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with the intent of the statute, he was made liable to a forfeit of 500 pounds to the aggrieved person. If the gaoler refused a copy of the warrant of commitment within six hours after the demand had been made, or transferred the prisoner into the custody of another except in obedience to a legal process, or failed to make a proper return to the writ of Habeas Corpus within the time specified, he was liable to a forfeiture of 100 pounds to the aggrieved person. Once released on a writ of Habeas Corpus, the defendant was privileged against further arrest for the same offense. Although those "committed for high treason, plainly and specially expressed in the warrant of commitment," were denied the writ of Habeas Corpus, conviction must be had no later than the end of the second session of the court after arrest; but in the failure of such conviction the prisoner must be discharged.
1-Citizenship, Willoughby, W. W., The American Constitutional System, 241-9.
2-Citizenship in the United States, Tiedeman, C. S., The Unwritten Constitution, 91-109.
3-Citizenship of the United States, Richman, I. B., Political Science Quarterly, V, 104-23.
4- Rights of Citizenship under the Fourteenth Amendment, Willoughby, The American Constitutional System, 180
89. 5-Suspension of the Habeas Corpus During the War of the Rebellion, Fisher, S. G., Political Science Quarterly, III, 454-85,
POLITICAL RIGHTS AND DUTIES
24. THE NATURE AND EXTENSION OF THE SUFFRAGE.
Is the suffrage a natural right? Should it be extended to all citizens? What is the tendency of modern political history on these points? These questions which constantly present themselves to students of civil government are answered by Professor W. W. Willoughby in the following paragraphs: 1
The most striking feature of the present day is the development of popular control of government. By its own inherent nature one step in democratic progress leads to a further one. There is always present to the party in power the temptation to broaden the franchise for the sake of the popular support that it will thus obtain. The time will always come, when, wisely or unwisely, this temptation will be yielded to. "When a nation modifies the elective qualification," says De Tocqueville, "it may easily be foreseen that sooner or later that qualification will be entirely abolished. There is no more invariable rule in the history of society; the farther electoral rights are extended, the more is felt the need of extending them; for after each concession the strength of the democracy increases, and its demand increases with its strength. The ambition of those who are below the appointed rate is irritated in exact proportion to the great number of those who are above it. The exception at last becomes the rule, concession follows concession, and no stop can be had short of universal suffrage."
A striking demonstration of the above rule is seen in the
1 Selections 24 and 76 are reprinted from Willoughby, W. W., The Nature of the State, by special permission of MacMillan and Company.
steady widening of the suffrage in England during the last fifteen years. The same tendency is at work in the monarchies of Europe, though not yet carried to the same extent, the last conspicuous triumph of this principle being the modification of the electoral qualification in Belgium in 1894. The history is the same in our own country, where the tend. ency has been so strong as to prevent even decent restrictions upon the voting power of the newly landed and ignorant aliens who yearly crowd in thousands to our shores.
A step once taken in this direction is seldom if ever retraced. The suffrage once broadened, its subsequent restriction seems almost impossible. Such a step requires a fortitude and disinterestedness on the part of the parties in power such as history has shown them seldom to possess.
It is a fair prediction, then, to say that the world is to see in the future a continued advance in democracy and popular government. This being so, we are led to consider what effect this development will have, when taken in conjunction with other changing conditions, upon good government and general prosperity.
Side by side with this movement that is hurrying the civilized world towards democracy is the increasing pressure that is brought to bear by the augmenting complexity of social and industrial relations for the State constantly to widen the scope of its activities. Will the union of these two tend encies give us good government? A unanimously affirmative answer is by no means given to this.
"If I am in any degree right," says Sir Henry Maine, "popular government, especially as it approaches the democratic form, will tax to the utmost all the political sagacity and statesmanship of the world to keep it from misfortune. "The nations of our time," says De Tocqueville, "cannot prevent the conditions of men from becoming equal, but it depends upon themselves whether the principle of equality is to lead them to servitude or freedom, to knowledge or barbarism, to prosperity or to wretchedness."
It must be ever remembered that the decisive point in the
success of a popular government lies in the quality of its voting citizens. Of what use is it to perfect governmental forms and methods if the constituency be incapable of their proper management? There are those who would go so far as to have us believe that the exercise of the suffrage is an inherent inalienable right of the free-born citizen. It does not need to be said that it is not. It is a political privilege, and is founded only on law, and a claim to its extension to all individuals has not even that moral or utilitarian basis that supports the demand for an equality in those so-called natural rights which we discussed in a former chapter. The citizen is endowed with right of suffrage, in order that by its exercise the good of society may be maintained, and it is for society to determine to what extent, and by whom, and under what conditions this power is to be used. Amiel strikes the vital point, when he says in his Journal that "the pretension that every man has the necessary qualities of a citizen simply because he was born twenty-one years ago, is as much as to say that labour, merit, virtue, character and experience are to count for nothing; and we destroy humility when we proclaim that a man becomes the equal of all other men by the mere mechanical and vegetative process of natural growth." 25. THE EFFECT OF THE FOURTEENTH AND FIFTEENTH AMENDMENTS UPON THE SUFFRAGE.
The Constitution of the United States left the determination of the right to the elective franchise, even in Federal elections, to the several States. But the fourteenth and fifteenth amendments placed certain restrictions upon the power of the States in this particular. Mr. Wm. L. Scruggs discusses these restrictions:
How did the Fourteenth Amendment affect the status of the suffrage question? It did not materially change it. It did not take from the State the power to fix the qualifications of electors, nor fasten upon us the pernicious doctrine of universal suffrage. It prohibits the State from making or enforcing any law "abridging the privileges and immunities of citizens of the United States. But what are we to under
stand by the words "privileges and immunities?" They did not come into the Constitution with the Fourteenth Amendment. They had been there, in Article IV., more than threequarters of a century before that Amendment was ever dreamed of. And our judicial tribunals had uniformly held that they relate, not to the right of suffrage at all, but only to the natural or personal rights inherent in citizenship, of which the right to vote was not one.
The only clause in the Amendment that bears upon the suffrage question is in section two, which relates to the apportionment of representatives among the several States. The apportionment is based on population. But "when the right to vote is denied to male citizens of the United States twentyone years of age," the number of representatives is to be proportionately reduced. It is to be reduced "in the proportion which the number of such citizens bears to the whole number of citizens' of that age residing in the State. But the question naturally arises, Whence comes the right of citizens of the United States to vote? Not being a natural right inherent in citizenship, it can come only by a State law; for only in a Territory, not yet admitted to Statehood, can it come by act of Congress. And in neither case is there any constitutional obligation to grant the right. The only consequence to the State in not granting it is, fewer representatives in the lower House of Congress, and in the College of Electors for President and Vice-President-the number of Senators not being affected thereby. And this, so far from being a loss to the State, might be a positive advantage. For experience has abundantly shown, that it is not the number, but the ability and character of its representatives, that gives the State consideration and influence in the councils of the nation. No political contrivance can annul the divine law by which one wise man counts for more, in deliberative assemblies, and in the affairs of the world generally, than any number of fools. But it is said that the Fifteenth Amendment practically nullifies this section of the Fourteenth; that it assumes "the right of citizens of the United States to vote" to be a vested