we may expect, and shall find, that these instruments are altered more frequently and materially than the Federal Constitution has been.

A State Constitution is not only independent of the central national government (save in certain points already specified), it is also the fundamental organic law of the State itself. The State exists as a commonwealth by virtue of its Constitution, and all State authorities, legislative, executive, and judicial, are the creatures of, and subject to, the State Constitution.1 Just as the President and Congress are placed beneath the Federal Constitution, so the Governor and Houses of a State are subject to its Constitution, and any act of theirs done either in contravention of its provisions, or in excess of the powers it confers on them, is absolutely void. All that has been said in preceding chapters regarding the functions of the courts of law where an Act of Congress is alleged to be inconsistent with the Federal Constitution, applies equally where a statute passed by a State legislature is alleged to transgress the Constitution of the State, and of course such validity may be contested in any court, whether a State court or a Federal court, because the question is an ordinary question of law, and is to be solved by determining whether or no a law of inferior authority is inconsistent with a law of superior authority. Whenever in any legal proceeding before any tribunal, either party relies on a State statute, and the other party alleges that this statute is ultra vires of the State elected legislature by a two-thirds majority in each House is necessary. In Kentucky and Delaware the proposal to call a convention must be approved by a majority of all the voters. Delaware having during several years failed in the attempt to amend her Constitution (of 1831) by the legislature, fell back, in 1887, on the proposal to hold a constitutional convention, but could not secure a sufficiently large vote.

1 Some details as to the provisions of State Constitutions, and observations on a few of them, may be found in the following works:- Stimson's American Statute Law, Hitchcock's American State Constitutions (in Messrs. Putnam's "Useful Questions of the Day" Series); Davis's "American Constitutions," in Johns Hopkins University Studies; and the article "States" in the American Cyclopedia of Political Science. Of course the great authority is the collection of the State Constitutions, embracing all that have been duly enacted since 1776, in the two thick quarto volumes entitled Federal and State Constitutions, published under the authority of Congress by Ben. Perley Poore, 2 vols., Washington, 1878. It is much to be wished than an annual or biennial supplement to Poore's collection should be officially published, containing all the new constitutions and constitutional amendments. At present it is very difficult, especially for a resident in Europe, to ascertain exactly how the constitution of each State stands ; and I ask indulgence for any errors into which I may, owing to this difficulty, have fallen.

legislature, and therefore void, the tribunal must determine the question just as it would determine whether a bye-law made by a municipal council or a railway company was in excess of the lawmaking power which the municipality or the company had received from the higher authority which incorporated it and gave it such legislative power as it possesses. But although Federal courts are fully competent to entertain a question arising on the construction of a State Constitution, their practice is to follow the precedents set by any decision of a court of the State in question, just as they would follow the decision of an English court in determining a point of purely English law. They hold not only that each State must be assumed to know its own law better than a stranger can, but also that the supreme court of a State is the authorized exponent of the mind of the people who enacted its Constitution.

A State Constitution is really nothing but a law made directly by the people voting at the polls upon a draft submitted to them. The people of a State when they so vote act as a primary and constituent assembly, just as if they were all summoned to meet in one place like the folkmoots of our Teutonic forefathers. It is only their numbers that prevent them from so meeting in one place, and oblige the vote to be taken at a variety of polling places. Hence the enactment of a Constitution is an exercise of direct popular sovereignty to which we find few parallels in modern Europe, though it was familiar enough to the republics of antiquity, and has lasted till now in some of the cantons of Switzerland.1

The importance of this character of a State Constitution as a popularly-enacted law, overriding every minor State law, becomes all the greater when the contents of these Constitutions are examined. Europeans conceive of a constitution as an instrument, usually a short instrument, which creates a frame of government, defines its departments and powers, and declares the "primordial rights" of the subject or citizen as against the rulers. An American State Constitution does this, but does more; and in most cases, infinitely more. It deals with a variety of topics which in Europe would be left to the ordinary action

1 See the interesting remarks on the Swiss Landesgemeinde in Mr. Freeman's Comparative Politics. Nowadays, however, the Landesgemeinde (which survive only in Uri, Unterwalden, Glarus, and Appenzell) do not act as constituent or constitution-enacting bodies, though they still directly legislate.

of the legislature, or of administrative authorities; and it pursues these topics into a minute detail hardly to be looked for in a fundamental instrument. Some of these details will be mentioned presently. Meantime I will sketch in outline the frame and contents of the more recent constitutions, reserving for next chapter remarks on the differences of type between those of the older and those of the newer States.

A normal Constitution consists of five parts

I. The definition of the boundaries of the State. (This does not occur in the case of the older States.)

II. The so-called Bill of Rights-an enumeration (whereof more anon) of the citizens' primordial rights to liberty of person and security of property. This usually stands at the beginning of the Constitution, but occasionally at the end.

