The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• Publisher’s Note
• Preface to the First Edition
• Preface to the Edition of 1910
• Note to Edition of 1914
• List of Presidents
• Dates of Some Remarkable Events In the History of the North American Colonies and United States
• Area, Population, and Date of Admission of the States
• Chapter 1: Introductory
• Part I: The National Government
• Chapter 2: The Nation and the States
• Chapter 3: The Origin of the Constitution
• Chapter 4: Nature of the Federal Government
• Chapter 5: The President
• Chapter 6: Presidential Powers and Duties
• Chapter 7: Observations On the Presidency
• Chapter 8: Why Great Men Are Not Chosen Presidents
• Chapter 9: The Cabinet
• Chapter 10: The Senate
• Chapter 11: The Senate As an Executive and Judicial Body
• Chapter 12: The Senate: Its Working and Influence
• Chapter 13: The House of Representatives
• Chapter 14: The House At Work
• Chapter 15: The Committees of Congress
• Chapter 16: Congressional Legislation
• Chapter 17: Congressional Finance
• Chapter 18: The Relations of the Two Houses
• Chapter 19: General Observations On Congress
• Chapter 20: The Relations of Congress to the President 1
• Chapter 21: The Legislature and the Executive
• Chapter 22: The Federal Courts
• Chapter 23: The Courts and the Constitution
• Chapter 24: The Working of the Courts
• Chapter 25: Comparison of the American and European Systems
• Chapter 26: General Observations On the Frame of National Government
• Chapter 27: The Federal System
• Chapter 28: Working Relations of the National and the State Governments
• Chapter 29: Criticism of the Federal System
• Chapter 30: Merits of the Federal System
• Chapter 31: Growth and Development of the Constitution
• Chapter 32: The Amendment of the Constitution
• Chapter 33: The Interpretation of the Constitution
• Chapter 34: The Development of the Constitution By Usage
• Chapter 35: The Results of Constitutional Development
• Part II: The State Governments
• Chapter 36: Nature of the American State
• Chapter 37: State Constitutions
• Chapter 38: The Development of State Constitutions
• Chapter 39: Direct Legislation By the People
• Chapter 40: State Governments: the Legislature
• Chapter 41: The State Executive
• Chapter 42: The State Judiciary
• Chapter 43: State Finance
• Chapter 44: The Working of State Governments
• Chapter 45: Remedies For the Faults of State Governments
• Chapter 46: State Politics
• Chapter 47: The Territories
• Chapter 48: Local Government
• Chapter 49: Observations On Local Government
• Chapter 50: The Government of Cities
• Chapter 51: The Working of City Governments
• Chapter 52: An American View of Municipal Government In the United States
• Appendix: Note to Chapter 3: On Constitutional Conventions
• Note to Chapter 4: What the Federal Constitution Owes to the Constitutions of the Several States
• Note to Chapter 10: Extracts From the Rules of the Senate
• Note (a) to Chapter 16: Private Bills
• Note (b) to Chapter 16: The Lobby
• Note (a) to Chapter 30: Constitution of the Confederate States, 1861–65
• Note (b) to Chapter 30: The Federal Constitution of Canada
• Note to Chapter 33: The Dartmouth College Case
• Articles of Confederation, 1781–88
• Constitution of the United States
• Extracts From the Constitution of the State of Oklahoma 1

chapter 45

Remedies for the Faults of State Governments

The defects in state governments, which our examination of their working has disclosed, are not those we should have expected. It might have been predicted, and it was at one time believed, that these authorities, consumed by jealousy and stimulated by ambition, would have been engaged in constant efforts to extend the sphere of their action and encroach on the national government. This does not happen, and seems most unlikely to happen. The people of each state are now not more attached to the government of their own commonwealth than to the federal government of the nation, whose growth has made even the greatest state seem insignificant beside it.

A study of the frame of state government, in which the executive department is absolutely severed from the legislative, might have suggested that the former would become too independent, misusing its powers for personal or party purposes, while public business would suffer from the want of concert between the two great authorities, that which makes and that which carries out the law.

