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. Among others we find provisions that every bill shall be passed by a certain proportional majority, that it shall be read "fully and distinctly" (whatever that may be deemed to mean), on three different days (Ohio, and other States); that it "shall include only one subject which shall be expressed in its title" (nearly all States); that "no Act shall be revised or amended by mere reference to its title, but the Act revised or section amended shall be set forth at full length" (many States); that "no Act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of such Act, or which shall enact that any existing law, or any part thereof, shall be applicable except by inserting it in such Act" (New York and other States1) Sometimes it is provided that no bill shall be introduced into either house 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 hurry of the last days.2

1 All these practices which American Constitutions condemn exist in the British Parliament, though the standing orders and the traditions of both Houses prevent them from being seriously harmful. However, the habit of incorporating an earlier statute with a later one by mere reference, certainly tends to confuse the law; and sometimes the inclusion in one statute of wholly different matters operates harshly on persons who have failed to note the minor contents of a bill whose principal purpose does not affect them. The commoners of the New Forest in Hampshire were, some years ago, much surprised to wake up one morning and find that the Crown had smuggled through Parliament, in an Act relating to foreshores in Scotland, a clause which seriously affected their interests.

2 "A practice has sprung up of evading this constitutional provision 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

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 (now in Congress) 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 never be allowed to come between frinds."

Some bills again it is the duty of the governor to veto, because they violate a Constitutional restriction; while of those that pass him unscathed, a fair number fall victims to the courts of law. After the explanations given in an earlier chapter, I need only say here that the enforcement of the limitations imposed by a State Constitution necessarily rests with the judges, since it is they who pronounce whether or no a statute has transgressed the bounds which the fundamental instrument sets, or whether a Constitutional amendment has been duly carried.1

Some one 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 therehouse 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.

1 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.

fore 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 re-election 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.1 The legislature were furious, and proceeded to impeach the judges for disobeying their will. The impeachment failed, but the judges were not re-elected by the legislature when their term of office expired at the end of

1 See p. 244, 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 the first example in American history of the exercise of a salutary function. Their decision was that they had no jurisdiction.

the year, and were replaced by a more subservient bench, which held the statute valid. 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 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 re-election, he was defeated solely on the ground of this decision. 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 storms of popular passion.2

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

1 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.

2 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

the State Constitutions, any more than in the Federal Constitutions, 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 Queen 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 naïve, 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. 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 tax-payer to shorten the session. His interest, however, was still stronger in cutting short the jobs and improvident bestowal of moneys and franchises in which he found his representatives employed. Accordingly twenty-two States have fixed a number of days beyond which the legislature may not sit. Most 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 law-making, their virtue

1 The English Parliament found the tendency of members to slip away so strong that in the sixteenth century it passed an Act "that no knight of the shire or burgess do depart before the end of Parliament," which 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."