THE LIBRARY 
 
 OF 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 RIVERSIDE
 
 STATE GOVERNMENT 
 
 IN THE 
 
 UNITED STATES
 
 THE MACMILLAN COMPANY 
 
 NBW YORK BOSTON CHICAGO DALLAS 
 ATLANTA SAN FRANCISCO 
 
 MACMILLAN & CO., LIMITKD 
 
 LONDON BOMBAY CALCUTTA 
 MELBOURNE 
 
 THE MACMILLAN CO. OF CANADA. LTD. 
 
 TORONTO
 
 STATE GOVERNMENT 
 
 IN THE 
 
 UNITED STATES 
 
 BY 
 
 
 p 
 
 ARTHUR NV HOLCOMBE 
 
 ASSISTANT PROFESSOR OF GOVERNMENT 
 IN HARVARD UNIVERSITY 
 
 gorfc 
 
 THE MACMILLAN COMPANY 
 1920 
 
 All rights reserved
 
 COPYRIGHT, 1916, 
 BY THE M ACM ILL AN COMPANY. 
 
 Set up and electrotyped. Published December, 1916. 
 
 Nodnoatj 
 
 J. 8. Gushing Co. Berwick & Smith Co. 
 Norwood, Mass., U.S.A.
 
 TO 
 
 MY WIFE
 
 " No government can now expect to be permanent unless it 
 guarantees progress as well as order ; nor can it continue really 
 to secure order unless it promotes progress." 
 
 J. S. MILL : The French Revolution and its Assailants.
 
 PREFACE 
 
 STATE GOVERNMENT in the United States is a subject on which 
 many books might be written. This book is designed to furnish 
 a critical analysis of the principles of state government in the 
 United States. Beginning with a statement of the principles 
 upon which the governments of the original states were estab- 
 lished, it explains how the original forms of government have 
 developed in response to changing conditions, how the present 
 state governments are meeting present needs, and concludes 
 with a brief consideration of some of the contemporary plans 
 for further reform. Why should we change our form of gov- 
 ernment? Has the time come for discarding the eighteenth 
 century doctrine of the division of powers ? These are some 
 of the more fundamental questions to which the book attempts 
 to give an answer. But the book is not solely concerned with 
 the political philosophy of American state government. It also 
 treats of the more practical problems arising out of the growth 
 of the functions of the modern state and the increase of its 
 administrative activities. 
 
 For the convenience of those readers who may wish to pursue 
 further the study of contemporary state government, I have 
 prepared a bibliographical appendix, containing a selected list 
 of the most useful titles. References cited in the text or in the 
 footnotes are, for the most part, omitted from this list. It has 
 not seemed necessary to include either in the text or elsewhere 
 much statistical matter relating to the forms of government, 
 such as tables of the numbers and tenure of members of state 
 legislatures, or to the conduct of administration, such as tables 
 of enlistments in the state militia or of salient features in in- 
 dustrial or labor legislation. Such information is readily obtain- 
 able in various well-known publications, notably in the American 
 Year Book, published annually since 1910.
 
 viii PREFACE 
 
 I have many personal debts to acknowledge. To secretaries 
 of state and other officials in all the states I am deeply indebted 
 for prompt and courteous responses to many requests for offi- 
 cial publications. To certain officers of the Associated Harvard 
 Clubs, and to secretaries and members of Harvard Clubs in all 
 parts of the country, I am indebted for painstaking cooperation 
 in procuring information concerning the working of state gov- 
 ernment, especially of election laws, corrupt practices acts, and 
 rules of procedure in legislative bodies, and for the supply of 
 publications by local civic organizations. To President Lowell 
 of Harvard, to my colleagues in the Department of Govern- 
 ment, Professors Hart, Munro, and Mcllwain, to Professor Felix 
 Frankfurter of the Harvard Law School, to Professor Lewis J. 
 Johnson of the Harvard Graduate School of Applied Science, to 
 former Lieutenant-Governor Robert Luce of Massachusetts, and 
 to Mr. Hector M. Holmes of the Massachusetts Bar, each of 
 whom has kindly read a portion of the proofs and made many 
 helpful suggestions, I am under the greatest obligations. I am 
 also greatly indebted to Mr. G. W. Robinson, Secretary of the 
 Harvard Graduate School of Arts and Sciences, for vigilant 
 help in the preparation of my manuscript for the press. It 
 may be needless to add that none of these gentlemen is respon- 
 sible for the imperfections of my book. 
 
 A. N. HOLCOMBE. 
 
 CAMBRIDGE, MASSACHUSETTS, 
 November 3, 1916.
 
 CONTENTS 
 
 PART I 
 INTRODUCTION 
 
 CHAPTER PAGE 
 
 I. THE NATION AND THE STATES 3 
 
 The sovereignty of the nation 3 
 
 The distribution of powers 7 
 
 The powers of the states 12 
 
 The importance of state government 17 
 
 PART II 
 
 THE ORIGIN AND DEVELOPMENT OF THE STATE 
 GOVERNMENTS 
 
 II. THE ORIGINAL PRINCIPLES OF STATE GOVERNMENT ... 21 
 
 The doctrine of natural rights 22 
 
 The idea of liberty 24 
 
 Popular sovereignty 28 
 
 The doctrine of the social compact 30 
 
 The right of revolution 31 
 
 The reign of law 34 
 
 The republican form of government 36 
 
 III. THE ORIGINAL FORMS OF STATE GOVERNMENT .... 40 
 
 The adoption of the original constitutions 40 
 
 Reservation of civil rights to the people 42 
 
 The right to vote 44 
 
 The division of powers 47 
 
 Effective divisions of powers 51 
 
 Ineffective divisions of powers 53 
 
 The censorial system 56 
 
 Appeals to the people 58 
 
 The doctrine of checks and balances 60 
 
 Special privileges for property 65 
 
 General character of original state governments ... 68 
 iz
 
 x CONTENTS 
 
 CHAPTER PAGB 
 
 IV. THE REFORMATION OF STATE GOVERNMENT .... 73 
 
 The beginning of reform 74 
 
 The reform of the censorial system 75 
 
 Manhood suffrage 79 
 
 Reaction against manhood suffrage 81 
 
 Woman suffrage 85 
 
 Reform of the bicameral system 88 
 
 Direct popular election of executives and judges ... 89 
 
 The constitutional convention 92 
 
 Popular control of constitutional revision and amendment . 95 
 
 Development of the party system 99 
 
 Summary 104 
 
 V. THE REDIVISION OF POWERS 106 
 
 Reaction against system of legislative supremacy . . . 106 
 
 The executive veto 110 
 
 The judicial veto 114 
 
 Constitutional limitations on legislative powers .... 119 
 
 Growth of power of constitutional convention .... 123 
 
 Growth of power of electorate 129 
 
 Municipal home rule 130 
 
 The state-wide referendum 132 
 
 Direct legislation by the people 135 
 
 The recall 136 
 
 Growth of power of political parties 137 
 
 Summary 139 
 
 PART III 
 
 THE WORKING OF THE STATE GOVERNMENTS 
 
 VI. THE STATE ELECTORATES 143 
 
 Effect of suffrage qualifications on size of electorates . . 143 
 
 The number of registered voters 146 
 
 Effect of suffrage qualifications on character of government . 150 
 
 Effect of woman suffrage 152 
 
 The theory of the franchise 155 
 
 The organization of the electorate 158 
 
 Defects of the system of electoral districts .... 160 
 
 Majority v. plurality elections . 162 
 
 VII. THE POLITICAL PARTY 165 
 
 Legal definitions of party 165 
 
 Party organization : conventions 167 
 
 Party organization : committees 169 
 
 Organization of Socialist party 172 
 
 Test of party affiliation 173
 
 CONTENTS ri 
 
 CHAPTER PACK 
 
 The bipartisan system 177 
 
 Character of system 179 
 
 Working of convention system 182 
 
 The party machine 184 
 
 Failure of convention system 186 
 
 Working of the direct primary 188 
 
 Effect on party organization 193 
 
 Other effects of the direct primary 195 
 
 Further reform of nominating methods 198 
 
 Further reform of party organization 202 
 
 VIII. THE CONDUCT OF ELECTIONS 205 
 
 The official ballot 205 
 
 Massachusetts v. New York ballot 208 
 
 Actual conduct of elections 213 
 
 Registration 215 
 
 The campaign 218 
 
 Corrupt practices legislation in England 221 
 
 Difficulties in regulating use of money in America . . . 224 
 
 American corrupt practices acts 227 
 
 Working of the corrupt practices acts 233 
 
 Further regulation of the use of money 236 
 
 IX. THE STATE LEGISLATURES 240 
 
 The bicameral system 241 
 
 Methods of legislative apportionment 242 
 
 Working of methods of apportionment 244 
 
 Methods of legislative procedure 248 
 
 The speakership 252 
 
 The system of committees 253 
 
 The Massachusetts committee system 253 
 
 The normal committee system 256 
 
 The New York committee system 259 
 
 Working of methods of procedure 261 
 
 Working of bicameral system 264 
 
 Further reform of legislative methods 267 
 
 Classification of work of legislatures 268 
 
 Further limitation of legislative powers 272 
 
 Regulation of the lobby 274 
 
 Outlook for legislative reform 278 
 
 X. THE STATE EXECUTIVES 280 
 
 The disorganization of administration 281 
 
 Tendency towards administrative reorganization . . . 285 
 
 The militia 287 
 
 Education 289 
 
 Charities and corrections ... .... 292
 
 xii CONTENTS 
 
 CHAPTER PAGE 
 
 Public health administration 296 
 
 Labor law administration 300 
 
 Agriculture 301 
 
 Public works 303 
 
 Supervision of corporations 305 
 
 State expenditures 308 
 
 State revenues and tax administration 310 
 
 The original executive offices 315 
 
 Present disorganization of state administration . . . .317 
 
 Types of departmental organization 319 
 
 Need for further administrative reform 326 
 
 The relation between the executive and the legislature . . 327 
 
 The executive veto 327 
 
 Appropriations and finance 331 
 
 The power of appointment 335 
 
 Civil service reform 338 
 
 The power of impeachment 342 
 
 The recall 343 
 
 XI. THE STATE JUDICIARY 345 
 
 The administration of justice 346 
 
 The development of the law 347 
 
 The organization of the courts 349 
 
 The forms of procedure 352 
 
 Judicial review of the constitutionality of legislation . . . 355 
 
 Effect of the judicial veto 358 
 
 Due process of law 360 
 
 The rule of reason 362 
 
 Criticism of the rule of reason 368 
 
 Judicial review of the validity of legislative procedure . . 372 
 
 Reform of the judicial veto 374 
 
 Development of the idea of liberty 378 
 
 Conclusion 380 
 
 Judicial control of administration 381 
 
 Working of judicial control of administration .... 384 
 
 Distinction between discretionary and ministerial acts . . 388 
 
 Reprieves and pardons 392 
 
 XII. THE CONSTITUTIONAL CONVENTION 394 
 
 Organization and procedure of conventions .... 395 
 
 Working of the convention system 398 
 
 XIII. DIRECT LEGISLATION BY THE ELECTORATES 401 
 
 The test of direct legislation 402 
 
 Working of the compulsory constitutional referendum . . 404 
 
 Reform of constitutional referendum 408
 
 CONTENTS xiii 
 
 PAGB 
 
 Working of optional referendum on legislative enactments . 412 
 
 Emergency legislation 415 
 
 The question of signatures 418 
 
 Official bulletins of information 421 
 
 Optional v. compulsory referendum 424 
 
 Working of direct popular initiative 428 
 
 Theoretical objections to initiative 432 
 
 Improvement of procedure for direct legislation . . . 437 
 
 Limitation of legislative powers of electorates .... 441 
 
 PART IV 
 
 CONCLUSION 
 
 XIV. THE FURTHER REFORM OF STATE GOVERNMENT .... 447 
 
 (/) The commission plan 449 
 
 (it) The Socialist plan 455 
 
 (iit) The Oregon plan 465 
 
 (iv) The outlook for further reform 477 
 
 APPENDIX. A SELECTED LIST OF REFERENCES FOR THE FURTHER 
 
 STUDY OF STATE GOVERNMENT 481 
 
 INDEX . . 487
 
 CHAPTER I 
 THE NATION AND THE STATES 
 
 A STATE is usually denned as a political body or body politic. 1 
 A body politic differs from other bodies of people by the purposes 
 of its organization and the powers with which it is endowed. 
 The purposes of its organization are well put in the preamble to 
 the Constitution of the United States. They are : to form a more 
 perfect union of the people concerned, establish justice, insure 
 domestic tranquillity, provide for the common defense, promote 
 the general welfare, and secure the blessings of liberty to the 
 people of the body politic and their posterity. The powers 
 which may be vested in a body politic extend to a complete con- 
 trol over the lives, liberty, and property of the people thereof. 
 No body of people except a body politic may possess such un- 
 limited authority, although unlimited authority is not neces- 
 sarily possessed by every body politic. When unlimited or abso- 
 lute political authority is possessed by a state, it is a sovereign 
 state or sovereignty. 
 
 THE SOVEREIGNTY OF THE NATION 
 
 The states of the American Union are not states in the sense 
 of being sovereign states or sovereignties. This proposition was 
 long disputed. The most eminent statesmen and political scien- 
 tists were to be found on each side of the discussion. The issue 
 was finally decided only after an appeal to arms. It was thus 
 settled that the people of a particular state do not possess sov- 
 ereign powers. As Abraham Lincoln has said: "Our states 
 have neither more nor less power than that reserved to them in 
 
 1 For a definition of the term, "body politic," as understood at the Revolution, 
 see the Preamble to the Constitution of the Commonwealth of Massachusetts, 
 1780, in Thorpe, Federal and Stale Constitutions, iii, pp. 1888-9. 
 
 3
 
 4 STATE GOVERNMENT IN UNITED STATES 
 
 the Union by the Constitution, none of them ever having been 
 a state out of the Union." l Their place in the Union is a sub- 
 ordinate one, for, as Lincoln pointed out, "The Union is older 
 than any of the states, and in fact it created them as states." 
 Whatever may have been the case when Lincoln wrote these 
 words, there is now no doubt of the soundness of his views. 
 The people of the whole United States are the only people 
 possessing sovereignty in the United States. 
 
 The principle of the sovereignty of the people of the United 
 States has been misunderstood because of the peculiar division 
 of political power between the federal government and the govern- 
 ments of the several states. The federal government possesses 
 those powers which have been granted to it by the people of the 
 United States either expressly in the Federal Constitution or by 
 a reasonable implication therefrom, plus the power to make all 
 laws which are necessary and proper for carrying into execution 
 the foregoing powers. Of the remaining powers of government, 
 the Federal Constitution attempts to make a summary disposi- 
 tion in the following terms: "The powers not delegated to the 
 United States by the Constitution, nor prohibited by it to the 
 states, are reserved to the states, respectively, or to the people." 2 
 
 The ambiguity of this statement long served to cloak with a 
 garment of legality the most contradictory doctrines concerning 
 the respective powers of the federal and state governments. For 
 example, has a state the right to secede from the Union? The 
 Constitution does not expressly say. If the Constitution neither 
 delegates to the federal government the power to compel a 
 state to remain in the Union, nor prohibits to the states the 
 power to withdraw from the Union, the right of secession, that 
 
 1 See A. Lincoln, Special Message to Congress, July 4, 1861. This statement is 
 not literally true, though true in substance, for North Carolina, Rhode Island, 
 Vermont, and Texas have been temporarily states outside of the Union. The first 
 two were out of the Union because they delayed the ratification of the Constitu- 
 tion of 1787 until after the "more perfect union" had been established in 1789. 
 The last two were out of the Union because Congress could not agree sooner to 
 their admission. Each was admitted, however, not by means of a treaty between 
 the government of the Union and that of an independent state, but by means of 
 an ordinary act or resolution of Congress. None of the thirteen original states 
 was ever an independent state before the formation of the Union, and all other 
 states upon admission acquired the same constitutional status. 
 
 z See Constitution of the United States, art. x of the Amendments.
 
 THE NATION AND THE STATES 5 
 
 is to say, the power to terminate the Union, must be reserved 
 either to the states, respectively, or to the people. But to which ? 
 The Constitution does not say. When secession was actually 
 attempted, the persons seeking to withdraw from the Union, 
 upon forming a constitution for their confederacy, revised this 
 distributory clause for the purpose of giving clearer expression 
 to their peculiar view of the relation that should obtain between 
 the states and the Union. Their rendering was as follows : 
 "The powers not delegated to the Confederate States by the 
 Constitution, nor prohibited by it to the States, are reserved to 
 the States, respectively, or to the people thereof." Thus, by 
 the addition of the one word "thereof," they reserved all powers 
 not delegated to the confederacy to the people of the states 
 respectively. 1 Certainly the tenth amendment to the Consti- 
 tution of the United States was not intended thus to transfer 
 to the people of the several states all powers not delegated by 
 the people of the United States to the federal government. On 
 the contrary, the framers of that amendment must have intended 
 to reserve a portion of the powers not delegated either to the 
 federal government or to the governments of the several states 
 for future use, in case of need, by the people of the United States 
 themselves. If that had not been their intention, the closing 
 words of the distributory clause, "or to the people," would have 
 been superfluous. But what was the extent of these reserva- 
 tions? The Constitution does not say. 
 
 In most cases this question may not be of much practical im- 
 portance. In a few, however, it might become of great practical 
 importance. Thus Congress must call a convention to revise 
 the Federal Constitution upon demand of two- thirds of the states. 
 But the Constitution does not say whether Congress, in calling 
 a constitutional convention, shall be bound by the rules govern- 
 ing the organization and procedure of the Convention of 1787, 
 or shall have power to determine for itself how a fresh conven- 
 tion shall be organized and what rules of procedure it shall adopt. 
 If any state should claim a right to be represented therein by a 
 delegation consisting of any number of members it should please, 
 and to have the vote of its delegation counted as a unit equal 
 in importance to that of the delegation of any other state, the 
 
 1 See Confederate Constitution, art. vi, par. 6.
 
 6 STATE GOVERNMENT IN UNITED STATES 
 
 Constitution could not be cited either in express affirmation or 
 in denial of that claim. This question could not be settled by 
 means of a constitutional amendment, if a majority of the 
 smaller states were to insist upon maintaining equality of 
 representation in federal constitutional conventions, and a ma- 
 jority of the larger states were to insist upon representation 
 according to the method employed in the electoral college. 
 It manifestly could not be settled by means of a constitu- 
 tional convention. This question might seem, therefore, to be 
 as great a constitutional puzzle as was the question of secession. 
 The preamble to the Constitution of the United States de- 
 clares one of the purposes of the people to be to establish a more 
 perfect union. This must mean a union more perfect than that 
 formed under the Articles of Confederation and Perpetual Union, 
 framed in 1 7 7 7 and finally adopted in 1 78 1 . The perpetual union 
 of 1781, however, was terminated on April 30, 1789, when George 
 Washington took the oath of office as president of the United 
 States under the Constitution of 1787. This second constitution 
 provided for the establishment of the "more perfect" union on 
 the ruins of the old, if nine of the thirteen states should agree 
 thereto. In fact eleven agreed in season to participate in the 
 inauguration of President Washington. The other two were 
 temporarily left to continue under the Articles of Confederation 
 or shift for themselves. Now if the " perpetual union " of 1781 
 could thus be broken up by nine or eleven states, how much more 
 perfect must the union of 1789 be in order that no majority of 
 states, however large, may have power to exclude a minority, 
 and in order that any majority, however small, may have power 
 to coerce a minority from secession? The Constitution gives 
 no answer. This question could not be settled by the regular 
 methods of constitutional interpretation, nor by public opinion 
 without an appeal to arms. The result of that appeal to arms 
 was to settle, not only the disputed doctrine of secession, but the 
 whole problem of the relation between the federal government and 
 the governments of the states. It was thereby settled that the 
 people of the United States, and not those of the individual 
 states, are the final judges of the extent of their own powers; 
 in short, that the United States is not a confederacy, but a 
 nation.
 
 THE NATION AND THE STATES 7 
 
 THE DISTRIBUTION OF POWERS 
 
 The ambiguous tenth amendment may now be restated as 
 follows : The powers not delegated to the federal government by 
 the people of the United States, nor prohibited by them to the 
 people of the states, are reserved to the people of the states, 
 respectively, or to the sovereign people of the United States. 
 Of the powers so reserved, those exercised by the people of the 
 several states before the formation of the more perfect union 
 of 1789 are presumably still reserved to them, if not necessary 
 and proper for the maintenance of the sovereignty of the people 
 of the United States. All other powers, including those pro- 
 hibited both to the federal government and to the governments 
 of the states, are reserved to the people of the United States. 
 Whenever doubt arises concerning the application of this principle 
 to particular cases, the true rule of interpretation is that stated 
 by Lincoln : "This relative matter of national power and states' 
 rights, as a principle, is no other than the principle of generality 
 and locality. Whatever concerns the whole should be confided 
 to the whole, to the general government, while what concerns 
 only the state should be left exclusively to the state." The duty 
 of interpretation rests primarily with the officers of the federal 
 government, that is, with Congress, the President, or the Supreme 
 Court, according to the nature of the case ; but ultimately the 
 decision must depend for its validity upon the consent of the 
 people of the United States. The power of public opinion, the 
 opinion of the nation, must finally determine the status and func- 
 tions of the organs of local government, including therewith the 
 governments of the states and the people thereof. 
 
 The sovereignty of the people of the United States is, there- 
 fore, unimpaired by the peculiar distribution of powers between 
 the federal and state governments by the Constitution of 1787. 
 The states are a species of local government with limited, though 
 not always accurately denned, powers. The limits between the 
 powers of the states and those of the United States are con- 
 stantly being more accurately denned, as cases of actual doubt 
 arise, by the proper organs of the federal government, generally by 
 the Supreme Court, and may ultimately be determined in cases of 
 persistent doubt by the people of the United States through the
 
 8 STATE GOVERNMENT IN UNITED STATES 
 
 process of amendment to the Federal Constitution. It is this 
 power of interpreting the Federal Constitution, vested in the 
 first instance in the federal government and ultimately in the 
 people of the Union, which is the final proof of national sover- 
 eignty. 1 The states, therefore, must recognize the Federal 
 Constitution, and the laws of the United States which may be 
 made in pursuance thereof, and all treaties made under the 
 authority of the United States, as the supreme law of the land ; 
 and the judges in every state are bound thereby, anything in the 
 constitution or laws of any state to the contrary notwithstand- 
 ing. 2 Indeed not only the judges but also the members of the 
 several state legislatures and all executive officers of the states 
 are required to take oath or make affirmation to support the 
 Constitution of the United States. 3 
 
 The people of the several states are subject to the sovereignty 
 of the people of the nation, but the people of each state are 
 equal to the people of any other state before the law of the 
 Federal Constitution. Congress has power to admit new states 
 to the Union, and there is no limit to the number or character of 
 the new states that may be admitted, provided that their govern- 
 ments are republican in form, except that no new state may be 
 formed within the jurisdiction of any other state, and no state 
 may be formed by the junction of two or more states or parts of 
 states, without the consent of the legislatures of the states con- 
 cerned. 4 Congress may also impose conditions upon the ad- 
 mission of new states, in addition to those imposed upon the 
 existing states by the Federal Constitution, but, unless these 
 conditions are imposed in the form of constitutional amendments 
 and are accepted by the people of the United States, thus apply- 
 ing to all states alike, there is no practical means by which they 
 may be enforced. For example, Congress required New Mexico 
 and Arizona to amend the constitutions under which they sought 
 admission to the Union in 1911, but the latter state, once ad- 
 mitted, promptly reinserted in its constitution the forbidden 
 clause providing for the recall of judges by the people. Like- 
 
 1 Cf., J. C. Calhoun, Disquisition on Government and Discourse on the Constitution 
 and Government of the United States, passim. 
 
 2 Constitution of the United States, vi. 2. 
 
 8 Ibid., vi. 3. 4 Ibid., iv. 3, i.
 
 THE NATION AND THE STATES 9 
 
 wise in 1907 Congress.required Oklahoma, as the conditions of ad- 
 mission, to respect the political equality of negroes and also certain 
 special privileges of Indians inhabiting the former Indian Terri- 
 tory, but in 1910 the people of Oklahoma adopted a constitutional 
 amendment designed to restrict negro suffrage. They could 
 doubtless violate their pledges with regard to the treatment of 
 Indians with equal impunity. In 1895 Congress required Utah, 
 as a condition of admission, to abolish the institution of polyg- 
 amy, but since the admission of Utah, Congress has possessed 
 no more power to prevent the reestablishment of polygamy in 
 that state than to prevent its establishment in any other state 
 of the Union. The people of a state may be subjected to any 
 humiliation in order to gain admission to the Union, but once 
 within the sacred edifice, they become endowed with all the rights 
 and privileges possessed by the people of any of their fellow states. 
 The states of the Union are not equal in influence upon the 
 government of the Union, but within the sphere reserved to the 
 states, respectively, each state is the peer of any of the others. 
 For the exercise of the powers falling within their sphere, the 
 governments of the states are responsible to the people thereof, 
 subject to the limitations hereafter to be enumerated. The 
 people of the United States have their own government, the 
 government of the Union, and in the main are not dependent 
 upon the state governments for the execution of their general 
 will. The spheres of the federal government and of the govern- 
 ments of the states are separate and distinct. For certain special 
 purposes, however, the people of the states and the state govern- 
 ments are required to act as agents of the people of the Union. 
 Thus the members of the Congress of the United States must be 
 chosen by the people of the several states at the times and places 
 and in the manner prescribed by Congress, and in the absence of 
 federal legislation concerning such elections, the state legis- 
 latures must make the necessary regulations for themselves. 
 The states must also appoint, in such manner as their legis- 
 latures may direct, their respective numbers of presidential 
 electors. If, however, states neglect to make such appoint- 
 ments, there seems to be no way by which Congress may compel 
 them to do so. Finally amendments to the Federal Constitution 
 may be initiated by the legislatures of two-thirds of the states,
 
 io STATE GOVERNMENT IN UNITED STATES 
 
 and must be referred to the legislatures or special state conven- 
 tions, whichever Congress may determine, and be ratified by 
 three-fourths of them, in order to become a part of the supreme 
 law of the land. The states are also entrusted with the authority 
 to appoint the officers of the militia and supervise their training 
 according to the discipline prescribed by Congress, but Congress 
 may of course establish a federal army of its own wholly inde- 
 pendent of the state militia. With these exceptions, the govern- 
 ments of the states are the agencies solely of the people of the 
 states, respectively, and the people of the nation are not de- 
 pendent upon them for the exercise of their sovereign powers. 
 
 The governments of the several states, though responsible 
 primarily and mainly to the people thereof respectively, are also 
 placed under obligations towards one another. The people of 
 the nation insist that each state must give full faith and credit 
 to the public acts, records, and judicial proceedings of every other 
 state ; * must extend the same privileges and immunities to citizens 
 of the other states as to its own ; 2 and must deliver up a fugitive 
 from justice, upon demand of the executive authority of the 
 state from which he fled, to be removed to the state having juris- 
 diction of the crime. 3 Finally, controversies between two or 
 more states, not settled by mutual agreement, must be submitted 
 to the arbitrament of the Supreme Court of the United States. 4 
 Thus the federal government is ultimately responsible for en- 
 forcement of the mutual obligations of the states, and the mainte- 
 nance of the supremacy of the rights of the nation is thereby 
 assured. 
 
 The Federal Constitution also imposes on the government of 
 the Union certain obligations towards the people of the states 
 respectively. It provides that the United States shall guarantee 
 to every state the republican form of government ; and shall 
 protect each of them against invasion, and, on application of the 
 legislature, or of the executive when the legislature cannot be 
 convened, against domestic violence. 5 The duty of keeping the 
 peace against both external and internal enemies falls therefore 
 ultimately upon the federal government, and the responsibility 
 of the states is limited to ordinary occasions of internal policing. 
 
 1 Constitution of the United States, iv, i. 2 Ibid., iv, 2. 
 
 3 Ibid., iv, 2. * Ibid., iii, 2. 8 Ibid., iv, 4.
 
 THE NATION AND THE STATES n 
 
 The most significant limitation, however, upon the responsibility 
 of the states is contained in the former portion of the above 
 provision. Thus the people of the United States, when creating 
 their more perfect union in the form of a republic, determined 
 also that the states should be forever restricted to the same form 
 of government. Their liberty to adopt any other form of 
 government was taken away forever. 
 
 No act of the Federal Convention of 1787, except the construc- 
 tion of the more perfect union itself, was felt to be more important 
 than this guarantee to the states of the republican form of govern- 
 ment, and yet nowhere in the Federal Constitution is there any 
 definition of the term republican. No particular government is 
 designated as republican, nor is the exact form to be guaranteed 
 in any manner especially described. Nevertheless by providing 
 that the United States shall guarantee to every state the republi- 
 can form, the people of the Union necessarily entrusted to the 
 federal government the task of determining in cases of doubt 
 what is a republican form of government, and several cases of 
 doubt have in fact arisen. What the Fathers of the republic 
 understood by the term, "a republican form of government," 
 will be discussed in the next chapter. It is sufficient to point 
 out here that the federal government, not the states, has the 
 final authority to determine cases of doubt as they shall arise, 
 and may enforce its determinations by the exclusion from Con- 
 gress of senators and representatives chosen by a state not 
 possessing a republican form of government, or, if necessary, by 
 the use of force. Doubtless the supreme power in the several 
 states resides in the people thereof, but their power is supreme 
 only within the limits prescribed by the people of the nation, 
 and these limits may be altered only with the consent of the 
 whole people obtained in the manner appointed for the amend- 
 ment of the Constitution of the United States. The most con- 
 clusive evidence of the ultimate sovereignty of the people of 
 the nation and of the dependent status of the people of any par- 
 ticular state is afforded by this provision that the United States 
 shall guarantee to every state a republican form of government, 
 whether the people of every state wish such a government or 
 not.
 
 12 STATE GOVERNMENT IN UNITED STATES 
 
 THE POWERS OF THE STATES 
 
 The nature and extent of the sphere reserved to the states may 
 be shown most clearly by describing the distribution of powers 
 between the governments of the states, respectively, and of the 
 Union, as expressed in the Federal Constitution. 
 
 The first limitation upon the powers of the states consists in the 
 delegation of certain powers by the Federal Constitution to the 
 government of the Union. 1 Not all the powers delegated to the 
 federal government, however, operate to limit directly those of 
 the states. For example, the powers to lay and collect taxes, to 
 borrow money on the credit of the United States, and to govern 
 the District of Columbia and the territories, do not directly affect 
 the powers of the states. Indirectly, nevertheless, these powers 
 may be used by the federal government to influence or control 
 the action of the states. Thus the power to govern the District 
 of Columbia may be used to establish a model child labor law or 
 form of municipal government for the states to copy, and the 
 power to levy taxes has been used to put an end to the circula- 
 tion of bank notes issued by state banks and to the manufac- 
 ture of oleomargarine in imitation of butter and of matches 
 containing a dangerous admixture of poisonous phosphorus. 
 Other powers delegated to the federal government, such as the 
 powers to coin money, declare war, grant letters of marque and 
 reprisal, raise and support armies, and provide and maintain a 
 navy, are reenforced by express prohibitions upon the states to 
 exercise similar powers. The power to provide for organizing, 
 arming, and disciplining the militia, and for governing such parts 
 thereof as may be employed in the service of the United States, 
 imposes corresponding limitations upon the power of the states 
 to control the militia. In effect the Constitution reserves to the 
 latter only the appointment of the officers and the supervision 
 of training according to the discipline prescribed by Congress. 
 
 A number of federal powers remain which also operate to 
 limit the powers of the states, but in a manner not altogether clear 
 and precise. Thus the power to establish an uniform rule of 
 naturalization and uniform bankruptcy laws leaves the states 
 free to regulate those subjects in the absence of federal legisla- 
 
 1 Constitution of the United States, i, 8.
 
 THE NATION AND THE STATES 13 
 
 tion ; and the power to fix the standards of weights and measures 
 also leaves the states free to regulate such standards in the ab- 
 sence of regulation by Congress. In some cases, however, it 
 might be understood that the absence of regulation by Congress 
 indicated a purpose, not to leave the matter to the states but 
 to leave the matter unregulated by any political authority. For 
 example, the power of the states to regulate commerce within 
 their respective boundaries is limited by the federal power to regu- 
 late interstate and foreign commerce, but the absence of complete 
 federal regulation of interstate commerce leaves an indefinite field 
 of regulation to the states. The powers delegated to the federal 
 government with respect to post offices and post roads, patents 
 and copyrights, also leave a rather indefinite field for state action. 
 The more accurate delimitation of these "twilight regions" 
 between the more clearly defined regions of state and federal 
 authority, respectively, is the task of federal constitutional law, 
 and is to be sought in a treatise on the law of the Federal Con- 
 stitution rather than in a description of the government of the 
 states. In connection with the subsequent discussion of the 
 state judiciary, however, the general trend of the interpretation 
 of the Federal Constitution with respect to the powers of the 
 states, and its effects upon the government of the states, will be 
 considered. 
 
 The most important power delegated to the government of 
 the Union and serving to limit the powers of the states is the 
 treaty-making power. The exclusive power to make treaties 
 was vested in the government of the Union both under the Articles 
 of Confederation and under the Constitution of 1787. Certain 
 reservations to the states, which operated as restrictions upon the 
 federal treaty-making power, were expressed in the Articles of 
 Confederation, but no reservations were made in the Constitu- 
 tion of 1787 except such as may be implied in the statement that 
 all treaties made "under the authority of the United States" 
 shall be the supreme law of the land. There can be little doubt, 
 for example, that the federal government may, by treaty, 
 define the status of foreign subjects within the states, regulate 
 their personal and property rights, prescribe their privileges and 
 immunities, and provide for their welfare in general, the constitu- 
 tions and laws of the states to the contrary notwithstanding. In
 
 14 STATE GOVERNMENT IN UNITED STATES 
 
 cases involving a conflict between the authority of a state and 
 the supremacy of a treaty of the nation, the power of the federal 
 courts may always be invoked to enforce the latter. As Mr. 
 Root puts it: "The treaty-making power is not distributed; 
 it is all vested in the national government ; no part of it is vested 
 in or reserved to the states. ... It is, of course, conceivable 
 that, under pretense of exercising the treaty-making power, the 
 President and Senate might attempt to make provisions regard- 
 ing matters which are not proper subjects of international agree- 
 ment, and which would be only a colorable not a real exer- 
 cise of the treaty-making power ; but so far as the real exercise 
 of the power goes, there can be no question of state rights, 
 because the Constitution itself, in the most explicit terms, has 
 precluded the existence of any such question." 1 
 
 The delegation to Congress of power to make all laws which 
 may be necessary and proper for carrying into execution the 
 powers vested by the Federal Constitution in the government of 
 the United States, or in any department or officer thereof, also 
 serves to limit the powers of the states. 2 It follows from this 
 general delegation of law-making power that any power necessary 
 and proper for the maintenance of the national sovereignty may 
 be employed by the federal government, for example, to aid in 
 executing a treaty duly made under the authority of the United 
 States, and that in the first instance the President and Congress 
 are the judges of the necessity and propriety thereof. Thus, 
 although the federal government is not expressly authorized 
 to regulate the common school system of any state, it may estab- 
 lish a common school system of its own in any state for the pur- 
 pose of fulfilling a treaty obligation to afford the children of 
 alien parents school facilities equivalent to those enjoyed by the 
 children of citizens. Hence in effect no state may deny equal 
 school facilities to alien children within its borders, if such denial 
 is contrary to the policy of the people of the United States, al- 
 though the power to provide for the education of the people is 
 one of those exercised exclusively by the states before 1789 and 
 is presumably still reserved to them, so far as not inconsistent 
 with the sovereignty of the nation. 
 
 1 Elihu Root, Addresses on International Subjects (1916), p. 14. 
 1 Constitution of the United States, i, 8, 18.
 
 THE NATION AND THE STATES 15 
 
 The second limitation upon the powers of the states consists 
 in certain prohibitions expressly imposed upon the states in the 
 Federal Constitution. No state may enter into any treaty, 
 alliance, or confederation ; grant letters of marque or reprisal ; 
 coin money ; emit bills of credit ; make anything but gold and 
 silver coin a tender in payment of debts ; pass any bill of at- 
 tainder, ex post facto law, or law impairing the obligation of con- 
 tracts, or grant any title of nobility. 1 No state may, without the 
 consent of Congress, lay any impost or duties on imports or ex- 
 ports, except what may be absolutely necessary for executing 
 its inspection laws ; and the net produce of all duties and im- 
 posts, laid by any state on imports or exports, must be for the 
 use of the treasury of the United States ; and all such laws must 
 be subject to the revision and control of Congress. 2 No state 
 may, without the consent of Congress, lay any duty of tonnage, 
 keep troops or ships of war in time of peace, enter into any agree- 
 ment or compact with another state or with a foreign power, or 
 engage in war, unless actually invaded or in such imminent danger 
 as will not admit of delay. 3 No state may establish slavery 
 or involuntary servitude, except as a punishment for crime 
 whereof the party must be duly convicted ; no state may make 
 or enforce any law which shall abridge the privileges or immunities 
 of citizens of the United States ; nor may any state deprive any 
 person of life, liberty, or property, without due process of law, 
 nor deny to any person within its jurisdiction the equal protec- 
 tion of the laws ; nor may any state deny or abridge the right 
 of an American citizen to vote on account of race, color, or any 
 previous condition of servitude. 4 The effects of most of these 
 prohibitions upon the power of the states are apparent, but the 
 effects of a few, especially of those contained in the fourteenth 
 amendment, are not apparent, though profound and far-reaching. 
 These effects will be discussed subsequently in connection with 
 the discussion of the powers of the several organs of state govern- 
 ment. 
 
 The third limitation upon the powers of the states consists 
 in the reservation to the people of the United States of all 
 powers necessary and proper for the maintenance of their sover- 
 
 1 Ibid., i, 10, i. * Ibid., i, 10, 3. 
 
 1 Ibid., i, 10, 2. 4 Ibid., Amendments, arts, xiii-xv.
 
 16 STATE GOVERNMENT IN UNITED STATES 
 
 eignty. Powers reserved to the people of the several states 
 before the formation of the more perfect union of 1789, but 
 necessary and proper for the maintenance of the sover- 
 eignty of the people of the United States, are generally, but 
 not always, specified in the Federal Constitution. Thus the 
 power to define and punish piracies and felonies committed on 
 the high seas, and to make rules concerning captures on land and 
 sea, was vested in the government of the Union by the Articles 
 of Confederation, but there was no general and comprehensive 
 grant of the power to define and punish offenses against the law 
 of nations. This power, necessary for the maintenance of the 
 sovereignty of the nation, was expressly delegated by the Con- 
 stitution of 1787 to the government of the more perfect union. 1 
 The most important instance of the reservation of a power 
 necessary and proper for the maintenance of the national sov- 
 ereignty is that already referred to, namely, the power to deter- 
 mine the organization and procedure of a federal constitutional 
 convention. This power is neither delegated to Congress nor 
 prohibited to the states, but it cannot be vested in the people 
 of the states, respectively, without seriously impairing the 
 sovereignty of the people of the nation. It must be vested in 
 the nation. Though not expressly delegated to the federal 
 government, it may be implied in the specific grant of the power 
 to make all laws necessary and proper for carrying into execution 
 the power to call a constitutional convention, 2 or it may be com- 
 prehended in the general charge placed upon the federal govern- 
 ment as the agency of the nation to accomplish the purposes 
 expressed in the preamble of the Federal Constitution. 
 
 The special limitation imposed upon the exercise of the re- 
 served sovereign powers is that contained in the unwritten con- 
 stitution of the United States, namely, that such powers be 
 derived from the consent of the people of the nation, that is, 
 that they be exercised only with the approval of public opinion 
 throughout the United States. There are many acts of assumed 
 power by officers of the United States which cannot be justified 
 except upon this theory. For example, the powers to emit bills 
 of credit and make anything but gold and silver coin a tender 
 in payment of debts are not expressly delegated to the federal 
 
 1 Constitution of the United States, i, 8, 10. J Ibid., i, 8, 18.
 
 THE NATION AND THE STATES 17 
 
 government, although expressly prohibited to the states. These 
 powers may be implied in the power to borrow money on the 
 credit of the United States, or to coin money and regulate the 
 value thereof, but it seems more candid to justify the emission 
 of bills of credit by the federal government and the forced cir- 
 culation of such paper as a legal tender in payment of private 
 debts upon the theory that Congress may resort to a reserved 
 sovereign power in case of need with the consent of the people 
 of the nation. 1 So too, the suspension by President Lincoln of 
 the privilege of the writ of habeas corpus in the spring of 1861 
 without previous authority from Congress was either a lawless 
 usurpation of arbitrary power or a necessary and proper exercise 
 of a reserved sovereign power, sanctioned by the consent of the 
 people of the United States and hence not in conflict with the 
 unwritten law of the Constitution. It must be recognized, 
 however, that such an exercise of power is dangerous, and not to 
 be resorted to without a clear mandate from the nation, for the 
 written constitution is intended to be the supreme law of the 
 land, subject to the maxim, solus populi suprema lex. 
 
 THE IMPORTANCE OF STATE GOVERNMENT 
 
 The powers which are reserved to the states, though limited, 
 are nevertheless very extensive and highly important. They 
 include among others the following : (i) the power to establish 
 and maintain organized governments, including governments 
 for the subdivisions of the states, counties, towns, villages, and 
 cities, subject to the single condition that they be republican in 
 form; (2) the power to regulate the suffrage, subject to the 
 condition that no citizen may be denied the right to vote on 
 account of race, color, or previous condition of servitude; (3) 
 the power to levy and collect taxes, except upon interstate and 
 foreign commerce, and upon instruments of the federal govern- 
 ment ; (4) the police power, including the whole field of legislation 
 to preserve the peace within the state, to protect the public 
 health and morals, and to promote the common welfare, when 
 threatened by the unrestrained activity of persons within the 
 borders of the respective states, subject to the condition that no 
 
 1 See the Legal Tender cases, 8 Wall, 603; 12 Wall, 457; no U. S. 421. 
 C
 
 i8 STATE GOVERNMENT IN UNITED STATES 
 
 person be deprived of life, liberty, or property without due 
 process of law, nor be denied the equal protection of the laws ; 
 (5) hitherto unfathomed powers to deal with the vast subjects of 
 religion, education, and the supply of public utilities, with the 
 exception of the comparatively few public services, such as the 
 post office, delegated to the federal government ; (6) the power 
 to create corporations and trusts ; and (7) to deal with the whole 
 subject of private law, including the power to regulate the vital 
 institutions of modern civilization, such as the family and the 
 institution of private property. The bare enumeration of these 
 vast powers shows the transcendent importance in the American 
 federal system of the governments of the states.
 
 PART II 
 
 THE ORIGIN AND DEVELOPMENT OF THE STATE 
 GOVERNMENTS
 
 CHAPTER H 
 THE ORIGINAL PRINCIPLES OF STATE GOVERNMENT 
 
 THE principles upon which the original state governments were 
 established cannot be traced to any single source. In part they 
 were founded upon the experience of the American people under 
 the colonial governments provided for the several royal and 
 proprietary provinces and chartered plantations. In part they 
 were derived from the colonists' knowledge of the structure and 
 operation of the British government, as set forth in the writings 
 of Blackstone and Montesquieu. In part also they were deduced 
 from the general principles of political science, as understood by 
 the Whig party in England and expounded in the writings of 
 Milton, Harrington, and Sidney, and above all John Locke. In 
 the Puritan and Quaker colonies, the people's ideas of civil 
 government were much influenced by the success of democracy 
 in the government of the church. 1 Rousseau and other contem- 
 porary European writers of the social-compact school of political 
 philosophy became known to the Americans during the progress 
 of their struggle for independence, too late, however, to exert 
 much influence upon the substance of their political principles. 
 As the need for political reconstruction grew urgent, the Revolu- 
 tionary leaders acquainted themselves with the whole literature 
 of political science. Plato and Aristotle, Polybius and Cicero, 
 were studied with the same care as the modern writers. The 
 constitutional history of the ancient commonwealths of Greece 
 and Rome became as familiar as that of the more modern Swiss 
 confederacy and Dutch republic. As Burke in his speech on 
 Conciliation with America candidly avowed, there probably was 
 never a time or place at which interest in the science of govern- 
 
 1 See John Wise, Vindication of the Government of New England Churches, 1715, 
 (zd edit., 1772), Demonstration II. Cf., Oscar S. Straus, Origin of the Republican 
 Form of Government in the United States. 
 
 21
 
 22 STATE GOVERNMENT IN UNITED STATES 
 
 ment was deeper or more widespread than among the American 
 people during the Revolution. 
 
 THE DOCTRINE OF NATURAL RIGHTS 
 
 The first of the original principles of state government was ex- 
 pressed in the doctrine of natural rights. This doctrine has been 
 stated in imperishable language in the opening sentences of 
 the Declaration of Independence, and forms the most cherished 
 element of the political creed of the American people. " We 
 hold these truths to be self-evident, that all men are created 
 equal; that they are endowed by their Creator with certain 
 unalienable rights; that among these are life, liberty and the 
 pursuit of happiness." The foundation of this belief in the 
 natural equality of mankind was explained by Thomas Paine as 
 follows : 1 "Every child born into the world must be considered 
 as deriving its existence from God. The world is as new to him 
 as it was to the first man that existed, and his natural right in it is 
 of the same kind. The Mosaic account of the creation 2 . . . 
 shows that the equality of man, so far from being a modern 
 doctrine, is the oldest upon record." Such was the contemporary 
 explanation of the American principle of equal rights. 
 
 The language of this declaration of faith in the rights of man has 
 given rise to much fruitless discussion. It is so obvious that all 
 men are not born equal, and that their natural inequality is en- 
 hanced by the operation of many of the laws of society, that there 
 has been some difficulty in understanding just what the Revolu- 
 tionary Fathers meant by their doctrine of natural rights. Nor 
 were the Revolutionary leaders themselves blind to this fact. 
 Thus John Adams wrote: "But what are we to understand by 
 equality ? Are the citizens all to be of the same age, sex, size, 
 strength, stature, activity, courage, hardiness, industry, patience, 
 ingenuity, wealth, knowledge, fame, wit, temperance, constancy, 
 and wisdom ? Was there, or will there ever be, a nation whose 
 individuals were all equal in natural and acquired qualities, in 
 
 1 The Rights of Man (edit, of 1792), pt. i, p. 37. 
 
 1 " And God said, ' Let us make man in our own image,' ... in the image of God 
 created he him; male and female created he them." The distinction of sexes is 
 pointed out, Paine observes, but no other distinction is even implied.
 
 ORIGINAL PRINCIPLES OF STATE GOVERNMENT 23 
 
 virtues, talents, and riches? The answer of all mankind must 
 be in the negative." 1 Certainly in a land which legalized negro 
 slavery all men could not be said actually to be born equal. 
 Later, when the struggle over slavery was at its height, Senator 
 Douglas declared: "No man can vindicate the character, mo- 
 tives, and conduct of the signers of the Declaration of Independ- 
 ence, except upon the hypothesis that they referred to the white 
 race alone, and not to the African, when they declared all men 
 have been created equal; that they were speaking of British 
 subjects on this continent being equal to British subjects born 
 and residing in Great Britain." 2 Another United States senator 
 of the same period tersely condemned the "self-evident truths" 
 of the Declaration as " self-evident lies." 
 
 In fact it is only in a qualified sense of the terms that all men 
 can be said to be created equal, but the qualifications are not 
 those set forth by Douglas. The true interpretation of the doc- 
 trine of natural rights is that so patiently and convincingly ex- 
 pounded by Abraham Lincoln. "I think the authors of that 
 notable instrument [the Declaration of Independence] intended 
 to include all men, but that they did not intend to declare all men 
 equal in all respects. They did not mean to say that all were 
 equal in color, size, intellect, moral development, or social capacity. 
 They denned with tolerable distinctness in what respects they 
 did consider all men created equal equal in certain inalienable 
 rights, among which are life, liberty, and the pursuit of happiness. 
 This they said and this they meant. They did not mean to assert 
 the obvious untruth, that all men were then actually enjoying 
 that equality, nor yet that they were about to confer it upon them. 
 In fact, they had no power to confer such a boon. They meant 
 simply to declare the right, so that the enforcement of it might 
 follow as fast as circumstances should permit. They meant to 
 set up a standard maxim for free society which should be familiar 
 to all and revered by all constantly looked to, constantly 
 labored for, and even, though never perfectly attained, constantly 
 
 1 For a further discussion of the inequality of man see John Adams, Defence of 
 the Constitutions of the United States, pp. 108-120. For a contemporary, and very 
 judicious, discussion of the vexed question of racial inequality, see Thomas Jeffer- 
 son, Notes on Virginia (ch. 14), pp. 143-151. 
 
 * Stephen A. Douglas, Speech at Springfield, June 12, 1857.
 
 24 STATE GOVERNMENT IN UNITED STATES 
 
 approximated ; and thereby constantly spreading and deepening 
 its influence and augmenting the happiness and value of life to 
 all people, of all colors, everywhere." 1 
 
 The doctrine of natural rights itself was never more than a 
 mode of expressing a profound belief of the American people. 2 
 As a mode of expression it never gained universal acceptance, 
 and has since been generally discarded by political philosophers 
 in favor of more scientific modes of expression. The underlying 
 belief did not, however, derive its validity from the form of 
 expression, but from the very nature of the people who began and 
 carried through to final success the struggle for liberty and union. 
 The men and women of the American Revolution held a deep 
 conviction of the worthiness of the lives and purposes of common 
 men and women. These "common people" believed in them- 
 selves ; and so believing, believed also that the world owed them 
 an opportunity to live, and not only to live, but to make the most 
 and best of their lives, each after his own fashion, so far as was 
 consistent with like opportunities for the others. The doctrine 
 of the natural rights of man really meant to the people of the 
 Revolution the belief in the natural nobility of mankind, 3 a 
 belief aptly summed up in Jefferson's familiar phrase: "equal 
 opportunities to all, special privileges to none." 
 
 THE IDEA OF LIBERTY 
 
 The Massachusetts declaration of rights declares not simply 
 that all men are created equal, but that they are created "free 
 and equal." 4 Without doubt the idea of freedom was as essen- 
 tial as that of equality to the Revolutionary belief in the natural 
 nobility of man. Also the idea of freedom has proved as difficult 
 of definition as that of equality. "There is no word that admits 
 of more various significations, and has made more different im- 
 pressions on the human mind, than that of Liberty," said Montes- 
 quieu. 5 Many of the Fathers were brought up under the in- 
 
 1 Lincoln, Speech at Springfield, June 26, 1857. 
 
 3 See Nathaniel Chipman, Sketches of the Principles of Government (Rutland, 
 Vermont, 1793), sketch iv, sect, i, and sketch v, sect. i. 
 
 1 Cf . Francis Lieber, Miscellaneous Writings, ii, p. 84. 4 Art. i. 
 
 6 L'Esprit des Lois, bk. xi, ch. iv. See also Francis Lieber, Civil Liberty and Self- 
 Government, ch. ii.
 
 ORIGINAL PRINCIPLES OF STATE GOVERNMENT 25 
 
 fluence of the Puritan ways of thinking. They would have held 
 with Milton that "real and substantial liberty is rather to be 
 sought from within than from without; its existence depends, 
 not so much on the terror of the sword, as in sobriety of conduct 
 and integrity of life." l The political philosophy of the times, 
 however, called for a definition of liberty in accordance with the 
 doctrine of natural rights. Natural liberty was the liberty enjoyed 
 by men living in a state of nature. " Men living together accord- 
 ing to reason without a common superior on earth with authority 
 to judge between them is properly the state of Nature," declared 
 Locke. 2 To found, however, such a state of anarchy, "imbecile 
 anarchy," John Quincy Adams called it, 3 was not the object of 
 the Revolutionary Fathers, but rather a state of civilized govern- 
 ment in which civil liberty should be substituted for natural 
 liberty. 4 
 
 The speculative consideration of what constituted civil liberty 
 in the abstract seems to have had little interest for the men of the 
 Revolution. Both in the American Revolution and in the English 
 Revolution of the preceding century men were concerned chiefly 
 in establishing certain specific rights in particular, rather than 
 civil rights in general. The great constitutional documents of 
 the English race, Magna Charta, the Petition of Right, the Bill of 
 Rights, the Act of Settlement, the Declaration of Independence, 
 all deal with the redress of notorious grievances rather than the 
 definition of political abstractions. Many of the elements of 
 freedom are specified in the various Revolutionary declarations 
 of rights, but for a complete description of the idea of freedom 
 entertained by the Fathers we must look to their deeds as well 
 as to their words. 
 
 The Revolutionary idea of civil liberty certainly extended as 
 far as to comprise complete liberty of the person. Outside of the 
 two southernmost states, the leaders of the people in the Revolu- 
 tion all professed their dislike of slavery. None did so more 
 
 1 See Milton's Second Defence of the People of England. This whole Defence 
 is a powerful plea that men who would govern one another must first be fit to govern 
 themselves. 
 
 1 John Locke, Second Treatise of Government , ch. iii. 
 
 1 See his Letters of Publicola, attacking Paine's Rights of Man (1792). 
 
 4 See Thomas Paine, Rights of Man, pt. i, pp. 38-40. See also John Locke, Sec- 
 ond Treatise of Government, ch. ix.
 
 26 STATE GOVERNMENT IN UNITED STATES 
 
 decidedly than the leaders in Virginia, where slavery was never- 
 theless permitted to endure. 1 In the northern states, where the 
 practical difficulties in the way of a thorough application of the 
 idea of personal freedom were less serious, negro slavery was 
 abolished under the influence of the Revolutionary spirit. In 
 Pennsylvania the article of the declaration of rights establishing 
 the principle of natural equality was held to require the speedy 
 enactment of laws to free the slaves. In Vermont the same article 
 was followed by another in the declaration of rights itself proclaim- 
 ing expressly the personal freedom of the negroes. In Massa- 
 chusetts a similar article was interpreted by the supreme court 
 to have emancipated the slaves of its own force without further 
 legislation. Throughout the North the effect of the Declaration of 
 Independence was to free the slaves at once or to inaugurate a 
 movement which resulted in their eventual peaceful emancipa- 
 tion by state action. Under the influence of the same ideal of 
 personal liberty, the Congress of the Confederation provided for 
 the exclusion of slavery from the Northwest Territories. The 
 fact that the slaves were not immediately emancipated through- 
 out the entire extent of the Union does not indicate that the 
 Fathers were insincere hi their professions of belief in civil liberty, 
 but rather that they were the victims of adverse circumstances. 
 
 How much farther than mere personal freedom from physical 
 restraint the Revolutionary idea of liberty extended is difficult to 
 ascertain. Other elements of freedom, such as freedom of speech 
 and of the press, are enumerated in all the revolutionary decla- 
 rations of rights. It is certain, however, that the idea of free- 
 dom entertained by the Fathers did not extend so far as to include 
 what we now call freedom of contract. 2 
 
 The Revolutionary idea of liberty logically required the 
 acknowledgment of the principle of liberty of conscience, that is, 
 the liberty of the individual publicly to profess his religious faith 
 and to worship according to the dictates of his own conscience. 
 
 1 See, for a statement of some of the obstacles to emancipation, Jefferson, Notes on 
 Virginia, p. 151. 
 
 2 Lieber, for example, in his work on Civil Liberty and Self-Government (ist ed., 
 1853), makes no mention of freedom of contract. A proposition to amend the 
 declaration of rights, by adding an express declaration of the right to freedom of con- 
 tract, was made in the Massachusetts constitutional convention of 1853, but was not 
 adopted.
 
 ORIGINAL PRINCIPLES OF STATE GOVERNMENT 27 
 
 It cannot be said that religious liberty was a doctrine to which 
 the American people were naturally inclined. In several of the 
 colonies it had been vigorously denied, and only Rhode Island 
 and Pennsylvania expressly tolerated all Christian sects. The 
 Puritan idea of liberty, as has been stated, laid less stress on legal 
 rights than on moral attitudes, but the formation of the Union 
 and the growth of a national spirit rendered sectarian intolerance 
 archaic, thus enabling Puritanism at last to rid itself of its worst 
 defect. To the Revolutionary leaders freedom of thought was as 
 vital as freedom of conduct, and to their lasting renown they 
 established liberty of the conscience on the same basis as liberty 
 of the person among the "natural, essential, and unalienable" 
 rights of man. 1 
 
 The Revolutionary idea of religious toleration did not require 
 that the public offices should be thrown open indiscriminately 
 to all persons without regard to religious faith. In Massachusetts 
 all state officers chosen by popular election were expressly re- 
 quired to declare their belief in the Christian religion, and in 
 New Hampshire they had to be Protestants. Virginia set a better 
 example by the abolition of religious tests for office-holding when 
 the first state constitution was adopted in 1776, but a majority of 
 the states which adopted constitutions during the Revolutionary 
 period required some sort of a religious qualification from the 
 holders of the principal public offices. The opposition to re- 
 ligious tests was, however, strong and growing, and in 1787 the 
 Federal Convention provided that no religious test should ever be 
 required as a qualification for any office or public trust under the 
 United States. Public opinion by that time had clearly turned 
 against it, and most of the states got rid of their religious tests 
 for office-holding at the first revision of their constitutions. 
 
 The doctrine of the complete separation of Church and State 
 was more difficult to establish. Several of the colonies had been 
 founded for the express purpose of providing a haven for particular 
 sects, and in most of them the care of religion was generally felt 
 to be a sacred duty of government. At the beginning of the 
 Revolution the Church of England was established by law and 
 the clergy of that church were maintained out of the public 
 treasury in Virginia, Maryland, and the Carolinas. The same 
 
 1 See Massachusetts Declaration of Rights, art. ii.
 
 28 STATE GOVERNMENT IN UNITED STATES 
 
 church was specially favored by the colonial governments of New 
 York and New Jersey. In New England, outside of Rhode 
 Island, the Independent or Congregational Churches were 
 strongly favored, and the Massachusetts declaration of rights 
 emphatically proclaimed the necessity of making suitable pro- 
 vision at public expense "for the institution of the public worship 
 of God." * With the lapse of time, however, the established and 
 favored churches had become less suited to the needs of the 
 people, and with the growth of the Revolutionary spirit the idea 
 of a privileged church came into conflict with the principle of free- 
 dom of conscience. One of Jefferson's most cherished enterprises 
 was the disestablishment of the Church of England in Virginia. 
 This was accomplished immediately after the close of the Revolu- 
 tion. 2 The assessment of the citizens for the support of religion 
 by public authority was finally abandoned in Massachusetts a 
 half century later. 3 With the fall of the privileged churches 
 came the rise of the doctrine of the complete separation of Church 
 and State, a doctrine which followed logically, even if slowly, 
 from the Revolutionary belief in the natural nobility of man. 
 
 POPULAR SOVEREIGNTY 
 
 The most important consequence of the Fathers' belief in the 
 natural nobility of man was the establishment of the principle 
 of the sovereignty of the people. This principle was expressed 
 in the Massachusetts declaration of rights as follows : " The 
 people of this commonwealth have the sole and exclusive right 
 of governing themselves, as a free, sovereign, and independent 
 state; and do, and forever hereafter shall, exercise and enjoy 
 every power, jurisdiction, and right, which is not, or may not 
 hereafter be, by them expressly delegated to the United States 
 of America, in Congress assembled. " 4 It is not necessary to 
 inquire again into the question of the nature of the American 
 Union. The relation between the several states and the United 
 States has already been sufficiently discussed. The people of 
 
 1 Art. iiS. 
 
 2 See Jefferson's Notes on Virginia, Appendix iii. 
 
 J See Constitution of 1780, article xi of the Amendments, adopted in 1833. 
 4 Art. iv.
 
 ORIGINAL PRINCIPLES OF STATE GOVERNMENT 29 
 
 the several states were made free and independent of all foreign 
 states by the Declaration of Independence and the force of arms ; 
 but they were never free and independent of one another. Their 
 union in subjection to Great Britain was succeeded without any 
 break by their union in association with one another. The 
 several states are sovereign states within the Union only in the 
 sense that they are mutually equal before the law of the Federal 
 Constitution, and that they are independent of one another 
 within the sphere reserved to the states. Strictly speaking, the 
 people of a single state are in no sense sovereign, for there is 
 no power reserved to them of which they may not be stripped 
 without their consent, provided that the people of three-fourths 
 of the states of the Union so will it. The time-honored phrase, 
 a sovereign state, is a flattering fiction to which the people of 
 the states are still pleased to adhere ; but in truth it means no 
 more than a paraphrase of the guarantee contained in the Fed- 
 eral Constitution that each state shall enjoy a republican form of 
 government. 
 
 The essence of the principle of the sovereignty of the people, 
 as applied to the government of the states, does not lie in the ex- 
 tent of the powers conferred upon the state governments under 
 the federal system, but hi the fact that those powers in the last 
 analysis reside in the people themselves. The Declaration of 
 Independence was published "in the name and by the authority 
 of the good people of these colonies." The Revolutionary state 
 constitutions and declarations of rights were all likewise pub- 
 lished in the name of the "good people" of the several states. 
 The Massachusetts declaration of rights is very explicit on this 
 point. "All power residing originally in the people, and being 
 derived from them, the several magistrates and officers of govern- 
 ment, vested with authority, whether legislative, executive, or 
 judicial, are their substitutes and agents, and are at all times ac- 
 countable to them." l The term, sovereignty of the people, 
 therefore, as applied to the government of the states, does not 
 mean state sovereignty. It means popular sovereignty. It does 
 not even mean popular sovereignty in the technical language 
 of the political scientist. It has a more general meaning, which 
 Lincoln has so well expressed in the phrase, "government of the 
 
 1 Art. v.
 
 30 STATE GOVERNMENT IN UNITED STATES 
 
 people, by the people, and for the people." The chief significance 
 of the doctrine of natural rights, as understood by the Fathers, is 
 that it helped to establish the principle that the governments 
 of the American states should be governments of, by, and for the 
 people. 
 
 THE DOCTRINE OF THE SOCIAL COMPACT 
 
 The second of the original principles of state government was 
 expressed in the doctrine of the social compact. This doctrine, 
 like that of natural rights, has been stated in imperishable lan- 
 guage in the Declaration of Independence, and also forms one of 
 the most cherished elements of the political creed of the American 
 people. To secure the rights with which men are endowed by 
 their Creator, "governments are instituted among men, deriving 
 their just powers from the consent of the governed." This 
 doctrine has been set forth with greater elaboration and precision 
 in the preamble to the Massachusetts declaration of rights. "The 
 body politic is formed by a voluntary association of individuals : 
 it is a social compact, by which the whole people covenants with 
 each citizen, and each citizen with the whole people, that all shall 
 be governed by certain laws for the common good." l The reason 
 for this was acceptably furnished by Locke. " God, having made 
 man such a creature, that, in His own judgment, it was not good 
 for him to be alone, put him under strong obligations of necessity, 
 convenience, and inclination, to drive him into society, as well as 
 fitted him with understanding and language to continue and enjoy 
 it ;" but, "men being, as has been said, by nature all free, equal, 
 and independent, no one can be put out of this estate and sub- 
 jected to the political power of another without his own consent, 
 which is done by agreeing with other men to join and unite into 
 a community for their comfortable, safe, and peaceable living 
 one amongst another." 
 
 1 For the then currently accepted explanation of the doctrine of the social com- 
 pact, see John Locke, Second Treatise of Government, chs. vii, viii. See also, Thomas 
 Paine, Rights of Man (Am. edit, of 1792), pp. 38-40. For a contemporary criti- 
 cism of the theory of the origin of government in a social compact, see Chipman's 
 discussion of Paine's treatment of this subject, in his Sketches of the Principles of 
 Government (1793), pp. 108-110. See also David Hume, Essays, no. 34, "Of the 
 Original Contract," Edmund Burke's Reflections on the Revolution in France, and 
 Reeves's History of English Law, cited by Dicey, Introduction to the Study of the Law 
 of the Constitution, yth ed., pp. 420-421.
 
 ORIGINAL PRINCIPLES OF STATE GOVERNMENT 31 
 
 The doctrine of the social compact therefore really meant to the 
 Fathers of the Revolution the belief that established governments 
 of some sort were necessary for the protection of the rights of the 
 people and were proper institutions for the control of the people 
 if founded upon their consent. But who were these "people"? 
 
 The first authoritative answer to this question was that of the 
 United States Supreme Court in the famous case of Dred Scott. 
 The people, said the court in substance, are the citizens of the 
 states ; the two expressions have the same meaning. Unfor- 
 tunately the Dred Scott decision left a persistent doubt as to who 
 were citizens. This doubt was finally cleared up by the four- 
 teenth amendment to the Federal Constitution. "All persons 
 born or naturalized in the United States and subject to the juris- 
 diction thereof, are citizens of the United States and of the state 
 wherein they reside." They are also the people, in the consti- 
 tutional sense of the term, of the United States and of the state 
 wherein they reside. The people of a state are the men, women, 
 and children who make up the body of American citizens in that 
 state. Certainly these men, women, and children, as a body, play 
 no active part in the working of the political institutions of the 
 state. Is their authority limited to a passive acquiescence in the 
 acts of those who assume to speak in their name ? If so, popular 
 sovereignty is but a sham, a convenient fiction with which the 
 powers that be may cloak with a garb of legality the most arbi- 
 trary and tyrannical designs. 
 
 THE RIGHT OF REVOLUTION 
 
 Popular sovereignty, as understood by the Fathers, was no 
 sham, but a stern reality. The Declaration of Independence 
 asserts that "whenever any form of government becomes destruc- 
 tive of these ends" (that is, the ends to which "governments are 
 instituted among men"), " it is the right of the people to alter 
 or abolish it, and to institute a new government, laying its foun- 
 dation on such principles, and organizing its powers in such form 
 as shall seem most likely to effect their safety and happiness." 
 This is the "sacred right of revolution" to which the members 
 of the Continental Congress appealed "in the name and by the 
 authority of the good people" of the United Colonies. It is
 
 32 
 
 asserted in a more philosophical manner in the Massachusetts 
 declaration of rights of 1780. "Government is instituted for 
 the common good; for the protection, safety, prosperity, and 
 happiness of the people ; and not for the profit, honor, or private 
 interest of any one man, family, or class of men : Therefore the 
 people alone have an incontestable, unamenable, and indefeasible 
 right to institute government; and to reform, alter, or totally 
 change the same, when their protection, safety, prosperity, and 
 happiness require it." * Furthermore, lest this right of revolu- 
 tion be rendered worthless by powerful and lawless usurpers, 
 the Massachusetts declaration of rights also declared that "the 
 people have a right to keep and to bear arms for the common 
 defence." z The right of the people to keep and bear arms was 
 guaranteed in the same manner and for the same purpose in the 
 constitutions of the original states generally as well as in that 
 of the United States. 3 
 
 There was nothing revolutionary in the doctrine of the right 
 of revolution. "Common sense teaches us," wrote Hume, who 
 will hardly be classed among revolutionary writers, "that, as 
 government binds us to obedience only on account of its tendency 
 to public utility, that duty must always in extraordinary cases, 
 when public ruin would evidently attend obedience, yield to the 
 primary and original obligation, [i.e. the obligation to pursue 
 the interests of society]. . . . Resistance, therefore, being 
 admitted to extraordinary emergencies, the question can only 
 be among good reasoners, with regard to the degree of necessity 
 which can justify resistance and render it lawful or commend- 
 able." 4 The majority of the American people at the time of 
 the Revolution certainly believed that the instances of oppression 
 cited in the Declaration of Independence justified resistance. 
 How much less would have been regarded as due cause for violent 
 revolt we have no means of determining. Certainly not much less, 
 or the Revolution would have begun sooner. Opinion among the 
 Revolutionary leaders varied greatly. Jefferson has recorded the 
 
 1 Art. vii. 2 Art. xvii. 
 
 3 Cf. Constitution of the United States, art. ii of the Amendments. But this 
 right does not extend to aliens, nor does it operate to prevent a state legislature 
 from enacting reasonable regulations concerning the manner in which arms shall be 
 kept or borne, as regulations prohibiting the carrying of concealed weapons. 
 
 4 David Hume, Essays, no. 35, "Of Passive Obedience."
 
 ORIGINAL PRINCIPLES OF STATE GOVERNMENT 33 
 
 sen timent that "a little rebellion now and then is a good thing. . . . 
 It is a medicine necessary for the sound health of government." l 
 Adams, we know by his own confession, was possessed of more 
 misgiving with reference to the value of a resort to violence. 2 
 That there can be no wrong without a remedy is the very essence 
 of the spirit of American government. If the remedy cannot be 
 found within the law, it must be sought without the law. The 
 final test of right and wrong exists in the individual conscience, 
 and the individual must assume the responsibility for deciding 
 when his duty requires him to raise his hand against the law. 
 
 By the Federal Constitution of 1787, the right of revolution 
 was definitely taken away from the people of the separate states 
 and reserved exclusively to the people of the United States as a 
 whole. Under the more perfect union the whole power of the 
 United States stands ready to protect the established govern- 
 ment of any state against domestic violence. 3 There can be no 
 state revolution, therefore, which is not at the same time a 
 national revolution. The constitutions of most of the states 
 still declare that the people have at all times the right to "re- 
 form, alter, or totally change" their state governments, but 
 in several of these it is expressly stipulated that this right may be 
 exercised only "by lawful and constitutional methods." This 
 is clearly meant to exclude a resort to arms. In three states, 
 however, New Hampshire, Maryland, and Tennessee, the doc- 
 trine of non-resistance is still declared to be wrong, 4 which seems 
 like an attempt to preserve the original right of state revolution. 
 This attempt is certainly beyond the power of the people of a 
 single state, since the right of revolution was denied to the people 
 of a single state by the people of the United States at the time of 
 the adoption of the Federal Constitution. The right of revolu- 
 tion still exists, but may now be exercised, consistently with the 
 principles of American government, only by the sovereign people 
 of the United States. 5 
 
 1 See his letter to James Madison (1787). Works (Ford's ed.), iv, p. 362. 
 
 * See his Inaugural Address to Congress, March 4, 1797. 
 
 1 Cf. art. iv, sect. 4. 
 
 4 " The doctrine of non-resistance against arbitrary power and oppression is 
 absurd, slavish, and destructive of the good and happiness of mankind," is the 
 language of the New Hampshire bill of rights. 
 
 'See Luther v. Borden, 7 How. i. 
 D
 
 34 STATE GOVERNMENT IN UNITED STATES 
 
 The power that remains to the people of the several states 
 is the power of public opinion. The nature of this power need 
 not be discussed here, but it should be pointed out that the 
 principle of the sovereignty of the people, as understood at the 
 time of the Revolution, was broad enough to include all those 
 rights which were felt to be necessary and proper for a free and 
 effective expression of the opinion of the people. Thus the 
 Massachusetts declaration of rights provides for the liberty 
 of the press, freedom of speech and of public meeting, and the 
 right of petition for the redress of grievances, and for freedom of 
 debate in the legislature. 1 Similar provisions to protect and 
 cherish the power of public opinion were inserted in the constitu- 
 tions of all the states and of the United States. 2 The Massa- 
 chusetts declaration of rights also contains an express exhorta- 
 tion of the people to make good use of their power. 3 Opinions 
 differed as to the practical effect of such provisions in the state 
 declarations of rights. It was clearly the intention of the 
 founders of the original state governments, however, that the 
 will of the people should prevail. 
 
 THE REIGN OF LAW 
 
 Since the people can ordinarily exercise no direct power except 
 that of public opinion, the only sure way in which the will of the 
 people can be made to prevail is through the reign of law, depend- 
 ing for its force upon the consent of the governed. This was 
 what the framers of the Massachusetts constitution meant when 
 they declared the object of the social compact to be a covenant of 
 the people with one another, "that all shall be governed by 
 certain laws for the common good." 4 Hence their declaration 
 of rights asserts that "each individual of the society has a right 
 to be protected by it in the enjoyment of his life, liberty, and 
 property, according to standing laws." 5 The same principle 
 was established in all the states. For every wrong there is in- 
 tended to be a remedy at law. Not even the public officer may 
 
 1 Arts, xvi, xix, and xxi. 
 
 1 Constitution of the United States, i, 6, and art. i of the Amendments. 
 
 Art. xviii. 
 
 4 See Preamble to the Constitution of Massachusetts. 
 
 * Art. x. See also arts, xi and xxx.
 
 ORIGINAL PRINCIPLES OF STATE GOVERNMENT 35 
 
 set himself above the law, substituting his will for that of the 
 people. He must submit like the rest of the people to the rule 
 of the people's law, "to the end it may be a government of laws 
 and not of men." The chief significance of the doctrine of the 
 social compact, as understood by the Fathers, is that it helped 
 to establish the principle that the government of the American 
 states should be a government of laws, deriving their force from 
 the consent of the governed. 
 
 The principle of the reign of law has never been directly at- 
 tacked in America except by those who are opposed to the main- 
 tenance of established governments of any sort, but it has often 
 been indirectly attacked by means of strained interpretations of 
 the meaning of the term, law. By some it has been said that a 
 law is a rule of conduct that will be enforced in the courts. 1 
 Such an interpretation converts the reign of law into an arbitrary 
 personal government by judges. Others have said that law is 
 the executive's notion of the will of the people. 2 This inter- 
 pretation converts the reign of law into an arbitrary personal 
 government by governors, mayors, and other persons temporarily 
 entrusted by the people with executive authority. The state 
 governments were not originally intended to be either judicial 
 oligarchies or executive tyrannies. Law, as the founders of the 
 state governments used the term, meant the will of the people 
 as understood and formulated in the shape of constitutions and 
 statutes, ordinances and by-laws, and other proper acts of au- 
 thority by the people themselves or those to whom the power of 
 law-making should be duly delegated. 3 Difficulties may, and in 
 fact do, arise in connection with the interpretation and enforce- 
 ment of law, when made, but the law of the land is to be sought 
 in the intent of the people or their representatives, as indicated 
 by their formal enactment of rules for the good conduct of society. 
 
 The purpose to establish as firmly as possible the reign of law 
 is revealed particularly in the declaration that "no subject shall 
 be arrested, imprisoned, despoiled, or deprived of his property, 
 immunities, or privileges, put out of the protection of the law, 
 exiled, or deprived of his life, liberty or estate, but by the judg- 
 
 1 James C. Carter, Law, its Origin, Nature, and Growth. 
 1 Brand Whitlock, On the Enforcement of Law in Cities. 
 1 Francis Lieber, Principles of Political and Legal Hermeneutics.
 
 36 STATE GOVERNMENT IN UNITED STATES 
 
 ment of his peers, or the law of the land." 1 This purpose is 
 further revealed in the declarations against taxation without 
 representation 2 and in the articles denning the relations between 
 the civil and military authorities. 3 Finally it is expressly de- 
 clared that "the power of suspending the laws, or the execution 
 of the laws, ought never to be exercised but by the legislature, or 
 by authority derived from it, to be exercised in such particular 
 cases only as the legislature shall expressly provide for." 4 This 
 last declaration covers not only the suspension of the habeas cor- 
 pus act, 5 but also of all acts whatsoever. Thus the sovereignty 
 of the people was to be established through the reign of law. 
 
 The principle of the reign of law, unlike that of the sovereignty 
 of the people, is one of the ancient principles of the English race, 
 and was inherited by the American people along with their lan- 
 guage. 6 It received, however, a new and broader meaning in 
 America through its connection with the principle of the sover- 
 eignty of the people. Ours is a government of, by, and for the 
 people, but the people govern by maintaining the supremacy 
 of laws, sanctioned by public opinion. 
 
 THE REPUBLICAN FORM OF GOVERNMENT 
 
 We are now in a position to answer the question, What is a 
 republican form of government? The question is important, 
 since several cases of doubt have already arisen and others are 
 likely to arise. 
 
 The obligation imposed upon the United States to guarantee 
 to the states a republican form of government implies a duty on 
 the part of the states themselves to provide governments republi- 
 can in form. All the states had governments when the Federal 
 Constitution was adopted, and all these state governments were 
 left by the Constitution unchanged. They were accepted 
 precisely as they were, and therefore it is to be presumed that 
 they were such as it was the duty of the states to provide. Hence, 
 
 1 Massachusetts declaration of rights, art. xii. 
 
 * Ibid., arts, xxiii and x. 
 
 1 Ibid., arts, xxvii, xxviii, and xvii. 
 
 4 Art. xx. 
 
 6 Cf . Constitution of the United States, i, 9. 
 
 6 See A. V. Dicey, Introduction to the Study of the Law of the Constitution, pt. ii.
 
 ORIGINAL PRINCIPLES OF STATE GOVERNMENT 37 
 
 when some eighty years later it was contended that a state which 
 denied the suffrage to women was not republican in form, the 
 reply was conclusive that, although one of the original states 
 granted votes to women at the time of the adoption of the Con- 
 stitution, the others did not, and therefore equal suffrage for men 
 and women could not be essential to the republican form of 
 government in the United States. 1 
 
 The original state governments were certainly republican in 
 form, but were they the only republican forms permitted by the 
 Federal Constitution? James Madison, a leading member of 
 the Federal Convention of 1787, observed that "whenever the 
 states may choose to substitute other republican forms, they have 
 a right to do so and to claim the federal guaranty for the latter." 2 
 Just how different the various other forms may be and still be 
 republican within the meaning of the Constitution, neither 
 Madison nor any other member of the Federal Convention 
 ventured to say. Recently the system of direct legislation or, 
 as it is often designated, the initiative and referendum, has been 
 assailed on the ground that its adoption by a state is a violation 
 of the republican form, and hence forbidden by the Federal Con- 
 stitution. Congress, however, has not refused to admit the 
 senators and representatives chosen by the states which have 
 adopted the initiative and referendum, and that form of govern- 
 ment must therefore be regarded as duly republican. 3 What 
 other innovations in state government may be adopted without 
 exceeding the limits of the republican form can be likewise de- 
 termined by experiment. The states are free to establish such 
 political institutions for the expression and execution of the will 
 of the people thereof as they see fit, but the United States is the 
 final judge of the fitness of the institutions so established. 
 
 The constitutionality of procedure for direct legislation by the 
 people was attacked upon the theory that the republican form 
 of government is bound up with so-called representative govern- 
 ment, that is, a form of government in which the will of the 
 people is expressed only through the instrumentality of their 
 representatives. Some evidence in support of this view is to 
 be found in the writings of the Fathers. Madison, whose opinion 
 
 1 Cf. Minor vs. Happersett, 21 Wall. 167. The Federalist, no. 43. 
 
 1 Cf. Pacific States Telephone and Telegraph Co. vs. Oregon, 223 U. S., 118.
 
 38 STATE GOVERNMENT IN UNITED STATES 
 
 is inferior to none, wrote in one place that he meant by the term, 
 republic, "a government in which the scheme of representation 
 takes place." * Jefferson also has used language which seems 
 to imply that he deemed representative government the chief 
 characteristic of republicanism. 2 In another place, however, 
 Madison seems to hold a different opinion. 3 "What then," he 
 inquires, "are the distinctive characters of the republican form? 
 Were an answer to this question to be sought, not by recurring 
 to principles, but in the application of the term by political 
 writers to the constitutions of different states, no satisfactory 
 one would ever be found. Holland, in which no particle of the 
 supreme authority is derived from the people, has passed almost 
 universally under the denomination of a republic. The same 
 title has been bestowed on Venice, where absolute power over the 
 great body of the people is exercised in the most absolute manner 
 by a small body of hereditary nobles. Poland, which is a mixture 
 of aristocracy and of monarchy in their worst forms, has been 
 dignified with the same appellation. The government of Eng- 
 land, which has one republican branch only, 4 combined with an 
 hereditary aristocracy and monarchy, has with equal impropriety 
 been frequently placed on the list of republics. These examples, 
 which are nearly as dissimilar to each other as to a genuine re- 
 public, show the extreme inaccuracy with which the term has 
 been used in political disquisitions." 
 
 Madison's own definition follows. " If we resort for a criterion 
 to the different principles on which different forms of government 
 are established, we may define a republic to be, or at least may 
 bestow that name on, a government which derives all its powers 
 directly or indirectly from the great body of the people, and is 
 administered by persons holding their offices during pleasure, for 
 a limited period, or during good behavior. It is essential to such 
 a government that it be derived from the great body of the so- 
 ciety, not from an inconsiderable proportion, or a favored class 
 
 1 See The Federalist, no. 10. See also ibid., no. 14. 
 
 2 See his First Inaugural. See also his letters to Dupont de Nemours and 
 Samuel Kercheval (1816) ; Works (Ford's ed.), x, pp. 24, 28. 
 
 3 The Federalist, no. 39. 
 
 4 Madison means the House of Commons. John Adams sometimes described 
 the government of England as a "monarchical republic." See C. M. Walsh, The 
 Political Science of John Adams, ch. xviii.
 
 ORIGINAL PRINCIPLES OF STATE GOVERNMENT 39 
 
 of it ; otherwise a handful of tyrannical nobles, exercising their 
 oppressions by a delegation of their powers, might aspire to the 
 rank of republicans and claim for their government the honorable 
 title of republic. It is sufficient for such a government that the 
 persons administering it be appointed, either directly or in- 
 directly, by the people ; and that they hold their appointment 
 by either of the tenures just specified ; otherwise every govern- 
 ment in the United States, as well as every other popular govern- 
 ment that has been or can be well organized or well executed, 
 would be degraded from the republican character." 
 
 An entirely different view is set forth by Paine. 1 "The only 
 forms of government are the democratical, the aristocratical, 
 the monarchical, and what is now called the representative. 
 What is called a republic, is not any particular form of govern- 
 ment. . . . Republican government is no other than govern- 
 ment established and conducted for the interest of the public. 
 ... It is not necessarily connected with any particular form, 
 but it most naturally associates with the representative form, as 
 being best calculated to secure the end for which a nation is at 
 the expense of supporting it." Thus Paine solves the perplexing 
 problem concerning the nature of the republican form of govern- 
 ment by denying the existence of such a form. 
 
 There is a better solution of the problem. The first act of the 
 convention which framed the Massachusetts constitution of 1 780 
 was to vote that the new government to be established be a 
 "free republic." The second act was to define that term as 
 follows: "It is the essence of a free republic that the people be 
 governed by fixed laws of their own making." 2 This definition is 
 nothing more nor less than a straightforward statement of the two 
 fundamental principles upon which all the original state govern- 
 ments were established, namely, the principles of the sovereignty 
 of the people and of the reign of law. A republican form of 
 government, therefore, is one in which the will of the people is 
 the highest source of authority and looks for its interpretation and 
 execution to responsible agents acting under the forms of law. 3 
 
 1 Thomas Paine, The Rights of Man (Am. ed. of 1792), pt. ii, pp. 18-19. 
 
 2 Journal of the Massachusetts Constitutional Convention, 1779-1780, p. 24. 
 
 * See The opinion of Justice James Wilson in Chishohn vs. Georgia, 2 Dall., 419 
 (1793)- Cf. Wilson's Works, 1, 366.
 
 CHAPTER III 
 THE ORIGINAL FORMS OF STATE GOVERNMENT 
 
 THE republican form of government obviously admits a wide 
 latitude in the adoption of institutions by which the fundamental 
 principles of republicanism may be reduced to practice. Al- 
 though no standard or uniform type of republican government 
 was adopted by the states during the revolutionary period, there 
 was substantial agreement concerning the main features of such 
 a government. 
 
 ADOPTION OF ORIGINAL CONSTITUTIONS 
 
 In the beginning the fundamental laws for the government of 
 the states were systematically and authoritatively set forth in 
 special written documents or constitutions. These constitutions 
 were prepared in various ways. In Virginia the first constitution 
 was drafted by a revolutionary convention in the spring of 1776 
 without express authority from the people. It was put into 
 effect by the body which drafted it, and which continued to exist 
 as an ordinary legislature exercising authority by virtue of the 
 constitution promulgated by itself. Jefferson criticized this 
 mode of preparing a constitution as grossly irregular, since the 
 convention had in effect usurped the "natural right" of the 
 people to determine for themselves the conditions of the "social 
 compact." * This constitution endured, however, for more than 
 half a century, and, though never formally submitted to the 
 people for their approval, received the sanction of public opinion. 
 The same mode of proceeding was adopted in several of the origi- 
 nal states. 2 In Pennsylvania a less objectionable mode of 
 
 1 Notes on Virginia (ed. of 1829), pp. 125-130. 
 
 2 Notably in South Carolina (1776) and New Jersey (1777). In form the original 
 constitutions of these three states were in no wise different from ordinary statutes. 
 
 40
 
 THE ORIGINAL FORMS OF STATE GOVERNMENT 41 
 
 proceeding was pursued. 1 In Connecticut and Rhode Island 
 the governments established under the royal charters of 1662 
 and 1663 were continued in force by the legislatures of 1776 
 without special action by the people.* 
 
 In Massachusetts the provisional government established in 
 1775 continued on a purely revolutionary basis until 1780. 
 The legislature of 1778 attempted to substitute a constitutional 
 basis, but the draft of a new constitution, when submitted to the 
 people for their approval at a special election, was rejected by an 
 overwhelming majority, chiefly on the ground that no ordinary 
 legislature had the power to draft a new constitution, even for 
 the purpose of submission to the people. The legislature of 1779 
 therefore submitted to the people the proposition whether or 
 not they would elect delegates to a special constitutional con- 
 vention. The people accepted the proposition, whereupon the 
 legislature called a special election of delegates, who framed a 
 new draft of a constitution, submitted it to the people for their 
 approval, and adjourned until the election should have been 
 held. This constitution met with the popular approval, and 
 was duly proclaimed on their authority by the convention, 
 which thereupon adjourned sine die. Such was the latest of the 
 various methods by which the people of the original states ex- 
 changed their " natural rights " for civil rights upon the secure 
 basis of a " social compact." 8 
 
 Thus was developed the characteristic American practice 
 with respect to the adoption of written constitutions. This 
 practice, though not at first uniform, tended towards the recog- 
 
 In four other states, New Hampshire (1776), Delaware (1776), New York (1777), 
 and Georgia (1777), the original constitutions were framed by legislative bodies 
 which had express authority therefor from the people, but did not provide for the 
 submission thereof in any manner to the people. See W. F. Dodd, The Reiision 
 and Amendment of State Constitutions, ch. i, esp. at p. 24. 
 
 1 See Thomas Paine, The Rights of Man (ed. of 1792), pt. ii, pp. 24-25. 
 
 The Pennsylvania plan of special authorization by the people and informal sub- 
 mission to the people was followed in Maryland (1776), North Carolina (1776), 
 and South Carolina (1778). In Massachusetts (1778) there was a formal submis- 
 sion to the people in their town-meetings, but the document so submitted was re- 
 jected by them. 
 
 1 See Thayer's Cases on Constitutional Law, i, p. 433. 
 
 'This method was pursued in New Hampshire in 1781 and 1782, but the 
 documents so submitted were rejected by the people ; and again, this time suc- 
 cessfully, in 1783.
 
 42 STATE GOVERNMENT IN UNITED STATES 
 
 nition of three main principles : (i) the distinction between con- 
 stitutional and statutory law ; (2) the distinction between the 
 constitutional convention and the ordinary legislative body of 
 the state ; and (3) the submission of proposed constitutions to a 
 direct vote of the people. 
 
 RESERVATION OF CIVIL RIGHTS TO PEOPLE 
 
 The prime object of the adoption of written constitutions was 
 to set forth the fundamental laws for the government of the states, 
 that is, the laws governing the frame of government and the dis- 
 tribution of powers between the various depositaries of political 
 authority, and thereby securely to establish the sovereignty of 
 the people through the reign of law. At the same time, con- 
 scious of the sovereignty of the people and relying on the reign 
 of law, the framers of the original constitutions seized the oppor- 
 tunity to write into them, and thus put beyond the power of 
 temporary custodians of public authority to impair or destroy, 
 certain ancient privileges of freeborn Englishmen, now at last 
 placed for Americans on the secure footing of popular rights. 
 These rights must be distinguished from principles of govern- 
 ment, strictly speaking, although the two were often thrown 
 together in the state papers of the American Revolution. They 
 may be traced through the great constitutional documents of the 
 English race, Magna Charta, the Petition of Right, the Bill of 
 Rights, and various notable acts of Parliament, to the Declara- 
 tion of Independence and the other declarations of rights con- 
 tained in American Revolutionary state papers. No two of 
 these declarations of rights are precisely the same. Since, how- 
 ever, unusual care was devoted to the preparation of the declara- 
 tion of rights contained in the Massachusetts constitution of 
 1780, this document may be regarded as the standard American 
 declaration of rights. Some of these rights have already been 
 enumerated. The rest in the main were intended to establish 
 on the firmest possible basis the forms and procedure of the Eng- 
 lish common law as the basis of the American legal system. 
 Thus trial by jury was to be "held sacred." In addition the 
 issue of general search warrants, the enactment of ex post facto 
 laws and bills of attainder, the exaction of excessive bail, and the
 
 THE ORIGINAL FORMS OF STATE GOVERNMENT 43 
 
 imposition of excessive fines or of cruel and unusual punishments 
 were prohibited. 1 Most of the guarantees of rights of this char- 
 acter were afterwards repeated in the Federal Constitution. 2 
 These declarations of rights were in substance constitutional 
 limitations upon the powers of the state and federal governments, 
 and this practice of limiting the powers of the established govern- 
 ments in state and nation by the reservation of rights to the 
 people has been universally followed in the United States. It 
 constitutes one of the most important of the contributions of the 
 Fathers to the science of government. 
 
 It should be observed that the Massachusetts declaration of 
 rights makes no distinction between the rights of men in general 
 and those of citizens in particular. Apparently it was assumed 
 that there would be no considerable class of persons within the 
 Commonwealth who would not also be citizens. In most of the 
 original states, however, there were such classes of persons in 
 considerable numbers, namely, immigrant indentured servants 
 and negro slaves. The former consisted of persons "held to 
 service" only temporarily and destined eventually to enjoy the 
 civil and political rights of citizenship on the same terms as 
 native citizens. The latter in several of the states were not 
 admitted to full citizenship, even if manumitted. Outside of 
 the southernmost states, however, the leaders of public opinion 
 seem to have expected, or at any rate desired, the ultimate 
 abolition of racial discriminations in American law. 3 Ulti- 
 mately indeed this came to pass, and the negro was admitted 
 to full civil and political equality with the white citizen. 4 At 
 the same time the growth of a very considerable class of persons 
 was recognized, who were not citizens, namely, alien and un- 
 naturalized immigrants. Accordingly when the fourteenth 
 amendment to the Federal Constitution was framed, an im- 
 portant distinction was made between citizens and other persons 
 subject to the jurisdiction of the states. No state may abridge 
 the privileges or immunities of citizens of the Unites States, and 
 in addition no state may deprive any person of life, liberty, or 
 
 1 See Declaration of Rights, arts, xii, xiii, xiv, xv, xxiv, xxv, and xxvi. 
 1 Art. i, sect. 9; art. iii, sect. 2; and arts, i to viii of the amendments. 
 1 A. Lincoln, Address at Cooper Union, Feb. 27, 1860. 
 4 Constitution of the United States, amendments, arts, xiv and xv.
 
 44 STATE GOVERNMENT IN UNITED STATES 
 
 property without due process of law, nor deny to any person the 
 equal protection of the laws. Hence aliens may not claim as of 
 right the special privileges and immunities of citizens, 1 but they 
 are entitled to all the benefits of the reign of law and to the same 
 protection against arbitrary and tyrannical oppression as native 
 citizens. 2 
 
 THE RIGHT TO VOTE 
 
 There is nothing in the original declarations of rights to indi- 
 cate that the electoral franchise or so-called "right" to vote was 
 regarded as one of the "natural, essential and unalienable" rights 
 of man or even of citizens. Indeed the language of the Massa- 
 chusetts declaration of rights seems to imply that the suffrage 
 was a privilege to be conferred only upon those whose claims 
 thereto could be proven by some general test of fitness; but 
 what that test of fitness should be is not indicated. 3 The language 
 of the Virginia declaration of rights is more explicit. "All men, 
 having sufficient evidence of permanent common interest with, 
 and attachment to, the community, have the right of suffrage." 4 
 This rule, or the similar rule laid down in the Pennsylvania dec- 
 laration of rights, 6 clearly recognizes a right to vote, but also 
 clearly implies that that right extends only to those who have 
 something at stake in the maintenance of the sovereignty of the 
 people and the reign of law, or, as it is commonly called, in the 
 maintenance of law and order. What should be the requisite 
 "sufficient evidence," however, is not specified in any declara- 
 tion of rights. 
 
 In the first constitutions of most of the original states, the 
 suffrage qualifications actually established were in fact substan- 
 tially the same as those that had existed under the colonial 
 governments before the Revolution. Indeed this is expressly 
 provided in the Virginia constitution, and consequently the 
 right to vote in that state was restricted to the owners of fifty 
 
 1 For example, the "right" to own land or the "right" to vote. But, as will 
 appear, aliens have often been granted special privileges of citizenship in advance 
 of naturalization. 
 
 2 See an act of Connecticut, 1776, par. 4, cited by J. B. Thayer, Cases on Constitu- 
 tional Law, i, p. 433. 
 
 3 Art. ix. 
 
 4 Art. vi. 
 
 5 Art. vii.
 
 THE ORIGINAL FORMS OF STATE GOVERNMENT 45 
 
 acres of uninhabited land or of twenty-five acres with a house, 
 or in towns to the owners of a house and lot. In Massachusetts 
 the suffrage was restricted to "male inhabitants of twenty-one 
 years of age and upwards, having a freehold estate within the 
 Commonwealth of the annual income of three pounds, or any 
 estate of the value of sixty pounds." In the states generally the 
 suffrage was restricted to the owners of fifty acres of land, more 
 or less, or an equivalent amount of property in some other tangible 
 form. In Pennsylvania, however, the suffrage was extended to 
 all taxpayers, in Georgia, to all tax payers possessing property 
 valued at ten pounds and also to "mechanics," and in Vermont, 
 which copied the article of the Pennsylvania declaration of rights 
 relating to the suffrage, the vote was granted to "every man . . . 
 who is of a quiet and peaceable behavior and will take the fol- 
 lowing oath (or affirmation)," called the freeman's oath: "I 
 solemnly swear, by the ever living God (or affirm, in the presence 
 of Almighty God), that whenever I am called to give my vote or 
 suffrage, touching any matter that concerns the State of Ver- 
 mont, I will do it so, as in my conscience, I shall judge will 
 most conduce to the best good of the same, as established by 
 the constitution, without fear or favor of any man." 
 
 This is the closest approach to manhood suffrage to be found 
 in any state under the original state constitutions. In Virginia, 
 Jefferson tells us, " the majority of the men in the state, who pay 
 and fight for its support, are unrepresented in the legislature ; 
 the roll of freeholders entitled to vote not including generally 
 the half of thoseon the roll of the militia, or of the tax-gatherers." 1 
 In Massachusetts, it has been estimated, approximately sixteen or 
 seventeen per cent of the population were entitled to vote, that is, 
 about three-fourths of the adult males. 2 In Pennsylvania and 
 Vermont the proportion of the adult males entitled to vote must 
 have been larger, but in the other northern states the franchise 
 was restricted to nearly the same extent as in Massachusetts, 
 and Virginia was fairly typical of conditions in the South. 3 
 
 1 Notes on Virginia, ch. xiii. 
 
 1 J. F. Jameson, "Did the Fathers vote?" in the New England Magazine, Jan. 
 1800. 
 
 * In Georgia, however, there was a comparatively low property qualification, and 
 in North Carolina there was only a tax-paying qualification for electors of members 
 of the lower house of the legislature.
 
 46 STATE GOVERNMENT IN UNITED STATES 
 
 Jefferson, in his plan of a constitution for Virginia, drafted in 
 1783, when it was supposed by him that a constitutional con- 
 vention would be shortly summoned, advocated that the fran- 
 chise be conferred on all free male citizens of full age and sound 
 mind, who should reside in any county of the state for one year 
 preceding an election or who should possess real property therein, 
 or be enrolled in the militia. This would have been substan- 
 tially the same as manhood suffrage with apparently the possi- 
 bility of plural votes for land-owners, unless the elections in all 
 counties should be held on the same day. This plan, however, 
 came to nothing. The franchise provided for the Northwest 
 Territory under the Ordinance of 1787, which also represented 
 Jefferson's ideas of sound public policy, was restricted to the 
 owners of fifty acres of land. Under the conditions, especially 
 the land policy, then prevailing in the old Northwest, this fran- 
 chise confined the use of the ballot to settlers of some substance, 
 and without doubt accurately expressed the public opinion of 
 the time with respect to the composition of the electorate. 
 
 In short, the principle of manhood suffrage was not among 
 the original principles of state government. It was not incon- 
 sistent with them, however, nor was the admission of women to 
 the electoral franchise inconsistent with the principles upon 
 which the original state electorates were constructed. Indeed, 
 in New Jersey properly qualified women were allowed to vote 
 for a number of years after the close of the Revolution. In 
 general, however, the franchise was limited to men possessing 
 at least homesteads of their own, or equivalent amounts of 
 stock in trade, and thereby gaining independent livelihoods. 
 The wage-earning classes were for the most part excluded from 
 the electorate. This exclusion did not affect so large a propor- 
 tion of the people as it would to-day. But it restricted the use 
 of the ballot in the main to the independent farmers and pro- 
 prietors of plantations and to the commercial and professional 
 classes. In other words, the people placed their governments in 
 the hands of the propertied classes, preferring in practice a 
 somewhat aristocratic government to that government of the 
 masses which their theory of the natural nobility of man would 
 seem to have demanded. 
 
 The same rules were acted upon in the construction of all the
 
 THE ORIGINAL FORMS OF STATE GOVERNMENT 47 
 
 organs of state government. The members of the several state 
 legislatures, the governors and other high executive officers, and 
 the judiciary were necessarily required to possess at least the 
 same qualifications as ordinary voters, and in many cases the 
 property qualifications were considerably greater. Thus in 
 Massachusetts members of the lower branch of the legislature 
 were required to possess real estate of the value of at least one 
 hundred pounds, or other property of at least twice that value. 
 Senators were required to possess not less than three times as 
 much property as representatives, and the governor was re- 
 quired to possess not less than one thousand pounds in real 
 estate. Similar real estate qualifications were required in New 
 Hampshire and North Carolina. In Maryland the qualification 
 imposed upon the governor was that he should possess five 
 thousand pounds hi lawful money, and in South Carolina the 
 sum was fixed at ten thousand pounds. In the remaining states 
 the theory of government by a governing class was not pushed 
 so far. In all, nevertheless, the fundamental principle obtained 
 that government is a delegated and limited trust, that all au- 
 thority not conferred is reserved, and that in fact there are 
 grave questions, lying deeper than the ordinary forms of govern- 
 ment, and over which government in none of its branches has 
 just control. Indeed, unless this principle had been recognized, 
 some of the original state governments would not have been 
 people's governments at all, but oligarchies based upon wealth 
 and masquerading under republican forms. 
 
 THE DIVISION OF POWERS 
 
 The principle of the division of powers was set forth in the 
 Massachusetts declaration of rights as follows : "In the govern- 
 ment of this commonwealth the legislative department shall 
 never exercise the executive and judicial powers or either of 
 them; the executive shall never exercise the legislative and 
 judicial powers or either of them ; the judicial shall never exer- 
 cise the legislative and executive powers or either of them : to 
 the end it may be a government of laws and not of men." 
 The constitution of New Hampshire, adopted in 1783, declared 
 
 1 Art. xxx.
 
 48 STATE GOVERNMENT IN UNITED STATES 
 
 that "the legislative, executive, and judicial [powers] ought to 
 be kept as separate from, and independent of, each other as the 
 nature of a free government will admit, or as is consistent with 
 that chain of connection that binds the whole fabric of the con- 
 stitution in one indissoluble bond of union and amity." Mary- 
 land adopted the maxim in the most unqualified terms, declar- 
 ing that "the legislative, executive and judicial powers of govern- 
 ment ought to be forever separate and distinct from each other." 
 Six of the twelve states, which adopted new constitutions during 
 the Revolutionary period, that is, all of the states which adopted 
 declarations of rights with the exception of Pennsylvania and 
 Vermont, explicitly affirmed the doctrine of the division of 
 powers. 
 
 There was no attempt, however, at a philosophical definition 
 of these three kinds of powers. The fact is, that the Fathers did 
 not know themselves exactly what they meant by these terms. 
 Locke, one of the first writers to speak of three powers, specifies 
 the legislative or law-making power, the executive or law- 
 enforcing power, and the federative power or power of treating 
 on behalf of a state with other states. Clearly this is not the 
 division of powers in the minds of the framers of the original 
 state constitutions. Jefferson appreciated the difficulty when 
 he attempted to draft a model constitution for the state of Vir- 
 ginia. 1 "By executive powers," he observed, "we mean no 
 reference to those powers exercised under our former govern- 
 ment by the crown as its prerogative, nor that these shall be 
 the standard of what may or may not be deemed the rightful 
 powers of the governor. We give him those powers only, which 
 are necessary to execute the laws (and administer the govern- 
 ment) and which are not in their nature either legislative or 
 judiciary. The application of this idea must be left to reason." 
 Jefferson did not attempt to elaborate further the idea which 
 he declared should be left to reason, although he did expressly 
 deny to the governor a number of royal prerogative powers, 
 such as erecting courts, offices, boroughs, corporations, fairs, 
 markets, ports, etc. Paine subsequently made the attempt and 
 reached the conclusion that notwithstanding "it has been cus- 
 tomary to consider government under three distinct heads, the 
 
 1 See Notes on Virginia, Appendix ii.
 
 THE ORIGINAL FORMS OF STATE GOVERNMENT 49 
 
 legislative, the executive, and the judicial, if we permit our 
 judgment to act unincumbered by the habit of multiplied terms, 
 we can perceive no more than two divisions of power . . . that 
 of legislating or enacting laws, and that of executing or adminis- 
 tering them. . . . That which is called the judicial power, is 
 strictly and properly the executive power. . . ." 1 
 
 Although no successful attempt at a philosophical definition 
 of the three kinds of powers seems to have been made by the 
 framers of the original state constitutions, there is no doubt 
 that such a definition is possible. 2 The two main functions of 
 government distinguished by Paine may be described respec- 
 tively as the functions of politics and of administration. The 
 former has to do with policies or expressions of the state will. 
 The latter has to do with the execution of these policies. Officers 
 entrusted with the execution of the state will, however, may be 
 further distinguished as judicial officers and administrative 
 officers proper. The former have merely to decide what is the 
 law applicable to the facts brought before them in specific cases, 
 involving controversies between private individuals or between 
 private individuals and government officers concerning their 
 rights under the law. The latter must determine, of course, 
 what is the law, but also they must decide whether, in cases 
 where their legal powers are sufficient, it is wise to act. The 
 former consider justice only, the latter justice and expediency. 
 Now it is likely that this is what the Fathers had in mind when 
 they declared their belief in the existence of three kinds of gov- 
 ernmental powers. The important matter, however, is their 
 further belief that tyranny became possible only when these 
 three kinds of powers were joined in the same hands. 
 
 "The accumulation of all powers, legislative, executive and 
 judiciary, in the same hands, whether of one, a few, or many, 
 and whether hereditary, self-appointed, or elective," wrote Madi- 
 son, "may justly be pronounced the very definition of tyranny." 3 
 This belief is clearly set forth in Jefferson's criticism of the first 
 
 1 Thomas Paine, The Rights of Man, pt. ii, p. 33. See, for a recent and conclu- 
 sive statement of the same thesis, F. J. Goodnow, Politics and Administration. 
 1 F. J. Goodnow, Principles of the Administrative Law of the United States, bk. i, 
 
 ch.i. 
 
 'See Tht Federalist, no. 47 (Ford's ed.). 
 
 E
 
 50 STATE GOVERNMENT IN UNITED STATES 
 
 state government established in Virginia. That government, as 
 has been shown, was established by the legislature of the state, 
 and was put into operation without reference to the people of 
 the state. The constitution not only emanated from the legis- 
 lature, but committed to the legislature the election of both 
 executive and judiciary. It could be repealed at any time by 
 the legislature, at least many persons then so supposed, and any 
 alterations could be made at the will thereof, even to putting all 
 power into the hands of a single dictator. As Jefferson remarked, 
 "one hundred and seventy-three despots" (the number of mem- 
 bers of the legislature) "would surely be as oppressive as one." 1 
 If, however, the three kinds of powers were distributed among 
 three separate and distinct departments of government, and if 
 the constitution itself were made by a special organ of govern- 
 ment and were dependent for its validity upon the express ap- 
 proval of the electorate, the danger of tyranny through the con- 
 solidation of all powers in the hands of a single person or body 
 of persons would be destroyed. The principle of the division of 
 powers among three departments of government was first logi- 
 cally worked out in the constitution of New York, adopted by a 
 revolutionary convention in 1777. The principle of the division 
 of powers, and the practice of framing a constitution by a special 
 convention subject to the express approval of the electorate, 
 were first combined by the people of Massachusetts in 1779- 
 1780. This combination forms the corner stone of constitutional 
 government in the United States. 
 
