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. Some of the newer instruments establish ministries of agriculture, labour offices, mining commissioners, land registration offices, dairy commissioners, and agricultural or mining colleges. And a reference to the statutes passed within the last few years in the Western States will show that more is being done in this direction by the legislatures, as exponents of popular sentiment, than could be gathered from the constitutions, most of which are more than ten years old.

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, though a zeal not always according to knowledge. Several Western constitutions direct their establishment and support from public funds or land grants.

Although a Constitution is the fundamental and supreme law of the State, one must not conclude that

its provisions are any better observed and enforced than those of an ordinary statute. There is sometimes reason to suspect that when an offence is thought worthy of being specially mentioned in a constitution, this happens because it is specially frequent, and because it is feared that the legislature may shrink from applying due severity to repress it. Certain it is that in many instances the penalties threatened by constitutions fail to attain their object. For instance, the constitutions of most of the Southern States have for many years past declared duellists, and even persons who abet a duel by carrying a challenge, incapable of office, or of sitting in the legislature. Yet the practice of private warfare does not seem to have declined in Mississippi, Texas, or Arkansas, where these provisions exist. Virginia had such a provision in her constitution of 1830. She repeated it in her constitution of 1850, but with the addendum, that the disqualification should not attach to those who had offended previously -i.e. in violation of the constitution of 1830.1 far as the enactment has had any effect, that effect would seem to have been to encourage the practice of shooting at sight, which is neither morally nor socially

So

1 "The General Assembly may provide that no person shall be capable of holding or being elected to any post of profit, trust, or emolument, civil or military, legislative, executive, or judicial, under the government of this commonwealth who shall hereafter fight a duel, or send or accept a challenge to fight a duel, the probable issue of which may be the death of the challenger or challenged, or who shall be second to either party, or shall in any manner aid or assist in such duel, or shall be knowingly the bearer of such challenge or acceptance; but no person shall be so disqualified by reason of his having heretofore fought such duel or sent or accepted such challenge, or been second in such duel, or bearer of such challenge or acceptance" (Constitution of 1830, Art. iii. § 12, repeated in Constitution of 1850, Art. iv. § 17). In her Constitution of 1870 Virginia is not content with suggesting to the legislature to disqualify duellists, but does this directly by Art. iii. § 3. Seventeen Constitutions now declare duellists disqualified for office, and nine others add a disqualification for the franchise. Nearly all are Southern and Western States.

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F

an improvement on duelling, though apparently exempt from these constitutional penalties.

New York has been so much exercised on the subject of bribery and corruption, as to declare (amendments of 1874), not only that every member of the legislature and every officer shall take an oath that he has given nothing as a consideration for any vote received for him (amendment to Art. xii. § 1), and that the legislature shall pass laws excluding from the suffrage all persons convicted of bribery or of any infamous crime (amendment to Art. ii. § 2), but also (amendment to Art. xv. §§ 1 and 2) that the giving or offering to or receiving by an officer of any bribe shall be a felony. And lobbying, which is openly practised in every building where a legislature meets, is declared by California to be a felony, and by Georgia to be a crime.

CHAPTER XXXIX

DIRECT LEGISLATION BY THE PEOPLE

THE difficulties and defects inherent in the method of legislating by a Constitution are obvious enough. Inasmuch as the people cannot be expected to distinguish carefully between what is and what is not proper for a fundamental instrument, there arises an inconvenient as well as unscientific mixture and confusion of private law and administrative regulation with the frame of government and the general doctrines of public law. This mixture, and the practice of placing in the Constitution directions to the legislature to legislate in a certain sense, or for certain purposes, embarrass a legislature in its working by raising at every turn questions of its competence to legislate, and of the agreement between its acts and the directions contained in the Constitution. And as the legislature is seldom either careful or well-advised, there follows in due course an abundant crop of questions as to the constitutionality of statutes, alleged by those whom they affect prejudicially in any particular instance to be either in substance inconsistent with the Constitution, or such as the legislature was expressly forbidden by it to pass. These inconveniences 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 questions of constitutional conflict and ultra vires legislation that they now handle them with amazing dexterity. Still, they are serious, and such as a wellordered government ought to avoid. The habit of putting into the Constitution matters proper for an ordinary statute has the further disadvantage that it heightens the difficulty of correcting a mistake or supplying an omission. The process of amending a constitution even in one specific point is a slow one, to which neither the legislature, as the proposing authority, nor the people, as the sanctioning authority, willingly resort. Hence blemishes remain and are tolerated, which a country possessing, like England, a sovereign legislature would correct in the next session of Parliament without trouble or delay.

It is sometimes difficult to induce the people to take a proper interest in the amendment of the Constitution. In those States where a majority of all the qualified voters, and not merely of those voting, is required to affirm an amendment, it often happens that the requisite majority cannot be obtained owing to the small number who vote.1 This has its good side, for it is a check on hasty or frequent change. But it adds greatly to the difficulty of working a rigid or supreme Constitution, that you may find an admitted, even if not very grave evil, to be practically irremovable, because the mass of the people cannot be induced to care enough about the matter to come to the polls, and there deliver their judgment upon it.

These defects are so obvious that we are entitled to. expect to find correspondingly strong grounds for the

1 This has happened more than once of late years in Kentucky and Delaware.