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A. Government and Its Functions in General.
§ 8. The State.
10. The Constitution.
11. The Government and Its Relation to Its Subjects.
12. The Functions of Government.
13. The Forms of Government.
14. Confederation of States.
15. The Modern Federal State.
16. The Branches of Government.
B. Government in the United States.
§ 17. General Character of the United States Government. 18. The Colonial Government.
19. Revolutionary Government and Articles of Confederation.
20. The United States Constitution.
21. Relation of the State and Federal Governments.
22. Sovereignty in the United States.
23. Distribution of Powers in the United States.
24. The State Governments.
25. Local Self-Government.
26. Citizenship and Naturalization.
A. GOVERNMENT AND ITS FUNCTIONS IN GENERAL
§ 8. The State. A state is a body of persons, living within a specified territory, permanently organized for the purposes of government.1
Of the various kinds of law which have been mentioned, the municipal or positive law is the one with which we are chiefly concerned. We have already shown that the distinguishing feature of this system is that it is "established by the governmental power in a state." The nature and scope of that law, therefore, can best be understood by an inquiry into the nature and functions of the organization to which the term "state" is applied. Aristotle spoke truly when he said that man is a political animal. He is a creature of many wants, to supply which constant dealings with his fellow men are necessary. It was early found that in these dealings men would not always respect the rights of their fellows through the influence of moral and religious sanctions alone. We may suppose that the fear that others would encroach upon their rights gave rise to a desire for definite laws, the sanctions of which would be certain and prompt in their fulfilment. The organization of political society, or the state, made such rules possible. Without the state as its maker and
1. And see 22 Cyc. 1706.
enforcer, the positive law could not exist. Because this law is necessary to human welfare, the state is also necessary, and history does not reach back far enough into the past to reveal a civilized people without some form of political organization.
§ 9. Sovereignty. Sovereignty is the absolute, unlimited power of governing, without control by or responsibility to any political superior. Only sovereign states are recognized in international affairs.2
The chief purpose of the state is to provide for the establishment and enforcement of the municipal or positive law, or, in other words, to provide for civil government within its territorial limits. In order that this purpose may be accomplished, there is, in legal contemplation, vested somewhere in every independent state the absolute power of exercising governmental control or providing for its exercise. This power is called "sovereignty." At some periods of history, sovereignty was regarded as vested in a single ruler by divine right. At other times, it was believed. to be lodged in certain classes of persons who were presumed to be best able to govern well. In the principal modern states, however, the sovereign power is, in practice at least, recognized to be in the people as a whole.3
A state is said to be sovereign or independent when it has this sovereignty within itself, and dependent when the ultimate governing power exists in some other state or ruler to whom it owes allegiance. Thus, before the Revolution, the sovereignty of the American colonies was not vested in themselves, but was in the English nation. The Declaration of Independence was an assertion that it was wrongfully so vested. After the Revolution, it became inherent in the new American States, and was so recognized. As stated above, only sovereign states are recognized in international affairs.
In an independent state the sovereign power need not be vested in those who actually make and enforce the laws. Assuming sovereignty to be vested in a certain person or persons, there is nothing to prevent their delegating some or all of their governmental powers to agents or officers. This was done only to a very limited extent in those states where sovereignty was regarded as vested in a single ruler or a limited number of persons; but under the modern theory of popular sovereignty, if the number
2. See 22 Cyc. 1716.
3. This doctrine, it need hardly be said, is at the foundation of all American institutions. "We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among
these are life, liberty, and the pursuit of happiness; that, to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed." Declaration of Independence, July 4, 1776.
of persons belonging to a certain state is of sufficient magnitude to render it inconvenient for all to participate directly in the government, which is usually the case, the delegation of power is invariably resorted to. When those possessing the sovereign power in a state delegate the ordinary functions of government to public officers, such officers thus having power to govern within certain limits, that state is said to have representative government.
§ 10. The Constitution. A "constitution" may be defined as the collection of principles and rules, established by the sovereign body, in accordance with which the government of the state is to be conducted. Those possessing the sovereign power are able to impose upon their governmental officers such restrictions as they may see fit. In most states there is a collection of principles and rules, either expressly established by the sovereign body, or which have grown up through custom, by which the action of these officers is controlled, and their relation to the sovereign body defined. This collection of rules and principles is called the "constitution" of the state, and it is said to be the fundamental law of the land. The constitution of a state can legally be changed, therefore, only by those who possess the sovereign power. By them it may be altered in any way, or even abolished.*
§ 11. The Government and Its Relation to Its Subjects. A subject, in one sense, is one who is bound to submit to the control of the government in a state. He may be either (1) a citizen, or (2) an alien.