 The doctrine of the division of powers originated with Mon- 
 tesquieu, or at least was first brought by him to the notice of 
 eighteenth-century political philosophers. Montesquieu, how- 
 ever, as Madison has clearly pointed out, did not mean that the 
 three departments of government should have no partial agency 
 in, or control over, the acts of each other. Neither the govern- 
 ment of England nor that of any of the original American states 
 was established upon such a principle. Montesquieu's meaning 
 simply was, "that where the whole power of one department is 
 exercised by the same hands which possess the whole power of 
 another department, the fundamental principles of a free con- 
 stitution are subverted." 2 Hence the doctrine of the division 
 
 1 See Jeffcrson'a Notes on Virginia, ch. xiii. ' See The Federalist, no. 47.
 
 THE ORIGINAL FORMS OF STATE GOVERNMENT 51 
 
 of powers, as a maxim of government, "does not require that the 
 legislative, executive, and judiciary departments should be 
 wholly unconnected with each other." On the contrary, "un- 
 less these departments be so far connected and blended as to 
 give to each a constitutional control over the others, the degree 
 of separation which the maxim requires, as essential to a free 
 government, can never in practice be duly maintained." l 
 
 EFFECTIVE DIVISIONS OF POWERS 
 
 The New York constitution of 1777 was framed strictly in 
 accord with these principles. The legislative power was vested 
 in the first instance in a legislature composed of two houses. 
 The legislature, however, exercised several important non-legis- 
 lative powers. For example, it elected the treasurer of the 
 state, and the lower house also elected four members of the 
 upper house to act under the presidency of the governor as a 
 council of appointment. The chancellor and judges of the su- 
 preme court and all executive officers, except the governor and 
 lieutenant-governor, who were elected by the people, and the 
 treasurer, were appointed by the governor subject to the consent 
 of this council. The lower branch of the legislature also pos- 
 sessed the power to impeach any executive or judicial officer, 
 and the upper house together with the chancellor and judges of 
 the supreme court were constituted the court for the trial of 
 impeachments. The governor was commander-in-chief of the 
 state militia and navy, and possessed the prerogative powers of 
 convening and proroguing the legislature, provided such pro- 
 rogations should not exceed sixty days in the space of any one 
 year, and of granting reprieves and pardons to persons convicted 
 of crimes other than treason and murder. In the latter cases he 
 was empowered to suspend execution of sentence until it should 
 be reported to the legislature at the next session, when the latter 
 might either pardon, or direct the execution of the criminal, or 
 grant a further reprieve. The governor was further bound to 
 take care that the laws be faithfully executed, to expedite all 
 such measures as should be resolved upon by the legislature, 
 and to inform the latter at every session of the condition of the 
 
 1 Ibid., no. 48.
 
 52 STATE GOVERNMENT IN UNITED STATES 
 
 state and to recommend such matters to their consideration as 
 should appear to him to concern its good government, welfare, 
 and prosperity. The governor, together with the chancellor 
 and judges of the supreme court, was made a council of revision, 
 to which was committed the duty of examining and, if necessary, 
 revising all acts of the legislature, and returning to the legisla- 
 ture, with its objections in writing, all acts which it deemed im- 
 proper to become laws of the state in the form in which they 
 were passed by the legislature. The legislature, however, might 
 reenact such laws in their original form by two-thirds majorities 
 in each branch. The chancellor and judges of the supreme 
 court, once appointed, should hold office during good behavior 
 or until they should attain the age of sixty years. Military 
 officers should be commissioned by the governor and hold office 
 during his pleasure. Other officers should enjoy such tenure of 
 office as should be provided by statute. 
 
 Obviously here was not a separation, but a confusion, of the 
 three kinds of governmental powers. The powers of each de- 
 partment of government were defined clearly enough, but they 
 were not all of one kind. The powers of each of the three kinds 
 were granted clearly enough, but they were not granted to the 
 three departments respectively. There was a division of powers 
 which gave powers of each kind to each of the three departments 
 and duties of all three kinds to all of the departments. 
 
 The Massachusetts constitution of 1780 was framed upon 
 similar principles. The two houses of the legislature in joint 
 session were empowered to elect the secretary of the common- 
 wealth, the treasurer, the commissary-general, notaries public, 
 and naval officers. All other executive officers and all judicial 
 officers were to be appointed by the governor "by and with the 
 advice and consent of the council/' a body of nine, chosen from 
 the senate by the two houses of the legislature in joint session, 
 and the lieutenant-governor. The governor presided at meetings. 
 The governor was granted the power of pardoning offenses, with 
 the consent of the council, and of withholding his approval from 
 acts of the legislature regardless of the advice of the council. 
 Acts not approved by the governor should be returned to the 
 legislature, and, as in New York, might be reenacted by the latter 
 by two-thirds majorities in both branches. All judicial officers
 
 THE ORIGINAL FORMS OF STATE GOVERNMENT 53 
 
 were authorized to hold their offices during good behavior, pro- 
 vided nevertheless that the governor, with the consent of the 
 council, might remove them upon the address of both houses of 
 the legislature. Each branch of the legislature, as well as the 
 governor and council, were granted authority to require the 
 opinions of the judges of the supreme court "upon important 
 questions of law and upon solemn occasions." The power to 
 bring impeachments was vested in the lower house of the legis- 
 lature, and the upper house was constituted the court for the 
 trial thereof. All causes of marriage, divorce, and alimony, and 
 all appeals from the judges of probate were to be heard by the 
 governor and council, until the legislature should make other pro- 
 vision therefor by law. Thus the legislature exercised executive 
 and judicial powers, the governor exercised legislative and judicial 
 powers, and the judiciary exercised legislative and executive 
 powers. Each department, however, exercised only those 
 powers granted to it by the constitution. 
 
 The New Hampshire constitution of 1783 was very similar 
 in form to that of Massachusetts, and, except for the omission 
 of the gubernatorial veto power, embodied the principle of the 
 division of powers in the same way. 
 
 INEFFECTIVE DIVISIONS OF POWERS 
 
 The constitutions of Rhode Island and Connecticut were never 
 intended to embody the principle of the division of powers. 
 They were indeed precisely the same as the royal charters under 
 which those two colonies had been governed for more than a cen- 
 tury. These charters were nothing more nor less than the char- 
 ters of business corporations, and provided a form of government 
 such as any trading company of the seventeenth century, enjoy- 
 ing special privileges granted by the crown, might have possessed. 
 The important difference between the governments of Rhode 
 Island and Connecticut and that of the English East India Com- 
 pany, for example, lay in the fact that the former admitted to the 
 privileges of the charter (admitted as freemen of the company, 
 they said ; we should say, stockholders) all actual settlers of good 
 reputation and independent means, whereas the latter restricted 
 the benefits of the chartered privileges to the original investors
 
 54 STATE GOVERNMENT IN UNITED STATES 
 
 (merchant adventurers, they called themselves) and their suc- 
 cessors. In Rhode Island and Connecticut, the governor, 
 deputy-governor, council (board of directors or senate), and 
 house of representatives (stockholders' meeting by deputy in- 
 stead of by person) were elected by the people (freemen of the 
 company, or voters of the commonwealth). The judiciary and 
 the remaining executive officers were elected by the legislature, 
 and held office for terms of only one year. The judiciary exer- 
 cised judicial functions only, and the executive none but execu- 
 tive functions. The principle of the separation of powers, how- 
 ever, as expounded by Madison, was hardly recognizable, for 
 there was no effective check to the authority of the legislature. 
 The charter or constitution was, to be sure, the supreme law of 
 the state, but the legislature was without an important rival as 
 the interpreter thereof, and could rule practically uncontrolled 
 except by public opinion. In short, the governments of these 
 two states were representative democracies characterized by the 
 legal supremacy of their legislatures. 1 
 
 In the remaining states where the framers of the original con- 
 stitutions professed a belief in the doctrine of the division of 
 powers, New Jersey, Delaware, Maryland, Virginia, North Caro- 
 lina, South Carolina, and Georgia, the application of the doctrine 
 left even more to be desired than in Rhode Island and Connec- 
 ticut. The governor was universally elected by the legislature, 
 and, except in South Carolina and Delaware, his term of office 
 was restricted to one year. In addition, in the six southern 
 states, restrictions were placed upon his eligibility for reelection. 
 In every state there was an executive council, chosen except in 
 New Jersey by the legislature, which the governor was required 
 to consult on all important matters, and which in most cases 
 incidentally served to restrict such powers of appointment and 
 pardon as he might possess. In New Jersey the upper branch 
 of the legislature, the legislative council as it was called, served 
 as an executive council. The power possessed by the colonial 
 governors to dissolve the legislature was everywhere abolished. 
 The judges were elected by the state legislature in all these 
 
 1 See W. C. Morey "The Genesis of a Written Constitution," Ann. Am. Acad. 
 Pol. Soc. Set., i, 4 (April, 1891), and also, "The First State Constitutions," ibid., 
 iv, 2 (Sept. 1893).
 
 THE ORIGINAL FORMS OF STATE GOVERNMENT 55 
 
 states except Maryland, where they were appointed by the gov- 
 ernor with the consent of the council. This mode of selection 
 really amounted to indirect legislative appointment, since the 
 governor and council were elected annually by the legislature. 
 In all these states except Georgia, where the legislature consisted 
 of only a single house, the executives and judiciary could be im- 
 peached by the lower branch of the legislature and removed 
 from office upon conviction by the upper. In Delaware, Mary- 
 land, and South Carolina they could be removed from office by 
 the governor upon address by both branches of the legislature. 
 The judges were usually entitled to hold office, nominally at 
 least, during good behavior, but in New Jersey the judges were 
 chosen for terms of seven years, and in Georgia they were chosen 
 annually. Thus, whether executive and judicial officers were 
 appointed by the governor or elected by the legislature, the 
 effect was the same, namely, to concentrate all powers ultimately 
 in the legislature. In South Carolina, indeed, by the constitu- 
 tion of 1776 a power of absolute veto over legislation was granted 
 to the governor, but this was withdrawn when the first constitu- 
 tion was revised by the legislature two years later. In none of 
 the other states was there any power of executive veto. 1 In 
 short, the legislatures, under the original constitutions of these 
 states, were not seriously limited either by the executives or by 
 the courts. 2 They had all the law-making power in their hands 
 and they made the very constitutions themselves. Unchecked 
 by either executive or judicial branches of the government, they 
 practically ruled supreme. Well might Jefferson exclaim that 
 this was "an elective despotism" and "not the government we 
 fought for." 3 
 
 The doctrine of the division of powers, as we have seen, meant 
 no more than that no one of the three departments of govern- 
 ment should exercise the constitutional powers of another depart- 
 ment. In this sense of the term, the government of Virginia 
 was a government of divided powers, for the declaration of rights 
 
 Jefferson, however, in his plan of a government for Virginia (1783) proposed 
 a council of revision with an organization and powers much like that of New York. 
 See his Notes on Virginia, app. ii. 
 
 1 Cf. J. Allen Smith, The Spirit of American Government, ch. ii. 
 
 1 See his Notes on Virginia, ch. xiii.
 
 56 STATE GOVERNMENT IN UNITED STATES 
 
 explicitly stated that the government should be one of divided 
 powers, and the constitution enumerated the powers which each 
 of the three departments was to enjoy. "But no barrier was 
 provided between these several powers. The judiciary and 
 executive members were left dependent on the legislative, for 
 their subsistence in office, and some of them for their continuance 
 in it. If, therefore, the legislative assumes executive and judi- 
 ciary powers, no opposition is likely to be made ; nor, if made, 
 can it be effectual ; because in that case they may put their pro- 
 ceedings into the form of an act of assembly, which will render 
 them obligatory on the other branches. They have accordingly, 
 in many instances, decided rights which should have been left 
 to judiciary controversy; and the direction of the executive, 
 during the whole time of their session, is becoming habitual and 
 familiar." l It thus becomes clear that, as Madison observed, 
 "a mere demarcation on parchment of the constitutional limits 
 of the several departments is not a sufficient guard against those 
 encroachments which lead to a tyrannical concentration of all 
 the powers of government in the same hands." 
 
 THE CENSORIAL SYSTEM 
 
 In Pennsylvania the framers of the original constitution of 
 1776 did not expressly affirm their belief in the doctrine of the 
 division of powers, but they practically affirmed it, at least in 
 part, by providing that the supreme legislative power should be 
 vested in a house of representatives and the supreme executive 
 power in a president and council. The former was granted all 
 the powers "necessary for the legislature of a free state or com- 
 monwealth : But they shall have no power to add to, alter, 
 abolish, or infringe any part of this constitution." The supreme 
 executive council consisted of twelve persons elected by the free- 
 men of the city of Philadelphia and of the counties, one from the 
 city and one from each of the counties, for terms of three years, 
 one third retiring annually. The governor was chosen annually 
 from among the members of the council by the house of represen- 
 tatives and council in joint session, but had no greater powers 
 
 1 Jefferson, Notes on Virginia, ch. xiii. 
 
 2 The Federalist, no. 48.
 
 57 
 
 than any other councillor. The council possessed the ordinary 
 executive powers, including that of granting pardons, subject to 
 certain exceptions, and also the power to lay embargoes during 
 recesses of the house of representatives for periods not exceeding 
 thirty days. The councillors were furthermore charged with the 
 duties of preparing such business as they should judge necessary 
 to lay before the house of representatives, and of sitting as judges 
 to hear cases of impeachment, taking to their assistance for ad- 
 vice only the justices of the supreme court. The framers of this 
 Pennsylvania constitution, however, did not trust solely to "a 
 mere demarcation on parchment of the constitutional limits of 
 the several departments" to protect the people against oppres- 
 sion and tyranny. They introduced a special organ of govern- 
 ment for this purpose, called the council of censors. 
 
 The Pennsylvania council of censors was composed of twenty- 
 four censors, two being elected by the people of each of the eleven 
 counties and the city of Philadelphia. The censors were to be 
 chosen every seventh year, and were charged with the duties of 
 inquiring whether the constitution had been preserved inviolate, 
 and whether the legislative and executive branches of govern- 
 ment had performed their duties properly without assuming un- 
 constitutional powers. They were also to inquire whether the 
 public taxes had been justly levied and collected, in what manner 
 they had been spent, and whether the laws had been duly exe- 
 cuted. They were empowered to send for persons, papers, and 
 records, to pass public censures, to order impeachments, and to 
 recommend to the legislature the repeal of such laws as should 
 appear to them to have been enacted contrary to the principles 
 of the constitution. 1 Furthermore, they were empowered to call 
 by a two-thirds vote a constitutional convention to amend any 
 article of the constitution which might be defective, explain such 
 as might be thought not clearly expressed, and add such as might 
 be necessary for the preservation of the rights and happiness of 
 the people: "But the articles to be amended, and the amend- 
 ments to be proposed, and such articles as are proposed to be 
 added or abolished, shall be promulgated at least six months 
 before the day appointed for the election of such convention, for 
 the previous consideration of the people, that they may have an 
 
 1 Pennsylvania Constitution of 1776, Art. 47.
 
 58 STATE GOVERNMENT IN UNITED STATES 
 
 opportunity of instructing their delegates on the subject." 
 The state of Vermont, which in its constitution of 1777 followed 
 in most respects the model of the government of Connecticut, 
 also adopted this institution of a council of censors. 1 
 
 APPEALS TO THE PEOPLE 
 
 In lieu of such periodical appeals to the people to correct in- 
 fractions of the constitution, several other states provided for ap- 
 peals to be taken as occasion should require. Thus the Massa- 
 chusetts constitution of 1780 ordered the legislature to submit to 
 a vote of the people in the year 1795 the question whether they 
 desired a fresh constitutional convention to be called, "in order 
 the more effectually to adhere to the principles of the constitu- 
 tion, and to correct those violations which by any means may 
 be made therein, as well as to form such alterations as from ex- 
 perience shall be found necessary." 2 By implication, this article 
 recognizes a power in the legislature to submit the question of a 
 call for a constitutional convention at any time. In New Hamp- 
 shire the practice was established of taking the sense of the voters 
 every seven years as to the need for a constitutional convention. 3 
 In Georgia it was provided that the legislature should call a con- 
 stitutional convention upon the receipt of petitions from a 
 majority of the counties of the state signed by a majority of 
 voters in each county, specifying the alterations to be made. 4 
 This cumbersome form of the constitutional initiative, however, 
 proved unworkable, and was omitted from the constitution of 
 1789. In New York, where the doctrine of the division of powers 
 was first worked out in a logical manner, the responsibility for the 
 prevention of the violation of the constitution by the enactment 
 of laws "inconsistent with the spirit" thereof was expressly 
 vested in the council of revision, 6 but for the further protection 
 of the people a court for the correction of errors was created, 
 
 1 The Vermont council was composed of thirteen censors, elected at large by the 
 people of the whole state, not by districts as in Pennsylvania. The history of these 
 Councils of Censors will be discussed later. See ch. iv. 
 
 1 Ch. vi, art. x. 
 
 * See Constitution of 1783 and of 1792, art. 99 (100). 
 
 4 See Constitution of 1777, art. 63. 
 
 8 Art. iii.
 
 THE ORIGINAL FORMS U* STATE GOVERNMENT 59 
 
 consisting of the lieutenant-governor, the members of the senate, 
 the chancellor, and the judges of the supreme court. 1 No special 
 arrangements for protection against violations of the constitu- 
 tion, either by appeals to the people or otherwise, were made in 
 any other of the original state constitutions. Apparently the 
 people generally put their trust in the power of public opinion 
 and the good faith of their representatives. Thus in Connecti- 
 cut it was expressly declared that "free and annual elections" 
 were " the best security for the preservation of civil and religious 
 rights and liberties." 2 
 
 Jefferson's plan for the preservation of state constitutions in- 
 violate was to provide for an appeal to the people, in the form 
 of a call for a constitutional convention, whenever two-thirds of 
 the members of each of any two of the departments of government 
 should deem it necessary. 3 Madison, however, had little confi- 
 dence in the value of appeals to the people, no matter how pro- 
 vided. Writing in 1788, after more than a decade of experience 
 with the governments of the original states, he declared that the 
 chief danger of violations of the constitutions was to be appre- 
 hended from the legislatures, and that whether the appeals to 
 the people were taken periodically or occasionally, they did not 
 promise adequate relief. A constitutional convention, he argued, 
 would be composed of the same elements as a legislature, and 
 would be inclined to take the same view of constitutional ques- 
 tions. Even if the precaution were taken of excluding from the 
 convention all persons connected with the government whose acts 
 were to be reviewed, the result, he believed, would be substan- 
 tially the same. 4 "To what expedient, then, shall we finally 
 resort, for maintaining in practice the necessary partition of 
 power among the several departments, as laid down in the con- 
 stitution?" "The only answer that can be given is, that as all 
 these exterior provisions are found to be inadequate, the defect 
 must be supplied, by so contriving the interior structure of the 
 government as that its several parts may, by their mutual rela- 
 tions, be the means of keeping each other in their proper places 
 . . . the great security against a gradual concentration of the 
 several powers in the same department consists in giving to those 
 
 1 Art. xxzii. * See his Notes on Virginia, app. ii. 
 
 1 See i Poore's Constitutions, 257. * The Federalist, nos. 49, 50.
 
 6o STATE GOVERNMENT IN UNITED STATES 
 
 who administer each department the necessary constitutional 
 means and personal motives to resist encroachments of the 
 others." 1 
 
 THE DOCTRINE OF CHECKS AND BALANCES 
 
 Thus the doctrine of the division of powers becomes the doc- 
 trine of checks and balances. As Jefferson himself had said : 
 "The powers of government should be so divided and balanced 
 among several bodies of magistracy, as that no one could tran- 
 scend their legal limits without being effectually checked and re- 
 strained by the others." 2 But during the half dozen years 
 intervening between the time when Jefferson wrote his Notes on 
 Virginia and that when Madison contributed to the Federalist, 
 a change was taking place in the significance of the doctrine of 
 checks and balances. As we have seen, not only Jefferson but 
 also those who framed several of the original state constitutions 
 looked to the people, or, strictly speaking, the electorates, as the 
 special guardians of the constitutions. Madison, however, had 
 discovered something in the doctrine itself which rendered super- 
 fluous the practice of appealing to the people to correct infrac- 
 tions of the constitutions. That something was the power of 
 judicial review of unconstitutional acts of legislatures and 
 executives. 
 
 There is no evidence, as we have seen, in the constitution or 
 bill of rights of any one of the original states, that the judiciary 
 were originally looked to by the Fathers as the special guardians 
 of the constitutions. On the contrary, the implication is de- 
 cidedly the other way. In New York, for instance, the judiciary 
 were certainly expected to accept the construction of the consti- 
 tution adopted by the council of revision, or in the last instance 
 by the court of errors, a court in which the judicial element was 
 in a minority. In most of the states, moreover, the doctrine of 
 the division of powers was either not logically worked out, as it 
 
 1 The Federalist, no. 51. 
 
 2 Notes on Virginia, ch. xiii. Cf. J. Q. Adams, in the "Letters of Publicola," 
 no. vii. "Divide your power so that every part of it may at all times be used for 
 your advantage, but in such a manner that your rights may never depend upon the 
 will of one man or body of men. . . ." Writings of J. Q. Adams (Ford's ed.), 
 i, P- 93-
 
 THE ORIGINAL FORMS OF STATE GOVERNMENT 61 
 
 was in New York, or not recognized at all. Thus, in Rhode 
 Island, the supreme court, in the celebrated case of Trevett v. 
 Weeden, decided in 1786, refused to enforce a legal tender law 
 devised to compel the circulation of paper money. 1 The legis- 
 lature, however, being determined to have its will executed, 
 declined to reelect those judges the following year, and filled 
 their places with others more subservient. Doubtless there were 
 not a few instances of cases decided during the first years of the 
 original state governments in which courts held acts of legisla- 
 tures unconstitutional. 2 The governments of the original states, 
 however, were for the most part governments characterized by 
 the supremacy of the legislature, and if judicial interference with 
 legislative acts was sometimes tolerated, the operation of the 
 governmental system was not consciously altered thereby. In 
 Massachusetts the declaration of rights laid unusual stress on the 
 importance of the independence of the judiciary. 3 The consti- 
 tution further provided for the independence of judges by declar- 
 ing that they should receive fixed and honorable salaries, which 
 should not be diminished during the term of the individual judge. 
 Yet the governor, with the consent of his council, if supported 
 by a bare majority of the legislature, could remove any judge 
 without trial. 4 Moreover, the executive and the legislative 
 branches were authorized to "require the opinions of the jus- 
 tices of the supreme judicial court upon important questions of 
 law and upon solemn occasions." 5 In cases of doubt concerning 
 the true meaning of the constitution, the judiciary could thus be 
 required to express their views before the other branches acted. 
 Doubtless it was intended that the law-making authorities, the 
 legislature and governor, should give due consideration to the 
 opinions of the judges in matters concerning the construction 
 and interpretation of the constitution. But their decision, when 
 made, was expected to be final. It was not intended to leave 
 the last word in constitutional interpretation to the courts. The 
 main reliance of the framers of the Massachusetts constitution 
 for the protection of the rights of the people was placed in the 
 
 1 See Cambridge Modern Hhlory, vol. vii, p. 313. 
 
 2 Brinton Coxe, Judicial Power and Unconstitutional Legislation. See also 
 C. G. Haines, The American Doctrine of Judicial Supremacy, ch. iv. 
 
 * Art. xik. 4 Ch. iii, art. i. 6 Ch. iii, art. ii.
 
 62 STATE GOVERNMENT IN UNITED STATES 
 
 legislature. 1 This was also the case in the beginning throughout 
 the United States. 
 
 The speedy transfer of this reliance from the legislatures to 
 the courts was, however, inevitable from the very nature of the 
 American political system. By any logical interpretation of the 
 doctrine of the division of powers, it was necessary that each de- 
 partment of government be recognized as the judge of the nature 
 and extent of its own duties and powers. If the legislature, for 
 example, might not only judge of the extent of its own powers, 
 but bind the other departments to accept its opinions on all 
 questions involving a conflict of authority between different 
 departments, the supremacy of the legislature would be abso- 
 lutely unchecked. In order to maintain even the semblance of 
 a proper balance, no department could be allowed to define the 
 constitutional rights of any other department without giving 
 that other department an opportunity to be heard. Where de- 
 partments, however, are theoretically coordinate and equal, that 
 which acts last has a clear advantage over the others. Now, in 
 the ordinary course of government through law, the department 
 which acts last upon questions involving the interpretation of 
 the constitution is the judiciary. The legislature, to be sure, 
 may appeal from a decision of the courts by setting in motion 
 the machinery of constitutional amendment, but if this machinery 
 is hard to move, or if public opinion is opposed to its frequent 
 use, the opinions of the legislature on constitutional questions, 
 though theoretically of equal validity, will actually become sub- 
 ordinate to those of the courts. Unless, therefore, the early state 
 legislatures kept a tight hold on the machinery for the amendment 
 and revision of the constitutions, the judiciary, acting last on 
 disputed questions of constitutional law, would be likely to make 
 their views most effective. That the judiciary would not hesitate 
 to express their views, when at variance with those of the legis- 
 lature, was quickly made manifest. 2 
 
 The courts were clearly destined to become the special guardians 
 of the constitutions, because the power of judicial review was in- 
 herent in the American governmental system. Moreover the 
 
 1 See declaration of rights, art. xxii. 
 
 2 See C. G. Haines, The American Doctrine of Judicial Supremacy, Table of early 
 cases, pp. 74-77-
 
 THE ORIGINAL FORMS OF STATE GOVERNMENT 63 
 
 Fathers quickly perceived that the principle of the division of 
 powers was broad enough to include the electorate among the 
 organs of government between which the powers of government 
 were to be shared. It was the people who were to be protected 
 against oppression and tyranny, and the tyranny of a majority 
 of the electorate was felt to be as undesirable as any other kind 
 of tyranny. Not the least important of the checks and balances 
 therefore were those which were designed to prevent a casual 
 majority of the voters from changing the established forms of 
 government or principles of legislation without the approval of 
 public opinion. The voters were checked by the necessity of 
 accomplishing their purposes through the other organs of gov- 
 ernment, and the power of the electorate was balanced by the 
 powers vested in constitutional conventions, legislatures, execu- 
 tives, and judiciary. These powers, as for example in many 
 states the powers of the constitutional convention, were not 
 necessarily contained in the written constitution, but were im- 
 plied by the nature of the principles, that is, in the very spirit, 
 of American government. Since the sovereignty of the people 
 was to be maintained through the reign of law, it inevitably fol- 
 lowed that the judiciary, if made even slightly independent of 
 the other departments of government, would assume the task of 
 preserving inviolate the fundamental principles of American 
 government, as understood by them. In practice this meant that 
 the courts of law would intervene with a judicial veto to protect 
 the rights of minorities against encroachments of the majority 
 acting through the organs of government most directly controlled 
 by the electorate. 1 Thus the function of judicial review came 
 to be associated with the protection of the rights of the people. 2 
 
 1 G. C. Tiedeman, The Unwritten Constitution of the United States, ch. xii. 
 
 1 J. B. Thayer, "The Origin and Scope of the American Doctrine of Constitu- 
 tional Law," in his Legal Essays, pp. 1-41. Cf. the same author's Life of John Mar- 
 shall, chs. iii-v. There has been much controversy concerning the exact time when 
 the doctrine of judicial review was recognized by the American people. See A. C. 
 McLaughlin, The Courts, the Constitution, and Parties, and the review thereof by 
 C. A. Beard in the American Historical Review, January, 1913, pp. 378 f. ; see also 
 C. A. Beard, The Supreme Court and the Constitution, and J. H. Dougherty, Power 
 of Federal Judiciary over Legislation, and the reviews thereof hy W. F. Dodd in the 
 same, pp. 380 f. See also Max Farrand, The Framing of tlie Constitution of the 
 United States. But cf. H. A. Davis, "Amendment of Legislation by the Supreme 
 Court" in the Am. Pol. Sci. Rev., vii, pp. 541-587. Cf. also, ibid., "The Judicial
 
 64 STATE GOVERNMENT IN UNITED STATES 
 
 This power of review, however, was not final. It was in its 
 turn subject to the sovereign power of the people. 1 Writing in 
 1820 Jefferson found it necessary to say: 2 "You seem ... to 
 consider the judges as the ultimate arbiters of all constitutional 
 questions a very dangerous doctrine indeed, and one which 
 would place us under the despotism of an oligarchy. Our judges 
 are as honest as other men, and not more so. They have, with 
 others, the same passions for party, for power and for the privi- 
 lege of their corps. Their maxim is, Boni judicis est amplicare 
 jurisdictionem: and their power is the more dangerous as they 
 are in office for life, and not responsible, as the other function- 
 aries, to the elective control. The Constitution has created no 
 such single tribunal, knowing that, to whatever hands confided, 
 with the corruptions of time and party, its members would be- 
 come despots. It has more wisely made all the departments 
 co-equal and co-sovereign within themselves." There can be 
 no doubt that Jefferson set forth the true doctrine of the ease. 
 The judges in ten of the original states (that is, in all except 
 Rhode Island, Connecticut, and Pennsylvania) were arbiters of 
 all constitutional questions, as has been shown, in the sense that 
 they had the same right as the other departments of government 
 to construe the constitution. They possessed the important 
 advantage, moreover, of acting upon constitutional questions as 
 a rule after the other departments of government had acted. 
 But the ultimate arbiters were the people. The real question 
 at stake was that concerning the mode in which the opinion 
 of the people should be ascertained and made effective. As we 
 have seen, several different modes were tried, but, as the event 
 
 Veto." It seems clear that the doctrine grew rapidly in favor among leading 
 Federalist politicians, and although it was not expressly endorsed in the federal 
 Constitutional Convention of 1787, it probably would not have been opposed by the 
 majority of the members. The doctrine was set upon its feet, as a national prin- 
 ciple of government, by the federal Supreme Court under John Marshall, and 
 thereupon seems to have been accepted almost unquestioned, not only by the state 
 courts but by the legislatures and people generally. Yet as late as 1808 two 
 judges of the supreme court of Ohio were impeached for declaring an act of the legis- 
 lature unconstitutional, and were removed from office. See Cooley on Constitutional 
 Limitations, 7th ed., p. 229, note. See also C. G. Haines, The American Doctrine 
 of Judicial Supremacy. 
 
 1 See J. Q. Adams, "Letter of Menander" (1792), in Writings of J. Q. Adams 
 (Ford's ed.), i, p. 127. 
 
 * Jefferson's Writings, vii, p. 177.
 
 THE ORIGINAL FORMS OF STATE GOVERNMENT 65 
 
 proved, none was satisfactory, and in default of a better solution 
 of the problem, the task of interpreting the constitution was 
 finally permitted to rest with the judiciary during the intervals 
 between constitutional conventions. 1 
 
 Thus the doctrine of the division of powers was perfected by 
 the invention, or better the discovery, of the doctrine of judicial 
 review, and the system of checks and balances was made a work- 
 able substitute for that of legislative supremacy. The fact re- 
 mains, however, that in the beginning the latter system rather 
 than the former chiefly prevailed in practice. 
 
 SPECIAL PRIVILEGES FOR PROPERTY 
 
 There was another aspect of the doctrine of the division of 
 powers, which was not mentioned in any of the original declara- 
 tions of rights. This was the social aspect of the doctrine. 
 "Most of the political writers of modern times, who have had 
 any idea of a free government, have contended for a division of 
 the legislative power. They would have, in the legislature, one 
 body of men, representing the commonalty ; a senate, represent- 
 ing the wealthy and more honorable part of the community; 
 and the head of the executive, whether king, president, or gov- 
 ernor, representing the individuality or sovereignty of the state. 
 These bodies, for the purpose of maintaining an exact balance of 
 the several interests in the state, are to have a mutual negative 
 in passing all laws. The balance is to be supported, and the 
 happiness of the people secured, by a mutual opposition of rights, 
 interests, and powers." 2 
 
 The great advocate of a system of social, as well as political, 
 checks and balances was John Adams. 3 Nor was he alone in 
 these views. In the original state constitutions, the balance of 
 the rights of property against the rights of mere man by the 
 
 1 For a discussion of the original position of the judiciary in Vermont, where 
 the same principles of legislative supremacy prevailed as in Rhode Island, Con- 
 necticut, and Pennsylvania, see Chipman's Sketches of the Principles of Government 
 (i793). PP- 11^-127. 
 
 * See Chipman's Sketches of the Principles of Government, sketch iv, sec. Hi. 
 
 * See the Preface to his Defence of the Constitutions of Government of the United 
 States of America, especially at p. xiii. See also C. M. Walsh, The Political Science 
 of John Adams. 
 
 w
 
 66 STATE GOVERNMENT IN UNITED STATES 
 
 division of the legislature into two branches and the requirement 
 of a higher property qualification from members of the upper 
 house than from members of the lower was the general rule. 
 The most extreme instance was in South Carolina, where by the 
 constitution of 1778 senators were required to possess two thou- 
 sand pounds in land, representatives, fifty acres of land or 
 their equivalent. In North Carolina the constitution of 1776 
 granted the franchise for electors of members of the lower house 
 to all tax-payers, 1 and restricted the right to vote for members 
 of the senate to owners of not less than fifty acres. 2 In New 
 York the electorate for the upper house was restricted by a much 
 higher property qualification than that of ordinary electors, the 
 senatorial and gubernatorial electors being less than one-fourth 
 as numerous as the latter. In Massachusetts the arrangement in 
 the rejected constitution of 1778 was much like that in North 
 Carolina. In the constitution of 1780 the same effect was sought 
 through a different system of apportionment. The franchise 
 was the same for electors of senators and representatives, but 
 the members of the upper house were apportioned according to 
 taxable property, those of lower according to population. A 
 similar arrangement was adopted in New Hampshire. In Vir- 
 ginia, as indeed in several of the states, qualifications of electors 
 and methods of apportionment of members were the same for 
 both houses, the chief difference being the smaller size of the 
 upper house and in some cases the longer term of its members. 
 Jefferson criticized this arrangement on the ground that the 
 maintenance of two houses, both representing the same electo- 
 rate, served no useful purpose, and declared that if the electorate 
 for the lower house could not be made more popular than that 
 for the upper, one of the houses would be superfluous and should 
 be dispensed with altogether. 3 In Pennsylvania, Georgia, and 
 Vermont the latter view prevailed, and the legislatures of the 
 original state governments consisted of only one house. Man 
 alone was represented. 
 
 Adams's theory of a social as well as a political division of 
 powers and of a corresponding system of checks and balances 
 was, indeed, far from obtaining universal acceptance. The 
 framers of the Pennsylvania constitution of 1776, of whom 
 
 1 Arts, viii, ix. 2 Art. vii. 3 Notes on Virginia, ch. xii.
 
 THE ORIGINAL FORMS OF STATE GOVERNMENT 67 
 
 Franklin was the chief, certainly did not accept it. 1 Jefferson 
 also must be classed among its opponents. It is true that in his 
 plan of a constitution for Virginia, drafted in 1783, he proposed 
 a senate consisting of one-sixth as many members as the lower 
 house and serving for two years instead of one, and to be chosen 
 by colleges of electors representing the voters of the several 
 senatorial districts, as was actually the practice at that time in 
 Maryland. Jefferson's purpose, however, in creating a senate 
 was not to give separate representation to different economic 
 interests and social classes, but to provide for greater delibera- 
 tion in the enactment of laws. As Paine pointed out: "The 
 objection against a single house is, that it is always in a condi- 
 tion of committing itself too soon." 2 On the other hand, demo- 
 crats like Paine saw even more serious objections to two houses, 
 and on the whole were inclined to reject the principle of a bi- 
 cameral legislature. Paine himself advocated a legislature of a 
 single chamber, and the adoption of a system of legislative pro- 
 cedure, designed to encourage the development of responsible 
 legislative committees, as a substitute for a second house. 3 
 Other early democrats, like Chipman, favored the retention of 
 the bicameral system, but expressly repudiated Adams's doctrine 
 of the separate representation of class interests. 4 Adams's 
 theory of class representation, a theory which savors of Polyb- 
 ius and of Machiavelli 5 as much as of Montesquieu, eventually 
 
 1 Adams, Defence (London ed. of 1787), letter xxv, pp. 105-120. 
 
 1 The Rights of Man, pt. ii, p. 34. 3 Ibid., p. 35. 
 
 * See his Sketches of the Principles of Government, pp. 140-142. 
 
 'Adams quotes with great approval the following passage from Machiavelli's 
 Discourse upon the Proper Ways and Means of Reforming the Government of Florence. 
 "There are three orders of men in every state, and for that reason there should 
 be also three ranks or degrees in a republic, and no more; nor can that be said 
 to be a true and durable commonwealth, where certain humors and inclinations 
 are not gratified, which otherwise must naturally end in its ruin. Those who 
 model a commonwealth must take such provisions as may gratify three sorts of 
 men, of which all states are composed; that is, the high, the middle sort, and the 
 low." 
 
 Adams's comment is as follows: "Machiavel by these observations demon- 
 strates that he was fully convinced of this great truth, this eternal principle, with- 
 out the knowledge of which every speculation upon government must be imperfect, 
 and every scheme of a commonwealth essentially defective." John Adams, 
 Defence of the Constitutions of Government of the United States, vol. ii, ch. iv, 
 "Machiavel's Plan of a Perfect Commonwealth." 
 
 In accordance with this principle, Adams in Massachusetts, as also Jay in New
 
 68 STATE GOVERNMENT IN UNITED STATES 
 
 gained for him the distrust of the Jeffersonian republicans and the 
 nickname of ' ' monocrat." Though it was probably held by most 
 of those who later formed the Federalist party, it was never 
 accepted by the American people to the same extent as the more 
 democratic doctrine of the division of powers held by Jefferson 
 and Madison. Though the practice of a separate representation 
 of different social and economic interests survived into the nine- 
 teenth century in several states, it was not further extended in 
 any state except South Carolina, 1 and it was not systematically 
 defended by any prominent statesman except Calhoun. 2 In 
 short, beyond the recognition of the principle that political au- 
 thority should be delegated to a responsible portion of the people 
 to be exercised on behalf of the whole, the attempt to introduce 
 class distinctions into the American political system was out of 
 harmony with the spirit of American life. 
 
 GENERAL CHARACTER OF ORIGINAL STATE GOVERNMENTS 
 
 The true character of the original institutions of state govern- 
 ment is revealed by a comparison with the institutions of colonial 
 government which had gone before. At the close of the colonial 
 period, each colony had its legislative body, elected by the voters, 
 but, except in Rhode Island and Connecticut, possessing prac- 
 tically no independent powers. The representatives of the people 
 could choose a speaker, adopt rules of procedure, and adjourn, 
 but there their autonomous powers ended. In all the colonies 
 except Pennsylvania and Georgia there was also an upper house 
 or council, whose consent was necessary before laws could be 
 enacted or any positive action accomplished. The members of 
 
 York, devised the governorship to represent the higher sort of men, the senate to 
 represent the middle sort, and the house of representatives to represent the lower. 
 Hamilton would have been content to have followed the precepts of Montesquieu 
 literally, and established a government of kings, lords, and commons, but Adams 
 certainly would not have gone so far as that. Needless to say that the opinion 
 of the people of the Revolution was against both Adams and Hamilton and with 
 Jefferson, who repudiated altogether the doctrine of Montesquieu with reference 
 to a social division of powers. Cf. C. M. Walsh, The Political Science of John 
 Adams, chs. 6, 7, and 21. 
 
 1 Constitution of 1790, amendments adopted in 1808. 
 
 2 See John C. Calhoun, Disquisition on Government and Discourse on the Constitu- 
 tion and Government of the United States, pp. 396-406.
 
 THE ORIGINAL FORMS OF STATE GOVERNMENT 69 
 
 this branch of the legislature were appointed by the governor, 
 except in Massachusetts, where they were elected by the lower 
 house subject to the approval of the governor, and in Rhode 
 Island and Connecticut, where they were chosen by the elec- 
 torate. In all the colonies except the last two, the governor was 
 appointed from England, and possessed many important powers. 
 He was commander-in-chief of the armed forces of the colony, 
 appointed the judges and all other civil and military officers, 
 appointed and could suspend the council, convened and could 
 dissolve the legislature, could exercise an unqualified veto on all 
 legislative acts, and had an unrestricted power to pardon offenders. 
 
 The possession of these unlimited powers gave to the royal or 
 proprietary governor complete independence of local control 
 except in the single matter of finance. 1 The use of the judicial 
 veto to maintain imperial sovereignty was unnecessary except in 
 Rhode Island and Connecticut. In those two colonies, appeals 
 to the judicial committee of the privy council could be taken for 
 the purpose of maintaining the supremacy of the laws of Eng- 
 land, in case of a conflict with colonial laws, but not for the pur- 
 pose of enforcing the arbitrary will of the British sovereign. Else- 
 where the power of the lower house to withhold its consent to 
 taxation was the sole political power for the defense of the rights 
 of the colonists. 
 
 Thus the legislatures came to be the people's bulwarks against 
 royal and proprietary tyranny, and after the Revolution naturally 
 retained an undue share of the people's confidence. The result 
 was, that except in Massachusetts, New Hampshire, and New York 
 the doctrine of the division of powers was not followed to the 
 extent of making the three departments of government actually 
 independent and coordinate. On the contrary, the executive 
 was either deprived altogether of its powers of appointment, re- 
 vision, pardon, and legislative control, or greatly limited in their 
 exercise, and the control of the judiciary was also transferred 
 from the executive to the legislature. The reconstruction of the 
 political institutions of the original states was in the main the 
 achievement of a tidal wave of insurgency, which sought expres- 
 sion through the state legislatures. The effect was to establish 
 in practice the supremacy of the legislature, except in Pennsyl- 
 
 1 See E. B. Greene, The Provincial Governor.
 
 70 STATE GOVERNMENT IN UNITED STATES 
 
 vania and Vermont, where an attempt was made to work out the 
 theory of popular sovereignty through the invention of a special 
 organ of the popular will, the council of censors. But the legal 
 supremacy of the legislatures was always subordinate to the 
 political sovereignty of the people, and, as we have seen, it was 
 necessarily expressed through the enactment of law depending 
 for its ultimate force upon the power of public opinion. 
 
 The original state governments were representative democ- 
 racies. They were founded upon written constitutions, setting 
 forth both the rights of the people and the duties of those en- 
 trusted by them with political authority. These constitutions 
 were not intended, however, to be narrowly construed like ordi- 
 nary legal documents. They were political documents to be con- 
 strued broadly, and to reflect the lives and purposes of all the 
 people at all times. The main features of the governments estab- 
 lished in the original states were three in number : (i) the reser- 
 vation of civil rights to the people ; (2) the delegation of political 
 authority to the electorate ; and (3) the division of powers be- 
 tween the legislative, the executive, and the judiciary. The 
 rights reserved to the people fell into three main classes : (i) the 
 right of revolution; (2) the rights essential to the free expres- 
 sion of public opinion ; and (3) the right to law. The delegation 
 of political authority to the electorate implied the existence of a 
 fourth right, the right to vote, vested in those duly qualified for 
 the exercise thereof. The division of powers between coordinate 
 departments of government was designed to make possible the 
 establishment of governments which should be strong enough 
 effectively to foster the common welfare without being so inde- 
 pendent of popular control as to menace the liberties of the 
 people. The acceptance of the principle of the division of 
 powers compelled the recognition of the power of judicial review 
 of all legislative and executive acts involving the interpretation 
 of a constitution. The judiciary thereby became the special 
 guardians of the fundamental law, subject like other depart- 
 ments of government to the sanction of public opinion. 
 
 It is commonly supposed that all the leading principles of the 
 fundamental law of the land were expressed in written constitu- 
 tions. An examination of the original constitutions shows that 
 this supposition is not correct. The most important of the fun-
 
 THE ORIGINAL FORMS OF STATE GOVERNMENT 71 
 
 damental principles of American constitutional law relate to the 
 organization and powers of the constitutional convention. The 
 procedure of the original states, however, with regard to the 
 preparation and adoption of the first state constitutions was far 
 from uniform. The best procedure was not developed until the 
 adoption of the Massachusetts constitution of 1780, the last of 
 the original state constitutions. Only five of the original states, 
 including Vermont, made any provision for constitutional revi- 
 sion by special conventions. Three others made provision for 
 amendment by special legislative action. Six states made no 
 express formal distinction between the process of ordinary statute- 
 making and that of constitution-making. In short, there was 
 nothing in the constitutions or laws of most of the states to pre- 
 vent a revolutionary legislature or convention from usurping 
 unto itself all the powers of government, like the French con- 
 vention of 1792-95. Yet we are safe in asserting that such a 
 usurpation could not have been effected. The unwritten law of 
 the constitution forbade the establishment on American soil of 
 any such tyrannical body as the French convention. 
 
 But what, it is proper to ask, is the sanction by which obedience 
 to the unwritten constitution is ultimately enforced? It is not 
 enough to answer that usurpation would not have been tolerated 
 by an indignant people, and that, if the force of public opinion 
 proved insufficient, it would have been opposed by force of arms. 
 The true answer is, that obedience to the unwritten as well as 
 to the written constitution is enforced by the power of the law 
 itself, for the breach of the fundamental principles of American 
 government, the principles of popular sovereignty and the reign 
 of law, will inevitably bring the offender into conflict with the 
 law of the land. 1 The declaration that "no subject shall be 
 
 1 See Kamper vs. Hawkins, i Virginia Cases, 20 (1793). This was a case in- 
 volving the validity of a statute designed to confer upon certain inferior courts of 
 justice certain judicial powers in equity granted by the constitution of 1776 exclu- 
 sively to the court of chancery. Contrary to the views of those who, like Jefferson, 
 believed that the constitution of 1776 had no more force than an ordinary statute 
 and hence could be freely altered at any time by the legislature, the supreme court 
 held that ordinary statutes in conflict with the constitution were of no effect. See 
 also G. C. Tiedeman, The Unwritten Constitution of the United States, ch. xii, and 
 A..V. Dicey, Introduction to the Study of the Law of the Constitution, ch. xv. There 
 are of course many political customs in the American states of much consequence 
 in practical politics which cannot be ranked among the principles of the unwritten
 
 72 STATE GOVERNMENT IN UNITED STATES 
 
 arrested ... or deprived of his life, liberty, or estate, but by 
 the judgment of his peers or the law of the land" was not in- 
 tended to be an empty phrase. 1 For protection against all but 
 the most violent attacks upon their liberties, the people would 
 look to the law courts. If the judges failed them, there remained 
 the juries, composed of men from their own midst, to interpose a 
 popular veto to schemes of oppression. Any man who had been 
 indicted for a crime might submit his cause to the judgment of 
 the petty jury with confidence that his fate would be decided by 
 those who were his peers and who would be responsible only to 
 their own consciences. 
 
 De Tocqueville, who well understood the spirit of the original 
 judicial system, justly observed that the jury was preeminently 
 a political institution and should be regarded as one form of the 
 sovereignty of the people. 2 "The institution of the jury . . .," 
 he wrote, "places the real direction of society in the hands of the 
 governed, . . . and not in that of the government. Force is 
 never more than a transient element of success, and after force 
 comes the notion of right. A government which should be able 
 to reach its enemies only upon a field of battle would soon be 
 destroyed. The true sanction of political laws is to be found in 
 penal legislation ; and if that sanction be wanting, the law will 
 sooner or later lose its cogency. He who punishes the criminal 
 is therefore the real master of society. Now the institution of 
 the jury raises the people itself ... to the bench of judges. 
 The institution of the jury consequently invests the people . . . 
 with the direction of society." 3 Thus was republican govern- 
 ment founded by the Fathers on the firm basis of a combination 
 of the sovereignty of the people and the reign of law. 4 
 
 constitution. Thus the practice of rotation in office or of restricting the choice 
 of representatives to inhabitants of the district to be represented is more or less 
 strongly established by custom in different localities, but neither is essential to the 
 maintenance of the sovereignty of the people or of the reign of law. Only those 
 practices which are essential to the maintenance of these two fundamental princi- 
 ples are a part of the unwritten constitution. Other legal principles may not be- 
 come a part of the supreme law of the land except by incorporation in a written 
 constitution, and, until so incorporated, have no greater force than that infused 
 into them by public opinion. 
 
 1 See Massachusetts Declaration of Rights, art. xii. 
 
 2 A. de Tocqueville, Democracy in America, i, ch. xvi. 
 8 De Tocqueville, ibid. (Bowen's ed.), i, p. 361. 
 
 4 St. George Tucker, Commentaries on Blackslone, i, pp. 87-92.
 
 CHAPTER IV 
 THE REFORMATION OF STATE GOVERNMENT 
 
 THE foundations of state government were laid upon prin- 
 ciples that have endured. The twin principles of popular 
 sovereignty and constitutional _government furnished a base 
 broad and solid enough to support a stable and progressive 
 political system. The superstructure, however, has undergone 
 important modifications. 
 
 In the beginning, as has been shown, there were three distinct 
 types of state government. These types are best represented by 
 the governments originally established in the three leading states, 
 Virginia, Pennsylvania, and Massachusetts. The government of 
 Virginia, to which the governments of the greater number of 
 states more or less closely conformed, was characterized by the 
 restriction of the electoral franchise to those deemed "fit," and 
 by the supremacy of the legislature in the actual conduct of 
 affairs of state. The government of Pennsylvania differed from 
 that of Virginia in various respects, two of which were particu- 
 larly important. The electorate was much broader than that of 
 Virginia, and the authority of the legislature was limited by the 
 creation of a special organ of the popular will, the council of 
 censors. The government of Vermont resembled that of Penn- 
 sylvania in these respects. The government of Georgia was 
 characterized by the supremacy of the legislature, as in Virginia, 
 but the legislature was a unicameral body and there was a com- 
 paratively broad electorate, as in Pennsylvania. The govern- 
 ment of Massachusetts, like that of Pennsylvania, differed from 
 that of Virginia in two important respects. The executive and 
 judiciary were much more independent of the legislature than in 
 Virginia, and the authority of the legislature was limited by the 
 grant of special powers to the executive and judiciary. The gov- 
 ernment of New Hampshire closely resembled that of Massa- 
 
 73
 
 74 STATE GOVERNMENT IN UNITED STATES 
 
 chusetts ; that of New York was based on similar principles, but 
 resembled it less closely. In Rhode Island and Connecticut the 
 governor was chosen by the people, as in Massachusetts, but the 
 legislature was practically supreme, as in Virginia. Such was the 
 diversity in the forms of government in the original states. 
 
 THE BEGINNING OF REFORM 
 
 It was impossible that such wide variations in the political 
 institutions of the states should long endure. In practice it would 
 happen that some of them would work better than others, and 
 those that seemed to work best would naturally become models 
 for general imitation. Moreover, theoretically, if the political 
 theory of the Revolution be taken as a guide, some of these 
 forms of government were certainly much less perfect than others. 
 Jefferson, the most popular interpreter of Revolutionary political 
 theory, was not altogether satisfied with any of them. In 1783, 
 when he thought there was to be a constitutional convention in 
 Virginia for the purpose of revising the original form of govern- 
 ment, he drafted a model constitution in which his ideas are clearly 
 set forth. Although Jefferson's plan was never adopted in any 
 state, it is now of greater interest than any of the original plans 
 of government which were actually put into operation, for it is 
 the most perfect expression of the Revolutionary theories of 
 state government. It is evident that he was greatly dissatisfied 
 with the existing constitution of his own state. The changes 
 which he proposed are numerous. They all, however, fall under 
 one or the other of two heads. First, there are those which were 
 intended to broaden the electorate and strengthen its control 
 over the other organs of government and over the constitution 
 itself. Secondly, there are those which were intended to bring 
 about a more effective division of powers. The constitutional 
 history of the states since Jefferson's time is a history of the tri- 
 umph of Jeffersonian principles and of the consequences of that 
 triumph. 
 
 The constitutions of Georgia and Pennsylvania were the first 
 to be reformed. Doubtless the adoption of an effective system 
 of checks and balances in the Federal Constitution of 1787 
 accelerated the process in all the states where the original division
 
 THE REFORMATION OF STATE GOVERNMENT 75 
 
 of powers was defective. But in those two states the change 
 was brought abou.t earlier than elsewhere by the manifestly un- 
 satisfactory working of their original institutions. In Georgia 
 the only check upon the supremacy of the single-chambered legis- 
 lature under the constitution of 1777 was that afforded by the 
 direct action of the people through the juries and through the 
 system of constitutional amendment. The juries were the 
 judges both of the law and of the facts, and no alterations could 
 be made in the constitution except by a constitutional convention, 
 which the legislature was to call together upon receipt of a peti- 
 tion setting forth the desired amendments and signed by a 
 majority of the voters in a majority of the counties. The latter 
 provision proved to be unworkable and the former inadequate. 
 In 1789 the original constitution was abandoned, and a new 
 one adopted without regard to the prescribed method of con- 
 stitutional amendment. A bicameral legislature was created, 
 the executive council was abolished and its duties for the most 
 part transferred to the newly created senate, and the governor, 
 though still dependent on the legislature for his election, was 
 armed with the veto power. The influence of the Federal Con- 
 stitution is apparent. Thus the original system of legislative 
 supremacy gave way to a form of government somewhat more 
 consistent with Jeffersonian principles. 
 
 THE REFORM OF THE CENSORIAL SYSTEM 
 
 The most original feature of the Pennsylvania constitution of 
 1776 was the council of censors. The purpose of this institution 
 was to preserve the constitution against infraction. This was 
 to be accomplished, as has already been pointed out, partly by 
 protecting the several departments from encroachments upon 
 one another's powers, but especially by protecting the people from 
 encroachments upon their reserved rights by any of the depart- 
 ments. To accomplish these purposes, the council of censors 
 was authorized to suggest to the legislature the repeal of uncon- 
 stitutional legislation, or the enactment of legislation required 
 for the proper performance of constitutional duties, and to 
 censure public officers deemed guilty of misbehavior. It could 
 order impeachments, and, in case of need, call a convention to
 
 76 STATE GOVERNMENT IN UNITED STATES 
 
 consider the amendment of the constitution. The council of 
 censors was free to exercise any or all of those various powers at 
 discretion, and there was no means of holding it responsible for a 
 discreet exercise thereof. The operations of the first council, 
 elected in 1783, demonstrated the unwisdom of such a combina- 
 tion of legislative, executive, and judicial functions in a single 
 irresponsible body. Madison has faithfully recorded the results 
 of that experience. 1 The members of the council were for the 
 most part persons who had been active in the affairs of the gov- 
 ernment the conduct of which they were authorized to review. 
 As might be expected, they brought to their new duties a thor- 
 oughly partisan spirit. "Throughout the continuance of the 
 council, it was split into two fixed and violent parties." This 
 was the first cause of the failure of the censorial system. Sec- 
 ondly, the council itself was quite as liable to err in its interpre- 
 tation of the constitution as the avowedly partisan bodies upon 
 which it professed to sit in judgment. Finally, says Madison, 
 "I have never understood that the decisions of the council on 
 constitutional questions, whether rightly or erroneously formed, 
 have had any effect " in varying the practices which it undertook 
 to censure. 
 
 In 1790, when the election of the second council of censors was 
 in order, the legislature, with the approval of public opinion, but 
 without any express constitutional authority, called a consti- 
 tutional convention instead. This convention adopted a new 
 constitution, providing for the abolition of the council of censors 
 and of the original executive council. It substituted therefor 
 a state senate to serve as a check on the house of representatives, 
 a single chief executive elected directly by the people, armed with 
 the veto power and unhampered by special executive councillors, 
 and an independent judiciary. Indeed most of the principal 
 features of the Massachusetts constitution were adopted, with the 
 exception that the senate, instead of a special executive council, 
 was associated with the governor in the making of executive 
 appointments. At the same time the electorate remained more 
 democratic than in Massachusetts. Probably Jefferson would 
 have pronounced the Pennsylvania constitution of 1790 the most 
 satisfactory then in force in the states. 
 
 1 The Federalist (Ford's ed.), no. 50.
 
 THE REFORMATION OF STATE GOVERNMENT 77 
 
 The censorial system endured for a much longer period in 
 Vermont. In that state censors were elected from the state at 
 large, and not by districts as in Pennsylvania, and members of 
 the government were ineligible. The system seems to have 
 worked much better in Vermont than in Pennsylvania, partly 
 no doubt because party lines were less closely drawn in the former 
 state than in the latter, and partly because the system of election 
 made the council a more homogeneous and responsible body. 
 The Vermont council of censors met altogether thirteen times. 
 Thrice it adjourned without proposing any changes in the con- 
 stitution of the state. Ten times it proposed amendments and 
 called a convention to consider their adoption. Twice the pro- 
 posed amendments were adopted in part, four times they were 
 adopted in their entirety, and four times they were rejected. 
 In 1836 the transformation of the executive council into a state 
 senate terminated the unicameral legislative system, and in 1870 
 the adoption of the censors' proposal that no more councils of 
 censors be elected put an end to the censorial system. With the 
 abolition of the Vermont council of censors disappeared the last 
 vestiges of the peculiar Pennsylvania forms of state government. 1 
 
 The failure of the censorial system did not mean that there was 
 no need of any special arrangement to preserve the constitution 
 inviolate. In Pennsylvania, according to Madison's report, the 
 constitution had been violated many times before the election of 
 the first council of censors. 2 Laws had been passed without the 
 due public notice required by the constitution. Legislative 
 powers had been exercised by the legislature which were not 
 granted to it by the constitution. Executive powers also had 
 been usurped. Salaries of judges had been reduced in order to 
 render them more subservient, and lawsuits which should have 
 been decided by the judiciary had frequently been decided by the 
 legislature. It is true that many of these violations had occurred 
 during the period of active military operations, but it is equally 
 true that the record of the Pennsylvania government was be- 
 smirched with much unconstitutional conduct that was inex- 
 cusable. 
 
 1 L. H. Header, " The Council of Censors," in Papers from th* Historical 
 
 Seminary of Brown University (1899). 
 1 The Federalist (Ford's ed.), no. 48.
 
 78 STATE GOVERNMENT IN UNITED STATES 
 
 The censorial system, and with it the Pennsylvania form of 
 government as a whole, failed because it did not satisfy the 
 requirements of American democracy. The Pennsylvania form 
 was intended to be democratic. Actually the procedure for the 
 revision of the constitution under the censorial system was less 
 democratic than that originally adopted in Massachusetts, since 
 the council of censors stood between the people and the consti- 
 tutional convention. The council of censors was intended to 
 safeguard the constitutional division of powers. Actually it 
 violated the principle of the division of powers by concentrating 
 in its own hands arbitrary and yet ineffective powers of all kinds. 
 Regarded as a legislative body, it was impotent except to call a 
 constitutional convention. As an instrument of economy and 
 efficiency in the executive department, it was useless. In the 
 exercise of its judicial powers, it was partisan and pernicious. 
 In short, down to 1790 the censorial system in Pennsylvania had 
 been in practice a system of unchecked legislative supremacy. 
 
 The revision of the original Georgia and Pennsylvania consti- 
 tutions marked the beginning of a general process of constitutional 
 development, characterized by the gradual democratization of 
 the forms of government and the redivision of powers along the 
 lines demanded by the Jeffersonian political theory. The new 
 states, as they came into the Union, quickly showed the influence 
 of Jeffersonian ideas. The older states in some cases were 
 slower to abandon their original aristocratic prejudices and to 
 discard the system of legislative supremacy. The extraordinary 
 success of the "more perfect union" certainly had much to do 
 with the general adoption of more effective arrangements for the 
 division of powers, but, as will be shown more clearly in the next 
 chapter, the logic of events everywhere favored the redivision of 
 powers. The explanation of the progress of democracy in the 
 government of the states must be sought in the economic and 
 social conditions of American life. The dominant fact in the life 
 of the American people during the century following the Revolu- 
 tion was the subjugation of the wilderness. The tone of Ameri- 
 can society was derived from the tone of society on the frontier. 
 But the winning of the west not only opened up vast stores of 
 material wealth for the American people, it also enriched their 
 moral fiber. It stimulated above all the virtues of self-reliance
 
 THE REFORMATION OF STATE GOVERNMENT 79 
 
 and personal initiative. Every man who was able and willing 
 to toil could be the master of his destiny. The resulting popular 
 self-confidence was the dominant fact in the development of the 
 political institutions of the states. The political fruit, so to speak, 
 of the frontier was manhood suffrage and the general democratiza- 
 tion of the forms of state government. 
 
 MANHOOD SUFFRAGE 
 
 The right to vote, or the right of suffrage, is conferred by the 
 state, being usually prescribed in the state constitution, subject 
 to the provision of the Federal Constitution that the right of citi- 
 zens to vote shall not be denied or abridged on account of race, 
 color, or previous condition of servitude. This clause of the 
 Federal Constitution seems to imply that the suffrage is one of the 
 normal rights of citizenship, but the states have not generally 
 recognized it as such. In the beginning, as has been shown, the 
 original states conferred the suffrage on grounds of political expe- 
 diency, jealously withholding it from those deemed incapable of 
 exercising the franchise to the common advantage. This attitude 
 was quaintly expressed in the constitution of Vermont (1777), 
 which stipulated that every freeman might vote "who has a 
 sufficient interest in the community." The evidence of sufficient 
 interest chiefly required in the original states was the possession 
 of a certain amount of property. Jefferson, writing shortly 
 after the Revolution, declared that these requirements were too 
 severe, pointing out that in Virginia they disfranchised the ma- 
 jority of the able-bodied men in the state. Thus dissatisfaction 
 with the qualifications for the suffrage existed at the very begin- 
 ning of the constitutional history of the states, and dissatisfaction 
 of one sort or another has persisted until the present. 
 
 There have been two conflicting tendencies in the development 
 of the qualifications for the suffrage. On the one hand, the 
 belief in the natural nobility of man, or in equal rights, as the 
 phrase ran, leads easily to the conviction that the right to vote 
 should be included among those to which men are by nature 
 entitled. If all men are "equal," particularly if they have an equal 
 right to the pursuit of happiness, and if the electoral franchise 
 is an important means of engaging in such a pursuit, then all men
 
 80 STATE GOVERNMENT IN UNITED STATES 
 
 should have an equal right to vote. The theory of natural rights 
 was supported by more practical considerations, such as the in- 
 justice of withholding the vote from landless and even moneyless 
 artisans and craftsmen who nevertheless help support the govern- 
 ment by the payment of taxes, directly or indirectly, and defend 
 it by bearing arms. These considerations were reenforced by 
 the conditions of life in most parts of the Union, especially upon 
 the Western frontier. Social democracy on the frontier inevi- 
 tably gave rise to political democracy, and the same result was 
 facilitated in the older parts of the Union by the competition of 
 parties for popular support. Before the close of the eighteenth 
 century Vermont, Kentucky, and Tennessee came into the Union 
 with the principle of manhood suffrage practically established, 
 if not explicitly recognized, in their constitutions. The states of 
 the old Northwest and Southwest, entering the Union early in the 
 nineteenth century, often included in their electorates not only 
 all adult white male citizens, native and naturalized, but also 
 aliens, even those who had not declared their intention to become 
 naturalized. The original states were slower to adopt the prin- 
 ciple of manhood suffrage, and less inclined to grant the franchise 
 to foreign-born males who had not been admitted to citizenship. 
 Massachusetts, however, extended the suffrage to all poll-tax- 
 paying citizens in 1820; New York broadened the franchise in 
 1821 and established manhood suffrage for white male citizens in 
 1826 ; Virginia did likewise in 1830 and 1850, respectively. 
 Rhode Island was the only state in which resistance to the exten- 
 sion of the suffrage led to violence. There, after the suppression 
 of Dorr's rebellion, the new constitution of 1842 put an end to 
 property qualifications in the election of state officers. With the 
 triumph of the advocates of equal suffrage for adult male citizens 
 of the white race the principle of manhood suffrage, so-called, was 
 regarded as established in the American states. 
 
 The negro was not brought within the scope of the principle of 
 manhood suffrage without a more serious struggle. Originally 
 duly qualified negroes were permitted to vote in five of the 
 thirteen states, Massachusetts, New Hampshire, New York, 
 New Jersey, and North Carolina. Subsequently New York, 
 when abolishing the property qualifications for the franchise, 
 provided that the new qualifications should apply to the white
 
 THE REFORMATION OF STATE GOVERNMENT 81 
 
 race only, leaving the property qualifications in effect for negroes, 
 and New Jersey and North Carolina deprived the negroes of their 
 votes altogether. 1 The only new states which granted the 
 franchise in any form to negroes were Vermont, Kentucky, Ten- 
 nessee, and Maine, and two of these presently took the vote 
 away again. 2 None of the old states except Rhode Island 
 extended the vote to the negro until after the close of the Civil 
 War. Indeed there was no demand for negro suffrage, and man- 
 hood suffrage became universally restricted to whites, outside of 
 New England. In 1867, after the issue of negro suffrage had 
 been raised in connection with the reconstruction of the southern 
 states, the people of Minnesota refused by a close vote to strike 
 the word "white" from the article of the constitution relating to 
 the suffrage, and in the following year the people of New York 
 refused to remove the property qualifications from colored voters. 
 The word " white" still remains in the constitutions of four states, 
 Kansas, Maryland, Ohio, and Oregon, a relic of the ante-bellum 
 discrimination against the negro with respect to the suffrage, and 
 even as lately as 191 2 the people of Ohio refused to strike the word 
 out. In 1870, however, equal suffrage for negroes was established 
 throughout the United States by the adoption of the fifteenth 
 amendment to the Federal Constitution. 
 
 REACTION AGAINST MANHOOD SUFFRAGE 
 
 Despite the extension of the franchise to negroes, the principle 
 of manhood suffrage has never completely triumphed in the 
 United States. It did not triumph in 1870, as is shown not only 
 by the debate in Congress at the time of the submission of the 
 fifteenth amendment to the states, but also by the wording of the 
 amendment itself. There has always been another principle 
 tending to produce the exclusion of certain classes from the 
 franchise. This is the principle of fitness. It is argued that the 
 electoral franchise is not one of the natural rights asserted by the 
 Fathers, but that on the contrary, as has been shown, it was 
 originally conceived as a privilege to be conferred only on those 
 capable of putting it to good use. The vote was intended to be 
 
 1 North Carolina deprived the free negro of the vote in 1833, New Jersey in 1844. 
 1 Kentucky in 1799, Tennessee in 1834. 
 c
 
 82 STATE GOVERNMENT IN UNITED STATES 
 
 used, not primarily or mainly to foster the interests of the partic- 
 ular class entrusted therewith, but to protect the rights and pro- 
 mote the welfare of the whole people. No person therefore may 
 claim a "right" to vote, unless he can show that his claim is 
 founded upon considerations pertaining to the general welfare 
 rather than to his own private advantage. The test of fitness for 
 the suffrage, it is urged, is the ability of the individual to voice 
 public opinion, or some shade of opinion needful to bring the 
 opinion of the electorate into harmony with public opinion, rather 
 than a merely personal or private opinion. In the practice of the 
 American states, to be sure, the adult male came to be generally 
 deemed the fittest person to represent the interests of other 
 classes of the people and to voice the opinion of the people as a 
 whole, but this rule of policy, it is contended by the opponents of 
 the doctrine of the natural right to vote, should not be twisted 
 into a principle of universal and indiscriminate application, 
 regardless of the different degrees of fitness possessed by the 
 different classes of adult males. 
 
 The chief cause of difficulty in the application of the doctrine 
 of manhood suffrage has been the negro, and the purpose of the 
 white man, particularly in the South, to exclude the colored man 
 from a voice in government has been expressed in the doctrine of 
 the superior fitness of the white race. Negro suffrage was im- 
 posed upon eleven states of the South by the reconstruction act 
 of March 3, 1867, and was maintained there with ever-diminishing 
 effectiveness by force of arms. By the time of the final with- 
 drawal of the federal troops from the southern states in 1877, 
 negro suffrage, where it threatened the political supremacy of 
 the white race, had been generally suppressed by moral suasion, 
 fraud, intimidation, or violence. These methods, however, were 
 unsatisfactory. Beginning in Mississippi in 1890, the white 
 people of the South have adopted the policy of disfranchising the 
 negroes by means of constitutional restrictions upon the suffrage, 
 nominally applying to all citizens alike, but actually discriminat- 
 ing against the negro. 
 
 In Mississippi the method was as follows. The requirement of 
 residence was raised to two years in the state and one in the election 
 district ; disqualification for crime was extended to the following 
 offenses, bribery, burglary, theft, arson, obtaining money or
 
 THE REFORMATION OF STATE GOVERNMENT 83 
 
 goods under false pretenses, perjury, forgery, embezzlement, and 
 bigamy ; the payment of all taxes was made a prerequisite to the 
 vote, and a uniform poll-tax of two dollars was established, with 
 the proviso that the board of supervisors of any county might 
 increase it to three dollars and that no criminal proceedings to 
 enforce payment should be allowed. 1 In addition the prospective 
 voter is required to be able to read any section of the constitution 
 or give a reasonable explanation of the same when read to him, 
 and in general to possess a satisfactory understanding of the duties 
 of citizenship. Since the judges of the reasonableness of the 
 required explanations and of the satisfactoriness of the under- 
 standing are the white election officers, even the negro who fulfills 
 all the other requirements for the suffrage cannot hope to qualify 
 against the wishes of the whites. 
 
 The chief difficulty in the elimination of the negro vote has 
 been to disfranchise the negro without at the same time either 
 disfranchising whites or violating the provision of the fifteenth 
 amendment of the Federal Constitution forbidding racial dis- 
 crimination. In Mississippi this is evidently intended to be 
 accomplished by avoiding discrimination in the letter of the law 
 and seeking it in the enforcement. Other southern states have 
 sought to escape the dangers of that policy by the invention of 
 the so-called "grandfather" clause. Thus, in Alabama by the 
 constitution of 1901 it was provided that after January i, 1903, 
 
 1 This policy is frankly explained in the following passage from a recent opinion 
 of the Attorney-General of Mississippi : "The ostensible purpose in framing this 
 section of the constitution (i.e., sect. 241, relating to the suffrage) was to disfran- 
 chise as many negroes as possible, and the injunctions delivered by the section, when 
 well unravelled, make it apparent that the negro as a race would come more clearly 
 within its requirements than any other. In the first place the negro is known in our 
 midst as a nomadic tribe, and as a rule on account of their shiftlessness none of them 
 will hardly reside in an election precinct more than a year, but drift from planta- 
 tion to plantation and landlord to landlord ; and in that way very few, if any, on 
 account of residence as required by this section are qualified voters. Very few, if 
 any, in Mississippi have any taxes except a poll, and with no thought of government 
 and in many instances with no disposition as well as inability to pay this tax, they 
 are as a rule delinquents and are for that reason disqualified. The crimes of bur- 
 glary, bribery, theft, arson, obtaining money or goods under false pretences, perjury, 
 forgery, embezzlement, or bigamy, I might say are indigenous to the negro's nature 
 . . . and in that way thus so many more are deprived of exercising the right of 
 franchise." (Opinion of Attorney-General S. S. Hudson on what constitutes quali- 
 fied elector, published by the State Board of Election Commissioners, Jackson, 
 Miss., n. d.)
 
 84 STATE GOVERNMENT IN UNITED STATES 
 
 only those persons may register as voters who can either (i) read 
 and write any article of the Constitution of the United States in 
 English, and who are physically unable to work or who have 
 worked or been regularly engaged in some lawful employment 
 for the greater part of the twelve months next preceding; or 
 else (2) prove title to forty acres of land upon which they reside, 
 or to real estate or personal property assessed at a valuation of 
 not less than $300, upon which all taxes have been paid. But 
 up to December 20, 1902, persons who served in the United States 
 army in the Mexican, Indian, or Spanish wars, or in either the 
 Union or Confederate army in the Civil War, the lawful descend- 
 ants of such persons, and "all persons of good character who 
 understand the duties and obligations of citizenship under a 
 republican form of government," were entitled to register as 
 voters and to remain on the list of registered voters to the end of 
 their lives, whether able or not to qualify under the educational 
 or property tests. Another example of the so-called " grand- 
 father" clause is contained in the constitution of North Carolina, 
 which provides, by an amendment adopted in 1907, that no 
 person who on January i, I867, 1 or prior thereto, was entitled to 
 vote under the laws of any state of the Union wherein he then 
 resided, and no lineal descendant of such person, shall be denied 
 the right to register and vote by reason of failure to possess the 
 required educational qualification, provided that he register 
 prior to December i, 1908. In Georgia, by an amendment 
 adopted in 1908, the special exemption from literacy and property 
 tests to lawful descendants of war veterans was unlimited in 
 point of time, thus perpetuating the discrimination against the 
 negro race. In Oklahoma, by an amendment of 1910, the 
 " grandfather" clause was adopted in the most extreme form. 
 No person may vote unless able to read and write any section 
 of the state constitution, "but no person who was on January i, 
 1866, or any time prior thereto, entitled to vote under any form 
 of government, or who at that time resided in some foreign nation, 
 and no lineal descendant of such person, shall be denied the right 
 to vote because of his inability to so read and write." This 
 form of the clause, if not in conflict with the Federal Constitution, 
 
 1 The congressional reconstruction acts, conferring the franchise upon the negroes, 
 were not adopted until March 3, 1867.
 
 THE REFORMATION OF STATE GOVERNMENT 85 
 
 would have extended its protection for all time to illiterates of 
 every description except negroes, but on the other hand would 
 not have discriminated against literate negroes. 1 
 
 Another cause of difficulty in the application of the doctrine 
 of manhood suffrage has been the immigrant. When in the late 
 forties the Irish and Germans first began coming in large numbers, 
 the native Americans were prone to regard them as of inferior 
 fitness for the work of operating American political institutions. 
 The short-lived American party was founded upon this assump- 
 tion, and had for its object the discouragement of immigration 
 by means of legal restrictions against aliens. This party suc- 
 ceeded in Massachusetts in securing the adoption in 1857 of an 
 educational qualification for the suffrage intended to exclude the 
 illiterate immigrants from the electorate. Similar restrictions 
 upon the " right to vote" have since been adopted for the same 
 purpose in three other New England states and also in four states 
 of the Far West. 2 In a larger number of western states the 
 reaction against manhood suffrage produced by the immigration 
 from Europe did no more than cause the withholding of the 
 franchise from aliens until they should declare their intention of 
 becoming naturalized or should actually have carried out that 
 intention. 3 On the Pacific coast the antipathy against immi- 
 grants of the yellow race caused their complete exclusion from 
 citizenship. The native-born members of the yellow race, how- 
 ever, may obtain the vote on the same terms as other Ameri- 
 cans. 
 
 WOMAN SUFFRAGE 
 
 The modern demand for equal suffrage for women is founded 
 both on the principle of natural rights and on that of fitness. 
 The natural right of women to the ballot is deduced from the 
 fundamental principles of American government. The doctrine 
 of the natural nobility of man is construed to be broad enough 
 to include women. Equal rights for all, it is argued, means for 
 all women as well as for all men. The American states have gone 
 
 1 See post, ch. vi. 
 
 * Maine, New Hampshire, Connecticut, Arizona, California, Washington, and 
 Wyoming. 
 
 * At present only seven states permit unnaturalized aliens to vote, viz. Arkansas, 
 Indiana, Kansas, Missouri, Nebraska, South Dakota, and Texas.
 
 86 STATE GOVERNMENT IN UNITED STATES 
 
 far in giving to women the same civil rights as men, and the 
 demand for political equality is but the logical conclusion of the 
 movement towards full civil equality. As in the case of the 
 demand for manhood suffrage a century ago, the doctrine of 
 equal rights is supported by some more practical considerations, 
 such as the injustice of withholding the franchise from women, 
 who nevertheless help support the government by paying taxes, 
 some directly, others indirectly, and defend it by bearing their 
 share of the burdens of war. These considerations are reenforced 
 by the development of women's work outside the home and the 
 growth of a class of wage-earning women whose interests are 
 felt to need the protection afforded in the case of wage-earning 
 men by the possession of the ballot. The principle of fitness 
 as the test of eligibility to the suffrage may be appealed to with 
 equal justification by the advocates of votes for women. The 
 general education of women on the whole is as good as that of 
 men, and the experience of life enjoyed by women under modern 
 American conditions of civil, industrial, and social equality with 
 men adequately qualifies women for the exercise of the suffrage. 
 Moreover, women's special functions in the home give her special 
 qualifications for dealing with matters relating particularly to the 
 home, and make it imperative that the opinion of womankind 
 receive that due weight in politics which can be established only 
 by the ballot. 
 
 The extension of the franchise to women on the same terms as 
 to men was begun by the grant of equal suffrage in the territory 
 of Wyoming in 1869. The theory of natural rights, then upper- 
 most in the minds of the people on account of the discussion of 
 negro suffrage, was a powerful factor in promoting this frontier 
 experiment with political equality for women. In the states 
 the extension of the franchise to women had already been begun 
 by the grant of school suffrage. In the first instance Kentucky 
 in 1838 the grant was made only to widows with children in 
 the schools, but in general the right to vote in school elections, 
 when granted at all, was granted to all women on the same terms 
 as to men. 1 School suffrage, however, was undoubtedly granted 
 mainly upon the theory that, whatever the natural right of women 
 
 1 Beginning in Kansas in 1861, twenty-three states have conferred separate 
 school suffrage upon women. Six of these have since granted full suffrage to women.
 
 THE REFORMATION OF STATE GOVERNMENT 87 
 
 to full political equality with men, they had a special interest in 
 the conduct of public schools and a special fitness for the deter- 
 mination of questions relating to the education of children . Several 
 states have also conferred upon tax-paying women the right to 
 vote in local elections upon questions concerning taxation and 
 indebtedness. 1 One state, Kansas, conferred full municipal 
 suffrage upon women in 1887, but no state ventured to admit 
 women to the electorate on the same terms as men until the 
 admission to statehood in 1890 of the territory of Wyoming. 
 Since then the principle of equal suffrage for women has been 
 adopted in ten other states 2 and in the territory of Alaska, and, 
 in one state, women suffrage has been adopted for elections to all 
 offices within the control of the legislature, including most local 
 offices, a few state offices, and the office of presidential elector. 3 
 
 At the present time the states are evenly divided between those 
 in which manhood suffrage, so-called, prevails and those in which 
 the vote is expressly withheld from those deemed unfit. In 
 both classes of states all persons below the age of twenty-one 
 years are excluded from the electorate, and also aliens and 
 women, subject to the exceptions already enumerated. In 
 addition idiots and lunatics are generally expressly disqualified, 
 also paupers or other persons constituting a public charge, as 
 well as felons, especially persons guilty of bribery, and in a few 
 states, duelists. In all states a definite period of residence, 
 generally a year in the state and six months in the locality, is 
 required, a provision which disfranchises permanently all persons 
 without settled abodes, and temporarily, in the absence of any 
 means of voting by mail, all persons who change their legal 
 residence immediately prior to an election or who are unable to 
 be present in the locality of their legal residence on the day of 
 election. Finally, most states provide that all qualified voters 
 shall be registered, or at least that all qualified voters residing in 
 towns and cities exceeding a certain minimum size, shall be 
 registered. Registration may be accomplished once for all time, 
 but may be, and in large cities usually is, required periodically, 
 
 1 Six in all. Two of them have since granted full suffrage to women. 
 'Colorado (1893), Utah (1896), Idaho (1896), Washington (1910), California 
 (1911), Arizona (1912), Kansas (1912), Oregon (1912), Montana (1914), and Nevada 
 
 1 Illinois (1913).
 
 88 STATE GOVERNMENT IN UNITED STATES 
 
 and generally must be performed by the voter in person. 
 Thus a duly qualified voter may be temporarily disfranchised 
 by failure to register in compliance with law. 
 
 REFORM OF THE BICAMERAL SYSTEM 
 
 One of the early results of the progress of democracy in the 
 states was the abolition of the provisions for the special repre- 
 sentation of property in the state legislatures. In New York 
 and North Carolina the establishment of manhood suffrage 
 marked the end of the distinction that had existed between the 
 senatorial electorate and that of the lower branch of the state 
 legislature. All white voters were thereafter permitted to 
 participate in the election of both senators and representatives 
 on equal terms. In Massachusetts and South Carolina the 
 systems of legislative apportionment designed to give special 
 representation to property in the state senates were abandoned 
 in 1840 and 1868, respectively. 
 
 The abandonment of the purpose to make one branch of the 
 state legislature the special guardian of the interests of property 
 by means of distinctions between the senatorial electorate and 
 that of the popular house or between the systems of apportion- 
 ment did not lead, however, to the abandonment of the bi- 
 cameral system. The people still retained their faith in the 
 utility of a second chamber as a means of checking hasty and 
 ill-considered legislation. Moreover the abolition of the original 
 executive councils in most states, which took place at about the 
 same time, and the transfer of their powers of advising and 
 consenting to executive appointments to the state senates, placed 
 new duties upon the latter which could not readily be provided 
 for in any other way without doing violence to the prevailing 
 theories of government. Finally, the special functions of the 
 senate in the trial of impeachments seemed to require the reten- 
 tion of the bicameral system. If the senates had exercised legis- 
 lative powers only, the question of their abolition might have 
 been debatable; but since they also possessed important 
 executive and judicial powers the question was hardly raised 
 and never seriously considered. The adoption of the bicameral 
 system in the Federal Constitution was followed by the abandon-
 
 THE REFORMATION OF STATE GOVERNMENT 89 
 
 merit of the unicameral system in Georgia in 1789 and in Penn- 
 sylvania in 1790. That action was understood to have settled 
 the matter in favor of the division of the legislatures into two 
 houses. 
 
 The early nineteenth-century democracy attempted to preserve 
 the special character of the upper house of the state legislatures 
 by the use of devices less repugnant to the spirit of the people 
 than that of special and exclusive electorates. The senate was 
 generally distinguished from the more popular house by a higher 
 age qualification, a longer term of office, a system of partial 
 renewals, after the fashion of the federal senate, and a less nu- 
 merous membership. Thus senators were expected to be older 
 and more experienced men when first elected, and the senates 
 themselves were expected to contain at any given time a smaller 
 proportion of new members than the more popular houses. The 
 less numerous membership usually meant the election of senators 
 in larger districts than members of the lower branch, a circum- 
 stance which was expected to attract abler or wealthier candi- 
 dates. Since the newer states adopted the practice of biennial 
 elections instead of the annual elections which universally pre- 
 vailed in the beginning, the result was generally to establish 
 quadrennial terms for senators as against biennial terms for 
 members of the lower branch. In New York and New Jersey, 
 however, the practice of annual elections was retained for mem- 
 bers of the popular house, and in Massachusetts it was retained 
 for the members of both houses. 
 
 DIRECT POPULAR ELECTION OF EXECUTIVES AND JUDGES 
 
 Another consequence of the progress of democracy was the 
 strengthening of popular control over executive and judicial 
 officers. In the beginning the only state officers, exclusive of 
 officers of local government, to be elected directly by the people 
 in all the states were their representatives in the lower branch of 
 the state legislatures. The general acceptance of the policy 
 of direct election of the state governor began, however, imme- 
 diately after the close of the Revolutionary period. Pennsyl- 
 vania in 1790 and Delaware in 1792 provided for the direct elec- 
 tion of the chief executive by the people of the whole state.
 
 90 STATE GOVERNMENT IN UNITED STATES 
 
 Kentucky 1 and Tennessee, entering the Union before the end of 
 the century, did likewise, and since then no new state has been 
 admitted to the Union in which provision has not been made for 
 the direct election of the chief executive by the same electorate 
 which is authorized to choose representatives in the legislature. 
 Some of the older states, however, were slow in adopting the direct 
 election of governor by the people. 2 Virginia did not make the 
 change until 1850, and South Carolina, the last to abandon the 
 old system of legislative election, did not yield until 1866. The 
 change from legislative to popular election of the governor in 
 the original states was generally accompanied by the abolition 
 of the executive council and the transfer of the powers of the 
 council, at least in relation to appointments, to the senate. 3 
 Except in the original states, separate executive councils had not 
 been created. Doubtless the example of the federal government 
 was decisive in this respect. 
 
 The same arguments that produced the general acceptance of 
 direct election of governors tended also to produce the acceptance 
 of the principle that all executive officers should be elected directly 
 by the people. This principle was applied not only to local 
 officers exercising a portion of the state administrative authority, 
 such as sheriffs, justices of the peace, and the various county 
 officers, but also to all officers serving the state at large, such as, 
 in the beginning, state secretaries, treasurers, and attorneys- 
 general. The application of the principle to judicial officers met 
 with more opposition. There were those who felt that the inde- 
 pendence of the judiciary, concerning the importance of main- 
 taming which there was no disagreement, would be jeopardized 
 by their subjection to the authority of the electorate. To this 
 the reply was made that republican government could not be 
 maintained unless the judiciary were to be held accountable to 
 some authority, and that under the original system they were in 
 
 1 Kentucky in its first constitution of 1792 provided for the election of governor 
 by the electoral colleges created after the Maryland model for the election of sena- 
 tors. In 1799, however, the state went over to the direct election of the governor 
 by the people. 
 
 2 Georgia (1824), North Carolina (1835), Maryland (1837), New Jersey (1844). 
 
 3 For history of Council of Appointment in New York, see C. Z. Lincoln, Consti- 
 tutional History of New York, i, pp. 596-607. See also Gitterman, " The Council of 
 Appointment in New York," in the Pol. Sci. Q., vii, pp. 80 ff.
 
 THE REFORMATION OF STATE GOVERNMENT 91 
 
 fact dependent in most states upon the legislature. This was 
 indeed clearly the case in those states in which the judiciary were 
 elected by the legislature for short terms, or subject to impeach- 
 ment and removal by a majority vote in each house of the legis- 
 lature. It was less clearly so in such states as Massachusetts, 
 where they were appointed during good behavior, subject to 
 impeachment and removal by a two- thirds vote in the upper house, 
 or to removal by the executive upon address of both branches of 
 the legislature. In the beginning, however, the Massachusetts 
 practice was the exception rather than the rule, and in the ma- 
 jority of the states, therefore, it was a fair argument that the 
 election of judges by the people would increase rather than 
 diminish their independence, especially if they were chosen for 
 comparatively long terms and assured a fixed and liberal com- 
 pensation. 1 
 
 The general adoption of the direct election of governors was 
 therefore eventually followed by the general acceptance of the 
 principle that all state officers, executive and judicial alike, should 
 be elected directly by the people. Beginning in Mississippi in 
 1832, the extension of the system of popular election to all 
 executive and judicial offices was rapid throughout the West, 
 and by the middle of the century had become the universal 
 practice outside of the original states. The popular election of 
 minor executive officers was also generally introduced in the 
 original states, and even the popular election of judges was intro- 
 duced in the most inportant of the latter, notably in New York in 
 1846 and in Pennsylvania and Virginia in 1850. In New England 
 these democratic tendencies encountered more stubborn opposi- 
 tion, and in 1853 the refusal of Massachusetts to adopt the 
 popular election of judges, though the state later accepted the 
 popular election of minor executive officers, checked the demo- 
 cratic tide in that part of the Union. New Jersey, which adopted 
 the popular election of governor in 1844, declined to introduce the 
 direct election of other state executive or judicial officers ; but 
 South Carolina was the only state to retain intact its original 
 system of legislative election of the executive and judiciary until 
 after the Civil War. 
 
 1 See T. M. Cooley, Michigan, in the American Commonwealth series, pp. 303, 
 304.
 
 92 STATE GOVERNMENT IN UNITED STATES 
 
 The adoption of the direct popular election of executive and 
 judicial officers was generally accompanied by changes in the 
 terms and tenure of executive and judicial office. The terms of 
 executive officers were lengthened, and their tenure was made 
 more secure by requiring more than bare majorities in each branch 
 of the legislature for removal by process of impeachment. Re- 
 strictions originally imposed in many of the states upon eligibility 
 for reelection to executive office were removed or diminished, and 
 in general, when the people took the business of electing the 
 chief executive directly into their own hands, his position was 
 strengthened. The direct election of other executive officers, 
 however, had the effect of relieving them from responsibility to 
 the governor. Thus at the same time that the political authority 
 of the governor was increased, his administrative authority was 
 diminished. State politics tended to become more responsive 
 to executive leadership ; for the governor came to be regarded 
 as peculiarly the representative of the whole people of the state. 
 State administration tended to become less amenable to control 
 by the governor ; for actual administrative power was distributed 
 among a group of officers, each of whom was constitutionally 
 as much the representative of the people as the governor himself. 
 The terms of the judicial offices were usually, though not always, 
 lengthened when they were made elective by the people, and the 
 tenure of judicial office was greatly strengthened by the increase 
 of the legislative majorities required for removal by impeach- 
 ment. Moreover the popular prestige of the judges was greatly 
 enhanced when they became the creatures of popular rather than 
 of legislative favor. The result of the change from legislative to 
 popular election of executive and judicial officers was to deprive 
 the legislatures not only of much political and administrative 
 power, but also of some of the popular prestige which they had 
 originally enjoyed as the special bulwarks of the liberties of the 
 people. 
 
 THE CONSTITUTIONAL CONVENTION 
 
 A further consequence of the progress of democracy was the 
 strengthening of popular control over the process of constitutional 
 amendment and revision. In the beginning the standard prac- 
 tice with respect to the framing of state constitutions was not
 
 THE REFORMATION OF STATE GOVERNMENT 93 
 
 inaugurated by Massachusetts until after the other states had 
 mostly succeeded in transforming their provisional Revolutionary 
 governments into permanent constitutional governments. The 
 first states, however, to revise their original governments, 
 New Hampshire in 1783, Georgia in 1789, and Pennsylvania in 
 1790, adhered more or less closely to the precedent established 
 by Massachusetts. Georgia and Pennsylvania, indeed, in order 
 to do so, were compelled to violate their existing constitutions, 
 which had made other provision for constitutional revision. 
 Since then it has been generally accepted that the only proper 
 mode of making any extensive revision of a state constitution is 
 by a constitutional convention especially elected for that purpose. 
 It was not at once generally accepted, however, that the electorate 
 should be consulted before such a convention should be convoked, 
 and that it should be consulted again before the revised consti- 
 tution should be put into operation. New Hampshire followed 
 the Massachusetts practice exactly. In Pennsylvania a popular 
 vote was taken before the convention was called, but afterwards 
 the people were consulted only indirectly, and the revised consti- 
 tution was put into effect without any direct expression of popular 
 approval. In Georgia, the people were not expressly consulted in 
 advance, but the revised constitution was considered by two other 
 special conventions in succession before being declared the su- 
 preme law of the state. 
 
 At the present time, the constitutions of thirty-six states make 
 express provision for their revision by constitutional conventions. 
 In the other twelve states the constitutions now in force contain 
 no provisions for the calling of conventions. The question 
 therefore arises, what is the status of the constitutional convention 
 in those states where its existence is not expressly recognized in 
 the written constitution? 
 
 Such states might logically be divided into two classes, those 
 in which no express provision for amendment is contained in the 
 written constitution, and those in which some provision is made 
 for amendment through the agency of the ordinary legislature. 
 In the beginning there were half a dozen states in the former 
 class. To deny the right of the legislature of such a state to take 
 the necessary steps for the calling of a convention, would have 
 the effect either of denying the existence of any distinction
 
 94 STATE GOVERNMENT IN UNITED STATES 
 
 between constitutional and ordinary statute law, or of denying 
 to the people of the state the power of procuring by any legal 
 mode of action a revision of their own constitution. Such a denial 
 is clearly inconsistent with the fundamental principles of state 
 government, as understood at the time of the Revolution. If 
 the right be not affirmed, there is no security in such states either 
 for the maintenance of the sovereignty of the people or of the 
 reign of law. In fact in all those states where no express provision 
 for constitutional revision was contained in the written consti- 
 tution, the legislatures acted on the assumption that they were 
 duly authorized by the unwritten law of the constitution to start 
 the machinery of constitutional revision by means of special 
 conventions. Subsequently all these states adopted some express 
 provision for constitutional amendment, either by special con- 
 ventions, or by special legislative action. Hence there is now 
 no state in which there is not some provision for the revision or 
 amendment of the constitution. Our question therefore now 
 takes the form, may not the express provision of another mode 
 of amendment, in states where no mention of the constitutional 
 convention is made in the written constitution, indicate a purpose 
 on the part of the people to dispense with the mode of revision 
 by special convention ? 
 
 There is some authority for an affirmative answer to this 
 question. In 1883 the question of calling a constitutional con- 
 vention was under discussion in Rhode Island, and it was argued 
 that the adoption in 1842 of the method of amendment by legisla- 
 tive action implied the abandonment by the people of the mode of 
 revision through special conventions. The mode of amendment 
 adopted by the people in 1842 was itself recommended by a 
 constitutional convention, which at the same time made no 
 proposals for the regulation in the written constitution of the 
 process of revision by special conventions. There was no 
 provision expressly relating thereto either in the original charter 
 of 1663 or in the acts of the legislature which declared that charter 
 the supreme law of the state in 1776. Though the legislature had 
 since then taken the initiative in calling the convention of 1842, 
 the failure of the latter convention to take any action to deter- 
 mine the status of future constitutional convention indicated, it 
 was urged, an intention to eliminate the constitutional convention
 
 THE REFORMATION OF STATE GOVERNMENT 95 
 
 from the constitutional structure of state government. This 
 opinion was adopted by the Rhode Island supreme court. 1 It 
 was contended that there was precedent for this opinion in an 
 earlier opinion of the supreme court of Massachusetts. 2 A careful 
 study of the opinion of the Massachusetts court, however, shows 
 that its opinion related to another matter. 3 In no state has the 
 opinion of the Rhode Island court been followed. On the con- 
 trary, the practice of the other eleven states has been based on 
 the recognition of the right of the people through their repre- 
 sentatives to provide by law for the calling of a convention. 
 This right is construed from the facts that the people undoubtedly 
 possessed the right in the beginning, and have not parted with 
 it by expressly confining amendment to some other method. 4 
 
 POPULAR CONTROL OF CONSTITUTIONAL REVISION AND 
 AMENDMENT 
 
 The practice with regard to the consultation of the people before 
 the calling of a constitutional convention has not yet become uni- 
 form. In the greater number of states previous consultation of 
 the people is now required before an election of delegates may be 
 ordered. In most of these states the legislature may use its 
 discretion as to the time of consulting the people. 5 In several 
 states, however, the matter is not left to the discretion of the 
 legislature. The constitution requires the executive officers of 
 the state to submit to the people at stated periods the question 
 whether a constitutional convention shall be called. 6 The theory 
 upon which the arrangements have been adopted for a periodical 
 consideration by the people of the question of calling a convention 
 is this, that the people of each generation should have an equal 
 opportunity to determine for themselves the forms of government 
 under which they shall live. Jefferson was an ardent supporter 
 
 1 See In re The Constitutional Convention, 14 R. I., 649 (1883). 
 '6Cush. 573(1833)- 
 
 * See post, ch. v. 
 
 4 See VV. F. Dodd, The Revision and Amendment of Stale Constitutions, pp. 42-46. 
 
 * In twenty-seven states. 
 
 6 See W. F. Dodd, op. cit., p. 51. Seven states, but in most of these states the 
 legislature is expressly authorized to submit the question of calling a convention at 
 other times than that specified in the constitution. In Oklahoma it may submit 
 the question when it pleases, but must do so at least once in every twenty years.
 
 96 STATE GOVERNMENT IN UNITED STATES 
 
 of this theory, and calculated that, in order that the majority of 
 the voters might, if they wished, always live under a constitution 
 of their own making, the question of calling a convention should be 
 submitted to them once in twenty years. This accordingly is the 
 period most commonly adopted by those states in which provision 
 is made for the periodical submission of the question to the people. 1 
 Although required by the constitution in only thirty-four of the 
 states, such a popular vote has been taken in most cases in recent 
 years. Thus the practice of obtaining the popular approval for 
 the calling of a convention has become the general rule. 
 
 In many of the states which require submission to the people of 
 the question of calling a convention, the assembling of conven- 
 tions is still largely dependent upon legislative action, even after 
 the people have voted that a convention be held. The number 
 and apportionment of delegates, the time, place, and manner of 
 election, the organization, and even the rules of procedure, if not 
 determined in the constitution itself, may be determined by legis- 
 lative enactment. In such cases the failure of the legislature to 
 act will frustrate the will of the people, as happened in New York 
 after a favorable popular vote in 1886. Only three states, New 
 York, Michigan, and Missouri, now make complete provision in 
 their constitutions for the election and assembling of constitu- 
 tional conventions, but only ten states leave these details altogether 
 to the discretion of the legislatures. 2 In all the states, however, 
 which possess the direct popular initiative, now comprising 
 more than a third of the total number, the electorates are en- 
 tirely independent of the legislatures with respect to the calling 
 and organization of constitutional conventions, regardless of the 
 lack of express regulations in the constitution itself. 
 
 The practice with regard to the consultation of the people after 
 the election of a convention but before the putting into effect 
 of a revised constitution has also not yet become uniform. In 
 New England the Massachusetts precedent has been followed 
 ever since it was established. Outside of New England New York 
 in 1821 was the first state to submit a revised constitution directly 
 to the people for their approval. Virginia did likewise in 1830. 
 Thereafter the practice rapidly became general. Yet at present 
 the constitutions of only nineteen states expressly require the 
 
 1 Four states. 2 W. F. Dodd, op. cit., pp. 55-57.
 
 THE REFORMATION OF STATE GOVERNMENT 97 
 
 submission of revised constitutions to the people for their ap- 
 proval. In the others apparently either the legislature in issuing 
 the call for a convention may provide that there be no popular 
 submission of its revision or the convention itself may declare its 
 revision in effect without the express approval of the people. 1 
 In fact, in recent years there have been several conspicuous 
 departures from the practice which had previously been estab- 
 lished. In five states conventions have been held, which, among 
 other changes, made provision for the elimination of the negro 
 vote, and then declared the revised constitutions operative with- 
 out submission to the people. 2 Thus the embarrassing question 
 was avoided, to which electorate, the old or the new, should the 
 revised constitution be submitted. 
 
 The result of the diversity in the practice of the several states 
 with respect to the revision of their constitutions by special 
 conventions is confusing. It is not at once altogether clear pre- 
 cisely what is the status of the constitutional convention in the 
 political system of the states. At present the states must be 
 classified into four groups on the basis of the structural relations 
 between the convention and the other organs of state govern- 
 ment. The first group comprises all states in which the electo- 
 rate exercises a complete control over the call, organization, and 
 proceedings of constitutional conventions. This control may be 
 continuous, as in the states which possess the direct popular 
 initiative, or it may be discontinuous, as in states such as New 
 York, where the structure of the convention is completely regu- 
 lated by the constitution itself. The second group comprises 
 all states in which control of the constitutional convention is 
 divided between the electorate and the legislature. The third 
 group comprises all states in which the legislature alone exercises 
 such legal control as is recognized to exist. The states of this 
 group, however, differ widely in their actual practice. On the 
 one hand, the Massachusetts legislature would doubtless feel 
 bound by precedent neither to call a convention, nor to authorize 
 a convention, once called, to put its proposed revision into effect, 
 without the express approval of the people. On the other hand, 
 
 1 This matter will be discussed more fully in the following chapter. 
 1 Mississippi (1890), South Carolina (1895), Delaware (1897), Louisiana (1898), 
 and Virginia (1902). See, for a discussion of these cases, Dodd, op. cit., pp. 67-71. 
 
 H
 
 98 STATE GOVERNMENT IN UNITED STATES 
 
 the Mississippi legislature might consistently feel free to call a 
 convention at will and to authorize it at its discretion to dispense 
 with any direct expression of popular approval. The extent to 
 which constitutional conventions in these three groups of states 
 are subject to control by the courts is a question that concerns 
 the division of powers and will be discussed in that connection. 
 The fourth group comprises the single state of Rhode Island, 
 where the constitutional convention has been held to be uncon- 
 stitutional. 
 
 In the beginning there seems to have been no clear recognition 
 of the necessity for a distinction between the revision and the 
 amendment of state constitutions. 1 In the original states the 
 practice varied. Only three of the original state constitu- 
 tions contained any special provisions for their amendment by 
 legislative action. 2 Delaware provided that certain parts of the 
 constitution should not be subject to amendment at all, and that 
 "no other part should be altered except with the consent of five 
 out of the seven members of the legislative assembly and seven 
 out of the nine members of the legislative council." South Caro- 
 lina also established a distinction between the process of ordinary 
 legislation and that of constitutional amendment by requiring 
 an exceptional majority for the adoption of a measure of the 
 latter character. Maryland made a sharper distinction between 
 constitutional amendments and ordinary statutes by requiring 
 that the former, having been adopted by the legislature, should 
 be published at least three months before the election of the next 
 legislature, and then readopted by the latter, in order to become 
 effective. The Maryland plan of action by two successive legis- 
 latures was accepted by South Carolina in 1 790 and by Delaware 
 in 1792 and grafted upon their own original devices. This 
 arrangement was generally considered at the time to give adequate 
 popular control over the process of amendment, and was adopted 
 in several other states ; but the only state which still clings to-day 
 to a process of amendment which makes no provision for a special 
 popular vote upon each proposed amendment is Delaware. 
 
 1 Doubtless the adoption in the Federal Constitution of 1787 of different modes 
 of procedure for extensive revisions and minor amendments brought the matter 
 more clearly to the attention of the people of the states. For a complete discus- 
 sion of this whole subject, see W. F. Dodd, op. cit., pp. 118-132. 
 
 2 Delaware (1776), Maryland (1776), and South Carolina (1778).
 
 THE REFORMATION OF STATE GOVERNMENT 99 
 
 A somewhat more democratic practice was adopted in Alabama 
 in 1819. This consisted in the provision that an amendment 
 proposed by the legislature should be voted on directly by the 
 people, instead of being merely published for their information, 
 but the power to take final action was still vested in the next 
 succeeding legislature. This plan was never widely copied, and 
 exists to-day in only two states, South Carolina and Mississippi. 
 A still more democratic practice was inaugurated in Connecticut 
 in 1818. Instead of placing the popular vote between the two 
 successive legislative actions the popular vote was placed after 
 the second legislative action, thus giving to the electorate the 
 final decision, and making its action definitive instead of merely 
 advisory. The Connecticut plan was adopted in Maine in 1819 
 and simplified by the omission of the requirement that a second 
 legislature endorse proposed amendments, thus enabling any 
 legislature to submit its proposals directly to the people. The 
 Connecticut and Maine plans have since been widely copied, 
 and popular control over the process of amendment through legis- 
 lative initiative has been almost completely established. The 
 final stage in the evolution of the amending process has been the 
 adoption of the direct popular initiative, thus dispensing alto- 
 gether with legislative intervention. This stage was first entered 
 upon in Oregon in 1902, and is now established in twelve states. 1 
 
 DEVELOPMENT OF THE PARTY SYSTEM 
 
 Nothing could have been more remote from the minds of the 
 Fathers than the legal recognition of the political party. 
 The deliberate organization of a party, or faction, as they pre- 
 ferred to call it, represented to their minds a stage of political 
 depravity but one degree short of treason, and the growth of 
 party spirit presaged the ultimate advent either of foreign inva- 
 sion or domestic anarchy. Washington devotes the most im- 
 pressive portions of his Farewell Address to a solemn warning 
 against the evils of faction. The distinguished authors of The 
 Federalist devote several numbers 2 to an earnest appeal for the 
 adoption of the constitution of 1787, on the ground that it will 
 
 1 See the American Year Book for 1015, p. 82. 
 
 1 See DOS. 9 and 68 by Hamilton, and nos. 10, 14, and 47 by Madison.
 
 ioo STATE GOVERNMENT IN UNITED STATES 
 
 mitigate the violence of faction and thus promote the public peace 
 and security. De Tocqueville, in his fascinating description of 
 American politics, written after the first generation of American 
 statesmen had passed from the stage, still reiterates the same 
 pessimistic opinions concerning parties. "Parties," he concedes, 
 "are a necessary evil in free governments;" and he goes on to 
 show why. "Ambitious men will succeed in creating parties, 
 since it is difficult to eject a person from authority upon the mere 
 ground that his place is coveted by others. All the skill of the 
 actors in the political world lies in the art of creating parties. 
 A political aspirant in the United States begins by discerning his 
 own interest, and discovering those other interests which may be 
 collected around and amalgamated with it. He then contrives 
 to find out some doctrine or principle which may suit the purpose 
 of this new association, and which he adopts in order to bring 
 forward his party and secure its popularity ; . . . This being 
 done, the new party is ushered into the political world." 
 
 The American people themselves seem to have taken a less 
 gloomy view of the consequences of party spirit. Francis Lieber, 
 a political refugee from Germany, who in many ways understood 
 the American spirit more correctly than his brilliant French 
 contemporary, was certainly more happy in his interpretation of 
 the spirit of party. As he was careful to point out, no free coun- 
 try ever had existed without parties ; it seemed to him unlikely 
 that any free country ever would exist without parties; and 
 he did not hesitate to conclude that no free country ought to exist 
 without parties. "It is impossible," he declared, "for civil lib- 
 erty to exist without parties." He held with Burke that a party 
 is a "body of men united for promoting by their joint endeavor 
 the national interest upon some particular principle in which they 
 are all agreed." He believed it the duty of the citizen to join 
 a party and act with it, so far as his intelligence and conscience 
 would permit, declaring with Fox that "an independent man is a 
 man you can never depend upon." 2 This, the view that came to 
 prevail in the American states, has been most eloquently ex- 
 pressed by Senator G. F. Hoar : "Your party is but the instru- 
 ment by which freemen execute their will. But it differs from 
 
 1 A. de Tocqueville, Democracy in America, vol. i, ch. x. 
 1 F. Lieber, Manual of Political Ethics, pt. ii, bk. v, ch. 2.
 
 THE REFORMATION OF STATE GOVERNMENT 101 
 
 other instruments in this. It is an indispensable instrument 
 made up of the men, and practically of all the men, who wish to 
 accomplish the things you wish to accomplish and deem it vital 
 to the prosperity, honor, and glory of your country. It is an 
 instrument itself possessing intelligence, judgment, conscience, 
 purpose, will." l 
 
 At all events, for better or for worse, organized political parties 
 sprang into being before the state governments were established, 
 and, with the extension of democracy, grew ever stronger and 
 more active. By the time when De Tocqueville and Lieber 
 were forming their impressions of American government, the 
 habit of party regularity had become firmly established, and the 
 forms of party organization were already well developed. These 
 consequences of the democratization of the electorates are com- 
 monly associated, therefore, with the advent of the Jacksonian 
 democracy. In fact, however, they were the cause rather than 
 the result of the advent of the Jacksonian democracy. Party 
 spirit began to flourish on a national scale when the American 
 colonists were first divided into Whigs and Tories, and party 
 organization began to develop with the creation of the Revolu- 
 tionary committees of correspondence. A political party is any 
 two or more persons acting together for the purpose of influencing 
 the result of an election. The organization of parties is inevitable 
 wherever an electoral system exists which awards the election to 
 the person receiving the plurality of votes, for voters will inevi- 
 tably unite for the purpose of casting the greatest possible number 
 of votes for a mutually acceptable candidate. 
 
 Originally nominations for offices to be filled by popular election 
 were made by town and village caucuses or county mass-meetings. 
 In the New England states and New York, where the governors 
 were elected by the state at large, the problem of party organiza- 
 tion was more difficult. Gubernatorial candidates were com- 
 monly nominated by legislative caucuses, assisted in some cases 
 by special representatives from districts not represented in the 
 legislature by members of the party concerned, or by mass meet- 
 ings at the seat of the state government. The delegate conven- 
 tion, or representative form of party organization, originated in 
 
 1 George Frisbie Hoar, Good Advice to Young Vottrs, Speech at Worcester, Mass., 
 Aug. 21, 1884.
 
 102 STATE GOVERNMENT IN UNITED STATES 
 
 the middle states, where county conventions were held at the 
 county seats in order to make more representative nominations 
 than were possible at casual mass-meetings. 1 In New England 
 most county officers were not then elected directly by the people, 
 and in the South the aristocratic character of local government 
 rendered formal party organization unnecessary. 
 
