peremptory punishment is common in the southern states, and not rare in some of the northern states, but it is often mistaken and always exceedingly dangerous. There was formerly a further distinction be- tween courts of common law and courts of equity (from Latin aequus, equal, just) or chan- cery (from Latin cancelli, the crossbars which surrounded the seat of judgment), the special province of which was to relieve persons from hard bargains, where the stricter rules of other courts would be inadequate. There are cases where the forms of the law have been followed and no direct fraud or deceit can be shown, and yet where a strict construction of the law would work injustice, such as in partnerships, in the administration of trusts, and where by mistake iHadley, p. 74; see also p. 30. ^ g 11,453, L>:)(; COURTS OF LAW or accident or the fault of another hardship would follow unjustly. But the latitude given the judges in these courts aroused suspicion that this laxity was sometimes abused, and the popular party of the 17th century in England opposed them. ^ Chan- cery courts were aboHshed in New York in 1846 (201, 206). 2 Some states have established in place of chan- cery courts a tribunal of arbitration (from Latin arbiter, one who comes to look on) ; or a court of conciliation (from Latin con and calare, to call together), where commissioners of conciliation are elected like justices of the peace, and are associated with the justice in trying cases, no attorney being allowed to be present, the effort being to bring the parties to an agreement. Should the effort fail, the case is tried as usual, but the proceedings before the commissioners form no part of the evidence, and the commis- sioner can not testify. It is said that in Norway nine-tenths of the litigation in civil cases is settled in this way. Municipal or civil law relates to business and property relations. It includes commercial law, dealing especially with the regulation of trade and commerce. The issue is as to money due and the control of property. ' B i.480. ■' B i.481. KINDS OF LAW 257 Criminal law deals with violations of the law, the end being to punish the guilty person by- fine, by imprisonment, or by death. Prosecu- tion is brought "in the name of the people", showing that the law is to protect the people. A court martial (from Latin Mars, the god of war) is a military court composed of officers, to try offences against military law. The court for the trial of impeachments (218) has already been described (see page 230). The judicial department has two functions: (1) to interpret what the law is and whether it is constitutional (if not, it is not a law [see page 132]); (2) to pronounce upon its application to particular cases, when disputes arise. Before the law can be executed, its application to the particular instance involved must often be de- termined and this is done by trial in courts of law. 1 For the former, see page 286. We shall consider the latter function first, because it was historically first. Originally legislative, executive, and judicial functions were all united in the s^me person, the sovereign, or in the same body, as in the town- m'eeting (see page 26). On some matters of Eng- hsh law the house of lords is still the court of last appeal. ' ' In most countries the courts have grown out of the legislature; or rather, the iBii.247. 258 COURTS OF LAW sovereign body, which, like parliament, was originally both a law court and a legislature, has dehvered over most of its judicial duties to other persons, while retaining some few to be still exercised by itself. ' ' ^ The second charter of Massachusetts tended to separate legislative and judicial functions, as in appointing circuit judges to hold court in the counties. The idea of complete separa- tion was developed before the revolution. The Enghshmen who came to America as col- onists were used to these courts : 1. Justices' court, or petty session. 2. Justices' court in quarter sessions, which heard appeals from (1), and considered more important cases. 3. Assize courts, held by justices sent out from the high courts of the kingdom, which tried the most important cases. 4. High courts, to hear appeals, and cases involving matters of state. 5. The king's council, especially the house of lords and the privy council. Under its first charter, the judicial business of the colony of Massachusetts was in the hands of the governor and council, of magistrates whom they appointed, and of local magistrates elected in the towns. The 18 members of the 1 B i.235. ATTORNEYS AND COUNSELLORS 259 governor's council held court for small cases in the towns where they lived. In other towns commissioners of small causes were chosen. The governor and assistants held courts once a month, and 4 great courts a year were held for important cases. In 1691 county courts were organized, and justices of the peace were ap- pointed in the different counties by the governor. . This was the general colonial type : 1. Justice of the peace, petty sessions. 2. Justices of the peace, quarter sessions. 3. Courts of intermediate grade, held by judge of governor's council or high court. 4. Supreme court. A man has a right to plead his own case in court, but in practice he does it through attor- neys. It is a common saying that a man who is his own lawyer has a fool for a client. An attorney (from Latin ad and tornare, to turn in a lathe) is in general one legally appointed by another to do business for him. An attorney at law is a practitioner in a court of law, legally qualified to prosecute and defend actions. A counsellor at law (from Latin consilium, coun- sel) is one legally quahfied to give legal advice and manage cases in court. In England the term for attorney is solicitor and that for coun- sellor is barrister, the solicitor carrying on the practical and formal part of the suit. In the 260 COURTS OF LAW United States no distinction is made, and the general term la^^^rer is commonly employed. To be admitted to the New York bar, which is the term employed for certifying legal quah- fication as a lawyer, a person must be (1) 21 years of age, (2) a citizen of the United States (women are admitted), (3) of good moral char- acter; (4) (a) with a certificate of having passed the regents examinations, or (b) a graduate of an academy, or (c) have had one year in a col- lege or university ; (5) must have served 3 years as a clerk in the office of a practising attorney of the supreme court ; and (6) must have passed a satisfactory examination before the state board of examiners. Of the clerkship 2 years may be spent in a law school, and college graduates may deduct 1 year. It is manifest that the success of a judicial system will depend upon the judges (from Latin judex, a judge) who preside in the courts. In 11 of the 13 colonies the judges were ap- pointed by the governor. Under the 13 original state constitutions 5 left the appointment to the governor with consent of the council, 1 to the governor and legislature in joint ballot, 6 to the legislature, and 1 to the people. Massachusetts judges are still appointed by the governor and council, for Hfe or during good behavior. ^ Con- 1 B i.484, 603. JUDGES 261 necticut, which had vested the appointment in the legislature, and Mississippi, which had left it to the people, have given it to the governor with approval of the legislature or the senate. ^ In the 10 years ending 1886, Florida was the only state to take the appointments from the legisla- ture or governor and entrust it to popular vote. ^ Whether judges should be appointed or elected is a much debated question. The arguments may be briefly summarized as follows : For appointment The people being un- able to estimate the qualifications of candi- dates elect inferior men. An appointing officer, being held responsible, takes care to choose su- perior men. The judge looking forward to reelection, hesitates to render a decision likely to be un- popular. 3 Abler men will accept the places, as the honor 1 B i.489, 2 51,489. ^b For election If the people are not to be trusted in the se- lection of officers, then our whole republican system is on a false foundation. An appointing officer is likely to give prefer- ence to personal or pohtical friends. An appointed judge must remember in his decisions those to whom he owes his appoint- ment. To have pleased a single man is not so i.365. 262 COURTS OF LAW is greater and the risks of a political campaign are escaped. in- great an honor as to have pleased an entire community. A man is unworthy of' election as judge if his record is such that he fears to have it vestigated. In New York the decision of the people been in favor of an elective judiciary. ^ On the other hand the judges of national courts have always been appointed (see page 282). There is also the question as to term of office. If a judge is appointed for hfe, he is independ- ent of fear or favor. Only 4 states now give judges this tenure, the term of office varying from 2 years in Vermont to 21 years in Pennsyl- vania. 2 Prentice, pp. 379, 405, 531. B i.484. CHAPTEE XXVI THE STATE COURTS We hare spoken of the judicial system of the town (see page 30) and of the county (see page 76). The judicial system of the state consists of the supreme court and the court of appeals (201). The supreme couii; hardly deserves its name (a Latin word meaning highest), for there is a higher court, the court of appeals. In several states the name for this is the superior court, while the court of appeals is called the supreme court. It is often called the circuit court (209) because most of the districts include several counties, and the judges travel from one county to another. It has both original and appellate jurisdiction (see page 7T), in law and equity (see page ^^^), and in all actions civil and criminal not provided for in the lower courts. It consists of 76 justices, in 8 judicial districts (201), as shown on page 569. The qualifications are that the candidate be at the time an attorney or counsellor (see page 259) in a court of record (see page 268) of the state (226). A justice may not hold any other office (263) 264 NE'.V YORK SUPREME COURT or public trust (215), or practise as attorney or act as referee (226). He may be removed on concurrent resolution of both houses of the legislature if | of the members of each house concur (216). He may not serve after the year in which he became TO years old (217). Justices are elected on the general ticket, for a term of 14 years (207). They may be removed only for cause and by concurrent action of the legislature (216). Vacancies are filled till Dec. 31 next following the next general election by the governor, the senate to concur if in session (207). The salary is ^6, 000, with an annual allowance for expenses (226), but may be increased by the board of supervisors to not more than $14,000. ^ The procedure of a civil suit in the supreme court is as follows : The party bringing the action or suing (akin to Latin sequi, to follow) is called the plaintiff (from Latin plangere, to beat the breast, to lament), and the suit begins by the service upon the party against whom the action is brought, the defendant (from Latin defendere, to ward off), of a summons (see page 30), issued by some jus- tice upon affidavit of the plaintiff, summoning him to appear in court to make answer to com- 1299:1901. PROCEDURE IN CIVIL SUITS 265 plaint. Should the defendant fail to appear, judgment may be issued for the plaintiff; but if good reason for the defendant's non-appearance is subsequently given, the judgment may be re- opened on payment of costs. The defendant usually appears not in person but by attorney ; and the plaintiff files or serves his declaration or complaint (from Latin con and plangere, as above) setting forth the grounds upon which he claims judgment. To this with- in 30 days the defendant makes answer by fil- ing his plea (from Latin placere, to please) or demurrer (from Latin mora, delay), stating his side of the case. These papers are called plead- ings. If there is agreement as to facts no trial is necessary, and the justice decides the question as to the law. If the pleadings differ as to facts, these must be settled by a trial (from Latin terere, to thresh, a place where facts are threshed out of the evi- dence) to which witnesses are summoned by sub- poena (see page 30). A justice presides, and unless waived by agree- ment, a jury is impanelled (see page 83), after which the plaintiff's lawyer makes a brief state- ment of his case and calls his witnesses. When each has finished his testimony, the defendant's lawyer may cross-examine, or ask questions bringing out facts favorable to the defendant 'c 266 NEW YORK SUPREME COU^IT side, or tending to show that the witness has testified falsely. When the plaintiff's lawyer has called all his witnesses, he ''rests"; after which the de- fendant's lawyer makes his statement of the case, and calls his witnesses, who may also be cross-examined. Afterward each lawyer may call witnesses for rebuttal. Then the lawyer for the defence sums up the case, reviewing the evi- dence, stating points of law, and endeavoring to make it appear that the law and the facts are on his side. The lawyer for the plaintiff then sums up, trying to impress the jury that the law and facts are on his side. Then the judge dehv- ers a charge to the jury, stating the law, and calling attention to the bearing upon the decision of the facts, which they alone are to determine. The jury retires ; and if it can agree (see page 85) brings in its verdict (from Latin verum, true, and dictum, saying). After this, or decision by the court if there has been no jury, the success- ful party enters judgment, a decree by the court. If the plaintiff wins, this is for the amount given in the verdict; and if the verdict is over |50, also for costs, a fixed scale of charges to reimburse the successful party for the legal expenses of the suit. This limitation is to discourage litigation over small claims. If the verdict is for the defendant, then he enters judgment for costs. PROCEDURE IN CRIMINAL SUITS ^67 Unless the judgment is paid within 30 days, an execution (from Latin ex and sequi, to follow) is issued against the property of the defeated person, and the sheriff may sell sufficient of it to cover the amount of judgment (see page 67). In case of appeal to a higher court, security naust be given by the defeated party. In criminal cases the procedure is much the same. The state is always the plaintiff, the dis- trict attorney conducts the case for the state; and instead of a summons there must be an indictment (see page 82) followed by arrest (from Latin re and stare, to stand), and usually by bail (see page 1J:1). The prisoner is then in custody of his bondmen, and if they think him likely to avoid trial they may cause his arrest at any time. If accused of a crime punishable by death, bail is not granted. Before indictment, to prevent a suspected per- son from escaping before the grand jury sits, there is often an examination before a justice of the peace or some other magistrate (see page 30), who has upon complaint issued a warrant upon which the suspected person is arrested and brought before him. If the officer thinks the arrested man should be tried he commits him to await action of the grand jury to prison, from which he is usually released on bail. He has the right to a writ of habeas corpus (see page 138), !2(>8 NEW YORK SUPREME COURT if he thinks he can per«uade some judge that he is unlawfully held. When arraigned (from Latin ad and ratio, called to judgment) for trial, if he has not money to secure counsel the state furnishes him a law- yer (see page lil). He is called upon to plead guilty or not guilty. If he pleads guilty he is sentenced; unless the crime be of murder, in which case the plea of guilty is not accepted and trial is insisted upon, as in the case of Czolgosz, the assassin of McKinley. If he pleads not guilty, the trial goes on. The proceedings are then similar to those in civil cases. The national constitution makes provision that every prisoner have a trial speedy and public (89). If the prisoner is convicted, the judge pro- nounces sentence (from Latin sentire, to think) — that is, announces what the punishment will be. If the sentence be wholly or partially a ffne (see page 142), execution may be levied against property as in civil judgments. In some cases, like assault, fraud, and libel, a man sentenced to pay a fine may be imprisoned till he does so. Many cases, both civil and criminal, may be tried in either county or supreme court, and some may be tried in either supreme or federal court (see page 279). The supreme court is a court of record ; that is the proceedings are taken down by an official SPECIAL TERMS 260 stenographer, and copies may be had by paying for the copying. When a case is appealed the proceedings of the trial are printed in full, some- times filling many large volumes. The important decisions are printed, and form precedents (see page 253). The federal constitution provides that full faith and credit shall be given in each state to the acts, records, and judicial proceedings of every other state (72). The proceedings we have described are those of courts at trial terms. Each justice also holds special terms, where without a jury he hears and decides motions, applications for some order de- sired, as to change the place of trial. Besides the writ of habeas corpus (see page 138), justices are often called upon to issue a mandamus (Latin, we command), to compel a civil officer to perform some duty he has neglected. Another frequent exercise of power is the injunction (from Latin in and jungere, to join), restraining an officer from some action ; another is a stay of execution of a sentence. The legitimate purpose of an injunction is to prevent waste and irreparable injury to property, and the mandamus and injunction and stay, are properly used only when the cases can not be reached by ordinary prosecution in the court; but in practice they are often issued after hear- 270 NEW YORK SUPREME COURT ing only one side, by a judge not properly in jurisdiction, through his favor or his ignorance of the facts. There is frequent complaint against this icoveriiiueut by injunction. Still another writ issued by justices is that of quo warranto (Latin, by what warrant), to inquire by what authority a person or a corporation exer- cises certain powers. A writ of error is granted for the purpose of bringing before the justice for review the record of proceedings in court in which it is claimed by the party applying for the writ there have been errors of law committed. All these powers of the supreme court are within their original jurisdiction. But the court has also appellate (see page 77) jurisdiction. Cases tried in a lower court may be taken by the defeated party to a higher court either by appeal, in which case the whole case is tried over ; or by certiorari (Latin, to be certified), in which case the testimony given in the lower court is received and only questions of law are reviewed. In the colonial courts the appeal was to the English privy council. ^ In the judicial system of New York there is appeal from the justice's court to the county court ; from the county court or from trial term in the supreme court to special term ; from special term to the appellate division ; iBi.16. APPELLATE DIVISION 271 and from the appellate division to the court of appeals. The appellate division of the supreme court (203) is created expressly to hear appjeals from the supreme courts. It consists of 22 justices appointed by the governor (204) from the 76 (see page 569). The state is divided into 4 judicial departments (202), the first containing the city and county of New York, and the others bounded by county lines containing as nearly as possible an equal number of inhabitants (see map, page 568). There are 7 justices in the 1st district, and 5 in each of the others. For each judicial department the governor designates a presiding justice (204), who must reside in the department and act during his term of office. The others are appointed for 5 years, and a majority must reside in the department. Not more than 5 justices sit in any case ; 4 constitute a quorum, and 3 must unite to make a decision (203). No justice may sit in review of a decision made by him (206). The justices of the appellate division in each department fix the time and place for holding trial and special terms, assign justices, and make rules (205). They may also appoint a reporter (204); but the seal of the court is that of the county clerk of the county in which the court is held. THE COURT OF APPEALS 273 The court of appeals consists of a chief judge and 6 associate judges, elected on the general state ticket for a term of 14 years (210). They may not hold any other office (215) and may be removed Hke justices (216). They may not serve after the year in which they become TO years old (217). Vacancies are filled as in the supreme court (211). Except where the judgment is of death it re- views only questions of law (212). It takes 5 to constitute a quorum, and 4 to make a decision (210). It may correct or reverse all decisions of the lower courts except a unamimous decision of the appellate division (212). There are some hmitations as to cases subject to appeal, but it must not depend on amount involved (212, 213). The salary of the chief judge is 110,500, of the associate judges $10,000; with $2,000 for travelling expenses. It elects its own clerk and reporter, and has chambers in the state capitol, but sometimes sits elsewhere, as in Saratoga Springs. For Hst of judges see page 566. The appellate court either (1) affirms the de- cision of the lower court, (2) reverses it, or (3) grants a new trial. In the last case it is tried in the same or a similar court, but with a different jury. Should the court of appeals affirm a criminal conviction, the only further appeal is to the governor for pardon, reprieve, or commuta- tion (see page 193). CHAPTER XXVII UNITED STATES COURTS In some cases there is possibiKty of further appeal, even from the court of appeals. The supreme couii; of the United States is the final arbiter in all cases (1) in law and equity arising under the federal or state constitutions, federal laws, or treaties ; (2) in cases of admiralty and maritime jurisdiction; and in controversies, (3) to which the United States is a party, (4) between citizens of different states, (5) between citizens of the same state claiming lands under grants of different states, and (6) between a state or the citizens thereof and foreign states, citizens, or subjects (67, 94). From its decisions there is no appeal (67, 68). This court was a necessity. The decisions of state courts might differ, and there must be a final resort to establish the law of the nation. The confederation had no such tribunal, and the decisions of the state courts were capricious and conflicting. Without this power the national gov- ernment would be at the mercy of the state courts, with no power to compel the courts to (275) 27() UNITED STATES COURTS perform their functions, or to enforce their decisions. ^ It will be observed that the appellate power of the supreme court is limited to actual cases brought before it. When in 1793 President Washington asked it to give opinion on the con- struction of the treaty with France, it declined to comply. 2 Appeals from a state to a national court are allowed only when as decided by the highest court of the state the judgment rendered is claimed to be in violation of the national constitution or of some law ort reaty of the national government (67). Such appeals are therefore few. The most frequent have been in connection with the constitutional prohibition upon the states to make a law violating a contract. Several have been taken with reference to the 14th amend- ment (99). Some states have made laws forbid- ding the manufacture and sale of intoxicating liquors. The owners of property used for such manufacture have appealed to the supreme court that the law deprived them of property without due process of law. But the supreme court has ruled that such loss of property was incidental to the legitimate police power of the state. 1 B. i. 228-236. For full justification and explanation of their power, see chief justice Jay in The Federalist, No. 80. 2 Bi. 257, 488. THE COURT OF APPEALS 277 Besides its appellate jurisdiction the supreme court has original jurisdiction (68) (1) in all cases affecting ambassadors, and other public minis- ters and consuls; (2) in all cases where, the state is a party. The limitation of original jurisdiction to cases brought before it is to ensure that the power of the court be judicial, not political. Thus a dis- pute arose between the states of Iowa and Mis- souri as to the northern boundary. This is fixed by the constitution of Missouri as on a parallel passing through the rapids of the Des Moines river, Iowa held that the rapids were several miles south of the point claimed by Missouri, and when a Missouri sheriff attempted to serve a writ on a man in the disputed territory, the Iowa governor ordered out the militia. But it was agreed to submit the matter to the supreme court. A case was made up and argued, the court decided in favor of Iowa, and there was no bloodshed. But the supreme court could not have acted had not the case been submitted. The supreme court is composed of a chief justice and 8 associate justices, any 6 constituting a quorum (see page 237). It holds one term a year at Washington, beginning on the 2d Mon- day of October. As a single court could not consider all the cases that come properly under federal jurisdic- 278 UNITED STATES COURTS tion, congress is authorized (66) to establish such inferior courts as may be necessary. It has thus far estabhshed three kinds of inferior courts, district courts, circuit courts, and circuit courts of appeal, besides a court of claims. Every state has at least one district court, and the larger states have 2 or 3 districts, each with its own court. Usually each district has its own judge, but in a few cases one judge has charge of 2 districts. New York has 3 district courts, each with its own judge. ^ This court has only original jurisdiction. It may try any crime against the United States committed within the district, except those pun- ishable by death. The crime must be a violation of federal statute law; there is no national common law (see page 253) 2. But when a national law is violated, such as robbing the mail, counterfeit- ing, or evading revenue laws, the trial must be before a national, not before a state court. On the other hand violations of state laws, such as those against assault, theft, murder, etc., can be tried only in state courts, and these constitute the vast majority of cases. Where there are both national and state laws, as against counterfeiting, the government that first arrests the offender is allowed to try him and punish him, 1 B i.328 (see map, page 586.) ^ j^ j 233, 323. DISTRICT COURTS 279 Civil cases arising in the administration of the national laws may also be tried in this court. The plaintiff who bases his claim on a national law may bring suit in a district court ; and if a case is begun in a state court, the defendant if he bases his defence upon a national enactment may have it removed to a national court. ^ Bryce says (i.234; see also 228): '^ The French or English reader may ask how it is possible to work a system so extremely complex, under which every yard of ground in the Union is covered by two jurisdictions, with two sets of judges and two sets of officers, responsible to dif- ferent superiors, their spheres of action divided only by an ideal line, and their action liable in practice to clash. The answer is that the system does work, and now, after a hundred years of experience, works smoothly. It is more costly than the simpler systems of France, Prussia, or England, tl^ough, owing to the small salaries paid, the expense falls rather on litigants than on the public treasury. But it leads to few con- flicts or heart-burnings because the key to all difficulties is found in the principle that wherever federal law is applicable federal law must pre- vail, and that every suitor who contends that federal law is applicable is entitled to have the point determined by a federal court. ' ' 1 B i.228. 2 so UNITED STATES COURTS There are 9 circuit courts, the 1st and 4th with 2 judges; each of the others with 3. The 2d circuit includes New York, Vermont, and Con- necticut. Of the 3 judges in 1901, 2 hve in New York city. To each circuit there is also allotted a justice of the supreme court, who is to hold a court in it at least once in 2 years. The court may be held by the circuit judge alone, by the supreme court circuit judge alone, or by both together, or by either or both sitting along by the district judges of the district where the circuit court is held, ^ thus bringing together judges from the 3 national courts. This court has only original jurisdiction, which extends over the higher criminal offences against the laws of the United States. Suits under copy- right or patent laws are brought in this court. In civil cases, ordinarily the amount involved must exceed $2, 000 ; but it has jurisdiction irre- spective of amount in such cases as those begun by the United States against national banks, or by persons who claim that some right or privilege granted by the United States is infringed by a state law. In 1891 a circuit court of appeals was estab- lished in each of the 9 circuits. This court has only appellate jurisdiction; but CIRCUIT COURTS 281 this is final in certain minor cases, as where the decision depends on whether the parties are ahens or citizens, those in admirahty cases, and those arising under the patent, the revenue, and the criminal laws. It reviews all cases originally begun in district or circuit courts except those reviewable only in the supreme court. Besides this graded system in United States courts there is a court of claims similar to that in New York (see page 206), to hear and determine claims against the United States. As the gov- ernment can not in the regular courts be sued by a citizen except by its consent (94), ^ this court gives persons having claims for contract or otherwise an opportunity to bring suit. If this court decides the claim to be vahd, congress usu- ally passes a law to pay the money. Appeal lies to the supreme court. The court of claims is composed of a chief justice and 4 associate jus- tices, with salaries of 14,500 each. Each territory (see page 358) has also a supreme court of 3 or more judges, appointed for 4 years. The law it administers is partly national, all national statutes being construed to take effect, where properly applicable, in the territories ; and partly local, created in each territory by its own statutes. Appeals, where the sum in dispute is 1 Federalist, Ko. 81, 282 UNITED STATES COURTS above a certain value, go to the national supreme court. ^ There is considerable territory v^ithin the limits of the states that has been purchased by the government for arsenals, dock-yards, etc., and where state authority does not reach. It is provided (69) that in such cases congress may determine where the trial shall be held. The District of Columbia (see page 360) has a supreme court of 1 chief justice and 5 assistant justices, with original jurisdiction in law and equity. Any one of them may hold a district court for the district of Columbia, with powers similar to those of judges of the district courts. Appeals may be taken to a court of appeals, consisting of the chief justice and 2 associate justices; and from this, in some cases, to the national supreme court. All judges of United States courts are appointed by the president with consent of the senate ; and, except those in territories, for life, or during good behavior. Any judge who has held his commis- sion 10 years may when TO years of age resign and receive for the rest of his hfe the salary he has been receiving. Bryce says (i.226): "They hold office during good behavior, i. e., they are removable only by 1 B i.555. APPOINTED JUDGES 283 impeachment. They have thus a tenure even more secure than that of EngHsh judges, for the latter may be removed by the crown on an ad- dress from both houses of parHament. More- over, the EngHsh statutes secure the permanence only of the judges of the supreme court of judi- cature, not also of judges of county or other local courts, while the provisions of the Ameri- can constitution are held to apply to the inferior as well as the superior federal judges. ' ' And again (i.265): ''The federal circuit and district judges, small as are their salaries, are in most states individually superior men to the state judges, because the greater security of tenure induces abler men to accept the post. Being irremovable, they feel themselves independent of parties and politicians, whom the elected state judge, holding for a limited term, may be tempted to conciliate with a view to re-election. Plain- tiffs, therefore, when they have a choice of suing in a state court or a federal court, frequently prefer the latter ; and the litigant who belongs to a foreign country, or to a different state from that in which his opponent resides, may think his prospects of an unbiased decision better be- fore it than before a state tribunal." The salaries of United States judges are as fol- lows : L>,S4: UNITED STATES COURTS chief judge other judges supreme court '. 110,500 $10,000 circuit court of appeals 6,000 circuit court 6,000 district court 5,000 territorial court 3, 000 supreme court. District of Co- lumbia 5,000 4,500 As in case of the president (see page 371) the salary of federal judges can not be increased or diminished while they are in office. All three United States courts have officers. The supreme court has a clerk ; a marshal, with duties corresponding with the court duties of a sheriff (see page 67); and a reporter. Each cir- cuit court of appeals appoints its own clerk and inarsha]. Each district court has a clerk and a district attorney, with duties corresponding with those in the county (see page 78), and a marshal. The clerk is appointed by the judge. The marshal and the district attorney are appointed by the president and senate, and are also officers of the circuit court. They are under direction of the attorney-general (see page 396), who thus has a network of federal authorities covering the entire country, and independent of state courts and state authorities. ^ 1 B i.234. OFFICERS 285 In each of the smaller districts into which the districts are divided the circuit judge appoints a United States commissioner, corresponding with a justice of the peace (see page 36), who passes on inferior maritime questions, assists in collecting evidence, makes examinations, and holds for trial. Any judge or magistrate of either state or federal government may order the arrest of a person charged with crime against the United States ; and for this purpose a state officer acts as United States commissioner, and is responsible only to the federal government. The appointment of some of the inferior offi- cers of the courts (62) is the only executive func- tion possessed by United States courts. The judgments pronounced in civil cases by federal courts are executed by- the officers of these courts. All other offences and disorders whatsoever are left to be dealt with by the duly constituted authorities of the state. They may summon national power in case of disturbances ^ (see page 198). The only chief justice appointed from New York has been John Jay* (1789-94). The associate jus- tices have been Brockholst Livingstonf (1806-23), Smith Thompsonf (1823-43), Samuel Nelson* (1845-72), Ward Hunt* (1872-82), Samuel Blatch- fordt (1882-93), Rufus W. Peckham (1895- ). 1 B i.323. * Resigned. f Died in office. CHAPTER XXVIII CONSTITUTIONALITY OF STATUTES The powers of the courts thus far considered have been in reference to particular cases brought before them. We have now to consider their greatest and most important power, to pronounce upon the constitutionahty of a law. The supreme law of the land is the national constitution, the national laws that do not violate it, and the treaties made in accordance with it ; and this supreme law is law in every state, anything in the laws or constitution of the state to the contrary notwithstanding (81 ; see page 132). Bryce says (i.243, 266): ''The duty of . the judges is as strictly confined to the interpreta- tion of the laws cited to them as it is in England or France; and the only difference is that in America there are laws of four different degrees of authority, whereas in England all laws (ex- cluding mere by-laws, privy council ordinances, etc.) are equal because all proceed from parha- ment. These four kinds of American laws are : I. The federal constitution. II. Federal statutes. THE GREATEST POWER OF THE COURTS 287 III. State constitutions. IV. State statutes. " The American law court therefore does not itself enter on any conflict with the legislature. It merely secures to each kind of law its due authority. It does not even preside over a con- flict and decide it, for the relative strength of each kind of law has been settled already. AU the court does is to point out that a conflict exists between two laws of different degrees of author- ity. Then the question is at an end, for the weaker law is extinct. " * * * '' The supreme court is the living voice of the constitution, that is, of the will of the people expressed in the fundamental law they have enacted. It is, therefore, as some one has said, the conscience of the people, who have resolved to restrain themselves from hasty or unjust action by placing their representatives under the restriction of permanent law. It is the guarantee of the minority, who, when threatened by the impatient vehemence of a majority, can appeal to this permanent law, finding the interpreter and enforcer thereof in a court set high above the assaults of faction. ' ' Again (i.348; see also 248, 375) he calls the supreme court '' not so much a third authority in the government as the living voice of the con- stitution, the unf older of the mind of the people :}SS CONSTITUTIONALITY OF STATUTES whoso will stands expressed in that supreme in strumont. ' ' English courts have no such function. An act of parliament can not be invalid, because parha- ment is omnipotent; in judging between two conflicting enactments they have only to examine the dates and decide in favor of the latter. But congress is not omnipotent ; its powers are Hmited by the constitution, and where it has tried to ex- ceed those powers its statutes are not laws and can not be enforced. ^ Sence as the province of parhament is broader than that of congress and our legislatures, so the power of English courts is narrower than that of ours. " In England, if a court has construed a statute in a way unintended or unexpected, par- liament sets things right next session by amend- ing the statute, and so prevents future decisions to the same effect. But American history shows only one instance in which an unwelcome decis- ion on the meaning of the constitution has been thus dealt with, viz., the decision, that a state could be sued by a private citizen, which led to the eleventh amendment (94), whereby it was declared that the constitution should not cover a case which the court had held it did cover. "^ But few laws have been pronounced unconsti- 1 B i.24.5, 430. B i.24a LEGISLATIVE INTERFERENCE WITH COURTS 289 tutional by the supreme court — up to 1901 only 6. It is the maxim of the court that no law is to be so pronounced ' ' unless the defect of power to pass it is so clear as to admit of no doubt. Every doubt is to be resolved in favor of the validity of the law. "^ Yet it has suffered attacks, first on account of its decision that it had jurisdiction to entertain suits by private persons against a state. The jurisdiction was removed by the 11th amend- ment (see page 288), but the states learned to fear it as an antagonist. Its decision in the Dred Scott case (1857) that a section of the '' Missouri compromise " was illegal, was denounced by the republican party, and its doctrine as to citizen- ship was subsequently negatived by the 14th amendment (99). But its reversal in 1871 and again in 1884 of its decision of 1870 making greenbacks legal tender for .debts went further to shake public confidence. The decision of 1870 was rendered by a vote of 5 to 3. Congress increased the number of judges from 8 to 9, and within a year secured an opposite decision by a vote of 5 to 4. This suggests the possibility when congress and the president are in accord, of affecting the decisions of the court by adding to the number of judges, and appointing those known to have ^Justice Swayne, U. S,, vs. Rhodes and others. 21)0 CONSTITUTIONALITY OF STATUTES fixed opinions upon the matter to be decided. The New York constitution fixes the number of judges (210), but the national constitution leaves the number of judges to be fixed by congress (66). In 1866 when congress was opposing Presi- dent Johnson, to take away his power of appoint- ment it reduced the number of judges, then 10, by providing that no vacancy should be filled till the number was reduced to T. When President Grant came into office it raised the number to 9 and the legal tender decision was reversed by the altered court. ^ Bryce says (i.366): " Jefferson denounced the doctrine laid down in the famous judgment of Chief Justice Marshall in the case of Marhury V. Madison j thus Jackson insisted that the supreme court was mistaken in holding that con- gress had power to charter the United States bank, and that he, knowing better than the court did what the constitution meant to permit, was entitled to attack the bank as an illegal institu- tion, and to veto a bill proposing to re- charter it. Majorities in congress have more than once claimed for themselves the same independence." As to the effect of public opinion on laws see page 503. iBi.261. 263. 269. Comparison of Courts 'J 1 5 4 4 1 6 1 6 76 14 22 5 3 6 7 14 74 life 25 " ** 5 " 9 " 3+ 6 4 life 3 " * .o ■2 •^ r§ •■^ o, ci, cr 0, a, ci, cr 0, Cl o, a, Cl, cr a, Cl, el- o, ci a, ci, d- 0, ci. er o, Cl, Cl- a, Cl, cr o, ci o, a, Cl, ci- 0, a, Cl, ci- 0, a, Cl, cr 0, a, Cl, er state justices county surrogate supreme appellate division, . claims appeals national district circuit appeals claims supreme territorial District of Columbia . appeals 12 per day $800 to 10,000 800 to 10,000 6,000 to 14,000 X 5,000 12,000t 5,000 6,000 4,500 10,000t 3,000 4,500t 6,000t 30 76 ri 263 271 206 273 278 280 280 281 275 281 282 282 civil; cr = criminal. *o = original; a = appellate; ( f The chief judge $500 more. I Selected from the 76 justices. **Held by district, circuit, or supreme judges. (291) CHAPTER XXIX TAXATION Taxation (from Latin taxare, to touch sharply) is the most important function and the most vex- atious problem of government. It has caused most of the pohtical revolutions, as for instance our OTvn (see page 127), and the French in 1789. Money must be raised. There are officers and soldiers and sailors and vt^orkmen to be paid, buildings to be erected and maintained, supphes to be furnished. The expenditure for pubhc schools alone in New York was in the year 1900 nearly 35 millions. New York city spent in 1901 nearly 100 millions. The civil war cost the national government in 1865 a billion dollars for a single year. The entire amount of money spent by the local, state, and national govern- ments averages more than SlO a year for every man, woman, and child in the United States. In some cities it averages more than $30 a year. All these vast sums must be raised by taxes, the enforced, proportional contribution from per- sons and property levied by the state by virtue of its sovereignty for the support of government and for public needs. ^ In other words taxes are 1 Cooley. (392) WHY TAXES ARE JTJST 293 levies upon private property for public purposes. An enforced contribution is necessary, because voluntary contributions would be unreliable. The continental congress depended upon the vol- untary action of the states to collect the taxes apportioned, and the taxes were uncollected (see page 330). The contribution must be propor- tional, that all may be treated ahke. It is levied upon property as well as persons, because prop- erty is often owned by non-residents, and is always the measure of abihty to pay. It is levied by virtue of the sovereignty of the state (see page 118), because otherwise there would not be power of collection. The justice of taxation is manifest. The state demands and receives taxes from the subjects of taxation within its jurisdiction that it may be enabled to carry into effect its mandates and perform its manifold functions ; and the citizen pays from his property the portion demanded in order that, by means thereof, he may be secured in the enjoyment of the benefits of organized society. 1 No man objects to the requirement that he shall put postage- stamps on letters, or pay his bills for city water, and yet these are forms of taxation; in a well managed govern- ment all taxation is equally for the benefit of those who pay it. Cooley. 294: TAXATION It might be objected that some men are taxed for what they can not get benefit from, as when a man without family is taxed for schools. But the reply is that schools are necessary not only for the children who go, but for the general wel- fare and safety of the community, in which every man shares (see page 304). But while the justice of equitable taxation for necessary public purposes is recognized, the people taxed want to be assured that the money raised is needed for these purposes and is used for them; and that it is so raised that every man may bear his proportional share. It is the glory of the English system of government that from the first it has insisted that they who pay the taxes shall have voice in levying them (see pages 120 to 123), and the colonies dissolved their allegiance to England when George III attempted to impose upon them taxation with- out representation (see page 127). In the United States all power of taxation rests in the people and their representatives (5, 26, 47, 49, 172, 177, 178, 181, 191, 230-236, 249, 250), so there is no excuse for unwillingness to pay one's share of the expenses of govern- ment as provided by law. Indirect Taxes Some taxes are indirect ; that is, they are not assessed upon persons as individuals, or accord- INDIRECT TAXES IN NEW YORK 295 ing to their wealth ; and though assessed upon one person are really paid by another. Practi- cally most of the state tax is raised in this way, in 1901 only 10 J out of 26 millions being raised by direct tax. Thus the excise law (see page 203) requires every liquor dealer in New York city to pay 1800 a year for the privilege, but he gets it back by raising the price or lowering the grade of the liquor sold, so that the tax is eventu- ally paid by his 'customers. This law produced the state in 1901 more than 4 millions, or more than i of the money required for the state gov- ernment. Such taxes on business or occupations, fran- chises, privileges, etc., are called specific (from Latin species, a particular thing, and facere, to make), as opposed to general taxes which, apply to all ahke. The collateral inheritance tax is also a large source of reyenue to the state. On estates of $10,000 or more there is a tax of 1 ^ for money distributed among lineal descendants or those in close relation; and on estates of $500 or more of 5 % when it is distributed among those not lineal descendants or in close relation. Bequests to religious corporations are excepted. This tax amounted in 1901 to more than 4 miUions. A recent and most profitable addition to the indirect taxes of the state is that on franchises TAXATION (see page 154) granted to corporations. ^ For- merly corporations had been taxed only on their real property (see page 147) ; but it is manifest that the exclusive privilege of running electric cars on a busy street is in itself property and should be taxed as such. So a tax is levied upon most corporations of J miU upon each 1 ^ of annual dividends, when such dividends amount to 6 '/c or more upon the par value of the stock ; otherwise IJ miUs upon the capital stock of the corporation employed within the state. This produced in 1901 about a miUion, and the entire amount received from corporations was nearly 5 millions. The national government is supported entirely by indirect taxes. These include excises (from Latin ex and caedere, to cut), commonly referred to as the internal revenue, a tax upon the pro- duction of goods, as for the distillation of whiskey, the manufacture of beer and tobacco, or the refining of oil ; and duties on imports (from Latin in and portare^ to carry), goods brought into the United States from other countries. Duties on exports are forbidden (48). The states are forbidden (52) to levy duties up- on imports or exports. This is not only to re- serve the revenue to the national government but to ensure uniformity of duties (26). Under the confederation (see page 324) each state could 1 558:1901 ; the original law was passed in 1899, INDIRECT TAXES; THE TARIFF 297 levy whatever duties it choose, and there was much jealousy and retaliation. The rate of duties levied on imported goods is called the tariff. When levied merely to support the expenses of government it is a revenue tariff; but it is manifest that the articles upon which a tariff is laid will be higher in price, and hence those who manufacture the ^me articles here will be able to command a higher price for their goods. A tariff so adjusted as to favor certain industries which it is desired to protect is called a protective tariff. The theory of protection may be illustrated thus. Suppose silk which could not be manu- factured here for less than 12.00 a yard could be imported from France so as to sell at 11.50 a yard. Manifestly no such silk would be made here, because it could not be sold except at a loss. Now if a duty of 60 % be put upon French silk, it must^be sold here at 11.50 + .90 = 12.40 a yard, and hence the American manufacturer can sell at the same price with a profit. This has been an issue more or less prominent between the political parties since the first high protective tariff was laid in 1832, when South Carolina refused to pay the duties, attempting what was called nullification (from Latin nullus none ; see page 360). Those opposed to a pro- tective tariff declare for free trade, arguing that 298 TAXATION in the case given everybody in the country who wants that kind of silk has to pay 40 cents a yard extra, for the benefit of a manufacturer. On the other hand it is argued that industries thus estabhshed have often eventually reduced the price of the article far below what the im- ported articles used to cost. Duties may be specific (see page 295), that is so much upon every pound or yard, or gallon ; or ad valorem (Latin, according to value), a percent- age on the value ; or both combined. In emergencies the national government has levied additional indirect taxes. Thus in July, 1862, when the civil war made much money needed, besides requiring all valuable papers to be stamped, duties were levied on many manu- factured articles, on carriages and plate, on vari- ous trades and occupations, this revenue amount- ing in 1866 to more than 300 milhons. During the war with Cuba stamps were required on many business documents, but most of them were discontinued after July 1, 1901. Direct Taxes Direct taxes are (1) those laid on individuals as individuals, like the poll-tax (see page 159); and (2) those laid upon property at a certain per- centage upon its assessed value. The national government may levy direct taxes, but only in proportion to the population DIRECT TAXATION 299 (47) ; in other words two states of equal popula- tion must pay the same amount, though one be ten times as wealthy as the other. The power has been exercised only 5 times — in 1798, 1813, 1815, 1816, and 1861, in each case for only 1 year. From 1861 to 1871 the national govern- ment collected a tax on incomes. In 1894 a law was passed taxing all incomes of more than ^1,000 a year; but it was pronounced by the supreme court unconstitutional because it was a direct tax and not apportioned among the states according to population. The state government levies a small direct tax (see page 300), but nearly all the direct taxes are local and levied by the school district (see page 51), the town (see page 32), the county (see page 65), the village (see page 88), and the city (see page 99). The town, county, and state taxes are all col- lected together by the collector (see pages 39, 91) or treasurer (see pages 91, 101); and are paid over on or before Feb. 1 to the county treasurer (see page 69); except that town collectors pay over to the highway commissioners (see page 11) the sums raised for highways and bridges, to the overseers of the poor (see page 10) the money raised for that purpose, and to the supervisor (see page 34) the money raised for town charges. ^ 1 158:1901. SCO TAXATION The county treasurer pays over to the comp- troller (see page 200) the amount due the state. The amount of tax levied upon each piece of property depends upon the assessment (see page 38). This is made originally by the town, village, or city assessors (see pages 38, 91, 104); is equal- ized by the board of supervisors (see page 65), with appeal to the tax commissioners (see page 206) and revision by the state assessors (see page 208), and final determination by the board of equalization (see page 212). This gives the aggre- gate assessed valuation in the state, and the rate of state tax is found by dividing the amount to be raised by the aggregate assessment. In 1901 this was as f oUows : Assessed valuatioii Amount required State tac^ 15,461, 302,Y52 110,704,153.39 1.00196 The same assessed valuation is used for the much larger local taxes, so that owners of real property are tempted to secure assessment below the real value. ^ On the other hand, since the con- stitution limits the^amount of indebtedness of any city to 10 ^ of the assessed valuation, a corrupt administration that wanted to raise more than that amount might increase the assess- ment accordingly. The charter for 2d class cities limits the amount of taxation in any year to 2 %, and in 1900 the assessment of property in 1 B i.493. DIRECT TAXES; PERSONAL PROPERTY 301 Syracuse was arbitrarily raised J above its value in order to make it possible to levy the amount the extravagant administration needed to pay its bills. Some property is exempt from taxation, such as national, state, and municipal public build- ings, school-houses, churches, burying grounds, the property of scientific and agricultural socie- ties, of literary and charitable institutions ^ not conducted for pecuniary profit, and a homestead so far as purchased with the proceeds of a pension. 2 National and state bonds and municipal bonds issued to retire existing indebt- edness are also exempt. So great is the temptation to evade taxation of personal property (see page 151), that it pays only a fraction of its proportionate burden of taxation. It is often concealed ; and when this is impossible there is much latitude of conscience in swearing to the amount of debts that should be charged up against it, the law requiring assessment only upon personal property owned in excess of personal debts. ^ For this and other reasons many have advo- cated what is called the single tax, on land only, which can not be concealed and may be levied uniformly, the theory being that the taxes thus paid wiU be recovered by rise in rental and thus 1 B i.497. 2 618:1901. ^b i.492; Hadley, p. 76. 