--1. Having shown the nature of a const.i.tution and the manner in which it is made and adopted, it will next be shown how the powers of government under a state const.i.tution are divided. As the excellence of a form of government consists much in a proper separation and distribution of power, this subject deserves special attention.

--2. We notice first the separation of the political and civil powers.

The words _political_ and _civil_ are often used as having the same meaning. Thus, speaking of the system of government and laws of a country, we use the general term, "political inst.i.tutions," or "civil inst.i.tutions;" either of which is deemed correct. But these words have also a particular signification, as has already been shown in the distinction made in preceding chapters between political rights and civil rights, and between the political law and the munic.i.p.al or civil laws. (Chap. II, and III.) Hence it appears, that what we mean by political power is the power exercised by the people in their political capacity, in adopting their const.i.tution and electing the officers of the government; and that, by the civil power is meant the power exercised by these officers in administering the government.

--3. In an absolute government, no such distinction exists; all power is centered in the supreme ruler. There is no political law binding on him.

Being himself restrained by no positive laws or regulations that have been adopted by the people, or that may be altered by them, the people have no political rights. In a mixed government, or limited monarchy, political power is exercised to some extent. Although there is no written const.i.tution adopted by the people, as in a republic, the members of one branch of the law-making power are elected by the people.

In such election they are said to exercise political power.

--4. We notice next the division of the civil power. This power, in well constructed governments, is divided into three departments, the legislative, the executive, and the judicial. The legislative department is that by which the laws of the state are made. The legislature is composed of two bodies, the members of which are elected by the people.

In limited monarchies where one branch of the legislature is elective, the other is an aristocratic body, composed of men of wealth and dignity, as the British house of lords.

--5. The executive department is intrusted with the power of executing, or carrying into effect, the laws of the state. There is in this department a governor, a.s.sisted by a number of other officers, some of whom are elected by the people; others are appointed in such manner as the const.i.tution or laws prescribe. The powers and duties of the governor of a state will be more particularly described in another place.

--6. The judicial department is that by which justice is administered to the citizens. It embraces the several courts of the state. All judges and justices of the peace are judicial officers; and they have power, and it is their business to judge of and apply the law in cases brought before them for trial. A more particular description of the powers and duties of judicial officers, and the manner of conducting trials in courts of justice, will be given elsewhere. (Chap. XVII-XX.)

--7. Experience has shown the propriety of dividing the civil power into these three departments, and of confining the officers of each department to the powers and duties belonging to the same. Those who make the laws should not exercise the power of executing them; nor should they who either make or execute the laws sit in judgment over those who are brought before them for trial. A government in which the different powers of making, executing, and applying the laws should be united in a single body of men, however numerous, would be little better than an absolute despotism.

--8. Again, the legislative department of the civil power is divided.

Under all our state const.i.tutions, the legislature consists of two branches, both of which must agree to a proposed measure before it becomes a law; and in many of the states, it must also be approved by the governor. This is making the chief executive officer a third branch of the law-making power; and is not in accordance with the principle of keeping the several departments of the civil power separate and distinct from each other. The reason for this departure from the general principle mentioned, will be stated in another chapter. (Chap. XI. --16.)

Chapter IX.

State Legislatures--how const.i.tuted.

--1. The legislature of every state in the union is composed of two houses--a senate and a house of representatives. The latter, or, as it is sometimes called, the lower house, in the states of New York, Wisconsin, and California, is called the a.s.sembly; in Maryland and Virginia, the house of delegates; in North Carolina, the house of commons; and in New Jersey, the general a.s.sembly. In most of the states, the two houses together are called _general a.s.sembly_.

--2. The senate, as well as the other house, is a representative body; its members being elected by the people to represent them. Why, then, is only one of the two branches called the house of representatives?

Perhaps for this reason: Under the governments of the colonies, while yet subject to Great Britian, there was but one representative a.s.sembly.

The other branch of the legislature was called a _council_, consisting of a small number of men who were appointed by the king. After the colonies became free and independent states, a senate was subst.i.tuted for the old council, and although it is an elective body, the other house, being much more numerous, is called, by way of distinction, the _house of representatives_.

