Read CHAPTER VI of Civil Government in the United States Considered with Some Reference to Its Origins, free online book, by John Fiske, on


Section 1. The Colonial Governments.

To this group some writers add Maryland, founded in 1632, because its territory had been claimed by the London Company; but the earliest settlements in Maryland, its principal towns, and almost the whole of its territory, come north of latitude 38 deg. and within the middle zone.

As we have already observed, the westward movement of population in the United States has largely followed the parallels of latitude, and thus the characteristics of these three original strips or zones have, with more or less modification, extended westward. The men of New England, with their Portland and Salem reproduced more than 3000 miles distant in the state of Oregon, and within 100 miles of the Pacific Ocean, may be said in a certain sense to have realized literally the substance of King James’s grant to the Plymouth Company. It will be noticed that the kinds of local government described in our earlier chapters are characteristic respectively of the three original zones: the township system being exemplified chiefly in the northern zone, the county system in the southern zone, and the mixed township-county system in the central zone.

Whether this transfer of the charter was legally justifiable or not is a question which has been much debated, but with which we need not here vex ourselves. The lawyers of the Company were shrewd enough to know that a loosely-drawn instrument may be made to admit of great liberty of action. Under the guise of a mere trading corporation the Puritan leaders deliberately intended to found a civil commonwealth in accordance with their own theories of government.

It is worthy of note that the governing body thus constituted was at once a legislative and a judicial body, like the English county court which served as its model. Inferior courts were organized at an early date in Massachusetts, but the highest judicial tribunal was the legislature, which was known as the General Court. It still bears this name to-day, though it long ago ceased to exercise judicial functions.

We thus observe two kinds of state government in the American colonies. In both kinds the people choose a representative legislative assembly; but in the one kind they also choose their governor, while in the other kind the governor is appointed by the crown. We have now to observe a third kind.

In one respect, however, the Americans did admit that parliament had a general right of supervision over all parts of the British empire. Maritime commerce seemed to be as much the affair of one part of the empire as another, and it seemed right that it should be regulated by the central parliament at Westminster. Accordingly the Americans did not resist custom-house taxes as long as they seemed to be imposed for purely commercial purposes; but they were quick to resist direct taxation, and custom-house taxes likewise, as soon as these began to form a part of schemes for extending the authority of parliament over the colonies.

In England, on the other hand, this theory that the Americans were subject to the king’s authority but not to that of parliament naturally became unintelligible after the king himself had become virtually subject to parliament. The Stuart kings might call themselves kings by the grace of God, but since 1688 the sovereigns of Great Britain owe their seat upon the throne to an act of parliament.

To suppose that the king’s American subjects were not amenable to the authority of parliament seemed like supposing that a stream could rise higher than its source. Besides, after 1700 the British empire began to expand in all parts of the world, and the business of parliament became more and more imperial. It could make laws for the East India Company; why not, then, for the Company of Massachusetts Bay?

Section 2. The Transition from Colonial to State Governments.

Section 3. The State Governments.

In pointing out this inconvenience attendant upon the American plan of separating the executive and legislative departments, I must not be understood as advocating the European plan as preferable for this country. The evils that inevitably flow from any fundamental change in the institutions of a country are apt to be much more serious than the evils which the change is intended to remove. Political government is like a plant; a little watering and pruning do very well for it, but the less its roots are fooled with, the better. In the American system of government the independence of the executive department, with reference to the legislative, is fundamental; and on the whole it is eminently desirable. One of the most serious of the dangers which beset democratic government, especially where it is conducted on a great scale, is the danger that the majority for the time being will use its power tyrannically and unscrupulously, as it is always tempted to do. Against such unbridled democracy we have striven to guard ourselves by various constitutional checks and balances. Our written constitutions and our Supreme Court are important safeguards, as will be shown below. The independence of our executives is another important safeguard. But if our executive departments were mere committees of the legislature like the English cabinet, for example this independence could not possibly be maintained; and the loss of it would doubtless entail upon us evils far greater than those which mow flow from want of leadership in our legislatures.

We must remember that government is necessarily a cumbrous affair, however conducted.

