Loe raamatut: «Government in the United States, National, State and Local», lehekülg 8

Selection of the Jury.– The next step is the impaneling of a jury of twelve persons to try the case. The law requires that the jury shall be selected from the community in which the offense was committed, in order that the accused may have the benefit of any good reputation which he may enjoy among his neighbors. The jury is chosen by lot from a list of persons qualified to perform jury service, and the jurymen are sworn to return a verdict according to the law and the evidence. Each side is allowed to "challenge," that is, ask the court to reject, any juror who has formed an opinion of the guilt or innocence of the accused or who is evidently prejudiced. In addition, each may reject a certain number of jurors "peremptorily," that is, without assigning a cause.

The Trial.– After the jury has been impaneled, the prosecuting attorney opens the trial by reciting the facts of the case and stating the evidence upon which he expects to establish the guilt of the accused, for the law presumes the prisoner to be innocent, and the burden of proof to show the contrary rests upon the state. The procedure of examining and cross-examining the witnesses is substantially the same as in the trial of civil cases. There are well-established rules in regard to the admissibility of evidence and the weight to be attached to it, and if the judge commits an error in admitting improper evidence or in excluding evidence that should have been admitted in the interests of the accused, the prisoner may, if convicted, have the verdict set aside by a higher court and a new trial granted him. One of the rules of procedure is that the jury must be satisfied beyond a reasonable doubt, from the evidence produced, that the accused is guilty.

Verdict; Sentence.– After being charged by the judge as to the law applicable to the case, the jury retire to a room where they are kept in close confinement until they reach a unanimous verdict. If they cannot reach an agreement, they notify the judge, who, if satisfied that there is no longer any possibility of an agreement, discharges them; then the accused may be tried again before another jury. If a verdict of not guilty is returned, the court orders the prisoner to be set free; if a conviction is found, sentence is imposed and the punishment must be carried out by the sheriff or some other officer. The usual punishment is fine, imprisonment in the county jail or state penitentiary, or death inflicted by hanging or electrocution. In a few states, notably Maine, Michigan, Wisconsin, Rhode Island, and Kansas, punishment by death has been abolished.

Probation; Reformation.– Imprisonment is generally for a specified period, though recently in a number of states the indeterminate sentence has been provided, that is, the judge is allowed to sentence the offender for an indefinite period, the length of which will depend upon the behavior of the prisoner and on the promise which he may show of leading a better life after being released. When thus released he may be placed on probation and required to report from time to time to a probation officer in order to show that his conduct is satisfactory. If unsatisfactory, he may be taken up and remanded to prison. The tendency now in all enlightened countries is to adopt a system of punishment that will not only serve as a deterrent to crime but at the same time help to reform the criminal and make a better citizen of him. The old idea that the purpose of punishment was revenge or retribution has nearly everywhere disappeared, and in place of the severities of the old criminal code we have introduced humane and modern methods which are probably just as effective in deterring others from wrongdoing, and besides conduce to the reformation of many unfortunate criminals.

References.– Baldwin, The American Judiciary, chs. viii, xii, xiv, xv, xvii, xxii. Beard, American Government and Politics, ch. xxvi. Bryce, The American Commonwealth (abridged edition), ch. xli. Hart, Actual Government, ch. ix. McCleary, Studies in Civics, chs. ii, vii. Willoughby, Rights and Duties of Citizenship, ch. vii.

Illustrative Material.– 1. The legislative manual or blue book of the state. 2. A map showing the division of the state into judicial districts. 3. Copies of legal instruments, such as warrants of arrest, indictments, subpœnas, summonses, etc.

Research Questions

1. What are the several grades of courts in your state? In what judicial district or circuit do you live? Who is the judge for that district or circuit?

2. What are the terms of the supreme court justices? The circuit or district judges? The county judges? Do you think these terms are too short? Would a good behavior term be better?

3. What is the pay of judges in your state? Do you think these salaries are large enough to attract the best lawyers of the state? Are the salaries fixed by the constitution or by act of the legislature?

4. How are the judges chosen? Has the existing method given satisfaction? Do you think judges should engage in politics? Where they are chosen by popular election, should they canvass the district or state as other candidates do?

5. Are there separate chancery (equity) courts in your state? separate probate courts? separate juvenile courts? If not, what courts have jurisdiction of such matters as belong to such courts?

6. How are justices of the peace in your state chosen? What is the extent of their jurisdiction in civil cases? in criminal cases? What is the method of compensating justices of the peace?

