Cyclopædia of Political Science, Political Economy, and the Political History of the United States
STATES, Constitutional and Legal Diversities in. Nothing more forcibly evinces the complex character of American political institutions than the numerous variations in the constitutions or fundamental laws of the states forming the American Union. The controlling power of the federal constitution in matters where it is made the supreme law of the land is fully treated elsewhere in this work. But the large variety of powers relating to the internal polity of states, to local administration, revenue, expenditure and taxation, to the laws to property, to corporations, municipal or private, to the administration of justice, to the domestic relations, etc., come within the cognizance of the several state constitutions, and of the laws made in pursuance thereof by state legislative bodies. States exercise not only the right of eminent domain within their own boundaries, limited only by the power granted to congress to regulate commerce between the states (a power of hitherto undefined and unknown extent), but they are continually adding statute to statute for the regulation of the community in every conceivable direction, until their constitutions and the body of laws enacted in each state form a vast and sometimes unwieldy mass of legislation, rendering it difficult to ascertain with precision the actual law on any subject, in any state. Still more complicated and vexatious, to the stranger studying our institutions, is the divided jurisdiction between the national and the state governments, and between the latter and the counties or municipalities and towns which combine to make up the state. A citizen of the United States, besides his allegiance to the national government, which manages foreign relations, and legislates for commerce and navigation, public lands, pensions, patents, copyright, money, tariff and internal revenue, and other objects of national control, also owes allegiance to the state government, which taxes him to maintain a large body of legislative, executive and judicial officers, and extensive public school system, institutions for the care of the unfortunate classes, for the punishment of crime, and sometimes for a system of public and internal improvements of great extent, besides other collateral objects of expenditure. To this is to be added a citizen's share in local government and expenditure, including highways and the administration of justice, besides, in frequent cases, taxes for public buildings, bridges, or other objects of county necessity or ambition. Then, to close the chapter of his divided political allegiance, after he has discharged his obligation to the United States, to his state, and to the county to which he belongs, the citizen is still further subject to participation in the maintenance of a city or town government in the place of his immediate abode.
—It had been designed to treat, under the head of Constitutions (variations of State), in the first volume of this work, the diversities prevailing in the political regulations of the various states of the Union; but it was found that very many of these variations are controlled by statute, and noy by direct constitutional provisions. To sum up in connected order the more important differences which prevail in the various states in matters of the widest public interest, is the object of the present article. For greater convenience the several topics will be treated the alphabetical order.
—ALIENS. Most of the state constitutions exclude aliens, or the subject of foreign governments, from suffrage, until their residence is judged to have been long enough to familiarize them with our political system. But in fifteen states, aliens who have declared their intention to become citizens are invested by the constitution with the right to vote at elections, on the same terms with natives or actual citizens. These states, thus relaxing the rule which excludes from political power aliens who have not fulfilled the prescribed term for naturalization, are Alabama, Arkansas, Colorado, Florida, Indiana, Kansas, Louisiana, Michigan, Minnesota, Missouri, Nebraska, Nevada, Oregon, Texas and Wisconsin. (See
—BALLOT. With the single exception of Kentucky, the constitutions of all the states require the vote at the popular elections to be taken by ballots. Kentucky's constitution provides that the people shall vote viva voce, which, however, is suspended in the case of congressional elections by the United States law requiring congressmen to be chosen by ballot. Voting in state legislature, however, is almost uniformly viva voce, and this is a constitutional requirement in Alabama, California, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Nevada, North Carolina, Pennsylvania, Tennessee and Taxes. (See
—BANKS. Some of the state constitutions prohibit absolutely the incorporation of any banks issuing circulation (e.g., California, Illinois, Indiana, Oregon and Texas). The Wisconsin Constitutions prohibits the charter of any banks, except on approval by a majority of the qualified voters of the state at a general election. In most of the older state constitutions, adopted before the congressional legislation establishing the national bank system, the legislature is empowered to provide for the organization of banks by a general banking law. In ten or twelve states the constitutional provides for the individual liability of the stockholders to the bank creditors to an amount equal to their respective shares. (See
—CAPITAL PUNISHMENT. (See
—CAPITATION TAX. (See
—CENSUS. While the constitution of the United States requires a decennial census, which is at intervals so far removed as greatly to lesson its value in a rapidly growing country but few of the states have made provision for taking a state census in intermediate years. Constitutional provisions in the following named states require the legislature to provide for an enumeration of the people at the dates named respectively: New York and Wisconsin, in 1855, and every tenth year thereafter; Indiana (of voters only), in 1853, and every sixth year thereafter; Michigan, in 1854, and every tenth year there after; Kentucky (voters only), in 1857, and every eighth year thereafter; Kansa, Massachusetts, Minnesota and Oregon, in 1865, and every tenth year following; Tennessee (of voters only), in 1871, and each tenth year thereafter; Florida, Iowa, Nebraska, Nevada and South Carolina, ["if deemed necessary"] in 1875, and each tenth year thereafter; Colorado, in 1885, and every tenth year thereafter; Louisiana, in 1890, and every tenth year thereafter: Maine and Mississippi, once in ten years, to be fixed by the legislature. The constitutions of New Jersey and Rhode Island permit the taking of census by act of the legislature, and this was last done in 1875. No constitutional provision on the subject exists in Alabama, Arkansas, California, Connecticut, Delaware, Georgia, Illinois, Missouri, New Hampshire, North Carolina, Pennsylvania, Texas, Virginia, and West Virginia. The constitution of Maryland, Ohio and Vermont, permit the taking of a census, but no legislative provision has been made for it. It thus appears that in less than half the states is there any provision for a general enumeration of the people which might serve at once as a check upon the national census, and a supplement to its statistics, of incalculable economic value for purposes of comparison. In several states whose constitutions formerly provided for a census, this requirement has been dropped out in new constitutions adopted within the last decade. The failure on the part of state legislatures to take an interest in a proper periodical census of their state resources, is to be attributed mainly to a spirit of false economy. Such great commonwealths as Ohio, Pennsylvania, Indiana and Illinois, while providing for certain classes of statistical reports through state officers, have no provision whatever for the record or publication of vital statistics, or of a complete periodical census of their populations. An attempt has been made by congressional legislation to encourage the state governments in the work of taking account of their population and resources by providing (act of March 3, 1879), that any state or territory which shall complete a census in 1885, 1895, etc., according to the forms used in the census of the United States, shall be paid from the treasury 50 per cent, of the expenses of actual enumeration in such state at the United States census, increased by one-half the percentage of gain in population in such state or territory between the two United States censuses next preceding.
