1. What is the term of the governor of your state? the salary? Do you think the salary is adequate? What are the governor's qualifications? Compare the provisions of the present constitution with those of previous constitutions in regard to these matters. Is the governor eligible to succeed himself? Is it customary to reëlect the governor in your state? What, in your opinion, are the relative merits of a one-year term and a four-year term for the governor?
2. Suppose a question should arise as to who was really elected governor, what authority would determine the matter? Are there any circumstances under which the legislature may elect the governor? Is the governor of your state required to vacate his office immediately at the expiration of his term, or is he allowed to hold over until his successor has qualified?
3. Make a list of the names of the men who have held the office of governor of your state, indicating the years they served and the political parties to which they belonged. (This information can be obtained from the blue book or legislative manual or from some history of the state.)
4. Does the constitution of your state provide for a lieutenant governor? In general, what has been the type of men elected to this office?
5. Make a list (from the blue book) of the offices in your state that are filled by appointment by the governor. Do you think the appointive power of the governor ought to be enlarged? Mention some offices now filled by popular election which, in your opinion, should be filled by executive appointment.
6. May the governor of your state remove officers appointed by him? If so, under what conditions? May he remove any officers elected by the people? If he finds that the treasurer of the state has misappropriated a large amount of state money, can he remove him? May the governor of the state remove any local officers? Thus if the sheriff should allow a prisoner in his custody to be lynched by a mob or the mayor of a city should refuse to execute a state prohibition law, may the governor suspend or remove such officers for neglect of duty? If not, are there any means of punishing the negligent officer?
7. What were the principal recommendations in the message of the governor to the legislature at its last session?
8. May the governor of your state veto particular items in appropriation bills? May he sign a bill after the adjournment of the legislature? May he veto a bill upon grounds of public policy as well as upon grounds of unconstitutionality? How many bills were vetoed by the governor at the last session?
9. Is there a civil service law in your state? If so, to what offices and employments does it apply? How are appointments made under the law?
10. For what purposes and under what circumstances may the governor use the military forces in your state? Have there been any instances recently in which the militia was ordered out? What is meant by the governor's "staff"? Find out from the blue book how many regiments of the national guard there are in your state.
11. Are there any restrictions on the power of the governor to grant pardons? May he also grant reprieves and commutations? May he remit fines and forfeitures? May he grant amnesties? Is there a pardon board in your state? If so, how is it constituted and what are its powers? How many pardons have been granted by the present governor?
12. May the courts control the governor by issuing writs to compel him to do his duty or to restrain him from doing certain things? May he be arrested for wrongdoing? May he be compelled to give testimony in the courts? If not, why not? Is there any way by which an unworthy governor may be put out of office before the expiration of his term? Describe the procedure by which this is done.
Function of the Courts.—The legislature enacts the laws, the executive officers enforce them, the courts interpret their meaning and apply them to particular cases. The courts are also the instrumentalities through which the rights guaranteed us by the constitution and the laws are enforced. If your neighbor owes you a debt and refuses to pay, if you make a contract with some one and he refuses to perform the stipulations, if some one injures you in your person or property, in these and countless other instances you must look to the courts for protection or redress. They are the agencies for settling disputes among men, for enforcing contracts, for trying and punishing violations of the law, and for determining what our rights are when they are drawn in dispute.
Grades of Courts.—(1) Justice of the Peace.—At the bottom of the judicial system stand the courts of the justices of the peace, which have jurisdiction of civil cases involving small amounts, usually less than $150, and of petty offenses against the laws. On a level with these courts are certain municipal courts in the cities. The justice of the peace is a magistrate of ancient origin, and in reality his court is important since it is to this court that large numbers of persons resort for the settlement of their disputes. Too little attention is given to the choice of the men who fill this important office, and the result is that the court of the justice of the peace has long been and still is the weakest part of our judicial system. Generally there are several justices in every town or township. Usually they are elected by the people, though sometimes they are appointed. One of the sources of the evils connected with the system is that they are paid fees rather than salaries. This system of compensation often leads them to solicit business and sometimes to divide their fees with lawyers who bring cases to them for trial. They not only try petty civil and criminal cases, but they have the power to conduct preliminary examinations into more serious offenses in order to determine whether there is ground for holding the accused for trial. In case the justice thinks the evidence warrants the trial of the offender, he "binds" him over to await the action of the grand jury.
(2) County Courts.—Next above the court of the justice of the peace is, in some states, the county court, so called because its territorial jurisdiction embraces the entire county. This court has jurisdiction of civil cases involving large amounts and of more serious criminal cases. It also has the right to hear appeals from the justices of the peace.
(3) Circuit Courts.—Still higher in the judicial organization, in most states, are the courts whose territorial jurisdiction embraces a larger area of the state—usually a group of counties—and which are empowered to try any civil or criminal case without reference to the amount in controversy or the character of the offense. They are generally styled circuit courts, because the judge usually travels from county to county holding court in each county in the district or circuit. Sometimes, however, they are called district or superior courts, and in a few states "supreme" courts.