 The demand for more effective party organization in the states 
 arose partly because of the increasing adoption of the direct 
 election of governors and partly because of the then common 
 practice of electing congressmen from the state at large. The 
 response to the demand came first in the middle states, partly 
 because hi those states the delegate convention developed first 
 in the county, and partly because the democratic middle states 
 county formed a more convenient basis for the state delegate 
 convention than the democratic New England town or the aristo- 
 cratic southern county. Delaware seems to have been the first 
 state in which the state delegate convention was permanently 
 established. In New Jersey, and even more in Pennsylvania and 
 New York, the greater distances made more difficult the substi- 
 tution of the state delegate convention for the legislative caucus. 
 In Delaware the state convention was established during the 
 presidency of Jefferson, and in the middle states generally the 
 legislative caucus had yielded to the delegate convention by the 
 end of Monroe's administration. In New England the develop- 
 ment of the state convention was slower, and was not completed 
 in Massachusetts until the time of Jackson. The representative 
 form of party organization was established in the west during the 
 same period, and by the tune when the first national conventions 
 were held (1830-32), the delegate convention had become the 
 accepted form of party organization everywhere except in the 
 South. The extension of popular control over the executive and 
 judicial branches of state government increased the demand for 
 efficient nominating machinery in the states, and strengthened 
 both the habit of party regularity and the representative form of 
 party organization. 
 
 The delegate convention system ultimately fell under the sus- 
 picion of lending itself too easily to manipulation by persons who 
 
 1 See G. D. Luetscher, Early Political Machinery in the United States; also F. W. 
 Dallinger, Nominations to Elective Office, ch. i.
 
 THE REFORMATION OF STATE GOVERNMENT 103 
 
 could not command the confidence of a majority of the rank and 
 file of the parties. The chief criticisms brought against the 
 system may be summarized as follows : (i) the creation of irre- 
 sponsible party leadership ; (2) the exclusion of the rank and file 
 from effective participation in the management of party affairs ; 
 (3) the recognition by candidates of responsibility not to their 
 constituents, nor even to the voters belonging to their party, 
 but to the "bosses" to whom they realized that they owed their 
 nominations ; and (4) the possibility of political domination by 
 private " interests " through the connivance of ' ' bosses " in control 
 of party organizations. 1 These criticisms eventually led to the 
 reformation of party organization in the western and northern 
 states by the enactment of laws requiring that political parties 
 should make their nominations in primary elections at which the 
 party members should vote directly for the candidates of their 
 choice. The first state-wide direct primary laws were enacted 
 in Wisconsin in 1903 and in Oregon in 1904. The system rapidly 
 spread to all the western and northern states with not more than 
 half-a-dozen exceptions. 2 In the southern states the direct 
 primary was meanwhile being established, first by voluntary 
 party rule, later by statute, primarily for the purpose of facilitat- 
 ing the elimination of the negro vote. 3 
 
 The legal recognition of the political party as an independent 
 organ of government preceded the establishment by law of the 
 direct primary as a mode of making party nominations. There 
 were several stages in the evolution of the party into an organ of 
 government. First, there was the gradual recognition by public 
 opinion of the growing importance of party organizations with re- 
 spect to the conduct of the elections. This stage in the evolution 
 of the party was well advanced by 1840. Next came the demand 
 that partisan primary elections be surrounded by the same legal 
 safeguards against bribery, intimidation, and other corrupt 
 practices as had been established for the protection of voters at 
 public general elections. This stage was formally initiated by the 
 
 1 See J. Bryce, The American Commonwealth, pt. Hi. See also Gov. Charles E. 
 Hughes, Message to N. Y. Legislature, 1910. 
 
 1 See C. E. Merriam, Primary Elections, 1909, and American Year Book, 1910- 
 1916. 
 
 1 See post, ch. vii.
 
 io 4 STATE GOVERNMENT IN UNITED STATES 
 
 adoption of the first laws regulating the conduct of primary 
 elections in New York and California in 1866. The recognition 
 of the importance of preventing corrupt practices in primary 
 elections held for the choice of party officers and candidates or of 
 delegates to nominating conventions gradually led to the recogni- 
 tion of the importance of regulating the management of party 
 affairs in other respects, until eventually the whole structure of 
 party organization was brought under public control. The 
 transition to this stage was precipitated by the introduction of the 
 official ballot at general elections, beginning in Massachusetts in 
 1888. 
 
 The final stage in the evolution of the party into an organ 
 of government coincides with the extension to the primary of the 
 whole machinery of electoral regulation and the assimilation of 
 the primary to an ordinary public election, conducted by public 
 officers. This stage was inaugurated by the establishment of the 
 state-wide direct primary and has been characterized by the 
 gradual development of corrupt practices legislation, applying 
 to primary and general elections alike, and the gradual assump- 
 tion by the state of an increasing share of the cost not only of 
 elections but of electioneering in general. The arrival of this 
 stage is clearly indicated by the adoption of laws in Colorado in 
 1909 (later declared unconstitutional) and in Oregon in 1910 
 appropriating public money to the personal use of candidates for 
 office or delegates to political conventions, and of other laws in 
 Oregon and Wisconsin at about the same time making provision 
 for the publication of official campaign bulletins, partly at public 
 expense, for the use of candidates for nomination and of political 
 parties as such. The political party in most states is now as 
 much a part of the legal machinery of government as is the 
 election district or any other formal subdivision of the electorate. 
 
 SUMMARY 
 
 At the present time there is a remarkable degree of uniformity 
 in the general structure of state government. All the states 
 possess bicameral legislatures, and almost all possess plural 
 executives, an independent judiciary, comparatively broad 
 electorates (except for the elimination of the negro vote in the
 
 THE REFORMATION OF STATE GOVERNMENT 105 
 
 South), well-developed systems of constitutional amendment and 
 revision, and political parties elaborately organized by authority 
 of law. With respect, however, to the organization and pro- 
 cedure of the legislative, executive, and judicial departments, 
 no two states pursue a precisely identical practice. In many 
 instances the variations are wide, and exercise a profound effect 
 on the actual conduct of state affairs. The most important 
 differences among the existing governments of the states, how- 
 ever, result less from differences in the forms of their governments 
 than from those in the division of powers.
 
 CHAPTER V 
 THE REDIVISION OF POWERS 
 
 THE original division of powers between the three departments 
 of government was based upon the theory that a concentration of 
 powers in any one department would lead to tyranny and oppres- 
 sion. In New York, Massachusetts, and New Hampshire this 
 theory was acted upon hi a logical manner. The powers of the 
 legislative, executive, and judicial branches of these three state 
 governments were so adjusted that each should serve as a check 
 upon the others and a balance be thereby established between 
 them. In the other states the doctrine of checks and balances 
 was either not properly understood or unintelligently applied, 
 and, except in Pennsylvania and Vermont, there was no apparent 
 check to the supremacy of the legislatures. In Pennsylvania 
 and Vermont the censorial system failed to operate as an effective 
 substitute for the system of checks and balances, and hence in all 
 but three of the original states the original division of powers was 
 defective. It became necessary either to alter the division of 
 powers or to abandon the theory upon which the Fathers professed 
 to establish the original state governments. 
 
 REACTION AGAINST SYSTEM OF LEGISLATIVE SUPREMACY 
 
 The logic of events favored the redivision of powers. As 
 Jefferson pointed out, one hundred and seventy-three or any other 
 number of despots were as objectionable as one, and an elective 
 tyranny was not the government for which the people had fought. 
 In fact, the state legislatures began to lose prestige from the 
 beginning. In Pennsylvania the unreliability of the early legisla- 
 tures was revealed by the first council of censors. In the other 
 states where the system of legislative supremacy originally pre- 
 vailed there was no 'equally effective means of revealing legislative 
 
 106
 
 THE REDIVISION OF POWERS 107 
 
 usurpation and incapacity, and the confidence of the people in the 
 ability and integrity of their representatives was too strongly 
 entrenched to be easily destroyed. During the Revolutionary 
 War the legislative system was under an exceptional strain, and 
 the people were prone to believe that with the return of peace 
 there would be a return on the part of their representatives to 
 constitutional modes of government. In Virginia members of 
 one early legislature in a moment of panic caused by a British 
 invasion went so far as to suggest the appointment of a dictator 
 after the fashion of the ancient Romans. Jefferson was then 
 governor, and later enemies of his have ascribed the suggestion 
 of a dictator to consciousness of executive rather than of legisla- 
 tive weakness. Certainly the system of government which then 
 existed in Virginia was characterized by executive weakness, but 
 the failure of the particular government over which Jefferson pre- 
 sided to deal effectively with foreign invasion reflected more dis- 
 credit upon an omnipotent but incapable legislature than upon the 
 unfortunate holder of a shadowy executive authority. After the 
 close of the war the conduct of the legislatures failed to restore a 
 somewhat shaken confidence. During the trying period between 
 the achievement of independence and the establishment of the 
 "more perfect union" under the constitution of 1787, appro- 
 priately described by John Fiske as the critical period of American 
 history, the state legislatures showed themselves clearly unequal 
 to the tasks which they had assumed. 
 
 The primary reason for their failure to justify the public con- 
 fidence they had originally enjoyed was their inability to take a 
 national view of national problems. The Continental Congress 
 could neither raise money, enforce its treaties with foreign powers, 
 nor regulate commerce between the states and other matters of 
 common concern, without the cooperation of the separate states, 
 and the legislatures of the separate states proved to be under the 
 control of local interests. It became necessary to deprive the 
 state legislatures of their original responsibility for the manage- 
 ment of national affairs, and this was effectually done in the 
 Federal Constitution of 1787. 
 
 A second reason for the failure of the state legislatures to pre- 
 serve the public confidence they had originally enjoyed was their 
 inability to deal with state problems in the interest of the whole
 
 108 STATE GOVERNMENT IN UNITED STATES 
 
 people of their respective states. The individual legislator, in- 
 stead of representing the people of the whole state, was prone to 
 regard himself as the representative of his district, or of some 
 other local or private interest, and strove mainly to protect his 
 own special interest, or at best to promote the prosperity of his 
 own particular district. During the colonial period, when the 
 responsibility for the conduct of government rested mainly on the 
 executive, the predominance of local interests in the legislative 
 branch served as a salutary check upon the executive tendency to 
 prefer imperial to local interests of any sort. But when sover- 
 eignty passed from the crown to the people, the legislature be- 
 came the chief representative of the new sovereign, and the 
 predominance of local and private interests signified the subver- 
 sion of the general public interest. The failure of the state legis- 
 latures properly to manage the internal affairs of the separate 
 states was less menacing to the independence and prosperity of 
 the nation than their failure in the conduct of national affairs, 
 but it was sufficiently disastrous to the common welfare to pro- 
 duce a general reaction against the original system of unchecked 
 legislative supremacy. 
 
 The enactment of special laws for the benefit of private individ- 
 uals, without due regard for the interests of the public, was one 
 of the earliest and most serious abuses. Such laws were fre- 
 quently enacted in the interest of persons desiring to speculate in 
 public lands, or to secure the improvement of local roads and 
 bridges in the furtherance of land speculations. The power to 
 change names and to grant divorces by special act was another 
 source of frequent abuse. Later, the growth of the practice of 
 doing business under corporate forms led to an inordinate demand 
 for the grant by special legislation of charters of incorporation and 
 exclusive or, at least, extraordinary privileges therewith. Land 
 companies, banking companies, turnpike and canal and later rail- 
 road companies, finally public utility companies and manufactur- 
 ing and trading companies of all sorts, resorted to the legislatures 
 for all manner of special privileges. Legislators were tempted to 
 use their power for partisan and personal ends, and all too often 
 there was open and shameless barter of valuable special privileges 
 for private gain, without regard for the interests of the public. 
 Sometimes this abuse of power was the result of ignorance of the
 
 THE REDIVISION OF POWERS 109 
 
 public interest, sometimes of indifference to the public welfare, 
 sometimes of negligence or incompetence, sometimes of down- 
 right corruption. 
 
 Similarly unfortunate conditions resulted from the abuse of 
 legislative power to pass local acts. Public money was freely 
 appropriated for local improvements, not in order to carry out a 
 general plan for the general improvement of the state, but 
 primarily in order to promote purely local interests or even merely 
 personal interests not shared by any locality. Legislative majori- 
 ties for such appropriations were secured by the practice of log- 
 rolling. The separate local or personal projects of a majority of 
 the legislature were combined into one general measure which 
 would be supported by those interested in the combination for the 
 sake of what each would severally get out of it, or the same result 
 was secured by means of promises of mutual aid for one another's 
 projects. The public interest was lost to view. Much legisla- 
 tion relating to the organization and administration of local 
 government was also enacted in furtherance of private ends. 
 Thus the establishment of county boundaries and the location 
 of county seats, the incorporation of cities and the regulation of 
 municipal powers, and above all, the demarcation of congressional 
 and state legislative districts, were frequently prompted by per- 
 sonal or partisan considerations. Taxes were sometimes levied 
 less for the sake of the revenue they would bring than for the 
 purpose of favoring some special interest, and tax exemptions 
 were granted, not because the legislatures were convinced that 
 they were for the public interest, but because private interests 
 were able to extort them from subservient legislators. States 
 borrowed money to finance enterprises that no prudent citizen 
 would have ventured to undertake at his private risk, and the 
 public credit was extended to suave speculators whose only assets 
 were their cheerful readiness to promote undertakings on the 
 credit of the public when private credit was withheld from them. 
 Such operations may be justified by success, but unfortunately 
 success was too often denied. 
 
 The reaction against the system of legislative supremacy took 
 the form primarily of a demand for the restriction of the powers 
 of the legislatures. In practice this meant, in the first instance, 
 a demand for the establishment of a system of checks and bal-
 
 no STATE GOVERNMENT IN UNITED STATES 
 
 ances modeled upon that of Massachusetts or New York. The 
 imposition of restrictions upon the authority of the legislatures, 
 however, could not be stopped at the point where it had been 
 begun in the constitutions drafted by Adams and Jay. Direct 
 constitutional limitations upon legislative powers were imposed 
 with ever growing frequency and effect. 
 
 The reaction against the system of legislative supremacy took 
 the form secondarily of a demand for the extension of the powers 
 of the electorates. In practice this meant hi the first instance a 
 demand for the democratization of the forms of government. 
 The extension of the powers of the electorates, however, could 
 not be stopped when executive and judicial officers had been 
 made elective by the people, and thus rendered comparatively 
 independent of legislative control. Ultimately constitutional 
 reformers began to demand that the electorates have power to 
 veto legislative enactments on their own motion, and, if necessary, 
 to enact their own measures independently of the legislatures. 
 Neither the restriction of the powers of the legislatures nor the 
 extension of those of the electorates could be accomplished with- 
 out profoundly affecting the position of the constitutional con- 
 vention, and, indirectly, of the judiciary. Finally, the division 
 of legislative authority and the extension of the work of the electo- 
 rates has stimulated an unprecedented growth of political parties 
 and the development of a thoroughly partisan system of govern- 
 ment. The result has been an extensive and in part unpremedi- 
 tated redivision of powers between the several departments of 
 government. 
 
 THE EXECUTIVE VETO 
 
 The most conspicuous feature of the system of checks and 
 balances originally established in Massachusetts was the execu- 
 tive veto. The veto upon legislative enactments was exercised 
 by the governor at discretion, subject to the power of the legisla- 
 ture to reenact a vetoed measure by a two-thirds vote. In New 
 York the veto was originally exercised subject to the same qualifi- 
 cation by the council of revision, in which the judicial element was 
 preponderant. 
 
 The growing distrust of unchecked legislative supremacy was 
 reflected first in the Federal Convention of 1787. The conserva-
 
 THE REDIVISION OF POWERS in 
 
 live leaders who controlled that body preferred the pure form of 
 executive veto established in Massachusetts to the mixed form 
 established in New York, and the action of the Federal Conven- 
 tion greatly influenced the subsequent action of the states. The 
 first states to revise their original constitutions after the adoption 
 of the Federal Constitution were Georgia in 1789 and Pennsyl- 
 vania in 1790. Both adopted the Massachusetts form of the veto. 
 New Hampshire, which had imitated the original Massachusetts 
 constitution in most respects but had not conferred the veto 
 power upon the governor, did so in 1792. In the same year 
 Kentucky, the first western state to enter the union, armed its 
 governor with the executive veto. The Massachusetts form of 
 the veto for a time seemed likely to win universal acceptance. 
 The New York form was not introduced in any other state except 
 Illinois, which inserted a provision for the mixed executive and 
 judicial veto in its original constitution of 1818. The New York 
 form was abandoned in that state in 1821 and the Massachusetts 
 form substituted. By that time the existence of the pure judicial 
 veto, derived from the power of judicial review of legislative and 
 executive decisions involving the interpretation of the constitu- 
 tion, had become generally recognized, and the continuance of a 
 special council of revision was seen to be unnecessary. The 
 action of New York in 1821 marks the complete development of 
 the separate executive and judicial veto powers. 1 
 
 The general adoption of the Massachusetts form of executive 
 veto was obstructed by the rising tide of democracy in the states. 
 The feeling grew strong that the governor might well be em- 
 powered to delay legislative action and compel reconsideration of 
 measures of doubtful constitutionality or expediency, but ought 
 not to be entrusted with the power to defeat the matured pur- 
 poses of the people's representatives. In 1792 Delaware, while 
 providing for the popular election of the governor, declined to 
 entrust him with the veto power. Tennessee, upon entering the 
 Union in 1796, and Ohio, six years later, did likewise. In 1799 
 Kentucky revised her original constitution and incidentally re- 
 vised the power of executive veto. The new arrangement pro- 
 vided that the governor might veto any legislative enactment at 
 discretion, but that the legislature might reenact any vetoed 
 
 1 See C. Z. Lincoln, Constitutional History of Neu' York, i, pp. 743-749.
 
 112 STATE GOVERNMENT IN UNITED STATES 
 
 measure, if the measure was approved by a majority of all the 
 members elected to the legislature. Thus the governor could 
 prevent the enactment of legislation by less than a clear majority 
 of the whole legislature, but he could not defeat the will of a con- 
 stitutional majority. During the succeeding half century the 
 executive veto was established in fifteen states, in a majority of 
 which the Kentucky form of veto was adopted. By 1850 only 
 six of the original states were still without any form of executive 
 veto, and all the new states admitted after Ohio possessed it in 
 some form. 
 
 Meanwhile, the position of the governor as the special repre- 
 sentative of the whole people of his state had been clearly estab- 
 lished, and public opinion was more generally disposed to sanc- 
 tion a vigorous use of his authority. Since 1850 the executive 
 veto has been established in all the states but one, North Carolina, 
 and with only one exception, West Virginia, these states adopted 
 the Massachusetts form. During the same period the Kentucky 
 form has been abandoned in three states and the Massachusetts 
 form substituted. The final victory of the Massachusetts form 
 of executive veto was won when the people recognized that such 
 power was not inconsistent with the progress of democracy, but 
 on the contrary was essential to it. 
 
 Since the Civil War the executive veto has been further 
 strengthened by an increase of the legislative majorities required 
 to pass measures over the veto. It had been discovered that the 
 vote upon measures was frequently so small that the two- thirds 
 required to overrule a veto might actually be much less than a 
 majority of the whole legislature. In Pennsylvania in 1873, and 
 in New York in 1874 the requirement was therefore changed from 
 two-thirds of those present and voting on a measure to two-thirds 
 of all the members elected to the legislature. Similar changes 
 have since been made in more than a third of the states, and the 
 position of the governor as the special representative of the state 
 as a whole has been correspondingly strengthened. 
 
 A new stage in the development of the executive veto was 
 inaugurated in New Jersey in 1844. It had been discovered that 
 the veto in its original form was not suited for dealing effectively 
 with appropriation bills. Bills containing proper appropriations 
 for necessary expenditures might also contain objectionable
 
 THE REDIVISION OF POWERS 113 
 
 items, and a governor would be forced to approve the objection- 
 able with the rest or veto the whole bill. Legislatures with im- 
 proper designs upon the public treasury could place all appro- 
 priations hi a single bill and thus force the hand of the executive, 
 and could even use an important appropriation bill as a vehicle 
 for carrying objectionable measures relating to entirely different 
 subjects. Hence, when the executive veto was established in 
 New Jersey, it was provided that the governor might veto not 
 only any act as a whole, but also any item of an appropriation act. 
 This provision was subsequently adopted in the constitution of the 
 southern Confederacy, and thereafter was generally adopted in the 
 states of the South. The same provision was adopted in Penn- 
 sylvania in 1873 and in New York in 1874, and thereafter spread 
 rapidly throughout the North and West. At the present time this 
 provision exists hi nearly two-thirds of the states. A further 
 extension of the same principle was adopted in Washington in 
 1889, whereby the governor is authorized to veto not only any 
 bill but any part of any bill, whether it relates to appropriations 
 or not. This provision has since been adopted in two other states. 
 The executive veto power is to-day more widely extended and 
 more strongly fortified than at any previous time. 1 
 
 The power of the executive has been further fortified by the 
 adoption of restrictions upon the eligibility of members of the 
 legislature for appointment to office. A number of states have 
 provided that no member of the legislature shall be appointed 
 to any office which has been created, or the emoluments of which 
 have been increased, during his term of service in the legislature. 
 This restriction is nominally a restriction upon the executive 
 power of appointment, but actually it operates to protect the 
 chief executive against the demands of legislators who would 
 trade support for executive measures in exchange for promises of 
 appointment to office. 
 
 The strengthening of the executive veto and power of appoint- 
 ment, together with the abolition of the original executive coun- 
 
 1 The development of the executive veto is well illustrated by the case of Illinois. 
 Beginning in 1818 with the original New York plan of mixed executive and judi- 
 cial veto, the people adopted the Kentucky plan in 1848; in 1870 the requirement 
 of a two-thirds vote of all elected members to override a veto was introduced, and 
 in 1884 the veto was extended to items of appropriation bills.
 
 ii4 STATE GOVERNMENT IN UNITED STATES 
 
 cils and the establishment of independence of tenure for the chief 
 executive through direct popular election, sufficed to create a 
 continuous check upon legislative authority. This check, how- 
 ever, is not yet as effective in most states as that originally 
 established in Massachusetts, because of the existence of the 
 senatorial power of blocking appointments. In Massachusetts, 
 especially since the council was made elective by the people, the 
 governor has been independent of the legislature in the making of 
 appointments. The original Massachusetts system still exists in 
 New Hampshire and Maine. Elsewhere the governor's appoint- 
 ments are dependent on the approval of the upper branch of the 
 legislature. The power of the executive to check the enactment 
 of legislation is limited by the power of the legislature to check the 
 distribution of patronage. Everywhere the influence of the 
 executive upon legislation is checked by legislative control of 
 the appropriations necessary for the maintenance of executive 
 authority. The power of the purse still remains, as it was in 
 colonial times, the great bulwark of legislative authority. 
 
 THE JUDICIAL VETO 
 
 A less conspicuous feature of the system of checks and balances 
 originally established in Massachusetts was the judicial veto. 
 The power of judicial review of the constitutionality of legislative 
 enactments springs from the obligation of deciding what law 
 applies in a case where there is a conflict of laws. Since the courts 
 must apply the higher law, the duty is plain to declare the legisla- 
 tive enactment unconstitutional when constitutions and statutes 
 conflict. 
 
 This duty of the judiciary was implied in the original theory of 
 American government, but the original forms of government in 
 most of the states were not such as to facilitate its effective per- 
 formance. Indeed, it is probable that the people generally were 
 unconscious of the existence of any such judicial duty. Even in 
 the few states which originally made express provision for the 
 exercise of the power of judicial review, the power was by no 
 means so potent as it has since become. In New York the judicial 
 element controlled the council of revision, but the council of revi- 
 sion was compelled to act before final action by the legislature and
 
 THE REDIVISION OF POWERS 115 
 
 could be overruled by two-thirds majorities of the latter. The 
 final court of appeal in New York was controlled by the senate, 
 which was not primarily a judicial body at all. In Massachusetts 
 and New Hampshire the power of judicial review was qualified 
 by the provision that the legislature or governor could ask the 
 judges of the supreme judicial court for their opinion of the con- 
 stitutionality of a proposed measure in advance of its enactment. 
 Clearly the veto of unconstitutional legislation by the courts was 
 intended to be an exceptional rather than a regular use of judicial 
 power. 
 
 The possibilities of the power of judicial review were clearly 
 grasped by the leaders in the Federal Convention of 1787, and 
 the people of the country were made familiar with its vigorous 
 exercise by John Marshall. The adoption of the Massachusetts 
 type of executive veto in New York in 1821 involved the recogni- 
 tion in that state of a separate power of judicial veto, and that 
 date may be accepted as marking the period of its general recogni- 
 tion by the people of the states. The most effective use of the 
 power of judicial veto, however, was dependent upon the estab- 
 lishment of judicial independence of the state legislatures, a pro- 
 cess which was not completed in most of the states until the adop- 
 tion of the popular election of judges towards the middle of the 
 century. When De Tocqueville paid his memorable visit to the 
 United States during the presidency of Andrew Jackson, the 
 practice had, nevertheless, already become well established. 
 
 De Tocqueville's judgment has been endorsed with the approval 
 of history. "I am inclined to believe," said he, "that this prac- 
 tice of the American courts is at once most favorable to liberty and 
 to public order. If the judge could only attack the legislator 
 openly and directly, he would sometimes be afraid to oppose 
 him ; and at other times, party spirit might encourage him to 
 brave it at every turn. The laws would consequently be at- 
 tacked when the power from which they emanated was weak, and 
 obeyed when it was strong ; that is to say, when it would be 
 useful to respect them, they would often be contested ; and when 
 it would be easy to convert them into an instrument of oppression, 
 they would be respected. But the American judge is brought 
 into the political arena independently of his own will. He only 
 judges the law because he is obliged to judge a case. The polit-
 
 n6 STATE GOVERNMENT IN UNITED STATES 
 
 ical question which he is called upon to resolve is connected 
 with the interests of the parties, and he cannot refuse to decide 
 it without a denial of justice. He performs his functions as a 
 citizen, by fulfilling the precise duties which belong to his pro- 
 fession as a magistrate. It is true that, upon this system, the 
 judicial censorship of the courts of justice over the legislature 
 cannot extend to all laws indiscriminately, inasmuch as some of 
 them can never give rise to the precise species of contest which is 
 termed a lawsuit ; and even when such a contest is possible, it 
 may happen that no one cares to bring it before a court of justice. 
 The Americans have often felt this inconvenience ; but they have 
 left the remedy incomplete, lest they should give it an efficacy 
 which might in some cases prove dangerous. Within these 
 limits, the power vested in the American courts of justice, of 
 pronouncing a statute to be unconstitutional, forms one of the 
 most powerful barriers which has ever been devised against the 
 tyranny of political assemblies. 1 
 
 The power of judicial review may be exercised in a law court of 
 any grade, and by either judge or jury. It was not uncommon, 
 indeed, in the original states to provide that the jury should 
 determine the law applicable to certain classes of causes as well 
 as the facts thereof. The interests of litigants were safeguarded 
 by granting to the losing party a right to a new trial before an- 
 other jury. Thus in Georgia, under the original constitution of 
 1777, the jury were expressly declared to be judges of law as well 
 as of fact, but if any of the jury should have any doubts concern- 
 ing points of law they were authorized to apply to the judges, 
 "who shall each of them in rotation give their opinion." Dis- 
 satisfied litigants in civil causes were entitled to appeal from the 
 verdict and demand a new trial in the same court before a special 
 jury. The ordinary jury were to be sworn to bring in a verdict 
 " according to law, and the opinion they entertain of the evidence ; 
 provided it be not repugnant to the rules and regulations con- 
 tained in this constitution." The special jury were to be sworn 
 to bring in a similar verdict, " provided it be not repugnant to 
 justice, equity, and conscience, and the rules and regulations 
 contained in this constitution, of which they shall judge." There 
 could be no clearer expression than this, both of the power of 
 
 1 A. de Tocqueville, Democracy in America (Bowen's ed.), i, pp. 129-130.
 
 THE REDIVISION OF POWERS 117 
 
 judicial review, and of the duty of the jury to exercise that power. 
 In this instance the power was vested exclusively in the jury, but 
 it is clear that the opinions of the judges were intended to exert 
 such influence as the character of the judges should warrant. 
 
 In practice the enforcement of the law of the written constitu- 
 tion, in cases of conflict with legislative enactments, has fallen 
 almost exclusively to the lot of the judges. It was inevitable 
 that judges, and not juries, should in the long run prove the most 
 effective guardians of the popular rights, so far as these rights 
 were expressly guaranteed in written constitutions. The judges 
 were, comparatively at least, learned in the law ; the juries were 
 not. The judges were selected, professedly at least, by a test of 
 fitness; the juries were selected casually. The judges were 
 organized into a centralized hierarchy; the juries were unsys- 
 tematically organized. The judges were employed in the public 
 service for relatively long periods ; the juries were employed only 
 temporarily. The judges were free to weigh the force of prec- 
 edent ; the juries were dominated by local interests and ideas. 
 The judges concentrated their attention on the law ; the jury, on 
 the facts. Thus, although in criminal cases juries were able to 
 refuse to convict on the ground that the statute on which the 
 prosecution was based was unconstitutional, they tended to rely 
 upon the charge of the judge, and the latter tended to assume the 
 sole function of reviewing the constitutionality of such legislative 
 enactments. Finally, contrary to what must have been the 
 original popular impression, questions concerning the constitu- 
 tionality of legislative enactments tended to arise in connection 
 with civil rather than criminal cases. In such cases the im- 
 portance of jury trials is less. Moreover, as De Tocqueville 
 pointed out long ago, it is especially in civil cases that "the judge 
 appears as a disinterested arbiter between the conflicting passions 
 of the parties. The jurors look up to him with confidence, and 
 listen to him with respect, for in this instance his intellect entirely 
 governs theirs. . . . His influence over them is almost un- 
 limited." Thus, "the American judge is constantly surrounded 
 by men who are accustomed to regard his intelligence as superior 
 to their own ; and after having exercised his power in the decision 
 of causes, he continues to influence the habits of thought, and 
 even the characters, of those who acted with him in his official
 
 n8 STATE GOVERNMENT IN UNITED STATES 
 
 capacity. The jury, then, which seems to restrict the rights of 
 the judiciary, does in reality consolidate its power. . . ." * 
 In short, the exercise of the power of judicial review was 
 preempted by the judges, so far as was necessary for the enforce- 
 ment of the formal law of the state constitutions, and the juries 
 were confined to the exercise of the power only in cases involving 
 the unwritten law. 
 
 .Whilst the power of judicial veto has been universally recog- 
 nized, the Massachusetts provision for advisory judicial opinions 
 has been adopted in comparatively few states. Five other 
 states, 2 one of which later abandoned the practice, have provided 
 for obtaining opinions from the judges of the highest court upon 
 application by the executive or legislature. Two states 3 have 
 provided for obtaining such opinions upon application by the 
 executive alone. In Massachusetts the judges are to give their 
 opinions "on important questions of law and upon solemn occa- 
 sions." In some of the other states the obligation to give advi- 
 sory opinions is more restricted, and even in Massachusetts the 
 judges are free to withhold their opinions if they do not consider 
 the question of law important or the occasion solemn. Nor are 
 they bound to adhere to their opinion, when once given, if the 
 same question of law should later arise in the course of litigation, 
 and further reflection, aided by the arguments of counsel, should 
 prompt a different decision. In short, the giving of such opinions 
 by judges is generally not regarded as an exercise of a judicial 
 function, and the opinions therefore have much the same legal 
 status as opinions of the attorney-general in states where that 
 officer is the official legal adviser of the administration. If they 
 are usually received with greater respect, it is because the judges 
 usually enjoy a greater reputation for legal learning, and not 
 because of their official position. The power to require such 
 advisory opinions may be useful to perplexed legislatures and 
 executives, but it does not deprive the courts of the power of 
 judicial veto or impair the exercise thereof. 4 
 
 1 De Tocqueville, Democracy in America (Bowen's ed.), pp. 366-367. 
 'New Hampshire (1784), Maine (1820), Rhode Island (1842), Missouri (1865- 
 1875), and Colorado (1886). 
 
 1 Florida (1868) and South Dakota (1889). 
 4 J. B. Thayer, Legal Essays, no. 2.
 
 THE REDIVISION OF POWERS 119 
 
 CONSTITUTIONAL LIMITATIONS ON LEGISLATIVE POWERS 
 
 The scope of the judicial veto is determined by the extent of the 
 constitution limitations upon the powers of the state legislatures. 
 In the beginning, therefore, it was confined to a comparatively 
 narrow range of subjects, since the powers of the state legislatures 
 were limited only by the general reservations of rights to the 
 people in the original declarations of rights. With the gradual 
 decline, however, in the prestige of the state legislatures the con- 
 stitutional limitations upon their powers were steadily increased. 
 In other words, the record of legislative folly and corruption in 
 the American states is spread upon their constitutions in the 
 form of a stream of amendments designed to check the abuse of 
 legislative powers. The power to pass special and local acts, the 
 power to tax and to grant tax-exemptions, the power to invest the 
 public money, loan the public credit, and dispose of the public 
 resources in general, all were subjected to a series of restrictions 
 ever increasing in number and stringency. 
 
 The limitation of the powers of the legislatures, though never 
 interrupted, has proceeded with conspicuous vigor at three clearly 
 defined periods, each inaugurated by especially impressive exam- 
 ples of legislative incapacity and turpitude. The first period be- 
 gan with the notorious Yazoo land scandal in Georgia, followed 
 by scandalous practices in connection with the grant of banking 
 charters in several of the states, especially in New York. The 
 revision of the constitution of Georgia in 1798 was undertaken 
 mainly for the purpose of preventing the repetition of the land 
 scandal, and the experience of Georgia was not forgotten when 
 the constitutions of the new states of the old Northwest and 
 Southwest were formed early in the nineteenth century. The 
 period culminated in the reform of the New York constitution in 
 1821. The second period began with the panic of 1837, followed 
 by the failure of the systems of internal improvements under- 
 taken by many of the states, and the repudiation of several 
 state debts. The constitutions of Pennsylvania in 1838 and New 
 Jersey in 1844 were revised with a view to profiting by these 
 unpleasant experiences, and by the middle of the century the 
 constitutions of most of the states had been revised or were in 
 process of revision. The third period began with the outburst
 
 120 STATE GOVERNMENT IN UNITED STATES 
 
 of speculation in special privileges at the close of the Civil War, 
 and is sufficiently characterized by the Credit Mobilier scandal 
 in Congress. Beginning in 1870, the constitutions of most of the 
 leading states in the North outside of New England were revised, 
 the culmination of the movement being reached in New York in 
 1894. At the same time, in the South, the period following the 
 overthrow of negro domination was likewise characterized by the 
 thorough overhauling of the constitutions of the states, with a 
 view to the further limitation of legislative misconduct. 
 
 The great extension of the power of judicial veto during the 
 nineteenth century is revealed by a comparison of the constitu- 
 tional limitations originally imposed on the Massachusetts 
 legislature with those imposed on the legislature of New York in 
 the constitution of 1894. For example, the power to tax in 
 Massachusetts was limited only by the provisions that personal 
 and property taxes should be "proportional and reasonable," 
 that duties and excises should be "reasonable," and that for the 
 purpose of levying poll and property taxes there should be a 
 revaluation of property at least once every ten years. The power 
 to appropriate the proceeds of taxation was limited only by the 
 provision that appropriations should be for a public purpose. 1 
 Finally, the legislature was forbidden to suspend the writ of 
 habeas corpus, except upon the most urgent and pressing occasions 
 and for not more than twelve months at a time. 2 Except for the 
 limitations set forth in the declaration of rights, there were no 
 other limitations upon the powers of the legislature in the Massa- 
 chusetts constitution of 1780. The power to dispose of the public 
 domain, to incur debt, to charter corporations and confer special 
 privileges upon them, to pass private and local acts, to engage in 
 public enterprises, and to pass public acts of every description, 
 all were conferred in one general grant of legislative power. 3 
 
 In New York, on the other hand, by the constitution of 1894 
 the powers of the legislature were subjected to important limita- 
 tions, and legislative procedure was subjected to stringent regula- 
 tion. No private or local bill might embrace more than one sub- 
 ject, and no private or local bill might be passed at all in any one 
 
 1 Ch. i, sect, i, art. iv; ch. ii, sect, i, art. ii. 
 
 1 Ch. vi, art. vii. 
 
 1 Ch. i, sect, i, art. iv.
 
 THE REDIVISION OF POWERS 121 
 
 of a long list of specified cases. Among these were the following : 
 changing the names of persons, laying out roads, locating county 
 seats, providing for changes of venue in civil or criminal cases, 
 incorporating villages, selecting grand or petty jurors, regulating 
 the rate of interest on money, creating allowances for public 
 officers during their terms of office, gran ting the right to lay down 
 railroad tracks, granting to any private corporation, association, 
 or person any exclusive privilege, or granting to any person or 
 corporation an exemption from taxation on real or personal 
 property. The assent of two-thirds of all the members elected 
 to each branch of the legislature was required for any appro- 
 priation of public money or property for private or local purposes ; 
 and the assent of a majority of a special quorum consisting of 
 three-fifths of all the members on a special roll-call to be recorded 
 in the official journal was required for the adoption of any act 
 imposing a tax, creating a debt, or making an appropriation. The 
 legislature was forbidden to loan the credit of the state to any 
 person or corporation, or to contract debts in excess of one million 
 dollars for the purpose of meeting deficits in the revenues except 
 in case of insurrection or invasion, or to contract any debts for 
 any other purpose except with the express approval of the people. 
 The legislature was forbidden to dispose of the state forests, or 
 of the canals, or to charge tolls thereon. The legislature was 
 forbidden to authorize any local governing body to loan its credit 
 or incur indebtedness except for its own purposes, and local 
 debts were limited to ten per cent of the assessed valuation of 
 local real estate. The constitution also provided for the classi- 
 fication of cities in three classes according to their population and 
 prescribed a special procedure for the passage of special laws 
 relating to a single city or to any number of cities less than the 
 whole number in a class. Such a law, before being submitted 
 to the governor for his approval, was required first to be trans- 
 mitted to the mayor or mayors of the city or cities concerned and, 
 if not approved by him or them, to be repassed by the legislature 
 with a statement in the title for the information of the governor 
 that the bill is passed without the acceptance of the city or cities 
 concerned. The apportionment of the state for the election of 
 members of the legislature was provided for in the constitution 
 itself, and the power of the legislature to redistrict the state was
 
 122 STATE GOVERNMENT IN UNITED STATES 
 
 carefully defined. The manner of passing bills was regulated in 
 order to secure due deliberation and adequate publicity at each 
 stage of the procedure, and the legislature was expressly forbidden 
 to audit any private claim against the state, or to authorize the 
 payment of any account not previously allowed according to 
 law. It is apparent that the New York constitution of 1894 
 afforded far broader scope for the exercise of the power of judicial 
 review than the Massachusetts constitution of 1780. 
 
 At the present time, the states fall into three groups with 
 respect to the extent to which legislative powers have been re- 
 stricted by the insertion of express limitations in the state con- 
 stitutions. The first group consists mainly of states in New Eng- 
 land, of which Massachusetts is the most conspicuous representa- 
 tive, and is characterized by a comparatively slight imposition 
 of constitutional limitations upon legislative powers. The second 
 group comprises a somewhat larger group of states, mostly in 
 the East and Middle West, of which New York is the most con- 
 spicuous representative, and is characterized by a more extensive 
 limitation of legislative powers, but especially by a more thorough 
 regulation of legislative procedure. The third group comprises 
 the greater number of states, including almost all the states of the 
 South and Far West, of which the most conspicuous representatives 
 are California, Louisiana, and Missouri, and is characterized not 
 only by the extensive limitation of legislative powers, but also 
 by the regulation of the frequency and duration of the legislative 
 sessions. In most cases, the legislature is permitted to meet 
 only every other year, unless called in special session by the gov- 
 ernor, but in Alabama it is permitted to meet only every fourth 
 year. In most cases, the sessions are limited to sixty or ninety 
 days. In a few the limit is lower. In Oregon and Wyoming it is 
 placed as low as forty days. Apparently the people of those 
 states despaired of securing any effective check on the miscon- 
 duct of their legislatures, and, accepting the view that legislatures 
 are a necessary evil, sought relief by confining the evil within the 
 shortest possible limits of time. 1 
 
 1 For an illuminating interpretation of the constitutional history of the state 
 legislatures, see Herbert Croly, Progressive Democracy, chs. xi, xii. See also P. S. 
 Reinsch, American Legislatures and Legislative Methods, ch. iv.
 
 THE REDIVISION OF POWERS 123 
 
 GROWTH OF POWER OF CONSTITUTIONAL CONVENTION 
 
 The widespread adoption of constitutional limitations upon 
 legislative powers, apart from its effect upon the exercise of the 
 power of judicial review, has had important consequences on the 
 general operation of state government. 
 
 In the first place, it has greatly altered the position of the con- 
 stitutional convention in the governmental system. In the begin- 
 ning the constitutional convention was an extraordinary legisla- 
 tive body, meeting only for the purpose of devising or revising the 
 fundamental organization of the government. As the prestige of 
 the ordinary state legislature declined, however, that of the con- 
 stitutional convention rose, and its work broadened in scope. 
 From the moment that the convention came to be regarded as 
 the instrument for repairing the mistakes or misdeeds of the 
 ordinary legislature its future became full of promise. At first 
 it generally confined its correctional activities to the single task 
 of imposing upon the legislatures constitutional limitations 
 designed to prevent the abuse of their powers. Then it began to 
 issue orders to the legislatures, enjoining upon them the per- 
 formance of their duties. Thus, the Georgia constitutional con- 
 vention of 1798 commanded the Georgia legislature to repeal 
 certain acts relating to the disposal of the public lands, and to 
 enact certain other measures in their stead. It was quickly 
 perceived, however, that this mode of procedure was ineffective, 
 since there was no means of compelling a refractory legislature 
 to comply with the orders of a convention. The difficulty was the 
 same as that which had frustrated the efforts of the council of 
 censors in Pennsylvania. The constitutional conventions, there- 
 fore, quickly adopted the practice of executing their own com- 
 mands by the simple device of inserting them in the fundamental 
 law, and thus taking the matters to which they referred out of the 
 hands of the legislatures. In other words, the conventions 
 utilized the forms of fundamental law-making for the purpose of 
 enacting ordinary statutory law, and thereby acquired for them- 
 selves the powers of an ordinary legislative body, subject in 
 their exercise to the approval of the electorate in those states 
 where the approval of the electorate was required for the revision 
 or amendment of the constitution. In short, the constitutional
 
 124 STATE GOVERNMENT IN UNITED STATES 
 
 convention became transformed into an ordinary legislative body, 
 meeting more or less periodically for the purpose of reviewing the 
 conduct of the regular legislature and of enacting, with the ap- 
 proval of the people, such legislation as the occasion should 
 appear to demand. 
 
 One indication of the legislative activity of the constitutional 
 conventions is the increase in the length of the state constitutions. 
 The original constitution of Virginia occupies six and one-half 
 printed pages in Thorpe's edition of the state constitutions. The 
 Massachusetts constitution of 1780, the longest of the original 
 constitutions, occupies twenty- three printed pages. The pro- 
 posed constitution and other acts of the Oklahoma constitutional 
 convention of 1907 occupy seventy-four pages in the same com- 
 pilation. The original Virginia constitution contains no ordinary 
 legislation. The original Massachusetts constitution contains 
 none, unless an article confirming the privileges of Harvard 
 College be deemed an ordinary statutory enactment. The con- 
 stitution of Oklahoma contains eleven pages of legislation relating 
 to the subject of corporations alone, besides much more ordinary 
 legislative matter relating to homesteads and exemptions, banks 
 and banking, insurance, the employment of children, and educa- 
 tion. It forbids plural marriages, fixes the maximum rate of 
 interest, abolishes the so-called fellow-servant doctrine and 
 regulates the use of the contributory-negligence and assumption- 
 of-risk doctrines as defenses in certain suits for damages, estab- 
 lishes the eight-hour day on public works and in coal mines, and 
 determines the test for the purity of kerosene oil. The conven- 
 tion also provided for the separate submission to the electorate 
 of a proposal to prohibit the sale of intoxicating liquors. The 
 acts of the Oklahoma convention of 1907 are merely the most 
 striking evidence of the growing tendency throughout the states, 
 especially in the South and West, to transform the constitutional 
 convention into an ordinary legislative body. The fundamentals 
 of state government are predetermined outside of the conven- 
 tions by public opinion, and the responsibility for alterations in 
 the actual frames of government has been in the main shifted to 
 the electorates. 
 
 The result of these developments was to precipitate a struggle 
 for supremacy in some states between the legislature and the
 
 THE REDIVISION OF POWERS 125 
 
 constitutional convention. In the course of this struggle three 
 different theories concerning the constitutional position of the 
 constitutional convention have been developed. According to 
 the first, the constitutional convention is a subordinate legislative 
 body, subject to control by the regular legislature of the state. 
 According to the second, it is a sovereign body, possessing for the 
 time being all the powers of the sovereign people. According to 
 the third, it is a coordinate legislative body, subject like the regu- 
 lar legislature to the constitution of the state, but not subject to 
 the authority of any other legislative body. 
 
 The conflicting nature of these three theories may be illustrated 
 as follows. The people, let us say, by a majority of the votes of 
 those voting thereon approve an act of the legislature providing 
 for the election of a constitutional convention. Whether the 
 legislature is expressly authorized by the constitution to submit 
 such an act to the people is, as has already been shown, immate- 
 rial, except in Rhode Island. The legislature then provides for 
 the election of the delegates to the convention, and in the same 
 act imposes certain limitations upon the powers of the conven- 
 tion, when it shall meet. For example, it may enact that the 
 convention shall not propose amendments to certain sections of 
 the existing constitution, or shall submit amendments to certain 
 sections, if at all, separately to the people, or shall submit them 
 at a certain time and in the manner provided by the law of the 
 state governing elections. The advocate of the supremacy of 
 the ordinary legislature would assert that the convention would 
 have no right to disobey any of these injunctions. The advocate 
 of the supremacy of the convention would assert that it might 
 disobey any or all of them. The advocate of the coordinate 
 authority of legislature and convention would assert that the 
 convention might disobey some of these injunctions but must 
 obey others. 
 
 Very few of the state constitutions define the status of the 
 constitutional convention. In all the states, until comparatively 
 recently, and at the present time in almost all, the powers of the 
 constitutional convention are to be discovered only by examination 
 of the unwritten law of the constitution. The two fundamental 
 principles of the unwritten law are the sovereignty of the people 
 and the reign of law. Whatever powers a constitutional conven-
 
 126 STATE GOVERNMENT IN UNITED STATES 
 
 tion may possess, therefore, if not defined in the written constitu- 
 tion, must be obtained by a delegation of authority by the people, 
 and the delegation of this authority must be accomplished by 
 due process of law. 
 
 There are two distinct cases : first, where the call for the con- 
 vention is not submitted to the people for an expression of their 
 consent ; secondly, where it is so submitted. In the former case, 
 such power as the convention may possess is apparently dele- 
 gated to it by the legislature on its own authority. It is an ac- 
 cepted principle of the unwritten constitution, however, that legis- 
 lative power may not be delegated by the body on which the 
 people have conferred it. The calling of a convention, there- 
 fore, without a vote of the people must be regarded as an abdica- 
 .tion of power by the regular legislature in favor of an extra- 
 constitutional body. Such a body is a revolutionary rather than 
 a constitutional convention, and the extent of its powers would 
 apparently be determined by itself, subject only to the limits 
 which the people in their capacity of ultimate sovereign may 
 be able to impose. It cannot be denied that many of the 
 conventions which have been held in the states have been 
 of this character, and the propriety of such a convention 
 has been sustained by the supreme court of Mississippi in a 
 case involving the power of the convention of that state held 
 in 1890 practically to disfranchise the negro voters without 
 their consent. 1 
 
 The more general case at the present time is that in which the 
 call of the convention has been expressly sanctioned by a vote of 
 the people. In such a case, the powers of the convention must 
 be derived from the terms of the vote adopted by the people, and 
 the terms of that vote must be formulated in the first instance 
 by the legislature. So far, there can hardly be any disagreement 
 between the advocates of the several theories set forth above. 
 The advocates of legislative supremacy, however, proceed further. 
 They argue that, since the voice of the people is expressed through 
 the legislature, the adoption of a vote by the people authorizing 
 the legislature to call a convention serves also to authorize the 
 legislature to regulate the powers and procedure of the convention 
 in any manner that the legislature may deem necessary and proper. 
 
 1 See Sproule v. Fredericks, 69 Miss. 898 (1892).
 
 THE REDIVISION OF POWERS 127 
 
 Hence, although whatever powers the convention possesses must 
 be derived from the people, the extent of those powers may be 
 defined by the legislature without any further express approval 
 on the part of the people than that indicated by their sanction of 
 the call. The advocates of the supremacy of the convention, on 
 the other hand, argue that if the vote of the people sanctions the 
 call of a convention, it is a constitutional convention that must be 
 called, a body possessing for the time all the sovereign powers of 
 the people themselves, and not some inferior body subject to the 
 control of the ordinary legislature of the state. The legislature 
 is not authorized to use its discretion with respect to the extent 
 of power that shall be conferred on the people, assembled by their 
 representatives in convention, but simply to issue the call for 
 the election of these representatives. 
 
 The advocate of the coordinate authority of convention and 
 legislature reasons in a different manner. Proceeding from the 
 accepted rule that whatever powers the convention may possess 
 must be derived from the people, he argues that the terms of the 
 vote actually adopted by the people are the evidence of the extent 
 of these powers, and that any restrictions which the legislature 
 may seek to impose without the express approval of the people 
 are unauthorized and hence invalid. The legislature may pro- 
 pose to the people whatever limitations it pleases, but these 
 limitations must be accepted by the people in order to take effect 
 upon the convention. The convention should be free to disregard 
 any special limitations which the legislature may seek to impose 
 subsequently to the vote by the people sanctioning the call of the 
 convention, but it should not be free to disregard the general law 
 of the state, whether expressed in the constitution or in the acts 
 of the legislature. A convention, for example, may disregard a 
 legislative act, not submitted to the people for their approval, 
 which seeks to limit the duration of the deliberations of the con- 
 vention, but it may not disregard a legislative act providing that 
 appropriations for the support of the convention shall lapse after 
 a limited period. In other words, the executive or judiciary of the 
 state would not be justified in turning a convention out of doors 
 after the period set by the legislature for the termination of its 
 deliberations had expired, but they would be justified in with- 
 holding further funds. The convention might continue in session,
 
 128 STATE GOVERNMENT IN UNITED STATES 
 
 but it would have to look to the people for indemnification for 
 any further expenses that might be incurred. 
 
 No one of these theories with respect to the position of the con- 
 stitutional convention has been universally accepted in the states. 
 In several of the states no one has even been uniformly followed. 
 The theory of legislative supremacy has been vigorously asserted 
 by the supreme court of Pennsylvania, for example, but it was not 
 accepted by the last convention of that state. The people adopted 
 the constitution which the convention proposed to them, thus 
 exculpating the members of the convention for their disregard of 
 the restrictions which the legislature sought with the approval 
 of the court to impose upon them. 1 The theory of the supremacy 
 of the convention seems to have become the established rule in 
 Virginia. On three occasions, in 1830, 1850, and 1869, the con- 
 vention extended the right to vote to classes of the population 
 which had not previously possessed it, and then submitted their 
 work to the new electorate for approval. On a fourth occasion, 
 in 1902, the convention deprived an important class of the popula- 
 tion of their right to vote and then declined to submit their work 
 to the judgment of the electorate, either old or new. 2 When a 
 convention in Illinois, however, tried in 1862 to usurp ordinary 
 legislative powers, the political situation rendered it inexpedient 
 to attempt to dispense with the formal approval of the electorate, 
 and the work of the convention was repudiated by the people 
 of the state. 3 Whilst no one theory can be said to have become 
 generally accepted, the view seems to be tending to prevail, at 
 least in those states where popular approval is required before a 
 convention may be called, that the convention and legislature 
 should be coordinate legislative bodies, each independent of the 
 other in its proper sphere and both alike subject to the supremacy 
 of the constitution. 4 
 
 1 See Wells v. Bain, 75 Pa. St. 39 (1874), and Wood's Appeal, 75 Pa. St. 59 (1874). 
 3 F. A. Magruder, Recent Administration in Virginia (Johns Hopkins University 
 Studies, xxx, i, pp. 78-94), p. 89. 
 
 3 O. M. Dickerson, The Illinois Constitutional Convention of 1862 (University of 
 Illinois Studies). 
 
 4 See Report of Committee on Judiciary, Elihu Root, chairman, New York Con- 
 stitutional Convention, 1894, Documents and Reports, pp. 70-100.
 
 THE REDIVISION OF POWERS 129 
 
 GROWTH OF POWER OF ELECTORATE 
 
 Secondly, the widespread adoption of constitutional limitations 
 upon legislative powers has greatly altered the position of the 
 electorate in the governmental system. The least conspicuous 
 feature of the system of checks and balances originally estab- 
 lished in Massachusetts was the direct popular veto of legislative 
 measures. Since in most states the work of constitutional con- 
 ventions may become effective only with the express consent of 
 the people, the process of imposing restrictions on the legislatures 
 involved an increase in the activities of the electorates. The 
 feeling that the people were directly participating in the making 
 of laws was intensified when constitutional conventions began to 
 insert substantive law of an ordinary statutory nature in the 
 constitutions. Many conventions still further intensified this 
 feeling by providing for separate submission of measures of an 
 ordinary statutory character, thus making the electors conscious 
 of the distinction between the statutory law and constitutional 
 law in the strict sense of the term. Finally many legislatures 
 themselves have been compelled to enact much legislation in the 
 guise of constitutional amendments, which, but for the restric- 
 tions imposed upon them by the conventions, would have been 
 disposed of without reference to the people. The result has been 
 greatly to increase the importance of the state electorates as 
 legislative bodies. 
 
 The decline in the powers of the legislatures was the result of 
 the decline of legislative prestige. As the people's respect for 
 the ability and integrity of their representative bodies dwindled, 
 their reliance upon themselves was necessarily bound to grow, 
 unless they were to confess popular government a failure. Thus 
 direct action by the electorate came to the support of a declining 
 system of representative government. 
 
 The rise of the electorate as an instrument for direct legislative 
 action has been marked by the development of two distinct forms 
 of activity. One has culminated in what is called municipal 
 home rule ; the other, in direct legislation by the people. The 
 former has rendered the electorates of the municipalities in those 
 states where it has been adopted independent of the authority 
 of the legislature in local concerns ; the latter has rendered the 
 K
 
 I 3 o STATE GOVERNMENT IN UNITED STATES 
 
 electorates of certain states as a whole independent of the state 
 legislatures. Both systems alike operate as limitations upon 
 legislative power. The referendum alone, whether local or state- 
 wide, makes possible the popular veto of legislative enactments. 
 Municipal home rule and the procedure for direct legislation by 
 the people, when complete, enable the electorate not only to veto 
 legislation that is not desired but also to take the initiative in the 
 enactment of legislation without awaiting the pleasure of the 
 ordinary legislature of the state. The referendum is negative in 
 its operation ; it facilitates the correction of legislative errors of 
 commission. The initiative is positive ; it facilitates the correc- 
 tion of errors of omission. 
 
 MUNICIPAL HOME RULE 
 
 The development of home rule has been a gradual process. 
 In the form of the local popular veto it seems to have been intro- 
 duced first in New England. There the traditional system of 
 local government was characterized by the assemblage of all 
 the voters at least once a year in town meeting for the election of 
 local officers and the ordering of town affairs. When in 1820 the 
 Massachusetts constitutional convention proposed an amendment 
 to define the legislature's power to incorporate cities, it readily 
 provided that the legislature should not grant a municipal charter 
 to any town unless a majority of the townsmen voting in town 
 meeting should approve the change from town to city. Thus the 
 power of the legislature to incorporate cities was limited by the 
 obligation to obtain the consent of the people of the proposed city. 
 Thereafter the local referendum was gradually introduced in all 
 parts of the country in connection with legislation affecting the 
 forms, organization, powers and procedure of local government. 
 To-day, by the constitutions of many states, the legislatures are 
 forbidden to enact measures to incorporate villages and cities, 
 to define the boundaries of counties or divide them into townships, 
 to locate county seats or change county names or to alter the 
 forms of local government without the consent of the people 
 of the localities affected. 
 
 Once the local referendum had been established by constitu- 
 tional conventions as an instrument for checking the operations 
 of the legislatures, it was an easy step for the legislatures them-
 
 THE REDIVISION OF POWERS 131 
 
 selves to extend the use of the local referendum as an instrument 
 for checking the operations of the local governments. Thus 
 statutes were enacted in many states forbidding local governing 
 authorities to lend the public credit for the promotion of private 
 enterprises of a commercial or industrial nature, or forbidding 
 the expenditure of public money directly by the local govern- 
 ment itself for local improvements without the express consent 
 of the people. A further step was taken when the legislatures 
 adopted the practice of submitting to the decision of the voters 
 certain questions which the legislatures could not ignore and could 
 not themselves decide without embarrassment. Thus, the ques- 
 tion of the control of the traffic in intoxicating liquors was dis- 
 posed of in many states by the enactment of laws, providing for 
 the decision between a policy of license or no-license directly by 
 the voters in each locality. Local option, as this procedure was 
 called, means in New England annual referenda in each city and 
 town, in other parts of the country referenda in the county or 
 in subdivisions of the county. Similar procedure has been estab- 
 lished in some states for the decision of questions such as the 
 establishment of municipal public services, especially waterworks 
 and lighting plants, and the granting of franchises to public 
 service corporations. 
 
 The most important development of the local referendum has 
 been in connection with the adoption and revision of municipal 
 charters. In Massachusetts the legislature early established the 
 practice of submitting to the people of the towns and cities for 
 their acceptance or rejection all proposals for the adoption or 
 revision of charters. In other states this practice was made 
 mandatory upon the legislature by the constitution. The final 
 step in the development of municipal autonomy was taken in 
 Missouri in 1875. The constitution adopted in that year pro- 
 vided that on petition of a certain number of citizens in any city 
 an election should be held for the choice of a board of freeholders 
 whose duty it should be to prepare a charter and submit it to the 
 people. If approved by them, it should go into effect without 
 any special action on the part of the state legislature, nor should 
 the state legislature be able to alter it in any manner except by 
 general law applying to the whole state. Thus an effective power 
 of local popular initiative was added to the local referendum.
 
 STATE GOVERNMENT IN UNITED STATES 
 
 This or similar procedure for the establishment of municipal 
 home rule has now been adopted in a dozen states. In some 
 states home rule charters must be submitted to the governor of 
 the state for his approval in order to ensure the elimination of 
 provisions in conflict with the general laws of the state, but in 
 most states the adjustment of cases of conflict between home rule 
 charters and the general laws of the state is left to the courts. 
 The last step in the development of local home rule has been taken 
 in California, where the application of the procedure for the 
 adoption of home rule charters has been extended to the county. 
 
 THE STATE-WIDE REFERENDUM 
 
 The state-wide, like the local, referendum was first employed 
 in Massachusetts, and was subsequently copied and extended by 
 other states. At the present time it may be employed in five 
 different cases : (i) in connection with the revision and amend- 
 ment of state constitutions, as has already been described; 
 (2) in connection with ordinary legislation, which is submitted 
 by a state legislature to the electorate for approval or disapproval 
 either by reason of a constitutional limitation or directly upon its 
 own motion; (3) in connection with ordinary legislation duly 
 enacted by the legislature and referred to the electorate upon 
 petition by a certain fraction thereof ; (4) in connection with pro- 
 posals for ordinary legislation which the legislature has neglected 
 to enact, submitted directly to the electorate upon petition of a 
 certain fraction thereof; and (5) in connection with proposed 
 constitutional amendments which may be submitted directly to 
 the electorate upon petition of a certain fraction thereof with- 
 out the intervention of the legislature. The third case is that 
 which is often described as the direct popular referendum. The 
 fourth is often described as the direct popular or statutory initia- 
 tive, and the fifth as the constitutional initiative. The third and 
 fourth together or the third, fourth, and fifth together constitute 
 the procedure often collectively described as direct legislation by 
 the people. The second case, which may for convenience be 
 described as the legislative referendum, is that which developed 
 next after the development of the referendum upon proposed 
 constitutional revisions and amendments.
 
 THE REDIVISION OF POWERS 133 
 
 Legislative referenda are of two kinds : those expressly author- 
 ized by the constitution, and those not expressly authorized. 
 One of the earliest instances of the legislative referendum ex- 
 pressly authorized by the constitution is found in connection with 
 choice of a site for a state capital. Texas was the first state to 
 make provision for the submission by the legislature to the people 
 of a measure to indicate their preference respecting the location 
 of the permanent seat of government. Oregon, Kansas, and 
 Colorado, and several other states more recently, did the same 
 when they were admitted to the Union. The constitutions of at 
 least a dozen states now provide that the legislature shall enact 
 no law providing for the relocation of the capital without the 
 approval of the people. A still earlier instance of the legislative 
 referendum was its use in order to control more effectively the 
 legislative power to raise and expend the public revenues. In 
 1842 a provision was inserted in the new constitution of Rhode 
 Island forbidding the legislature to contract any indebtedness 
 beyond $50,00x5, except in tune of war or in case of invasion or 
 domestic insurrection, without the approval of the people. 
 Similar limitations upon the power of the legislatures to contract 
 debts have since been adopted, subject to various exceptions 
 respecting the amount of debt, in at least a dozen states. The 
 amount of indebtedness for ordinary public purposes which may 
 be contracted without the necessity of ratification by the people 
 varies from $50,000 in Rhode Island to $1,000,000 in New York, 
 but the principle is the same. The legislature must keep the 
 state expenditures within its revenues, or secure authority for the 
 contraction of debt directly from the people. This limitation 
 serves also as a limitation upon the power of the legislatures to 
 engage in expensive works of public improvement without the 
 express approval of the people, although in a few states the legisla- 
 ture may not even adopt a project of public improvement, much 
 less finance it, without the express approval of the people. In a 
 few states the legislatures are forbidden to dispose of certain 
 public properties without the express approval of the people, and 
 in a few others they are forbidden even to increase the rate of 
 taxation upon property beyond a maximum fixed in the constitu- 
 tion without the express approval of the people. The state-wide 
 legislative referendum has also been employed in several states
 
 134 STATE GOVERNMENT IN UNITED STATES 
 
 to prevent the abuse of the power to create banking corporations. 
 Beginning in Iowa in 1846, the constitutions of seven states, all 
 located in the Middle West, prohibit the legislature from enacting 
 without the express consent of the people any law for the chartering 
 of banks. Thus, through the operation of the legislative referen- 
 dum in certain classes of cases expressly authorized by the state 
 constitution, both the legislatures and the people have been 
 familiarized with the use of the popular veto in connection with 
 the adoption of ordinary statutes as well as of constitutional 
 amendments and revisions. 
 
 It was an easy step for state legislatures to resort to the state- 
 wide referendum upon statutes in cases where they were not 
 authorized to do so by the state constitution. The first instance 
 seems to have occurred in New York in 1849. The legislature was 
 convinced that the people wished to establish a compulsory 
 system of public education, but was uncertain as to the willing- 
 ness of the people to pay the cost. The legislators therefore 
 sought to evade their responsibility for action in the matter by 
 passing a measure for free compulsory education with the proviso 
 that it should not take effect unless approved by a majority of the 
 voters. The law, however, was declared unconstitutional by the 
 supreme court of the state. 1 The court took the view that legisla- 
 tive power conferred upon the legislature by the constitution was 
 to be used, if at all, by the legislature itself, and might not be 
 delegated by the legislature to others, not even to the state 
 electorate. Had the people wished to reserve to themselves the 
 power to legislate, presumably they would have done so. Since 
 they had not done so, the only reasonable inference, the court 
 believed, was that they had commanded their servant, the legis- 
 lature, to exercise that power for them. To attempt to shift 
 responsibility back upon the people for the adoption of legisla- 
 tion was therefore a breach of trust on the part of the legislature. 
 
 Shortly afterwards the policy of prohibiting the sale of intoxi- 
 cating liquors, or so-called Maine idea, swept the northern and 
 western states, to the great embarrassment of the state legisla- 
 tures. In several states they would have preferred to refer the 
 whole matter to the people, but the decision in the New York 
 case stood in the way of such evasion of their responsibility. In 
 
 1 Barto vs. Himrod, 4 Seld. (N. Y.), 483. See also State vs. Hayes, 61 N. H., 264.
 
 THE REDIVISION OF POWERS 135 
 
 Michigan an ingenious device was adopted to gain the same end. 
 A state-wide prohibitory law was enacted in 1853 to go into effect 
 either on December i, 1853, or on March i, 1870, and the decision 
 between the two dates was referred to the electorate. In either 
 event the law was to go into effect, unless sooner repealed, and 
 hence there was no delegation of legislative power by the legisla- 
 ture, but simply a direction to the executive to enforce the act 
 from a certain date in the event of a certain contingency, namely 
 a vote in favor of that date by the electorate. This law was 
 declared constitutional by a divided court, but in general legisla- 
 tive attempts to shift the responsibility for legislation to the 
 electorate, except in those cases where such shifting is expressly 
 authorized by the constitution, have found little favor in the 
 courts. 1 
 
 The use of the referendum on proposed legislation of any sort 
 at the discretion of the legislature has been expressly authorized 
 by constitutional amendment in a few states, notably in Michigan 
 in 1908 and in Massachusetts in 1913. In a larger number of 
 states, where the process of constitutional amendment is short 
 and direct, the legislature can virtually refer any proposed legis- 
 lation to the electorate by referring it under the guise of a proposed 
 amendment to the constitution. Occasionally a referendum has 
 been ordered by a state legislature for advisory purposes only. 
 In such cases the vote has no legal force and serves simply as an 
 expression of public opinion. In one state, Illinois, the legisla- 
 ture provided in 1902 that an advisory vote may be had on any 
 question submitted by popular petition. This advisory initia- 
 tive, however, does not actually increase the constitutional power 
 of the electorate. It merely serves as an additional means for 
 the expression of public opinion. 
 
 DIRECT LEGISLATION BY THE PEOPLE 
 
 The foundation for the direct popular referendum and initiative 
 may be found in the political institutions and ideas of the people 
 of the American states. The thing itself, however, is a foreign 
 importation. Doubtless the growing use of the constitutional 
 and legislative referendum and of the popular initiative in con- 
 
 1 E. P. Oberholtzer, The Referendum in America, ch. viii.
 
 136 STATE GOVERNMENT IN UNITED STATES 
 
 nection with local home rule would sooner or later have suggested 
 to Americans the adoption of some procedure for direct legislation 
 by the people of a state as a whole. The system that has actually 
 been adopted, however, was suggested by the example of Switzer- 
 land. 1 The first state to adopt the statutory initiative and ref- 
 erendum was South Dakota which took that action in 1898. 
 The statutory initiative and referendum now exist in eighteen 
 states. In addition two states have adopted the direct popular 
 referendum alone. The first state to adopt the constitutional 
 as well as the statutory initiative was Oregon which took that 
 action in 1902. The constitutional initiative now exists in 
 twelve states. 2 
 
 THE RECALL 
 
 The last step in the extension of the powers of the state elec- 
 torates has been the adoption of the popular recall. The original 
 Massachusetts declaration of rights contained a statement to the 
 effect that "in order to prevent those who are vested with author- 
 ity from becoming oppressors, the people have a right at such 
 periods and in such manner as they shall establish by their frames 
 of government, to cause their public officers to return to private 
 life." In the beginning frequent elections and short fixed terms of 
 office were deemed an adequa'te mode of preventing those vested 
 with authority from becoming oppressors. In no state except 
 Massachusetts, however, are elections now as frequent as in the 
 beginning, and a need has long been felt in some states for a more 
 direct mode of removing elected officials than that by impeach- 
 ment. In 1903 the recall was first introduced in Los Angeles for 
 the removal of municipal officers before the expiration of the 
 terms for which they might be elected. Like the procedure for 
 direct legislation by the people, that for the recall of a public 
 officer is set in motion by a petition of a certain fraction of the 
 electorate. Unlike the popular initiative and referendum, the 
 recall was not a conscious imitation of any foreign institution, 
 although it had previously existed in Switzerland. 3 Under the 
 
 1 W. E. Rappard, "The Initiative, Referendum, and Recall in Switzerland," in 
 Annals of the American Academy of Political and Social Science, Sept., 1912, pp. 114- 
 127. 
 
 3 See The American Year Book for 1915, p. 82. 
 
 1 W. E. Rappard, op. cit., p. 127.
 
 THE REDIVISION OF POWERS 137 
 
 Swiss practice, however, the procedure may be employed not 
 only for the recall of a specified officer but also for that of an 
 entire legislature. Such a practice in effect gives to legislatures 
 an indefinite tenure of office subject to a maximum limit, and the 
 Swiss consistently so fix that limit as to assure their legislators a 
 normal expectation of longer official life than is the case in the 
 American states. The state-wide recall was first introduced in 
 Oregon in 1908 and has since been established in nine other states. 
 In Kansas in 1914 a further stage in this development was reached 
 by extending the application of the recall to appointive as well as 
 to elective officers. 1 
 
 The executive, judicial, and popular vetoes in their modern 
 forms may all be traced back to their beginning in the original 
 division of powers adopted in Massachusetts. The modern direct 
 popular initiative is a more radical innovation, for which there 
 seems to be no precedent in the original state constitutions, 
 although the procedure for constitutional amendment adopted 
 in Georgia in 1777, but found to be impracticable, was closely 
 akin to it. There remains another feature of the modern division 
 of powers for which there is no precedent whatsoever in the origi- 
 nal state constitutions, namely, the legal endowment of the polit- 
 ical party by law with special powers and duties, like any other 
 recognized organ of government. 
 
 GROWTH OF POWER OF POLITICAL PARTY 
 
 For many years after the establishment of the party system in 
 American politics the political party remained a private associa- 
 tion. It was first endowed by law with a public function when 
 the Australian ballot was introduced into the electoral system. 
 The important power which was then conferred upon the political 
 party was the power of designating official party candidates for 
 all elective offices. The state undertook to print the party 
 designation upon the official ballot, together with the candidate's 
 name, so that the least educated voter could vote the party ticket 
 as easily as under the former system of unofficial ballots. Im- 
 portant powers have also been conferred upon political parties 
 in connection with appointments to non-elective offices. Various 
 
 1 The American Year Book for 1915, p. 82.
 
 138 STATE GOVERNMENT IN UNITED STATES 
 
 appointive bodies, especially election boards, are required to be 
 composed of partisans, and consequently the administration of 
 the affairs of such bodies is a partisan as well as a public function. 
 A more radical step in the extension of the powers of the political 
 party has recently been taken in Kansas. By the terms of the 
 amendment for the recall of public officers, adopted in 1914, it is 
 provided that a petition for the recall of an officer shall be signed 
 by a certain proportion, not of the electorate, but of the members 
 of the particular party to which the officer belongs. Thus the 
 institution of proceedings for the recall in Kansas, like the nomina- 
 tion of public officers hi all states, is made a partisan rather than 
 a popular function. 
 
 In the transfer of power to the political party, the most radical 
 step which has yet been proposed is the adoption of the representa- 
 tive system, called proportional representation. The principle 
 of the proposed reform is that each political party shall be entitled 
 in all representative bodies to a number of representatives pro- 
 portionate to the number of its voting members. Thus a party 
 casting forty per cent of the total vote in a state election would 
 be entitled to four-tenths of the seats in the state legislature. This 
 proposal k advocated on the ground that a truly representative 
 body should represent as nearly as possible the whole electorate 
 and not merely the greatest number voting for any one candidate 
 in each of the several representative districts, as is the case under 
 the established system of plurality representation. 
 
 Proportional representation has not yet been established in any 
 American state, but a somewhat similar system was established 
 in Illinois in 1870. It was provided that the electors in each 
 state senatorial district should be entitled to choose three repre- 
 sentatives to the lower branch of the state legislature, and that 
 each elector might cast his three votes for three separate can- 
 didates, or cumulate them upon one or two candidates. This 
 system should be described as cumulative voting or minority 
 representation rather than proportional representation, since it 
 would not allow for more than a rough adjustment of representa- 
 tion to party strength. Such as it was, it marked the first recogni- 
 tion in a state constitution of the right of parties as well as of 
 localities to special representation in a legislative body. Recent 
 proposals, to extend the application of this principle will be dis-
 
 THE REDIVISION OF POWERS 139 
 
 cussed in a later chapter. Suffice it to point out that not only 
 has the political party been recognized as a regular organ of 
 government hi the states, but it has also been endowed with 
 powers of considerable and hitherto increasing importance. 
 
 SUMMARY 
 
 There is nothing inconsistent with the original principles of 
 American government in the various developments which have 
 taken place in the political institutions of the states. The forms 
 of government have undergone some remarkable changes, but 
 they are still republican. The division of powers between the 
 different branches of the state governments has been affected 
 by the changes of more than a century even more than the forms, 
 but the people have less occasion than ever before to fear anybody 
 but themselves. The evolution of the state governments has 
 been characterized by the operation of two main tendencies : 
 first, the decrease of legislative authority, and secondly, the 
 increase of that of the electorates. The decline of legislative 
 authority has been marked by the transfer of power from the 
 legislative branch of the original normal type of government to 
 the coordinate branches, the executive and the judiciary. The 
 rise of the authority of the electorates has been marked by the 
 increase of popular control over all three of the coordinate 
 branches. These changes have not been the results of blind 
 chance or the caprice of fate. They have been produced by the 
 continuous adaptation of the political institutions of the states 
 to the needs of the people, as determined by the operation of the 
 fundamental forces in American life, the biological, economic, and 
 social forces that have made the American people what they are. 
 
 The forces that have produced such great changes in the past 
 will continue to bring about changes of the same general nature 
 in the future, if they continue to operate. If they do not continue 
 to operate, their place will be taken by other forces which will 
 produce changes of a different sort. Changes of some sort will 
 take place in American political institutions, hereafter as hereto- 
 fore. The task of the political scientist is to discover the nature 
 of the forces that are at work, and to point out the manner in 
 which existing political institutions may best be adapted to meet 
 the changing needs of a new age.
 
 PART III 
 THE WORKING OF THE STATE GOVERNMENTS
 
 CHAPTER VI 
 
 THE STATE ELECTORATES 
 
 THE electorate may be defined as the instrument by means 
 of which the people of a state authoritatively declare their will 
 with respect to the matters constitutionally reserved to them. 
 The will of the people may be expressed through public opinion, 
 but it gains its legal force through the electorate. The primary 
 object of political institutions in a democratic state is to facili- 
 tate the faithful interpretation and efficient execution of the 
 will of the people, and of these institutions the electorate is the 
 most important. In other words, the electorate is the funda- 
 mental organ of state government and is endowed with the 
 function of exercising the powers and performing the duties of 
 government theoretically vested in the people themselves. 
 
 EFFECT OF SUFFRAGE QUALIFICATIONS ON SIZE OF 
 ELECTORATES 
 
 The Federal Constitution imposes a penalty upon a state in 
 which the right to vote is denied to any of its adult male citizens, 
 except for participation in rebellion or other crimes. It becomes 
 necessary, therefore, first to inquire to what extent, if any, the 
 states by their restrictions upon the exercise of the suffrage have 
 incurred the liability of the penalty, namely, reduction of repre- 
 sentation in the federal house of representatives and in the elec- 
 toral college. 
 
 The operation of the laws governing the structure of the 
 various state electorates is often illustrated by a comparison 
 of the votes cast in the several states at general elections. Al- 
 though the number of votes cast at general elections in different 
 localities is subject to fluctuations produced by purely local 
 causes and tending to impair the value of any general comparison 
 
 143
 
 144 STATE GOVERNMENT IN UNITED STATES 
 
 of such votes, yet the public interest in general elections in presi- 
 dential years is as nearly uniform as public interest in anything 
 connected with politics, and the evidence afforded by a com- 
 parison of votes cast at presidential elections throws as much 
 light upon the operation of the suffrage laws of the several states 
 as any available evidence of that character. The following 
 comparison exhibits the ratio between the average of the votes 
 cast at the presidential elections of 1908 and 1912 and the num- 
 ber of adult male citizens hi the several states according to the 
 census of 1910. 
 
 The ratio of votes cast to adult male citizens was 63 per cent 
 in Massachusetts and 65 per cent in New England as a whole ; 
 it was 76 per cent in New York, 68 per cent in Pennsylvania, 
 and 84 per cent in Delaware, averaging 72 per cent in the five 
 states between the Hudson and the Potomac ; it varied in the 
 fourteen states of the upper Mississippi Valley, extending from 
 West Virginia, Kentucky, Missouri and Kansas to the Canadian 
 border, between 88 per cent in Indiana and 64 per cent in Minne- 
 sota, averaging for the entire region almost 80 per cent ; it varied 
 in the twelve states of the South, extending from Virginia to 
 Texas, between 60 per cent in Oklahoma and nearly 50 per cent 
 in North Carolina, to 1 7 per cent in South Carolina and 1 5 per 
 cent in Mississippi, averaging for the entire region 31 per cent. 
 In the West the figures are complicated by the increasing adoption 
 of woman suffrage. In the four equal suffrage states wherein 
 women voted both in 1908 and 1912, Wyoming, Colorado, Utah, 
 and Idaho, the ratio of all votes cast to adult male citizens averaged 
 115 per cent. In Montana and Nevada, the only Rocky Moun- 
 tain states in which men alone voted in both 1908 and 1912, 
 the ratio was 67 per cent. In Oregon, the single Pacific coast 
 state in which men alone voted in both 1908 and 1912, the ratio 
 was 59 per cent. If the ratio of votes cast to male citizens of 
 voting age was the same in the four equal suffrage states as in 
 Montana and Nevada, the ratio of votes cast by women in those 
 states to the total number of female citizens of voting age was 
 not less than 56 per cent. So in California and Washington, 
 if it be assumed that the men voted in the same ratio as in Ore- 
 gon, it follows that the votes cast by women at the election of 
 1912 amounted to 30 per cent of the total number of women
 
 THE STATE ELECTORATES 145 
 
 of voting age. In fact, since educational restrictions upon the 
 franchise exist in California and Washington, the ratio of votes 
 cast by men to adult male citizens was probably less than in 
 Oregon, and consequently the ratio in the case of women must 
 have been higher than 30 per cent. In Arizona, where an edu- 
 cational restriction also exists, the ratio in the case of men was 
 51 per cent in 1912. If the men of California and Washington 
 also voted at that ratio in 1912, which would seem as reasonable 
 an assumption as the other, it follows that the ratio in the case 
 of women hi those two states was 39 per cent. In the four 
 oldest equal suffrage states women apparently voted about five- 
 sixths as generally as men, and in the two states where women 
 voted at a general election for the first time in 1912, it is prob- 
 able that their use of the ballot, as compared with the use of 
 the ballot by men in the same states, was at least two-thirds as 
 general. 
 
 The effects of the various restrictions upon the electoral fran- 
 chise in the states may be estimated by comparing the ratio of 
 votes cast to adult male citizens in the several sections of the 
 country with the same ratio in New York, where manhood 
 suffrage prevails in precisely the form the fourteenth amendment 
 was designed to encourage. This comparison indicates that in 
 the region of the upper Mississippi Valley the electorate is actu- 
 ally broader than the standard as defined by the fourteenth 
 amendment. This would also be expected, since manhood 
 suffrage prevails in all those states and in half of them votes 
 are also granted to certain classes of aliens. Moreover, in some 
 of these states the registration laws are less adequate than in 
 New York. In Pennsylvania, however, the electorate is only 
 90 per cent of the standard, and in New England it is slightly 
 less than in Pennsylvania. In the West, if men alone be con- 
 sidered, the electorate is also below the standard to about the 
 same degree as in New England, and in the South it is only 
 two-fifths of the standard in size. If the penalty provided by 
 the fourteenth amendment were to be imposed, therefore, New 
 England and the West would apparently lose about one congress- 
 man in ten and the South about three in five. 
 
 In fact the comparison of the votes cast in the several states 
 at presidential elections, though interesting in itself, throws
 
 146 STATE GOVERNMENT IN UNITED STATES 
 
 little light on the effect of the constitutional provisions and 
 statutes governing the structure of the state electorates. In 
 doubtful states much greater efforts are made to bring out a 
 full vote than in states in which the issue is not doubtful. New 
 York and Indiana are bound to be the scene of more hard-fought 
 contests in presidential years than Pennsylvania or Minnesota, 
 and, other things being equal, the vote cast will be greater. In 
 the South particularly the size of the vote at presidential elec- 
 tions is a poor measure of the effect of the laws relating to the 
 suffrage. The vote in the states of the so-called solid South 
 at such elections is abnormally light, because the results of the 
 vote are a foregone conclusion. In fact, the southern electorates 
 are much larger than would appear from the comparatively 
 small participation of the adult male citizens in presidential 
 elections, and any estimate of the size of those electorates based 
 upon the presidential vote is very misleading. 
 
 THE NUMBER OF REGISTERED VOTERS 
 
 A better test of the effect of the suffrage restrictions of the 
 several states upon the structure of the state electorates is af- 
 forded by a comparison between the number of registered voters 
 and that of adult male citizens. Such a test is also of more 
 significance, since it is upon the basis of the proportion of adult 
 male citizens disfranchised that the penalty provided by the 
 fourteenth amendment is to be imposed. In Massachusetts in 
 1912 the registered voters numbered over 80 per cent of the 
 adult male citizens ; in New York they numbered 88 per cent ; 
 in Oregon, 73 per cent; and in Delaware, 90 per cent. In 
 Arizona, where an educational test similar to that in Massa- 
 chusetts prevailed, the registered voters in 1912 comprised only 
 67 per cent of the adult male citizens, and in Florida, where a 
 tax-paying qualification aimed at the negro was maintained, 
 the ratio was 42 per cent. If, however, the negro is left out of 
 the reckoning in Florida, as the alien immigrant is excluded 
 in Massachusetts, it appears that the Florida electorate com- 
 prised no less than 76 per cent of the adult male citizens of the 
 white race, a larger proportion than in Oregon. 
 
 That the restrictions in the southern states, aimed at the
 
 THE STATE ELECTORATES 
 
 147 
 
 negro, were designed to exclude negroes only, is the plain in- 
 ference to be drawn from the invention of the " grandfather " 
 clause. That they had the desired effect seems to be indicated 
 by the available evidence. The operation of the restrictions 
 which have been aimed at the negroes is illustrated by the 
 statistics showing the number of registered voters before and 
 after the adoption of the restrictions. 
 
 (i) Virginia (negro disfranchisement by constitution of 
 1902). l 
 
 NUMBER OF REGISTERED VOTERS 
 
 
 WHIIE 
 
 COLORED 
 
 TOTAL 
 
 1900 
 
 1905 
 
 301,000 
 
 276,000 
 
 I47,OOO 
 2I,OOO 
 
 448,000 
 297,000 
 
 (2) Louisiana (negro disfranchisement by constitution of 
 1898) . 2 
 
 
 WHITE 
 
 COLORED 
 
 TOTAL 
 
 1900 
 Males over 21 .... 
 Literate 
 
 178,595 
 
 14.6,210 
 
 147,348 
 157,086 
 
 3 2 5,943 
 20?, 30? 
 
 Illiterate 
 
 72,376 
 
 90,262 
 
 122.438 
 
 1908 
 Registered voters . . . 
 
 152,135 
 
 1.743 
 
 153,878 
 
 (3) Lowndes Co., Ala. (negro disfranchisement by con- 
 stitution Of IQOl). 3 
 
 
 WHITE 
 
 COLORED 
 
 1900 
 Males over 21 
 
 I,X8 
 
 6.4CC 
 
 Literate 
 
 I.OS7 
 
 1,788 
 
 Illiterate 
 
 81 
 
 4,667 
 
 1902 
 Registered voters 
 
 1,007 
 
 JO 
 
 
 
 
 1 See Magruder, op. cit., p. 93. 
 
 1 See W. E. B. Dubois, " Social Effects of Emancipation," in The Survey, Feb. 
 
 1913. PP- 570-573- 
 1 See Dubois, loc. cit.
 
 148 STATE GOVERNMENT IN UNITED STATES 
 
 The last case shows the conditions that obtain in a typical 
 county of the black belt, and clearly reveals the efficacy of the 
 Alabama suffrage tests as a means of maintaining white suprem- 
 acy in politics. 
 
 The recent decisions by the Supreme Court of the United States 
 that certain "grandfather" clauses are unconstitutional, because 
 in conflict with the fifteenth amendment to the Federal Constitu- 
 tion, need not have the effect of extending the suffrage to any 
 negroes who are now disfranchised. 1 They may merely serve to 
 exclude a number of poor and ignorant whites who have hitherto 
 been permitted to vote, and consequently still further increase 
 the liability of the southern states to a reduction of representa- 
 tion in congress, in case the penalty provided by the fourteenth 
 amendment should be enforced. 
 
 In fact, however, the liability of the states to a reduction of 
 representation in Congress and in the electoral college cannot 
 be computed upon the basis of the number of registered voters. 
 Many adult male citizens who under the laws of their states 
 might be registered, if they chose to comply with the rules for 
 registration, actually fail to do so. Sometimes this failure is the 
 result of indifference and neglect. Sometimes it is the result of 
 temporary absence from the place of residence at the time of 
 registration or other casual circumstances beyond the control 
 of the person. Sometimes it is the result of permanent removal 
 from the district or state and inability to comply with the resi- 
 dence requirements established in the new place of residence. 
 Sometimes it is the result of an onerous registration procedure 
 calculated to deter the shiftless or ignorant voter from making 
 good his claim to the ballot. The registered voters in a state 
 therefore are not identical with the legal voters, that is, the 
 persons falling within the class to which the franchise is extended 
 by the state constitution. But it is upon the basis of the number 
 of adult male citizens who may not legally become voters in a 
 state that the penalty prescribed by the fourteenth amendment 
 is to be imposed. Disfranchisement accomplished by the failure 
 of properly qualified persons to register has nothing to do with 
 the case. 
 
 Now as a matter of fact the requirement, where established, 
 
 1 Guinn v. U. S., 238 U. S. 347; Myers v. Anderson, 238 U. S. 368 (1915).
 
 THE STATE ELECTORATES 149 
 
 that the legal voter make good his claim to the ballot by personal 
 registration has more effect upon the actual structure of the 
 electorate than the literacy and property qualifications that 
 exist in some of the states. In Massachusetts, for example, 
 only about 75 per cent of the adult males are citizens. Of the 
 adult male citizens over 96 per cent, according to the state census 
 of 1905, are legal voters, the balance being for the most part 
 naturalized illiterate foreigners. But' the number of voters 
 registered for the presidential election of 1908 amounted to 
 only 86^ per cent of the total number of legal voters. In other 
 words, whereas less than 4 per cent of the adult male citizens 
 were disfranchised by the existence of tfre literacy qualification 
 for the suffrage, 13 per cent were disfranchised by failure to 
 register. In Massachusetts, therefore, about one-sixth of the 
 adult male citizens, and about three-eighths of all the adult 
 males were practically excluded from the electorate in 1908 
 without any violation of the fourteenth amendment sufficient 
 to cause the reduction of the state representation in Congress 
 by a single vote, in case the penalty provided by the amendment 
 should be imposed. Outside of the South it is doubtful if the 
 enforcement of the amendment would cause the loss of represen- 
 tation anywhere, except possibly in Pennsylvania, and in that 
 state the loss would be very slight. 
 
 In the South, especially in the cotton belt, the effect of the 
 constitutional restrictions upon the franchise is more pronounced, 
 and the effect of the enforcement of the fourteenth amendment 
 would be greater. But even there it would not be so great as 
 might be inferred by a comparison of the registration figures 
 with those showing the number of adult male citizens. Assum- 
 ing, as seems warranted, that at least the illiterate and im- 
 pecunious negroes have been disfranchised, and that the suffrage 
 has been generally restricted to persons of "substance" or "under- 
 standing" or approved descent, it becomes evident that the 
 arrangements generally adopted do not fall far short of manhood 
 suffrage for the whites. Perhaps this statement may have to 
 be modified presently with respect to the states which have re- 
 lied upon the "grandfather" clause to prevent the disfranchise- 
 ment of whites who otherwise could not qualify as voters, but 
 it seems likely to remain substantially true of states like Missis-
 
 150 STATE GOVERNMENT IN UNITED STATES 
 
 sippi, which rely upon discrimination in favor of the whites in 
 the enforcement of the registration laws to prevent white dis- 
 franchisement. In Florida, for example, if the negro is left out 
 of the reckoning, the registered voters number more than three- 
 fourths of the adult male citizens. In Massachusetts, as already 
 shown, they number from four-fifths to five-sixths, and in New 
 York about seven-eighths. Doubtless not all the negroes should 
 be left out of the reckoning in Florida, but even so, the dis- 
 franchisement of white citizens cannot be much greater than in 
 New England. In general, the practice of the southern states 
 in offering the voter an option between several modes of qualify- 
 ing for the franchise affords the white voter at least as much 
 opportunity to register as in Massachusetts or Pennsylvania, 
 and if he does not so generally avail himself of his opportunity, 
 the cause must be ascribed to lack of inclination. 
 
 EFFECT OF SUFFRAGE QUALIFICATIONS ON CHARACTER OF 
 
 GOVERNMENT 
 
 The influence of the various electoral qualifications upon the 
 character of the electorates, and hence upon the character of 
 government in general, has always been an engrossing topic of 
 speculation. 1 There have been few systematic attempts, how- 
 ever, to check the results of such speculation by inquiry into 
 the known or knowable facts. 2 The principal qualifications de- 
 signed to improve the character of the electorate are those re- 
 lating to age, 3 property, education, and sex. Those writers 
 
 1 See J. S. Mill, Representative Government, and Sir H. S. Maine, Popular Govern- 
 ment, for specimens of the speculation in England in the nineteenth century. For 
 similar speculative discussions of the suffrage by American writers, see Francis 
 Lieber, Manual of Political Ethics, and Theodore Woolsey, Political Science. See 
 also the Record of Debates in the following state constitutional conventions : Mas- 
 sachusetts, 1820; New York, 1821; and Virginia, 1829-30. See, also, the Con- 
 gressional Record, 1869, with reference to the proposed submission to the states of 
 the fifteenth amendment. 
 
 2 See Graham Wallas, Human Nature in Politics, Introduction. 
 
 8 The exclusion of persons under some prescribed age limit has always been the 
 practice in the United States and the fixing of the limit at twenty-one years of age 
 now awakens no controversy. In some foreign countries, the limit has been placed 
 higher, most frequently at twenty-five years, thus increasing the minimum experience 
 of life, so far as age may be regarded as a measure of experience, required of the voter. 
 There is no country where the franchise is conferred upon those below the age of
 
 THE STATE ELECTORATES 151 
 
 who have discussed the exclusion from the electoral franchise 
 of the young, the poor, the ignorant, and the women have usually 
 been much more interested in making out a case for or against 
 the exclusion of such persons than in making known the truth 
 for its own sake. Those voters who have sanctioned the es- 
 tablishment or maintenance of a restrictive franchise have 
 usually been confronted with a condition, not a theory, and 
 have made their decision with a view to its effect on immediate 
 practical problems. In the South, for example, property and 
 educational qualifications have been established by the white 
 voters because such qualifications were known to be more bur- 
 densome to negroes than to whites, not because they were de- 
 sired for their own sake. In certain northern and western 
 states literacy tests have been adopted because they were known 
 to be more burdensome to naturalized aliens than to native- 
 born citizens. The effect of such qualifications upon the char- 
 acter of government reflects the results of the disfranchisement 
 of negroes and of aliens, but in most cases throws little light on 
 the probable results of the disfranchisement of the poor and the 
 ignorant, regardless of race, color, or previous condition. 
 
 In the states where the effect of property or educational tests 
 is least complicated by extraneous considerations the results of 
 the establishment of such tests are scarcely less obscure. In 
 Pennsylvania and Massachusetts, for example, there are property 
 and educational tests, respectively, and in New York and Ohio 
 there is manhood suffrage. But it is exceedingly difficult to 
 discover that, if the two former states are better or worse governed 
 than the two latter, as the case may be, the differences in the 
 character of the government are due to the differences in the 
 character of the electorates. Any Pennsylvanian who can afford 
 to own a dog and pay a tax thereon can qualify under the property 
 
 twenty-one. It has been suggested in this country that there should be a vote for 
 every citizen, regardless of age, parents or guardians casting the votes for minor 
 children, thus giving greater weight in politics to the family and to the adults who 
 represent families, as against adults who have not assumed family responsibilities. 
 As a rule, such an arrangement would operate directly contrary to a literacy 
 or property test, and the suggestion has not been taken seriously by the advocates 
 of the "fitness" theory of the franchise. Those who believe in a "natural right" 
 to vote apparently assume for the most part that "nature" is interested in men 
 only.
 
 152 STATE GOVERNMENT IN UNITED STATES 
 
 test, and in practice such a property qualification cannot be 
 expected to illustrate the effects theoretically claimed for a 
 franchise based on property. Any Massachusetts man who can 
 read a line of the constitution in English and write his name 
 can qualify under the literacy test, and in practice, at least in 
 a state where a common school education is free and compul- 
 sory, such a test cannot be expected to illustrate the effects 
 theoretically claimed for a franchise based on intelligence. In 
 fact the number of Pennsylvanians and Massachusetts men 
 who are disqualified by the property and educational tests, 
 respectively, is so small compared with the number who are 
 otherwise prevented from voting, and the differences between 
 the governments of New York and Ohio, on the one hand, and 
 those of Massachusetts and Pennsylvania, on the other, are so 
 much greater in other respects than in respect to the franchise, 
 that no clear relation between the suffrage and the general char- 
 acter of government in these states is discernible. In short, 
 it may be candidly confessed that it is not possible to prove 
 that the governments of Massachusetts and Pennsylvania are 
 either better or worse because of the exclusion of a number of 
 impecunious and illiterate male citizens from the electorate. 
 
 EFFECT OF WOMAN SUFFRAGE 
 
 It might be supposed that the effects of the exclusion of 
 women from the state electorates could be more easily discovered. 
 In fact, however, the question of woman suffrage is not solely 
 one of sex. In the official campaign bulletin published in Ne- 
 braska in 1914 for the better information of the voters concern- 
 ing the measures submitted to them for approval at the general 
 election, the following argument against the extension of the 
 franchise to women was published by the opponents of equal 
 suffrage: "Women suffrage will greatly increase the taxes of 
 the state . . . because the city vote, which is largely non- 
 taxpaying, will be increased at the expense of the farmer vote, 
 which is largely tax-paying." The same argument appeared 
 in the semiofficial campaign bulletin published the same year 
 by the secretary of state of Missouri. In Montana in the same 
 year a similar attempt was made to confuse the issue. The
 
 THE STATE ELECTORATES 153 
 
 mine workers were urged to vote against the measure on the 
 ground that there was a larger proportion of women to men in 
 the agricultural districts than in the mining districts, and that 
 the extension of the franchise to women, therefore, would bring 
 a relative increase of political power to the agricultural element 
 in the state and a corresponding decrease in that of the miners. 
 In other words, the adoption of equal suffrage was made a class 
 issue. The individual interests of women as women were de- 
 clared to be subordinate to their class interests as farmers' or 
 miners' wives. To the extent that the extension of the franchise 
 to women has altered the relative political importance of differ- 
 ent economic or social groups of men and women the supposed 
 effects of equal suffrage may have been in reality the effects of 
 such alterations in the distribution of power. 
 
 Even if the question of woman suffrage were solely one of 
 sex, it would not be easy to discover precisely what has been 
 the effect upon the conduct of government of the entrance of 
 women into politics. In the few states in which women have 
 voted on the same terms as men for a considerable period of 
 years, there has never been any political issue which divided 
 men and women upon sex h'nes, nor has there been any notable 
 legislation in the special interest of women which had not pre- 
 viously been enacted in some state where men alone were voters. 
 On the other hand, there has been no legislation in those states 
 so unfavorable to women as in certain states where only men 
 were voters. Until recently, however, the influence of women 
 in politics, so far at least as the character of legislation was con- 
 cerned, was negative rather than positive. Within the last 
 half dozen years the practice of excluding women from the state 
 electorates has been generally abandoned throughout the West, 
 and at the same time there has been a notable increase in the 
 output of legislation in the interest of women. The legal pro- 
 tection of women, especially of wage-earning women, in the 
 equal suffrage states has become more systematic and more 
 adequate than elsewhere. But it is not clear that this result 
 is to be explained by the adoption of the principle of equal 
 suffrage. Both the more rapid adoption of legislation in the 
 interest of women and the adoption of equal suffrage itself may 
 be explained, since they have occurred almost simultaneously,
 
 154 STATE GOVERNMENT IN UNITED STATES 
 
 as the joint results of a different attitude towards women than 
 that which formerly prevailed in the West and still prevails 
 elsewhere. Public men in the West almost unanimously profess 
 to be satisfied with the results of the political equality of the 
 sexes. In no state has there been any notable attempt to restore 
 the political disabilities of women, either on the part of men or 
 on the part of women. In short, public opinion has approved 
 the removal of those disabilities, and that fact constitutes the 
 best evidence that the former exclusion of women from the elec- 
 torate served no useful purpose in the western states. 
 
 It is upon the character of women themselves, however, that 
 the effects of equal suffrage have been most clear. Miss Helen 
 L. Sumner, whose investigations into the operation of equal 
 suffrage hi Colorado were unusually deliberate and judicious, 
 summarizes this aspect of the question as follows: "The effect 
 of equal suffrage upon the women themselves, their outlook 
 upon life, and their relationship to the home, is, in the opinion 
 of many, the crux of the problem. Over the majority of women, 
 indeed, it is already evident that equal suffrage has exercised a 
 good influence, and one which inevitably reacts to a certain 
 extent upon political life. . . . Equal suffrage has brought, 
 then, practically no loss, and some decided gain, the latter 
 mainly evident in the effect of the possession of the ballot upon 
 the women of Colorado. It has enlarged their interests, quick- 
 ened their civic consciousness, and developed in many cases 
 ability of a high order which has been of service to the city, the 
 county, and the state. . . . The Colorado experiment certainly 
 indicates that equal suffrage is a step in the direction of a better 
 citizenship, a more effective use of the ability of women as an 
 integral part of the race, and a closer understanding between 
 men and women." l That no less than this is the general im- 
 pression of the closest observers would seem to be indicated by 
 the fact that states adjoining those which have already abolished 
 the political disabilities of women are those which most readily 
 do likewise. 
 
 1 Helen L. Sumner, Equal Suffrage, The Results of an Investigation in Colorado 
 (New York, 1909), pp. 258-260.
 
 THE STATE ELECTORATES 155 
 
 THE THEORY OF THE FRANCHISE 
 
 The widespread public discussion of the question of votes for 
 women has served a useful purpose in causing a reexamination 
 of the general grounds for the exclusion of any class of persons 
 from the electoral franchise. The doctrine of natural rights 
 has been generally understood by Americans to mean equal 
 rights, but when the idea of equal rights is explained as it was 
 explained by Lincoln, and no other explanation is possible if the 
 sincerity of the American people is to be successfully vindicated, 
 it becomes clear that no person can assert a claim to the fran- 
 chise regardless of his fitness. The doctrine of natural rights, 
 therefore, like the doctrine that the franchise is a privilege to 
 be conferred only upon those who are fit for its exercise, implies 
 the recognition of some suitable standard of fitness. The 
 standards may not be the same, but in either case they would 
 include at least the following: (i) loyalty to the fundamental 
 principles of American government, that is, to the principles 
 of popular sovereignty and the reign of law, and to the constitu- 
 tion of the United States; (2) willingness to use the vote, ac- 
 cording to one's conscience, for the best good of the common- 
 wealth without fear or favor; and (3) a reasonable degree of 
 political intelligence. Now neither the ownership of property 
 nor literacy hi themselves afford any evidence of the attain- 
 ment of such a standard of fitness. Property can be acquired 
 by the exploitation of society as well as by the service of society. 
 Mere money-making, even if the money-maker keeps within 
 the law, is not the best training for statesmanship. The accu- 
 mulation of information, like money-making, is not identical 
 with growth in wisdom. Education may make a clever rogue 
 as well as an intelligent voter. Success does not make a good 
 citizen of a thief, and much book learning is to be found within 
 the walls of our prisons. In short, political intelligence is not 
 discoverable either by the tax collector or by the school examiner. 
 Public spirit and loyalty are evidenced by the whole conduct of 
 life, and cannot be tested on life's threshold. Mechanical tests 
 of fitness may facilitate the elimination from the electorates of 
 the feeble-minded and the criminally vicious. More than that 
 is impossible.
 
 156 STATE GOVERNMENT IN UNITED STATES 
 
 The exclusion of women from the electorates, like the exclusion 
 of men with little property or education, cannot be justified in 
 modern times upon either of the theories which have hitherto 
 influenced the mind of the American people. The doctrine of 
 natural rights may not justify the thrusting of the ballot upon 
 a reluctant womanhood, but neither can it justify the with- 
 holding of the ballot from women who declare their wish to par- 
 ticipate actively in the making of the laws under which they 
 are governed. The demand of women for political equality 
 with men cannot be consistently denied by those who believe 
 in natural rights without denying the humanity of women. 
 The doctrine that the franchise is a privilege to be conferred 
 upon those who are fit is as repugnant to political discrimina- 
 tions against women solely on account of their sex as is the 
 doctrine of natural rights. Women, like men, may be loyal 
 to the principles of our government, public-spirited, and politi- 
 cally intelligent. To the extent that they are so, their "right" 
 to vote, if they wish, like men, must be recognized, whether 
 the theory of the franchise be founded upon the doctrine of 
 natural rights or upon that of fitness. If tests of fitness are to 
 be exacted of applicants for admission to the franchise, they 
 should be applied without distinction of sex. The doctrine that 
 only those should vote who are able, in case of need, to fight is 
 without foundation in the political philosophy of the American 
 people. Neither ability nor inability to fight was originally 
 recognized as pertinent to the question of the suffrage. What 
 is expected by the state from its citizens is not uniform service 
 from all alike, but service from each according to his ability. 
 Young men for war, old men for counsel, is an ancient maxim, 
 which may still serve to show the part to be played by men in 
 the conduct of military operations. In modern warfare many 
 young men, too, must keep out of the fight in order to keep up 
 the supply of the munitions of war. Under the division of labor 
 which characterizes modern industry, whether constructive or 
 destructive, woman's part is no less essential than man's. But 
 the whole discussion of the part of woman in war is beside the 
 point, for service in the army and service in the electorate are 
 two different propositions. 
 
 It is coming to be recognized that the electoral franchise is
 
 THE STATE ELECTORATES 157 
 
 neither a right nor a privilege. It is a public office. The ar- 
 rangements for selecting the members of the electorate, like 
 those for selecting the holders of any public office, must be 
 justified by the end that the office is intended to fulfill. The 
 electorate is Intended to voice the will of the people, and those 
 should be charged with the duty of voting whose experience in 
 life is such as enables them to speak with authority for any 
 class whose welfare is essential to the welfare of the whole people. 
 So long as women's experience of life was gamed mainly within 
 the household, the practice of treating the household as a political 
 unit and polling the men only was satisfactory. But when the 
 household ceased to be an industrial unit, because of the develop- 
 ment of the factory system of industry and the employment of 
 women in large numbers in capitalistic establishments, the ex- 
 perience of women became something more than the experience 
 of the housewife, and though the household remains a social 
 unit, the opinion of men alone fails to reflect the whole experience 
 of the people. Moreover, the progress of modern civilization 
 has been marked by a gradual expansion of the functions of the 
 state. Many services are now rendered through the instrumen- 
 tality of governmental officials, which in former times were 
 rendered directly by the members of the household. The supply 
 of water, milk, and food, and of the family necessaries in general 
 is now controlled or regulated to some degree by the state. 
 When these services were chiefly matters of purely domestic 
 concern, woman's experience of life was adequately reflected 
 by her voice in the management of the household. But now 
 that the state is for certain purposes like a great household, 
 women, if they are to continue to exert as heretofore their proper 
 influence in household affairs, must participate in the govern- 
 ment of the state. If the state is to perform satisfactorily the 
 household duties which it has assumed, it must be inspired by a 
 spirit that is not only paternal but also maternal. Public 
 officials must feel their responsibility to women as well as to 
 men, and this feeling can be created most effectively by putting 
 the ballot in the hands of women. In short, the modern state 
 needs women voters as well as men voters, because the will of 
 the state should reflect the experience of women as well as the 
 experience of men.
 
 158 STATE GOVERNMENT IN UNITED STATES 
 
 It would be well to exclude from the franchise those who are 
 unfit for the duties of the office, if it were practicable. Unfor- 
 tunately, it does not seem practicable to do more than exclude 
 a small number of the most conspicuously unfit. This is ac- 
 complished more effectually by the requirements of residence 
 and registration than by more specialized tests of fitness such 
 as literacy or the payment of taxes. The principal effect of 
 such a test as that of literacy is indirect rather than direct, for 
 the requirement that every voter be able to read and write 
 enables the state to adopt more efficient registration and elec- 
 tion laws than is practicable if provision must be made for 
 illiterate voters. If the states, nine in number, where literacy 
 is required of all voters, are better governed than other states, 
 the evidence thereof must be found in a study of the methods 
 of organizing the electorate and managing elections. The legis- 
 lation regulating the form of the ballot and the conduct of cam- 
 paigns, the provisions designed to facilitate the expression of a 
 sound and deliberate public opinion at the polls, are more im- 
 portant to a democratic state than specialized tests of fitness 
 for the franchise. The state which would profit most by the 
 wisdom and experience of its members must so organize the 
 electorate and regulate the conduct of elections as to secure the 
 freest and fullest possible expression of honest and enlightened 
 opinion at the polls. Where the electorate is rightly organized 
 and elections are properly conducted, it is more important that 
 all those whose experience of life is socially useful should be en- 
 franchised than that a few more or less of the unfit should be 
 disfranchised. 
 