III. The frame of government-i.e. the names functions and powers of the executive officers, the legislative bodies, and the courts of justice. This occupies several articles.

IV. Miscellaneous provisions relating to administration and law, including articles treating of schools, of the militia, of taxation and revenue, of the public debts, of local government, of State prisons and hospitals, of agriculture, of labour, of impeachment, and of the method of amending the Constitution, besides other matters, to be mentioned presently, still less political in their character. The order in which these occur differs in different instruments, and there are some in which some of the above topics are not mentioned at all. The more recent Constitutions and those of the newer States are much fuller on these points.

V. The Schedule, which contains provisions relating to the method of submitting the Constitution to the vote of the people, and arrangements for the transition from the previous Constitution to the new one which is to be enacted by that vote. Being of a temporary nature, the schedule is not strictly a part of the Constitution.

The Bill of Rights is historically the most interesting part of these Constitutions, for it is the legitimate child and representative of Magna Charta, and of those other declarations and enactments, down to the Bill of Rights of the Act of 1 William and Mary, session 2, by which the liberties of Englishmen have been secured. Most of the thirteen colonies when they asserted their independence and framed their Con

stitutions inserted a declaration of the fundamental rights of the people, and the example then set has been followed by the newer States, and, indeed, by the States generally in their most recent Constitutions. Considering that all danger from the exercise of despotic power upon the people of the States by the executive has long since vanished, their executive authorities being the creatures of popular vote and nowadays rather too weak than too strong, it may excite surprise that these assertions of the rights and immunities of the individual citizen as against the government should continue to be repeated in the instruments of today. A reason may be found in the remarkable constitutional conservatism of the Americans, and in their fondness for the enunciation of the general maxims of political freedom. But it is also argued that these declarations of principle have a practical value, as asserting the rights of individuals and of minorities against arbitrary conduct by a majority in the legislature, which might, in the absence of such provisions, be tempted at moments of excitement to suspend the ordinary law and arm the magistrates with excessive powers. They are therefore, it is held, still safeguards against tyranny; and they serve the purpose of solemnly reminding a State legislature and its officers of those. fundamental principles which they ought never to overstep.1 Although such provisions certainly do restrain a State legislature in ways which the British Parliament would find inconvenient, few complaints of practical evils thence arising are heard.

A general notion of these Bills of Rights may be gathered from the Constitution of the State of California (1879), printed in the Appendix to this volume. I may mention, in addition, a few curious provisions which occur in some of them.

All provide for full freedom of religious opinion and worship, and for the equality before the law of all religious denominations and their members; and many forbid the establishment of any particular church or sect, and declare that no public money ought to be applied in aid of any religious body or sectarian institution. But Delaware holds it to be "the duty of all men frequently to assemble for public worship;" and Vermont adds that "every sect or denomination of Christians ought to observe the Sabbath or Lord's Day." And thirteen States declare that the provisions for freedom of conscience are not to be taken to 1 The influence of the Declaration of Independence of 1776 is of course perceptible in them all.

excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the State.1

Louisiana (Constitution of 1879) declares that "all government of right originates with the people, is founded on their will alone, and is instituted solely for the good of the whole, deriving its just powers from the consent of the governed. Its only legitimate end is to protect the citizen in the enjoyment of life, liberty, and property. When it assumes other functions, it is usurpation and oppression."

Twenty-six States declare that "all men have a natural, inherent, and inalienable right to enjoy and defend life and liberty;" and all of these, except the melancholy Missouri, add, the "natural right to pursue happiness."

Eighteen declare that all men have "a natural right to acquire, possess, and protect property."

Mississippi (Constitution of 1868) provides that "the right of all citizens to travel upon public conveyances shall not be infringed upon nor in any manner abridged." A similar provision occurs in the Constitution of Louisiana of 1868.2

Kentucky (Constitution of 1850, which is still in force) lays down "that absolute arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority. The right of property is before and higher than any constitutional sanction; and the right of the owner of a slave to such slave and its increase is the same and as inviolable as the right of the owner of any property whatever. All power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, happiness, and security, and the protection of property."

All in one form or another secure the freedom of writing and speaking opinions, and some add that the truth of a libel may be given in evidence.

Nearly all secure the freedom of public meeting and petition. Considering that these are the last rights likely to be infringed

1 In Arkansas, Maryland, Mississippi, North Carolina, South Carolina, and Texas, a man is declared ineligible for office if he denies the existence of God; in Pennsylvania and Tennessee he is ineligible if he does not believe in God, and in the existence of future rewards and punishments. In Arkansas and Maryland such a person is also incompetent as a witness or juror.

These provisions were inserted shortly after the Civil War in order to protect the negroes.

3 This proposition has of course been annulled, in effect, by the latest amend ments (xiii. xiv. xv.) to the Federal Constitution.