--3. Senators are chosen annually in the six New England states, namely, Maine, New Hampshire, Vermont, Ma.s.sachusetts, Rhode Island, and Connecticut. In the other states they are elected for terms of two, three, or four years. In most of the states in which senators are elected for longer terms than one year, they are not all elected at the same time. They are divided into cla.s.ses; and those of one cla.s.s go out of office one year, and those of another cla.s.s another year; so that only a part of the senators are elected every year, or every two, or three, or four years.

--4. The senate, as distinguished from the house of representatives, is sometimes called the upper house. It was designed to be a more select body, composed of men chosen with reference to their superior ability, or their greater experience in public affairs.

--5. Senators are differently apportioned in different states. In some states they are apportioned among the several counties, so that the number to be elected in each county shall be in proportion to the number of its inhabitants. In others they are elected by districts, equal in number to the number of senators to be chosen in the state, and a senator is elected in each district. The districts are to contain, as nearly as may be, an equal number of inhabitants; and sometimes they comprise several counties.

--6. Representatives are apportioned among the counties in proportion to the population in each. In some states they are elected in districts of equal population, counties being sometimes divided in the formation of districts. In the New England states, representatives are apportioned among the towns. In about one-half of the states, they are elected annually; in the others, (including-most of the southern and western states,) they are elected every two years.

--7. The different modes of apportioning members of the legislature have in view the same object--equal representation; that is, giving a member to the same number of inhabitants in one county or district as to an equal number in another. But in some counties the population increases more rapidly than in others. The representation then becomes unequal, being no longer in proportion to population.

--8. In order to keep the representation throughout the state as nearly equal as possible; in other words, to secure to the people of every county or district their just proportion of the representatives, the const.i.tution requires that, at stated times, the people of the state shall be numbered, and a new apportionment of senators and representatives be made among the several counties according to the number of inhabitants in each county; or if the state is one in which members of the legislature are chosen in districts, a new division of the state is made into districts.

--9. But the periods of time between the enumerations of the people, are not the same in all the states. In some states the enumerations are made every ten years; in others, shorter periods have been fixed, from eight down to four years. This enumeration or numbering of the people is called taking the census. _Census_ is from the Latin, and was used by the ancient Romans to signify a declaration or statement made before the censors by the citizens, containing an enumeration or register of themselves, their wives, children, servants, and their property and its valuation. In the United States, although the census sometimes includes a similar register, the word usually means simply an enumeration of the people.

--10. The const.i.tution also prescribes the qualifications of senators and representatives. If, as qualifications for an elector, full age, citizenship, and a considerable term of residence in the state and county, are properly required, as we have seen, (Chap. VI. --2-5,) they must be at least equally necessary for those who make the laws. In no state, therefore, are any but qualified electors eligible to the office of senator or representative. In some states, greater age and longer residence are required; and in some, the age and term of residence have been still further increased in the case of senators. The property qualification formerly necessary for members of the legislature, as well as for voters, has been almost entirely abolished. (Chap. VI. --8.)

--11. If a member of the legislature dies, or resigns his office before the expiration of the term for which he was chosen, the vacancy is filled by the election of another person at the next general election, or at a special election called for that purpose, or in such other manner as the const.i.tution may provide. But a person chosen to fill a vacancy, holds the office only for the remainder of the term of him whose place he was chosen to supply.

Chapter X.

Meetings and Organization of the Legislature.

--1. The legislature meets as often as the const.i.tution requires, to enact such laws as may be necessary to promote the public welfare, and to perform such other duties as are a.s.signed to it by the const.i.tution and the laws. In about half of the states, sessions are held annually; in the others biennially, or once in two years. A legislative session includes the daily meetings of a legislature from the time of its first a.s.sembling, to the day of final adjournment. Thus we say the session commenced in January and ended in March. The word _session_ has reference also to a single sitting, from the hour at which the members a.s.semble on any day, to the time of adjournment on the same day. Thus we say, the legislature holds a daily session of four hours; or, it holds two sessions a day, as the case may be.

--2. Meetings of the legislature are held at a place permanently fixed by the const.i.tution; at which place the princ.i.p.al state officers keep their offices. Hence it is called the _seat of government_, or perhaps more frequently, the _capital_ of the state. _Capital_ is from the Latin _caput_, the head, and has come to mean chief, or the highest. A capital city is therefore the chief city of a state or kingdom. But the word _capital_, applied to a city, now generally indicates the seat of government.