 ORGANIZATION OF THE ELECTORATE 
 
 The first step in the organization of the electorate is the divi- 
 sion of the state into, districts suitable for the choice of the 
 several sorts of public officers. In the beginning the formation 
 of electoral districts was comparatively simple. For most elec- 
 tions the original divisions of the states for purposes of local 
 government were equally suitable. In New England, the town, 
 in the South, the county, was the unit of representation in the 
 lower branch of the legislature. For the election of members
 
 THE STATE ELECTORATES 159 
 
 of the upper branch more extensive districts were necessary. 
 In Massachusetts the county originally served as the senatorial 
 district. In New York and elsewhere outside of New England 
 the senatorial district generally consisted of a union of counties. 
 No other districts were required. After the adoption of the 
 Federal Constitution and the inauguration of the practice of 
 choosing members of Congress, and for a time in some states 
 presidential electors, by districts, the necessity arose for the for- 
 mation of additional districts. In the formation of these dis- 
 tricts approximate equality of population was generally con- 
 sidered essential, and it was consequently necessary to form 
 new combinations of the local governmental units, the towns 
 and counties, regardless of the existence of the old. Then the 
 democratization of the state governments through the direct 
 popular election of executive and judicial officers, the creation 
 of new administrative agencies, and the redistribution of popu- 
 lation between city and country caused a further multiplication 
 and complication of districts. At present, therefore, in addition 
 to the original division of the states into counties, towns, villages, 
 and cities, there is also a redivision into numerous overlapping 
 legislative, administrative, and judicial electoral districts of 
 various sizes and degrees of importance. 
 
 The result of the formation of all these various electoral dis- 
 tricts is the subdivision of the electorate into a corresponding 
 number of special groups for the purpose of choosing the several 
 sorts of public officers elected by the people. The president of 
 Harvard University, for example, is one of 1708 voters in his 
 ward, who elect two members of the city council each year. 1 
 He is one of the 10,666 voters in his school district, nearly a 
 third of whom are women, who elect a member of the school 
 committee each year. He is one of 8254 voters in his state 
 representative district, who elect three members of the legisla- 
 ture each year. He is one of 15,309 voters in his senatorial 
 district, who elect one state senator each year. He is one of 
 22,013 voters in his city, who elect a mayor, thirteen aldermen, 
 and a variety of other city officials each year. He is one of 
 50,966 voters in his congressional district, who elect a member 
 
 1 Written in 1915. In November, 1915, the city charter was changed, and the 
 number of local elective officials was reduced.
 
 160 STATE GOVERNMENT IN UNITED STATES 
 
 of Congress each second year. He is one of 84,933 voters in his 
 councillor district, who elect a member of the state executive 
 council each year. He is one of 136,50x3 voters in his county 
 who elect each year a varying number of county officers, whose 
 terms run for three or five years as the case may be. He is one 
 of 674,174 voters in the state, who elect six state officers each 
 year, eighteen presidential electors every fourth year, and two 
 United States senators in the course of each six years. Alto- 
 gether he is associated with nine different groups of voters, 
 ranging in number from a couple of thousand to two-thirds of a 
 million, for the purpose of filling by election between fifty and 
 sixty different offices, with different terms, different tenures, 
 different duties, different powers, and different requirements on 
 the part of the officeholder. In the states where judges are 
 elected directly by the people, the situation is still more com- 
 plicated. 1 
 
 DEFECTS OF THE SYSTEM OF ELECTORAL DISTRICTS 
 
 The first characteristic of these various electoral districts is 
 their artificiality. Where the attempt to divide a state into 
 equal electoral districts is made in good faith, it is found to be 
 difficult, generally indeed impossible, to make them compact in 
 form and at the same time homogeneous in substance. The 
 various local governmental units composing the several districts 
 must be combined without much regard to their respective 
 economic and social conditions or previous habits of political 
 association with one another. The resulting combinations often 
 lack the unity and coherence needful in a group of voters who 
 are to cooperate with one another for the purpose of choosing 
 public officers. Without the consciousness of common interest 
 and common purpose, the group can be nothing more than a 
 mere mass of voters, incapable of organic action, and dependent 
 on external forces for the performance of its proper function. 
 
 The second characteristic of the various electoral districts is 
 their instability. Not only is the relationship between the 
 component parts of a district a casual one, but it is also not 
 infrequently of short duration. Most electoral districts are 
 
 1 See A. M. Kales, Unpopular Government, pp. 26-29.
 
 THE STATE ELECTORATES 161 
 
 created for a limited period only, generally for ten years, after 
 which there must be a reapportionment based on the latest 
 census. In order to make the adjustments required by the 
 disproportionate growth of population in different localities, 
 the existing districts must be dissolved, and the local govern- 
 mental units reasserted in new combinations. Thus as soon as 
 habits of political association between the members of an elec- 
 toral group begin to form, the group is broken up and the process 
 must be begun over again. 1 
 
 The third characteristic of the various electoral districts is 
 their unwieldiness. Sometimes, to be sure, the voter acts as 
 one of a group of electors numbering only a few hundreds, who 
 can easily meet in a single hall to consider together the quali- 
 fications of the candidates for public office and the merits of 
 the issues. More frequently, however, he is compelled to act 
 as one of several thousands or several hundreds of thousands of 
 electors who can never either come into one another's presence 
 in order to take common counsel together or even think of the 
 same thing at the same tune. Under such circumstances only 
 the most important offices will receive the general attention of 
 the voters. Only the most conspicuous candidates will awaken 
 a general interest. Only a comparatively few choices will be 
 made deliberately at any one time. 2 Actually, in most states, 
 because of the number and variety of electoral groups with 
 which each voter is associated, his attention is distracted and 
 his interest in the functions of any particular group diminished. 
 The number and variety of offices to be filled by election in some 
 of the districts still further increases the distraction and dimin- 
 ishes the efficiency of the voter. The practice of holding most 
 
 1 For example, in Ohio the county is generally the unit in the formation of the 
 higher legislative, administrative, and judicial electoral districts, but there is no 
 apparent attempt to maintain the same combination of counties for different 
 electoral purposes. Thus, Licking county is one of four counties comprising the 
 fifteenth and sixteenth state senatorial districts. It is combined with four other 
 counties to form the seventeenth congressional district. It is one of nine counties 
 forming the sixth common pleas judicial district, four of which are counties not 
 associated with Licking county in either of the former districts. It is one of fifteen 
 counties in the fifth circuit judicial district, three of which had not been associated 
 with Licking county in any of the preceding combinations. Ten years ago these 
 combinations were different, and ten years hence they will be different again. 
 
 2 See R. S. Childs, Short Ballot Principles. 
 
 K
 
 162 STATE GOVERNMENT IN UNITED STATES 
 
 of the elections on the same day, regardless of the dissimilarity 
 in the character of the offices to be filled and of the lack of con- 
 nection between the issues involved in the various elections, 
 adds to the general confusion. In short, the task imposed upon 
 the contemporary American voter, acting through the various 
 subdivisions of the electorate, is unreasonably heavy and un- 
 reasonably complex. 
 
 MAJORITY V. PLURALITY ELECTIONS 
 
 Originally in several states the burden of the electorate was 
 made even heavier by the practice of majority elections. That 
 is, a majority of all the votes cast for the several candidates for 
 an elective office was required for election. If no candidate 
 received a majority of the votes, there would be no election, 
 and a second election would be called. At this election the 
 voter would have the same freedom of choice as at the first, 
 and if there were still no choice by a majority of the voters, the 
 process would be repeated until some candidate should have 
 received a majority of all the votes. Sometimes irreconcilable 
 differences among the voters would prevent any choice what- 
 ever, as formerly happened not infrequently in connection with 
 the choice of United States senators by the state legislatures. 
 More commonly, however, a choice was made at the first ballot. 
 Second and third ballots were the exception rather than the 
 rule in normal times. Such, for example, was the original 
 practice in Massachusetts, provided that in case of no election 
 of governor or other officer chosen in the state at large, the 
 second choice was made by the legislature between the two 
 candidates receiving the greatest numbers of popular votes. 1 
 Under such an electoral system the voters were protected against 
 the possibility of the choice of a candidate objectionable to a 
 majority of the voters by a mere plurality of votes through the 
 dispersion of the votes of the majority among a number of 
 candidates. This protection, however, was secured at the 
 cost of two or more trips to the polls in case there was no choice 
 at the first ballot, a procedure which was sometimes felt to be 
 excessively burdensome, and for this and other reasons the prac- 
 
 1 This system still obtains in gubernatorial elections in New Hampshire.
 
 THE STATE ELECTORATES 163 
 
 tice of majority elections was abandoned in Massachusetts 
 shortly after the middle of the nineteenth century. 1 
 
 The prevailing system of plurality elections, however, despite 
 its appearance of greater simplicity as compared with the system 
 of majority elections, tends to increase the complexity of the 
 electoral system. In order to diminish the risk that a plurality 
 election will be a minority election, objectionable to a majority 
 of the voters in the district, like-minded voters must make 
 some preliminary arrangements for concentrating their votes 
 upon mutually acceptable candidates, thereby securing for 
 them at the first and only ballot as nearly as possible a majority 
 of the whole number of votes. Voters do not wish to throw 
 away their votes, as they say, by casting them for candidates 
 who cannot win. They wish their choice so far as possible to 
 be effective. This purpose can be accomplished only by or- 
 ganization in advance of the election. Voluntary associations 
 of voters will be formed under any electoral system for the 
 purpose of influencing by their joint action the results of the 
 elections, but the incentive to the formation of such associations 
 is necessarily greater under a plurality than under a majority 
 system, because the danger of the defeat of the will of an un- 
 organized majority of the voters is greater under such a system. 
 The selection of the candidate who will be supported by the 
 greatest number of voters is equivalent to his election, and the 
 art of politics has come to consist fundamentally in the estab- 
 lishment and maintenance of electoral associations by means 
 of which such candidates may be selected. The voter who 
 wishes to exert his proper share of political power must participate 
 in these preliminary selections, or as they are commonly called, 
 primary elections. If there be only one efficient political as- 
 sociation in a district, the voters' task need be no more com- 
 plicated than under a system of majority elections. If there 
 be two or more such associations, as must normally be the case, 
 their task is correspondingly complicated, because each voter 
 must choose his association before he can share in the selection 
 of candidates. 
 
 The establishment of voluntary electoral associations other 
 
 1 Proceedings of Massachusetts Constitutional Convention of 1853. Record 
 of Debates.
 
 1 64 STATE GOVERNMENT IN UNITED " STATES 
 
 than those provided by the division of the electorate into elec- 
 toral districts is therefore the second step in the organization 
 of the electorate. Under the contemporary system of plurality 
 elections the organization of such associations, or political parties 
 as they are termed, must be more elaborate than under a system 
 of majority elections. The burden placed upon the electorate 
 by the necessity for their organization and maintenance is 
 further enhanced by the number, artificiality, instability, and 
 unwieldiness of the electoral districts into which the electorate 
 is officially organized. It is not without reason, therefore, that 
 the organization and activity of political parties fills an ex- 
 tremely important place in the government of the states.
 
 CHAPTER VII 
 THE POLITICAL PARTY 
 
 THE political party has already been denned as an association 
 of voters united primarily for the purpose of influencing elections 
 to public office. Such a definition, however, does not meet the 
 needs of the situation, if the political party is to be formally 
 recognized by law. Legal recognition of the political party 
 implies the existence for a group of voters not only of a common 
 purpose, but also of an organization, that is, of a constitution 
 and rules of procedure, officers, and some practicable test of party 
 affiliation. Moreover, the party should be important enough to 
 deserve legal recognition. There should be a point somewhere 
 below which an association of voters cannot fall without be- 
 coming merely a faction or a propagandist organization. The 
 legal definition of the political party therefore must turn on the 
 record rather than on the purposes of an electoral association. 
 
 LEGAL DEFINITIONS OF PARTY 
 
 As a matter of fact, the political party, though recognized by 
 law in almost all the states, is not everywhere legally defined. 
 In some states it is merely a group of voters who name a candi- 
 date or ticket of candidates for public office in compliance with 
 the procedure provided by law for the printing of the official 
 ballots. The regulation of the conditions upon which the names 
 of candidates may be printed on the official ballot thus serves 
 practically as the definition of the political party. In all states 
 having an official ballot the names of candidates for election 
 may be placed upon the ballot by petition of a certain number of 
 voters, who thereby become at least temporarily a party. In 
 order to become permanently a party, it is necessary for the same 
 group of voters, though not necessarily the same individuals, to 
 
 165
 
 166 STATE GOVERNMENT IN UNITED STATES 
 
 name candidates at subsequent elections. In order that the 
 group may preserve its identity, it may assume a name, and in 
 states where illiterates are permitted to vote, a party em- 
 blem. The desirability of protecting the proprietors of a party 
 name and emblem against infringement by other groups of voters 
 has led most states to define the term "party" more carefully. 
 In these states, though a party may come into existence by 
 placing the names of candidates for office upon the official bal- 
 lots, it can preserve its existence only by casting not less than a 
 certain number of votes at the election. A nominating group 
 whose candidates fail to secure the required number of votes 
 fails to establish its status as a party and likewise its claims to 
 the exclusive use of a name and emblem. A group which succeeds 
 in polling not less than the required vote thereby becomes en- 
 titled to the exclusive use of its name and emblem at subsequent 
 elections so long as it continues to satisfy the requirements. In 
 the states which have established the direct primary system of 
 making nominations, there is sometimes a further distinction 
 between parties which are required to make their nominations 
 in the official primary and those which are free to select their 
 candidates in other ways. The former, which may be described 
 as political parties proper, comprise those parties which poll 
 not less than a certain number of votes. This is always a greater 
 number than that required merely for recognition as a permanent 
 party. Thus in Massachusetts any group of one thousand voters 
 may place a ticket of candidates for offices filled by election in the 
 state at large on the official ballot by signing petitions called 
 nomination papers. If such a group at five successive annual 
 elections polls not less than one thousand votes, it thereby be- 
 comes a "party" and is thereafter entitled to designate its 
 candidates without the formality of filing special petitions. 
 Certificates of nomination, signed by the proper party officers, 
 are accepted in lieu of nomination papers. If such a party polls 
 not less than three per cent of the total number of votes cast, 
 however, it becomes a "political party" and must thereafter 
 make its nominations in the official primaries. Either a " party " 
 or a "political party" may lose its official recognition by failure 
 to poll at any election the required number or per cent of votes. 
 The technical distinction between a "party" and a "political
 
 THE POLITICAL PARTY 167 
 
 party, " established in Massachusetts, is not generally observed ; 
 but the legal recognition of the party because of its ability to 
 poll not less than a certain vote is the general rule. In most 
 states the size of the vote required for recognition ranges from two 
 to ten per cent of the total. 
 
 A party therefore must be denned for practical purposes as 
 an electoral association whose record entitles it to put the names 
 of its candidates upon the official ballot without the formality of 
 filing nomination papers. Such associations may be further 
 distinguished as major and minor parties according to their 
 political importance. At the present time in most of the states 
 the major parties may be most conveniently defined as those 
 which make their nominations at direct primary elections ; the 
 minor parties, those which nominate by the old convention 
 system. 
 
 PARTY ORGANIZATION: CONVENTIONS 
 
 The organization of parties is by no means uniform through- 
 out the country. The principal organ of the party, however, is 
 generally the state convention. The functions of the convention 
 so far as they relate to state politics, are (i) the adoption of a 
 constitution for the party and rules of procedure so far as not 
 provided by law, (2) the adoption of a declaration of party prin- 
 ciples or platform, (3) the nomination of candidates for offices 
 to be filled by the voters of the state at large, if not nominated 
 at the primaries, and in some cases, (4) the election of permanent 
 party officers. The basis of representation in the convention is 
 generally either the county (in some states the town) or the legis- 
 lative district (where it does not coincide with the county or 
 town). Delegates may be apportioned among the counties or 
 districts either according to population or according to their 
 respective numbers of partisans as indicated by the votes cast 
 at the last preceding election. As a rule the delegates to con- 
 ventions are specially chosen for the occasion and for the most 
 part are not themselves candidates for election to public office. 
 A number of states, however, have tried to simplify party 
 organization by providing that the members of certain permanent 
 party committees shall compose the state convention ex officio. 
 Other states have provided that the convention shall be composed
 
 1 68 STATE GOVERNMENT IN UNITED STATES 
 
 of the candidates for governor and the state legislature together 
 with hold-over members of the legislature, if any, and sometimes 
 other public officeholders and candidates. Still other states 
 have tried different combinations of these various plans. In 
 most states the state convention is a comparatively numerous 
 body, comprising several times as many delegates as there are 
 members of the state legislature. In some, however, the member- 
 ship is small. In a few states the convention does not exist 
 under that name, and its place is taken by a so-called party 
 council, consisting of regularly nominated candidates for public 
 office, permanent party committeemen, or both, meeting chiefly 
 for the purpose of adopting a platform. The state conventions 
 generally meet in the even years directly after the primary elec- 
 tions and remain in session only one or two days. 
 
 Before the establishment of the direct primary, conventions 
 were also held by the major parties, and they may still be held 
 by minor parties, in each electoral district within the state for 
 the purpose of making nominations for all offices to be filled by 
 election in such district. These district conventions were as 
 various in character as the electoral districts themselves, and 
 the district convention system was as complicated and unwieldy 
 as the electoral district system. Delegates to the most important 
 of the local district conventions, generally the county convention, 
 were elected directly by the members of the several parties in 
 the party primaries or caucuses. Delegates to the less important 
 district conventions were generally chosen indirectly. Delegates 
 to a congressional district convention, for example, might be 
 specially chosen by the several county conventions within the 
 congressional district, or the delegates to the state convention 
 from the counties within the same congressional district might 
 serve ex qfficio as the congressional district convention. Instead, 
 therefore, of coming fresh from the primaries, the delegates to 
 many of the district conventions and even to the state conven- 
 tions might be, and frequently were, the delegates of delegates, 
 and thus removed two and in some cases even three degrees from 
 the rank and file of the party. At each remove the voice of the 
 rank and file necessarily becomes less distinct, until at last it 
 may become so faint as to be inaudible. Under the direct pri-
 
 THE POLITICAL PARTY 169 
 
 mary system district conventions were unnecessary and were 
 generally abolished. 
 
 PARTY ORGANIZATION: COMMITTEES 
 
 The permanent organs of the party are the standing com- 
 mittees. The functions of the committees are the conduct of 
 campaigns and the management of partisan affairs between cam- 
 paigns. There must consequently be a special committee for 
 each electoral district within the state. The complication of 
 electoral districts in most states produces a corresponding compli- 
 cation of party committees. The committeemen may all be 
 chosen directly by the members of the party at the primary, or 
 more generally some committeemen may be chosen directly 
 and the others indirectly, either by the local committeemen or 
 by the state convention or otherwise. A number of states have 
 tried to simplify the election of committees by providing that 
 the committees for the more artificial electoral districts shall be 
 composed ex qfficio of members of the committees for the more 
 natural districts. Thus a state senatorial district committee 
 may be composed of the members of the state representative 
 district or county committees lying within the senatorial dis- 
 trict. The committee for a congressional district comprising a 
 considerable number of counties may be composed of the chair- 
 men of the several county committees, or it may be composed of 
 the members of the state committee representing the counties or 
 other districts lying within the congressional district. The prac- 
 tice varies greatly in different states, depending partly upon the 
 organization of local government, and partly upon the practice 
 that prevailed before the establishment of the direct primary. 
 Small committees organize by choosing a chairman, a secretary, 
 a treasurer, and such other officers as may be thought necessary, 
 although in a few states the chairmen of committees are specially 
 elected at the primary. Large committees, including the state 
 central committees in most states, also choose an executive 
 committee, or authorize their chairman to appoint an executive 
 committee to which they delegate most of their powers. In a 
 few states, however, the delegation of power by one committee 
 to another is prohibited by law.
 
 STATE GOVERNMENT IN UNITED STATES 
 
 The permanent officers of the party organizations, that is, the 
 members of the various party committees, are technically the 
 officers of voluntary associations. 1 They receive no regular 
 compensation for the performance of their important duties, nor 
 is any regular revenue provided by means of which they may de- 
 fray the expense of maintaining the organization and conducting 
 campaigns. They are generally chosen for fixed terms of two 
 or four years, though local party officers in a few states and all 
 party officers in Massachusetts are chosen annually, and, when 
 elected in official primaries, may receive their credentials from 
 the public election officers. Yet they are not themselves public 
 officers, and cannot be removed from office either by impeach- 
 ment or by other direct legislative or administrative action. 
 Since they are chosen for fixed terms, they cannot be removed by 
 any partisan body unless the primary law or the party constitu- 
 tion expressly so provides. Frequently there is no provision 
 for the removal of party committeemen before the expiration 
 of their terms. Where there is such provision, it makes the 
 tenure of the local committeemen dependent upon the good will 
 of the majority of the central committee, thus causing a degree 
 of centralization in the party organization incompatible with 
 the maintenance of local autonomy in party government. In 
 the absence of any effective provision for the removal of party 
 committeemen the control of the party organization between 
 campaigns lies entirely in their hands. Whether or not it also 
 lies entirely in their hands at all times depends upon the nature 
 of the test of party affiliation, the method of nominating candi- 
 dates, and the manner of conducting primaries and conventions. 
 
 The organization of major parties not subject to regulation by 
 law is less uniform than that of those whose organization is 
 regulated by law. In several of the southern states the dominant 
 party has voluntarily adopted the direct primary system of 
 making nominations and provided all the machinery for the 
 conduct of primary elections. In such states the party constitu- 
 tion and rules of procedure are almost as comprehensive as are 
 the election laws themselves in the states where the direct pri- 
 mary is established by law. In such a state as South Carolina, 
 for example, the dominant party so completely dominates local 
 
 1 F. J. Goodnow, Administrative Law of the United States, pp. 243-253.
 
 THE POLITICAL PARTY 171 
 
 politics that the other parties maintain scarcely more than a 
 nominal organization. Such an organization may play a part 
 in national politics, but is negligible in connection with the govern- 
 ment of the state. The primary of the dominant party practi- 
 cally takes the place of the official general election, and the rules 
 for the conduct of the primary are of greater political importance 
 than the ostensible election law. In several northern states 
 also the dominant party holds a very strong position. There 
 the traditional convention system has been retained by the major 
 parties, at least for the selection of candidates for offices to be 
 filled by the voters of the state at large, in all states where the 
 direct primary has not been established by law. In these states 
 there is still a convention for each electoral district, unless the 
 direct primary, as is the case in a few states, is specially estab- 
 lished for certain localities. Under the traditional convention 
 system the members of the various party committees (as well 
 as the candidates for public office) are usually chosen by the 
 conventions. The influence of the rank and file upon the nomina- 
 tion of most of the candidates and the choice of most of the party 
 managers may at best be very indirect and remote. 
 
 Party organization in the states which still retain the tradi- 
 tional convention system is generally highly centralized. The 
 supreme legislative authority is the state convention, and the 
 supreme executive is the state central, or executive, committee. 
 The former makes the rules for the conduct of primaries and the 
 procedure of local conventions and committees, so far as it 
 chooses, and the state committee supervises their enforcement. 
 Any dispute as to the regularity of the proceedings in any pri- 
 mary or convention or party committee may therefore be ap- 
 pealed to the state committee and finally to the state convention. 
 But if the state committee prepares the temporary roll of dele- 
 gates to the state convention and designates its temporary officers, 
 the balance of power is likely to repose in its hands. In short, 
 under the traditional convention system that caucus or primary 
 or convention, and hence that nomination of candidates and 
 choice of party committeemen, is regular which is recognized by 
 the next higher committee in the organization of the party. In 
 case of a legal controversy over a nomination and the use of the 
 party name on the ballot, the decisions of the highest committee,
 
 STATE GOVERNMENT IN UNITED STATES 
 
 that is, of the state central or executive committee, will generally 
 be recognized by the courts as final. 1 The extent of the control 
 of the party organization by the permanent committeemen, as 
 in the case of parties whose organization is regulated by law, 
 depends upon the nature of the test of party affiliation and the 
 character of the nominating procedure. 
 
 ORGANIZATION OF SOCIALIST PARTY 
 
 The organization of the minor parties, with one exception, is 
 less formal and less elaborate than that of the major parties and 
 requires no special consideration. The exception is the Socialist 
 party. 
 
 The Socialist party organization is substantially the same in 
 all the states and differs hi several important respects from that 
 of the other parties. In the first place, the state convention has 
 no final power to adopt a constitution and rules of procedure, but 
 may only propose a constitution and rules or amendments thereto 
 for final adoption by the rank and file of the party, voting directly 
 at a party referendum, as it is called. The platform, also, may 
 only be adopted provisionally by the state convention, subject 
 to final ratification by the members of the party. Secondly, 
 the convention may nominate candidates for public office, but 
 the nominations are subject to ratification by the membership. 
 Thirdly, the members of the principal party committees are 
 elected directly by the members of the party, and may be re- 
 called at any time by a majority of those voting on the question 
 when submitted to the members. The question of recall must 
 be submitted when ordered by the requisite number of local 
 associations. Fourthly, the local associations may initiate 
 amendments to the constitution and rules and platform, and a 
 majority of the members throughout the state voting thereon can 
 adopt them. Thus, though the Socialist party organization is 
 as highly centralized as that of any other party, the acts of those 
 in authority are subject to control by the majority of the mem- 
 bers, or at least are supposed to be subject to such control, 
 through the operation of the initiative, referendum, and recall. 
 
 The Socialists have not only adopted a radical redivision of 
 
 1 F. J. Goodnow, op. cit.
 
 THE POLITICAL PARTY 173 
 
 powers between the representative organs of party government 
 and the rank and file, they have also made some fundamental 
 changes in the character of party administration. The most 
 important officer in the Socialist party organization is not the 
 chairman of the state committee, as in other parties, but the 
 state secretary. This officer, though usually elected directly 
 by the membership, is regarded as an employee rather than as a 
 leader of the party, and is expected to devote all his time to its 
 service. Instead of being left to secure his reward for party 
 service by obtaining election or appointment to public office or 
 otherwise, as in other parties, he is paid a fixed salary. The 
 necessary funds for salaries and other expenses of organization 
 are raised by the sale of stamps to the members. These stamps 
 are furnished each month by the national secretary to the state 
 secretaries, one for each member of the party in good standing 
 within the state, at the rate of five cents apiece. The state 
 secretary retails them to the secretaries of the party locals at 
 ten cents apiece. The local secretaries dispose of them to mem- 
 bers at twenty-five cents each, or whatever they will fetch. 
 Thus the national, state, and local organizations are expected 
 to secure a stable and regular revenue and the members of the 
 party to feel a personal interest in the conduct of party affairs 
 between as well as during the campaigns. The national secre- 
 tary and several of the state secretaries publish weekly bulletins 
 in which the receipt and expenditure of the party funds is ac- 
 counted for and the conduct of party affairs in general duly re- 
 corded. The Socialist party organization is thus more complete 
 than that of any other party, for no other party makes provision 
 for the regular employment of paid officials and the regular col- 
 lection of membership dues. On paper it is more democratic 
 than that of any other party. Whether it is so in fact, and 
 whether it is as efficient as democratic, are questions to which 
 only experience can afford an answer. 
 
 TEST OF PARTY AFFILIATION 
 
 The test of party membership before the legal recognition of 
 the political party was generally left to the discretion of the official 
 party committees. This system still obtains in a few states.
 
 174 STATE GOVERNMENT IN UNITED STATES 
 
 Thus in Rhode Island 1 the rules of the Republican party provide 
 that town and city committees shall be chosen biennially at the 
 caucuses or conventions which elect delegates to the state con- 
 vention for the nomination of a candidate for governor and other 
 state officers, or at the caucuses or conventions for the nomina- 
 tion of representatives to the general assembly. These town 
 and city committees shall, when occasion requires, secure voting 
 lists to be used in local Republican caucuses and shall determine 
 what voters are eligible to vote in such caucuses. When two 
 local caucuses in any town or city claim to represent the Republi- 
 can party, the executive committee of the state central committee 
 shall determine which one to recognize. Moreover, the state 
 central committee in its discretion may disqualify any one or 
 all of the members of a town or city committee, and choose 
 others to fill such vacancies. The state central committee is 
 elected biennially by the state convention, which also elects the 
 state chairman. The latter appoints the state executive com- 
 mittee. In this way party management is effectively centralized, 
 and the supreme authority in party affairs is vested in those who 
 control the central organization. The right of the individual 
 member of the party to participate in the government of the 
 party and the nomination of party officers and candidates is 
 dependent primarily upon the will of the local party committee, 
 ultimately upon that of the officers of the state organization. 
 
 In a few states, the test of party membership, instead of being 
 left to the discretion of party officers, either local or central, is 
 clearly defined in the party rules. Thus in South Carolina 2 
 the rules of the Democratic party provide that the applicant for 
 membership in the party must be a white Democrat, or a negro 
 who voted for General Hampton in 1876 and has voted the Demo- 
 cratic ticket continuously since then. No white man, however, 
 may be excluded from the party because of his political opinions, 
 provided that he pledges himself to support the candidates to 
 be nominated at the primary in which he wishes to take part. 
 
 1 Rules of the Republican State Central Committee of R. I., adopted Nov. 
 28, 1911. 
 
 2 Constitution of the Democratic Party of South Carolina, as adopted in State 
 Convention at Columbia, S. C., May 15, 1912, and Rules Governing the Member- 
 ship of Democratic Clubs, the Qualification of Voters and the Conduct of Primary 
 Elections of the Democratic Party of South Carolina, adopted May 15, 1912.
 
 THE POLITICAL PARTY 175 
 
 No negro, on the other hand, may vote in a Democratic primary 
 unless he produces a written statement, signed by ten "repu- 
 table" white men, who shall swear that they know of their own 
 knowledge that the applicant has voted the Democratic ticket 
 continuously since 1876. In other words, the test of party 
 membership is mainly one of race. In South Carolina, as in 
 Rhode Island, the enforcement of the test is vested primarily in 
 the local party committee, subject to appeal to the state execu- 
 tive committee. 
 
 The Socialist party has adopted the most stringent test of party 
 affiliation. The voter who would be accepted as a "comrade" 
 must first sign the party's official declaration of faith, and there- 
 after he must regularly pay his party dues. Failure to observe 
 the constitution and rules of the party will entail expulsion from 
 the organization, and failure to pay the dues will be punished by 
 suspension from the privilege of participation in the government 
 of the party. The test of membership in the Socialist party, 
 however, is not arbitrary and contingent upon the good will of 
 the officers of the organization, as is the case of such an organiza- 
 tion as that of the Rhode Island Republicans, and it is not dis- 
 criminatory against any class of persons (except those who do 
 not believe in the "class war"), as in the case of the Democratic 
 organization in South Carolina. It is a test defined by the 
 supreme representative organ of the party, subject to the ex- 
 press approval of the majority of the members, and embodied in 
 a known and fixed rule. The number of persons regularly en- 
 rolled in the party organization as dues-paying members is, 
 however, only a small proportion of those who support the party 
 tickets at the polls. In general the party enrolment ranges be- 
 tween five and twenty per cent of the party vote. There is no 
 evidence that the number of persons enlisted in the organizations 
 of other minor parties is any greater than in the case of the 
 Socialists, although the requirement of financial support from 
 the rank and file is made by no other party. Indeed, there is 
 no evidence that the number of partisans actively enlisted in 
 the organizations of any of the parties, major or minor, is greater 
 than five to twenty per cent. 
 
 Since the legal recognition of the political party, the test of 
 party membership has often been fixed by the law of the state.
 
 STATE GOVERNMENT IN UNITED STATES 
 
 This is now the general rule in the states in which the system of 
 direct nomination at primary elections has been substituted by 
 law for the delegate convention system. The tests established 
 by law are of two kinds. They may be based upon the 
 voters' past political affiliations, or they may be based upon 
 their intentions with respect to political affiliations in the 
 future. In the former case, the law may be satisfied with a 
 mere declaration, unsupported by proof, that the voter has in 
 the past generally supported the candidates of the party of his 
 choice. Wherever the secret ballot is established at general 
 elections, such a test is practically no more effective in excluding 
 undesirable persons from a party than a test based on a mere 
 declaration of intent to support the party's candidates in the 
 future. By either test such a voter is free to decide for himself 
 at the time of the primary with which party he will affiliate for 
 the time being, and with either test the system is rightly de- 
 scribed as one providing for an open primary. At present the 
 open primary system is established in about half of the states 
 in which the direct primary has been made mandatory by law. 
 In some of these states, however, the voter selects his party 
 ballot in secret at the primary and his party affiliation conse- 
 quently may not be publicly known, unless he chooses to 
 reveal it. 
 
 The alternative to an open primary is one in which the primary 
 of each party is effectively closed to all except bona fide mem- 
 bers of the party in good standing for some definite period of 
 time. A closed primary system is most effectively established 
 by requiring that all those who would take part in mak- 
 ing partisan nominations must be publicly enrolled in ad- 
 vance. In Massachusetts, under the primary law of 1911, 
 the voter became enrolled simply by attending a primary elec- 
 tion and voting with some recognized political party. There- 
 after, so long as he should regularly attend the primaries, he 
 remained a member of that party, unless he went before the town 
 or city clerk or election commissioners at least ninety days be- 
 fore the date of the primary election at which he should desire 
 to affiliate with a different party, and requested that the desired 
 change be made in his official enrolment. In New York and 
 most states requiring an official party enrolment, the voter is re-
 
 THE POLITICAL PARTY 
 
 177 
 
 quired to designate his party affiliation when he registers, and 
 from the registrars' records the lists of enrolled party voters 
 are made up for the ensuing year. Either of the above-described 
 systems of party enrolment presents an effective barrier to un- 
 premeditated changes of party membership during the heat of a 
 political campaign. 
 
 THE BIPARTISAN SYSTEM 
 
 The results of the official enrolment of partisans in the states 
 which provide for party enrolment illustrate the strength and 
 character of the party system in American politics. The follow- 
 ing are typical. 
 
 NAME or PARTY 
 
 NEW YORK 
 1914 
 
 CALIFORNIA 
 .'914 
 
 OREGON 
 1912 j 
 
 Republican 
 
 636,4.0? 
 
 388 985 
 
 TO? OsO 
 
 Democratic 
 
 6ce 04. 7 
 
 206,146 
 
 1A 6?O 
 
 Progressive 
 
 76,818 
 
 1 84., 6 7 "\ 
 
 I 1 1A. 
 
 Prohibition 
 
 20,119 
 
 28,199 
 
 2 285 
 
 Socialist 
 
 20,061 
 
 TO, 741 
 
 6 768 
 
 Miscellaneous 
 
 9,280 
 
 1, 60 1 
 
 1,988 
 
 Independent 
 
 
 408 
 
 4,708 
 
 Refused to state party affiliation 
 
 339,625 
 
 70,041 
 
 2,387 
 
 Total registration prior to gen- 
 eral election 
 
 1,767,264. 
 
 930.886 
 
 i <J9,888 
 
 
 
 
 
 In each state it is evident that the great majority of the voters 
 are partisans. In New York more than four-fifths of the voters 
 indicated their party affiliation ; in California, more than nine- 
 tenths ; and in Oregon, where the system of party enrolment has 
 been longest in operation, less than five per cent of the registered 
 voters declared themselves to be independent of party, or unwill- 
 ing to state their party affiliation, if any. Not only are the 
 great majority of the voters partisans, but also the great majority 
 of them belong to one or the other of the two major parties. In 
 New York nearly three-fourths of the registered voters are en- 
 rolled Republicans or Democrats; in California, nearly two- 
 thirds; and in Oregon, more than seven-eighths. The number 
 
 N
 
 178 STATE GOVERNMENT IN UNITED STATES 
 
 of organized parties in the states ranges from four to six, but it 
 is seldom that more than two of them are of major political im- 
 portance. In a considerable number of states, including most 
 of those of the South, a large majority of the voters profess to 
 belong to a single party, as in Oregon. 
 
 The official party enrolments, however, do not show the num- 
 ber of partisans actively enlisted in the party organizations. 
 The most important work of the parties is the making of nomina- 
 tions, but examination of the primary election returns in different 
 states reveals the fact that there is no uniformity in the attend- 
 ance of partisans at the primaries of their respective parties. 
 The extent to which partisans affiliated with the major organiza- 
 tions actively participate in the making of nominations depends 
 upon the political importance of their party and varies with the 
 chances for the success of their candidates at the general elec- 
 tions. Where election is certain^ as in the case of the Demo- 
 cratic candidates in many southern states, the attendance of 
 partisans at the primaries is usually larger than at the general 
 elections. It is often proportionately as large as the attendance 
 of all voters at the general elections in states where the issue is 
 doubtful. Where defeat is certain, the attendance at the pri- 
 maries is commonly small, sometimes so small as to be merely 
 nominal. When neither election nor defeat is certain, the re- 
 sults are various, depending mainly upon the personality of the 
 candidates for nomination and the closeness of the contests 
 between them. 
 
 The official returns of primary elections further show that party 
 ties rest lightly upon a considerable proportion of the voters. 
 Whilst in Oregon, for example, two-thirds of all the voters are 
 enrolled Republicans, and have been such ever since the adoption 
 of the system of party enrolment in 1904, they have nevertheless 
 chosen two Democratic governors and two Democratic United 
 States senators during this period, and cast the electoral vote 
 of the state once for the Democratic candidate for the presidency. 
 Either many voters are Republicans mainly for the purpose of 
 participating in the Republican primaries, since Republican 
 nominations are usually much more important than those of 
 any other party, or else partisan principles are frequently sub- 
 ordinated at the polls to other considerations of a personal, or,
 
 THE POLITICAL PARTY 179 
 
 at least, non-partisan character. The same conditions exist 
 in most northern states in which one of the major parties is 
 much more numerous than the other. In the close states, on 
 the other hand, party ties seem in general to be less lightly re- 
 garded by the voter. The evidence indicates, however, that the 
 strongest motive impelling a considerable number of voters to 
 become partisans is the desire to make their votes count for as 
 much as possible, rather than an enduring loyalty to any par- 
 ticular party creed or organization. What attracts them to 
 the primary is not the spirit of partisanship, but the opportunity 
 which the primary system affords of choosing twice among the 
 candidates for office. Such voters are partisans chiefly in name. 
 
 CHARACTER OF SYSTEM 
 
 The existing partisan system, regarded as a system of organiz- 
 ing the electorate, is, like the system of electoral districts, an 
 artificial creation. The party organizations which are recognized 
 by law for the purpose of making nominations for state offices 
 are also recognized for the purpose of making nominations for 
 federal offices. The same has been true as to local offices ; but 
 in this field a contrary tendency has recently appeared. Where 
 official party enrolment is provided for, the same enrolment 
 serves as the basis for participation in the state and federal 
 primaries, and in many localities also for the local primaries. 
 State and federal primaries generally, with the exception of the 
 presidential primaries, and local primaries less generally, are 
 held on the same day. Thus the same partisan system which is 
 employed for the organization of the state electorates is made to 
 serve the purposes of the voters in federal politics, and in many 
 cases in local politics also. State, federal, and local, legislative, 
 executive, and judicial nominations are all made by the same 
 electoral associations. But where the same party organizations 
 represent the same groups of voters in the selection of so many 
 different candidates, there inevitably ensues a great confusion 
 of ideas. State, federal, and local issues, legislative, administra- 
 tive, and judicial issues, are by no means identical. There are 
 usually at least two sides to each issue, and the chances that any 
 large number of voters will be on the same side all along the line
 
 i8o STATE GOVERNMENT IN UNITED STATES 
 
 of issues are not very great. In order that an electoral asso- 
 ciation of the existing American type may have a fair prospect 
 of success at the polls, each member must subordinate many of 
 his personal views for the sake of joining his party associates on 
 common ground. Party organization necessarily involves some 
 compromise of private opinions in the interest of agreement upon 
 a general program, and under the existing conditions in American 
 politics it involves an unparalleled degree of such compromise. 
 The confusion of issues and compromise of opinions inherent in 
 the established party system has unfortunate consequences on 
 the operation of the system in the states. In the first place, the 
 importance of principles of any kind in the actual conduct of 
 party government is unduly diminished. The difficulty of singling 
 out the paramount issue in a campaign and securing the support 
 of the whole party upon that issue stimulates an overemphasis 
 of the other features of party association, the local prejudices, 
 the private and special interests, the purely personal loyalties, 
 the evil consequences of party irregularity. The taking of 
 sides upon important issues is avoided as far as possible. Plat- 
 forms tend to become an inscrutable compound of undisputed 
 generalities, trivial details, and vague promises. If issues must 
 be faced, it is usually easier for a major party to be obstructive 
 than constructive. A recent writer has justly observed : "Their 
 [the two leading parties] success as partisan organizations de- 
 pends on the willingness of their members [that is, those who are 
 not merely nominal members] to sacrifice individual convictions in 
 the interests of party unity. The party is to them a very real 
 and valuable thing, whose preservation is worth the subordination 
 of their private opinions. Republicans and Democrats are held 
 together more by personal loyalty, by the habit of association, 
 by common interests, and by the fear of the consequences of inde- 
 pendence, than by common convictions. Every party whose 
 chief purpose is to control the government must be bound to- 
 gether by a cement of this kind." l Indeed, a great and successful 
 party becomes a political entity, a being with a separate exist- 
 ence of its own, with a character to maintain, a personality to 
 inspire, a destiny to fulfill. A party without principles would be 
 a mean and unlovely and, in the long run, ineffective creature, 
 1 The New Republic, Aug. 14, 1915, p. 30.
 
 THE POLITICAL PARTY 181 
 
 but it takes more than principles to make a party. It is not 
 surprising, therefore, that many who describe themselves as 
 partisans hold their party ties lightly. Men of the highest prin- 
 ciples and men of no principle at all make poor partisans. 
 
 Secondly, the issues which in practice are most likely to be com- 
 promised for the sake of party solidarity are those peculiar to the 
 states. This is clearly indicated by the results of the elec- 
 tions. Viewing the Union as a whole, the two leading parties 
 divide the voters with extraordinary evenness, and have done so 
 with some temporary interruptions for a long period of years. 
 No candidate for the presidency has ever succeeded in gaining 
 the support of as many as three voters out of five. The most 
 sweeping presidential victories were those of Lincoln in 1864, 
 Grant in 1872, Jackson in 1828, and Roosevelt in 1904. The 
 last, who received the largest proportion of the popular vote 
 ever cast for any candidate, received only 56.4 per cent of the 
 total vote. On the other hand, through the division of the 
 opposition, Wilson was elected in 191 2 with 43 per cent of the total 
 vote, and Lincoln was elected in 1860 with only 39.9 per cent. 
 In order to avoid such minority elections most voters normally 
 support at presidential elections the candidates of one of the 
 two leading parties. Ordinarily the successful candidate for the 
 presidency polls between 48 per cent and 52 per cent of the popu- 
 lar vote, and the leading unsuccessful candidate not less than 40 
 per cent to 45 per cent. Since the final establishment of the 
 national convention in 1840, there have been only four presiden- 
 tial elections at which more than two parties have had votes in 
 the electoral college. Ordinarily no minor party can carry a 
 state. But any equally even division of the voters in the several 
 states does not exist. There are eleven southern states which 
 the Democrats, since the suppression of the negro vote, have 
 never failed to carry for their candidate for president. There 
 are an equal number of northern and western states which the 
 Republicans, during the same period until the split in the party 
 in 1912, never failed to carry for their candidate for president. 
 That is to say, federal issues must be generally deemed more 
 important than state issues, or at least the choice of federal 
 officers must be regarded as more important than the choice of 
 state officers. Were it otherwise, the state electorates rather
 
 i82 STATE GOVERNMENT IN UNITED STATES 
 
 than that of the Union as a whole would be evenly divided 
 by the parties, for the major party organizations are created 
 to win elections, especially the most important elections, and 
 an electoral association which desires to win will not remain in 
 a permanent minority in a state unless its members regard state 
 issues as of secondary importance. 
 
 The subordination of state issues in the interests of party 
 solidarity increases the artificiality of the partisan system as it 
 operates in the states. The members of a major political or- 
 ganization in a state may have little or no basis for common 
 action, so far as state issues are concerned, and different factions 
 within the party in a state may be more widely separated from 
 one another on state issues than from the opposition. Under 
 such circumstances more important issues, so far as the state is 
 concerned, may be at stake in primary elections than in the 
 general elections. Such indeed is the case in all states where 
 one of the major parties dominates state politics. Moreover, 
 in such states, since the party nomination for state office is ordi- 
 narily equivalent to election, the members of the minority party 
 are excluded from any effective share in the government of the 
 state. Since the control of the nominating machinery in the 
 dominant party will give control of the general elections, those 
 members of the dominant party who control the nominating 
 machinery may control the government of the state. In the 
 states where the major parties are more evenly matched, the 
 control of the nominating machinery in both parties, if held by 
 politicians willing to work together, may likewise give practical 
 control of the government of the state. In such states the mem- 
 bers of both parties may be practically excluded from any effective 
 share in the government of the state, if they are excluded from 
 effective participation in the nominating process. Whether the 
 majority of a party may be so excluded depends upon the nature 
 of the nominating process and the purposes of the permanent 
 party officers. 
 
 WORKING OF CONVENTION SYSTEM 
 
 Under the delegate convention system the process of nomina- 
 tions was such as to facilitate the control of the nominating machin- 
 ery by the active members of the party organizations. The test
 
 THE POLITICAL PARTY 183 
 
 of party affiliation was framed and applied by the regular party 
 committees, and participation by the rank and file in the pri- 
 maries and caucuses was consequently more or less contingent 
 upon the favor of their official leaders. Partisans rarely voted 
 directly for the candidates of their choice, and consequently 
 could express their preference only through the medium of dele- 
 gates to the conventions. If all genuine members of a party, 
 and no others, were admitted to a primary, if the primary were 
 honestly conducted and a correct return made of the votes cast 
 therein, if the delegates to the conventions were loyal to their 
 pledges, or, in case they had made no pledges, were sincerely 
 desirous of nominating the best candidates, and if the conventions 
 were honestly conducted, the process of nomination was likely 
 to represent the will of the majority of the party. But if the 
 primaries and conventions were conducted arbitrarily and un- 
 fairly, the wishes of the rank and file would have little influence 
 upon the result. In practice, the permanent party committee- 
 men not only judged the qualifications of participants in the 
 primaries, but also prepared the slates of delegates to the con- 
 ventions, conducted the primary elections, passed provisionally 
 upon contests between rival slates of delegates for the credentials, 
 made up the temporary rolls of accredited delegates, selected 
 the temporary officers, and arranged for the permanent organi- 
 zation of the conventions. Under these circumstances, it is 
 not surprising that the rank and file were often unable to pre- 
 vent the nomination of candidates to whom the majority were 
 strongly opposed. 
 
 The true character of the process of nomination under 
 the delegate convention system was recognized almost from the 
 beginning. John C. Calhoun, writing in 1844, declared: "The 
 further the convention is removed from the people, the more 
 certainly the control will be placed in the hands of the interested 
 few. ... At each successive remove the voice of the people 
 will become less full and distinct, until at last it will become so 
 faint and imperfect as not to be audible." l The existence of the 
 two-party system in national politics made the position of the 
 
 1 From his statement refusing to permit his name to be presented to the 
 Democratic national convention at Baltimore in 1844 as a candidate for the 
 presidency.
 
 184 STATE GOVERNMENT IN UNITED STATES 
 
 professional party managers almost impregnable, so long as the 
 process of nomination remained unchanged. If unscrupulous 
 party committeemen chose to disregard or defeat the will of the 
 rank and file, the theoretical check upon their abuse of power was 
 to "bolt" the nominations and support other candidates at the 
 polls. But such a course meant the desertion of the party, at 
 least temporarily, and in the period before the introduction of 
 the secret ballot might have caused the forfeiture of all claims to 
 participate in future nominations. Where the nominations of 
 both parties were made without due regard for the preferences of 
 the majority of their members, a "bolt" from one party to the 
 other would have been futile. The organization of an independ- 
 ent party on short notice was impracticable, except in local 
 campaigns. Though an independent party could be organized 
 on a national scale, if time were permitted, it could not become 
 of major importance without displacing one of the existing major 
 parties. So long as the bipartisan system prevailed, and the 
 process of nomination remained as established under the delegate 
 convention system, the principal check upon the conduct of 
 affairs by the active members of the party organizations was 
 in practice their own sense of responsibility to their followers. 
 
 THE PARTY MACHINE 
 
 The permanent party officers were not without a motive for 
 seeking to control the nominations. In the first place, control 
 of the nominating machinery enabled those who held the con- 
 trol, the "machine" as they may be described, to dispose of the 
 nominations for private gain. This gain might take the form of 
 advancement of their personal political fortunes, or it might even 
 take the form of money. In some cases, particularly in the case 
 of the more conspicuous offices, payment for nominations might 
 be made under the guise of contributions to campaign funds. 
 In the case of less conspicuous offices, such as minor places on 
 the state ticket, and minor administrative and judicial nomina- 
 tions, the sale and purchase of nominations could be more open. 
 In some states at certain periods such disposition of nominations 
 was brazen. 1 Occasionally vendors of nominations have been 
 
 1 See W. M. Ivins, Machine Politics and Money in Elections in New York City 
 (New York, 1887).
 
 THE POLITICAL PARTY 185 
 
 convicted of corruption in the courts. Convictions, however, 
 for obvious reasons, could hardly be expected in the greater pro- 
 portion of the cases. There can be no question that the deliberate 
 sale of a nomination for money is corrupt, but the line is not easy 
 to draw between a proper and an improper disposal of nomina- 
 tions, not for money, but for the advancement of the political 
 interests of the members of the "machine." Personal and party 
 success in such cases easily become identified, and a disposition 
 of nominations in such a way as to advance the fortunes of the 
 party and incidentally of the party managers is less open to 
 criticism, at any rate so long as the party is regarded as a private 
 association, and its managers are left to their own devices to 
 secure compensation for the undoubted services they are required 
 to perform. It is often said that party managers and workers 
 should be public-spirited enough to perform their party duties 
 without compensation, but such a point of view overlooks the 
 fact that much of the work connected with the conduct of party 
 affairs and the getting out of the vote on election day is menial 
 drudgery, demanding heavy sacrifices of time and effort, and 
 offering little compensation in the way of public honors or esteem. 
 Secondly, control of the nominations enables the "machine" 
 to influence the public conduct of those officials who owe their 
 nominations to "machine" support in the primaries or conven- 
 tions. By using such influence with members of a state legis- 
 lature, the "machine" can promote or obstruct the enactment of 
 legislation desired or opposed by private interests to whom the 
 members of the "machine" may be indebted for political or 
 personal favors. Tax exemptions or appropriations, or fran- 
 chises or other special legislation, if not prohibited by the state 
 constitution, and special consideration in connection with public 
 general legislation, are the not infrequent objects of such influence. 
 By using such influence with administrative officials the 
 "machine" can affect the appraisal or assessment of property, 
 the awarding of contracts, the inspection of machinery and 
 buildings, and the enforcement of law generally. By using such 
 influence with the judiciary the "machine" can affect appoint- 
 ments to receiverships, masterships, rcfereeships, and so forth, 
 and in general it can affect the use of the power of appointment to 
 office and the distribution of the public patronage. A "machine "
 
 i86 STATE GOVERNMENT IN UNITED STATES 
 
 may include a large number of active politicians, but in general 
 on important questions of "machine" or party policy the advice 
 of a few of the more experienced leaders is followed. If there 
 be some one among these whose advice is especially valued, that 
 one is commonly described as a "boss." There has been much 
 indiscriminate abuse of "bosses" in American politics, but there 
 is a clear necessity for discrimination between good and bad 
 "bosses." The distinction indeed is similar to that drawn many 
 centuries ago by Aristotle between the good king and the bad 
 king or tyrant. The good king was a leader whose power was 
 exercised for the common welfare. The tyrant was one whose 
 power was exercised for private ends. In fact the line between 
 the two was not always easy to draw, for many rulers showed 
 a mixture of the good and the bad. It is the same with the 
 modern "boss." If the word must be used only in a bad sense, 
 it should be understood that those who have the power of a 
 "boss" may use it for public as well as private ends, and if they 
 use it chiefly for public ends are entitled to a better name. 
 
 FAILURE OF CONVENTION SYSTEM 
 
 Under the delegate convention system, however, the business 
 of party management too often fell into the hands of professional 
 politicians intent rather upon personal gain than upon the promo- 
 tion of the common welfare. In any state where one of the major 
 parties dominated the political situation, if the party itself was 
 dominated by self-seeking professional politicians, the govern- 
 ment of the state likewise tended to become vested in the hands 
 of the "machine." Where the major parties were more evenly 
 matched in state politics, the voters at least had a choice of 
 evils, and consequently a somewhat more effective position in 
 the conduct of party and public affairs. The situation that could 
 exist in a boss-ridden state has been vividly described by no less 
 a person than the president of the late constitutional convention 
 in the state of New York in a speech before that body. 1 "What 
 is the government of this state? What has it been during the 
 forty years of my acquaintance with it? The government of 
 the constitution ? Oh, no. ... From the days of Fenton, and 
 
 1 Elihu Root, Speech in New York Constitutional Convention, Aug. 30, 1915.
 
 THE POLITICAL PARTY 187 
 
 of Conkling, . . . down to the present time the government of 
 the state has presented two different lines of activity, one of 
 the constitutional and statutory officers of the state, and the 
 other of the party leaders, they call them party bosses. They 
 call the system I didn't coin the phrase, I adopt it because it 
 carries its own meaning the system they call 'invisible govern- 
 ment.' For I don't remember how many years Mr. Conkling 
 was the supreme ruler in this state ; the governor did not count, 
 the legislatures did not count; comptrollers and secretaries of 
 state and what not did not count. . . . Then Mr. Platt ruled 
 the state . . . and the capitol was not here, it was at 49 
 Broadway. . . . The ruler of the state during the greater part 
 of the forty years of my acquaintance with the state government 
 has not been any man authorized by the constitution or by the 
 law, and, sir, there is throughout the length and breadth of this 
 state a deep and sullen and long-continued resentment at being 
 governed thus by men not of the people's choosing." This 
 charge was not successfully disputed either in the constitutional 
 convention or outside. 
 
 The delegate convention system doubtless might have been 
 greatly improved by the adoption of certain reforms. The chief 
 of these were : : (i) the adoption of a uniform primary day 
 and the holding of a joint primary for all political parties at the 
 regular polling places ; (2) the official enrolment of all members 
 of recognized political parties ; (3) the direct election of all dele- 
 gates to all conventions, so-called intermediate conventions 
 being abolished ; (4) the direct election of party committeemen 
 as well as delegates to conventions at the primaries ; (5) the 
 printing of an official primary ballot, the names of all candidates 
 for choice as delegates to conventions or as committeemen to be 
 filed with appropriate public officials a reasonable length of time 
 before the primaries ; (6) the fixing of the dates of all political 
 conventions and the regulation of procedure therein by law ; (7) 
 the certification of the election of all delegates by public officials 
 and the determination of contests between rival delegations by the 
 state courts ; (8) the abolition of the secret ballot in conventions 
 and the nomination of all candidates by open roll call ; (9) the 
 
 1 See Report of the Joint Committee of the Legislature of New York on Primary and 
 Election Laws, 1910, p. 217.
 
 i88 STATE GOVERNMENT IN UNITED STATES 
 
 regulation of the basis of representation in conventions and upon 
 party committees by known and fixed party rules ; and (10) the 
 extension to primary elections of the laws relating to corrupt 
 practices at general elections. Nowhere, however, were the 
 party managers willing to consent to extensive reforms, until 
 the demand for the abolition of the convention system and the 
 establishment of the system of direct nominations at the pri- 
 maries had become so strong that the reform of the convention 
 system was no longer acceptable. 
 
 The delegate convention system, so far as nominations for 
 state office are concerned, has now given way in most states to 
 the system of direct nominations at the primaries, or as it is 
 commonly called, of direct primaries. This system has been in 
 operation for many years in various localities for the nomination 
 of candidates for local office, and for a number of years in the 
 South for the nomination of Democratic candidates for state 
 office. 1 Its use for the nomination of candidates for state office 
 in the North and West is more recent, but already Wisconsin 
 and Oregon, the first northern and western states to adopt 
 the state-wide direct primary, have employed the system for 
 ten years. It is not too soon to inquire to what extent the 
 system has justified the hopes of its originators. 
 
 WORKING OF THE DIRECT PRIMARY 
 
 A candidate for nomination under the direct primary system 
 ordinarily secures a place on the official primary ballot by filing 
 a petition. This petition bears not less than a prescribed num- 
 ber of signatures, varying with the size of the electoral district 
 and the importance of the office sought. In states where there 
 is an official party enrolment the signatures must be of enrolled 
 members of the party whose nomination is sought. Experience 
 has indicated that the collection of signatures, at least by candi- 
 dates early in the field, is mainly a matter of money, although 
 since the process of signature collecting serves to a certain extent 
 to advertise the candidacy, it is not altogether a waste of money. 
 A few states have faced the situation more candidly by providing 
 that a filing fee shall be paid to the public treasury in lieu of a 
 1 See E. Meyer, Nominating Systems (ist edit.), 1902.
 
 THE POLITICAL PARTY 189 
 
 petition. In most of these states, however, the requirement of 
 a fee has been declared unconstitutional, on the ground that it 
 sets up a requirement for election to public office not authorized 
 by the Constitution. The logic of these decisions is difficult to 
 appreciate, since the requirement of a petition amounts to the 
 same thing. In several southern states where the direct primary 
 has been voluntarily established by the Democratic party, nota- 
 bly in Virginia and South Carolina, the party rules provide 
 that the candidate shall give bond to pay his proportionate share 
 of the expense of conducting the primary. This requirement is 
 complained of by persons without private means or organized 
 support, on the ground that it excludes them from contesting for 
 the nominations, but it is not clear that many persons have in 
 practice been excluded whose candidacies would have responded 
 to any considerable public demand. In general, the process of 
 getting on the primary ballot is not difficult, and the establish- 
 ment of the direct primary has undoubtedly tended to increase 
 the number of active candidates for party nominations wherever 
 there has been a fair chance of success at the general election. 
 
 The establishment of the direct primary has also tended to 
 alter the methods of campaigning for nominations. Under the 
 convention system the object of the candidate was to secure the 
 support of the delegates, and his activity was necessarily directed 
 towards securing the favor of those whose influence with the 
 delegates might be supposed to be greatest. This influence 
 might rest with the voters, by whom the delegates to the lowest 
 order of conventions were at least nominally elected, or it might 
 rest with the professional party managers, by whom such dele- 
 gates might be actually selected, and by whom the delegates to 
 the higher orders of conventions commonly were actually selected. 
 Under the direct primary system it is the support of the voters 
 themselves that must be secured. This support may be obtained 
 by direct appeals to the voters in the case of all nominations in 
 which the interest of the voters can be aroused by such appeals. 
 In other cases it may be necessary, as under the convention sys- 
 tem, to enlist the interest of the party managers, or to combine 
 with a candidate for nomination to a more conspicuous office and 
 form a " slate." " Trading" votes in a direct primary, however, 
 is not so easy a process as " trading " votes in a convention. The
 
 STATE GOVERNMENT IN UNITED STATES 
 
 candidates must generally be more dependent upon "publicity," 
 that is, upon the dissemination of information concerning their 
 personality, their record, their purposes, and their associations. 
 If a party is united upon its principles, primary campaigns must 
 inevitably turn chiefly upon personalities, but where, as fre- 
 quently happens, a party is not united upon state issues, the 
 primary campaign may provide a more effective opportunity for 
 the public discussion of such issues than the general election 
 itself. Such is generally the case in many parts of the South, 
 and in not a few of the northern and western states. 
 
 The result of the increase in the number of active candidates 
 for the important nominations and of the change in the character 
 of primary campaigns, taken together with the consciousness on 
 the part of the voters of the greater power that may be theirs under 
 the system of direct nominations, has been to increase the in- 
 terest of the rank and file in the making of nominations. This 
 increase of interest in nominations, however, has not taken place 
 equally with respect to all nominations. There has been a 
 general tendency to neglect the primaries of parties with little 
 chance of success at the general election, the members of such 
 parties often taking more interest in the primaries of the domi- 
 nant party than in their own. Not infrequently, even in northern 
 and western states, the attendance at the primary of the domi- 
 nant party closely approaches and occasionally surpasses the 
 party vote at the general election, whilst the attendance at the 
 primaries of the opposition is but a small fraction of their vote 
 at the polls. In the primaries of parties with good prospects of 
 success at the general election, the interest of the voters depends 
 upon the importance of the nominations which are to be made 
 and the closeness of the contest between the several candidates 
 for nomination. When a close contest is waged for an important 
 nomination, the interest of the voters is much greater than it 
 commonly was in similar cases under the delegate convention 
 system. But contests for minor places on the state ticket, in- 
 cluding high judicial offices, and for minor administrative and 
 judicial offices generally, often fail to arouse any lively public 
 interest. A candidate for nomination for such a position as 
 secretary of state or judge of a circuit court has ordinarily a 
 great deal of difficulty in getting the rank and file of the party to
 
 THE POLITICAL PARTY 191 
 
 think about his candidacy at all, to say nothing of forming any 
 intelligent opinion of the requirements of the office and the quali- 
 fications of the various candidates for nomination thereto. 
 
 The unequal development of popular interest in nominations 
 which results from the establishment of the direct primary system 
 has had important consequences upon the character of party 
 leadership. The influence of the regular party managers or 
 "machine" upon nominations for the conspicuous offices has 
 been diminished, for "machine" candidates must secure the 
 approval of the rank and file, expressed directly in the primary, 
 and under such circumstances as tend to encourage independent 
 candidates to repudiate the leadership of unworthy "bosses." 
 A candidate for governor or United States senator, fresh from 
 popular endorsement in the primary, is far stronger with reference 
 to the powers of the "invisible government" than a candidate 
 for a similar position nominated under the convention system 
 could ordinarily have been. To the extent that the offices 
 for which nominations are sought are conspicuous, the effect 
 of the direct primary is to establish "visible" party leadership 
 in place of "invisible" leadership. But, as has been pointed 
 out, many of the offices for which nominations are commonly 
 made in the direct primary are not conspicuous. The voters are 
 not generally interested in them, or well informed with respect 
 to their requirements and the qualifications of those who seek 
 them. In such cases, when there is no official "slate" prepared 
 by the regular party managers, a common practice is for a 
 candidate for a conspicuous nomination to make a slate of his 
 own by pooling his interests with those of the candidates for 
 other nominations whose cooperation is likely to prove most 
 useful. Thus the result of the primary election, so far as those 
 other nominations are concerned, is likely to be an endorsement of 
 a certain slate-maker, either the "machine" or the successful 
 candidate for the most conspicuous nomination, rather than cf 
 the several other candidates in particular. If the "machine 
 slate" is endorsed, the primary system is only partially success- 
 ful in substituting visible for invisible party leadership. In 
 either case, so-called direct nominations are much less direct 
 in fact than they may be made to appear. 
 
 If primary nominations for all offices are actually direct, the
 
 192 STATE GOVERNMENT IN UNITED STATES 
 
 results may be even less satisfactory than when they only appear 
 to be direct. One of the chief advantages of the popular election 
 of large numbers of administrative and judicial officers, from the 
 standpoint of the professional politician, is the facility it affords 
 for placating all sections of a heterogeneous party by distributing 
 the minor nominations among the different elements within the 
 party. But in the direct primary it becomes possible for any 
 members of a party to make an appeal to that element which is 
 most numerous, geographical, racial, or religious, as the case 
 may be. If this is done by some candidate for each place on the 
 ticket, it may happen that all the successful candidates will 
 represent the dominant element in the party. Such lack of 
 balance in the party ticket may lead to grave dissatisfaction 
 among the other elements within the party, and thereby imperil 
 the integrity of party loyalty and the effectiveness of party dis- 
 cipline. This menace to the solidarity of party organization is 
 much more serious under the direct primary than under the con- 
 vention system, for in a convention the delegates can easily 
 select candidates for the minor places on the ticket with a view 
 to their effect on the strength of the ticket as a whole. More- 
 over, an active direct primary campaign seems more likely to 
 arouse bitter personal enmities than a campaign for convention 
 delegates. At least it makes such enmities better known to the 
 public, and hence more difficult to settle after the heat of the 
 campaign. The results upon party unity in the ensuing cam- 
 paign for election can more easily be unfortunate than under the 
 convention system. An active primary campaign, too, is 
 likely to lay more stress upon the issues with respect to which 
 the party is divided than upon those with respect to which it is 
 united. Where the former are the more important, it is well 
 that it should be so, but the former may not be the more im- 
 portant. Supporters of unsuccessful candidates for nomination 
 may more easily than under the convention system come to 
 undervalue the principles upon which the members of the party 
 are agreed. In short, the direct primary system, though it 
 greatly increases the interest of voters in party nominations, at 
 least in those for the more important offices, and to a correspond- 
 ing extent increases also the sense of responsibility on the part 
 of the leaders to the rank and file, is less favorable than the
 
 THE POLITICAL PARTY 193 
 
 convention system to the maintenance of party harmony, and 
 consequently to the efficiency of the existing bipartisan system. 
 
 EFFECT ON PARTY ORGANIZATION 
 
 Moreover, the direct primary system, in its prevailing form, 
 includes not only the direct nomination of candidates, but also 
 the direct election of party committeemen. Under the conven- 
 tion system, as has been pointed out, the most important com- 
 mittees, particularly the state central committees, were chosen 
 only indirectly by the rank and file of the parties, usually through 
 the instrumentality of the conventions. Where the system of 
 "invisible government" was established, the convention was 
 more likely to be controlled by the committee than the committee 
 by the convention. The only committeemen chosen directly by 
 the members of the party were the local committeemen, and they 
 were dependent for their positions not only upon their ability to 
 control their districts by carrying the primaries or caucuses, but 
 also upon their ability to obtain "recognition" by their superiors 
 in the "organization." District leaders as a rule could not com- 
 mand the confidence of their followers unless they were " regular," 
 and they could not indefinitely maintain their regularity unless 
 they also enjoyed the confidence of their superiors. Thus even 
 the local committeemen, since they could not serve two masters, 
 tended to become "organization" men, and the power of the 
 "machine" was consolidated from top to bottom. The direct 
 election of all committeemen profoundly affects this internal 
 relationship of the "machine," for it makes each committeeman's 
 title to office as good as any other's. It is no longer possible for 
 any one, whether a local or central committeeman, to challenge 
 the regularity of another. All are equally dependent upon the 
 rank and file of the party, and equally independent of one an- 
 other. The result is to decentralize the structure of party or- 
 ganization, and thereby to diminish the power of unofficial party 
 managers to combat the enemies of party harmony by the time- 
 honored methods. 
 
 The effect of the direct primary upon the relations between 
 committeemen and candidates has been as notable as its effect 
 upon the relations between the different orders of committeemen. 
 o
 
 194 STATE GOVERNMENT IN UNITED STATES 
 
 It is the duty of committeemen to manage election campaigns in 
 the interest of all the candidates, and it is the duty of candidates 
 to work for the success of the party as a whole. In other words, 
 it is necessary that candidates and committeemen should work 
 together in harmony. Under many primary laws, however, 
 committeemen do not take office until the beginning of the year 
 following their election. Consequently they do not manage the 
 campaigns of the candidates nominated in the same primaries 
 in which they are elected, unless they happen to be chosen to 
 succeed themselves. In other words, the candidates nominated 
 at a direct primary find the party machinery in the hands of 
 committeemen chosen as a rule not less than two years before. 
 Now if there has been no change during this period in the control 
 of the party, this arrangement may not prove unsatisfactory, 
 but if the candidates and committeemen who carry the primaries 
 are out of sympathy with the committeemen who carried the 
 preceding primaries, dissensions will arise. It can hardly be 
 expected that a candidate will have much confidence in a com- 
 mittee whose slate perhaps has just been repudiated in the 
 primary, or that a committee will be zealous in support of a candi- 
 date who has just smashed the official slate. Under the conven- 
 tion system, either the committeemen were responsible to the 
 candidates who had carried the convention, or the candidates 
 were responsible to the committeemen who had manipulated it. 
 Under the direct primary system the convention can no longer 
 serve as the instrument of party harmony, and ordinarily noth- 
 ing is substituted for it. Thus the direct primary may be the 
 means of making party committeemen more responsible to the 
 rank and file of the parties than before, but at the cost of a more 
 or less serious division of authority between the several orders 
 of committeemen and the candidates. In other words it tends 
 to disorganize the major parties. 
 
 The experience of the last ten years in the direct primary states 
 indicates that the new system alone will not prevent the control 
 of nominations by minorities. Where any member of a party 
 may contest for a nomination, there is nothing to prevent any 
 number of persons from so doing, and in general, as already 
 pointed out, the most important nominations are likely to be 
 sought by several candidates. Now the greater the number
 
 THE POLITICAL PARTY 195 
 
 of candidates for a nomination, the less the likelihood that any 
 one of them will secure a majority of all the votes cast in the 
 primary. There is a constant temptation for each candidate to 
 seek to divide the potential following of his leading opponent by 
 inducing several candidates to appeal to the same following. 
 The result may be, and frequently is, that the successful candidate 
 for the nomination receives less than a majority of all the votes 
 cast. This in itself is of no great importance, provided that the 
 successful candidate is not a person to whom the majority of the 
 party are actually opposed. It occasionally happens, however, 
 that there is a definite issue between the majority and the minor- 
 ity of a party, and the candidate of the minority wins through 
 the division of the majority among several candidates. In 
 general, the candidate favored by the "machine" has a big ad- 
 vantage over his competitors, because the "machine" is generally 
 the most adept in holding its following together, and the most 
 efficient in getting out the vote in the primaries. A "good 
 machine" doubtless will ordinarily not intervene in the primaries 
 on behalf of any of the candidates, at least not on behalf of those 
 for conspicuous nominations, but will remain impartial until 
 after the nominations have been made. But the direct primary 
 was not introduced on account of "good machines" but on ac- 
 count of "bad machines." Where no great issue is at stake in 
 the nominations, and the questions are mainly of personality, 
 the "machine" seems generally able to prepare a "slate," 
 especially for the less important offices filled by election in the 
 state at large and in the unwieldier sort of districts, and procure 
 its endorsement in the primaries. It is not surprising that the 
 direct primary has not been the instrument of any general over- 
 throw of the established leaders in the major parties. 
 
 OTHER EFFECTS OF THE DIRECT PRIMARY 
 
 The effect of the establishment of the system of direct nomina- 
 tions upon the character of the candidates actually nominated 
 for public office is difficult to estimate. During the compara- 
 tively short period that the direct primary system has been in 
 general operation, the political situation has been too confused 
 to permit the discovery of any definite change either in the ability
 
 196 STATE GOVERNMENT IN UNITED STATES 
 
 or in the moral character of the candidates of the major parties. 
 In a few states the introduction of the state-wide direct primary 
 was followed by a change in the personnel of the party leaders, 
 in the other states no change took place. Doubtless some men 
 have been nominated who would not have been nominated under 
 the former system, or at least would not have been nominated so 
 easily, but it cannot yet be affirmed that the type of man who is 
 successful in politics has been materially altered. The evidence 
 is clearer with respect to the effect of the direct primary upon 
 the conduct of the men nominated and elected to public office, 
 at least in the case of men elected to the more conspicuous offices. 
 These men seem generally to display more initiative in office, 
 more independence of unofficial party leaders, and more confi- 
 dence in the support of public opinion than similar men in similar 
 positions were wont to display when nominated under the con- 
 vention system. Above all the establishment of the direct pri- 
 mary has strengthened the position of the governor as the leader 
 of his party and thereby tended to make party leadership more 
 "visible" and hence more responsible. Political issues have 
 been presented more directly to the members of the several 
 parties, and thus the whole electorate has been compelled to 
 think more continuously and more accurately about public 
 affairs. The minor officeholders are at least less dependent 
 upon unofficial party leadership than they were under the un- 
 regulated convention system, and the undue influence of special 
 interests operating through secret arrangements with professional 
 party managers and "bosses" must likewise have been somewhat 
 diminished. 
 
 The general establishment of the direct primary system has 
 thus been followed by notable improvement in all conditions 
 with respect to which the delegate convention system had be- 
 come objectionable. 1 It must not be inferred, however, that 
 all the credit for the improvement is due to the change from in- 
 direct to direct nominations. The direct primary system could 
 not be established without the adoption also of many of the re- 
 forms suggested for the improvement of the convention system. 
 Direct nominations have meant the holding of joint primaries 
 for all major parties on a uniform primary day under the manage- 
 
 1 See ante, p. 103.
 
 THE POLITICAL PARTY 197 
 
 ment of public election officials in accordance with rules laid 
 down by law, subject to appeal to the courts for the determina- 
 tion of the rights of partisans in general and particularly of 
 candidates for nominations. They have meant also the aboli- 
 tion of all intermediate conventions, the direct election of dele- 
 gates to the state conventions, and the direct election of all 
 important party committeemen. Finally, they have meant 
 the extension to the primaries of most of the provisions of law 
 intended to protect the purity of the general elections. All 
 these reforms could have been adopted without the abandon- 
 ment of the delegate convention system, had the party managers 
 and bosses consented; and, if adopted, they would have pro- 
 duced at least a part of the improvement in political conditions 
 which has actually taken place since the introduction of the 
 direct primary. Actually, however, the whole improvement in 
 the conditions under which nominations are made is associated in 
 the minds of the voters with the introduction of the system of 
 direct nominations, and under the circumstances such an asso- 
 ciation of ideas is not unjustified. 
 
 The direct primary system, nevertheless, must be regarded 
 as an imperfect instrument for the selection of partisan candi- 
 dates. In the first place, no satisfactory test of party affiliation 
 has yet been devised. The true purposes and motives of voters 
 who seek recognition as members of a particular party are 
 beyond the reach of public primary officials acting in ac- 
 cordance with rigid rules of law. The establishment of an 
 official party enrolment, based on the declaration of the 
 voter at primary or registration day, is at best a mechanical 
 arrangement, tending to prevent honest voters from changing 
 their affiliation promptly in response to changes in their political 
 opinions or in the nature of the paramount issues, but by no 
 means ensuring that none but genuine members of a party shall 
 participate in the making of its nominations. Indeed in locali- 
 ties where one of the major parties dominates the local political 
 situation, the closed primary system inevitably fosters an un- 
 natural concentration of voters of divergent political sympathies 
 in the locally dominant party. In states where the primary of 
 the dominant party is more important than the general election, 
 a like tendency may be discovered, and in all states there is a
 
 198 STATE GOVERNMENT IN UNITED STATES 
 
 more or less general impression on the part of the voters that the 
 primary is to be considered as a preliminary public election 
 rather than a private or purely partisan affair. Any effective 
 test of party affiliation or system of enrolment is accordingly 
 felt to be an interference with the secrecy of the ballot. Where 
 the so-called open primary has been established, however, the 
 invasion of the primaries of one party by the members of an- 
 other for the purpose of procuring the nomination of the weakest 
 candidates may easily become a serious menace to the integrity 
 of party nominations. Where several candidates are contesting 
 for an important nomination in the primary of one party and 
 there are no important contests for nominations in the primary 
 of the other party, the exercise of an improper influence upon the 
 nominations of the first party by voters who do not expect to 
 support its candidates at the ensuing election is the subject of not 
 infrequent complaints. There is no agreement as yet, however, 
 upon the proper test of party affiliation, if any, and no decision 
 has been reached as between the open and the closed primary. 
 
 FURTHER REFORM OF NOMINATING METHODS 
 
 The most obvious alternative to the existing partisan primary 
 systems is a non-partisan primary system. At a non-partisan 
 primary the voter is free to choose among all the candidates for 
 any nomination, regardless of his or their party affiliations. The 
 two candidates receiving the greatest and second greatest num- 
 ber of votes, respectively, for any nomination become the official 
 candidates for the office at the ensuing election. No party 
 labels, nor, as a rule, descriptions of any sort, are printed either 
 on the primary ballot or on that used at the general election. 
 By the abolition of party designations on the primary ballot, 
 and the decision at a second election between the two leading 
 candidates at the primary, the state can avoid many of the 
 perplexing questions inseparable from the attempt to regulate 
 partisan nominations by law. It becomes unnecessary to define 
 the test of party affiliation, for the state by refusing to recognize 
 party designations relieves itself of the responsibility for main- 
 taining the integrity of the party organizations. Under the 
 non-partisan primary system, voluntary electoral associations
 
 THE POLITICAL PARTY 199 
 
 may still make their nominations before the primaries, if they 
 wish, but control of the nominating machinery, whatever it 
 may be, no longer carries with it such enormous advantages as 
 under the former delegate convention system prior to the estab- 
 lishment of the direct primary. Control of the nominating 
 machinery under the delegate convention system, as formerly 
 established, carried with it an excessive influence upon elections, 
 because the electoral system was a plurality electoral system. 
 The non-partisan primary system is in effect a majority electoral 
 system, under which the voter has two votes, a first-choice vote 
 expressed hi the primary, and a second-choice vote expressed at 
 the ensuing general election. In case the voter's first choice is 
 one of the two leading candidates at the primary, his second 
 choice can be cast and counted for him again at the final election. 
 Otherwise he is free to make a second choice between the two 
 candidates most generally preferred at the primary. If it be 
 provided that any candidate at the primary who receives a 
 majority of all the votes cast shall thereupon be declared elected 
 without the formality of a second election, the non-partisan 
 primary system becomes substantially identical with the majority 
 electoral system established in Germany, France, and Italy and 
 other European countries. 
 
 There is a distinct tendency in recent primary legislation to 
 reject both forms of the partisan primary and adopt the non- 
 partisan primary. This tendency first appeared in connection 
 with municipal elections. The separation of local from state 
 and national issues was especially desired in municipal affairs 
 and the abolition of party designations, which were mainly 
 national and state party designations, seemed the most direct 
 way of bringing about the desired separation. The non-partisan 
 primary was first applied to the selection of candidates for state 
 office in connection with judicial nominations. The briefest 
 experience with the direct primary made it evident that purely 
 judicial issues had no place in ordinary partisan controversies, 
 and that judges ought not to be compelled to procure their 
 nominations by partisan appeals on issues with which impartial 
 judges should have no concern. The non-partisan judicial 
 primary has already been adopted in several states. 1 The next 
 
 1 The American Year Book for 1913, p. 75.
 
 200 STATE GOVERNMENT IN UNITED STATES 
 
 step in the development of the non-partisan primary was its 
 extension to the nomination of local officers other than those in 
 cities. In California the non-partisan primary system was 
 adopted for county nominations in 1913. In Minnesota the 
 non-partisan primary system was applied to the selection of 
 candidates for the state legislature in 1912, and the further ex- 
 tension of the system to the selection of all candidates for state 
 office would seem to be dependent only upon the more general 
 realization that purely state issues, like municipal issues, should 
 be separated so far as possible from those pertaining to the 
 nation. In California a proposal to establish the non-partisan 
 primary system for all nominations except those for President, 
 United States senator, and congressman was adopted by the 
 legislature hi 1915, but was rejected by the voters at a referendum 
 election. 
 
 It would seem clear that the state should either protect the 
 purity of partisan nominations by establishing an effective test 
 of party affiliation, or abandon the attempt to regulate the selec- 
 tion of candidates by political parties, and frankly treat the 
 primary as a preliminary public election. The so-called open 
 primary is a hybrid system which has fewer advantages than 
 either the closed primary or the non-partisan primary, and most 
 of the disadvantages of both. The closed primary is the least 
 objectionable to party leaders and "bosses" because it is least 
 menacing to the solidarity of party organization. The non- 
 partisan primary would be most favorable to the influence of the 
 rank and file of the parties, provided the ballot were "short" 
 enough to enable them to dispense with the party label as a guide 
 to intelligent voting. So long, however, as there are many com- 
 paratively unimportant, or at least inconspicuous, offices to be 
 filled by popular election, especially in unwieldy or, .highly 
 artificial election districts, the mere voter dares not dispense 
 with the party label as a guide through the maze of meaningless 
 names on the ballot. 1 The reform of the process of nomination, 
 like so many other reforms in the machinery of government, 
 cannot be completed by itself alone. It can be effectively ac- 
 complished only as a part of a general scheme of reform, which 
 shall simplify the whole process of election. Such a general 
 
 1 See post, ch. viii.
 
 THE POLITICAL PARTY 201 
 
 scheme of reform in its turn is dependent upon a radical reorgani- 
 zation of the whole structure of state government. 
 
 Various methods have been employed in different states to 
 dimmish the evils of primary nominations by minorities of the 
 parties. In some states it has been provided that no nomination 
 shall be made by less than some specified portion of the party, 
 such as 35 or 40 per cent, and that in case of a failure to nominate 
 in the primary the nomination shall be made by a convention or 
 party committee. In other states it has been provided that in 
 case there is no nomination by a majority of the voters attending 
 the primary, a second primary shall be held, at which the members 
 of the party shall choose between the two leading candidates at 
 the first. This system, which in effect is a non-partisan primary 
 within a partisan primary, has been favored in several southern 
 states where the Democratic nomination is equivalent to election, 
 and where accordingly the regulation of the process of nomina- 
 tion is as important as the regulation of the whole electoral sys- 
 tem in many states. In a few states provision is made for the 
 expression of first and second choice votes on one ballot at a 
 single primary. Thus, if no candidate is the first choice of a 
 majority of the voters, their second choices may be ascertained 
 without the trouble and expense of a second primary. Where 
 the nomination is equivalent to election, this procedure is sub- 
 stantially the same as would be the abolition of the primary in 
 many states, and the holding of a single non-partisan election at 
 which the preference of a majority of the voters could be ascer- 
 tained by means of a preferential ballot. Such a non-partisan 
 electoral system, avoiding or at least diminishing the evils of 
 plurality elections by means of the preferential ballot, would be 
 less expensive to the state, less laborious to the voter, less ex- 
 hausting to the candidate, and less demoralizing to the party, 
 than any primary system requiring a second election to determine 
 the will of the majority. 1 Preferential voting in itself is practi- 
 cable enough. 2 Whether such a system of voting would be feasible 
 in many states would depend mainly upon the feasibility of 
 other reforms, such as the short ballot. 
 
 1 See A. N. Holcombe, "Direct Primaries and the Second Ballot," in American 
 Political Science Review, Nov., 1911. 
 
 2 See description of Indiana direct primary law of 1915 in American Year Book 
 for igi5, pp. 86-87.
 
 202 STATE GOVERNMENT IN UNITED STATES 
 
 FURTHER REFORM OF PARTY ORGANIZATION 
 
 The most serious objection to the direct primary, from the 
 standpoint of the practical politician, is its tendency to dis- 
 organize the major parties. In order to secure a contested 
 nomination a candidate must build up a more or less elaborate 
 personal organization. Candidates for important nominations 
 in extensive districts, such as a gubernatorial nomination hi one 
 of the larger states, must build up elaborate organizations, or 
 must possess a well-organized following, if they are to have much 
 chance of success. Once nominated, such a candidate is not 
 unlikely to put more trust in his personal organization than in 
 the official party organization. The latter may indeed have 
 opposed his candidacy, unless he was originally the "organiza- 
 tion" candidate. Thus, one consequence of the direct primary 
 system is the creation of numerous personal campaign com- 
 mittees, which may conduct more or less independent campaigns, 
 each on behalf of its own candidate, even after the primaries. 
 The authority of the official party committees is thereby im- 
 paired and the solidarity of party organization undermined. 
 Moreover, for reasons already pointed out, the nature of the 
 primary campaign is such as to foment internal dissensions 
 within a party to a greater extent than campaigns for nomination 
 under the convention system, and to make the subsequent res- 
 toration of party harmony more difficult. Finally, as has also 
 been already pointed out, the direct election of the party com- 
 mittees in the primaries tends to decentralize the organization 
 of the major parties. The effect of decentralization is to facilitate 
 independent action by factions within a party, and thus to render 
 even more difficult the maintenance of party unity by the state 
 leaders or "bosses." In short, the direct primary system, at 
 least in its present form, tends to break down the bipartisan sys- 
 tem in state politics. Whether the direct primary can be so 
 reformed as to preserve the existing degree of popular control 
 over party nominations, whilst removing its tendency to disrupt 
 the major party organizations, is therefore a question that must 
 be considered before final judgment can be passed upon the pri- 
 mary system itself. 
 
 The disorganization of parties, which the direct primary in its 
 present form seems calculated to produce, may be somewhat
 
 THE POLITICAL PARTY 203 
 
 relieved by either of two reforms. One is the appointment of 
 party committeemen after the primaries by the successful candi- 
 dates for nomination ; the other, the designation of candidates 
 for nomination by party committeemen before the primaries, 
 subject to responsibility for their designations at the primaries. 
 The former course might seem the more consistent with the theory 
 of direct nominations, but that solution of the problem is ren- 
 dered difficult by the fact that hi each district there are ordinarily 
 so many candidates on the ballot that it would be impracticable 
 for them all to join in the appointment of committeemen, and 
 unfair to leave such appointments to any one of them. The 
 other solution implies the legal recognition of a duty on the 
 part of the regular committees to make official "slates" for 
 the guidance of the voters at the primaries and to retire from 
 office at once hi case their "slates" are repudiated. This was 
 substantially the plan advocated by Governor Hughes of New 
 York in 1910. This plan, as finally adopted, was so modified 
 as to give the candidates for nomination designated by the 
 committees a preferential position on the ballot and the exclusive 
 use of the party emblem. These artificial advantages, combined 
 with the advantages naturally enjoyed in the primaries by the 
 candidates favored by the "organization," made it extremely 
 difficult to break the official "slates," and assured the regular 
 party managers almost as effective control of nominations as 
 they had enjoyed under the convention system. Though this 
 plan, as adopted, disappointed its advocates, the principle would 
 seem to be sound that harmony must exist between candidates 
 and committeemen. There is no assurance that such harmony 
 will exist where both are chosen independently at the primaries, 
 the committeemen generally two years in advance of the candi- 
 dates. If it be thought unwise to secure harmony by authorizing 
 committeemen to designate "slates" under suitable restrictions, 
 then some procedure should be devised by which candidates may 
 designate committeemen. Such procedure could be devised more 
 easily, if the number of offices filled by election were not so great. 
 The necessity of improving the forms of party organization, if 
 the system of direct nominations is to be made more satisfactory, 
 constitutes one of the strong arguments in favor of the electoral 
 reform known as the short ballot.
 
 204 STATE GOVERNMENT IN UNITED STATES 
 
 None of the plans for party reorganization hitherto tried has 
 operated in a satisfactory manner, 1 and the problem of the 
 proper relation between candidates and permanent officers can- 
 not yet be regarded as solved. Apparently popular control of the 
 nominating process cannot be secured except by some means no 
 less menacing to the solidarity of the major party organizations 
 than the existing direct primary. At all events the tendency of 
 recent legislation with reference to nominations seems to be in 
 the direction of a further weakening of the major party organiza- 
 tions. Neither the growing dislike of the closed primary nor the 
 growing dislike of minority nominations augurs well for the 
 maintenance of the bipartisan system in its traditional form and 
 vigor. The direct primary in its present form seems unlikely to 
 give permanent satisfaction, and yet no plans of further reform 
 are in sight except such as threaten even more seriously the 
 solidarity of the major parties. In short, the judgment to be 
 pronounced upon the direct primary system itself seems finally 
 to depend upon the judgment to be pronounced upon the bi- 
 partisan system in state politics. If the bipartisan system be 
 on the whole a necessary and proper instrument for render- 
 ing more effective popular control over governmental agencies, 
 as its advocates contend, then further changes in the direct 
 primary should be made with a view primarily to the strengthen- 
 ing of the major party organizations. Such changes would neces- 
 sarily be in the direction of a restoration of power to the conven- 
 tions. But if the bipartisan system be on the whole an impedi- 
 ment to an effective popular control of governmental agencies, 
 then the primary should be further developed along the lines 
 of least resistance. Whether the bipartisan system should be 
 further fortified, or further undermined, is a question that can- 
 not be answered without further consideration of its effects upon 
 the legislative, executive, and judicial branches of state govern- 
 ment. 
 
 1 See for descriptions of novel plans of party organization adopted in Colorado 
 and South Dakota, The American Year Book for 1912, pp. 60-6 1.
 
 CHAPTER VIII 
 THE CONDUCT OF ELECTIONS 
 
 THE first step in the conduct of elections is the preparation of 
 the ballot. Prior to the introduction of the Australian or official 
 ballot, the ballot was theoretically prepared by each voter for 
 himself. Actually it was in most cases prepared for the voter 
 by his local party managers. There was ordinarily a separate 
 form of ballot, therefore, for each local electoral district and for 
 each political party. The ballots were generally distributed 
 at the polls by party officials, and were publicly dropped into 
 the ballot boxes by the voters. Such a system was ruinous to 
 the independence of the voters and the honesty of elections. The 
 independent voter was first put to the inconvenience of preparing 
 his own ballot. He was then compelled to disclose his inde- 
 pendence to an unsympathetic world. Intimidation by the 
 exercise of economic or social pressure was thus made easy. 
 Bribery was also made easy, for the party worker could always 
 know whether or not a purchased vote was actually delivered. 
 
 THE OFFICIAL BALLOT 
 
 The introduction of the official ballot brought about an enor- 
 mous improvement in the conduct of elections. As originally 
 employed in Australia, the official ballot contained the printed 
 names, with addresses but without party designations, of all 
 avowed candidates for the office to be filled at the election, to- 
 gether with a blank space in which the voter might write in any 
 other name for which he might wish to vote. These ballots were 
 prepared and distributed by public officials and marked by the 
 voters in secret. The Australian ballot was introduced into 
 Great Britain in 1872, and thus brought to the favorable atten- 
 tion of Americans. Beginning in 1888, it was rapidly introduced 
 
 205
 
 206 STATE GOVERNMENT IN UNITED STATES 
 
 in the United States, and now exists in some form in forty-four 
 states. In all these states, however, the official ballot has lost 
 its original Australian simplicity. The practice of holding a 
 multitude of elections simultaneously and of nominating party 
 tickets of candidates for all elective offices makes the American 
 ballot much longer than the Australian or English. It becomes a 
 "blanket " ballot. Nevertheless, here as abroad, the independent 
 voter has been protected by its introduction. Intimidation and 
 bribery have been made more difficult. The temptation to the 
 corrupt use of money has been diminished. A heavy item in the 
 cost of running for office has been eliminated. Probably no 
 reform in electoral technique has worked a greater improvement 
 in the conduct of elections than the official ballot. 
 
 The extent of the improvement, however, has depended upon 
 the form of the official ballot. The first form, originally intro- 
 duced in 1888 in Massachusetts, contains the names of all the 
 candidates for each office separately, arranged generally in alpha- 
 betic order. The groups of candidates for the several offices 
 are arranged according to the supposed importance of the offices. 
 For the convenience of the voters in identifying the candidates of 
 their choice, the name of each candidate is followed by the name 
 of the party by which the candidate was nominated. In order 
 to vote such a ballot, it is necessary for the voter to place a cross- 
 mark in the square opposite the name of each candidate for whom 
 he wishes his ballot to be counted. Thus, the use of the Massa- 
 chusetts ballot involves the making of a separate mark for each 
 office for which the voter has a choice among the candidates. 
 Since it will take an equal length of time to vote a "straight" 
 ticket, that is, for all the candidates of any one party, and a 
 "split" ticket, that is, for candidates of different parties for 
 different offices, a party watcher at the polls cannot ascertain 
 by the length of time the voter is occupied in marking his ballot 
 whether he is "regular" or votes independently. The Massa- 
 chusetts ballot, therefore, is the form most favorable to the in- 
 dependence of the voter and the honesty of elections. Moreover, 
 such a ballot cannot be voted at all by an illiterate voter without 
 the aid of some mechanical device prepared in advance which will 
 enable him to locate the names of the candidates for whom he 
 wishes to vote by their position upon the printed ballot. In
 
 THE CONDUCT OF ELECTIONS 207 
 
 practice, therefore, the introduction of the Massachusetts ballot 
 is almost equivalent in itself to the establishment of a literacy 
 test for the suffrage. 
 
 The second form of the official ballot, commonly called the 
 New York ballot, though discarded in New York in favor of the 
 Massachusetts ballot in 1913, differs from the latter in two im- 
 portant respects. In the first place, the names of the candidates 
 are arranged on the ballot according to the parties by which 
 they are nominated instead of according to the offices for which 
 they are nominated. The candidates of each party appear in a 
 vertical column, and the several party columns usually are ar- 
 ranged in the order of party importance, measured by the party 
 vote at the last preceding election. Secondly, at the head of 
 each column, usually just above the name of the party, appears 
 a square or circle, surmounted by a party emblem. In order 
 to vote a "straight" ticket by means of such a ballot it is neces- 
 sary merely to place a single mark in the party square or circle 
 at the head of the party column. The illiterate voter is enabled 
 to place his mark properly by the presence of the emblem, an 
 eagle, or a rooster, or a star, or a fountain, or a flaming torch, as 
 the case may be, which he readily learns to recognize. To vote 
 a "split" ticket it is generally necessary to mark a cross opposite 
 the name of each candidate for whom the voter wishes his 
 ballot to be counted, even if all but one are members of the same 
 party. Where the ballot contains the names of candidates for 
 a large number of offices, for example, forty-five in Cuyahoga 
 County (Cleveland), Ohio, hi 1908 (not counting twenty- three 
 presidential electors), it takes much more time and effort to 
 vote independently than to vote a regular party ticket. This 
 tends to discourage independent voting, and also to disclose 
 to party watchers the identity of the independent voters. More- 
 over, it is ordinarily impossible for the illiterate voter to vote any- 
 thing but a straight ticket. The New York form of ballot is 
 obviously more desirable from the standpoint of the party politi- 
 cian, and probably for that reason was more widely adopted than 
 the original Massachusetts form. 1 Whether it is also more de- 
 
 1 At the close of iqt2 the New York ballot existed in 27 states, the Massachu- 
 setts ballot in 15. Since then a few states have changed from the New York to the 
 Massachusetts plan, notably New York herself. The Massachusetts ballot is some-
 
 208 STATE GOVERNMENT IN UNITED STATES 
 
 sirable from the standpoint of the public, however, depends upon 
 other considerations. 
 
 MASSACHUSETTS V. NEW YORK BALLOT 
 
 The original advocates of ballot-reform in the United States 1 
 preferred the Massachusetts form of the ballot. This preference 
 was based partly on the ground that the Massachusetts ballot 
 more closely resembled the Australian model, but mainly on 
 the ground that its use would make it as easy to vote a "split" 
 as a "straight" ticket, and would thereby tend to encourage 
 independent voting. This argument assumed that the habit of 
 party regularity ought not to be artificially stimulated. There 
 was some foundation for such an assumption. One of the most 
 gifted critics of American politics, writing at the time of the in- 
 troduction of the Australian ballot, observed with reference to 
 the two major parties : " Neither party has, as a party, . . . any 
 clean-cut principles, any distinctive tenets. Both have tradi- 
 tions. Both claim to have tendencies. Both have certainly war 
 cries, organizations, interests, enlisted in their support. But 
 those interests are in the main the interests of getting or keeping 
 the patronage of the government. Tenets or policies, points of 
 political doctrine and points of political practice, have all but 
 vanished. They have not been thrown away, but have been 
 stripped away by time and the progress of events, fulfilling some 
 policies, blotting out others. All has been lost, except office 
 or the hope of it." 2 If it were true that the major parties are so 
 unprincipled as this, the case against anything tending to stimu- 
 late the habit of party regularity would seem to be well founded. 
 Bryce's pessimistic view, however, sounds strangely similar to 
 that penned by another gifted critic of American politics, a half- 
 century earlier, and already quoted in these pages. 3 Yet history, 
 
 times modified by the addition of party squares or circles, as in Pennsylvania, and 
 the New York ballot by the elimination of the same, as in Iowa. The effect of these 
 modifications is to make the ballot in each case more like the other pure form than 
 is the other modified form. 
 
 1 See J. H. Wigmore, The A ustraltan Ballot. 
 
 1 James Bryce, The American Commonwealth, pt. iii, The Party System, ch. 54, 
 The Parties of To-day. 
 
 * See ante, Chap, iv, p. 100.
 
 THE CONDUCT OF ELECTIONS 209 
 
 as Bryce himself knew, had shown the inaccuracy of De Tocque- 
 ville's analysis of the party system, for Bryce admits that the 
 parties at least had traditions. While De Tocqueville was in the 
 act of writing, the Jacksonian Democracy was engaged in 
 hammering out a distinctive policy which served it well for a 
 generation : a strict construction of the constitution, a tariff for 
 revenue only, internal improvements at state, not at federal, 
 expense, an independent treasury and a severance of relations 
 between the government and the banks, and no interference by 
 Congress with the domestic institutions of the states. So like- 
 wise, while Bryce was penning his strictures of the American 
 party system, the campaign of 1888 was taking shape. This 
 was to end in the effective control by the Republicans of all 
 branches of the federal government for the first time in half/ a 
 generation, and in the enactment of a series of measures reflecting 
 the distinctive tenets of the dominant party. But it is easier 
 for the critic to recognize established traditions for unless they 
 were generally recognized they would not be traditions than 
 to discern those that are in the process of making. Mariners on 
 the high seas cannot discern whether the tide is rising or falling, 
 yet it continually rises and falls. When the facts of party history 
 are placed in their proper perspective, the case against the habit 
 of party regularity does not seem so clear, at least so far as candi- 
 dates for federal office are concerned. The vindication of na- 
 tional party organizations against the charge of lack of principle, 
 however, does not of itself vindicate the use of national party 
 designations by candidates for state and local office. 
 
 The arguments in favor of the New York ballot, nevertheless, 
 are not without some weight. In the first place, under existing 
 conditions the great majority of the voters ordinarily prefer to 
 vote a "straight" rather than a "split" ticket. This preference 
 is clearly indicated by the election returns of the states which 
 possess the Massachusetts ballot. Now the form of ballot which 
 is most convenient for the great majority of the voters is the one 
 which ought to be used, other things being equal. Secondly, 
 under existing conditions the great majority of the voters need 
 some assistance in the task of voting. This need is recognized 
 even by the advocates of the Massachusetts ballot, for that form, 
 like the New York form, is arranged to show the party affiliation
 
 210 STATE GOVERNMENT IN UNITED STATES 
 
 of each candidate whose name is printed on the ballot. Both 
 forms of ballot, therefore, tend to stimulate the habit of party 
 regularity, though doubtless the New York form does so to a 
 greater degree. Under existing conditions it is necessary to 
 affix a party label to each candidate, for without the label the 
 voter would often be at a loss how to mark his ballot. At every 
 general election there are so many obscure candidates for so many 
 inconspicuous offices that few voters can form a personal opinion 
 with respect to the qualifications of all of them. 1 Now if the 
 form of the ballot is to correspond to the needs of the existing 
 electoral system and to the facts of human nature, the voter must 
 be enabled to make his ballot count in the main as a vote of confi- 
 dence in some political party, which selects his candidates for 
 him, rather than in the particular candidates themselves. These 
 for the most part he would try in vain to select for himself, if 
 he were left wholly to his own knowledge for a guide. But if 
 the voter is really in most instances indicating his choice between 
 parties rather than between candidates, why compel him to go 
 through the motions of marking a cross against the name of a 
 candidate for each office, when one mark might serve equally 
 well? If other things were equal, particularly if the time re- 
 quired to vote a "straight" and "split" ticket were the same, 
 the case in favor of the New York form of ballot would be strong. 
 The chief criticism of the form of the official ballot applies to 
 both the prevailing forms alike. It is that the state, which 
 
 1 The Cuyahoga County (Cleveland), Ohio, ballot, already referred to, for 
 example, contains the names of the candidates of seven different parties for the 
 following offices (in addition to twenty-three presidential electors each) : governor, 
 lieutenant-governor, secretary of state, auditor of state, treasurer of state, attor- 
 ney-general, commissioner of common schools, two members of board of public 
 works, two judges of the supreme court, clerk of the supreme court, dairy and food 
 commissioner, representative in Congress, judge of the circuit court, four judges 
 of the court of common pleas, three state senators, eleven representatives to the 
 general assembly of Ohio, judge of probate court, sheriff, county auditor, clerk 
 of the court of common pleas, three members of the board of county commissioners, 
 county treasurer, county prosecuting attorney, county recorder, county surveyor, 
 and coroner. Fortunately not all the parties made nominations for all the offices, 
 but enough nominations were made to bring the total number of names (exclusive 
 of the candidates for presidential elector) to nearly 250. Without the guidance 
 of the party label it is safe to assert that few voters would have been able to in- 
 dicate their choice for every office on that ballot, and that many voters would 
 have been practically disfranchised with respect to most of the forty-five elections 
 for which, in addition to the presidential election, that ballot was made to serve.
 
 THE CONDUCT OF ELECTIONS 211 
 
 compels the voter to rely so largely on the party label as a guide 
 through the intricacies of the ballot, does so little to guarantee 
 the integrity of the label. At most the primary and ballot laws 
 of the several states ensure nothing more than that the label is 
 borne by candidates whose nomination is "regular" in form. 
 Concerning the substance of their creed and the purposes of their 
 candidacy the official party label signifies little or nothing, except 
 in the case of presidential electors. Congressmen may be 
 nominated in districts where the majority of the party is out of 
 sympathy with the policies professed by a majority of the dele- 
 gates in the national convention. Under most primary and 
 ballot laws they are nevertheless as much entitled to the party 
 label as the candidate for president himself. Likewise in the 
 case of candidates for state office the legal right to the party label 
 may indicate little or nothing with respect to the principles and 
 purposes of the candidate. Federal and state governments 
 alike operate directly upon the people, through their own agents, 
 and the principles to which a party professes allegiance in the 
 nation at large need have no connection with those which it 
 undertakes to advance in a particular state. 
 
 In most states which have established the direct primary, 
 special efforts have been made to provide for the formulation of 
 the party issues in such a way as to reflect the wishes of a majority 
 of the party. The state platforms are usually adopted by con- 
 ventions or party councils in which the candidates for office 
 who have been successful at the primaries are expected to wield 
 the chief influence. But platforms as a rule actually reflect the 
 principles and purposes appropriate to candidates for political 
 offices ; that is, offices through which policies are to be executed 
 with respect to which the voters may be expected to have opinions 
 of their own. Many of the offices for which partisan candidates 
 are nominated do not fall within this category. 1 A state con- 
 
 1 For example, of the forty-five offices, exclusive of presidential electors, which 
 the voters of Cuyahoga County (Cleveland), Ohio, were required to fill or help fill 
 by election in 1008, the following were hardly appropriate for administration upon 
 either national or state party lines : coroner, county surveyor, county recorder, 
 county prosecuting attorney, county treasurer, county commissioners, clerk of the 
 court of common pleas, county auditor, sheriff, judge of probate court, judges of 
 court of common pleas, judge of circuit court, dairy and food commissioner, clerk 
 of supreme court, judges of supreme court, members of board of public works, com-
 
 212 STATE GOVERNMENT IN UNITED STATES 
 
 vention or council, meeting to draft a platform for a state cam- 
 paign, ordinarily reflects the principles and purposes of the suc- 
 cessful candidate for the party nomination for governor. That 
 these principles and purposes are not always the same as those of 
 the most conspicuous party candidate, the candidate for president, 
 is revealed by the fact that a state occasionally chooses presi- 
 dential electors of one party and at the same time a governor of 
 another party. In states with the New York ballot, such as New 
 York, Ohio, and Illinois, this has not happened so frequently as 
 in states with the Massachusetts ballot, such as Massachusetts, 
 Minnesota, and Oregon, but it has happened often enough to 
 indicate that the same party label may mean different things as 
 applied to candidates for different offices on the same ballot. 
 It may also mean nothing at all, except that a nomination is 
 "regular" in form. The meaninglessness of the national party 
 label in state and local politics is most conspicuously revealed 
 in the cases, not infrequent, of candidates who secure in the 
 "regular" manner the nominations of both major parties for the 
 same office. 
 
 The use of the party label on the official ballot may be indis- 
 pensable when forty-five offices are to be filled by the voters at 
 one operation, but under existing conditions it is nevertheless 
 objectionable. Either the number of offices to be filled by elec- 
 tion at any one tune should be so reduced that the voters can 
 manage the operation without the use of a label, or the state 
 should supplement the label with such other information con- 
 cerning the candidates for election as will enable the voters to 
 know in each case what stands behind the label. In other words, 
 it is not the form of the ballot, but the system of filling so many 
 and so diverse offices at the same time without proper provision 
 for informing the voters concerning the character and purposes 
 of the several candidates, thereby making the habit of party 
 regularity indispensable, that is fundamentally at fault. The 
 full advantages of the official ballot will not be realized until 
 either party designations can be abolished without confusion 
 to the voter, or the state can undertake to furnish the voter not 
 only with the party designation of each candidate, but also with 
 
 missioner of common schools, treasurer of state, auditor of state, and secretary of 
 state.
 
 THE CONDUCT OF ELECTIONS 213 
 
 a separate statement of the principles and purposes professed by 
 each. In other words, the further improvement of the form of 
 the ballot involves either the further reform of the general 
 structure of state government or a radical change in the methods 
 of conducting political campaigns. 
 
 ACTUAL CONDUCT OF ELECTIONS 
 
 The further steps in the conduct of elections are the casting 
 and counting of the ballots, and the canvass and declaration of 
 the returns. Originally these duties were placed upon the regular 
 local and state officials, and seem to have been performed in a 
 fairly satisfactory manner. With the growth of party spirit, 
 however, the original system became less satisfactory. Local 
 officials were not unlikely to belong to one party. Under such 
 circumstances, even if honest men, they were subject to the temp- 
 tation to favor the candidates of their own party in the decision 
 of questions involving the exercise of administrative discretion, 
 such as the right of a challenged voter to cast his ballot, or the 
 validity of a ballot prepared or marked in an irregular manner. 
 Prior to the registration of voters and the adoption of the official 
 ballot, the purity of elections depended in no small part on the exer- 
 cise of a wise discretion by the officials charged with the conduct 
 of elections, and the records are filled with contested election 
 cases in which party spirit clearly got the better of discretion. If 
 the local officials were not honest, particularly if they were 
 supported by a majority or a well-organized minority of the local 
 electorate, there was almost no limit to their power to prevent 
 a free ballot, a fair count, and a full return. Thus the notorious 
 Boss Tweed of New York City is reported to have said: "I 
 don't care who does the voting, so long as I do the counting." 
 