7. How often is the circuit court held in your district? How often the county court?

8. How are juries selected in your state? How could a better class of jurors be selected? Do the good citizens show a disposition to shirk jury duty? What are the merits and demerits of the jury system? Do you think a unanimous verdict ought to be required in criminal cases?

9. Is the grand jury retained in your state for making indictments? If not, how are indictments prepared? What is the difference between an indictment and an information?

10. Why are citizens never justified in resorting to lynch law even when there is a flagrant miscarriage of justice? Has there ever been a case of lynching in your county?

11. What are some of the causes for the "delays of the law"? How could delays be shortened and the trial of cases made more prompt?

12. What are the qualities of a good judge? Upon whom are the rights of the people most dependent, the executive officers or the judges?

CHAPTER VII
SUFFRAGE AND ELECTIONS

Nature of the Elective Franchise.– The right of suffrage, that is, the right to take part in the choice of public officials, is sometimes said to be a natural and inherent right of the citizen, but in practice no state acts upon such a principle. The better opinion, as well as the almost universal practice, is that suffrage is not at all a matter of right, but a privilege bestowed by the state upon those of its citizens who are qualified to exercise it intelligently and for the public good. No state allows all its citizens to vote; all the states restrict the privilege to those who are at least twenty-one years of age; all confine the privilege to those who are bona fide residents of the community; and some require educational, property, and other qualifications of various kinds. On the other hand, eight states allow aliens who have formally declared their intention of becoming citizens, to vote equally with citizens in all elections.²⁰ The terms "voter" and "citizen," therefore, are not identical or synonymous.

Existing Qualifications for Voting.– In the early days of our history restrictions on the voting privilege were much more numerous and stringent than now. Most of the early constitutions limited the privilege to property owners, and some prescribed religious tests in addition. It is estimated that at the beginning of the nineteenth century not more than one person in twenty had the right to vote, whereas now probably the proportion is two in five.

Federal Restriction.– In the United States the power to prescribe the qualifications for voting in both national and state elections belongs to the individual states, subject only to two provisions: in fixing the suffrage they cannot abridge the privilege (1) on account of race, color, or previous condition of servitude, or (2) on account of sex. The first provision is found in the Fifteenth Amendment to the Federal Constitution, adopted in 1870, and its purpose was to prevent the states from denying the privilege of suffrage to negroes who by the Fourteenth Amendment, adopted in 1868, had been made citizens of the United States. The second provision is in the Nineteenth Amendment adopted in 1920. These provisions do not, however, prevent the states from limiting the privilege on other grounds, such as illiteracy, criminality, vagrancy, nonpayment of taxes, and the like.

The Residence Requirement.– In the first place, all the states require residence for a specified period in the state and in the election district in which the voter exercises his privilege of voting. The purpose of this requirement is to confine the franchise to those who have become identified with the interests of the community, and to exclude outsiders or newcomers who are unfamiliar with local conditions and unacquainted with the qualifications of the candidates. The required length of residence in the state ranges from three months in Maine to two years in most of the Southern states, the more usual requirement being one year. The period of residence required in the county or election district is shorter, the most common requirement being three months in the county and one month in the election district.

Educational Tests.– In addition to this requirement, nearly one third of the states insist upon some kind of educational test. Connecticut in 1855 was the first state to require ability to read and write. Massachusetts followed her example shortly thereafter, and the precedent set by these two states was soon followed, with modifications, by California, Maine, Wyoming, New Hampshire, Delaware, and Washington.

The adoption of the Fifteenth Amendment in 1870, which indirectly conferred the right to vote on the negro race, and the unfortunate results which followed the enfranchisement of the large mass of blacks in the South, led some of the Southern states to adopt educational and other restrictions to diminish the evils of an ignorant suffrage. Mississippi in 1890 took the initiative, and required ability either to read the constitution of the state or to understand it when read by an election officer. South Carolina followed her example in 1895, but with the modification that an illiterate person who was the owner of at least $300 worth of property should not be disfranchised. Louisiana, Alabama, North Carolina, Virginia, Oklahoma, and Georgia followed with restrictions based on similar principles. In several of these states, however, the educational qualification does not apply to those who were voters in 1867 (when the negro race was still unenfranchised), or to their descendants, or to those who served in the army or navy during the Civil War. But in 1915 the Supreme Court of the United States decided, in the case of Oklahoma, that these so-called "grandfather" provisions were unconstitutional.