302 TAXATION by increased prices of goods made or sold on the premises, or by people who live upon the prem ises, and so on. A constitutional amendment adopted in 1901 forbids the legislature to exempt from taxation on real or personal property any person, associa- tion, firm, or corporation (169 a). The rate of duties levied on imports is in some cases affected by treaties (see page 467) of reci- procity, under which the United States grants a lower rate of duty than to those from other countries, on condition that like reduction is made upon certain goods imported there from the United States. President Koosevelt said, in his message for 1901: ^^Eeciprocity must be treated as the hand- maiden of protection. Our first duty is to see that the protection granted by the tariff in every case where it is needed is maintained, and that reciprocity be sought for so far as it can safely be done without injury to our home industries. * * * *' Subject to this proviso of the proper protec- tion necessary to our industrial well-being at home, the principle of reciprocity must com- mand our hearty support. The phenomenal growth of our export trade emphasizes the urgency of the need for wider markets and for a hberal poHcy in dealing with foreign nations. RECIPROCITY 303 Whatever is merely petty and vexatious in the way of trade restrictions should be avoided. The customers to whom we dispose of our surplus products in the long run, directly or indirectly, purchase those surplus products by giving us something in return. Their abihty to purchase our products should as far as possible be se- cured by so arranging our tariff as to enable us to take from them those products which we can use without harm to our own industries and labor, or the use of which will be of marked benefit to us."" Some times improvements are needed which it would be impossible to pay for at once, and of such permanent importance that it seems just that a subsequent generation should pay for it in whole or in part. For this purpose bonds (see page 46) are issued (27). The state is not allowed to give its credit in aid of any individual association, ^ or corporation (230, 249) ; and ex- cept in case of war (232) may not contract debts to exceed a million dollars (231), except by vote of the people at a general election (233). The restrictions on towns, counties, villages, and cities (250) have already been noted (see pages 32, 65, 94, 100). CHAPTEE XXX THE COMMON SCHOOLS Since in a republic every citizen is a voter, its safety requires that its citizens be sufficiently schooled to vote intelligently, and its prosperity demands that they have an education fitting them for improvement and enjoyment. This has been recognized in the United States from the first. The ordinance of 1Y8T (see page 609) declares: ^ ' Eeligion, morality, and knowledge, being necessary to good government and the happi- ness of mankind, schools and the means of edu- cation shall forever be encouraged. ' ' Education is the republic's self-defence. Of all the sources of poverty and crime ignorance is the most fruitful ; and besides the harm they do individually, ignorant and vicious voters unite to elect officials of their kind, which produces corrupt laws and corrupt administration. Massa- chusetts makes it the duty of her teachers to impress upon their pupils " the principles of piety and justice, and a sacred regard for truth, love of their country, humanity, and universal benevolence; sobriety, industry, and frugahty, (304) HISTORY OF EDUCATION IN NEW YORK 305 chastity, moderation, and temperance ; and those other virtues which are the ornament of human society, and the basis upon which a repubhcan constitution is founded. ' ' New York was fortunate in that its early set- tlers, the Dutch, had learned in their own coun- try to appreciate education. As early as 1629 the West India company required the colonists to supply a minister and a schoolmaster, and the Dutch schools were always free. After the English conquest the Dutch schools were left undisturbed, but they received no government support, the idea of taxing people for the sup- port of schools not prevailing in England. Gov. Cornbury, who came to office in 1702, established schools, chiefly as a means of driving out the Dutch language and establishing the church of England. In 1793 the regents (see page 318) recom- mended the establishment of a system of com- mon schools; and in 1795 the first public school law was passed, appropriating $50,000 a year for 5 years to n^intain public schools. In 1812 this annual appropriation was made permanent, and towns were authorized to levy a tax equal to their share of the appropriation. In 1814 this town tax was made compulsory, under pen- alty of losing the appropriation. These amounts were not sufficient to furnish I .30(> THE COMMON SCHOOLS a good school : so it was customary to make up the deficiency by a rate bill, each parent paying his share in proportion to the attendance of his children. In 1867 this rate bill was abohshed, and since then the state has provided for free common schools, wherein all its children may be educated (256). Even the text -books are furnished in some schools to all children, and in all schools to chil- dren whose parents are unable to pay for them, the object being to make education possible to every child. But some children did not care to go to school, and were not compelled to. Some were not al- lowed to go, their parents profiting by their labor. Some nominally went but were frequent traants, being absent so much that they did more harm to their classes than they got good them- selves. So in 1894 a compulsory law was passed, which requires that (a) every child between 14 and 16 not regularly employed, and (b) every child be- tween 8 and 12 shall be in attendance upon in- struction as many days between Oct. 1 and June 1 as the pubhc school shall be in session; and that (c) every child between 12 and 14 shall attend school upon at least 80 consecutive school days, and in addition upon all school days when not usefully employed, and be instructed in at ATTENDANCE FREE AND COMPULSORY 307 least the common branches of reading, speUing, writing, arithmetic, Enghsh grammar, and geography. ^ To execute this law attendance or truant officers (see page 44) are appointed, and truant rooms or truant schools are often established, where tru- ants are confined, clothing as well as food being furnished when necessary. Parents are liable to fine and imprisonment if they do not either cause their children between 8 and 16 to attend school or notify the truant officer that they are unable to do so. Employers are fined $50 if they employ children between 8 and 12 during the time the public school is in session, or em- ploy any child between 12 and 14 who does not present a certificate that he has complied with the law regarding attendance. If a child attends a private school, the charac- ter of the institution and the number of hours a day must be the same as in the pubhc schools. The unit of the common school in New York is still the district school (see page 51); which may become a union free school (see page 57), and in villages and cities has greatly enlarged powers (see pages 93, 107, 113). As there are some 12,000 of these districts, the need was soon recognized of some sort of super- Tision (from Latin super, over, and videre, to 1 For further particulars see Bardeen's School Law, p. 43, 308 THE COMMON SCHOOLS see). The history of school supervision in New York is outhned in the adjoining chart. The School Supekvision in New Yokk Original SChOOl act By state officer By county officers By city officers tmvn *^^^ commissioners officers of schools, who • were to examine 1795 and license teachers 1818 and advise with trustees as to hiring 1841 them. The law of 1847 _ 1812 provided also 1 1851 for inspectors who were associated 1856 j with the commis- 1901 sinners in examin- ing teachers. In 1843 in place of commissioners and inspectors town superintendents were created, with the same powers. In 1856 this office was abolished, and there has since been no town supervision. The act of 1841 provided for deputy superin- tendents for each county, with 2 in counties of more than 200 teachers, who could also examine and license teachers, their hcenses being vahd over aU the towns within their jurisdiction. In 1843 the name was changed to county superin- tendent. The office was abohshed in 1847, and GROWTH OF SUPERVISION 309 was succeeded in 1856 by that of school commis- sioner (see page Y3), which still continues. Cities (see map, page 572) and villages may em- ploy superintendents (see page 108), who do not teach, but supervise the teaching, and under di- rection of the board have general management of the schools. This office was first created in 1851, and later was recognized by the state, a spe- cial appropriation of $800 being made for each in cities and villages of not less than 5,000 in- habitants (see map, page 571). Cities are usu- ally outside of commissioner districts, but vil- lages are usually under jurisdiction of the school commissioner. It was manifest that supervision should extend farther, and unite the pubHc schools of the state under a uniform sysfcem. So in 1812 the office of state superintendent of schools was created, and Gideon Hawley was the first to ffil it. In 1821 he wasi supplanted by pohtical intrigue, and the legislature abolished the office, transferring its duties to the secretary of state. In 1854 the office of state superintendent of public instruction was created, and has since been continued. He is elected by joint ballot (see page 201) for 3 years, the term of office beginning April 7, 1901, and each third year thereafter. His salary is 15,000; and he appoints 2 deputies at $4,500 and 14^000. He gathers information from the ;nO THE COMMON SCHOOLS reports of commissioners and superintendents as a basis for his annual report to the legislature ; recommends needed legislation ; and advises and directs as to the management of the pubhc schools. He has charge of the normal schools, Indian schools, and schools for defectives (see page 315) ; and is ex-officio a regent of the Uni- versity (see page 319), and a trustee of Cornell imi versify (see page 323), and the Syracuse asylum for the feeble-minded. He has charge of the licensing of teachers (see page 55), the normal schools and training classes (see page 313), and the school libraries. His greatest power is judicial. In questions of school law he has coordinate jurisdiction with the supreme court. Parties aggrieved have the option of appeahng to the courts or to the state superintendent. If they take the latter course, the superintendent's decision is final, and not subject to review in any court. He has charge of the apportionment on Jan. 20 each year of the public school money, or educa- tion fund, 1 which is made up principally from 3 sources. The common school fund, established in 1805, came from the sale of half a million acres of state lands, and is increased by $25,000 each year 1413:1897. PUBLIC MONEY 311 from the United States deposit fund. Its amount in 1901 was about 4 J millions. From this fund $170,000 is appropriated each year for the support of common schools ^ and $7,000 for Indian schools. The United States deposit fund has already been described (see page 74). The constitution provides (258) that these two funds shall be kept inviolate. ^ From this fund $25,000 is appropriated each year to the increase of the common school fund (258), $75,000 to the support of common schools, and $34,000 to the academic fund (see page 321). The free school fund is the term applied to the annual appropriation for common schools by the legislature, which began in 1851 at $800,000, and in 1890 was increased from 3 J to 3 J millions. With the addition of $170,000 from the common school fund and $75,000 from the United States deposit fund, this gives a total of about 4 millions. After setting apart the amounts for salaries of school commissioners and superintendents and for Indian schools, and $6,000 for contingent expenses, with some comparatively small sums for specific appropriations, there is first granted a teacher's quota of $100 to each district for every 1 556:1894. 2 For more detailed history of these funds, see The School Bulletin, June, 1886 (xii.llO), 312 THE COMMON SCHOOLS qualified teacher employed for 32 weeks. The remainder is then divided equally among the counties of the state according to population, excluding Indians. The school commissioners (see page 74) appor- tion the amount among the districts in propor- tion to the aggregate days of attendance, send to the county treasurer and to the state superin- tendent duplicate certificates showing the amounts apportioned to each district, and certify the same to the supervisor of each town. The moneys so apportioned are payable on April 1 to the county treasurers (see page 69), who im- mediately pay over to each supervisor (see page 34) the money apportioned to his town. The supervisor pays out the money only on written orders of trustees ; but where the district has a treasurer (see page 57) or the collector has given bonds, the supervisor pays the district money over to him. The school year must be not less than 32 weeks, including the week of the teacher's attendance at institute, and the following legal holidays: Jan. 1, Feb. 12, Feb. 22, May 30, July 4, the 1st Monday in September, the 1st Tuesday after the 1st Monday in November, the last Thursday in November, and Dec. 25. The 1st Friday after the 1st Monday in May is observed as Arbor day. It is a proud distinction of the New York edu- TRAINING OF TEACHERS 313 cational system that from the beginning it has required that the persons who examined teachers for Hcenses should not be those who employed them, thus establishing a double judgment as to the teacher's fitness. New York has also been most Uberal in its provision for the training of teachers. The system of training classes was established in 183-i by the regents (see page 318), and was the first provision for the training of teachers made in the United States. In 1889 they were transferred to the department of public instruc- tion. A minimum grant of $500 is given to each class, with a proportionate share for attend- ance of all pupils in excess of the minimum number of 10. ^ There are also training schools in cities, mostly with courses of 2 years. A teachers' institute is held once every year in every commissioner district ; it lasts a week, and attendance 6t teachers is not only free, but com- pulsory. The first institute was held in 1813, and in 1817 institutes came under state control, $60 being given as aid to each county. This amount was increased in 1857 to $120, and in 1860 was made $8,000 for the state. In 1899 it was $40,000 for the state. In 1862 local author- ities were allowed to pay teachers regular salary during their attendance at institutes. Since 1 For requirements, see Bardeen's School Law, page 78, :\\\ THE COMMON. SCHOOLS 18S5 this payment and the attendance of teach- ers have been compulsory, while schools in the commissioner district were compelled to close during institute week, except in cities. In 1890 the privilege of not closing was extended to vil- lages of 5,000 inhabitants. City institutes were begun in 1896. A corps of institute instructors was organized in 1881. Summer schools similar in plan but extending over three weeks were established in 1896. They are held during the summer months. Attend- ance is free, but teachers do not receive salaries for the time in attendance. Besides its normal schools (see map, page STY), the first of which was established in 1844, and for which its appropriations have always been liberal, it has established pedagogic depai'tments in many of the leading colleges, and grants special certificates to those who complete the course. Of course education reaches beyond what are called schools. Public libraries, museums, art galleries, parks, and statues promote intelligence and refine the taste. Taxation for these pur- poses is a pubHc benefit. It is not easy to draw the fine between educa- tional and charitable or penal institutions. While the latter are not public schools, they supple- ment their work. The theory of state education SCHOOLS FOR DEFECTIVES 315 is that every child shall have an equal opportun- ity for education. Hence orphans must be pro- vided for; and there must be the special schools required for teaching the blind, the deaf, the feeble-minded, and these schools for defectives are all under charge of the state superintendent (see page 309). The insane, too, are now so kindly and wisely treated that their unhappiness is alleviated, and not seldom they are restored to reason. In 1896 a new law was passed putting the charge of insane asylums in the hands of the commission in lunacy (see page 208), under conditions that ensure intelligent supervision. A complete record of patients is kept. To guard against the incarceration of persons not really insane, com- mitment to an asylum may be made only upon order of a judge of a court of record upon a certificate of lunacy made by 2 qualified medical examiners in lunacy ; from which commitment appeal may be made to a justice of the supreme court, and a patient may always be released by habeas corpus (see page 138). Where the patient has relatives able or friends willing to pay his expenses in the asylum there is a charge not to exceed $10 a week; otherwise the charges are paid by the state. There is a special hospital for insane criminals. Even sane criminals are not looked upon as ;n(> THE COMMON SCHOOLS hopeless. The Ehuira reformatory has restored to useful citizenship many boys who in mere con- PRESIDENT priation bill a clause that virtually took the com- mand of the army from President Johnson and gave it to Gen. Grant ; and the president, lacking the power of the governor to veto certain items (191), yielded, because the majority was sufficient to over-ride a veto. In 187 9 congress attached to important bills measures affecting the south. The president vetoed them in two successive ses- sions, and resisted successfully because the majority in congress could not command a f vote. 1 Bryce says (i.215, 211, 221; see also 285): "" The struggle for popular hberties in England took at first the form of a struggle for the su- premacy of law ; that is to say, it was a struggle to restrain the prerogative of the king by com- pelling his ministers to respect the ancient cus- toms of the land and the statutes passed in parlia- ment. As the customs were always maintained, and the range of the statutes constantly widened, the executive was by degrees hemmed in within narrow limits, its discretionary power restricted, and that characteristic principle of the constitu- tion, which has been weU called ' the reign of law', was established." * ^ ^ ^ ' Power means nothing more than the extent to which a man can make his individual will pre- vail against the wills of other men, so as to con- "^Bi.211, 215, 220, 285. RELATION TO CONGRESS 377 trol them. Hence, when the law gives to a magistrate a wide discretion, he is powerful, because the law clothes his will with all the power of the state. On the other hand, if the law goes into very minute details, directing the official to do this and not to do that, it narrows the discretion of the executive magistrate. His personal will and choice are gone. He can no longer be thought of as a co-ordinate power in the state. He becomes a mere servant, a hand to carry out the legislative bidding of the brain, or, we may even say, a tool in the legislative hand." * * * ' ^ When the two houses are of one mind, and the party hostile to the president has a f major- ity in both, the executive is almost powerless. It may be right that he should be powerless, be- cause such n^ajorities in both houses presumably indicate a vast preponderance of popular opinion against him. The fact to be emphasized is, that in this case all 'balance of powers' is gone. The legislature has swallowed up the executive, in virtue of the principle from which this dis- cussion started, viz. , that the executive is in free states only an agent who may be so limited by express and minute commands as to have no volition left him." But Bryce says further (i.278, 68, 61, 269, 90; see also 50): -'Nevertheless his office retains a 378 POWERS OF THE PRESIDENT measure of solid independence in the fact that the nation regards him as a direct representative and embodiment of its majesty, while the cir- cumstance that he holds office for 4 years only makes it possible for him to do acts of power during those 4 years which would excite alarm from a permanent sovereign. Entrenched behind the ramparts of a rigid constitution, he has re- tained rights of which his prototype the Enghsh king has been gradually stripped. " * * * ' ' Once or twice, as when Jefferson purchased Louisiana, and Lincoln emancipated the slaves in the revolted states, he has courageously ven- tured on stretches of authority, held at the time to be doubtfully constitutional, yet necessary, and approved by the judgment of posterity." ^ ' Abraham Lincoln wielded more authority than any single Enghshman has done since OUver Cromwell. ' ' '' The American people have a practical apti- tude for politics, a clearness of vision and capac- ity for self-control never equalled by any other nation. In 1861 they brushed aside their darling legalities, allowed the executive to exert novel powers, passed lightly laws whose constitutional- ity remains doubtful, raised an enormous army, and contracted a prodigious debt. Eomans could not have been more energetic in their civic duty, nor more trustful to their magistrates. When RELATION TO THE CONSTITUTION 379 the emergency had passed away the torrent which had overspread the plain fell back at once into its safe and well-worn channel. The reign of legality returned; and only four years after the power of the executive had reached its high- est point in the hands .of President Lincoln, it was reduced to its lowest point in those of Presi- dent Johnson. Such a people can work any constitution." Some comparisons between the power of the president and those of the governor ^ and of the king of England may be found interesting. President must be a native ; must be 35 years old ; must have been 14 years a resident ; salary 150,000 and residence ; ^ term 4 years; directs foreign policy; commands army and navy; controls post- office appointments ; must veto all the pro- visions of a bill if any. Gomrrwr must be a citizen; must be 30 years old ; must be a resident; salary $10,000 and residence ; term 2 years; no such power; commands militia; no state post-office ; may veto some pro- visions of an appropria- tion bill and approve the rest. 1 B i.508. 880 POWERS OF THE PRESIDENT King of England chosen by heredity ; term for hf e ; allowance, about 2 J millions ; may declare war; never does;^ does not have it ; makes them abso- lutely ;2 makes them abso- lutely ; has enormous ecclesi- astical patronage ; ^ may do so at will ; may dissolve parlia- ment at will; changes his cabinet when it ceases to com- mand majority. * The vice-president, like the lieutenant-governor (see page 198), cuts a small figure except for the possibility of there being a vacancy in the presi- dency (95 ; see page 370). He is Hke the lieutenant-governor presiding officer of the senate, with a casting vote in case of a tie, but he cannot like the lieutenant-gov- iBi.90. 2Bi.37. 3Bi.217. *Bi.271. 281. President chosen by election; term 4 years; salary 150,000; can not declare war ; always sits in cabinet meetings ; has veto power; submits treaties to senate ; submits important appointments to senate; has no ecclesiastical patronage ; may not confer titles ; can not dissolve con- gress ; keeps his cabinet throughout the term. THE VICE-PRESIDENT 381 ernor appoint committees (see page 245), that power being in the hands of the senate. In election he is always associated with the president, the qualifications and manner of nomination and election being the same (65, 95 ; see page 371). The presidents from New York by election have been Martin Van Buren (1837-41) and Grover Cleveland (1885-9, 1893-7); by succes- sion, Millard Fillmore (1850-53), Chester A. Arthur (1881-5), and Theodore Eoosevelt (1901- The vice-presidents elected from New York are as foUows: George Chnton (1805-12); Daniel D. Tompkins ^1817-25); Martin Van Buren (1833 7); Millard FiUmore* (1849-50); WiUiam A. Wheeler (1877-81); Chester A. Arthur* (1881); Levi P. Morton (1889-93); Theodore Eoosevelt* (1901). * Succeeded to tlie presidency. CHAPTER XXXVIII CIVIL SERVICE reform' One source of the president's power is his con- trol over appointments. ^ Directly or indirectly all executive offices are filled by men whom he names (62^ 63). True, his most important nominations must be confirmed by the senate, ^ but he alone has the initiative of selection. This has been a burden and a danger, as well as a power. Their constituents have besieged congressmen for government offices; congress- men have besieged the president ; and time that should have been given to weightier matters has been spent in calculating how patronage should be distributed. Vice-president Colfax told of a clergyman from a small town who caUed on President Lincoln in the interest of a man who wanted to be postmaster there, and began by sympathizing with Mr. Lincoln upon the enor- mous responsibility with which the war was loading him down. ' ' Oh, it is not the war, ' ' repHed Mr. Lincoln ; " I can get along with the war very well. It is your plaguy little post-office that is killing me." iBi.207. 2Bi.l06. (382) PUBLIC OFFICE A PUBLIC TRUST 383 The civil service is the general term apphed to the vast army of persons that are employed in the state or government offices, as clerks, ac- countants, inspectors, keepers, etc. In England great abuses arose because those in power appointed as subordinates in public offices through favoritism, using the appointing power as patronage (from Latin pater ; see page 148), and choosing men not because they were fitted but because they were relatives, or friends, or had rendered services to the party ; sometimes because they had paid money to be appointed. This led to civil service reform, under which parliament decreed that no officer should be dis- placed so long as he did his duty ; that vacancies should be filled by those in lower places so far as competent ; and that new appointments should be made only by competitive examination, in which the political affiliations were not consid- ered. This is known as the merit system. ^ In the early years of the United States gov- ernment office was regarded as a public trust, ^ and new administrations did not think it neces- sary to make changes in subordinate offices. Washington displaced only 8 persons, and all for cause ; John Adams but 9, Jefferson but 39 ; in the 16 years that followed only 16 were removed. 1 See Report of New York senate committee, 1895, pp. iv. , v. 2 B ii.54. 384 CIVIL SERVICE REFORM Madison held that the wanton removal of meri- torious officers would subject the president to impeachment. In 1820 congress made 4 years the term of many offices, but no removals were made till Andrew Jackson in 1829 at once displaced 500 postmasters. ^ In Jackson's second term, Cal- houn reported to the senate that the tendency of this practice was to commit the entire body of those in office into corrupt and supple instru- ments of power, and to raise up a host of hun- gry, greedy, and subservient partisans, ready for every service, however base and corrupt. Unfortunately, President Jackson was follow- ing a New York precedent. Before 1820 Gover- nor Clinton complained of '' an organized and disciphned corps of federal officials interfering in state elections ". In 1832 Marcy defended in the United States senate the system of partisan removals and short terms from the example of his own state. '' They [the New York poMtic- ians] when contending for victory avow the intention of enjoying the fruits of it. They see nothing wrong in the rule that to the victor be- long the spoils of the enemy. "^ One bulwark of this system was the doctrine of rotation in office which formerly prevailed. Maryland in her constitution of 1867 declared: iBii.126. ^' TO THE VICTOR BELONG THE SPOILS " 385 '' A long continuance in the executive depart- ments of power or trust is dangerous to liberty ; a rotation, therefore, in those departments is one of the best securities of permanent freedom."^ Bryce says (ii. 157-129): " ' Rotation in office ' was, and indeed by most men still is, held to be comformable to the genius of a democracy. It gives every man an equal chance of power and salary, resembling herein the Athenian and Florentine system of choosing officers by lot. It is supposed to stimulate men to exertion, to fos- ter a laudable ambition to serve the country or the neighborhood, to prevent the growth of an official caste, with its habits of routine, its stiff- ness, its arrogance. It recognizes that equality which is so dear to the American mind, bidding an official remember that he is the servant of the people ai^d not their master, like the bureau- crats of Europe. It forbids him to fancy that he has any right to be where he is, any ground for expecting to stay there. ^^ ^ "^ " Another and a potent reason why the rota- tion plan commended itself to the Americans is to be found in the belief that one man is as good as another, and will do weU enough any work you set him to, a belief happily expressed by their old enemy King George the Third when he said that ' every man is good enough for any 1 B i.426. B86 CIVIL SERVICE REFORM place he can get. ' In America every smart man is expected to be able to do anything that he turns his hand tq, and the fact that a man has worked himself into a place is some evidence of his smartness. He is a ' practical man '. This is at bottom George the Third's idea; if you are clever enough to make people give you a place, you are clever enough to discharge its duties, or to conceal the fact that you are not discharging them." The spoils system grew until it became under- stood that with a change of administration all officers and employes would be displaced, and the struggle between parties was no longer for principles but for places. There were 120,000 such places, and every senator and congressman had hundreds of applications from his constitu- ents, which took more of his time than he had left for his legitimate duties. ^ The conception of a public office became that of a snug berth to be bestowed upon a favorite, ^ and bore its natural fruit in building up professional poli- ticians and bosses (see page 185), ^ the source of whose power is the desire for office as a means of gain. 4 Patronage led naturally to jobbery, where contracts were given for a money consid- eration. '^ The very powerlessness of India to protect itself against official abuse brought home >Bii.l55. ^Bu.l21. ^ b ii.130. ^Bii.102. PRINCIPLES 387 to the English mind the fact that pubhc un- morahty meant pubhc immorality. ' ' ^ In 1853 congress passed a law requiring clerks to pass an examination ; but it was of no avail, because those who should have executed it were hostile to it. The same was true of the law for competitive examinations passed in 1871. In 1883 both the United States and New York passed statutes similar in purport and which still regulate appointments. The rules adopted by the president and in force by the national commission provided for : (1) competitive examinations; (2) positions to be filled from those who rank highest in examination ; (3) apportionment of appointments among the states according to population ; (4) probation before permanent appointment ; (5) no requirement upon place-holders of con- tribution or political service, and no receipt of con- tributions in United States buildings or grounds ; (6) no use of office to coerce political action of any one ; (7) non-competitive examinations when com- petent persons do not compete ; (8) fun record of all examinations, appoint- ments, etc. : Hadley, page 15. 38 S CIVIL SERVICE REFORM (9j not more than 2 members of any one family to be appointed ; (10) no recommendation of senator or con- gressman to be received, save as to character. The work is under 3 civil service commissioners, at a salary of $3,500, who appoint a chief ex- aminer at |3, 000, and boards of examiners in the states and territories as needed. Substantially the same rules (200) prevail in the civil service system of New York (see page 209). In 1897 Gov. Black's message declared in favor of ' ' taking the starch out ' ' of the civil service laws ; and a bill was passed providing that the examination by the civil service commission should count only 50 %, while the other 60 % should be estimated by the head of the depart- ment on the basis of "practicability". This law, which was considered a disgrace upon Grov. Black's administration, was repealed in 1899. Whether the president has the power of re- moval without consent of the senate had been doubted, and congress by a slight majority passed a law giving him that power, since when it has never been questioned. ^ In 1866, however, congress passed a law for- bidding the dismissal of military or naval officers except by sentence of court-martial ; though by a law passed in 1867, but repealed m 1887, the 1 Story, § 1548. FILLING OF VACANCIES 389 power was for a time modified, the immediate purpose being to tie the hands of President Johnson. ^ The power to fill vacancies that happen dm^ing the recess of the senate (63) is held to cover the first appointment to a new office. He commissions all officers of the United States ((U). The commission is a formal document, reciting definitely the powers conveyed, and sealed by the secretary of state with the great seal of the United States (see page 195). 1 B i.59, 384 CHAPTEE XXXIX THE president's CABINET We have seen that in England the early kings used to have a council, out of which eventually parliament was developed (see page 120). But the need of a council remained, and developed into the Enghsh ministry of the present day. In most of the colonies the governor had a council, often corresponding with a colonial senate (see page 223), and it was natural that the federal government should provide for some body of advisors to the president. The constitution, however, makes no mention of the cabinet, except that in authorizing con- gress to vest the appointment of inferior officers in the ' ' heads of departments ' ' (62) it assumes that there will be such officers ; and there have been from the first. The cabinet corresponds with the state admin- istrative officers (see page 200); but note these differences : Cabinet appointed by the president subordinate to the president ; Administrative officers elected by the people coordinate with the governor ; (390) COMPARED WITH NEW YORK ADMINISTRATION 891 always of the same party as president ; term 4 years; salary $8,000; secretary of state, great honor and re- sponsibihty ; attorney general ; secretary of the in- terior ; secretary of the treasury ; secretary of agricul- ture ; secretary of war; secretary of the navy; postmaster general. not necessarily same party as governor ; term 2 years; salary $5,000; secretary of s t a t e , duties mostly clerical ; attorney general; engineer and survey- or has a very few of his functions; comptroller (salary $6,000; treasurer ; appointed by the governor sup't of banking ($r,ooo); agricultural commis- sioner ($4,000); no such department; no such department ; no such department. The most important distinction is that while the cabinet is appointed by the president and subordinate to him, the administrative officers are elected like the governor, and are his col- leagues in government, dividing with him the executive functions. 392 THE president's CABINET The differences between the Enghsh ministry ^ and the federal cabinet, with some correspond- ences more or less remote, are thus shown : The president's cdbinet The English ministry all of equal rank ; prime-minister at the head ; appointed by the president ; prime-minister a p - pointed by the king, al- ways the leader of the holds office for 4 opposition; the others by the prime-minister; resigns when its years ; measures cease to com- can not be members, mand majority vote in parhament ; ~ must be members of of congress; president always sits with it ; parliament ; the king never; salary 18,000; salary usuaUy|25,000; secretary of the treas- ury; r first lord of the J treasury ; 1 chancellor of. the ex- secretary of war; secretary of the navy; 1^ chequer ; secretary for war; first lord of the ad- miraltv : iBi.273. 2 B i 186, 209, 271. COMPARED WITH ENGLISH MINISTRY 393 secretary of state; lord privy seal; home secretary; secretary for Scot- land; secretary for Ireland; foreign secretary; colonial secretary; ^ secretary for India ; postmaster general; president board of agriculture ; r attorney general ; \ solicitor general ; lord chancellor; lord president of the council. postmaster general; secretary of agricul- iure; attorney general; not in cabinet vice-president ; chief justice; commissioner of edu- cation. The most important difference is the tenure of office. The English ministry resigns v^hen it can no longer control a majority in parliament ; the American cabinet remains in office during the term of the president, though any member may be dismissed by him at any time. President Johnson proposed to dismiss the members of Lincoln's cabinet who had not re- signed, whereupon congress passed a tenure-of- office act to prevent the removals. The presi- dent insisted and was impeached ; but on the trial a single vote was lacking to convict, secre- 894 THE president's CABINET tary Stanton resigned, and the senate confirmed the president's nomination. Another difference is the power of choice. In England the king originally appointed his minis- ters, but now when the ministry is defeated, the leader of- the opposition party must be sum- moned and asked to form a ministry. The president has full power to appoint all the members of his cabinet, and though the senate has the nominal power to reject his nominations it has seldom done so. In 1833 it rejected Koger B. Taney; and in 1869 A. T. Stewart (see p. 406). Still another difference is in responsibility. The English ministers are always members of parliament; they bring forward the measures they have prepared, nominally under instructions of the king, ^ defend them, and carry them if possible. If these measures are passed, the ministers are responsible for them (see below). In the effort to keep the executive and legisla- tive departments entirely distinct, the members of the cabinet are constitutionally prohibited from being members of congress (22), which passes its laws independently of them; hence there is divided responsibility. ^ A fourth important difference is that the king never sits in his cabinet, so that he may not be held accountable for its action ; while the presi- iBi..")3. 2 Bi. 277. 217. REQUIREMENTS FOR CIVIL OFFICE 395 dent ahvays does, because he is accountable and needs its advice. ^ The salary of cabinet officers is $8,000. Their rank may be indicated from the order in which they become eligible to the presidency (see page 370). There are several 'general requirements for all civil officers of the United States. No congress- man may be appointed to any civil office created or increased in salary during the time for which he was elected (22 ; see page 437). Civil officers may not be presidential electors (54), or con- gressmen (22) ; or, except by permission of con- gress, accept present, emolument, office, or title of any kind whatever from any king, prince, or foreign state (50; see page 344). All civil officers, including the president and vice-president, may be removed from office by impeachment for treason, bribery, or other high crimes and misdemeanors (65 ; see page 458). All officers are bound by oath to support the constitution (82). ^In 1862 congress prescribed what was called the ' ' iron-clad ' ' oath, that the person had never taken arms against the United States or aided its enemies, or sought or held office under any government hostile to the United States. It was pronounced by the supreme court unconstitutional (46) so far as it applied to attor- neys of that court. It was repealed in 1884. iBi.90. CHAPTER XL STATE, WAR, NAVY, POST-OFFICE DEPARTMENTS The secretary of state occupies the place of honor in the cabinet. He receives all ambassa- dors from abroad and introduces them to the president, and has general charge of our inter- national relations (see page 462). Though now known as the department of state, this office was formerly called the department of foreign affairs, showing the original conception of its purpose. The secretary of state is also the guardian of the archives of the government. He keeps the seal of the United States, and affixes it to com- missions issued by the president. All the acts and resolutions of congress are filed in this de- partment. All the papers relating to pardons are kept here. The secretaries of state from New York have been Martin Van Buren (1829-31), Wilham L. Marcy (1853-57), William H. Seward (1861-69), Hamilton Fish (1869-77), and Wilham M. Evarts (1877-81). The attorney general is, like the state attorney general (see page 201), the chief law officer of (3%) WAR DEPARTMENT 397 the government, and conducts suits in the su- preme court in which the United States is a party. He has general supervision of the vari- ous district attorneys and marshals of the United States (see page 28^). When requested he gives legal opinions to the president and the cabinet officers. He is assisted by a solicitor general (see page 259), salary $7, 000 ; and by 6 assistant attorney generals, 5 of them at $5,000, and 1 at $4,000. The attorney generals from New York have been Benjamin F. Butler (1833-8), i Wm. M. Evarts (1868-9), Edwards Pierrepont (1875-6). The secretary of war is the agent of the war legislation of congress (36-41). He is at the head of the war departnient, and under direction of the president has charge of the army. As the constitution forbids the states to keep stand- ing armies (52), the national troops are the only regular soldiers (see page 196). The secretaries of war from New York have been John Armstrong (1813-14), Peter D. Porter (1828-9), Benjamin F. Butler (1837), John C. Spencer (1841-3), William L. Marcy (1845-9), Daniel S. Lamont (1893-7), Elihu Eoot (1899-). The act of April 22, 1898, declares that the military forces of the United States consist of all able-bodied men between the ages of 18 and ^ 1 Prentice, page 409 398 WAR DEPARTMENT 45 (compare page 193). In 1880 the army consisted of 26,000 men. In 1898 the regular army was increased to about 60,000. The law of March 2, 1899, authorized the president to maintain the regular army at a strength of not more than 65,000 until July 1, 1901, when it was to be reduced to the numbers it had prior to 1898, excepting a small increase of artillery The same law also authorized a temporary vol- unteer army of 35,000. Congress has power to make rules for the army (37-40). The present articles of war num- ber 128; they are mainly as first adopted in 1806 ; they must be signed by every officer, read to every recruit at time of enlistment, and read every six months to all -troops. Flogging in the army was abohshed in 1812, but from 1833 to 1861 there was an exception in case of deserters. Congress alone has the power to declare war (36; see page 469). It may also make appropria- tions to carry on a war, but only for two years in advance (37), thus giving the people oppor- tunity to elect a new house if it disapproves of the war. This had been the rule in England for more than. a century before the American revolution. Congress has power to caU out the militia (41) ; (see page 196). DECLARING WAR 399 Congress also makes rules for captures on land and water (36). Such property is usually distributed among the captors, but it must be proved that the property was taken from the enemy. Congress has exclusive power (36) to grant letters of marque (a French word meaning bound- ary), authorizing persons to cross a frontier and take the persons or property of another nation, and reprisal (from Latin re back and prehendere, to take, a re-taking) authorizing the captain of a vessel to seize the property of a foreign nation, or its subjects as a reparation for some injury. When given to the master of a vessel, the latter becomes a privateer (from Latin privus, single), and may do what without these letters would be the act of a pirate (35 ; see page 473). Blackstone says letters of marque and reprisal are grantable by the law of nations wherever the subjects of one state are oppressed or injured by those of another, and justice is denied by the state to which the oppressor belongs. Letters of marque are sometimes issued before war is declared; sometimes they occasion war, and sometimes prevent it. Most nations have mutually agreed to abolish privateering, and while the United States has not entered into such agreement it did not allow pri- vateering in 1898 during the war with Spain. 400 WAR DEPARTMENT The secretary of war has immediate control of the West Point mihtary academy, and of similar schools to be established. Most of the engineering work in the District of Columbia (see page 360) has been done by army engineers, and these are employed in gov- ernment work upon rivers and harbors all over the country. The war department has incidentally developed functions that pertain to peace. Thus the signal service, originally formed to communicate be- tween one part of the field and another by flags and other signals more rapidly than would be possible by messengers, naturally gave notice of approaching storms; in this way grew up the "^ meteorolgical or weather bureau, which gets re- ports from hundreds of stations all over the country, and publishes the probable weather for the coming 24 hours. This has proved of great value, especially to farmers and to seamen. These functions became so important that the bureau was transferred to the department of agriculture (see page 421). The secretary of the nary executes the laws of congress relative to the navy (38), under general direction of the president. He also has charge of the naval school at Annapolis. The secretaries from New York have been Smith Thompson (1818-23), James K. Paulding POST-OFFICE DEPARTMENT 401 (1838-41), William C. Whitney (1885-9), and Benjamin F. Tracy (1889-93). The postmaster general has charge of the post- offices of the country and the carrying of the mails. The postmaster generals from New York have been Francis Granger (1841), Nathan K. Hall (1850-2), Thomas L. James (1881), Wilson S. Bissell (1893-5). The carrying of private letters by the govern- ment was first undertaken by government in England, about the time the English colonies were founded here. In 1639 Massachusetts or- dered that all letters from abroad be taken to the house of Eichard Fairbanks, who was allowed one penny each for taking care of them. In 1657 Virginia passed a law requiring every planter to convey letters to the next plantation. In 1672 New York city established a monthly mail to Boston. In 1704 England created the office of post- master general of America, but little was done till in 1753 Benjamin Franklin became deputy. He had been postmaster of Philadelphia, and he so improved the service that it more than paid expenses. When he was removed in 1774 there was for a time no public postal service. In 1775 the continental congress made him postmaster general, and in 1789 congress recog- 402 POST-OFFICE DEPARTMENT nized the post-office department as existing. The postmaster general became a cabinet officer in 1829. There are some 75,000 post-offices. The post- masters were at first all appointed by the post- master general, but in 1863 all appointments where the salary was 11,000 or more were en- trusted to the president (see page 382). Mail matter is divided into four classes, — first- class including letters and all sealed matter; second-class, including periodicals admitted to this class by the postmaster general ; third-class, including all other printed matter; and fourth- class, including merchandise. The rates are: 1st class, 2 cts. per ounce;. 2d class 1 cent per pound ; 3d class 1 cent for each 2 ounces ; 4th class 1 cent an ounce. These rates apply to the Philippines and to Alaska. How low they are appears from the fact that in 1845 it cost 6 cents to send a letter 30 miles, and so on up to 25 cts. for sending it 400 miles. Yet it is probable that before long the letter rate will be only 1 cent per ounce. As a protection against loss of money sent in the mail, letters may be registered. There is a special fee of 8 cents for which the post-office carries these letters in a separate pouch, and de- livers them only upon receipt of the person to whom they are addressed. Since 1897 it has RATES OF POSTAGE 403 been possible to recover from the government money lost in registered letters, to the amount of 110. The money order system is also under a special superintendent, and sends money safely for a small fee. In Europe there is what is called a parcels-post division of the post-office, performing the func- tions of our express companies at much lower rates. The telegraph system of several foreign countries is also managed by the post-office as a national institution. Letters have for a long time been delivered to their addresses in cities and villages; and now the system of rural free delivery is rapidly grow- ing, by which carriers deliver letters at every farm-house, and take letters ready for mail. The foreign mails are under a special superin- tendent. The power of congress to establish post-roads (32) has been interpreted to authorize internal improvements. In 1803 congress authorized the use of 3 ^ of the net proceeds of the sale of pub- lic lands in Ohio for the construction of roads there, and in 1806 it voted to construct the ^' national road " from the Potomac to the Ohio. Usually, however, the construction of roads has been left to the states. The postmaster general makes the contracts for carrying the mail. Under authority of this provision an inter- 404 POST-OFFICE DEPARTMENT state commerce commission (see page 517) was established by congress in 1887, composed of 5 members appointed by the president and con- firmed by the senate; salary 17,500. At that time 27 states had similar boards, but none of them could control railways except within their own states. This commission is not connected with any of the departments of government. This provision is also made authority for in- terference of the national government with rail- way strikes. To stop or hinder a train carrying United States mail is an offence against national laws, and will be prevented if necessary by United States troops (see page 349). CHAPTER XLI TREASURY DEPARTMENT, The secretary of the treasury is the financial head of the government, and it is through him that most of the financial laws passed by con- gress go into effect. Unlike the corresponding chancellor of the exchequer in England, who is the only member of parliament who ever intro- duces a bill to raise money, he has officially little influence upon the action of congress. ^ In 1776 the continental congress appointed a standing committee to superintend the treasury, but in 1881 t^iis was displaced by Eobert Morris as superintendent of finance. For his wise management the country is indebted to him, per- haps second only to Washington, for its success in the struggle for independence. The United states treasurer is an officer of this department. His salary is |6, 000. The secretaries of the treasury from New York have been Alexander Hamilton (1789-95), John C. Spencer (1843-4), John A. Dix (1861), Charles J. Folger (1881-4), Daniel Manning (1885-7), Charles S. Fairchild (1887-9). Alexander T. iBi.171, 210. (405) 406 TREASURY DEPARTMENT Stewart was appointed by Gen. Grant in 1869, but not confirmed by the senate, being ineligible as an importer (see page 394). The power of congress to establish uniform weights and measures (30) is exercised through him. Sales are usually by the pound, the bushel, ^ the foot ; and these must mean the same thing everywhere. Congress has never made this uniformity obligatory; but in 1828 it adopted the Enghsh troy pound weight, and in 1836 it directed the secretary of the treasury to send to each state a set of the weights and measures on the British standard used in the custom house ; these have been adopted by the states as their standards. Congress legalized the metric system in 1866, and has passed some laws to encourage the use of the metric system, one of them making it possible to enforce contracts which employ this system. In 1875 it established a bureau of weights and measures, which in 1889 received copies of the international standard meter and kilogram. In 1893 the secretary of the treasury ruled that these should be fundamental stand- ards, the yard being defined as |-||-^ of a meter, and the pound avoirdupois as ^'Yi-rr ^^ ^ kilo- gram. The secretary of the treasury controls the money (from Latin moneta^ money) of the coun- WEIGHTS AND MEASURES '407 try. Money is the medium through which all other commodities are valued and exchanged. The Indians used furs and strings of beads for this purpose ; but gold, silver, copper, and nickel have been found the most available by civilized nations. In early times silver and gold were weighed every time they were employed; the knights of the middle ages carried scales a.t their sides to weigh silver. Afterwards it was found more convenient to make coin, that is, pieces of a specified weight, stamped by the government or some authorized agent. The value stamped upon a coin fixes its value within the jurisdiction of the government stamp- ing it, but outside its real value is fixed by the commerce of the world (see page 410). Thus the Mexican silver dollar is worth in trade with other nations about half a dollar in gold, while an American silver dollar containing no more value in metal is worth anywhere a dollar in gold, because with the United States stamp up- on it a dollar in gold or its equivalent may al- ways be had in exchange for it. One of the powers granted to congress alone (51) is to coin money, and this it does through the secretary of the treasury, at various mints (also from moneta), that in Philadelphia having branches in New York, Denver, and San Fran- cisco. 