 The conduct of elections has been improved by the application 
 of two principles : publicity, and bipartisanship. First, all 
 political parties, in some cases, all candidates, are now generally 
 authorized to be represented at the polls by watchers. The 
 watchers are entitled to see everything that is done by the elec- 
 tion officials, both at the casting and at the counting of the 
 ballots. The canvassing of the returns from the several election 
 districts and the declaration of the results is also generally done
 
 214 STATE GOVERNMENT IN UNITED STATES 
 
 by the officials charged with those duties in the presence of 
 watchers or of the public at large. Provision is generally made 
 for the public inspection of ballot boxes at the opening of the 
 polls, for the security of the ballots before and after the count, 
 and for an official recount at the request of any candidate. If 
 the count is correctly and publicly made, there is little oppor- 
 tunity for further error in the canvass of the returns and declara- 
 tion of the results. Secondly, instead of leaving the conduct of 
 elections to the regular local officials, special election officials 
 are now commonly provided in such a manner that each of the 
 two major parties will be equally represented. The appoint- 
 ments of election officials, though generally made by the regular 
 local officials, are made from the party lists, not infrequently 
 from nominations by the local party committees. Election 
 judges and clerks act in pairs, one of each pair belonging to each 
 of the major parties. Thus the two parties are enabled to check 
 and balance one another in the conduct of elections. So far as 
 the interests of the public coincide with the interests of one or 
 the other of the major party organizations, the system works 
 well. 
 
 The system of bipartisan control breaks down at the point 
 where the interests of the major party organizations cease to 
 coincide with those of the public. So far as the public is 
 interested in minor parties, the system is defective, though not 
 seriously so in cases where the minor parties can afford to maintain 
 their legal quota of watchers. The system is more seriously 
 defective with respect to the purity of elections at which measures, 
 not men, are at stake, especially in cases where both major parties 
 are interested in the adoption or defeat of the same measures. 
 Most states make no provision for watchers in behalf of measures 
 which may be submitted to the electorate, and where provision 
 is made it is not always easy to take advantage of it. In such 
 cases the party machines may conspire to falsify the counting or 
 return of the ballots without much risk of detection, or at least 
 of conviction for any crime. This was done, for example, in 
 Michigan in 1912, in the case of the woman suffrage amendment, 
 in certain election districts, notably in Detroit. Likewise when 
 the interests of the two machines are identical with respect to 
 candidates for election, the possibility of collusion and fraud
 
 THE CONDUCT OF ELECTIONS 215 
 
 is never absent under the bipartisan system of control. In the 
 main, however, elections are now honestly conducted, or may be 
 honestly conducted, if the public will take the trouble to enforce 
 their rights under the laws, especially their right to know who is 
 registered and how the votes are cast and counted. If the public, 
 however, leave the protection of their interests to the major party 
 organizations, they cannot expect their interests to be better 
 protected than the interests of the major parties themselves. 
 In short, the principal imperfections in the election machinery 
 to-day are the consequences of the imperfection of the bipartisan 
 political system. In general, the conduct of elections is now 
 much more honest than fifty or even twenty-five years ago. 
 Serious faults in the contemporary electoral process are more 
 manifest in connection with the registration of the voters and 
 the conduct of campaigns than in the conduct of the elections 
 themselves. 
 
 REGISTRATION 
 
 All states provide, either in the constitution or by statute, that 
 a list of qualified voters be prepared to serve as the evidence of 
 the voters' right to vote when they appear at the polls on election 
 day. There are two principal methods of preparing the list of 
 qualified voters. Under the older method, which still obtains 
 in a half dozen states, the list of qualified voters is prepared by 
 the selectmen, as in Vermont, or by the poll-tax collectors, as in 
 Arkansas, or by some similar body of local officers. The newer 
 method, first introduced in New York and California in 1866, and 
 adopted during the last thirty years in more than forty of the 
 states, is the method of personal registration. The prospective 
 voter is required to visit the registrars of voters in person, and 
 establish his right to vote by producing satisfactory evidence of 
 his possession of the legal requirements. In a few states and in 
 most large cities personal registration is required of all voters 
 at regular intervals, generally every year or every other year, 
 but in most states it is sufficient that the voter establish his right 
 once in person, either on coming of age or on acquiring a new 
 legal residence. Thereafter his name will remain upon the list 
 until death, or removal from the district, or disqualification for 
 crime or other valid reason. At the time of registration various
 
 216 STATE GOVERNMENT IN UNITED STATES 
 
 items of information about the voter, designed to establish 
 his identity in case of challenge at the polls, are recorded. This 
 information always includes the ordinary facts of name and resi- 
 dence, and in some cases, particularly in large cities where voters 
 are often unknown to their own neighbors, much more than that. 
 Thus in New York the registry of voters shows the following in- 
 formation: full name and place of residence; age; length of 
 residence in state, county, and election district; country of 
 birth, and date of naturalization, if naturalized, and designation 
 of court issuing the certificate of naturalization ; location of last 
 preceding voting-residence ; date when registered ; occupation ; 
 location of employment; and signature of each voter. If the 
 voter is unable to write, the signature is omitted and a record 
 made of his answers to a series of questions of a personal nature. 
 In some states a description of the voter's personal appearance is 
 required, the object being to prevent impersonation of a registered 
 voter by one not entitled to vote. In the states where personal 
 registration is required at periodic intervals, the voter is often put 
 to considerable trouble in order to keep his name upon the registry 
 and the requirement is in substance an addition to the regular 
 qualifications for the exercise of the suffrage, having the effect 
 of disfranchising shiftless or indifferent voters. 
 
 The proof of a registration law is in the enforcement. In 
 1913 a registration law was adopted for the first time in Indiana, 
 one of the last states to provide for the registration of voters, 
 and one of the states in which corrupt practices at elections, 
 particularly bribery, personation, and repeating, had long been 
 more notorious than in most states. This law was in effect 
 during the electoral campaign of 1914. In 1915 the mayor of 
 Terre Haute and 115 other local politicians were indicted and 
 tried for corruption at the preceding election. Of the accused, 
 89 confessed and the others were convicted. The evidence in 
 the case indicated that the registration law had been made a 
 farce. One witness testified to the frequent registration of 
 non-residents and of dead men, and in one case even of 
 a pet dog. On election day these fraudulent registrations 
 were voted on by hired repeaters and thugs. One witness, 
 who was under twenty-one years of age, testified that he 
 voted fourteen times; another, twenty-two times. A saloon-
 
 THE CONDUCT OF ELECTIONS 217 
 
 keeper testified that the mayor demanded that almost 
 double the number of legal voters be registered in one pre- 
 cinct, and that on election day the mayor threatened to put him 
 out of business unless he got out the full registered vote. A 
 watcher testified that in one precinct where eighteen colored 
 voters resided she saw between three and four hundred colored 
 men vote. This is one of the most extreme cases of corruption on 
 record in American politics, and it happened in a city where there 
 was a modern registration law. However, the guilty were 
 punished. In general, it seems probable that false registration, 
 personation, and repeating can be prevented, or at least reduced 
 to comparatively small proportions, under a proper registration 
 law, supported by local public opinion. When elections are held 
 on the day of registration, however, as is done in some states in 
 the case of measures submitted to the people, opportunity for 
 fraudulent voting is afforded by the fact that there is no time to 
 examine the voting lists before the votes are cast, and hence no 
 time to challenge the " floaters." 
 
 In most states the self-interest of the party organizations is 
 the principal guarantee of the integrity of the process of registra- 
 tion. Registration officers are chosen equally from the two 
 major parties. Appointment is a common mode of rewarding 
 petty party workers. In New Jersey, by the registration law 
 of 1911, an attempt was made to improve the process of 
 registration by improving the character of the registration 
 officials. The law provides that the party committees or 
 any group of citizens may nominate candidates for appointment 
 as registration officers to the civil service commission. The com- 
 mission then examines the candidates both with respect to their 
 ability to perform the simple clerical duties of the office and with 
 respect to their general record and moral character. From the list 
 of those who are declared to be qualified the actual officials are 
 selected by lot. Whether the abandonment of the principle of bi- 
 partisanship in the appointment of registration officials will im- 
 prove the administration of the law would depend probably upon 
 the ability and character of the civil sendee commission itself. 
 If the civil service commission were influenced by partisanship, 
 the system might be more partisan than the ordinary bipartisan 
 system. But if the civil service commission maintains its in-
 
 218 STATE GOVERNMENT IN UNITED STATES 
 
 dependence of partisanship, the system should afford protection 
 against those abuses to which any bipartisan system is necessarily 
 exposed. 
 
 THE CAMPAIGN 
 
 There are four principal methods of reaching the voters. The 
 first and most direct is by personal canvassing. The candidates 
 or their representatives interview the voters, so far as possible, 
 and solicit their support. This may be done by calling on the 
 voters at their residences or by buttonholing them in public 
 places. In rural districts enterprising candidates, especially 
 candidates for local offices, frequent the post offices around mail 
 time, and at other times cover the countryside as best they can. 
 In recent years the introduction of the Ford automobile has 
 tended to increase the radius of rural canvassing. In the cities 
 canvassing has to be done more largely at night. Where saloons 
 exist, they play an important part, and would do so, even if the 
 liquor dealers themselves were not interested in politics. In 
 former times, to a greater degree than at present, the saloon 
 was the principal scene of political activity. In 1884, of 1002 
 primary meetings and local district conventions held in New 
 York City prior to the presidential election, 633 were held in 
 saloons, and 86 next door to saloons. 1 No method of political 
 campaigning is so effective as personal canvassing. No method 
 makes such great demands upon the resources of the candidate. 
 Except in the smallest districts, personal canvassing is impracti- 
 cable without the expenditure of large sums of money or the sup- 
 port of an established political organization. In the former 
 case the candidate can build an organization of his own. In 
 the latter, unless he is a candidate for an important and con- 
 spicuous office, he becomes a mere cog in the machine. 
 
 The second method of reaching the voters, and the only other 
 method of reaching them individually, is by mail or by the dis- 
 tribution of hand-bills from house to house. To reach the indi- 
 vidual voter by mail involves the expenditure of from two to ten 
 cents each, according as the candidate sends merely a postal 
 card or a more or less elaborate personal letter. In a guber- 
 
 1 See W. M. Ivins, Machine Politics and Money in Elections in New York City, 
 p. ai.
 
 THE CONDUCT OF ELECTIONS 219 
 
 natorial campaign in New York State such a method would in- 
 volve the expenditure of from $35,000 to $175,000 for a single 
 communication. The distribution of hand-bills would be no less 
 expensive, but might be more satisfactory to the candidate, since 
 the payment of the distributors might secure their votes as well 
 as their services. The distribution of literature is much less 
 effective than personal canvassing, partly because it is difficult 
 to adapt the literature to the temperament and circumstances 
 of the individual voter, and partly because it is by no means 
 certain that the voter will read the literature after it is delivered 
 to him. 
 
 The other principal methods of reaching the minds of the voters 
 aim to reach them en masse. One method of reaching the voters 
 en masse is by public meetings. This method involves the hiring 
 of halls, and usually also some expense for speakers, music, 
 and advertising. Meetings in halls are commonly attended only 
 by partisans of the candidates in whose interest the meetings 
 are arranged. They are probably of little value for the purpose 
 of winning over doubtful voters or opponents. Such meetings are 
 useful chiefly for the purpose of arousing the enthusiasm of 
 the faithful, and inciting them to greater activity in the cam- 
 paign. Street meetings and meetings at factory gates during 
 the noon hour are more valuable for the purpose of reaching 
 indifferent and doubtful voters in the cities and industrial 
 districts, and in the rural districts addresses at grange meetings 
 and the agricultural fairs serve the same purpose. A less labo- 
 rious, though more expensive, method of reaching the voters 
 en masse is by advertising, either in the newspapers or on the bill- 
 boards or through the cinematograph. In so far as such publicity 
 may be secured without cost, as by letters and statements to the 
 press, interviews with reporters, and editorial support, it is the 
 cheapest and easiest method of campaigning. It cannot be so 
 effective as personal canvassing, and need not be relied upon by 
 candidates in small districts or with well-organized support. 
 But in larger districts all candidates for nomination at the 
 primaries, unless on an organization slate, and independent candi- 
 dates for election are mainly dependent upon such publicity, 
 unless they are supplied with adequate campaign funds. In short, 
 under modern electoral conditions, the support of an elaborate
 
 220 STATE GOVERNMENT IN UNITED STATES 
 
 party organization or the command of extensive funds is indis- 
 pensable for any effective campaign for public office, except in 
 the case of purely local offices. If the candidate is supported 
 by an organization, then the burden of raising the funds may be 
 shifted from the shoulders of the candidate to those of the organi- 
 zation, but in any case the funds must be raised. 
 
 These various methods of campaigning are all subject to abuse, 
 though in different degrees. The method of personal canvassing 
 is most subject to abuse, because it is most secret and direct. 
 Bribery, intimidation, and the exercise of undue influence gener- 
 ally, whether by the use of money, by promises of employment 
 or appointment to office, by threats of dismissal, or otherwise, 
 may be safely accomplished only through direct and secret con- 
 tract with the voter. The employment of canvassers and hand- 
 bill distributors is also subject to grave abuse, since such em- 
 ployment can be made the pretext for payments to men whose 
 chief service to the candidate may be the casting of their votes 
 for him. Where the intent of the candidate in employing such 
 workers is primarily to secure their votes rather than their 
 services, the payment partakes more of the nature of a bribe than 
 of a wage. Treating likewise may easily become a means of 
 undue influence and corruption. The methods of reaching the 
 voters en masse may also be used corruptly. Halls may be hired 
 for meetings, or saloons for committee rooms, with the intent 
 of influencing the proprietors as well as the general public. 
 Newspapers may be bought; though, if the ownership is not 
 concealed, such a use of money cannot ordinarily be regarded as 
 improper. 1 A graver evil is the secret purchase of newspaper 
 space and editorial support. But the most serious forms of 
 corruption when the voters are dealt with en masse are more 
 subtle : promises of future benefits, to be conferred by legis- 
 lation or otherwise, which those who make the promises have 
 no intention or no reasonable hope of fulfilling ; appeals to prej- 
 udice and passion ; unmerited personal abuse of opponents, mis- 
 representation, slander, and libel. 
 
 It is not money alone that is the source of all evil in electoral 
 campaigns. Intimidation, undue influence, unworthy and in- 
 
 1 But cf. Graham Wallas, Human Nature in Politics, p. 97, for a discussion of 
 circumstances when such purchase might be regarded as improper.
 
 THE CONDUCT OF ELECTIONS 221 
 
 sincere arguments, slander, and libel are evils with which the 
 corrupt use of money has nothing to do. Some of these evils, 
 such as slander and libel, may be directly attacked by appro- 
 priate legislation. Unfortunately such legislation is difficult to 
 enforce. In general a strong and healthy public opinion must 
 be the main protection of candidates against such intangible 
 abuses as the publication of unworthy and insincere arguments, 
 the private circulation of false and malicious gossip, and the 
 exercise of any undue influence otherwise than by the use of 
 money. It is only because the body of voters is in the long run a 
 good judge of the character of men that the representative system 
 can be made to work at all well. The use of public patronage for 
 corrupt purposes is a more tangible evil. This, however, can be 
 dealt with more effectively by indirect means than by direct pro- 
 hibition. The introduction of the "merit" system in place of 
 the "spoils" system will be more fully discussed in connection 
 with the consideration of the administrative systems of the states. 
 When all is said, it remains true that the misuse of money in 
 electoral campaigns is the chief tangible source of evil. The 
 prevention of corrupt practices is correctly associated in the pub- 
 lic mind with the regulation of the expenditure of money. 
 
 CORRUPT-PRACTICES LEGISLATION IN ENGLAND 
 
 American legislation designed to prevent corrupt practices 
 during electoral campaigns, like American legislation designed 
 to improve the conduct of elections, was inspired by the example 
 of England. The British corrupt and illegal practices act of 
 1883, like the British ballot act of 1872, set up a standard which 
 Americans were not slow to appreciate. 
 
 The English law is founded upon the distinction between acts 
 which are declared to be corrupt and those which are merely 
 illegal. Corrupt acts include bribery, treating, undue influence, 
 personation, and failure to make the required returns of cam- 
 paign expenditures. Illegal acts include the payment of money 
 by or on behalf of a candidate for the conveyance of voters to 
 the polls, for the use of property for the posting of bills, for the 
 use of election committee rooms in excess of the authorized 
 number in the district, for music, torches, flags, banners, cockades,
 
 222 STATE GOVERNMENT IN UNITED STATES 
 
 ribbons, etc., and for the use of any premises where liquor is sold 
 as a committee room, and the payment of money for any purpose 
 in excess of the maximum amount permitted by law. The acts 
 declared to be corrupt are carefully denned. Illegal acts are 
 for the most part acts which may easily be made the pretext for 
 corruption, although not in themselves corrupt. In order further 
 to guard against corruption, the law defines the objects for which 
 expenditures may lawfully be made. Thus the candidate may 
 employ one election agent, one deputy in each election district, 
 one polling agent at each polling place, and a limited number of 
 clerks and messengers, depending upon the character of the dis- 
 trict and the number of voters. No paid employee is permitted 
 to vote. No money may be expended except for the following 
 purposes : (i) payment of costs of holding the election, assessed 
 by the election officials equally upon the candidates for election ; 
 (2) payment of the personal expenses of the candidates ; (3) ad- 
 vertising, printing, and distributing addresses, circulars, and 
 notices; (4) stationery, messengers, postage, and telegrams, 
 including telephone ; (5) public meetings ; (6) expense of main- 
 taining headquarters. Finally the maximum of legal expendi- 
 tures is limited, excluding personal expenses, according to the 
 nature of the district and the number of voters. In urban dis- 
 tricts containing less than 2000 voters the candidate is limited 
 to a maximum of about $1700. In larger urban districts the 
 limit is increased a little less than $150 for each thousand addi- 
 tional voters. In rural districts the limits are higher. Personal 
 expenses are limited to under five hundred dollars. 
 
 The law fixes the responsibility for the use of money during 
 the campaign upon a person known as the election agent. Each 
 candidate is required to designate an election agent at the be- 
 ginning of the campaign and to make all expenditures, except 
 those classed as personal, through his agent. The candidate 
 may act as his own agent, but ordinarily he employs a professional 
 campaign manager. Within five weeks after the election, the 
 agent must file a return with the local election officials showing : 
 (i) all payments made through his agency on account of the can- 
 didate ; (2) all personal expenses of the candidate ; (3) the costs 
 of the election assessed against the candidate by the election 
 officials ; (4) all disputed claims, so far as known ; (5) all unpaid
 
 THE CONDUCT OF ELECTIONS 223 
 
 claims ; (6) a complete statement of all receipts, whether from 
 the candidate or from any other person. In case of contributions 
 from any other than the candidate, the name of each contributor 
 and the amount of the contribution must be separately shown. 
 Both agent and candidate must also severally declare under oath 
 that they will not pay nor promise anything further on account of 
 the election than shown in the return. The return must include 
 vouchers for all payments in excess of ten dollars, and all bills 
 are presumed to have been paid within four weeks after the elec- 
 tion. Summaries of these returns for all the candidates are 
 published by the election officials at the expense of the candidates 
 in at least two papers of general circulation in the district, with 
 an indication of the place where the original returns may be in- 
 spected by the public. 
 
 The penalties for violation of the law are extremely severe. 
 Any person guilty of a corrupt practice is liable to a heavy 
 fine and enfranchisement. Any candidate guilty of committing 
 a corrupt practice is punished by disqualification forever for 
 membership in Parliament from the district. If a corrupt prac- 
 tice has been committed by his agent without his knowledge or 
 consent he is disqualified for seven years. Any candidate, guilty 
 directly or through his agent of an illegal practice, is punished by 
 disqualification for the life of the ensuing Parliament. Charges of 
 corruption or illegality may be preferred by any voter, but must 
 be prosecuted at the instance of the attorney-general. The trial 
 takes place before a special court of two judges, and the proceed- 
 ings are thoroughly non-partisan. The act has wrought a revo- 
 lution in the character of electoral campaigns in Great Britain. 
 Prior to its passage, British elections were notorious for their 
 venality. Money was used lavishly, corruption was brazen. 
 In some districts it is said that the greater part of the voters 
 were under pay by one or both of the candidates. Since then, 
 money has been much less lavishly used. The average expense 
 per vote cast for all candidates may be reckoned at about one 
 dollar. Corruption by candidates or their agents has been re- 
 duced to trivial proportions. In the words of one of the closest 
 observers of British politics: "The old electoral abuses have 
 been very much reduced. . . . Bribery in England is disappear- 
 ing. In by far the greatest number of constituencies it does not
 
 224 STATE GOVERNMENT IN UNITED STATES 
 
 exist, and the elections are on the whole pure." * The system is 
 doubtless not without its defects. For instance, it does not regu- 
 late the use of money independently by private persons or asso- 
 ciations, such as tariff reform leagues or brewers' associations. 
 This defect grows more serious as the political activity of such 
 associations increases. But the system has greatly checked the 
 particular evils at which it was aimed, and has clearly demon- 
 strated what a salutary change in the habits of men can be 
 brought about by wise and forceful legislation. 
 
 DIFFICULTIES IN REGULATING USE OF MONEY IN 
 AMERICA 
 
 The merits of the British corrupt and illegal practices act of 
 1883 were quickly perceived by intelligent Americans. 2 The need 
 for effective legislation against similar practices in American 
 electoral campaigns was a matter of common knowledge. 3 It was 
 not practicable, however, to incorporate the British act bodily into 
 the election laws of the American states and obtain the same 
 results as in Great Britain. The differences between the British 
 and American electoral systems are too fundamental. 
 
 In the first place, a general election in an American state is a 
 much more complex operation than a parliamentary election in 
 Great Britain. In Great Britain there is but a single office to be 
 filled by election in each district. The candidate for Parliament 
 is the sole representative of the cause of his party in the district. 
 For the duration of the campaign his personal election agent is 
 the head of the local party organization. Usually, indeed, the 
 candidate selects as his election agent the secretary of the local 
 party association. The interests of the party become identified 
 with those of the parliamentary candidate. In an American 
 state a general election is really a multitude of elections held 
 simultaneously. There are many offices to be filled by election 
 in each district. No one candidate for office is exclusively the 
 representative of his party. All candidates on the same party 
 
 1 A. L. Lowell, The Government of England, i, 237. 
 
 1 See W. M. Ivins, Machine Politics and Money in Elections in New York City, 
 New York, 1887. 
 
 * See, for example, the discussion of the party system in James Bryce, The 
 American Commonwealth (ist ed.).
 
 THE CONDUCT OF ELECTIONS 225 
 
 ticket, from presidential electors down to coroners, are served 
 by the same election agents, the regular party committees. The 
 interests of the party are not identified with those of any par- 
 ticular candidate for office. If a voter is bribed, he is ordinarily 
 bribed to vote for a party, not for a single candidate. Corrup- 
 tion generally inures to the benefit of all candidates on the same 
 ticket. Some may have connived at it, others may have been 
 ignorant of it, or may even have opposed it. To penalize all the 
 beneficiaries of corruption, as in England, would mean to void 
 the election of a president or governor, because of the corrup- 
 tion of a few voters in a single district, perhaps primarily in the 
 interest of a local candidate. In England it is just to void the 
 election of the candidate for Parliament because of the corrupt 
 acts of his election agent, since the agent serves that candidate 
 alone. But in the United States it is not ordinarily practicable 
 to trace corruption, for which a party committee is directly re- 
 sponsible, back to any particular candidate. Party committee- 
 men themselves might be disqualified for future service as com- 
 mitteemen or as public officials. Such a penalty would be 
 appropriate in cases where the committeemen control the candi- 
 dates. It would be inadequate, however, in cases where they are 
 merely the agents of the party. In short, the multiplicity of 
 elective offices and the separation of party management from 
 the personal fortunes of particular candidates make the preven- 
 tion of corrupt practices a much more difficult undertaking in 
 the United States than in Great Britain. 
 
 Secondly, in the United States the process of nomination 
 is much more complicated than in Great Britain. In the 
 latter country the rivalry for parliamentary nominations is much 
 less keen than that for most elective offices in the United 
 States. The personality of the candidate is of minor im- 
 portance. Primary elections are unknown. In the United 
 States, in cases where nomination is equivalent to election, the 
 contests for nomination cause the expenditure of more money 
 than the elections themselves. In all cases where nomina- 
 tions are attractive, the candidates for nomination, unless sup- 
 ported by party organizations, must conduct personal campaigns 
 before the primaries. Primary elections tend to take on the as- 
 pect of preliminary general elections. Effective corrupt practices
 
 226 STATE GOVERNMENT IN UNITED STATES 
 
 acts in this country must regulate the expenditures in primary 
 as well as in general elections. Moreover, the choice of party 
 officials is an integral part of the electoral process in the United 
 States. Like the nominations for public office, the party offices 
 may be hotly contested. The choice of delegates to the principal 
 conventions, and, in states where party committeemen are elected 
 directly by the rank and file of the parties, the election of members 
 of the principal committees, often involve the decision of much 
 more momentous issues than the personality of the candidates 
 or the character of the platforms in the next campaign. In a 
 struggle between different factions for the control of a party 
 organization the whole future of the party itself may be at stake. 
 Special interests which expect to profit through the control of 
 the organization by a particular faction may well prefer to sacrifice 
 temporary success at the polls for the sake of maintaining their 
 grip on the organization. So long as the bipartisan system of 
 politics endures, the permanent control of the organization is 
 much more important for many purposes than temporary control 
 of the government itself. Consequently effective corrupt prac- 
 tices acts in this country must regulate the use of money in the 
 election of party committeemen as well as in the nomination and 
 election of public officials. 
 
 Thirdly, the regulation of the sources of campaign funds is 
 more important, as well as more difficult, in the United States 
 than in Great Britain. In the latter country the parliamentary 
 candidate is as a rule expected to finance the entire campaign 
 in his district. That is one reason why there is less rivalry for 
 parliamentary nominations than might be expected by an Ameri- 
 can. If a desirable candidate cannot afford to finance as vigorous 
 a campaign as is required, he may be assisted by a grant from 
 the central campaign fund of the party. Ordinarily there is 
 little of that effort, so characteristic of American politics, to 
 finance the local campaign in each district by contributions from 
 those who expect to support the party's candidates at the polls 
 or hope to profit in some way by their success. This may be ex- 
 plained partly by the fact that party organization, except in 
 the case of the Labour Party, is less democratic than in the United 
 States, and partly by the fact that special interests cannot hope to 
 profit by the success of particular candidates to such an extent
 
 THE CONDUCT OF ELECTIONS 227 
 
 as in the United States. The separation of politics from public 
 administration is so effectively accomplished in Great Britain that 
 opportunities for private profit through the favor of elective 
 officials are much rarer than in the United States. But whatever 
 be the explanation, the supply of funds for the conduct of cam- 
 paigns by persons who are not themselves candidates for election 
 is a much more common practice in the United States than in 
 Great Britain. Just as the expenditure of money by candidates 
 may exercise an undue influence over voters, so the contribution 
 of money to campaign funds by special interests may exercise an 
 undue influence over candidates. The candidate whose election 
 or the organization whose success in general is made possible 
 by financial support from railroads, public service corporations, 
 brewers, or saloon-keepers is hardly more disinterested than one 
 who has accepted an acknowledged retainer. It is not strange 
 that the link between visible and "invisible" government was 
 located by the "muck-rakers" in the methods of party finance. 
 
 AMERICAN CORRUPT PRACTICES ACTS 
 
 The American states have been much slower to follow the ex- 
 ample of Great Britain in regulating the use of money in elections 
 than in regulating the form of the ballot. Bribery and the other 
 forms of gross corruption have always been penalized here as 
 there. But prior to 1890 there was no recognition in any Ameri- 
 can state of what the English law of 1883 defined as illegal prac- 
 tices. In that year the same group of reformers who had been the 
 first advocates of the Australian ballot in this country succeeded 
 in putting through the first feeble imitation of the English corrupt 
 and illegal practices act. The demand for reform was strongest 
 in New York and Massachusetts. As the first Australian ballot 
 law was enacted in Massachusetts, so the first modern legislation 
 for the regulation of the use of money was enacted in New York. 
 The New York law of 1890 provided merely that candidates for 
 election should file a return after the close of the campaign show- 
 ing the nature and amount of their expenditures during the cam- 
 paign. The Massachusetts law of 1892 went further, providing 
 that no candidate should pay or promise any money to promote 
 his election except for personal expenses and to political com-
 
 228 STATE GOVERNMENT IN UNITED STATES 
 
 mittees. Personal expenses were defined as writing, printing, 
 and distributing letters, circulars, etc., stationery and postage, 
 telegraph, telephone and messenger service, traveling, and other 
 petty personal services. No return of the nature or amount 
 of personal expenses was required. In addition, voluntary con- 
 tributions might be made in any amount to political committees. 
 A political committee was defined as any three or more persons 
 acting together to promote the success or defeat of a party 
 principle or candidate. Every political committee was required 
 to have a treasurer, through whom all receipts and expenditures 
 were to be made. Political committees might receive contribu- 
 tions from any source and in any amount, and might spend 
 money in any amount for any lawful purpose. After the close of 
 the campaign, the treasurer was required to file a return with a 
 city or town clerk, provided the total expenditures exceeded 
 twenty dollars, showing in detail the nature and amount of 
 all expenditures and the source and amount of all contributions. 
 Any individual, not a member or agent of a political committee, 
 spending more than twenty dollars, was also required to file a 
 return of expenditures. 
 
 The scope of this early legislation was manifestly inadequate. 
 Neither the New York nor the Massachusetts law imposed any 
 new restrictions upon the nature of political expenditures. 
 Neither limited their amount. Neither could afford the public 
 any real protection against the corrupt use of money. The New 
 York candidate could easily evade the New York law by making 
 his expenditures through political committees. The Massa- 
 chusetts candidate could easily evade the law in his state by 
 alleging that his expenditures were personal. The definition of 
 personal expenditures was so broad that almost any expenditure 
 was covered. The means of enforcement and the penalties were 
 equally inadequate. The returns were merely filed, not pub- 
 lished, and convictions of violation of the acts, if anybody were 
 interested to secure them, would have been exceedingly difficult 
 to obtain. The penalties were comparatively small fines or short 
 terms of imprisonment. Despite the unpromising character of 
 this pioneer legislation, similar laws were enacted in a number of 
 states. In 1893 Missouri first introduced a limitation upon the 
 amount of expenditures by candidates and committees. In 1897
 
 THE CONDUCT OF ELECTIONS 229 
 
 several states began the limitation of the sources of campaign 
 funds by prohibiting contributions from corporations. In 1903 
 the extension of the principle of publicity of campaign expendi- 
 tures to the primaries was begun in the South, where the primaries 
 were the most important phase of the electoral process. Yet it 
 must be admitted that down to 1904 legislation providing for 
 publicity in the financing of political campaigns had accomplished 
 little for the purification of American politics. Less than half 
 of the states had adopted any such legislation. Practically all 
 the legislation that had been adopted was so defective in scope 
 or in means of enforcement that little could be expected from it. 
 Even had convictions for violations been practicable, nobody 
 was interested to secure convictions, because nobody could profit 
 thereby. Defeated candidates, even if their own hands were 
 clean, could not immediately profit by convicting their successful 
 opponents of violations, because their opponents would still hold 
 the offices to which they had been elected. They could never 
 profit by such convictions unless public opinion could be enlisted 
 in support of those who would respect the law. For this public 
 opinion seemed unready. It is not surprising, therefore, that 
 during this period there were few prosecutions for violations of 
 these laws, and fewer convictions. 
 
 A great change in the opinion of the public set in after the presi- 
 dential election of 1904. There were four causes for this change. 
 The first and most conspicuous was the revelation of the huge 
 sums of money contributed in recent campaigns, particularly 
 that of 1904, by large corporations, and by individuals with large 
 corporate connections. The revelation of the contributions 
 by the great New York life insurance companies made the 
 deepest impression upon the mind of the public, for these contri- 
 butions consisted of money which in a way was the policyholders' 
 money and was used to promote causes of which many of the 
 policyholders did not approve. But the revelation of the con- 
 tributions made by certain railroad, traction, and financial mag- 
 nates was equally disquieting, for such heavy contributors could 
 not fail to exercise an undue influence upon the party organiza- 
 tions which they supported. Certain corporate interests, indeed, 
 were found to support both organizations, a course which 
 could not but seem to honest party men utterly unprincipled. As
 
 Perry Belmont, treasurer of the Democratic national committee 
 and one of the heaviest contributors to the campaign of 1904, 
 observed: "The great captains of industry have been induced 
 or compelled, or they have permitted themselves on one pretext 
 or another, to endeavor to control political agencies and organiza- 
 tions by the use of money." * The people were now becoming 
 convinced of this ugly truth. The truth frightened them, for 
 it meant that control of their institutions was slipping away 
 from them into the hands of an oligarchy of wealth. 
 
 The other causes of the change in public opinion were no less 
 significant. The second cause was clearly indicated by the chair- 
 man of the Democratic national committee, who observed : 
 "We are all familiar with what has been going on in the use of 
 money in state, local, and national campaigns. We all know that 
 it is not only a menace to the country, but to the political parties 
 themselves." 2 And the party leaders were bound to take notice 
 of a condition that menaced the parties. Moreover, campaign 
 managers were finding that where so much money was known to 
 be available for political purposes, they were at the mercy of any 
 unscrupulous person who possessed political influence and wanted 
 cash. "People who accept five, ten, or one hundred dollars 
 a day to work at the polls would not accept it, if there was danger 
 of its being made public." 3 Thirdly, the growing increase in 
 the cost of elections threatened the political future of all men 
 who could not command the necessary funds. As President 
 Gompers of the American Federation of Labor observed : "The 
 use of money, particularly to the extent it has been used in the last 
 decade, has made it practically impossible for a wage earner to 
 become a member of either state legislature or the Congress of the 
 United States." 4 Finally, the large contributors themselves were 
 to a certain extent the victims of the evil system their own un- 
 fortunate practices had fostered. Compulsory and effective 
 publicity, it was pointed out, "gives the corporation that does 
 not want to contribute an excuse for not giving, and a majority 
 of them in my opinion are practically coerced into giving black- 
 
 1 Minutes of First Meeting of National Publicity Bill Organization, Washington, 
 January 17, 1906, p. 3. 
 
 * Norman E. Mack, loc. cit., p. u. 
 
 1 Loc. cit., p. 16. 4 Loc. cit., p. 18.
 
 THE CONDUCT OF ELECTIONS 231 
 
 mailed, in fact." 1 In the face of attack from so many quarters 
 the traditional American system of secret party finance had to 
 give way. 
 
 Effective regulation of political campaign funds requires legis- 
 lation by Congress as well as by the state legislatures. Congress 
 inaugurated the new era in 1907 by prohibiting all corporations 
 from contributing to funds used to promote the election of federal 
 officers, and national banks and corporations engaged in interstate 
 commerce from contributing to state and local campaign funds. 
 It took the next step in 1910 by requiring the filing after the close 
 of the campaign of a sworn statement of receipts and expendi- 
 tures by national and congressional committees and all other 
 political committees spending money in two or more states for 
 the purpose of influencing federal elections. In 1911 it took a 
 further and much more important step. The principle of 
 publicity was extended to contributions and expenditures in the 
 primaries, publicity was made continuous throughout the cam- 
 paign instead of being confined to a single statement filed after 
 the close of the campaign, and the amount that might be spent 
 by a candidate in the primary and general election campaigns 
 together was limited to five thousand dollars in the case of a candi- 
 date for the House of Representatives and to ten thousand 
 dollars in the case of a candidate for the Senate. Meanwhile 
 similar legislation was being enacted by the states. By 1911 
 nearly half of the states had enacted legislation prohibiting cam- 
 paign contributions by corporations, and three-fourths of the 
 states had enacted legislation providing for filing returns of 
 contributions and expenditures. Some of this legislation marked 
 little or no advance over the pioneer legislation in New York 
 and Massachusetts. Much of the later legislation, however, 
 was of a more effective character. 
 
 The most significant of the later acts were those adopted in 
 Oregon through the direct popular initiative in 1908, and in Wis- 
 consin in 1911. These acts go much further than any previous 
 legislation in the American states in regulating the nature as well 
 as the amounts of campaign expenditures. In both respects they 
 marked a closer approximation to the English model than the 
 earlier legislation in this country. The Wisconsin act of 1911 
 
 1 Ex-Congressman Lamb, loc. cit., p. 17.
 
 232 STATE GOVERNMENT IN UNITED STATES 
 
 is most clearly based upon the English principle that all expendi- 
 tures are illegal except those expressly authorized by law. Ex- 
 penditures by candidates, whether in connection with a primary 
 or general election, are prohibited except (a) for personal hotel 
 and traveling expenses ; (b) for payments to the state required 
 by law; (c) for contributions to duly registered personal cam- 
 paign committees ; (d) for contributions to party committees ; 
 and (e) for actual personal expenses of public speakers. No 
 bills or claims presented later than ten days after the close of the 
 campaign are to be paid. No payments whatever may be made 
 on account of services rendered on primary or general election 
 day, or for the transportation of voters to the polls. 
 
 The Wisconsin act of 1911 provides for periodic returns both by 
 candidates and by committees throughout the campaign, and 
 forbids the printing of a candidate's name upon the ballot unless 
 the proper returns have been filed. Maximum limits are placed 
 to the amounts that may be spent by or on behalf of candidates 
 for nomination and election, and to the amounts that may be 
 spent by the state central committees in excess of sums paid in 
 on behalf of candidates and included in the statements of their 
 personal expenditures. A similar though less drastic limitation 
 was adopted in Massachusetts in 1914, when maximum limits were 
 placed to the amounts that might be contributed to campaign 
 funds or spent for campaign purposes by persons not themselves 
 candidates. In that state, however, no limit was placed upon the 
 total sums that might be raised and spent by the state central 
 committees. Charges of non-compliance with the Wisconsin law 
 are tried before a special election court. Conviction, except in 
 the cases of candidates for Congress or the state legislature, is to 
 be followed by forfeiture of office. In the excepted cases a record 
 of the conviction is to be transmitted to the appropriate body 
 for such action as that body may choose to take. The excep- 
 tions are required by the federal and state constitutional provi- 
 sions that Congress and the state legislatures respectively shall be 
 the judges of the election and qualifications of their own mem- 
 bers. Trial before a special election court and forfeiture of office 
 in case of conviction, subject to the exceptions above noted, 
 are also provided for by the Oregon legislation of 1908 and the 
 Massachusetts legislation of 1914. In this as in other respects,
 
 THE CONDUCT OF ELECTIONS 233 
 
 however, the Wisconsin act is much in advance of the legisla- 
 tion generally adopted in the states as well as of that adopted by 
 Congress. 
 
 WORKING OF THE CORRUPT PRACTICES ACTS 
 
 Testimony concerning the operation of the American corrupt 
 practices and campaign publicity acts is conflicting. Some 
 of those who ought to know assert that the laws are generally 
 observed, that they tend to reduce the cost of running for office, 
 and to prevent the corrupt use of money in elections. Others 
 assert that they are not generally observed, that they have not 
 reduced the cost of running for office, and that they do not pre- 
 vent the corrupt use of money in elections. Their chief effect, 
 according to the hostile critics, where they produce any effect 
 at all, is to encourage the practice of perjury. This conflicting 
 testimony can be partly explained by the fact that the laws are 
 very different in different states, some being much more defective 
 than others. The statutes passed during the earlier period of 
 legislation were most defective. It is doubtful whether they were 
 generally observed. Certainly they did not reduce the cost of 
 running for office nor prevent the corrupt use of money in elec- 
 tions. They were often held in open contempt by candidates 
 and party workers. They were universally disregarded by 
 non-political associations, having occasion to expend money in- 
 dependently in political campaigns, notably by liquor dealers' 
 associations. Some of the later statutes ought to produce better 
 results. The period since the enactment of the best of them, 
 such as the Wisconsin act of 191 1 or the Massachusetts act of 1914, 
 is too short to afford a complete test of their operation. 
 
 It is clear, however, that the best American statutes cannot be 
 expected to accomplish so much for the purification of elections 
 as was accomplished by the British act of 1883. There are so 
 many more candidates and elections in this country, the location 
 of responsibility is so much more difficult, and the attention of 
 the public is subject to so many more demands during campaigns, 
 that the enforcement of laws depending mainly upon publicity 
 and public opinion for their effectiveness is far less easy than in 
 Great Britain. In some respects the best American laws are
 
 234 STATE GOVERNMENT IN UNITED STATES 
 
 superior to the British. Continuous publicity throughout the 
 primary and election campaign should be more effective than 
 publicity after the campaign has closed. On the other hand, the 
 returns under the British act must be published in full in at least 
 two local newspapers at the expense of the parties. In the United 
 States returns are merely filed with some public official. The 
 voters know nothing of their contents except in so far as they 
 may be voluntarily informed by newspapers or public speakers. 
 Such information, at least during the campaign, is likely to be 
 partisan and ineffective. The laws of the American states are 
 also more imperfect than the British act with respect to the limi- 
 tation of the objects of campaign expenditures. Few of them 
 define with sufficient accuracy the legitimate objects of expenditure. 
 This is necessary to prevent evasion. Very few absolutely forbid 
 the expenditure of money on the day of election. This is indis- 
 pensable to the purification of elections. The most important 
 aspect of these laws is their enforceability in the courts by 
 prosecution for violations. Few of them make any effective pro- 
 vision for such enforcement. Those few fail to deal effectively 
 with candidates for legislative office. In general, responsibility 
 for violations of the laws cannot be fixed with such certainty 
 as in Great Britain. Hence the severe penalties enforced in Great 
 Britain are probably impracticable in national and state elections 
 here. They will remain impracticable, so long as the American 
 electoral system remains as complex as at present. 
 
 Some good results of the recent legislation nevertheless may 
 already be detected. There has undoubtedly been a decrease 
 in the contribution of funds to political campaigns by large cor- 
 porations and corporate interests. This was clearly revealed 
 by the investigations of the special sub-committee of the United 
 States Senate Committee on Privileges and Elections during the 
 presidential campaign of 1912. The immediate effect has been 
 to diminish the total amount of the campaign funds raised by the 
 regular party committees and to increase the efforts of campaign 
 committees to raise funds by popular subscription. The ulti- 
 mate effect must be to popularize party finance to an extent that 
 would have seemed visionary to politicians of the period of Mark 
 Hanna and Matthew S. Quay. The popularization of party 
 finance means the democratization of party management. It
 
 THE CONDUCT OF ELECTIONS 235 
 
 means the curbing of the power of "invisible" government, so 
 far as that power arises from its financial support of the party 
 organizations. It is doubtful, however, whether the total expendi- 
 ture of money in campaigns has been diminished. The increased 
 reliance of candidates upon personal campaigns and the increased 
 need for publicity on a large scale, resulting from the introduction 
 of the direct primary and the awakening of public interest in the 
 business of party management, have created an increased demand 
 for legitimate campaign expenditures . This increased demand can 
 only be met by increased contributions by the candidates them- 
 selves, or by their followers and personal friends. The increased 
 expenditure of money by personal campaign committees hi prima- 
 ries and elections may more than offset the decrease in expendi- 
 tures by the regular party committees. The legitimate expense 
 of running for office to-day, except in the states where a limit 
 is fixed by effective legislation, is probably greater than ever 
 before. It is certainly greater for candidates without organized 
 support, compelled to finance their own fight for nomination 
 and election. It might be supposed that the increase in the legiti- 
 mate demands for money, combined with the increased difficulty 
 of raising campaign funds, would tend to reduce the amounts 
 available for illegitimate uses. It may be surmised that the use 
 of money for corrupt purposes, at least in national and state 
 campaigns, has diminished in recent years. But this cannot yet 
 be proved. 
 
 Much remains to be done before the methods of conducting 
 campaigns can be regarded as satisfactory. The problem of 
 dealing with the grosser forms of corruption has existed from the 
 beginning of popular government and can never be solved by 
 legislation alone. But some of the newer problems arising out 
 of the growing complexity of modern civilization can be dealt 
 with effectively by prudent legislation. Particularly the prob- 
 lem of the use of money for legitimate campaign purposes needs 
 further study in the light of modern electoral conditions. It is 
 clear that unless some limit is placed on the amounts that may 
 be spent by individuals, whether candidates or not, rich men 
 will possess an undue advantage over poor men in politics. It 
 is equally clear that if excessively low limits are placed upon the 
 use of money for legitimate purposes, the candidates with news-
 
 236 STATE GOVERNMENT IN UNITED STATES 
 
 paper support or strong organizations behind them will possess an 
 undue advantage over their opponents. Hearst with his papers 
 and Tammany with its organization are much less dependent 
 upon campaign funds than the reformers can ordinarily hope 
 to be. Then there is the interest of the voters to be considered. 
 If no limit is placed on the amounts that may be spent in cam- 
 paigns, they may be unduly subject to corrupt influences. But 
 if the limits are excessively low, they may be deprived of due in- 
 formation concerning the nature of the issues and the merits of 
 the candidates. 
 
 FURTHER REGULATION OF THE USE OF MONEY 
 
 Compared with the limits imposed by the British act of 1883, 
 the limits imposed upon the amount of expenditures for legiti- 
 mate purposes by many American states seem unduly low. 
 Thus the Oregon law of 1908 permits the candidate to spend not 
 more than twenty-five per cent of the salary of the office sought 
 by him. The candidates for governor may accordingly spend 
 $1250 each, whilst candidates for minor offices on the state ticket, 
 who secure much less free publicity from the newspapers, must 
 finance their campaign with smaller sums. The gubernatorial 
 candidate's allowance works out to about one half of a cent per 
 voter. In California the law of 1909 permitted the expenditure 
 of $250 for the first five thousand voters in a district, two dollars 
 for each additional one hundred voters up to 25,000, one dollar 
 for each further one hundred up to 50,000, and fifty cents for each 
 one hundred voters thereafter. At that rate a gubernatorial 
 candidate could now spend a little over five thousand dollars. 
 This sum would enable him to send a postal card to about half 
 of the male voters of the state, but nothing at all to the female 
 voters. These limits seem absurdly low compared with those 
 fixed by the British act. So they would be, if the candidates for 
 governor alone were considered. But an American campaign 
 is financed by the joint expenditures of all the candidates for 
 all the offices, national, state, and local, supplemented by the sums 
 raised from other sources by the party committees. The total 
 expenditure in British elections averages about one dollar per 
 vote cast. The total expenditure here is unknown. The in-
 
 THE CONDUCT OF ELECTIONS 237 
 
 vestigations of the subcommittee of the Senate Committee on 
 Privileges and Elections in 1912, taken together with what is 
 known about expenditures by local candidates, show that in 
 localities where the contest is close the total expenditure per vote 
 cast must generally far exceed the total in a British campaign. 
 
 The heaviest single item in the cost of campaigns is the cost of 
 getting out the vote on primary and election day. The proposal 
 is not infrequently made that this item could be greatly reduced 
 by making voting compulsory, that is, by penalizing those who fail 
 to vote. It is argued that if the voter were subject to a small fine 
 for failure to exercise his franchise, the party organizations would 
 not be put to so much trouble and expense in getting him to the 
 polls. This argument overlooks two important considerations. 
 First, there may be a good reason for failure to attend the polls. 
 The voter may be absent from the locality in which his right to 
 vote must be exercised. Absence may result from the nature of his 
 occupation, as in the case of fishermen, sailors, actors, commercial 
 travelers, and railroad employees, or from the removal of his 
 actual residence when it is too late to change his legal residence 
 also before the next election. Absence may also result from 
 physical disability, and from opposition or even mere indifference 
 to all the candidates who have any chance of election. Secondly, 
 voters who would be induced to attend the polls solely by the 
 prospect of a small fine for absence are not the kind who are 
 wanted at the polls. The indifferent voter should be cured of 
 his indifference by a wider diffusion of political intelligence and 
 more effective methods of campaigning. The mercenary voter 
 is not wanted at all. A small fine would not discourage the neg- 
 lect of electoral duties by any voters except those to whom the 
 fine would seem big. What is needed is a plan which will en- 
 courage voting by those who would not be influenced by the pros- 
 pect of a small fine. 1 
 
 There are several better proposals for reducing the cost of 
 political campaigns than that of compulsory voting. One is 
 the improvement of election machinery. Absent voters should 
 be permitted to vote by mail, or at the nearest voting-place, 
 wherever they may be, or in advance before they leave home. 
 
 1 See A. B. Hart, The Exercise of the Suffrage, in Practical Essays in American 
 Government.
 
 238 STATE GOVERNMENT IN UNITED STATES 
 
 Each of these methods has been tried in some American state. 
 Moreover, where periodic registration is required, the voter 
 should be permitted to register, if necessary, while away from 
 home. Another good proposal is the prohibition of all payments 
 by candidates or political parties for services rendered on election 
 day, and the assumption by the state of those election-day ex- 
 penses which are necessary and proper. Thus, the state already 
 assumes the entire cost of printing and distributing the ballots, 
 a heavy item to candidates and parties before the introduction 
 of the Australian ballot. It should also assume the cost of trans- 
 porting to the polls all voters who really need such assistance. A 
 larger use of public buildings for political meetings is also possible 
 and, if necessary, halls might be provided at public expense for 
 the conduct of rallies. A few states, led by Oregon and Wis- 
 consin, have undertaken the publication and distribution of 
 official campaign bulletins in order that candidates and parties 
 may make at least one statement to every voter at the least 
 possible cost. These pamphlets are usually published once 
 before the primary and once between the primary and election, 
 and contain copies of the party platforms, campaign lives and 
 portraits of the candidates, and other matter. Only two states 
 have yet appropriated public money directly to the use of political 
 parties. In Colorado a law enacted in 1909 granting a sum to 
 each party in proportion to its voting strength was declared un- 
 constitutional. In Oregon the presidential primary law, adopted 
 in 1910, provided that the delegates to national conventions, 
 chosen to express the preference of the voters of the state between 
 the candidates for the presidential nominations, should receive 
 their necessary traveling expenses from the state. 
 
 How far the state should go in financing political campaigns can- 
 not be determined upon any general principles. The American 
 states already go much further than Great Britain. To the pay- 
 ment by the state of the cost of printing the ballots and of conduct- 
 ing the election itself, there is now no objection. Yet those 
 expenses are borne by the candidates in Great Britain and once 
 were so borne here. If the political party is to be treated as one 
 of the organs of government, as is implied in the legal regulation 
 of the process of nomination, the use of public money for partisan 
 purposes can be justified as a public use. How much public money
 
 THE CONDUCT OF ELECTIONS 239 
 
 should be so used would depend upon how much private money 
 candidates and party organizations are to be permitted to use. 
 That in turn depends in part upon such factors as the number 
 of offices to be filled by election at any one time, the size of elec- 
 tion districts, and the nature of the electoral process. Thus the 
 question of the use of money in elections and campaigns, like so 
 many other political questions, cannot be settled by itself alone.
 
 CHAPTER IX 
 
 THE STATE LEGISLATURES 
 
 THE constitutional history of the states, as has been previously 
 shown, reveals two principal tendencies in the development of 
 the legislatures : the standardization of form and the limitation 
 of powers. The standard form is the bicameral. Each state 
 now has a legislature consisting of two separate houses. No legis- 
 lation can be enacted without the separate consent of each house. 
 The powers of the two houses have been strictly limited. So 
 far as the enactment of ordinary legislation is concerned, the 
 limitations upon the two houses are the same. This is true of 
 the limitations both upon legislative powers and legislative pro- 
 cedure. There is only one exception. The power to originate 
 money bills is generally conferred exclusively upon the lower 
 house. The power to amend such bills, however, is vested in the 
 upper house. Under the guise of amendments the upper house 
 can originate such bills almost as freely as if the power were 
 expressly granted. Regarded simply as legislative bodies, there- 
 fore, the two houses possess substantially equal authority. The 
 executive powers conferred upon the legislatures are vested 
 chiefly in the upper houses. The power of appointing executive 
 and judicial officers, possessed so extensively by the first state 
 legislatures, has been largely taken away. The power of con- 
 firming executive appointments, originally vested in special 
 executive councils, has been transferred to the upper houses 
 alone. The judicial powers of the legislatures remain divided 
 between the two houses as originally planned. The lower houses 
 possess the sole power to impeach; the upper houses, to try 
 impeachments. Whilst the vesting of the power of confirming 
 executive appointments and trying impeachments in the upper 
 houses would seem to indicate a greater degree of confidence in 
 those bodies, no such partiality has been shown with reference 
 
 240
 
 THE STATE LEGISLATURES 241 
 
 to the exercise of purely legislative powers. With respect to 
 these the two houses have been treated alike. 
 
 The principal questions that now arise are these. First, is 
 the bicameral system the best system under existing conditions ? 
 Secondly, has the limitation of powers proceeded as far as is 
 necessary and proper, or should the powers of the legislatures be 
 further limited ? 
 
 THE BICAMERAL SYSTEM 
 
 The bicameral system, as has been shown, was originally 
 advocated on a number of grounds. These are all reducible, 
 however, to two principal grounds. The first is that the legisla- 
 tive branch of the government should represent the whole people, 
 not merely a majority. Under a representative system by which 
 each man has one vote and representatives are chosen directly 
 by a majority of voters in local electoral districts, the body so 
 chosen is likely to represent merely a majority of the people. 
 Those who cast their votes for unsuccessful candidates have no 
 respresentative of their own choosing. They may be represented 
 indirectly by successful candidates in other districts, provided 
 that the classes of voters who are in a minority in some districts 
 are in a majority in other districts. But if there is any class of 
 voters which is in a minority in all districts, that class will be 
 entirely excluded from any share in the representation. Now 
 an aristocracy, whether it be one of birth, or wealth, or intellect, 
 or character, is always in a minority. If it is not in a minority, 
 it is not an aristocracy. Sanguine democrats, like Jefferson, 
 believed that the majority in each locality would naturally 
 choose the best men for their representatives. Less sanguine 
 men, like Adams and Jay, believed that the majority would 
 choose men of their own sort. They feared that the aristocracy 
 would not be properly represented under a system of unbalanced 
 majority rule. They advocated the bicameral system, in order 
 that the aristocracy might have special representation in a sepa- 
 rate house. Thus the senates would represent the minority. 
 The lower houses would represent the majority. The legisla- 
 tures as a whole would represent the people as a whole. For 
 practical purposes, however, the defenders of aristocracy accepted 
 wealth as the test of aristocracy. Their senates were designed
 
 242 STATE GOVERNMENT IN UNITED STATES 
 
 to protect the rich against the poor. If the separate assent of 
 both houses were required for the enactment of laws, there could 
 be no legislation which was not acceptable to the rich as well as 
 to the poor. 
 
 In most of the original states this form of the aristocratic 
 theory of government was rejected. Not all men were con- 
 sidered fit to vote, but all who were considered fit were permitted 
 to vote for both senators and representatives on equal terms. 
 The bicameral system was accepted because it was believed to 
 insure a more deliberate procedure in the enactment of laws. 
 Hasty and ill-considered legislation, unnecessary and corrupt 
 legislation, was believed to have less chance of passing two 
 houses than one alone. Senators might be required to possess 
 higher qualifications with respect to experience, even with re- 
 spect to wealth. They might even be chosen by a different elec- 
 toral process. But they were generally chosen by the same elec- 
 torates as the representatives. They were expected to review 
 the acts of the lower house with a jealous eye, but not to thwart 
 the will of the majority of the people. 
 
 METHODS OF LEGISLATIVE APPORTIONMENT 
 
 It is necessary to inquire, first, whether the former reason for 
 the bicameral system justifies the maintenance of the state legis- 
 latures in their present form. The existing legislatures consist 
 as a rule of an upper house of from thirty to fifty members and 
 a lower house of from fifty to one hundred and fifty. 1 In most 
 states the members of the lower house are from two to three 
 times as numerous as the members of the upper. 2 Thus the 
 senates are more select bodies than the lower houses. The 
 greater dignity of the senates is further secured in a majority of 
 the states by the choice of senators for longer terms than repre- 
 sentatives. In many states, however, senators and representa- 
 
 1 The smallest senate is that of Delaware with seventeen members ; the largest, 
 that of Minnesota with sixty-three. The smallest lower houses are those of Dela- 
 ware and Arizona with thirty-five members each ; the largest, those of New Hamp- 
 shire and Connecticut with 402 and 258 respectively. 
 
 2 In two states, Arizona and Colorado, they are less than twice as numerous. In 
 Vermont, on the other hand, they are more than eight, and in New Hampshire more 
 than fifteen times as numerous.
 
 THE STATE LEGISLATURES 243 
 
 tives are chosen for identical terms, generally two years. Differ- 
 ences in the electorates of the two houses, in the qualifications of 
 their members, and in the process of election, so far as they ever 
 existed, have generally been abolished. At present, therefore, 
 in most states the principal differences in the character of the 
 two houses result chiefly from differences in their size and in the 
 manner of apportioning their members. 
 
 The basis of representation in the lower houses of the legisla- 
 tures, except in New England, is the county. The simplest form 
 of county representation is that whereby each county is a sepa- 
 rate representative district. The total number of representa- 
 tives is apportioned among the counties as nearly as possible in 
 proportion to population, but no county receives less than one 
 representative. The representatives from each county are 
 elected in the county at large. Such a system of representation 
 prevails in most of the southern states and in several of the 
 northern and middle western states, notably in New Jersey, Ohio, 
 and Iowa. In the more sparsely settled states, it is not possible 
 to give separate representation to each county without making 
 the lower house too large or the representation of the people too 
 unequal. In such states counties may be grouped together, if 
 necessary, to form a single district. Sometimes a comparatively 
 populous county is entitled to one representative of its own and 
 is grouped with other counties for the purpose of choosing an- 
 other representative. In a few states where the county serves 
 as the representative district, notably Louisiana * and Maryland, 
 populous urban counties are subdivided into special electoral dis- 
 tricts for the choice of representatives. In nearly a dozen states 
 the practice has been adopted of dividing the whole state into 
 special electoral districts, as nearly as possible equal in popu- 
 lation, returning one member each. In some of these states, 
 however, each county comprises at least one district. In others 
 counties may be grouped as well as divided in order to form equal 
 single-member districts. In New England the town is the basis 
 of representation. The systems of apportionment, however, are 
 as diverse as in other parts of the country. In Massachusetts, 
 for example, the local communities are divided or grouped 
 together as may be necessary in order that the people may be 
 
 1 In Louisiana the parish is the local equivalent of the county.
 
 244 STATE GOVERNMENT IN UNITED STATES 
 
 represented as nearly as possible according to their numbers. 
 In Connecticut and Vermont, on the other hand, the old colonial 
 practice by which each town or city, regardless of its size, sends an 
 equal number of representatives, still prevails almost unchanged. 
 The basis of representation in the upper houses is more uni- 
 form. In most states single-member districts are formed by 
 grouping or dividing counties, generally with a view to approxi- 
 mate equality of population. In a few states, of which Ohio is 
 the most notable, populous counties, entitled to more than one 
 senator, are not divided into single-member districts. In such 
 counties, senators like representatives are elected at large. In a 
 very few states, of which New Jersey is the most notable, each 
 county is entitled to an equal number of senators, regardless of 
 population. In some states the apportionment of senators and 
 representatives is based upon the distribution of some special 
 class of persons, rather than upon that of the total population. 
 Thus in New York it is based upon the distribution of citizens, 
 regardless of the alien population. In certain southern states 
 it is based on the distribution of qualified electors, regardless of 
 the negro population. Except in a few of the oldest and smallest 
 states, a reapportionment of members is made by each legisla- 
 ture every ten years. Some states place constitutional restric- 
 tions upon the power of apportionment, requiring that legislative 
 districts be as compact in form and as nearly equal in size as 
 practicable. Two of these states expressly provide for the judi- 
 cial review of legislative apportionments for the correction of 
 errors, 1 and doubtless in others the courts have the power to 
 set aside arbitrary and unreasonable apportionments. 
 
 WORKING OF METHODS OF APPORTIONMENT 
 
 It is apparent that the existing standard form of legislature 
 cannot be justified on the ground that it represents the whole 
 people. 2 The lower house does in most cases represent the ma- 
 
 1 New York and Oklahoma. 
 
 1 The two houses certainly do not afford separate representation to the rich and 
 poor. The only difference between the two houses tending to make one more 
 representative of the rich than the other is the difference in size. From this it fol- 
 lows that in most states senators are chosen in larger districts than representatives. 
 Hence the cost of election is likely to be greater. To a certain extent this greater
 
 THE STATE LEGISLATURES 245 
 
 jority, as it was intended to do. The upper house, however, 
 does not represent the minority. It also represents the majority. 
 Indeed, the principal effect of the maintenance of an upper house 
 is to give the majority party a stronger hold on the state govern- 
 ment than it would have, if there were no upper house. Since 
 the upper houses are smaller than the lower, their members are 
 usually* chosen in larger electoral districts. Now the larger the 
 electoral districts into which a state may be divided, the more 
 favorable the results of elections will be to the majority party. 
 There are two reasons for this. First, the effect of any system 
 of representation based upon plurality elections in local districts 
 is to magnify the importance of the majority. Writers upon the 
 subject of proportional representation have frequently pointed 
 this out, and quote copious statistics to prove it. It is obvious 
 without statistical proof. If all the representatives of the people 
 were chosen on a general ticket in the state at large, all would 
 be chosen by the majority. This is what happens under the 
 present system of choosing presidential electors. The smaller 
 the districts, the more closely the distribution of representatives 
 among the several parties corresponds to the relative popular 
 strength of the parties. In a state where the majority party is 
 strong, comprising, say, 55 to 60 per cent of the total vote, it 
 may secure all the representatives in Congress, nearly all the 
 state senators, and more than its share, though not so much 
 more, of the members of the lower house. Secondly, the dispro- 
 portionate representation of the majority party may be further 
 enhanced by the practice of gerrymandering. A gerrymander is 
 an arrangement of electoral districts which enables the majority 
 party to carry the greatest possible number of districts with the 
 least possible number of votes. The larger the districts into 
 which a state is to be divided, the greater the possibility of the 
 gerrymander. Willful and deliberate discrimination against the 
 minority party is consequently most notorious in the formation 
 of congressional districts. A gerrymander, however, may be 
 perpetrated in the interest of particular individuals as well as in 
 that of the majority party. In fact one of the most grotesque 
 
 cost of election may serve as a property qualification for senators. In most states 
 this tendency cannot be of great importance. A more important consequence of 
 the difference in size is the effect upon the representation of parties.
 
 246 STATE GOVERNMENT IN UNITED STATES 
 
 congressional gerrymanders of recent years was perpetrated in 
 South Carolina, 1 where discrimination against the minority party 
 could hardly have been an object. 
 
 The over-representation of the majority party in the state 
 legislatures is consistently defended by the supporters of the 
 existing bipartisan political system. Since ours is a government 
 by parties, it is urged, it is necessary that the governing party 
 possess power commensurate with its responsibility. So long as 
 the people look to the majority party to carry out the program 
 to which it has pledged itself in its platform, the people must 
 trust the majority party with adequate control of the legislative 
 machinery. Frequently, however, a majority party comprises 
 but a slight majority of the total number of voters. Sometimes 
 the vote cast for its candidates may even be less than a majority 
 of the total vote. Unless the majority party could s^,ure a dis- 
 proportionate share of the seats in the legislature, a, compara- 
 tively few members would hold the balance of power. In close 
 states a majority party which possessed no more than its pro- 
 portionate share of representatives would have a slender and 
 dubious hold upon the legislature. In order to possess an effi- 
 cient working majority, the party must have not only a bare 
 majority, but also a margin of safety. In short, the system of 
 government by party requires that the majority party have 
 effective control of the legislature. Ordinarily in close states 
 effective control cannot be secured without over-representation. 
 Whether such a system is a good system depends upon the man- 
 ner in which the majority party uses its power. Certainly it is 
 not the system contemplated by the framers of the original state 
 constitutions. 
 
 A secondary effect of the bicameral system is to facilitate dis- 
 crimination in the apportionment of representatives against the 
 inhabitants of the large cities. Discrimination against the large 
 cities may be accomplished in various ways. Since the total 
 number of senators and representatives is usually fixed in the 
 state constitution, a requirement that each county receive at 
 least one senator or representative will generally give to the less 
 populous counties more than their proportionate share of the 
 total number. Such a requirement actually produces under- 
 
 1 See J. R. Commons, Proportional Representation (zd ed.), p. 55-
 
 THE STATE LEGISLATURES 247 
 
 representation of the large cities in one or both houses in a con- 
 siderable number of states. The requirement that each county 
 receive an equal number of senators or representatives produces 
 a much more inequitable discrimination against the cities. In 
 New Jersey the counties are equally represented in the senate ; 
 the people are proportionately represented in the lower house. 
 Thus the senate is controlled by the country districts, whilst the 
 house is controlled by the cities. In Connecticut the reverse is 
 true. The senators are apportioned according to population, 
 whilst the lower house represents the towns without regard to 
 population. In this state the most extraordinary discrimination 
 occurs. New Haven, Bridgeport, Waterbury, and Hartford, 
 with a combined population of more than four hundred thousand, 
 have only eight representatives in the lower house of the legisla- 
 ture. Tlyv four towns of Union, Hartland, Killingworth, and 
 Coldbrookr; with a combined population of less than 2500, also 
 have eight representatives. Discrimination against the large 
 cities may also be brought about by the lack of provision for 
 periodic apportionments. In some cases discrimination is ex- 
 plicitly required by the constitution. Thus in New York the 
 constitution seeks to preserve rural domination of the legislature 
 by providing that no county (with one exception) shall have less 
 than one representative in the lower house and that no two con- 
 tiguous counties (by which New York City is meant) shall have 
 more than half of the total number of senators. In most of the 
 states the rural districts retain a hold upon one of the houses out 
 of all proportion to their numerical strength. In two of them, 
 Rhode Island and Delaware, gross discrimination against the 
 cities exists in both branches of the legislature. 1 
 
 Discrimination against the inhabitants of the cities in both 
 branches of a legislature can hardly be justified upon any prin- 
 ciples of government at present accepted by Americans. Dis- 
 
 1 The discrimination against the cities in the apportionment of members of the 
 legislature goes far to explain the opposition in the legislatures of these states to all 
 political changes designed to increase the power of the "people," that is, of a nu- 
 merical majority of the voters. The direct nomination of candidates for state 
 office in the primaries is opposed in such states as Rhode Island and Delaware, be- 
 cause the abandonment of the convention system would mean the end of the control 
 of such nominations by the rural districts. Direct legislation by the people is ob- 
 jectionable because it would nullify rural control of the legislatures. It is not a 
 theory, but a condition, that confronts the rural voters of those states.
 
 248 STATE GOVERNMENT IN UNITED STATES 
 
 crimination against the cities in one branch is defended by repre- 
 sentatives of the rural communities on the ground that they are 
 fairly entitled to control at least one branch. Originally the 
 country districts, that is, the agricultural classes, controlled both 
 branches of all state legislatures. With the growth of cities, 
 however, and the rise of an urban industrial class, the political 
 supremacy of the farmers was threatened. In many states con- 
 flicts of interest arose between city and county. In all states 
 rural and urban prejudices clashed. In states where the urban 
 voters are a majority, a discrimination against the cities which 
 enables the rural districts to control one branch of the legislature 
 establishes a check upon the power of the urban majority to 
 dominate the rural minority. Thus the bicameral system facili- 
 tates the maintenance of the balance of power between city and 
 county. Such a system may be advocated as a mode of protect- 
 ing the rights of the rural minority. But it is inconsistent with 
 the modern theory of party government. This is clearly apparent 
 in those cases where one party represents the cities, and the other 
 the rural districts. In such cases the effect of discrimination 
 against the cities is to interfere with the effective control of legis- 
 lation by the majority party, whenever the city party is in a 
 majority in the state as a whole. Such discrimination raises 
 many fundamental questions. Are not the rights of rural minori- 
 ties adequately protected by the courts ? If not, could they not 
 be adequately protected by some suitable system of rural "home 
 rule"? If not, would it not be better to abandon the present 
 system of representing only local majorities in the legislatures, 
 and to adopt a different system of representation, a system frankly 
 designed to represent all the people? 
 
 METHODS OF LEGISLATIVE PROCEDURE 
 
 The second ground for the adoption of the bicameral system 
 was the supposed value of a second chamber as a means of pro- 
 tecting, not the minority, but the majority itself against the 
 enactment of undesirable legislation. With only one house, 
 there was believed to be insufficient security for due deliberation. 
 The separate consideration of proposed legislation in two houses 
 was advocated merely as a method of legislative procedure. It
 
 THE STATE LEGISLATURES 249 
 
 becomes necessary, therefore, to inquire next what are the present 
 methods of legislative procedure, and to what extent the exist- 
 ence of the second house ensures due deliberation. 
 
 The rules of procedure in the state legislatures have developed 
 in response to four principal influences : the volume of legisla- 
 tion, the number of members, the limitations of time, and the 
 exigencies of the party system. The volume of legislation has 
 grown enormously, is still growing, and threatens to continue to 
 grow. In 1915 the legislatures of forty-seven states adopted a 
 total of 16,222 acts and resolves. 1 The total number of measures 
 introduced into the legislatures of these states was of course 
 much greater. In the twelve largest states alone more than 
 twenty- two thousand measures were introduced. 2 In most of 
 these states the time that may be devoted to the consideration 
 of this mass of proposed legislation is strictly limited by the con- 
 stitution. In Indiana, for instance, the total number of measures 
 introduced into the legislature of 1915 was a little over one 
 thousand, a comparatively moderate number. The session was 
 limited to sixty days. If every measure were to be considered 
 separately on the floor of each house, and the houses were to sit 
 for five hours each day, a maximum allowance if due time be 
 allowed for other necessary legislative work, each house would 
 have to dispose of a measure every eighteen minutes. If each 
 member were to speak but once on each measure, senators could 
 speak a little less than twenty-two seconds each, and members of 
 the lower house, half that period. In large states like Massa- 
 chusetts, New York, and Pennsylvania, although there is no fixed 
 limit to the duration of a session, the volume of proposed legisla- 
 tion is so much greater than in Indiana that the pressure on the 
 time of the legislature would appear to be about the same. 
 
 Under actual conditions, the pressure upon the time of legis- 
 lative bodies is greater than these calculations indicate. The 
 beginning of every regular session is inevitably given over to 
 organization and the introduction of bills. The middle part, as 
 will be made clear hereafter, is likely to be devoted to committee 
 
 1 Report of the Committee on Noteworthy Changes in Statute Law to the 
 American Bar Association, 1915, p. 57. 
 
 1 Official Index to State Legislation, vol. i, 1915. Published by the National 
 Association of Law Libraries.
 
 250 STATE GOVERNMENT IN UNITED STATES 
 
 work, trading, and manipulation. There remains only the last 
 part of the session for actual legislation. One legislature which 
 sat for one hundred and thirty-two days passed four hundred and 
 forty-eight general laws, three hundred and twenty-eight special 
 laws, and sixty-two joint resolutions, a total of eight hundred 
 and thirty-eight, or an average of more than six a day. One half 
 of the total were passed in the last fifteen days, nearly thirty a day. 
 Nearly one hundred were passed on the last day. 1 This crush of 
 legislation at the close came in a legislature where there was no 
 time limit. Where there is a time limit, the crush is worse. If 
 any considerable number of members were opposed to a measure, 
 were free to debate it at length, and chose to do so, the enactment 
 of the measure would be impossible. If each member of the 
 minority party were free to speak at length on each measure, and 
 chose to do so, the majority could not carry on the government of 
 the state. 
 
 All legislative bodies therefore make some provision for the 
 classification of their business, the regulation of their time, and 
 the restriction of the freedom of debate. These pro visions vary 
 greatly among the several states, but certain essentials are found 
 everywhere. In the first place, all proposed legislation is classi- 
 fied according to its nature, and all measures in each class are 
 referred to an appropriate committee. The nature of the classi- 
 fication, and consequently the number of committees, varies, 
 but the rule that every measure shall be referred to a committee 
 before being considered by the whole house is in general effect. 
 Secondly, a regular order of business is established by a standing 
 rule, and in the absence of a special rule or order each measure is 
 considered in its regular order. No bill may be adopted by either 
 house until it has been read three times, and by the constitutions 
 of many states the readings must be on separate days. The 
 rules of procedure provide for the progress of bills through their 
 several stages, including their several readings and reference to 
 committees, and for the consideration of business in the various 
 stages at appointed times. Finally, debate may be limited in 
 different ways. First, limitations may be placed upon the free- 
 
 1 S. P. Orth, "Our State Legislatures " (reprinted from the Atlantic Monthly, 
 Dec., 1904), in.P. S. Reinsch, Readings on American Slate Government, pp. 41-56. A 
 very interesting article on the personnel and work of the legislatures.
 
 THE STATE LEGISLATURES 251 
 
 dom of debate in general. Thus, in most legislative bodies no 
 member may speak twice to a question until all who wish have 
 spoken once. In some bodies no member may speak to any 
 question for more than a prescribed length of time. In all 
 houses there are certain questions to which a member may not 
 speak for more than a prescribed period of time. In the case of 
 a number of questions the prescribed time may be very short, 
 ten, five, or three minutes. Certain motions, particularly the 
 motion to adjourn, are not debatable at all. Secondly, limita- 
 tions may be placed upon the freedom of debate upon partic- 
 ular measures. Thus, a motion may be adopted to fix a time 
 at which the discussion of a pending measure shall be terminated 
 and the vote shall be taken. Finally, in most legislative bodies 
 debate may be terminated at any time by the adoption of the 
 previous question, that is, of a motion that the main question be 
 now put to a vote. The adoption of the previous question puts 
 an end to debate at once, though generally the member in charge 
 of the bill is granted a few minutes in which to make a closing 
 statement before the taking of the vote. 
 
 The rules of procedure are adopted by each house when it 
 first convenes. Subject to the limitations of the constitution, 
 the members may then adopt such rules as they please. For the 
 first and last tune they are completely their own masters. Each 
 member is the peer of any other. By the adoption of rules, each 
 member and the house as a whole put on shackles. The shackles 
 are riveted by the choice of officers. The organization of the 
 house is then completed. In some states, as has already been 
 pointed out, the constitutional limitations upon legislative pro- 
 cedure are numerous and salutary. This is notably the case in 
 New York. The rules of procedure incorporated in the constitu- 
 tion of that state carefully regulate the manner of passing bills. 
 Special restrictions are placed upon the procedure with respect 
 to private and local bills, and tax and appropriation bills. On 
 the final passage of financial bills, the ayes and noes must be 
 taken, and a special quorum is prescribed. In all states where 
 new constitutions have recently been adopted, similar, though 
 generally less complete, provisions designed to prevent hasty and 
 disorderly proceedings in the state legislatures have been adopted. 
 Unfortunately, as will be explained hereafter, the practices of
 
 252 STATE GOVERNMENT IN UNITED STATES 
 
 bringing in special rules to govern procedure with respect to 
 matters in which the legislative leaders are concerned, and of 
 doing almost anything by unanimous consent, tend to bring the 
 constitutional limitations into contempt. 
 
 THE SPEAKERSHIP 
 
 The most powerful officer in the lower houses of the state legis- 
 latures is the speaker. The first source of the speaker's power 
 is the power of recognition. No member may address the house 
 for any purpose unless he has first been recognized by the speaker. 
 By refusing to recognize a member the speaker can reduce that 
 member to comparative impotence. By ascertaining in advance 
 for what purpose members will desire recognition, and by arrang- 
 ing to grant recognition in a certain order or only for certain pur- 
 poses, the speaker can control the course of business. By habitu- 
 ally recognizing certain members for certain purposes the speaker 
 can raise those members to positions of the greatest influence in 
 the conduct of affairs. In states where party lines are sharply 
 drawn and party spirit runs high, the speaker is ordinarily selected 
 before the beginning of the session at a party caucus. At the 
 same time a party floor leader may be selected, whom the speaker 
 will regularly recognize for the purpose of making the motions 
 necessary for the management of the house by the majority 
 party. 
 
 The second source of the speaker's power is the power to rule. 
 An appeal may be taken from a ruling of the speaker to the house 
 as a whole, but his rulings will ordinarily be sustained by the 
 majority, if they are in the interest of the party. Through the 
 possession of the power to rule, the speaker possesses the further 
 powers of declaring the presence of a quorum, and of refusing to 
 entertain dilatory and obstructive motions. By the use of these 
 powers a masterful speaker may do much to prevent a minority 
 of members from impeding the enactment of the measures desired 
 by the majority. 
 
 The third source of the speaker's power is the power of ap- 
 pointment. By appointing members of his own party to a 
 majority of the places on committees, he insures the control of 
 committees by his party. By appointing his most trusted asso-
 
 THE STATE LEGISLATURES 253 
 
 dates to the chairmanship of the most important committees, he 
 determines the character of the party leadership. By appointing 
 insurgent members of his party to unimportant committees he 
 further fortifies the power of the regular party leaders. 
 
 The fourth source of the speaker's power is the power of refer- 
 ence. By referring important measures to committees controlled 
 by the party leaders he may determine the fate of the measures. 
 Unimportant measures may be referred to the committees which 
 from the standpoint of the "organization" are less reliable. 
 Committees manned by able but independent members of the 
 party may be heavily burdened with routine business of a non- 
 partisan character. Committees manned by less capable mem- 
 bers may find little to do. 
 
 The fifth source of the speaker's power is the power to control 
 the committee on rules. This power does not exist in all legis- 
 latures, and is important only hi those where the committee on 
 rules is highly privileged. In general, however, the powers of 
 the speaker are the same in all the states. The president of the 
 senate, who is usually the lieutenant-governor ex officio, exercises 
 the powers of recognition, ruling, and reference, but does not 
 always make appointments to committees or control the com- 
 mittee on rules. In the senates the most important member is 
 likely to be the floor leader of the majority party. 
 
 THE SYSTEM OF COMMITTEES 
 
 In many respects, as has already been suggested, the rules of 
 procedure adopted by the legislative bodies of the states vary 
 greatly. State legislatures might be classified in a number of 
 ways, according to the nature of the variations in their rules. 
 The most significant classification is that based upon the extent 
 to which special privileges are granted to the regular standing 
 committees. Upon this basis of classification the legislative 
 bodies fall into three divisions. 
 
 THE MASSACHUSETTS COMMITTEE SYSTEM 
 
 The first division comprises those states in which compara- 
 tively few privileges are granted to the committees. In Massa- 
 chusetts, the principal state in this class, the only important
 
 254 STATE GOVERNMENT IN UNITED STATES 
 
 privilege granted to the committees is that of examining meas- 
 ures referred to them prior to their consideration by the house as 
 a whole. Each committee is accustomed to give a public hear- 
 ing to the advocates and opponents of each bill which has been 
 referred. Each committee is required to report each bill, after 
 public hearing and before an appointed day, to the house or 
 senate, as the case may be. All committees, to which proposed 
 legislation is referred on introduction, are joint committees of 
 both houses. Both public hearings and committee deliberations 
 are attended by the members from each house before reports are 
 made to either house. Bills are generally reported to the house 
 in which they were first introduced. If passed by that house, 
 they may be considered at once by the other house without further 
 consideration in committee. The reports of committees are re- 
 ceived and acted upon in order, and the regular order cannot be 
 changed without the consent of four-fifths of the members of the 
 house. None of the committees among which the business of the 
 house is originally divided enjoys any special privileges, either 
 with respect to the consideration of their reports or with respect 
 to the control of debate. The most important committee is that 
 on ways and means. To this committee are referred all depart- 
 mental estimates, which serve as the basis for the regular annual 
 appropriations. Hearings are held by the house members of 
 the committee separately. At these hearings the departmental 
 heads explain the needs of their departments for the next fiscal 
 year. All proposed new legislation entailing the expenditure of 
 public money is also referred to the committee on ways and 
 means, before it is placed on the order of second reading, so that 
 there may be a report on its relation to the state finances. Thus 
 there are two reports on such a measure, one from the committee 
 to which it was originally referred on its general merits, the 
 other from the committee on ways and means on its relation to 
 the state finances. 
 
 The Massachusetts system of legislative procedure has many 
 advantages. The holding of a public hearing on every bill affords 
 an excellent opportunity for the ventilation of real and imaginary 
 grievances, and for gauging the extent of the public demand for 
 proposed legislation. It educates both the legislators and the 
 public. It also compels the proponents of ill-considered and un-
 
 THE STATE LEGISLATURES 255 
 
 desirable legislation to run the gantlet of pitiless publicity. 
 The requirement that every bill be reported to the whole house 
 prevents committees from pigeonholing desirable legislation 
 and compels them to justify their action in each case. The 
 establishment of a regular order, which cannot be set aside except 
 by a four-fifths vote, and which must be completed before the 
 legislative session can end, insures that every measure will be 
 duly considered by at least one house. Thus the majority of the 
 legislature can effectively control the course of legislation, for 
 they cannot be prevented from adopting any bill which they 
 desire to adopt, nor from defeating any bill to which they are 
 opposed. The use of joint committees instead of separate com- 
 mittees of each house for the initial consideration of proposed 
 legislation saves much time on the part of legislators, and much 
 effort on the part of proponents and opponents of legislation. 
 It also tends to remove needless friction between the two houses. 
 The Massachusetts system of procedure is seen at its best in the 
 case of appropriations. The centralization of responsibility for 
 all appropriations in a single committee enables a strong committee 
 to maintain a proper relation between the appropriations for the 
 several departments, and between appropriations as a whole 
 and the revenues of the state. The restrictions upon the power 
 of this committee to originate appropriations, and the require- 
 ment that its reports be considered separately in the regular 
 order, enable the legislature to deal with each appropriation on 
 its individual merits. Professor Reinsch has justly observed : 
 "The General Court l of Massachusetts is in all respects nearest 
 the people, and most responsive of any American legislature to 
 intelligent public opinion." 2 But there is one feature of this 
 system of procedure which, as things now stand, would be con- 
 sidered undesirable in all states, and in most of them constitutes 
 an insuperable objection to its adoption. The legislature ordi- 
 narily cannot dispose of its business in less than five or six 
 months. 3 
 
 1 The constitutional name of the Massachusetts legislature. 
 
 1 P. S. Reinsch, American Legislatures and Legislative Methods, p. 174. 
 
 * For a full description of legislative procedure in Massachusetts, see L. A. 
 Frothingham, A Brief History of the Constitution and Government of Massachusetts, 
 ch. vii. Doubtless the length of the legislative session could be materially re- 
 duced by the adoption of certain minor changes in the rules of procedure.
 
 256 STATE GOVERNMENT IN UNITED STATES 
 
 THE NORMAL COMMITTEE SYSTEM 
 
 The second division of states comprises those in which legis- 
 lative committees are more highly privileged than in Massachu- 
 setts. In these states committees are privileged to grant or refuse 
 public hearings on referred bills at their discretion. In states 
 where committees meet at the call of their chairmen, the chair- 
 man of each committee can decide in most cases whether or not 
 a hearing shall be held. Committees are privileged to report 
 bills to the house or to kill them by refusing to report. In most 
 states the majority, under the rules, can discharge a committee 
 from further consideration of a bill, but in many of these such 
 action is difficult in practice. In some states the reports of im- 
 portant committees are privileged under the rules, and entitled 
 to prior consideration out of the regular order. More frequently, 
 however, special consideration is obtained for the reports of such 
 committees through the collusion of the speaker and the com- 
 mittee chairman or the floor leader. The speaker recognizes the 
 member in charge of the report, to the end that the member 
 may move that the report be made a special order for considera- 
 tion at an appointed hour. In such states the regular order may 
 generally be set aside by a majority vote, and unless the majority 
 is ready to repudiate the regular legislative leaders it will adopt 
 any special order proposed by them. If, as is the case in most of 
 these states, the legislative session is strictly limited by the con- 
 stitution, there is inevitably a tremendous press of business in 
 the last days of the session. Under such circumstances, the 
 speaker and the chairmen of the principal committees are nearly 
 omnipotent. They may not be able to force through to enact- 
 ment all the measures which they favor, but they can certainly 
 prevent the adoption of measures to which they are opposed. 
 The general knowledge that they possess this power increases 
 their power to secure the adoption of the measures which they 
 favor. Measures go through in blocks, without discussion and 
 often without examination by the body of members, practically 
 by unanimous consent. 
 
 The existence of separate committees in each house serves 
 further to strengthen the position of the "organization" and to 
 weaken the general body of members. A common practice,
 
 THE STATE LEGISLATURES 257 
 
 where a bill is passed by one house and amended in the other, is 
 to appoint a special conference committee, composed of the lead- 
 ing members of the regular standing committees having jurisdic- 
 tion over the bill in each house, to agree on a compromise measure 
 and report it in identical form to each house. These reports are 
 always privileged, and receive immediate consideration regard- 
 less of the regular order. If they are made towards the close of 
 the session the two houses must adopt them as made, or accept 
 responsibility for the defeat of the legislation. Where the leaders 
 wish to control the action of the legislature on a measure, a favor- 
 ite plan is to procure the adoption of conflicting committee reports 
 in each house and the reference of the measure to a conference 
 committee. The latter committee they are sure to control and 
 they are consequently able to rewrite the measure, if they wish, 
 and to bring it to pass that it shall be adopted, if at all, on terms 
 satisfactory to themselves. In some legislatures where there is a 
 time limit, a special committee on the revision of the calendar 
 (that is, the list of pending measures in their regular order) is 
 appointed towards the close of the session. The membership of 
 this committee is, of course, dictated by the "organization," and 
 it determines what measures shall thereafter be considered, and 
 the order of consideration. Such a committee, consisting as a 
 rule of not more than five members of the lower house and three 
 of the upper, practically controls the business of the legislature 
 for the rest of the session. It is in itself a bicameral legislature 
 in miniature, in favor of which the larger body abdicates its 
 constitutional powers. 
 
 A specimen of this type of procedure at its worst is afforded 
 by the rules of the Illinois legislature. There are in the house 
 sixty-eight committees, the largest, the committee on finance, 
 having forty-four members. Few of the committees have less 
 than fifteen members. Members of the house serve on the aver- 
 age on more than twelve committees each. There are in the 
 senate forty-four committees, having on the average twenty 
 members each. Some members serve on more than twenty 
 different committees. "The committee system of Illinois makes 
 normal legislative action all but impossible. The natural result 
 is that political ringsters find a fertile field for their work. To 
 push legislation through, power must be concentrated in the
 
 258 STATE GOVERNMENT IN UNITED STATES 
 
 hands of a few, who are governed by no rules and cannot be held 
 responsible by the honest but unorganized majority. Business 
 cannot be carried on under the rules, so it is rushed through under 
 ' suspension of the rules,' and the actual procedure even at other 
 times bears only a faint resemblance to that pictured by the regu- 
 lations." l In at least three-fourths of the states the legislative 
 committees are too large and too numerous. Under such cir- 
 cumstances it is difficult, even when an honest majority are try- 
 ing to control legislative proceedings, to secure a full attendance 
 at committee meetings and prompt action. Almost universally 
 the actual work of committees is done in secret or "executive" 
 session, and there is no provision for roll-calls on contested meas- 
 ures, or for any record of committee proceedings. In those states 
 where the committees are not required by standing rule, and 
 cannot easily be required by special order, to report all bills, a 
 bill may be killed in committee, and every man in the legislature 
 could claim to have supported it. Nothing to the contrary could 
 be shown from the record. A more irresponsible procedure could 
 not be devised. 2 
 
 This system of procedure, which may be described as the normal 
 system because it exists in the greater number of states, substi- 
 tutes the rule of the committees for the rule of the majority. 
 This result was first clearly pointed out by the distinguished 
 author of the brilliant study in American politics, entitled Con- 
 gressional Government, written thirty years ago, when the sys- 
 tem prevailed in Congress as well as in most of the states. "I 
 know not how better to describe our form of government in a 
 single phrase," he wrote, "than by calling it a government by 
 the chairmen of the standing committees. . . . This disinte- 
 grate ministry . . . has many peculiarities. In the first place, 
 it is made up of the elders of the assembly, for by custom seni- 
 ority in ... service determines the bestowal of the principal 
 chairmanships ; in the second place, it is constituted of selfish and 
 warring elements, for chairman fights against chairman for use 
 of the time of the assembly . . . ; in the third place, ... it 
 consists of the dissociated heads of forty-eight 'little legislatures' 
 
 1 C. L. Jones, Statute Law Making in the United States, pp. 18-19. 
 1 See Nebraska Legislative Reference Bureau, Bulletin No. 3, Legislative Pro- 
 redurc in the Forty-Eight States, pp. 16-17.
 
 THE STATE LEGISLATURES 259 
 
 (to borrow Senator Hoar's apt name for the committees) ; and 
 in the fourth place it is instituted by appointment from Mr. 
 Speaker. ... It is highly interesting to note the extraordinary 
 power accruing to Mr. Speaker through this pregnant prerogative 
 of appointing the standing committees of the house. . . . The 
 most esteemed writers upon our constitution have failed to 
 observe, not only that the standing committees are the most 
 essential machinery of our governmental system, but also that 
 the speaker of the house of representatives is the most powerful 
 functionary of that system. So sovereign is he within the wide 
 sphere of his influence that one could wish for accurate knowledge 
 as to the actual extent of his power. But Mr. Speaker's powers 
 cannot be known accurately, because they vary with the char- 
 acter of Mr. Speaker." l 
 
 THE NEW YORK COMMITTEE SYSTEM 
 
 Since the publication of Congressional Government a striking 
 change has taken place in the operation of the committee system 
 in Congress, and a similar change has taken place in a few of the 
 states. In Congress the power of the speaker grew steadily 
 greater, until at last, in 1910, it had become so great that it was 
 insupportable. The chief source of the increased power of the 
 speaker was his control of the committee on rules, and the gradual 
 extension of the highest privileges to this committee. The 
 speaker controlled the committee on rules because he was the 
 chairman of the committee and held the decisive vote. The 
 otfier four members were evenly divided between the two major 
 parties. The committee on rules had become highly privileged 
 because, with the increase in the membership and business of 
 Congress, party exigencies demanded an increase in the power to 
 control its deliberations. The power which had once been dis- 
 tributed among a number of semi-independent committee chairmen 
 needed to be centralized. The committee on rules was accord- 
 ingly privileged to meet at any time, even during the sittings of 
 the house, to report at any time, interrupting the consideration 
 
 1 Woodrow Wilson, Congressional Government (ed. of 1900), pp. 102-104. For 
 an account of the origin of the committee system in American legislatures, see J. F. 
 Jameson, "The Origin of the Standing Committee System in American Legislative 
 Bodies, Pol. Sci. Quart., ix, 2.
 
 260 STATE GOVERNMENT IN UNITED STATES 
 
 of the regular order, and to obtain immediate consideration for 
 its reports. The committee was granted exclusive jurisdiction 
 over all proposals to change the rules or to adopt any special 
 order of business, and was authorized to bring in a special rule 
 at any time without waiting for a proposal for such a rule to be 
 referred to it by the house. Special rules reported by the com- 
 mittee were made effective, if adopted by a majority of the house, 
 but without a special report from the committee the house could 
 not depart from the regular order except by a two-thirds vote. 
 Thus the committee on rules practically controlled the order of 
 business, at least so far as contentious matters were concerned. 
 Non-contentious matters, usually disposed of, if at all, by unani- 
 mous consent, could be controlled by the speaker alone. In 
 short, the combination of the power of recognition, appointment, 
 and control of the committee on rules made the speaker a veri- 
 table dictator in the house of representatives. A similar develop- 
 ment in the influence of the speaker took place in those states 
 where business was heavy, where members were numerous, 
 where time was short, and where party lines were closely drawn. 
 This was notably the case in the state of New York. 
 
 The dictatorial power of the speaker became objectionable in 
 Congress for three reasons. First, because it menaced unduly 
 the interests of the minority party. The minority leaders found 
 that, under the operation of special rules reported by the com- 
 mittee on rules for the purpose of rushing party measures through 
 their several stages to enactment, they were deprived of adequate 
 facilities for criticism of the majority's measures and for exposi- 
 tion of their own. Secondly, it was oppressive to the unprivileged 
 members of the majority party. Insurgent members in partic- 
 ular found that the means of coercion in the hands of the speaker 
 were so effective as to reduce them to impotence unless they sup- 
 ported the party program. Thirdly, it threatened to destroy 
 the liberty of ordinary members, without regard to their party 
 affiliation, with respect to the promotion of private and local 
 measures. In 1910 the speaker was removed from the committee 
 on rules, the committee was enlarged, and the members were 
 elected by the house itself. In 1911 the power of appointment 
 was taken from the speaker and conferred upon the committee on 
 ways and means. The majority party members of this com-
 
 THE STATE LEGISLATURES 261 
 
 mittee were chosen by the party caucus, and the caucus adopted 
 the practice of considering the more important pieces of proposed 
 legislation before they were reported out of committee, and in- 
 structing the party leaders what action should be taken. These 
 reforms accomplished little for the protection of the minority 
 party and the individual members, but they transferred the con- 
 trol of the legislative machinery from the speaker to the party 
 caucus. The reform of the rules in the national house of rep- 
 resentatives stimulated the reform of procedure in the state legis- 
 latures, but no state went so far as Congress in curbing the power 
 of the speaker and in developing the authority of the party caucus. 
 In New York the speaker remains chairman of the committee on 
 rules. In that state the congressional system, as it existed prior 
 to the reform of 1910-11, still holds sway. 
 
 H 
 
 WORKING OF METHODS OF PROCEDURE 
 
 The normal system of legislative procedure and what may now 
 be described as the New York system have much in common. 
 Under either system the speaker is the dominant personality in 
 the business of legislation. Under either system a handful of 
 privileged members outweigh all the rest. Under either system 
 the unprivileged member finds himself a mere cog in a machine, 
 so far as the enactment of legislation is concerned. The more 
 mechanically he performs the duties required of him by the legis- 
 lative leaders, the more successful he can hope to be in serving 
 the special interests of his own district. A new member especially 
 (and a substantial portion of the membership of every legislative 
 body is always new) is helpless without the favor of the " organi- 
 zation." As former Speaker Smith of the New York assembly 
 once candidly confessed : "Unquestionably no matter how able 
 he may be, he cannot possibly understand the rules ... in one 
 year." ! It is not surprising that under such circumstances 
 members seem to be chiefly interested in special rather than in 
 general legislation. Elihu Root declared in his valedictory ad- 
 dress to the New York constitutional convention of 1915 : "We 
 found that the legislature of the state had declined in public 
 esteem, and that the majority of members of the legislature were 
 
 1 New York Constitutional Convention of 1915, Record, p. 1213.
 
 262 STATE GOVERNMENT IN UNITED STATES 
 
 occupying themselves chiefly in the promotion of private and 
 local bills, of special interests, . . . upon which apparently their 
 reelections to their positions depended, and which made them 
 cowards and demoralized the whole body." 1 The responsibility 
 for the action of the legislature on important matters is assumed 
 by a few experienced leaders. The cement which holds their 
 following together is the control of the distribution among the 
 districts represented by their followers of public money and of 
 special privileges of various sorts. 
 
 The principal difference between the normal and the New 
 York systems of procedure concerns the relations between the 
 little band of leaders. Under the New York system the leaders 
 were more closely banded together than under the normal sys- 
 tem. Committee chairmen are less independent of one another 
 and are more effectually subordinated to the authority of the 
 speaker and the committee on rules. Under the normal system 
 the "organization" is in control, but it is loosely articulated. 
 Under the New York system the "organization" is closely articu- 
 lated. Its decisions may be swiftly formed, and promptly exe- 
 cuted. The New York system is consequently more favorable 
 to effective party action. Under the normal system of com- 
 mittee government, each committee is, as the late Senator Hoar 
 of Massachusetts observed a generation ago, a "little legisla- 
 ture" by itself. Within its special field it reigns supreme. 
 Each decides for itself what the interests of the people and of the 
 party require of it. Under the New York system the speaker 
 and committee on rules make the final decision as to what the 
 interests of the people and of the party require. In fact, in 
 most states the interests of the parties are involved in but a 
 very few of the measures that come before the legislatures. As 
 has already been pointed out, the parties in America are essen- 
 tially national parties. They are divided mainly upon national 
 issues. It is difficult for them to take sides upon purely state 
 issues. The members of most legislatures are elected upon party 
 lines that have little connection with the bulk of the legislative 
 business. The committees comprise members of both parties, 
 and normally their reports reflect the compromise of various in- 
 dividual opinions regardless of party. The custom by which 
 
 x New York Constitutional Convention of 1915, Record, p. 4458.
 
 THE STATE LEGISLATURES 263 
 
 only majority party members attend committee meetings on 
 public general bills, which is growing in Congress, has not been 
 established in the states. In most state legislatures party meas- 
 ures are few, and party voting either in committee or on the floor 
 of the two houses infrequent. 1 New York, as might be expected 
 in view of the procedure which has developed there, is an excep- 
 tion to the general rule. 
 
 Party lines indeed are much less important in the state legis- 
 latures than is frequently asserted. In general the party " boss, " 
 if there be one, or the party caucus, rarely dictates the action of 
 party members on public questions. As President Lowell of 
 Harvard has pointed out, the "boss" usually controls only a 
 portion of the members of the party, and is usually disinclined 
 to meddle with general legislation. To attempt to dictate to his 
 followers on general legislation would only weaken his authority 
 over them. He confines his attention to the distribution of the 
 "spoils," to laws that bear upon electoral machinery, and to 
 such bills as affect the persons from whom he derives his revenue. 
 "The very position of the boss depends upon the fact that parties 
 exist for public objects, while he exists for private ones." z 
 Parties in the state legislatures do not as a rule caucus on public 
 questions, because they have too little cohesion. No member 
 need feel bound by the vote of a party caucus unless he goes into 
 the caucus and participates in the vote. No member need go 
 into a party caucus unless he expects to be satisfied with the 
 result. He is not so much dependent upon the good will of his 
 nominal party associates as upon the support of his own district. 
 Consequently the authority of the speaker, supported as it is by 
 genuine power to reward and to punish, is far more important 
 than that of any party caucus. But, as President Wilson said 
 long ago: "Mr. Speaker's powers cannot be known accurately, 
 because they vary with the character of Mr. Speaker." If a 
 forceful presiding officer, whether in the lower house or in the 
 senate, cooperates to the full extent of his ability with a masterful 
 governor, a party program can be put through the house or senate 
 
 1 See A. L. Lowell, "The Influence of Party upon Legislation in England and 
 America," plate iv, in the Annual Report of the American Historical Association for 
 looi, i, pp. 310-542. 
 
 1 A. L. Lowell, op. cit., p. 349.
 
 264 STATE GOVERNMENT IN UNITED STATES 
 
 with certainty and celerity. But if the presiding officers of the 
 two houses are out of sympathy with the governor, party pro- 
 grams, so far as the governor may stand sponsor for them, are 
 likely to fail. If the presiding officers of the houses are chiefly 
 interested in private and local measures and indifferent to the 
 common welfare, jobbery and the abuse of patronage will hold 
 sway. In such matters party lines are of little account. 
 
 WORKING OF BICAMERAL SYSTEM 
 
 Under either the normal or the New York system of procedure, 
 the division of the legislature into two separate houses is one 
 of the less important factors affecting the character of legislation. 
 The general results of the bicameral system can be discerned 
 from the record of legislation in the states. In Michigan, for 
 example, during the legislative session of 1915 there were 395 
 measures introduced into the senate, and 496 into the lower 
 house. Of the measures originally introduced into the senate 
 139 were killed in committee, 32 on the floor, and 72 passed that 
 body and were killed in the other house, mostly in committee. 
 Of the measures originally introduced into the lower house 228 
 were killed in committee, 39 on the floor, and 43 passed that 
 body and were killed in the other house, mostly in committee. 
 The remaining measures passed both houses. 1 The legislative 
 record of Michigan is typical of that of most states where the 
 normal procedure is established. It is clear that the division of 
 the legislature into two houses is of less consequence than the 
 division of each house into committees. Altogether 115 of the 
 891 measures introduced into the two houses, after having passed 
 one house, were killed in the other. It does not follow, however, 
 that this action was in every case in the public interest. A favor- 
 ite trick of politicians who wish to avoid the adoption of popular, 
 but to them objectionable, legislation is to procure the introduc- 
 tion in each house of different measures ostensibly designed to 
 accomplish the same purpose. Each house can then pass its 
 own measure and kill that passed by the other house. Every 
 legislator who needs to placate public opinion in his district can 
 
 1 See Official Index to State Legislation, 1915.
 
 THE STATE LEGISLATURES 265 
 
 vote for one of the measures and help kill the other. Thus a 
 majority of the whole legislature can get on record in favor of 
 the legislation without finally adopting any legislation at all. 
 The bicameral system enables unrepresentative or corrupt legis- 
 latures to defeat by chicanery legislation which they would not 
 have the courage to kill openly. It enables the "organization" 
 to divide the responsibility for unpopular work between two sets 
 of committees. 
 
 The operation of the bicameral system in New York has been 
 made the subject of a careful study. 1 "When considering the 
 final argument for the bicameral principle, that it serves as a 
 check to hasty, ill-considered, and careless legislation, there is 
 danger of becoming confused by the great mass of measures with 
 which a legislature has to deal. There are so many bills that 
 careful and adequate consideration is exceedingly difficult in 
 the short period of the session, and with the many demands upon 
 the time of most legislators. The bicameral system permits 
 consideration by two different bodies. Two hasty considerations 
 may not be as good as one thorough one, but they may be better 
 than one hasty one. The effect of a second consideration is 
 shown by the fact that 19 per cent of the bills passing one house 
 were killed in the second, and 15 per cent of the bills passing both 
 houses were amended in the second. However, it has been noted 
 that most of the bills defeated were comparatively unimportant 
 ones. The number would probably have been considerably less 
 if the first house had accepted full responsibility. Two con- 
 siderations do not necessarily mean a double consideration. 
 There is a tendency to assume that a subject has been considered 
 in the other house when the consideration has been very in ade- 
 quate ; or sometimes one house passes a bill with the expectation 
 that the other house will deal with it more carefully. There is 
 frequently a shifting of responsibility. It is also customary to 
 advance bills advocated by the party leaders. The important 
 bills are determined upon by the party leaders and upon these 
 the second chamber is of little additional usefulness in furnish- 
 ing consideration. The present system tends to make the 
 party boss or group of party leaders the determiners of what 
 
 1 D. L. Colvin, The Bicameral Principle in the Nra York Legislature, in Columbia 
 University Studies in History, Economics, and Public Law.
 
 266 STATE GOVERNMENT IN UNITED STATES 
 
 shall be passed, as it is the party's function to control both 
 houses." * 
 
 The operation of the bicameral system in states where party 
 organization is less coherent than in the New York legislature 
 has never been studied with equal thoroughness. Doubtless the 
 system operates in various ways under different conditions. In 
 most states where the normal procedure prevails, the results ap- 
 pear to correspond closely to those noted in the case of New York, 
 except that the legislative machine is even less responsible than 
 in New York. In all these states the chief barrier to the flood 
 of bills is the system of committees. Indeed, many of the bills 
 which are introduced are never expected to get further than the 
 committee stage. Of the bills that are favorably reported from 
 committee comparatively few fail to pass. In a few states, where 
 the number of legislators and the volume of business is compara- 
 tively small, the importance of the committees is less, and that 
 of discussion on the floor of the legislative halls greater. In 
 Arizona, for example, a majority of the bills introduced into the 
 lower house during the regular session of 1915 were killed on the 
 floor of the house, and nearly as many were killed in the senate 
 after passing the lower house as were killed by the house com- 
 mittees. More than a third of the senate bills were killed on the 
 floor of the senate, and nearly as many after passing that body 
 were killed in the house. Very few bills were killed in the senate 
 committees. But Arizona has one of the smallest legislatures, 
 and in 1915 had the smallest volume of legislative business. And 
 at that two extra sessions had to be called finally to pass all neces- 
 sary measures. In most states such deliberate procedure is im- 
 practicable under existing conditions. Control of time and busi- 
 ness has to be exercised by somebody. In practice it is exercised 
 by the speaker and committee chairmen, acting as a rule less as 
 party leaders than as mere "organization" or "machine" men. 
 Between the interests of the party and of the "organization" there 
 may be, and often is, a wide gap. In none of these states is the 
 process of legislation, as President Wilson phrased it, "a straight- 
 forward thing of simple method, single, unstinted power, and 
 clear responsibility." In all these states the division of the legis- 
 lature into two separate houses makes the process of legislation 
 
 1 D. L. Colvin, The Bicameral Principle in the New York Legislature, pp. 187-188.
 
 THE STATE LEGISLATURES 267 
 
 less straightforward. It stints every power of the legislator 
 except that to evade responsibility. 1 
 
 FURTHER REFORM OF LEGISLATIVE METHODS 
 
 The abolition of the bicameral system and the establishment of 
 unicameral legislatures would not of itself sufficiently improve 
 the process of legislation. It is only a single thorough considera- 
 tion of measures, not a single hasty one, which can be expected 
 to be much better than two hasty considerations. In order to 
 secure one thorough consideration of measures, five other changes 
 would be necessary in most states. The first is to increase the 
 time allowed for the transaction of legislative business. No legis- 
 lature with its session limited to forty or sixty days can ever 
 become a genuine deliberative body. The existence of the fixed 
 time limit is a standing invitation to all those who hope to gain 
 by avoiding due deliberation to postpone every important meas- 
 ure to the last minute, when deliberation is impossible. A second 
 necessity is the adoption of rules of procedure which will ensure 
 the careful consideration of every important measure by the 
 main body of legislators. A combination of the rules adopted in 
 Massachusetts to ensure the consideration of all measures by the 
 main body of legislators and of those adopted in New York to 
 ensure due deliberation in their proceedings would be required. 
 Thirdly, it is necessary to keep the membership of the legislatures 
 within the limits which permit of deliberation. Large bodies of 
 legislators must inevitably delegate their task of deliberation to 
 smaller bodies which can handle it. The legislature must be 
 small enough for the whole number to be accommodated in a 
 hall where each member can be readily heard by his associates. 
 Fourthly, it is necessary to pay legislators a living wage. Three, 
 four, or five dollars a day is totally inadequate compensation for 
 men who in most cases must leave their homes and neglect their 
 private businesses. The high cost of nominations and elections 
 makes a bad matter worse. Unless legislators are to supplement 
 their official wages by prostituting their public position to pur- 
 
 1 It might seem that the two houses would exert a more useful check upon one 
 another in such states as Massachusetts, but in practice the system of joint com- 
 mittees tends to neutralize the normal effects of the bicameral system.
 
 268 STATE GOVERNMENT IN UNITED STATES 
 
 poses of private gain, the only men who can afford to go to most 
 legislatures are those so poor that they have nothing to lose or 
 so rich that they need not care how much they lose. The sub- 
 stitution of a single house with a limited membership for the 
 present arrangements would enable most states to pay their 
 legislators a suitable salary without any increase of cost to the 
 people. 
 