Other Persons Excluded.– Most of the states deny the right to vote to convicted criminals, idiots, and insane persons; some, particularly those of the South, insist that the voter must have paid his taxes; some exclude vagrants, paupers, and inmates of public institutions.

Woman Suffrage.– For a long time women everywhere were denied the right to vote, even long after their civil disabilities had been removed. The principal arguments advanced by the opponents of woman suffrage were: that active participation of women in political affairs would tend to destroy their feminine qualities by forcing them into political campaigns, and thus causing them to neglect their children; that it would tend to introduce discord into family life by setting husband against wife on political issues; that since women are incapable of discharging all the obligations of citizenship, such as serving in the army, militia, or police, they ought not to have all the privileges of citizenship; that a majority of the women did not desire the privilege of voting; and that men could be trusted to care for the interests of the whole family.

Arguments in Favor of Woman Suffrage.– In favor of giving the ballot to women, it was argued that differences of sex do not constitute a logical or rational ground for granting or withholding the suffrage if the citizen is otherwise qualified; that women should be given the ballot for their own self-protection against unjust class legislation; that since millions of them had become wage earners and were competing with men in nearly every trade and occupation and in many of the learned professions, the argument that the wage earner should have the ballot as a means of defense applied equally to women as to men; that since the old civil disabilities to which they were formerly subject, such as the inability to own real estate, enter into contracts, and engage in learned professions had been removed, it followed logically that their political disabilities should be removed also; and that since many of them had become property owners and taxpayers it was unjust to permit the shiftless nontaxpaying male citizen to take part in choosing public officials and at the same time deny the right to women taxpayers. Moreover, it was argued that the admission of women to a share in the management of public affairs would elevate the tone of politics and conduce to better government. Women are vitally interested in such matters as taxation, education, sanitation, labor legislation, pure food laws, and better housing conditions in the cities, and it was maintained that in those states where they had been given the right to vote they had been instrumental in securing wise legislation on many of these subjects. Finally, it was argued, the fact that some women do not care for the privilege is no reason why it should be denied to those who do desire it.

The Enfranchisement of Women.. – These arguments in favor of suffrage for women gradually made a strong appeal to the men and one state after another conferred a limited suffrage on women citizens. At first they were allowed to vote in school elections, or in municipal elections, or on proposed bond issues (if they were taxpayers). From this it was a short step to equal suffrage with men in all elections and by 1920 there were some sixteen states in which this right had been conferred upon women. In the meantime various foreign countries, including England and even Germany, had granted the full right of suffrage to women. After long agitation on the part of American women, Congress in 1919 submitted to the state legislatures an amendment to the Federal Constitution providing for full woman suffrage in all the states, and this nineteenth amendment was ratified in 1920.

The Duty to Vote.– The better opinion is that the exercise of the suffrage is not only a high privilege conferred by the state on a select class of its citizens, but is a duty as well. Among the great dangers of popular government are indifference and apathy of the voters. If popular government is to be a success, we must have not only an intelligent and honest electorate but also one which is wide-awake and vigilant. Under a democratic system of government like ours, the character of the government is largely what the voters make of it. If we are to have capable and honest officials to enact laws and enforce them, the voters must see to it that such men are nominated and elected and compelled by the pressure of a vigorous and alert public opinion to the faithful performance of their duties. Every voter should inform himself as to the qualifications of candidates for office and as to the merits of policies upon which he is called to express an opinion, and having done this, he ought to go to the polls and contribute his share to the election of good men and the adoption of wise public measures.

Compulsory Voting.– The question has sometimes been discussed as to whether one who possesses the privilege of voting ought not to be legally required to exercise it just as the citizen is compelled to serve on the jury or in the militia. Several European countries, notably Belgium and Spain, have adopted a system of compulsory suffrage under which failure to vote is punishable by disfranchisement, an increase of taxes, publication of the name of the negligent voter as a mark of censure, etc. But however reprehensible the conduct of the citizen who neglects his civic obligations and duties as a member of society, it is hardly the province of the state to punish the nonperformance of such a duty. Moreover, if required by law the duty might be exercised as a mere form and without regard to the public good. Better results are likely to be obtained by treating it as a moral duty and a privilege rather than a legal obligation. But public opinion ought to condemn the citizen who without good cause neglects his obligations to society, one of which is the duty to take part in the election of those who are responsible for the government of the country.