This also has proved in practice to be no serious evil. The legislature might indeed conceivably work better if the governor, or some of his chief officials, could sit in it and exercise an influence on its deliberations. Such an approach to the European cabinet system has, however, never been thought of for American states; and the example of the provincial legislatures of Canada, in each of which there is a responsible ministry sitting in the legislature, does not seem to recommend it for imitation. Those who founded the state governments did not desire to place any executive leaders in a representative assembly. Probably they were rather inclined to fear that the governor, not being accountable to the legislature, would retain too great an independence. The recent creation of various administrative officers or boards has gone some way to meet the difficulties which the incompetence of the legislatures causes, for these officers or boards frequently prepare bills which some member of the legislature introduces, and which are put through without opposition, perhaps even without notice, except from a handful of members. On the whole, the executive arrangements of the state work well, though they might, in the opinion of some judicious publicists, be improved by vesting the appointment of the chief officials in the governor, instead of leaving it to direct popular election. This would tend to give more unity of purpose and action to the administration. The collisions which occur in practice between the governor and the legislature relate chiefly to appointments, that is to say, to personal matters, not involving issues of state policy.

The real blemishes in the system of state government are all found in the composition or conduct of the legislatures. They are the following:

• Inferiority in point of knowledge, of skill, and sometimes of conscience, of the bulk of the men who fill these bodies
• Improvidence in matters of finance
• Heedlessness in passing administrative bills
• Want of proper methods for dealing with local and special bills
• Failure of public opinion adequately to control legislation, and particularly local and special bills.

The practical result of these blemishes has been to create a large mass of state and local indebtedness which ought never to have been incurred, to allow foolish experiments in lawmaking to be tried, and to sanction a vast mass of private enterprises, in which public rights and public interests become the sport of speculators, or a source of gain to monopolists, with the incidental consequence of demoralizing the legislators themselves and creating an often unjust prejudice against all corporate undertakings.

What are the checks or remedies which have been provided to limit or suppress these evils? Anyone who has followed the account given of the men who compose the legislatures and the methods they follow will have felt that these checks must be considerable, else the results would have been worse than those we see. All remedies are directed against the legislative power, and may be arranged under four heads.

First, there is the division of the legislature into two houses. A job may have been smuggled through one house, but the money needed to push it through the other may be wanting. Some wild scheme, professing to benefit the farmers, or the cattlemen, or the railroad employees, may, during its passage through the Assembly, rouse enough attention from sensible people to enable them to stop it in the Senate. The mere tendency of two chambers to disagree with one another is deemed a benefit by those who hold, as the Americans do, that every new measure is prima facie likely to do more harm than good. Most bills are bad—ergo, kill as many as you can. Each house, moreover, has, even in such demoralized state legislatures as those of New York or Pennsylvania, a satisfaction, if not an interest, in unveiling the tricks of the other.

Secondly, there is the veto of the governor. How much the Americans value this appears from the fact that, whereas in 1789 there was only one state, Massachusetts, which vested this power in the chief magistrate, all of the now existing states except one give it to him. Some constitutions (including all the new ones) contain the salutary provision that the governor may reject one or more items of an appropriation bill (sometimes even of any bill) while approving the bill as a whole; and this has been found to strengthen his hands immensely in checking the waste of public money on bad enterprises. This veto power, the great standby of the people of the states, illustrates admirably the merits of concentrated responsibility. The citizens, in choosing the governor to represent the collective authority of the whole state, lay on him the duty of examining every bill on its merits. He cannot shelter himself behind the will of the representatives of the people, because he is appointed to watch and check those representatives as a policeman watches a suspect. He is bound to reject the bill, not only if it seems to him to infringe the constitution of the state, but also if he thinks it in any wise injurious to the public, on pain of being himself suspected of carelessness, or of complicity in some corrupt design. The legislature may, of course, pass the bill over his veto by a two-thirds vote; but although there may exist a two-thirds majority in favour of the measure, they may fear, after the veto has turned the lamp of public opinion upon it, to take so strong a step. There are, of course, great differences between one governor and another, as well as between one state and another, as regards the honesty with which the power is exercised, for it may be, and sometimes is, used by a “Ring” governor to defeat measures of reform. But it is a real and effective power everywhere; and in the greatest states, where the importance of the office often secures the election of an able and courageous man, it has done inestimable services.1