(4) The Supreme Court.—Finally, at the top of the judicial hierarchy is the supreme court, or court of appeals, as it is sometimes called. Unlike the other courts below, its jurisdiction embraces the whole state, and the judges are elected or appointed usually from the state at large. Unlike the other courts, moreover, instead of being held by a single judge, it is held by a bench of judges, the number ranging from three to nine in the different states. It has original jurisdiction in certain cases, but its most important function is that of hearing appeals from the decisions of the lower courts, and of deciding upon the constitutionality of the laws. In cases appealed to it from the lower courts, it has the final word of authority except where a federal question is involved, in which case an appeal may be taken to the United States Supreme Court.
Courts of a Special Character.—The justice's, circuit, and supreme courts are found in all the states, though sometimes designated by different names. In addition to these, however, we sometimes find other courts of a more or less special character.
Probate Courts.—Thus in many states there are separate probate courts for the settlement of the estates of deceased persons, for dealing with matters relating to wills and inheritances, and sometimes with matters affecting orphans and minors. They are occasionally called surrogate's or orphans' courts. In many states, however, there are no separate probate courts, the probate business being taken care of by the county court. In certain other states probate courts are separately provided only for the more populous counties.
Juvenile Courts.—Frequently in the more populous cities there are also juvenile courts for the trial of youthful offenders.
Equity Courts.—In a few states the distinction between law and equity is still maintained, and equity jurisdiction is intrusted to a distinct class of courts. Equity had its origin in the practice of the King of England in early times in granting relief to suitors who, owing to the deficiencies of the common law, could not obtain relief through the courts of law. In time all such petitions came to be addressed to an officer who stood very close to the king and who was called the chancellor. Out of this office there were ultimately evolved the chancery courts which administered justice, not according to the law, but according to a less technical body of rules called equity. Thus there came to be two bodies of rules according to which justice was administered, and two classes of courts through which it was done. The jurisdiction of equity courts included such matters as trusts, accounts, fraud, mistake or accident, and the like. Equity could also prevent wrongs, while law could only punish them.[16] Thus a court of equity could command a person to do something for the benefit of an injured person, or restrain him from committing an injury, while a court of law could only award him damages after the injury had been done—a remedy often worthless or inadequate. The English system of equity, like the common law, was transplanted to America, and both are still in force here except in so far as they have been modified by legislative acts. England, however, abolished the separate system of equity courts in 1873, and left the law courts to administer equity wherever it was applicable. Likewise, in the United States, separate equity courts have been done away with in all except five states, leaving the same courts to administer both law and equity.
The Judges of Courts.—Qualifications.—Generally no qualifications for the judicial office are prescribed by law, except in a few states where it is required that judges shall be lawyers or be "learned in the law." As a matter of fact, however, judges are nearly always lawyers, except in the case of justices of the peace and police magistrates, where extensive knowledge of the law is not essential.
Terms of Office.—The terms of the judges vary widely among the different states. In the early days of our history, the judges generally held their offices during good behavior or until the attainment of a certain age, usually sixty or seventy years. With the growth of democracy, however, most of the states came to adopt short terms for judicial as well as for other public officials. Only in Massachusetts and Rhode Island do the judges of the highest court now serve practically for life. In New Hampshire they serve until they are 70 years of age. Elsewhere the tenure varies from two years, in Vermont, to twenty-one years, in Pennsylvania. In Maryland, the tenure is fifteen years; in New York, fourteen; in several, it is twelve, in some nine, in many six. The advantage of a long term is that it enables the judges to acquire experience and renders them less affected by political influence and popular clamor.
Methods of Choosing the Judges.—In early times the judges were chosen either by the legislature or by the governor. Choice by the legislature was objectionable because it often resulted in selection by political caucuses and in a parceling of the judgeships among the different counties or sections of the state. Appointment by the governor was objectionable to many because it often resulted in the choice of political favorites. Most of the states, therefore, abandoned these methods of choice for popular election, Mississippi in 1832 being the first state to adopt this method. Only in Delaware, Connecticut, New Jersey, Massachusetts, New Hampshire, and Maine, are the higher judges now appointed by the governor,—subject to the confirmation of the state senate or the legislature,—and only in Rhode Island, Vermont, South Carolina, and Virginia are they elected by the legislature. In all the other states they are elected by the people.
The arguments in favor of popular election are that it is more in harmony with the principles of popular government, and, it is claimed by some, tends to secure a higher class of judges, thus doing away with the evils of executive appointment and of legislative choice described above. The objection to this method, however, is that it compels judicial candidates to engage in political contests, and by making their tenures dependent upon popular favor subjects them to the temptation of shaping their decisions to meet the approval of the people, who, obviously, are not always qualified to judge of the soundness of judicial decisions involving intricate questions of law. Such a method, it is claimed by some, tends to secure the election of able politicians rather than of able judges.