The Registration Requirement.– Nearly all of the states now require as a preliminary condition to the exercise of the suffrage that the voter shall be "registered," that is, that he shall have his name entered on a list containing the names of all qualified voters in the election district who are entitled to take part in the election. The purpose of this requirement is to prevent double voting and other abuses of the electoral privilege. In densely populated districts it is impossible for the election judges to know personally all the voters, and hence without some means of identifying them it would be difficult to prevent persons outside the district from taking part in the election or to prevent those properly qualified from voting more than once. In a few communities, however, the old prejudice against such a requirement still prevails; for example, the constitution of Arkansas declares that registration shall not be required as a condition to the exercise of the elective franchise.

Methods of Registration.– Two general types of registration requirements are now in existence. One is the requirement that the voter shall present himself in person before the board of registration prior to each election and get his name on the list. The chief objection to this requirement is that it constitutes something of a burden to the voter and often disfranchises him on account of his negligence or inability to register on the day prescribed.

The other type of registration requirement is in force in Massachusetts, Pennsylvania, and many other states. Where this system prevails, when the voter's name is placed on the registration list, it is kept there so long as he remains in the district, and it is unnecessary for him to register each year. The principal criticism of this plan is that the registration list is less likely to be correct, because the names of persons who have died or moved away are likely to be kept on the list; whereas under the other method they would be stricken off.

Time of Holding Elections.– National elections for the choice of President and Vice President are held on the Tuesday after the first Monday in November every four years. Elections for representatives in Congress are held on the same date, in most states, every second year. Elections for state officers are generally held on the same day as national elections, though where state officers are chosen annually, state elections of course come oftener. A few states, however, prefer to hold their elections at a different date from that on which national elections are held. Four states, Kentucky, Maryland, Massachusetts, and Virginia, hold theirs in the odd years, while national elections always occur in the even-numbered years. A few others which have their elections in the even-numbered years hold them at a different time of the year from that at which national elections are held. Thus Arkansas and Maine hold their state elections in September, Georgia holds her election in October, and Louisiana holds hers in April.

In many of the states an attempt is made to separate national and state elections from municipal elections in order to encourage the voters to select municipal officers without reference to state or national issues. Thus in New York, where national and state elections occur biennially in the even-numbered years, city elections are held in the odd-numbered years. Likewise, in Illinois, city elections are held in April, while state and national elections are held in November. So, too, in some states judicial elections are held at a different date from other elections, in order to minimize the influence of party politics in the selection of judges.

Other local elections – township, county, and village – are held in some cases at the same time as the state election, and in other cases such elections, or some of them, are held on different days.

Manner of Holding Elections.– Before an election can be held, due notice must be given of the time and place at which it is to be held and the offices to be filled or the questions of public policy to be submitted to the voters. For the convenience of the voters the county or city is divided into districts or precincts each containing a comparatively small number of voters, and for each district there is provided a polling place with the necessary number of booths, ballot boxes, and other election paraphernalia. The responsibility for preparing the ballots, giving notice of the election, and providing the necessary supplies is intrusted to certain designated officials. Sometimes the county clerk, sometimes the city clerk, and sometimes, as in the large cities, a board of election commissioners, performs these duties.

Election Officers.– At each polling place, on election day, there is a corps of election judges or inspectors, poll clerks, ballot clerks, and the like. Each party is allowed to have one or more watchers, and frequently there is a police official to maintain order at the polls. While the polls are open, electioneering within a certain number of feet of the election place is forbidden, and usually no person except the election officers, the watchers, and the person who is casting his ballot are allowed in the polling room. Every polling place is equipped with one or more voting booths which must be so constructed as to insure secrecy on the part of the voter while he is marking his ballot. The polls are opened at a designated hour, and before the balloting begins the ballot boxes must be opened and exhibited to show that they are empty, after which they are locked and the casting of the ballots begins.

Evolution of the Ballot.– In the early days of our history, voting was by viva voce, that is, by living voice. Each voter as he appeared at the polling place was asked to state the names of the candidates for whom he desired to vote, and this he did in a distinct voice that could be heard by the bystanders as well as the election officials. The obvious objection to such a method was that it did not secure secrecy, and moreover it stimulated bribery because it was easy for a person who purchased a vote to see that the vote was delivered as paid for. The states soon began to experiment with the method of voting by ballot, and the advantages were so evident that in time this method was adopted in all of them, the last state to abandon the old method being Kentucky in 1891.