The only occasion on which the governor is a part of the legislature is when he signs or vetoes a bill. Then he is virtually in himself a third house. As an executive officer the governor is far less powerful than in the colonial times. We shall see the reason of this after we have enumerated some of the principal offices in the executive department. There is always a secretary of state, whose main duty is to make and keep the records of state transactions. There is always a state treasurer, and usually a state auditor or comptroller to examine the public accounts and issue the warrants without which the treasurer cannot pay out a penny of the state’s money. There is almost always an attorney-general, to appear for the state in the supreme court in all cases in which the state is a party, and in all prosecutions for capital offences. He also exercises some superintendence over the district attorneys, and acts as legal adviser to the governors and the legislature. There is also in many states a superintendent of education; and in some there are boards of education, of health, of lunacy and charity, bureau of agriculture, commissioners of prisons, of railroads, of mines, of harbours, of immigration, and so on. Sometimes such boards are appointed by the governor, but such officers as the secretary of state, the treasurer, auditor, and attorney-general are, in almost all the states, elected by the people. They are not responsible to the governor, but to the people who elect them. They are not subordinate to the governor, but are rather his colleagues. Strictly speaking, the governor is not the head of the executive department, but a member of it. The executive department is parcelled out in several pieces, and his is one of the pieces.

Such, in brief outline, is the framework of the American state governments. But our account would be very incomplete without some mention of three points, all of them especially characteristic of the American state, and likely to be overlooked or misunderstood by Europeans.

The smallest civil division in France is the commune, which may be either rural or urban. The commune has a municipal council which elects a mayor; but when once elected the mayor becomes directly responsible to the prefect of the department, and through him to the minister of the interior. If these greater officers do not like what the mayor does, they can overrule his acts or even suspend him from office; or upon their complaint the President of the Republic can remove him.

Hence it is commonly remarked that while the general intelligence of the French people is very high, their intelligence in political matters is, comparatively speaking, very low. Some persons try to explain this by a reference to peculiarities of race. But if we Americans were to set about giving to the state governments things to do that had better be done by counties and towns, and giving the federal government things to do that had better be done by the states, it would not take many generations to dull the keen edge of our political capacity. We should lose it as inevitably as the most consummate of pianists will lose his facility if he stops practising. It is therefore a fact of cardinal importance that in the United States the local governments of township, county, and city are left to administer themselves instead of being administered by a great bureau with its head at the state capital. In a political society thus constituted from the beginning it has proved possible to build up our Federal Union, in which the states, while for certain purposes indissolubly united, at the same time for many other purposes retain their self-government intact. As in the case of other aggregates, the nature of the American political aggregate has been determined by the nature of its political units.

Compared with the vast prerogatives of the state legislatures, these limitations seem small enough. All the civil and religious rights of our citizens depend upon state legislation; the education of the people is in the care of the states; with them rests the regulation of the suffrage; they prescribe the rules of marriage, the legal relations of husband and wife, of parent and child; they determine the powers of masters over servants and the whole law of principal and agent, which is so vital a matter in all business transactions; they regulate partnership, debt and credit, insurance; they constitute all corporations, both private and municipal, except such as specially fulfill the financial or other specific functions of the federal government; they control the possession, distribution, and use of property, the exercise of trades, and all contract relations; and they formulate and administer all criminal law, except only that which concerns crimes committed against the United States, on the high seas, or against the law of nations. Space would fail in which to enumerate the particulars of this vast range of power; to detail its parts would be to catalogue all social and business relationships, to examine all the foundations of law and order.

This enumeration, by Mr. Woodrow Wilson, is so much to the point that I content myself with transcribing it. A very remarkable illustration of the preponderant part played by state law in America is given by Mr. Wilson, in pursuance of the suggestion of Mr. Franklin Jameson. Consider the most important subjects of legislation in England during the present century, the subjects which make up almost the entire constitutional history of England for eighty years. These subjects are Catholic emancipation, parliamentary reform, the abolition of slavery, the amendment of the poor-laws, the reform of municipal corporations, the repeal of the corn laws, the admission of Jews to parliament, the disestablishment of the Irish church, the alteration of the Irish land laws, the establishment of national education, the introduction of the ballot, and the reform of the criminal law. In the United States only two of these twelve great subjects could be dealt with by the federal government: the repeal of the corn laws, as being a question of national revenue and custom-house duties, and the abolition of slavery, by virtue of a constitutional amendment embodying some of the results of our Civil War. All the other questions enumerated would have to be dealt with by our state governments; and before the war that was the case with the slavery question also. A more vivid illustration could not be asked for.

How complete is the circle of points in which the state touches the life of the American citizen, we may see in the fact that our state courts make a complete judiciary system, from top to bottom independent of the federal courts. An appeal may be carried from a state court to a federal court in cases which are found to involve points of federal law, or in suits arising between citizens of different states, or where foreign ambassadors are concerned. Except for such cases the state courts make up a complete judiciary world of their own, quite outside the sphere of the United States courts.