—CONSTITUTIONS AND CONSTITUTIONAL AMENDMENTS. All the state constitutions have certain common characteristics, while there are great diversities as to political regulations and the distribution and details of legislative, executive and judicial powers. The great cardinal features found in all embody (in some form) a declaration of rights; an assertion of the sovereignty of the people through a representative system; the creation of three co-ordinate departments of government, divided into legislative, executive and judicial; a prescription of the qualifications for the right of suffrage; and a recognition of local self-government. The latter, however, is usually implied rather than formally declared. Constitutions are not the source but the result of personal and political liberty; they grant no rights to the people, but define the rights which they already possess, and provide a systematic organization of governmental powers for their protection. A written constitution is to be viewed in the light of a limitation upon the powers of government in the hands of agents delegated by the people.
—How far state constitutions shall enter into the details of government is a matter determined by the public opinion of the time, as reflected in the popularly elected conventions which frame them. While the earlier constitutions, adopted at the period of the American revolution and later, were more general in the scope of their provisions, many of the more recent ones descend into the particulars of governmental control in each department. The tendency has been to restrain the legislature from passing special acts, and all measures conferring corporate rights or special privileges. It may be said, general, that, with the fewest exceptions, the states of the Union revise their constitutions in from ten to thirty years, each new constitutions growing more democratic than the preceding. The southern states have had much more frequent adoption of new constitutions, since the civil war, growing out of the temporary ascendency of influences and opinions fully treated elsewhere. It is of course a cardinal principle in the making of a constitution that it must be ratified by the people, who alone possess the power of sovereignty. The only exception is in Delaware, whose constitution may be amended by the act of two successive legislatures. The long established usage, when a constitution is revised or superseded by a new one, is for the legislative branch of the government to submit to the qualified voters the question of calling or refusing to call a constitutional convention. The method of doing this is prescribed by the constitution itself, which is to be made the subject of revision. The provision in the constitutions of the various states differ widely as to the proportion of the legislative body required to submit to the people the question of amendment or revision; as to the time fixed for deliberation upon the proposed changes; and, finally, as to the majority of the popular vote required to call a constitutional convention, or to amend the constitution directly. The following analysis exhibits the requirements as to the recommendation and adoption of constitutional amendments in each of the thirty-eight states. Two-thirds of both houses of the legislature must concur in order to propose amendments to the constitution to the popular vote in the following states; Alabama, California, Colorado, Georgia, Illinois, Kansas, Louisiana, Maine, Michigan, Mississippi, Texas and West Virginia. In Florida and South Carolina a two-thirds vote of two successive legislatures is required to submit amendment. In Massachusetts a majority of the senate and two-thirds of the house of two successive legislature are required, and in Vermont two-thirds of the senate and a majority of the house, confirmed by a majority of the next legislature. In Vermont, also, constitutional amendments are adopted by a majority of the votes of the citizens voting thereon. In Delaware the constitution may be amended by vote of two-thirds of each house of the general assembly if the proposed amendment shall be ratified by three-fourths of the next succeeding legislature. This is without direct reference to the people, although the legislature must "duly publish in print" the proposed amendments, "for the consideration of the people," before the election of the legislature which is to pass upon them. Three-fifths of the legislature are required in Maryland, Nebraska, North Carolina and Ohio to propose constitutional amendments. A majority of the members of both houses is sufficient to propose constitutional amendments in Arkansas, Minnesota, Missouri and Rhode Island. A majority of two successive legislatures is required in Indiana, Iowa, Nevada, New Jersey, New York, Oregon, Pennsylvania, Tennessee, Virginia and Wisconsin. In Connecticut a majority of the house of representatives may take the initial step of referring proposed amendments to the next succeeding legislature, and two-thirds of each house must concur in recommending them to the popular vote. In New Hampshire the constitution provides for no legislature action, but requires the selectmen of towns to take a vote in town meeting every seven years whether a convention shall be called to revise the constitution. A majority of voters can order a convention, but two-thirds of the popular vote are required to adopt a constitutional revision or amendment. There is no submission of amendments without a convention. In Kentucky there is no provision for direct amendment, but a majority of the legislature may submit to the people the question of calling a convention; and this requires a majority of legal voters to be carried.