Thirdly, there are limitations imposed on the competence of the legislature. I have already mentioned some of these limitations, the most numerous, and at present the most important of which relate to special and local (or what would be called in England “private”) bills. These bills, while they destroy the harmony and simplicity of the law, and consume the time of the legislature, are also so fertile a source of jobbery2 that to expunge them or restrict them to cases where a special statute was really needed, would be a great benefit. The constitutional prohibitions described effect this to some extent. Illinois, for instance, has by such prohibitions reduced her sessional statutes to about three hundred pages, and Iowa averages only two hundred to two hundred and fifty pages, whereas the Wisconsin statutes of 1885 reached two thousand pages, there being in that state far less effective restrictions. But the powers of evil do not yield without a battle. All sorts of evasions are tried, and some succeed. Suppose, for instance, that there is a prohibition in the Constitution of New York to pass any but general laws relating to the government of cities. An act is passed which is expressed to apply to cities with a population exceeding one hundred thousand but less than two hundred thousand. There happens to be then only one such city in the state, viz., Buffalo, but as there might be more, the law was deemed general, and escaped the prohibition. So the Constitution of Ohio expressly provides that the legislature “shall pass no special act conferring corporate powers.” But in 1890 nearly fifty such acts were passed, the provision being evaded by the use of general enacting words which can in fact apply only to one place. One act, for instance, authorized villages with a population of not less than 1,903 nor more than 1,912 to issue bonds for natural gas developments; another empowered any city having a population of 15,435, by the census of 1890, to levy a library tax.3

Provisions against special legislation are evaded in another way, viz., by passing acts which, because they purport to amend general acts, are themselves deemed general. Here is a recent instance. The Constitution of New York prohibits the legislature from passing any private or local act incorporating villages, or providing for building bridges. A general act was passed in 1885 for the incorporation of villages, with general provisions as to bridges. Next year the following act was passed, which I give verbatim. It amends the act of 1885, by taking out of it all the counties in the state except Westchester, and then excludes application of the act to two towns in Westchester. It is thus doubly a “private or local act,” but the prohibition of the constitution was got round.4

CHAP. 556.

AN ACT to amend chapter two hundred and ninety-one of the laws of eighteen hundred and seventy, entitled “An Act for the Incorporation of Villages.”

Where evasions of this kind become frequent the confusion of the statute book is worse than ever, because you cannot tell without examination whether an act is general or special.

The reader will have noticed in the heading of the act just quoted the words “three-fifths being present.” This is one of the numerous safeguards imposed on the procedure of the state legislatures. Others have been specified in Chapter 40. Their abundance in the newest constitutions shows how these efforts to deal with the symptoms have failed to eradicate the endless evasions they seek to anticipate.5

The inventive genius of American legislators finds or makes many holes in the net which the people have tried to throw over them by the constitution. Yet, though there be none of the restrictions and regulations mentioned which is not sometimes violated or evaded, they have, on the whole, worked well. The enemy is held at bay, and a great deal of bad legislation is prevented. Some bills have to be dropped, because too plainly repugnant to the constitution to be worth carrying farther. The more ignorant members do not always apprehend where the difficulty lies. They can barely read the constitution, and the nature of its legal operation is as far beyond them as the cause of thunder is beyond cats. A friend of mine who sat for some years in the New York Assembly was once importuned by an Irish member to support that particular member’s little bill. He answered that he could not, because the bill was against the constitution. “Och, Mr. Robert,” was the reply, “shure the Constitootion should niver be allowed to come between friends.”