At first written ballots were generally used; then it became the practice for each candidate to print his own ballots; and later each party would put on the same ballot the names of all the party candidates and have them printed at the expense of the party. Each of these methods had its disadvantages. When the last method prevailed, for example, the ballots of the different parties were printed on different colored paper, so that it was easy to ascertain a voter's intentions by the color of the ballot in his possession. These ballots were distributed days before the election and were frequently marked by the voter before going to the polls. Such a system not only made secret voting difficult, but it afforded abundant opportunities for using undue influence over certain classes of persons to compel them to vote for particular candidates. To remove these and other evils which increased as time passed, the Australian ballot system, with modifications, was introduced into this country, first by the state of Massachusetts in 1888, and in one form or another it is now found in practically all the states.

The Australian Ballot.– The distinguishing features of the Australian system are the following: The names of all the candidates of every political party are placed on a single ballot; this ballot is printed at public expense and not by the candidates or parties; no ballots are distributed before the election, and none are obtainable anywhere except at the polls on election day, and then only when the voter presents himself to vote; and the ballot can be marked only in voting booths provided for the purpose, and in absolute secrecy.

The Australian system has been more or less modified in all the states where it has been introduced, so that it really does not exist in its pure form anywhere in this country, the nearest approach to it being the Massachusetts system. The prevailing forms may be reduced to two general types: the "office column" type, of which the Massachusetts ballot is a good example; and the "party column" type found in Indiana and many other states.

The "Office Column" Ballot has the names of the candidates for each office arranged in alphabetical order under the title of the office, and to vote such a ballot it is necessary for the voter to look through each column, pick out the candidate he favors, and mark a cross in a blank space opposite each name for which he votes. To do this requires not only considerable time, but a certain amount of intelligence and discrimination.

The "Party Column" Ballot arranges the candidates, not under the offices which they are seeking, but in parallel columns according to political parties, there being a column for each party. Opposite each candidate's name on the "party column" ballot is a blank space, and at the head of each column is a circle and usually a device or emblem to indicate the party. By making a mark in this circle the voter may cast a ballot for all the candidates of the party. This is called "straight" voting. He may if he wishes, however, vote a "split" ticket by putting a cross in the blank spaces opposite the names of candidates of his choice in the different columns. The chief objection that has been urged against this type of ballot is that by making it so easy to vote a "straight" ticket, it encourages strict party voting, whereas independent voting, especially in city elections, should be encouraged by every possible means.

The "office column" ballot, on the other hand, encourages independent voting by making it just as difficult to vote a "straight" ticket as a "split" one. In Massachusetts there has been a remarkable amount of independent voting, due partly to the form of ballot used. The "office column" type of ballot is now used for all elections in about one fourth of the states, and in a number of others for municipal elections.

Ballot Reform.– In recent years there has been considerable discussion of the subject of ballot reform, and not a little experimenting with different schemes. Political reformers generally demand the abolition of the "party column" form, or at least the abolition of the party circle, as a means of discouraging straight party voting, but the professional politicians insist upon its retention. Whatever may be the form ultimately adopted, one reform is desirable, namely, greater simplification, to the end that the electoral franchise may be exercised more intelligently and easily. In some of our states the number of elective offices has increased to such proportions, and the ballot to such size, that it has become a real burden to vote it.

A ballot used in Chicago in 1906 contained the names of over 330 candidates and was over two feet in length and nearly two feet in width. From this bewildering array of names the voter was compelled to pick out his choice for the following offices: state treasurer, state superintendent of public education, trustees of the University of Illinois, representative in Congress, state senator, representative in the state assembly, sheriff, county treasurer, county clerk, clerk of the circuit court, county superintendent of schools, judge of the county court, judge of the probate court, members of the board of assessors, judges of the municipal court for the two-year term (nine to be elected), members of the board of review, president of the board of county commissioners, county commissioners (ten to be elected on general ticket), trustees of the sanitary district of Chicago (three to be elected), clerk of the municipal court, chief justice of the municipal court, judges of the municipal court (nine to be elected), judges of the municipal court for the four-year term (nine to be elected). In Oregon in the election of 1912 the ballot contained the names of 177 candidates and 37 laws and amendments.

To vote ballots containing many names requires a good deal of care, if not experience, to avoid error which will result in having it thrown out, for the regulations governing the marking of the ballot are very strict and must be observed if the vote is to be counted. Accordingly, elaborate instructions covering large sheets are posted throughout the election district and at the polls for the guidance of the voters, and these have to be carefully studied by inexperienced voters who desire to avoid mistakes. Sample ballots also may be provided for practice. One result of the increasing complexity of the ballot is to give an undesirable advantage to the professional politicians who understand how to vote such ballots, and to discourage those who are not politicians.