Chapter V.

The Nature and Objects of a Const.i.tution, and the Manner in which it is made.

--1. Of all the different forms of government which have existed, a republican government, on the plan of that which has been established in this country, is believed to be best adapted to secure the liberties of a people, and to promote the general welfare. Under the reign of a wise and virtuous ruler, the rights of person and property may be fully enjoyed, and the people may be in a good degree prosperous. But the requisite virtue and wisdom have seldom been found in any one man or a few men. And experience has proved that the objects of civil government may be best secured by a written const.i.tution founded upon the will or consent of the people.

--2. The word _const.i.tute_ is from the Latin, and signifies _to set_, to fix, to establish. _Const.i.tution_, when used in a political sense, means the established form of government of a state. In a free government, like ours, it is properly called the _political law_, being established by the people as a body politic, or political body. (Chap. III, --5.) It is also called the _fundamental law_, because it is the _foundation_ of all other laws of the state, which are enacted by the legislature for regulating intercourse between the citizens, and are called the _munic.i.p.al_ or _civil_ law, and must conform to the fundamental, or political law.

--3. A const.i.tution is in the nature of an agreement between a whole community or body politic and each of its members. This agreement or contract implies, that each one binds himself to the whole, and the whole bind themselves to each one, that all shall be governed by certain laws and regulations for the common good.

--4. The nature of a const.i.tution will further appear from the manner in which it is made. It is evident that a people, in establishing a const.i.tution, must have some right or authority to act in the business.

Whence this right is derived, we will not now stop to inquire. There is, however, somewhere power to enact a law authorizing the people to make a const.i.tution and prescribing the manner in which it is to be made.

--5. In forming a const.i.tution, the people must act collectively. But their number is too large to meet in a single a.s.sembly. Therefore they choose a small number to act for them. One or more are chosen in each county, or smaller district, and are called delegates. A _delegate_ is a person appointed by another with power to transact business as his representative. The a.s.sembly composed of the delegates so elected, is called _convention_; a name given to most public meetings other than legislative a.s.semblies. Delegate and representative are words of nearly the same meaning. The latter, however, usually designates a person chosen to a.s.sist in making the laws of the state.

--6. The rules agreed upon by the convention as a basis of government, are arranged in proper form. The several portions relating to the different subjects are called articles, and numbered; and the articles are divided into sections, which also are numbered. But what has been thus prepared by the convention is not yet a const.i.tution. It is only a draft of one, and can not become a const.i.tution without the consent of the people to be given at an election. If a majority of the persons voting at such election vote in favor of the proposed const.i.tution, it is adopted, and becomes the const.i.tution of the state.

--7. One of the most valuable rights of the people under a free government, is the right to have a const.i.tution of their own choice.

Indeed it is in this right that their freedom princ.i.p.ally consists. It is by the const.i.tution that their rights are secured. All the people join in establishing the const.i.tution; but they do not all unite in making and executing the laws; in other words, they do not themselves administer the government; this is done by their representatives. But if these should enact unjust and oppressive laws; the people, having by their const.i.tution reserved the right to displace them, may do so by electing others in their stead.

--8. In an absolute monarchy the people have no political rights--the right to establish a form of government for themselves, and the right to elect those who are to make and administer the laws. The monarch has entire control over his subjects. He can take their lives and property when he pleases. His will is their law; and he has at command a large force of armed men to keep his people in subjection.

--9. In a limited monarchy, the people have some political rights. Such a monarchy is Great Britain. The king or sovereign is in a measure restrained by laws; and he can not make laws alone. The laws are framed and agreed to by parliament, and must be approved by the king or queen.

Parliament consists of two bodies of men, the house of lords and the house of commons. The members of the latter are elected by the people, who, in such election, exercise a political right.

--10. But the political right of establishing a const.i.tution or form of government, is not enjoyed by the people of that country. They have no written instrument, like ours, called const.i.tution, adopted by the people. What is there called the const.i.tution, is the aggregate or sum of laws, principles, and customs, which have been formed in the course of centuries. There is therefore no restraint upon the power of parliament; hence no law which may be enacted is contrary to the const.i.tution; and the people have not the same security against the enactment of unjust laws as the people of the United States.

Chapter VI.

Qualifications of Electors; or, by whom Political Power is exercised in the States of this Union.

