the fundamental law. But this fault of small democracies,1 especially when ruled by primary assemblies, is unlikely to recur in large democracies, such as most States have now become, nor does it seem to be on the increase among them. Reference to the people, therefore, acts as a conservative force; that is to say, it is a conservative method as compared with action by the legislature.

In England, and indeed in most European countries, representative government has been hitherto an institution with markedly conservative elements, because the legislating representatives have generally belonged to the wealthy or well-born and educated classes, who having something to lose by change, are disinclined to it, who have been looked up to by the masses, and who have been imperfectly responsive to popular impulses. American legislatures have none of these features. The men are not superior to the multitude, partly because the multitude is tolerably educated and tolerably well off. The multitude does. not defer to them. They are horribly afraid of it, and indeed of any noisy section in it. They live in the breath of its favour; they hasten to fulfil its behests almost before they are uttered. Accordingly an impulse or passion dominant among the citizens tells at once on the legislature, and finds expression in a law, the only check being, not the caution of that body and its willingness to debate at length, but the incapacity it often shows to embody in a practical form the wishes manifested by the people. Hence in the American States representative government has by no means that conservative quality which Europeans ascribe to it, whereas the direct vote of the people is the vote of men who are generally better instructed than the European masses, more experienced in politics, more sensible of their interest in the stability of the country. If, therefore, we regard the referendum in its effect upon the State legislature, we shall regard it as being rather a bit and bridle than a spur.

This method of legislation by means of a Constitution or amendments thereto, arising from sentiments and under conditions in many respects similar to those which have produced the referendum in Switzerland, is an interesting illustration of

1 So frequent a charge against the Greek republics and the Italian republics of the middle ages, as Dante says of Florence

"Ch' a mezzo Novembre,

Non giunge quel che tu d'Ottobre fili."

the tendency of institutions, like streams, to wear their channels deeper. A historical accident, so to speak, suggested to the Americans the subjection of their legislatures to a fundamental law, and the invention has been used for other purposes far more extensively than its creators foresaw. It is now, moreover, serviceable in a way which those who first used it did not contemplate, though they are well pleased with the result. It acts as a restraint not only on the vices and follies of legislators, but on the people themselves. Having solemnly bound themselves by their Constitution to certain rules and principles, the people come to respect those principles. They have parted with powers which they might be tempted in a moment of excitement, or under the pressure of suffering, to abuse through their too pliant representatives; and although they can resume these powers by enacting a new Constitution or amending the old one, the process of resumption requires time, and involves steps which secure care and deliberation, while allowing passion to cool, and the prospect of a natural relief from economic evils to appear. has been well observed by Dr. von Holst1 that the completeness and consistency with which the principle of the direct sovereignty of the whole people is carried out in America has checked revolutionary tendencies, by pointing out a peaceful and legal method for the effecting of political or economical changes, and has fostered that disposition to respect the decision of the majority which is essential to the success of popular govern

ments.

It

State Constitutions, considered as laws drafted by a Convention and enacted by the people at large, are better both in form and substance than laws made by the legislature, because they are the work of abler men, acting under a special commission which imposes special responsibilities on them. The appointment of a Constitutional Convention is an important event, which excites general interest in a State. Its functions are weighty and difficult, far transcending those of the regular legislature. Hence the best men in the State desire a seat in it, and, in particular, eminent lawyers become candidates, knowing how much it will affect the law they practise. It is therefore a body superior in composition to either the Senate or the House of a State. Its proceedings excite more interest; its debates are more instructive; its conclusions are more carefully weighed, 1 Constitutional Law of the United States, § 90.

because they cannot be readily reversed.1 Or if the work of altering the constitution is carried out by a series of amendments, these are likely to be more fully considered by the legislature than ordinary statutes would be, and to be framed with more regard to clearness and precision.

In the interval between the settlement by the convention of its draft constitution, or by the legislature of its draft amendments, and the putting of the matter to the vote of the people, there is copious discussion in the press and at public meetings, so that the citizens often go well prepared to the polls. An all-pervading press does the work which speeches did in the ancient republics, and the fact that constitutions and amendments so submitted are frequently rejected, shows that the people, whether they act wisely or not, do not at any rate surrender themselves blindly to the judgment of a convention, or obediently adopt the proposals of a legislature.