 Finally, it is necessary to limit the volume of legislative busi- 
 ness. The work which falls upon the legislatures of most of the 
 states is too great to permit the bulk of it to be disposed of except 
 by summary process. The legislatures are attempting to do 
 altogether too much. Relief must be secured by the further 
 limitation of legislative powers. 
 
 CLASSIFICATION OF WORK OF LEGISLATURES 
 
 The strictly legislative work of the state legislatures falls into 
 four classes. The first relates to the selection of matters con- 
 cerning which there shall be legislation. To a certain extent 
 this function is assumed by the state conventions of the political 
 parties. The party platforms generally promise legislative 
 action on a few matters. These promises unfortunately are fre- 
 quently too vague to be of much practical assistance to the legis- 
 latures. To a greater extent the state governors have assumed 
 the function of leadership in the formulation of legislative pro- 
 grams. Their messages to the legislatures at the opening of the 
 session generally contain some indication of matters to be con- 
 sidered with a view to action. Since the governor is armed with 
 the appointing and veto powers, his recommendations are bound 
 to be considered, regardless of his party affiliation. If he is dis- 
 posed to make vigorous use of these powers in order to promote a 
 legislative program of his own, he becomes a more influential 
 legislator than any single member of the legislature itself, not 
 even excepting the speaker. Public recognition of this fact has 
 caused the governor to accept a responsibility, which the framers 
 of the original state constitutions would have regarded as un- 
 constitutional, for the action of the legislature upon the principal 
 public issues. Executive usurpation of legislative prerogatives 
 has been sanctioned by public opinion, because the governor has
 
 THE STATE LEGISLATURES 269 
 
 tended to stand for the interests of the state as a whole, being 
 elected in the state at large, whilst the members of the legisla- 
 tures have only too often stood for local and private interests 
 within their several districts. The bad judgment of the legis- 
 latures hi the selection of matters concerning which there should 
 be legislative action has been one of the principal causes of that 
 decline in the public esteem which has been noted by every 
 critical observer of the state legislatures from the time of the 
 Federal Convention of 1787 down to the New York convention 
 of 1915. 
 
 The second class of legislative work relates to the collection 
 of the information upon which intelligent legislative action must 
 be based. No legislator can be well informed by his own study 
 or experience concerning more than a small proportion of the 
 many matters which he is called upon during the course of a 
 session to consider. The notion that legislators are omniscient 
 citizens, who can pass judgment upon any subject after a short 
 debate on the floor of the house, is as obsolete as powdered wigs 
 and knee breeches. Like the jury, which was once composed of 
 men who knew all about the case at bar and has come to be com- 
 posed of men who know nothing about it, the legislature must 
 now for the most part be instructed concerning the matters upon 
 which they are to act by those who know. In default of further 
 information, the general body of members must ordinarily accept 
 the opinion of the committee which has the matter in charge, or 
 of the party leaders. There are three principal methods of 
 obtaining further information. First, in cases of unusual im- 
 portance or difficulty, the legislature may appoint a special in- 
 vestigating committee, or authorize the appointment by the gov- 
 ernor of a special commission to make all necessary and proper 
 investigations. Such investigating bodies may be armed with 
 the power to subpoena witnesses, administer oaths, and take tes- 
 timony generally. Secondly, the legislature may direct some 
 administrative official or department to present a report on a 
 designated subject. This method is appropriate in cases of ordi- 
 nary importance or difficulty. In general, however, the legisla- 
 tures rely mainly upon the third method. This method, in most 
 states not formally recognized at all, is that commonly called 
 lobbying.
 
 270 STATE GOVERNMENT IN UNITED STATES 
 
 The lobby is the collective name for men who make it their 
 business to instruct members of the legislature. Not all lobbyists 
 are undesirable factors in the legislative process. Persons seek- 
 ing to influence the course of legislation may be animated by the 
 most disinterested motives. Their assistance may be invaluable 
 to conscientious legislators in search of reliable information about 
 pending measures. Chambers of commerce, boards of trade, em- 
 ployers' associations of various kinds, trade unions and labor 
 organizations of various kinds, farmers' alliances, and philan- 
 thropic societies, as well as business corporations and private 
 interests, send their representatives to the halls of legislation. 
 Lobbyists, however, do not ordinarily engage in this business 
 merely as a pastime. Their professional success depends in the 
 long run, no matter whom they may serve, upon the fate of the 
 measures they are engaged to promote or oppose. Their advan- 
 tages over the ordinary private member are very great. Being 
 either past members of the legislature, or at least experienced in 
 legislative work, they know the rules better than he. Being 
 picked men, they are either abler or more unscrupulous than he. 
 Being personally interested, they are far better informed on the 
 subject than he. Being supported in many cases by powerful 
 business organizations, they are not unlikely to be more influen- 
 tial with the legislative "organization." By collusion with the 
 leaders they may compel the ordinary members to support their 
 measures. Or they may compel the leaders to support their 
 measures by manipulation of the ordinary members. Even 
 without actual corruption, the lobby may easily exercise an un- 
 due influence upon the course of legislation. In fact, with or 
 without the use of corrupt practices, the lobby has exercised an 
 undue influence upon legislation, and the knowledge of this fact is 
 the second of the principal causes for the decline of the state legis- 
 latures in public esteem. 
 
 The third class of legislative work relates to the drafting of 
 bills. With respect to the former classes of legislative work the 
 failure of the legislatures is to a certain extent a matter of opinion. 
 With respect to the drafting of legislation their incompetence is 
 plainly recorded in the statute books. Crude, almost illiterate, 
 legislation is constantly coming to light through the proceedings 
 of the state courts ; laws which cannot be intended to mean what
 
 THE STATE LEGISLATURES 271 
 
 they say, and laws which mean nothing, are not uncommon. A 
 regulation found in the road law of one state that no one shall 
 operate a political steam roller or band wagon on the highway 
 doubtless was put there in jest, but there is nothing funny about 
 a provision, found hi the same state, that proprietors of hotels 
 shall keep the walls and floors of their rooms covered with 
 plaster. In Massachusetts, where things are supposed to be 
 done better, one legislature, in trying to prevent the display of 
 the red flag of anarchy upon the highway, succeeded in forbidding 
 Harvard students from carrying their college banner to the foot- 
 ball field. The most astonishing revelation is contained in a 
 recent address of the governor of Kansas. "Notwithstanding 
 the fact my executive clerk and the attorney-general did their 
 best to scrutinize all the bills, chapters 177 and 178, and chap- 
 ters 174 and 175, respectively, are duplicates. Chapter 75 of 
 the laws of 1911 was repealed three times. . . . Chapter 318 of 
 the laws of 1913 was immediately amended by chapter 319 of 
 the laws of 1913. Chapter 82 of the laws of 1911 was repealed 
 by section 7 of chapter 89 of the laws of 1913, and after being, 
 repealed was then amended and repealed by chapter 108 of the 
 laws of 1913." l "What is commonly called the technical part 
 of legislation is incomparably more difficult than what may be 
 called the ethical. In other words, it is far easier to conceive justly 
 what would be useful law than so to construct that same law 
 that it may accomplish the design of the lawgiver." 2 
 
 The fourth class of legislative work relates to the actual con- 
 sideration and enactment of legislation. This class of work is, 
 indeed, the prime function of legislative bodies. But the task 
 of considering proposed legislation has been largely delegated, as 
 the study of legislative procedure shows, to the committees. 
 The final enactment of laws, though formally executed by the 
 whole body of members, in many cases amounts to little more 
 than the registration of the decision previously reached by the 
 legislative "machine." Where the legislative "machine" is also 
 to a sufficient extent a partisan machine, as in New York, such 
 a practice is not wholly irresponsible. But where the legislative 
 
 1 Address of Governor Hodges before the House of Governors, Colorado Springs, 
 Aug. 26, 1913. 
 
 J Quoted from John Austin by Governor Hodges in the address cited above.
 
 272 STATE GOVERNMENT IN UNITED STATES 
 
 machine cannot be successfully identified with anything which 
 can be brought to account by the state electorate as a whole, as 
 is the case in most states possessing the normal type of procedure, 
 such a practice is highly irresponsible. It readily lends itself to 
 the control of legislation by the "invisible government." It is 
 not surprising, therefore, that much legislation has been enacted 
 by the state legislatures, which the people did not want and 
 which was not in their interest, and much legislation has been 
 defeated, which the people did want and which would have been 
 in their interest. The irresponsibility of the legislatures in the 
 consideration and enactment of legislation is the final cause of 
 their decline in public esteem. 1 
 
 FURTHER LIMITATION OF LEGISLATIVE POWERS 
 
 The decline of the state legislatures in public esteem, as has 
 been shown, began at the very beginning of the independence of 
 the states. It has proceeded ever since without any interruption. 
 The methods which have hitherto been employed to check that 
 decline 2 have failed to accomplish their purpose. The limitation 
 of legislative procedure by constitutional provisions has generally 
 been beneficial so far as it has gone. But it cannot go far enough 
 to afford an adequate remedy. The limitation of the forms of 
 legislative action must be supplemented by the chastening of its 
 spirit. The limitation of legislative powers has mitigated a num- 
 ber of specific evils. But such a remedy is necessarily imperfect. 
 It throws a burden upon the constitution-amending organs, the 
 conventions and electorates, which those organs were not designed 
 to bear. It cannot prevent the legislatures from all wrongdoing 
 without preventing them from doing anything at all. It is a 
 
 1 The evidence of recent dissatisfaction with the work of the state legislatures is 
 abundantly set forth in the writings of those political critics who have collectively 
 come to be known as " muckrakers." The classic period of " muckraking " extended 
 from 1904, the date of publication of Lincoln Steffens's The Shame of the Cities, 
 to 1910, when Speaker Cannon of the national House of Representatives was de- 
 posed from the chairmanship of the Committee on Rules. The work of the "muck- 
 rakers" was of very unequal value, and much of it was ephemeral. A well-bal- 
 anced, though unduly pessimistic, criticism of the state legislatures, antedating 
 the era of " muckraking," is E. L. Godkin's "The Decline of the State Legislatures," 
 in Unforeseen Tendencies in Democracy (N. Y., 
 
 2 See ante, ch. v.
 
 THE STATE LEGISLATURES 273 
 
 remedy that cures disease only by killing the patient. The object 
 of legislative reform should be, not to prevent the legislatures 
 from legislating badly, but to permit them to legislate well. 
 Upon this principle the limitation of the length of legislative 
 sessions is manifestly unsound. That extreme remedy has in 
 fact, as has been shown, merely aggravated the evil. Legisla- 
 tion is a necessary function of the state. There can be no better 
 organ of legislation in a populous state than a rightly organized 
 representative legislature. But the existing legislatures cannot 
 be expected to rehabilitate themselves so long as they remain 
 overburdened with non-legislative duties. The most promising 
 method of restoring the legislatures to their rightful place in 
 public esteem is to relieve them of such classes of work as are 
 not inseparable from the consideration and enactment of laws, 
 and permit them to concentrate their powers upon the perform- 
 ance of their proper duties. 
 
 The first three classes of legislative work described above are 
 necessary preliminaries to the work of legislation, but they are 
 not inseparable from it. The selection of the matters concerning 
 which there shall be legislation has already, to a slight extent, been 
 taken out of the hands of the legislatures. The process can be 
 further extended. Party initiative in state legislation may be 
 encouraged and party responsibility made more effective by the 
 separation of state from national party organization. Executive 
 initiative may be encouraged by a readjustment of relations 
 between executive and legislature. Executive responsibility may 
 be made more effective by a reorganization of the executive 
 branch of the state governments. These suggestions will be dis- 
 cussed more fully in later chapters. The collection of informa- 
 tion also has already to a slight extent been taken out of the 
 hands of the legislatures. This process likewise can be further 
 extended. The appointment of special investigating commissions 
 where special investigations are necessary, the assistance of the 
 permanent administrative officers in matters subject to their 
 jurisdiction, the support of legislative reference libraries l for 
 the supply of general information : these are means of procuring 
 information which are much less freely employed than would be 
 
 1 Charles McCarthy, The Wisconsin Idea, pp. 214-218. See also, F. C. Howe, 
 Wisconsin, an Experiment in Democracy, p. 47. 
 T
 
 274 STATE GOVERNMENT IN UNITED STATES 
 
 possible. Their more general use is greatly to be desired. The 
 technical part of legislation, the drafting of bills, has been im- 
 proved in some states by the employment of professional drafts- 
 men, usually in connection with the legislative reference libra- 
 ries. 1 This should be done in all states. As John Stuart Mill 
 wisely said: "There is hardly any kind of intellectual work 
 which so much needs to be done not only by experienced and 
 exercised minds, but by minds trained to the task through long 
 and laborious study." 2 Few members of the state legislatures 
 are adequately prepared to do this kind of work. None should 
 be needlessly burdened with it. 
 
 REGULATION OF THE LOBBY 
 
 The most difficult of the problems that must be solved, if the 
 legislatures are to regain their rightful prestige, is that created 
 by the pernicious activities of the lobby. Many just indictments 
 have been drawn of the insidious and corrupting influence of un- 
 scrupulous lobbyists. It is enough to cite one of the most 
 deliberate of these indictments. Said Governor Russell of 
 Massachusetts in a message to the legislature of that state : 
 "There exists hi this state, as in other states, an irresponsible 
 body known as the lobby, representing or preying upon special 
 interests, which professes and undertakes for hire to influence or 
 control legislation. Its work is wholly distinct and different 
 from advocacy of one's cause in person, or by counsel or agent, 
 which is the constitutional right of every one. It seeks often to 
 control nominations and elections, and to subject the legislator, 
 directly or indirectly, to secret and improper influences. It 
 throws suspicion upon the honest and temptation in the way of 
 the dishonest. Professing greater power than it has, it frequently 
 extorts money as the price of its silence or unnecessary assistance. 
 It has initiated legislation, attacking the interests of its clients 
 in order to be hired to defend those interests. It has caused the 
 expenditure of large sums of money to obtain or defeat legisla- 
 tion. It cares little for the merits of a measure or the means 
 
 1 See Nebraska Legislative Reference Bureau, Bulletin No. 4, Reform of Legis~ 
 lative Procedure and Budget in Nebraska, pp. 24-26. 
 1 J. S. Mill, Representative Government, ch. v.
 
 THE STATE LEGISLATURES 275 
 
 employed to make it successful. In my judgment improper 
 measures have, by its influence, been made law, against the 
 public interest, and just measures have been defeated. These 
 criticisms have not been based upon rumor or conjecture, but 
 upon facts reported after most thorough investigation by your 
 predecessors, who denounced the evil hi unsparing terms and 
 diligently sought a remedy." 1 
 
 It is far easier, as Governor Russell candidly confessed, to 
 state the evil than to suggest the remedy. " Clearly it is impos- 
 sible and improper to prevent a constituent or any other person 
 from having the freest access to a legislator. This constitutional 
 right guaranteed to the people gives opportunity to the lobby to 
 do its work. Prevention by non-intercourse is therefore impos- 
 sible." 2 Prevention by publicity is constitutionally possible. 
 Indeed provision had already (1890) been made in Massachu- 
 setts for the publication of the names of lobbyists and the sums 
 of money paid to them. This act for the regulation of the lobby 
 was based upon a distinction between different kinds of lobbyists. 
 Lobbyists employed merely to appear before legislative com- 
 mittees and make oral arguments were denominated legislative 
 counsel. Lobbyists employed not only to make oral arguments 
 before committees but also to interview individual legislators 
 were denominated legislative agents. Legislative counsel and 
 agents, before doing any lobbying, were required to register their 
 names on separate lists with the sergeant-at-arms, stating the 
 names of their employers and the titles of the bills in connection 
 with which they were employed. Within thirty days after the 
 close of the session legislative counsel and agents were required 
 to file separate statements, showing the total sums of money 
 
 1 Message to Legislature, January, 1891. Reprinted in P. S. Reinsch, Readings 
 on American Slate Government, p. 79. See also "Report of the Committee to Investi- 
 gate Methods used for and against Legislation concerning Elevated Railroads and 
 to inquire into the Conduct of Members of the House in connection therewith, with 
 the Evidence taken at the Hearings of the Committee and Arguments of Counsel." 
 Massachusetts Legislative Documents, House No. 585, 1890. This committee recom- 
 mended the enactment of a law for the regulation of the lobby, which was done. 
 This report can be matched by similar reports and findings in every part of the 
 Union. The best known of these, and the most instructive, is the report of the 
 Hughes investigation into the political expenditures of life insurance companies 
 in New York, 1905. 
 
 'Ibid.
 
 276 STATE GOVERNMENT IN UNITED STATES 
 
 received as compensation for their services. Their employers 
 were likewise required to report the sums of money paid to 
 lobbyists for the purpose of influencing legislation. Governor 
 Russell believed that good would come from this act, if fairly 
 and thoroughly enforced, but that it fell short of being a sufficient 
 remedy. It would make public the names of hired lobbyists, 
 but not in the case of "agents" the nature of their activities. 
 It would make public the expenses incurred, but too late to 
 affect the legislation in connection with which they were in- 
 curred. 
 
 Experience has shown that Governor Russell's opinion of the 
 Massachusetts act for the regulation of the lobby was sound. 
 The mere registration of the names of lobbyists amounts in itself 
 to little. It enables the press to know more readily who are 
 employed to influence legislation, and by whom. The legislators 
 themselves are likely to know this anyway in every case in which 
 the agent would be willing voluntarily to reveal the identity of his 
 principal. Every year after the close of the session, too late, as 
 Governor Russell pointed out, to affect legislation, the public is 
 furnished with a quantity of obsolete information concerning the 
 revenues of the members of the lobby. But no more is known 
 than before about the use to which the lobbyists devoted their 
 revenues. The means of checking up untruthful returns are in- 
 adequate, and in general the enforcement of the act leaves much 
 to be desired. Like the early legislation designed to prevent 
 corrupt practices at elections by publicity of campaign funds, 
 the Massachusetts law to regulate the lobby is a good deal of a 
 sham. Governor Russell suggested that it be strengthened by 
 empowering some public officer, before a measure finally becomes 
 law, to demand under oath a full and detailed statement con- 
 cerning the expenditure of money by lobbyists and their em- 
 ployers ; but this has never been done. The Massachusetts plan 
 for the regulation of the lobby has been adopted in Maryland 
 and Wisconsin, 1 but in general the regulation of corrupt practices 
 in connection with legislation is left mainly to the courts. 
 
 The courts have shown themselves unable to cope with the 
 situation. They have recognized that it is the right of every 
 
 1 See M. A. Schaffner, Lobbying (Comparative Legislation Bulletin, No. 2, Legis- 
 lative Reference Department, Wisconsin Free Library commission).
 
 THE STATE LEGISLATURES 277 
 
 citizen who is interested in any proposed legislation to employ a 
 paid agent to collect evidence and facts, to draft his bill and 
 explain it to any committee or to any member thereof or of the 
 legislature fairly and openly ; and that lobbyists' services which 
 are intended to reach only the reason of those sought to be in- 
 fluenced are not improper, provided that the lobbyists' agency is 
 disclosed. Contracts for secret lobbying and personal solicita- 
 tion have generally been held to be illegal, but the evils of lobby- 
 ing are little affected by making certain lobby contracts illegal 
 and void. Such contracts become subjects of litigation only 
 when the system of lobbying is imperfectly organized. The real 
 menace arises when principal and agent work harmoniously 
 together against the public interests for private ends. 1 Former 
 Governor LaFollette of Wisconsin is the most conspicuous 
 among a group of reformers who urged more drastic legislation 
 against the lobby. 2 Governor LaFollette's suggestion was that 
 hired lobbyists should be forbidden to attempt personally and 
 directly to influence any member of the legislature to vote for 
 or against any measure affecting the interests represented by 
 such lobbyist. He believed that "every legitimate argument 
 which any lobbyist has to offer, and which any legislator ought 
 to hear, can be presented before committees, before the legisla- 
 tors as a body, through the press, from the public platform, and 
 through printed briefs and arguments placed in the hands of all 
 members and accessible to the public." To permit more than 
 that, he urged, gives an undue advantage to the interests that 
 can afford to maintain a permanent lobby throughout the session, 
 to say nothing of the temptation to corruption inseparable from 
 any system which permits personal solicitation of legislators by 
 lobbyists. LaFollette's suggestions, however, were not adopted 
 in his own state. 3 
 
 1 See Marshall vs. Baltimore and Ohio Railroad, 16 Howard, 314, and Trist vs. 
 Child, 21 Wall, 441. But cf. Foltz vs. Cogswell, 86 Cal., 542, where "honest per- 
 sonal solicitation" is held not to be illegal. 
 
 a See his Annual Message to the Legislature of 1905. A special message of the 
 same governor, dealing more fully with the same subject, is reprinted in Reinsch's 
 Readings on American State Government, pp. 81-84. 
 
 * For detailed accounts of the working of the lobby system, see Lynn Haines, 
 The Minnesota Legislature of IQOQ, and The Minnesota Legislature of IQII, and 
 F. Hichborn, Story of the Session of the California Legislature of 1909, and the same, 
 1911, and 1913.
 
 278 STATE GOVERNMENT IN UNITED STATES 
 
 OUTLOOK FOR LEGISLATIVE REFORM 
 
 The legislature cannot reform the lobby, unless it first reforms 
 itself. Doubtless the state legislatures are now on the whole 
 somewhat less venal than a generation ago. Observers who have 
 been in the best position to know say so. 1 Certainly not a little 
 has been done by the legislatures in recent years tending to 
 correct some of the worst abuses. The adoption of laws or rules 
 forbidding members of the legislature to accept fees for their 
 advocacy of measures before legislative committees has corrected 
 a gross abuse in many states. The adoption of anti-pass laws, 
 designed to prevent the railroads from furnishing legislators 
 with free transportation, has struck a heavy blow at a principal 
 source of the undue influence of the railroad lobby. 2 The better 
 regulation of nominations and elections has tended to make 
 more difficult one of the methods employed by lobbyists for in- 
 fluencing the action of legislators. The establishment of public 
 service commissions, with jurisdiction over the rates and services 
 of railroads and public utilities, has mitigated another evil. It 
 has not only relieved the legislatures of the responsibility for the 
 details of regulation. It has also, so far as such corporations 
 are concerned, deprived dishonest legislators of any reasonable 
 pretext for the introduction of "strike" legislation, that is, of 
 bills not intended to be passed but merely to serve as a means 
 of extortion from the corporations. The further development of 
 reliable administrative agencies for the regulation of corporate 
 affairs, where the regulation of technical details is necessary, will 
 do much to diminish the opportunity for corruption in legislative 
 bodies. 
 
 No scheme for the restoration of legislative prestige is worth 
 much which does not recognize that the greatest accomplice of 
 legislative corruption is legislative inefficiency. Much of the 
 work now attempted by the state legislatures is work for which 
 
 1 Perhaps as good an opinion as any on this matter is that of Theodore Roosevelt. 
 See his Autobiography, pp. 76 ff. 
 
 2 For an interesting revelation of another side of the evil of free passes, see a 
 letter from an official of the Pennsylvania Railroad to the president of the New York 
 State Constitutional Convention of 1894, a dozen years before the enactment of the 
 anti-pass laws, reprinted in C. A. Beard, Readings in American Government and Poli- 
 tics, pp. 478-481.
 
 THE STATE LEGISLATURES 279 
 
 large representative bodies are not fitted. No inconsiderable 
 portion of the output of legislation, so-called, consists of meas- 
 ures of an administrative or quasi-judicial character. Practically 
 all private and local legislation is of this character. Fully half 
 the time of the legislative committees is devoted to the considera- 
 tion of such measures. In states like Massachusetts, where there 
 are comparatively few restrictions upon legislative powers and 
 procedure, hundreds of bills are introduced every year on such 
 petty matters as, for example, whether John Smith, having been 
 discharged for cause, shall be reinstated in the Boston Fire 
 Department. In states like New York, where legislative powers 
 and procedure are more strictly limited by the constitution, the 
 situation is scarcely less discreditable. Such constitutional limi- 
 tations as those providing that only one subject shall be con- 
 tained in any one bill, and that that subject shall be clearly 
 expressed in the title, tend to diminish the opportunity for legis- 
 lative corruption. But they do little to increase legislative effi- 
 ciency. Such constitutional limitations as those providing that 
 legislatures shall not legislate at all on certain subjects make 
 more work for constitutional conventions and state electorates. 
 But they do not help the legislatures to act more wisely upon 
 those matters which are left to legislative discretion. The most 
 promising plan for the further improvement of the character of 
 legislation is the adoption of such further limitations on legisla- 
 tive powers and procedure as, without restricting the scope of 
 legislative action, will permit the more systematic use of ad- 
 ministrative and quasi- judicial methods and machinery in the 
 process of legislation.
 
 CHAPTER X 
 THE STATE EXECUTIVES 
 
 THE progress of democracy during the first half of the nine- 
 teenth century, as has been shown, had two principal effects 
 upon the development of the state executives. The first was 
 the establishment of executive independence of the legislature. 
 The second was the decentralization and disintegration of the 
 executive. The direct popular election of the principal executive 
 officers made them more independent of the legislatures than 
 they ever could have been under the original system of legislative 
 election. The abolition of executive councils chosen from and 
 by the legislatures further secured the independence of the 
 executive. The direct popular election of the principal executive 
 officers, however, at the same time that it rendered them more 
 independent of the legislatures, also rendered them more in- 
 dependent of one another. The governor, secretary of state, 
 treasurer, attorney-general, and other central officers became 
 supreme, each in his own department. They became severally 
 and equally responsible to the people. In a word, the executive 
 branch of the state governments became what is technically 
 known as a plural executive. The direct popular election of 
 subordinate and local administrative officials produced a similar 
 effect. The sheriff, county clerk, county treasurer, prosecuting 
 attorney, and other similar officials became supreme, each in 
 his own department. They became severally and equally re- 
 sponsible to the people. Thus the state executives were de- 
 centralized as well as disintegrated. By the middle of the 
 nineteenth century this process had gone as far as it could in 
 most states. There remained few important administrative 
 offices, either central or local, which were not filled by popular 
 election. 
 
 280
 
 THE STATE EXECUTIVES 281 
 
 THE DISORGANIZATION OF ADMINISTRATION 
 
 The effect of executive decentralization and disintegration 
 during the first half of the nineteenth century was to make the 
 governor the chief executive in name only. The strictly execu- 
 tive powers originally conferred upon him, as has been shown, 
 were not great. He could command the militia. Beyond that, 
 he could do nothing without calling a meeting of his council. 
 With the advice and consent of his council, he could appoint 
 all officials not elected by the legislature or by the people, and 
 in general could order and direct the affairs of state according 
 to the constitution and laws. His principal duty was to take 
 care that the laws were properly enforced. To this end he could 
 direct his attorney-general to prosecute offenders. In case of 
 need he could also call out the militia. But his main reliance 
 for the enforcement of law was placed in the sheriffs and justices 
 of the peace. By the appointment of vigilant and energetic 
 sheriffs and of prudent and independent justices of the peace 
 he could secure a spirited and efficient administration. Now the 
 developments of the first half of the nineteenth century left 
 him practically no means of enforcing the laws except by calling 
 out the militia. This was too drastic a weapon for ordinary 
 use. The direct election of subordinate and local administrative 
 officials deprived the governor of his control over the executive 
 branch of the government. The attorney-general, and especially 
 the sheriffs and local prosecutors, became the real executives, 
 so far as responsibility for the enforcement of the laws was con- 
 cerned. The governor had ceased to be much more than a figure- 
 head in the conduct of state administration. 
 
 The effect of executive independence of the legislature was 
 to increase the importance of the legislative functions of the 
 executive. This was inevitable under the circumstances. The 
 direct election of the governor by the people made him the most 
 conspicuous representative of the whole people. The develop- 
 ment of the party system made him the most important party 
 leader holding office in the state government. The develop- 
 ment of the veto power made him a member of the law-making 
 organ of the state. The disorganization of the executive branch 
 of state government left him no effective means of controlling
 
 282 STATE GOVERNMENT IN UNITED STATES 
 
 his nominal subordinates except through the enactment of 
 special legislation. Executive orders had to be issued in the 
 form of statutes. Since the people were prone to hold the 
 governor responsible for the enforcement of law, despite the 
 weakness of his position as an administrative officer, he was 
 inevitably driven to employ his legislative authority for purely 
 administrative purposes. Since the rank and file of the party 
 were prone to hold the governor responsible for the redemption 
 of the promises in the party platform, despite the nominal 
 separation between legislative and executive powers, he was 
 inevitably driven to employ his legislative authority also for 
 purely legislative purposes. In states where the veto power 
 reached its fullest development, a governor gifted with the quali- 
 ties of leadership was not only a member, but the most powerful 
 single member, of the legislative branch of the government. 
 In short, the office of governor was removed from the field of 
 administration to the field of legislation. The governor was 
 transformed from a chief executive into a chief legislator of the 
 state. 
 
 The transformation of the governor into a legislator left 
 the political party as the principal bond of union between the 
 different members of the executive branch of the state govern- 
 ments. This bond was totally inadequate for the purpose of 
 enforcing a systematic and efficient conduct of affairs. Candi- 
 dates for state and local administrative offices on the same 
 party ticket were bound to make common cause with one another 
 during the campaign. After election, however, their community 
 of interest centered around the problem of reelection rather 
 than around the work of public administration. Party ties 
 had their place in purely political affairs, but except for the 
 governor the administrative officers had no legitimate connec- 
 tion with affairs of that nature. State or county administrative 
 officers might form rings for their mutual political benefit, but 
 they rarely formed rings for the benefit of the public. Between 
 state and local officials, party ties as such were of even less use 
 in promoting systematic and efficient administrative action. 
 The local officials were primarily responsible to the party only 
 within their own localities. Under such circumstances the 
 party could serve as an instrument of administrative organiza-
 
 THE STATE EXECUTIVES 283 
 
 tion only in so far as there was an extra-legal party organization 
 to which partisans in public office could be held responsible. 
 The leaders of the party organizations, the "bosses," whether 
 or not also the occupants of the principal executive offices, were 
 the men who could exert most influence upon the course of 
 administration. But such influences, as has been pointed out, 
 were more commonly exerted for private than for public ends. 
 In general, the state or local official who was elected by the 
 people was left free to determine for himself how the duties of 
 his office should be performed. The disorganization of state 
 administration was in striking contrast to the centralization and 
 integration of party management. 
 
 The principal force making for unity and coherence in the 
 conduct of state administration was the judiciary. As early as 
 1830, De Tocqueville with his usual sagacity detected the im- 
 portance of the judiciary in administrative affairs. Noting 
 that " there is no point which serves as a center to the radii of 
 the administration," he inquired: "How then can the govern- 
 ment be conducted on a uniform plan ? and how is the compliance 
 of the counties and their magistrates, or the townships and their 
 officers, enforced?" His answer was: "The courts of justice 
 are the only possible medium between the central power and the 
 administrative bodies ; they alone can compel the elected func- 
 tionary to obey, without violating the rights of the elector. The 
 extension of the judicial power in the political world ought, 
 therefore, to be in the exact ratio of the extension of the elective 
 power : if these two institutions do not go hand in hand the 
 state must fall into anarchy or into servitude." l The courts 
 of justice, however, could only command the administrative 
 officer to perform acts required of him by law, in cases of negli- 
 gence on his part, or enjoin him from performing acts not au- 
 thorized by law, in cases of usurpation of power on his part. 
 They could not compel him to do with energy and zeal what he 
 was inclined to do listlessly and with indifference. They could 
 not compel him to act at all in cases where action or inaction 
 was a matter of administrative discretion. The courts themselves 
 could not act upon their own motion, but only upon the suit of a 
 citizen or another administrative officer, or upon presentment 
 
 1 De Tocqueville, Democracy in America, i, ch. v.
 
 284 STATE GOVERNMENT IN UNITED STATES 
 
 or indictment by a grand jury. The courts could at most pro- 
 duce compliance by particular administrative officers with the 
 letter of the law governing their particular offices. They could 
 not produce spirited and efficient cooperation between the various 
 members of the administrative branch in general. By the 
 middle of the century, after the adoption of the direct popular 
 election of judges, they themselves had become responsible to 
 the same electorates as the administrative officials. The ex- 
 tension of the judicial power in the political world, as De Tocque- 
 ville would say, was no longer in the same ratio as the extension 
 of the elective power. 
 
 It must not be supposed that the results of this administrative 
 anarchy were very injurious to the public. Under the conditions 
 that then existed they were not. In the middle of the nineteenth 
 century there was little need for an elaborately organized ad- 
 ministrative system under the direct control of the state govern- 
 ments. For the most part the federal government had under- 
 taken the services which could not well be performed by the 
 local authorities in towns and counties. It was an individualistic 
 age. Every man was taught to look to the courts for the pro- 
 tection of his personal rights, and to the legislatures for the 
 redress of general grievances. Little was expected of the ad- 
 ministrative branch of the state government, and that little 
 was done tolerably well. Politicians able to procure their 
 nomination and election to state administrative offices were 
 necessarily men of some initiative and resourcefulness. Men 
 who lacked those qualities were not likely to shoulder their way 
 to the front. In addition to initiative and resourcefulness, 
 common honesty was the principal qualification for holding 
 such offices. The burden of administration fell upon the local 
 authorities, and so long as the requirements of local adminis- 
 tration were not too technical, they were capable of giving 
 satisfactory service. As De Tocqueville very justly observed, 
 the administrative effects of the decentralized system of adminis- 
 tration were of less consequence than the political. 1 Popular 
 elections and rotation in office gave many citizens an oppor- 
 tunity to participate in the actual conduct of affairs. If their 
 work was not done so well as it might have been by professional 
 
 1 De Tocqueville, Democracy in America, i, ch. v.
 
 THE STATE EXECUTIVES 285 
 
 administrators, at least it was their own, and they loved it. 
 The people had an affection for such a system, which they could 
 not have felt so strongly for one more efficient but imposed 
 from above. That affection was diffused over all the processes 
 of government; the citizen was warmly attached to the state, 
 and proud of it as a bigger and better self. 
 
 TENDENCY TOWARDS ADMINISTRATIVE REORGANIZATION 
 
 Before the process of democratizing and thus disorganizing 
 the executive branch of the state governments had been com- 
 pleted, a counter tendency towards administrative reorganization 
 began to emerge. The first cause of this new tendency was the 
 impulse to state enterprise resulting from the success of the 
 Erie Canal and the refusal of the national government, after 
 the accession of the Jacksonian Democracy to power, to under- 
 take internal improvements at national expense. A more profit- 
 able field for state enterprise in most states was presently found 
 in the development of free public education, and later of the 
 higher education. Both DeWitt Clinton and Horace Mann 
 inspired many imitators. With the coming of the railroad the 
 policy of internal improvements at state expense was generally 
 abandoned, but the policy of state enterprise in the field of 
 education has become more firmly established with the passage 
 of the years. A second cause was the growth of new forms of 
 industry and of industrial organization requiring a radical ex- 
 tension of the police power of the state. The development of 
 banking and insurance, of railroading and the supply of monop- 
 olistic public services of various kinds, compelled the individual 
 to look to the state for active assistance by special administrative 
 officials in order to prevent irreparable frauds and oppressions. 
 The local officials could not, and the courts did not, afford the 
 protection that was needed. The growth of the factory system 
 of industry and the development of a permanent wage-earning 
 class of large dimensions has forced a corresponding growth of 
 a new social conscience, and the development of new instru- 
 mentalities for the maintenance of social and industrial justice. 
 The advancement of science brought a new knowledge of methods 
 of conserving human and natural resources, and created a de-
 
 286 STATE GOVERNMENT IN UNITED STATES 
 
 mand for the services of experts in public health administration, 
 in the supervision of industry, and in the promotion of agricul- 
 ture. The local governments could not afford to employ such 
 experts. The organization of expert service by the state be- 
 came necessary and proper. Above all, the progress of humanity 
 brought a demand for better care for defectives, dependents, and 
 delinquents. More ample provision and more specialized treat- 
 ment was demanded for the sick and the insane, for the aged and 
 the destitute, for the petty offenders and the criminals. The 
 state has assumed to an ever-growing extent the support of 
 charities, hospitals, and corrections. In a word, " the old order 
 changeth." 1 A new age dawns. The people of the states feel 
 new responsibilities and demand new instrumentalities for their 
 discharge. 
 
 The most conspicuous sign of the new age has been the in- 
 crease in the number of separate state administrative agencies. 
 In Massachusetts, one of the first states in which the tendency 
 towards the development of new administrative agencies ap- 
 peared, the reorganization of state administration began in 
 1837 with the establishment -of the State Board of Education. 
 The office of Bank Commissioner was established in 1838, the 
 State Board of Agriculture in 1853, the office of Insurance Com- 
 missioner in 1855, the State Board of Charity in 1863, the office 
 of Tax Commissioner in 1865, the Commission on Fisheries and 
 Game in 1866, the State Board of Health, the Railroad Com- 
 mission, and the Bureau of Labor Statistics in 1869, and the 
 office of Corporation Commissioner in 1870. Since then the 
 creation of new offices, boards, and commissions has proceeded 
 apace. At present there are more than one hundred separate 
 administrative agencies of the central government charged 
 with the direct enforcement of law or with the supervision of 
 the activities of local administrative authorities. 2 In Illinois, 
 also, there are more than one hundred separate state offices, 
 
 1 See the very interesting and suggestive book, bearing that title, by WilMam 
 Allen White (New York, 1909). For a more complete and scientific statement, see 
 Herbert Croly, The Promise of American Life (New York, 1909). See also Walter 
 E. Weyl, The New Democracy (New York, 1912). 
 
 2 See Report of the Massachusetts Commission on Economy and Efficiency on 
 the Functions, Organization, and Administration of the Departments of the Execu- 
 tive Branch of the State Government, 1914.
 
 THE STATE EXECUTIVES 287 
 
 boards, and commissions, created by statute, in addition to 
 those created by the constitution. Less than a fourth of those 
 now in existence were created before 1870, and more than a 
 third have been created since igoo. 1 In New York there were 
 in 1915 no less than 152 separate state administrative agencies. 2 
 There are no other states in which the growth in the activities 
 of the central government has produced so many separate ad- 
 ministrative agencies as in New York. But there is no state 
 where the organization of the administrative branch of the 
 government retains its early nineteenth-century simplicity. 
 
 A less conspicuous but more important sign of the new age 
 has been the increase in the powers of the state administrative 
 agencies. This tendency will appear more clearly upon ex- 
 amination of the present relations between the central and the 
 local administrative authorities in the principal departments 
 of state administration. 
 
 THE MILITIA 
 
 At the time of the Revolution the most important depart- 
 ment of state administration was the military. All the original 
 state constitutions made some provision for the organization 
 and control of the militia. In the Massachusetts constitution 
 military administration was regulated with special care. The 
 governor was declared to be commander-in-chief of the army 
 and navy and of all the military forces of the state, by sea and 
 land, and was entrusted with all the powers of a captain-general 
 and commander-in-chief and of an admiral, subject only to the 
 constitution of the state and the law of the land. After the 
 Revolution, however, the state maintained no military forces 
 except the militia, and the actual power of the governor over 
 the militia was strictly limited by the constitutional provisions 
 governing its organization. Militia captains and subalterns 
 were elected by the "train-band and alarm list" of their re- 
 spective companies, regimental field-officers were elected by 
 
 1 See Report of the Illinois Efficiency and Economy Committee, 1915, p. 7. 
 
 7 See Report prepared for the Constitutional Convention Commission by the New 
 York State Department of Efficiency and Economy and the New York Bureau of 
 Municipal Research on the Government of the State of New York, 1915, p. vii.
 
 288 STATE GOVERNMENT IN UNITED STATES 
 
 the captains and subalterns, and brigadiers by the field-officers. 
 The major-generals were appointed by the legislature, the two 
 houses voting separately. No militia officer could be removed 
 except by address of both houses to the governor or by court- 
 martial. Thus the militia organization was completely decen- 
 tralized, and the authority of the governor was not much more 
 than nominal. A similar form of organization was originally 
 adopted in most of the states. By the Federal Constitution of 
 1787 Congress was authorized to employ the militia under cer- 
 tain circumstances as a national police force, and to that end 
 was empowered to provide for its organization, equipment, and 
 discipline, reserving to the states the appointment of officers 
 and the training of the men according to the discipline pro- 
 vided by Congress. Despite the use made by Congress of 
 these powers, notably by the laws of 1792 and 1903, the militia 
 has come to be more and more what might be expected from 
 the form of its organization, a social rather than a military 
 body. 
 
 The militia is consequently a very ineffective instrument of 
 the police power of the state and of the nation. The federal 
 government depends for its first line of defense upon the regular 
 standing army. Until 1916 it depended for the second line 
 upon volunteers mustered directly into the national service. 
 The militia, or national guard, as it had come to be called, was 
 regarded rather as a ready source of volunteers than as an 
 integral part of the national forces. The state governments 
 continue to rely upon the militia as a special police for extraor- 
 dinary occasions. This policy, however, has tended to im- 
 pair its value as a military force without providing the states 
 with an effective state police. The national guard, to use the 
 modern name, is too clumsy an organization to be of any value 
 in the performance of minor police duties, such as the appre- 
 hension of ordinary criminals. It is too unprofessional in char- 
 acter to give satisfaction in the performance of major police 
 duties, such as the preservation of order in the presence of 
 serious labor disputes. Its use in connection with labor dis- 
 putes has tended to discredit every form of military service 
 among wage earners, and its incapacity to deal with real crises 
 has discredited it with practical military men. The need of
 
 THE STATE EXECUTIVES 289 
 
 some more specialized central police force has been felt in not 
 a few of the states, but as yet little has been done to meet that 
 need. Pennsylvania has established the most notable state 
 force for general police duty, the so-called state constabulary. 
 It was organized in 1906 on the general model of the Canadian 
 northwestern mounted police, and consisted of four troops of 
 fifty men each. Massachusetts established a state detective 
 force in 1875, intended to perform certain special police func- 
 tions. This force was reorganized in 1879 as the district police, 
 and employed mainly for the purpose of factory and building 
 inspection. In general the development of state police forces 
 has taken a similar form. The governor has no responsibility 
 for the maintenance of order except in extraordinary emergencies, 
 and possesses no adequate means of dealing with such emergen- 
 cies. The preservation of the peace, now as in the beginning, 
 is left mainly to the local sheriffs and constables in the rural 
 districts, and to the municipal police in the cities. 1 
 
 EDUCATION 
 
 At the present time the most important department of state 
 administration is that of education. In the beginning there 
 was little provision for popular education at public expense. 
 The states in which colleges existed at the time of the Revolution 
 gave them little aid, and even less attention was paid by the 
 state governments to local common schools. Outside of New 
 England there were few localities which maintained common 
 schools. Nowhere was attendance compulsory, nor tuition 
 free except for those who could not afford to pay. Since that 
 tune free common school systems have been established in all 
 states, though not everywhere in such a manner as to provide 
 an elementary education for all children. In most states, how- 
 
 1 The constitutions of the states still make the traditional provision for the or- 
 ganization of the militia. In general it is provided that all able-bodied males, or 
 male citizens, or white male citizens, between the ages of eighteen and forty-five, 
 except those classes of persons expressly exempted, shall be enrolled in the militia 
 and perform such military duty as may be required by law. In practice the only 
 enrolment is that made by the census enumerators, and the bulk of the men liable 
 to military duty are unorganized. Down to igr6 the organized militia were re- 
 cruited by voluntary enlistment and in most states the enlistments were few. 
 u
 
 290 STATE GOVERNMENT IN UNITED STATES 
 
 ever, attendance at the pubb'c schools or at private schools of 
 equivalent grade is compulsory. The further development of 
 the state systems of free public education has been brought 
 about by the establishment of local secondary schools, of even- 
 ing and continuation schools for the further general education 
 of young wage earners, of trade and industrial schools for special 
 training in the arts and crafts, of state normal schools for the 
 better training of common school teachers, of state universities, 
 agricultural, mechanical, and professional (except theological) 
 schools for the higher education, of special schools for the train- 
 ing of defectives and delinquents, and of state libraries and 
 traveling institutes for the further education of adults. This 
 development has by no means been uniform throughout the 
 states. The differences in state common school systems are 
 clearly reflected in the rates of illiteracy. The rate for South 
 Carolina is fifteen times the rate for Iowa. The differences in 
 the secondary, higher, and more specialized school systems are 
 equally great, though not so easily measured. Almost every- 
 where, however, the state governments now spend more money 
 on education than on any other single branch of state adminis- 
 tration. 
 
 The growth of the educational systems of the states has been 
 marked by a progressive shifting of control from local to central 
 educational authorities. In the beginning there were no special 
 educational authorities except the local school boards and com- 
 mittees. At present practically all the states have an independ- 
 ent department of education under an executive head, known 
 usually as the state superintendent of public instruction. Most 
 of them have also a state board of education with a general 
 educational jurisdiction, and many of them have special boards 
 for the control of special institutions, such as normal schools, 
 training schools of various kinds, and state universities. The 
 division of control of educational matters between the central 
 and the local authorities varies greatly. There are still a few 
 states in which the control is vested almost exclusively in the 
 local authorities. In such states the central authorities have 
 little more than advisory powers. There are also a few states 
 in which the local authorities are little more than the agents 
 of the central authorities. In such states the central authorities
 
 THE STATE EXECUTIVES 291 
 
 may prescribe the curriculum in the local schools, select the 
 textbooks, examine teachers for certification as to their quali- 
 fications, and exercise extensive powers of appointment and 
 removal of county superintendents and other local authorities. 
 They may administer the state school lands, apportion the 
 state school funds, and in some cases withhold grants from 
 local authorities which fail to reach a prescribed standard of 
 efficiency. They may appoint inspectors of local schools, 
 regulate the construction and maintenance of school buildings, 
 especially in such matters as ventilation and sanitation, and 
 operate the educational institutions directly under the control 
 of the state. Most of the states fall between these two ex- 
 tremes. The centralization of educational administration has 
 proceeded more rapidly in some states than in others, but every- 
 where the tendency is the same. 
 
 The centralization of educational administration has increased 
 the number and powers of the state educational authorities, but 
 has not yet brought about the general adoption of a uniform 
 plan of organization. The state superintendent of public in- 
 struction, or an officer of the same character under another 
 title, exists in forty-seven states. In most states he is elected 
 by the people, but in seven he is appointed by the governor 
 and senate, and in four he is appointed by the state board of 
 education. The terms, salaries, and powers of these officers 
 vary greatly. In a few states, of which New York is the best 
 example, he enjoys security of tenure, an attractive salary, and 
 broad powers. In a few states, of which Massachusetts is the 
 best example, his powers are less, but his actual influence has 
 been very great. In most states he has relatively little power, 
 and not much influence. State boards of education exist in 
 forty states. They are organized in various ways, and differ 
 in power and influence no less widely than the superintendents 
 of public instruction. Some have few members, some have 
 many. Some are composed entirely of state officials, serving 
 ex qfficio; some are composed of members elected by the voters 
 of the state at large or by districts ; some are composed of 
 members elected by the legislature; some are composed of 
 members appointed by the governor ; some, of members ob- 
 tained by a combination of these and other ways. In some
 
 292 STATE GOVERNMENT IN UNITED STATES 
 
 states their powers are very small. In others they may have 
 charge of state school funds, elect a secretary or commissioner 
 who acts as state superintendent, appoint county superintendents 
 and school boards, select textbooks, and prescribe curricula. 
 In several states they manage the normal schools, besides per- 
 forming all the preceding functions, and in a few, of which 
 Oklahoma is the best example, they act as boards of control 
 for all state educational institutions. A larger number of 
 states divide these functions among several independent bodies, 
 creating separate boards for the adoption of textbooks, the 
 administration of school lands or funds, the management of 
 special schools, the examination of teachers, etc., hi so far as 
 these matters are not reserved to the local authorities. There 
 is no common rule for the division of power between the differ- 
 ent central educational authorities, and in general no systematic 
 arrangements for effective cooperation between them. 
 
 CHARITIES AND CORRECTIONS 
 
 The second department of state administration in order of 
 present importance is that which relates to the care of delin- 
 quents, defectives, and dependents. At the Revolution prisoners 
 of all kinds, hardened criminals, petty offenders, persons awaiting 
 trial, without distinction of age, sex, or other condition, were 
 placed in the custody of the sheriff, and kept by him in such 
 manner as he should see fit, commonly at a charge to the county 
 of so much per capita, like livestock in a pound. Defectives 
 were not accepted as public charges unless they had committed 
 some offense or were incapable of self-support. In the former 
 case they were treated like other lawbreakers; in the latter, 
 they were dealt with like ordinary paupers, unless supported 
 by their relatives. In general, the deaf and dumb, the blind, 
 the feeble-minded, and the insane were maintained by their 
 nearest relatives in their homes. Paupers were a recognized 
 charge upon the locality in which they had their residence. 
 Temporary destitution might be relieved by special aid ("out- 
 door relief") granted under the supervision of the local over- 
 seers of the poor. Permanent paupers were entitled to main- 
 tenance at public expense in almshouses. "Indoor relief,"
 
 THE STATE EXECUTIVES 293 
 
 however, in an age which tolerated imprisonment for debt, 
 was likely to be even less desirable, from the standpoint of the 
 victim, than imprisonment. 
 
 A deeper knowledge of the nature and causes of poverty and 
 crime, and a broadening sympathy with the pauper and the 
 transgressor, has brought about a great change in the methods 
 of dealing with them. In the first half -century after the Revolu- 
 tion the dawn of a more scientific and a more humane age was 
 ushered in by the work which in prison reform is associated 
 with the names of the English reformers, John Howard and 
 Elizabeth Fry. In America imprisonment for debt was abolished, 
 jails and prisons were made more decent, and the establishment 
 of penitentiaries and reformatories, as the names indicate, marked 
 the adoption of more enlightened views concerning the purposes 
 of punishment. In the treatment of poverty there came a 
 conviction that society should undertake more than the mere 
 relief of destitution. The duty of preventing poverty, so far 
 as possible, began to be recognized. In America during the 
 first half of the nineteenth century the most conspicuous ex- 
 pression of this growing conviction was the founding of Wash- 
 ingtonian Societies for the promotion of temperance in the use 
 of alcoholic liquors. This movement culminated in 1850 in the 
 so-called "Maine idea," the idea of statewide prohibition by 
 law. 
 
 The reformation of the original system of charities and cor- 
 rections has been based upon two fundamental principles : the 
 break-up of the old poor law and the old penal system, and 
 the provision of specialized treatment for the different classes 
 of dependents and delinquents. The poor may be divided 
 roughly into two main classes, those whose poverty seems to 
 be due to causes more or less within their own control, and 
 those whose poverty is due to other causes. The belief is grow- 
 ing that the latter class should be relieved according to the 
 nature of the cause. Systematic and effective provision can be 
 made for the relief of the victims of industrial accidents, occupa- 
 tional diseases, casual sickness, and disability due to old age by 
 the adoption of workmen's compensation acts and the develop- 
 ment of general systems of social insurance. Destitution of 
 the able-bodied due to involuntary unemployment can be
 
 294 STATE GOVERNMENT IN UNITED STATES 
 
 diminished by the regularization of industry. Where relief is 
 necessary, it can be provided more scientifically and more 
 humanely by the shifting of the cost of maintenance during 
 unavoidable and predictable periods of unemployment to the 
 industry in which the unemployment occurs. Destitution of 
 the able-bodied due to inefficiency, so far as it results from lack 
 of skill and training, can be met by the further development 
 of education. Destitution of the deaf and dumb and of the 
 blind can also be met by the further development of the system 
 of education. Their cases should be treated as an educational, 
 not as a charitable, problem. The former class of poor, those 
 whose poverty seems to be due to causes more or less within 
 their own control, should not only be relieved. They should 
 be so treated as to help them to become self-supporting. Or- 
 dinarily punishment, as by incarceration in workhouses (dis- 
 tinguished from almshouses by the fact that relief is deliberately 
 connected with work), is insufficient. Drunkards, for example, 
 should be helped to become temperate by treatment designed to 
 strengthen their will. This cannot be accomplished by break- 
 ing their pride with harsh imprisonment. Vagabonds and the 
 "work-shy" should receive special treatment. The feeble- 
 minded and incurably insane should be segregated. 
 
 The growing recognition of these principles has brought about, 
 especially in recent years, an unparalleled demand for the crea- 
 tion of new agencies of relief and correction. This demand 
 can only be met by the development of a more specialized ad- 
 ministrative organization. In many cases the local authorities 
 do not carry on charitable and correctional work on a broad 
 enough scale to make the necessary subdivision of labor possible. 
 They cannot afford to employ the proper kinds of expert ad- 
 ministrators. The states have consequently been forced to 
 assume an ever growing share in the management of charitable 
 and correctional institutions. For example, the care of the 
 insane, of the feeble-minded, of special classes of offenders such 
 as the criminal insane, juvenile delinquents, and alcoholics, 
 and the treatment of the tuberculous poor, is supervised or 
 supported to an ever increasing extent by the central authorities. 
 The development of modern methods of punishment has caused 
 a further growth of central control. Boards of pardon and
 
 THE STATE EXECUTIVES 295 
 
 parole have been established in order to assist the governor 
 in the exercise of his power of pardon, and to supervise the 
 conduct of offenders whose sentences have been suspended 
 during good behavior. Boards of prison industries have been 
 created in order to bring about a better use of the prisoner's 
 time while under restraint. Contract prison labor, and the pro- 
 duction of goods, whether within or without prison walls, to be 
 sold in competition with the products of free labor, tend to 
 give way before the development of prison industries which 
 supply the needs of state institutions and teach the prisoner a 
 trade. Workmen's compensation acts might conceivably be 
 enforced through the county or district courts. They are 
 actually administered by special state commissions. Mothers' 
 pension acts are more generally administered by local authori- 
 ties, but all the proposed plans for general schemes of social 
 insurance contemplate their administration by the central 
 authorities. In short, charitable and penal administration, and 
 the administration of those new public activities for the conserva- 
 tion of human resources which are neither charitable nor penal, 
 such as the relief of the victims of industrial accidents, tend more 
 and more to fall into the hands of the central administrative 
 authorities of the states. 
 
 The centralization of charitable and penal administration, 
 like that of educational administration, has not yet brought 
 about the general adoption of any uniform plan of organization. 
 There are several distinct types of organization corresponding 
 to different stages in the process of centralization of control. 
 First, there may be a separate board of managers for each chari- 
 table and penal institution, over which there may be one or more 
 central boards, with power to inspect public institutions under 
 their jurisdiction, and to make recommendations to their man- 
 agers. Such central boards may have jurisdiction over private 
 as well as public charities. These central supervisory bodies 
 are usually interested mainly in the questions of general policy 
 arising in connection with institutional management, but they 
 may also supervise the details of fiscal administration. In 
 California there is a single state board of control, with full 
 powers of supervision in fiscal affairs over all public institutions, 
 and with no powers of supervision in other respects. Secondly,
 
 296 STATE GOVERNMENT IN UNITED STATES 
 
 there may be local boards of managers for each institution, 
 subject to general supervision by one or more central boards, 
 as in the first case. In addition, the central board or boards 
 or an independent officer may also be intrusted with full control 
 of financial matters, such as the letting of contracts for construc- 
 tion and the purchase of supplies. In New York there is both 
 a state board of charities and a fiscal supervisor of state chari- 
 ties, a state commission of prisons and a state superintendent 
 of prisons. There is also a state commission in lunacy for the 
 administration of the insane hospitals, and a variety of minor 
 state administrative agencies, such as the board of parole of 
 state prisons and the board of examiners of feeble-minded crim- 
 inals and other defectives, with jurisdiction over special phases 
 of the subject. Finally, there are two private associations, the 
 Prison Association of New York and the State Charities Aid 
 Association, empowered by law to inspect the public institutions 
 and to report to the state administrative authorities or to the 
 legislature. Thirdly, there may be one or more central boards 
 with full and exclusive control over the administration of public 
 charitable and penal institutions. Where a single board controls 
 directly all the institutions of this general character, as is the 
 case in a quarter of the states, the process of centralization is 
 complete. In the greater number of states, however, there are 
 mixed systems of administration, which divide power and re- 
 sponsibility for administration between different central authori- 
 ties, and between the central authorities and the local authori- 
 ties, in many different ways. The present tendency seems to 
 be toward the more general adoption of the third type of or- 
 ganization, with a single board of control for the management 
 of all public institutions. 
 
 PUBLIC HEALTH ADMINISTRATION 
 
 Public health administration at the Revolution had two prin- 
 cipal objects : the establishment of quarantines against con- 
 tagious diseases, and the abatement of nuisances. Social and 
 economic changes and the progress of medical science in the 
 nineteenth century have greatly enlarged the scope of public 
 health administration, but the activities of the public health
 
 THE STATE EXECUTIVES 297 
 
 authorities are still associated with one or the other of those 
 two objects. For the purpose of preventing the spread of 
 disease, and abating nuisances of various kinds, prejudicial to 
 the public health, very extensive though unequal powers have 
 been conferred upon administrative officials in all the states. 
 Among them are the following: (i) the power to investigate 
 (a) the causes of disease, for example, by the establishment of 
 cancer research laboratories, (b) the prevalence of disease, for 
 example, by the establishment of registration areas for the 
 recording of vital statistics, and (c) the location of disease, for 
 example, by the inspection of factories, tenements, etc. (2) Com- 
 pulsory isolation of the sick at home or in hospitals. (3) Free 
 medical treatment and nursing, for example, in cases of tubercu- 
 losis. (4) Public preventive medicine by the preparation and 
 distribution of vaccines, antitoxins, etc. (5) Medical examina- 
 tion of immigrants and school children. (6) Care of dead bodies, 
 if necessary, in connection with transportation and burial. 
 (7) Free diagnosis of disease in public laboratories. (8) Dis- 
 posal of sewage, garbage, dust, ashes, smoke, etc. (9) Suppres- 
 sion of offensive trades and of offenses against the public health 
 or morals. (10) Ventilation and illumination of factories and 
 workshops, protection of workers against dangerous machinery 
 and industrial processes injurious to health, regulation of the 
 hours of labor of men, in certain occupations, and of women 
 and children, and eventually of wages as well, (n) Prevention 
 or suppression of insanitary housing conditions by building laws 
 and inspection. (12) Control of the manufacture, transporta- 
 tion, and sale of explosives and fireworks. (13) Control or 
 suppression of the sale of impure foods, poisonous drugs, al- 
 coholic liquors, tobacco (to minors), unclean milk, etc., and 
 protection of the purity of water supplies. (14) Public instruc- 
 tion in personal and social hygiene, and the suppression of 
 advertisements and printed matter detrimental to public health 
 and morals. (15) Regulation of the practice of all professions 
 connected with the public health, such as medicine and surgery, 
 nursing, undertaking and embalming, dentistry, optometry, 
 pharmacy, veterinary medicine, plumbing, etc. 1 
 
 'See R. C. Cabot, "The Administration of Public Health" in Cyclopedia of 
 American Government, ii, pp. 117-121.
 
 298 STATE GOVERNMENT IN UNITED STATES 
 
 This enormous expansion in the activities of the state in 
 relation to health has entailed the organization of an elaborate 
 system of public health administration. In the beginning there 
 were no special agencies, either state or local, for the protection 
 of the public health. In general the ordinary local authorities 
 were expected to take such action to prevent the spread of 
 disease as local public opinion and the medical knowledge of 
 the times demanded. In case of extraordinary epidemics the 
 governor could go to the assistance of the local authorities, 
 but this was rarely done. The abatement of nuisances was 
 largely left to private initiative by means of actions in the courts 
 of law. In 1787 Massachusetts led the way in the improvement 
 of public health administration by providing that each town 
 should establish a local board of health. Many towns, how- 
 ever, neglected to do this. It was not until after the Civil 
 War that the need was recognized for regular state-wide super- 
 vision of the public health by special state officials, and for 
 systematic cooperation between the central and local health 
 authorities. In 1869 Massachusetts again led the way by the 
 establishment of a state board of health. Since then central 
 public health authorities have been established in all the states. 
 But these state boards of health have been granted jurisdiction 
 over only a part of the general field of health administration. 
 Special administrative boards or offices have been created from 
 time to time in the several states, as the need happened to arise, 
 for the purpose of dealing with special problems relating to 
 public health. Thus, boards of education frequently were 
 authorized to enforce the laws relating to the health of school 
 children, boards of charity and of insanity were generally created 
 or charged to administer the laws relating to the health of 
 dependents, special food and dairy commissioners were often 
 appointed to enforce the laws relating to the inspection of foods 
 and milk, the enforcement of liquor laws was left to the sheriffs 
 and local constables, boards or commissioners of agriculture 
 were generally charged with the enforcement of the laws relat- 
 ing to the health of domestic animals, the inspection of tene- 
 ments, factories, workshops, and other buildings, mines, eleva- 
 tors, boilers, etc., was frequently confided to separate bureaus 
 or departments, and the enforcement of laws relating to the
 
 THE STATE EXECUTIVES 299 
 
 hours of labor and wages of wage-earning men and women was 
 entrusted to factory inspectors, boards of conciliation and arbi- 
 tration, minimum wage commissions, or various combinations 
 thereof. The regulation of the conditions for entrance into 
 the professions connected with the public health and the ex- 
 amination of applicants has generally been divided among 
 a number of separate boards. In some states there are half 
 a dozen or more such boards, each independent of the others. 
 The result has been an extraordinary subdivision of authority 
 and diffusion of responsibility among a confused array of 
 central agencies for the administration of laws relating to 
 health. 
 
 Despite the confusion resulting from the division of public 
 health administration among so many independent bodies, 
 there has been a steady drift toward the centralization of control 
 over health administration in the hands of the state authorities. 
 This tendency can be observed most clearly in the evolution of 
 the powers of the original state health authorities. Three 
 separate stages may be discerned. The first state boards of 
 health were authorized to make investigations, publish reports, 
 and offer advice to the local authorities. The second stage was 
 reached when the state was divided into health or sanitary dis- 
 tricts, and the central board was empowered to appoint district 
 inspectors with wide powers of direct action within their dis- 
 tricts. This stage is best represented by the existing organiza- 
 tion of the state departments of health in Massachusetts, New 
 York, and Pennsylvania. The third stage was reached when 
 the central authorities are granted the power not only to super- 
 vise but to control the work of the local authorities. In more 
 than a dozen states the central authorities may appoint the 
 local health officers, if the local governments fail to appoint 
 them, and may remove them, if they neglect their duties or 
 are incompetent to perform them. In Vermont and Florida 
 the local authorities are regularly appointed by the central 
 authorities and act as their agents. In several states local 
 health regulations must be approved by the central authorities 
 before becoming effective. In New York the central health 
 authorities are authorized to enact and from time to time to 
 amend a sanitary code for the whole state with the exception
 
 300 STATE GOVERNMENT IN UNITED STATES 
 
 of New York City, and the local authorities are required to 
 enforce it under the supervision of the district health inspectors. 
 Moreover, as in a number of other states, the central authorities 
 may themselves, if they choose, enforce the health laws in 
 localities where no local authorities have been appointed. Thus 
 a high degree of centralization in public health administration 
 is reached. But the jurisdiction of these state departments of 
 health is ordinarily limited to matters of general concern. 
 
 LABOR LAW ADMINISTRATION 
 
 The most important division of public health administration, 
 not commonly placed under the jurisdiction of the state boards 
 of health, is the enforcement of the laws designed for the special 
 protection of industrial wage earners. In this branch of public 
 health administration there has also been a constant tendency 
 to increase the powers of the central authorities. The first 
 administrative authorities charged primarily with the protection 
 of wage earners were the bureaus of labor statistics. In 1869 
 Massachusetts led the way in the establishment of such a bureau. 
 Like the original state boards of health, its duties were merely 
 to make investigations, publish reports, and give advice. The 
 next step in the protection of wage earners was to provide for 
 the inspection of the places of their employment for the pur- 
 pose of preventing the maintenance of conditions dangerous to 
 life and limb or injurious to general health. Under various 
 laws, provision was gradually made in many states for inspec- 
 tion of fire hazards, boilers, mines, dangerous machinery and 
 processes of manufacture, and sanitation, and for the enforce- 
 ment of laws limiting the hours of labor and other conditions of 
 employment. Meanwhile the states were beginning to regulate 
 labor conditions in other respects as well as in connection with 
 the protection of the public health. The limitation of the 
 hours of labor and the fixing of minimum wages may be defended 
 as health regulations, but the establishment of a board for the 
 conciliation and arbitration of labor disputes must be defended 
 as a measure for the maintenance of industrial peace. Work- 
 men's compensation acts, as has been already pointed out, fall 
 within the scope of a general plan of social insurance. The
 
 THE STATE EXECUTIVES 301 
 
 operation of state free employment agencies, and the protection 
 and distribution of alien immigrants, are still further removed 
 from the traditional functions of health authorities. Because 
 of their common relation to the interests of industrial wage earn- 
 ers, however, there is a growing tendency towards the consolida- 
 tion of the administrative agencies enforcing these various labor 
 laws. Several states have recently created departments of 
 labor, for the enforcement of all the different kinds of laws re- 
 lating to labor, notably Wisconsin, Ohio, Pennsylvania, and 
 New York. Such state departments of labor consequently 
 cannot be classed merely as divisions of public health adminis- 
 tration. They deal also with many matters not directly re- 
 lated to the conservation of public health. 
 
 AGRICULTURE 
 
 The same tendencies appear in the administration of the 
 laws designed for the special benefit of farmers and stock growers. 
 In many states the activities relating to the interests of agricul- 
 ture, horticulture, dairying, and stock growing are more im- 
 portant and more diversified than those relating to the interests 
 of industrial wage earners. Some of the activities associated 
 with public administration in relation to agriculture and allied 
 interests are the following: the collection of rural statistics, 
 the holding of agricultural fairs and farmers' institutes, the 
 analysis of soils and fertilizers, the registration of livestock, the 
 study and suppression of animal and plant diseases, pests, etc., 
 the inspection of herds and meat products, dairies and dairy 
 products, apiaries, etc., the grading of cotton, wool, grain, etc., 
 the preservation and propagation of fish and game, the con- 
 servation of natural resources in general, especially of forests, 
 and reforestation, drainage of swamp lands, and irrigation, the 
 encouragement of agricultural experimentation and poultry and 
 stock breeding, the supervision of warehouses and commission 
 merchants and of the supply of agricultural labor, the examina- 
 tion and licensing of veterinarians, the inspection of fruits and 
 seeds, trees, shrubs, and plants, and the regulation of cold storage. 
 The result has been the creation of an even greater number of 
 separate administrative agencies than in the case of labor law
 
 302 STATE GOVERNMENT IN UNITED STATES 
 
 administration. Among the more important administrative 
 agencies of this character are the following: state boards or 
 commissioners of agriculture, state veterinarians, entomologists, 
 chemists, foresters, fish and game commissioners, food and 
 dairy commissioners, inspectors of fertilizer, hides, apiaries, 
 etc., state fair and cattle commissioners, and trustees of 
 agricultural experiment stations. Protection of the public 
 health comprises manifestly but a small part of the activities 
 of these authorities. They are expected to assist in the 
 development of better methods of raising and marketing crops, 
 to stimulate the breeding of improved grades of stock, and 
 in general to encourage rural industry and enrich country 
 life. 
 
 In the administration of the laws relating to rural as well as 
 urban industry there has been a constant tendency to increase 
 the powers of the central administrative authorities. The first 
 state boards of agriculture had advisory powers only. They 
 were expected to stimulate rural industry in a general manner, 
 and in particular to patronize the county agricultural fairs. 
 Subsequently these state boards were granted greater powers 
 of supervision. For example, they were in some cases author- 
 ized to apportion state funds in aid of county fairs on condition 
 that the fair managers complied with certain requirements 
 intended to make the fairs more serviceable to the farmers. 
 Eventually in a few states they were themselves authorized 
 to manage state fairs, and endowed with other powers of direct 
 control. More frequently, however, as the need for direct 
 central control of rural services was recognized, instead of con- 
 ferring additional powers upon the original boards of agriculture, 
 special agencies were created wholly independent of the boards 
 of agriculture. Eventually, as in the administration of the 
 laws relating to urban industry, the need for closer relations 
 between different administrative agencies was recognized. 
 The movement began for the organization of departments of 
 agriculture, which, like the departments of labor, should more 
 effectually correlate the activities of all state agricultural au- 
 thorities. In nearly half the states there are now organized 
 agricultural departments in which are united a considerable 
 number of services. This is notably the case in New York,
 
 THE STATE EXECUTIVES 303 
 
 Pennsylvania, and Ohio. In the greater number of states, 
 however, the division of power among numerous separate ad- 
 ministrative authorities still obtains. In the administration 
 of the laws relating to rural as to urban industry, there has been 
 a considerable degree of centralization of control, but not as 
 yet a corresponding degree of integration of organization. 
 
 PUBLIC WORKS 
 
 At the Revolution the principal public works constructed 
 and maintained by the states were those of a military character. 
 The states still spend a good deal of money upon armories for 
 the use of the militia. The growth of state enterprise in the 
 field of transportation in the first part of the nineteenth cen- 
 tury has left a few states with more or less useful canals on 
 their hands. Of these New York is the chief. At present the 
 principal public works of the states fall under the following 
 heads: (i) highways; (2) waterworks of various kinds, including 
 storage reservoirs for urban supply and irrigation, river and 
 harbor improvements, drainage, and flood prevention ; (3) state 
 parks and reservations; and (4) public buildings and monu- 
 ments. For the 'administration of these various kinds of public 
 works a corresponding variety of administrative agencies has 
 been created. For the most part the administration of the 
 public works of the states is completely centralized in the hands 
 of the state authorities, but no pronounced tendency is apparent 
 towards the organization of consolidated departments of public 
 works with a general jurisdiction over works of different kinds. 
 In states where so-called state departments of public works 
 have been created, the department generally has charge of some 
 one public work, such as a canal or a system of state roads, 
 which happens to be of exceptional importance. The actual 
 importance of the various public works and properties of the 
 states is indicated by their estimated valuations. 1 The ques- 
 tions concerning the relations between state and local authori- 
 ties, which have played so important a part in the develop- 
 ment of other branches of state administration, here have 
 
 1 See post, p. 309.
 
 304 STATE GOVERNMENT IN UNITED STATES 
 
 been raised urgently only in connection with the construction 
 of internal improvements, especially those of a local charac- 
 ter, at state expense. The most important division of public 
 works administration, from this point of view, is that of the 
 highways. 
 
 The study of state highway administration reveals the same 
 tendencies as have been observed in the development of other 
 branches of state administration. In the beginning the con- 
 struction and maintenance of highways was left entirely to the 
 local authorities. At present the state governments are spend- 
 ing large sums upon highway construction. Within the last 
 few years several states, notably New York and Ohio, have 
 borrowed many millions in order to execute comprehensive 
 schemes of highway construction. These schemes have been 
 adopted upon the theory that the state as a whole has an in- 
 terest in the improvement of the main routes of travel. This 
 is most clearly the case in states like New Hampshire, where 
 the summer tourist business is a considerable source of profit, 
 and the construction of good through routes for automobiles 
 has brought ever increasing returns. But the coming of the 
 automobile has increased the radius of traffic everywhere, and 
 correspondingly increased the demand for good roads. There 
 are three types of state highway departments. First, there is 
 the department which inspects local roads and advises local 
 authorities how to improve them. Secondly, there is the de- 
 partment which allocates state highway money among local 
 authorities and supervises their use of it. Thirdly, there is 
 the department which itself constructs the roads. The third 
 type is that most generally favored wherever the state goes 
 into the roadbuilding business on any extensive scale, although 
 the problem of locating the state roads causes many difficulties 
 on account of local jealousies. In addition to the building of 
 roads, the state highway authorities often have charge of the 
 examination and licensing of chauffeurs, and regulate the use 
 of state roads by the public. In general the tendency is towards 
 the centralization of control over local roads and road construc- 
 tion.
 
 THE STATE EXECUTIVES 305 
 
 SUPERVISION OF CORPORATIONS 
 
 Business corporations were originally chartered by special 
 acts of the state legislatures. At the Revolution there were 
 very few such corporations in the United States, and the method 
 of regulation by special act seemed to afford adequate security 
 to the public against the abuse of corporate privileges by their 
 promoters and proprietors. The development of industry in 
 the first half of the nineteenth century, particularly of banking, 
 insurance, and transportation, greatly increased the demand 
 for corporate privileges in general and the value of certain special 
 privileges, such as those of issuing notes with a limited liability 
 for redemption and of taking property by right of eminent 
 domain. Corrupt means were not infrequently employed to 
 secure the grant of such special privileges, and in many corporate 
 charters state legislatures failed to insert proper safeguards for 
 the interests of the public. In 1819 the decision of the United 
 States Supreme Court in the Dartmouth College case showed 
 that the states would be unable to correct, without the consent 
 of the promoters or proprietors, the errors that might appear 
 in badly drawn or corruptly obtained charters. Thereupon 
 there arose a widespread popular demand for stricter regulation 
 of the practice of incorporation, and for closer supervision of the 
 operations of corporations. Most states provided that charters 
 should not be issued except under authority of general laws, and 
 that corporations of certain kinds principally, at first, banks 
 and insurance companies should be subject to continuous 
 supervision by special officials. After the Civil War the in- 
 creasing dependence of the public upon the railroads, and, in 
 the cities, upon urban public utilities, created a demand for 
 special regulations to secure adequate service at reasonable 
 rates without discrimination. The right of the state legislatures 
 to regulate such corporations in these respects was affirmed by 
 the United States Supreme Court in the Granger cases ' and has 
 been exercised in one form or another by practically all the 
 states. The most recent development in the regulation of cor- 
 porations has been the enactment by a number of states of 
 so-called "blue-sky" laws. These laws are based upon the as- 
 
 1 See Munn v. Illinois, 94 U. S., 113 (1876).
 
 306 STATE GOVERNMENT IN UNITED STATES 
 
 sumption, which is amply justified by the facts, that the regula- 
 tion of the issue of corporation securities by the states in which 
 the corporations are created is imperfect, and that there is need 
 for the regulation of the sale of such securities to investors in 
 other states. Consequently the vendors of corporate securities 
 are required, before making any sales within the state, to submit 
 their offerings to inspection by a special official and procure a 
 license. 1 But no states have yet dealt effectively with the issue 
 of securities, except in the case of public service corporations. 
 
 The growing recognition of the necessity of regulating corpora- 
 tions has been reflected in a corresponding growth of adminis- 
 trative agencies for purposes of regulation. The administration 
 of the general laws regulating corporations was at first imposed 
 upon the secretaries of state. Special administrative machinery, 
 however, was soon created for the supervision of special classes 
 of corporations. Commissioners of banking and of insurance, 
 railroad and warehouse commissions, special boards for the 
 regulation of municipal utilities, and general corporation commis- 
 sions or commissioners have been created from time to time as 
 various needs were recognized. There has been a constant 
 tendency to extend the powers of central control over the various 
 classes of corporations. Commissioners of banking and in- 
 surance at first generally possessed merely the power to receive 
 reports and make them public. Subsequently they received 
 ever broadening powers to examine the books and records of 
 banks and insurance companies, audit their accounts, require 
 the maintenance of certain reserves, and the investment of 
 funds in approved securities, and to exclude undesirable enter- 
 prises from the further conduct of business within the state. 
 Jurisdiction has been frequently extended over private and 
 fraternal banking and insurance as well as over ordinary cor- 
 porations. In a few western states the state authorities are 
 authorized to engage to a limited extent in the business of 
 banking, for such is the effect of the bank deposit guarantee 
 laws enacted in Oklahoma and elsewhere. In one state, Wis- 
 consin, the state authorities have been authorized to engage in 
 the business of life insurance. The tendency towards the in- 
 
 1 The constitutionality of several of these laws has been questioned, however, 
 and their ultimate validity is uncertain.
 
 THE STATE EXECUTIVES 307 
 
 crease of the powers of corporate control has been especially 
 pronounced in the regulation of public service corporations. 
 The Massachusetts Railroad Commission of 1869 had power 
 merely to investigate, issue reports to the public, and make 
 recommendations to the railroads. The Massachusetts Gas 
 and Electric Lighting Commissioners of 1885 were authorized 
 to issue orders to the corporations under their jurisdiction, to 
 forbid the construction of unnecessary competitive plants, and 
 to regulate the creation of new securities as well as the rates and 
 conditions of service. The Wisconsin Railroad Commission of 
 1905 was authorized not only to exercise all the foregoing powers, 
 but also to appraise the physical property of the railroads and 
 determine its true value. State regulation of municipally owned 
 public utilities has gone as far as that of privately owned utilities. 
 The tendency to increase the powers of the administrative 
 authorities charged with the supervision of corporations is 
 much more general than the tendency to establish any uniform 
 type of administrative organization. The granting of charters 
 to domestic corporations, and the admission of foreign corpora- 
 tions for the transaction of general business within the state, 
 still remain in most states duties of the secretary of state. 
 The consolidation of jurisdiction over all classes of public serv- 
 ice corporations in a single public utilities commission has been 
 accomplished in most of the states, beginning hi Wisconsin in 
 1907. Massachusetts at one time had three separate commis- 
 sions regulating the rates and service of public utilities, and 
 still has two. New York has a separate commission with 
 jurisdiction over utilities in the city of New York. Most states 
 still maintain separate departments for the supervision of banks 
 and insurance companies. A few states, however, notably 
 Virginia and North Carolina, have consolidated all the offices 
 and boards having jurisdiction over the organization and activi- 
 ties of business corporations into a single state corporation 
 commission. These corporation commissions act also as state 
 boards of assessors for the assessment and taxation of certain 
 classes of corporations. In general, however, the taxation of 
 corporations is controlled by an entirely different set of officials 
 from those who supervise their operations, and in many states 
 there may be two wholly distinct valuations placed upon the
 
 308 STATE GOVERNMENT IN UNITED STATES 
 
 property and business of corporations, one for the purpose of 
 regulating rates or other features of their business, another for 
 purposes of taxation. 
 
 STATE EXPENDITURES 
 
 The development of the activities of the state governments 
 has entailed a great increase in state expenditures. This in- 
 crease has been especially marked since the beginning of the 
 present century. In the ten years 1903-13 the expenditures of 
 the states more than doubled. In 1913 the per capita expendi- 
 tures of the states upon the different branches of state adminis- 
 tration were as follows : 1 
 
 STATE GOVERNMENTAL COST PAYMENTS PER CAPITA, 1913 
 
 
 1 
 
 M S 
 
 M 
 
 1 
 
 H 
 
 
 
 i 
 
 W rf 
 
 m 
 
 | 
 
 
 
 W g 
 
 a 
 
 | 
 
 | 
 
 s 
 
 W 
 
 a 
 
 
 5 
 
 S5 
 
 fc 
 
 fl 
 
 S 
 
 tU 
 
 H 
 
 u 
 
 All general departments 
 
 $ 3-27 
 
 $5-3 
 
 $4-12 
 
 $ 2.10 
 
 $5-5i 
 
 $1.27 
 
 $2.97 
 
 $5-59 
 
 General government 
 
 0.42 
 
 0.60 
 
 0.66 
 
 O.22 
 
 0.32 
 
 0.23 
 
 0.32 
 
 0.61 
 
 Protection to person 
 
 
 
 
 
 
 
 
 
 and property . . 
 
 0.26 
 
 0.60 
 
 0-33 
 
 O.26 
 
 0.62 
 
 0.05 
 
 O.O6 
 
 o-39 
 
 Conservation of 
 
 
 
 
 
 
 
 
 
 health and sanita- 
 
 
 
 
 
 
 
 
 
 tion 
 
 O.O7 
 
 0.28 
 
 O.O7 
 
 o 04 
 
 o oo 
 
 O.O2 
 
 o 04 
 
 O.O2 
 
 Highways .... 
 
 / 
 0.17 
 
 0.24 
 
 * / 
 
 0.60 
 
 O.O2 
 
 0.09 
 
 
 
 O.O2 
 
 Charities, hospitals, 
 
 
 
 
 
 
 
 
 
 and corrections 
 
 O.9O 
 
 2.51 
 
 1.19 
 
 0.72 
 
 i-59 
 
 0.36 
 
 o-54 
 
 i-34 
 
 Education .... 
 
 1.38 
 
 0.62 
 
 1.15 
 
 0.82 
 
 2.76 
 
 o-59 
 
 2.OO 
 
 2.84 
 
 Recreation .... 
 
 O.O2 
 
 0-34 
 
 O.O2 
 
 * 
 
 O.OI 
 
 * 
 
 
 O.OI 
 
 Miscellaneous and 
 
 
 
 
 
 
 
 
 
 general .... 
 
 0.05 
 
 O.IO 
 
 0.09 
 
 0.03 
 
 O.O2 
 
 O.O2 
 
 O.O2 
 
 0.36 
 
 Expense of public serv- 
 
 
 
 
 
 
 
 
 
 ice enterprises . . 
 
 O.O4 
 
 0.15 
 
 0.13 
 
 
 
 * 
 
 
 0.52 
 
 Interest 
 
 o>1 5 
 
 1.14 
 
 O. "^7 
 
 O.O2 
 
 O.O2 
 
 0.18 
 
 * 
 
 0.16 
 
 Outlays 
 
 0.50 
 
 
 2. ^O 
 
 
 
 
 
 
 
 
 ' 
 
 
 
 1-13 
 
 
 
 7 
 
 Total .... 
 
 $3-95 
 
 $7.02 
 
 $6.93 
 
 $2.21 
 
 $6.66 
 
 $1.46 
 
 $2.97 
 
 $7-98 
 
 * Less than one half of one cent. 
 
 1 Abstract of Special Bulletins on Wealth, Debt, and Taxation, U. S. Bureau of 
 the Census, 1913. Table 21, governmental cost payments.
 
 THE STATE EXECUTIVES 
 
 309 
 
 Another indication of the development of the administrative 
 activities of the states is afforded by the estimates of the value 
 of the public properties of the states. In 1913 the value of 
 lands, buildings, and equipment of the general departments of 
 state administration was estimated by the Federal Bureau of 
 the Census as follows : 
 
 1. Educational institutions $175,953,734 
 
 2. State houses and libraries 136,866,051 
 
 3. General, insane, and contagious diseases hospitals 106,197,687 
 
 4. Penitentiaries and correctional institutions 92,654,114 
 
 5. Soldiers' and orphans' homes and other charitable institutions . 83,302,218 
 
 6. Armories and arsenals 17,688,329 
 
 7. Fair grounds, parks, and monuments 12,720,076 
 
 8. Art galleries and museums 3,462,909 
 
 9. All others 12,835,012 
 
 GOVEIZNMENTAL COST PAYMENTS (per capita) 1913 l 
 
 
 FEDERAL 
 GOVERNMENT 
 
 STATES 
 
 COUNTIES 
 
 INCORPORATED 
 PLACES 
 
 TOTAL 
 
 All general departments 
 
 6.17 
 
 3-27 
 
 3-24 
 
 14-59 
 
 I9-IS 
 
 General government . 
 
 0.64 
 
 0.42 
 
 1.19 
 
 1-5 
 
 2.82 
 
 Protection to person 
 
 
 
 
 
 
 and property 
 
 2-73 
 
 0.26 
 
 0.18 
 
 3.08 
 
 4-59 
 
 Conservation of health 
 
 
 
 
 
 
 and sanitation . 
 
 0.06 
 
 0.07 
 
 0.03 
 
 1.32 
 
 0.78 
 
 Highways .... 
 
 0.44 
 
 0.17 
 
 0.65 
 
 1.91 
 
 2.08 
 
 Charities, Hospitals, 
 
 
 
 
 
 
 and corrections . 
 
 1.88 
 
 0.90 
 
 0.44 
 
 0.72 
 
 3-51 
 
 Education .... 
 
 0.18 
 
 1.38 
 
 0.67 
 
 5-" 
 
 4-55 
 
 Recreation .... 
 
 O.OI 
 
 O.O2 
 
 * 
 
 0.47 
 
 0.26 
 
 Miscellaneous and 
 
 
 
 
 
 
 general .... 
 
 0.24 
 
 O.O5 
 
 0.07 
 
 0.48 
 
 0.58 
 
 Expense of public service 
 
 
 
 
 
 
 enterprises . . . 
 
 2.72 
 
 O.O4 
 
 * 
 
 1.41 
 
 3-42 
 
 Interest 
 
 0.26 
 
 O. I > 
 
 O.2O 
 
 2.90 
 
 i-95 
 
 Outlays 
 
 0.66 
 
 J 
 
 0.50 
 
 I.O5 
 
 8.40 
 
 6.04 
 
 
 
 
 
 
 
 Total 
 
 9.81 
 
 7.QC 
 
 4.. 4.0 
 
 27.29 
 
 3-S6 
 
 
 
 O-V J 
 
 f .Of y 
 
 
 
 *Less than one half of one cent. 
 
 1 About seven-eighths of the people of the United States live in localities where 
 they are subject to separately organized county governments. Less than half 
 of the people of the United States live in incorporated places with more than 2500 
 inhabitants, the figures for which are shown in the table.
 
 310 STATE GOVERNMENT IN UNITED STATES 
 
 In addition, the total value of lands, buildings, and equipment 
 of public service enterprises, exclusive of the Erie canal and 
 certain enterprises in Pennsylvania and Maryland, amounted 
 to more than fifty million dollars ($52,919,057). The total 
 value of the public properties of the states amounted therefore 
 to nearly seven hundred million dollars ($695,499,187). 
 
 The relative importance of state administrative activities as 
 compared with those of the federal government and of the 
 local governments in counties and incorporated places is in- 
 dicated by the comparative statistics of governmental cost 
 payments per capita, to which reference has already been 
 made. 1 The state governments spend on general departmental 
 administration about the same amount of money as the coun- 
 ties, and much less than the federal and municipal governments. 
 If the outlays are included, the administrative activities of the 
 state governments appear to be the least important govern- 
 mental administrative activities carried on in the United States. 
 
 STATE REVENUES AND TAX ADMINISTRATION 
 
 The growth of state expenditures in recent years has made 
 necessary a corresponding increase in state revenues. At the 
 close of the Revolution the principal sources of state revenue 
 were three in number. First, there were the customs duties 
 which each state could impose upon imports or exports from or 
 to other states and foreign countries. Secondly, there were 
 the excise duties which each state could impose upon domestic 
 trade and industry. Thirdly, there was the general property 
 tax from which both the "stafe and the local governments derived 
 a revenue. In some states the poll tax also was an important 
 source of revenue. The Federal Constitution of 1787 took away 
 the first source of state revenue. The second source was not 
 interfered with, but there was a general tendency to rely upon 
 the third. In the eighteenth century the general property tax 
 was an excellent source of state revenue. Under the economic 
 and social conditions of the period it was fairly proportional 
 to the ability of the taxpayer to pay, it was clear and certain 
 in its operation, it was easy to collect and convenient for the 
 
 1 See table on p. 309.
 
 THE STATE EXECUTIVES 311 
 
 taxpayer, the cost of collection was low, the amount to be 
 raised could be varied at will, and the exact amount desired 
 could always be obtained. During the course of the nineteenth 
 century the original advantages of the general property tax 
 gradually diminished. The enormous development of intangible 
 personal property, especially of the securities and stocks of 
 business corporations, made evasion more easy. The un- 
 precedented growth of the rate of taxation, especially for local 
 purposes, greatly increased the temptation to evasion. By 
 the concealment of intangibles, especially of corporate securities 
 and stocks, the undervaluation of properties difficult to appraise 
 accurately, and the declaration of fictitious debts, unscrupulous 
 men succeeded in evading more or less completely their fair 
 share of the general property tax. The result was the penaliza- 
 tion of honesty, lack of uniformity in assessments, double taxa- 
 tion of some properties as compared with others, and the general 
 demoralization of the taxpayer, particularly with respect to 
 the taxation of intangibles. 
 
 This result was even more unsatisfactory from the standpoint 
 of the state than from that of the local tax authorities. Since 
 the local assessments served as the basis for the apportionment 
 of the state tax between the different localities (towns and cities 
 in New England, counties elsewhere), differences in the practice 
 of local assessors caused the state tax to bear unequally upon 
 different localities. The first demand, therefore, was for the 
 equalization of assessments as between the different localities, 
 in order that the state tax might be justly apportioned through- 
 out all parts of the state. With the continued increase, however, 
 in the tax rate and in the amount of intangible personalty es- 
 caping taxation under the general property tax, there came 
 a demand for further reform. The process of reform has 
 followed two separate channels : the reform of the administra- 
 tion of the general property tax, and the reform of the tax 
 itself. 
 
 The next step in the reform of the administration of the tax, 
 after making provision for the equalization of assessments 
 in different localities, was to increase the powers of the assessors 
 to prevent the evasion of the tax. A good example of such a 
 reform was the Ohio tax inquisitor law of 1885. Such laws,
 
 312 STATE GOVERNMENT IN UNITED STATES 
 
 however, failed to accomplish their purpose. A further step was 
 taken by the enactment of the Ford franchise tax law in New 
 York in 1899, and by the enactment in Massachusetts of the law 
 for the taxation of the corporate excess. The former provided 
 that the value of the franchise of a public service corporation 
 should be assessed and taxed as if it were real estate. The 
 latter provided for the assessment by central tax authorities of 
 all the properties of business corporations of every kind in excess 
 of the value of real estate and tangible personalty assessed 
 locally. The next steps in the reform of tax administration 
 carried the process of centralization further. Wisconsin in 
 1903 provided for the assessment of the tangible property of all 
 steam railroads located within the state by central tax authori- 
 ties. The example of Wisconsin has been followed in a number 
 of states. In 1913 Ohio provided for the assessment of all 
 property by agents of the central tax authorities. This was the 
 longest step in the process of centralization yet taken, but two 
 years later the law was repealed. 1 
 
 The general property tax itself was meanwhile being subjected 
 to a process of reform. Two leading principles seem to underlie 
 recent attempts to reform the general property tax as a source 
 of state revenue. The first is the classification of property for 
 purposes of taxation. The second is the separation of the 
 sources of state and local revenues. The development of the 
 first principle may be conveniently traced in the legislation of 
 New York. It began in 1906 with the exemption of mortgages 
 from the general property tax. In 1910 the bonds of business 
 corporations generally were exempted. In the following year 
 the exemption was extended to secured debts of all kinds. In 
 1915 the constitutional convention proposed a change in the 
 constitution which would have permitted the development of 
 this principle to its logical conclusion. 2 The legislature was to 
 have power to classify property for purposes of taxation and 
 to provide for the assessment of all personalty under the direc- 
 tion of the state tax authorities. Proposals to authorize the 
 
 1 See O. C. Lockhart, Recent Developments in Taxation in Ohio, Quarterly 
 Journal of Economics, vol. 29, pp. 480-521, and The American Year Book for 
 iQiS, PP- 358-359- 
 
 2 Article x, in which these changes were proposed, was submitted separately to 
 the people, and rejected by them.
 
 THE STATE EXECUTIVES 313 
 
 classification of property for purposes of taxation have been 
 submitted to the people in several states in recent years and 
 adopted in a few of them. In several states also special pro- 
 vision has been made for the taxation of certain kinds of real 
 property, such as urban building sites and forest lands, at 
 different rates or upon different principles than property in 
 general. 
 
 The separation of the sources of state and local revenues 
 is being brought about chiefly in two ways. First, property 
 exempted from the operation of the general property tax is being 
 subjected to separate taxation under special laws. An example 
 of this is the so-called flat or low-rate tax law for the taxation 
 of intangibles, which imposes a rate of usually three or four 
 mills per annum upon the value of such property. The state 
 supervises the collection of this flat or low-rate tax, surrendering 
 to the local authorities as a rule the major portion of the 
 proceeds. Such laws have been adopted in several states. 
 Secondly, the states are developing new sources of revenue 
 from new kinds of taxes. One example of this is the levying 
 of special franchise or business taxes on railroads and other 
 public service corporations, as is the practice in many states, 
 or upon all business corporations, as is the practice in a few. 
 These taxes may be assessed upon some external indicia of 
 ability to pay, such as capitalization, or miles of track or wire, 
 or number of messages transmitted, or upon gross earnings, or 
 upon net earnings. In the latter case the tax approximates a 
 limited income tax. A very few states, notably Wisconsin, have 
 carried this idea to its logical conclusion and established a state 
 tax on all incomes. 1 The proceeds of these income taxes, though 
 assessed and collected under the direction of the central tax 
 authorities, go for the most part to the localities. A much 
 larger number of states have introduced the inheritance tax as 
 a source of state revenue. 2 The general property tax still 
 
 'The Massachusetts income tax law of 1916 applies only to so-called earned 
 incomes and to incomes from certain classes of intangibles. 
 
 1 See U. S. Bureau of the Census, Special Bulletin on Taxation and Revenue 
 Systems of State and Local Gowrnmfnts, 1913. This bulletin contains a digest of 
 constitutional and statutory provisions relating to taxation in all the states at the 
 close of 1912. For information on subsequent developments in state taxation, as 
 on so many other matters relating to state government, see The American Year Book.
 
 3H STATE GOVERNMENT IN UNITED STATES 
 
 remains, however, the principal source of income for the state 
 as well as the local governments. 1 
 
 The progress of reform in the revenue systems of the states 
 has been marked by a corresponding development of central 
 administrative agencies. Both the reform of the administration 
 of the general property tax and the reform of the tax itself have 
 made necessary the creation of special state tax authorities and 
 the constant enlargement of their powers. First, the attempt 
 to equalize local assessments compelled the creation of state 
 boards of equalization. This development began in Ohio in 
 i825- 2 Next, the assessment of property directly by the state 
 governments brought about the creation of such offices as those 
 
 1 This is clearly indicated by the following table in which the per capita yield of 
 the different sources of public revenue is shown for the year 1913 : 
 
 REVENUE RECEIPTS 
 
 
 PEE CAPITA 
 
 States 
 
 Counties 
 
 Incorporated 
 Places 
 
 Total 
 
 General property taxes .... 
 Special property taxes 
 
 $1-44 
 0.70 
 0.03 
 
 0.07 
 -55 
 
 0.21 
 O.OQ 
 O.O7 
 O.OI 
 
 0.22 
 
 0.03 
 
 * 
 
 0-34 
 0.02 
 
 $3- 2 9 
 O.OI 
 
 0.07 
 
 O.II 
 
 * 
 
 0.08 
 
 O.O2 
 O.O2 
 
 0.04 
 
 * 
 
 0.06 
 
 0.28 
 
 * 
 
 0.38 
 * 
 
 $14.47 
 
 0-34 
 0.08 
 
 2.13 
 0.07 
 1.14 
 0.27 
 
 O.IO 
 
 0-15 
 0.30 
 0.78 
 1-13 
 
 O.II 
 
 0-57 
 2.63 
 
 $11.15 
 0.86 
 0.13 
 
 1.17 
 
 0-59 
 0.82 
 0.23 
 0.13 
 
 O.I2 
 O.I4 
 0.64 
 
 0.81 
 0.06 
 
 0.90 
 1.26 
 
 Poll taxes 
 
 Special assessments and charges for 
 outlays 
 
 Business taxes 
 
 Liquor licenses and other imposts . 
 Other business licenses .... 
 Non-business license taxes 
 Fines, forfeits, and escheats . . . 
 Highway privileges 
 
 Interest and rents 
 
 Subventions and grants .... 
 Donations and gifts 
 
 Earnings of general departments and 
 miscellaneous 
 
 Earnings of public service enterprises 
 Total 
 
 $3-80 
 
 $4-3 2 
 
 $24.26 
 
 $19.00 
 
 
 *Less than one half of one cent. 
 
 1 In New England the practice of equalizing local assessments by legislative com- 
 mittees had been established much earlier, in Massachusetts, as early as 1694. See 
 E. E. Agger, The Budget Right in American Commonwealths (Columbia University 
 Studies in History, Economics, and Public Law, xxv, 2, 1907).
 
 THE STATE EXECUTIVES 315 
 
 of tax and corporation commissioner or of state boards of as- 
 sessors, or the enlargement of the powers of the state boards of 
 equalization. State excise taxes and license fees were origi- 
 nally levied and collected by the state treasurers. In the nine- 
 teenth century the states began to employ license fees more 
 and more as a means of regulating social and industrial conditions. 
 State legislation for the control of the liquor traffic, for example, 
 incidentally opened up a new source of revenue, which in a few 
 states has been seized by the state governments. The general 
 practice has been to relieve the state treasurers from responsibility 
 for the enforcement of such laws by the creation of special 
 excise commissions or commissioners. Moreover, such state 
 offices as those for the supervision of banks and insurance com- 
 panies and other corporations are in some states supported 
 entirely by fees, paid directly to the heads of those offices. Thus 
 the state revenues may be collected by a number of separate 
 state officials. Recently a tendency has appeared towards the 
 consolidation of various authorities concerned with the collec- 
 tion of the state revenues. The first step in the process of 
 consolidation has usually been the merging of separate state 
 boards of equalization and of assessors into so-called state tax 
 commissions. Beginning in Michigan and Wisconsin in 1899, 
 state tax commissions have been established in more than half 
 the states, with constantly increasing powers for the assessment 
 of property for purposes of taxation, both local and state, and 
 for the collection of state corporation, business, inheritance, and 
 income taxes, and other revenues. 
 
 THE ORIGINAL EXECUTIVE OFFICES 
 
 The increase in the activities of the states since the democrati- 
 zation of the state governments has brought about on the whole 
 relatively little change in the organization and powers of the 
 original executive offices. 
 
 The attorney-general is the most important of the original 
 executive officers, so far as the general conduct of administration 
 is concerned. He is not only the principal prosecuting officer 
 of the state, but also the legal adviser of the governor and de- 
 partment heads. In most states his powers as public prosecutor
 
 316 STATE GOVERNMENT IN UNITED STATES 
 
 are still seriously curtailed by the powers granted to the county 
 or other local prosecutors in their respective districts. His 
 powers as legal adviser are more important on account of the 
 volume and character of state legislation. The opinions of 
 the attorney-general are relied on by the department heads for 
 guidance through the intricacies of the statute books. Where 
 the conduct of administration is prescribed by law with infinite 
 and not always intelligible detail, as is the practice in most 
 states, the department heads are necessarily more dependent 
 upon the opinions of the attorney-general than upon those of 
 the governor himself. 
 
 The secretary of state originally performed duties now in 
 most states divided between the governor's private secretary 
 and the clerks of the legislative houses. He is now charged 
 with a great variety of duties, mostly of a perfunctory sort, 
 relating to the conduct of elections, the state printing, the dis- 
 tribution of public documents, the supervision of corporations, 
 the custody of public records, etc. Unlike the office of attorney- 
 general, this office requires little or no exercise of discretionary 
 authority on the part of its incumbent. 
 
 The state treasurer receives the public revenues from the 
 various collecting authorities, pays the bills of the state, super- 
 vises the issue of bonds when it is necessary to borrow, and 
 has custody of the public funds. In most states the funds are 
 deposited in one or more banks or other depositories selected in 
 accordance with law. In a few the traditional Democratic 
 system of an independent treasury is still preserved. 1 
 
 The accounts of the state treasurers were formerly audited 
 by legislative committees. With the growth of state revenues 
 and expenditures in the nineteenth century, and the general 
 adoption of biennial sessions of the legislature, the necessity 
 arose for continuous supervision of state finances by a special 
 permanent official. The office of state auditor or comptroller 
 was therefore created. With the general adoption also of direct 
 popular elections of state administrative officers, including both 
 state treasurers and auditors or comptrollers, the existing system 
 of independent audit came into operation. The powers and 
 
 1 See E. E. Agger, The Budget Right in the American Commonwealths, ch. iv, 
 pt. iii.
 
 THE STATE EXECUTIVES 317 
 
 duties of the auditing officer vary greatly in different states. 
 In general, the state treasurer may not pay any bill or claim 
 against the state without the previous approval of the auditor. 
 The auditor is required to examine the treasurer's accounts 
 once a year or oftener and to report periodically to the legis- 
 lature. In a few states the auditor's accounts in turn are audited 
 by legislative committees, and everywhere the legislature may 
 investigate the accounts of the state at any time. There is a 
 tendency also to give the auditor power both to supervise the 
 accounts of state institutions and to prescribe uniform systems 
 of accounting. In some states, however, as already indicated, 
 special officials have been appointed to supervise the accounts 
 of certain state institutions, and in a few states central boards 
 of control supervise or administer the finances of all state in- 
 stitutions. It might be supposed that the auditor would be 
 able to do much towards checking extravagance and corruption, 
 but this is not the case. In many states the power of the auditor 
 to check extravagance and corruption is seriously impaired by 
 the legislative practice of hearing and deciding claims without 
 previous determination by any administrative officer or court 
 and of granting special financial relief to individuals by private 
 bills. In most of them it extends no further than to see that 
 no money is paid out of the state treasury without authority of 
 law. In short, the auditor is an accountant, and not in general 
 an instrument of economy and efficiency. 
 
 PRESENT DISORGANIZATION OF STATE ADMINISTRATION 
 
 By the middle of the nineteenth century, as has been previously 
 shown, the governor had practically ceased to be the chief execu- 
 tive in the governments of the states. The process of decentral- 
 izing and disintegrating state administration had gone as far 
 as it could. The reconstruction of state administration, which 
 had already begun and has since proceeded with ever quickening 
 pace, has now greatly increased the number of state adminis- 
 trative agencies. It has bestowed upon the central authorities 
 ever-growing powers of direct administrative action and of 
 control over the activities of the local authorities in county, 
 town, village, and city. In short, the process of reconstruction
 
 3i8 STATE GOVERNMENT IN UNITED STATES 
 
 of state administration has been a process of centralization. 
 But it has not been to a similar extent a process of integration. 
 In most states there are a number of separate administrative 
 agencies performing the duties imposed upon each of the prin- 
 cipal departments: education, correction, charity, health, 
 conservation of resources both human and natural, public 
 works, finances, etc. The division of authority between these 
 separate agencies varies greatly in different states, and is often 
 arbitrary and unserviceable. A tendency to integrate the 
 organization of the central authorities in the principal depart- 
 ments of state administration is unmistakable, but in most 
 states on the whole it has not yet gone far. A tendency to 
 integrate the departments themselves into one coherent whole 
 is barely discernible, but has made no headway. The governor 
 to-day, as in the middle of the nineteenth century, has no place 
 in the regular conduct of state administration, except that 
 which results from his power of appointment. In the middle 
 of the nineteenth century the power of appointment was of 
 little consequence because there were in most states no offices 
 of importance not filled by election, either by the legislatures or 
 by the people. To-day many important administrative offices 
 are filled by appointment of the governor, but the increase in 
 the number of appointive offices has not brought a correspond- 
 ing increase in the administrative importance of the governor. 
 
 The governor's power of appointment and removal has not 
 been made commensurate with his nominal responsibility for 
 the conduct of state administration. In New York, 1 in addi- 
 tion to popular election, there are at least sixteen different ways 
 of appointing the heads of state departments, bureau chiefs, 
 and other principal officeholders and members of commissions. 
 Of those appointed directly by the governor, some are appointed 
 by him alone, others only with the advice and consent of the 
 senate. Of the department heads and major officials holding 
 office in 1915, just about one-half were appointed by the governor 
 with the advice and consent of the senate. Only five department 
 heads, beside the governor, were elected by the people. In 
 most states a much larger proportion of the total number of 
 
 1 See Bureau of Municipal Research, The Constitution and Government of the State 
 of New York, charts i, ii, iii, and iv.
 
 THE STATE EXECUTIVES 319 
 
 department heads are elected by the people. In New Jersey 
 alone is the governor the only executive officer elected by the 
 people. The tenure of office of department heads is almost as 
 various as the manner of appointment. In New York, some 
 officials hold office for a fixed term coinciding with that of the 
 governor, a larger number for a fixed term not coinciding with 
 that of the governor, and in many cases exceeding that of the 
 governor hi length. All of these officials may be removed by 
 impeachment, and some in no other way. Some may be re- 
 moved by the governor at will, others upon the preferment of 
 charges deemed by the governor sufficient to justify removal, 
 others only after a public hearing upon such charges, others 
 only upon recommendation by the senate, others by some other 
 method not subject to the control of the governor. Altogether 
 there are at least seven different methods, besides impeach- 
 ment, of removing department heads and other principal offi- 
 cials. Less than half of the total number may be removed by 
 the governor upon his own individual responsibility. In other 
 states the situation is much the same. Despite the reconstruc- 
 tion of state administration in response to the increase in the 
 functions of the state governments, the governor remains chief 
 executive in name only. The actual chief executives are the 
 multitude of department heads, bureau chiefs, and other prin- 
 cipal officeholders, and members of boards and commissions. 
 
 TYPES OF DEPARTMENTAL ORGANIZATION 
 
 At present there are three principal types of departmental 
 organization in which the department head is elected by the 
 people, and five principal types in which the department head 
 is selected in some other way. The three types of departmental 
 organization with popularly elected head are the following : 
 (i) a single-headed department; (2) a multi-headed depart- 
 ment, the members being elected in the state at large by all the 
 voters; (3) a multi-headed department, the members being 
 elected by districts. The first type is the most common. The 
 second type is best illustrated by the boards of regents of the 
 state universities in certain states; the third, by several rail- 
 road commissions and state boards of equalization. The third
 
 320 STATE GOVERNMENT IN UNITED STATES 
 
 type has proved very unsatisfactory in a number of cases, 
 partly because of the tendency of the members of such boards 
 and commissions to place the local interests of their respective 
 districts above the general interests of the whole state. The 
 second type has in most cases proved less unsatisfactory, partly, 
 it may be suspected, because few states have entrusted much 
 power to such bodies. The first type has proved least unsatis- 
 factory. Under the system of making nominations for elective 
 office by delegate conventions, the nominations for such places 
 as commissioner of agriculture or labor, where elective, were 
 commonly awarded by the managers of the major parties to 
 candidates known to be acceptable to the fanners or to organized 
 labor, as the case might be, and the nominees were commonly 
 supported by all partisans without question. Under the direct 
 primary system the distribution of the nominations in a manner 
 generally acceptable to the interests most concerned is less 
 certain. The results, particularly in states where extensive 
 powers have been conferred on the elective officials, have been 
 less satisfactory. In general, with the exception of the attor- 
 ney-general, the more important administrative offices are those 
 of comparatively recent creation and are not filled by popular 
 election. The question of popular election would be compara- 
 tively unimportant, if it were not for the fact that some 
 of these offices control the distribution of a good deal of 
 patronage. 
 