--1. One of the first provisions usually inserted in a const.i.tution of a free state, is that which declares who shall be allowed to take a part in the government; that is, to whom the political power shall be intrusted. As this power is exercised by voting at elections, the const.i.tution very properly prescribes the qualifications of electors, or, in other words, declares what shall be necessary to ent.i.tle a man to the right of voting, or the right of suffrage. When, therefore, we speak of the people politically, we mean those only who are qualified electors.

--2. To be competent to exercise the right of suffrage, a person must be a freeman, or, as we sometimes say, he should be his own master. While under the control of a parent or guardian, he might be constrained to act contrary to his own judgment. All our state const.i.tutions, therefore, give this right only to free male citizens of the age of twenty-one years and upwards; twenty-one years being the age at which young men become free to act for themselves.

--3. But even if this freedom were obtained at an earlier age, it would not be expedient to bestow this right upon persons so young. They have not the necessary knowledge and judgment to act with discretion. Some are competent at an earlier age; but a const.i.tution can make no distinction between citizens. It has therefore, in accordance with the general opinion, fixed the time at the age of twenty-one, when men shall be deemed capable of exercising the rights and performing the duties of freemen.

--4. That a man may vote understandingly, he must have resided long enough in the state to have become acquainted with its government and laws, and to have learned the character and qualifications of the persons for whom he votes. State const.i.tutions therefore require, that electors shall have resided in the state for a specified period of time, varying, however, in the different states from three months to two years. In most of the states, they must also have resided for some months in the county or district, and be residents of the town in which they offer to vote.

--5. But in giving the right of suffrage to all free male citizens twenty-one years of age, it is not given to every _man_, because all _men_ of that age are not citizens. Persons born in foreign countries and residing here are _aliens_, and are not ent.i.tled to the political rights of persons born in this country. They are presumed to have too little knowledge of our government, and to feel too little interest in public affairs, on their first coming hither, to be duly qualified for the exercise of political power. Laws, however, have been enacted for naturalizing aliens after they shall have resided here long enough to become acquainted with and attached to our government. By naturalization they become citizens, ent.i.tled to all the privileges of native or natural born citizens, (Chap. x.x.xIV, --3, 4.)

--6. The const.i.tutions of most of the states confer the rights of an elector on _white_ male citizens only. Maine, New Hampshire, Vermont, Ma.s.sachusetts, and Rhode Island, are the only states in which colored men have the same electoral rights as white citizens. In New York, men of color owning a freehold estate (an estate in lands) of the value of $250, are qualified voters.

--7. It is provided also in state const.i.tutions, that electors committing infamous crimes are disfranchised. _Franchise_ is a right or privilege enjoyed by the citizens of a state. Hence the right of voting at elections is called the _elective franchise_; and an elector, when deprived of this privilege, is _disfranchised_. An _infamous crime_ is one which is punishable by imprisonment in a state prison. Men guilty of high crimes are deemed unfit to be intrusted with so important a duty as that of electing the persons who are to make and execute the laws of the state. It is provided, however, that if such persons are pardoned before the expiration of the term for which they were sentenced to be imprisoned, their forfeited rights are restored.

--8. By the earliest const.i.tutions of many of the old states, electors were required to own property, or to have paid rents or taxes, to a certain amount. In the election of the higher officers, freeholders only were ent.i.tled to vote. A _freeholder_ is an owner of real estate, (property in lands,) which he holds in his own right, and may transmit to his heirs. In the const.i.tutions of the newer states, property has not been made a qualification of an elector; and in the amended const.i.tutions of the old states this restriction upon the elective franchise has been removed, until it has nearly ceased to exist in the United States. It is now enjoyed by all white male freemen, with few exceptions, in almost every state of the Union.

Chapter VII.

Elections.

--1. For the convenient exercise of political power, as well as for the purposes of government generally, the territory of a state is divided into districts of small extent. It has been remarked, that the people of a state, being too numerous to meet in one a.s.sembly to make laws and transact the public business, elect a small number to represent them.

But to elect these representatives and other officers, and to adopt the const.i.tution, or fundamental law of the state, are political duties, which must be performed by the people in person, and in a _collective_ capacity. Hence the necessity of small territorial divisions, in which the people may a.s.semble for political purposes.