—The provisions as to the popular vote requisite to ratify amendments to the state constitution also vary in different states. Thus, a majority of the whole number of qualified voters is required in Indiana, Missouri, Nevada, New Jersey, New York and Oregon. Rhode Island requires a majority of three-fifths of the votes cast to ratify constitutional amendments. Alabama, Arkansas, Mississippi and Tennessee require a majority of the votes cast for the general assembly to ratify. In South Carolina alone, of all the states, amendments of the constitutional require in order to their adoption not only a majority of the qualified voters of the state, but they must after ward be ratified by two-thirds of each house of the general assembly next succeeding. In the remaining states, California, Colorado, Connecticut, Florida, Georgia, Illinois, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, North Carolina, Ohio, Pennsylvania, Texas, Vermont, Virginia, West Virginia and Wisconsin, constitutional amendments are ratified by a majority of the votes cast on the question of amending the constitution. It very frequently happens in states requiring for ratification a majority of the voters qualified, instead of those actually voting, that the amendments proposed are lost from sheer lack of interest in them. Popular indifference to constitutional questions is very general, and a majority of all the voters has frequently elected candidates for office, while at the same poll constitutional amendments have been lost because failing to receive the required majority of the qualified voters. In the following states a convention to frame a new or revised constitution may be ordered by a vote of a majority of the votes cast: Alabama, California, Colorado, Connecticut, Iowa, Maine, Minnesota, Missouri, Nebraska, Nevada, New Jersey, North Carolina, Pennsylvania, South Carolina, Tennessee, Virginia, West Virginia and Wisconsin. In Maryland, New York and Ohio the question of calling a constitutional convention must be submitted to the people once in every twenty years and a majority of those voting thereon legalizes it. In Michigan the question must be submitted every sixteen years, and in New Hampshire every seven years. In the latter state the town meetings acts directly on the question, without intervention of the legislature. In Rhode Island three-fifths of the qualified electors must vote to call a convention. In Delaware, Indiana and Kentucky a majority of the legal voters is required to call such a body. In Florida, Illinois, Kansas, Michigan and Mississippi a majority of those voting at the same election for members of the legislature is required to call a constitutional convention.
—CORPORATIONS. Most of the more recent state constitutions restrict the power of the legislature to create private corporations by special act, but permit their organization under general laws. The aim is to prohibit or curtail special privileges. Stockholders are generally made liable to creditors for the full amount of their respective interest in the stock.
—COURTS. The court of highest power or final jurisdiction, called in a few states the court of appeals, is designated in nearly all as the supreme court. The mode of appointment, the tenure of office, the number of judges constituting the supreme court, and their compensation, differ greatly in various states, In all, the constitutional fixes the mode of appointment and the jurisdiction, both original and appellate, with power usually given to the legislature to modify the latter; in a few states the number of judges, and in most states their salaries, are left to be fixed by the legislature. The table on page 804 exhibits these variations in a succinct view. It will be seen that only four states provide a life tenure for the judges of the highest judicial tribunal; and in these the incumbents are removable by the legislature for cause or by impeachment. In the remaining thirty-four states the terms for judicial office vary from two years in Vermont, which is the shortest, up to twenty-one years in Pennsylvania, which is the longest, elective term prescribed; although in New Hampshire the judges must retire upon reaching seventy years of age. In all the states judges are re-eligible to that high office. The people elect the judges in twenty-four states; in six states they are chosen by the legislature; while in eight states the governor appoints the supreme court, subject to confirmation by the senate or the council.
—DUELING. This barbarous practice can not claim to be in any popular favor in the United States, since the mark of reprobation has been placed upon it by the constitutions of twenty-five states. The giving or accepting a challenge to fight a duel, or engaging therein either as principal or accessory, is made a disqualification for office by the constitutions of Alabama, Arkansas, Colorado, Georgia, Indiana, Iowa, Kansas, Kentucky, Maryland, Missouri, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee and West Virginia. The constitutions of nine states go further, and declare that a duelist (actual or intended) shall forfeit the privilege of voting at elections, viz., Connecticut, Delaware, Florida, Michigan, Mississippi, Nevada, Texas, Virginia and Wisconsin. Several state constitutional further require that the legislature shall make laws to enforce these disabilities, and to visit other punishments upon offenders. In most of the remaining states special statutes have assigned to dueling a place in the rank of infamous crimes.