Some bills again the governor can scarcely help vetoing, because they violate a constitutional restriction; while of those that pass him unscathed, a fair number fall victims to the courts of law. It may be added that the enforcement of the limitations imposed by a state constitution necessarily rests with the judges, since it is they who pronounce, if and when the point is brought up in a suit between parties, whether or no a statute has transgressed the bounds which the fundamental instrument sets, or whether a constitutional amendment has been duly carried.6

Someone may remark that there are two material differences between the position of these state judges and that of the federal judges. The latter are not appointed by a state, and are therefore in a more independent position when any question of conflict between state laws or constitutions and the federal Constitution or statutes comes before them. Moreover they hold office for life, whereas the state judge usually holds for a term of years, and has his reelection to think of. Can the state judge then be expected to show himself equally bold in declaring a state statute to be unconstitutional? Will he not offend the legislature, and the party managers who control it, by flying in their faces?

The answer is that although the judge may displease the legislature if he decides against the validity of an unconstitutional statute, he may displease the people if he decides for it; and it is safer to please the people than the legislature. The people at large may know little about the matter, but the legal profession know, and are sure to express their opinion. The profession look to the courts to save them and their clients from the heedlessness or improbity of the legislature, and will condemn a judge who fails in this duty. Accordingly, the judges seldom fail. They knock about state statutes most unceremoniously, and they seldom suffer for doing so. In one case only is their position a dangerous one. When the people, possessed by some strong desire or sentiment, have either by the provisions of a new constitution, or by the force of clamour, driven the legislature to enact some measure meant to cure a pressing ill, they may turn angrily upon the judge who holds that measure to have been unconstitutional. This has several times happened, and is always liable to happen where elective judges hold office for short terms, with the unfortunate result of weakening the fortitude of the judges. In 1786 the Supreme Court of Rhode Island decided that an act passed by the legislature was invalid, because contravening the provisions of the colonial charter (which was then still the constitution of the state), securing to every accused person the benefit of trial by jury.7

The legislature were furious, and summoned the judges to appear before them and explain the grounds of their decision. The attempt to dismiss them failed, but the judges were not reelected by the legislature when their term of office expired at the end of the year. In Ohio, the legislature passed in 1805 an act which Judge Pease, in a case arising under it, held to be repugnant to the Constitution of Ohio, as well as to the federal Constitution, and accordingly declined to enforce. In 1808, he and another judge of the supreme court of the state who had concurred with him, were impeached by the House before the Senate of Ohio, but were acquitted. In 1823, the Supreme Court of Kentucky held invalid a debtors’ relief act passed by the legislature on the ground that it violated the obligation of contracts clause of the federal Constitution by making paper issued by a state bank legal tender. The judges were impeached, but a two-thirds majority for conviction could not be obtained, so the angry legislature extinguished the court itself and created a new court of appeals, to which the governor appointed new men as judges. The old court, however, held its ground, insisting that the new court was unconstitutional, and after a passionate struggle, a new legislature repealed in 1825 the act creating the new court. So justice and reason prevailed. In 1871, the legislature of Illinois passed a law, intending to carry out a provision of the Constitution of 1870, which was held unconstitutional by Judge Lawrence, greatly to the disappointment of the farmers, who had expected valuable results from it. He was not impeached, but when shortly afterwards he sought reelection, he was defeated solely on the ground of this decision.8 These instances show that the courts have had to fight for their freedom in the discharge of the duty which the constitutions throw on them. But the paucity of such conflicts shows that this freedom is now generally recognized, and may be deemed, at least for the present, to be placed above the storm of popular passion.9

It will be seen from what has been said that the judges are an essential part of the machinery of state government. But they are so simply as judges, and not as invested with political powers or duties. They have not received, any more than the federal judges, a special commission to restrain the legislature or pronounce on the validity of its acts. There is not a word in the state constitutions, any more than in the federal Constitution, conferring any such right upon the courts, or indeed conferring any other right than all courts of law must necessarily enjoy. When they declare a statute unconstitutional they do so merely in their ordinary function of expounding the law of the state, its fundamental law as well as its laws of inferior authority, just as an English judge might hold an order made by the king in council to be invalid, because in excess of the powers granted by the act of Parliament under which it was made. It would be as clearly the duty of an English county court judge so to hold as of the highest court of appeal. So it is the duty of the humblest American state judge to decide on the constitutionality of a statute.