--2. A state is divided into counties, and these are divided into towns or townships. The people of every county and every town have power to manage their local concerns. The corporate powers of counties and towns, and the election and the powers and duties of county and town officers, will be given in subsequent chapters.

--3. The electors of the state meet every year in their respective towns for the election of officers. Meetings for electing town officers are, in a majority of the states, held in the earlier part of the year. Most officers elected by the people, other than town officers, are chosen at the general state election, which, in most of the states, is held in October or November.

--4. Elections are conducted by persons designated by law, or chosen by the electors of the town for that purpose. It is their duty to preserve order, and to see that the business is properly done. They are usually called _judges of elections_, or _inspectors of elections_. Persons also, (usually two,) serve as clerks. Each clerk keeps a list of the names of the persons voting, which is called a _poll-list. Poll_, which is said to be a Saxon word, signifies _head_, and has come to mean person. Thus, so much a head means so much for every _person_ By a further change it has been made to signify an election, because the persons there voting are numbered. Hence, "going to the polls" has obtained the same meaning as going to an election.

--5. When the inspectors are ready to receive votes, one of them makes it known by proclaiming with a loud voice, that "the polls are now open."

The inspectors receive from each voter a ballot, which is a piece of paper containing the names of the persons voted for, and the t.i.tle of the office to which each of them is to be elected. _Ballot_, from the French, means a little ball, and is used in voting. Ballots are of different colors; those of one color signifying an affirmative vote, or _yes_; those of another color a negative vote, or _no_. From this has come the application of the word ballot to the written or printed ticket now used in voting.

--6. If no objection is made to an elector's voting, the ballot is put into the box, and the clerks enter his name on the poll-list. If the inspectors suspect that a person offering to vote is not a qualified elector, they may question him upon his oath in respect to his qualifications as to age, the term of his residence in the state and county, and citizenship. Any bystander also may question his right to vote. This is called _challenging_. A person thus challenged is not allowed to vote until the challenge is withdrawn, or his qualifications are either proved by the testimony of other persons, or sworn to by himself.

--7. In a few states, the voters are registered. A list is kept of the names of all who have, upon examination, been ascertained to be qualified electors; and those only whose names are on the register are allowed to vote. Thus many interruptions to voting by the examination of voters at the polls, and much illegal voting, are prevented. Voters in some states are also required to take what is called the "elector's oath," in which they promise to be true and faithful to the state and its government, and to the const.i.tution of the United States; and to give their votes as they shall judge will conduce to the best good of the same.

--8. After the polls are closed, the box is opened, and the ballots are counted. If the number of ballots agrees with the number of names on the poll-lists, it is presumed no mistake has been made, either in voting or in keeping the lists. If the election is one for the choosing of town officers, it is there determined who are elected, and their election is publicly declared.

--9. The election of county and state officers can not be determined by the town canva.s.sers. A statement of the votes given in each town for the persons voted for, is sent to the county canva.s.sers, who, from the returns of votes from all the towns, determine and declare the election of the officers chosen for the county. To determine the election of state officers, and of such others as are elected for districts comprising more than one county, a statement of the votes given for the several candidates, is sent by the several boards of county canva.s.sers to the state canva.s.sers, who, from the returns of votes from the several counties, determine the election of the state officers.

--10. In a few states, voting at elections is done _viva voce_. These words mean by word of mouth. In voting in this manner, the elector speaks the name of the person for whom he votes.

--11. In most of the states, persons are elected by a plurality of votes.

An election by _plurality_ is when the person elected has received a higher number of votes than any other, though such number be less than a majority of all the votes given. Suppose, for example, three candidates receive 1000 votes: One receives 450; another, 300; the third, 250 votes. The first, having the highest number, though not a majority, is elected. In the New England, or eastern states, a _majority_, that is, more than one-half of all the votes given, is necessary to the election of many of the higher officers. The least number of votes out of 1000, by which a person can be elected by this rule, is 501.

--12. Either of these modes is liable to objection. When a simple plurality effects an election, 1,000 votes may be so divided upon three candidates as to elect one by 334 votes; or of four candidates, one may be elected by 251 votes, and against the wishes of nearly three-fourths of the electors. An objection to the other mode is, that if no person receives a majority of all the votes, another election must be held.

Numerous trials have, in some instances, been necessary to effect a choice; and the people of a district have remained for a time without a representative in the state or national legislature.

Chapter VIII.

Division of the Powers of Government.