—EDUCATION. The constitutions of all the state, except that of Delaware, contain provisions designed to favor the increase of knowledge and the creation of intelligent citizenship through the education of the young. While any system of compulsory education or of training in the higher branches of learning is much controverted, it is generally conceded that the state has the right to require that every child should receive some degree of elementary education. This is directly recognized in all the later and in most of the earlier constitutions, and the general assembly is required to legislate for the establishment and maintenance of a public school system. State school funds are created and invested in most states for educational objects, and the lands granted by congress to the states for school purposes, with their proceeds or income, constitute in many the basis of this fund. Various other funds are pledged to educational purpose in some states. The supervision of common schools in instrusted to a state officer, variously known as superintendent of public instruction, commissioner of common schools, or the secretary of the state board of education, who is usually elected for two years (sometimes four) by the people of the state. Several states devote the entire proceeds of the capitation tax to the school fund e.g., Alabama, Arkansas, California, Louisiana, Mississippi, North Carolina, Tennessee, Texas, Virginia and West Virginia. Many states devote a specific quota of every dollar of tax raised to the fund for public instruction, which is regularly apportioned by the treasury among the county or local officers. Many state constitutions prohibit the legislature, and the counties, towns and school districts, from devoting any school funds to institutions controlled by any sect. Colorado, Florida, Mississippi and Virginia have a state board of education, composed of the superintendent of public instruction (president), the secretary of state, and the attorney general. Missouri adds the governor to these three officers. The constitution of North Carolina provides that the governor, lieutenant governor, secretary of state, treasurer, auditor, superintendent of public instruction and attorney general shall constitute a state board of education. In Texas, the governor, comptroller and secretary of state constitute the board of education.
—Educational statistics do not come within the purpose of this article, but the variations of what is fixed by law as the school age in the different states may here be noted. In Connecticut the age for enrollment in the public schools is from four to sixteen years; in Florida and Maine, four to twenty-one; in Oregon and Wisconsin, four to twenty; in Massachusetts, New Hampshire and Rhode Island, five to fifteen in California, five to seventeen; in New Jersey, five to eighteen; in Maryland, Michigan and Vermont, five to twenty; in Iowa, Kansas, Minnesota, Mississippi, Nebraska, New York and Virginia, five to twenty-one; in South Carolina, six to sixteen; in Georgia, Louisiana and Nevada, six to eighteen; in Kentucky and Missouri, six to twenty; in Arkansas, Colorado, Delaware, Illinois, Indiana, North Carolina, Ohio, Pennsylvania, Tennessee and West Virginia, six to twenty-one; in Alabama, seven to twenty-one; and in Texas, eight to fourteen.
—Regarding compulsory attendance in the public schools, although it has been strongly urged for many years, no wide foothold for the system has yet been acquired in the United State. Connecticut enforced the first practical compulsory education law by its colonial code adopted in 1650; at present, however, even in the "land of steady habits", the difficulty of enforcing the law, with a large school population of foreign birth, is very great. The amended law forbids manufacturers to employ minors under fourteen, unless they have attended school at least three months in each year. Massachusetts has a similar law, and compels parents and guardians to send children between eight and fourteen to school, for twenty weeks every year, unless otherwise under instruction. The Maine school law authorizes towns to enforce the attendance of scholars between six and seventeen. In 1871 New Hampshire and Texas passed laws requiring compulsory school education. In 1872 Michigan passed a compulsory school law, requiring at least twelve weeks' schooling yearly of all between eight and fourteen, nor other wise taught. Nevada, in 1873, passed a law requiring sixteen weeks' attendance. In 1874 similar compulsory laws were passed by California, Kansas, New Jersey and New York. The New York law (unlike the others) specified the studies in which the child is to be instructed; namely, spelling, reading, writing, arithmetic, geography and English grammar. Laws enacting some degree of compulsion to attend school also exist in Ohio, Rhode Island, South Carolina, Vermont and Wisconsin; though in some of these states they are generally disregarded. In no other states, so far as known, are compulsory education laws enforced.
—ELECTIONS. The time of holding elections for state officers is fixed in some states by the constitution, while in others it may be prescribed or altered by the legislature. By act of congress (March 3, 1875) elections of representatives in congress are required to be held on the Tuesday next after the first Monday in November every second year, in 1876 and following years. The states which had different seasons for election of state officers have by degrees assimilated their laws so as to hold all state elections on the Tuesday after the first Monday in November, the only exceptions being Alabama, Arkansas, Georgia, Iowa, Kentucky, Louisiana, Maine, Ohio, Oregon, Rhode Island, Vermont and West Virginia. Annual elections formerly prevailed in most states; but the tendency has been steadily toward electing state officers and legislatures biennially, and the former even once in every four year only, as in California, Louisiana, Mississippi, Missouri, Nevada, Oregon and West Virginia. The only states now holding annual elections are Connecticut, Iowa, Massachusetts, New Jersey, New York, Ohio, Pennsylvania and Rhode Island.