So far we have been considering restrictions imposed on the competence of the legislature, or on the methods of its procedure. We now come to the fourth and last of the checks which the prudence of American states imposes. It is a very simple, not to say naive, one. It consists in limiting the time during which the legislature may sit. Formerly these bodies sat, like the English Parliament, so long as they had business to do. The business seldom took long. When it was done, the farmers and lawyers naturally wished to go home, and home they went. But when the class of professional politicians grew up, these wholesome tendencies lost their power over a section of the members. Politics was their business, and they had none other to call them back to the domestic hearth.10 They had even a motive for prolonging the session, because they prolonged their legislative salary, which was usually paid by the day. Thus it became the interest of the taxpayer to shorten the session; and he had already a still stronger interest in cutting short the jobs and improvident bestowal of moneys and franchises in which he found his representatives employed. Accordingly most states have fixed a number of days beyond which the legislature may not sit. Many of these fix it absolutely; but a few prefer the method of cutting off the pay of their legislators after the prescribed number of days has expired, so that if they do continue to devote themselves still longer to the work of lawmaking, their virtue shall be its own reward.11 Experience has, however, disclosed a danger in these absolutely limited sessions. It is that of haste and recklessness in rushing bills through without due discussion. Sometimes it happens that a bill introduced in response to a vehement popular demand is carried with a rush (so to speak), because the time for considering it cannot be extended, whereas longer consideration would have disclosed its dangers. An ill-framed railway bill was thus defeated in the Iowa legislature because full discussion (there being no time limit) brought out its weak points. Hence some states have largely extended their sessions. Thus California in 1907 abolished the provision which limited payment to a regular session of sixty days, substituting a general limit of $1,000 to each member whatever the length of the session; and Colorado in 1885 extended the maximum of her session from forty to ninety days, also raising legislative pay from $4 to $7 per diem.

The Americans seem to reason thus: “Since a legislature is very far gone from righteousness, and of its own nature inclined to do evil, the less chance it has of doing evil the better. If it meets, it will pass bad laws. Let us therefore prevent it from meeting.”

They are no doubt right as practical men. They are consistent, as sons of the Puritans, in their application of the doctrine of original sin. But this is a rather pitiful result for self-governing democracy to have arrived at.

“Is there not,” someone may ask, “a simpler remedy? Why all these efforts to deal with the symptoms of the malady, instead of striking at the root of the malady itself? Why not reform the legislatures by inducing good men to enter them, and keeping a more constantly vigilant public opinion fixed upon them?”

The answer to this very pertinent question will be found in the chapters of Part III which follow. I will only so far anticipate what is there stated as to observe that the better citizens have found it so difficult and troublesome to reform the legislatures that they have concluded to be content with curing such and so many symptoms as they can find medicines for, and waiting to see in what new direction the virus will work. “After all,” they say, “the disease, though it is painful and vexing, does not endanger the life of the patient, does not even diminish his strength. The worst that the legislatures can do is to waste some money, and try some foolish experiments from which the good sense of the people will presently withdraw. Everyone has his crosses to bear, and ours are comparatively light.” All which is true enough, but ignores two important features in the situation, one, that the constitutional organs of government become constantly more discredited, the other that the tremendous influence exerted by wealth and the misuse of public rights permitted to capitalists, and especially to companies, have created among the masses of the people ideas which may break out in demands for legislation of a new and dangerous kind.

The survey of the state governments which we have now completed suggests several reflections.