Set off against those by whom the various powers of governing are exercised, and whom we will call, for want of a better term, the "government," are the remaining members of the community, who, in their relation to the government, are called "subjects." It is the function and power of the government to establish municipal laws, within the limits prescribed by the constitution, and to compel all subjects to obey them. A subject, therefore, is one who is bound to submit to the control of the government in a state. We find these three elements, (a) a sovereign person or body, (b) governmental officials, and (c) subjects, in every important state. In many states a particular person may be a member of more than one class. Indeed, in a state with popular representative government, a person may be a governmental officer, a member of the sovereign body, and a subject at the same time. Such a condition can easily be seen to exist in the United States, in the case of any government official.
As stated above subjects may be either citizens or aliens. A citizen of a state is one who is a permanent member of that state, to which he owes perpetual allegiance. An alien is one who, 5. See 7 Cyc. 132.
4. As to the federal and state constitutions in the United States see infra, §§ 38, 40, 43.
owing perpetual allegiance to some other state, is yet bound to obey the laws of the state in question while within its territorial limits. All persons who are not citizens of a particular state are, as to that state, aliens."
§ 12. The Functions of Government. The primary object of government is recognized to be the protection of the rights of life, liberty, and property. The rules governing these absolute rights of persons form the nucleus of all systems of law. But in civilized states the government usually undertakes also, to a certain extent, to provide for the positive welfare of its subjects. Every modern government, for example, assumes the conduct of a postal system, the coining of money, the regulation of weights and measures, and many other functions which are not connected with the mere administration of justice. These various functions render government a much more complicated process than it would be were it restricted to the protection of personal and property rights.
§ 13. The Forms of Government. The forms of government in different states vary as the character, traditions, and environment of the people who compose them are different. The various forms of government are: (1) Patriarchy, or government of the family. (2) Monarchy, which exists when all governmental powers are vested in a single person. (3) Aristocracy, which exists where all the governmental powers are vested in a limited number of persons. (4) Democracy, which exists where the governmental power is vested in and exercised by the people as a whole.
6. See 2 Cyc. 81.
7. Woodrow Wilson, in his work on "The State," gives the following list of the usual functions of government, using the term "constituent " to indicate those functions which are necessary to the proper administration of justice, and "ministrant " to denote all other ordinary functions:
(a) Constituent functions: (1) The keeping of order, and providing for the protection of persons and property from violence and robbery; (2) the fixing of the legal relations between man and wife, and between parents and children; (3) the regu lation of the holding, transmission, and interchange of property, and the determination of its liabilities for debt and for crime; (4) the determination of contract rights between individuals; (5) the definition and punishment of crime; (6) the administration of justice in civil causes;
(7) the determination of the political duties, privileges, and relations of citizens; (8) dealings of the state with foreign powers, the preservation of the state from external danger or encroachment, and the advancement of its international interests.
(b) Ministrant functions: (1) The regulation of trade and industry; (2) the regulation of labor; (3) the maintenance of thoroughfares; (4) the maintenance of postal and telegraph systems; (5) the manufacture and distribution of gas, the maintenance of waterworks, etc.: (6) sanitation, including the regulation of trades for sanitary purposes; (7) education; (8) care of the poor and incapable; (9) care and cultivation of forests and like matters, such as the stocking of rivers with fish; (10) sumptuary laws, such as "prohibition laws."
Patriarchy. The earliest form of government of which we have any knowledge is the patriarchy. This was the government of the family. But the patriarchal family was not confined to the man and wife with their own minor children simply. When these children grew up and married, they still remained under the control of the first father as long as he lived, and so did his still more distant descendants. The governing authority was exercised, therefore, by the oldest living male from whom all the other members of the family were descended. When he died, his descendants would divide into as many families as he had sons. A modern example of a form of government similar in some respects to the ancient patriarchy is found in the tribal rule of the North American Indians. It is not in vogue in modern civilized states.
Monarchy.- Monarchy is the government which exists when all governmental powers are vested in a single person. It may be either (1) absolute, or (2) limited or constitutional; and either (1) hereditary or (2) elective. This is a very ancient form of government. It has existed in some form at every stage of the world's history. It may take the form of an absolute monarchy, in which the ruler is completely sovereign and irresponsible; or it may be a limited or constitutional monarchy, in which the monarch governs under limitations prescribed by a sovereign power superior to himself. It is almost unnecessary to say that purely absolute monarchies are very scarce in modern times. On the other hand, constitutional monarchy is one of the most important forms of modern government. Again, a monarchy may be hereditary, in which the ruler acquires his right to power by virtue of his descent from a previous ruler; or elective, when he is chosen to fill the office of monarch by vote of the sovereign body.
Aristocracy. Aristocracy is the government which exists when all governmental powers are vested in a limited number of persons. "Aristocracy" literally means the government of the best. The form does not exist in its simplicity in any important modern state, but it enters as an element into many European governments. In ancient times, many pure aristocracies existed. Democracy. Democracy is the form of government which exists when the governmental power in the state is vested in and exercised by the people as a whole. Pure democracy, it is plain, can only exist in very small communities, for it involves the coming together of the whole people to make the laws. The inconvenience of thus assembling is, in large states, obviated by the delegation of the actual governmental duties to public officers.