—GOVERNORS. The following table gives the variations as to length of terms of office and salaries of governors of the various states:
—INSOLVENCY. The general subject of bankruptcy has been treated to vol. I., p. 223. In the absence of any general of the United States, most of the states have provided acts regulating insolvency and assignments for the benefit of creditors. The states which have no laws for insolvent debtors are Alabama, Colorado and North Carolina. In California the act of 1880 provides for both voluntary and involuntary bankruptcy through the courts. In the following states assignments of property for the benefit of creditors do not discharge the debtor, except upon the amounts paid, the balance of liabilities standing against him: Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Minnesota, Nebraska, New Hampshire, New Jersey, Ohio, Pennsylvania, Rhode Island, South Carolina and Virginia. In Connecticut the debtor can procure a discharge from liabilities to creditors when his estate pays 70 per cent., but not otherwise. In the following states, debtors making assignments can be released only upon the consent of all the creditors': Maryland, Mississippi, Missouri, Oregon, Tennessee and Texas. Louisiana provides for a discharge of debtor upon the consent of a majority of his creditors in number and amount. In New York and insolvent debtor is discharged on the concurrence of two-thirds in amount and value of his creditors. In Maine, creditors representing three-fourths of the indebtedness must agree in writing to accept a certain percentage, before the debtor can have his discharge. In Massachusetts, voluntary insolvency is provided for, on giving up all property not exempted by law. In voluntary proceedings against a debtor may be instituted by any creditor, on proof of insolvency of fraud. If the assets pay 50 per cent. the debtor is entitled to his discharge; if not, he must obtain the written consent of a majority in number and value of his creditors. In Vermont, the provision of the insolvent law are similar. In the following states a discharge from indebtedness is granted to the debtor upon surrender of his entire estate for the equal benefit of creditors: Arkansas, Florida, Michigan, Nevada, West Virginia and Wisconsin.
—INTEREST AND USURY. The legislatures of all the states in the Union have fixed what shall be the legal rate of interest on money. In thirteen states, however, any rate of interest that may be agreed upon between borrower and lender is legalized; in twenty-four states, there are two interest rates legalized, the lower one to prevail in all cases in the absence of contract, the higher rate to be legalized upon express agreement in writing. Usury is punished by various forfeitures, in thirty-two states and territories. The following table exhibits the various interest rates and penalties for usury in the thirty-eight states, the eight territories, and the district of Columbia:
—LEGISLATURES. All the state constitutions limit and define more or less fully the legislative powers of the body variously styled "the General Assembly," "the Legislature", and (in Massachusetts) "the General Court". The qualifications required for membership in state legislature vary considerably, prescribing a greater or less term of residence in the state, a limit of age (in certain states only), and, in nearly all cases, the requirement of being qualified voters. The number of senators and representatives prescribed in the state constitutions varies greatly in different states. The senatorial bodies are conveniently small, running from nine members only in Delaware, to fifty-one in Illinois, while the members of the other house vary from twenty-one to 321 in number. The popular branch is usually styled "the House of Representatives", but is called "the Assembly" in California, Florida, Nevada, New Jersey, New York and Wisconsin; in Maryland, Virginia and West Virginia it is styled "the House of Delegates", and in all the other states its constitutional designation is "the House of Representatives". The legislative sessions were formerly held annually in most of the states. Of late years, however, there has been a steady drift toward less frequent meetings of state legislatures, nearly every constitution adopted within thirty years providing that the sessions shall be held only biennially, unless special or extraordinary sessions are called. The states whose legislatures still meet every year are six only: Connecticut, Massachusetts, New Jersey, New York, Rhode Island and South Carolina. In Ohio, however, the legislature holds adjourned sessions practically amounting to annual meetings. Some constitutions limit the length of session to terms variously running from forty days to 150. In sixteen states, however, the legislature is without limit save its own discretion as to length of session. The following table exhibits the numbers, terms of office and salaries of state legislatures:
—LIBEL, AND LIBERTY OF THE PRESS. The declaration of rights in nearly every state constitution prohibits any laws to restrain or abridge the liberty of speech or of the press. Many constitutions couple this with a provision that in all prosecutions for libel the truth may be given in evidence to a jury, and if they find the matter charged as libelous to be true, the party shall be acquitted. This clause is a part of the constitutions of Alabama, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas West Virginia and Wisconsin. In the constitutions of the following states the jury is empowered to determine both the law and the facts in cases of libel: Alabama, California, Colorado, Connecticut, Delaware, Georgia, Kentucky, Maine, Maryland, Michigan, Mississippi, Missouri, Nebraska, New Jersey, New York, Pennsylvania, South Carolina, Tennessee, Texas and Wisconsin.
—LIEUTENANT GOVERNORS. In twenty-seven states the lieutenant governor is ex officio president of the senate, and succeeds to the office of governor only upon the death, disability or resignation of that officer elect. The constitutions in eleven states provide for no such officer as lieutenant governor, viz., Alabama, Arkansas, Delaware, Georgia, Maine, Maryland, New Hampshire New Jersey, Oregon, Tennessee and West Virginia.
—LIMITATIONS, STATUTES OF. Limitation laws are designed to fix a reasonable time within which a party is permitted to sue for th recovery of his rights, and imply that his failure to do so furnishes legal presumption that he has no rights in the premises. The following table gives the present state of the laws, barring actions in civil and criminal matters in the various states and territories:
—LOTTERIES. The mischiefs arising from the lottery system, as exhibited in the early decades of this century in many states of the Union, led to constitutional and legal interdiction of these demoralizing games of hazard. In seventeen states the constitution absolutely prohibits the legislature from authorizing any lottery, and in most of them requires it to pass laws prohibiting the sale of lottery tickets. These states are Alabama, Arkansas, California, Colorado, Illinois, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Jersey, Tennessee, Texas, Virginia, West Virginia and Wisconsin. In the following eleven states the constitution itself prohibits lotteries absolutely: Florida, Georgia, Indiana, Iowa, Kansas, Nevada, New York, Ohio, Oregon, Rhode Island and South Carolina. In Louisiana alone the constitution provides that "the general assembly shall have authority to grant lottery charters or privileges; provided, each charter or privilege shall pay not less than forty thousand dollars per annum in money into the treasury of the state; and provided, further, that all charters shall cease and expire on the first of January, 1895, from which time all lotteries are prohibited in this state." Kentucky tolerates lotteries by law. In the remaining nine states there is no constitutional provision on the subject, but lotteries are illegal.