Compensation of the Judges.—The pay of the judges, like their terms of service, varies widely among the different states. The salary paid the judges of the highest court is not much more or less than the governor's salary. The highest salary paid in any state to the judges of the highest court is $13,700 per year, in the state of New York,[17] a salary about as large as that of the justices of the United States Supreme Court. In Illinois and a few other states, the justices of the supreme court receive $10,000 a year. Many states pay less than $5,000 a year. This scale of salaries is very low as compared with those in England, where the highest judges receive $25,000, and the lowest, the county judges, $7,500 a year. A few states have provided a system of pensions for their higher judges who have served a certain number of years or who have reached a certain age, after which they are allowed or compelled to retire, but this provision has not yet become general.
Trial of Civil Cases.—The cases brought before the courts for trial are of two general classes: (1) civil actions and (2) criminal actions. A civil action is a suit brought for the enforcement of a private right or to secure compensation for damages on account of injuries sustained through the violation of one's rights. Thus a creditor sues a debtor for refusing to pay a debt; an owner sues to recover property which has been wrongfully taken from him; a householder brings an action against his neighbor for trespassing upon his premises; and so on. The person who brings the action is called the plaintiff; the one against whom it is brought, the defendant; and the two together are known as the parties to the action.
Beginning of a Civil Case.—A civil suit is usually started by the filing of a complaint containing a statement of the facts, with the court, which then issues a summons directing the sheriff or constable to notify the defendant to appear and make answer. If the plaintiff is a creditor and has reason to believe that the defendant is preparing to dispose of his property with the intention of defrauding him, he may ask the court to issue a writ of attachment authorizing the sheriff to take possession of the property. Or if the defendant is in wrongful possession of property belonging to the plaintiff the latter may ask the court to issue a writ of replevin requiring the officers to seize the property and turn it over to the plaintiff. In both cases, however, the plaintiff is required to give a bond for the costs of the suit and for the return of the property in case the court should decide that it does not properly belong to him. The defendant now makes an answer or plea in which he denies the charges of the plaintiff as a whole or in part, or admits their truth but denies the right of action, or maintains that the court has no jurisdiction, or pleads something else in bar of the action. The complaint of the plaintiff and the answer of the defendant are known as the pleadings.
The Trial.—The issue is now joined and the case is ready for trial. If it is a suit in equity, it is tried by the judge alone without a jury. If it is a suit at law, either party may demand a jury, but if both parties agree to waive a jury trial, the case is tried by the judge alone. Frequently civil cases are tried without juries, the parties preferring to leave the decision to the judge. If, however, a jury trial is preferred, a list of qualified persons is prepared and from this list twelve persons, or six, as the parties may agree upon, are selected to try the case. After the jury is sworn the attorney for the plaintiff generally makes a statement of the facts upon which he rests his case. He then calls his witnesses, who testify to their knowledge of the facts as they are questioned by counsel. When the attorney for the plaintiff has completed the examination of each witness, the attorney for the defendant is allowed to cross-examine him. Witnesses are required to confine their testimony to what they know to be the truth, and are not permitted to tell what they believe to be true or what they have learned from mere hearsay.
After the plaintiff has introduced all his evidence, the defendant's case is presented in a like manner, the counsel for the plaintiff this time conducting the cross-examination. When the evidence for the defendant is all in, the plaintiff may introduce evidence in rebuttal, after which the defendant may do likewise. The next step is the argument of counsel. The attorney for each side addresses the jury and endeavors to convince it that the evidence sustains the facts which he has undertaken to prove. The burden of proof in civil cases is usually on the plaintiff, and his attorney generally has the privilege of closing the argument. If the plaintiff has failed to make out a case the judge may dismiss the suit without giving the case to the jury, or if the evidence is such as to admit of but one conclusion, the judge may direct the jury to return a verdict in accordance therewith. But if the evidence leaves the question as to the facts in doubt, the case is given to the jury and it alone can make the decision. Before sending the jury to their room the judge instructs them as to the law applicable to the case, but generally in this country he cannot comment on the weight of the evidence or express any opinion as to the facts. The jury, after receiving its instructions, retires from the court room and deliberates in secret. If, after a reasonable time, the jurymen cannot agree upon a verdict they so report to the judge and are discharged, and the trial must be gone through with again.
Judgment; Execution.—After the return of the verdict, the judge enters judgment in accordance therewith. In most civil cases the judgment, if for the plaintiff, requires the defendant to pay him a certain sum of money as a compensation for the damages he has sustained. If he refuses to pay, an "execution" is issued, that is, the sheriff is required to seize and sell a sufficient amount of the defendant's property to satisfy the judgment. If the suit is one in equity the "decree," as the decision is called, is not usually for the payment of damages but is a command to the defendant to do a specific thing, as, for example, to carry out a contract or to pay a debt; or to refrain from doing something, such as maintaining a nuisance to the injury of the defendant.