408' TREASURY DEPARTMENT All gold and silver coins have y^. alloy, and are thus yV fi^^' Enghsh gold has yV ^^^J 5 Eng- lish silver J^. The English government did not permit the colonists to coin money, though Massachusetts did so in 1652. The confederation did not coin money, but used the Spanish dollar or '^ piece of eight" as the unit. The doUar was adopted with a decimal system in 1785, but no coins were issued until the mint was estabhshed at Phila- delphia in 1792. The mints make no charge for coining gold, except for the copper used in the alloy. Un- coined gold and silver is called bulliou. The following coins are now struck off : gold 12.50, ^3, $5, $10, $20. The gold dollar weighs 25.8 grains, and contains 23.22 grains of pure gold; silver Si, 50 cts., 25 cts., 10 cts. Tha silver dollar weighs 41 2 J grains, and contains 371 J grains of pure silver. The smaller coins weigh at the rate of 385.8 grains or 25 grams to the dollar ; nickle 5 cts. ; bronze 1 cent. Other coins have been struck off and are sometimes used. The coinage of the gold doUar was discontinued in 1890. Gold coins and silver dollars are legal tender GOLD THE MONETARY STANDARD 409 for any amount, — that is they must be accepted for all purchases, debts, and other obligations. Smaller silver coins are legal tender to the amount of |10. The nickle and bronze coins are legal tender to the amount of 25 cts. The states are forbidden to make anything but coin legal tender (51). The reason why the final value of a silver coin depends upon the amount of gold it will procure is that the relation of gold to silver varies, as the quantity of each produced from the mines varies from year to year. Jefferson said : ^ ' The pro- portion between the values of gold and silver is a mercantile problem altogether." Thus in 1792 the value of a pound of gold was 15 times that of a pound of silver, the gold dollar con- taining 24| and the silver dollar STlJ grains of pure metal; in 1901 it is 31 times the value of a pound of silver. At first the value of the gold increased; so in 1834 the pure gold in the dollar was reduced to 23^ grains, making the ratio 16 to 1. Then silver began to increase in relative value, and the silver coin was worth more by weight than gold coin, whereupon it disappeared from circulation. It became manifest that there must be only one standard, and gold was chosen. Great Bri- tain had adopted gold as a standard in 1816, sil- ver being legal tender only for 40 shilhngs. In 410 TREASURY DEPARTMENT 1853 the silver coins below the dollar were made lighter, two half-dollars having 34:5.6 grains of pure silver instead of 371 J, so as to be worth by weight less than gold coins. This kept them in circulation, and as they can be exchanged for gold there is no loss in accepting them. In 18T3 the silver dollar was dropped, but in 1878 it was restored and made legal tender for debts. The coinage was to be not less than 2 millions a month. In 1890 congress passed the Sherman act, requiring the secretary of the treasury to buy 4J million ounces a month, but repealed it in 1893. In 1898 congress directed the secretary to coin the silver purchased under the Sherman act at the rate of not less than IJ millions a month, and in 1900 directed that the dollars so coined be used to redeem treasury notes, which are then to be cancelled and retired. When the silver dollar was dropped in 1873, a silver coin was adopted for trade with China of the same weight as the Mexican doUar much used in eastern trade, and somewhat heavier than an old silver dollar. This was called a trade-dollar, and was legal tender until 1876, when although coined it became only bullion. In 1887 congress authorized standard doUars to be given in exchange for trade-dollars. Congress also acts through the secretary of the treasury in fixing the value of foreign coins (see STJB-TREASURIES 411 page 407). Thus the Enghsh pound sterhng is received by our government officers at 14.8665. No foreign silver coin is accepted or valued by the government. Since 1857 no foreign coin has been legal tender. Canadian silver and bills are sometimes refused except at a discount. The secretary of the treasury has charge of all money paid into the treasury, and of all the dis- bursements. When there was a United States national bank the treasurer deposited his funds there. After the bank was discontinued the funds were distributed among certain state banks, and much loss resulted during the financial panic of 1837. In 1840 sub- treasuries were estab- Hshed, and are now located in Baltimore, New York, Boston, Philadelphia, Chicago, St. Louis, Cincinnati, San Francisco, New Orleans, Washington. The constitution gives congress power (26, 27) which is exercised through this department to raise money (a) for the payment of debts, (b) for the common defence, (c) for the general welfare. The confederation had no power to enforce enlistment or the raising of money, being depend- ent upon the voluntary action of the states (see page 351). The term general welfare needed to be im- 412 TREASURY DEPARTMENT pressed on the states, for at the time the consti- tution was formed they were jealous rivals of one another. But the term is so comprehensive that its interpretation has been one of the divid- ing hnes of the two great parties (see page 182), the one sometimes claiming that it may be ex- tended to cover a heavily protective tariff (see page 297), liberal appropriations for public im- provements, etc., while the other has held its sense to be more restricted. At the opening of congress the secretary of the treasury presents a report to congress, giving his balance-sheet for the preceding year, and his estimate of the amounts likely to be received and needed for the coming year. Usually the ex- penditures are more than the receipts, and pro- vision is required to raise money; but sometimes there has been a surplus, the income from indi- rect taxes being more than was needed for the expenses of government and payments on the public debt. In 1901 this made it necessary to discontinue most of the stamps upon commercial paper (see page 298). During o/resident Cleveland's administrativon there was a surplus income of 100 millions. If allowed to accumulate this would absorb money from the channels of trade, so bonds not yet due were purchased at a premium, and money was GREENBACKS 413 deposited in national banks. This was done also in 1901. Congress raises money (1) by levying (a) direct taxes, (b) imposts, or (c) excises (see page 296); or (2) by borrowing (27). This is rendered neces- sary chiefly during wars, the civil war running up the amount of national debt to nearly 3,000 millions, the amount borrowed for the four years 1861-5 averaging nearly 600 millions a year. Id 1891 the amount was 1,560 millions, and in 1900 2,105 millions, half of it interest -bearing. In 1901 that of England was 44 billions. This money was secured partly by the issue of government notes, the ' ' bills of credit ' ' of the constitution (51 ; see page 342), which from their color were called greenbacks, and in 1862. against protest that the act was unconstitutional, were made a legal tender (see page 408) except for duties on imports and interest on the public debt, which are always payable in gold. The secretary of the treasury used these bills himself to pay the wages of soldiers and to buy supplies for the army. But as he had not coin in which to re- deem these bills, the value of coin began to rise, till in July, 1864, it took nearly |300 in green- backs to buy $100 in gold. As people were obliged to sell goods for greenbacks, they raised the prices accordingly, till a nominal dollar would buy only J as much as before the war. After the war ended in sustaining the govern- 414: TREASURY DEPARTMENT ment, confidence grew and the price of gold fell till finally on Jan. 1, 1879, the day appointed by congress for the resumption of specie payments, that is for paying out at the treasury 810 in gold for every $10 in greenbacks offered, there were very few who wanted to make the exchange, and since then the two have been equal in value. There was a similar issue of paper money by the confederation and by the colonies individu- ally during the revolution, and a similar decrease in their value. The following is a New York i?^ TWO SHILLINGS, ^•0/11$?''"^^^^'' .Vi;/^ rOR/C Currency. 1^^ "^^"^ ^^; ;- vp)g• ^ 'J'/, One Qiiarter of a Dollar. f^^ \Mf N E ^r TOR. K: [H^ ^ Prialed \>y Sari'uei Lou/ic-n., m the Year M D" ' '. j^rII^ State Monet op TS.w^ Yokk bill of 1776. But this continental money was never redeemed. Pelatiah Webster said: ''We NATIONAL BANKS 415 have suffered more from this cause than from every other cause or calamity. ' ' Besides the greenbacks and national bank notes (see page 416), the government has issued gold and silver certificates, each entitling the holder to receive so many gold or silver dollars from the treasury. They are not legal tender, but are freely received. The secretary of the treasury also has charge of the complicated and extensive national banking system. This is under the immediate direction of the comptroller of the currency, who issues an annual report. The first bank in the United States was chartered by the continental congress in 1781, and in 1791 congress established a Bank of the United States, with a charter for 20 years. At the end of that time, in 1813, congress refused to renew the charter, but, owing to the financial distress that ensued, in 1816 chartered another bank for 20 years. When the charter expired, its renewal was vetoed by both Presidents Jack- son and Tyler, and it has never been re-estab- hshed. The states, however, chartered banks, with power to issue bank notes, though it is doubtful whether these were not the ' ' bills of credit ' ' prohibited to the states (51). As there were thousands of these institutions each issuing its own bills, not only was counter- 416 TREASURY DEPARTMENT feiting common, but it was not easy to know whether the bank was reallj able to redeem its biUs. New York had required its state banks to deposit with a state officer sufficient property, usually bonds, to furnish ample security for the payment of its notes. In 1863, when the gov- ernment needed money it adopted this New York system, put a prohibitive tax of lO^ upon the bills of state banks to prevent their issue, and established in the treasury department a bureau of currency in charge of a system of national banks, to use only notes printed at Washington and secured by United States bonds deposited in Washington. This furnished a market for bonds, made the bank-notes of the entire country uniform, and provided govern- ment guarantee for the redemption of the notes. The power to do it was assumed from sections 27 and 28 of the constitution. National bank notes are not a legal tender (see page 408), but each national bank is required to receive the notes of every other, and they are accepted for all dues to the United States except duties on imports. A bank which does not issue notes is known as a state bank. The convenience of bank notes is everywhere recognized. If oranges bought in New York from Cahfornia could be paid for only in coin m NATIONAL BANKS 417 e transportation would be costly and danger- ous, but a bank note for |1,000 weighs no more and is as easily concealed as a bank note for $1. There is however a chance of loss by theft, since whoever gets hold of the note can use it. In England, where bank-notes are never issued for less than $25, and when once paid into the bank are always destroyed and only fresh notes issued, it is common to keep the numbers of bank-notes as a precaution against theft. Payment is much more common, however, in the use of a bank check, a written request to a bank from a person who has money on deposit to pay it to another person, which is usually pay- able only to the order of the person to whom it is sent, can be used only by him, and if lost or stolen may be stopped— that is the bank requested not to pay it (see page 527). A draft (see page 197) or bill of exchange is a written request from one person to another, usually through a bank, directing the payment of money. When accepted, by writing across the face that word with the signature of the drawee, it has the effect, if at sight, of a check ;, if at a specified time after sight, of a note (see page 529). Money may even be sent for and paid through the telegraph office. Besides issuing bank-notes, congress borrows 418 TREASURY DEPARTMENT money by authorizing the secretary of the treas- ury to sell bonds (see page 46), by which the government promises to pay the principal at a stated date, and meantime to pay quarterly inter- est at a certain percentage. Thus the bonds known as '' 1925 4's " are due in 1925, and mean- time bear interest at 4 ^ a year. These various issues require a great deal of printing, and to prevent counterfeiting this must be done on specially made paper from expensive plates and with precautions against theft. So the treasury department has a bui^eau of engrav- ing and printing. The power of congress to regulate commerce (28) is also exercised through the secretary of the treasury. Its most important apphcation is in the collection of duties on imports (see page 297) ; and the prevention of any levy of duty by the states upon articles imported from other states (48). It must not discriminate among ports (48). But it extends much farther. Under Jeffer- son it was even held to justify an embargo act that cut off all trade with foreign nations through the agency of American ships, and later a non- intercourse act that cut off trade with France and England. While trade between states is made free, there are some limitations. A state may pass a law establishing inspection of oil or food-products or REGULATION OF COMMERCE 419 cattle, and' collecting the cost of inspection from the owners. But when Minnesota made a law requiring the inspection on foot, within the state, within 24 hours, of all fresh meat offered for market, the courts ruled it unconstitutional be- cause the intent w^as not to protect the citizens but to protect local butchers. A Missouri law requiring a license of dealers in wool not pro- duced in the state was declared unconstitutional because it did not apply to all dealers in wool. A Maryland law requiring license of all imports of foreign goods was declared unconstitutional because it had the effect of a duty on imports. American vessels have many privileges over foreign vessels. The latter are not allowed to engage in our coast trade. All vessels built and owned in this country must be duly registered on the collector's books. When a vessel leaves a port it must obtain a clearance, or certificate that the law has been compUed with in all respects. When it reaches another port it must be entered, — that is the cap- tain must report its arrival to the collector of the port, give a statement of the cargo, and show his clearance from the last port. Congress also passes many laws to render navigation safer, improving harbors, establishing light-houses and hfe-saving stations, requiring pilots, limiting the number of passengers, im- 420 TREASURY DEPARTMENT posing quarantinej etc. The coast sUrvey is in this department, and produces maps of immense value. The superintendent receives the same salary as the treasurer, 16,000. So vast and complicated is the work of the treasury department that in 1901 Secretary Gage recommended the establishment of a new depart- ment to take the purely commercial business, and leave the strictly financial business for the treas- ury department. In his message of 1901 President Eoosevelt said: " There should be created a cabinet officer, to be known as secretary of commerce and indus- tries, as provided in the bill introduced at the last session of congress. It should be his province to deal with commerce in its broadest sense, including, among other things, whatever con- cerns labor and all matters affecting the great business corporations and our merchant marine. " France and Germany have each a minister of commerce, and England has a board of trade the president of which is a cabinet officer. The United States has already a department of labor, with a commissioner whose salary is $5,000. This would j)robably be incorporated in such a cabinet office. CHAPTER XLII DEPARTMENT OF THE INTERIOR The secretary of agriculture conducts experi- ments in farming and horticulture, and publishes for distribution among the people useful informa- tion on these and alhed subjects. Information obtained from consular agents in other countries is made available for use here. For the weather bureau see page 400. This work belonged to the department of the interior until 1862, when a commissioner of agriculture was appointed. The cabinet depart- ment was created in 1889. The secretaries have all been from the western states. The secretary of the interior executes the laws of congress relative to internal affairs, with such a variety of functions, that the principal depart- ments may best be treated separately. The work of this department was formerly done by the state department, but was com- mitted to a separate department in 1849. The only secretary of the interior from New York has been CorneMus N. BHss (1897-8). The commissioner of Indian affairs exercises general control over the Indians, including (431) 422 INTERIOR DEPARTMENT treaties, supplies, education, etc. Congress has entire charge over Indians Hving in tribes, but it sanctions state laws forbidding the sale of in- toxicating liquors to Indians. When Indians break up their tribal relations they become sub- ject to the government of the state or territory in which they live. Commerce with Indian tribes is regulated by congress (28). It had been found hazardous to leave it to the states. The commissioner of the land office has general charge of the survey and sale of public lands. The power to dispose of public lands is granted to congress (77) and through land offices in the states and territories they have been rapidly opened up to cultivation (see page 356). Our system of surveys was devised by Thomas Hutchins, first geographer of the United States. The land is first divided by meridians and parallels 6 miles apart into townships (see page 26), thus locating land and furnishing boundaries for local govern- ment. Each township is divided into 36 sections, each of a mile square. In most of the western states one of these sections is granted to the state for school purposes, and government marks are placed at every half mile. The government seUs land in lots of 40 acres or multiples thereof. See page 356. The commissioner of pensions examines claims PATENTS AND COPYRIGHTS 423 for pensions (from Latin pendere, to weigh), and grants them when found worthy. This is among the greatest expenditures of government, the pensions paid to soldiers of the war that ended in 1865, and their widows, amounting in 1901 to 138 J milMons. The superintendent of the census is appointed temporarily every ten years to conduct the census of that year. The superintendent of public documents has charge of the distribution of pubHc documents among the people. The commissioner of patents has charge of the patent office. The right to grant patents is ex- pressly conferred on congress (33). To obtain letters of patent, the invention must not have been in use or on sale more than 2 years before making appHcation ; and full de- scription, specifying the novel features claimed, with drawings and models, must be filed in the patent office, with a fee of $15. Examination is made of similar contrivances of which draw- ings, models, and specifications are on file, and if there is no conflict of claims and the object is patentable and desirable, letters patent are issued giving the inventor exclusive right to control its manufacture and sale for 17 years, which may be extended 14 years. The patented article must bear the wprd '' patented ", with the date of the 424: INTERIOR DEPARTMENT patent. To make, use, or sell such an article without consent of the patentee is an inMnge- meiit (from Latin in and frangere. to break), and subject to heavy penalties. The final fee is |35. This office also registers trade marks, the dis- tinctive mark, device, or emblem that a manu- facturer affixes to his goods to identify them. The period is 30 years. Copyrights are granted by the librarian of con- gress. The term is 28 years, and may be ex- tended 14 years longer. Until recently any title could be copyrighted, but there are now some restrictions. A fee of 50 cents is required with the application, which must have a printed or type- written copy of the full title; and when the book, picture, map, or other article is published, 2 copies must be sent to the hbrarian of con- gress, to complete the copyright. The copy- righted article must bear words in the following form: ''Copyright, 1901, by C. W. Bardeen"; and to print, sell, or hold any copy of the same is an infringment, subject to penalty. Since 1891 congress has permitted copyright on the same basis to citizens of foreign countries that grant us the same right, but the book must be printed from type set in the United States. The superintendent of the geological survey has charge of this government work, including the measuring and mapping of rivers, mountains, etc, BUREAU OF EDUCATION 425 There is no national supervision of education, that matter being left entirely to state control. The words education and schools are not found in the national constitution. Yet besides its mili- tary and naval schools (see page 400), it makes appropriations for Indian schools. Before the constitution was adopted it gave by the ordi- nance of 1785 at least one section of every town- ship for education, and in 1862 it set apart public lands for agricultural colleges (page 323). In 1867 it established the bureau of education. The head of this, the commissioner of education is appointed to investigate into the condition and progress of the educational systems of the differ- ent states and territories. The annual reports of the commissioner have been the marvel of other nations for the fulness of their statistics and the usefulness of their generalizations. Other pub- lications, like the series of circulars of informa- tion, have proved of untold value. The anomaly is that this important office, filled as it is in 1901 by the man in the country best fitted for it, still carries the meagre salary of $3,000. There is also a commissioner of Indian affairs, salary |4,000, under whom there is a superin- tendent of Indian schools. Besides this government work under control 4:26 INTERIOR DEPARTMENT of the cabinet, there are many national institu- tions that should be mentioned. The national library, opposite the capitol, is the largest in the country, and is in a building worthy of the country. The librarian, salary 14,000, has charge of copyrights; and the library receives 2 copies of every copyrighted book (see page 424). The Smithsonian institution comes from a fund of more than half a milhon given to the United States in 1836 by an EngHshman named James Smithson, to found an institution for the ad- vancement and diffusion of knowledge. It now has a fund of a million, on which the govern- ment pays 6 ^ to the regents, who are the chief justice, the vice-president, and 3 senators ap- pointed by him, 3 representatives appointed by the speaker of the house, and 6 citizens elected by joint ballot of congress (compare page 318). The buildings are made the repository of the national museum, maintained by congressional appropriations. In 1901 Andrew Carnegie offered the national government 10 millions to establish a national university for post-graduate study and investi- gation, to be managed somewhat as the Smith- sonian institute is managed. There is a fish commissioner with duties corre- BUREAU OF FORESTRY 427 spending in part with those of the forest pre- serve commission (see page 210). The protection of the forest reserves rests with the land office (page 422), the mapping and de- scription of their timber with the geological sur- vey (page 424), and the preparation of plans for their conservative use with the bureau of forestry in the department of agriculture, which is also charged with the general advancement of prac- tical forestry in the United States. President Eoosevelt recommended in 1901 that these vari- ous functions be united in the bureau of forestry, to which they properly belong. The estimates for the cabinet departments offered by the secretary of the treasury in 1901 were as follows : state.: $ 2,446,328 justice.. 6,917,330 war 161,920,101 navy , 100,701,122 post-office 4,464,966 treasury 156,484,925 agriculture 5, 509, 540 interior.. 161,710,535 Total $600,154,847 The estimate for the legislative department was 10 millions, and for the executive about $200,000. CHAPTER XLIII CONGRESS The president's offices are in his residence, the White House, and the executive departments all have buildings of their own. But when one speaks of the national government his mind pic- tures at once this building, not because the su- The National Capitol preme court chamber is here (see page 275), but because it is the seat of congress (from Latin con and gradi, to come together). For while the (428) COMPARISON WITH PARLIAMENT 429 legislative, the executive, and the judicial de- partments are coordinate, the legislative depart- ment is much the broadest and the most com- prehensive. The confederation thought it could get on with congress alone (see page 350) ; the English parliament is practically the entire gov- ernment. Our national system does not go so far as this, but it makes the legislative depart- ment by far the most powerful. Congress is based upon the state legislatures, and hence indirectly upon the English parliament. But its differences from parliament are many. Congress Parliament subject to the consti- tution ; power divided with 45 state governments ; acts subject to veto; cabinet inehgible ; senators elected for 6 years; presided over by elected vice-presi- dent; representatives S86 ; must be residents of their districts : supreme ; ^ power absolute; 2 no longer so ; cabinet always mem- bers; house of lords heredi- ary, for life, 560; presided over by ap- pointed lord- chan- cellor ; members of house of commons, 670; may reside anywhere; iBi.32, 186. 2Bi.l86. 430 term 2 years; CONGRESS term 7 years, unless dissolved ; no salary; of house of lords, 3 ; salary $5,000; quorum of senate a majority; quorum of house a ma- jority; each house determines election of its own members. Congress differs from the legislature mainly in the following particulars : of house of commons, 40; referred to courts of law;i has only delegated powers ; two houses elected on different bases ; appropriation bills must originate in house of representatives; entire bill must be ve- toed if any; to pass over veto re- quires I of those voting ; yea and aay vote re- quired ; salary 15,000; iBi.186. has all powers not specifically denied ; elected on the same basis ; may originate in either house ; specific items in appro- priation bills may be vetoed ; requires f of all mem- bers elected ; manner of voting not specified ; salary |1,500; COMPARISOlSr WITH LEGISLATURE 431 house 386 members; must be 25 years old; 7 years a citizen ; an inhabitant of the state ; newly elected house serves after a year ; senate 90 members ; elected by states ; term 6 years; change of \ every 2 years ; must be 30 years old ; 9 years a citizen ; no such restriction; meets 1st Monday in December; appoints its own committees ; in impeachment acts alone. 150 members; no requirement ; no requirement ; no requirement ; serves at next session ; senate 150 members; elected by popular vote; term 2 years; complete change every 2 years; no requirement; no requirement; members of city gov- ernments ineligible; meets 1st Wednesday in January ; It. gov. appoints com- mittees ; is associated with court of appeals. For difference in powers, see chapter XXXIV. Congress meets every year on the 1st Monday in December (16). The congress which met for the first time Dec. 2, 1901, is the 57th congress. 432 CONGRESS Since the 1st congress met in 1T8T, the ordinal member of any congress may be found by sub- tracting 1787 from the odd year in which it meets, and dividing by 2. Thus, ^^'^^"^^^^ = 57. On the other hand, the year of the first' session of each congress may be found by adding twice the ordinal number to 1787. Thus, (57 X 2) + 1787 = 1901. The first session, opening in the odd year, is unlimited, and hence is called the long session. The 2d session, opening in the even year, must close at midnight of the next March 3, when a new congress comes into power. Hence it is called the short session. As a matter of fact congress adjourns on the noon of March 4, and often turns back the hands of the clock, so that the real adjournment is still later. But all laws signed after midnight of March 3 are dated March 3. As to membership, each house is the judge of the elections, returns, and qualifications of its own members (17^ 150). Parliament exercised this power till 1867, when it was transferred to the common law judges. Congress has the further power to alter the regulations for election of senators and repre- sentatives except as to the place of choosing sen- ators (15, 149). MEMBERSHIP; QUORUM 433 Each house may not only refuse to admit duly elected members whose character unfits them, but it may punish admitted members for disor- derly behavior, and by a vote of f expel a member (18, 150). This power has always been exercised by the house of commons. The United States senate expelled Blount of Tennesee in 1Y97 ; and Bright of Indiana in 1863, the latter for writing a letter addressed to Jefferson Davis as '^president of the confederation of states". The supreme court has also decided that con- gress has power to punish for contempt. A quorum is constituted by a majority of either house (17^ 150), but a smaller number may ad- journ from day to day, and may be authorized to compel the attendance of absent members. ' By a rule of the house, the speaker and 15 members may compel attendance. In the house of commons of nearly TOO mem- bers 40 constitute a quorum. To pass a bill Ohio and Illinois require a majority of all members elected. For New York requirements see page 237. The house of representatives has, by the appor- tionment of 1901, 386 members. It takes 194 to make a quorum, and if just this number were present, it would require 98 to pass a bill. Un- der the rule of the house of commons 21 could 434 CONGRESS pass it, while under the Ohio rule it would re- quire 194 to pass it. Until the 51st congress, it had been customary not to count as present members who refrained from voting, thus allowing a man to debate and yet by refusing to vote be '' constitutionally ab- sent ". Speaker Eeed counted all members who were present as part of the house, whether they voted or not, thus often making a quorum which otherwise would have been lacking ; and was sus- tained by the supreme court. This is now" the rule. The offtcers of each house are chosen by its members, except that the vice-president presides in the senate (see page 380). The most important officers of each house next to the presiding officer, are : a clerk (called in the senate a secretary, who officially communicates the proceedings of each house ; a, sergeant-at-arms, to preserve order ; He has the custody of the mace, an ebony re- production of the Roman fasces, the bundle of rods surrounding an axe, carried by the lictors before a chief magistrate, with which criminals were scourged and beheaded. A picture is given on the cover of this book. This in ex- treme cases he carries into a throng of disorderly members, and he moves it from its place when OFFICERS; RULES 435 the house goes into committee. He is also the treasurer of the house. ^ a door-keeper, who has care of the chamber ; a postmaster, who has charge of the mail; a chaplain, who opens each daily session with prayer. Rules for its own proceedings are made by each house (18, 150). These are subject only to the express provisions of the constitution. In voting the English custom of division is sometimes used, where the ayes go to one side of the house and the noes to the other. A journal of its proceedings must be kept by each house (19, 151). This not only preserves a record for future use, but imposes a check upon members, who might otherwise say in the heat of passion what they would not like to have go on record. At the request of a fifth of those present the yeas and nays must be entered on the journal (19^ 178). This is to show constituents how their members voted, but has been used to delay legislation, the process consuming much time. ^ In the 51st congress the speaker refused to entertain dilatory motions or to recognize mem- bers he thought about to make them. It is provided that the journal may omit such parts of the proceedings as may in the judgment iBi.127. 2Bi.l39, 436 CONGRESS of the house require secrecy (19^ 151), as for in- stance in time of insurrection or invasion, when such pubhcation would assist the enemy. The proceedings of the senate in executive ses- sion (see page 475) are kept secret. ^ Adjourument of either house during a session of coDgress is forbidden for more than 3 days without consent of the other, or to any other place than that in which the houses are sitting (20, 151). When the two houses can not agree as to adjournment 'the term may be fixed by the president. An oath or affirmation to support the constitu- tion is required of all members (82, 280; see page 395). The salary of members of congress is fixed by themselves, and has risen from |6 a day in 1789 to 15,000 a year, besides mileage of 10 cts. a mile each way by the nearest route for each session. From 1871 to 1874 the salary was 17,500 a year. It is paid from the national treasury (24, 146), instead of by the states from which they are ac- credited, as under the confederation. A member may not hold any other civil office imder the United States ; nor may he by resign- ing take an office created or the emoluments of ~~^Bi.l01. NATIONAL LAW MAKING 437 which have been increased during the term for which he was elected (22^ 147 ; see page 395 ). Otherwise the members might bargain among themselves to create large-salaried offices to which they could get themselves appointed. Privileges are granted congressmen of freedom from arrest during or on their way to or from the sessions ; and also from punishment for any- thing said in the house (21, 152). The former is to prevent attempts to control legislative action by keeping members away; the latter to secure freedom in debate. As al- ready seen (see page 433), undue license in debate may be punished by one's fellow-members. The process of law-making in congress is in most respects the same as that in the legislature (see pages 238^-243), with these differences: bills are introduced in both houses by the method of the New York senate, not by that of the assembly (page 238) ; bills are referred to a committee in the house before the first reading, and in the senate after the secoud;^ amendments may be proposed at any time, instead of only on second reading (page 239) ; bills may be repassed over the president's veto by a f majority of those voting, instead of by a f vote of all members elected (page 237); but ^i.lo3. 438 CONGRESS a yea aiad nay vote is required, which is not specified in the legislature. There is special provision for orders, resolu- tions, and votes, except to adjourn, which must be presented to the president and pass through the same procedure as in case of bills (25). This is to prevent congress from evading the presi- dent's power of veto by putting a bill into some other form. The president does not have, like the gover- nor (see page 242), power to veto certain parts of an appropriation biU while approving the rest. The work is even more in the hands of com- mittees than in the legislature (see page 245). The committees are appointed at the opening, of the first session of each congress, and sit through both sessions. ^ The senate designates not only the committees but the chairman of each. ^ The chairman of the ways and means commit- tee of the house is, as in the assembly (see page 247), the leader of the house, and corresponds most nearly with the English chancellor of the exchequer, though without any relation to the secretary of the treasury. ^ '' Some committees, such as those on naval and military affairs, and those on the expendi- ture of * the several departments, deal with ad- ministration rather than legislation. They have 1 B i.loa. 2 B i.52. 3 B i.l46. 173, 174. LEGISLATION BY COMmTTEES 439 power to summon the officials of the depart- ments before them, and to interrogate them as to their methods and conduct. Authority they have none, for officials are responsible to their chief, the president ; but the power of question- ing is sufficient to check if not to guide the action of a department, since imperative statutes may follow, and the department, sometimes de- siring legislation, and always desiring money, has strong motives for keeping on good terms with those who control legislation and the purse. It is through these committees chiefly that the executive and legislative branches of govern- ment touch one another. Yet the contact, al- though the most important thing in a govern- ment, is the thing which the nation least notices, and has the v^cantiest means of watching. ' ' ^ ' ' After a bill has been debated and amended by the committee it is reported back to the house, and when that committee is called is taken up in its order. One hour is allowed to the member whom his fellow committee-men have appointed to report. He seldom uses the whole of this hour, but allots part of it to other mem- bers, opponents as well as friends, and usually concludes by moving the previous question (see page 240). This precludes subsequent amend- iBi.154, 158. 440 CONGRESS ments and leaves only an hour before the vote is taken."! The speaker recognizes only such members as the committee have selected to speak. From the fact that the work of congress is so largely done in committees there is, as in the legislature (see page 248), comparatively httle scope for oratory in debates^. Some find this a matter for congratulation. "It is safe to say that the harm which has been done by laws based on unemotional reasoning is but a drop in the bucket compared with what has been done by laws based on unreasoning emotion. ' ' ^ The law-making power of congress is however radically different from that of the legislature, in that it possesses only those powers specifically given to it, while the legislature possesses all powers not specifically denied (see page 336). The constitution provides (43) that congress shall have power to make all laws necessary and proper to carry into execution the powers vested by the constitution in the government, or in any department or ofiicer thereof. Patrick Henry called this ' ' the sweeping clause ' ' by which con- gress was to overthrow the nation, but Madison said 4 that without this the constitution would have been a dead letter. Chief Justice Marshall 1 B i.l55. ' B i.l41 ; ii.268 ; Hadley, pages 93-95. ^Hadley, page 55. * Federalist, xliv. THE SWEEPING CLAUSE 441 says: ^'A power vested carries with it all those incidental powers which are necessary to its complete and efficient execution;" and Justice Story:! '' It would be almost impracticable if it were not useless, to enumerate the various in- stances in which congress, in the progress of the government, has made use of incidental and implied means to execute its powers. " It would have been impossible to numerate affirmatively all the laws that congress might pass. As it is, more than half of the original constitution is devoted to congress (see pages 342-350). If only powers specifically enumerated were permitted, congress could not have purchased Louisiana, or annexed Texas or Hawaii, or ac- quired Porto Eico, or passed the embargo act of 1807, or mad^ grants of lands to agricultural col- leges, not to speak of the recent relations this country has assumed toward Cuba and the Philippines. Chief Justice Chase maintained that congress could not pass a law for payment in greenbacks of debts contracted before they were made legal tender, on the ground that it impaired a contract (51). It also in a sense deprived a person of property (88). Yet such a law was passed be- cause at the time it seemed a necessity (see page 413). 1 Story, § 1258, U2 POWERS OF CONGRESS CLASSIFIED finance 1. to raise money 1. by levying (26), p. 413, f "^.Pg™* ^^^ ia. direct taxes, 398, debts (,b),il3, ] b. imposts, 296, for J ^; ^0"^™°^ ^e- ( c. excises, 296, ^ ^ence, 339, L 2. by borrowing (27), 413 ; % general wel- I rare ooo '^ 2. to regulate commerce (28), 418, (1. foreign 419, -? 2. interstate 418, ( 3. with Indians 421; 3. to regulate state imposts or duties (52), 296 ; 4. to coin money and regulate its value (30), 407; 5. to establish weights and measures (30), 406 ; 6. to establish post-offices and post-roads (32), 401; 7. to issue patents and copyrights (33), 423 ; 8. to enact uniform bankruptcy laws (29), 524 territory 9. to control District of Columbia (42), 360 10. to dispose of territory (77), 355 ;> 11. to admit states into the union (76), 359 elections 12. to make uniform rules for naturahzation (29), 155; 13. to regulate elections to congress (15), 432; 14. to fix the time of choosing presidential electors (56), 366; POWERS CLASSIFIED 443 15. to elect a president when electors do not have a. majority (95), 367; 16. to provide for succession to the president (58), '370; IT. to regulate the appointment of inferior officers (62), 390; 18. to propose amendments to the constitution (79), 339; war 19. to declare war (36), 468; 20. to grant letters of marque (36), 399; 21. to make rules regarding captures (36), 474; 22. to raise and support armies (37), 397; 23. to provide and maintain a navy (38), 400 ; 24. to make rules for army and navy (39), 398; 25. to call out militia (40), 193; 26. to arm and discipline the militia (41), 193; justice ^ 27. to establish inferior courts (34), 278; 28. to provide for appellate jurisdiction (68), 275; 29. to prescribe how the acts of a state shall be proved (72), 269; 30. to define and punish crimes, 544; 1. piracies (35), 552; 2. felonies on the high seas (35), 552; 3. international offences (35), 552 ; 4. counterfeiting (31), 553; 31. to declare punishment of treason (71), 546; 32. to direct the place of tral for crimes not committed in any state (69), 361. \ \ - ■PIH mm ' '^^fll^^^l ■T'^v'fl ^ wW^ 1 ^_-^:l: - CHAPTER XLIV THE HOUSE OF REPRESENTATIVES Eepresentatives are the only officers in the national government elected directly by the people (3), and it is by re-electing them or refus- ing to do so that the people show whether they approve o^ the action of congress. As they serve for only 2 years this judgment is speedy, and injurious legislation can be soon corrected. ' ^ Senators ' ' are always spoken of under that name, so that the term '' congressmen", though properly belonging to both houses, is used only of members of the house, as in England ' ' mem- ber of parliament ' ' always means member of the house of commons. ^ By the articles of confederation delegates from all the states but 2 were chosen by legislatures. Apportionment of members among the states is made according to the population of the last decennial census, excluding Indians not taxed (51, 100, 139, U2). The present apportionment is given on page 561. The number has varied from 65, in 1789, and from 105 in 1793 on a basis of 1 for every iBi.144. (445) 446 HOUSE OF REPRESENTATIVES 33,000 inhabitants, to the present number of 386, on the basis of 194,182 inhabitants. Each state must be allowed at least 1 repre- sentative (5). Nevada would otherwise not be entitled to a representative. The provision adding to the population ''| of all other persons" referred to slaves, and has been made inoperative by amendments (98, 99, 100). Eecent legislation in some of the southern states has practically disfranchised most of the negroes, but the apportionment of 1901 did not reduce the representation as required (100). The provision was a concession to the slave- holding states; and as a compensation it was provided that direct taxes should be apportioned in the same way (51 ; see page 298). But as direct taxes w^ere practically never levied, the south was the gainer. Congressional districts are required by a law of congress passed in 1842. The party in power at the time the state is divided into districts is tempted so to divide it that as many districts as possible may have a majority of voters belonging to that party. This was so flagrantly done in Massachusetts under Gov. Gerry that the district formed was called a gerrymander, and such unjust division has been called gerrymandering. The map of congres- APPORTIONMENT 447 sional districts in New York on page 582 shows many irregular outlines, but the object was so to divide up the counties as to make districts nearly equal. CongressDien-at-large are elected when the new apportionment has given more members to a state, and the new division into districts has not yet been made. By the apportionment of 1882 New York was allowed an additional congressman; and as the legislature did not redivide the state that year, this member was elected on the general state ticket. The qualifications of a member required by the constitution are that he be 25 years of age, 7 years a citizen of the United States, and an in- habitant of the. state from which he is elected (4). A man may become a member of parliament at 21, but in France and in Holland a man does not become of age till he is 25. While not required by the national constitu- tion, most state constitutions require residence in the district. ^ It is not always required in large cities that elect several members. Thus in the 48th con- gress 0. B. Potter and S. S. Cox were elected from districts in New York in which they did not reside. B i.384. 448 HOUSE OF REPRESENTATIVES Residence is not required in England, where a parliamentary district may elect its member from any part of the country. Bryce ascribes to this provision in America much of the low level of statesmanship in the house, and espe- cially the lack of effective leadership. ^ He says : ^ '' The mischief is two-fold. Inferior men are returned, because there are many parts of the country which do not grow statesmen; where nobody, or at any rate nobody desiring to enter congress, is to be found above a moderate level of political capacity. And men of marked abil- ity and zeal are prevented from forcing their way in. Such men are produced chiefly in the great cities of the older states. There is not room enough there for nearly all of them, but no other doors to congress are open. Boston, New York, Philadelphia, Baltimore, could furnish six or eight times as many good members as there are seats in these cities. As such men cannot enter from their place of residence, they do not enter at all, and the nation is deprived of the benefit of their service. Careers are moreover inter- rupted. A promising pohtician may lose his seat in his own district through some fluctuation of opinion, or perhaps because he has offended the local wire-pullers by too much independence. Since he cannot find a seat elsewhere, as would 1 B i.l41, 148, 182, 514 ; ii.67. 21 190^ 453^ REQUIREMENT OF RESmENCE 440 happen in England, he is stranded ; his pohtical hfe is closed, while other young men inclined to independence take warning from his fate. *' The fact is, that the Americans have ignored in all their legislative as in many of their ad- ministrative arrangements, the differences of capacity between man and man. They under- rate the difficulties of government, and overrate the capacities of the men of common sense. ' ' Another disadvantage is that the member, be- ing elected for the district of which he is resident feels himself bound to make its interests para- mount ; ^ to secure the local legislation he wants he is forced to resort to log rolling (see page 250). Hadley says (page 79): *' Under the current system of political ethics there is in fact a direct antagonism between the theory of economics and the practical working of representative gov- ernment. The economist shows how largely the independent action of the parts may be made to conduce to the collective good of the whole. The practical working of representative govern- ment, making each member primarily responsi- ble to his district — or one might better say to the members of his own party in his district — means that the collective action of the whole is made a tool to subserve the separate wants of the parts, even though the satisfaction of those wants may iBi.187, 521.. 460 HOUSE OF REPRESENTATIVES antagonize the general interest of the nation. The history of every tariff bill, and of every river and harbor bill affords illustrations of this tendency of our representative system. The economist is at a disadvantage, in influencing members of the legislature, because his ends are different from theirs. He is trying to pursue collective interests ; they are trying — and under the existing condition of things, necessarily try- ing — to balance, to compromise, or in some fashion to reconcile divergent ones. ' ' ^ The election of members is by vote of those who have the qualifications necessary for the most numerous branch of the state legislature (3, 139). Tacaucies are filled for the remainder of the term at special elections ordered by the governor (6). The speaker is the only officer chosen from the members. The salary is S8,000. The English house oftcommons chooses its speaker, but the approval of the king is required. The clerk is usually chosen from ex-members. Owing to delay in choosing the speaker, the clerk presided Dec. 3, 1855 to Feb. 2, 1856, and 9 weeks in 1859-60. Only one member from New York has been appointed speaker, John W. Taylor, who served 1820-21, and 1825-27. 1 See also page 144. POWER OF THE SPEAKER 451 In rank the speaker stands next to the presi- dent, and on a level with the justices of the supreme court. Bryce (i.l36, 137) is doubtful if he should not be called the first political figure in the nation, with an influence in ordinary times superior to the president's. He differs from the speaker of the house of commons in that he is a party leader, and does not aim at the impartiality that characterizes the English speaker. ^ Compare page 246. The committees are appointed by the speaker; and as the control of legislation in congress or in the legislature is in the hands of these commit- tees (see page 245), it is manifest that his power is enorhious. In debate the speaker is all-powerful. He may recognize whom he chooses of those who rise to speak ; he can advance or postpone bills in a way to determine their fate (see page 440). ^ In general the house is coordinate with the senate in legislation, but it has three exclusive powers : 1. to originate bills for raising revemie (23) ;-^ 2. to originate impeachments (7^ 13^ 14, 65 ; see page 230) ; 3. to elect a president of the United States when the electors fail to do so (95 ; see page 367). This power was exercised in 1801 and in 1825. ^ 1 B i.l34, 135. 2Bi.l3o. 3Bi.99, 175. *Bi.l26. CHAPTER XLV THE UNITED STATES SENATE The constitution of the senate records the most remarkable of the many compromises that were necessary to the formation of the constitu- tion, in providing that every state, large and small alike, shall be represented by 2 senators. By the census of 1900 Nevada has a population of 42,335 and New York of more than 7 mil- lions; yet each has equal representation in the senate. This extends to more than law-making. The senate confirms appointments and ratifies treaties ; it gives every state 2 members of the electoral college; it may as in 1837 elect a vice- president, while the election of president if by the house of representatives is by states, with an equal vote for every state. ^ The purposes for which the senate was created, are thus set forth, by Alexander Hamilton, ^ 1. To conciliate the spirit of independence in the several states, by giving each, however small, equal representation with every other, however large, in one branch of the national government. 1 B i.l20, 182. 2 Federalist, Ixvi ; B i.l08. (453) 454 UNITED STATES SENATE 2. To create a council qualified, by the moder- ate size and the experience of its members, to advise and check the president in the exercise of his powers of appointing to office and concluding treaties. 3. To restrain the impetuosity and fickleness of the popular house, and so guard against the effects of gusts of passion or sudden changes of opinion in the people. 4. To provide a body of men whose greater experience, longer term of membership, and comparative independence of popular election, would make them an element of stability in the government of the nation, enabling it to main- tain its character in the eyes of foreign states, and to preserve a continuity of policy at home and abroad. 5. To establish a court proper for the trial of impeachments, a remedy deemed necessary to prevent abuse of power by the executive. The phrase ' ' comparative independence of popular election ' ' show^s how important it seemed to have this second house of the legislature elected in such a way as to give it a character distinct from the other. The Enghsh house of lords is hereditary ; the Italian senate is composed of persons nominated by the king; France ap- points her senators by indirect election; the Prussian house of lords is partly nominated, 455 partly hereditary, partly official, partly elective. ^ The convention decided to distinguish between the two bodies by making the members of the senate (1) fewer, (2) elected by the state legisla- tures instead of by the people, (3) for 6 years instead of 2, and (4) with a requirement of 30 years of age instead of 25, and 9 years a citizen of the United States instead of 7 (10). The number of senators is limited by the num- ber of states, and is not likely to exceed 100, while the English house of lords numbers about 560, the Russian 432, and the French senate 300. ^ It is provided that the terms of only J of the senators expire each two years (9), so that there is comparative permanence. The house might be entirely changed by a single election, but to make an entirely new senate would require 3 elections. ^ Thomas H. Benton was a senator 30 years, and John Sherman 32 years. The method of election was fixed by congress in 1866, providing that when a senator is to be chosen each house of the legislature shall first vote separately on the 2d Tuesday after organiza- tion or after notice of vacancy has been received ; on the next day they meet together and if the choice of the houses shall prove to be the same the person shall be declared elected; if it does not prove to be the same, both houses shall pro- iBi.94. 2Bi.93. ^BiAQ2, 456 UNITED STATES SENATE ceed to a joint vote, a majority of each house being present. ^ If no person receives a majority, the joint assembly must meet and cast at least one vote a day during the entire session. If vacancies happen during a recess of the legislature the governor appoints a senator to serve until the next meeting of the legislature (9). But if the vacancy exists through inability or refusal of the legislature to elect, the ap- pointee of the governor will not be recognized by the senate, as it is not believed that the constitu- tion gives such power to the governor. For the first few months of the 1st congress New York had no senators, through disagree- ment of the houses of the legislature. The presiding officer is the vice-president, and his power is much more limited than that of the speaker of the house. He has no vote, except in case of equal division ; the standing commit- tees are chosen by the senate ; and his authority in questions of order is limited, the decision be- ing held to belong to the senate itself. ^ The senate elects a president pro tempore who presides in the absence of the vice-president, and if the office of vice-president becomes vacant receives the same salary as the vice-president. Of course he does not become vice-president, for EXECUTIVE POWERS 457 no officer of the United States can be a member of either house of congress (22). In the Enghsh house of lords the presiding officer is the lord chancellor, or some other officer appointed by the crown. The executive powers of the senate were con- sidered by the f ramers of the constitution exceed- ingly important, as we having already seen in the quotation from Hamilton (see page 453). In advising and checking the president in the mat- ter of appointments and treaties, it has proved so powerful that Bryce thinks the evils almost commensurate with the benefits.