—MARRIAGE AND DIVORCE. In view of the vast importance of the marriage relation to the moral and material well-being of every community, the hasty and shifting legislation which makes a chaos of conflicting state laws, instead of a uniform system, can not be too much deplored. The recently growing laxity of the laws, and still more, of the practice under them, in many states, has led to an unprecedented multiplication of divorces. It is here proposed to note only he diversities prevailing in the statutes regulating marriage and divorce in the various states.
—Marriage is defined as a civil contract in the codes of fifteen states: Arkansas, California, Colorado, Indiana, Iowa, Kansas, Louisiana, Minnesota, Missouri, Nebraska, Nevada, New York, North Carolina, Oregon and Wisconsin. Whether a marriage by simple consent of the parties (without civil or ecclesiastical formalities) is valid at common law, has been disputed; but the supreme court of the United States decided that the intervention of a clergyman is not necessary, and that in the absence of a statute containing express words of nullity, a marriage by mere consent is valid. (96 U. S. Reports, 76.) In two states only, California and Iowa, do the laws expressly recognize simple consent of the parties as adequate to constitute a binding marriage. On the other hand, three states declare void all marriage not solemnized by authorized persons. In twenty-two states whose laws do not declare such marriages invalid, the courts have usually sustained them, when followed by cohabitation, as valid under the common law. Six states, Maine, Mary land, Massachusetts, North Carolina, Tennessee and Vermont, do not recognize such marriages, but require consent before a magistrate or a minister. In some other states, both the law and its adjudication are doubtful on this point.
—Whether a valid marriage can be contracted between those of different race and color, is a question variously decided. The statutes of eighteen states prohibit or render void marriages between white and persons of African descent, viz., California, Colorado, Delaware, Florida, Georgia, Indiana, Kentucky, Maine, Michigan, Mississippi, Missouri, Nebraska, North Carolina, Ohio, Oregan, Tennessee, Texas and Virginia.
—The required ages to render a marriage valid vary greatly. The old common law limit of at least fourteen years for the groom and twelve for the bride, is fixed by statute in Kentucky, Louisiana, new Hampshire, Tennessee, Virginia and West Virginia; the ages of sixteen and fourteen are required in Iowa, North Carolina and Texas; seventeen and fourteen in Alabama, Arkansas, Georgia, Illinois and Indiana; eighteen and fifteen in California, Minnesota, Oregon and Wisconsin; and eighteen and sixteen in Delaware, Michigan, Nebraska, Nevada and Ohio. In other states the common law limit of fourteen and twelve years is upheld without special statute. In seven states, marriage may be annulled because of impotence, and the same disability is made ground for divorce in thirty states. Consanguinity within certain degrees tenders marriage void in twenty-seven states. A marriage between an uncle and a niece is valid in Maryland if contracted before 1878, and absolutely void in Connecticut. In thirty-one states a marriage license or certificate is required, and if the parties are minors, consent of parents must be shown.
—The persons before whom marriage must be solemnized are variously directed to the judges of courts, mayors, justices of the peace, notaries, elders, ministers of the gospel,etc. Public registration of marriages is required by law in thirtythree states, but by no means generally enforced.
—Regarding divorce, three widely different views prevail: 1. That marriage is a sacrament, and indissoluble for any causes arising after marriage. This is the view of the Roman Catholic church. 2. That marriage is a sacred relation, and should be dissolved only for adultery and desertion. 3. That marriage is simply a civil contract, without any religious elements, which, while not revocable by mutual consent, may properly be dissolved for a variety of cogent reasons. The legislation of the various states now recognizes divorce as procurable for cause in all except South Carolina, which, in 1878, repealed all acts permitting divorces. The constitutions of several states prohibit the legislature from granting divorces by special acts; doubtless upon the principle that his is in its nature a judicial act, to be determined on evidence and inquiry, and that legislatures should be restrained from usurping (as the British parliament set the example of doing) the power to declare marriage dissolved. No such restriction of the legislature exists in the New England states, or in New York and Delaware. The latter, however, is the only state where individual cases of divorce are legislatively taken up, and in 1881, thirteen divorces were actually granted. The former law of Connecticut, permitting courts to grant divorces for "any misconduct permanently destroying the happiness of the petitioner and defeating the purposes of marriage," in force for nearly thirty years, produced a scandalous and constantly increasing crop of divorces and was repealed in 1878. Among the legal causes for divorce are; 1, previous marriage, undissolved, in seven states; 2, impotence, in thirty states; 3, insanity at time of marriage, in two states; 4, consanguinity, in five states; 5, pregnancy at time of marriage without the husband's knowledge or agency, in nine states: 6, conviction of an infamous crime before marriage, concealed, in two states; 7, adultery, in thirty-seven states; 8, desertion, in thirty-seven states; 9, cruelty, in thirty-seven states; 10, conviction of or imprisonment for crime, in thirty states; 11, habitual drunkenness, in thirty-five states; 12, neglect or refusal on the part of a husband to provide for his wife in nine states; 13, gross neglect of duty in four states. In New York alone the sole recognized ground for an absolute divorce is adultery. As to desertion, willful absence continued for one year is ground for divorce in eight states—Arkansas, California, Colorado, Florida, Kansas, Kentucky, Missouri and Wisconsin; absence for two years, in nine states—Alabama, Illinois, Indiana, Iowa, Michigan, Mississippi, Nebraska, Nevada and Tennessee; absence for three years, in thirteen states—Connecticut, Delaware, Georgia, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, Ohio, Oregon, Texas, Vermont, and West Virginia; and desertion for five years, in three states—Louisiana, Rhode Island and Virginia. In the other states, no limit of willful absence is specified by statute.