Appeal.—After the verdict has been rendered, the losing party may generally take an appeal to a higher court on the ground that errors were committed by the judge in the course of the trial, as, for example, the admission of improper evidence or the exclusion of proper evidence; or because the verdict was contrary to the law and the evidence. The higher court either affirms the judgment of the lower court or reverses it. If it affirms the judgment, it must then be carried out; if it reverses the judgment a new trial is granted and the whole procedure is gone through again.
Trial of Criminal Cases.—Criminal actions, unlike civil actions, are brought, not by the injured party, but by the state whose peace and dignity have been violated by the act complained of. The officer who brings the action in the name of the state is called the prosecuting attorney, the district attorney, or the state's attorney. He conducts preliminary investigations into crimes and presents cases to the grand jury for indictment. If the grand jury returns the indictment, that is, decides that the accused shall be held for trial, the prosecuting officer takes charge of the case and conducts it for the state.
The Arrest.—Usually the first step in the trial of a person charged with crime is to cause his arrest. The person injured, or any one else who may have knowledge of the crime, appears before a magistrate and makes a complaint setting forth the facts in regard to the crime. If the magistrate is satisfied as to the truth of the complaint, he issues a warrant commanding the sheriff or some other police officer to arrest the accused. The warrant must particularly describe the offense, the place where committed, and the circumstances under which it was committed, and must give the name of the person to be arrested. But in some cases an arrest may be made without a warrant, as when an offender is seen committing a crime or when an officer has good reason to believe that the person who is charged with committing a crime is the guilty person. In practice, policemen frequently arrest on mere suspicion, and if they do so in good faith they will rarely be held liable for damages. Any private individual, as well as an officer, may arrest without warrant a person whom he sees committing a crime. He may also arrest a person whom he suspects of having committed a capital crime, although without personal knowledge of his guilt.[18]
Commitment.—When arrested the accused is brought before a justice of the peace and examined. If the justice of the peace, after such examination, believes that the accused should be held for trial, he is committed to jail. If the offense is a minor one it can be tried by the justice of the peace. If it is a more serious crime the justice of the peace can hold the offender to await the action of the grand jury.
Habeas Corpus Proceedings.—If at any time it is alleged that a person is unlawfully deprived of his liberty, a judge may issue a writ of habeas corpus and inquire into the case. In this way an accused person may be set free if there is no sufficient reason for holding him.
Bail.—If the offense is not a capital one, the accused can secure his release from the jail while awaiting trial by giving bail. That is, he can get one or more persons to obligate themselves to pay to the state a certain sum of money should he fail to appear for the trial at the time set. Such persons are called sureties, and they have a certain power of control over the accused as a means of insuring his appearance for the trial. The constitutions of all the states allow the privilege of bail except in capital cases, and they all declare that the amount of bail required shall not be excessive, that is, shall not be more than is sufficient to insure the appearance of the accused for trial. What this amount is must be determined by the judge according to his own discretion, due regard being paid to the gravity of the offense, the nature of the punishment, and the wealth of the defendant or his friends. If the offender has been bound over to await the action of the grand jury, the next step in the proceedings is the indictment.
The Grand Jury is one of the ancient institutions of the common law. The number of persons constituting the grand jury was originally twenty-three, but many of the states have changed this, a common number being fifteen. The grand jury is chosen by lot from a carefully prepared list of persons in the county, qualified to serve. The members are sworn in on the first day of the term of court and are then "charged" by the judge to make a diligent inquiry into all cases of crime that have been committed in the county, and to return indictments against such persons as in their opinion should be held for trial. They then retire to their room and conduct their investigations in secret.
The Indictment.—It must be remembered that the procedure of a grand jury is not in the nature of a trial of the accused; it is only an inquiry to ascertain whether there is sufficient evidence of guilt to warrant his being put on trial. In conducting this investigation, the grand jury hears only one side of the case, that of the prosecution, neither the accused or his witnesses being heard. The prosecuting attorney attends the sessions of the grand jury and aids it in the conduct of its inquiries. He prepares the indictment and it is often upon his recommendation that the grand jury decides to indict or not to indict. In some states the procedure of indictment by grand jury for all offenses, or for all except the most serious ones, has been done away with, the accusation taking the form of an "information" filed by the prosecuting attorney. One of the reasons given for abolishing the grand jury is that it is often a source of delay since it can be called only when the court is in session, and in some communities the court is not in session for long periods in every year.
