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.[13]
[Footnote 13: Woodrow Wilson, The State: Elements of Historical and
Practical Politics, p. 437.]
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.[14] 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.
[Footnote 14: Jameson, "The Study of the Constitutional
History of the States" J.H.U. Studies, IV., v.]
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.[15] 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.
[Footnote 15: Independence of the state courts.]
[Sidenote: Constitution of the state courts.] We have already had something to say about courts in connection with those primitive areas for the administration of justice, the hundred and the county. In our states there are generally four grades of courts. There are, first, the justices of the peace , with jurisdiction over "petty police offences and civil suits for trifling sums." They also conduct preliminary hearings in cases where persons are accused of serious crimes, and when the evidence seems to warrant it they may commit the accused person for trial before a higher court. The mayor's court in a city usually has jurisdiction similar to that of justices of the peace. Secondly, there are county and municipal courts, which hear appeals from justices of the peace and from mayor's courts, and have original jurisdiction over a more important grade of civil and criminal cases. Thirdly, there are superior courts, having original jurisdiction over the most important cases and over wider of the state areas of country, so that they do not confine their sessions to one place, but move about from place to place, like the English justices in eyre. Cases are carried up, on appeal, from the lower to the superior court. Fourthly, there is in every state a supreme court, which generally has no original jurisdiction, but only hears appeals from the decisions of the other courts. In New York there is a "supremest" court, styled the court of appeals, which has the power of revising sundry judgments of the supreme court; and there is something similar in New Jersey, Illinois, Kentucky, and Louisiana.[16]
[Footnote 16: Wilson. The State, pp. 509-513.]
[Sidenote: Elective and appointive judges.] In the thirteen colonies the judges were appointed by the governor, with or without the consent of the council, and they held office during life or good behaviour. Among the changes made in our state constitutions since the Revolution, there have been few more important than those which have affected the position of the judges. In most of the states they are now elected by the people for a term of years, sometimes as short as two years. There is a growing feeling that this change was a mistake. It seems to have lowered the general character of the judiciary. The change was made by reasoning from analogy: it was supposed that in a free country all offices ought to be elective and for short terms. But the case of a judge is not really analogous to that of executive officers, like mayors and governors and presidents. The history of popular liberty is much older than the history of the United States, and it would be difficult to point to an instance in which popular liberty has ever suffered from the life tenure of judges. On the contrary, the judge ought to be as independent as possible of all transient phases of popular sentiment, and American experience during the past century seems to teach us that in the few states where the appointing of judges during life or good behaviour has prevailed, the administration of justice has been better than in the states where the judges have been elected for specified terms. Since 1869 there has been a marked tendency toward lengthening the terms of elected judges, and in several states there has been a return to the old method of appointing judges by the governor, subject to confirmation by the senate.[17] It is one of the excellent features of our system of federal government, that the several states can thus try experiments each for itself and learn by comparison of results. When things are all trimmed down to a dead level of uniformity by the central power, as in France, a prolific source of valuable experiences is cut off and shut up.
[Footnote 17: For details, see the admirable monograph of Henry Hitchcock, American State Constitutions, p. 53.]