—PARDONING POWER. In most of the states the governor is invested by the constitution with the power of granting pardons, reprieves or commutation of sentence to convicted criminals under sentence; exceptions are made, in the constitutions of twenty states, of treason and impeachment, as cases where no pardoning power can be exercised. In the constitutions of fourteen states impeachment alone withdraws the convicted person from the exercise of the pardoning power. In Vermont alone the crime of murder is added to the two cases just named as beyond the reach of executive clemency. In Oregon the only crime not subject to pardon is treason. In Illinois the governor may grant pardon for all offenses without exception. In Kansas the governor is to exercise the pardoning power only under such restrictions as provided by law. While in twenty-seven states the governor alone is invested with the pardoning power, this power is vested in the governor and council in the states of Maine, Massachusetts, New Hampshire and Vermont; and in the governor and the senate in Rhode Island. Four state constitutions create a board of pardons, to share the responsibility of exercising this power. In New Jersey this board consists of the governor, the chancellor, and the six judges of the court of appeals, a majority of whom must concur in granting pardons. In Florida and Nevada the governor, the justices of the supreme court and the attorney general, or a majority of them, of whom the governor must be one, my grant pardons. In Pennsylvania the governor may exercise the power of pardon only on the written recommendation of the lieutenant governor, secretary of state, attorney general and secretary of internal affairs, or any three of them, after full hearing and public notice recorded and filed in the secretary's office. In Connecticut the governor can grant reprieves only until the end of the next legislative session; he has no pardoning power. In California neither the governor nor the legislature can pardon when the convict has twice been convicted of felony, except on the recommendation of a majority of the judges of the supreme court. The states in which the governor alone is invested with the pardoning power are Alabama, Arkansas, California, Colorado, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New York, North Carolina, Ohio, Oregon, South Carolina, Tennessee, Texas, Virginia, West Virginia and Wisconsin. In Louisiana the governor can pardon only on the recommendation of the lieutenant governor, attorney general, and the presiding judge of the court trying the case, or of any two of them.
—POLL TAX. While a capitation tax is imposed upon males over twenty-one years of age in most of the states by their constitutions or laws, Kansas, Maryland, and Ohio have prohibited by their constitutions the levying of any poll tax. No capitation tax is levied in Delaware, Illinois, Indiana, Iowa, Kentucky, Michigan, Minnesota, Missouri, New York and Pennsylvania. In the remaining states a poll tax is levied, varying in amount from fifty cents to three dollars per annum. These states are Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Louisiana, Maine, Massachusetts, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, West Virginia and Wisconsin. The payment of this tax is a condition precedent of the right to vote in two states only, viz., Massachusetts and Rhode Island. In Virginia the making the payment of a poll tax a condition of suffrage was abolished by constitutional amendment in 1882. In Nevada the legislature may make such payment a condition of the right of voting. In Delaware and Pennsylvania a county tax must have been paid by all electors to entitle them to suffrage. The constitution of Kansas prohibits making the payment of a tax a qualification for exercising the right of suffrage.
—REGISTRATION. In view of the great importance of a well-regulated registration system to secure fair elections, it is not surprising to find it required by law or constitution in twenty-nine states. The constitutions of Colorado, Florida, Maryland, Mississippi, Nevada, North Carolina, Pennsylvania and South Carolina require registration as a prerequisite to suffrage. Missouri's constitution requires it in cities only, doubtless on the theory that in country voting precincts fraud is more easily detected, and less probable, than in populous cities, with floating populations. In like manner the laws of New Jersey and New York require registration in all cities of 10,000 inhabitants and upward, but not elsewhere. No registration is required in Arkansas, Delaware, Georgia, Indiana, Kentucky, Ohio, Oregon, Tennessee, Texas and West Virginia. The constitutions of three states prohibit registration, viz., Arkansas, Texas and West Virginia. In the remaining states a registration system is established by law. It has been asserted (though not generally sustained) that acts of the legislature requiring registration as a prerequisite to voting are unconstitutional in states where the constitution is silent as to registry, because it establishes a test for qualifications of electors not found in the fundamental law.