One of these is that the political importance of the states is no longer what it was in the early days of the Republic. Although the states have grown enormously in wealth and population, they have declined relatively to the central government. The excellence of state laws and the merits of a state administration make a great difference to the inhabitants, but the more thorough consolidation of the country and the fact that some of the most important questions, such as those relating to trusts and to railroads, are questions in which the hand of the national government is felt, dispose people to look rather to the latter. The matters which the state deals with, largely as they influence the welfare of the citizen, do not touch his imagination like those which Congress handles, because the latter determine the relations of the Republic to the rest of the world, and affect all the area that lies between the two oceans. The state set out as an isolated and self-sufficing commonwealth. It is now merely a part of a far grander whole, which seems to be slowly absorbing its functions and stunting its growth, as the great tree stunts the shrubs over which its spreading boughs have begun to cast their shade.

I do not mean to say that the people have ceased to care for their states; far from it. They are proud of their states, even where there may be little to be proud of. That passionate love of competition which possesses English-speaking men, makes them eager that their state should surpass the neighbouring states in the number of the clocks it makes, the hogs it kills, the pumpkins it rears, that their particular star should shine at least as brightly as the other forty-seven in the national flag. But if these commonwealths meant to their citizens what they did in the days of the Revolution, if they commanded an equal measure of their loyalty, and influenced as largely their individual welfare, the state legislatures would not be left to professionals or third-rate men. The truth is that the state has shrivelled up. It retains its old legal powers over the citizens, its old legal rights as against the central government. It still displays its peculiar patriotism at every public celebration, and recalls its historic heroes. In Virginia and Massachusetts, for instance, in Vermont and Kentucky, and again in such a great Western state as California, there is plenty of state pride. But it does not interest its citizens as it once did. Men do not now say, like Ames in 1782, that their state is their country.14 And as the central government overshadows it in one direction, so the great cities have encroached upon it in another. The population of a single city is sometimes a fourth or a fifth part of the whole population of the state; and city questions interest this population more than state questions do; city officials have begun to rival or even to dwarf state officials.

Observe, however, that while the growth of the Union has relatively dwarfed the state, the absolute increase of the state in population has changed the character of the state itself. In 1790 seven of the thirteen original states had each of them less than 300,000, only one more than 500,000 inhabitants. Now thirty-one have more than 1,000,000 each, twenty have more than 2,000,000, and ten of these have more than 2,500,000. Hence, in spite of railroads and telegraphs, the individual citizens know less of one another, have less personal acquaintance with their leading men, and less personal interest in the affairs of the community than in the old days when the state was no more populous than an English county like Bedford or Somerset. Thus the special advantages of local government have to a large extent vanished from the American states of today. They are local bodies in the sense of having no great imperial interests to fire men’s minds. They are not local in the sense of giving their members a familiar knowledge and a lively interest in the management of their affairs. Hamilton may have been right in thinking that the large states ought to be subdivided.15 At any rate it is to this want of direct local interest on the part of the people, that some of the faults of their legislatures may be ascribed.

The chief lesson which a study of the more vicious among the state legislatures teaches, is that power does not necessarily bring responsibility in its train. I should be ashamed to write down so bald a platitude, were it not that it is one of those platitudes which are constantly forgotten or ignored. People who know well enough that, in private life, wealth or rank or any other kind of power is as likely to mar a man as to make him, to lower as to raise his sense of duty, have nevertheless contracted the habit of talking as if human nature changed when it entered public life, as if the mere possession of public functions, whether of voting or of legislating, tended of itself to secure their proper exercise. We know that power does not purify men in despotic governments, but we talk as if it did so in free governments. Everyone would of course admit, if the point were put flatly to him, that power alone is not enough, but that there must be added to power, in the case of the voter, a direct interest in the choice of good men; in the case of the legislator, responsibility to the voters; in the case of both, a measure of enlightenment and honour. What the legislatures of the worst states show is not merely the need for the existence of a sound public opinion, for such a public opinion exists, but the need for methods by which it can be brought into efficient action upon representatives, who, if they are left to themselves, and are not individually persons with a sense of honour and a character to lose, will be at least as bad in public life as they could be in private. The greatness of the scale on which they act, and of the material interests they control, will do little to inspire them. New York and Pennsylvania are by far the largest and wealthiest states in the Union. Their legislatures are confessedly among the worst.