The Arraignment.—After the accused has been indicted the next step is to bring him before the court and arraign him. The charge is first read to him and he is directed to plead. If he pleads guilty, no further action is taken and the judge imposes the sentence. If he pleads not guilty, the trial proceeds. If he has no counsel to defend him, the court appoints some member of the local bar to act as his attorney, and the lawyer so designated is under a professional obligation to undertake the defense and do all in his power to clear him. In this way the murderer of President McKinley was enabled to have the benefit of counsel. Many writers on criminal law, indeed, contend that the state ought to employ regular public defenders for accused persons just as it employs public prosecutors, since it should be equally interested in seeing an innocent man acquitted as in seeing a guilty one convicted.[19]
Selection of the Jury.—The next step is the impaneling of a jury of twelve persons to try the case. The law requires that the jury shall be selected from the community in which the offense was committed, in order that the accused may have the benefit of any good reputation which he may enjoy among his neighbors. The jury is chosen by lot from a list of persons qualified to perform jury service, and the jurymen are sworn to return a verdict according to the law and the evidence. Each side is allowed to "challenge," that is, ask the court to reject, any juror who has formed an opinion of the guilt or innocence of the accused or who is evidently prejudiced. In addition, each may reject a certain number of jurors "peremptorily," that is, without assigning a cause.
The Trial.—After the jury has been impaneled, the prosecuting attorney opens the trial by reciting the facts of the case and stating the evidence upon which he expects to establish the guilt of the accused, for the law presumes the prisoner to be innocent, and the burden of proof to show the contrary rests upon the state. The procedure of examining and cross-examining the witnesses is substantially the same as in the trial of civil cases. There are well-established rules in regard to the admissibility of evidence and the weight to be attached to it, and if the judge commits an error in admitting improper evidence or in excluding evidence that should have been admitted in the interests of the accused, the prisoner may, if convicted, have the verdict set aside by a higher court and a new trial granted him. One of the rules of procedure is that the jury must be satisfied beyond a reasonable doubt, from the evidence produced, that the accused is guilty.
Verdict; Sentence.—After being charged by the judge as to the law applicable to the case, the jury retire to a room where they are kept in close confinement until they reach a unanimous verdict. If they cannot reach an agreement, they notify the judge, who, if satisfied that there is no longer any possibility of an agreement, discharges them; then the accused may be tried again before another jury. If a verdict of not guilty is returned, the court orders the prisoner to be set free; if a conviction is found, sentence is imposed and the punishment must be carried out by the sheriff or some other officer. The usual punishment is fine, imprisonment in the county jail or state penitentiary, or death inflicted by hanging or electrocution. In a few states, notably Maine, Michigan, Wisconsin, Rhode Island, and Kansas, punishment by death has been abolished.
Probation; Reformation.—Imprisonment is generally for a specified period, though recently in a number of states the indeterminate sentence has been provided, that is, the judge is allowed to sentence the offender for an indefinite period, the length of which will depend upon the behavior of the prisoner and on the promise which he may show of leading a better life after being released. When thus released he may be placed on probation and required to report from time to time to a probation officer in order to show that his conduct is satisfactory. If unsatisfactory, he may be taken up and remanded to prison. The tendency now in all enlightened countries is to adopt a system of punishment that will not only serve as a deterrent to crime but at the same time help to reform the criminal and make a better citizen of him. The old idea that the purpose of punishment was revenge or retribution has nearly everywhere disappeared, and in place of the severities of the old criminal code we have introduced humane and modern methods which are probably just as effective in deterring others from wrongdoing, and besides conduce to the reformation of many unfortunate criminals.
References.—Baldwin, The American Judiciary, chs. viii, xii, xiv, xv, xvii, xxii. Beard, American Government and Politics, ch. xxvi. Bryce, The American Commonwealth (abridged edition), ch. xli. Hart, Actual Government, ch. ix. McCleary, Studies in Civics, chs. ii, vii. Willoughby, Rights and Duties of Citizenship, ch. vii.
Illustrative Material.—1. The legislative manual or blue book of the state. 2. A map showing the division of the state into judicial districts. 3. Copies of legal instruments, such as warrants of arrest, indictments, subpœnas, summonses, etc.
1. What are the several grades of courts in your state? In what judicial district or circuit do you live? Who is the judge for that district or circuit?
2. What are the terms of the supreme court justices? The circuit or district judges? The county judges? Do you think these terms are too short? Would a good behavior term be better?
3. What is the pay of judges in your state? Do you think these salaries are large enough to attract the best lawyers of the state? Are the salaries fixed by the constitution or by act of the legislature?
4. How are the judges chosen? Has the existing method given satisfaction? Do you think judges should engage in politics? Where they are chosen by popular election, should they canvass the district or state as other candidates do?
5. Are there separate chancery (equity) courts in your state? separate probate courts? separate juvenile courts? If not, what courts have jurisdiction of such matters as belong to such courts?
6. How are justices of the peace in your state chosen? What is the extent of their jurisdiction in civil cases? in criminal cases? What is the method of compensating justices of the peace?
7. How often is the circuit court held in your district? How often the county court?
8. How are juries selected in your state? How could a better class of jurors be selected? Do the good citizens show a disposition to shirk jury duty? What are the merits and demerits of the jury system? Do you think a unanimous verdict ought to be required in criminal cases?
