to be unconstitutional, and which consequently is to be regarded as having never at any time been possessed of legal force."

CHAPTER III.

THE DEVELOPMENT OF STATE CONSTITUTIONS

Three periods may be dstinguished in the development of State governments as set forth in the Constitutions, each period marked by an increase in the length and minuteness of those instruments.

The first period covers about thirty years from 1776 downward, and includes the earlier Constitutions of the original thirteen States, as well as of Kentucky, Vermont, Tennessee, and Ohio.

Most of these Constitutions were framed under the impressions of the Revolutionary War. They manifest a dread of executive power and of military power, together with a disposition to leave everything to the legislature, as being the authority directly springing from the people. The election of a State governor is in most States vested in the legislature. He is nominally assisted, but in reality checked, by a council not of his own choosing. He has not (except in Massachusetts) a veto on the Acts of the legislature. He has not, like the royal governors of colonial days, the right of adjourning or dissolving it. The idea of giving power to the people directly has scarcely appeared, because the legislature is conceived as the natural and necessary organ of popular government, much as the House of Commons is in England. And hence many of these early Constitutions consist of little beyond an elaborate Bill of Rights and a comparatively simple outline of a frame of government, establishing a representative legislature, with a few executive officers and courts of justice carefully separated therefrom.

The second period covers the first half of the nineteenth century down to the time when the intensity of the party struggles over slavery (1850-'60) interrupted to some extent the natural processes of State development. It is a period of the democratization of all institutions, a democratization due not only to causes native to American soil, but to the influence upon the generation which had then come to manhood of French republican ideas. Such provisions for the maintenance of religious institutions by the State as had continued to exist are now swept away. The principle prevails that Constitutions must be directly enacted by popular vote. The choice of a governor is taken from the legislature to be given to the people. Property qualifications are abolished, and a suffrage practically universal, except that it often excludes free persons of color, is introduced. Even the judges are not spared. Many Constitutions shorten their term of office, and direct them to be chosen by popular vote. The State has emerged from the English conception of a community acting through a ruling legislature, for the legislature begins to be regarded as being only a body of agents exercising delegated and restricted powers, and obliged to recur to the sovereign people (by asking for a constitutional amendment), when it seeks to extend these powers in any particular direction. The increasing length of the Constitutions during this half century shows how the range of the popular vote has extended, for these documents now contain a mass of ordinary law on matters which in the early days would have been left to the legislatures.

In the third period, which begins from about the time of the Civil War, a slight reaction may be discerned, not against popular sovereignty, which is stronger than ever, but in the tendency to strengthen the executive and judicial departments. The gover

nor had begun to receive in the second period, and has now in practically all the States, a veto on the acts of the legislature. His tenure of office has been generally lengthened; the restrictions on his reeligibility generally removed. In many States the judges have been granted larger salaries, and their terms of office lengthened. Some Constitutions have even transferred judicial appointments from the vote of the people to the Executive. But the most notable change of all has been the narrowing of the competence of the legislature, and the tying up of its action by a variety of complicated restrictions. It may seem that to take powers away from the legislature is to give them to the people, and is therefore another step toward pure democracy. But in America this is not so, because a legislature always yields to any popular clamor, however transient, while direct legislation by the people involves some delay. Such provisions are therefore conservative in their results, and are really checks imposed by the citizens upon themselves. This process of development, which has first exalted and then depressed the legislature, which has extended the direct interference of the people, which has changed the Constitution itself from a short into a long, a simple into a highly complex document, has of course not yet ended.

The influences at work, the tendencies which the constitutions of the last fifty years reveal, are evidently the same over the whole Union. What are the chief of those tendencies? One is for the Constitutions to grow longer. The new Constitutions are longer, not only because new topics are taken up and dealt with, but because the old topics are handled in far greater detail. Such matters as education, ordinary private law, railroads, State and municipal indebtedness, were either untouched or lightly touched in the earlier instruments. The provisions

regarding the judiciary and the legislature, particularly those restricting the power of the latter, have grown far more minute of late years. As the powers of a State legislature are prima facie unlimited, these bodies can be restrained only by enumerating the matters withdrawn from their competence and the list grows always ampler.

The suffrage is now in almost every State enjoyed by all adult males. Citizenship is quickly and easily accorded to immigrants. And, most significant of all, the superior judges, who were formerly named by the governor, or chosen by the legislature, and who held office during good behavior, are now in most States elected by the people for fixed terms of years. I do not ignore the strongly-marked democratic character of even the first set of Constitutions, formed at and just after the Revolution; but that character manifested itself chiefly in negative provisions, i.e., in forbidding exercises of power by the Executive, in securing full civil equality and the primordial rights of the citizens. The new democratic spirit is positive as well as negative. It refers everything to the direct arbitrament of the people. It calls their will into constant activity, sometimes by the enactment of laws on various subjects in the Constitution, sometimes by prescribing to the legislature the purposes which legislation is to aim at.

All the States of the Union are democracies, and democracies of nearly the same type. Yet while some change their Constitutions frequently, others scarcely change theirs at all. Of the causes of these differences I will now touch on two only. One is the attachment which in an old and historic, a civilized and well-educated community, binds the people to their accustomed usages and forms of government. It is the newer States, without a past to revere, with a population undisciplined or fluctuating, that are

prone to change. In well-settled commonwealths the longer a Constitution has stood untouched, the longer it is likely to stand, because the force of habit is on its side, because an intelligent people learns to value the stability of its institutions, and to love that which it is proud of having created.

The other cause is the difference between the swiftness with which economic and social changes move in different parts of the country. They are the most constant sources of political change, and find their natural expression in alterations of the Constitution. Such changes have been least swift and least sudden in the New England and Middle States, though in some of the latter the growth of great cities, such as New York and Philadelphia, has induced them, and induced therewith a tendency to amend the Constitutions so as to meet new conditions and check new evils. They have been most marked in regions where population and wealth have grown with unexampled speed, and in those where the extinction of slavery has changed the industrial basis of society. Here lies the explanation of the otherwise singular fact that several of the original States, such as Virginia and Georgia, have run through many Constitutions. These whilom slave States have not only changed greatly but changed suddenly: society was dislocated by the Civil War, and has had to make more than one effort to set itself right.

Putting all these facts together, the American democracy seems less inclined to changefulness and inconstancy than either abstract considerations or the descriptions of previous writers, such as De Tocqueville, would have led us to expect.

The Constitutions witness to a singular distrust by the people of its own agents and officers, not only of the legislatures but also of local authorities, as