^ He says: '' Hamilton went so far as to speak of the national executive authority as divided between two branches, the president and the senate. These executive functions are two, the power of approving treaties, and that of confirming nominations to office submitted by the presi- dent. "^ '' The senate may appear in some poiuts to re- semble the English privy council of the seven- teenth century, because it advises the executive ; but there is all the differences in the world be- tween being advised by those whom you have yourself chosen and those whom election by others forces upon you. So it happens that the relations of the senate and the president are sel- iBi,103, 106, 109, 120, ^ B 1403, 458 UNITED STATES SENATE dom cordial, much less confidential, even when he and the majority of the senate belong to the same party, because the Senate and the president are rival powers jealous of one another. "^ " No European state, no British colony, entrusts to an elective assembly that direct participation in executive business which the senate enjoys. "^ In the case of treaties (see page 474:) the house sometimes has considerable power through its control over appropriations. When Louisiana, Florida, and California were purchased, the presidents were careful to make sure beforehand that the house would appropriate the necessary money ; in the purchase of Alaska, however, the house was not consulted. Congress authorized the admission of Texas either by treaty or upon the acceptance of certain terms specified, and it was admitted upon accepting those terms — that is without exercise of the treaty-making power. Hawaii was annexed by joint resolution of con- gress, but Porto Eico and the Philippines were secured by treaty. The judicial power of the senate, like that of the New York senate, consists in its trial of cases of impeachment (see page 230); but it has greater power, not being associated with the supreme court, except that when the president iBi'.91. ^Bi.llO. JUDICIAL POWER 459 is under impeachment the chief-justice pre- sides (13). Had Andrew Johnson been convicted, the president pro tem of the senate would have be- come president,- yet he insisted on voting (see pages 230, 231). Otherwise the provisions are the same as in New York (14, 218), the house of representa- tives making the impeachment (7). The presi- dent may not pardon those convicted by impeach- ment (61). The constitution reads, ' ' The president, vice- president, and all civil officers of the United States shall be removed from office on impeach- ment for and conviction of treason, bribery, or other higher crimes or misdemeanors " (65). The question has arisen whether congressmen are civil officers, and thus liable to impeach- ment ; but by civil office the constitution seems (22) to mean an office not miUtary which con- gress has the power to create ; the president is said (64) to commission all the officers of the United States, and he certainly does not commis- sion congressmen. So though the first case of impeachment was brought against Senator Blount in 1797, and he was expelled from the senate (18), it was then decided that he could not be impeached (see page 433). There have been 6 other cases of impeach- 460 UNITED STATES SENATE ment, 4 against judges, 1 against a cabinet officer, and 1 against President Andrew John- son. Only 2 secured conviction — both against judges, one for drunkenness, and one for aiding the rebellion. Brjce says^ impeachment is the heaviest piece of artillery in the congressional arsenal, but be- cause it is so heavy is unfit for ordinary use. It is like a hundred-ton gun, which needs complex machinery to bring it into position, an enormous charge of powder to fire with, and a large mark to aim at. It is however the only means by which a federal judge can be got rid of. The legislative powers of the senate are coor- dinate with those of the house, except that it may not originate bills for raising revenue (23). This is a traditional distinction, the English house of commons having zealously guarded this prerogative. 2 There is a reason for it in con- gress, the members of the senate not represent- ing equal numbers of citizens. ^ In New York where senate and assembly are equally repre- sentative, no distinction is needed or made (153). Bryce thinks the senate performs well its duty restrain the impetuosity and fickleness of the " to popular house " (see page 454). * M. 208, 106. 2Bi.i71. 3Bi.468. ^Bi. 110, 120. UNITED STATES SENATORS FKOM NEW YORK. ELECTKD. ELECTED. Hiilip Schuyler 1789 RufusKing 1789 Aaron Burr *1791 Rufus King *1795 Philip Schuyler *1797 John Lawrence 1796 Johns. Hobart , 1798 John Armstrong *1801 Wm.North 1798 De Witt Clinton 1802 James Watson 1798 John Armstrong 1803 Gouveraeur Morris 1800 John Smith 1804 Theodorus Bailey *1803 John Smith *1807 Samuel Mitchell 1804 Rufus King *1813 Obadiah German *1809 RufusKing *1819 Nathan Sanford *1815 Nathan Sanford *1825 Martin Van Buren *1821 Wm. L. Marcy *1831 Martin Van Buren *1827 Silas Wright, Jr 1833 Charles E. Dudley 1829 Silas Wright. Jr *1837 Nathaniel P. Talhnadge *1833 Silas Wright, Jr *1843 Nathaniel P. Tallmadge *1839 Henry Foster 1844 Daniel S. Dickinson *1845 John A. Dis 1845 Hamilton Fish *1851 Wm. H. Seward *1849 Preston King *1857 Wm. H. Seward *1855 Edwin D. Morgan. . . i *1863 Ira Harris *1861 Reuben E. Fenton *1869 Roscoe ConkUng *1867 Francis Keman *1875 Roscoe Conkling *1873 Thomas C. Piatt *1881 Roscoe Conkling *1879 Warner Miller 1881 Elbridge G. Lapham 1881 Frank Hiscock *1887 Wm. M. Evarts *1885 EdwardMurphy *1893 David B. HUl *1891 Thomas C. Piatt 1897 Chauncey Depew 1899 ■ • * Stars indicate the close and commencement of full terms after expira- tion of a first term. Names between the stars are of senators appointed or resigned or elected to fill vacancies. (461) CHAPTER XLYI INTERNATIONAL LAW We have seen that New York is a sovereign state, except so far as it united with the other states in conferring certain powers upon the national government; and that the United iStates is a sovereign state, so far as pertains to the powers entrusted to it, having no superior. We come now to relations that are compara- tively indefinite. The boundary of power be- tween New York and the United States is de- fined by the national constitution, and the power of each within its limits is absolute ; each may make laws and compel obedience. But the relations of the United States with foreign countries are defined only by treaties, and these are with individual nations — never international. International la^v is not, Hke other law, the expression of a controlKng will (see page 252). There is no international con- stitution, there is no international legislature, there is no international executive, there is no international judiciary. If the laws of one nation are violated by another, it can often obtain redress only by declaring war (see page 469). (462) ITS BASIS 463 There has been much effort to estabhsh arbitra- tion (see page 256), but the conference of nations at the Hague in 1899 was followed by wars of England with South Africa and of the United States with the Philippine insurgents. Yet there is considerable basis and force to international law, and though it is comparatively of modern origin its foothold is secure. To the Greeks all foreigners were '' barbarians ". The spirit of the day is to extend the brotherhood of man to the brotherhood of nations, and to recog- nize that our own security and prosperity are largely dependent upon the security and pros- perity of the other nations of the world, and upon free and friendly intercourse with them. International law, or the law of nations, ''is the system of rules regulating this intercourse between nations and their respective subjects, as acknowledged by the civilized states of the world. ' ' Thus it is agreed generally among nations, and between each and most of the rest by treaties, that each government shall recognize the estab- lished government of the others. When there is a government de jure (according to law) and another governmeot de facto (according to fact), the latter, if actually in power, must be recog- niged ; otherwise there would be continual war. This recognition of another country is shown 464 INTERNATIONAL LAW by the appointment of a representative to reside at the capitol of that country. In case of the larger countries, this representative is known as an ambassador (from Latin ambactus, vassal) ; in case of the others he is known as a miuister Latin, a servant). Hence the receiving of ambassadors, which is left to the president (64), is sometimes a matter of delicate diplomacy. During the civil war, had Great Britain received the representatives of the confederacy, the United States might have recalled its minister, and war with Great Britain might have resulted. Sometimes too the recep- tion of a minister is refused for personal rea- sons, on the ground that he is persona non grata (Latin, an unsatisfactory person). Sometimes an ambassador extraordinary is ap- pointed to serve in regard to particular business and to return when this is accomplished ; he is sometimes called an envoy (from Latin via^ way) ; and if he has full power to act for his govern- ment, he is an envoy or minister plenipotentiary (Latin plenus, full, and potens, powerful), with full power. Such a representative, his staff and his family, are not subject to the laws of the country in which they reside, or through which they pass in going and returning. They cannot be pro- ceeded against in the courts of other countries, AlvrBASSADORS. MESTISTERS, CONS^^LS 465 and are responsible only to the laws of their own country after their return. These privileges are granted not only to show respect to the repre- sentatives of a foreign nation, but to prevent interruption in the discharge of their duties. Compare the privileges of legislators (see page 223) and congressmen (see page 437). In Amer- ica the supreme court has original jurisdiction in all cases concerning ambassadors and ministers (68). To very small states, or temporarily to supply vancies in larger states, a charge d'aifaires (French, charged with business) is sent. A list 'of the principal ambassadors and minis- ters with their salaries will be found on page 590. The officers just named belong to the diplomatic service. There is also a consular service, with many more officials. Consuls (from Latin con- sulere to consult) are commercial representatives of the government residing in the principal foreign ports and cities. Their especial duty is to look after American shipping. They are legal guardians of the rights of American sea- men, and if they find a sailor destitute must furnish him relief at the expense of the govern- ment. But they also protect the commercial rights of our citizens, draw up legal documents for them, and settle the estates of Americans 466 INTERNATIONAL LAW deceased within their districts when not other- wise provided for. It is also the duty of the consular as it is of the diplomatic service to collect and forward to Washington such information as may be of ser- vice to the American government or people. Many published consular reports deal with com- mercial, agricultural, or manufacturing statistics, meant to be of use to Americans. This gathering of information is especially important as regards diplomatic relations. Dur- ing the civil war the consul at Liverpool informed the secretary of state that a ship, the Alabama, was building there to serve as a confederate cruiser. The secretary of state requested the British government to prevent the vessel from going to sea, and when it escaped from the har- bor, informed the British government that it would be held responsible for all damage inflicted by the vessel upon American shipping. The matter was referred to arbitration, and the Brit- ish government paid to the United States 15 J minions as a settlement of the Alabama claims. In the larger foreign cities, the consul is known as a consul-general, and the office is very lucra- tive. Sometimes the consul-general is also the minister resident. Consuls are subject to the laws of the country where they reside. IMMIGRATION 467 All tlicse diplomatic and consular officers are appointed by the president with consent of the senate, and before they can enter upon their duties must present a certificate of appointment and be acknowledged by the government of the country to which they are accredited. It is agreed that the jurisdiction of each coun- try shall extend over all its territory, including its rivers and harbors, and 3 nautical miles (about 3 J English miles^ into the ocean, the rest of the ocean being free to all. Intercourse between the citizens of one nation and those of another depends upon treaty. A country may prohibit immigration or emigra- tion ; it may forbid imports or exports, or levy such duties as to make them impossible. Thus the Chinese have few rights in the United States (see pages 157, 161). The present laws of the United States exclude convicts, insane persons, paupers, polygamists, and perspns having contagious diseases. The Chinese, and laborers under contract or agree- ment to perform labor or service in the United States are also excluded, except in the case of persons engaged in the professions, and skilled laborers employed in the establishment of new industries. These last are excluded as likely to lower by competition the price of labor. Extradition (see page 554) is also a matter of 4()S INTERNATIONAL LAW treaty, but such treaties exist between the United States and most civilized foreign countries. When difficulties arise between two countries, there are recognized measures of hostihty that fall short of actual war, such as letters of marque and reprisal (see page 399). Sometimes a country lays upon foreign vessels within its ports an embargo (from Spanish em- hargar^ to restrain), either to protect them, when it is called a civil embargo ; or as a sort of re- prisal, when it is called a hostile embargo. Though allowed by international law, embargo is seldom used save as a measure of war. When war has been determined upon against a nation it must be declared. It is no longer necessary to send a messenger to the opposing government, as the means of information are abundant ; to withdraw and ambassador is suffi- cient notice. To declare war a country should have just cause, and a definite and legitimate object. Of this the war- making country is usually the only judge, but some times other nations unite with it. If there has been treaty of alliance (from Latin ad, and Ugare, to bind), the other country may still exercise its own discretion as to being drawn into a war in which it was not an original party ; no treaty can bind a nation to enter upon an unjust war. DECLARATIOM OF WAR 469 Congress alone has the power to declare war (36). In monarchies this power is exercised by the sovereign, but here it is retained by the sovereign people. Of the 3 methods of settling disputes between nations, by negotiation, by arbitration, and by war, the last is still often necessary. Whether it is necessary the people judge through their representatives. In the case of the civil war no act of congress declared war, as war is an armed conflict between nations. The act passed in 1861 was '^ to au- thorize the employment of volunteers to aid in enforcing the laws and protecting public prop- erty ". In 1898 congress enacted '' that war be and the same is hereby declared to exist between the United States and Spain. ' ' Upon the declaration of war all intercourse ceases, and all commerce between citizens is for- bidden. On the other hand, hostilities between individuals of one country and those of the other are forbidden, the war being between gov- ernments, not between persons. If war were declared between Great Britain and the United States, a citizen of New York who should rob or murder a Canadian would be a plain robber or murderer, with none of the rights of a soldier. Citizens of the hostile nation within the country are allowed to remain, unless by proclamation they are required to depart within a given time. 470 INTERNATIONAL LAW Residents of the two nations who take no part in the war are uoii-combatants, and are secure in person and property, unless the latter is neces- sary for the uses of the army, in which case it is usually liberally paid for. The rights of non-combatants at sea used to be more restricted. On the ground that it was necessary in war to weaken the naval power of the enemy, it was customary to capture and de- stroy private vessels belonging to the subjects of the hostile nation. The modern tendency is against this. Of course vessels of a neutral nation (see page 472) must be respected. When in 1861 the United States stopped the Trent, an English ves- sel, and took from it two confederate ambassa- dors, war with England might have resulted had not the government surrendered them. The property of belligerents (from Latin hel- ium, war, and gerere, to wage) may be coiifis- *cated (from Latin fiscus a purse) ; during the civil war Gen. Butler solved a- temporary difficulty by declaring the negroes who came to him contra- band (see page 472). When an enemy's force surrenders (from Latin re and dare to give back), the men cap- tured are known as prisoners of war, and must not be killed unless found to be deserters or spies, in which case they may be shot. Prisoners may THE MONROE DOCTRINE 47 I be confined, and in extreme cases fettered, but only SO far as circumstances make it necessary to prevent their escape. If war is declared between two countries there are still many recognized requirements of inter- national law. When war is declared, the nation taking the offensive usually claims that it does so to seek redress for some injury for which it has in vain sought other satisfaction (see the Declaration of independence, page 591). As we have seen (page 462) there is no other penalty provided for the violation of international law. By agreement among the nations of Europe, it has been held for more than 2 centuries that a state may interfere with the political policy of another whenever it finds its own security en- dangered, in order to preserve the balance of power, ' ' such a disposition of things as that no one potentate or state shall be able absolutely to predominate and prescribe laws to the others. ' ' ^ Thus the Cririiean war of 1854 was undertaken by England and France for no other object than to maintain the balance of power in eastern Europe, and to prevent the aggrandizement of Eussia by the dismemberment of the Ottoman empire. ^ The United States claims a similar right to 1 Vattel. 2Euc. Brit.iii. 267. 472 INTERNATIONAL LAW interfere under what is called the Monroe doctrine, first stated by President Monroe in his message for 1823, '' that the American continents, by the free and independent condition which they have assumed and maintain, are henceforth not to be considered as subjects for future colonization by any European powers ' ' ; and that any attempt of European powers to colonize any portion of this hemisphere would be considered dangerous to our peace and safety. This doctrine has been fre- quently maintained in relation to proposed Euro- pean interference in Panama, Mexico, Venezuela, etc. , and has in 1901 been recognized in the treaty between Great Britain and the United States as to an inter-oceanic canal. When war has been declared between two nations, each has a right to expect other nations to remain neutral (from Latin neuter, neither). If it is a civil war and one party has obtained unquestioned control of the government, it may demand recognition from other governments (see page 463). A neutral nation has no right to supply to either belligerent such articles (usually the list is agreed upon) as assist it in carrying on the war ; these are called contraband (from Itahan contra, against, and hando, proclamation). To prevent their delivery to the enemy each of the hostile nations has the right of search over neutral pri- NEUTRAL NATIONS 47)3 vate vessels. A neutral may not allow troops to be enlisted or privateers to be built within its borders (see page 4,66), or carry on any trade with either nation likely to help it carry on the war. A neutral nation has corresponding rights. It 'may for instance forbid the transportation of troops across its territory. Each nation also has the right to declare a blockade (from Old English blok, now block), or closing of tbe enemy's ports, and may seize and confiscate any vessels that try to enter. But the blockade must be effectively maintained, by sufficient force to make it dangerous to enter; otherwise it would be a " paper blockade ' ' and of no effect. When a fortified town resists an army, it is often attacked by siege (from Latin sedere, to sit), investing it by an army so as to prevent egress and ingress, and gradually approaching it by fortifications till it is forced to surrender. Armed private vessels commissioned by the government are known as privateers (see page 399), and may capture vessels belonging to the enemy, the owner and crew keeping the property (compare letters of marque, page 399). During the civil war, congress authorized letters of marque (51), but none were issued. The Alabama (see page 466) was a confederate privateer. 4 74 INTERNATIONAL LAW To compensate for the additional danger of naval battles, the property captured becomes the property of the naval forces taking it, and its value is divided among the officers and men as prize money. Hostilities may be temporarily suspended by a truce (from Old English trewe, truth), during which actual hostilities cease. When war has been declared, peace can come only through the negotiations of ambassadors representing the two nations, and the treaty of peace agreed upon must be accepted by the presi- dent and senate before terminating the war. A treaty (from Latin tractatus handling) is an agreement between two or more nations upon specified topics, formally signed by commission- ers properly authorized, and ratified by the su- preme power of each state. Besides conditions of peace at the conclusion of a war, treaties may provide for adjustment of boundaries, cession of territory by purchase or otherwise ; extradi- tion of criminals (see page 554), reciprocity (from Latin reciprocus^ alternate) in trade as regards duties upon imports, etc. ; and many more mat- ters, such as postal rates, patents, and copy- rights. In the United States all dealing with foreign nations is reserved to the national government (51). The initiative is with the president, through the secretary of state (see TREATIES 475 page 396) ; but all treaties must be ratified by the senate (62)/ which always considers them in secret or executive session (see page 436) where a vote is required. Something of strength and celerity in diplomacy is lost by thus conferring the treaty-making power upon a large body of men. ^ If changes in the treaty are made by the senate, the entire treaty must be submitted anew to the president and to the government with which negotiations are pending. Our most important treaties have been with England (1T83, 1794, 1814, 1842, 1846, 1850, 1901); France (1800, 1803); Spain (1783, 1819, 1898); TripoU f 1805) ; Mexico (1848) ; Algiers (1815); Eussia (1867). By the treaty of 1898, Spain ceded control of Cuba, Porto Eico, the Philippines, and other islands, and received 20 millions for its improve- ments in the Philippines. By the treaty of 1901 England waived any ob- jections that might arise out of the treaty of 1850 to the construction of a ship canal between the Atlantic and Pacific under the auspices of the United JStates, and guarded by the United states with such military police as may be neces- sary to protect it against lawlessness and disor- der. The canal is to be under the same rules of leutralization as the Suez canal. B i.l03, 221. 1 Hadley, page 22. CHAPTER XLVII PRINCIPLES OF GOVERNMENT We have considered the various forms in which government is exercised in the United States, and it is well now to consider what government is, and what is the source of its authority. . Government (see page 15) is control. It is the instrument which society uses to secure liberty and justice. It is the power which makes, con- strues, and executes the laws. Gladstone says : *' It is the function of government to make it easy to do right and hard to do wrong. " The word government is used both of the sys- tem of government, as when we say the govern- ment of America is based on the constitution ; and of the officers who administer it, as when we say the government has concluded a treaty with Spain. There are many theories of the origin of gov- ernment. Plato saw in the government of the state only the development of the government of the household. Aristotle thought the state prior to the individual, in the sense that it is the true object of the social instinct implanted in (476) ORIGIN OF GOVERNMENT 477 man, and only required legislative skill to bring it to perfection. Hobbes held that mankind were driven by fear to enter into a solemn com- pact by which they renounced their freedom and gave absolute obedience to "Leviathan'', the state. Locke, Rousseau, and others, looked up- on government as a social contract. Some hold that the state is founded to obtain the greatest happiness of the greatest number; some prefer to say it is intended to fulfil the highest aspira- tions of humanity. Fairbanks says : ' ' It is evi- dent that forms of activity which demand the final power of the whole society for their realiza- tion, or, again, which require general rules abso- lutely enforced on all classes alike, come within the proper sphere of the state. On the other hand an almost universal experience has shown that where freedom of initiative is required, pohtical machinery is hkely to stand in the way of success. "1 The control possessed by governnient came originally from force. In rude times the man who excelled in strength, in courage, or in sagac- ity became the leader; sometimes because he usurped authority, sometimes because he pro- tected his companions in danger, and they learned to depend on him. Thus monarchy (from G-reek monos, sole, and archos, chief), grew up, a gov- -1 Introduction to Sociology, 3d ed., page 195. 478 PRINCIPLES OF GOVERXMEXT eminent where the authority is vested in one person. The sovereign often managed so that his children would succeed to his power, and thus monarchy became hereditary (from Latin heres, heir). The earliest form of monarchy was patriarchal (from Greek pater, father, and archos, leader), where the father was the head of his family, which, if the father had reached old age, might with children and grand- children form a consid- erable body. This developed into the clan and the tribe (see page 22), which were larger fami- lies, with broader relationships. The Hebrews had a particular form of patriar- chal and tribal government, called a theocracy (from Greek theos, good, and kratein^ to rule), following religious leaders whom they believed to commune directly with God, and laws that they believed to be handed down from Heaven on Mount Sinai. The tribe in turn developed into the city of the Greeks and Eomans, which furnished besides defence an administration of justice, and some direction of the common life of its members. Another form of monarchy was feudal (see page 147). In this the functions of the state in- cluded besides defence and administration of jus- tice considerable direction of private affairs, especially as regarded economic production and ABSOLUTE MONARCHY 479 distribution. In theory the state was concen- trated in the king. Nobles owed their allegiance to him personally ; they received their lands from him, to distribute among subordinates. Absolute monarchy is a government in which there is no law-making power except the sov- ereign, and his laws are interpreted and executed by officers responsible only to him. The words despot and tyrant originally meant only single ruler ; that they have reached their present mean- ing shows the tendency of this sort of govern- ment. Montesquieu distinguished despotic from monarchic government in that in the former one man controls everything by his will and caprice, while in the latter he follows fixed and estab- lished laws. If the monarch were the wisest and best man, this would be in many ways a desirable form of government ] but it would not educate the people to govern themselves, and would leave the people helpless when a weak or wicked king succeeded to the throne. Among primitive peoples it is the only form possible. At the present time, though nations like Kussia are nominally so, there is really among important nations no absolute monarchy. Even in Turkey and in China there are customs that the monarch does not dare disregard. If 480 PRINCIPLES OF GOVERNMENT he is too autocratic, he may be dethroned by the people or by an usurper. In a limited monarchy the hereditary executive acknowledges laws made by a legislative body chosen by the people. The power of this legis- lative body may become in itself absolute and the monarchy only nominal, as in England (see page 429). Sometimes instead of the power falling into the hands of one man it has been held collec- tively by a small group of men who have assumed power ; it is then called an oligarchy (from Greek oUgos, few, and archein to rule). In Venice a ring of rich merchants controlled the city. Sometimes there has been an attempt on the part of the people to choose a group of men to whom to entrust the government, which is then called an aristocracy (from Greek aristos, best, and kratein, to govern). Feudahsm was the parent of aristocracy. Oftener the heads of certain great families have contrived, to get the power and keep it in their hands, and transmit it to their descendants. Those holding titles because belonging to aristo- cratic families are called nobles (from Latin nos- cere, to know, something well known), and in every generation men are created nobles to reward dis- tinguished service, or, in some countries, even for a price. THE REPUBLIC 4S1 In civilized countries it is no longer possible that the exclusive power of making laws should be given to persons on account of their birth. ^ ' ' We hold these truths to be self-evident, that all men are created free and equal ' ' (see page 591). In a pure democracy (from Greek demos, the people, and kratein to govern) the entire body of people meet and make the laws and elect their officers directly. This is possible only in a small community (see page 62). A republic (from Latin res affairs, smdpubltca, public), or commonwealth, is a representative de- mocracy, where the legislature and the more important officers are elected periodically by the people. It is " a government of the people by the people, for the people " (see pages 26, 62). Madison said -J " We may define a republic to be a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. ' ' Much depends upon the extent to which the suffrage is granted. Athens was a republic, but only free men and natives could vote, and most of the people were slaves. ' ' The principle of republicanism is the equal 1 B ii.230, 296 ; Hadley, page 21. ^ Federalist, xxxix. 482 PRINCIPLES OF GOVERNMENT right of the people, the citizens, all the members of the body politic. In theory it is the govern- ment of public opinion. * ^ * The fundamental principles of right and justice for the govern- ment, the representative character of the gover- nors, and their practical responsibleness to the governed, are the essentials of republicanism.-" ^ Many countries combine t^\ o or more of these forms. Thus England has the monarchial principal in the king, the aristocratic principle in the house of lords, and the republican princi- ple in the house of commons. Macaulay calls the Eoman emperors republican magistrates named by the senate ^ ' Everyone knows that Aristotle divided gov- ernments into monarchy, aristocracy, and democ- racy. Very few know that Aristotle said that there was a more fundamental division of gov- ernments into those which were legitimate and those which were not ; the former being based on the consent of the governed and acting in the interest of the whole, while the latter were based on the authority of a class and exercised in the interests of that class. "^ We have seen (page 28) that except in abso- lute monarchies there is a division of power into executive, legislative, and judicial departments. 1 Farrer, page 223. 2 Hadley, pages 139, 25. T^HE THR*]E DEPARTMENTS 483 We have also seen that the boundaries of these departments are not distinct: (1) The executive has legislative power in the veto (see pages 373), and judicial povi^er in par- dons (see page 374). (2) The legislative power is executive in con- firming appointments (see page 457) and treaties (see page 475). Bryce declares (i.27l) that under the English system the legislative and executive functions are interwoven as closely as under absolute monarchies. It has judicial power in impeachments (see page 458); and has power over the judiciary by impeachment (see page 460), and sometimes by appointment (see page 289). When elections are indecisive it has even the power of the people to choose the executive (see page 367). But while entire separation of the three powers is impossible, the national constitution aims to make it as complete as is practical. In England the legislative power has become supreme (see page 429). (3) The judiciary has executive power in some appointments (see pages 74, 284), and in such writs as injunctions (see page 270). There is a further distinction as to whether a government is centralized, as in France, where the national government pays for and controls the schools and the police ; or whether as with 484 PRINCIPLES OF GOVERNMENT US such interests as these are managed by local authority. When local affairs are referred to a central authority, the government is sometimes called a bureaucracy, a ruling through officials. There is a fable of a French educational official who took out his watch and said to a caller, "At this instant every 4th-year pupil in France is spelling gouvernment. ' ' Tolman Smith makes a direct antithesis. ^ In centralization, control hy the smallest number of minds ; knowing the least about the special matter in hand; having the fewest op- portunities to know; having the smallest in- terest in its well- working. The United States offers a remarkable illustra- tion of local self-government by adding to the republican principle of government the federal (from Latin foedus, treaty) principle — that of compact of states with one another by which they delegate certain powers to their union as a 1 Local Self -Government and Centralization, London, 1851. In local self-government, con- trol hy the gi:eatest number of minds ; knowing the most about the special matter in hand ; having most opportuni- ties to know ; having most interest in its well-working. THE FEDERAL PRINCIPLE 485 whole, and retain only a limited sovereignty. This principle of giving control of matters of general interest to the general government, and leaving to the states control of matters of local interest, prevails throughout our entire system. Hence our government of towns, counties, vil- lages, and cities is called local (from Latin locus, a place), restricted to one place. Villages and cities are never formed by the legislature ex- cept by request or consent of the inhabitants, so that they are voluntary pohtical organizations, chartered expressly so as to take better care of their own interests. But towns and counties are involuntary political organizations, established by the board of supervisors by authority of the legislature, chiefly to administer matters of county and state concern within their own localities. It would be entirely possible to dispense with local goverimaent. As we have seen (page 337), the national government appoints from Wash- ington every officer who performs its functions. But the national government has no authority over most of the matters with which local gov- ernment is most concerned ; it does not interfere with schools or elections or taxation. Moreover, as Bryce says (i.343) : " Self-govern- ment stimulates the interest of people in the affairs of the neighborhood, sustains local politi- O^^ONDAGA COUNTY, 1901 Heavy lines show the three commissioner districts. The city of Syracuse is a separate school district. LOCAL GOVERNMENT 487 cal life, educates the citizen in his daily round of civic duty, teaches him that perpetual vigilance and the sacrifice of his time and labor are the price that must be paid for individual liberty and collective prosperity. Self-government se- cures the good administration of local affairs by giving the inhabitants of each locality due means of overseeing the conduct of their business." The map on the opposite page indicates the extent of subdivision in New York. The state itself is only one among 45, and Onondaga is one of the 61 counties of the state. Yet it is divided into 19 towns, and a single one of these towns, Onondaga, is divided into 25 school dis- tricts. That last division seems a small unit, 45X61X19X25 = i;30i:8T5 °^ '^' •^°^'^*^y- Yet the history of District No. 21 for three- quarters of a century as given in The School Bulletin for March, 1901, shows that all these years the people attended every school meeting, discussed the matters that came up, recorded the ayes and noes on every important vote, abode by the decision of the majority, and at a good deal of sacrifice continually maintained what was from period to period a school fully up to the times. That is a record to be proud of, and it is typical of local government in the United States. 488 PRINCIPLES OF GOVERNMENT All these forms of government, much as as they differ, depend upon a common principle, that men are social beings, that they must live together, and that to live together safely and profitably they must be subject to control. Aris- totle said (see also page 476): ''Whoever lives voluntarily out of civil society must either have a vicious disposition or be an existence superior to man," Society, then, is a necessity; and equally necessary is a form of government. Civics has been defined as ''the body of knowledge or science which devotes itself to the consideration of citizenship relations, including the reciprocal relations of government and citi- zenship. ' ' Civics seeks properly to coordinate, as parts of an integral science, the essential truths with which the citizen must be familiar in order to make the best use of his powers and priv- ileges. It includes "I. Ethics. — The doctrine of duties in society. In other words, the study and setting forth of the conditions in human character which are essential to the welfare of the citizen, society, and government. As right character is the natural source of right actions, the science of civics first concerns itself with the facts which underlie and account for these essential charac- teristics of the good citizen. " II. Civil polity. — Governmental methods and THE FIELD OF. CIVICS 480 machinery ; suffrage, rights and obhgations ; the quahfications and duties of pubhc officials ; execu- tive, legislative and judicial affairs, and all other matters having relation to the orderly and proper administration of government. "III. Law. — The principles and facts of the law in application most directly involving the interest of society, and especially of the citizen and the government. ''' IT. Economics. — The principles or laws which explain the production, distribution and owner- ship of that which constitutes, or is technically called, wealth. "T. Sociology. — The science of society in all its relations, and the care of the dependent, defective, and delinquent classes. "TI. History. — Collateral facts illustrative of tendencies and results growing out of given conditions, considered in connection with ethics, civil pohty, law, sociology, and eonomics.''^ In a volume like this we can consider civics only in its narrower sense of civil pohty, as defined above. Woolsey^ says: ''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 of self-imposed 1 Henry Eandall Wait, in Political Science News. 2 International Tiaw. 490 PRINCIPLES OF GOVERNMENT laws. ' ' The expressive ' ' prevalence of justice ' ' covers a wide range. It involves defence in war — protection of the people as a whole from incur- sions and unjust exactions by other nations. It involves security of life, liberty, and property at home. In short it involves an entire defence against inequitable interference with the citizen's " pursuit of happiness ". This defence sometimes seems at first to inter- fere with liberty and property. A man is not allowed except by express permission to build a wooden house within the ' ' fire-limits " of a city, because a house easily burned would seriously endanger other property. For the same reason a merchant would not be allowed to carry an unlimited stock of gun-powder or of dynamite. Some cities have plumbing inspectors, who com- pel the owners of houses to put in plumbing that is sanitary. But the modern state does more than to de-^ fend, — it promotes. It does for the community what individuals could not do for themselves. The United States carries letters to the Phihppine islands for 2 cts. , publishes predictions as to the weather, distributes seeds among farmers, gives land to help build railways, and subsidies to en- courage shipping. New York pays for pubhc schools in its remot- est corners, the public money proving aU that is THE LAISSEZ-FAIRE THEORY 4:91 used in many districts and being far more than was spent altogether fifty years ago. It has given bounties to encourage making beet- sugar ; and on the other hand it prohibits the sale of uncooked meat on Sunday. ^ Having done so much for the people, should not the government do more ? Why should it not buy all the railways and telegraph lines, and carry people for cost or less ? The doctrine called laissez-faire (French, let things alone) objects to all this. It says legis- lators are not wise enough men to meddle with other people's business to this extent. If the government protects one kind of business it necessarily puts an extra burden on some other kinds. If it prescribes that the laboring-man shall work only 8 hours, it tempts to evasion of the law, and it prevents men from earning as much as they might. ' ' The new democracy is passionately benevolent, and passionately fond of power. "2 ' ' ^ Virtue, ' ' ' says a French writer, ^ ^ ' is more dangerous than vice, because its ex- cesses are not subject to the restraints of con- science. ' ' ' There is a great deal of legislation, and a great deal of socialism, to which this re- mark will apply. Its promoters believe them- selves to be actuated by moral ideas, when the chief ground for this belief is the absence of in- tellectual ones. " 3 • 1 392:1901. ^ Farrer. » Hadley, page 56. CHAPTER XLVII PERSONAL RIGHTS We have already spoken of the rights guaran- teed to the citizen by the constitutions of Ne\r York and of the United States (see pages 136- 153), including his"" legal rights both in civil and in criminal cases. Some of the further rights given him under the common law and under statute should be considered. The security of the citizen permits a man to defend himself against attack. He may carry arms (85), though many states forbid him to carry them concealed; and when in danger of his life or of serious physical injury he may use all necessary means to protect himself, even to taking the life of his assailant. He may take the life of a burglar, who is presumed to be ready to commit murder. The force permitted, however, depends upon the violence of the assault. A man may not, for instance, shoot boys who are stealing his apples. In many cases the victim of an assault has his best redress in a criminal action at law against his assailant. He may even on sufficient evi- (492) PARENTS AND FOSTER-PARENTS 493 dence require his enemy to give bonds that he will keep the peace. His liberty involves the right to go or to re- main where he pleases. If he is restrained of this liberty, even for a short time as by an un- warranted arrest, he may recover damages. But this Uberty is not license to interfere with the liberty of others. It does not, for instance, per- mit entrance upon private property. In the case of children, people of feeble mind, and others who require guardianship this liberty is to some degree limited, but only so far as it may be shown to be for their interest. Parents (from Latin parens, a parent) must support and educate their children up to the age of 21. They have the right to the custody and to the labor of their children, and may punish their children within reasonable limits. As to laws with respect to marriage, see pages 146, 521. Children may be adopted (from Latin ad and optare, to choose), a legal act by which an adult becomes a foster-parent, and takes a minor into the relation of a child, thereby acquiring the rights and incurring the responsibilities of a parent. ^ Consent is necessary (a) of the minor if over 12 years of age; (b) of the husband or wife of the foster-parent ; (c) of the parents ; or if neither is living, of a person of full age having 1 372:1896. 494 PERSONAL RIGHTS custody of the child, if there be such. The fos- ter-parents must submit to the surrogate a writ- ten agreement to treat the foster-child as their own lawful child, whereupon the surrogate may make an order allowing the adoption. After this the child's own parents have no further rights or control over him. The adoption may be abro- gated only by proceedings before the surrogate. Where a minor has individual property, as by bequest, a guardian (from German warten, to watch) is appointed, of whom the child becomes the ward (from Anglo Saxon tveard, guard). Where there are parents, one of them is usually appointed guardian. Where there are no par- eots the guardian enters into considerable of the parental relation, with right to the custody of the ward, and to educate him, as well as to care for his property. ^ In the case of apprentices (from Latin appren- dere, to learn), who are bound to give their ser- vices to a master till a specific time, usually till they are 21, in return for which they are to be taught a trade, the relation is practically that of children. The relation is uncommon in America, except where pauper or orphan chil- dren are bound out by the proper authorities to those who will care for them under an indenture (from Latin in and dens, a tooth), which must 1 272:1896. . SLAVERY 495 include agreement to teach the child reading, writing, and arithmetic. ^ The relation of master and servant (from Latin servare, to serve) no longer exists in its old form, where the master might beat his servant, and the servant must always defend his master. Several of the provisions of the national consti- tution refer to slavery ('^ all other persons ", 5, 44:, 75). This was abohshed in the United States by President Lincoln's emancipation proclama- tion of 1863, which had upon the negroes the much of the effect that naturalization has upon aliens. Slavery was subsequently forbidden by an amendment to the constitution (98). The civil rights bill of 1866 expressly conferred upon the freemen all the rights of citizens, and was subsequently embodied in substance in the con- stitution (99). 2 Eights always involve corresponding duties, and as the rights of American citizens are greater than those of any other people, so are his duties more extensive and imperative. Of these we have frequently spoken and especially on pages 184 to 187. The first duty of the citizen is to be obedient (from Latin ob and audire, to hear), to be a law- abiding citizen. There are few people to whom all the laws are agreeable, and there are fre- 1 488:1899. 2Bii.£33. 496 PERSONAL RIGHTS quent occasions when the operation of even an admittedly wise law is inconvenient. The temptation is to disregard the law, perhaps to declaim against it. .The dutiful citizen will not only obey the law, but show respect to the agent through whom the law is executed. Even if the agent is indiscreet in the exercise of his duty, the citizen should still show his regard for the law by sustaining him so far as possible. He will not only pay the taxes necessary for support of the government, but he will do so cheerfully (see page 293). Of course a law might be passed which it would be wicked to obey. In such a case, if it be absolutely a matter of conscience, a man must be willing to bear the legal penalty until he can secure the repeal of the law. Granville Sharp '^ gave up his place in the ordinance office of England because he could not conscientiously handle war material to be used against the American colonies." A second duty is that of public service. In a republic the office should seek the man, and when it finds him he should not shrink from the duty, even if unwelcome or onerous. Ealph Waldo Emerson served as pound- master at Concord. He must exercise the right of franchise (see page 154). When the administration of public OBEDIENCE, PUBLIC SERVICE, PUBLIC SPIRIT 49T officials seems unwise or dishonorable, he should not simply grumble but strive to supplant un- worthy officers by those who are worthy, and so to correct the laws as to make misgovernment impossible. A third duty is to be public spirited, ready to give his attention, his time, and his money to matters of public concern ; looking to the good of the whole rather than to his individual interests alone ; proud of his village and his town and his state and his country, and ready to do his share to make all these worthy to be proud of ; ready to serve on a jury even when he could better afford to make a present to the plaintiff of twice the amount involved than to spare the time (see page 142), because jury-trial and justice between man and man are principles worth contending for, even when the immediate matter at issue is triffing. The citizen should feel a pride in his commun- ity that will lead him to make personal effort in its behalf. He should be clean in appearance, and keep his home tidy, not only for his own sake but for the sake of his locality. He should be civil in manner, especially to strangers. He should feel a personal interest in the care of public property. The author of this book never saw a filthier city than Valladolid in Spain. Yet along the 498 PERSONAL RIGHTS river lies a park with rare trees and flowers, un- guarded save for a sign reminding the visitor that the authorities feel safe in trusting its pro- tection to the honor of those who dwell in ancient Castile. All the world hates a shirk, and he is an in- tolerable shirk who benefits by all the blessings of a free government and yet tries to evade his share in upholding its honor. When war is declared, the citizen's duty re- quires him to be in readiness to become a soldier (see page 197). There may be conflict of duties; if he is the sole support of his family, he may be compelled to stand back so long as others with fewer responsibilities are rushing forward. But when he is summoned he must go, for if her citizens will not defend her, a country will soon disappear. It is not a question whether he wholly approves of the action of the government which has led to the war. While she is in danger, he must cry: Our country, right or wrong. Military service may be required when no war has been declared. In time of riot, the citizen should be quick to heed the summons of the sheriff or the governor. The time has come and may come again when it is the duty of the citizen to fight against the REBELLION AND REVOLUTION 499 government. It has been said that a revolution (from Latin re and volvere, to turn round) is a rebellion (from Latin re, again, and helium, war) that has proved successful. It is a desperate resource, but when the government oppresses the people, when reforms within the law have failed and when the government seems likely to per- petuate itself in evil, the duty of citizens is to resist. It is equally the duty of the government to compel obedience, and if the rebellion becomes general enough to be a formidable adversary, civil war results (see page 469). When does a rebellion become a revolution ? When it proves to have behind it the force of public opinion. ' ' Governments have always rested and, special cases apart, must rest, if not on the affection, then on the reverence or awe, if not on the ac- tive approval, then on the silent acquiescence of the numerical majority. It is only by rare ex- ception that a monarch or an ohgarchy has main- tained authority against the wiU of the people. " ^ It has taken pohtical leaders sometime to learn this. Sir Eobert Peel, for instance, in a letter written in 1820, speaks with the air of a dis- coverer, of ' ^ that great compound of folly, weak- ness, prejudice, wrong feeling, right feeling, iBii.347-249 ; Hadley, page 139. 500 PERSONAL RIGHTS obstinacy, and newspaper paragraphs, which is called pubHc opinion. " ^ .Its power has been especially developed in America. • Bryce says : ' ' Of all the experi- ments which America has made, this is that which best deserves study, for her solution of the problem differs from all previous solutions, and she has shown more boldness in trusting public opinion, in recognizing and giving effect to it, than has yet been shown elsewhere. Tow- ering over presidents and state governors, over congress and state legislatures, over conventions and the vast machinery of party, public opinion stands out, in the United States, as the great source of power, the master of servants who tremble before it " (see page oOrt). ^ ^'The excellence of popular government lies not so much in its wisdom — for it is as apt to err as other kinds of government — as in its strength. It has often been compared to a pyramid, the firmest based of all buildings. Nobody can be blamed for obeying it. There is no appeal from its decisions. Once the principle that the wiU of the majority, honestly ascertained, must pre- vail, has soaked into the mind and formed the habits of a nation, that nation acquires not only stability, but immense effective force. It has no need to fear discussion and agitation. 'It can 1 B ii.247. 2 B ii.230, 239, 300, 308, 309. » b ii.255, 251. POWER OF PUBLIC OPINION 501 bend all its resources to the accomplishment of its collective ends. The friction that exists in oountries where the laws or institutions handed down from former generations are incompatible with the feelings and wishes of the people has disappeared. A key has been found that will unlock every door. ' ' ' ' If excitement has risen high over the coun- try, a majority of the people may acquiesce ; and then it matters little whether what is really a revolution be accomplished by openly violating or by merely distorting the forms of law. To the people we come sooner or later; it is upon their wisdom and self-restraint that the stability of the most cunningly devised scheme of gov- ernment will in the last resort depend. ' ' ^ President Hadley points out an important dis- tinction. ' ' It will be readily seen that public sentiment, as thus described, is a very different thing from much that passes under that name. If a large number of people want a thing, we not infrequently hear it said that there is a pub- lic sentiment in its favor. It would be much more correct to say that there is a widespread personal interest in securing it. The term ^ pub- lic sentiment ' can only be applied to those feel- ings and demands which people are willing to enforce at their own cost, as well as that of iBii.269. 502 PERSONAL RIGHTS others. The desire for better municipal govern- ment on the part of the man who is not wiUing to labor for that end, the effusive patriotism of the man who hopes thereby to lead other people to enter upon a war of which he may celebrate the glories and enjoy the fruits, the denunciation of trusts by the man who has tried to do what they do and has not succeeded, can never be re- garded as expressions of pubhc sentiment in any true sense. They are but instances of the selfish- ness, the vain-gloriousness, and the enviousness of large sections of the community. " ^ Genuine pubhc opinion has produced no gen- eral disposition to lawlessness, which on the con- trary diminishes in the older parts of the coun- try. And it is counter-balanced or replaced in a serious crisis by a firmness in repressing dis- orders which some European governments may envy. When men are thoroughly awakened to the need for enforcing the law, they enforce it all the more resolutely because it has the whole weight of the people behind it. ^ '' So far indeed, is insubordination from being a characteristic of the native Americans, that they are conspicuously the one free people of the world which, owing to its superior intelli- gence, has recognized the permanent value of order, and observes it on every occasion, not 1 Hadley, page 141. 23 ii.462. POWER OF PUBLIC OPINION 503 least when a sudden alarm arises. Anarchy is of all dangers or bugbears the one which the modern world has least cause to fear, for the tendency of ordinary human nature to obey is the same as in past times, and the aggregation of human beings into great masses weakens the force of the individual will, and makes men more than ever hke sheep, so far as action is concerned. Much less, therefore, is there ground for fancying that out of anarchy there will grow any tyranny of force. ' ' ^ On the other hand, law that is in advance of public opinion can not be enforced (see page 254). ' ' What is it that has rendered murder a rare ex- ception instead of a frequent social event ? It is not the existence of statutes which make murder a crime; it is the growth of a public opinion which makes the individual condemn himself and his friends, as well as his enemies, for indulgence in that propensity. There were laws enough against murder in Italy five hun- dred years ago; bat these laws were practically inoperative, because they had not really formed part of the social conscience, as they have to- day. On the other hand, the social conscience of mediaeval Italy, with aU its laxity in the mat- ter of murder, was strict in certain matters of commercial trust, on which it is to-day relatively 1 B ii.4o6. 