[1] Although the existence of this ultimate remedy tends to make good members relax their opposition to bad bills, because they know that the veto will kill them, this is a less evil than the disuse of the veto would be.

[2] “In twelve States the legislature is forbidden to create any corporation whatever, municipalities included, except by general law, and in thirteen others to create by special Act any except municipal corporations, or those to which no other law is applicable. In some States corporations can be created by special Act only for municipal, charitable, or reformatory purposes. Such provisions are not intended to discourage the formation of private corporations. On the contrary, in all these States general laws exist under which they can be formed with great facility. Indeed the defects in some of these statutes, and their failure to provide safeguards against some at least of the very evils which they were intended to meet, might well suggest to legislators the question whether in avoiding the Scylla of special legislation they have not been drawn into the Charybdis of franchises indiscriminately bestowed. Perhaps the time will come when recommendations such as those urged by the New York railroad commission will be acted on, and the promoters of a new railroad will be obliged to furnish some better reason for its existence, and for their exercising the sovereign power of eminent domain, than the chance of forcing a company already established to buy them out—or, failing that, the alternative of being sold out under foreclosure, pending a receivership.” —Hitchcock, State Constitutions, p. 36. Prohibitions have become more stringent since the above was written.

“A great field for favouritism and jobbery exists, when special Acts of incorporation are required for each case in which special favours and special privileges may be given away by a legislation that may be corruptly influenced, without imposing any reciprocal obligation on the corporation. Fully two-thirds of the lobbyism, jobbery, and log-rolling, the fraud and trickery that are common to our State legislatures, is due to this power of creating private corporations.” —Ford, Citizens’ Manual vol. ii, p. 68.

[3] Mr. Hitchcock (from whose address I take the Ohio instance) adds that the Supreme Court of Ohio has held such evasions unconstitutional, but that they continue notwithstanding, the legislature, and the villages or cities, taking their chance.

[4] The Constitution of North Dakota (§ 70) expressly prohibits this evasion.

[5] For instance, it is sometimes provided that no bill shall be introduced within a certain period after the beginning or before the end of the session, so as to prevent bills from being smuggled through in the last days. This provision is evaded “by introducing a new bill after the time has expired when it may constitutionally be done, as an amendment to some pending bill, the whole of which, except the enacting clause, is struck out to make way for it. Thus, the member who thinks he may have occasion for the introduction of a new bill after the constitutional period has expired, takes care to introduce sham bills in due season, which he can use as stocks to graft upon, and which he uses irrespective of their character or contents. The sham bill is perhaps a bill to incorporate the city of Siam. One of the member’s constituents applies to him for legislative permission to construct a dam across the Wild Cat River. Forthwith, by amendment, the bill, entitled a bill to incorporate the city of Siam, has all after the enacting clause stricken out, and it is made to provide, as its sole object, that John Doe may construct a dam across the Wild Cat. With this title, and in this form it is passed; but the house then considerately amends the title to correspond with the purpose of the bill, and the law is passed, and the Constitution at the same time saved!” —Cooley, Constit. Limit., p. 169 note.

[6] A remarkable instance of the technical literalism with which the courts sometimes enforce constitutional restrictions is afforded by the fate of a recent liquor prohibition amendment to the Constitution of Iowa. This amendment had been passed by both houses of the state legislature in two successive legislatures, had been submitted to the people and enacted by a large majority, had been proclaimed by the governor and gone into force. It was subsequently discovered that one house of the first legislature had, through the carelessness of a clerk, neglected to “spread the Amendment, in full on its journal,” as prescribed by the constitution. The point being brought before the Supreme Court of Iowa, it was held that the amendment, owing to this informality, had not been duly passed, and was wholly void.