—RELIGION. Most state constitutions embody in a bill of rights, or elsewhere, declaration that no religious test shall be required for the enjoyment of any civil or political right. But persons who deny the existence of God are disqualified for office by the constitutions of Arkansas, Mississippi, North Carolina, South Carolina and Tennessee; while the constitutions of Maryland, Pennsylvania and Texas imply a belief in a Supreme Being as a qualification for office. Tennessee goes further in requiring belief in a future state of rewards and punishments as a qualification for office, and this after adopting, in its declaration of rights, a provision that "no religious test shall ever be required." The majority of constitutions declare that no preference shall be given by law to any religious sect; New Hampshire alone provides in its constitution that the legislature may authorize towns and parishes the legislature may authorize towns and parishes to provide for the maintenance of Protestant teachers of religion. Connecticut gives the same guarantee to every society or denomination of Christians. The free enjoyment of all religious sentiments and modes of worship is guaranteed in nearly all constitutions. The constitutions of the following states declare that no witness shall be held incompetent to testify because of his religious opinions: California, Florida, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, Nevada, New York, Ohio, Oregon, Texas, West Virginia and Wisconsin. Clergymen are ineligible to the legislature by the constitutions of Delaware, Kentucky, Maryland, Mississippi, New York and Tennessee, and in several of these states they are excluded from any civil office.
—SUCCESSION. Various methods of providing for the succession to the chief magistracy, in case of the death, resignation or disability of the governor, prevail in the different states. Eleven states have no lieutenant governor, and in nine of these the constitution devolves the office of governor upon the president of the senate and the speaker of the house, successively, in case of vacancy. In Maryland the general assembly must elect a governor, if in session when the office is vacant; otherwise, it is filled as in other states. In Oregon, vacancy or inability in the office of governor, devolves it on, 1, the secretary of states, 2, the president of the senate. In nine states the succession falls, first, to the lieutenant governor; second, to the president of the senate pro tempore; third, to the speaker of the house. In twelve states the same constitutional provision exists, except that there is no provision for a vacancy in the third degree. In Wisconsin the vacancy is filled, first, by the lieutenant governor, and secondarily by the secretary of state. In Massachusetts, if the offices of governor and lieutenant governor both become vacant, their duties devolve upon the council. In case of a double vacancy, the constitutions of Indiana, South Carolina, Vermont and Virginia require the general assembly to provide by law what officer shall act as governor.
—SUFFRAGE. The right to participate in elections is fixed in each state by its own constitution and laws; these being subject only to the 15th amendment to the constitution of the United States prohibiting any disabilities as to suffrage on account of color or race. While aliens are generally excluded, fifteen states admit to the suffrage foreigners who have declared their intention to become actual citizens. Other qualifications for suffrage embrace in some states registration (see
—SUNDAY. The laws against desecration of the first day of the week have no constitutional sanction except the recognition of Christianity (in the constitutions of a few states) and the permission to the legislature to make laws promoting religion and morality. The prohibition of labor or sports on Sunday, although found in the laws of most states, is not rigidly or continuously enforced in any. While these laws may be defended on authority and long custom, the fact that their enforcement has more and more fallen into desuetude, is too palpable for denial. These laws may rest either upon specially religious grounds, or upon the humane argument that experience shows one day's rest in seven to be needful to human welfare. Many judicial tribunals, in applying the Sunday laws, have preferred to rest their enforcement upon the second ground rather than the first, but if this utilitarian view of enforced Sunday rest as a benefit to the individual is to prevail, the argument against special Sabbath laws, made by those who rest on the seventh day of the week, is unanswerable. The Jew may urge that the law discriminates against his religion, and is therefore unconstitutional in most of the states. Sunday as a religious obligation properly rests upon the consciences of the community; and the sanction thrown around it by state laws, while of indefinable extent, and often incapable of enforcement, marks the deference that is shown to the habits of the majority in the state. Contracts made on Sunday are void by the laws of many states, though by no means of all.
—VETO POWER. In thirty-four states the assent and signature of the governor are required by the constitution to enact any law. The uniform provision is, that, in case of disapproval of any act by the governor, he shall return it to the house in which it originated, with his objections; the vote must then be taken in both houses by yeas and nays. In nine states the constitution provides that a majority of the whole number of members of the legislature shall be sufficient to enact a law not withstanding the objections of the governor, viz., in Alabama, Arkansas, Connecticut, Indiana, Kentucky, New Jersey, Tennessee, Vermont and West Virginia. In twenty-three states two-thirds of the members of each house are required to pass a law over the governor's veto, namely, in California, Colorado, Florida, Georgia, Illinois, Iowa, Kansas, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New York, Oregon, Pennsylvania, South Carolina, Texas, Virginia and Wisconsin. In two states, Maryland and Nebraska, the constitution requires three-fifths of the legislature to make a law without the approval of the governor. The constitutions of four states confer no power on the governor to veto any act of legislation; these are Delaware, North Carolina, Ohio and Rhode Island.
—WOMEN. The separate rights of married women to their property acquired before marriage, as well as to that acquired afterward by gift or otherwise, are guaranteed by the constitutions of eleven states, including the provision that the wife's property shall not be liable for the debts of her husband. Essentially the same provision has been incorporated in the statutes of nearly all the states. Women are made eligible to offices connected with schools by the constitutions of Louisiana, Minnesota and Pennsylvania, while the right to vote in the election of school officers is conferred upon women in Colorado, Massachusetts, and several other states.
A. R. SPOFFORD.
Return to top