504 PERSONAL RIGHTS loose. A man actually forfeited self-respect by a questionable financial transaction in those days as he did not forfeit it by the murder of two or three of his best friends. As a consequence, that particular kind of financial immorality was much rarer then than it is now. ' ' ^ How is public opinion directed ? Not by the political leaders, who, as Bryce has said above, tremble before it. ^ Nor does it come from men- tal grasp of the situations presented at the vari- ous elections. ^ Indeed public opinion has often gone astray, and become tyrannical, ^ It is senti- ment rather than thought that the masses con- tribute to the solution of the questions of the day, ^ ^ and the soundness and elevation of their sentiment will have more to do with their tak- ing their stand on the side of justice, honor, and peace, than any reasoning they can apply to the shifting of the multifarious facts thrown before them, and to the drawing of the legitimate in- ferences therefrom. ' ' ^ Bryce says: ^'If the political education of the average American voter be compared with that of the average voter in Europe, it stands high; but if it be compared with the functions which the theory of the American government lays on him, which its spirit imphes, which the methods 1 Hadley, pages 29, 23. ^^ ii.229, 246, 260, 262, 296. 3 B ii.242, 246, 261, 464. ^ B ii.283, 356, 360. '- B ii 242. EDUCATION OF PUBLIC OPINION 505 of its party organization assume, its inadequacy is manifest. This observation, however, is not so much a reproach to the schools, which gener- ally do what English schools omit — instruct the child in the principles of the constitution — as a tribute to the height of the ideal which the American conception of popular rule sets up. ' ' For the functions of the citizen are not, as has hitherto been the case in Europe, confined to the choosing of legislators, who are then left to settle issues of policy and select executive rulers. The American citizen is virtually one of the gov- ernors of the republic. ' ' *' The fact that it is called by a singular name has made many forget that the people means nothing more than so many individual men. " There is a sense in which it is true that the people are \viser than the wisest man. But what is true of their ultimate judgment after the lapse of time sufficient for full discussion, is not equally true of decisions that have to be promptly taken. ' ' '' It may seem a paradox to add that public opinion is on the whole wholesome and upright. Nevertheless this also is true. ' ' ^ Bryce pays tribute to what education is doing for popular government. ''The seats of learn- ing and education are at present among the most 1 B ii.277. 465. 230. 506 PERSONAL RIGHTS potent forces making for progress and the forma- tion of sound opinion in the United States, and they increase daily in the excellence of their teachers no less than in the number of their students. ^ ^ ^ " One is amused by the bitterness — affected scorn trying to disguise real fear — with which the ' college professors ' are denounced by the professional politicians as unpractical, visionary, Pharisaical, ' kid- gloved ', ' high-toned ', ' un- American ', the fact being that a considerable impulse towards the improvement of party methods, towards civil service reform, and to- wards tariff reform, has come from the univer- sities, and been felt in the increased political activity of the better educated youth. ' " ^ The fact that a college-president was in 1901 called to the rescue of New York city from venal politicians shows the justice of this observation. 1 B ii.395. CHAPTER XLIX PROPERTY RIGHTS The constitutional guarantees of that class of personal rights that pertain to property have al- ready been described (pages 147-152). Of the further rights granted by common law and by statute, only the most important can be touched upon, for the subject is vast. ^' The fundamental datum of modern economics is property right. "^ Property may be acquired in various ways. 1. By labor. A pound of Iron may by labor be transformed into watch-springs worth more than tons of iron. This labor may take the form of production, as in the case of the farmer, the miner, or the fisherman; of manufacture; of distribution as in the case of merchants, seamen, railways, cartmen; of record, as in the case of book-keepers and accountants, and, in a larger sense, of editors; of protection, as in case of police, watchmen, fire engine companies and soldiers, and, in a wider sense, of lawyers or physicians ; of education, as in the case of teach- ers, clergymen, lecturers, and authors; of art, as in the case of painters, sculptors, and land- 1 Hadley, page 72. (507) 508 PROPERTY RIGHTS scape gardeners ; of recreation, as in the case of actors and musicians. The value of labor depends upon the ability of the worker, and also upon the rareness of the abihtj. Patti has sometimes received ^5,000 for a single performance, in which her own singing occupied less than an hour. This was not only because she had a beautiful voice, but because there was no otner voice like hers. 2. By exchange, or by purchase, which is vir- tually an exchange, money being the representa- tive of labor. A shoemaker might give a pair of shoes to the hatter, in exchange for a hat, but it is simpler for the shoemaker to sell his shoes and use the money to buy a hat (see page 407). 3. By gift or by inheritance (see page 540). 4. By accident, as when a man looking for something else discovers a gold mine, or when a man who has been compelled to take a piece of land for debt finds that it has quadrupled in value because a large manufactory is built up near it. When the West Shore railway was building, the contractors wanted something to fill in with near {Syracuse, and paid $100,000 for the sand in a hill that had been valueless, but which, thus levelled, became eligible residence property. Invention (from Latin in and venire, to come) is by derivation a stumbling upon a thing. Sometimes it is indeed that, as when Goodyear HOW PROPERTY IS ACQUIRED 509 in disgust cast some sulphur in his hand into a pot of melted rubber, and saw that it produced the vulcanization he had sought for. But if he had not been seeking for it, he would not have recognized the transformation; so invention is usually rather discovery of a principle than hap- pening upon it. 5. By unearned increment. This is a favorite phrase of socialists, who consider that the ad- vance in the value of property, through the growth of cities, for instance, should not be the exclu- sive right of the owner. The experiment of holding property by com- munities instead of by individuals has been fre- quently tried, as at Brook Farm and in the Shaker communities; but though some of the latter have been for long periods in successful existence, the general sentiment of mankind pronounces individual ownership best for the man and for society. Property must be respected, not only because it is a right of the individual but because the public good demands that industry, energy, and thrift should be rewarded. The care of their own property involves responsibility, and makes men careful, prudent, conservative. When property is held in such quantity as to more than meet the needs of the holder it is in the popular sense called wealth. How much consti- 510 PROPERTY RIGHTS tutes this super-abundance is of course relative to the person. The saying of the late A. T. Stewart used to be considered a joke, that if a man had three or four millions he was just as well off as though he were rich ; but the number of men who have hundreds of millions is now considerable. The first condition of wealth is thrift or econ- omy. Whatever a man earns, if he spends more he will be poor, if he spends less he will grow wealthy. The second condition of wealth is probity (from Latin probare, to prove). Honesty is the best policy; there is no other capital so available as the reputation for square deahng. There seem to be exceptions, as where a man by sharp prac- tices accumulates a fortune; but usually the sharp man encounters another man still sharper, and the sharpest is likely to over-reach himself. The business of to-day is conducted on the assumption that men are honest, and the assump- tion is generally safe. The third condition of wealth is judgment, especially in buying and selling and investment. People who have saved money want it to bear interest, and it is not always easy to get a satis- factory rate of interest together with satisfactory security of principal. But all these conditions of wealth yield to the fundamental condition of an honest and wise WEALTH AND POVERTY 511 government. If the government cannot protect a country from incursions from abroad or upris- ings within; if it is constantly at war; if it is unstable; if it imposes oppressive taxes; if it does not compel the payment of just debts when- ever possible, there will be no encouragement to accumulate property. Where there is wealth, there is usually pov- erty, not because of the wealth but in contrast with it. People who have not complied with the conditions of wealth, — who have not been industrious or thrifty or prudent — especially those who have been dishonest or vicious, do not have wealth, do not have even property. While poverty is usually the result of lack of business- qualities, it is sometimes only a misfortune. A workman may lose his arms or his sight, or be overwhelmed by sickness in his family. It is not a question of distribution. A wild- eyed stranger found admittance to Eothschild's office. " Your wealth ought to be divided equally over all France, ' ' he cried. " Very weU," said the banker, '^ here is your share; " and he gave him a 5-franc piece. Besides, great wealth makes great benefactions possible. Munificence (from Latin munus, a gift, and facere, to make) is possible only where wealth is great. At the beginning of the 20th century the gifts to education averaged a million 512 PROPljRTY RIGHTS a week. There are men of wealth who regard their money as entrusted to them, and who labor harder to take wise care of it and to bestow it wisely than any workman in their employ. People who believe that the present division of wealth is so unequitable that it should be changed are called socialists. Some of them favor armed revolution ; some think the battle can be won at the polls. Some are anarchists (see page 252), not believing in any government; others believe the government should control all industries (see page 491). Wealth employed in industry is known as capital (from Latin caputs head, source), whether it be the farmer's store of provisions to carry him over to another harvest, or the millions re- quired to maintain a steamship line. The object of investing capital in this way is to make profit (from Latin proficere, to advance), the surplus which the product sells for above the cost. Frequently people who have money do not care to take the risks of a business venture, but are willing to lend their money. From such capi- talists young business men often borrow enough to start with by making use of their credit (from Latin credere, to trust). In this case the profit, is interest (from Latin inter and esse, to make a difference), and is not, as in the case of capital regularly invested, de- CAPITAL, INTEREST, USURY 513 pendent upon the success of the business, but a fixed percentage, usually limited by law. In New York it must not exceed 6 per cent, and if more than that is exacted, even by consent of the borrower, it becomes usury (from Latin iiti, to use), and both interest and principle are legally uncollectible. ^ It is sometimes questioned whether interest- limiting and usury laws are wise, on the ground that the rate of interest depends on the law of supply and demand. If money is plentiful it will be lent at a low rate ; if it is scarce it will be lent only at a high rate, and if a low rate is fixed by law it will not bo lent at all. It is one of the propositions of socialists that the government should lend money to the people at a low rate of interest. But in this case the government would often lose both the principal and the interest, and the amount called for would be so great that paper money would have to be issued. As this increased in volume its value would grow less, so that eventually the borrowers would be no better off- than before. Sociahsts often demand, too, that the govern- ment shall establish a short day and high wages. Here again it is unwise to interfere with the law of supply and demand. The higher the cost of wages the smaller will be the profit of the busi- 1 430:1837. 514 PROPERTY RIGHTS riess, till eventually the profit will disappear, whereupon the business wiU stop and the labor- ers lose employment. All business is subject to competition (from Latin con, together, and petere, to seek), and unless it can furnish products of a superior qual- ity or at a lower price than its rivals it will languish. If trade-unions by excluding the un- worthy and incompetent from membership hold up a high ideal of workmanship, so as to pro- duce superior articles with economy of material and power, and this at a minimum cost, they benefit capital and labor alike. Thus all the efforts to do away with sweat shops, or private dwellings where garments and other goods are manufactured at low prices but under unhealth- f ul conditions, deserve the highest praise. But if they seek only short hours, high wages, and rapidity of work lowered to the ability of the poorer workmen, they will make it impossible to compete with other establishments. On the other hand if competition is stifled op- pression may result. If a monopoly (from Greek monos, alone, and polein, to sell) to manufacture salt were given to a single man, he could charge whatever price he chose, and as men must have salt he could make himself enormously wealthy. Some monopolies are inevitable. Patti's voice is a monopoly (see page 508) ; patents and copy- CORPORATIONS AND TRUSTS ' 515 rights protect monopolies. But no one is com- pelled to pay five dollars to hear Patti sing, or to buy a patented article or a copyrighted book ; if the prices are fixed above the value the world does without them. When Grreat Britain put a tax on tea the Americans would not buy it, though the reason was not the price. But when a necessity is made a monopoly oppression results. Monopolies exist now principally through pri- vate corporations (see page 28), Avhich the New York constitution defines as " all associations and joint- stock companies having any of the powers of corporations not possessed by individ- uals or partnerships " (243). When these unite so as to put under a single head all or nearly all the producers of a certain article they become known as a trust. Most states have laws forbidding such combinations. The national law of 1890 makes illegal every combination in restraint of trade* among the states or with foreign nations; and that of 1891: declares it to be against public policy and illegal for two or more corporations, either of which is engaged in importing any article from a foreign country, to combine with intent to restrain free competition or increase the market price. ^ The New York constitution requires corpora- tions to be created under general laws (241). It 1 Hadley, pages 12, 14, 50. 516 PROPERTY RIGHTS forbids the use of the state credit to them (249). Hadley says: '^The narfie 'trust', which is popularly applied to all these large aggregations of capital, was somewhat accidental in its origin. It has, however, an appropriateness which few persons realize. The managers of every con- solidated enterprise, whether based on a contract, a trust agreement, or an actual consohdation, are exercising powers to benefit or injure the public which are analagous to those of a trus- tee. It has been said that all property is, in its wider sense, a trust in behalf of the consumer. But where competition is active, the power of using wrong business methods and unfair prices is so far limited that the chance for abuse of this trust is greatly lessened. It is only in the case of large combinations, with their discretionary power for good or evil, that the character of the trust reposed by society in the directors of its business enterprises makes itself really and truly felt."i ' ' Greater strictness with regard to the forma- tion of new companies, increased publicity of accounts, clear recognition, legal and moral, of the responsibility of directors, who have made false reports to the stockholders — these are con- ditions precedent to any radical and thorough reform of existing abuses. ' ' - 1 Hadley, page 43 : ^ page 46. CONTRACTS 517 '^It is safe to say that in those industries ^which are at all thoroughly monopolized public safety will generally demand that duties be placed on a revenue rather than a protective basis. The fact that an industry can thus organ- ize itself shows that it has outgrown the period of infancy. If it continues to demand a pro- hibitory tariff on its products, the presumption is that it is trying to make an arbitrary profit at the expense of the consumer. ' ' i (See page 297). The most important corporations are i^ow the railways ; and the interstate commerce commission (see page 404) was organized, under a law authorizing it to fix maximum rates between shipping points for the lines operating between them, and forbidding roads to charge more for carrying good\s a short distance than for a longer one including the same portion of the road. The law of 1898 makes the chairman of this commission and the commissioner of labor a board to bring about the arbitration of railway labor disputes. A contract (from Latin con, together, and trahere, to draw) is an agreement by one person with another to do or not do a certain thing. It may be express (from Latin ex, out, and premere, to press), when the terms are specified either orally or in writing; or implied (from Latin in 1 Hadley, page 47. 518 PROPERTY RIGHTS and plicare to fold), as when a man telephones to the grocer to send up a barrel of flour he implies that he will pay for it. Most contracts are oral, but the more impor- tant are usually written, and any contract not to be performed within a year, and some, like deeds and contracts to sell personal property over $50 in value (see page 539), must be written. When a contract is in writing, neither party may claim that the intention was different from that ex- pressed. To be valid a contract must fulfil certain con- ditions. 1. Both parties must be capable to contract. Idiots and lunatics can not be held to contracts. A contract with a minor is voidable, except that when he is without parent or guardian to supply them he may contract for necessaries, such as food, clothing, and education, and may be made to pay for them. Any contract made by a minor may be ratified by him after he becomes of age. Married women were at one time legally in- capable to make separate contracts, on the ground that husband and wife were one ; but in most states they may now buy, sell, or make any contract necessary for the management of their separate property, and may make any con- tract in connection with a business they are managing. ^ 1 417:1897. PRINCIPAL AND AGENT 519 In general a contract made by an agent (from Latin ago, to act, a general term for all em- ployes), is binding upon his principal, the man by whom he is employed (1) if the agent is act- ing within the authority granted to him, and (2) if at the time of making the contract he does so in the name of his principal ; otherwise the agent alone is bound. This applies to those who sell goods on commission (from Latin con, together, and niittere, to send), and to brokers. Even when an accident results from careless- ness of the agent, the employer is responsible for damages if the act was committed in the dis- charge by the agent of his authorized duties. Thus if a guest is injured on an elevator by care- lessness of the boy employed to run the elevator in a hotel, he can recover damages from the boy's employers. In partnership, where two or more persons con- tract to join their labor, skill, or money, the profits and losses to be shared in agreed propor- tions, it is the general rule that the act of one partner binds all in acts pertaining to the busi- ness in which they are engaged, but not further. Thus purchase by one of material for manufac- ture in the business would bind the others ; but purchase of a house for himself would not bind the others. In limited partnership, where per- sons become special partners, putting into the 520 PROPERTY RIGHTS firm a certain amount and not being responsible beyond that, the terms of partnership must be pubUshed in the newspapers. 2. There must be mutual assent. It takes two to make a bargain, and an offer made bj one does not bind the other. If the proposition is made by mail, a letter accepting it and mailed before a letter has been received retracting the proposal, makes the contract complete. Thus services which are rendered without re- quest afford no legal claim for payment, even if necessary, as when a man finds another's house on fire and saves much of the property, at pains and risk. There is, however, an exception when a vessel at sea is rescued. The rescuing vessel is entitled to salvage (from Latin salvare, to save). Even wrecked property cast upon land entitles the finder to salvage. ^ The assent must be given freely ; the contract is void if force or threats are used to extort it. It must also be with full knowledge. If fraud is used in misrepresenting or conceahng facts, the contract is voidable. 3. There must be a consideration, something named and promised as a reason why each per- son enters into the agreement. A promise to give another person money or property without 569:1890. MARRIAGE 521 consideration is not a contract, and can not be enforced. 4. It must be possible. A man may not bind himself to do what no man can do. A contract to prevent the tide from rising would be void. But if a man has undertaken to do something usually possible but prevented by accident, as by his breaking his leg, he is liable for damages for not fulfilling the contract. 5. It must be legal. A contract to violate the law is void. Hence gambhng debts can not be collected by legal process. Of all contracts marriage is the most impor- tant. Of its form we have already spoken (page 146). The New York law^ requires that both parties must be (1) at least 18 years old, (2) of good understanding, (3) consenting without force, duress, or fraud, and (4) not related as ancester and descendant, as whole or half brother and sister, as uncle and niece or aunt and nephew. Bigamy (from Latin his, twice, and G-reek gamos, marriage), or marriage with a second wife or husband while a first is still living, is not only a crime but no marriage, unless (1) the former marriage has been annulled for force, fraud, or other reason ; or dissolved by divorce (from Latin dis, apart, smdvertere to turn; see page 146); or the former husband and wife has (2) been sen- 1 272:1898. 522 PROPERTY RIGHTS tenced to imprisonment for life ; or (3) been al> sent for the past 5 successive years without be- ing known to the person now marrying to be Hving during that time. Polygamy (from GreekpoZifs, many, smdgamos), or marriage with more than 2 wives, is forbid- den by United States law, but is understood to be still practised by the Mormons in Utah. The husband must maintain his wife ; and he must pay all bills she contracts for necessary things unless she voluntarily leaves him. Contracts for insurance (from Latin z?2, se, with- out, and cura, care) are called policies (from same root as political; see page 28); the insured pays a fixed annual amount called a premium (from Latin prae, before, smdemeix, to buy). New York has a superintendent of insurance (see page 202). In lire insurance, the company agrees to pay, within the limit of the policy, all damage from fire and in consequence from fire, as from the wetting of goods caused by water used in put- ting out the fire. In marine insurance, if the vessel or cargo is damaged to half its value, the owner may give up the remainder and claim a total loss. In life insurance the company agrees to pay a specified amount upon the death of the insured. Endowment policies sometimes provide for payment of the amount during the fife of the insured, at a named date. INSURANCE 528 ' Policies may be made payable to the person taking out the pohcies or to others, but in the latter case the person to whom a policy is payable must be able to show some interest in the life or property, as of relationship or debt. This if without such claim a man should take out a policy upon the life of the president it would prac- tically be making a wager that the president would not live. If this were freely allowed a great many might become interested in his not living. When a contract is not fulfilled, the aggrieved party usually applies to the court for damages ; but sometimes the court may compel fulfilment, as when a man who has contracted to remove a brewery continues to use it, or a man who has contracted to sign a deed refuses to do so. A third remedy, in case there has been fraud in framing or evading the contract, is an action for tort (from Latin torquere, to twist), which is usually applied to damages arising otherwise than by contract. The constitution forbids that laws shall be passed impairing the obligations of con- tract (51). Damages for failure to fulfil a contract must be brought within a limited time. Thus after 6 years a debt in New York becomes outlawed, and if judgment of the supreme court (see page 226) is secured it must be collected if at all within 20 years. 524 PROPERTY RIGHTS At one time the law required all debts to be paid, and the debtor who failed to pay was im- prisoned. This is now uncommon, recovery of debt being possible only so far as property of the debtor can be discovered to levy upon. More than this, such property as is absolutely neces- sary to enable a man to continue his employment is exempt (from Latin ex^ out, and emere, to buy) from execution. In New York, in case of a householder having a family for which he pro- vides, necessary household furniture, working tools and team, professional instruments, furni- ture and library not exceeding in value $250, are exempt from levy and sale. ^ A person who owes more than he can pay is insolvent (from Latin in and solvere, to loose), and when this insolvency is legally announced he be- comes bankrupt (from Italian banca, bank, and rotta, broken). In English law anybody may become insolvent, but until 1861 only traders could become bankrupt. Congress is authorized (29) to establish laws on the subject of bankruptcies uniform through out the United States. The object of American bankrupt laws is two-fold: to insure equitable division among the creditors of such assets as exist ; and to enable the debtor on turning over all his property to start anew without a load of 1116:1901. THE BANKRUPTCY LAW 525 debts hanging over him which might discourage effort. In this respect the United States is more liberal than England, where the bankrupt loses both credit and social position — a bankrupt can not sit in parliament; and France, where he is also legally prevented from engaging in new business on his own account till he has paid his out standi ng obligation s . Under the law of 1898 any person (corporations are excepted) may become a voluntary bankrupt by filing a petition in the United States district court asking to be so adjudged; and, unless a wage-earner or farmer, may be adjudged an in- voluntary bankrupt for (1) conveying, concealing, or removing any part of his property with in- tent to defraud creditors ; (2) giving any of his creditors preference by conveying to them any of his property; (3) making a general assign- ment (from Latin ad, to, and signmn, sign; in which case if all the creditors agree to release the debtor upon the distribution of his property he is released from his legal obligations) of his assets for the benefit of his creditors; or (4) ad- mitting in writing his inability to pay his debts and willingness to be adjudged a bankrupt. Under this law a trustee of the bankrupt's estate is appointed, with powers like those of the executor of an estate (see page 542). Some states have also insolvency laws, reliev- 526 PROPERTY RIGHTS ing from a liability to imprisonment for debt on surrender of all property, but these do not affect citizens of other states. Under the present bankruptcy law, most of the property found is often consumed in paying legal expenses, and the creditors get little satis- faction. While the law legally discharges the bankrupt, the moral obligation to pay his debts still remains, and in rare instances when fortune returns he repays his former creditors with interest. It is claimed that the present law has put an end to fraudulent failures by chattel mortgage (see page 537); and by confessions of judgment, where a civil suit is brought, no defence is offered, and judgment is rendered (see page 266), in both cases without consideration and to put the property into the hands of some friend who will afterwards turn it over to the bankrupt. Under the state law judgments held against the property in the order in which they were filed, so that when failures occurred there was a race among creditors to get to the county clerk's office first (see page 535). The assignor also had the privilege of ' ' preferring ' ' creditors, thus put ting- all his property into the hands of his relatives or fellow conspirators. * Negotiable paper includes all evidences of debt that bear upon their face the words ' ' or bearer 55 NEGOTIABLE PAPER 527 '^ or order ", or other words that make the paper transferrable from one person to another, such as bank-notes, checks, drafts, promissory notes, etc. For bank-notes see page ttlG. Such paper is negotiable (from Latin negotium, business, from nec^ not, and otium, leisure) be- cause it can be readily transferred, and to make it more available it has some peculiar privileges. Thus if a uote payable to bearer or endorsed in blank is stolen and filled out, a purchaser who bought the note in good faith could collect it (compare page 530). Though this often works injustice it is on the whole a benefit, since the usefulness of negotiable paper is so great that all possible safeguards must be thrown about its purchase. A check is a request upon a bank where the drawer has money deposited to pay the amount named to bearer or to the order of a person named (see page ttlT). If a check is payable to the order of a person who desires to have it paid to some one else, he indorses (from Latin in, upon, and dorsum, back), it, (1) by writing his name on the back, which makes it payable to bearer; (2) by writing ' ' pay to the order of ' ' the person to whom he desires to transfer it; or (3) by writing above his (see page 530). 528 PROPERTY RIGHTS Should the check be drawn upon a bank, where the maker has insufficient funds to meet it, it is protested (from Latin pro^ before, and testis, a witness), and notice of the same sent both to the maker and to the person who presents it, with notary fees, usually of 11.25 or $1.50, to be paid the bank where it was presented. If however the indorser instead of simply writ- ing his name on the back of the note has quali- fied the endorsement by writing '' without re- course ", he is not liable for protest fees if the note is unpaid. A check may be upon request certified by the bank, in which case the bank becomes responsi- ble for its payment, even if it allows the de- posited funds of the drawer to be reduced below the amount. A due bill is an acknowledgement of indebted- ness, as: $50. Syracuse,, N. Y., Oct. 3, 1901. Due J. H. Smith fifty dollars, Henry Brown. It may be made payable in merchandise, as : 138.50. Syracuse, N. Y., Oct. 3, 1901. Due A. L. Jones thirty-eight y^V dollars in merchandise. Andrews Brothers. A draft (see page 417) or bill of exchange is a written request made by one person to another to pay a certain sum of money to a third. The following is a common form : CHECKS, DRAFTS, NOTES 529 z HI . HI > ID 3 it d Syracuse, N. Y., Oct. 3, 1901. At sight pay to the order of the cashier of the National Bank of Syracuse one hun- dred seventy -five y^V dollars, and charge to my account. To Albany News Co. Albany, N. Y. C. W. Bardeen. Such a draft is only a request, and may be refused. The words ' ' protest waived ' ' are often inserted or attached to the draft so that if not accepted it may not be protested, incurring pro- test fees. If the Albany News Co. accepts the draft, it writes across the face something like, ''Accepted, payable at City National Bank, Albany News Co. per John Smith, ' ' after which it is practically a check drawn by them. A promissory note not only acknowledges in- debtedness but promises to pay it, usually on a specified time. To be valid a note must be a (1) written and (2) signed and (3) unconditional promise to pay^ (1:) a designated amount, (5) on demand or at a specified date. The date and that it is for value received are not required by New York law. ~ If it is to bear interest it must say so, otherwise 1612:1897. ^ 6i2:i897. 530 PROPERTY RIGHTS it will not begin to draw interest till after it is due. If payable on demand it will begin to bear interest after payment has been demanded. In order to be negotiable it must be made pay- able to bearer or to the order of the payee. On a note intended to be discounted it is customary for the maker to name the bank at which it is to be paid, in which case it may be jDresented there on that day, like a check. If there are no funds to meet it, it wiU be protested, like a check. In such case each endorser is liable, provided notice be sent to each. The last endorser looks to the one before him, and so on back to the maker of the note. Notice of protest must however be sent to the indorsers immediately in order to hold them responsible. See page 527. To be competent, the maker of a promissory note must be of age and not insane or an idiot. In some states married women are incompetent, but not in New York. ^ In case of forgery (see page 553) of negotiable paper, either in the name of the maker or en- dorser, or by changing the amount, it ceases to be negotiable and conveys no liability against the person whose name is forged, or, in case the amount is changed, who really signed it. Hence banks have to scrutinize carefully the checks 417:1897. REAL ESTATE 531 and notes presented, as they are liable for any mistake or fraud. In this country most real property (see page 147), or real estate, as it is of tener called, is owned by estate in fee or estate in fee simple, the owner- ship being unqualified, and including the right to sell and to transmit. Estate for life gives the holder only a life tenancy. He has the income from it, but may not sell or mortgage it, or de- stroy the buildings, or otherwise injure its value. A widow's right of dower (see page 534) is an estate for hf e ; if a child dies owning real estate his father inherits estate for life in it. The heirs to whom the property will belong upon the death of the person holding estate for life in it, have future estate in property. For allodial tenure see page 149. An estate for Hfe is often bequeathed to a spendthrift or dissipated child, for whom it is desired to provide an income without giving opportunity to squander the property. This may be accomplished in another way by deeding the property to some responsible person in trust for the child, with powers varying according to the wiU. Adverse possession is possession of real prop- erty avowedly contrary to some claim of another in the same property. An estate for years is the right to possess and 582 PROPERTY RIGHTS use real estate for a definite time, and is conveyed by a lease (from Latin laxare, to loose). If for more than a year the lease must be in writing. A lease is a contract and must specify^ a con- sideration, commonly known as rent (from Latin re and and dare, to give back, to pay), usually in money to be paid at stated periods, but some- times in services, in a share of the produce, in profits, or otherwise (see page 140). If the land- lord makes changes in the premises rendering them useless to the tenant, the tenant may with- draw without paying rent ; but if there is acci- dental destruction by flood or fire the rent is due, and neither landlord nor tenant is under legal obligations to rebuild a house destroyed by fire. The landlord is not obliged to make repairs un- less this is specified in the lease. The tenant must return the property in as good condition as he took it, except for ordinary wear and tear. If the property is sold, the change of owner-^ ship does not affect the rights of the tenant. Un- less restrained by the lease, the tenant has the right to assign his lease, in which case the new tenant pays rent to the landlord; or to sublet part of the premises, in which case the new tenant pays rent to the tenant. When the lease has expired, or if the tenant fails to pay or if he unlawfully injures the property, he may be evicted (from Latin e and vincere, to overcome) LEASES, APPURTENANCES 533 by suit at law, through the sheriff. If the lease is for an indefinite period, the eviction must be preceded at least a month by notice to quit. The appurtenances (from Latin ad and pertinere, to belong) of real estate are the minor rights which are transferred with it upon change of ownership, such as buildings, fences, trees, springs, quarries. They may include right of way over other property — that is, the right to pass over real estate belonging to another, as to reach a spring or a field. Right of way is usu- ally granted by document, but when the privilege has been unquestioned for 20 years it becomes a right by usage. On the other hand if unused for 20 years it ceases. In the case of highways, the owner of adjoin- ing land owns the land to the centre of the road, and the pubhc has only right of way. When a highway is obstructed the public has right of way upon adjoining land. Boundary rivers, not navigable, are also owned to the middle line by the owners of adjoining property. In the case of streams flowing through the land, while the owner may use the water for water-power or otherwise he must not diminish its volume, or give the stream another direction ; nor may he by a dam cause the water to overflow his neigh- bor's land. In cities blocks of houses are often built with 5 3 J: PROPERTY RIGHTS a party wall between them — that is a wall used for both houses, with timbers from each house inserted. In such cases neither may remove the wall without consent of the other. Trespass is entering upon another's premises without permission. The written instrument by which ownership of real estate is transferred to another is called a deed (from Latin dare, to give). It must be (1) written, (2) dated, (3) signed, (4) sealed, and (5) delivered ; and to be valid against other convey- ances of the same property must be (6) recorded in the office of the county clerk. It must also contain (T) a description of the property con- veyed, and (8) the name of the person to whom it is conveyed. If the property is owned by a married man, the deed must be (9) signed by the wife, or if she outHves her husband, she will at his death have a hfe-interest in J of the property. This right is called the right of dower (from Latin dotare, to endow), ' ^ the third part of aU the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage. ' ' ^ This right is not affected by deed or mortgage unless given by consent of the wife, nor by judgment against the husband. Dowry is now distinguished in use from dower as the portion of a bride at marriage. 1 547:1896. DEEDS 535 The real property of any woman acquired be- fore br after her marriage, remains her separate property, not Hable for her husband's debts. She may dispose of her real and personal property by sale or by will. She may be a guardian, executrix, or administratrix (see page 542), and may give the necessary bonds. The importance of recording the deed is mani- fest; otherwise the same property might be deeded to different persons. Before recording it, the county clerk usually requires an acknowledge- ment, a certificate by notary public or other au- thorized officer on the back of the deed, that the maker appeared before him and acknowledged that he was the person who executed the deed. In New York this may be dispensed with, and the execution proved by a subscribing witness. After the acknowledgement no change whatso- ever must be made in the deed. In a warranty deed, the person conveying the property insures the title in the land conveyed against all persons whatsoever ; while a quit-claim deed simply conveys the interest which the grantor has in the land, whatever it may be. Executors, guardians, and administrators seldom give warranty deeds. The warranty is a covenant, and there may be other covenants in the deed, as that there are no taxes, mortgages, liens (from Latin ligare, to Deed with Full Convenants This indenture, made the day of in the year nineteen hundred and between of (insert residence) of the first part, and of (insert residence) of the second part : Witnesseth, that the said party of the first part, in considera- tion of dollars lawful money of the United States, paid by the party of the second part, doth hereby grant and re- lease unto the said party of the second part, his heirs and assigns forever (description), together with the appurtenances and all the estate and rights of the party of the first part in and to said premises. To have and to hold the above granted premises unto the said party of the second part, his heirs and assigns forever. And the said party of the first part doth covenant with said party of the second part as follows: First. That the party of the fii-st part is seized of said premises in fee simple, and has good right to convey the same. Second. That the party of the second part shall quietly enjoy the said premises. Third. That the said premises are free from encumbrances. Fourth. That the party of the first part will execute or pro- cure any further necessary assurance of the title to said premises. Fifth. That the party of the first part will forever warrant the title to the said premises. , In witness whereof, the said party of the first part hath here- unto set his hand and seal the day and year first above WTitten. In presence of: (536) DEEDS, MORTGAGES 537 bind, a legal claim as security for debt or charge), or other incumbrances upon it. Upon payment of a fee an official search is made at the county clerk's office, which becomes a guarantee that (1) the title is vested in the per- son selling; and (2) there are no incumbrances upon the property, such as previous deeds, mort- gages, judgments against the seller, etc. The New York statutes ^ give a form of deed which complies with all provisions of the law. It is printed on the opposite page. A mortgage, given as security for money loaned or otherwise due, is in form somewhat like a deed and subject to the same conditions; but it is provided that the transfer of the property shall occur only in case the person giving the mortgage fails to pay as provided the interest and principal of the amount due. When the debt is paid the mortgage becomes void, and this satisfaction of the mortgage should be recorded in the county clerk's office, leaving the title clear in the original owner. If the conditions of the mortgage are not complied with, the holder may begin proceedings to foreclose (from French /ors, hors, outside, and clore, to close), that is to sell the property and devote the proceeds as far as necessary to the payment of the amount due. 1277:1897. 538 PROPERTY RIGHTS A chattel mortgage is a mortgage upon personal property (see page 151) or chattels (from Latin capitalis, chief, because cattle, the same word, used to form the principal part of a man's prop- erty; compare page 117). It is good against the grantor for 6 years, or if under seal for 20 years ; but against other purchasers it is good only for a year unless renewed ; and must be filed in the office of the town clerk, or if executed in towns where the office of county clerk is situated, in the office of the county clerk. A mortgage accompanies a l)ond (see page 46), a written instrument under seal by which the borrower acknowledges himself ' ' held and bound firmly ' ' to the lender for the payment of the money borrowed, or for the performance of other obligations named in the bond. The bonds hitherto referred to (pages 16, 111, etc.) have been guarantees of the persons giving the bonds that the officer will truly and well per- form all his duties, and pay over aU moneys re- quired in the bond, or that the person charged with the offence or indictment will appear when wanted. When the bond is given for the payment of a certain amount of money the penalty is usually fixed at double the amount of money required to be paid ; but the courts require the payment only SALES OF PERSONAL PROPERTY 589 of an amount which will be a complete indemnifi- cation for damages sustained. The rights of eminent domain and escheat have already been explained (page 150). Eeal estate may always be located and found, but personal property may disappear (see page 301), so there are some restrictions upon the sale of the latter. If at the time of the sale the property has ceased to exist, as in the case of a cow that has died or goods that are burned, the sale is void. Sales may be made however of articles which the seller expects to secure ; thus a farmer may sell his approaching crop of vrheat. The sale may precede delivery, and is complete when the contract is made. If the article is de- stroyed after sale and before delivery the loss is the buyer's. New York requires that a contract for a sale exceeding $50 must be in writing un- less the buyer receives part of the goods or pays part of the purchase money. ^ Entry upon the sale-book of an auctioneer is a written contract. The buyer is entitled to delivery only on pay- ment of the price, the seller in the mean time having a lien (see page 535) upon the property. But if the seller, deli vers the property before pay- mentj and without fraud on part of the buyer, he loses the lien and has simply an ordinary claim 417:1897. 540 PROPERTY RIGHTS against the buyer for the amount due. This is true of all goods sold on credit. If the property sold is not the property of the seller, as where it is stolen or found, the true owner may claim it at any time, except in the case of money and negotiable paper, such as promissory notes, government bonds, etc. A person who gets these for consideration, that is who pays something for them, and has no reason to suspect the seller does not own them, has title to them. In the sale of personal property there may be a warranty (see page 30) of title and of quality ; but without this the buyer is supposed to ex- amine the article for himself, and to stand the loss if it proves not to be what he expected. The property of people who die is usually transferred to others by will of the person de- ceased, who is caUed the test*ator (from Latin testis, a witness), and his will a testament. As a rule a man may leave his property as he pleases and to whom he pleases, and he may destroy any will, or change it in any way; but there are these limitations: (1) The testator must at the time of making the will be of full age and sound mind. If it can be shown that he was not of sound mind or that he was unduly influenced by some one, the will is declared void. WILLS 541 Males 18 years of age may bequeath personal estate by will. ^ (2) The will must be written, and signed with their post-office addresses in the presence of the testator and of each other by at least 2 wit- nesses, in whose presence the testator signed it or acknowledged signing it, and declared it to be his last will and testament. An unwritten or iniiicapative (from Latin no- men^ name, and capere^ to take) will, one made by word of mouth before witnesses, is valid in the case of soldiers in service or sailors at sea. (3) Bequests to benevolent societies must have been made at least 2 months before the death of the testator. - (1) If the testator has wife or husband, chil- dren or parent living, not more than half the estate can be given to benevolent purposes^. Bequests of real estate to aliens are of course void (see page 150). If a second will is made that does not expressly revoke a former will, both stand except so far as contradictory, but where contradictory the latter prevails. It is best to begin the will : ' ' I make this as my last will and testament, hereby revok- ing aU former wills made by me. ' ' A will destroyed by the testator is void ; but if destroyed by any other person, it is vahd unless i782:i8()7. 2 319:1898. ^ 360:1860. 542 PROPERTY RIGHTS it be proved by 2 witnesses that it was destroyed by direction and consent of the testator. The can- celling of a second will does not revive the first. A codicil (from Latin codex, the tablet of wood smeared with wax used for writing) is an additional will, changing it as the testator may desire, and must be executed with the same formalities. As the word ' ' bequeath ' ' applies properly to the personal estate and ' ' devise ' ' to real estate, it is safest to begin: '' I give, bequeath, and de- vise my estate and property, as follows : that is to say : " ' A person who inherits property is an heir (from Latin heres ; see page 478). If a person is named in the will to carry it into effect he is called the executor (from Latin ex out and sequi, to follow, compare page 264); if no person is named, or if the person named declines to serve, the surrogate appoints an administrator (from Latin ad and minister, a servant, see page 464), to settle the estate in accordance with the provisions of the will. This is called giving let- ters testamentary or administrative. (5) The widow is entitled to right of dower (see page 534) ; but provision may be made for her in lieu of right of dower, in which case she has the option either to insist upon dower or take the provision made. INHERITANCE 543 If he leaves no will, a person dies intestate (from Latin in, not, and testis, a witness), in which case the estate is divided according to the provisions of the law. In New York real prop- erty descends, aside from the right of dower (see page 534) (1) to Hneal descendants, children, grandchildren, etc. ; (2) to the father unless the estate came from the mother, when the father has a Hfe interest in it (see page 531); (3) to the mother, unless the intestate person left brothers or sisters or their descendants, in which case the mother has a Hfe interest in it; (4) to collateral relatives, brothers, sisters, etc., share and share ahke, no preference being given on account of age or sex. Personal property descends in the same order, without the limitations named. CHAPTEE L CRIMES A^'D PUNISHMENTS A man may be very wicked, and yet unpun- ishable by law. He may have vices (from Latin vitium, a vice), indulging his appetites inordin- ately; he may commit every day sins (from Latin sons, guilty) of omission and commission against divine law ; he may be indolent, drunken, untruthful, a wretch in his own eyes and in that of his neighbors, and yet be left undisturbed by the law so long as he does not violate its pro- visions. If his indolence leaves his family un- supported, if his drunkenness becomes a public disturbance, if his untruthfulness is shown when he is a witness in court, then the law will punish him ; not because he is wicked, which is a matter between him and his conscience, but because he is an offender against the laws estab- lished by the people for its protection (see page 26-2). The purpose of criminal law is not the reformation of the offender but the protection of society. A crime is an. act or an omission to act forbid- den by law. Under the old English common law (see page 254), offences against the law were (544) FELONIES; MISDEMEANORS oio divided into 3 classes: (1) those punishable by death were called crimes (from the root of Latin cernere^ to discern) ; those punishable by forfeit- ure of goods were called felonies (from Old Eng- lish /eZ, cruel), and were often also punishable by death ; (3) those deemed worthy of a lighter pun- ishment were called misdemeanors (from Latin m^s, and minari^ to threaten). These distinctions have largely disappeared. The New York criminal code divides all crimes into 2 distinct classes: felonies punishable by death or by imprisonment in state prison. misdemeanors punishable by impris- onment in county jail or penitentiary. For both felonies and misdemeanors fines may also be inflicted, sometimes in place of and some- times in addition to imprisonment. The usual limit of punishment for misde- meanors is imprisonment for not to exceed 1 year, or by fine not to exceed |500, or by both. Some offences are punished also by removal from office or by disquahfication to hold any place of trust, honor, or profit, under the state (see p. 54:9). At common law an infamous crime (88, 117, 131) was one upon conviction of which a person became incompetent as a witness, ^ including treason, perjury,- larceny, knowingly receiving 113 Dill. 275. 2 4 Saw. 211. 5^6 CRIMES AXD puxishme::ts stolen goods, and all crimes which create a vio- lent presumption against the truthfulness of the party under oath, ^ but not including misde- meanors. 2 As testimony is the basis of legal proceedings, the law is severe against perjury (from Latin per, though, over, and jurare, to swear), declaration under oath of what a person knows to be untrue. If a perjurer has taken the oath before a national official he is punishable by fine not to exceed 12,000, and imprisonment for not more than 5 years, and is thereafter incapable of giving tes- timony in any national court. ^ Subornation of perjury is instigating another to swear falsely, and is subject to hke punish- ment. The greatest of crimes is that committed against the state, called treason (from Latin tra- dere, to betray). It may consist in levying war against the United States, or in adhering to its enemies, gi^dng them aid and comfort (70). The criminal code of New York adds as a form of treason, combining to overthrow the govern- ment by force ; but the United States supreme court has ruled : ^ ' However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war and actu- 1 11 Met. 302. 2 Cent. L. J. 205. ^ -g. s. Rev. Stat. S5392. 