An illustration of the range which the action of courts may take in enforcing constitutional safeguards was well given by the Supreme Court of Wisconsin, when it held invalid a [gerrymandering] redistricting of the state (for elections to the state legislature), as being inconsistent with the provision of the constitution that districts should be reasonably equal.

[7] See p. 222 ante. The act was one for forcing state paper money into circulation by imposing a penalty, recoverable on summary conviction without a jury, on whoever should refuse to receive on the same terms as specie the bills of a state-chartered bank. No question of the United States Constitution could arise, because it did not yet exist. To these Rhode Island judges belongs the credit not only of having resisted a reckless multitude, but of having set one of the first examples in American history of the exercise of a salutary function. Their decision was that they had no jurisdiction.

[8] I quote from Mr. Hadley’s book on railroad transportation (through Dr. Hitchcock’s essay already referred to) the following account of the circumstances: “The Constitutional Convention of Illinois in 1870 made an important declaration concerning State control of railway rates, on the basis of which a law was passed in 1871 establishing a system of maxima. This law was pronounced unconstitutional by Judge Lawrence. The result was that he immediately afterwards failed of re-election, solely on this ground. The defeat of Judge Lawrence showed the true significance of the farmers movement [the so-called Granger movement]. They were concerned in securing what they felt to be their rights, and were unwilling that any constitutional barrier should be made to defeat the popular will. They had reached the point where they regarded many of the forms of law as mere technicalities. They were dangerously near the point where revolutions begin. But they did not pass the point. The law of 1873 avoided the issue raised by Judge Lawrence against that of 1871. Instead of directly fixing maxima, it provided that rates must be reasonable, and then provided for a commission to fix reasonable rates.” The courage of Judge Lawrence was therefore not thrown away; it cost him his place, but it served the people and vindicated the law.

In 1890, the executive committee of the Minnesota Farmers’ Alliance in passing resolutions demanding the abolition of the federal Supreme Court, which had recently held that the state legislature had no power to fix railroad freight rates, relieved their feelings by saying. “We call attention to the fact that the citizens of England, from whom we have largely derived our form of government, would not permit for one instant a bench of judges to nullify an Act of Parliament. There the people are properly omnipotent. . . . In our anxiety to protect the rights of property we have created a machine that threatens to destroy the rights of man.”

[9] There have of course been other instances in which judges have been impeached or removed; but I am here dealing only with those in which the ground of complaint was the declaring a legislative act to be invalid.

[10] The English Parliament found the tendency of members to slip away so strong that in the sixteenth century it enacted “that no knight of the shire or burgess do depart before the end of Parliament,” and inflicted on the member leaving without the permission of Mr. Speaker, the penalty of losing “all those sums of money which he should or ought to have had for his wages.”

[11] Thus the Constitution of Oregon, for instance, gives its members for forty days only. Texas is a little more liberal, for her constitution was content to reduce the pay after sixty days from $5 to $3 (now $2) per day, at which reduced rate members might apparently go on as long as they please. Nearly all the states which fix a limit of time are Southern or Western. The forty days’ session of Georgia may be extended by a two-thirds vote of an absolute majority of each house.

[14] So even in 1811 Josiah Quincy said in Congress: “Sir, I confess it, the first public love of my heart is the Commonwealth of Massachusetts. There is my fireside: there are the tombs of my ancestors.”

[15] It is however, also argued that there are some large states in which the mischievous action of the multitude of a great city is held in check by the steadier rural voters. If such states had been subdivided, the subdivision which happened to contain the great city would lie at the mercy of this multitude. The question has not taken practical shape, for no state has asked to be divided, though there was once a movement to divide Kansas into two states by a N. and S. line, and some Southern Californians have talked of seceding.

Texas is the only state which possesses (under the statute admitting her) a right to divide herself into several states without obtaining permission from Congress. She is big enough for four or five.

Hamilton’s reason seems to have been a fear that the states would be too strong for the national government.