a judicial and non-partisan interpretation, and procures it at once before rights or interests have been created. But it is open to the objection that the opinions so pronounced by judges are given before cases have arisen which show how in fact a statute is working, and what points it may raise; and that in giving them the judges have not, as in contested lawsuits, the assistance of counsel arguing for their respective clients. And this is perhaps the reason why in most of the States where the provision exists, the judges have declared that they act under it in a purely advisory capacity, and that their deliverances are to be deemed merely expressions of opinion, not binding upon them should the point afterwards arise in a lawsuit involving the rights of parties.1

The highest court of a State may depart from a view it has previously laid down, even in a legal proceeding, regarding the construction of the Constitution, that is to say, it has a legal right to do so if convinced that the former view was wrong. But it

is reluctant to do so, because such a course unsettles the law and impairs the respect felt for the bench. And there is less occasion for it to do so than in the

tion, by which the King as well as the House of Lords, whether acting in their judicial or in their legislative capacity, had the right to demand the opinion of the twelve judges of England." This is still sometimes done by the House of Lords; but the opinions of the judges so given are not necessarily followed by that House, and though always reported are not deemed to be binding pronouncements of law similar to the decisions of a court.

1 Mr. Thayer shows, by an examination of the reported instances, that in Massachusetts, New Hampshire, and Rhode Island, as also in Missouri from 1865 to 1875, the courts held that their opinions rendered under these provisions of the State Constitutions were not to be deemed judicial determinations, equal in authority to decisions given in actual litigation, but were rather prima facie impressions, which the judges ought not to hold themselves bound by, when subsequently required to determine the same point in an action or other legal proceeding.

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parallel case of the supreme Federal court, because as the process of amending a State Constitution is simpler and speedier than that of altering the Federal Constitution, a remedy can be more easily applied to any mistake which the State judiciary has committed. This unwillingness to unsettle the law goes so far that State courts have sometimes refused to disturb a practice long acquiesced in by the legislature, which they have nevertheless declared they would have pronounced unconstitutional had it come before them while still new.

CHAPTER XXXVIII

THE DEVELOPMENT OF STATE CONSTITUTIONS

It was observed in last chapter that the State Constitutions furnish invaluable materials for history. Their interest is all the greater, because the succession of Constitutions and amendments to Constitutions from 1776 till to-day enables the annals of legislation and political sentiment to be read in these documents more easily and succinctly than in any similar series of laws in any other country. They are a mine of instruction for the natural history of democratic communities. Their fulness and minuteness make them, so to speak, more pictorial than the Federal Constitution. They tell us more about the actual methods and conduct of the government than it does. If we had similar materials concerning the history of as many Greek republics during the ages of Themistocles and Pericles, we could rewrite the history of Greece. Some things, however, even these elaborately minute documents do not tell us. No one could gather from them what were the modes of doing business in the State legislatures, and how great a part the system of committees plays there. No one could learn what manner of men constitute those bodies and determine their character. No one would know that the whole machinery is worked by a restlessly active party

organization. Nevertheless they are so instructive as records of past movements, and as an index to the present tendencies of American democracy, that I heartily regret that the space at my disposal permits me to make only a sparing use of the materials which I gathered during many months spent in studying the one hundred and five Constitutions enacted since the Declaration of Independence.1

Three periods may be distinguished 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 downwards, 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

1 I venture again to commend the study of these constitutions to the philosophic inquirer into what may be called the science of comparative politics. Both among the pre-Revolutionary charters and the State constitutions he will find matter full of instruction. Among the former I may refer especially to the Frame of Government of Pennsylvania, 1682 and 1683, and to the Fundamental Constitutions of Carolina of 1669. These last were framed by John Locke, and revised by the first Lord Shaftesbury. They were found unsuitable, were only partially put in force, and were abrogated by the proprietors in 1693, but they are none the less interesting to the student of history on that account.

2 See the remarkable passage in the Federalist, Nos. xlvi. and xlvii., which by examining the structure of the State Governments, shows the predominance of the legislature.

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 present 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, an influence which declined after 1815 and ended with 1851, since which time French examples and ideas have counted for very little. Such provisions for the maintenance of religious institutions by the State as had continued to exist are now swept away. The principle becomes established that constitutions must be directly enacted by popular vote. The choice of a governor is taken from the legislature to be given

1 The wide powers of these early legislatures are witnessed to by the fear which prudent statesmen entertained of their action. Madison said, in the Philadelphia Convention of 1787, "Experience proves a tendency in our governments to throw all power into the legislative vortex. The executives of the States are little more than ciphers; the legislatures are omnipotent." How they might abuse this power the case of Rhode Island showed.