547 ally to levy war are distinct offences. ' ' Of con- structive treason we have already spoken (page 141). No person may be convicted of treason unless on the testimony of 2 witnesses to the overt act, or on confession in open court (70). It is punishable by death ; but by law of 1862 the sentence may be imprisonment for not less than 5 years and a fine of not less than 110,000 (seepage 140). Aaron Burr was tried for treason in 1807, but acquitted. Gen. Hill surrendered Detroit with- out resistance in 1812; he was tried for treason, found guilty, and pardoned by President Madi- son. John Brown was tried in 1859 for murder and treason, but was found guilty of murder and hanged for that. Jefferson Davis was captured in 1865 and confined in Fortress Monroe. In 1867 he was charged with treason and admitted to bail; in 1868 he was discharged. After the civil war political disabilities were laid upon many of the southern leaders (101), but these were removed by congress in 1894. Anarchy (see pages 252, 512) is universal trea- son, a purpose to destroy all governments. When President McKinley was assassinated in 1901 by an anarchist, it was recalled that within 7 years a president of France, a king of Italy, an em- press of Austria, and a prime minister of Spain 548 CRIMES AND PUNISHMENTS had met the same fate. In his first message President Eoosevelt recommended legislation, saying that anarchists should be kept out of this country ; that if found here they should be promptly deported to the country whence they came ; and that far-reaching provision should be made for the punishment of those who stay. He said : ' ' Anarchy is a crime against the whole human race, and all mankind should band against the anarchist. His crime should be made an offence against the law of nations, hke piracy and that form of man-stealing known as the slave trade; for it is of far blacker infamy than either. It should be so declared by treaties among aU civil- ized powers. Such treaties would give to the federal government the power of deahng with the crime. ' ' Among crimes against the elective franchise are the following, all misdemeanors : attempting to vote at an election or caucus, when not entitled to do so ; attempting to vote more than once ; attempting to vote 2 or more ballots, or to add ballots to those already cast ; making a false declaration at enrolment ; as an election officer making false returns : doing any fraudulent act to affect the result BRIBERY; EXTORTION 549 of an election or caucus, including bribery of or intimidation of voters or election officers ; using authority as an election officer of the state to collect political assessments from sub- ordinates ; faihng as a candidate to file an itemized state- ment showing in detail all the moneys contrib- uted or expended by him in aid of his election. Among crimes against the executive power of the state are : assuming office without having qualified ; offering reward for appointments ; resisting officers : all misdemeanors. Offering to bribe an executive officer or as executive officer asking or receiving a bribe, is a felony (283), punishable by not to exceed 10 years in state prison or a fine of $5,000, or both. In addition the officer is forever disqualified from holding public office in the state. Any officer or subordinate who asks or takes unlawful fees is under similar penalty (282), and the crime is known as extortion (from Latin ex and torquere, to twist). No public officer is even permitted to ask or accept a railway pass (285). Crimes against the legislature include prevent- ing the meeting or organization, compelling either house to pass or not to pass a bill, alter- ing the draft of a bill, and bribery, which are felonies; and disturbing the sessions, intimidat- 550 CRIMES AND PUNISHMENTS ing the members, refusing to appear when called as a witness or to testify, which are misde- meanors. Crimes against the judiciaiy include bribery, injury to public records, offering for record forged instruments, and perjury, which are felonies ; and embracery (an attempt to influence court or jury by promises, etc.), destroying evi- dence, preventing witnesses from attending, res- cue or concealment of prisoners, and misconduct of officers, which are misdemeanors. A citizen who refuses when commanded by him to aid an officer making an arrest is guilty of a misdemeanor. After the governor has is- sued a proclamation declaring a county to l)e in a state of insurrection, a person who interferes with the law or refuses when summoned to aid in sustaining it is guilty of a felony. To compound (from Latin con, together, and ponere, to set) crimes, that is to accept a bribe to conceal a crime, is a felony if the crime was such; otherwise a misdemeanor. Contempt of court may be shown by disorderly behavior in court, attempt to deceive the court, refusal to be sworn as a witness, publication of a grossly inaccurate account of its proceedings, or resistance to its mandates. It is commonly punished by the judge on the spot, by fine or imprisonment. HOMICIDE 551 Of crimes against the person suicide (from Latin sui, one's self and caedere, to slay), the intentional taking of one's hfe, is not punished; but an unsuccessful attempt is a felony ; and to assist another to suicide is homicide (from Latin homo man, and caedere to kill), the killing of one human being by the act, procurement, or omission of another. When the act is not designed to kill it is man-slaughter ; but it is murder (from Latin mors, death) in the 1st degree, when without excuse, and (a) deliberate, and premeditated ; (b) or by an act regardless of human life, as in wrecking a railway train ; (c) or by a person com- mitting a felony upon or affecting the person killed ; or (d) while committing arson in the 1st degree (see page 553). It is murder in the 2d degree, when designed to kill, but without deliber- ation and premeditation. Homicide often results from what was intended for assault (from Latin ad, upon, and salire to leap) and battery (from Latin batuere, to strike), the usual legal term for attack with the fists or such a weapon as a cane or club, intended to injure but not kiU. To kidnap a person is to seize him against his will and carry him away. Homicide may be lawful. As we have already seen (page 492) a man may kill another in self- defence, and he may do so to prevent an atrocious 552 CRIMES AND PUNISHMENTS crime. An officer may kill a prisoner if neces- sary in the effort to take him or to prevent his escape. Homicide is justifiable when it occurs through -unavoidable accident. In case of death by railway accident the New York laws at one time limited the damages by death to $5,000, but the present constitution forbids statutory limitation (129). Of other crimes against the person slander and libel have been described on page 144, and bigamy on page 521. Of crimes against property rights, larceny (from Greek latris, sl hired servant) or theft is stealing by stealth. When the value of the goods stolen is less than $25 it is petit larceny (112) and a misdemeanor; otherwise grand lar- ceny, and a felony. When the property stolen had been entrusted to the care of the thief, the theft is called embezzlement. Defalcation (from Latin de and falx, a sickle) is a form of embezzle- ment. Robbery is taking property away by force, while to break into a house in the night for purposes of theft or other crime is in itself burglary. Piracy (from Greek peira, an attempt) is rob- bery on the high seas, which means the ocean and waters along the coast beyond low-water mark. Congress alone has power to define and punish piracies, felonies, and offences against THEFT; ARSON; FORGERY 553 the law of nations committed on the high seas (35). The criminal jurisdiction of the states extends only to their borders (67) and there must be some authority to punish offences on the ocean. Arsou (from Latin ardere, to burn) is the mali- cious burning of a building belonging to another. To burn an inhabited dwelling in the night time is arson in the 1st degree, and punishable as murder in the 1st degree (see page 551). Forgery (from Latin fabricare, to fashion) is signing the name of another person to a written instrument or passing off an imitated instru- ment for an original, or making some alteration in an instrument already signed. Counterfeiting (from Latin contra, against, and facere, to make, originally to make a likeness) is the same sort of fraud applied to coin, to bank-notes, to bonds or other securities, or to articles other than written instruments. Congress is empowered to provide for the punishment of counterfeiting the national coin and securities (31). The courts have con- strued that this does not deprive the state courts of power to punish the same offence. A person not present but in any way con- cerned in the commission of a crime is an acces- sory (from Latin ad, toward, and cedere, to move), before the fact, if he counsels or commands the deed ; after the fact, if he shelters the offender or aids him to escape. 554 CRIMES AND PUNISHMENTS Attempts to commit crime are commonly nomi- nally punishable as though successful, but usu- ally the sentence is lighter. Any one who sees a crime committed may arrest the offender ; but otherwise only an officer provided with a warrant may do so (see page 137). The judicial system of any state or country extends only over its own territory. A New York sheriff can not arrest a man in New Jer- sey ; an American warrant has no effect in Eng- land. So criminals who escape from the state or country against whose laws they have offended would be safe from punishment were it not for extradition (from 'Latin extra, outside, and dare, to give), the delivery of fugitives from justice to the state whose laws they have offended. If a man has committed murder in New York and crosses the line into Pennsylvania, the governor of New York makes upon the governor of Penn- sylvania a requisition, a formal demand that the criminal be arrested and held, accompanied by indictment or affidavit charging the criminal with crime. It is the duty of the governor of ^Pennsylvania to cause the fugitive to be arrested and to deliver him to the accredited officer from New York (74). i Between nations extradition occurs only by 1 U. S. Rev. Stat. S 5278. EXTRADITION 555 express treaty (see page 467). ^ When a treaty of extradition exists with another nation, any subject of that nation charged with any of the crimes named in the treaty may be brought be- fore any United States judge or commissioner or judge of any state court of record (see page 268), and examined. If the evidence seems sufficient to warrant, the prisoner is committed to jail, and a copy of the testimony is sent to the secre- tary of state, who upon requisition of the foreign authorities will issue a warrant for surrender of the prisoner to such authorities. ^ Treaties of extradition differ in detail; thus French crimi- nals can be extradicted only by act of congress. Deserting seamen may be delivered up under similar conditions. ^ 1 Kent, i.39 n. 2 xj. s. Rev. Stat. § 5270. ^ § 5330. 9;mB3S -lap o:)inBjs .tap -un paziuBS.iQ) -iii^ pazinna.To) (A\i3i (,A\irx ajin>?;S •18P ajiiJi^Js' -i^p -iin pszuiBiJ.io) -"" paziuK^.iQ) A1I3 AlXnOD Court of Appeals Supreme Court Board of Claims Attorney-General Court of Impeachment (Senate and Ct. of Appeals) Supreme Court Circuit Courts Districft Courts Court of Claims Attorney-General Court of Impeachment Senate Juries Supreme Court District Courts I^robate Courts (in each County) Justices of the Pea(;e Juries 3 o ll 1 Court of Chancery Queen's Bench Common Pleas Exche(iuer High Court of Justiciary Circuit Courts in the Rural Districts 5- GovKitNOi: Secretary Auditor 'i'roiisurer Sup"t<)f Common Schools c King (or Queen), who rules through the Cabinet or Min- istry ; namely : Prime INFiuister or Premier Lord Chancellor Lord Privy Seal President of the Council Home Secretary Chancellor of the Exchequer and others ll II G 5 ?> it 111 ci Ir. |i ©"3.= 3 51 ft 3^ 3 1 J (uoiju:^ (uoijn; (a^'Bt; -i^suooB.Tap -ijsuoo'B.iap a^niBis.iapuu -uu pazniBiJ.io) -mi paztui?:r?ao> pazuiuiJ.io) aivxs saxYxs a»x.i a.jihx •103 JO •xsia (uoijnjijs -xio:> uajji.i.wu^). TOWN DIRECTORY. Name. Term, expires. Supervisor. Clerk. Justices Highway Commissioners Overseers of the Poor Collector. Constables \ Inspectors of Election Sealer of Weights and Measures NoTB.— Write the names of town officials in same manner as county. 558 COUNTY DIRECTORY Name Term expires. Sheriff.. Judge Surrogate Treasurer District Attorney : Coroners I I Superintendents | of the Poor \ r Assembly -J I I School Commissioners Loan ( CommissiojieFs ( - Chairman Board of Su pervisors Clerk Board of Supervisors Member House of Representatives No. dist. State Senator No. dist. Note— Write the names of the several officials opposite the titles for ref- erence, changing them as other officials are elected or appointed. (559) TABLE OF DISTEICTS unit nation state. 'county town . city. . . village. district circuit court, territories. . . states district court, congressional judicial appellate. . assembly. . . . senate counties assembly. . . . c ommissioner cities villages towns election road school ward dicided by jurisdicfn page congress nation 280 congress nation. . . . 358 congress state 359 congress nation .... j2T8 legislature* nation. . . . 445 legislature state ;263 'legislature state j271 llegislature state 1227 jlegislature state 1229 [legislature county. . . . | 62 jlegislature state |227 : supervisors state i 73 jlegislature city 101 llegislature village [ 87 isupervisorsf town 1 25 jtown board ;town j 48 j highway commissioners town ...:.! 42 school commissioner:}:. . state ' 74 jlegislature .... : city 101 jlegislature village. ... 87 *The number of districts is fixed by congress. f The legislature may erect new towns ( 1 44). :}: Supervisor and town clerk are sometimes associated. ** Sometimes. (560) IE STATES OF XI UNION States 31. Delaware Penasylvania . . . New Jersey Georgia Connecticut Massachusetts... Maryland South Carolina. . New Hampshire. Virginia New York North Carolina.. Rhode Island Vermont* Kentucky* Tennessee Ohio Indiana Mississippi Illinois Alabama Maine* Michigan Wisconsin West Virginia* . . Louisiana Florida Arkansas Xrissouri Iowa Kansas Nebraska North Dakota South Dakota Montana Wyomlnij Californiat Nevada Utah Oregon Washington.... .. Idaho Minnesota Colorado Texasi Populati'n 1900 184.735 6.302.115 1.883,669 2.216.331 908,420 2,805.346 1,188,044 1,340.316 411.588 1,854.184 7,268,894 1,893,810 428,556 343,641 2,147.174 2.020,616 4.157.545 2.516.462 1.551.270 4,821.550 1.828,697 694,466 2.420,982 2.069.042 958,800 1,381.625 528,542 1,311,564 3,106.665 2.231,853 1,470.495 1,066.300 319,146 401.570 243.329 92.531 1,485,053 42.335 276:749 413.536 518.103 161,772 1,751.394 539.700 3,048.710 Area Sq. Mi, 2,050 45.215 7^815 59.475 4,990 8,315 12.210 30,570 9,305 42.450 49.170 52,250 1,250 9,565 40.400 42,050 41.060 36,350 46,810 56.650 52.2.50 33.040 58,915 56.040 24,780 24,780 58.680 53.850 69,415 56.025 82.080 77.510 70,795 77,650 146.080 97.890 158.360 110.700 84,970 96.030 69,180 84.800 83.365 103,925 265.780 1789 1789 1789 1789 1789 1789 1789 1789 1789 1789 1789 1789 1790 1791 1792 1796 1803 1816 1817 1818 1819 1820 1837 1848 1863 1812 1845 1836 1821 1846 1861 1867 1889 1889 1889 1890 1850 1864 1896 1890 1858 1876 1845 Ori< Original From original territory By purchase By conquest By discovery and cession Mixed Adm'd republic Territories New Mexico, Arizona Oklahoma... Indian Hawaii Alaska Populati'i 1900 195,310 122,931 398,331 392,060 154,001 63,592 Area Sq. Mi 122,580 113,020 39,030 31,400 6.4^9 590.884 Territories Porto Rico Dist. of Columbia. Colonies Cuba Philippine Isl'nds Populati'n 1900 953,243 278.718 1,572,797§ 9,000.000§ Area Sq. Mi. 3,531 70 45,884 114,361 1=:^ * Formed from other states, t Admitted without having been a terri- torv. t Annexed as a state. All the other new states, 14-45, were territories before being admitted. § 1899. §§ Estimated. GOVERNOES AND LIEUT. GOVERNORS GOVERNORS LIEUTENANT GOVERNORS George Clinton Pierre Van Cortland 1777 John Jay Stephen Van Bensselaer 1795 George Clinton Jeremiah Van Rensselaer 1801 Morgan Lewis John Broome 1804 Daniel n Tomnkins* ' j De Witt Clinton 1807 l^amel U. 1 ompkms* ^ j^^^,^ Taylor 1813 De Witt Clinton John Taylor 1817 Joseph C. Yates Erastus Root 1823 Dp Witt CliTiton+ 3 James Tallmadge 1825 De Witt Clmtont -j A^'athaniel Pitcher 1827 Martin Van BurenJ '. ..Enos T. Throop 1829 Enos T. Throop Edward P. Livingston 1881 AVm. L. Marcy John Tracy 1833 Wm. H.Seward Luther Bradish 1839 Wm. C. Bouck Daniel L. Dickinson 1843 Silas Wright Addison Gardiner 1845 John Young Hamilton Fish 1847 Hamilton Fish George W. Patterson 1849 W^ashington Hunt Sanford E. Church 1851 Horatio Seymour Sanford E. Church 1853 Myron H. Clark Henry J. Raymond 1855 John A. King Henry R. Selden .' 1857 Edwin D. Morgan Robert Campbell 1859 Horatio Seymour David R. Floyd Jones 1863 T>« >,„„ T7<^„.^r. i Thomas G. Alvord 1865 Reuben Fenton | Stewart L. Woodford. 1867 John T. Hoffman Allen C. Beach 1869 John A. Dix John C. Robinson 1873 Samuel J. Tilden. Wm. Dorsheimer :1875 Lucius Robinson Wm. Dorsheimer 1877 Alonzo B. Cornell George G. Hoskins 1880 Grover Cleveland ** David B. Hill 1883 David B. Hill Edward F. Jones 1886 David B. Hill. Edward F. Jones 1889 RoswellP. Flower Wm. F. Sheehan 1892 Levi P. Morton Charles T. Saxton 1895 Frank S. Black Timothy L. Woodruff 1897 Theodore Roosevelt Timothy L. Woodruff 1899 Benjamin B. Odell Timothy L. Woodruff 1902 * Resigned in 1817; t died in 1828; i resigned in 1829: ** resigned in 1885: in each case the lieutenant governor filled out the term. (562) NEW YORK STATE OFFICIALS. ELECTED BY THE PEOPLE Term expires. Governor. Benjamin R. Odell Dec. 31, 1902 Lieut. -Gov.. Timothy L. Woodruff " Secretary of State. John J. McDonough " Comptroller, " Treasurer, John B. Jaeckel " Attorney-General. John C. Davies -. '■ State Engineer, Edward A. Bond " APPOINTED BY GOVERNOR AND SENATE Term expires. Sup't of Insurance. Francis Hendricks. Syracuse Feb. 11, 1903 *' '' Banking, Frederick D. Kilburn. Malone Mar. 29, 1902 " •' Prisons, Cornelius V. Collins, Troy Apr. 17, 1903 •' " Public Works, Charles Spencer Boyd, Brooklyn Dec. 31, 1903^ Health officer of the Port of New York, Alvah H. Doty. $12,500. CHARITABLE AND CORRECTIONAL INSTITUTIONS. i(See Map on opposite j^age.) Prisons 8. Auburn. 12. Dannemora. 21. Sing Sing. Reformatories.— i^or Boys and Men. 25. Elmira. 17. Napanock. 22. New York (House of Refuge.) 5. Rochester Industrial School. For Women. 20. Bedford Station. 16, House of Refuge, Hudson. Institutions for the Blind. 2. Batavia. 22. New York. Institutions for Deaf-Mutes. 1. Buffalo. 22. Fordham (N. Y.). 11. Malone. 22. New York. 5. Rochester. 13. Rome. Asylums for the Fekble-Mindbd. 9. Syracuse. [Newark. 6. Custodial Asylum for Women, Asylums for the Insane. 8. Auburn (Insane Criminals). Matteawan (Insane Criminals.) Binghamton. 1. Buffalo. Middletown (Homeopathic.) Ogdensbnrg. Ovid (Willard Asylum.) Poughkeepsie. Rochester. 14. Utica, Miscellaneous. Asylum for Inebriates, Bingham 'n Soldiers' and Sailors' Home,Bath. Masonic Home, Utica. [yea. Craig Home for Epileptics, Son- (565) 566 OTHER NEW YORK OFFICERS JUDGES OF THE COURT OF APPEALS. (See pagre 2T3) The Court consists of a Chief Judge and 6 Associate Judges, who hold office 14 years. Alton B. Parker, Chief Judge 1906 John Clinton Gray, Associate 1902 Dennis O'Brien, Edward T. Bari;lett, Albert Haight, Celora E. Martin, Irving G. Vann, .1903 .1907 .1908 .1909 ,1910 Associate judges, temporarily appointed, according to constitutional amendment adopted by vote of the people, Nov. 7, 1899 (210), William E. Werner, Edgar M. Cullen. The court for the trial of impeachment of State officers is composed of the president of the senate, the senate, and the judges of the court of appeals. See page 230. INDIAN RESERVATIONS. {See Map on op})osite page) 7. Allegany. 3. Onondaga. 5. Shinnecock. 1. Tuscafora. €. Cattaraugus. 4. St. Regis. 2 Tonawanda. JUSTICES OF THE SUPREME COURT 569 SUPREME COURT OF NEW YORK. (Pp. 263-271.) With date of expiration of term of service. 1st. The city and county of New York Henry Bischoff, jr., N. Y. City.. . . 1903 George P. Andrews, N .Y. City.. .. 1912 John J. Freedman, '" 1904 James Fitzgerald, " 1912 " 1904 David Leventritt, " 1912 Henry A. Gildersleeve, " 1905 George C. Barrett.t " 1913 Geo. L. Ingraham.t '■ 1905 -lames A. O'Gorman " 1913 Leonard A. Giegerich, " 1906 Edward Patterson,t " 1914 Miles Beach, " 1907 P. Henry Dugro. " 1914 Charles H. Tru ax. " 1909 Morgan J. O'Brien, t " 1915 Charles F. MacLean, " 1909 James A. Blanchard, " 1915 Francis M. Scott, " 1911 John Proctor Clarke, " 1915 Charles H. Van Brunt,* " 1911 Samuel Greenbaum, " 1915 2d. Rich'd, Suffolk, Orange, Kings, West'r, Queens, Rock'd, Put'm, Dutchess. William J. Gaynor, Brooklyn 1907 Michael H. Hirschberg,t Newb'g.l910 Edgar M. Cullen.1i Brooklyn . . . .1908 Garret J. Garretson, Flushing. . . 1910 William D. Dickey. Brooklyn. . . .1909 Samuel T. Maddox, Brooklyn. . ..1910 Wilmot M. Smith. Patchogue ...1909 Willard Bartlett,+ Brooklyn 1911 Martin J. Keogh. New Rochelle.. 1909 Joseph T. Marean. Brooklyn 1912 Wm. W. Goodrich,* Brooklyn.... 1910 Almet F. Jenks. Brooklyn 1912 3d. Columbia, Rensselaer, Sullivan, Ulster. Albany, Greene, and Schoharie. Edgar L. Fursman, Troy 1903 Emory A. Chase,§ Catskill 1910 D. Cady Herrick.+ Albany 1905 James A. Betts 1912 Alden Chester, Albany 1909 Aaron V. S Cochrane, Hudson. . 1915 4th. Warren. Saratoga. St. Lawrence, Washington, Essex, Clinton, Frank- lin. Montgomery, Hamilton, Fulton, and Schenectady counties. S. Alonzo Kellogg t Plattsburgh.1904 Chester B. McLaughlin. i P. H'nry.l909 Leslie W.Russell, Canton 1905 Jas.W. Houghton, t Saratoga Spr.1914 Martin L. Stover, Amsterdam ... 1905 Edgar A. Spencer, Gloversville .1915 5th. Onondaga, Jefferson, Oneida. Oswego. Herkimer, and Lewis counties. Milton H. Merwin, Utica 1902 Frank H. Hiscock.t Syracuse .... 1910 Mauricfe L. Wright, Oswego 1905 Pardon C.Williams,t Watertown. 1911 Peter B. McLennan,t Syracuse. . . 1906 William S. Andrews, Syracuse. . . 1913 William E. Scripture. Rome 1909 6th. Otsego, Delaware, Madison, Chenango, Tompkins, Broome, Chemung, Schuyler, Tioga', Cortland counties. Walter Lloyd Smith, Elmira 1902 Albert H. Sewell, Walton 1914 George F. Lyon. Binghamton. ..1909 Charles E. Parker,* Owego 1915 Burr Mattice, Oneonta 1910 Gerritt A. Forbes. Canastota 1915 rth. Livingston Ontario, Wayne, Yates, Steuben, Seneca, Cayuga, Monroe. John M. Daw, Rochester 1902 Edwin A . Nash, Avon 1909 John F. Parkhurst. Bath 1908 Adelbert P. Rich, Auburn 1914 W^m. E. Werner,! Rochester 1908 Wm. H. Adams,+ Canandaigua. . 1915 James W. Dunwell, Lyons 1909 8th. Erie. Chaut.. Catt., Orleans, Niagara, Genesee, Allegany, Wyoming. Henrv A. Childs. Medina 1901 Alfred Spring.t Franklinville .... 1909 Warren B. Hooker. Buffalo 1903 John Woodward.! Jamestown . .1910 Daniel J. Kenefick. Buffalo... .1906 Truman C. White 1913 Edward W. Hatch. II Buffalo 1909 John S. Lambert. Fredonia 1913 Frank C. Laughlin.* Buffalo 1909 Frederick W. Kruse. Clean 1914 * Presiding Justice. Appellate Division. t Justice of Appellate Division. $ Justice of Appellate Division, Isf, Dep't. Ditto. 2d Dep't. § Ditto. Sd Dep't. 1 Temporarily appointed associate judge of the Court of Appeals. See p. vii. VILLAGES OF NEW YORK population by the census of 1900. Small figures of villai^esauthorizpcl to appoint a superintendent. 54 Solvay 3.493 111 So. Glens Falls.. 2.025 55 Brockport 3.398 112. Chatham 2.018 56 Depew 3.379 113 Hastin-rs-on- 57 Waklen 3.147 Hudson 2.002 58 \Vaterfordi3....3.146 114 Sprinu'ville i;992 59 Lerov 3.144 115 Sag Harbor 1,969 60 LHstershire 3.111 116 Cornwall 1.966 61 Warsaw 3.048 117 Philmont 1.964 62 Canastota 3.030 118 Whitesboro 1,958 63 Baldwinsville... 2.992 119 Silver Creek.... 1,944 64 Watkins 2.943 120 Pahnvra 1.937 65 Patchosrue 2.926 121 Oxford i;93l 66 Oswego Falls... 2.925 122 Dresden i;9l5 67 Carthage 2.895 123 Clavton 1,913 68 Uobbs Ferrv....2.8!^8 124 Tlcoudero'ga 1,911 69 Ellenville..'. 2.879 125 Horseheads 1.901 70 Goshen 2.826 126 RoukviUe Ctr. .. i;884 71 Walton 2.811 127 St. Johnsville...i;873 72 Perry 2.763 128 Greenwich i;869 73 Canton 2,7.57 129 Rosendale 1.840 74 Coxsackie 2.735 130 Cazenovia 1.819 75 Granville 2.7(H) 131 Northport 1,794 76 Frankfort 2.(:64 132 Attica 1,785 77 Freeport 2.612 133 Klniira Heights. 1.763 78 Saranac Lake. .2,594 134 Libertv 1.760 79 East Svracuse.. 2.509 135 Port Henrv 1,751 80 Civde 2..507 136 lioonville 1,745 81 Fa'irport 2.489 137 Warwick 1,735 82 Fort Plain 2.444 i:^ Norwood 1,714 83 Westfield 2.430 139 Hamburg 1,683 84 Mount Morris.. .2.410 140 Rouse's Point. ..1,675 85 Geneseo 2.400 141 Hamilton 1.627 86 Homer 2.381 142 Su (Tern :.. 1,619 87 Camden 2.370 143 Clifton Springs. 1,617 88 Coo perstown.... 2.368 144 Avon 1,601 89 East Aurora.... 2.366 144 Schuvlerville.... 1.601 90 Greeuport 2.366 144 South Nvack... .1.601 91 Lowville 2.352 147 Akron 1.585 92 Sidnev 2,331 148 Cambridse 1,578 93 Cobleskill 2.327 149 Waterville 1.571 94 Southampton... 2.289 150 Sea Clitf 1.558 95 Irvington 2.231 1.51 Xorth Olean... .1.549 96 Athens 2,171 152 Richfield 97 Babvlon 2.157 Springs 1,537 98 Gowanda.... .-..2.143 153 Croton-on-Hud- 99 Keeseville 2,110 son 1.533 100 Canajohane ....2.101 154 Phcenix 1.532 101 Addison 2.080 155 Weedsport 1,525 102 W. Haverstraw. 2.079 1-56 Alexandria Bav. 1.511 103 Delhi 2.078 157 Cuba 1.502 104 Cauisteo 2.077 158 Skaneateles 1.495 105 Cold Spring..... 2.067 159 Rhinebeck 1.4»4 106 Deposit 2,051 160 Pulaski 1.493 107 Corinth 2,039 161 Moravia 1.442 108 Amitvville 2.038 162 Middleport 1.431 109 Massena 2.032 163 Charlotte 1.400 110 Mohawk 2,028 164 Salem 1,391 * Across the river from 15. t Just east of 2. Lansingburgh is now part of the city of Troy, but its school svstem 's undisturbed. Arranged in order of show location on the map 1 Glens Fa.lls9 ... .12.613 2 Lansingburgi-i .12,595 3 Saratoga Springsio .. . 12.409 4 Peekskilli7 . 10.358 5 Port Jervis2 3.. , 9.385 6 Batavias 9.180 7 Plattsburgs .... 8.434 8 Sing Singis .... , 7,939 9 White Plains 2 1 . 7.899 10 Port Chester2 2. . 7,440 11 Tonawandai .. . 7.421 12 Oneonta2 4 . 7.147 13 Seneca FallsS ., . 6.519 14 Canandaigua* . 6.151 15 Haverstrawis.. . 5,935 15 Malone7 5.935 17 Mntteawan . 5.807 18 Norwich2 5.... . 5.766 19 Hoosick Falls 11 5.671 20 Herkimer 15 ..., . 5.555 21 CatskilUe . 5,484 22 Fulton . 5 281 23 Ilion* . 5 138 24 Owego2 7 . 5.039 25 Bath . 4.994 26 Mamaroneck.. 4 7'^2 27 Green island.. . 4.770 28 Tarrytown .... . 4.770 29 Medinat . 4,716 30 Mechanics- villei2 . 4,695 31 Penn\an5 .... . 4,650 32 Newark..^... . . 4,578 33 Albion2 ....... . 4,477 34 Sand V Hill . 4.473 35 Waverlv . 4.465 36 Whitehall 4.377 4.300 38 Nvack2 4.275 38 Waterloo 4.275 40 Salamanca 4,251 41 No. Tarrytown. 4.241 42 Fredonia 4,127 43 BallstonSpa.... 3,923 44 Potsdam 3 843 45 Lancaster 3.7.50 46 Saugerties 3.697 47 Fishkill Land- ing 3.673 48 Gouverneur 3.689 49 Dansville , 3.633 50 Hempstead 3.582 51 Wellsville , 3.5.56 52 Fort Edward... 3.521 53 Wappingers Falls 3,504 THE CITIES OF NEW YORK. Seepages 96-117. Date of Pop'nin Pop'nin Pop'nin Pop'nin Pov'n in '^ Incorpor^n 1860 1870 1880 1890 ^1900 % First Class ft^ 1. New York .. .^^.. 1.072.319*. 1.338,391*. .l,790,091t. .2.352,150t. .3,437,202. . 1 _^ Manhattan.. 1680. 805,658.. 942,292.. 1,206,299.. 1,515,301.. i;850.093.. |> I Bronx I '>00 507 I \ Brooklyn .... 1834. 266,661 . . 396,099. . 566,663. . 806,343 ' " 1 166'582" ' ^ ST"' i -^^'^ I^'IQO-- 30,506.: '152:999;: ^ i. Richmond 67 021 13 Buffalo 1832.. 81.129.. 117,714.." ■l55,134V." 255,664'. . 352 387' 2 Second Class ■< ■■ 7. Rochester 1834 . . 48,204 . 62,386 . ^ 89,366 . . 133,896 162 608 3 21. Syracuse 1847.. 28,119.. 43,051.. 51,792.. 88,143 108 374" 4 34. Albany 1686.. 62,367.. 69,422.. 90,758. 94 923 94^151 5 35. Troyi 1816.. 39,2:35.. 46,465.. 56,747.. 60,956. 73'246 6 Third Class. 26. Utica 1832.. 22,529 . 28.804.. 33,914.. 44,007 56 383 7 4. Yonkers 1872.. 11,848.. 18.357.. 18,892.. 32,833.. 47,931 8 6. Binghamton 1867.. 8,325.. 12.692.. 17.317.. 32,033.. 39 647 9 7. Elmira .1864.. 8,682.. 15,863.. 20,541.. 30,893.. 35 672 10 31. Schenectady 1798 11,026.. 13.655.. 19,902.. 31,682 11 20. Auburn 1&48.. 10,986.. 17,225.. 21.924.. 25,858.. 30,345. .12 40. Newbur^h 1865 17,014.. 18,049.. 23,087.. 24,943. .13 38. Kingrston 1872 18.344.. 21,261.. 24,535.. 14 39. Pougrhkeepsie....ia54.. 14,726.. 20,080.. 20,207.. 22,206.. 24.029.. 15 32. Cohoes 1869.. 8,800.. 15,357.. 19,416.. 22.509.. 23,910.16 11. Jamestown....... 1886 5.336.. 9,357.. 16,038.. 22,982. .17 22. Oswegro 1848.. 16,816.. 20,910.. 21,116. 21.842.. 22,199.. 18 23. Watertown.......l869.. 7,567.. 9,336.. 10.697.. 14,725.. 21.696. .19 30. Amsterdam 1885 5,426.. 9,466.. 17,336.. **21,901..20 2. Mt. Vernon.... ...1892 10,830.. 20,346. .21 5. Niagara Falls .... 1892 19.4f7..22 28. Gloversville 1890 4,518.. 7,133.. 13,864.. 18,349. .23 16. Lockport 1865 12,426.. 13,522.. 16,038.. 16,581.. 24 25. Rome 1870.. 9,289.. 11,000.. 12,194.. 14,991.. 15,343.. 25 3. New Rochelle....l899..' 9,057.. 14,720. .26' 5. Middletown 1888 6,049.. 8,494.. 11,977.. 14,522. .27 33. Watervliet.......l897 12.967.. 14,321. .28 19. Ithaca 1888 8,462.. 9,105.. 11,079 . 13,136.. 29 24. Offdensburg: 1868.. 7,409.. 10.076.. 10,341.. 11,662.. 12,638.. 30 9. Hornellsville . . . .1888 4,552.. 8,195.. 10.996.. 11,918. .31 4,518.. 12,426.. 11,000.. 7,133.. 13,522.. 12,194.. 6,049:: 8,494.. 8,462.. 10.076.. 4,552.. 4:018.: 9,105.. 10,341.. 8,195.. 7,248.. 4,802.. 8,615.. 8,676:: 12. Dunkirk 1880 7,248.. 9,416.. 11,616. .32 8. Corning 1890 4,018.. 4,802.. 8,550.. 11,061. .33 86. Rensselaer 1897 7,301.. tno,870..34 18. Geneva 1897 7,557.. 10.433. .35 27. Little Falls 1895 8,783.. 10,381. .36 29. Johnstown 1895.. 7,768.. 10,130.37 37. Hudson 1785 8,615.. 8,670.. 9,970.. 9.528. .38 10. Olean 1894 7,358.. 9,462. .39 14. No. Tonawanda..l897 4,793.. 9,069. .40 41. Cortland 1900 8,590.. 9,014. .41 Oneida 1901 6,083.. 7.738. .42 * Including: Brooklyn, t Including Brooklyn and Long Island City. X In- cluding Lansingburg, 12,595, annexed 1901. ** Including most of Rockton, 1,052 less 80, annexed 1901. +t Including Bath-on-Hudson, 2,504, and part of East Greenbush, 800, annexed 1901. NUMBER OF TOWNS AND CITIES, BY COUNTIES. [The Counties are numbered according to the map inside first cover.] TOWNS. CITIE 37. Albany 9 3 21. Allegany 29 16. Broome 15 1 22. Cattaraugus 32 1 47. Cayuga 23 1 23. Chautauqua 25 3 19. Chemung 11 1 33. Chenango 21 59. Clinton 14 14. Columbia 18. 32. Cortland 15.. 16. Delaware 19.. 11. Dutchess 20.. 24. Erie 25 58. Essex 18.. 60. Franklin 17. . 43. Fulton 10 . 48. Genesee 13.. 15. Greene 14 . 56. Hamilton 8. . 43. Herkimer ... 19. . 55. Jefferson 22.. 5. Kings* 4*. 54. Lewis. 18. 26. Livingston 17 45. Madison 14 1 51. Monroe ..19 1 42. Montgomery 10 1 2. Nassau 3 6. New York 1 49. Niagara 12 -. 3 TOWNS. CITIES ..1 ...1 .(1*) ..(1*) ...2 ■•(1*) 44. Oneida 26. 46. Onondaga 19 27. Ontario 16. 9. Orange 18 50. Orleans 10. 53. Oswego 21 34. Otsego 24 . 10. Putnam 6 3. Queens 38. Rensselaer 16 5. Richmond* 8. Rockland 5 61. St. Lawrence 31... 1 40. Saratoga 20 .36. Schenectady 5 1 35. Schoharie 16 30. Schuyler 8 29. Seneca 10 20. Steuben 32 2 1. Suffolk 10.. 13. Sullivan 15 18. Tioga 9 31. Tompkins 9 1 12. Ulster 20 1 57. Warren 11 39. Washington 17 52. Wayne 15 7. Westchester 21 3 25. Wyoming 16.-. ... 28. Yates • 9 929 42 * Now part of New York City. (575) DEPARTMENT OF PUBLIC INSTRUCTION. Superintendent, Charles R. Skinner, Albany $5,000 Deputy, Danf orth E. Ainsworth. Albany 4,500 Second Deputy, Arthur M. Wright, Albany 4,000 Heads of Sub- Departments. Law, Edwin M. Holbrook Institute. Isaac H. Stout. $4,000 Examination, Thomas E. Finegan. TVm^'g'c^a^s. Frank H. Wood. $3,500 $3,000 Library, L. O. Wi?well. $^.400 Finance, DeLancey M. Ellis, $-^,400 Compulsoi'y attendance, James D. Statistics, Hiram C. Case, $2,100 Sullivan, $3,000 Institute Conductors, each S3.000, Henry R. Sanford, Ph.D., Penn Yan Charles A. Shaver, Watertown Sherman Williams, Ph.D.. Glens Falls Irving B. Smith. A.M.. Warsaw Philip M. Hull, A.M.. Clinton Special Instructor in Drawing. In Nature Study (paid by Cornell Un.) Miss Gratia L. Rice, Buffalo, $2,200 Mrs. Mary Rogers Miller, Ithaca, $1,600 In English, Sara A. Collier, Oneonta, $1,200. In Fi'imary Work, Mae E. Schrieber, $2,000. Lecturer, Charles E. Fitch, Rochester, $2,500 Training School and Class Inspectors, each $2,500. S. Whitford Maxson. Adams Centre Willis D. Graves, Ithaca John C. Bliss, Gouverneur Albert C. Hill, Albany Compulsory Attendance Inspectors, each $2,500 A. Edson Hall, Saratoga Springs John J. N. Symes, New York Wm. J. Barr, Batavia Inspector of Normal Schools, Charles T. Andrews, Seneca Falls. PRINCIPALS OF THE STATE NORMAL SCHOOLS. As numbered on the Map on opposite page 7. Albany Normal College William J. Milne. . . .$4,000 2. Brockport C. F. McFarlane. . . . 3,000t 1. Buffalo James M. Cassety... 3,000t 11. Cortland Francis J. Cheney. .. 3.300 12. Fredonia F. B. Palmer 3,000t 3. Geneseo John M. Milne 3.300 9. Jamaica A. C. McLachlan . . . . 3,30ii 8. New Paltz Myron E. Scudder. . . 3.300 10. Oneonta Percy I. Bugbee 3.300 4. Oswego Isaac B. Poucher... 3,300 . 6. Plattsburgh Geo. W. Hawkins. . . 3,300 5. Potsdam Thos. B. Stowell ... 3,000t t Besides residence furnished by the State. REGENTS OF THE UNIVERSITY. The Governor, ex-o-fficio. The Secretary of State, ex-offido. The Lieutenant-Governor, ex-officio. The Sup't of Pub. Instruction, ex-offico. 1873. Martin I. Townsend Troy 1890. Pliny T. Sexton Palmyra 1874. Anson J. Upson Glens Falls 1890. T. Guilford Smith Buffalo 1877. Chauncey M. Depew..New York 1892. Wm. Croswell Doane... Albany 1877 Charles E. Fitch Rochester 1893. Lewis A. Stimson. . . .New York 1878. WhitelawReid New York 1895. Albert Vander Veer Albany 1881. Wm. H. Watson Utica 1897. Chester S. Lord New York 1881. Henry E. Turner Lowville 1900. Thomas Hendrick. .. Kochester 1883. St. Clair McKelway. . .Brooklyn 1901. Robert C. Pruyn Albany 1885. Daniel Beach Watkins 1902. 1888. Carroll E. Smith Syracuse OFFICERS OF THE BOARD OF REGENTS. Chancellor, Anson J. Upson. Glens Kails None Vice- Chancellor, Wm. Croswell Doane, Albany None Secretary, James Russell Parsons, Jr $5,750 D'irector''s Assistant, Henry L. Taylor ],8C0 Director of State Library, Melvil Dewey, Albany 5.750 Senior Librarian. Walter S. Briscoe 2.400 Education Lib)'a7'ian, May Seymour 2,100 Library Inspector. Wm. R. Ea.'^tiiiSin 2,400 Director of State Musewn and Geologist, F. J. H. Merrill 3 000 Palaentologist. John M. Clarke 3,000 Botanist, Charles H. Peck 2,400 Entomologist, Ephraim P. Felt 1,8' Examiner in Drawing, Ella L. Ricliardson ] .200 Head Inspector, Charles F. Wheelock 3,600 Inspectors, Charles N. Cobb. $2,720 ; Arthur G. Clement. $2,720 Charles Davidson. $2,640; E. W. Lyttle, $2,400; S. Dwight Arms, $2,400 ; Ezra J. Peck. $2,400 ; L O. (Jrissy. $1,920. Apparatus Inspectors. James H. Gibson, F. M. Baker $1,260 ^ COLLEGES ' {See Map on opposite page.) 18. Adelphi College. Brooklyn, 1896. 18. Polytechnic Institute of Brook- 21. Alfred Univ., Alfred Centre. 1857. lyn. 1869. 17 BarnardCollege, New York, 1889. 13. Rensselaer Polytechnic Institute, 1. Canisius College. Buffalo, 1883. Troy, 1824. 10. Clarkson School of Technicol- 22. St. Bonaventure's College, Alle- ogy. Potsdam. gany, 1875. 19 Colgate Univ., Hamilton. 1846. 18. St. Francis's CI.. Brooklyn, 1884. 17 College of St. Francis Xavier, 18. St. John's CI., Brooklyn, 1871. New York 1861. 17. St. John's Cl., Fordham. 1846. 17 College of the City of N. Y . 1854. 9. St. Lawrence Univ., Canton, 1856. 17. Columbia Univ., New York. 1754. 15. St. Stephen's College, Anandale, 6. Cornell University, Ithaca, 1865. 1860. ^ 20 Elmira College. Elmira,1855. 8 Syracuse Univ., Syracuse, 1870. 12 Hamilton College, Clinton, 1812. 17. Teachers' Cl.. New York, 1887. 5 Hobart CoUege.^Geneva, 1825. 11. Union Cl., Schenectady, 1795. 17. Manhattan College. N. Y., 1863. 17. New York University, 1831 2 Niagara Univ., Niagara Falls. 3. Univ. of Rochester, Rochester. 1883 1851. 17. Normal College of the City of 16. Vassar Cl., Poughkeepsie, 1861. N:ew York 1888. 7. Wells College. Aurora, 1886. (579) 580 NEW YORK STATE SENATORS SENATE. — Elected by the people. See page 229, Term expires Dec. 31, 1902. President Timothy L. Woodruff, President pro tern T. E. Ellsworth. Dist. 1. William M McKinney, 2. William Willets Cocks, 3. Thomas H. Cullen,* f 4. Arthur H. Audett, 5. James H McCabe,f 6. Rudolph C. Fuller, 7. Patrick H. McCarren,* f 8. Henry Marshall,* 9. William Schnitzspan, 10. John F. Ahearn,* f 11. Timothy D. Sullivan,* f 12. Samuel J. Foley,* \ 13. Bernard F. Martin,* f 14. Thomas F. Grady,* \ 15. Nathaniel A. Elsberg,* 16. Patrick E. Trainor,f 17. George W. Plunkitt,* f 18. Victor J. Dowling.t 19. Samuel S. Slater, 20. Thomas F. Donnelly,* f 21. Joseph P. Hennessy.f 22. Isaac M. Mills, 23. L. F. Goodsell,* 24. H. S. Ambler,* 25. W. S. C. Wiley, Bist. 26. Wm. L. Thornton,* 27. Hobart Krum,* 28. Edgar T. Brackett,* 29. James B McEwan, 30. William D. Barnes, 31. Spencer G. Prime, 32 George R. Malby,* 33. Jas. D. Feeter,* 34. G. A. Willard, 35. Elon R. BrowD,* 36. Horace White,* 37. N. N. Stranahan,* 38. George E. Green, 39. Benjamin M. Wilcox,* 40. Edwin C Stewart, 41. F. D. Sherwood.* 42. John Raines.* 43. Morton E. Lewis, 44. W. W. Armstrong.* 45. T. E. Ellsworth,* 46. L. H. Humphrey,* 47. Henry W. Hill, 48. Samuel J. Ramsperger,* f- 49. George A. Davis,* 50. Frank W. Higgins.* * Re-elected. t Democrats. All others republicans. Apportioxmext of Assembly by Counties, 1894 Broome, Cattaraugus, Cayuga, Chautauqua, Dutchess, Jeffer- son, Niagara, Orange, Oswego, St. Lawrence, Steuben, Suffolk,, ana Ulster counties have each 2 districts; Oneida, Queens, Reuse- laer, and Westchester have 3; Albany, Monroe, and Onondaga have 4; Erie has 8; Kings has 21; New York has 35. All the- other counties form one district each, except Fulton and Herkim-^ er, which form one jointly. See page 227. Speaker of Assembly of 1902. ..S. Frederick Nixon, Chautauqua. XEW YORK REPRESENTATIVES IN THE 57TH CONGRESS. Term begins March 4, 1901 ; ends March 3, 1903. (For Districts, see map on opposite page.) Dist. Dut. 1. F. Storm 18^ John Henry Ketcham,f X 2. John J. Fitzgerald, f 19. W. H. Draper, 5. Henry Bristow, 20 G. N. South wick, 4. H. A Hanbury, 21. JohnK. Stewart,! 5. Frank F. Wilson, f 32. Lucius N. Littauer, f X 6. G. Lindsay, 23. Louis W. Emerson, f 7. 24. Chas. L. Knapp, 8. T. J. Creamer, 25. James S. Sherman,^f :{: 9. H. M Goldfogle,f 26. George W. Ray,* f X 10. Amos J. Cummings,* f % 27. Michael E. Driscoll, f 11. William Sulzer,* ft 28. SerenoE. Payne,* ft 12. Geo. B. McClellan,*ft 29. Charles W. Gillet,*ft 13. 0. H. P Belmont, 30. James W. Wadsworth,*f X 14. W. H Douglas, 31. J. B Perkins, 15. Jacob Ruppert, jr.,f 32 J. W. Ryan, 16. C A. Pugsley, 33. Col. D. S. Alexander, \X 17. A. S. Tompkins, f 34. E. B. Vreeland.f * Served in 54tb Congress. X Served in 55th Congress. t Served in 56th Congress. NEW YORK SENATORS IN THE 57TH CONGRESS. (See list on page 461.) Thomas C. Piatt. Chauncey M. Depew. President pro tern, of the Senate, William C. Frye, of Maine (583) NOTE The Xew York members of the present (5Tth) congress are elected by tlie congressional districts as laid out in 1892 (page 582). Those in the 58th congress will be elected by the districts on the ())i]V)site page. (584) UNITED STATES SUPREME COURT 587 CHIEF JUSTICES OF THE SUPREME COURT. 1. John Jay, of New York 1789-1795. 2. John Rutledge, of South Carolina 1795. 3. Oliver Ellsworth, of Connecticut 1796-1800. 4. John Marshall, of Virginia 1800-1835. 5. Roger B. Taney, of Maryland 1836-1864. 6. Salmon P. Chase, of Ohio 1864-1 873. 7. Morrison R. Waite, of Ohio 1874-1888. 8. Melville W. Fuller, of Illinois 1888- UNITED STATES SUPREME COURT. (See pp. .) CHIEF JUSTICE. Melville W. Fuller appointed 1888. ASSOCIft.TE JUSTICES. John M. Harlan appointed 1877. Horace Gray " 1881. David J. Brewer " 1889. Henry B. Brown " 1890. George Shiras, jr " 1892. Edward Douglas White " 1894. Rufus W. Peckham '' 1895. Joseph McKenna " 1897. UNITED STATES COURTS. (See pages 278-281.) New York is in the 2d Circuit, comprising also Connecticut and Vermont. The New York judges of the circuit court are Wil- liam .1. Wallace, E. Henry Lacombe; of the district courts, John R. Hazel, Buffalo; Alfred C. Coxe, Utica; Geo. Bethnus Adams, New York; and Edward B. Thomas, Brooklyn. , Her United States district attorneys are Charles H. Brown, Buffalo; Geo. B. Curtiss, Binghamton; Henry L. Burnett, New York; George H. Pettit, Brooklvn. PRESIDENTIAL VOTE, FEOM 1789 TO DATE. m CANDIDATES. 1805 1809 1817 1821 1825 1789 George Washington 1797 John Adams |Thomas Jefferson 1801 Thomas Jefferson Aaron Burr John Adams , Thomas Jefferson C. C. Pinekney James Madison JC.C. Pinekney 1813 James Madison De Witt Clinton James Monroe Ruf us King James Monroe J. Q. Adams Andrew Jackson W. H. Crawford Henry Clay Andrew Jackson J. Q. Adams Andrew Jackson Henry Clay John Floyd William West Martin Ya-ii Buren William H. Hai-rison William H. Harrison Martin Van Buren James K. Polk Henry Clay Zachary Taylor Lewis Cass Martin Van Buren Franklin Pierce Winfield Scott and others James Buchanan John C. Fremont and others.. Abraham Lincoln J. C. Breckenridge and others. Abraham Lincoln Geo. B. McClellan Ulysses S. Grant Horatio Seymour Ulysses S. Grant Horace Greeley 1837 1841 1845 1849 1853 1857 1861 1865 1873 Fed... Dem. . Dem. . Dem. . Fed... Dem. . Fed. . Dem. . Fed. . . Dem. . Fed... Dem. . Fed... Dem. . Fed... Dem. . Dem. . Whig . Dem. . Fed... Dem. . Whig . Whig. Whig . Dem. . Whig . Whig . Dem. . Dem. . Whig . Whig. Dem. . Dem. . Dem. . Whig . Dem. . Rep. .. Rep. . . Dem. . Rep. . . Dem. . Rep. . . Dem. . Rep. . . L.&D. Popular Vote. Elec- tors. Elec. chosen by Legislature. jUuaa Election went to H. of R. and Jefferson was elected on the 86th ballot. Elec. chosen by Legislature But 1 electoral vote in op. . . 105.321. Elec. by H. of R, 155.8?2 44.282 46.587 647.2:31 509.097 687.502 5:30.189 Not known 761. S49. . 730,656. . 1.275.011. . 1.135,761.. 1.337.243. . 1,361.362. . 1.360.099.. 1.220.544.. 291.263. . 1.601.474. . l..>42,403... 1.838.169. . 2.215,798... 1.866.352... 2.810.501. . . 2,216,067. . . 1,808,725. . . 3.015.071. - . 2,709,613. - . :3.507.070. . . 2,834,079. . 73 73 65 148 28 122 47 128 89 183 34 41 37 178 83 219 49 11 7 170 121 170 105 163 127 254 42 174 122 180 123 213 21 214 THE president's CABINET 589 5 ^ , CANDIDATES. 2|! 1 PopuLAK Vote. Elbo- TORS. 1877 Rutherford B. Hayes Rep.... Dem. . . G'b'k... Rep . . . Dem.. . G'b'k... Dem. . . Rep .... G'b'k. . Pro.. .. Rep.... Dem.. . Pro.. .. Dem . . . Rep.... Peop. . . Pro Rep.... Dem . . . N. Dem Pro.. .. Soc.L.. Nat.... Rep 4,049,096 185 Samuel J. Tilden. 4,315,801. 184 Peter Cooper 81,907 1881 James A. Garfield 4,450,921.... 214 Winfleld S. Hancock 4,447,888 155* J. B. Weaver 307,740 5.874,118 1885 Grover Cleveland 219 James G. Blaine 4,849,850 182 Benjamin F. Butler 184,948 149,.i26 John P. St. John 1889 Benjamin Harrison 5,439,853 233 Grover Cleveland 5,540,329 168 Clinton B. Fisk 249,506 151,344... . .. Scattering 1893 Grover Cleveland 5,556,562 277 Benjamin Harrison 5,162,874 145 James B. Weaver JohnBidwell 1897 William McKinley William J. Bryan John M. Palmer Joshua Levering (Charles H. Matchett 1 Charles E. Bentley 1901 (William McKinley William J. Bryan 1.055,424 264,066 7,121,342 6,502.600 134,731 123,428 35,306 13,535 22 271 176 292 Dem.... 155 * Including Georgia's votes, not counted. Note.— The one vote in 1821 was cast for John Quincy Adams by ac ©lector from New Hampshire. PRESIDENT Roosevelt's cabinet (See pp. 390-427.) Secretary of State John Hay, Ohio. Secretary of Treasury. ... Leslie M. Shaw, Iowa. Secretary of War Elihu Root, New York Secretary of Navy John D. Long, Mass, Secretary of Interior Ethan Allen Hitchcock, Mo. Postmaster General Henry C. Payne, Wis. Attorney General Philander C. Knox, Pa. Secretary of Agriculture . James Wilson, Iowa. d DECLARATION OF INDEPENDENCE In Congress, July 4, 1776 THE unaxi:mous declaration of the thirteen united states OF AMERICA When, in the course of human events, it becomes necessary for one people to dissolve the political bands ^vhich have connected them with another, and to assume, among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inialienable rights, that among these are life, liberty and the pur- suit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the con- sent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government; laying its foundation on such principles, and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate, that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute depotism, it is their light, it is their duty, to throw off such government, and to provide new guards for their future security. Such has been the patient sufferance of these (591) 592 DECLAEATION OF INDEPENDENCE colonies, and such is now the necessity which constrains them to alter their former systems of government. The history of the present king of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world. He has refused his assent to laws, the most wholesome and necessary for the public good. He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended he has utterly neglected to attend to them. He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them, and formidable to tyrants only. He has called together legislative bodies at places unusual, imcomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance vdth his measures. He has dissolved representative houses repeatedly, for oppos- ing with manly firmness his invasions on the rights of the people. He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exer- cise ; the state remaining, in the meantime, exposed to all the dangers of invasion from without, and convulsions within. He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of for- eigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands. He has obstructed the administration of justice by refusing his assent to laws for establishing judiciary powers. He has made judges dependent on his will alone, for the tenure of their offices; and the amount and payment of their salaries. He has erected a multitude of new offices, and sent hither swarms of officers to harass om- people, and eat out their sub- stance. DECLARATION OF INDEPENDENCE 593 He has kept among us, in times of peace, standing armies, without the consent of our legislatures. He has affected to render the military independent of and su- perior to the civil power. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation: For quartering large bodies of armed troops among us: For protecting them, by a mock trial, from punishment for any murders which they should commit on the inhabitants of these states: For cutting off our trade with all parts of the world: For imposing taxes on us without our consent: For depriving us, in many cases, of the benefits of trial by jury: For transporting us beyond seas to be tried for pretended of- fences: For abolishing the free system of English laws in a neighbor- ing province, establishing therein an arbitrary government, and enlarging its boundaries, so as to render it at once an example and fit instrument for introducing the same absolute rule into these colonies: For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments: For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever. He has abdicated government here, by declaring us out of his protection, and waging war against us. He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people. He is, at this time, transporting large armies of foreign mer- cenaries to complete the works of death, desolation and tyranny, already begun, with circumstances of cruelty and perfidy, scarcely parallelled in the most barbarous ages, and totally un- worthy the head of a civilized nation. He has constrained our fellow citizens, taken captive on the high seas, to bear arms against their country, to become the exe- cutioners of their friends and brethren, or to fall themselves by their hands. 694: DECLARATION OF INDEPENDENCE He has excited domestic insurrections amongst us, and lias endeavored to bring on the inhabitants of our frontiers the merci- less Indian savages, whose known rule of warfare is an undistin- guished destruction of all ages, sexes and conditions. In every stage of these oppressions we have petitioned for redress in the most humble terms; our repeated petitions have been answered only by repeated injury. A prince whose charac- ter is thus marked by every act which may define a t}Tant, is imfit to be the ruler of a free people. Nor have we been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. TTe have reminded them of the circumstances of our emigration and settlement here. AYe have appealed to their native justice and magnanimity, and we have conjured them by the ties of our com- mon kindred to disavow these usurpations, which would inevit- ably inten-upt our connections and correspondence. They too have been deaf to the voice of justice and consanguinity. AVe must, therefore, acquiesce in the necessity which denounces oui- separation, and hold them, as we hold the rest of mankind, enemies in war, in peace friends. We, therefore, the representatives of the United States of America, in general congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by authority of the good people of these colonies, solemnly publish and declare, that these United Colonies are, and of right ought to he, free and independent states; that the}* are absolved from all allegiance to the British crown, and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and tlmtasfreeandindejx'n- dent states, they have full power to leA'y war. conclude peace, contract aliances, establish commerce, and to do all other acts and things which independen t states may of right do. And for the sup- port of this declaration, with a firm reliance on the protection of Divine Providence, M'e mutually pledge to each other our lives, our fortunes, and our sacred honor. JoHX Ha:xcoctv. and 54 other siirners. ARTICLES OF CONFEDERATION AND PERPETUAL UNION BETWEEN THE STATES (1776-78) Article I. — The style of this confederacy shall be, "The United States of America" (1).