But the ultimate expounder of that meaning is the judiciary; and when the courts of a State have solemnly declared the true construction of any provision of the constitution, all persons are bound to regulate their conduct accordingly.

It is a well-established rule that the judges will always lean in favour of the validity of a legislative act; that if there be a reasonable doubt as to the constitutionality of a statute they will solve that doubt in favour of the statute; that where the legislature has been left a discretion they will assume the discretion to have been wisely exercised; that where the con struction of a statute is doubtful, they will adopt such construction as will harmonize with the constitution, and enable it to take effect. So it has been well observed that a man might with perfect consistency argue as a member of a legislature against a bill on the ground that it is unconstitutional, and after having been appointed a judge, might in his judicial capacity sustain its constitutionality. Judges must not inquire into the motives of the legislature, nor refuse to apply an act because they may suspect that it was obtained by fraud or corruption, still less because they hold it to be opposed to justice and sound policy. A court cannot declare a statute unconstitutional and void solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social, or political rights of the citizen, unless it can be shown that such injustice is prohibited, or such rights guaranteed or protected, by the Constitution.1 . . . But when a statute is adjudged to be unconstitutional, it is as if it had

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1 This was not always admitted; just as in England it was at one time held that natural justice and equity were above acts of Parliament. So in the case of Gardner v. The Village of Newburg (Johnson's Chancery Reports, N. Y. 162), the New York legislature had authorized the village to supply itself with water from a stream, but had made no provision for indemnifying the owners of lands through which the stream flowed for the injury they must suffer from the diversion of the water. The Constitution of New York at that time contained no provision prohibiting the taking of private property for public use without compensation; notwithstanding this, Chancellor Kent restrained the village from proceeding upon the broad general principle which he found in Magna Charta, in a statutory Bill of Rights, which of course could not control the legislature, and in Grotius, Puffendorf, and Bynkershoek. (I owe this reference to the kindness of Mr. Theodore Bacon.)

As the doctrine stated in the text has been doubted by some critics, I may now (Sept. 1892) refer for further confirmation of it to Dash v. Van Kleech, 7 Johns. 477 (words of Chancellor Kent), and People v. Gillson, 109 N. Y. 398.

never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it; and no one can be punished for having refused obedience to it before the decision was made. And what is true of an act void in toto, is true also as to any part of an act which is found to be unconstitutional, and which consequently is to be regarded as having never at any time been possessed of legal force."

CHAPTER XXXVII

THE DEVELOPMENT OF STATE CONSTITUTIONS

THREE periods may be distinguished in the development of State government 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 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 cen

1In New York a veto on the acts of the legislature was by the first Constitution vested in the government and judges of the highest State court, acting together.

tury down to the time when the intensity of the party struggles over slavery (1850-60) interrupted to some extent the natural process of State development. It is a period of the democratization of all institutions, a democratization due not only to causes native to American soil, such as the supremacy in politics of the generation who had been boys during the Revolutionary War, but to the influence upon the generation which had then come to manhood of French republican ideas, an influence which declined after 1805 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 (in the North and West) 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 colour, is introduced. Even the judges are not spared. Many constitutions shorten their term, 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 governor had begun to receive in the second period, and has now in every State but four, a veto on the acts of the legislature. His tenure of office has been generally lengthened; the restrictions on his re-eligibility 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 fettering its action by complicated restrictions. It may seem that to take powers away from the legislature is to give them to the people, and therefore another step towards pure democracy. But in America this is not so, because a legislature always yields to any popular clamour, however transient, while direct legislation by the people involves delay. Such provisions are therefore conservative in their results, and are really checks imposed by the citizens upon themselves.

Taking the newer, and especially the Western and Southern Constitutions, and remembering that each is the work of an absolutely independent body, which (subject to the Federal Constitution) can organize its government and shape its law in any way it pleases, so as to suit its peculiar conditions and reflect the character of its population, one is surprised to find how similar these newer instruments are. There is endless variety in details, but a singular agreement in essentials. The influences at work, the tendencies which the constitutions of the last forty 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 abuses of power became more frequent, and the respect for legislative authority less. 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 time might almost seem to have come for prescribing that, like Congress, they should be entitled to legislate on certain enumerated subjects only, and be always required to establish affirmatively their competence to deal with any given topic.