 The unsystematic character of state administrative organiza- 
 tion is clearly revealed by the illogical application of the principle 
 of popular election to the choice of administrative officials. 
 Almost everywhere attorneys-general, secretaries of state, treas- 
 urers, and auditors are elected by popular vote. Yet some of 
 these are administrative officers with important discretionary 
 powers, whilst others have purely perfunctory powers involving 
 no exercise of discretion. In all states there are officers who 
 exercise more important powers than, for example, the secre- 
 tary of state, who are not elected by the people. In most 
 states, too, some officers are elected by the people who in other 
 states are chosen in some other way. Why should the members 
 of the state board of equalization be elected by the people in 
 Illinois, for example, although the members of the far more
 
 THE STATE EXECUTIVES 321 
 
 important tax commission are not so elected in the neighboring 
 state of Wisconsin? Why should the members of a state rail- 
 road and warehouse commission be elected by the people, when 
 the far more important public utilities commissioners are not 
 so elected? Why should superintendents of public instruction 
 be elected by the people in many states, whilst the far more 
 important commissioners of education in other states are not 
 so elected? If commissioners of agriculture and dairy com- 
 missioners are to be popularly elected, as is the practice in 
 many states, why should not commissioners of public health 
 and workmen's compensation commissioners be similarly elected, 
 as is the practice in no states ? If the principle of popular elec- 
 tion be sound, why so many exceptions? If unsound, why 
 should it not be abandoned? 
 
 The principal types of departmental organization, where 
 the head is not elected by the people, are the following : (i) the 
 department with a single head appointed by the governor, 
 usually with the consent of the senate; (2) the department 
 with a single head appointed not by the governor but by a sepa- 
 rate board or commission, usually unpaid, which exercises, how- 
 ever, only advisory powers in addition to the power of appoint- 
 ment ; (3) the department with a multiple head, consisting of a 
 board or commission, usually unpaid, which exercises its powers 
 mainly through the instrumentality of a paid expert secretary ; 
 (4) the department with a multiple head, consisting of a board 
 or commission, usually paid, which exercises its powers directly 
 through its own members ; and (5) the department with a single 
 head appointed by the governor, with or without the consent 
 of the senate, but dependent upon the advice of an advisory 
 council for the exercise of certain of his powers. The first type 
 is found in all the states and is commonly employed where the 
 duties of the department are largely of a ministerial character, 
 not involving the exercise of much discretionary authority. 
 Such, for example, is the type of organization generally adopted 
 for departments of banking and insurance. 
 
 The second type of departmental organization is compara- 
 tively rare. It is employed most frequently for the organization 
 of state departments of education. The best illustration of 
 this type is the department of education of the state of New
 
 322 STATE GOVERNMENT IN UNITED STATES 
 
 York. In that state the legislature chooses each year one 
 member of the state board of regents for a term of twelve years. 
 The compensation is nominal, and the powers of the board are 
 practically limited to the choice of a commissioner of education. 
 This officer is well paid, and serves during the pleasure of the 
 board as the active head of the public school system of the state. 
 The manner of appointing the regents protects them against 
 ordinary political influences, since it would require seven years 
 to change a majority of the board, and thus enables them to 
 choose the commissioner of education solely with a view to his 
 professional attainments and administrative skill. Such a 
 system has the advantage of taking the management of the 
 schools as completely "out of politics" as is possible. In most 
 states where a similar type of organization has been adopted 
 for the department of education, the members of the board 
 which selects the commissioner are appointed by the governor 
 for comparatively long terms, and as the terms are ordinarily 
 so arranged that not more than one expires in any one year, 
 the independence of the educational department is well safe- 
 guarded. Where it is highly important, as in the management 
 of the public schools, to reduce ordinary political influences to 
 a minimum, this type of organization has heretofore possessed 
 distinct advantages over the first. 
 
 The third type of departmental organization closely resembles 
 the second. In this type, there is both an unpaid board and a 
 well-paid expert official at the head of the department, but the 
 division of authority between them is different from that exist- 
 ing in the second type. The unpaid board not only chooses 
 the paid expert, but actively directs the administration of the 
 department. The paid expert is nominally the agent of the 
 board, and the latter is the principal in the conduct of affairs. 
 Actually the relations between principal and agent will be 
 largely determined by the character of the men themselves. 
 An active and capable secretary of such a board will often 
 exercise as much real influence as the commissioner in the second 
 type of organization. Active and capable members of boards, 
 however, may exercise much more influence than in the second 
 type. The system has the advantage of combining the en- 
 thusiasm and personal enterprise of intelligent amateurs with
 
 THE STATE EXECUTIVES 323 
 
 the experience and skill of the professional administrator. Under 
 the most favorable conditions it brings together in one har- 
 monious organization the public-spirited citizen and the bureau- 
 crat. It is a more economical type of organization than the 
 second or fourth types, and seems particularly well adapted for 
 the conduct of pioneer work in new fields of administration. 
 It was a type frequently adopted when the state governments 
 first turned their attention to educational, agricultural, chari- 
 table, and public health administration. It has been more 
 generally employed in some parts of the country, notably in 
 New England, than in others. Under this type of depart- 
 mental organization, for example, Horace Mann developed 
 the work of the Massachusetts state board of education, and 
 F. B. Sanborn that of the board of charity. 
 
 The fourth type of departmental organization is most com- 
 monly employed in those branches of administration which 
 combine administrative and quasi-legislative powers. The 
 members of this type of administrative board or commission, 
 unlike those of a board of the third type, are expected to devote 
 most or all of their time to the duties of the office, and receive 
 suitable compensation. Their secretary is distinctly a subor- 
 dinate, and, unlike the secretary of a board of the third type, 
 receives a smaller salary than his chiefs. The power and re- 
 sponsibility are combined in the hands of the board or commis- 
 sion itself. The earliest examples of this type were the boards 
 of equalization created in several states prior to the Civil War. 
 Most of the early boards of equalization, however, consisted of 
 other state officials, ex officio, or were elected by the people. 
 After the Civil War this type of organization was adopted for 
 the railroad and warehouse commissions of the Granger period, 
 and is now employed for all public service commissions except 
 those which are popularly elected. Recently it has been ap- 
 plied to several other branches of state administration, notably 
 the administration of health and labor laws. Modern health 
 and labor laws contain numerous provisions to the effect that 
 the conditions of employment shall be reasonably safe and whole- 
 some, that employees shall be adequately protected against the 
 danger of industrial accident and disease, or that due care be 
 taken to preserve the health and safety of industrial wage
 
 324 STATE GOVERNMENT IN UNITED STATES 
 
 earners. The enforcement of laws couched in such general 
 terms was found to be exceedingly difficult, unless the generali- 
 ties of the law were translated into specific instructions for the 
 guidance of industrial inspectors. The legislatures were unable 
 to do this work themselves, for it required more time and more 
 specialized skill than they commonly possessed. The practice 
 of leaving to the courts the interpretation of such general pro- 
 visions in particular cases as they arose was slow, vexatious, and 
 inadequate. The need arose for the determination in advance 
 of fixed and definite sanitary and industrial rules which should 
 serve as guides both to the official inspectors and to the public. 
 The power to adopt such rules, like the power to regulate the 
 rates of public utilities, seemed too broad to confide in a single 
 administrative official. In 1911 Wisconsin, which had led the 
 way in the creation of modern tax and public utility commis- 
 sions, established a state industrial commission with a compre- 
 hensive jurisdiction over the enforcement of labor legislation 
 of all kinds. This method of dealing with such matters came 
 to be known as the Wisconsin idea, and has been copied in most 
 of the states, particularly in the middle and far West, where 
 there has been much legislation in recent years relating to social 
 and industrial welfare. Several of these commissions, in fact, 
 notably in the Pacific coast states, have been named industrial 
 welfare commissions, and have received very broad powers for 
 the regulation of hours of labor, rates of wages, and other social 
 and industrial conditions. 
 
 The fifth type of departmental organization resembles that 
 originally adopted for the organization of the executive depart- 
 ment. After the abolition of the original governor's councils, 
 except in three of the New England states, this type of organiza- 
 tion fell into disuse. It has been recently revived and adopted 
 for departments which exercise both ordinary administrative 
 and extraordinary quasi-legislative powers. The first instance 
 of its renewed use seems to have been in the Massachusetts 
 department of boiler inspection, organized in 1907. The chief 
 boiler inspector was charged with the duty of seeing that steam 
 boilers were reasonably safe. The legislature was unable to 
 define by law with sufficient accuracy the tests of safety to be 
 applied to all kinds of boilers under all sorts of conditions. Con-
 
 THE STATE EXECUTIVES 325 
 
 sequently it provided for the creation of a board of boiler rules, 
 which was charged with the duty of preparing standard speci- 
 fications, for the testing and licensing of steam boilers. This 
 board was composed of four persons, one representative of boiler 
 manufacturers, one representative of boiler users, one represen- 
 tative of stationary engineers and firemen, and one representative 
 of boiler insurance companies, together with the chief boiler 
 inspector, who acted as chairman. Since that time this type 
 of departmental organization has been adopted in other cases 
 where wide discretionary powers were delegated to adminis- 
 trative officials, notably in the organization of the New York 
 and Massachusetts departments of health in 1913 and 1914, 
 respectively, and in the organization of the New York and 
 Pennsylvania departments of labor in I9I3- 1 In all these 
 cases a single commissioner appointed by the governor is charged 
 with the enforcement of the laws relating to health or labor 
 conditions, as the case may be, together with the enforcement 
 of the codes elaborated by the advisory board or council. These 
 councils are composed of four or six representatives of the various 
 interests most directly concerned in the work of the depart- 
 ments, appointed by the governor, together with the commis- 
 sioner. They exercise quasi-legislative but no purely adminis- 
 trative powers. The commissioner is paid a suitable salary, 
 and the members of the council are paid a smaller sum, propor- 
 tioned to the work they do. Under this fifth type of organiza- 
 tion there is a more logical application than under the fourth 
 type of the old maxim, Many heads for counsel, one for action. 
 It is possible to make the advisory councils more representative 
 of the different interests concerned than the administrative 
 commissions can ordinarily be, without sacrificing administrative 
 efficiency on the part of the commissioners for the sake of secur- 
 ing their representative character. It is also possible to hold 
 the single administrative head more strictly responsible for the 
 good conduct of administration than can be done where there 
 are three or more commissioners of equal authority. 
 
 1 The New York department of labor was reorganized in 1915, and a modified 
 form of the fourth type of organization was adopted. See Commons and Andrews, 
 Principles of Labor Legislation, p. 446. This hook contains (ch. ix) a valuable 
 discussion of the problem of administrative organization.
 
 326 STATE GOVERNMENT IN UNITED STATES] 
 
 NEED FOR FURTHER ADMINISTRATIVE REFORM 
 
 The process of state administrative reorganization has aroused 
 some misgivings among those who appreciate the advantages 
 of the nineteenth century system of administrative anarchy. 
 It has been feared that the increasing centralization of adminis- 
 trative power and the increasing employment of specialists and 
 professional administrators would drive the ordinary citizen, 
 the amateur administrator, out of the public service. This 
 apprehension is unfounded. The plain citizens whose pride in 
 the performance of civic duty leads them to accept local adminis- 
 trative offices are not being supplanted by the expert in the 
 employ of the state. Their work for the most part is being 
 supplemented, not supplanted, for the principal cause of cen- 
 tralization is the increase in the activities of the state. The 
 process of centralization is a process of division of labor. There 
 was never a time when there was more opportunity for public- 
 spirited spare-time service on the part of the people of the 
 towns and cities. There is also ever growing opportunity for 
 specialized service on the part of experts, devoting their whole 
 time to the solution of the social and industrial problems which 
 a progressive civilization makes constantly more urgent and 
 more technical. An examination of the present results of ad- 
 ministrative reorganization indicates that the public service 
 has not yet been so organized as to cope with these new problems 
 most effectively. 1 The process of centralization must go further, 
 the process of integration must go much further, before the 
 state governments can satisfactorily perform the newer duties 
 that are pressing upon them. The states need a more scientific 
 system of administrative organization. They need better 
 arrangements for the selection and employment of experts in 
 the more technical branches of public administration. Above 
 all they need a real chief executive. If the governor cannot be 
 permitted to perform the duties of such an office, the need will 
 have to be met in some other way. 
 
 1 In New York and a few other states, notably Michigan and Wisconsin, the 
 governor may remove certain local administrative officers for neglect of duty or 
 inefficiency, namely sheriffs and district attorneys. This is good so far as it goes, 
 but it is only the beginning of administrative reorganization.
 
 THE STATE EXECUTIVES 327 
 
 THE RELATION BETWEEN THE EXECUTIVE AND THE 
 LEGISLATURE 
 
 The change in the character of the office of governor, result- 
 ing from the reformation of the original state governments and 
 the redivision of powers between their several branches, has 
 brought about a corresponding change in the normal relations 
 between the executive and the legislature. By the middle of 
 the nineteenth century, as has been indicated, the governor 
 had been shorn of most of his administrative responsibilities 
 and had become primarily a legislator. The subsequent re- 
 construction of state administration in response to changing 
 social and economic conditions has not restored the adminis- 
 trative character of the gubernatorial office. It has rather 
 tended to enhance the importance of the governor's legislative 
 powers, and to diminish the gap that once was supposed to 
 separate the chief executive from the legislature. 
 
 THE EXECUTIVE VETO 
 
 The principal source of the present legislative authority of 
 the chief executive is the veto power. In 1915 more than one 
 thousand separate bills or parts of bills failed to become law 
 because of executive disapproval. In thirty-nine states about 
 7 per cent of the total number of bills submitted to the governors 
 for approval were vetoed. The use of the veto was very much 
 greater in some states than in others. The governor of Cali- 
 fornia disapproved 225 bills or parts of bills out of a total of 
 996 bills adopted by the legislature. In New York 223 bills 
 or parts of bills out of 980 and in Pennsylvania 211 out of 1003 
 were the subject of executive disapproval. At the other ex- 
 treme, there was no use of the veto in Rhode Island, and in 
 four states there was only one veto each. Doubtless many 
 factors affect the use of the veto power by the state governors, 
 but the most important is the nature of the power itself. In 
 the states where the governor could veto separate items in 
 appropriation bills there were nearly ten times as many vetoes 
 in proportion to the total number of bills as in the states where 
 the governors did not possess that power. In the latter class
 
 328 STATE GOVERNMENT IN UNITED STATES 
 
 of states the governors vetoed on the average about one bill 
 in seventy. In the former class they vetoed either as a whole 
 or in part on the average about one in seven. The veto power 
 is in general effective. Comparatively few measures are re- 
 enacted by the legislatures after they have been returned with- 
 out the approval of the executive. In 1915 in only five out of 
 thirty-nine states were any bills or parts of bills passed over 
 the executive veto. Out of a total of 1066 vetoes only twenty- 
 two were overriden by the legislatures. In other words, 98 per 
 cent of all the vetoes were effective. 
 
 The effectiveness of the veto power as a means of executive 
 control of legislation is increased by the rules adopted in many 
 states governing the use of the so-called "pocket" veto. By 
 the Federal Constitution the President is allowed ten days in 
 which to examine congressional enactments and affix his signa- 
 ture to those he approves. A bill becomes law without his 
 approval, if he fails to return it within that period to the house 
 in which it originated with a statement of the reasons for his 
 disapproval. But if Congress adjourns within ten days after 
 sending a bill to the President, and his signature is not affixed 
 before adjournment, the bill does not become law. Failure on 
 the part of the President to sign such a bill before the adjourn- 
 ment of Congress operates therefore as an absolute veto, and 
 is called the "pocket" veto. A similar rule existed in many 
 of the states and was found to work badly. Because of the 
 constitutional limitations upon the length of legislative sessions 
 and the practice of adopting most legislation in the closing days 
 of the session, the governors had insufficient time in which 
 to examine the bills submitted to them for approval. Conse- 
 quently they were forced either to sign many bills which, could 
 they examine them with care, they would veto, or else to run the 
 risk of "killing" measures which might on careful examination 
 prove unobjectionable. In order to remove this difficulty, 
 many states have provided that bills shall become law unless 
 vetoed by the governor within a specified period after the ad- 
 journment of the legislature. This period extends from five 
 days in several states to thirty days in Pennsylvania and a 
 few others. Such a rule gives the governor more opportunity 
 to examine the legislative output, and enables him to exercise
 
 THE STATE EXECUTIVES 329 
 
 his absolute veto more deliberately and confidently. In a few 
 states, notably New York and California, the governor's power 
 is even stronger. He is allowed thirty days for the examina- 
 tion of bills enacted at the close of the session, and no bill be- 
 comes a law unless signed by him within that period. In such 
 states the governor sits after the close of the legislative session 
 practically as a third chamber. He grants hearings to advocates 
 and opponents of measures which have received legislative ap- 
 proval, refers legal and financial questions to his attorney-general 
 or other advisers, and in general does what he can to determine 
 for himself whether the measures proposed by the legislature 
 should be enacted. In such states as New York, Pennsylvania, 
 and California, the legislative output is so great that even in 
 thirty days the governor cannot examine it all for himself. He 
 must delegate a part of the task to others, organize a council 
 of revision, so to speak, and rely in many cases upon the advice 
 of his informal councilors. Thus ancient practices reappear 
 under modern forms. 
 
 The increase in the effectiveness of the veto power has re- 
 acted upon the general position of the governor and his relation 
 to the legislature. His influence over legislation is much greater 
 than is indicated by the number of bills actually vetoed by him. 
 Many bills which it is known the governor will not approve 
 will not be adopted by the legislature, or will be amended in 
 the hope of removing the grounds of executive disapproval. 
 Legislators may even support measures known to be favored 
 by the executive in order to avoid executive disapproval of 
 private and local bills in which they may be especially interested. 
 Since the effectiveness of the veto power is a matter of common 
 knowledge, the promoters of legislation often seek executive 
 approval for proposed legislation before its introduction into 
 the legislatures. The governors are induced, if possible, to 
 endorse important projects of legislation in their annual mes- 
 sages to the legislatures, or to assist them by sending in special 
 messages. The executive messages are looked to by the people 
 of the states as legislative programs, and consequently exert a 
 greater influence upon the course of legislation than any speeches 
 that may be pronounced by ordinary members on the floor of 
 either house. Members are prone to look to the governor not
 
 330 STATE GOVERNMENT IN UNITED STATES 
 
 only to outline the legislative program, but also to prevent the 
 adoption of undesirable legislation which it may be inconvenient 
 for them to defeat. This shifting of responsibility has gone 
 so far in some states that the governor exerts a more powerful 
 and beneficial check upon legislation adopted by both houses 
 than either house does upon that adopted by the other. This 
 seems to be the case, for example, in New York. 1 In California 
 an instance is recorded where the legislature passed two con- 
 tradictory bills dealing with the same subject, with the expec- 
 tation that the governor would approve the better of the two 
 and disapprove the other. 2 In short, the veto power, especially 
 in the states where it exists in its most effective form, has enor- 
 mously enhanced the authority of the governor in his dealings 
 with the legislature. 
 
 The growth of the legislative authority of the governor has 
 been accompanied by a change in the conception of the office 
 itself. Originally the governor was armed with the veto power 
 primarily in order that he might protect his own office and the 
 executive department generally against legislative encroach- 
 ments. It seems to have been anticipated that such encroach- 
 ments were most likely to come in the form of unconstitutional 
 enactments, which the veto power might help to avert. The 
 use of the veto power to control legislation not directly relating 
 to the interests of the executive was a secondary consideration. 3 
 At present, however, few vetoes are for the purpose of defending 
 the constitutional prerogatives of the executive. Only a small 
 proportion of the vetoes apply to important public general acts. 
 Most of them deal with ill considered or badly drawn public 
 acts of minor importance, private and local measures, and ap- 
 propriations, particularly for salaries and special objects of 
 various kinds. Governor Hughes of New York headed his 
 omnibus veto message of 1910, covering 118 bills which he de- 
 clined to approve after the close of the session, as follows : " The 
 following bills are not approved because they are either duplicates 
 or unnecessary, or are defectively drawn, or are embraced in or 
 conflict with bills already signed, or are unconstitutional, or are 
 
 1 See D. C. Colvin, The Bicameral Principle in the New York Legislature, p. 112. 
 * See P. S. Reinsch, American Legislatures and Legislative Methods, p. 284. 
 1 See The Federalist, no. 73.
 
 THE STATE EXECUTIVES 331 
 
 for purposes which can be suitably accomplished under general 
 laws, or should be provided for, if at all, by amendments to the 
 general law, or are objectionable and inadvisable by reason of 
 proposed changes." 1 In short, the office of governor tends to 
 be regarded as an agency for supplying the deficiencies in the 
 legislative branch of state government which result from the 
 defective organization of the legislatures and from defective 
 legislative procedure. 
 
 APPROPRIATIONS AND FINANCE 
 
 The development of the veto power has thrown upon the 
 governor in two-thirds of the states important duties in connec- 
 tion with the revision of appropriations after they have been 
 made by the legislature. But the states have been much slower 
 to give the governor a voice in the preparation of appropriation 
 bills before they are acted upon in the legislature. The natural 
 jealousy of the executive power at the time of the Revolution 
 caused the people of the original states to put complete control 
 of public finance in the legislatures, and, subject to the veto 
 power, there it has remained. 
 
 The traditional practice in the American states with respect 
 to the voting of the appropriations is thoroughly consistent with 
 a decentralized and disintegrated administrative system. Ap- 
 propriations for certain purposes are required and their amounts 
 may even be fixed by the state constitutions. Chief among 
 these are the salaries of the members of the legislature, of the 
 principal executive officers, and of the judiciary. Other ap- 
 propriations are determined by the legislatures. In a dozen 
 states, including several of the largest, all appropriations are 
 limited to two years. Elsewhere the legislatures may make the 
 appropriations for such period as they please. A few states, 
 notably Michigan and Wisconsin, provide permanent appropria- 
 tions for the principal objects of expenditure. A tendency 
 towards permanent appropriations for certain purposes, notably 
 education, is quite general. Special appropriations for private 
 and local objects are often made without any limit of time. 
 
 1 See D. L. Colvin, The Bicameral Principle in the New York Legislature, p. 115.
 
 332 STATE GOVERNMENT IN UNITED STATES 
 
 With these exceptions, appropriations for general governmental 
 purposes ordinarily expire at the close of the fiscal year, and 
 unexpended balances revert to the state treasury. Each de- 
 partment of administration ordinarily reports directly to the 
 legislature upon the expenditure of its appropriation, and trans- 
 mits in the same manner its estimates of the appropriations 
 necessary and proper for the ensuing year, or, in the case of 
 states where the legislature meets biennially, two years. Or- 
 dinarily neither the governor nor any other executive officer 
 has anything to do with any departmental estimates save his 
 own. In some states a more orderly practice has grown up. 
 Thus, in Massachusetts, department heads submit their es- 
 timates in advance of the meeting of the legislature to the state 
 auditor. He then arranges them in some systematic order, 
 together with a comparative statement of departmental ex- 
 penditures for preceding years, and submits the whole as one 
 report to the legislature. 
 
 The legislatures refer the departmental reports and estimates 
 to standing committees. The practice differs in different states. 
 In some there are several committees with jurisdiction over 
 different classes of appropriations. In others all appropriation 
 bills must be referred to a single committee. In some states 
 there are separate appropriations committees in each house. 
 In others there is a single joint committee. In some states 
 bills that carry appropriations, not required to cover depart- 
 mental estimates, may be reported by various committees, with- 
 out consultation either with the departments concerned or with 
 the appropriation committee. In most states such bills must 
 be referred before final action by the house to the appropriation 
 committee. Thus there is some centralized control over the 
 appropriation bills in most legislatures. But the department 
 heads must appear before the appropriation committee and 
 demonstrate the necessity and propriety of the appropriations 
 for which they have asked. They appear independently, each 
 working solely for his own department, and responsible in no 
 way for other departments or for the size of the state appropria- 
 tions as a whole. Since every active department head normally 
 wants to expand the services of his own department and is likely 
 to overrate its importance as compared with others, depart-
 
 THE STATE EXECUTIVES 333 
 
 mental estimates tend to increase year by year, without much 
 regard to the general growth of public expenditures and revenues. 
 Thus the legislature is confronted with the difficult task of re- 
 ducing the estimates in order to keep the total appropriations 
 within reasonable compass. This task is made more difficult 
 by the number and magnitude of the special and local appropria- 
 tions which many districts want their representatives to procure 
 for them in addition to the appropriations for regular depart- 
 mental work. 
 
 This system inevitably breeds extravagance and inefficiency. 
 The departmental reports ordinarily present no clear picture 
 of the fiscal operations of the state as a whole, the estimates of 
 the various department heads are likely to be excessive, and 
 their recommendations unrelated to one another or to any co- 
 ordinated administrative policy. The officer, if any, who col- 
 lects the estimates and transmits them to the legislature has 
 no control over them, the department heads themselves have no 
 constitutional right to defend their estimates, and in practice 
 the legislature may disregard them. The result tends to be 
 perfunctory work on the part of the state fiscal officers. In- 
 telligent planning for the future by the administration is almost 
 impossible. Even the balance of current appropriations and 
 revenues is made difficult. The states have sought to correct 
 these evils by constitutional limitations upon the power to 
 contract debts, but such remedies are unsatisfactory. They 
 do not necessarily curb extravagance and waste. They may 
 merely operate to curtail important activities of the state ad- 
 ministration, whilst money is squandered upon objects in which 
 the legislature may be more directly interested. Under such 
 circumstances the departments with the most political influence 
 are likely to receive the most favorable treatment at the hands 
 of the legislatures. If that influence is created by the use of 
 departmental funds in accordance with the desires of influential 
 members of the legislature or party leaders, politics and adminis- 
 tration become confused to the detriment of the public interest. 
 It is not surprising that the strong hand of the governor is wel- 
 comed as a means of controlling such an unbusinesslike system. 
 In New York in 1910 the appropriations were reduced thirteen 
 times as much by the executive veto as by the veto which the
 
 334 STATE GOVERNMENT IN UNITED STATES 
 
 upper house possessed over money bills originating in the 
 lower. 1 
 
 A tendency has recently appeared in various states to 
 strengthen executive control of appropriations by introducing 
 the principle of the budget. A budget is a set of estimates for 
 all administrative departments, prepared, upon the basis of 
 the reports of the department heads, by a single executive officer 
 or board. Thus, in Connecticut, a state board of finance was 
 created in 1915, consisting of the treasurer, comptroller, and tax 
 commissioner, with three additional members appointed by the 
 governor. All department heads are required to submit to 
 this board itemized statements of the desired appropriations. 
 The board is required to hold hearings on these estimates and 
 to report its recommendations to the legislature. This report 
 is referrred to a joint committee on appropriations, to which 
 all bills entailing appropriations are likewise referred, unless 
 otherwise ordered by a two-thirds vote in each house. The 
 board of finance and the legislative committee are required to 
 hold joint meetings, and are empowered to originate and report 
 to the legislature such appropriation bills as they deem necessary 
 and proper. In North Dakota, also in 1915, a state budget 
 board was created, consisting of the governor, the chairmen of 
 the appropriation committees of the two houses of the preced- 
 ing legislature, the attorney-general, and the state auditor. In 
 Washington a state board of finance was created, consisting of 
 the governor, the auditor, and treasurer. In Minnesota and 
 Nebraska the governor alone was made the budget officer. In 
 each case it is the duty of the budget board or officer to secure 
 estimates from the department heads in advance of the meeting 
 of the legislature, investigate their necessity and propriety, re- 
 vise them, and report with recommendations to the legislature. 
 These acts differ with respect to the personnel of the budget- 
 making authority, but they are alike in fixing responsibility 
 upon a single executive officer or body for the total amount of 
 the estimated appropriations and their apportionment between 
 different departments. This responsibility is most effectively 
 fixed where the budget officer is the governor. Unfortunately, 
 
 1 See D. L. Colvin, op. cit., p. 113. See also E. E. Agger, The Budget in theAmeri* 
 can Commonwealths, chs. ii and iii.
 
 THE STATE EXECUTIVES 335 
 
 as things are now, few governors have either the time or the 
 necessary means at their disposal to prepare a satisfactory 
 budget before the meeting of the legislature. There is further 
 need for an executive staff to serve under the governor's direc- 
 tion and assist in the preparation of the budget. Under none 
 of these laws, moreover, is there any limitation upon the power 
 of the legislature to deal as it may see fit with the recommenda- 
 tions of the budget-making authorities; but if, in those states 
 where the governor may veto items in appropriation bills, he 
 were resolutely to use that power in support of the budget, 
 the legislature would be less likely to increase the appropriations 
 above the amounts estimated in the budget. Thus the adoption 
 of the executive budget should tend to promote both economy 
 and efficiency. 1 
 
 In most of the states the traditional system of appropriations 
 remains in full force. Under this system the control of ap- 
 propriations in the first instance rests with the legislative leaders, 
 above all with the chairman and members of the committee on 
 ways and means or appropriations. Through their control 
 over appropriations they exercise more real influence upon the 
 actual conduct of state administration than the governor him- 
 self. They, rather than he, are the actual heads of the state 
 administration. In other words, if the governor may be said 
 to be the chief legislator of the state, the house chairman of 
 ways and means may be regarded as the chief administrator. 
 
 THE POWER OF APPOINTMENT 
 
 The power of appointment to subordinate administrative 
 offices is the power that would seem most necessary and proper 
 for a chief executive. It has never been fully conferred, however, 
 upon the governors of the states. In the beginning, as already 
 indicated, it was restricted by the requirement that executive 
 appointments be approved by executive councils. The governor 
 could nominate, he could not confirm. With the adoption of 
 the practice of electing the principal executive officers directly 
 by the people, and the transfer to the state senates of the power 
 
 1 For a description of the budget plan proposed by the New York constitu- 
 tional convention of 1915, see post, ch. xiv.
 
 336 STATE GOVERNMENT IN UNITED STATES 
 
 of confirming nominations to inferior offices, so far as these 
 were not vested in independent department heads, the govern- 
 or's power of appointment declined to a minimum. Under 
 such conditions the maxim, To the victor belong the spoils, 
 was more than a candid confession of faith by politicians flushed 
 with success at the polls. It was a fair statement of the normal 
 operation of the constitutional arrangements for filling adminis- 
 trative offices under the state governments. So far as concerns 
 those offices which are filled by popular election, the maxim was 
 obviously sound. The spoils, that is, the offices, certainly fell 
 into the hands of the successful candidates. In the middle of 
 the nineteenth century the principal state offices were of that 
 character. The distribution of these " spoils" was directly 
 controlled by those who controlled the nominating machinery 
 of the political parties. Thus the leaders of the party organiza- 
 tions acquired the habit of looking upon all the patronage as 
 theirs to be used for the good of the organizations. Having 
 "had enough experience in politics to know how valuable workers 
 are when the campaign is on and how difficult it is to find suit- 
 able rewards for all the deserving," it was natural to use what 
 little patronage there was at the disposal of the elective state 
 officials to reward "deserving" party workers. 1 In short, the 
 appointing power came to be intimately associated with the 
 organization of parties and the conduct of elections. 
 
 The power of appointment consequently tended to fall into 
 the hands of the leaders of the party organizations. It is not 
 difficult for the party leaders to control appointments vested 
 in minor elective state officials, wherever they can control the 
 nomination of such officials. To control the appointments 
 of the governor, however, it is necessary to control a majority 
 of the confirming body, the state senate. As a state organiza- 
 tion comprises the district leaders in the senatorial districts, 
 the leaders of a state organization are likely to control the senate 
 whenever their party is in power. Thus a party leader need 
 not himself be governor in order to control the distribution of 
 the patronage. Indeed, the separation of party leadership 
 from official administration has been one of the most conspicuous 
 
 1 See Letter of W. J. Bryan to W. W. Vicks, American Collector at San Domingo, 
 August 20, 1913.
 
 THE STATE EXECUTIVES 33} 
 
 features of the traditional system of state politics. Under 
 such a system the interests of "organizations" are not identical 
 with those of the parties for which the organizations assume to 
 act, just as the interests of parties are not identical with those 
 of the people as a whole. When party organizations are man- 
 aged primarily in the interests of the leaders or " bosses," that 
 is, when corrupt "machine rule" prevails, the interests of the 
 bosses of the two major parties become fundamentally iden- 
 tical. 1 ' ' The most undesirable bosses do not hold the offices which 
 they control, yet they really form the all-powerful invisible 
 government which is responsible for the administration and 
 corruption of the public offices of the state." 2 Bi-partisan 
 "machine rule" seems to have prevailed at times in more than 
 one state. In general, however, the power of a boss, whether 
 he be a desirable or an undesirable boss, is indeterminate, de- 
 pending much on the personalities of the official and unofficial 
 leaders. It is on the whole exceptional for a single boss to hold 
 undisputed sway, or to hold any sway for long. The power 
 is more commonly divided among several leaders, and the limits 
 of their power and the duration of their tenure are ill-defined. 
 
 The manner in which a well-defined boss system operates 
 with respect to executive appointments was clearly brought 
 out by the evidence in the Barnes-Roosevelt libel case. Roose- 
 velt testified that, when governor, he habitually consulted 
 Senator Platt, the Republican state boss, before making ap- 
 pointments. In recommending men for appointment to posi- 
 tions allotted to the minority party, the evidence showed that 
 Platt in his turn was accustomed to consider the wishes of 
 Croker, the Democratic boss. When asked why he consulted 
 Platt, Roosevelt answered that he had to, if he wanted to have 
 his nominations confirmed. Question. ' That is, you had to 
 be in alliance with the invisible government, so-called, to get 
 the nominations confirmed?" Answer. "To get the nomina- 
 tions confirmed I had to have the support of the senate, and 
 the senate was responsive to Mr. Platt's wishes." Ordinarily 
 
 1 It was Theodore Roosevelt's charge that the interests of the Republican leader 
 Barnes and the Democratic leader Murphy were fundamentally identical, which 
 led to the libel action of Barnes v. Roosevelt, tried at Syracuse, N.Y., in April 
 and May, 1915. 
 
 1 Quotation from the alleged libellous speech by Roosevelt.
 
 338 STATE GOVERNMENT IN UNITED STATES 
 
 Roosevelt made no appointments of any kind, even those not 
 dependent upon senatorial confirmation, until he had ascer- 
 tained that they would not be objectionable to the boss. Yet 
 Roosevelt was not a subservient governor. In Senator Platt's 
 autobiography, published five years before the Barnes-Roosevelt 
 trial, it is stated that "Roosevelt had from the first agreed that 
 he would consult me on all questions of appointments. . . . 
 He religiously fulfilled this pledge, although he frequently did 
 just what he pleased. . . . Roosevelt told me, for instance, 
 that he proposed to remove Lou Payn. I protested, but he 
 was removed, and I was consulted about the appointment of 
 his successor." l 
 
 Broadly speaking, there are three types of state governor. 
 First, there are those who humbly accept the leadership of the 
 heads of the party organization and dutifully perform their 
 part in the operation of the "machine." Secondly, there are 
 those who recognize the power of the organization but treat a 
 boss as an associate rather than as a master. Thirdly, there 
 are those who seek themselves to become bosses. These types, 
 however, are not always clearly defined. Sometimes the same 
 governor appears in one character at one time, in another at 
 another. In short, the actual relations between governors and 
 legislatures in the matter of appointments are exceedingly 
 uncertain and obscure. In general, however, the power of 
 appointment, subject to senatorial confirmation, seems to be a 
 source of weakness rather than of strength to state governors. 
 
 CIVIL SERVICE REFORM 
 
 The reconstruction of state administration since the middle 
 of the nineteenth century has greatly increased the importance 
 of the power of appointment. In Massachusetts there are 
 now more than ten thousand state employees. In New York 
 there are more than eighteen thousand. Many of these hold 
 positions requiring exceptional training or skill. The central- 
 ization of state administration, especially in such departments 
 as education, health, charities, and corrections, has created an 
 
 1 See Autobiography of Thomas Collier Plait, compiled and edited by Louis J. Lang, 
 PP. 374-375-
 
 THE STATE EXECUTIVES 339 
 
 unprecedented demand for experts in the public service. Many 
 more hold subordinate positions requiring no exceptional train- 
 ing or skill. In such positions the principal requirements are 
 attention to work and fidelity to the public interests. The 
 treatment of such positions as "spoils," making the tenure of 
 office dependent upon the fluctuating fortunes of political 
 parties, or even of different factions within the same party, 
 demoralizes the public service. Competent experts will not 
 accept public employment upon such terms. Diligence and 
 zeal among the rank and file are discouraged. Moreover, "the 
 use of government offices as patronage is a handicap difficult 
 to overestimate from the standpoint of those who strive to get 
 good government. Any effort for reform . . . results in the 
 reformers immediately finding themselves face to face with 
 an organized band of drilled mercenaries who are paid out of 
 the public chest to train themselves with such skill that ordinary 
 good citizens when they meet them at the polls are in much the 
 position of militia matched against regular troops. . . . Civil 
 service reform is designed primarily to give the average American 
 citizen a fair chance in politics." l 
 
 The evil results of the "spoils" system, as applied to purely 
 administrative offices, were recognized as soon as the adminis- 
 trative work of the state governments began to become impor- 
 tant. In order to get the civil service out of politics, the system 
 of civil service reform, popularly known as the "merit" system, 
 was devised. The agitation for the introduction of the "merit" 
 system began shortly after the Civil War, and was at first directed 
 chiefly towards the reform of the federal civil service, in which 
 the evils of the "spoils" system were most serious and most 
 notorious. The assassination of President Garfield by a dis- 
 appointed office seeker accelerated the adoption of the reform 
 by Congress, and since the enactment of the first civil service 
 law in 1883 the "merit" system has been extended throughout 
 a large part of the federal service. Its progress in the states 
 has been much slower. It was established in New York in 
 1883 and in Massachusetts in the following year. Twenty 
 
 'See Theodore Roosevelt, Autobiography, pp. 146-147. The entire chapter 
 entitled "Applied Idealism " is an excellent exposition of the object and nature of 
 civil service reform.
 
 340 STATE GOVERNMENT IN UNITED STATES 
 
 years passed before any other states adopted the reform. Since 
 1905, however, it has been introduced into several other states. 1 
 
 The object of the "merit" system is to fill administrative 
 offices with the most fit persons available without regard to 
 political affiliations. This object is sought by classifying sub- 
 ordinate positions in the public service according to their char- 
 acter and giving public notice of vacancies in each class. Any 
 qualified citizen may apply for appointment, and the relative 
 fitness of all applicants is determined, so far as practicable, by 
 competitive examinations. Candidates are rated according to 
 their fitness, and the names of those with the highest ratings 
 are certified to the appointing officers whenever appointments 
 are to be made. Appointing officers are required to make all 
 permanent appointments from the certified lists, though they 
 generally have some latitude of choice. The practice varies 
 with respect to the tenure of civil service appointees. In some 
 states no permanent officeholder within the classified service 
 may be dismissed without the filing of charges and a formal 
 hearing before the civil service commissioners. In others the 
 power of dismissal, except for political or religious affiliations, 
 is unrestricted. In the latter states, it is assumed that when 
 the appointing officer cannot replace a discharged civil servant 
 except from the official list of eligible applicants, there will be 
 little incentive to dismiss any employee except for inefficiency 
 or misconduct. In general, however, the weight of opinion 
 seems to be in favor of further restricting the power of dismissal. 
 
 The "merit" system has improved the conduct of state ad- 
 ministration, wherever it has been administered in good faith. 
 It has reduced political influences in the appointment of sub- 
 ordinate officials and employees. It has eliminated the unfit 
 from the civil service. But it has not always been administered 
 in good faith. If the civil service commissioners themselves 
 owe their positions to political influences, they may feel unduly 
 dependent upon the power which controlled their appointment. 
 There are many ways in which they can connive at evasions of 
 the spirit of the system in the interests of a partisan "machine." 
 
 1 In 1905, Wisconsin and Illinois (Cook County) ; in 1007, Colorado; in 1908, 
 New Jersey; in 1911, Connecticut; in 191 2, Ohio and California; in 191 5, Louisiana 
 (Port of New Orleans) and Kansas.
 
 THE STATE EXECUTIVES 341 
 
 Sometimes the civil service law seems expressly devised to de- 
 prive the commissioners of the necessary independence. Thus 
 the Colorado law, as amended in 1915, provides that the terms 
 of all the commissioners shall expire simultaneously at the be- 
 ginning of the term of each governor. In general the system 
 does not go far enough to secure the best results. Promotions 
 are uncertain, and stop altogether before the most responsible 
 positions are reached. Increases of salary are often dependent 
 upon special legislation, and the principal administrative offices 
 remain outside the classified service and are filled by political 
 appointments. Thus there is little incentive for the most 
 capable and ambitious to enter or long remain in the service. 
 The distinction between administrative and political offices 
 needs to be carried further towards the top than is actually 
 the case in any of the states which have yet adopted the " merit" 
 system. In other states some of the advantages of the "merit" 
 system are secured by the creation of independent department 
 heads in the most important branches of state administration. 
 Thus, the organization of the departments of education in many 
 states is such that the appointment of subordinates is compara- 
 tively free from ordinary political influences. In general, how- 
 ever, the reform of the civil service under the state governments 
 has lagged behind civil service reform in the nation and in the 
 cities. 
 
 The reform of the civil service tends to strengthen the position 
 of the governor in his relations with the legislature. Patronage 
 is sometimes described as a kind of cement serving to hold 
 political parties together. But "patronage does not really 
 help the party. It helps the bosses to get control of the ma- 
 chinery of the party." l The reduction of political influences 
 in the making of purely administrative appointments by so 
 much reduces the power of the "machine." But whatever 
 reduces the power of the "machine" in the matter of appoint- 
 ments correspondingly increases the actual authority of the 
 constitutional executives, particularly of the governor. The 
 less dependent the governor is upon senatorial confirmation of 
 necessary appointments, the more effectively he can use his 
 powers to recommend measures to the legislature and to veto 
 
 1 Theodore Roosevelt, op. cil., p. 147.
 
 342 STATE GOVERNMENT IN UNITED STATES 
 
 undesirable legislation ; in other words, the freer he is to develop 
 the possibilities of his constitutional position as special represen- 
 tative of the whole people. In Massachusetts, where guberna- 
 torial appointments not yet brought within the scope of the 
 "merit" system are subject to confirmation by an independent 
 executive council and not by the senate as in most states, the 
 influence of the governor in the matter of appointments is 
 greater than in most states. The maintenance of "boss rule" 
 through control of the legislature, and particularly of the senate, 
 is more difficult than in states where political conditions in other 
 respects resemble those in Massachusetts. In short the intro- 
 duction of the "merit" system marks a step, not in the limita- 
 tion of the power of the chief executive, but in the limitation of 
 the power of the legislative branch and of non-elective party 
 leaders and bosses. The further the "merit" system is carried 
 up the scale of administrative offices, the stronger is the execu- 
 tive branch of the government, both in its internal relations and 
 in its relations with the legislature. 
 
 THE POWER OF IMPEACHMENT 
 
 The power of impeachment was originally deemed an im- 
 portant instrument for the defense of the legislatures and the 
 people against executive encroachments and possible usurpation. 
 However, it has hitherto proved of little actual importance. 
 In most of the original states the governors were chosen by the 
 legislatures for short terms, and there was no real need of the 
 power of impeachment to maintain the supremacy of the latter. 
 Since the general adoption of direct popular election of governors 
 for longer terms and the development of the veto power, a legis- 
 lature which could not override an executive veto would have 
 little chance of successfully impeaching a governor on the ground 
 that he had refused to assent to laws deemed by the legislature 
 to be for the public good. Since the decentralization and dis- 
 integration of the state executives there has been little occasion 
 to use the power of impeachment to remove governors for abuse 
 of their administrative powers. In fact, there have been only 
 eight cases of the impeachment of governors in the entire history 
 of the states. Five of these cases occurred in the South during
 
 THE STATE EXECUTIVES 343 
 
 the period of reconstruction after the Civil War. In each case 
 governors who were attempting to maintain the civil or political 
 rights of the freedmen were impeached by legislatures under 
 the control of the party bent on asserting white supremacy 
 in state politics. One governor was removed from office, one 
 resigned to escape removal, and in the other cases the charges 
 were dropped. Two governors were impeached in northern 
 states during the same period. One was acquitted, and the 
 other was removed from office on account of embezzling state 
 funds. The eighth case of impeachment was that of Governor 
 Sulzer of New York. He was removed from office nominally 
 on account of filing an incorrect return of his campaign expenses 
 and suppressing evidence sought by a legislative committee 
 appointed to investigate his alleged misconduct. He was really 
 impeached because he had defied the political "machine" to 
 which he owed his nomination and election and had sought to 
 make himself leader of the "organization." Such a use of the 
 power of impeachment reacts injuriously upon the whole party, 
 and cannot be regarded as a normal mode of maintaining the 
 supremacy of the organization over those whom it puts in office. 
 In general, the power of impeachment must be regarded as an 
 extraordinary remedy for official misconduct. It plays no 
 important part in the maintenance of the existing balance of 
 power between the executive and legislative branches of the 
 state governments. 
 
 THE RECALL 
 
 The recall has sometimes been advocated as a substitute for 
 the obsolescent power of impeachment. It is argued that, since 
 the process of impeachment is practically unworkable, the 
 power to deprive an executive of office before the expiration of 
 his term by a popular vote will accomplish the same purpose more 
 directly. Usually, however, the recall is advocated on the 
 general ground that the voters should have the power to retire 
 legislators and executives from office whenever they lose con- 
 fidence in them. Executive officers can be impeached only for 
 high crimes and misdemeanors, misfeasance or gross misconduct 
 in office. Legislators cannot be impeached at all, and the 
 legislatures are the sole judges of the elections and qualifications
 
 344 STATE GOVERNMENT IN UNITED STATES 
 
 of their own members. Consequently neither legislators nor 
 executives can be removed from office on account of failure 
 properly to represent the people in matters of policy or on ac- 
 count of general loss of popular confidence in their integrity 
 or capacity. When annual elections prevailed, the shortness of 
 the term of office made the discontinuity of popular control 
 unimportant. With the extension of the terms of elective officers 
 the establishment of continuous popular control became more 
 important. The longer the terms of elective officers, possessing 
 the power to determine the policy of the state, the more im- 
 portant does the power of popular recall become. 
 
 In fact, however, few attempts have been made to use the 
 recall for the purpose of retiring state officers. No important 
 executive officer, nor, with one exception, member of a legis- 
 lature has actually been retired by its use. Though it has been 
 not infrequently employed in municipalities, its employment in 
 the states, especially for the retirement of officers selected in 
 the state at large, involves much greater effort and expense. 
 In states where terms of office are long, the recall doubtless gives 
 to the voters a feeling of greater security against possible mis- 
 government, and to legislators and executives a feeling of more 
 immediate responsibility. Apparently it must be regarded 
 therefore as an extraordinary remedy whose chief value lies in 
 its potential rather than in its actual use.
 
 CHAPTER XI 
 
 THE STATE JUDICIARY 
 
 THE constitutional history of the judicial branch of the state 
 governments, like that of the legislative and executive branches, 
 is a history of the progress of democracy. Like that of the 
 executive branch, it is also a history of the growth of power. 
 The democratization of the judiciary profoundly affected the 
 character of judicial organization, just as the democratization 
 of the executive affected the character of executive organiza- 
 tion. The growth of power profoundly affected the relations of 
 the judiciary with the coordinate branches of government, just 
 as the growth of power in the case of the executive affected its 
 relations with the legislative branch. The democratized execu- 
 tive ultimately was found to require reconstruction in the in- 
 terest of efficiency. The first question that arises in connection 
 with the work of the courts is whether there also any reconstruc- 
 tion is required in the interest of efficiency. The growth of 
 executive power at the expense of the state legislatures was 
 necessary to establish a better balance between the two branches. 
 Its propriety has been justified by the result. The present tend- 
 ency in the development of the state executives is toward a 
 further increase of executive power at the expense of the legis- 
 latures. The second question that arises in connection with the 
 work of the courts is whether there also the growth of power was 
 necessary to establish a better balance between the three 
 branches, in other words, whether the propriety of the redivision 
 of powers has been justified by the result. With a view to 
 attempting an answer to these questions the work of the courts 
 may be divided into three classes: (i) the administration of 
 justice by the adjudication of ordinary civil and criminal causes ; 
 (2) the enforcement of constitutional limitations upon the legis- 
 latures by the exercise of the power of judicial review ; and (3) the 
 
 345
 
 346 STATE GOVERNMENT IN UNITED STATES 
 
 enforcement of both constitutional and statutory limitations 
 upon the executive by the same means. 
 
 THE ADMINISTRATION OF JUSTICE 
 
 The original organization of the state courts was partly an un- 
 conscious development of colonial institutions, partly a conscious 
 adaptation of those of contemporary England. But colonial 
 judicial organization was the most defective branch of colonial 
 government, and the English model at the time of the Revolu- 
 tion was itself badly in need of reform. The administration of 
 justice in the American colonies had been by no means clearly 
 distinguished from other branches of achninistration. The 
 supreme court in the chartered colonies was the governor and 
 his court of assistants, subject in important cases to appeal to 
 the general court, that is, to the representatives of the freemen. 
 The grounds for appeal from the decisions of the ordinary magis- 
 trates were ill-defined, and the temptation for the legislatures to 
 meddle in judicial business was strong. In the proprietary and 
 crown colonies the governor was in a better position to maintain 
 the supremacy of the executive in judicial affairs. A regular 
 system of independent courts hardly arose until the eighteenth 
 century. Even then everyday justice was administered mainly 
 by local magistrates. These magistrates, usually justices of 
 the peace, were unlearned in the English common law, and relied 
 mainly upon their own common sense. After the Revolution 
 came the real reception of the common law and the endeavor to 
 construct a systematic judicial system. English judicial organi- 
 zation, as set forth in the Commentaries of Blackstone, was 
 archaic, complicated, and arbitrary. Certain general principles 
 of organization were discoverable, however, upon which the 
 Fathers builded their several systems. The principal features of 
 the early state judicial organizations were : (i) local peace 
 magistrates and local inferior courts for petty causes; (2) a 
 central court of general jurisdiction at law and over crimes, 
 with provision for local trial of causes at circuit and review of 
 civil trials in bank in the central court; (3) a central court of 
 equity, in which causes were heard in one place, though testi- 
 mony might be taken in the locality ; and (4) a supreme court
 
 THE STATE JUDICIARY 347 
 
 of review. Generally, indeed, the second and third courts were 
 merged. 1 
 
 The development of the state judiciaries, like that of the state 
 governments in general, was until recently largely molded by 
 the needs and ideas of the frontier. Pioneer communities needed 
 above all else certainty, quickness, and cheapness in the adminis- 
 tration of justice. Cheapness was necessary because the frontier 
 was poor. Quickness was necessary because the frontier was 
 rough and impatient. Certainty was necessary because the 
 frontier was self-taught. These needs directly controlled the 
 development of judicial institutions in the pioneer states and in- 
 directly affected judicial institutions in all the states. More 
 recently, the growth of cities and the increasing complexity of 
 urban life has subjected judicial institutions to new tests. The 
 great industrial communities need more nicety and refinement 
 in the law, more expertness in the judges, and a higher degree of 
 specialization in the organization of courts and the administra- 
 tion of justice. The influence of the old frontier and of the 
 new social and industrial order upon the present organization 
 and practical working of the state courts is seen alike in the law 
 itself, in the organization of the courts, and in the forms of pro- 
 cedure. 
 
 THE DEVELOPMENT OF THE LAW 
 
 The influence of the frontier upon the body of the law re- 
 sulted in a rapid renovation of the English common law into an 
 acceptable American system. The democratic spirit of frontier 
 life was incompatible with the maintenance of the English tradi- 
 tion, in which the law was a strange and inscrutable thing, and 
 lawyers a class apart from common men. Democracy demanded 
 a system of law such that every man might be, if he wished, his 
 own lawyer. The social and economic basis of frontier life was 
 simple; the relationships of men did not require that the law 
 should be refined. The conditions of life as well as the spirit 
 of democracy were thus favorable to a revolution in law as well 
 as in government. As it happened, the year of the American 
 declaration of political independence of England was also a year 
 
 1 See Roscoe Pound, "Organization of Courts," in bulletin vi, Publications of the 
 American Judicature Society, pp. 11-12.
 
 348 STATE GOVERNMENT IN UNITED STATES 
 
 of declarations of independence in England itself. In 1 776 Adam 
 Smith published his epoch-making treatise on the Wealth of 
 Nations, inaugurating a revolt against the obsolescent doctrines 
 of mercantilism. In the same year Bentham published his 
 Fragment on Government, inaugurating a revolt against the 
 anachronisms of the English common law. Both Smith and 
 Bentham were pioneers whom the people of the states could 
 appreciate. Bentham's work especially made a deep impression 
 in America. This impression is most apparent in the demand 
 for the codification of American law, of which so much was 
 heard in the middle of the nineteenth century. Codification, 
 Bentham argued, would assist both in the study and in the ad- 
 ministration of law. It would express the whole body of law in 
 the fewest possible rules, and would set it forth in a logical order 
 and hi a uniform and intelligible terminology. It would eliminate 
 the need for learned commentaries and endless reports of cases. 
 These claims appealed to the frontier democracy. To it codifi- 
 cation meant the realization of the dream that every man should 
 be his own lawyer, and, when his turn came, should hold judicial 
 as well as political and administrative office. In short, Ben- 
 tham's theory of the law was well suited to the American frontier. 
 Thus the reception of the English common law after the Revolu- 
 tion was closely followed by the reception of the ideas of the 
 English law reformers. 
 
 The influence of the new social and economic order has been 
 directly contrary to that of the old frontier. During the forma- 
 tive period of American law the influence of the judges, as 
 pointed out by De Tocqueville, was very great. After the recep- 
 tion of the common law all legal education began, and much 
 ended, with the study of Blackstone. In each jurisdiction the 
 judges were engaged in adapting the principles of the common law 
 to the facts of American life. So far as Americans were con- 
 cerned, much of the law was unwritten. Courts as well as 
 people were engaged in pioneer work. Both in the development 
 of the unwritten law, and in the interpretation of that which 
 was written, each state judiciary was equally free to apply the 
 utilitarian test in the light of local conditions. Law was copi- 
 ously made or as people often preferred to say, discovered, by the 
 judges themselves. Under any system of judge-made law the
 
 THE STATE JUDICIARY 349 
 
 force of precedent becomes great, and in the course of time the 
 law itself tends to become rigid. On account of the differences 
 in local conditions in different states it also tended to become 
 diversified. Popular recognition of these tendencies was the 
 signal for an increase of legislative activity in the field of ordi- 
 nary civil and criminal law. The development of the new 
 social and economic order stimulated the demand for the more 
 rapid readjustment by legislation of the judge-made rules to 
 the changing conditions. The growth of a new social conscience 
 brought with it an assumption by the state of new social re- 
 sponsibilities. It was less generally expected that each man 
 should be his own lawyer, and the law so simple that any man 
 might administer it. The demand for codification abated. 
 Closer business relations between the states created a demand 
 for greater uniformity in the laws of the states. The volume 
 of legislature-made law greatly increased, the law itself be- 
 came more complex, more refined, more remote from the com- 
 prehension of the layman. Justice became more uncertain, 
 slower, and more expensive. 
 
 THE ORGANIZATION OF THE COURTS 
 
 The influence of the frontier upon the organization of the 
 courts resulted in the democratization of the administration of 
 justice. This meant more than the mere introduction of popular 
 elections of judges. It meant the bringing of justice directly to 
 every man's door. In a country of long distances, in a period of 
 slow communication and expensive travel, the central courts of 
 general jurisdiction caused intolerable expense to litigants. 
 Popular election of judges was accompanied by the creation of 
 local judicial districts and fixed local courts, the erection of 
 intermediate appellate courts between the trial courts and the 
 courts of final review, and the establishment of special municipal 
 courts at the bottom. The details of judicial organization vary 
 greatly among the states, yet with all this variety of detail there 
 is upon the whole a distinct and characteristic type. This gen- 
 eral type of judicial organization contains four separate sets of 
 courts. First, there is a supreme tribunal composed of a fixed 
 number of judges (varying from five to sixteen), sitting only in
 
 350 STATE GOVERNMENT IN UNITED STATES 
 
 that tribunal, and exercising mainly or exclusively appellate 
 jurisdiction. Frequently, also, there is an intermediate court of 
 a similar kind, interposed between the highest appellate court 
 and the superior courts of first instance, thus creating to a 
 certain extent a system of double appeals. Secondly, there is 
 a set of superior courts of first instance with a general jurisdiction 
 at law, in equity, and over felonies and the more serious mis- 
 demeanors. Thirdly, there is a set of probate courts, usually 
 one in each county, often manned by laymen. Fourthly, 
 there is a set of magistrate's courts, held by one magistrate for 
 each locality, or as separate courts by several magistrates for 
 each town or county. They have usually a petty civil and 
 criminal jurisdiction, and power to bind over graver offenders to 
 the superior court of first instance. 1 In short, the democratiza- 
 tion of the administration of justice has resulted in the de- 
 centralization and disintegration of judicial organization, in 
 the same manner, though not to the same extent, as the democ- 
 ratization of state administration in general resulted in decen- 
 tralization and disintegration. 
 
 The influence of the new social and economic order upon the 
 organization of the courts has as yet been much less than its 
 influence upon the law itself. Intermediate appellate courts 
 are still being interposed between trial courts and those of final 
 review, and municipal courts are still being added at the bottom. 
 Juvenile courts, domestic relations courts, night courts, land 
 courts, workmen's compensation commissions, industrial welfare 
 commissions, public service commissions, all armed with limited 
 judicial powers, attest the growing need of greater specialization 
 in the administration of justice. Courts and judges are multi- 
 plied, but the unification of the judicial systems remains neg- 
 lected. Beyond the organization of centralized municipal courts 
 in a few cities, notably in Chicago and Cleveland, little has been 
 done to reorganize the state judiciaries. The various district 
 and circuit courts in the states are separate and generally in- 
 dependent of one another. In most states judges may still 
 remain inadequately employed in some districts, whilst in other 
 districts the business of the courts may be grossly in arrears. 
 
 The most significant result of the new order upon the or- 
 
 1 See Pound, op. cit., pp. 14-17.
 
 THE STATE JUDICIARY 351 
 
 ganization of the courts is the growing dissatisfaction with the 
 popular election of judges. Popular election undoubtedly made 
 the judiciary more independent of the legislative and executive 
 branches of government, but it also made them more dependent 
 upon the party organizations. In local judicial districts, espe- 
 cially in rural districts, popular elections seem to have generally 
 resulted in real choices by the voters. But this has not generally 
 been the result in the larger cities and districts, and in the elec- 
 tion of judges by the voters of a whole state. In such cases the 
 voters may elect, but the actual selection is likely to be done by 
 others. In most states, while the delegate convention system of 
 party organization lasted, the actual selection probably rested 
 with the party leaders. In some states special arrangements were 
 established by custom. Thus, in several states nominations for the 
 more important judicial offices were made by the lawyers of the 
 state at special "bar" primaries, and were commonly accepted by 
 the major party leaders. In many states it was customary for 
 both parties to renominate retiring judges, regardless of their party 
 affiliation. On the other hand, not infrequently judicial nomina- 
 tions were openly disposed of by party leaders for partisan or 
 personal ends, and quite generally elevation to the bench was 
 possible only for those who served the regular apprenticeship in 
 the party organization. The direct primary brought confusion 
 to all these arrangements. The importance of excluding the 
 judiciary from the ordinary partisan primary was quickly realized. 
 As has been pointed out, several states have already established 
 special non-partisan primaries for the nomination of judges, and 
 provided special non-partisan ballots for use in judicial elections. 
 The most efficient state judiciaries are those of which the 
 judges are not elected by the people. In Massachusetts and 
 New Jersey, for example, where judges are appointed by the 
 governor and hold office during good behavior, there is less 
 criticism of the work of the courts than in New York, where 
 they are elected by the people. The prestige of the courts, as 
 reflected in the authority of judge-made law, seems on the whole 
 to have been higher prior to 1850 than subsequently in many of 
 the states which then introduced popular elections. 1 It is the 
 
 1 See Preliminary Report on Efficiency in the Administration of Justice, prepared 
 by Charles W. Eliot, Louis D. Brandcis, Moorficld Storey, Adolph J. Rodenbeck, 
 and Roscoe Pound for the National Economic League, pp. 8-12.
 
 352 STATE GOVERNMENT IN UNITED STATES 
 
 political power of the courts, not their efficiency in the adminis- 
 tration of justice, that has been enhanced by popular elections. 
 In the administration of justice, as in other branches of state 
 administration, there is a growing need in most states for the 
 employment of specialists and experts, and hence for greater 
 security of tenure, more adequate compensation, more centralized 
 and better integrated organization. How such reorganization 
 shall be accomplished, without diminishing popular control of 
 those courts which exercise important political functions, is a 
 question which, especially since 1912, has been receiving in- 
 creased attention. 
 
 THE FORMS OF PROCEDURE 
 
 The influence of the frontier upon the forms of procedure 
 resulted in the limitation of judicial powers to regulate the 
 business of the courts. The conduct of trials, especially, was 
 hedged about with close restrictions. A strong tendency de- 
 veloped to convert the trial judge into a mere umpire, whose 
 function it should be to hold an even balance between the con- 
 tending parties, that is, between the lawyers for the parties. For 
 example, serious limitations were placed upon the power of the 
 presiding judge to charge the jury. Often the judge was for- 
 bidden to comment on the evidence, or was required to reduce 
 his instructions to writing, or permitted to give instructions only 
 at the request of counsel. Indeed, in a very few states, the 
 presiding judge was deprived of all power to control the conduct 
 of cases by counsel. This tendency to dethrone the trial judge 
 and exalt the lawyers and jury had existed from the time of the 
 Revolution, and by 1850 was the dominant tendency in most 
 states. In some states the juries were made judges of the law 
 as well as the facts at issue in a cause. Elsewhere the judges 
 were held to the strictest responsibility for the correct deter- 
 mination of questions of law arising in the course of litigation. 
 Appeals were freely allowed whenever errors were alleged to occur 
 in the rulings of the trial judge, and reversal by the court of 
 appeal of a ruling by a trial judge was made sufficient cause for a 
 new trial, even if the merits of the case were not affected by the 
 ruling. Judicial procedure became overladen with technicali-
 
 THE STATE JUDICIARY 353 
 
 ties, and the legislatures fell into the habit of constantly amend- 
 ing the rules of procedure, even at the behest of litigants seeking 
 an advantage in particular cases. The codification of the rules 
 of procedure should have prevented this confusion, but the legis- 
 latures in states where codes were adopted could not refrain from 
 tinkering them. In New York, the code of civil procedure 
 adopted in 1848 was so altered by amendment that a new code 
 had to be adopted in 1876. The second code contained between 
 three and four thousand provisions, and has been amended nearly 
 five hundred times in the last ten years. In short, the regulation 
 of judicial procedure by the state legislatures was perhaps a 
 logical result of the spirit of the frontier, but it tended to defeat 
 its own object, for it tended to make justice less certain, less 
 speedy, and more costly. 
 
 The influence of the new social and economic order upon the 
 regulation of judicial procedure has been no greater, as yet, than 
 upon the organization of the courts. There is still too much 
 legislation concerning the details of procedure. There is still a 
 tendency to treat the rules of practice as giving to parties pro- 
 cedural rights which they may vindicate through appeal, al- 
 though their substantive rights are not affected. There is still 
 a tendency for courts of appeal to try cases upon the letter of 
 the record instead of upon the real facts. There is still an over- 
 emphasis of formal issues instead of essential issues in litigation, 
 of the technicalities of procedure instead of the merits of con- 
 troversies. There is still too much appellate procedure, and in 
 general too many trials and retrials. 1 Such a system affords 
 too much advantage to the litigant with the shrewdest counsel 
 and the longest purse. Imperfections of procedure contribute 
 to inefficiency in the administration of justice to a very unequal 
 degree in different states, for there is the greatest diversity of 
 procedure in the different states. ' ' Jurisdictions whose procedure 
 is admirable in some respects are very backward in other respects. 
 But few generalizations are possible. ... In other words, 
 while there are general evils which exist throughout the United 
 States, the problem of procedural reform is largely local, and 
 must be studied specially with reference to the conditions that 
 obtain in each state." 2 Several states have obtained relief 
 
 1 See Preliminary Report, op. cii., pp. i&-ag. * Loc. tit., p. 18. 
 
 2A
 
 354 STATE GOVERNMENT IN UNITED STATES 
 
 from the burden of inefficient judicial procedure by granting to 
 the courts themselves the power to prescribe their own procedure. 
 This power has been used to make procedure much more simple 
 and direct. 1 
 
 The most significant result of the new order upon the regula- 
 tion of judicial procedure is the growing dissatisfaction with the 
 traditional system of trial by jury. De Tocqueville, as has been 
 shown, and all other early observers, reported that the jury 
 system worked well. The principal difficulty in pioneer com- 
 munities lay in procuring the requisite number of jurors. A 
 majority of the states consequently made provision for reducing 
 the number required for the petty jury in certain courts or classes 
 of cases. 2 A lesser number have limited or dispensed with the 
 use of the grand jury. 3 But more recently there has been evi- 
 dence of loss of confidence in the juries. In civil cases arising out 
 of complicated business relations the judgment of ordinary juries 
 is distrusted. There is a pronounced tendency to waive the 
 right of trial by jury in such cases and to refer the determination 
 of facts to a referee or master, who reports his findings to the 
 court. Most significant of all, there is a tendency to do away 
 with the requirement of unanimity in civil trials. A third of 
 the states have provided that civil juries which fail to agree upon 
 a unanimous verdict within a reasonable time may return a 
 verdict by a five-sixths, or a three-fourths, or even by a two-thirds 
 vote. In criminal cases, also, there is a tendency to distrust 
 the judgment of ordinary juries. This is reflected in the abuse 
 of the right to challenge prospective jurors, and in the difficulties 
 and delays that arise in the empanelling of juries in important 
 cases. The growing use of equitable remedies in certain classes 
 
 1 Notably in Colorado, Connecticut, and New Jersey. The best example of what 
 can be done by the courts themselves to simplify judicial procedure, when granted 
 the power, is doubtless the adoption by the Supreme Court of the United States of 
 the rules of equity procedure now in effect. 
 
 2 The first recorded case since the Revolution in which a statute was declared 
 unconstitutional was that of Holmes v. Walton, decided in New Jersey in 1780. 
 The ground for the decision was that the legislature had no right to reduce the num- 
 ber of the jury from twelve, as fixed by the common law, to six, as contemplated 
 by the legislature. 
 
 3 The right of the people of a state by constitutional amendment to dispense with 
 indictment by grand jury was affirmed by the United States Supreme Court in a 
 case involving the constitutionality of such a provision in the California constitu- 
 tion of 1879 (Hurtado v. California, no U. S., 516).
 
 THE STATE JUDICIARY 355 
 
 of cases, notably those arising from labor disputes in which 
 strikers threaten to damage the property of their employers, in 
 effect reduces the value of the jury system in criminal cases. 
 Judges may imprison strikers for contempt of court without 
 trial by jury, although the alleged offense for which the striker 
 is adjudged to be in contempt may be a crime. Thus he is in 
 effect punished for crime without the benefit of a jury trial. In 
 short, the democratization of the administration of justice in the 
 middle of the nineteenth century tended to exalt the jury, and 
 especially the lawyers, at the expense of the judge, but the in- 
 fluence of the new order seems to be in the opposite direction. 
 The present problems in the administration of justice, as in 
 other branches of state administration, are the separation of 
 politics from administration and the reconciliation of democracy 
 and efficiency. 
 
 JUDICIAL REVIEW OF THE CONSTITUTIONALITY OF 
 LEGISLATION 
 
 The power of the courts to review the constitutionality of 
 legislation and to refuse to enforce that which they declare un- 
 constitutional is formally a judicial power. It springs from the 
 duty of the courts to determine what law applies in cases where 
 there is a conflict of law. But cases involving conflict between 
 statutes and the law of the constitution are different from ordi- 
 nary cases of conflict of laws. Expounding a constitution is a 
 different kind of work from construing a statute. It is es- 
 sentially political in character. To the student of politics, as dis- 
 tinct from administration, the exercise of the power of judicial 
 review and veto is the most important part of the work of the 
 courts. 
 
 There are two sources of the veto power exercised by the state 
 courts. First, it is implied, as already shown, in the very nature 
 of the system of constitutional government in the states. 
 Secondly, it is expressly conferred by the Federal Constitution. 
 The implied power of judicial veto is the power merely to refuse 
 to enforce state legislative enactments in conflict with the state 
 constitution. The expressed power is the power to refuse to 
 enforce any state enactment, whether in the form of an ordinary
 
 356 STATE GOVERNMENT IN UNITED STATES 
 
 act of legislation or in that of a clause of the state constitution, 
 in conflict with the Constitution of the United States, or with a 
 law made in pursuance thereof, or with a treaty made under 
 the authority of the United States. In the former class of cases 
 the decision of the highest court of the state is final. In the 
 latter the decision of the Supreme Court of the United States 
 alone is final. Prior to 1915, however, there was no provision 
 for appeal to the United States Supreme Court from decisions 
 of state courts in cases involving alleged conflict between state 
 legislation and the supreme law of the land, unless the state 
 courts refused to protect the rights claimed under the supreme 
 law. Since 1915 it has been possible to procure from the United 
 States Supreme Court a final decision in all cases involving alleged 
 conflicts between the supreme law and the constitutions and laws 
 of the states. The exercise of the power of judicial veto in the 
 government of the states, therefore, falls under two heads : (i) 
 the veto by the state courts of ordinary state legislation in con- 
 flict with a state constitution or of any state legislation in conflict 
 with the supreme law of the land ; and (2) the veto by the federal 
 courts of state legislation, statutory or constitutional, in conflict 
 with the supreme law of the land. 
 
 The power of judicial veto was at first exercised infrequently 
 and with great caution. Haines, in his work, The American 
 Doctrine of Judicial Supremacy, lists only eighteen cases in 
 which statutes were rendered null and void by the refusal of the 
 state courts to enforce them during the forty odd years from 1776 
 to iSig. 1 This list is not complete, but it indicates accurately 
 enough the extent to which the power was used at that period. 
 Down to the Civil War the practice of invalidating legislative 
 acts seems to have been confined mainly to a few states, and to 
 have been infrequently indulged in even in those few. 2 There- 
 after the practice rapidly became more common. During the 
 six years from 1903 to 1908, inclusive, nearly four hundred 
 state laws were declared unconstitutional by the state courts. 8 
 
 1 See Haines, op. cil., p. 228. 
 
 2 See E. S. Corwin, "The Establishment of Judicial Review," 9 Michigan Law 
 Revieio, p. 314. 
 
 3 See New York State Library Legislative Bulletins, 1903-1908, summarized 
 in Haines, op. cit., p. 307.
 
 THE STATE JUDICIARY 357 
 
 Making due allowances for the increase in the number of states 
 and in the volume of state legislation, it is evident that the im- 
 portance of the veto power possessed by the state courts has 
 greatly increased. The power to veto state legislation originally 
 possessed by the federal courts, like that originally possessed by 
 the state courts, was exercised sparingly. Only thirty-seven 
 state acts were declared unconstitutional by the federal courts 
 from their organization to the Civil War. Since then the federal 
 courts, like the state courts, have exercised the judicial veto much 
 more freely. From 1860 to 1912 the federal courts declared one 
 hundred and eighty state acts unconstitutional. 1 
 
 The more frequent use of the judicial veto since the middle of 
 the nineteenth century can be partly explained by the constitu- 
 tional changes which took place at that time. In New York, 
 for example, 285 acts or parts of acts had been declared unconsti- 
 tutional by the state courts down to the year 1912. Of these 
 barely one per cent were enacted under the original constitution 
 of 1777, and not much over two per cent under the second con- 
 stitution of 1812. Of the balance about three-fifths were enacted 
 under the constitution of 1846, and about two-fifths under the 
 constitution of i894. 2 The exercise of the judicial veto by the 
 New York courts falls almost entirely in the period since the 
 adoption of the popular election of judges and of stricter con- 
 stitutional limitations upon legislative powers and procedure. 
 The same is true of most of the states. The more frequent use 
 of the judicial veto by the federal courts since the Civil War 
 can likewise be partly explained by the effects of constitutional 
 changes. The adoption of the thirteenth, fourteenth, and 
 fifteenth amendments to the Federal Constitution greatly in- 
 creased the jurisdiction of the federal courts over state legisla- 
 tion. 
 
 The increased use of the judicial veto since the Civil War 
 cannot be wholly explained by changes in the written constitu- 
 tions of the states and nation. The adoption of the reconstruc- 
 tion amendments did not greatly increase the constitutional 
 limitations upon acts of Congress. Yet the more frequent use 
 
 1 See B. F. Moore, The Supreme Court and Unconstitutional Legislation, in Colum- 
 bia University Studies in History, Economics, and Public Law, liv, no. 2, appendix iii. 
 1 See H. A. Davis, The Judicial Veto, appendix.
 
 358 STATE GOVERNMENT IN UNITED STATES 
 
 of the judicial veto against congressional legislation in the last 
 half century is as marked as its more frequent use against the 
 legislation of the states. Prior to 1860 only three acts of Con- 
 gress had been declared unconstitutional. Between 1860 and 
 1912 no less than thirty such acts were vetoed by the federal 
 courts. The federal courts, moreover, have no greater jurisdic- 
 tion over state legislation in one state than in another. From 
 the beginning down to 1912 they declared unconstitutional only 
 two acts of the state of Massachusetts, only four acts of the other 
 five New England states, two New Jersey acts, and none at all 
 of Delaware. Yet during the same period they declared uncon- 
 stitutional twelve Tennessee acts, thirteen Missouri acts, sixteen 
 each of the states of Louisiana and New York, and seventeen of 
 Pennsylvania. 1 
 
 There can be no doubt that, along with the increase in the 
 independence of the state judiciary and the enlargement of its 
 jurisdiction over state legislation, there came a change in public 
 sentiment towards the judiciary generally. The people began 
 to look more confidently to the courts for protection against 
 abuses of power by the legislatures. The courts were encouraged 
 to use their powers more vigorously. This tendency was most 
 marked in the states where the courts were originally weakest 
 and where the legislatures had been guilty of the greatest abuse 
 of power. There was also greater need to use the judicial veto 
 against the legislation of such states. But the change in public 
 sentiment occurred everywhere. In other words, the political 
 importance of the state courts was enhanced directly by popular 
 distrust of the state legislatures, as well as indirectly through 
 the increase of constitutional limitations upon legislative powers 
 and procedure. The federal courts shared with the courts of 
 the states the growing sense of power, despite the loss of prestige 
 resulting from the Dred Scott and legal tender decisions. 
 
 EFFECT OF THE JUDICIAL VETO 
 
 The effect of increased jurisdiction over state legislation and 
 of growing popular favor is reflected in the character of judicial 
 
 1 See Moore, op. cit., appendix iv.
 
 THE STATE JUDICIARY 359 
 
 vetoes. Of the eighteen acts listed by Haines which were de- 
 clared unconstitutional by the state courts prior to 1820, a 
 majority related to the organization or duties of the courts, 
 judicial procedure, or trial by jury. Only one act was declared 
 unconstitutional on account of defective legislative procedure in 
 its enactment. In other words, the judicial veto was originally 
 employed by the state courts principally to protect their own 
 constitutional rights. Since 1860 a great change has taken place 
 in the nature of the legislation most frequently vetoed by the 
 courts. Of the four hundred acts declared unconstitutional by 
 the state and federal l courts in the years 1903-1908, fifty-five 
 were vetoed because the subjects of the acts were not clearly 
 expressed in their titles, fifty-three on the ground that they were 
 special or class legislation, when their objects could have been 
 attained under existing general acts or should have been secured 
 by new general acts, forty-nine because, if enforced, they would 
 have deprived persons of liberty or property without due process 
 of law, and thirty-six because they denied the equal protection 
 of the laws. That is to say, nearly half the total number of 
 acts vetoed by the courts were declared unconstitutional on 
 account of defective legislative procedure or because, if en- 
 forced, they would have accomplished their purpose "without due 
 process of law." Only thirty-two of these acts were vetoed by 
 the courts on account of interference with the constitutional 
 rights of the judiciary. 2 In short, whilst the state courts orig- 
 inally used the judicial veto principally to protect their own 
 constitutional rights, they now use it largely to condemn the 
 fruits of incorrect legislative procedure and to maintain the integ- 
 rity of "due process of law." Originally the state courts were 
 on the defensive. Now the effect of the judicial veto in the 
 states is to put the legislatures on the defensive. 
 
 A similar change has occurred in the use of the judicial veto by 
 the federal courts. All the cases in which provisions of state 
 constitutions and statutes, territorial statutes, and municipal 
 ordinances have been vetoed by the Supreme Court of the United 
 States down to the year 1912 have been classified according to 
 the clauses of the Federal Constitution with which these enact- 
 
 1 All but 28 of these vetoes were by the state courts. 
 * See HaJncs, op. cil., p. 307.
 
 360 STATE GOVERNMENT IN UNITED STATES 
 
 ments came in conflict. 1 From this classification it appears 
 that nearly one-third of all these enactments were declared un- 
 constitutional on the ground that they conflicted with that 
 clause of the Federal Constitution which grants to the federal 
 government the power to regulate interstate and foreign com- 
 merce, and that another third, nearly, conflicted with the provi- 
 sion forbidding any state to pass any law impairing the obliga- 
 tion of contracts. About one-tenth of the vetoed enactments 
 conflicted with the clause of the fourteenth amendment forbid- 
 ding any state to deprive any person of life, liberty, or property 
 without due process of law, or to deny to any person the equal 
 protection of the laws. There was no considerable number of 
 conflicts with any other single provision of the Federal Constitu- 
 tion. Prior to the Civil War the greater portion of the state 
 laws declared unconstitutional by the federal courts conflicted 
 with the commerce clause of the Federal Constitution, or tended 
 in some other way to impair the supremacy of the federal govern- 
 ment within its constitutional sphere. Since then an increasing 
 portion have conflicted with the clauses limiting the supremacy of 
 the state governments in their constitutional spheres. The " due 
 process of law" clause has become particularly important during 
 the last quarter century. In other words, the judicial veto was 
 originally used by the federal courts against state legislation 
 primarily in order to maintain the supremacy of the federal govern- 
 ment in the conduct of national affairs. Latterly it has tended 
 to be used more and more to enforce federal constitutional 
 limitations upon the conduct of local affairs by the state govern- 
 ments. 
 
 DUE PROCESS OF LAW 
 
 Both the more frequent use of the judicial veto by the state 
 courts and the increasing interference in the domestic affairs 
 of the states by the federal courts have been greatly facilitated by 
 the construction which has been placed upon the "due process of 
 law" clauses in both state and federal constitutions. Prior to 
 the Civil War due process of law in the states was guaranteed only 
 by the state constitutions, and the guarantee, as already pointed 
 
 1 See Moore, op. tit., appendix v.
 
 THE STATE JUDICIARY 361 
 
 out, was commonly understood to mean a guarantee of the right 
 to law. 1 
 
 The principal case, prior to the Civil War, in which the term 
 was interpreted more broadly arose out of the enforcement of 
 the New York state-wide prohibitory liquor law of i855- 2 I n 
 this case a law which prohibited the sale of intoxicants after 
 a certain date was declared unconstitutional, on the ground that 
 in effect it deprived those who owned intoxicants at that time of 
 their property without due process of law. The court's objection 
 to the law was caused, not only by the procedure prescribed for 
 the confiscation of intoxicants offered for sale after the law went 
 into effect, but also by the substance of the law itself. In the 
 case of intoxicants in the possession of inhabitants of the state 
 prior to the date when the act became effective and offered for 
 sale thereafter, the court declared their confiscation by any 
 procedure whatever to be unconstitutional. In general, how- 
 ever, the "due process" clause was not at that time supposed 
 to limit the power of the legislature in the enactment of sub- 
 stantive law. Its purpose was believed to be to secure a govern- 
 ment of law rather than of men, not to control the content of 
 the law. When the federal courts were first charged by the 
 fourteenth amendment with the duty of enforcing due process 
 of law upon the state governments, they still adhered to this 
 view. 3 
 
 It was inevitable that the courts, both state and federal, when 
 once they began to feel their power, should take a more aggressive 
 view of their duty under the "due process" clause. If ours is to 
 be a government of law, not of men, it follows that members of 
 a state legislature are not free to act arbitrarily and oppressively 
 any more than other men who may happen to hold public office. 
 In other words, they may not accomplish an arbitrary and un- 
 reasonable purpose by expressing it in the form of a statute 
 and calling it law. Should a legislature enact such a law, it 
 would be the duty of the court to interpose with a judicial veto. 
 The original Massachusetts constitution, for example, explicitly 
 
 1 See ante, ch. iii. Cf. E. S. Convin, "Due Process of Law before the Civil 
 War," 24 Harvard Law Review, p. 375. 
 
 * Wynchamer v. The People, 13 N. Y., 378 (1856). 
 8 See the Slaughter-House Cases, 16 Wall, 36 (1873).
 
 362 STATE GOVERNMENT IN UNITED STATES 
 
 provides that the law-making power of the legislature extends only 
 to the enactment of "wholesome and reasonable" measures. 
 The same limitation is implied in all the state constitutions. 
 Thus the constitutional guarantee of due process of law comes to 
 mean a guarantee of reasonable law, or what in the opinion of the 
 court is reasonable law. Doubtless, the authority of a court to 
 declare a statute unconstitutional on the ground of unreasonable- 
 ness is a delicate one, not to be exercised by inferior courts, nor 
 by any court unless the unreasonableness of the act is clear 
 beyond a doubt. Indeed, the very existence of such power was 
 long denied by leading writers on constitutional law. 1 The 
 attitude of the state and federal courts, however, toward much 
 recent legislation relating to social and industrial conditions 
 cannot be explained except upon the theory that such a power 
 exists. But it is clear that the courts themselves in the exercise 
 of this power are also subject to the rule of reason, and that 
 between courts and legislature the ultimate judges must be the 
 people. 
 
 THE RULE OF REASON 
 
 The first important case in which the rule of reason was applied 
 by the federal courts against state legislation was decided the 
 year after the decision of the Slaughter-House cases. 2 In this 
 case the United States Supreme Court was asked to enforce the 
 payment of interest due on bonds issued by a municipal corpora- 
 tion under a state law authorizing cities and counties "to issue 
 bonds for the purpose of building bridges, aiding railroads, water- 
 power, or other works of internal improvement." The bonds in 
 question were issued for the purpose of aiding a company to 
 establish an iron-bridge works. It was conceded that the steps 
 required by the act prerequisite to the issuing of the bonds were 
 regular, and that the language of the statute was sufficient to 
 justify the action of the city authorities, if the statute itself was 
 within the constitutional competency of the legislature. The 
 
 1 See Thomas M. Cooley, A Treatise on the Constitutional Limitations whkh rest 
 upon the Legislative Power of the States of the American Union (yth ed.), ch. vii, 
 "The Circumstances under which a Legislative Act may be declared Unconstitu- 
 tional." 
 
 1 Loan Association v. Topeka, 20 Wall, 655 (1874).
 
 THE STATE JUDICIARY 363 
 
 Supreme Court held that "the theory of our governments, state 
 and federal, is opposed to the deposit of unlimited power any- 
 where. . . . There are limitations on such power which grow 
 out of the essential nature of all free governments, implied 
 reservations of individual rights, without which the social 
 compact could not exist, and which are respected by all 
 governments entitled to the name. . . . There can be no lawful 
 tax which is not levied for a public purpose." In this case the 
 court believed that a tax levied for the purpose of meeting the 
 interest charges on bonds issued in aid of a private iron-bridge 
 works was not levied for a public purpose. In effect by this 
 decision the right of the city to repudiate the bonds was sustained. 
 In a dissenting opinion a minority of the court declared that 
 " courts cannot nullify an act of the state legislature on the vague 
 ground that they think it opposed to a general latent spirit sup- 
 posed to pervade or underlie the constitution, where neither the 
 terms nor the implications of the instrument disclose any such 
 restriction. . . . Such a power is denied to the courts because 
 to concede it would be to make the courts sovereign over both 
 the constitution and the people, and convert the government into 
 a judicial despotism. . . . Unwise laws and such as are highly 
 inexpedient and unjust are frequently passed by legislative bodies, 
 but there is no power vested in the circuit court to determine 
 that any law passed by a state legislature is void, if it is not 
 repugnant to their own constitution nor the constitution of the 
 United States." The opinion of the minority was consistent 
 with the theory of judicial review generally acted on by the courts 
 prior to that time, but it was the opinion of the majority that has 
 since then prevailed. 
 
 Another step in the judicial application of the rule of reason 
 was taken in connection with the regulation of railroads and other 
 so-called "businesses affected with a public interest." In the 
 leading case l the United States Supreme Court noted the con- 
 tention "that the owner of property is entitled to a reasonable 
 compensation for its use, even though it be clothed with a public 
 interest, and that what is reasonable is a judicial and not a legis- 
 lative question," and rejected it, saying: "As has already been 
 shown, the practice has been otherwise ... it has been cus- 
 
 1 Munn v. Illinois, 94 U. S. 113 (1876).
 
 364 STATE GOVERNMENT IN UNITED STATES 
 
 ternary from time immemorial for the legislature to declare what 
 shall be a reasonable compensation under such circumstances. . . . 
 We know that this is a power which may be abused ; but that 
 is no argument against its existence. For protection against 
 abuses by legislatures the people must resort to the polls, not to 
 the courts." This was the view expressed by the minority in 
 the Topeka bridge-works case. Though temporarily revived, it 
 was becoming old-fashioned, and was vigorously denounced in a 
 dissenting opinion by a minority of the court. The minority 
 view soon came to prevail, and eventually was stated by an 
 undivided court as follows: "A state enactment, . . . estab- 
 lishing rates for the transportation of persons and property by 
 railroad that will not admit of the carrier earning such compen- 
 sation as under all the circumstances is just to it and to the public 
 would deprive such carrier of its property without due process 
 of law . . . , and would therefore be repugnant to the fourteenth 
 amendment of the constitution of the United States. While 
 rates for the transportation of persons and property within the 
 limits of a state are primarily for its determination, the question 
 whether they are so unreasonably low as to deprive the carrier 
 of its property without such compensation as the constitution 
 secures, and therefore without due process of law, cannot be so 
 conclusively determined by the legislature of the state . . . 
 that the matter may not become the subject of judicial inquiry." 
 As the court further remarked, "the idea that any legislature 
 . . . can conclusively determine for the people and for the 
 courts that what it enacts in the form of law ... is consistent 
 with the fundamental law, is in opposition to the theory of our 
 institutions." l 
 
 A notable assertion of the power of the courts to reject un- 
 reasonable acts of legislation, or so to restrict their application 
 as to avoid consequences which seem to the courts unreasonable, 
 is found in connection with the judicial interpretation of the 
 antitrust acts. The Sherman antitrust act of 1890 is entitled, 
 "an act to protect trade and commerce against unlawful re- 
 straints and monopolies," and declares every contract, combina- 
 tion in the form of trust or otherwise, or conspiracy, in restraint 
 of trade or commerce among the several states, to be illegal. At 
 
 1 Smyth v. Ames, 169 U. S. 466, 526 (1898).
 
 THE STATE JUDICIARY 365 
 
 first the United State Supreme Court held every contract or 
 combination found by them to be in restraint of such trade to be 
 forbidden by the act. Then in the Northern Securities case * 
 one of the five judges, who joined in the decision that the North- 
 ern Securities Company was an illegal combination, stated that 
 he could not assent to the view that every contract or combina- 
 tion that might be found to be in restraint of interstate trade 
 would be illegal. The only contracts and combinations which 
 in his opinion should be declared illegal were those imposing 
 an unreasonable restraint upon interstate trade. 2 Finally, in 
 the Standard Oil and American Tobacco Company cases, decided 
 seven years later, this view was accepted by eight of the nine 
 members of the court. 3 The manner of applying the rule of 
 reason to state antitrust legislation is well illustrated by two 
 recent cases involving the so-called Harvester trust. 4 In one 
 of these cases a Missouri act, forbidding "all arrangements . . . 
 between two or more persons, designed to lessen, or which tend 
 to lessen, lawful trade or full competition . . . ," or "which are 
 designed ... to increase, or which tend to increase, the 
 market price of any product . . . ," was sustained by the United 
 States Supreme Court. In the other case, the Kentucky anti- 
 trust acts, which had been construed by the state supreme court 
 to make any combination for the purpose of controlling prices 
 lawful, unless for the purpose or with the effect of fixing a price 
 greater or less than the real value of the article, were declared 
 unconstitutional. The United States Supreme Court held that 
 the expression "real value," defined by the state supreme court 
 as "market value under fair competition and under normal 
 market conditions, " was in the given case nothing more than an 
 illusory form of words, and that the law as construed by the 
 state court prescribed an unreasonable standard of conduct. 
 Doubtless, however, if the state supreme court had not been 
 trying to construe the law in such a way as to apply to foreign 
 combinations like the Harvester Company and not to apply to 
 
 1 Northern Securities Co. . United States, 193 U. S. 197 (1004). 
 * See case cited, at p. 361. 
 
 3 221 U. S. i, 106. 
 
 4 International Harvester Co. r. Missouri, 234 U. S., 199, and International 
 Harvester Co. v. Kentucky, 234 U. S. 216; both decided in 1914.
 
 3 66 STATE GOVERNMENT IN UNITED STATES 
 
 domestic combinations like the tobacco growers' association, 
 they could have given the law what would have seemed to the 
 United States court a reasonable meaning. 
 
 The rule of reason was first applied to labor legislation in a 
 decision of the New York Court of Appeals in 1885. 1 In the 
 preceding year the legislature enacted a law "to improve the 
 public health by prohibiting the manufacture of cigars and 
 preparation of tobacco in any form in tenement houses" in 
 certain cities, namely New York and Brooklyn. The con- 
 stitutionality of the act was immediately attacked on the ground 
 that it would deprive the manufacturers of cigars and other 
 tobacco products in tenement houses of liberty and property 
 without due process of law. The court declared that "the 
 constitutional guarantee that no person shall be deprived of his 
 property without due process of law may be violated without the 
 physical taking of property. . . . Any law which . . . takes 
 away any of its essential attributes deprives the owner 'of his 
 property. ... So too one may be deprived of his liberty and 
 his constitutional rights thereto violated without the actual im- 
 prisonment or restraint of his person. Liberty ... as under- 
 stood in this country, means the right, not only of freedom from 
 actual servitude, imprisonment, or restraint, but the right of 
 one to use his faculties in all lawful ways, to live and work where 
 he will. . . . Generally it is for the legislature to determine what 
 laws and regulations are needed to protect the public health and 
 secure the public comfort and safety, and while its measures are 
 calculated, intended, convenient, and appropriate to accomplish 
 these ends, the exercise of its discretion is not subject to review 
 by the courts. But they must have some relation to these 
 ends. Under the mere guise of police regulations, personal rights 
 and private property cannot be arbitrarily invaded, and the 
 determination of the legislature is not final or conclusive. If it 
 passes an act ostensibly for the public health, and thereby de- 
 stroys or takes away the property of the citizen, or interferes 
 with his personal liberty, then it is for the courts to scrutinize 
 the act and see whether it really relates to and is convenient and 
 appropriate to promote the public health. It matters not that 
 the legislature may in the title to the act, or in its body, declare 
 
 1 In re Jacobs, 98 N. Y. 98.
 
 THE STATE JUDICIARY 367 
 
 that it is intended for the improvement of the public health. 
 Such a declaration does not conclude the courts, and they must 
 yet determine the fact declared and enforce the supreme 
 law. ..." The court thereupon determined that the act in 
 question was not a health law and that it had no relation what- 
 ever to the public health. Consequently, the act was declared 
 unconstitutional, being in the opinion of the court an unreason- 
 able exercise of the police power. 
 
 Since this decision in the Jacobs case, the judicial veto has been 
 invoked on the ground of unreasonableness more frequently 
 against labor laws than against any other single class of measures. 
 Laws designed to protect industrial wage-earners and thereby 
 also the people as a whole against the injurious effects of employ- 
 ment in factories, mills, mines, and other work-places for ex- 
 cessively long hours, or under unwholesome conditions, or at 
 wages inadequate to meet the cost of the necessaries of decent 
 living, or in other respects to regulate the conditions of employ- 
 ment in modern industry in the interest of the employees, must 
 be defended, if at all, as necessary and proper uses of the police 
 power. The police power may be defined as the power of 
 promoting the public welfare by restraining and regulating the 
 use of liberty and property. 1 Its use therefore in every case 
 involves some deprivation of liberty and property, and gives 
 the courts the opportunity to decide whether such deprivation 
 has been accomplished by due process of law. In the opinion 
 of the courts, many laws limiting the hours of labor of men and 
 women, regulating employment under unwholesome conditions, 
 prohibiting the payment of wages in anything but lawful money, 
 requiring the payment of wages at frequent and regular intervals, 
 forbidding deductions from wages on account of imperfect 
 workmanship, requiring compensation for industrial accidents at 
 specified rates, prohibiting discrimination against workmen on 
 account of membership in trade unions, or in other respects 
 limiting the freedom of contract between employer and em- 
 ployee, have been unreasonable, and consequently have been 
 vetoed by them. 2 The courts have set up a new right unknown 
 prior to 1885, namely the right to freedom of contract, and in 
 
 1 See E. Freund, The Police Power. 
 
 1 See F. J. Goodnow, Social Reform and the Constitution,
 
 368 STATE GOVERNMENT IN UNITED STATES 
 
 many cases have declared to be unconstitutional, state enactments 
 in the interest of industrial wage-earners interfering therewith. 1 
 
 CRITICISM OF RULE OF REASON 
 
 The unreasonableness of the legislation to which the rule of 
 reason has been applied is, however, a matter of opinion. The 
 enactment of such laws in itself is evidence of a strong and, at 
 least in the legislature, preponderant opinion that they are 
 reasonable. Naturally the courts have not escaped adverse 
 criticism for their use of the judicial veto to defeat such legislation. 
 The practice of vetoing laws because they seem to the courts 
 to be unreasonable is particularly vexatious when the courts are 
 closely divided in their opinion. Of seventy-eight cases in which 
 statutes were vetoed by the United States Supreme Court be- 
 tween 1901 and 1907, twenty-nine decisions were rendered by a 
 vote of five to four, forty-six by a vote of six to three, and three 
 by a vote of five to three. 2 Mr. Bryan, in his famous Chicago 
 convention speech of 1896, voiced the thoughts of many, when 
 he exclaimed : "They criticize us for our criticism of the Supreme 
 Court of the United States. My friends, we have not criticized, 
 we have simply called attention to what you already know. 
 If you want criticisms, read the dissenting opinions of the 
 Court." 
 
 The courts, indeed, have found the severest critics of the 
 application of the rule of reason among the judges themselves. 
 One example, so far as its application to labor legislation is con- 
 cerned, will serve as well as many. In 1905, the United States 
 Supreme Court vetoed the New York bakers' ten-hour law. This 
 law had been enacted to protect the health of employees in 
 bakeries, and had been sustained by the state courts on the ground 
 that it was a reasonable exercise of the police power. Altogether 
 eight of the thirteen judges who pronounced judgment upon the 
 act during its passage through the state courts, and four of the 
 nine members of the United States Supreme Court, were of the 
 opinion that the act should be upheld as a valid health law. 
 Five members of the latter court, however, declared that "there 
 
 1 See R. Pound, "Liberty of Contract," 18 Yale Law Journal, p. 454. 
 1 See Raines, op. cit., p. 327.
 
 THE STATE JUDICIARY 369 
 
 is in our judgment no reasonable ground for holding this to be 
 necessary or appropriate as a health law. . . ." And again, 
 "There is no reasonable ground for interfering with the liberty 
 of person or the right of free contract by determining the hours 
 of labor in the occupation of a baker." This decision has been 
 freely condemned by the critics of the courts, but by none more 
 effectively than by the dissenting members of the Supreme Court 
 itself. Justice Harlan said : "It is enough for the determination 
 of this case, and it is enough for this Court to know, that the 
 question is one about which there is room for debate and for an 
 honest difference of opinion. There are many reasons of a 
 weighty substantial character ... in support of the theory 
 that, all things considered, more than ten hours' steady work each 
 day, from week to week, in a bakery or confectionery establish- 
 ment, may endanger the health and shorten the lives of the work- 
 men, thereby diminishing their physical and mental capacity 
 to serve the state and to provide for those dependent upon them. 
 If such reasons exist, that ought to be the end of this case, for 
 the state is not amenable to the judiciary in respect of its legis- 
 lative enactments, unless such enactments are plainly, palpably, 
 beyond all question, inconsistent with the Constitution of the 
 United States." 
 
 Justice Holmes registered a separate protest against the deci- 
 sion of the majority of the court. "This case," he declared, 
 "is decided upon an economic theory which a large part of the 
 country does not entertain. If it were a question whether I 
 agreed with that theory, I should desire to study it further and 
 long before making up my mind. But I do not conceive that to 
 be my duty, because I strongly believe that my agreement or 
 disagreement has nothing to do with the right of a majority 
 to embody their opinions in law. . . . The fourteenth amend- 
 ment does not enact Mr. Herbert Spencer's Social Statics. . . . 
 A constitution is not intended to embody a particular economic 
 theory, whether of paternalism and the organic relation of the 
 citizen to the state or of laissez faire. It is made for people of 
 fundamentally differing views, and the accident of our finding 
 certain opinions natural and familiar or novel and even shocking 
 ought not to conclude our judgment upon the question whether 
 statutes embodying them conflict with the constitution of the 
 
 2B
 
 370 STATE GOVERNMENT IN UNITED STATES 
 
 United States." There can be no doubt that Justice Holmes 
 expressed correctly the duty of the courts in the exercise of the 
 power of judicial review. The Federal Constitution explicitly 
 guarantees to the people of the states a republican form of 
 government, but it does not guarantee the conduct of state 
 affairs according to any particular theory. Certainly it does not 
 guarantee the conduct of state affairs according to the theory of 
 laissez faire. Socialism itself would be constitutional, if a social 
 revolution were necessary for the protection of the people, and 
 if that particular kind of a social revolution were appropriate to 
 the occasion. Should such a revolution be brought about by 
 "due process of law," the judiciary would have no more right, 
 under any sound interpretation of the American constitutional 
 system, to interpose with a judicial veto, than they had to at- 
 tempt to settle the question of slavery by the Dred Scott decision. 
 Criticism of the courts for the injudicious application of the 
 rule of reason dates from the first tune when the courts applied 
 the rule. In the first important case, the New York prohibitory 
 liquor law case, decided in 1855, the majority of the court said, 
 "Liquor is not a nuisance per se, nor can it be made so by a 
 simple legislative declaration." Since prohibitory liquor laws 
 had been enacted and were then in full force in ten or a dozen 
 other states, there was a good deal of criticism of this decision. 
 The court would doubtless have been correct in saying that liquor 
 had not been considered a nuisance under the common law, but 
 whether or not liquor was considered a nuisance by the people 
 of New York in 1855 was certainly a question which the people 
 could decide for themselves through their regular representatives 
 better than the court could decide it for them. When the same 
 question subsequently arose in another case and was eventually 
 brought before the Supreme Court of the United States, that 
 court was of the opinion that "the courts cannot, without usurp- 
 ing legislative functions, override the will of the people as thus 
 expressed by their chosen representatives." 1 The New York 
 courts received a similar rebuff from the United States Supreme 
 Court in the oleomargarine case. In 1885 the New York court 
 of appeals declared unconstitutional "an act to prevent decep- 
 tion in sales of dairy products," which prohibited the sale of 
 
 1 Mugler v. Kansas, 123 U. S. 623 (1887).
 
 THE STATE JUDICIARY 371 
 
 oleomargarine. This decision was made on the ground that the 
 anti-oleomargarine act was arbitrary class legislation, unreason- 
 ably sacrificing the rights of the oleo manufacturers to the 
 interests of the butter makers. 1 When a similar statute, enacted 
 by the legislature of Pennsylvania, came shortly afterwards be- 
 fore the Supreme Court of the United States, the court said : 
 "It cannot adjudge that the defendant's rights of liberty and 
 property, as thus denned, have been infringed by the statute of 
 Pennsylvania, without holding that, although it may have been 
 enacted in good faith for the objects expressed in the title, 
 namely, to protect the public health and to prevent the adultera- 
 tion of dairy products and fraud in the sale thereof, it has in fact 
 no real and substantial relation to those objects. The court is 
 unable to affirm that this legislation has no real or substantial 
 relation to those subjects." 2 A dissenting judge of the Supreme 
 Court pointed out the conflict between this decision and that of 
 the New York court, vetoing the similar act of the New York 
 legislature, but the majority repudiated that precedent. 
 
 Dissatisfaction with the use of the judicial veto by the federal 
 courts in cases involving the rule of reason has on the whole, 
 particularly in recent times, been much less than with its use 
 by some of the state courts. There have been several instances 
 in which similar legislation has been attacked in the courts of a 
 number of states, and has been pronounced unconstitutional by 
 some state courts and constitutional by others. In most of 
 these cases the United States Supreme Court has taken the more 
 sympathetic view of the reasonableness of these laws. For 
 example, to consider only the field of labor legislation, laws 
 prescribing the mode of weighing coal in order to fix the com- 
 pensation of coal miners have been held invalid in Illinois, 
 Missouri, Colorado, and Kansas, but not in Tennessee, nor, on 
 appeal in the last case, by the federal Supreme Court. Laws 
 designed to prevent extortion at company stores by requiring 
 employers to pay wages in money have been declared unconstitu- 
 tional in several states, and constitutional in several other states 
 and in the United States. In one state the courts denied- the 
 power of the legislature to enact a mandatory workmen's com- 
 
 1 People v. Marx, 99 N. Y. 277 (1885). 
 
 * Powell v. Pennsylvania, 127 U. S. 678 (1888).
 
 372 STATE GOVERNMENT IN UNITED STATES 
 
 pensation law, but similar laws have been enacted in many other 
 states and also by Congress without incurring judicial condemna- 
 tion. Probably nothing has injured the prestige of certain state 
 courts more seriously than their refusal to enforce laws, involving 
 an alleged unreasonable exercise of the police power, which the 
 courts of other states and of the United States have declared 
 constitutionally unobjectionable. The result of such decisions 
 in many states has been to create grave uncertainty as to the 
 limits of legislative power to deal with social and industrial condi- 
 tions and to cause excessive delay in putting into effect remedial 
 legislation demanded by a strong and preponderant opinion 
 among the people. The modern development of the rule of 
 reason has doubtless greatly increased the scope and importance 
 of the judicial veto, but its injudicious use has seriously impaired 
 popular confidence in the courts, particularly in certain states. 1 
 
 JUDICIAL REVIEW OF THE VALIDITY OF LEGISLATIVE 
 
 PROCEDURE 
 
 A second source of the recent growth in the political power of 
 the courts, which also has occasioned criticism of their use of 
 the judicial veto, is to be found in the constitutional limitations 
 upon the forms of legislation and legislative procedure. The 
 principal limitations upon the forms of legislation are the pro- 
 visions that the subject of an act shall be expressed in the title, 
 and that the act shall not embrace more than one subject, found 
 in about two-thirds of the constitutions, and the provisions for- 
 bidding the amendment of acts by mere reference to title, found in 
 nearly half of the constitutions. These limitations were adopted 
 to protect honest legislators against fraud and surprise, and to 
 stop the practice of logrolling. 2 They undoubtedly inculcate a 
 sound legislative practice, and if not construed too literally by 
 the courts, tend to encourage clearness as well as honesty in 
 legislation. Unfortunately they have been construed too liter- 
 ally by the courts of some states, giving rise to an enormous 
 amount of litigation, and leading to the nullification of beneficial 
 as well as undesirable statutes. An eminent authority notes 
 
 1 See Jane Addams, in American Journal of Sociology, xiii, p. 772. 
 * See ante, ch. v.
 
 THE STATE JUDICIARY 373 
 
 that "while the courts lean to a liberal construction, they have 
 in a minority of cases been indefensibly and even preposterously 
 technical." l In recent years there has been an astonishing 
 number of acts vetoed by the courts on account of purely formal 
 defects, especially in certain states of the South 'and West. On 
 the whole, however, the limitations upon the forms of legislation 
 have been of less consequence, as applied by the courts, than 
 those upon legislative procedure. 
 
 The principal procedural requirements are these : that bills 
 shall be read three separate times, or that they shall be read on 
 three separate days, or that they shall be read three times in 
 full ; that they shall be referred to legislative committees and 
 duly reported by the same; that they shall not be introduced 
 after a stated period ; that rejected measures shall not be rein- 
 troduced in the same session ; that a motion to reconsider shall 
 not be entertained on the same day ; that bills shall not be so 
 amended as to alter the subject thereof ; that bills and all amend- 
 ments shall be printed ; that they shall be on the desks of mem- 
 bers in their final form three days before their final passage ; that 
 a majority of all the members be required for passing a bill ; 
 that the final vote be by yeas and nays and be entered on the 
 journal ; and that the signature of the presiding officer must be 
 affixed hi open session. Some of these provisions are salutary, 
 and their fulfillment can be readily verified by examining the 
 journals, such as the requirements relating to the final vote on 
 the passage of a bill. Others, however, are impracticable, and 
 in practice are regularly evaded, such as the requirement that 
 a bill be read three times in full. Compliance with the con- 
 stitutional requirement in such cases becomes perfunctory or is 
 frankly ignored. In the latter case the necessary fraud may be 
 covered up by a false entry on the journal. The requirement 
 that no amendment be entertained which alters the subject of a 
 bill gives rise to exceedingly difficult questions of construction, 
 which are highly unsuitable for judicial review. In many states 
 the judicial veto is freely employed to condemn measures for 
 procedural defects, often without much or any regard for their 
 
 1 See E. Freund, "The Problem of Adequate Legislative Powers under State 
 Constitutions," in Publications of the New York State Constitutional Convention Com- 
 mission, Papers on Special Topics, pt. i, p. 107.
 
 374 STATE GOVERNMENT IN UNITED STATES 
 
 real merits. 1 In Alabama and Mississippi, for example, during 
 five recent years nearly two score of legislative acts were declared 
 unconstitutional by the state courts, mostly on account of formal 
 or procedural defects. 
 
