well rural as urban, whose powers of borrowing or undertaking public works are strictly limited. They witness also to a jealousy of the Federal government. By most Constitutions a Federal official is made incapable, not only of State office, but of being a member of a State legislature. These prohibitions are almost the only references to the national government to be found in the State constitutions, which so far as their terms go might belong to independent communities. They usually talk of corporations belonging to other States as "foreign," and sometimes try to impose special burdens on them. They show a wholesome anxiety to protect and safeguard private property in every way. The people's consciousness of sovereignty has not used the opportunity which the enactment of a Constitution gives to override private rights: there is rather a desire to secure such rights from any encroachment by the legislature: witness the frequent provisions against the taking of property without due compensation, and against the passing of private or personal statutes which could unfairly affect individuals. The only exceptions to this rule are to be found in the case of anything approaching a monopoly, and in the case of wealthy corporations. Some departments of governmental action, which on the continent of Europe have long been handled by the State, are in America still left to private enterprise. For instance, the States neither own nor manage railways, or telegraphs, or mines, or forests, and they sell their public lands instead of working them. There is, nevertheless, visible in recent Constitutions a tendency to extend the scope of public administrative activity. Nearly all the newer instruments established bureaus of agriculture, labor offices, mining commissioners, land registration offices, railroad commissioners, in

surance commissioners, dairy commissioners, and agricultural or mining colleges.

A spirit of humanity and tenderness for suffering, very characteristic of the American people, appears in the directions which many Constitutions contain for the establishment of charitable and reformatory institutions. Sometimes the legislature is enjoined to provide that the prisons are made comfortable. On the other hand, this tenderness is qualified by the judicious severity which in most States debars persons convicted of crime from the electoral franchise.

In the older Northern Constitutions, and in nearly all the more recent Constitutions of all the States, ample provision is made for the creation and maintenance of schools. Even universities are the object of popular zeal. Most of the Western Constitutions direct their establishment and support from public funds or land grants.

CHAPTER IV.

DIRECT LEGISLATION BY THE PEOPLE

The difficulties and defects inherent in the method of legislating by a Constitution are obvious enough. These inconveniencies are no doubt slighter in America than they would be in Europe, because the lawyers and the judges have had so much experience in dealing with constitutional and legislative questions that they now handle them with amazing dexterity.

In the United States the conception that the people (i.e., the citizens at large) are and ought of right to be the supreme legislators, has taken the form of legislation by enacting or amending a Constitution. Instead of, like the Swiss, submitting ordinary laws to the voters after they have passed the legislature, the Americans take subjects which belong to ordin

ary legislation out the category of statutes, place them in the Constitution, and then handle them as parts of this fundamental instrument. They are not called laws; but laws they are to all intents and purposes, differing from statutes only in being enacted by an authority which is not a constant but an occasional body, called into action only when a convention or a legislature lays propositions before it.

We have seen that this system sprang from the fact that the Constitutions of the colonies having been given to them by an external authority superior to the colonial legislature, the people of each State, seeing that they could no longer obtain changes in their Constitution from Britain, assumed to themselves the right and duty of remodeling it; putting the collective citizendom of the State into the place of the British Crown as sovereign. The business of creating or remodeling an independent commonwealth was to their thinking too great a matter to be left to the ordinary organs of State life. This feeling, which had begun to grow from 1776 onward, was much strengthened by the manner in which the Federal Constitution was enacted in 1788 by State conventions. It seemed to have thus received a specially solemn ratification; and even the Federal legislature, which henceforth was the center of national politics, was placed far beneath the document which expressed the will of the people as a whole.

As the republic went on working out both in theory and in practice those conceptions of democracy and popular sovereignty which had been only vaguely apprehended when enunciated at the Revolution, the faith of the average man in himself became stronger, his love of equality greater, his desire, not only to rule, but to rule directly in his own proper person, more constant. Even in State affairs they made it an article of faith that no Constitution could be enacted

save by the direct vote of the citizens; and they inclined the citizens to seize such chances as occurred of making laws for themselves in their own way. Concurrently with the growth of these tendencies there had been a decline in the quality of the State legislatures, and of the legislation which they turned out. They were regarded with less respect; they inspired less confidence. Hence the people had the further excuse for superseding the legislature, that they might reasonably fear it would neglect or spoil the work they desired to see done. Instead of being stimulated by this distrust to mend their ways and recover their former powers, the State legislatures fell in with the tendency, and promoted their own supersession. The chief interest of their members is in the passing of special or local Acts, not of general public legislation. They welcome the direct intervention of the people as relieving them of embarrassing problems.

It is, however, chiefly in the form of an amendment to the Constitution that we find the American voters exercising direct legislative power. And this method comes very near to the Swiss referendum, because the amendment is first discussed and approved by the legislature, a majority greater than a simple majority being required in some States, and then goes before the citizens voting at the polls. Sometimes the State Constitution provides that a particular question shall be submitted by the legislature to the voters, thus creating a referendum for that particular case.

What are the practical advantages of this plan of direct legislation by the people? Its demerits are obvious. Besides those I have already stated, it tends to lower the authority and sense of responsibility in the legislature; and it refers matters needing much elucidation by debate to the determination

of those who cannot, on account of their numbers, meet together for discussion, and many of whom may have never thought about the matter. The Americans fall back on the popular vote as the best course available under the circumstances of the case, and in such a world as the present. They do not claim that it has any great educative effect on the people. But they remark with truth that the mass of the people are equal in intelligence and character to the average State legislator, and are exposed to fewer temptations. The citizens can and do reject proposals which the legislature has assented to. Nor should it be forgotten that in a country where law depends for its force on the consent of the governed, it is eminently desirable that law should not outrun popular sentiment, but have the whole weight of the people's deliverance behind it.

If the practice of recasting or amending State Constitutions were to grow common, one of the advantages of direct legislation by the people would disappear, for the sense of permanence would be gone, and the same mutability which is now possible in ordinary statutes would become possible in the provisions of the fundamental law. But this fault of small democracies, especially when ruled by primary assemblies, is unlikely to recur in large democracies, such as most States have now become, nor does it seem to be on the increase among them. Reference to the people, therefore, acts as a conservative force; that is to say, it is a conservative method as compared with action by the legislature.

This method of legislation by means of a Constitution or amendments thereto is now serviceable in a way which those who first used it did not contemplate, though they are well pleased with the result. It acts as a restrain not only on the vices and follies of legislators, but on the people themselves. It has