* Art. II. — Each state retains its sovereignty, freedom, and in- dependence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States in congress assembled (93). Aut. III. — The said states hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general wel- fare, binding themselves to assist each other against all force of- fered to or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence wdiatever (1). Art. IV. — The better to secure and perpetuate mutual friend- ship and intercourse among the people of the different states in this union, the free inhabitants of each of these states — paupers, vagabonds, and fugitives from justice, excepted — shall be en- titled to all privileges and immunities of free citizens in the several states; and the people of each state shall have free ingress and regress to and from uny other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, im- positions, and restrictions as the inhabitants thereof respectively; provided that such restriction shall not extend so far as to pre- vent the removal of property, imported into any state, to any other state of which the owner is an inhabitant; provided also that no imposition, duties, or restriction shall be laid by any state on the property of the United States, or either of them (73, 52). If any person be guilty of or charged with treason, felony, or other high misdemeanor, in any state, shall flee from justice, and be foun^ in any of the United States, he shall, upon demand of * Figures at the end of the paragraphs refer to corresponding para- graphs of the national constitution. (595) - 596 ARTICLES OF CONFEDERATION the governor or executive power of the state from which he fled, be dehvered up and removed to the state having jurisdiction of his offence (74). Full faith and credit shall be given in each of these states to the records, acts, and judicial proceedings of the courts and magistrates of every other state (72). Art, V. — For the more convenient management of the general interest of the United States, delegates shall be annually ap- pointed in such manner as the legislature of each state shall di- rect, to meet in congress on the 1st Monday in November in every year, with a power reserved to each state to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year (2, 16). No state shall be represented in congress by less than 2 nor by more than 7 members; and no person shall be capable of being a delegate for more than 3 years in any tenn of 6 years; nor shall any person, being a delegate, be capable of holding any office under the United States, for w^hich he, or another for his benefit, receives any salary, fees, or emolument of any kind (3-20). Each state shall maintain its own delegates in a meeting of the states, and while they act as members of the committee of the states (21). In determining questions in the United States in congress as- sembled, each state shall have one vote (17). Freedom of speech and debate in congress shall not be im- peached or questioned in any court, or place out of congress; and the members of congress shall be protected in their persons from arrests and imprisonments during the time of their going to and from, and attendance on, congress, except for treason, felony, or breach of the peace (21). Art. VI. — No state, without the consent of the United States in congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty with, any king, prince, or state; nor shall any person holding any office of profit or trust imder the United States, or any of them, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state; ARTICLES OF CONFEDERATION 597 nor shall the United States in congress assembled, or any of them, grant any title of nobility (51, 50, 28). No two or more states shall enter into any treaty, confedera- tion, or alliance whatever between them, without the consent of the United States in congress assembled; specifying accurately the purposes for which the same is to be entered into, and how long it shall continue (51). No state shall lay any imposts or duties which may interfere with any stipulations in treaties entered into by the United States in congress assembled, with any king, prince, or state, in pursuance of any treaties already proposed by congress to the courts of France and Spain (52). No vessels-of-war shall be kept up in time of peace by any state, except such number only as shall be deemed necessary, by the United States in congress assembled, for the defence of such state or its trade; nor shall any body of forces be kept up by any state in time of peace, except such number only as, in the judg- ment of the United States in congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such state ; but every state shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use in public stores a due number of field-pieces and tents, and a proper quantity of arms, ammunition, and camp equipage (52, 41). No state shall engage in any war without the consent of the United States in congress assembled, unless such state be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such state, and the danger is so imminent as not to admit of a delay till the United States in congress assembled can be consulted; nor shall any state grant coromissions to any ships or vessels of war, nor let- ters of marque or reprisal, except it be after a declaration of war by the United States in congress assembled, and then only against the kingdom or state, and the subjects thereof, against which war has been so declared, and under such regulations as shall be es- tablished by the United States in congress assembled, unless such state be infested by pirates; in which case vessels-of-war may be fitted out for that occasion, and kept so long as the danger shall 598 ARTICLES OF -CONFEDERATION continue, or until the United States in congress assembled shall determine otherwise (52, 51). Art. VII — When land-forces are raised by any state for the common defence, all officers of or imder the rank of colonel shall be appointed by the legislature of each state respectively by whom such forces shall be raised, or in such manner as such state shall direct; and all vacancies shall be filled up by the state which first made the appointment (41). Art. YIII. — All charges of war, arid all other expenses that shall be incuiTed for the common defence or general welfare, and allowed Iby the United States in congress assembled, shall be defrayed out of a common freasur}^ which shall be supplied by the several states in proportion to the value of all lands within eacji state, granted to or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated, according to such mode as the United States in congress assem- bled shall from time to time direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several states within the time agreed upon by the United States in congress assembled (26). Art. IX. — The United States in congress assembled shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the 6th Article; of send- ing and receiving ambassadors, entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exf)ortation or importa- tion of any species of goods or commodities whatsoever; of es- tablishing rules for deciding in all cases what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated; of granting letters of marque and reprisal in times of peace, appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for ' receiving and determining finally appeals in all cases of captures, provided that no member of congress shall be appointed a judge of any of the said courts (36, 64, 62, 36, 35, 22). ARTICLES OF CONFEDERATION 599 The United States in congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more states concern- ing boundary, jurisdiction, or any other cause whatever; which authority shall always be exercised in the manner following: Whenever the legislative or executive authority or lawful agent of any state, in controversy with another, shall present a petition to congress, stating the matter in question, and praying for a hear- ing, notice thereof shall be given b}' order of congress to the legis- lative or executive authority of the other state in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and de- termining the matter in question: but, if they can not agree, con- gress shall name 3 persons out of each of the United States; and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be re- duced to 13: and from that number not less than 7 nor more than 9 names, as congress shall direct, shall in the presence of congress be drawn out by lot; and the persons whose names shall be so drawn, or any 5 of them, shall be commissioners or judges to hear and finally determine;^ the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determin- ation: and if either party shall neglect to attend at the day appointed, v/ithout showing reasons which congress shall judge sufficient, or, being present, shall refuse to strike, the congress shall proceed to nominate 3 persons out of each state, and the secretary of congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court, to be appointed in the manner before prescribed, shall be final and con- clusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence or judgment, which shall in like manner be final and decisive, — the judgment or sentence and other proceedings being in either case transmitted to congress, and lodged among the acts of congress for the security of the parties concerned: provided that every comrnissioner, before he sits in judgment, shall take an oath, to m 600 ARTICLES OF CONFEDERATION be administered by one of the judges of the supreme or superior court of the state where the cause shall be tried, ' ' well and truly to hear and determine the matter in question, according to the best of his judgment, without favor, affection, or hope of reward": provided also that no state shall be deprived of terri- tory for the benefit of the United States (67). All controversies concerning the private right of soil claimed under different grants of two or more states, whose jurisdictions as they may respect such lands, and the states which passed such grants, are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such set- tlement of jurisdiction, shall, on the petition of either party to the congress of the United States, be finally idetermined, as near as may be, in the same manner as is before prescribed for decid- ing disputes respecting territorial jurisdiction between different states (67). The United States in congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective states; fixing the standard of weights and measures throughout the United States; regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated; establishing and regulating post-offices from one state to another throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office; appointing all officers of the land-forces in the service of the United States, excepting regimental officers; appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States; making rules for the government and regulation of the said land and naval forces, and directing their operations (30, 28, 32, 37, 62, 39). The United States in congress assembled shall have authority to appoint a committee, to sit in the recess of congress, to be denominated "A committee of the states", and to consist of 1 delegate from each state ; and to appoint such other committees and civil officers as may be necessary for managing the general ARTICLES OF CONFEDERATION 601 affairs of tlie United States under their direction; to appoint one of their number to preside, provided that no person be allowed to serve in the office of president more than 1 j^ear in any term of 3 years; to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses; to borrow money, or emit bills on the credit of the United States, transmitting every half-year to the respective states an account of the sums of money so borrowed or emitted; to build and equip a navy; to agree up- on the number of land forces, and to make requisitions from each state for its quota, in proportion to the number of white inhabi- tants in such state; which requisition shall be binding; and there- upon the legislature of each state shall appoint the regimental officers, raise the men, and clothe, arm, and equip them in a soldier- like manner, at the expense of the United States; and the officers and men so clothed, armed, and equipped shall march to the place appointed and within the time agreed on by the United States in congress assembled: But if the United States in congress assem- bled shall, on consideration of circumstances, judge proper that any state should not raise men, or should raise a smaller number than its quota, and that any other state should raise a greater number of men than the quota thereof, such extra number shall be raised, officered, clothed, armed, and equipped in the same manner as the quota of such state,- unless the legislature of such state shall judge that such extra number cannot be safely spared out of the same; in which case they shall raise, officer, clothe, arm, and equip as many of such extra number as they judge can be safely spared; and the officers and men so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on by the United States in congress assembled (53, 64, 26, 27, 38, 37, 41). The United States in congress assembled shall never engage in a war; nor grant letters of marque and reprisal in time of peace; nor enter into any treaties or alliances; nor coin money, nor regulate the value thereof; nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them; nor emit bills, nor borrow money on the credit of the United States; nor appropriate money ; nor agree upon the number of 602 ARTICLES OF CONFEDERATION vessels-of-Tvar to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander-in-chief of the army or navy, unless 9 states assent to the same: nor shall a ques- tion on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States in congress assembled (83, 36, 62, 30, 26, 27, 38, 37, 61, 43, 17). The congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of 6 months, and shall publish the journal of their proceedings monthly, except such parts thereof, relating to treaties, alliances, or military operations, as in their judgment re- quire secrecy; and the yeas and nays of the delegates of each state on any question shall be entered on the journal, when it is desired by any delegate; and the delegates of a state, or any of them, at his or their request, shall be furnished with a transcript of the said journal, except such parts as are above excepted, to lay before the legislatures of the several states (20, 19). Art. X. — The committee of the states, or any 9 of them, shall be authorized to execute, in the recess of congress, such of the powers of congress as the United States in congress assembled, by the consent of 9 states, shall from time to time think expedient to vest them with; provided that no power be delegated to the said committee, for the exercise of which, by the articles of con- federation, the voice of 9 states in the congress of the United States assembled is requisite (53-64, 83). Art. XL — Canada, acceding to this confederation, and join- ing in the measures of the United States, shall be admitted into, and entitled to all the advantages of, this union: but no other colony shall be admitted into the same, unless such admission be agreed to by 9 states (76). Art. XII. — All bills of credit emitted, moneys borrowed, and debts contracted, by or under the authority of congress before the assembling of the United States, in pursuance of the present confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said ARTICLES OF CONFEDERATION 603 United States and the public faith are hereby solemnly pledged (80). Art. XIII. — Every state shall abide by the determinations of the United States in congress assembled, on all questions which, by this confederation, are submitted to them. And the articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the United States, and be afterwards confirmed by the legislatures of every state (79). Aful ichereas it hath pleased the great Governor of the world to incline the hearts of the legislatures we respectively represent in congress to approve of, and to authorize us to ratify, the said articles of confederation and perpetual union, KXOW YE, that we, the undersigned delegates, by virtue of the power and author- ity to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and. entirely ratify and confirm each and every of the said articles of confederation and perpetual union, and all and singular the mat- ters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in congress assembled oja all questions which b}-- the said confeder- ation are submitted to them; and that the articles thereof shall be inviolably observed by the states we respectively represent, and that the union shall be perpetual. In witness whereof, we, have hereunto set our hands in congress. Done at Philadelphia, in the state of Pennsylvania, the 9th day of July, in the year of our Lord 1778, and in the 3d year of the Independence of America (83). OEDINANCE OF 1787 BE IT ORDAINED by the United States in congress assembled (77),* That the said territory, foi- the purposes of temporary gov- ernment, be one district; subject, however, to be divided into two districts, as future circumstances may in the opinion of congress, make it expedient. Be it ordained by the authority aforesaid. That the estates, both of resident and non-resident proprietors in the said territory, dying intestate, shall descend to, and be distributed among their children, and the descendants of a deceased child in equal parts; the descendants of a deceased child or grandchild, to take the share of their deceased parent in equal parts among them: And where there shall be no children or descendants, then in equal parts to the next of kin, in equal degree; and among collaterals, the children ^f a deceased brother or sister of the intestate, shall have in equal parts among them, their deceased parents' share;' and there shall in no case be a distinction between kindred of the whole and half blood; saving in all cases to the widow of the intestate, her third part of the real estate for life, and one-third part of the personal estate; and this law relative to descents and dower, shall remain in full force until altered by the legislatm'e of the district. — And until the governor and judges shall adopt laws as hereinafter mentioned, estates in the said teiTitory may be devised or bequeathed by wills in writing, signed and sealed by him or her, in whom the estate may be (being of full age) and attested by 3 witnesses; — and real estates may be conveyed by lease and release, or bargain and sale, signed, sealed, and deliv- ered by the person being of full age, in whom the estate may be, and attested by 2 witnesses, provided such wills be du\j proved, and such conveyances be acknowledged, or the execution thereof * The reference numerals refer to corresponding provisions in the national constitution. (604) ORDINANCE OF 1787 605 duly proved, and be recorded within 1 year after proper magis- trates, courts, and registers shall be appointed for that purpose ; and personal property may be transferred by delivery; saving, however, to the French and Canadian inabitants, and other set- tlers of the Kaskaskies, Saint Vincent's, and the neighboring villages, who have heretofore professed themselves citizens of Virginia, their laws and customs now in force among them, relative to the descent and conveyance of property. Be it ordained by the authority aforesaid, That there shall be appointed from time to time, by congress, a governor, whose commission shall continue in force for the term of 3 years, unless sooner revoked by congress, he shall reside in the district, and have a freehold estate therein, in 1,000 acres of land while in the exercise of his office (53). There shall be appointed from time to time, by congress, a secre- tary, whose commission shall continue in force for 4 years, unless sooner revoked; he shall reside in the district, and have a freehold estate therein, in 500 acres of land, while in the exercise of his office; it shall be his duty to keep and preserve the acts and laws passed by the legislature, and the public records of the district, and the proceedings of the governor in his executive department; and transmit authentic copies of such acts and proceedings, every 6 months, to the secretary of congress: There shall also be ap- pointed a court to consist of 3 judges, any 2 of whom to form a court, who shall have a common law jurisdiction, and reside in the district, and have each therein a freehold estate in 500 acres of land, Avhile in the exercise of their offices; and their commis- sions shall continue in force during good behavior (66). The governor and judges, or a majority of them, shall adopt and publish in the district, such laws of the original states, criminal and civil, as may be necessary, and best suited to the circumstances of the district, and report them to congress, from time to time; which laws shall be in force in the district until the organization of the general assembly therein, unless disapproved of by congress; but afterwards the legislature shall have author ity to alter them as they shall think fit. The governor for the time being, shall be commander-in-chiei of the militia, appoint and commission all officers in the same, 606 ORDINANCE OF 1787 below the rank of general officers; all general officers shall be appointed and commissioned b}^ congress (41). Previous to the organization of the general assembly, the gov- ernor shall appoint such magistrates and other civil officers, in each county or township, as he shall find necessary for the pres- ervation of the peace and good order in the same: After the gen- eral assembly shall be organized, the powers and duties of magis- trates and other civil officers shall be regulated and defined by the said assembly; but all magistrates and other civil officers, not herein otherwise directed, shall, during the continuance of this temporary government, be appointed by the governor. For the prevention of crimes and injuries, the laws to be adopted or made shall have force in all parts of the district, and for the execution of process, criminal and civil, the governor shall make proper divisions thereof — and he shall proceed from time to time, as circumstances may require, to lay out the parts of the district in which the Indian titles shall have been extin- guished into counties and townships, subject, however, to such alterations as may thereafter be made by the legislature. So soon as there shall be 5,000 free male inhabitants, of full age, in the district, upon giving proof thereof to the governor, they shall receive authority, with time and place, to elect representa- tives from their counties or townships, to represent them in the gen- eral assembly; provided that for every 500 free male inhabitants, there shall be 1 representative, and so on progressively with the number of free male inhabitants shall the right of representation increase, until the number of representatives shall amount to 25; after which the number and proportion of representatives shall be regulated bj' the legislature: i3rovided that no person be elig- ible or qualified to act as a representative, unless he shall have been a citizen of one of the United States 3"5^ears, and be a resi- dent in the district, or unless he shall have resided in the district 3 years; and in either case shall likewise hold in his own right, in fee simple, 200 acres of land within the same; provided also, that a freehold in 50 acres of land in the district, having been a citi- zen of one of the states, and being resident in the district, or the like freehold and 2 years residence in the district shall be neces- sary to qualify a man as an elector of a representative (4). ORDINANCE OF 1787 607 The representatives thus elected, shall serve for the terra of 2 years (3); and in case of the death of a representative, or removal from office, the governm- shall issue a writ to the county or town- ship, for w^liich he was a member, to elect another in his stead, to serve for the residue of the term. The general assembly, or legislature, shall consist of the gov- ernor, legislative council, and a house of representatives (2). The legislative council shall consist of 5 members, to continue in office 5 years, unless sooner removed by congress; any 3 of w^hom to be a quorum: and the members of the council shall be nomin- ated and appointed in the following manner, to wit: As soon as representatives shall be elected, the governor shall appoint a time and place for them to meet together, and, when met, they shall nominate 10 persons, residents in the district, and each possessed of a freehold in 500 acres of land, and return their names to con- gress; 5 of whom congress shall appoint and commission to serve as aforesaid; and w^henever a vacancy shall happen in the coun- cil, by death or removal from office, the house of representatives shall nominate 2 persons, qualified as aforesaid, for each .vacancy, and return their names to congress; one of whom congress shall appoint and commission for the residue of the term. And every 5 years, 4 montl^s at least before the expiration of the time of service of the members of council, the said house shall nominate 10 persons, qualified as aforesaid, and return their names to con- gress; 5 of whom congress shall appoint and commission to serve as members of the council 5 years, unless sooner removed (8). And the governor, legislative council, and house of representa- tives, shall have authority to make laws, in all cases, for the good government of the district, not repugnant to the principles and articles in this ordinance established and declared. And all bills having passed by a majority in the house, and by a majority in the council, shall be referred to the governor for his assent; but no bill or legislative act whatever, shall be of any force without his assent (24). The governor shall have power to convene, pro- rogue and dissolve the general assembly, when in his opinion it shall be expedient (64). The governor, judges, legislative council, secretary, and such other officers as congress shall appoint in the district, shall take 608 ORDINANCE OF 1787 an oath or affirmation of fidelity, and of office; the governor before the president of congress, and all other officers before the governor (82). As soon as a legislature shall be formed in the district, the council and house assembled, in one room, shall have authority, by joint ballot, to elect a delegate to congress, who shall have a seat in congress, with a right of debating, but not of voting during this temporary government. And for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions are erected; to fix and extablish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory: to provide also for the establishment of states, and permanent gov- ernment therein, and for their admission to a share in the federal councils on an equal footing with the original states, at as early periods as may be consistent with the general interest (76, 77): It is hereby ordained and declared, by the authority aforesaid. That the following articles shall be considered as articles of com- pact between the original states, and the people and states in the said territory, and forever remain unalterable, unless by common consent, to wit (1): 1. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of wor- ship or religious sentiments, in the said territory (84). 2. The inhabitants of the said territory, shall always be entitled to the benefits of the writ of habeas corpus (45), and of the trial by jury (89, 90); of a proportionate representation of the people in the legislature (5), and of judicial proceedings accbrding to the course of the common law (90). All persons shall be bailable (91), unless for capital offences, where the proof shall be evident, or the presumption great. All tines shall be moderate (91); and no cruel or unusual punishments shall be inflicted (91). No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land (89), and should the public exigencies make it necessary, for the common preservation, to take any person's property (88), or to demand his particular ser- vices, full compensation shall be made for the same. And in the just preservation of rights and property, it is understood and ORDINANCE OF 1787 609 declared, that no law ought ever to be made, or have force in the said territory, that shall in any manner whatever interfere with, or affect private contracts or engagements, bona fide, and with- out fraud previously formed (51). 3. Religion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their con- sent; and in their property, rights and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them (28). 4. The said territory, and the states which may be formed therein, shall forever remain a part of this confederacy of the United States of America, subject to the articles of confederation, and to such alterations therein, as shall be constitutionally made; and to all the acts and ordinances of the United States in con- gress assembled, conformable thereto. The inhabitants and set- tlers in the said territory, shall be subject to pay a part of the federal debts, Contracted or to be contracted, and a proportional part of the expenses of government, to be apportioned on them by congress, according to the same common rule and measure, by which apportionments thereof shall be made on the other states; and the taxes for paying their proportion, shall be laid and levied by the authority and direction of the legislatures of the district or districts or new states, as in the original states, within the time agreed upon by the United States in congress assembled. The legislatures of those districts or new states, shall never interfere with the primary disposal of the soil by the United States in con- gress assembled, nor with any regulations congress may find necessary for securing the title in such soil to the bona fide pur- casers (77). No tax shall be imposed on lands the property of the United States; and in no case shall non-resident proprietors be taxed higher than residents. The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to 610 ORDINANCE OF 1787 the iiiliabitants of the said territory, as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or dutj" there- for (48). 5. There shall he formed in the said territory, not less than 3, nor more than 5 states; and the boundaries of the states, as soon as Yirginia shall alter her act of cession, and consent to the same, shall become fixed and established as follows, to wit: The west- ern state in the said territor}', shall be bounded hy the ]\Iississippi, the Ohio and Wabash rivers; a direct line drawn from the Wabash and Post Vincents due north to the territonal line between the United Sifates and Canada; and by the said territorial line to the lake of the Woods and Mississippi. The middle state shall be bounded by the said direct line, the Wabash from Post Vincents to the Ohio; by the Ohio, by a direct line drawn due north from the mouth of the Great Miami, to the said territorial line, and by the said territorial line. The eastern state shall be bounded by the last mentioned direct line, the Ohio, Pennsylvania, and the said territorial line: provided, however, and it is further understood and declared, that the boimdaries of these 3 states, shall be sub- ject so far to be altered, that if congress shall hereafter find it expedient, they shall have authority to form 1 or 2 states in tliat part of the said territory which lies north of an east and west line drawn through the southerl}^ bend or extreme of lake 3Iichi- gan. And whenever any of the said states, shall have 60,000 free inhabitants therein, such state shall be admitted, by its delegates, into the congress of the United States, on an equal footing Avith the original states, in all respects whatever; and shall be at liberty to form a permanent constitution and state government (76): provided the constitution and government so to be formed, shall be repub- lican (78), and in conformity to the principles contained in these articles; and so far as it can be consistent with the general inter- est of the confederacj'-, such admission shall be allowed at an earlier period, and when there may be a less number of free in- habitants in the state than 60,000. 6. There shall be neither slavery nor involuntary servitude in the said territory (98), otherwise than in the punishment of crimes, whereof the party shall have been duly convicted: pro- ORDINANCE OF 1787 611 viclecl always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original states, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid (75), Be it ordained by the authority aforesaid, That the resolutions of the 23d of April, 1784, relative to the subject of this ordinance, be, and the same are hereby repealed and declared null and void. THE CONSTITUTION OF THE UNITED STATES OF AMERICA Note.— The paragraphs are marked b\- the numbers by which they are referred to throughout the book. The numbers in parentheses refer to cor- responding paragraphs in the constitution of the state of New York or in this constitution. Preamble 1 We the people of the United States, in order to form a more (111) perfect union, establish justice, insure domestic tranquillity, pro- vide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America. ARTICLE I— Legislative Secttox 1 — Congress 2 1. All legislative powers herein granted shall be vested in a (130) congress of the United States, which shall consist of a senate and house of representatives. Section 2. — House of representatives 3 1. Election — The house of representatives shall be composed of (136 members chosen every 2d year by the people of the several states; to and the electors in each state shall have the qualifications requisite 135) for electors of the most numerous branch of the state legislature. 4 2. Qualifications — Xo person shall be a representative who shall (147) not (1) have attained the age of 25 years, and (2) been 7 j'ears a (148) citizen of the United States, and who shall not (3) when elected, (10) be an inhabitant of that state in which he shall be chosen. 5 3. Apportionment — Representatives and direct taxes shall be (142) apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free per- (612) Sec. 3]!^ CONGRESS: organization 613 sons, including those bound to service for a term* of years, and excluding Indians not taxed, | of all other persons. The actual (98) enumeration shall be made within 3 years after the first meeting of the congress of the United States, and within every subse- quent term of 10 years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every 30,000, but each state shall have at least 1 representative; and until such enumeration shall be made, the state of New Hamp- shire shall be entitled to choose 3; Massachusetts, 8; Rhode Island and Providence Plantations, 1: Connecticut, 5; New York, 6; New Jersey, 4; Pennsylvania, 8; Delaware, 1; Maryland, 6; Vir- ginia, 10; North Carolina, 5; South Carolina, 5; and Georgia 3. 4. Vacancies — When vacancies happen in the representation 6 from any state, the executive authority thereof shall issue writs (149) of election to fill such vacancies. 5. Officers — The house of representatives shall choose their 7 speaker and other officers, and shall have the sole power of im- (150) peachment. (218) Section 3— Senate 1. Mectio7)^~ThG senate of the United States shall be composed 8 of 2 senators from each state, chosen by the legislature thereof, (137) for six years; and each senator shall have 1 vote. 2. Immediately after they shall be assembled in consequence 9 of the first election, they shall be divided as equally as may be into 3 classes. The seats of the senators of the 1st class shall be vacated at the expiration of the 2d year, of the 2d class at the expiration of the 4th year, and of the 3d class at the expiration of the 6th year, so that i may be chosen every 2d year; and if va- cancies happen, by resignation -or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legisla- ture, which shall then fill such vacancies. 3. Qualifications— ^o person shall be a senator who shall not 10 have (1) attained the age of 30 years, and (2) been 9 years a citi- (148) zen of the United States, and who shall not (3), when elected, be (4) an inhabitant of that state for which he shall be chosen. 4. Officers— Th.Q vice-president of the United States shall be 11 614 NATIONAL CONSTITUTION ^^[Art. I (189) president of the senate, but shall have no vote unless they be equally divided. 12 5. The senate shall choose their other officers, and also a president (150) pw tempcn^e in the absence of the vice-president, or when he shall exercise the office of president of the United States. 13 6. Impeachment — The senate shall have the sole power to try all (218) impeachments. "When sitting for that purpose, the}' shall be (61) on oath or affirmation. When the president of the United States is tried, the chief justice shall preside; and no person shall be convicted without the concurrence of f of the members present. 14 7. Judgments in cases of impeachments shall not extend fur- (218) ther than removal from office, and disqualification to hold and en- (187) joy any office of honor, trust or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment and punishment, according to law. Section 4 — Elections and meetings of congress 15 1. Elections — The times, places and manner of holding elections (149) for senators and representatives shall be prescribed in each state by the legislature thereof; but the congress may at any time by law make or alter such regulations, except as to the place of choosing senators. 16 2. Meetings — The congress shall assemble at least once in every (265) 3'ear; and such meeting shall be on the 1st Monday in December, unless they shall by law appoint a different day. Section 5 — Organization 17 1. Quorum — Each house shall be the judge of the elections, re- (150) turns and qualifications of its own members, and a majority of each shall constitute a quroum to do business; but a smaller num- ber may adjourn from day to da}', and may be authorized to com- pel the attendance of absent members, in such manner and under such penalties as each house may provide. 18 2. Rules — Each house may determine the rules of its proceed- (150) ings, punish its members for disorderly behavior, and ^\-ith the concurrence of f, expel a member, 19 3. Journal — Each house shall keep a journal ot its proceedings, (151) and from time to time publish the same, excepting such parts as (178) maj', in their judgment, require secrecy; and the yeas and nays Sec. 7]2 4 CONGRESS: organization 615 of ithe members of either house on any question shall, at the (227) desire of | of those present, be entered on the journal. 4. Adjournme?it— Neither house, during the session of congress, 20 shall, without the consent of the other, adjourn for more than 3 (lol) days, nor to any other place than that in which the two houses shall be sitting. Sectiox 6— Members as individuals 1. Pay and privileges— The senators, and representatives shall 21 receive a compensation for their services, to be ascertained by (146) law, and paid out of the treasury of the United States. They shall in all cases except treason, felony and breach of the peace, be privileged from arrest during their attendance at the sessions of their respective houses, and in going to and returning from (152) the same; and for any speech or debate in either house they shall not be questioned in any other place. 2. Prohibitions— No senator or representative shall, during the 22 time for which he was elected, be appointed to any civil office (147) under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person holding any office under the (148) United States shall be a member of either house during his con- tinuance in office. Section 7 — Re^^nue bills; the veto 23 1. Revenue hills — All bills for raising revenue shall originate in (173) the house of representatives; but the senate may propose or con- (177) cur with amendments as on other bills. (^ ' ^) 2. TJie veto — Every bill which shall have passed the house of 24 representatives and the senate shall, before it become a law, be (191) presented to the president of the United States; if he approve, he shall sign it; but if not he shall return it, with his objections, to that house in which it shall have originated; who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, f of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered; and, if ap- proved by I of that house, it shall become a law. But in all such cases, the votes of houses shall be determined bv 3'eas and 616 NATIONAL CONSTITUTION ~4|-^p^ J nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the president within 10 days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the congress, by their adjournment, prevent its return, in which case it shall not be a law. 25 3. Every order, resolution or vote, to which the concurrence (154) of the senate and the house of representatives may be necessary (except on a question of adjournment), shall be presented to the president of the United States; and, before the same shall take effect, shall be approved by him; or, being disapproved by him shall be repassed by | of the senate and house of representatives, according to the rules and limitations prescribed in the case of a bill. 26 Sectiox 8 — Legislati\t: powers (174) The congress shall have power: (177) 1. To lay and collect taxes, duties, imposts, and excises; to (233) pay the debts and provide for the common defence and general (230) welfare of the United States; but all duties, imposts and excises (232) shall be uniform throughout the United States. 27 2. To borrow money on the credit of the United States. 28 3. To regulate commerce with foreign nations, and among the /126) several states, and with the Indian tribes. 29 4. To establish an uniform rule of naturalization, and unifonn laws on the subject of bankruptcies throughout the United States. 30 5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures. 31 6. To provide for the punishment of counterfeiting the secuii- ties and current coin of the United States. 32 7. To establish post-oflSces and post-roads. 33 8. To promote the progress of science and useful arts, by secur- ing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries. 84 9. To constitute tribunals inferior to the supreme court. 35 10. To define and punish piracies and felonies committed on the high seas, and offences against the law of nations. Sec. 9] 4 6 congress: powers 617 11. To declare war, grant letters of marque and reprisal, and 36 make rules concerning captures on land and water. 12. To raise and support armies; but no appropriation of 37 money to that use shall be for a longer term than 2 years. 13. To provide and maintain a navy. 38 14. To make rules for the government and regulation of the 39 land and naval forces. - 15. To provide for calling forth the militia to execute the laws 40 of the union, suppress insurrections, and repel invasions. 16. To provide for organizing, arming and disciplining the 41 militia, and for governing such part of them as may be employed (269 in the service of the United States; reserving to the states respec- to tively the appointment of the officers and the authority of 274) training the militia according to the discipline prescribed by con- gress. IT. To exercise exclusive legislation in all cases whatsoever, 42 over such district (not exceeding 10 miles square) as may, by ces- sion of particular states, and the acceptance of congress, become the scat of government of the United States; and to exercise like authority over all places purchased by the consent of the legisla- ture of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful build- ings; and 18. To make all laws which shall be necessary and proper for 43 carrying into execution the foregoing powers, and all other (136) powers vested by this constitution in the government of the United States, or in any department or officer thereof. Sectiox 9 — Prohibitions upoisr the United States 1. The migration or importation of such persons as any of the 44 states now existing shall think proper to admit, shall not be pro- hibited by the congress prior to the year 1808; but a tax or duty (98) may be imposed on such importation not exceeding |10 for each person. 2. The privilege of the wiit of habeas corpus shall not be sus- 45 pended, unless when, in case of rebellion or invasion, the public (115) safety may require it. 3. No bill of attainder, or ex post facto law shall be passed. 46 618 XATIOXAL COXSTITUTIOX '^'[Alt. I 47 4. Xo capitation or other direct tax shall be laid, unless in pro- portion to the census or enumeration hereinbefore directed to be taken, 48 5. Xo tax or duty shall be laid on any articles exported from any state. Xo preference shall be gi%'en by any regulation of commerce or revenue to the ports of one state over those of an- other; nor shall vessels bound to or from one state be obliged to enter, clear or pay duties in another. 49 6. Xo money shall be drawn from the treasury but in conse- (174) ciuence of appropriations made by law: and a regular statement (172) and account of the receipts and expenditures of all public money shall be published from time to time. 50 7. Xo title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of the congress, accept of any present, emolument, office or title of any kind whatever, from any king, prince, or foreign state. 51 Sectiox 10 — Pkghibitioxs upox the states - (62) 1. Absolute — Xo state shall (1) enter into any treaty, alliance or (36) confederation; (2) grant letters of marque and reprisal; (3) coin ^,)-c money; (4) emit bills of credit; (5) make anything but gold and (46) silver coin a tender in payment of debts; (6) pass any bill of (51) attainder, ex post facto law. or law impairing the obligation of (50) contracts; or (7) grant any title of nobility. 52 2. Excejyt by consent of congress — Xo state shall, without consent (26) of congress, (1) lay any imports or duties on imports or exports, except what may be absolutely necessary for executing its in- spection laws; and the net produce of all duties and imposts laid by any state on imports or exports shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of the congress. Xo state shall, with- (37) out the consent of congress, (2) lay any duty of tonnage, (3) [o'S) keep troops or ships of war in time of peace, (4) enter into any (62) agreement or compact with another state, or with a foreign (36) power, or (5) engage in war. unless actually invaded, or in such imminent danger as will not admit of delay. Art. 11]^^ THE PRESIDENT; ELECTION 619 ARTICLE II— Executive Section 1 — The President and a^ce-president 1. Election — The executive power shall be vested in a president 53 of the United States of America. He shall hold his office during (183) the term of 4 years; and together with the vice-president chosen for the same term, be elected as follows: 2. Each state shall appoint, in such manner as the legislature 54 thereof may direct, a number of electors equal to the whole num- (185) ber of senators and representatives to which the state may be entitled in the congress; but no senator or representative, or per- son holding an office of trust or profit under the United States, shall be appointed an elector. The following clause has been superseded by article XII of the amend- ments: 3. The electors shall meet in their respective states, and vote by ballot 55 for 2 persons, of whom one at least shall not be an inhabitant of the same (95 state with themselves. And they shall make a list of all the persons voted to for, and of the number of votes for each, which list they shall sign and cer- 97) tify, and transmit, sealed, to the seat of the government of the United States, directed to the president of the senate. The president of the senate shall, in the presence of the senate and house of representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the president, if such number be a majority of the whole number of electors appointed, and if there be more than one who have such majority, and have an equal number of votes, then the house of representatives shall immediately choose by ballot one of them for president: and if no person have a majority, then, from the 5 highest on the list, the said house shall, in like manner, choose the president. But in choosing the president, the votes shall be taken by states, the repre- sentation from each state having 1 vote: a quorum for this purpose shall con- sist of a member or members from % of the states, and a majority of all the states shall be necessary to a choice. In every case, after the choice of the president, the person having the greatest number of votes of the electors shall be the vice-president. But if there should remain 2 or more who have equal votes, the senate shall choose from them, by ballot, the vice-president. 4. The congress may determine the time of choosing the elec- 56 tors, and the day on which they shall give their votes, which day shall be the same throughout the United States. 5. QaalificaUons—^o person, except (1) a natural born citizen 57 or a citizen of the United States at the time of the adoption of (184) this constitution shall be eligible to the office of president; neither shall any person be eligible to that office who shall not have (2) 620 NATIONAL CONSTITUTION ^^[Art. II attained to the age of 35 years, and (3) been 14 j'ears a resident within the United States. 58 6. Vacancy — In case of the removal of the president from office, (188) or of his death, resignation or inability to discharge the powers and duties of said office, the same shall devolve on the vice-presi- dent; and the congress may, by law, provide for the case of re- (189) moval, death, resignation or inability, both of the president and vice-president, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be re- moved, or a president shall be elected. 59 7. Salary — The president shall, at stated times, receive for his (186) services a compensation which shall neither be increased or dimin- (167) ished during the period for which he shall have been elected; and (268) he shall not receive within that period any other emolument from the United States, or any of them. 60 8. OatJi — Before he enter on the execution of his office, he shall (82) take the following oath of affirmation: (280) " I do solemnly swear (or affirm) that I will faithfully execute (281) the office of president of the United States; and will, to the. best of my ability, preserve, protect and defend the constitution of the United States. " Section 2 — Powers of the president 61 1. The president shall be (1) commander-in-chief of the army and (186) navj' of the United States, and of the militia of the several states, when called into the actual service of the United States. He may (2) require the opinion, in writing, of the principal officer in each of the ex'ecutive departments, upon any subject relating to the (187) duties of their respective offices; and he shall (3) have power to grant reprieves and pardon for offences against the United States, except in cases of impeachment. 62 2. He shall (4) have power, by and with the advice and consent of the senate, to make treaties, provided f of the senators present concur; and he shall (5) nominate, and by and with the advice (201) and consent of the senate shall appoint, {a) ambassadors, ip) other (210) public ministers and consuls, (c) judges of the supreme court, (194) and {d) all other officers of the United States whose appointments (195) are not herein otherwise provided for, and which shall be estab- (211) (231) Art. III]^^* PRESIDENT; NATIONAL COURTS 621 lislied by law. But the congress maj^ by law, vest the appoint- (2o2) nient of such inferior officers as they think proper, in the presi- (192) dent alone, in the courts of law, or in the heads of departments. 8. The president shall (6) have power to fill up all vacancies 63 that may happen during the recess of the senate, by grant- (194) ing commissions which shall expire at the end of their next li??) session. Section 3 1. He shall, from time to time, (7) give to the congress informa- 64 tion of the state of the union, and (8) recommend to their con- (186) sideration such measures as he shall judge necessary and expedi- dent. He may, (9) on extraordinary occasions, convene both houses, or either of them; and in case of disagreement between them with respect to the time of adjournment, lie may (10) ad- journ them to such time as he shall think proper. He shall (11) receive ambassadors and other public ministers. He shall (12) take care that the laws be faithfully executed; and shall (13) commission all the officers of the United States. Sectiox 4 — Impeachments 1. The president, vice-president, and all civil officers of the 65 United States, shall be removed from office on impeachment for, (216) and conviction of, treason, briberv or other higher crimes and mis- (218) demeanors. ARTICLE III— Judicial Section 1 — Courts 1. The judicial power of the United States shall be vested in 66 one supreme court, and in such inferior courts as the congress (210) may, from time to time, ordain and establish. The judges, both (201) of the supreme and inferior courts, shall hold their offices during (207) good behavior; and shall, at stated times, receive for their ser- (216) vices a compensation which shall not be diminished during their (217) continuance in office. Section 2 — Jurisdiction 1. Extent— T\\^ judicial power shall extend to (1) all cases in 67 law and equity arising under this constitution, the laws of the (208) United States and treaties made, or which shall be made under (206) 622 NATIONAL CONSTITUTION ^ '[Art. Ill (213) their authority; to (2) all cases affecting ambassadors, other pub- lic ministers and consuls; to (3) all cases of admirality and mari- time jurisdiction; to (4) controversies to which the United States shall be a party; to controversies (5) between 2 or more states; (6) between a state and citizens of another state ; (7) between citi- zens of different states; (8) between citizens of the same state claiming lands under grants of .different states, and (9) between a state, or the citizens thereof, and foreign states, citizens or sub- jects. 68 2. Origindl and npjjellate — In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdic- tion. In all the other cases before mentioned, the supreme court (212) shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the congress shall make. 69 3. Criminal — The trial of all crimes, except in cases of im- (113) peachment, shall be by jury, and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed. Section 3 — Treason 70 1. Definition rt;i^j9?'t>«9/— Treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort. Xo person shall be con- . victed of treason, unless on the testimony of 2 witnesses to the same overt act, or on confession in open court. 71 2. Limit — The congress shall have power to declare the pun- ishment of treason; but no attainder of treason shall work cor- ruption of blood, or forfeiture, except during the life of the per- son attainted. ARTICLE IV— Relations of states Section 1 — Public records 72 1. Full faith and credit shall be given in each state to the pub- lic acts, records and judicial proceedings of every other state; and the congress may, by general laws, prescribe the manner in Art, IV] ^9 COURTS; relations of states 623 which such acts, records and proceedings shall be proved, and the effect thereof. Section 2 — Rights of citizens 1. In other states— T\\e citizens of each state shall be entitled to 73 all privileges and immunities of citizens in the several states. 2. Extradition — A person charged in any state with treason, 74 felony or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. 3. ^-1 relic of slavery — No person held to service or labor in one 75 state under the laws thereof, escaping into another shall, in con- (98) sequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered upon claim of the party to whom such service or labor may be due. Section 3 — New states and territories 1. New states — New states may be admitted by the congress in- 76. to this union; but no new state shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of 2 or more states, or parts of states, without the con- sent of the legislatures of the states concerned, as well as of the congress. 2. Territories — The congress shall have power to dispose of, 77 and make all needful rules and regulation respecting, the territory (237) or other property belonging to the United States, and nothing in (121) this constitution shall be so construed as to prejudice any claims of the United States, or of any particular state. Section 4 — National protection 1. The United States shall guarantee to every state in this union 78 a republican form of government, and shall protect each of them against invasion; and, on application of the legislature, or of the executive (when the legislature cannot be convened), against do- mestic violence. ARTICLE V— Amendments 1. The congress, whenever f of both houses shall deem it neces- 79 sary, shall propose amendments to this constitution; or, on the (287) application of the legislatures of f of the several states, shall 624 NATIONAL CONSTITUTION '^[Art. V call a convention for proposing amendments, Avliich, in either case, shall be valid to all intents and purposes, as part of this constitution when ratilied b}' the legislatures of f of the several states, or by conventions of f tliereof , as the one or the other mode of ratification may be proposed by congress; provided that no (44) amendment, which ma}^ be made prior to the year 1808, shall in (47) any manner affect the 1st and 4th clauses in the 9th section of the (8) 1st article, and tlmt no state without its consent, shall be deprived of its equal suffrage in the senate. AKTICLi: VI— Sim dry i)io visions 80 1. National debts — All debts contracted and engagements en- (128) tered into before the adoption of this constitution shall be as valid against the United States under this constitution, as under the confederation. 81 2. National law supreme — This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in ever}' state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. 82 3. OatJis — The senators and representatives before mentioned, (280) and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound bj' oath or affirmation to support this con- stitution; but no religious test sljall ever be required as a qualifi- cation to any office or public trust under the United States. ARTICLE VII— Establishnieiit 83 1. The ratification of the conventions of 9 states shall be suffi- (290) cient for the establishment of this constitution between the states so ratifying the same. — Constitution ratified by states. 17S7-9U. AMEND3IENTS I — Freedom of religion, speech, and petition 84 Congress may make no. law respecting an establishment of (114) religion, or prohibiting the free exercise thereof; or abridging the (119) freedom of speech or of the press; or the right of the people (120) peaceably to assemble, and to petition the government for a redress of grievances. — {1791). .I_YI]9 AMENDMENTS 625 II— Arms 85 A well regulated militia being necessary to the security of a (269 free state, the right of the people to keep and bear arms shall not to be infringed. — [1791). 274) III— Quartering' of soldiers Xo soldier shall, in time of peace, be quartered in any house 86 without the consent of the owner, nor in time of war but in a manner to be prescribed by law. — {1791). IV.— Search warrants The- right of the people to be secure in their persons, houses, 87 papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describ- ing the place to be searched, and the persons or things to be seized.— (irS'i.) V — Criminal proceedings No person shall be held to answer for a capital or otherwise 88 infamous crime, unless on a presentment or indictment of a grand (117) jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensa- (118) sation. — {1791. VI — Criminal proceedings In all criminal proceedings, the accused shall enjoy the right to 89 a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which dis- trict shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be con- fronted with the witnesses against him; to have compulsory pro- cess for obtaining witnesses in his favor, and to have the assist- ance of counsel for his defence. — {1791.) VII —Trial by jury In suits at common law, where the value in controversy shall 90 626 NATIONAL CONSTITUTION ^^'[YJI (113) exceed $20, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law— (i79i.) A^III — Excessive bail and pimisliDient 91 Excessive bail shall not be required, nor excessive fines imposed. (116) nor cruel and unusual punishments inflicted. — {1791.) IX— Kij?|its not named 92 The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people. -{1791.) X— Powers reserved by the states 93 The powers not delegated to the United States by the constitu- tion, nor prohibited by it to the states, are reserved to the states respectively', or to the people. — {1791.) XI— Suits against states 94 The judicial power of the United States shall not be construed to extend to any suit in law or equitj', commenced or prosecuted a'gainst one of the United States by citizens of another state, or b}' citizens or subjects of any foreign state. — {179S.) XII — Election of president 95 1. The electors shall meet in their respective states, and vote by (55) ballot for president and vice-president, one of whom at least shall not be an inhabitant of the same state with themselves. They shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice-president; and they shall make distinct lists of all persons voted for as president, and of all persons voted for as vice-president, and of the nimiber of Azotes for each; which lists they shall sign and certify, and trans- mit sealed to the seat of government of the United States, directed to the president of the senate. The president of the senate shall, in the presence of the senate and house of representatives, open all the certificates, and the votes shall then be counted. The per- son having the greatest number of votes for president shall be the president, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from XIV] '^^ AMENDMENTS . 627 the persons having the highest numbers, not exceeding 3, on the list of those voted for as president, the house of representatives (185) shall choose immediately, by ballot, the president. But in choos- ing the president, the votes shall be taken by states, the repre- sentation from each state having one vote; a quorum for this pur- pose shall consist of a member or members from f of the states, and a majority of all the states shall be necessary to a choice. And if the house of representatives shall not choose a president, when- ever the right of the choice shall devolve upon them, before the 4th day of March next following, then the vice president shall act as president as in the case of the death or other constitutional disability of the president. 2. The person having the greatest number of votes as vice- 96 president shall be the vice-president, if such number be a major- ity of the whole number of electors appointed; and if no person have a majority, then from the 2 highest numbers on: the list the senate shall choose the vice-president. A quorum for the purpose shall consist of | of the whole number of senators, and a majority of tlie whole number shall be necessary to a choice. 3. But no person constitutionally ineligible to the office of 97 president shall be eligible to that of vice-president of the United (189) States.— (i4.) 