9. Is the grand jury retained in your state for making indictments? If not, how are indictments prepared? What is the difference between an indictment and an information?
10. Why are citizens never justified in resorting to lynch law even when there is a flagrant miscarriage of justice? Has there ever been a case of lynching in your county?
11. What are some of the causes for the "delays of the law"? How could delays be shortened and the trial of cases made more prompt?
12. What are the qualities of a good judge? Upon whom are the rights of the people most dependent, the executive officers or the judges?
Nature of the Elective Franchise.—The right of suffrage, that is, the right to take part in the choice of public officials, is sometimes said to be a natural and inherent right of the citizen, but in practice no state acts upon such a principle. The better opinion, as well as the almost universal practice, is that suffrage is not at all a matter of right, but a privilege bestowed by the state upon those of its citizens who are qualified to exercise it intelligently and for the public good. No state allows all its citizens to vote; all the states restrict the privilege to those who are at least twenty-one years of age; all confine the privilege to those who are bona fide residents of the community; and some require educational, property, and other qualifications of various kinds. On the other hand, eight states allow aliens who have formally declared their intention of becoming citizens, to vote equally with citizens in all elections.[20] The terms "voter" and "citizen," therefore, are not identical or synonymous.
Existing Qualifications for Voting.—In the early days of our history restrictions on the voting privilege were much more numerous and stringent than now. Most of the early constitutions limited the privilege to property owners, and some prescribed religious tests in addition. It is estimated that at the beginning of the nineteenth century not more than one person in twenty had the right to vote, whereas now probably the proportion is two in five.
Federal Restriction.—In the United States the power to prescribe the qualifications for voting in both national and state elections belongs to the individual states, subject only to two provisions: in fixing the suffrage they cannot abridge the privilege (1) on account of race, color, or previous condition of servitude, or (2) on account of sex. The first provision is found in the Fifteenth Amendment to the Federal Constitution, adopted in 1870, and its purpose was to prevent the states from denying the privilege of suffrage to negroes who by the Fourteenth Amendment, adopted in 1868, had been made citizens of the United States. The second provision is in the Nineteenth Amendment adopted in 1920. These provisions do not, however, prevent the states from limiting the privilege on other grounds, such as illiteracy, criminality, vagrancy, nonpayment of taxes, and the like.
The Residence Requirement.—In the first place, all the states require residence for a specified period in the state and in the election district in which the voter exercises his privilege of voting. The purpose of this requirement is to confine the franchise to those who have become identified with the interests of the community, and to exclude outsiders or newcomers who are unfamiliar with local conditions and unacquainted with the qualifications of the candidates. The required length of residence in the state ranges from three months in Maine to two years in most of the Southern states, the more usual requirement being one year. The period of residence required in the county or election district is shorter, the most common requirement being three months in the county and one month in the election district.
Educational Tests.—In addition to this requirement, nearly one third of the states insist upon some kind of educational test. Connecticut in 1855 was the first state to require ability to read and write. Massachusetts followed her example shortly thereafter, and the precedent set by these two states was soon followed, with modifications, by California, Maine, Wyoming, New Hampshire, Delaware, and Washington.
The adoption of the Fifteenth Amendment in 1870, which indirectly conferred the right to vote on the negro race, and the unfortunate results which followed the enfranchisement of the large mass of blacks in the South, led some of the Southern states to adopt educational and other restrictions to diminish the evils of an ignorant suffrage. Mississippi in 1890 took the initiative, and required ability either to read the constitution of the state or to understand it when read by an election officer. South Carolina followed her example in 1895, but with the modification that an illiterate person who was the owner of at least $300 worth of property should not be disfranchised. Louisiana, Alabama, North Carolina, Virginia, Oklahoma, and Georgia followed with restrictions based on similar principles. In several of these states, however, the educational qualification does not apply to those who were voters in 1867 (when the negro race was still unenfranchised), or to their descendants, or to those who served in the army or navy during the Civil War. But in 1915 the Supreme Court of the United States decided, in the case of Oklahoma, that these so-called "grandfather" provisions were unconstitutional.
Other Persons Excluded.—Most of the states deny the right to vote to convicted criminals, idiots, and insane persons; some, particularly those of the South, insist that the voter must have paid his taxes; some exclude vagrants, paupers, and inmates of public institutions.
Woman Suffrage.—For a long time women everywhere were denied the right to vote, even long after their civil disabilities had been removed. The principal arguments advanced by the opponents of woman suffrage were: that active participation of women in political affairs would tend to destroy their feminine qualities by forcing them into political campaigns, and thus causing them to neglect their children; that it would tend to introduce discord into family life by setting husband against wife on political issues; that since women are incapable of discharging all the obligations of citizenship, such as serving in the army, militia, or police, they ought not to have all the privileges of citizenship; that a majority of the women did not desire the privilege of voting; and that men could be trusted to care for the interests of the whole family.