--3. When the two houses have a.s.sembled in their respective chambers, some person designated for that purpose administers to the members of each house the oath of office, in which they solemnly swear (or affirm,) that they will support the const.i.tution of the United States, and the const.i.tution of the state, and faithfully discharge the duties of their office.

--4. Each house then proceeds to _organize_ for business, by appointing proper officers, and determining the right of members to seats in the house. In organizing a legislative body, the first thing done is the election of a presiding officer, or chairman, who is usually called _speaker_. The lieutenant-governor, in states in which there is one, presides in the senate, and is called _president of the senate_. In the absence of the presiding officer, a temporary speaker or president is chosen, who is called speaker or president _pro tempore_, commonly abbreviated, _pro tem._, which is a Latin phrase, meaning _for the time_.

--5. The duty of the person presiding is to keep order, and to see that the business of the house is conducted according to certain established rules. When a vote is to be taken, he puts the question, which is done by requesting all who are in favor of a proposed measure, to say _aye_, and those opposed to say _no_. And, when a vote has been taken, he declares the question to be carried or lost. This part of a speaker's business is similar to that of the chairman of an ordinary public meeting.

--6. The other officers chosen by each house are, a _clerk_ to keep a record or journal of its proceedings; to take charge of papers, and to read such as are to be read to the house; and to do such other things as may be required of him; a _sergeant-at-arms_, to arrest members and other persons guilty of disorderly conduct, to compel the attendance of absent members, and to do other business of a like nature: also one or more _door-keepers_. The officers mentioned in this section are not chosen from the members of the house.

--7. The const.i.tution does not prescribe to either house the order of business, or the particular manner in which it shall be done; but authorizes each house to determine for itself the rules of its proceedings. But there are sundry things which it expressly enjoins. It determines what portion of the members shall const.i.tute a quorum to do business. _Quorum_ is the Latin of the English words, _of whom_, and has strangely come to signify the _number_ or _portion_ of any body of men who have power to act for the whole. Thus with reference to a legislative body consisting of a certain number of members, instead of saying, A majority _quorum_ shall have power to act; or, A majority _of whom_ shall have power to act, our const.i.tutions generally say, A majority shall const.i.tute a quorum to do business. In some states, more than a bare majority is required for a quorum.

--8. Const.i.tutions generally require also that the proceedings of legislative bodies shall be open to public inspection. The doors may be closed against spectators only when the public good shall require secrecy. And that the people may be fully informed of what is done, each house is required to keep and publish a journal of its proceedings.

--9. Provision is also made, either by the const.i.tution or by laws against injury or interruption to the business of the legislature.

Members may not, by any prosecution at law, except for crimes and misdemeanors, be hindered during their attendance at the sessions of the legislature, nor in going to or returning from the same. Each house may compel the attendance of absent members. It may for good cause expel a member, and punish, not only its members and officers, but other persons, for disorderly conduct, or for obstructing its proceedings.

Chapter XI.

Manner of Enacting Laws.

--1. When the two houses are duly organized and ready for business, the governor sends to both houses a written communication called _message_, in which, as the const.i.tution requires, he gives to the legislature information of the condition of the affairs of the state, and recommends such measures as he judges necessary and expedient. The message is read to each house by its clerk.

--2. But the measures to which the governor calls the attention of the legislature, are but a small portion of those which are considered and acted upon. Many are introduced by individual members. Others are brought into notice by the pet.i.tions of the people in different parts of the state. _Pet.i.tion_ generally signifies a request or prayer. As here used, it means a written request to the legislature for some favor--generally for a law granting some benefit or relief to the pet.i.tioners. Pet.i.tions are sent to members, usually to those who represent the counties or districts in which the pet.i.tioners live, and are by these members presented to the house.

--3. Now it is evident, that a proper consideration of the numerous subjects pressed upon the attention of the legislature--some of them of very great importance--must require much labor. If the necessary investigation of so many subjects should occupy the time of the whole house, there would not be time enough to act upon one-half of them.

Therefore, in order to dispatch business, the labor of the house must be divided, that the investigation of all the different subjects may be going on at the same time.