138 3. S'iKffe difftrlct}< — The state shall be divided into ."jU districts (8) to be called senate districts, each of which shall choose 1 senator. The districts shall be numbered from 1 to 50, inclu.sive. — {1894.) [Tlic description of districts is omitted, as the districts are shown !a:raph- ic:illy upon the maps on pa^es 581.o70.1 139 4. IIow altered — An euumemtion of the inhabitants of the state (8) shall be taken under the direction of the secretary of state, dur- ing the months of May and June, in the year 1905, and in the same months everj^ tenth year thereafter: and the said districts shall be so altered by the legislature at the tirst regidar session after the return of ever}' enumeration, that each senate distnct(l) shall contain as nearly as may be an equal niunber of inhabitants, excluding aliens, and (2) be in as compact form as jH-acticable, and (3) shall remain unaltered until the return of another enumeration, and (4) shall at all times consist of contiguous territory, and (5) no county shall be divided in the formation of a senate district except to make 2 or more senate districts Avholly in such county. No town, and no block in a city enclosed by streets or public ♦ ways, shall be divided in the formation of senate districts: nor shall any district contain a greater excess in population over an adjoining district in the siime county, than the population of a town or block therein, adjoining such district. Counties, towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make Siiid districts most uearl}' equal in number of inhabitants, excluding aliens. "" 140 No county shall have 4 or more senators unless it shall have a full ratio for each senator. No county shall have more than ^ of all the senatoi-s: and no 2 counties or the territory thereof as now organized, which are adjoining counties, or which are sep- Sec. 5]^^^ LEGISLATURE 637 arated only by public waters, shall have more than i of all the senators. The ratio for apportioning senators shall always be obtained by 141 dividing the number of inhabitants, excluding aliens, by 50, and (8) the senate shall always be composed of 50 members, except that if any county having 3 or more senators at the time of any appor- tionment shall be entitled on such ratio to an additional senator or senators, such additional senator or senators shall be given to such county in addition to the 50 senators, and the whole number of senators shall be increased to that extent.— (i^S^.) 5. Assembly dit passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title. 17. Ill eluded laws iiiserted^^So act shall be passed which shall 157 provide that any existing law, or any part thereof, shall be made (174) or deemed a part of said act, or which shall enact that any exist- (177) ing law, or part thereof, shall be applicable, except by inserting it in such act. 18. Farther restnctioas — The legislature shall not pass a pri- vate or local bill in any of the following cases: (1) changing the names of persons; 158 (2) laying out, opening, altering, working or discontinuing 159 roads, highA\ays or alleys, or for draining swamps or other low lands; (8) locating or changing county seats; 160 (4) providing for changes of venu in civil or criminal cases; 161 (5) incorporating villages; 163 (6) providing for election of members of boards of super- 168 visors; (7) selecting, drawing, summoning or impanelling grand or 164 petit jurors; 164 (8) regulating the rate of interest on money ; 165 (9) the opening and conducting of elections or designating 166 places of voting; (3) (10) creating, increasing or decreasing fees, percentages or al- 167 lowances of public officers, during the term for which said offi- (59) cers are elected or appointed; (66) (11) granting to any corporation, association or individual the 168 right to lay down railroad tracks; (12) granting to any private corporation, association or indi- 169 vidual any exclusive privilege, immunity or franchise whatever; (18) granting to anj^ person, association, firm or corporation an 169 a exemption from taxation on real or personal property {adopted 1901); 642 NEW YORK CONSTITUTION ]Art. Ill 170 171 (118) (204) 172 (49) 173 (23) 174 <49) (157) (177) 175 (14) providing for building bridges, and chartering companies for such purposes, except on the Hudson river below Waterford, and on the East river, or over the waters forming a part of the boundaries of the state. The legislature shall pass general laws providing for the cases enumerated in this section, and for all other cases which in its judgment may be provided for by general laws. But no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of ^ in value of the property bounded on, and the consent also of the local authorities having the control of, that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained, or in case the consent of such property owners cannot be obtained, the appellate division of the supreme court, in the department in which it is proposed to be constructed, may, upon application, appoint 3 conunissioners who shall deter- mine, after a hearing of all parties interested, whether such rail- road ought to be constructed or operated, and their determina- tion, confirmed by the court, maj- be taken in lieu of the consent of the property owners. — {IS^d-lOOl.) 19. Pricdtc chiiiii.H — Tiie legislature shall neither audit nor allow any private claim or account against the state, but may appro- priate money to pay such claims as shall have been audited and allowed according to law. 20. Two-thirds rote — The assent of ^ of the members elected to each branch of the legislature shall be requisite to every bill ap- projiriating the public moneys or property for local or private purposes. 21. Ajyprojyrutfio/i hills — Xo money shall ever be paid out of the treasuiy of this state, or any of its funds, or any of the funds under its management, except (1) in pursuance of an appropria- tion by law; nor (2) unless such payment be made within 2 years next after the passage of such appropriation act; and every such lawmaking a new appropriation, or continuing or reviving an appropriation, shall distinctly specify (3) the sum appropriated, and (4) the object to which it is to be applied; and it shall not be sufficient for such law to refer to any other law to fix such sum. 22. Extraneous pronsions — Xo provision or enactment shall Sec. 29] "^ - LEGISLATURE 648 be embraced in the annual ai3propriation or supply bill, un- less it relates specifically to some particular appropriation in the bill; and any such provision or enactment shall be limited in its operation to such appropriation. — {1894.) 23. Rensed statutes — Sections 17 and 18 of this article shall not 176 apply to an}^ bill, or the amendments to any bill, which shall be reported to the legislature by commissioners who have been ap- pointed pursuant to law to revise the statutes. 24. Tax bills — Every law which imposes, continues or revives 177 a tax shall distinctly state the tax and the object to which it is to (23) l)e applied, and it shall not be sufficient to refer to an}^ other (157) law to fix such tax or object. (174) 25. On the final passage, in either house of the legislature, of 178 any act which imposes, cbntinues or revives a tax, or creates a (23) debt or charge, or makes, continues or revives any appropriation of public or trust money or property, or releases, discharges or commutes any claim or demand of the state, the question shall be (19) taken by yeas and nays, which shall be duly entered upon the journals, and'f of all the members elected to either house shall, in all such cases, be necessary to constitute a quorum therein. 26. Siqyervisors— There shall be in each county, except in a 179 county wholly included in a city, a board of supervisors, to be composed of such members, and elected in such manner, and for such period, as is or may be provided by law. In a city which includes an entire county, or 2 or more entire counties, the powers and duties of a board of supervisors may be devolved upon the municipal assembl}^ common council, board of aldermen or other legislative body of the city. — {1894.) 27. Local legislation— The legislature shall, by general laws, 180 confer upon the boards of supervisors of the several counties of the state such further powers of local legislation and administra- tion as the legislature may from time to time deem expedient. 28. Extra compensation— The legislature shall not, nor shall the 181 common council of any city, nor any board of supervisors, grant (59) any extra compensa^tion to any public officer, servant, agent or (66) contractor. 29. Prison-labor— The legislature shall, by law, provide for the 1 occupation and employment of prisoners seiitenced to the several 644 NEW YORK CONSTITUTION ^'^'[Art. lY state prisons, penitentiariecome a law after the final adjournment of the legislature, unless ap- Art. yy-^'^ STATE EXECUTIVE OFFICERS G47 proved by the governor within 30 days after such adjournment. (6.) If any bill presented to the governor contain several items of appropriation of money, he may object to one or more of such items while approving of the other portion of the bill. In such case, he shall append to the bill, at the time of signing it, a state- ment of the items to which he objects; and the appropriation so objected to shall not take effect. If the legislature be in session, he shall transmit to the house in which the bill originated a copj^ of such statement, and the items objected to shall be separately reconsidered. If on reconsideration one or more of such items be approved by f of the members elected to each house, the same shall be part of the law, notwithstanding the objections of the governor. All the provisions of this section, in relation to bills not approved by the governor, shall apply in cases in which he shall withhold his approval from any item or items contained in a bill appropriating money. ARTICLE V — Other state officers 1. Mection— The secretary of state, comptroller, treasurer, at- 192 torney-general and state engineer and surveyor shall be chosen at (61) a general election, at the times and places of electing the gov- (62) ernor and lieutenant-governor, and shall hold their offices for 2 years, except as provided in section 2 of this article. Each of the officers in this article named, excepting the speaker of the as- (196) sembly, shall at stated times during his continuance in office re- cei\e for his services a compensation which shall not be increased or diminished during the term for which he shall have been (59) elected; nor shall he receive to his use any fees or perquisites of (66) office or other compensation. No person shall be elected to the (190) office of state engineer and survevor who is not a practical civil (226) engineer. ^-w^uy 2. The tirst election of the secretary of state, comptroller, 193 treasurer, attorney-general and state engineer and surveyor, pur- suant to this articfe shall be held in the year 1895, and their terms of office shall begin on the 1st day of January following, and shall be for 3 years. At the general election in the year 1898, /and every 2 years thereafter, their successors shall ho chosen for the term of 2 xearH.—{l894 ) 648 NEW YORK CONSTITUTION ^ '^ ^[Art. V 194 3. Siii/t of public icorks — The superintendent of public works shall be appointed by the governor, by and with the advice and consent of the senate, and hold his office until the end of the term of the governor by whom he was nominated, and until his successor is appointed and qualified. He shall receive a com- pensation to be fixed b}' law. He shall be required by laAv to give security for the faithful execution of his office before enter- ing upon the duties thereof. He shall be charged with the exe- cution of all laws relating to the repair and navigation of the canals, and also of those relating to the construction and improve- ment of the' canals, except so far as the execution of the laws relating to such construction or improvement shall be {;onfided to the state engineer and surveyor ; subject to the control of the legislature, he shall make the rules and regula- tions for the navigation or use of the canals. He may be sus- pended or removed from office by the governor, whenever, in his judgment, the public interest shall .so require; but in case of the removal of such superintendent of public works from office, the governor shall file with the .secretary of state a statement of the cause of such removal, and shall report such removal and the cause thereof to the legislature at its next session. The superin- tendent of public works shall appoint not more than 8 assistant superintendents, whose duties shall be prescibed by him, subject to modification by the legislature, and who shall recive for their services a compensation to be fixed by law. They shall hold their office for 8 years, subject to susi)ension or removal by the superintendent of public works, whenever, in his judgment, the public interest shall so require. Any vacancy in the office of any such assistant superintendent shall be filled for the remainder of of the term for which he was appointed by the superintendent of public works; but in case of the suspension or removal of iftiy (289) such assistant superintendent, by him, he shall at once report to the governor, in writing, the cause of such removal. All other persons employed in the care and management of the canals, ex- cept collectors of tolls, and those in the department of the state engineer and surveyor, shall be appointed by the superintendent of public works and be subject to suspension or removal by him. The superintendent of public works shall perform all the duties Sec. 7]^^^ STATE EXECUTIVE OFFICERS 649 of the former canal commissioners, and board of canal com mis- (UHi) sioners, as now declared by law, until otherwise provided by the legislature. The governor, by and with the advice and consent of the senate, shall have power to fill vacancies in the office of superintendent of public works ; if the senate be not in session, he may grant commissions which shall expire at the end of the next succeeding session of the senate. 4. Sup' t of state prisons — A superintent of state prisons shall 19.") be appointed by the governor, by and with the advice and con- sent of the senate, and hold his office for 5 years, unless sooner removed ; he shall give security in such amount, and with such sureties as shall be required \)j law for the faithful discharge of his duties ; he shall have the superintendence, management and control of state prisons, subject to such laws as now exist or may hereafter be enacted ; he shall appoint the agents, wardens, phy- sicians and chaplains of the prisons. The agent and warden of each prison shall appoint all other officers of such prison, except the clerk, subject to the approval of the same by the superinten- dent. The comptroller shall appoint the clerks of the prisons. The superintendent shall have all the powers and perform all the duties not inconsistent herewith, which were formerly had and performed by the inspectors of state prisons. The governor may remove the superintendent for cause at any time, giving to him a copy of the charges against him, and an opportunity to be heard in his defence. — {1846-94-) 5. Kv-officM boards.— The liutenant-governor, speaker of the 19(5 assembly, secretaj-y of state, comptroller, treasurer, attorney- general and state engineer and surveyor shall be the commission- ers of the land office. The lieutenant-governor, secretary of state, comptroller, treasurer and attorney-general shall be the commissioners of the canal fund. The canal board shall consist (194 of the commissioners of the canal fund, the state engineer and (236) surveyor and the superintendent of public works. — (1846-94.) 6. The powers and duties of the respective boards, and of the 197 several officers in this article mentioned, shall be such as now are or hereafter may be prescribed by law.* 7. Tremurer may he suspended— The treasurer may be sus- 198 •For table of ex-officio boards see page 210. 650 NEW YORK CONSTITUTION ^ ^ ^[Art. V pended from office by the governor, during the recess of the leg- (260) islature, and until 80 days after the commencement of the next (266) of the session legislature, whenever it shall appear to him that such treasurer has, in anj^ particular, violated his duty. The governor shall appoint a competent person to discharge the duties of the office during such suspension of the treasurer. 199 8 Certain offices cdjolisJied — All offices for the Aveighing. gauging, measuring, culling or inspecting any merchandise, produce, manufacture or commodit)^ whatever, are hereby abol- ished ; and no such office shall hereafter be created by law ; but nothing in this section contained shall abrogate any office created for the purpose of protecting the public health or the interests of the state in its property, revenue, tolls or purchases, or of supplying the people Avith correct standards of weights and measures, or shall prevent the creation of any such office for such purposes hereafter. 200 9. Civil .wnce e.va mi nations — Appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examina- tions which, so far as practicable, shall be competitive; provided, however, that honorably discharged soldiers and sailors from the arm}' and navy of the United States in the late civil war, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section.— (iso one shall be eligible to the office of judge of the court of appeals, justice of 660 NEW YORK CONSTITUTION ^sej-^^^^yj]; the supreme court, or, except in the county of Hamilton, to the office of county judge or surrogate, who is not an attorney and counsellor of this state.— (i5^^-.94.) 227 21. Legal publications — The legislature shall provide for the (19) speed}" publication of all statutes; and shall regulate the report- ing of the decisions of the courts; but all laws andjudicial decis- ions shall be free for publication by any person. — (1846-94.) 228 22. Expiration of terms of office— Justices of the peace and other local judicial officer provided for in sections 17 and 18, in office when this article takes effect, shall hold their offices until the ex- piration of their respective terms. — (1846-94.) 229 23. Special sesssons — Courts of special sessions shall have such (220) jurisdiction of offences of the grade of misdemeanors as may be prescribed b}' law. ARTICLE V.II.— State debts 230 1. State credit — The credit of the state shall not in any manner (26) be given or loaned to or in aid of any individual, association or corporation. 231 2. State debts — The state may, to meet casual deficits or failures in revenues, or for expenses not provided for, contract debts^ but (27) such debts direct or contingent, singly or in the aggregate, shall not at any time exceed $1,000,000; and the moneys arising from the loans creating such debts shall be applied to the purpose for which they were obtained, or to repay the debts so contracted, and to no other purpose whatever. 232 3. Emergencies — In addition to the above limited power to (26) contract debts, the state may contract debts to repel invasion, suppress insurrection, or defend the state in war ; but the money arising from the contracting of such debts shall be applied to the the purpose for which it was raised, or to repay such debts, and to no other purpose whatever. 233 4. Limits of legislative poicer — Except the debts specified in (192) sections 2 and 3 of this article, no debts shall hereafter be con- (240) tracted by or on behalf of this state, unless (1) such debt shall be authorized by a law, (2) for some single work or object, (3) to be distinctly specified therein ; and (4) such law shall impose and provide for the collection of a direct annual tax to pay, and suf- Sec. 6]2:^6 STATE DEBTS (U'A ficient to pay the interest on siic-li debt as it falls due. and also to pay and diseliarge the principal of sueh debt (.")) within 18 years from the time of the contracting tlu^-eof. («) Xo such law shall take effect until it shall, at a general election, have been submitted to the people, and have received a majority of all the votes cast for and against it at such election. On the tinal passage of such bill in either house of the legislature, the ques- tion shall be taken by ayes and noes, to be duly entered upon the (155) journals thereof, and shall be : " Shall this bill pass, and ought the same to receive the sanction of people V" The legislature may at any time, after the approval of such 2;U law by the people, if no debt shall have been contracted in pur- suancethere of, repeal the same ; and may at any time, by law, forbid the contracting of any further debt or liability under such law ; but the tax imposed by such act in proportion to the debt and liability which may have been contracted in pursuance of such law, shall remain in force and be irrepealable and be annually collected, until the proceeds thereof shall have made the provision hereinbefore specified to pay and discharge the in- terest and principal of such debt and liability. The money arising from any loan or stock creating such debt or liability shall be applied to the work or object specified in the act authorizing such debt or liability, or for the repayment of such debt or liability, and for no other purpose whatever. No such law shall shall be submitted- to be voted on, within 3 months after its jkis- sage, or at any general election when any other law, or any bill, or any amendment to the constitution, shall be submitted to be voted for or against. 5. Sinking funds— The sinking funds provided for the pay- '285 ment of interest and the extinguishment of the principal of the debts of the state shall be separately kept and Sfifely invested. and neither of them shall be appropriated or used in any manner other than for the specific purpose for which it shall have been provided. 6. Limitation— Neither the legislature, canal board, nor any 'J:H> person or persons acting in behalf of the state, shall audit, allow or pay any claim which, as between citizens of the state, would be barred by lapse of time. This provision shall not be con- 662 NEW YORK CONSTITUTION -3*^ [Alt. VII striied to repeal any statute fixing- the time within which claims shall be presented or allowed, nor shall it extend to any claim dul}'^ presented within the time allowed by law, and prosecuted with due diligence from the time of such presentment. But if the claimant shall be under legal disability, the claim may be presented within 2 years after such disability is removed. 237 7. Forest pi-eserie — The lands of the state, now owned or here- (77) after acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.— (i:\ unjust and oppressive, the canal board may. upon the applica- tion of the contractor, cancel such contract. 10. Impromment of camds—Tlm canals may he improvt-d in '^40 such manner as the legislature shall provide hy law. A debt maj' be authorized for that purpose in the mode prescribe*! by section 4 of this article, or the cost of such improvement may be defrayed by the appropriation of funds from the state treasury, (2:«) or by equitable annual tax. {ISUJ,.) AKTICLE A in— Corporations 1. How frmf^f?— Corporations may be formed under general laws; 241 but shall not be created by special act, except for municijval pui- M 71 > po.ses, and in cases where, in the judgment of the legislature. tli< objects of the corporation cannot be attained under general laws. All general laws and special acts passed pui-suant to this section may be altered from time to time or repealed. 2. Debts — Dues from corporations shall be secured by such in- 242 dividual liability of the corporators and other means as maybe prescribed b}' law. 3. Definition — The term corporations as u.sed in this article shall be construed to include all associations and joint-stock com- panies having any of the powers or privileges of cori)orations not possessed b}' individuals or partnerships. And all corporations shall have the right to sue and shall be subject to be sued in all courts in like cases as natural persons. . 4. Bank clmhters — The legislature shall, by general law. con- 244 . firm all charters of savings banks, or institutions for savings, to a uniformity of powers, rights and liabilities, and all charters here- after granted for such corporations shall be made to conform to such general law, and to such amendments as may be made there- to. And no such corporation shall have any capital stock, nor shall the trustees thereof, or any of them, have any interest what- ever, direct or indirect, in the profits of such corporation: and no director or trustee of any such bank or institution shall be inter- ested in any loan or use of any money or projx-rty of .such bank or institution for savings. The legislature shall have no power to pass any act granting any special charter for banking purposi*s. (171 ) but corporations or associations may be formed for such pur|)oses under general laws. 664 NEW YORK CONSTITUTION ^ 4 5|-^rt.VIII 245 5. Specie pay)iients — The legislature shall have no power to pass any law sanctioning in any manner, directly or indirectly, the sus- (51) pension of specie payments, \)y any person, association or corpor- ation, issuing bank notes of any description. 246 6. Begistry of hills — The legislature shall provide by law for the registry' of all bills or notes, issued or put in circulation as money, and shall require ample security for the redemption of the same in specie. 247 7. StocMolders responsible — The stockholders of every corpora- tion and joint-stock association for banking purposes, shall be in dividuall}" responsible to the amount of their respective share or shares of stock in any such corporation or association, for all its debts and liabilities of every kind. 248 8. InsoUent banks— In case of the insolvencj^ of any bank or banking association, the billholders thereof shall be entitled to preference in payment, over all other creditors of such bank or association. 249 9. State creiit — Neither the credit nor the mone}' of the state shall be given or loaned to or in aid of any association, corpor- ation or private undertaking. This section shall not, however, prevent the legislature from making such provision for the edu- (254) cation and support of the blind, the deaf and dumb, and juven- ile delinquents, as to it may seem proper. Nor shall it apply to any fund or property now held, or which may hereafter be held, by the state for educational purposes. 250 10. Bestrictions on local indebtedness — No county, city, town or village shall hereafter give any money or property, or loan its (275) money or credit to or in aid of any individual, association or cor- poration, or become directly or indirectly the OAvner of stock in or bonds of, an}' association or corporation; nor shall any suck count3% city, town or village be allowed to incur any indebted- edness except for count3% city, town or village purposes. This section shall not prevent such county, city, town or village from making such provision for the aid or support of its poor as may be authorized by law. No county or city shall be allowed to be- come indebted for any purpose or in any manner to an amount which, including existing indebtedness, shall exceed 10 per centum of the assessed valuation of the real estate of such county Sec. 10] 2 5 (' LOCAL INDEBTEDNESS fid.") or city subject to taxation, as it appeared hy tlie assc.s.sMi<-iiir.»ll> of said county or city on tlic last assessment lor state or county taxes prior to the incurring of such indebtedness; and all indel)ted- ness in excess of such limitation, except such as may now exist, shall be absolutely void, except as herein otherwise provided. No county or city whose present indebtedness exceeds 10 per centum of the assessed valuation of its real estate subject to taxation, shall be allowed to become indebteded in any further amouiil un- til such indebtedness shall be reduced within such limit. This section shall not be construed to prevent the issuing of certilicates of indebtedness or revenue bonds issued in anticipation of the col- lection of taxes for amounts actually contained, or to be contained in the taxes for the year when such certilicates or revenue ])onds are issued and payable out of such taxes. Nor shall this section be construed to prevent thejssue of bonds to provide for the suj)- ply of water: but the term of the bonds issued to i^rovide the sup- ply of water shall not exceed 20 years, and a sinking fund shall be created on the issuing- of the said bonds for their redemption, by raising annually a sum which will produce an amount ecjual to the sum of the principal and interest of said bonds at their ma- turity. All certificates of indebtedness or revenue bonds issued in anticipation of the collection of taxes, which are not retired with- in 5 years after their date of issue, and bonds issued to inovide for the supplj^ of water, and any debt hereafter incurred by any portion or part of a city, if there shall be any such debt, shall be included in ascertaiiiing the power of the city to become other- wise indebted. Whenever the boundaries of any city are the same as those of a county, or when any city shall include witliin iis boundaries more than one county, the powerof any county wholly included within each city to become indel)te(l shall cease, but the debt of the county heretofore existing shall not for the jjurposes of this section be reckoned as a part of the city debt. The amount hereafter to be raised by tax for county or city pui- poses, in any county containing a city of over 100.000 inliabi- tants, or any such city of this state, in addition to providing for the principal and interest of existing debt, shall not in the aggre- gate exceed in any one year 2 per centum of the assessed valua- Gm NEW YORK CONSTITUTION ^ 5 o ["^j^.^ y m tion of the real and personal estate of such county or city, to be ascertained as prescribed in this section in respect to county or city dtU.— (1846-94). 251 11. State commissions — The legislature shall provide for a state board of charities, which shall visit and inspect all institutions, whether state, county, municipal, incorporated or not incorpor- ated, which are of a charitable, eleemosynar}-, correctional or re- formatory character, excepting- only such institutions as are here- by made subject to the visitation and inspection of either of the commissions hereinafter mentioned, but including all reforma- tories except those in which adult males convicted of felony shall be confined; a state commission in lunacy, which shall visit and inspect all institutions, either public, or private, used for the care and treatment of the insane (not including institutions for epilep- tics or idiots); a state commission of prisons, which shall visit and inspect all institutions used for the detention of sane adults charged with or convicted of crime, or detained as witnesses or debtors.— (i^S'^.) 252 12. Appointment — The members of the said board and of the said commissions shall be appointed by the governor, by and with the advice and consent of the senate ; and any member may be re- moved from office by the governor for cause, an opportunity hav- ing been given him to be heard in his defence. — {1894.) 253 13. Existing laics — Existing laws relating to institutions referred to in the foregoing sections and to their supervision and inspec- tion, in so far as such laws are not inconsistent with the provis- ions of the constitution, shall remain in force until amended or repealed hx the legislature. The visitation and inspection herein provided for, shall not be exclusive of other visitation and inspection now authorized by law. — {1894.) 254 14. Charitable institutions — Nothing in this constitution con- tained shall prevent the legislature from making such provision (249) for the education and support of the blind, the deaf and dumb, and juvenile delinquents, as to it may seem proper; or prevent any county, city, town or village from providing for the care, support, maintenance and secular education, of inmates of orphan Art. IX]' ^« EDUCATION (>(J7 asj'lums, homes for dependent children or correctional institutions, whether under public or private control. Pa3Mnents by counti»'s, cities, towns and villages to charitable, eleemosynary, correctional and reformatory institutions, wholly or partly under private con- trol, for care, support and maintenance, may be authorized, but shall not be required by the legislature. No such payments shall be made for any inmate of such institutions who is not received and retained therein pursuant to rules established by the state board of charities. Such rules shall be subject to the control of the legislature by general laws. — {I8O4.) 15. Additional powers — Commissioners of the state board of 1~hi charities and commissioners of the state commission in lunacy, now holding office, shall be continued in office for the term for which they were appointed, respectively, unless the legislature shall otherwise provide. The legislature may confer upon the commissioners and upon the board mentioned in the foregoing sec- tions any additional powers that are not inconsistent with other provisions of the constitution. — (1894.) ARTICLE IX— Education 1. M'ee schools — The legislature shall provide for the maintain- t3.")() ance and support of a system of free common schools, wherein all the children of this state maybe educated. — {1894.) 2. Regents of the University — The corporation created in the So? year 1784, under the name of the regents of the University of the State of New- York, is hereby continued under the name of The University of the State of New York. It shall be governed, and its corporate powers, which may be increased, modified or diminished by the legislature, shall be exercised, by not less than 9 regents.— (i594.) 3. Application of funds— The capital of the common school 258 fund, the capital of the literature fund, and the capital of the United States deposit fund, shall be respectively preserved in- violate. The revenue of the said common school fund shall be applied to the support of common schools; the revenue of the said literature fund shall be applied to the suppc^rt of academies; and the sum of $25,000 of the revenues of the United States de- 668 NEW YORK CONSTITUTION 2 5 8|-^j.^ X posit fund, shall each year be appropriated to and made part of the capital of the said common school fund. 259 4. Sectarian appropi^iations — Neither the state nor any subdivis- ion thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning whollj^ or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctorine is taught. — {1894.) ARTICLE X— County officers 260 1. County officers — SheriJBfs, clerks of counties, district attor- neys, and registers in counties having registers, shall be chosen by the electors of the respective counties, once in every 3 years and as often as vacancies shall happen, except in the counties of New York and Kings, and in counties whose boundaries are the same as those of a city, where such officers shall be chosen by the elec- tors once in every 2 or 4 years as the legislature shall direct. Sheriffs shall hold no other office and be ineligible for the next term after the termination of their offices. They may be required by law to renew their security, from time to time; and in default of giving such new security, their offices shall be deemed vacant. But the county shall never be made responsible for the acts of (198) the sheriff. The governor may remove any officer, in this section (266) mentioned, within the term for which he shall have been elected; giving to such officer a copy of the charges against him, and an opportunity of being heard in his defence. — (1846-94.) 261 2. Election of officers — All county officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of the respective counties or appointed by the boards of supervisors, or other countj" authorities, as the leg- islature shall direct. All city, town and village officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, " or appointed by such authorities thereof as the legislature shall designate for that purpose. All other officers, whose election or appointment is not provided for Art. XIJ 2 6 COUNTY OFFICERS ; MILITIA 009 by this constitution, and all oHk-ers whose otticcs may hereafter he created hy law, shall be elected by the people, or appointed, as the. legislature may direct. 3. Term of office— W\\{^\\ the duration of any ottice is not pio- IWl vided by this constitution, it may be declared l)y law. and if not so declared, such office shall be held during the pleasure of tlu- authority making the appointment. 4. Time of eleetion — The time of electing all officers named in -JJiM this article shall be prescribed by law\ 5. Vacancies — The legislature shall provide for filling vacancies 2-") begin on the 1st day of Januar}-; and the legislature shall, eveiy year, assemble on the 1st Wednesday in January. — {IS^C-Uj^.) 7. Removal — Provision shall be made by law for the removal for 206 misconduct or malversation in office of all officers, except judi- (216) cial, whose powers and duties are not local or legislative and who shall be elected at general elections, and also for supplying vacan- cies created by such removal. 8. Offices deemed meant — The legislature may declare the cases 267 in which any office shall be deemed vacant when no provision is made for that purpose in this constitution. 9. Salaries — No officer whose salary is fixed by the constitution 2()H shall receive any additional compensation. Each of the other (."it)) state officers named in the constitution shall, during his continu- (("6) ance in office, receive a compensation, to be fixed by law. which (KJT) shall not be increased or diminished during the term for which h.e shall have been elected or appointed; nor shall he receive to his use any fees or perquisites of olfice as other comiiensation. AKTICLE XI— Militia 1. How constituted— X\y -AhXQhodxQiX \\\\\\(\ (^'xXv/.vx^-^ between the 269 ao-es of 18 and 45 years, who are residents of the state, shall con- (H")) 670 NEW YORK CONSTITUTION ^ 6 9 j-^j^.^ XI (41) stitiite the militia, subject however, to such exemptions as are now, or may be liereafter created by the laws of the United States, or by the legislature of this state. 270 2. Enlisthient — The legislature ma}' provide for the enlistment into the active force of such other persons as may make applica- tion to be so enlisted. — {1894.) 271 3. Organization — The militia shall be organized and divided into such land and naval, and active and reserve forces, as the legis- lature may deem proper, provided however that there shall be maintained at all times a force of not less than 10,000 enlisted men, fulh' uniformed, armed, equipped, disciplined and ready for active service. And it shall be the duty of the legislature at each session to make sufficient appropriation for the maintenance thereof.— (i4.) 272 4. Staff— The governor shall appoint the chiefs of the several (41) staff departments, his aides-de-camp and military secretary, all of whom^shall hold office during his pleasure, their commissions to expire with the term for which the governor shall have been elected; he shall also nominate, and with the consent of the sen- ate appoint, all major-generals. — (1846-94.) 373 0. Other officers — All other commissioned and non-commissioned (41) officers shall be chosen or appointed in such manner as the legis- lature may deem most conducive to the improvement of the mil- itia, provided however that no law shall be passed changing the existing mode of election and appointment unless f of the mem- bers present in each house shall concur therein. — (1846-94.) 274 6. Commissioned officers — The commissioned officers shall be (41) commissioned by the governor as commander-in-chief. Xo com- missioned officer shall be removed from office during the term for Avhich he shall have been appointed or elected, unless by the sen- ate on the recommendation of the governor, stating the grounds on which such removal is recommended, or by the sentence of a court-martial, or upon the findings of an examining board or- ganized pursuant to law, or for absence without leave for a period of six months or more. — (I846-94.) ARTICLE XII — Cities and incorporated villages 275 1. Organization — It shall be the duty of the legislature to pro- Art. XII] ^ ^ 8 MILITIA ; CITIES AND VILLAGES fIT 1 vide for the organization of cities and incorporated villugcs, and to restrict their powerof taxation, assessment, ])orr(>wini: njonev. r^'tO) contracting debts, and loaning their credit, so as to prevent abuses in assessments, and in contracting (h-bt by such imiiiicipal corporations. 2. Mayor's retfh—AW cities are classiJied according to the latest 27<) state enumeration, as from time to time made, as follows: The 1st class includes all cities having a population of ^oO. ()()(), or more: the 2d class, all cities having a population of oO.OOOand less than 250,000; the 3d class, all other cities. Laws relating to the prop- (279) erty, affairs of government of cities, and the several departments thereof, are divided into general and special city laws; general city laws are those which relate to all the cities of one or more classes; special city laws are those w^hich relate to a single city, or to le.ss than all the cities of a class. Special city laws shall not be passed except in conformity with the provisions of this section. After (171) any bill for a special city law, relating to a city, has been passed b}' both branches of the legislature, (1) the house in which it orignated shall immediately transmit a certified copy thereof to (191) the mayor of such city, and (2) within lo days thereafter the ma3''or shall return such bill to the house from Avhich it was sent, or if the session of the legislature at which such bill was passed has terminated^ to tlie governor, with the mayor's certificate thereon, stating whether the city has or has not accepted the siime. (3) In every citj^'of the first class, the mayor and in every other 277 city the mayor and the legislative body thereof concurrent!}', shall act for such city as to such bill; but the legislature may provide for the concurrence of the legislative body in cities of the first class. (4) The legislature shall provide for a public notice and opportunity for a public hearing concerning any such bill in ever}^ city to which it relates, before action thereon. (5) Such a bill, if it relates to more than one city, shall be trans- 27S mitted to the mayor of each city to wdiich it relates, and shall not be deemed accepted unless accepted as herein provided, by every such city. (6) Whenever any such bill is accepted as herein pro- vided, it shall be subject as are other bills, to the action of the gov- ernor. (7) Whenever, during the session at which it was passed, any such bill is returned without the accept^mce of the city or 672 XEAY YORK CONSTITUTION ~ "' ''[Alt. XII cities to which it relates, or within such 15 clays is not returned, it may nevertheless again be passed by both branches of the leg- islature, and it shall then be subject as are other bills, to the ac- tion of the governor. (8) In every special city law which has been accepted by the city or cities to which it relates, the title shall be followed by the words ''accepted by the city", or " cities ■', as the case may be; in everj^ such law which is passed without such acceptance, by the words ' ' passed without the accept- ance of the city ", or '• cities "', as the case may be. — (1894). 279 3. Elections — All elections of city oliicers, including supervisors and judicial offcers of inferior local courts, elected in any city or part of a city, and of county officers elected in the counties of New York and Kings, and in all counties whose boundaries are the same as those of a city, except to fill vacancies, shall be held on the Tuesday succeeding the first ^Monday in November in an odd- (149) numbered year, and the term of every such officer .shall expire at the end of an odd-numbered year. The terms of otfice of all such officers, elected before the 1st day of January, 1895, whose succes- sors have not then been elected, which under existing laws would expire with an even-numbered year, or in an odd-numbered year and before the end thereof, are extended to and including the last day of December next following the time when such terms would otherwise expire; the terms of office of all such offi- , cers, which under existing laws would expire in an even-nimiber- ed year, and before the end thereof, are abridged so as to expire at the end of the preceding year. This section shall not apply to (276) any city of the 8d class, or to elections of anj^ judicial officer, ex- cept judges and justices of inferior local courts. — {1894). ARTICLE XIII--Oatli of office 280 1. Form prescribed. — Members of the legislature. and all officers (60) executive and judicial, except such inferior officers as shall be by (82) law exempted shall, before they enter on the duties of their res- pective offices, take and subscribe the following oath or affirm- ation: " I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the State of New York, andthat I will faithfully discharge the du- ties of the office of . accordino: to the best of mv ab- Art. XIII]-:^^ OATH OF OFFICE f>78 ility;" and all such officers avIio shall have Ix'cn' clioscn at any election shall, before they enter on the duties of tiieir respective offices, take and subscribe the oath or anirmation above prescribed together with the following additions thereto, as part thereof : " And I do further solemnly swear (or offinn) that I have not vJM directly or indirectly paid, offered or promised to pay. contribut- (181) ed, or offered or promised to contribute any money or other valu- able thing as a consideration or' re Avard for the giving or with- holding a vote at the election at Avhich I was elected to said oftice. and hare not made any promise to influence the giving or with- holding any such vote," and no other oath, declaraticm or test (114) shall be required as a qualification for any otHce of public trust. 2. Taldng brihes. — Any person holding affice midei- the laws of 282 this state, who, except in payment of his legal salary, fees or per- (181) quisites, shall receive or consent to receive, directly or indirectly £i\\\ thing of value or of personal advantage, or the promise there- of, for performing or omitting to perform any official act. or with the express or implied understanding that his official action or omission toact is to be in an}^ degree influenced thereby, shall be deemed guilty of a felony. This section shall not affect the val- dity of any existing statute in relation to the offence of bribery. 3. Offering h)-iheH — Any person who shall offer or promise a 283 bribe to an officer,- if it shall be received, shall be deemetl guilty (131) of a felony and liable to punishment, except as herein jirovided. Xo person offering a bribe shall, upon any prosecution of the of- ficer for receiving such bribe, be privileged from testifying in re- lation thereto, and he shall not be liable to civil or criminal (117) prosecution therefor, if he shall testify to the giving or ottering of of such bribe. Any person who shall offer or promise a bribe, if it be rejected by the officer to whom it was tendered, shall be deemed guilty of an attempt to bribe, which is hereby declared to be a felony. 4. Trial for bribery — Any person charged with rei-eiving a 284 bribe, or with offering or promising a bribe, shall be permitted (131) to testify in his own behalf in any civil or criminal prosecution therefor. 5. Railroad passes — No public officer or peison elected or ap- 285 674 NEW YORK CONSTITUTION ^ « ^ [Art. XIII pointed to a public office, under the laws of this state, shall directly or indirectly ask, demand, accept, receive or consent to receive for his own use or beneSt, or for the use or benefit of another, any free pass, free transportation, franking privilege or disci imination in passenger, telegraph or telephone rates, from an}' person or ccrporation, or make use of the same himself or in conjunction with another. A person who violates any provi- sion of this section, shall b^ deemed guilt}' of a misdemeanor, and shall forfeit his office at the suit of the attornej'-general. An}' corporation or officer or agent thereof, who shall offer or prom- ise to a public officer, or person elected or appointed to a public office, any such free pass, free transportation, franking privilege or discrimination, shall also be deemed guilty of a misdemeanor and liable to punishment, except as herein provided. No person or officer or agent of a corporation giving any such free pass, free transportation, franking privilege or discrimination hereby (117) prohibited, shall be privileged from testifying in relation thereto, and he shall not be liable to civil or criminal prosecution therefor if he shall testify to the giving of the same. — (1894.) 286 6. RemoTcd for failure to prosecute — Any district attorney who shall fail faithfully to prosecute a person charged with the violation in his county of any provision of this article which may come to his knowledge, shall be removed from office by the governor, after due notice and an opportunity of being heard in his defence. The expenses which shall be incurred by any county, in investi- gating and prosecuting any charge of bribery or attempting to bribe any person holding office under the laws of this state, within such county, or of receiving bribes by any such person in said county, shall be a charge against the state, and their pay- ment by the state shall be provided for by law. ARTICLE XTV— Vmeiulments 287 1. Hoic made — Any amendment or amendments to this constitu- (79) tion (1) may be proposed in the senate and assembly; and (2) if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amend- ments shall be entered on their journals, and the yeas and nays taken thereon, and (3) referred to the legislature to be chosen at the next general election of senators, and (4) shall be published ^^My Art. XIV]~^' AMENDMENTS f> I D for 8 months previous to the time of inakin-i- such clioicc: and (.">) if HI the legislature so next chosen, as aforesjiid, such proposed amendment or amendments shall be agreed to by a majority of all the members eleeted to eaeh house, then ((J) it shall be the duty of the legislature to submit such proposed amendment or amendments to the peoi)le for approval in such manner and at such times as the legislature shall luvscribe; and (7) if the jieopie ('2:U) shall approve and ratify such amendment or amendment by a majority of the electors voting thereon, such amendments or amendments shall become a part of the constitution from and after the 1st day of January next after such approval. — (lSJfi;-'J4). 2. Constitutionul conventions— \.t the general election to be held 2IS8 in the year 1916. and every 2()th year thereafter, and also at sucli times as the legislature may bylaw provide, the (piestion. "Shall there be a convention to revise the constitution and amend the same?" shall be decided by the electors of the state; and in case a majorit}' of the electors voting thereon shall decide in favor of a convention for such purpose, the electors of every senate dis- trict of the state, as then organized, shall elect 3 vlelegates at the next ensuing general election at which members of the assembly shall be chosen, and the electors of the state voting at the sjime election shall elect 15 delegates-at-large. The delegates so elected sliall convene ai the capitol on the 1st Tuesday of April next ensu- ing after their election, and shall continue their session until the business of such convention shall have been completed. Every delegate shall receive for his services the same compenstition and the same mileage as shall then be annually payable to tlu- mem- (14(5) bers of the asserabl}'. A majority of the convention shall consti- tute a quorum for the transaction of business, and no amendment to the constitution shall be submitted for approval to the electors as hereinafter provided, unless by the assent of a majority of all the delegates elected to the convention, the yeas and nays being (I.m) entered on the journal to be kept. The convention shall have the power to appoint such officers, employes and assistants as it may deem necessary, and fix thefr compensjition. and to provide for the printing of its documents, journal and proceedings. The conven- tion sliall determine the rules of its own proceedings, choose its OAvn officers, and be the judge of the election returns and (lualitica- ( l.>t)) 676 NEW YORK CONSTITUTION ^ 8 Sj-^^^t XV tions of its members. In case of a vacanc}^ by death, resigna- tion or other cause, of any district delegate elected to the con- vention, such vacancy shall be filled bj' a vote of the remaining delegates representing the district in which such vacanc}' occurs. If such vacancy occurs in the office of a delegate-at-large, such vacancy shall be filled by a vote of the remaining delegates-at- large. xlny proposed constitution or constitutional amendment which shall have been adopted by such convention, shall be submitted to a vote of the electors of the state at the time and in the manner provided by such convention, at an elec- tion w^hich shall be held not less than 6 weeks after the adjourn- ment of such convention. Upon the approval of such constitu- tion or constitutional amendments, in the manner provided in the last preceding section, such constitution or constitutional amend- ment shall go into effect on the 1st day of January next after such approval. — {1846-94.) 289 3. Legislative amendments — Any amendment proposed by a con- stitutional convention relating to the same subject as an amend- ment proposed by the legislature, coincidently submitted to the people for approval at the general election held in the year 1894, or at any subsequent election, shall, if approved, be deemed to supersede the amendment so proposed by the legislature. — (18 4.) ARTICLE XV.— Date of taking effect. 290 1. The constitution shall be in force from and including the 1st day of January, 1895, except as herein otherwise provided. — {1894.) THE SCh ')0L BULLETIN PUBLICATIONS. Books for New York Scliools. 1. A Manual of School Lair. By C. W. Bardeex. Cloth, Ittiiio, pp. 300. Manilla, 50 cts.; cloth, $1.00. This book has been for twenty years the only recognized text-book on the subject. The present edition was wholly re-written in 1896, and brings the subiect up to date. It includes the autiior's "Handbook for School Trustees ", and adds all the questions in school law given at uniform exam- inations from the first to March, 1896, with full answers as jmOlished by the State Department corrected to date according to changes in the law. As school law is hereafter to be required in all teachers' examinations, 2d and 3d grades, as well as 1st, this book is absolutely indispensable to every teacher, and hence has been put in the Standard Teachers Library. 2. Laws of New York relating to Common Schools, with Comments and Instructions, and a digest of Decisions. Leather, 8vo, pp. 807. $-2.50. This is what is known as "The Code of 1888", and is the final authority upon all disputed questions. 3. A Descriptive Geography of the Empire State. By C. \\\ Bardeex. Cloth, 8vo, pp. 126, with 25 outline maps on uniform scale, 5 relief maps, and 125 illustrations. 75 cts. The advance orders for this book exceeded any that have before been re- ceived for any of our publications. Its most marked characteristic is its ap- peal to the eye. Its illustrations are abundant and typical, and its 25 outline maps on uniform scale, each making prominent one thing at a time, commend themselves at sight. No New York school can afford to be without it. 4. A Brief History of the Empire State, for Schools and Families. By Welland Hendrick, A.M. Cloth, small 4to, pp. 201. 75 cts. This book has proved one of our great successes, more than three hun- dred schools having officially adopted it. This subject has been made a part of the Regents' course of study, with special questions in the examina- tions, and the Department of Public Instruction gives it five counts at the examinations for State certificates. "Whether used as a history, or as a sup- plementary reading-book, it has given universal satisfaction. 5. Civil Government for Common Schools, prepared as a manual for public instruction in the State of New York. To which are appended tlie Constitution of the United States, and the Declaration of Independence, etc., etc. By Henry C. NoRTHAM. Cloth, 16mo, pp. 220. 75 cts. This book no longer needs description, as its use is almost universal. The present edition gives all the changes under the new constitution. 6. A Chart of Civil Government. By Charles T. Pooler. Slieets 12 x 18. 5 cts. The same folded for the pocket, in cloth covers, 25 cts. 7. History of Educational Journalism in New York. By C. ^\■. Bar- deex, Paper, 8vo, pp. 45. 50 cts. C. W. BARDEE:^^, Publisher, Syracuse, N. Y. jgcw ^i^ooar JAN 16 1902 LIBRARY OF CONGRESS I'l 027 272 738 7 J