Arguments in Favor of Woman Suffrage.—In favor of giving the ballot to women, it was argued that differences of sex do not constitute a logical or rational ground for granting or withholding the suffrage if the citizen is otherwise qualified; that women should be given the ballot for their own self-protection against unjust class legislation; that since millions of them had become wage earners and were competing with men in nearly every trade and occupation and in many of the learned professions, the argument that the wage earner should have the ballot as a means of defense applied equally to women as to men; that since the old civil disabilities to which they were formerly subject, such as the inability to own real estate, enter into contracts, and engage in learned professions had been removed, it followed logically that their political disabilities should be removed also; and that since many of them had become property owners and taxpayers it was unjust to permit the shiftless nontaxpaying male citizen to take part in choosing public officials and at the same time deny the right to women taxpayers. Moreover, it was argued that the admission of women to a share in the management of public affairs would elevate the tone of politics and conduce to better government. Women are vitally interested in such matters as taxation, education, sanitation, labor legislation, pure food laws, and better housing conditions in the cities, and it was maintained that in those states where they had been given the right to vote they had been instrumental in securing wise legislation on many of these subjects. Finally, it was argued, the fact that some women do not care for the privilege is no reason why it should be denied to those who do desire it.
The Enfranchisement of Women..—These arguments in favor of suffrage for women gradually made a strong appeal to the men and one state after another conferred a limited suffrage on women citizens. At first they were allowed to vote in school elections, or in municipal elections, or on proposed bond issues (if they were taxpayers). From this it was a short step to equal suffrage with men in all elections and by 1920 there were some sixteen states in which this right had been conferred upon women. In the meantime various foreign countries, including England and even Germany, had granted the full right of suffrage to women. After long agitation on the part of American women, Congress in 1919 submitted to the state legislatures an amendment to the Federal Constitution providing for full woman suffrage in all the states, and this nineteenth amendment was ratified in 1920.
The Duty to Vote.—The better opinion is that the exercise of the suffrage is not only a high privilege conferred by the state on a select class of its citizens, but is a duty as well. Among the great dangers of popular government are indifference and apathy of the voters. If popular government is to be a success, we must have not only an intelligent and honest electorate but also one which is wide-awake and vigilant. Under a democratic system of government like ours, the character of the government is largely what the voters make of it. If we are to have capable and honest officials to enact laws and enforce them, the voters must see to it that such men are nominated and elected and compelled by the pressure of a vigorous and alert public opinion to the faithful performance of their duties. Every voter should inform himself as to the qualifications of candidates for office and as to the merits of policies upon which he is called to express an opinion, and having done this, he ought to go to the polls and contribute his share to the election of good men and the adoption of wise public measures.
Compulsory Voting.—The question has sometimes been discussed as to whether one who possesses the privilege of voting ought not to be legally required to exercise it just as the citizen is compelled to serve on the jury or in the militia. Several European countries, notably Belgium and Spain, have adopted a system of compulsory suffrage under which failure to vote is punishable by disfranchisement, an increase of taxes, publication of the name of the negligent voter as a mark of censure, etc. But however reprehensible the conduct of the citizen who neglects his civic obligations and duties as a member of society, it is hardly the province of the state to punish the nonperformance of such a duty. Moreover, if required by law the duty might be exercised as a mere form and without regard to the public good. Better results are likely to be obtained by treating it as a moral duty and a privilege rather than a legal obligation. But public opinion ought to condemn the citizen who without good cause neglects his obligations to society, one of which is the duty to take part in the election of those who are responsible for the government of the country.
The Registration Requirement.—Nearly all of the states now require as a preliminary condition to the exercise of the suffrage that the voter shall be "registered," that is, that he shall have his name entered on a list containing the names of all qualified voters in the election district who are entitled to take part in the election. The purpose of this requirement is to prevent double voting and other abuses of the electoral privilege. In densely populated districts it is impossible for the election judges to know personally all the voters, and hence without some means of identifying them it would be difficult to prevent persons outside the district from taking part in the election or to prevent those properly qualified from voting more than once. In a few communities, however, the old prejudice against such a requirement still prevails; for example, the constitution of Arkansas declares that registration shall not be required as a condition to the exercise of the elective franchise.
Methods of Registration.—Two general types of registration requirements are now in existence. One is the requirement that the voter shall present himself in person before the board of registration prior to each election and get his name on the list. The chief objection to this requirement is that it constitutes something of a burden to the voter and often disfranchises him on account of his negligence or inability to register on the day prescribed.
The other type of registration requirement is in force in Massachusetts, Pennsylvania, and many other states. Where this system prevails, when the voter's name is placed on the registration list, it is kept there so long as he remains in the district, and it is unnecessary for him to register each year. The principal criticism of this plan is that the registration list is less likely to be correct, because the names of persons who have died or moved away are likely to be kept on the list; whereas under the other method they would be stricken off.