These merits are indeed not always claimable for conventions and their remodelled constitutions, much less for individual amendments.2 The Constitution of California of 1879 (whereof more in a later chapter) is a striking instance to the contrary. But a general survey of this branch of our inquiry leads to the conclusion that the peoples of the several States, in the exercise of this their highest function, show little of that haste, that recklessness, that love of change for the sake of change, with which European theorists, both ancient and modern, have been wont to credit democracy; and that the method of direct legislation by the citizens, liable as it doubtless is to abuse, causes, in the present condition of the States, fewer evils than it prevents.

1 Occasionally some particular clause of a draft constitution is separately submitted to the people; if they approve it, it is inserted in the constitution, which is voted on as a whole; if they refuse it, it is omitted.

2 There is much controversy in America as to whether the better method of reforming a constitution be to recast it by a convention or remove particular blemishes by a series of amendments. Probably the one plan or the other is to be preferred, according to the condition of public sentiment and the likelihood of securing a strong convention.

CHAPTER XL

STATE GOVERNMENTS: THE LEGISLATURE

THE similarity of the frame of government in the thirty-eight republics which make up the United States, a similarity which appears the more remarkable when we remember that each of the republics is independent and self-determined as respects its frame of government, is due to the common source whence the governments flow. They are all copies, some immediate, some mediate, of ancient English institutions, viz. chartered self-governing corporations, which, under the influence of English habits, and with the precedent of the English parliamentary system before their eyes, developed into governments resembling that of England in the eighteenth century. Each of the thirteen colonies had up to 1776 been regulated by a charter from the British Crown, which, according to the best and oldest of all English traditions, allowed it the practical management of its own affairs. The charter contained a sort of skeleton constitution, which usage had clothed with nerves, muscles, and sinews, till it became a complete and symmetrical working system of free government. There was in each a governor, in two colonies chosen by the people,1 in the rest nominated by the Crown; there was a legislature; there were executive officers acting under the governor's commission and judges nominated by him; there were local selfgoverning communities. In none, however, did there exist what we call cabinet government, i.e. the rule of the legislature through a committee of its own members, coupled with the irresponsibility of the permanent nominal head of the executive. This separation of the executive from the legislature, which naturally arose from the fact that the governor was an officer directly responsible to

1 However, in Connecticut and Rhode Island, the governor was chosen, not as now by the people at large, but by the Company assembled in general court, a body which passed into the legislature of the colony. See Charter of Connecticut of 1662, Charter of Rhode Island, 1663.

another power than the colonial legislature, viz. the British Crown, his own master to whom he stood or fell,1 distinguishes the old colonial governments of North America from those of the British colonies of the present day, in all of which cabinet government prevails.2 The latter are copies of the present Constitution of England; the former resembled it as it existed in the seventeenth and beginning of the eighteenth century before cabinet government had grown up.

When the thirteen colonies became sovereign States at the Revolution, they preserved this frame of government, substituting a governor chosen by the State for one appointed by the Crown. As the new States admitted to the Union after 1789 successively formed their constitutions prior to their admission to the Union, each adopted the same scheme, its people imitating, as was natural, the older commonwealths whence they came, and whose working they understood and admired. They were the more inclined to do so because they found in the older constitutions that sharp separation of the executive, legislative, and judicial powers which the political philosophy of those days taught them to regard as essential to a free government, and they all take this separation as their point of departure.

I have observed in an earlier chapter that the influence on the framers of the Federal Constitution of the examples of free government which they found in their several States, had been profound. We may sketch out a sort of genealogy of Governments as follows::

First. The English incorporated Company, a self-governing body, with its governor, deputy-governor, and assistants chosen by the freemen of the company, and meeting in what is called the General Court or Assembly.

Next. The Colonial Government, which out of this Company evolves a governor or executive head and a legislature, consisting of representatives chosen by the citizens and meeting in one or two chambers.

1 Even in Connecticut and Rhode Island the governor, though chosen by the colony, was in a sense responsible to the Crown.

2 Of course in the British self-governing colonies the governor is still responsible to the Crown, but this responsibility is confined within narrow limits by the responsibility of his ministers to the colonial legislature and by the wide powers of that legislature.

3 Massachusetts worked for several years with a small council as the executive power representing the former Crown governor, but in 1780 she came back to the plan of a single governor, while retaining, as she still retains, a council surrounding him.