Time of Holding Elections.—National elections for the choice of President and Vice President are held on the Tuesday after the first Monday in November every four years. Elections for representatives in Congress are held on the same date, in most states, every second year. Elections for state officers are generally held on the same day as national elections, though where state officers are chosen annually, state elections of course come oftener. A few states, however, prefer to hold their elections at a different date from that on which national elections are held. Four states, Kentucky, Maryland, Massachusetts, and Virginia, hold theirs in the odd years, while national elections always occur in the even-numbered years. A few others which have their elections in the even-numbered years hold them at a different time of the year from that at which national elections are held. Thus Arkansas and Maine hold their state elections in September, Georgia holds her election in October, and Louisiana holds hers in April.
In many of the states an attempt is made to separate national and state elections from municipal elections in order to encourage the voters to select municipal officers without reference to state or national issues. Thus in New York, where national and state elections occur biennially in the even-numbered years, city elections are held in the odd-numbered years. Likewise, in Illinois, city elections are held in April, while state and national elections are held in November. So, too, in some states judicial elections are held at a different date from other elections, in order to minimize the influence of party politics in the selection of judges.
Other local elections—township, county, and village—are held in some cases at the same time as the state election, and in other cases such elections, or some of them, are held on different days.
Manner of Holding Elections.—Before an election can be held, due notice must be given of the time and place at which it is to be held and the offices to be filled or the questions of public policy to be submitted to the voters. For the convenience of the voters the county or city is divided into districts or precincts each containing a comparatively small number of voters, and for each district there is provided a polling place with the necessary number of booths, ballot boxes, and other election paraphernalia. The responsibility for preparing the ballots, giving notice of the election, and providing the necessary supplies is intrusted to certain designated officials. Sometimes the county clerk, sometimes the city clerk, and sometimes, as in the large cities, a board of election commissioners, performs these duties.
Election Officers.—At each polling place, on election day, there is a corps of election judges or inspectors, poll clerks, ballot clerks, and the like. Each party is allowed to have one or more watchers, and frequently there is a police official to maintain order at the polls. While the polls are open, electioneering within a certain number of feet of the election place is forbidden, and usually no person except the election officers, the watchers, and the person who is casting his ballot are allowed in the polling room. Every polling place is equipped with one or more voting booths which must be so constructed as to insure secrecy on the part of the voter while he is marking his ballot. The polls are opened at a designated hour, and before the balloting begins the ballot boxes must be opened and exhibited to show that they are empty, after which they are locked and the casting of the ballots begins.
Evolution of the Ballot.—In the early days of our history, voting was by viva voce, that is, by living voice. Each voter as he appeared at the polling place was asked to state the names of the candidates for whom he desired to vote, and this he did in a distinct voice that could be heard by the bystanders as well as the election officials. The obvious objection to such a method was that it did not secure secrecy, and moreover it stimulated bribery because it was easy for a person who purchased a vote to see that the vote was delivered as paid for. The states soon began to experiment with the method of voting by ballot, and the advantages were so evident that in time this method was adopted in all of them, the last state to abandon the old method being Kentucky in 1891.
At first written ballots were generally used; then it became the practice for each candidate to print his own ballots; and later each party would put on the same ballot the names of all the party candidates and have them printed at the expense of the party. Each of these methods had its disadvantages. When the last method prevailed, for example, the ballots of the different parties were printed on different colored paper, so that it was easy to ascertain a voter's intentions by the color of the ballot in his possession. These ballots were distributed days before the election and were frequently marked by the voter before going to the polls. Such a system not only made secret voting difficult, but it afforded abundant opportunities for using undue influence over certain classes of persons to compel them to vote for particular candidates. To remove these and other evils which increased as time passed, the Australian ballot system, with modifications, was introduced into this country, first by the state of Massachusetts in 1888, and in one form or another it is now found in practically all the states.
The Australian Ballot.—The distinguishing features of the Australian system are the following: The names of all the candidates of every political party are placed on a single ballot; this ballot is printed at public expense and not by the candidates or parties; no ballots are distributed before the election, and none are obtainable anywhere except at the polls on election day, and then only when the voter presents himself to vote; and the ballot can be marked only in voting booths provided for the purpose, and in absolute secrecy.
The Australian system has been more or less modified in all the states where it has been introduced, so that it really does not exist in its pure form anywhere in this country, the nearest approach to it being the Massachusetts system. The prevailing forms may be reduced to two general types: the "office column" type, of which the Massachusetts ballot is a good example; and the "party column" type found in Indiana and many other states.
The "Office Column" Ballot has the names of the candidates for each office arranged in alphabetical order under the title of the office, and to vote such a ballot it is necessary for the voter to look through each column, pick out the candidate he favors, and mark a cross in a blank space opposite each name for which he votes. To do this requires not only considerable time, but a certain amount of intelligence and discrimination.