 A recent and judicious critic of the work of the courts suggests 
 that the trouble lies in the constitutions themselves as well as 
 in the courts. 2 "The sound policy of constitution-making is to 
 impose procedural requirements only under the following condi- 
 tions : (i) that they serve an object of vital importance; (2) 
 that they can be complied with without unduly impeding busi- 
 ness ; (3) that they are not susceptible of evasion by purely formal 
 compliance or by false journal entries ; (4) that they do not raise 
 difficult questions of construction; and (5) that the fact of 
 compliance or non-compliance can be readily ascertained by an 
 inspection of the journal. The application of these tests would 
 lead to the discarding of most of the existing provisions. . . . 
 As to those retained, the judicial power to enforce compliance 
 should be limited." Professor Freund's suggestions for the 
 limitation of the power of judicial review are, that the validity 
 of a statute should not be questioned on account of procedural 
 defects after the expiry of a short period from the date of its 
 enactment, or that no statute should be questioned at all for 
 procedural or formal defects, if the attorney-general, prior to 
 approval by the governor, has certified that the form and pro- 
 cedure are constitutionally correct. In short, relief from the 
 evils of the injudicious use of the judicial veto on account of 
 technicalities should be sought by increasing executive responsi- 
 bility for the technical perfection of legislation. 
 
 REFORM OF THE JUDICIAL VETO 
 
 Many of the recent critics of the state judiciaries have de- 
 manded more drastic remedies for the abuse of the judicial veto. 
 The belief that technical justice too frequently was substituted 
 for substantial justice, and especially the belief that the rule of 
 reason, as applied by the courts, too frequently was unreasonable, 
 
 1 For a particularly flagrant case of the judicial veto on technical grounds, con- 
 trary to the merits, see Koehler and Lange v. Hill, 60 Iowa, 543 (1883), cited in 
 Thayer's Cases on Constitutional Law, i, p. 252. 
 
 3 See E. Freund, op. tit., p. 104.
 
 THE STATE JUDICIARY 375 
 
 culminated in a demand for more direct popular control of the 
 judiciary. The first method of direct popular control advocated 
 by the critics of the judiciary was the recall of judges. As has 
 already been stated, six of the ten states which have adopted the 
 popular recall of state officials included judges among the officials 
 subject to recall. Hitherto, however, the recall has been utilized 
 to remove judges from office even less than in the case of other 
 state officials. No judge has yet been recalled because of 
 popular dissatisfaction with a decision involving any question 
 of constitutional interpretation. The first instance of the 
 popular recall of a judge occurred in California. The judge of a 
 lower court reduced to a nominal sum the bail originally required 
 of a prisoner awaiting trial for a serious offense. Thereupon the 
 prisoner fled. The judge was charged with collusion in the 
 prisoner's escape, and was recalled by the indignant people of 
 his district. The recall has not yet even been invoked against a 
 member of any superior or supreme court. In short, the recall 
 of judges, like the recall of state officials generally, seems likely 
 to be little used. 
 
 Another method of direct popular control is the recall of judicial 
 decisions. The recall of judicial decisions was first suggested by 
 Theodore Roosevelt in an address before the Ohio constitutional 
 convention of 1912. The plan, as finally explained in his ad- 
 dress before the Progressive National Convention the same year, 
 was as follows : "The people themselves must be the ultimate 
 makers of their own constitution, and where their agents differ 
 in their interpretations of the constitution the people themselves 
 should be given the chance, after full and deliberate judgment, 
 authoritatively to settle what interpretation it is that their rep- 
 resentatives shall thereafter adopt as binding. Whenever in 
 our constitutional system of government there exist general 
 prohibitions that, as interpreted by the courts, nullify, or may 
 be used to nullify, specific laws passed, and admittedly passed, 
 in the interest of social justice, we are for such immediate law or 
 amendment to the constitution, if that be necessary, as will 
 thereafter permit a reference to the people of the public effect 
 of such decision under forms securing full deliberation, to the 
 end that the specific act of the legislative branch of the govern- 
 ment, thus judicially nullified, and such amendments thereof as
 
 376 STATE GOVERNMENT IN UNITED STATES 
 
 may come within its scope and purpose, may constitutionally be 
 excepted by vote of the people from the general prohibitions, 
 the same as if that particular act had been expressly excepted 
 when the prohibition was adopted. This will necessitate the 
 establishment of machinery for making much easier of amend- 
 ment both the national and the several state constitutions, 
 especially with the view of prompt action on certain judicial 
 decisions action as specific and limited as that taken by the 
 passage of the eleventh amendment to the federal constitution." 
 It is evident that the term, recall of judicial decisions, is a 
 misnomer. The proposal was not to reverse the action of the 
 judiciary in a case once decided by them, but to prevent such 
 action from becoming a precedent for the decision of future cases 
 arising under the same law, if the people were of the opinion 
 that the rule of reason had been unreasonably applied in that 
 case to that particular law. In Colorado this proposal was 
 adopted in the form of a constitutional amendment, authorizing 
 the people, by the same procedure as that provided for the 
 direct popular initiative, to order the enforcement of a statute, 
 which had been duly enacted by the legislature and approved by 
 the governor, but vetoed by the supreme court, if the majority 
 so desired. No decision, however, has yet been "recalled" in 
 Colorado by this procedure. In New York the decision of the 
 state supreme court, adverse to the constitutionality of the work- 
 men's compensation act, was subsequently recalled by the ordi- 
 nary process of constitutional amendment. In this instance the 
 amendment adopted by the people specifically provided that the 
 "due process of law" clause should not thereafter be construed 
 to forbid the enactment by the legislature of a workmen's com- 
 pensation act. In general, those states which possess the direct 
 popular initiative, applying to constitutional amendments as 
 well as to ordinary statutes, already possess all the machinery 
 necessary for precisely that "recall of judicial decisions" which 
 Roosevelt advocated, and in any state where the process of 
 constitutional amendment is reasonably easy there is little 
 time to be gained by the adoption of special procedure for the 
 recall of decisions. In states where the process of constitutional 
 amendment is slow and inconvenient the general reform of that 
 process is what is most immediately important. It is not sur-
 
 THE STATE JUDICIARY 377 
 
 prising, therefore, that the "recall of decisions" has made little 
 progress under that name. 
 
 The agitation over the judicial veto, however, was not with- 
 out effect. The Ohio constitutional convention, where the plan 
 for the "recall of decisions" was first broached, recognized the 
 evil which Roosevelt sought to relieve, and provided a remedy 
 of its own. The Ohio plan, adopted by the people in the same 
 year, provided simply that statutes should not be declared un- 
 constitutional by the lower courts, nor by the supreme court 
 unless at least six of the seven judges concurred in the decision. 1 
 This plan should effectually prevent the nullification of legisla- 
 tion by the state courts unless its repugnance to the constitution 
 is actually clear beyond a reasonable doubt. Another good re- 
 sult of the agitation over the judicial veto was the adoption by 
 Congress in 1915 of an amendment to the federal judiciary act, 
 providing that appeals might be taken from the state courts to 
 the United States Supreme Court in all cases involving the inter- 
 pretation of the Constitution of the United States, even when 
 the rights claimed under the Federal Constitution were pro- 
 tected by the state courts. Thus it should be possible hereafter 
 for the federal courts to establish a uniform interpretation of 
 the Federal Constitution throughout the country in all cases in- 
 volving the exercise of the rule of reason under the "due process 
 of law" clause. The most important result of the agitation over 
 the judicial veto was the change it produced in the attitude of 
 the courts towards legislation enacted under the police power 
 for the protection of industrial wage earners against the hazards 
 of their employments. The Illinois supreme court, for example, 
 which in 1895 denied the power of the legislature to limit the 
 hours of labor of women employed in industry, reversed that 
 decision in igio. 2 The New York court of appeals, which in 1907 
 denied the power of the legislature to prohibit the employment 
 of women in industry at night, reversed that decision in 
 
 1 A similar plan was submitted to the people of Minnesota in 1914 and approved 
 by a majority of those voting thereon, but failed of adoption because of the failure 
 of a majority of all those attending the polls to vote for it, as required by the con- 
 stitution of that state. See American Year Book for 1914, p. 62. 
 
 1 Ritchie v. People, 155 HI. 98 (1895) ; Ritchie v. Wayman, 244X11. 509 (1910). 
 
 People v. Williams, 189 N. Y. 131 (1907) ; People v. Schweinler Press, 214 
 N. Y. 395 (i9i5).
 
 378 STATE GOVERNMENT IN UNITED STATES 
 
 DEVELOPMENT OF THE IDEA OF LIBERTY 
 
 The truth is that a profound change has been taking place in 
 the dominant conceptions of liberty and justice. In the latter 
 part of the nineteenth century the courts came much more com- 
 pletely than at any previous time under the influence of the 
 individualistic social philosophy of the English utilitarians. 
 They seem to have been especially impressed with the later form 
 of that philosophy, formulated by Herbert Spencer. This influ- 
 ence is clearly revealed in numerous judicial opinions and legal 
 writings, and was well expressed by the then leader of the Ameri- 
 can bar, James C. Carter. 1 "There is a guide," he wrote, "which, 
 when kept clearly and constantly in view, sufficiently informs us 
 what we should aim to do by legislation and what should be 
 left to other agencies. This is what I have so often insisted upon 
 as the sole function both of law and legislation, namely, to 
 secure to each individual the utmost liberty which he can enjoy 
 consistently with the like liberty to all others. . . . To leave 
 each man to work out in freedom his own happiness or misery, 
 to stand or fall by the consequences of his own conduct, is the 
 true method of human discipline." This is a negative conception 
 of liberty and justice, which was probably never consciously ac- 
 cepted by the American people as a whole, certainly not without 
 important qualifications. If held at the time of the Civil War, it 
 would have left the freedmen, for example, to relapse into peonage 
 under the guise of liberty of contract. Such a conception made 
 it possible for intelligent men sincerely to denounce plans "to 
 equalize the inequalities which the rights of free contract and 
 private property have brought about," that is, for example, 
 laws levying a progressive income tax or regulating the hours 
 of labor, as involving "confiscation or the destruction of the 
 principle of private property." 2 It is this negative conception 
 of liberty and justice that was repudiated by Justice Holmes in 
 the dissenting opinion, already quoted, in the New York bakers' 
 case. 
 
 The twentieth century has brought a more positive conception 
 
 1 Carter, Law, its Origin, Growth, and Function, p. 337. 
 
 1 See W. H. Taft, "Recent Criticisms of the Federal Judiciary," in Report of the 
 American Bar Association, 1895, p. 246.
 
 THE STATE JUDICIARY 379 
 
 of liberty. It is coming to mean more than the mere absence of 
 physical restraints upon the physical person, or of statutory re- 
 straints upon the legal person. Real Liberty is not the antithesis 
 of social control. Rather, rightly directed and effective social 
 control is the condition of such liberty. Thus the modern con- 
 ception of liberty is bound up with the modern conception of 
 social justice, and social justice is understood to be an end in 
 itself, not merely another name for justice to individuals. It 
 involves the idea of the state itself as a person, as a subject of 
 rights, the only idea of the state consistent with the origin of 
 the American states and the nature of their political institutions. 
 Thus it becomes possible for intelligent men sincerely to advocate 
 plans to equalize at least some of the inequalities which the rights 
 of free contract and private property have brought about, with- 
 out doing violence to their faith in the fundamental principles 
 of American government. Liberty of contract, in particular, 
 that late nineteenth century product of juristic reasoning, now 
 tends to be conceived, not as an inalienable part of the citizen's 
 constitutional liberty, but as a means to such liberty, to be pro- 
 tected only in so far as it effectually serves that end. State 
 legislatures are now enacting more freely than ever before meas- 
 ures restricting in various ways the liberty of contract, and these 
 measures in increasing numbers are successfully withstanding 
 the process of judicial review. The supreme court of Oregon, to 
 mention only one of the states, has recently sustained statutes 
 providing for the fixing of minimum wages for women employed 
 in industry and prescribing a maximum limit upon the hours of 
 labor of wage-earning men. 1 A few years ago such statutes 
 would doubtless have been summarily vetoed by the courts in 
 every state in the Union. Though there is still much uncertainty 
 in the attitude of the courts towards statutes involving limitations 
 upon liberty of contract, on the whole the twentieth century con- 
 ception of liberty clearly tends to prevail in the halls of justice 
 as well as in those of legislation. 2 
 
 1 See Stettler v. O'Hara, 69 Ore. 519 (1914), and State v. Bunting, 71 Ore. 259 
 (1914). 
 
 1 See F. Frankfurter, "Hours of Labor and Realism in Constitutional Law," 
 29 Harvard Law Review, p. 353.
 
 380 STATE GOVERNMENT IN UNITED STATES 
 
 CONCLUSION 
 
 The American doctrine of judicial review is fundamentally 
 sound. In times like the present, however, when public opinion 
 on matters of vital interest is undergoing a radical change, the 
 judiciary are put to a severe test. They are not expected to be 
 the first by whom new ideas are introduced. It is their function 
 to compel due deliberation on the part of legislators and of the 
 people when new social and economic conditions seem to demand 
 new principles of legislation. But neither should the courts be 
 the last to lay the old ideas aside. The judicial veto is one of the 
 greatest of political powers and should be exercised with corre- 
 sponding caution. It is easy for learned judges to believe that 
 they have a mission to save the people from the consequences of 
 their own supposed folly, but they should not forget that both 
 the state and federal courts have not generally been happy in 
 their boldest political decisions. In general, the people profit 
 most from their own experience with unwise legislation, and will 
 find an effective remedy at the polls. The courts may properly 
 defer the enforcement of legislation that seems to them clearly 
 unreasonable, when passed in response to a quickly formed and 
 untested public opinion, until that opinion has been seasoned by 
 further reflection, but the strong and preponderant opinion of 
 the people must, without too much delay, be able to prevail. 
 Since the time of Lincoln it has been settled that the people 
 themselves must be the final arbiters of their own constitutions. 
 In recent years the courts have been freely criticized for their 
 slowness to discard the late nineteenth century conception of 
 liberty and justice. It was right, however, that they should 
 be somewhat slower than the legislatures in adopting the new 
 principles of legislation. It was also right that they should be 
 criticized for their slowness, for in the exercise of their political 
 powers they are amenable, like the other organs of government, 
 to public opinion, and ultimately must be guided by it. 
 
 The system of judicial organization under which the judges 
 exercise their political powers most effectively and with least 
 friction is that originally adopted in Massachusetts. Appoint- 
 ment by the governor and tenure during good behavior have 
 proved well suited for the maintenance of an able and impartial
 
 THE STATE JUDICIARY 381 
 
 judiciary. The system of removal by the governor upon ad- 
 dress by a majority of the legislature has worked better than the 
 usual process of impeachment. It has facilitated the retire- 
 ment of a few undesirable judges without undermining the inde- 
 pendence of the judiciary. 1 The system of advisory opinions has 
 also worked well. The Massachusetts supreme court vetoes 
 fewer legislative enactments than the supreme court of any 
 other of the larger states. This relatively infrequent use of 
 the judicial veto may be partly explained by the absence of 
 most of the constitutional limitations upon legislative powers 
 and procedure which abound in the constitutions of many 
 states. But it is to no inconsiderable degree the result of the 
 legislative and executive practice of calling upon the supreme 
 court for their opinion concerning the constitutionality of pro- 
 posed measures, when their constitutionality is questionable, in 
 advance of their enactment into law. Often there are several 
 such requests for advisory opinions in the course of a single 
 legislative session. The opinion of the court is invariably ac- 
 cepted. When the opinion is adverse to the constitutionality 
 of a proposed measure, the legislature may, if it chooses, proceed 
 thereafter by means of a constitutional amendment. This has 
 been done in several cases. More frequently the measure is 
 dropped. Doubtless, it would not be desirable to require the 
 courts in most states to pass upon all the constitutional questions 
 that might arise prior to final action in the legislature or by the 
 executive. Questions concerning the form of legislation or 
 legislative procedure might better be disposed of in some more 
 summary way, for example, upon the opinion of the attorney- 
 general, as already suggested. But prior to final legislative 
 action in any state upon those measures which on other grounds 
 may incur a judicial veto, the opinion of the judges would often 
 be timely and helpful. 
 
 JUDICIAL CONTROL OF ADMINISTRATION 
 
 The power of the judiciary to review the acts of administrative 
 officers is fundamentally the same as that to review acts of legis- 
 
 1 See L. A. Frothingham, A Brief History of the Constitution and Government of 
 Massachusetts, pp. 32-38.
 
 382 STATE GOVERNMENT IN UNITED STATES 
 
 lation. But there are certain important differences in the man- 
 ner in which the power of judicial review is exercised in the two 
 classes of cases. 
 
 First, the legislatures derive all their powers directly from the 
 state and federal constitutions, but administrative officers derive 
 their powers in part directly from the constitutions and in part 
 through legislative enactments. - Consequently the courts, when 
 they review the validity of an administrative act, have to con- 
 sider not only the constitutional but, in most cases, also the 
 statutory powers of the officer responsible for the act. Besides 
 the specific constitutional limitations upon legislative power 
 and procedure which must be considered by the courts when they 
 review the validity of the acts committed by administrative 
 officers under authority of legislative enactments, there are also 
 two general limitations of very great importance. The first 
 is the prohibition against the delegation of legislative powers 
 to non-legislative bodies. The Federal Constitution expressly 
 declares that "all legislative powers herein granted shall be 
 vested in a congress of the United States." Likewise in the 
 states all legislative powers, unless otherwise ordered by the con- 
 stitution, must be exercised exclusively by the state legislatures. 
 The second general limitation is the prohibition against the 
 vesting of judicial powers in administrative officers or of admin- 
 istrative powers in the judiciary. The judiciary, therefore, in 
 inquiring into the validity of any administrative act which has 
 become the subject of litigation, must first of all determine 
 whether it is in fact an act of administration. 
 
 Though a legislature may not delegate its purely legislative 
 powers to administrative officers, it may lay down general rules 
 of action under which administrative officers may proceed, and 
 it may require such officers to apply those rules to particular 
 cases. Thus, a legislature may not authorize a public service 
 commission to regulate the rates of a public service corporation 
 upon any principles and in any manner the commission pleases, 
 but it may declare that rates in general shall be just and reason- 
 able and that a commission shall determine what rates in particu- 
 lar cases are just and reasonable. But the action of that com- 
 mission is subject to the rule of reason, just as would be the action 
 of the legislature itself, if the legislature sought to exercise directly
 
 THE STATE JUDICIARY 383 
 
 the power to prescribe specific rates. The courts may set aside 
 the findings of such a commission, if in the opinion of the courts 
 the findings are excessively unreasonable and arbitrary, just as 
 they might set aside legislative enactments under similar circum- 
 stances. The tests of reasonableness in the regulation of rates 
 may be defined in detail in legislative enactments. In practice 
 they are generally left to be worked out by the commissions, 
 subject to the approval of the courts. As yet neither the courts 
 nor the commissions have reached any final conclusions concern- 
 ing the tests that should be applied. Doubtless partly for that 
 reason, the courts have disapproved many of the findings of the 
 commissions and have refused to enforce the orders based there- 
 on. But in the review of the findings of administrative bodies of 
 longer standing and more settled practice than the public service 
 commissions, the courts exercise their veto less freely. They are 
 less likely, for example, to set aside a valuation fixed by a state 
 board of assessors than one fixed by a public service commission, 
 although the findings of the former may be no more conclusive 
 in law than those of the latter. It is impossible to lay down any 
 general rule indicating how far the courts will go in reviewing the 
 reasonableness of the determinations of administrative officers. 1 
 But, though the courts have not often refused to review decisions 
 rendered in the first instance by executive officers, they rarely 
 consent to exercise jurisdiction when their decisions are review- 
 able by administrative officials. 
 
 There is really nothing new in the modern theory of the judicial 
 review of administrative determinations by administrative bodies, 
 such as railroad and public service commissions. The funda- 
 mental principles are the same as those underlying the review by 
 the courts of the validity of the acts of any administrative officer. 
 The action of the policeman who is charged to do whatever is 
 necessary and proper for the maintenance of the peace, and who 
 uses force against disturbers thereof, is just as much subject to 
 
 1 The federal courts, for example, have said they will not review at all the deci- 
 sions of immigration officers with respect to the citizenship of persons applying for 
 admission to the United States (U. S. . Ju Toy, i<)8 U. S. 253), hut they will take 
 extraordinary pains in reviewing the decisions of patent officers with respect to the 
 patentability of inventions (U. S. v. Butterworth, 112 U. S. 50; U. S. v. Duell, 172 
 U. S. 576). See T. R. Powell, " Conclusiveness of Administrative Determinations 
 in the Federal Government," in Am. Pol. Set. Rev., i, no. 3 (August, 1907).
 
 384 STATE GOVERNMENT IN UNITED STATES 
 
 review by the courts as that of the public service commission 
 which orders a reduction of rates. The public service commis- 
 sion, like the policeman, is a great convenience to the public, 
 because it relieves the ordinary citizen of responsibility for the 
 performance of duties which he is not specially qualified to per- 
 form, and because it can devote its undivided attention to 
 problems to which he can devote at best only an intermittent 
 attention. If there were no public service commissions, a citizen 
 might order a public service corporation possessing a virtual 
 monopoly in his locality to reduce excessively high rates to a 
 reasonable level, just as a citizen, if there were no policeman at 
 hand, might order a trespasser off his premises. In either case, 
 if a dispute arose, there would be an opportunity for appeal 
 to the courts for the protection of the rights of either party. A 
 trustworthy public service commission, however, like a police- 
 man, is more serviceable in such cases than the courts, for its 
 authority can be more easily and more speedily invoked, its 
 operations are subject to fewer procedural restraints, and its 
 decisions are or ordinarily ought to be equally acceptable to both 
 parties. The corner loafer has as much right to appeal from an 
 order of a traffic policeman to move on as the public service 
 corporation from that of a commission to reduce its rates. If he 
 exercises his right less frequently, the reason is either that the 
 decisions of the policeman are more trustworthy than those of 
 the public service commission, or that the authority of such com- 
 missions is comparatively new and business men are not yet 
 accustomed to it, or that the public service corporations expect 
 to gain more by delay than they can lose by litigation. 
 
 WORKING OF JUDICIAL CONTROL OF ADMINISTRATION 
 
 There are important differences in effect, if not in law, be- 
 tween the decisions of policemen and public service commissions. 
 The decision of a policeman, dealing with a disturbance of the 
 peace, must be made and enforced immediately. That of the 
 public service commission, dealing with an application for a re- 
 duction or increase of transportation rates, may be delayed until 
 all pertinent facts have been examined with care. The policeman 
 must rely solely on his own knowledge and judgment. The com-
 
 THE STATE JUDICIARY 385 
 
 mission can obtain assistance from trained accountants and en- 
 gineers and experts of all kinds. The decision of the policeman 
 is informal and applies only to the particular case. That of the 
 commission becomes a matter of record and may serve as a 
 precedent for future cases of similar character. Thus the com- 
 mission tends to become a rule-making body, whose orders 
 operate like the ordinances of a municipal corporation. In- 
 deed, many executive officers and boards, created in recent years, 
 have been expressly authorized to issue special regulations or 
 ordinances with the force of law. Thus, for example, health and 
 labor laws, providing that living and working conditions shall 
 be reasonably safe and wholesome, may be put into practical 
 effect through sanitary or industrial codes adopted and promul- 
 gated by authority of state boards of health, or public health 
 councils, or industrial welfare commissions, or other similar 
 administrative bodies. There is no more significant feature 
 in the recent history of public administration in the states than 
 the rapid development of such rule-making administrative bodies, 
 either composed of experts in the branches of administration con- 
 fided to their care or able to command the services of experts. 
 Had the original state executive councils generally survived, 
 they might have developed into rule-making bodies of this type. 
 Actually, however, the need for machinery for the elaboration of 
 general rules of law into special rules of administrative action 
 has been met by the creation of a series of special administrative 
 boards. 
 
 The chief difference between the judicial review of the ad- 
 ministrative decisions of public service commissions and those of 
 policemen is not in the theory but in the practice. Appeal from 
 the decision of a policeman, when taken at all, is taken after the 
 decision has been executed, and the material facts in the case 
 are reexamined and finally determined by a jury. Appeal from 
 the decision of a public utilities commission is usually taken be- 
 fore the decision is executed, and the material facts in the case 
 are determined by the judges. The former class of cases consist 
 of common law actions of tort or arise under the criminal law. 
 The latter consist of applications for extraordinary equitable 
 remedies, chiefly by means of writs of mandamus or injunction. 
 In general the practice is more important than the theory. The 
 
 2C
 
 386 STATE GOVERNMENT IN UNITED STATES 
 
 motorist, who violates a speed regulation issued by a highway 
 commission, is summarily prosecuted under the criminal law, 
 but a bill-poster, who erects an advertising sign in such a manner 
 as to violate an anti-billboard regulation issued by a park com- 
 mission, is more likely, if the sign be one of value, to apply for 
 an injunction to restrain the agents of the commission from inter- 
 fering therewith until the highest courts have pronounced judg- 
 ment upon the matter. On the other hand, if the sign be a mere 
 handbill of little value, apparently it may be summarily destroyed 
 by agents of the commission without any judicial process what- 
 soever. 1 
 
 In cases where the reasonableness of an administrative decision 
 is finally determined by a jury, the exercise of judicial control 
 over administration becomes a mere incident in the ordinary 
 administration of justice. But in cases where the reasonableness 
 of an administrative decision is finally determined by the judges 
 themselves, the exercise of judicial control over administration 
 may, and in many modern cases does, involve the judges in 
 exceedingly complicated and technical investigations. In 
 general, however, judges who find themselves compelled to in- 
 vestigate the facts, in the light of which the reasonableness of 
 an order is to be determined, are too busy to make the necessary 
 investigations. Thus, the review of the order of a railroad 
 commission that a certain rate, declared to be unreasonable, be 
 reduced or of a health or dairy commission that the use of a 
 certain food or drug, declared to be impure, be discontinued 
 throws a burden upon the courts which they cannot bear. The 
 facts are highly technical, their own training has been along other 
 lines, and they cannot come to a proper decision without assist- 
 ance. Either they must rely on the reports of special referees 
 or masters, appointed by themselves to ascertain the facts and 
 to recommend findings for their approval, or they must rely on 
 the judgment of the regular administrative officers. In some 
 classes of cases, where till recently judges have been compara- 
 tively quick to question the reasonableness of administrative de- 
 terminations, notably in cases involving the orders of public 
 service commissions, the courts now seem more disposed to rely 
 
 1 Lawton v. Steele, 119 N. Y. 226. Cf. F. J. Goodnow, Principles of the Admin- 
 istrative Law of the United Stales, pp. 356-366.
 
 THE STATE JUDICIARY 387 
 
 upon the findings of the regular administrative officers. This 
 is undoubtedly a wholesome tendency in all cases where the 
 administrative officials are appointed on the ground of fitness 
 and protected against undue political influence. 
 
 The question of the finality of administrative determinations 
 of fact became most acute in connection with the regulation of 
 railway rates by state commissions. After a struggle, the right 
 of the courts to exercise the power of review was universally 
 conceded. In some states, however, it is wisely confined to the 
 highest court in the state. Thus much time and expense is saved 
 by the elimination of trials in the lower courts, from which in 
 important cases appeals are almost certain to be taken to the 
 court of last resort. In some states the decisions of state com- 
 missions may be reviewed only by writs of error or certiorari or 
 by direct appeal from the order of the commission. Thus the 
 final decision may be reached promptly without awaiting the 
 issue of litigation over attempts to enforce the administrative 
 order by the regular judicial process. Many states limit the 
 period after the issuance of an order during which judicial review 
 thereof may be sought. Many hasten the final determination of 
 such appeals by granting them preference over other classes of 
 cases. Most of the states declare the findings of the commissions 
 to be prima facie reasonable, so that the burden of proving their 
 unreasonableness lies upon the party which refuses to accept 
 them. Some provide that no evidence may be presented to the 
 courts which has not been first presented to the commission, 
 and that cases in which new evidence is introduced in court shall 
 be remanded to the commission for disposition in accordance 
 with the new evidence. In a few states, corporations which 
 refuse to accept an order of a commission are liable to a heavy 
 fine for each day that they fail to follow the same, provided that 
 the order is ultimately sustained by the courts, or are required 
 to file a bond sufficient to repay the difference between the old 
 rate and the new to all shippers or passengers who pay an ex- 
 cessive rate after a commission has ordered a reduction. But 
 in many states an appeal to the courts operates to stay the order 
 of the commission. 1 In general, there is a distinct tendency to 
 discourage the courts from exercising too aggressively the power 
 
 1 See Maxwell Ferguson, Stale Regulation of Railroads in the South, pp. 212-217.
 
 388 STATE GOVERNMENT IN UNITED STATES 
 
 of reviewing on the ground of unreasonableness the validity of 
 administrative findings and orders. 
 
 Besides the substantive limitations upon the power of ad- 
 ministrative officers and bodies to issue ordinances and perform 
 special administrative acts, there are also certain procedural 
 limitations which may not be disregarded without impairing 
 the validity of such action. Public service commissions, for 
 example, are bound to grant a hearing to all parties to be directly 
 affected by a proposed order. This hearing must be adequate 
 and fair. The findings must not be contrary to the evidence. 
 The order must be supported by the facts as found. 1 Parties 
 must have proper notice of proceedings which may directly affect 
 them, must be apprised of the evidence submitted or to be con- 
 sidered in the case, and must be granted opportunity to cross- 
 examine witnesses, to inspect documents, and to offer evidence 
 in further explanation or rebuttal. 2 The procedural limitations 
 upon administrative officers and bodies vary widely in different 
 cases. In many cases they are prescribed by statute. In 
 others they are left to the judgment of the officers, subject to 
 judicial review and the nullification of arbitrary and unlawful 
 acts. Perhaps in no case are the limitations more rigorous than 
 in that of public service commissions. Certainly in no case are 
 they so rigorous as in that of a strictly judicial tribunal. Ad- 
 ministrative action is designed to be more summary and more 
 flexible than that of the courts. But the rights of the people 
 may not be determined by mere administrative fiat. No adminis- 
 trative officer or body can set itself up as a benevolent despotism. 
 Administrative action, like the action of the coordinate branches 
 of government, must be justified as one phase of the reign of law. 
 
 DISTINCTION BETWEEN MINISTERIAL AND DISCRE- 
 TIONARY ACTS 
 
 A second important difference between the exercise of judicial 
 control over administration and over legislation results from the 
 
 1 See Interstate Commerce Commission v. Louisville and Nashville Railroad, 
 227 U. S. 88 (1913). See also Bruce Wyman, "Jurisdictional Limitations upon 
 Commission Action," 27 Harvard Law Review, p. 565. 
 
 * See Wyman, loc. cit., p. 567.
 
 THE STATE JUDICIARY 389 
 
 practice of the courts in dividing administrative acts into two 
 classes, discretionary and ministerial acts. It is not at all 
 clear just where the line of division runs. 1 In a general way it 
 may be said, that in the performance of acts of discretion ad- 
 ministrative officers are unrestricted within the limits of their 
 constitutional and statutory powers, except by the requirement of 
 due process of law and the rule of reason. But in the performance 
 of ministerial acts administrative officers have no discretionary 
 authority. In the famous case of Marbury v. Madison, for 
 example, the United States Supreme Court held that the signa- 
 ture of the commission of a justice of the peace in the District of 
 Columbia by the President of the United States completed the 
 act of appointment, and that the delivery of the commission to 
 the person named therein was a purely ministerial act, which it 
 was the duty of the Secretary of State to perform. Apparently 
 Chief Justice Marshall would not have hesitated to command 
 Madison to deliver the commission, had he not found that the 
 act of Congress giving the Supreme Court original jurisdiction 
 over the case was unconstitutional. Thus it becomes possible 
 for the courts to control administration, not only by refusing to 
 give legal effect to administrative acts unauthorized by the consti- 
 tution or the laws, but also by commanding administrative officers 
 to perform or not to perform such acts as in the opinion of the 
 courts they have no right to refuse or to attempt to perform. 
 Such control, however, is suitable only for inferior administrative 
 officers, and is rarely exercised in other cases. 2 
 
 Discretionary administrative acts may be further divided into 
 two classes, those which are purely administrative and those 
 which are political in character. With the action by competent 
 executive officers in the latter class of cases the federal courts at 
 least will not interfere at all. Thus the President may decide 
 which of two contesting state governments shall be recognized 
 as the constitutional government of the state, and the Supreme 
 Court will grant no relief to those who question the reasonableness 
 
 1 Cf. Kendall v. U. S., 12 Peters, 524, and Stokes r. Kendall, 3 How. 37. See 
 also F. J. Goodnow, Principles of the Administrative Law of the United Stales, pp. 
 399-400. This treatise contains the best summary of the law governing judicial 
 control of administration. See especially hooks v and vi. 
 
 2 J. A. Fairlie, "The State Governor," in 10 Michigan Lav: Review, nos. 5 and 6, 
 under caption, "Judicial Control of the Governor."
 
 390 STATE GOVERNMENT IN UNITED STATES 
 
 of his decision. 1 The same rule applies to certain decisions by 
 state authorities. For example the Indiana legislature provided 
 by an act adopted in 191 1 for the submission of a new constitution 
 to the people of the state at the general election of 1912, although 
 the existing constitution granted no authority to the legislature 
 to submit a general revision of the constitution to the people and 
 prescribed a different procedure for the submission of specific 
 amendments. Upon suit by a taxpayer to enjoin the governor 
 and other members of the state board of elections from submitting 
 the proposed new constitution, the state supreme court granted 
 the injunction. An appeal was taken to the Supreme Court 
 of the United States on the ground that the judgment of the 
 state court in effect denied to the state the republican form of 
 government, since the interference of the judiciary with the 
 action of the coordinate branches prevented the people from 
 adopting, if desired, the proposed new constitution. The federal 
 Supreme Court declared that the claim that the decision of the 
 state court denied to the state a republican form of government 
 did not present a justiciable controversy, and dismissed the 
 case for want of jurisdiction. 2 Thus the governor was apparently 
 free to obey either the command of the legislature expressed in 
 the form of the statute or that of the state supreme court ex- 
 pressed in the form of an injunction. Whichever horn of the 
 dilemma had been chosen by him, the federal court would not 
 have interfered. But the line of division between political and 
 administrative acts is no clearer than that between discretionary 
 and ministerial acts. 
 
 It has already been pointed out that judicial control of ad- 
 ministration has been the principal centralizing force in state 
 administration since the middle of the nineteenth century. 
 Its limitations, as a means of imparting spirit and vigor to ad- 
 ministration, have also been indicated. The truth is that the 
 courts are not fitted to perform all the duties that have fallen 
 upon them in connection with the interpretation and enforcement 
 of modern economic and social legislation. Judges must be 
 specially learned in the principles of the law, and cannot hope 
 to become equally expert in all the branches of public administra- 
 
 1 Luther v. Borden, 7 How. i. 
 
 2 Marshall v. Dye, 231 U. S. 250.
 
 THE STATE JUDICIARY 391 
 
 tion. The regulation of the rates and conditions of service of 
 public utilities, of the construction and manner of operation of 
 factories, shops, and mills, of the production and sale of food and 
 drugs, to mention only a few of the rapidly growing subjects of 
 modern economic and social legislation, requires special technical 
 knowledge and skill. The requirements of such branches of 
 public administration can be adequately met only by specially 
 trained men as administrators, just as the efficient administration 
 of justice in ordinary litigation requires specially trained men as 
 judges. The real problem is to procure such men for the public 
 service. The habit of looking to the courts for the final deter- 
 mination of important administrative questions does not solve 
 the problem. It merely shifts its location. The courts have 
 been just as much puzzled in trying to administer this modern 
 legislation as other bodies of men without proper technical 
 training. The Supreme Court of the United States, for example, 
 to say nothing of the state courts, has been on both sides of 
 several of the difficult questions that have arisen in the adminis- 
 tration of the laws regulating railroad rates. 1 
 
 Thus the same result is reached in the study of judicial control 
 of administration as in that of the judicial control of legislation. 
 No plan for correcting the defects of the existing system is sound 
 which proposes to destroy the power of judicial review. The 
 activity of the state courts in the control of administration springs 
 from excessive administrative weakness, not from excessive 
 judicial strength. No plan is adequate which proposes merely 
 to increase the responsibility of the state judiciaries to the 
 electorates. The action of the state courts is itself subject to 
 review by the federal courts in all cases involving any alleged 
 deprivation of liberty or property without due process of law, 
 and the federal courts cannot be touched by any state reform 
 such as the recall of judges or of judicial decisions. The most 
 promising plan for correcting the defects of the existing system 
 is to increase the efficiency of the administrative branch of the 
 state governments. This can be done only by the further re- 
 form of the methods of selecting administrative officers and by 
 the further centralization and integration of state administration. 
 
 1 Cf. for instance, Minneapolis and St. Louis Railway v. Minnesota, 186 U. S. 
 257 (1902) and Northern Pacific Railway v. North Dakota, 236 U. S. 585 (1915).
 
 392 STATE GOVERNMENT IN UNITED STATES 
 
 REPRIEVES AND PARDONS 
 
 The power to grant reprieves and pardons, vested in the state 
 executives, was originally deemed, like the power of impeachment 
 vested in the legislatures, one of the essential factors in the estab- 
 lishment of a proper balance between the three departments of 
 government. Just as the power of impeachment was expected 
 to provide a means of preventing executive and judicial officers 
 from playing the tyrant in general, so the power to grant reprieves 
 and pardons was relied on to prevent the perpetuation of injustice 
 in particular cases. 
 
 It cannot be said that the history of the reprieving and pardon- 
 ing power has justified the anticipations of the Fathers, any 
 more than has that of impeachment. But it has been a very 
 different history. The power of impeachment has been so little 
 used that it has become almost obsolete. The power of reprieve 
 and pardon, on the contrary, has been used too much. It early 
 became evident that governors were under great temptation 
 to use it with excessive liberality, and that in practice the power 
 was seriously abused. 1 It has sometimes been used for purely 
 political purposes. Thus, the governor of Arkansas a few years 
 ago pardoned some three hundred prisoners at one time, with 
 most dramatic effect, expressly in order to call public attention 
 to the iniquity of the contract labor system as employed in that 
 state. It has probably been used more frequently for partisan 
 and personal ends. Many states therefore have provided that 
 the governor may grant pardons only upon the recommendation 
 of a special board or "in conjunction with" a board of which he 
 may be a member. The gradual decrease in the severity of 
 penal methods, and more recently the introduction of the prac- 
 tice of parole, have tended to deprive the pardoning power of its 
 reason for being. At the present time the power to pardon plays 
 no part in the maintenance of the balance between the depart- 
 ments, and it is doubtful whether there is any good reason for 
 vesting such a power in the hands of an officer, like the governor, 
 primarily political in character. Properly constituted boards of 
 parole are proving far more reliable agencies for the exercise of a 
 
 1 See Francis Lieber, " Reflections on the Present Constitution of New York," 
 1867, in his Miscellaneous Writings, vol. ii, pp. 185-189.
 
 THE STATE JUDICIARY 393 
 
 judicious clemency than the governors ever have been. With the 
 increasing public recognition of the value of their work it would 
 seem desirable to abolish the power of pardon altogether. In the 
 states where capital punishment has been abolished it is doubtful 
 whether there is much better reason for retaining longer the power 
 of reprieve.
 
 CHAPTER XII 
 
 THE CONSTITUTIONAL CONVENTION 
 
 IN the beginning, as has been shown, there was no uniform 
 practice with respect to the organization and powers of the con- 
 stitutional convention. In some of the original states, as in 
 Virginia, the first independent state constitution was enacted in 
 the same manner as an ordinary statute, and possessed no higher 
 sanction than that placed by public opinion upon the proceedings 
 of a Revolutionary provincial legislature. In others, as in Penn- 
 sylvania, it was prepared by a Revolutionary provincial legisla- 
 ture or convention, and was then expressly submitted to public 
 opinion for approval before final adoption. In others, as in 
 New York, it was prepared by a legislative body which had 
 explicit authority from the voters to draft a constitution and put 
 it into effect without any further consultation of the people. 
 Finally, in Massachusetts and in New Hampshire the original 
 state constitutions were prepared by special constitutional con- 
 ventions, called by the ordinary legislatures in response to special 
 popular votes, and they were then submitted to the voters for 
 their express approval. The ordinary legislatures of these two 
 states participated in the work of constitution-making only to 
 the extent of submitting to the voters the question whether or 
 not they would call a special constitutional convention, and, upon 
 discovering the will of the people in the matter, issuing the call 
 and providing for the election of delegates. This was the be- 
 ginning of the constitutional, as distinct from the Revolutionary, 
 convention in American constitutional history. 1 
 
 In the beginning, moreover, it was uncertain whether or not 
 the constitutional convention would become a permanent 
 element in the government of the states. Only four of the 
 thirteen original states, or including Vermont, five states, recog- 
 
 1 See J. A. Jameson, The Constitutional Convention (4th ed.), and cf. W. F. Dodd, 
 The Revision and Amendment of State Constitutions, ch. i. 
 
 394
 
 THE CONSTITUTIONAL CONVENTION 395 
 
 nized the constitutional convention as a regular organ of govern- 
 ment. Although only three states made express provision for 
 the amendment of their original constitutions by legislative 
 action, the legislatures of the other six possessed by implication 
 similar powers of amendment as well as the power of general 
 revision. Jefferson, one of the most earnest advocates of the 
 constitutional convention as a permanent organ of government, 
 feared for a time lest the legislatures, particularly that of his own 
 state, should usurp the powers of constitutional amendment and 
 revision, thus taking away from the people the direct control of 
 the fundamentals of their government. Furthermore, as the 
 event proved, the special provision made for the constitutional 
 convention in Massachusetts proved inadequate, that made in 
 Pennsylvania worked badly, and that made in Georgia did not 
 work at all. Nevertheless, the constitutional convention proved 
 to be a political device thoroughly in harmony with the spirit 
 of American government. Its survival has demonstrated its fit- 
 ness. During the one hundred and forty years that have elapsed 
 since the dawn of American independence there have been an 
 even greater number of constitutional conventions, or upon the 
 average one convention in each state in each generation. 
 
 pRGANIZATION AND PROCEDURE OF CONVENTIONS 
 
 The state constitutional conventions have invariably been 
 unicameral bodies. In the beginning, as has been shown, the 
 bicameral principle was adopted in most of the states for the 
 organization of the legislatures, and eventually it was adopted for 
 that purpose in all. But it has never been applied to the organi- 
 zation of constitutional conventions. Since class legislation was 
 not apprehended from a body created solely to consider changes 
 in the frame of government, there was felt to be no need of a divi- 
 sion into upper and lower houses in order to give separate repre- 
 sentation to upper and lower classes of the population. Since 
 the constitutional convention possessed no power to tax or to 
 make appropriations, there was no need of a second chamber in 
 order to give special representation to taxpayers. Since the 
 constitutional convention exercised no executive or judicial 
 powers, there was no need of a second house to which those powers
 
 396 STATE GOVERNMENT IN UNITED STATES 
 
 might be separately entrusted. For protection against the adop- 
 tion of hasty or ill-considered measures, the people at first relied 
 upon the slower and more deliberate procedure pursued by the 
 Revolutionary assemblies and early conventions in considering 
 fundamental changes in the frame of government. Subsequently, 
 the development of the referendum enabled the electorate directly 
 to forbid undesired changes in the fundamental law. In short, 
 those considerations which were supposed to justify the adoption 
 of the bicameral system for the ordinary legislative bodies did 
 not fit the case of the constitutional convention. 
 
 The state constitutional conventions have generally been or- 
 ganized upon the model of the lower houses of the state legisla- 
 tures. Indeed, the original constitutional conventions, as has 
 been shown, were in most states the identical provincial assem- 
 blies, which, through the instrumentality of the constitutions 
 framed by themselves, were transformed into the lower houses 
 of bicameral legislatures. Subsequent constitutional conventions 
 were organized upon the same model, because they were intended 
 to represent the whole people rather than any privileged class, and 
 the lower houses of the legislatures were considered more repre- 
 sentative of the whole people than the upper. Since the Civil 
 War, however, there has been a tendency in the larger states to 
 modify the basis of representation. Thus, the Illinois constitu- 
 tion of 1870 provided that future conventions in that state 
 should be chosen by senatorial districts, two delegates from each 
 district. The New York constitution of 1894 contains a similar 
 provision, with three instead of two delegates to be chosen from 
 each senatorial district, plus fifteen delegates to be chosen from 
 the state at large. The Pennsylvania convention of 1872 was 
 organized in a similar way, ninety-nine delegates being chosen 
 by senatorial districts and twenty-eight in the state at large. 
 By the Massachusetts act of 1916, governing the organization 
 of the convention contemplated in that state, it was provided 
 that a number of delegates equal to the number of represent- 
 atives in the state legislature should be chosen from the 
 regular representative districts, and that in addition four 
 delegates should be chosen from each of the sixteen congres- 
 sional districts into which the state is divided and sixteen from 
 the state at large. The purpose of election by senatorial districts is
 
 THE CONSTITUTIONAL CONVENTION 397 
 
 to reduce the influence of petty local interests in the constitu- 
 tional convention. The addition of delegates chosen by congres- 
 sional districts and especially of those chosen in the state at large 
 ought still further to enhance the influence of state-wide as con- 
 trasted with merely local considerations. This result seems in- 
 deed to have been attained in the New York conventions of 1894 
 and 1915. 
 
 There have also been attempts in recent years to regulate or 
 so far as possible to exclude ordinary partisan influences. The 
 Pennsylvania convention of 1872 was elected under a system of 
 limited voting by which it was intended that the minority 
 party should be assured a due share of the delegates. Each 
 voter was permitted to vote for only fourteen delegates at large, 
 although twenty-eight were to be elected, and for only two sena- 
 torial district delegates, where three were to be elected. Conse- 
 quently, the dominant party was not able to elect much more than 
 half the total number of delegates at large and two-thirds of 
 the district delegates. Furthermore, a provision that one-third 
 of the delegates might require the separate submission of any 
 proposed amendment afforded additional protection to the 
 minority party. More recently, since the introduction of the 
 system of direct nominations, several states have proposed plans 
 for the nomination of delegates at non-partisan primaries and 
 their election without any party labels, obviously suggested by 
 the systems of non-partisan judicial nominations and elections. 
 The Massachusetts convention of 1917 is to be elected under 
 such a plan. The Ohio convention of 1912 was also chosen so 
 as to eliminate the regular partisan divisions. In general, the 
 personnel of constitutional conventions is markedly superior to 
 that of the ordinary legislatures. The importance of the work 
 to be done attracts able men to the conventions, and the publicity 
 of their proceedings puts delegates on their best behavior. Con- 
 stitutional conventions have by no means been generally free 
 from partisanship, but partisan influences have usually been con- 
 fined to their legitimate field, the formulation of a program of 
 revision and the recommendation of appropriate amendments 
 for adoption by the electors. 
 
 The procedure of constitutional conventions is also generally 
 modeled upon that of the lower houses of the state legislatures.
 
 398 STATE GOVERNMENT IN UNITED STATES 
 
 Thus, the New York convention of 1915 was dominated by the 
 president, the committee on rules, and the recognized leaders of 
 the dominant party in precisely the same manner as the legislative 
 assembly. In other states the ordinary committee system gener- 
 ally prevails. But the greater publicity that attaches to the work 
 of conventions makes their actual procedure more deliberate than 
 that of legislatures. Moreover, the limitations upon the length 
 of sessions which seriously impair the efficiency of so many state 
 legislatures do not apply to conventions at all. Although con- 
 ventions have to finish their work in season for submission to 
 the electors at the next election, there is ordinarily time for due 
 deliberation. Where constitutional revisions are submitted to 
 the electorates en bloc there is more opportunity for the evasion 
 of responsibility, than where each proposed change is submitted 
 separately. The practice in this respect is not uniform. Some 
 conventions, indeed, like that of New York in 1915, submit a few 
 specially important or highly controversial proposals separately 
 and all others en bloc. The latter form of submission, however, 
 offers opportunities for log rolling that are absent where each 
 proposed change must be separately submitted. 
 
 More important is the effect of the strict limitation of the func- 
 tions of conventions. Though the conventions have power 
 to make any recommendations they please to the electors for 
 adoption, and though in practice they do recommend ordinary 
 legislative measures in ever increasing quantity, they are largely 
 free from the kind of business which is chiefly responsible for the 
 discredit into which the ordinary legislatures have fallen. They 
 have little occasion to deal with private and local measures. 
 They do not make appropriations at all. Their patronage is slight, 
 and nothing of importance can be done without the approval of 
 the electorates. Under these circumstances delegates can con- 
 centrate their attention upon matters of constitutional and legis- 
 lative policy, and decide questions more strictly upon their merits 
 than is ordinarily possible in the legislatures. 
 
 WORKING OF THE CONVENTION SYSTEM 
 
 It is not surprising, therefore, that the constitutional convention, 
 considered as an organ of state government, has on the whole been
 
 THE CONSTITUTIONAL CONVENTION 399 
 
 as conspicuously successful as the legislature has been unsuccess- 
 ful. There have been comparatively few instances where the 
 work of conventions has been totally rejected by the electorates. 
 Notable instances of this kind were the revisions submitted by 
 the Massachusetts convention of 1853, the Illinois convention of 
 1862, and the New York conventions of 1867 and 1915. Nine- 
 tenths of the general revisions submitted to the electorates for 
 approval have been accepted by the majority of those voting 
 thereon. Conventions which have submitted their proposed 
 amendments separately have also fared well at the hands of the 
 electors. The Ohio convention of 1912 considered five hundred 
 and two questions and finally submitted forty-one separate 
 amendments to the electorate. Thirty-three of these were 
 adopted and eight were rejected by a majority of those voting 
 thereon. The New Hampshire convention of the same year 
 submitted twelve propositions to the electors. All of these were 
 approved by a majority of those voting thereon, although eight 
 failed of adoption by the people because they failed to receive 
 the two-thirds majority required for adoption under the consti- 
 tution of that state. This record compares favorably with that 
 of the legislatures in the submission of amendments to the 
 electorates. Conventions have sometimes refused to submit their 
 work to the electorates when popular approval by the existing 
 electorate seemed likely to be withheld. For example, several 
 recent conventions in southern states, bent on disfranchising 
 negro voters, declared their revisions effective without popular 
 approval. Other conventions, bent on extending the suffrage, 
 have submitted their work to electorates including the new voters 
 whom the convention proposed to enfranchise. Without doubt, 
 in the absence of constitutional provisions clearly defining 
 the powers of a constitutional convention, there is always a 
 possibility of arbitrary action by such bodies. But where the 
 practice of submission to the existing electorates is definitely 
 established, the popular veto appears to be an adequate check 
 against the usurpation of power by conventions. 
 
 The success of the constitutional convention raises the question 
 whether the legislatures might not do more satisfactory work if 
 their organization and procedure more closely resembled that 
 of the conventions. The legislatures of several of the states
 
 400 STATE GOVERNMENT IN UNITED STATES 
 
 in the Swiss Confederation are organized in much the same 
 manner as the constitutional convention. In Berne, for example, 
 the legislature consists of a single house, elected for four years. 
 This house has broad legislative powers, subject to the referen- 
 dum at the option of a certain proportion of the electors. Pro- 
 posals to amend the constitution, however, must in any case be 
 submitted to the electors for their approval, as in the American 
 states. In practice comparatively few measures have to be 
 submitted to the electorate for approval, unless there is a sufficient 
 demand for popular review, because the constitution contains 
 little matter of an ordinary legislative character. A constitu- 
 tional convention in Berne is chosen in precisely the same manner 
 as the ordinary legislature. When the people wish to choose a 
 convention, they simply recall the whole legislature and choose 
 a new one. The members of the recalled legislature are eligible 
 for reelection. One effect of this arrangement is to provide more 
 continuous popular control over the constitution than can be 
 exercised in this country through occasional conventions meeting 
 only at specified intervals or when the legislature can be induced 
 to submit a call to the electorate. Another is to maintain a 
 higher standard for the personnel of the legislature than can be 
 maintained for the members of American legislatures with their 
 limited legislative powers and excessive burden of non-legislative 
 duties. 
 
 Whether or not in the American states a single unicameral 
 legislative body could be safely entrusted with all the powers of 
 both constitutional convention and legislature would depend 
 mainly upon two factors. The first is the extent to which the 
 legislatures can be relieved of the excessive burden of non- 
 legislative duties which now so encumber their deliberations. 
 The second is the extent to which the power of popular review 
 over legislation can be effectively exercised by the state elec- 
 torates. The relief of the legislatures from non -legislative duties 
 is contingent upon the development of independent and reliable 
 administrative agencies. The effective exercise of the power 
 of popular review is contingent upon the development of 
 satisfactory methods for direct legislation, subject to suitable 
 restrictions, by the electorates.
 
 CHAPTER XIII 
 DIRECT LEGISLATION BY THE ELECTORATES 
 
 MANY arguments have been put forth in support of direct popu- 
 lar participation in law-making, but they are all reducible to 
 not more than two. The nature of these two general arguments 
 was well explained by John Stuart Mill, when discussing the 
 criterion of a good form of government. "The first element 
 of a good government," he declared, 1 "being the virtue and in- 
 telligence of the human beings composing the community, the 
 most important point of excellence which any form of government 
 can possess is to promote the virtue and intelligence of the people 
 themselves. The first question in respect to any political insti- 
 tutions is, how far they tend to foster in the members of the 
 community the various desirable qualities. . . . The govern- 
 ment which does this the best has every likelihood of being the 
 best in all other respects, since it is on these qualities, so far as 
 they exist in the people, that all possibility of goodness in the 
 practical operation of the government depends. We may con- 
 sider then as one criterion of the goodness of a government, the 
 degree in which it tends to increase the sum of good qualities in 
 the governed, collectively and individually ; since, besides that 
 their well-being is the sole object of government, their good quali- 
 ties supply the moving force which works the machinery. This 
 leaves, as the other constituent element of the merit of a govern- 
 ment, the quality of the machinery itself ; that is, the degree in 
 which it is adapted to take advantage of the amount of good 
 qualities which may at any time exist, and make them instru- 
 mental to the right purposes. . . . Government is to be judged 
 by its action upon men, and by its action upon things ; by what 
 it makes of the citizens and what it does with them ; its tendency 
 
 1 Representative Government, ch. ii. 
 
 3D 401
 
 402 STATE GOVERNMENT IN UNITED STATES 
 
 to improve or deteriorate the people themselves, and the goodness 
 or badness of the work it performs for them, and by means of 
 them. Government is at once a great influence acting on the 
 human mind, and a set of organized arrangements for public 
 business. ..." The first general argument, therefore, which 
 may be advanced in behalf of the submission of measures to the 
 electorates, is that the practice of voting on measures affords a 
 beneficial educational discipline. 
 
 The second general argument is that the direct participation 
 of the electorate in the process of law-making will improve the 
 quality of legislation. Improvements may be brought about, 
 it is urged, either directly through the action of the electorates 
 themselves, or indirectly through the increased sense of respon- 
 sibility which the legislators will feel when subject to effective 
 control by those whom they represent. 
 
 THE TEST OF DIRECT LEGISLATION 
 
 These theoretical considerations need to be put to the test of 
 experience. For the purpose of applying this test the work of the 
 electorates in passing judgment upon measures can most con- 
 veniently be divided into three classes : the first, comprising 
 all measures which are submitted to the electorate upon the 
 initiative of some official representative body, a constitutional 
 convention or legislature ; the second, comprising all measures 
 which are first adopted by a representative body but are subse- 
 quently referred to the electorate by popular petition ; and the 
 third, comprising all measures submitted to the electorate upon 
 the initiative of some of the voters themselves without the inter- 
 vention of any representative body. Of the first class of measures 
 the great mass are constitutional amendments, and the action 
 of the electorates on these may be taken as typical of the action 
 of the electorates upon all measures submitted upon the initia- 
 tive of representative bodies. 
 
 The first class of measures has been hitherto by far the most 
 numerous. During the ten years from 1899 to 1908 inclusive 
 four hundred and seventy-two constitutional questions were 
 submitted to the electorates of forty-three states, i.e., all the 
 states then in the Union except Delaware and Vermont. On the
 
 DIRECT LEGISLATION BY THE ELECTORATES 403 
 
 average there was more than one amendment each year in every 
 state. 1 There has been no decrease in the rate of submission since 
 then. The second and third classes of measures are of recent 
 origin but are rapidly increasing in number. The popular ref- 
 erendum was used for the first time in Oregon in 1906 and down 
 to the close of 1914 had been used altogether seventy-eight tunes 
 in twelve states. The popular initiative has come into use still 
 more rapidly. It was employed for the first time in Oregon in 
 1904 and down to the close of 1914 had been employed altogether 
 two hundred and nine times in fourteen states. 2 In nine of these 
 states one hundred and twenty proposed statutes have been re- 
 ferred to the electorate upon the direct initiative of the people, 
 and in ten of them eighty-nine proposed constitutional amend- 
 ments have likewise been referred upon direct popular initiative. 
 It is evident that the work of the electorates, so far as it relates to 
 action upon measures, is, taking the Union as a whole, rapidly 
 increasing. 
 
 The work of the electorates, however, is not evenly distributed 
 among the states. According to Dodd's investigations, fifty-one 
 proposed constitutional amendments were referred to the elec- 
 torate in California in ten years, fifty in Louisiana, and thirty 
 in Missouri. On the other hand, in each of thirty states fewer 
 than ten amendments were referred by the legislature during the 
 same period. The explanation must be sought partly in the 
 differences in the political conditions in the several states, but 
 mainly in the character of the constitutions themselves and of the 
 processes of amendment. In Indiana, for example, the process 
 of amendment is so difficult that despite persistent attempts it 
 has not been possible to secure final action on a single amendment 
 during a long period of years. In Louisiana, on the other hand, 
 the legislature is so limited in its powers to enact ordinary 
 statutes, and the constitution itself is so encumbered with ordi- 
 nary legislative matter, that, it is scarcely an exaggeration to say, 
 the people's representatives are compelled to depend upon the 
 constant cooperation of the electorate in order to legislate at all. 
 The use of the direct popular referendum and initiative is dis- 
 
 1 See W. F. Dodd, The Revision and Amendment of State Constitutions, p. 268. 
 See A. L. Lowell, Public Opinion and Popular Government, app. B, and The 
 New Republic, ii, 18, pt. 2.
 
 404 STATE GOVERNMENT IN UNITED STATES 
 
 tributed with similar unevenness. Fifteen of the seventy-eight 
 instances of the use of the popular referendum to 1914 occurred 
 in Oregon, and ninety-five of the two hundred and nine instances 
 of the use of the popular initiative occurred in the same state. 
 It has often been urged as a special advantage of the federal sys- 
 tem of government that the separate states can more easily 
 undertake political experiments than a single consolidated govern- 
 ment, and that, since each state can profit by the experiments of 
 the others, progress in government is more certainly secured by 
 the competition between the states in the adoption of improve- 
 ments. The various arrangements in the several states with 
 respect to the direct action of the voters upon measures furnish a 
 conspicuous illustration of this advantage of federal government. 
 The character of the work performed by the state electorates 
 can be ascertained only by inspection of the results of the votes 
 upon the measures referred to them. It will be convenient to 
 consider first the results of the voting upon constitutional amend- 
 ments referred to the voters by the several state legislatures. 
 
 WORKING OF THE COMPULSORY CONSTITUTIONAL 
 RFEERENDUM 
 
 The first matter to be considered is the degree of interest dis- 
 played by the voters in the work put upon them by the compul- 
 sory constitutional referendum. During the ten years 1899- 
 1908 the average vote upon the four hundred and seventy- two 
 measures covered by Dodd's investigations amounted to less 
 than fifty per cent of the total vote cast at the polls on the 
 several occasions when the measures were put to the vote. There 
 was a marked variation, however, in the interest displayed in 
 proposed constitutional amendments in the different parts of the 
 country. In New York less than a third of those who went to 
 the polls cast their votes on the measures referred to them by the 
 legislature. In New England and the northeastern states gen- 
 erally, the average vote was not much over forty per cent. In 
 New Jersey a series of important amendments relating to the 
 reorganization of the state judiciary were submitted at a special 
 election in 1903, and only 12 per cent of the normal vote of the 
 state was cast upon them. In the West, the proportion of voters
 
 DIRECT LEGISLATION BY THE ELECTORATES 405 
 
 voting on constitutional amendments was also low, being on the 
 average nearer 40 than 50 per cent of the total. In the central 
 states, on the other hand, and in the South, the proportion was 
 higher than in the other parts of the country, averaging above 
 50 and towards 60 per cent. 1 In short there is great inequality 
 in the size of the vote cast upon the various kinds of measures 
 submitted to the voters under the compulsory constitutional 
 referendum, and presumably there is a corresponding degree of 
 inequality in the public interest in these measures. 
 
 The nature of the questions which the voters tend to regard as 
 most important is revealed by an analysis of the measures upon 
 which three-fourths or more of those attending the polls were 
 sufficiently interested to vote. In general, with the exception of 
 negro suffrage and the liquor question, the questions arousing the 
 most interest on the part of the voters which most frequently arose 
 under the compulsory constitutional referendum involved the 
 methods of conducting public business, the use of public moneys, 
 and the pay of the public servants. They touched the pocket- 
 books rather than the feelings of the people. The action of the 
 voters upon them was not reckless, but prudent, inclining rather 
 to excessive caution than to the exhibition of the " gusts of pas- 
 sion" which some critics of popular institutions have apprehended. 
 
 A fair inference with respect to the character of the work of the 
 state electorates, obtained by inspection of the results of popu- 
 lar referenda upon constitutional amendments, is that the voters 
 are capable of discriminating between satisfactory and unsatis- 
 factory measures. In no state are the constitutional amend- 
 ments proposed by the legislature accepted mechanically by the 
 electorate, and in no state are they mechanically rejected. Some 
 are accepted and others are rejected. The proportion of meas- 
 ures rejected varies considerably among the states, but the elec- 
 tion returns of all the states are alike in affording no evidence that 
 the electorate is a mere machine for registering the decisions of 
 other organs of government. 
 
 Action that is clearly unreasonable has been rare. In 1900 the 
 voters of Oregon declined by a narrow majority to repeal the ob- 
 
 1 But in the South, if the degree of interest were calculated on the basis of the 
 ratio between votes cast on measures and votes cast for candidates at the primaries, 
 the comparative showing would not be so good.
 
 406 STATE GOVERNMENT IN UNITED STATES 
 
 solete provision of their constitution excluding free negroes from 
 the state. The provision had long ceased to have any legal ef- 
 fect, if it ever had any, and the majority of those who went to the 
 polls failed to vote on it at all. In 1912 the voters of Ohio de- 
 clined to ratify a proposition from their constitutional convention 
 striking from their constitution another obsolete provision ex- 
 cluding negroes from the right of suffrage. But these instances 
 of futile action prompted by prejudice are exceptional. 
 
 A more serious evil is the frequent adoption of measures with 
 respect to which the election returns indicate that there is no 
 clear public opinion at all. Many measures are adopted or re- 
 jected by majorities so small that it is impossible to determine 
 whether the decision represents the will of the electorate or 
 merely is the result of chance. Thus, in California during the 
 years 1898-1908 there were half a dozen proposed amendments 
 which were adopted or rejected by majorities of less than i per 
 cent of the total vote cast thereon. The change of one voter in 
 two hundred from one side to the other would have altered the 
 result. For example, in 1904 a proposition permitting the re- 
 vision of codes by single acts was rejected by a majority of 
 883 in a total vote of 118,983, and in 1908 propositions to repeal 
 a provision regarding the taxation of mortgages and to increase 
 the compensation of state officers were decided, the former nega- 
 tively, the latter affirmatively, by majorities of 835 and two 
 respectively in a total vote of over one hundred and eighty 
 thousand. Similar cases can be found in other states. That any 
 important question can be permanently decided by such majori- 
 ties is unthinkable, and if the decision in close cases has been 
 acquiesced in, the explanation must be that the public are indif- 
 ferent concerning the result. In other words, there can be no real 
 public opinion concerning the matters in question. The fact that 
 a popular referendum could elicit from the electorate a languid 
 expression of sentiment on such questions indicates a gratifying 
 response on the part of many voters to the call of duty, but also 
 indicates that the electorates ought not to be called upon to per- 
 form work in which they feel so little interest. 
 
 Indeed the most serious evil in the working of the compulsory 
 constitutional referendum is the lack of interest shown in a large 
 proportion of the measures. Ninety per cent of the measures
 
 DIRECT LEGISLATION BY THE ELECTORATES 407 
 
 are voted on by less than three-fourths of those who go to the 
 polls. A majority are voted on by less than half of the voters. 
 When the vote is small, there is no certainty that the decision 
 is supported by any real public opinion, and when the vote is 
 close as well as small, the decision may easily be produced by mere 
 chance, or even by some more objectionable influence. The bur- 
 dening of the ballot with trivial propositions constitutes a need- 
 less tax on the patience of the voter, and tends to breed contempt 
 of his high function as final arbiter of public questions. The 
 power to foist upon the voter the task of deciding unimportant 
 but vexatious questions constitutes a harmful temptation to lazy 
 and timid and dishonest legislators, and tends to foster slovenly 
 and even pernicious practices in legislative bodies. On the 
 other hand, where the public interest is lively, all the evidence 
 tends to show that the submission of measures to the voters 
 works well. In such cases the decision represents the expression 
 of a genuine public opinion. This opinion may not always be the 
 result of pure reason. Yet the state electorates show a readiness 
 to change their opinions, once expressed, when proper reasons 
 are furnished for so doing, and display no inconsiderable acute- 
 ness hi discriminating between the merits of the different prop- 
 ositions lying within the field of their interest that are brought 
 to their attention. Of course when there is a strong and greatly 
 preponderant public opinion with respect to any matter it is not 
 necessary to refer a question relating thereto to the electorate. 
 Honest and intelligent public officials are capable of reading the 
 mind of the people for themselves. It is when public opinion is 
 not altogether clear, as in regard to the regulation of the liquor 
 traffic, or when the interest of the official is not identical with 
 that of the people, as in regard to the powers or perquisites of 
 office, that the value of the compulsory referendum is greatest. 
 In such cases the referendum affords the most direct and the 
 most certain means of testing public opinion. It provides the 
 best security against the excessive violence of political contro- 
 versy, and largely contributes to the stability of the governments 
 of the states. 1 
 
 1 For a collection of essays dealing with the referendum from various points 
 of view, see W. B. Munro, editor, The Initiative, Referendum, and Recall. See 
 also D. F. Wilcox, Government by All the People.
 
 4 o8 STATE GOVERNMENT IN UNITED STATES 
 
 REFORM OF CONSTITUTIONAL REFERENDUM 
 
 The lack of interest on the part of the voters in many proposed 
 constitutional amendments may be partly explained by the 
 failure of the legislatures to make adequate provision for bring- 
 ing proposed amendments to the notice of the electorates. In 
 most states the legislatures are not constitutionally required to 
 publish such measures in any other manner than ordinary legis- 
 lative enactments, and in fact do not publish them except in the 
 volumes of session laws. Unless the measures are specially dis- 
 cussed on the platform or in the newspapers, most voters will 
 learn of their existence for the first tune when they examine 
 their ballots at the polls. Then they will be compelled to form a 
 hasty judgment upon the evidence afforded by the bare titles of 
 the measures on the ballot. In a few states it has been provided 
 that measures should be printed on the ballot in full instead of 
 by title. Few voters, however, are able to study a column or 
 more of proposed legislation deliberately and intelligently in the 
 polling booth. Still fewer will do so without feeling that to throw 
 such a burden upon them without notice is an unreasonable im- 
 position. Several states therefore have provided that proposed 
 amendments shall be printed in full one or more times, at pre- 
 scribed intervals prior to the election, in one or more newspapers 
 in each county. The newspapers themselves are inclined to en- 
 dorse this method of publication, for reasons some of which are 
 obvious enough. Such publication undoubtedly does secure 
 more or less publicity, especially in rural districts where the 
 county papers of the major parties are recognized political insti- 
 tutions. No state, however, prior to the introduction of the op- 
 tional referendum, made any special provision for putting before 
 the voter the reasons for a proposed constitutional amendment, 
 and the discussions volunteered by the newspapers were likely 
 to be partisan, and almost certain to be one-sided. Matters 
 touching the interests of the newspapers themselves, such as, for 
 example, proposals to establish a better system of publicity, 
 could hardly be expected to receive much consideration upon 
 their merits. At best this mode of publication is a casual rather 
 than a systematic attempt to inform the electorate about the 
 merits of the proposals upon which it is required to vote, and the
 
 DIRECT LEGISLATION BY THE ELECTORATES 409 
 
 interest it may be expected to arouse will be casual rather than 
 systematic. Matters not spontaneously felt by the voters to be 
 of major importance will not receive general public attention. 
 Nevertheless the neglect of the states to provide proper proce- 
 dure for arousing the interest and assisting the judgment of the 
 voters does not explain all the indifference to proposed constitu- 
 tional amendments which has been shown to exist. 
 
 In recent years it is certain that the practice of the compulsory 
 constitutional referendum has left much to be desired. It is 
 frequently asserted that the cause lies in the number of measures 
 referred to the voters, and that if the number were restricted the 
 public interest would increase. Several states have acted upon 
 this assumption, placing arbitrary limits upon the number of 
 amendments that may be proposed at the same time. Thus 
 Illinois provides that amendments may not be proposed to more 
 than one article of the constitution at a time, nor to the same 
 article more than once in four years, and Indiana provides that 
 only one amendment may be proposed at a time and no other 
 amendment may be proposed until that one has been disposed of. 
 Vermont does not limit the number, but forbids the proposal 
 of any amendments except at intervals of ten years. The Ver- 
 mont provision seems clearly unreasonable, since the objection 
 is not that the voters are required to express an opinion in too 
 many different years, but that they are required to express too 
 many opinions in the same year. The Indiana and Illinois pro- 
 visions tend rather to discourage than encourage the submission 
 by the legislature of important amendments only, because it is 
 so easy for opponents of action on the important matters to com- 
 bine in order to force the submission of unimportant matters, 
 thus blocking the path for the others. This has actually oc- 
 curred in recent years in both states. 
 
 The cause of the lack of interest in so large a proportion of the 
 proposed amendments in recent years has not only been their 
 excessive number, but also the excessive triviality of many of 
 them. A superficial remedy for this evil consists in the provision 
 existing in a dozen states that no proposed amendment shall be 
 adopted unless it receives the affirmative votes of more than a 
 bare majority of those voting thereon. In Rhode Island the 
 requirement is a three-fifths, in New Hampshire a two-thirds,
 
 4io STATE GOVERNMENT IN UNITED STATES 
 
 vote. The more common practice is the requirement that a 
 measure, to be adopted, must receive a majority, not merely of 
 all the votes cast thereon, but of all the votes recorded at the 
 election at which the measure is voted on. This is in effect a 
 rule that all voters who attend the polls and do not vote either 
 for or against a proposed amendment shall be counted against it. 
 Such a rule is illogical, for the presumption in their case is not that 
 they are opposed to the measure but that they are willing to 
 abide by the decision of those who hold an opinion strongly 
 enough to take the trouble of expressing it. It also works badly. 
 During the years 1898-1908 there were seventy-five measures 
 referred to the voters in twelve states upon which a special ma- 
 jority was required for adoption. Twenty-five of these measures 
 received the affirmative votes of a majority of all those partici- 
 pating in the elections at which they were severally referred, and 
 were consequently adopted. Ten received more negative than 
 affirmative votes and were rejected. The other forty were 
 favored by a majority of those voting on them, but nevertheless 
 failed of adoption, because of the number of voters who failed 
 to express any opinion. Most of these measures were open to no 
 serious objections. Many were not even controversial and should 
 have been adopted. Thus in Minnesota a proposition to permit 
 school funds to be invested in municipal and other local bonds 
 was referred to the voters at three successive general elections 
 before it was adopted, though it was never approved by less than 
 seventy-five thousand majority. A proposition to establish a 
 state road and bridge fund was also thrice referred, and, though 
 regularly approved by even larger majorities, was never adopted 
 at all. In Indiana the failure of the voters to take any interest 
 in a proposition to authorize the legislature to prescribe the quali- 
 fications for admission to the bar has prevented any change what- 
 soever in the constitution for twenty years. Finally, the rule 
 can be easily evaded in practice, as has been done in certain cases 
 in Oklahoma, by the simple but costly expedient of calling a spe- 
 cial election. 
 
 Another remedy for the lack of interest displayed by voters in 
 constitutional amendments referred to them by state legislatures 
 has been tried in Nebraska and Ohio. This consists in a pro- 
 vision that proposed amendments may be formally endorsed or
 
 DIRECT LEGISLATION BY THE ELECTORATES 411 
 
 protested by political parties in state convention assembled. The 
 voter may express his approval of the position of his party in 
 general by a single cross on his ballot which then is counted as 
 one vote for the straight party ticket. Thus his opinion is ex- 
 pressed for or against the various measures which have been re- 
 ferred to the people, as the case may be, without the necessity 
 of his taking the trouble even to read their titles. This device 
 may be a logical development of the party system, as established 
 in many states, but it is an extraordinary manner of stimulating 
 popular interest in voting on measures. In Nebraska the party 
 which controlled the legislature, and hence the submission of 
 constitutional amendments, regularly endorsed the propositions 
 which were submitted. Thus, because of the general prevalence 
 of the habit of voting a straight party ticket, a large number 
 of votes were counted for the several propositions, although few 
 votes were actually cast for them. The electorate was con- 
 verted into a mere rubber stamp. In Ohio the system has worked 
 in a similar manner. In 1903 nine- tenths of the voters were re- 
 corded on each of three propositions which had been acted upon 
 by both political parties. A fourth proposition had neither been 
 endorsed nor protested by any party and was actually voted on 
 by less than one-sixteenth of those who went to the polls. Such 
 a remedy is grasping for the shadow, and overlooking the sub- 
 stance. The official returns make a brave show, but the voters 
 have little part in it. 
 
 The chief difficulty with the constitutional referendum does 
 not lie in the smallness of the vote on many of the measures sub- 
 mitted, but in the smallness of the public interest in them ; and 
 the true remedy does not lie in attempting to enhance the size 
 of the vote by mechanical devices, but in attempting to free the 
 ballot from the burden of trivial matters. The most promising 
 remedy is to substitute in whole or in part the optional for the 
 compulsory referendum on constitutional amendments proposed 
 by the state legislatures. Before considering such a remedy, 
 however, it is necessary to examine the operation of the optional 
 referendum upon ordinary legislative enactments. 1 
 
 1 See, for a detailed study of the working of the referendum in the state where 
 it has been most freely used, J. D. Barnctt, The Operation of the Initiative, 
 Referendum, and Recall in Oregon.
 
 412 STATE GOVERNMENT IN UNITED STATES 
 
 WORKING OF THE OPTIONAL REFERENDUM ON LEGISLA- 
 TIVE ENACTMENTS 
 
 The optional referendum upon legislative enactments, like the 
 compulsory referendum upon proposed constitutional amend- 
 ments, can best be studied by inspection of the results of the 
 votes actually cast upon the measures thus referred to the 
 electorates. 
 
 In the first place, popular interest in measures referred to 
 the voters under the optional referendum is more general than in 
 measures referred under the compulsory constitutional referen- 
 dum. Whilst during the years 1899-1908 only one-tenth of the 
 latter were voted on by three-fourths of those who went to the 
 polls, nearly one-half of the former have been voted on by a 
 similar proportion of the voters. Whilst the majority of the 
 constitutional amendments fail to arouse any perceptible interest 
 in above fifty per cent of the voters, not more than one-fifth of the 
 measures referred under the optional referendum fail to interest 
 a majority of the voters. In short, the optional referendum 
 places upon the voters no such burden of deciding measures 
 which do not interest them as is placed upon them by the com- 
 pulsory constitutional referendum. At the same time the voters 
 reject a larger proportion of the measures referred to them under 
 the optional referendum than of those referred under the com- 
 pulsory constitutional referendum. Whilst only about thirty per 
 cent of the latter were rejected, more than half of the measures 
 referred under the optional referendum have been rejected by 
 the voters. In the twelve states in which the optional refer- 
 endum had been put to use down to the close of 1914 the popular 
 veto was invoked in the cases of seventy-eight measures and was 
 actually exercised in the cases of forty-one. In other words, 
 under the optional referendum the voters are much less fre- 
 quently required to vote upon measures of which they do not 
 disapprove than under the compulsory referendum. Thus, if 
 the test of the popular referendum is its efficiency as a device for 
 preventing the adoption of measures not satisfactory to the voters, 
 the optional referendum upon legislative enactments is appar- 
 ently a more efficient instrument than the compulsory referendum 
 upon proposed constitutional amendments.
 
 DIRECT LEGISLATION BY THE ELECTORATES 413 
 
 The greater efficiency of the optional referendum is indicated 
 also by an examination of the nature of the measures referred to 
 the electorates by petition. It has been shown that under the 
 compulsory constitutional referendum many trivial matters can 
 be disposed of only by reference to the voters, and that this con- 
 dition will persist so long as the constitutions of many states are 
 loaded with legislative detail. Under the optional referendum 
 presumably no measure is referred to the voters unless a substan- 
 tial number of voters is sufficiently interested to file a petition. 
 In practice it appears that the measures referred by petition are 
 rarely of trivial character. The titles of the fifty legislative meas- 
 ures referred to the electorates by petition in the states possessing 
 the direct popular referendum down to the close of 1912 have 
 been listed by various writers, 1 and are readily accessible. Of the 
 twenty-eight legislative measures referred to the state electorates 
 by petition in 1913 and 1914, six related to matters of local gov- 
 ernment, five to the regulation of public utilities, four to the con- 
 duct of higher education, three to compensation for industrial 
 accidents, and the other ten to various topics ranging from the 
 establishment of a penal code to the inspection of investment 
 securities. There is no measure of such trivial character as often 
 appears under the compulsory constitutional referendum. 
 
 Examination of the measures vetoed by the state electorates 
 leads to the conviction that the legislatures enacting them 
 were out of touch with, if not in direct opposition to, public 
 opinion upon the matters concerned. Of the twenty-five meas- 
 ures vetoed by the voters, down to 1912, a half-a-dozen were acts 
 providing increased appropriations for public institutions or in- 
 creased salaries or perquisites for public officials, two provided 
 for the creation of new state offices, and three related to the 
 tenure or compensation of local officers. Two others related to 
 changes in fiscal machinery or procedure. The other vetoed 
 measures related to a variety of subjects, such as the establish- 
 ment of a summer school for teachers, and the regulation of water- 
 rights for irrigation in Colorado, the organization and use of the 
 state militia in Montana and South Dakota, the apportionment 
 of congressional districts in the latter state, and the standardiza- 
 
 1 See A. L. Lowell, Public Opinion and Popular Government, app. B. See also 
 Equity, xv, no. i. (January, 1913.)
 
 4 i4 STATE GOVERNMENT IN UNITED STATES 
 
 tion of the percentage of alcohol permissible in intoxicating liquors 
 in Maine. Among the sixteen measures vetoed by the electo- 
 rates in 1913 and 1914 were proposals to license prize fighting, 
 restrict the sale of game, require railroads to employ full crews 
 of trainmen, license commission-merchants, and sterilize habitual 
 criminals. There is a corresponding variety in the laws which 
 upon reference to the voters were approved by them. South 
 Dakota and Oregon are the states in which the optional referen- 
 dum has been most freely used. In the former, the popular veto 
 has been invoked against thirteen measures, in six cases with suc- 
 cess. The vote upon referred measures varied from 86.9 per cent 
 upon the divorce act of 1908, which was sustained, to 60. i per 
 cent in 1910 upon an amendment to the law relating to a "city, 
 town, or place desiring to become a candidate for county seat." 
 This was also sustained. In Oregon six of the fifteen measures 
 referred to the voters have been vetoed, and the range of public 
 interest in referred measures has been about the same as in South 
 Dakota. 
 
 The evidence with respect to the voting upon measures referred 
 to the people under the optional referendum tends to corroborate 
 the inferences drawn with respect to the voting upon measures 
 referred under the compulsory constitutional referendum. The 
 evidence is perhaps insufficient to warrant any final conclusions, 
 but so far as it goes, it indicates that with respect to the meas- 
 ures in which the voters are interested they are able to vote with 
 discrimination. Since the voters are more generally interested 
 in measures referred under the optional referendum than in those 
 submitted under the compulsory constitutional referendum, it 
 follows that on the whole the operation of the optional referendum 
 is more satisfactory. There is indeed no logical reason why the 
 voters should not be as capable of deciding the fate of statutes 
 referred to them upon petition of a certain fraction of the elec- 
 torate as of deciding the fact of constitutional amendments re- 
 ferred to them by mandate of the constitution itself. It is not 
 the nature of the procedure under which the reference is made, 
 but the nature of the measure, that determines the action of the 
 voters. The value of right procedure for the selection of meas- 
 ures for reference to the electorate lies in the desirability of 
 excluding from reference such measures as will not interest the
 
 DIRECT LEGISLATION BY THE ELECTORATES 415 
 
 voter. In the case of a measure referred by petition, there is at 
 least the presumption that some of the voters are deeply inter- 
 ested in the measure. In the case of a measure referred by 
 constitutional mandate, there is no such presumption. If the 
 contents of the state constitutions had been restricted to the im- 
 portant matters which alone were originally inserted therein, there 
 would have been such a presumption, but that has not been the 
 case. Under the conditions that prevail in most of the states, 
 the presumption is rather that the bulk of the proposed consti- 
 tutional amendments will be such as the voters would be glad to 
 leave to the discretion of their representatives if they could. 
 There is, however, no way of doing this, except by abolishing 
 the compulsory constitutional referendum, and extending the 
 optional referendum to all constitutional amendments proposed 
 by the state legislatures. 
 
 The substitution of the optional for the compulsory referendum 
 on constitutional amendments is a change in the political system 
 of the states that might well receive consideration. If the legis- 
 latures could adopt uncontested amendments without reference 
 to the voters, they would be able to reduce the time required for 
 amendments in such cases by from one to four years. There 
 might often be a great gain to the public in such a saving of time, 
 to say nothing of the advantage of relieving the electorate from a 
 needless burden. The chief objections to the change spring from 
 practical rather than theoretical considerations. 
 
 EMERGENCY LEGISLATION 
 
 First, there is the difficulty under the optional referendum 
 of giving to the legislature adequate power for dealing with 
 emergencies without imposing undue restrictions upon the power 
 of popular veto. An emergency exists whenever an important 
 public interest demands immediate action, but immediate action 
 may be prevented, if the necessary legislation is opposed by a 
 number of voters sufficient to file a petition for a referendum. 
 Either the power to refer a legislative enactment to the electo- 
 rate, that is, to suspend the operation of a legislative enact- 
 ment pending its approval or disapproval by the electorate, 
 must be restricted, or the ability of the legislature to deal
 
 4 i6 STATE GOVERNMENT IN UNITED STATES 
 
 promptly and effectively with emergencies must be seriously 
 impaired. 
 
 The states which have adopted the optional popular referendum 
 may be divided into three classes with respect to the manner 
 in which they have met this difficulty. The first class comprises 
 those states which have chosen the first horn of the dilemma. 1 
 In these states the referendum is not applicable to measures 
 enacted for the purpose of dealing with an emergency, Thus in 
 South Dakota the referendum is not applicable to "such laws as 
 may be necessary for the immediate preservation of the public 
 peace, health, or safety, support of the state government and its 
 existing public institutions." In Oregon, however, an emer- 
 gency may be constitutionally declared only in the case of laws 
 "necessary for the immediate preservation of the public peace, 
 health, or safety." All other measures, including bills making 
 appropriations, except when passed in emergencies as above de- 
 scribed, are subject to suspension when referendum petitions are 
 filed against them. In each of the states of this class an emer- 
 gency is defined in the terms of either the South Dakota or the 
 Oregon constitution. The legislature itself, however, is the 
 judge of the necessity of legislation in cases of alleged emergency, 
 and may declare the existence of the emergency by an ordinary 
 majority vote. If a declaration of emergency is contained in the 
 preamble of a bill, the enactment of the bill serves itself as a dec- 
 laration of emergency. Therefore, unless the legislatures can 
 be constrained by the courts to give a very strict interpretation 
 to the expressions "public peace," "health," and "safety," which 
 is undesirable even if possible, this solution of the problem im- 
 poses extensive restrictions upon the power of popular veto. 
 
 The objections to such a solution of the problem are apparent. 
 First, the power of a majority of the legislature to declare an 
 emergency is liable to abuse, for the legislators are under strong 
 temptation to declare an emergency whenever they have reason 
 to fear that they have acted without the sanction of public 
 opinion. Certain legislatures seem almost to have formed the 
 habit of forestalling the exercise of the popular veto as much as 
 possible by passing all measures under color of an alleged emer- 
 
 1 South Dakota, Oregon, Montana, Oklahoma, Missouri, Arkansas, Colorado, 
 New Mexico, and Washington.
 
 DIRECT LEGISLATION BY THE ELECTORATES 417 
 
 gency, except where the lack of justification for such procedure 
 is too palpable. Thus in South Dakota during the first twelve 
 years after the adoption of the optional referendum the legisla- 
 ture enacted 1251 measures, of which 537 were declared to be 
 emergency measures and hence not subject to the popular veto. 1 
 Whatever may be the results of such a practice in the case of 
 statutory enactments, its impropriety in the case of constitutional 
 amendments is beyond question. Unless some test of urgency 
 can be devised which will not in effect leave the decision to the 
 discretion of the legislature, the optional referendum cannot be 
 considered a satisfactory substitute for the compulsory con- 
 stitutional referendum. 
 
 A second objection to the mode of dealing with emergencies 
 adopted in South Dakota and Oregon is that, even if the legisla- 
 tures could be trusted not to abuse their power to pass measures 
 in cases of acknowledged emergency, there is no agreement as to 
 what constitutes an emergency. The South Dakota and Oregon 
 provisions cannot both be right. In the latter state, for example, 
 the power of the purse is fully reserved to the electorate, whilst 
 in the former appropriation bills are not subject to the popular 
 veto at all. If there are any doubts as to the propriety of per- 
 mitting the review of certain classes of legislative enactments 
 directly by the electorate, it would seem more consistent with the 
 spirit of the referendum to authorize the voters to resolve those 
 doubts for themselves. If a choice must be made between re- 
 stricting the scope of the popular veto and impairing the ability 
 of the legislature to deal promptly and effectively with an emer- 
 gency, it would be surprising if no state chose the latter horn 
 of the dilemma. In fact this choice has been made in Nevada, 
 where all measures without any exception are subject to the 
 optional referendum. 
 
 The legislature is not altogether deprived of the power to deal 
 with emergencies, even if all measures are subject to the popular 
 veto. In case of emergency, when the operation of a measure 
 is suspended because of a referendum petition, the legislature or 
 executive may order a special election to be held at once, and if 
 the emergency be a genuine one, there should be no doubt as to 
 the action of the voters, provided the proposed measure is really 
 
 1 See A. L. Lowell, op. cil., p. 175. 
 
 2S
 
 4 i 8 STATE GOVERNMENT IN UNITED STATES 
 
 necessary and appropriate for the occasion. In fact, the actual 
 abuse of the power to suspend the operation of an act by filing 
 a referendum petition against it has been of an entirely different 
 sort. Measures have been enacted with the support of a strong 
 and clearly preponderant public opinion, against which referen- 
 dum petitions have been filed, not so much in the hope that 
 measures might ultimately be defeated, as in order to postpone 
 for nearly two years the execution of an unwelcome public policy. 
 In several states, for example, the enforcement of laws creating 
 public service commissions or otherwise providing for the regula- 
 tion of public utilities has thus been postponed through the filing 
 of referendum petitions by representatives of the corporate in- 
 terests to be affected thereby. In short, a satisfactory solution of 
 the problem of emergency legislation is not to be found by grasp- 
 ing either horn of the dilemma. 
 
 The third class of states comprises those which have attempted 
 to safeguard the power of the legislatures to deal with emergencies 
 without unduly restricting the power of the electorate to veto 
 legislative enactments. 1 The legislatures of these states are 
 authorized to declare the existence of an emergency, but only by 
 a two-thirds vote of all the elected members. The operation of 
 emergency measures may not be suspended by filing a referendum 
 petition against them, but they may be disapproved at a subse- 
 quent election. In each of these states certain kinds of measures 
 may under no circumstances be passed in the guise of emergency 
 measures. In California, for example, no measure creating or 
 abolishing any office, or changing any salary, term, or duties of 
 any officer, or granting any franchise or special privilege, or creat- 
 ing any vested right or privilege, may be declared an "urgency" 
 measure. Thus the popular veto power is not actually restricted, 
 nor is the ability of the legislature to deal with real emergencies 
 seriously impaired. 
 
 THE QUESTION OF SIGNATURES 
 
 A second practical difficulty with the referendum, it is some- 
 times asserted, arises from the necessity of protecting the public 
 against the abuse of the referendum for the purpose of delaying 
 1 Maine, California, Arizona.
 
 DIRECT LEGISLATION BY THE ELECTORATES 419 
 
 the enforcement of measures which the electorate may be ex- 
 pected eventually to approve. In a few states there has been an 
 attempt to prevent this abuse by requiring the signatures of a 
 larger percentage of the electorate to referendum petitions de- 
 signed to suspend the enforcement of a law than to those which 
 provide for the reference of a measure to the voters without sus- 
 pending its operation prior to the election. Thus in Montana 
 the percentages required are 15 per cent in the former case and 
 5 per cent in the latter ; in New Mexico they are 25 per cent in 
 the former case and 10 per cent in the latter. The question of 
 percentages, however, is an important one, and requires special 
 consideration. 
 
 The requirement that a petition for the reference of a legisla- 
 tive enactment to the electorate for approval or disapproval be 
 signed by not less than a stated number of voters serves several 
 purposes. First, it is desirable that no measure should be referred 
 to the voters unless there is some reason to suppose that the 
 action of the legislature will not be approved by a majority of 
 the voters. Secondly, it is desirable that no measure be referred 
 unless there is some reason to suppose that the electorate will be 
 sufficiently interested to express a genuine opinion thereon. 
 Thirdly, it is desirable that no more measures be referred at any 
 one time than the voters can reasonably be expected to consider 
 on their individual merits. Evidently the question of how many 
 signatures should be required on a referendum petition is one to 
 which a final answer can be obtained only from experience. In 
 most of the states the signatures of 5 per cent of the voters are 
 required to complete a petition for the reference of a statute to 
 the electorate for approval or disapproval. In some of the 
 states there is a further requirement that the signatures be ob- 
 tained in not less than a certain proportion of the counties of the 
 state. 1 The latter provision is intended presumably to insure 
 that the demand for an appeal to the electorate is not concen- 
 trated in a particular locality, but state-wide and general in 
 character. Its chief effect is to favor the rural as against the 
 urban voters. 
 
 In practice the collection of signatures to referendum petitions 
 is not so managed as to throw much light on the real convictions 
 
 1 Two-fifths, in Nebraska ; two-thirds, in Missouri.
 
 420 STATE GOVERNMENT IN UNITED STATES 
 
 of the voters. Whether signatures are collected by voluntary or 
 by paid workers, many arguments are likely to be employed 
 other than those pertaining to the merits of the measure in ques- 
 tion, and many signatures are likely to be secured, not because 
 the signer desires to vote against the measure, or has indeed any 
 definite opinion upon it, but because he desires to accommodate 
 a friend, or conciliate a customer or business acquaintance, or 
 get rid of an importunate caller, or simply thinks that the oppo- 
 nents of a measure are entitled to appeal to the electorate, if they 
 wish, and should receive help from all voters who may sometime 
 in their turn likewise desire to appeal to the electorate. In fact, 
 signatures are generally collected by paid canvassers, whose com- 
 pensation depends upon the number of signatures they obtain. 
 At the rate of five cents per signature a referendum petition would 
 cost from $500 in a state like Oregon to $5000 in a state like Ohio, 
 and the requirement that such a petition be filed therefore 
 amounts in such a case to a requirement that a corresponding 
 amount of money be forfeited, so to speak, as a fee for the appeal 
 to the electorate. If the money were actually paid as a fee to 
 the state and expended under authority of the state in publish- 
 ing authentic information concerning the measure, instead of 
 in payment of the cost of collecting the signatures, it would seem 
 likely that the electorate would be better informed concerning 
 the merits of the measure than it is by oral discussions with can- 
 vassers for signatures, and that the evidence as to a public de- 
 mand for a referendum on the measure would be no less convinc- 
 ing. 
 
 The value of a formal petition as a means of expressing public 
 opinion has probably been overrated. The filing of a petition 
 does not prove much concerning the real beliefs of those who 
 sign it. When the number of signatures is fixed at a low figure, 
 say, 5 per cent of the total electorate, the requirement apparently 
 has not kept many measures off the ballot which opponents were 
 determined should go to the voters. When the number of signa- 
 tures is fixed at a higher figure, on the other hand, the labor of 
 securing additional names increases at a disproportionate rate, 
 so that the cost of a petition signed by 20 per cent or 25 per cent 
 of the electorate will be much more than four or five times the 
 cost of a 5 per cent petition. Indeed, what evidence there is
 
 it is not much suggests that the requirement of a 25 per cent 
 petition is practically prohibitive. The existing system is super- 
 ficially democratic. Actually, however, it operates to the ad- 
 vantage of permanent well-organized interests, such as liquor 
 dealers, for example, and to the disadvantage of those that can 
 least afford to bear the burden of needless expense. Yet these 
 are the kinds of groups whose appeals to the voters are most to 
 be encouraged. 
 
 A better plan would seem to be to require persons proposing 
 to appeal to the electorate for the veto of a legislative enactment 
 to deposit with the state a sum sufficient to defray the cost of 
 sending to all voters an adequate explanation of the nature of 
 the measure to be referred to them, and of the reasons for which 
 its opponents seek its defeat, subject perhaps to the proviso that 
 if the measure is defeated, the money shall be refunded. Such 
 a requirement would produce sufficient evidence of good faith on 
 the part of the opponents, and if the governor has the power, as 
 is the case in some states, to call a special election, when deemed 
 necessary, there should be no serious abuse of the right to appeal 
 to the electorate, simply for the purpose of delay. 
 
 OFFICIAL BULLETINS OF INFORMATION 
 
 Several of the states that possess the optional referendum have 
 made provision for the publication of official bulletins for the 
 better dissemination of information upon measures referred to the 
 voters. 1 These bulletins contain copies of the referred measures, 
 together with arguments thereon, prepared by the advocates and 
 opponents of the measures, and are mailed to all registered voters 
 several weeks before the election. The expense of printing the 
 arguments is usually assessed upon those who prepare them, 
 the state paying the balance of the cost. These "voters' text- 
 books," as they are sometimes called, have proved a cheaper and 
 more effective medium for reaching the electorate than newspaper 
 advertising at public expense, which is the practice in a few 
 states, 2 and have been instrumental in assisting the voters to vote 
 
 1 Oregon, South Dakota, California, Arizona, Montana, Nebraska, Ohio, and 
 Washington. 
 
 * Colorado and Arkansas.
 
 422 STATE GOVERNMENT IN UNITED STATES 
 
 upon measures intelligently. In Oregon and California, where 
 the joint operation of the compulsory referendum on constitu- 
 tional amendments and of the optional referendum on statutes 
 has thrown a comparatively heavy burden on the voters, and 
 where the official bulletins are said to be carefully read by many 
 of them, there is far more evidence of discrimination between 
 measures than in such a state as Missouri, where the burden of 
 the referendum has also been comparatively heavy and where 
 there has hitherto been no official bulletin of information. 
 
 It is not easy to determine just how effective the official cam- 
 paign bulletins are as a means of educating the electorate. In 
 Oregon the use of the pamphlet for the publication of arguments 
 upon measures referred to the voters is optional with the supporters 
 and opponents of the measures. In only a small proportion of 
 cases are both affirmative and negative arguments published. Half 
 of the referred measures have been published in the pamphlet with- 
 out any arguments. Nor is there any relation between the publi- 
 cation of arguments and the results of the voting on the measures. 
 Of the measures accompanied by affirmative arguments alone 
 more were accepted than rejected, and of the measures accom- 
 panied by negative arguments alone, more were rejected than 
 accepted. But the total number of measures referred to the elec- 
 torate by means of the optional referendum is comparatively 
 small, and the relation between the publication of arguments and 
 the decision by the voters uncertain. There has been no per- 
 ceptible tendency on the part of the opponents and supporters 
 of measures referred to the voters by means of the optional refer- 
 endum towards a more general use of the privilege of publishing 
 arguments in the official bulletin. Apparently those who are 
 most concerned have not yet been convinced by experience with 
 the Oregon pamphlet that official publicity pays, nor have they 
 been convinced that it does not pay. In California arguments 
 on each side of every measure referred to the electorate must 
 be published in the pamphlet, together with the text of the 
 measures, and provision is made for the preparation of the 
 arguments by members of the legislature or other responsible 
 persons. A comparison of the California and Oregon pamphlets 
 shows that the arguments and information laid before the voters 
 in the former state are more complete and more adequate than
 
 DIRECT LEGISLATION BY THE ELECTORATES 423 
 
 in the latter, and the California pamphlet is presumably a more 
 effective aid to the voter. 
 
 Though the degree of effectiveness of the official bulletin as 
 a medium of publicity cannot be accurately determined, and 
 doubtless varies in different states according to the character and 
 condition of the voters, it cannot fail to be of considerable value 
 in the development of the referendum as an educational discipline. 
 The clearest evidence of this is the marked increase in the propor- 
 tion of voters attending the polls who have voted on constitutional 
 amendments proposed by the legislature that has occurred since 
 the adoption of the optional referendum and the publication 
 of an official bulletin. In California during the ten years 1899 
 to 1908 the average vote on the fifty-one measures submitted by 
 the legislature, indicated as a percentage of the total attendance 
 at the polls, was forty- three per cent. In 1914, when the system 
 of direct action upon measures by the electorate was subjected 
 to the severest test ever imposed in any state, the result was as 
 follows : 
 
 NUMBER OF MEASURES SUB- MAXIMUM AND MINIMUM AVERAGE PER CENT or 
 
 MITTED BY MEANS or VOTE ON MEASURES TOTAL VOTJC FOR GOVERNOR 
 
 initiative 17 (56^31) 73% 
 
 /755,45Q\ 
 
 optional referendum 4 73% 
 
 \6n,797/ 
 
 legislative and com- /674,420\ 
 
 pulsory constitutional 27 I ~l r~) 60% 
 
 referendum **" ' 
 
 Despite the heavy burden laid upon the voters by the combined 
 operation of the initiative and referendum, they voted more gen- 
 erally upon measures submitted by the legislature than ever 
 before. In Colorado during the ten years 1899 to T 9 O 8 the 
 average recorded vote upon the seventeen measures submitted 
 by the legislature was thirty-seven per cent of the total recorded 
 vote. The initiative and referendum were adopted in 1910, 
 a year before their adoption in California, but there is no 
 official bulletin or other provision for publicity except in the 
 newspapers. The result of the voting on measures in 1914 
 was as follows:
 
 424 STATE GOVERNMENT IN UNITED STATES 
 
 NUMBER OF MEASURES SUB- MAXIMUM AND MINIMUM AVERAGE PER CENT OF 
 
 MUTED BY MEANS or VOTE ON MEASURES, TOTAL VOTE FOR GOVERNOR 
 
 initiative 
 
 , 
 ^f.) 4 2 % 
 
 legislative and com- 
 
 pulsory constitutional 3 "Z 4% 
 
 referendum 
 
 Doubtless the greater increase of interest in measures submitted 
 by the legislature in California than in Colorado since the adop- 
 tion of the initiative and referendum cannot be explained wholly 
 by the adoption of better means of publicity. The evidence, 
 however, such as it is, tends to confirm the presumption that an 
 official bulletin like that of California will materially help to 
 arouse the interest and inform the intelligence of the voters. 
 
 The tendency among the states which have adopted the 
 optional referendum is towards the adoption and further develop- 
 ment of the official bulletin. In 1914 official bulletins were pub- 
 lished in eight states, and the voting on measures was more gen- 
 eral in those states than in the states where there was no official 
 bulletin. Of the various bulletins, that published in California 
 was the best, both in form and in substance. 
 
 OPTIONAL V. COMPULSORY REFERENDUM 
 
 Whether the optional referendum has yet so proved its worth 
 as to justify the complete abandonment of the compulsory ref- 
 erendum may be questioned. With respect to various matters 
 of detail the practice of the several states differs, and further ex- 
 perience may be necessary before a standard form of the optional 
 referendum is developed. Yet it is already clear that the optional 
 referendum, under the proper conditions and rightly used, satis- 
 fies the two tests of good government. As Mill phrases it, "gov- 
 ernment is to be judged by its action upon men and by its action 
 upon things ; by what it makes of the citizens and what it does 
 with them." Judged by either test, the optional referendum 
 upon legislative enactments has proved in the main a better 
 governmental device than the compulsory referendum on con- 
 stitutional amendments proposed by the state legislatures. It
 
 DIRECT LEGISLATION BY THE ELECTORATES 425 
 
 is a more efficient instrument both for the correction of misrep- 
 resentative action on the part of the legislatures and for the 
 education of the voters themselves. 
 
 The substitution of the optional for the compulsory referen- 
 dum upon constitutional amendments proposed by the state 
 legislatures would have the effect of diminishing the existing dis- 
 tinction between constitutional and ordinary statute law. Now 
 the process of constitutional amendment upon legislative initia- 
 tive, as established in almost all states, requires the approval of 
 all proposed amendments by the people. If that approval were 
 dispensed with, except in the case of such amendments as should 
 be brought before the electorate under the optional referendum, 
 the status of amendments not referred to and formally approved 
 by the electorate might seem less secure than that of those ordi- 
 nary laws expressly approved by the electorate. To be sure, the 
 legislatures are usually forbidden to propose constitutional 
 amendments by bare majorities, but legislatures are also for- 
 bidden to adopt some kinds of ordinary legislation by bare majori- 
 ties. In fact, the original distinction between constitutional 
 and statutory law has already been so far impaired by the inser- 
 tion of ordinary legislation in the state constitutions that the 
 preservation of the distinction in its present form is of doubtful 
 utility. It is for that very reason that it is proposed to substitute 
 the optional for the compulsory referendum on constitutional 
 amendments. The legislatures have shown themselves incapable 
 of maintaining the distinction in any logical form, and for the 
 revival of the traditional distinction, which is important, the 
 public may confidently look to its more direct representative, the 
 electorate. Whether the compulsory referendum should be re- 
 tained for certain classes of amendments, as it now exists for cer- 
 tain classes of ordinary legislation, is a question that will be con- 
 sidered presently. It is enough to point out here that the vital 
 distinction between constitutional and statutory law does not re- 
 side in the character of the procedure for its enactment, but in 
 the importance attached to the substance of the law itself. 
 
 There can be no doubt that the referendum is now permanently 
 established among the political institutions of the states. There 
 is no question of abandoning it. The only questions concerning 
 which there are still serious differences of opinion relate to the form
 
 426 STATE GOVERNMENT IN UNITED STATES 
 
 in which, and the conditions under which, it shall be used. In 
 the majority of states the referendum still exists only in the man- 
 datory form, and is applicable only to constitutional amendments, 
 and, in some of these states, to certain classes of ordinary legis- 
 lation. In a large minority of the states it exists also in the op- 
 tional form, and is applicable to most of the ordinary legislation. 
 A comparative study of the operation of the referendum in each 
 of its forms throws much light on the problems which still remain 
 unsettled. '<$} 
 
 The evidence indicates that the referendum, like any other 
 political institution, is an imperfect instrument, which works 
 better under some conditions than under others. The first limi- 
 tation upon its most effective use is one of number. The greatest 
 number of measures hitherto brought before the voters at one 
 time by the operation of the referendum is forty- two. These 
 were all constitutional amendments, proposed by a constitu- 
 tional convention in Ohio in 1912, and submitted to the voters at a 
 special election. The greatest number of measures of legislative 
 origin hitherto brought before the voters at one time by the opera- 
 tion of the referendum is thirty-one. Of these twenty-seven were 
 submitted by direction of the legislature and four by means of 
 the optional referendum at the regular election in California in 
 1914. In both states the action of the electorate was generally 
 conceded to have been deliberate and on most of the measures 
 intelligent. Yet it was clear that the number of measures was 
 greater than the voters could easily dispose of. There was a 
 general opinion that the burden laid upon the electorate was 
 excessive. The average number of measures brought before the 
 voters by means of the optional referendum alone is not more 
 than two or three, and the evidence indicates that this number 
 of measures can be easily handled by the voters. When the 
 number becomes excessive, the voters have a way of voting "no" 
 on all or most of the measures without much regard to their 
 several merits. This remedy has been most conspicuously ap- 
 plied in Missouri. In that state the presence of much statutory 
 matter in the constitution occasions the submission of numerous 
 amendments, and inadequate provision is made for the informa- 
 tion of the electorate. In 1914 eight constitutional amendments 
 were submitted by the legislature and four legislative measures
 
 DIRECT LEGISLATION BY THE ELECTORATES 427 
 
 were submitted by means of the optional referendum, all of which 
 were defeated by large majorities, though some were apparently 
 not without merit. In short, beyond a certain point any further 
 increase in the number of measures submitted is not likely to 
 bring a corresponding increase in the efforts of the electorate to 
 understand the issues. Hence beyond that point the greater 
 the number of measures, the less satisfactory will be the result. 
 It is not possible to determine just when that point is reached, 
 and probably that point is reached more quickly in some states 
 than in others. No two electorates are precisely alike with re- 
 spect either to innate political capacity or to habits of mind. 
 The abuse of the optional referendum by submitting too many 
 measures to the voters at the same time, however, is one for which 
 the voters have the best remedy in their own hands. For that 
 reason it is the compulsory rather than the optional referendum, 
 the use of which should be curtailed in those states in which the 
 total number of measures brought before the electorate by means 
 of the referendum is felt to be excessive. 
 
 The second limitation upon the most effective use of the refer- 
 endum is one of kin^. The operation of the optional and, more 
 clearly, that of the compulsory referendum reveals the reluctance 
 of many voters to express an opinion upon matters outside the 
 range of their personal experience. The mass of the voters, for 
 example, will generally vote freely on measures relating to the 
 organization or powers of juries, but not on measures relating to 
 the organization or powers of the higher courts. They know 
 whether or not they wish to prohibit the sale of intoxicating 
 liquors, but are not so certain with respect to the desirability of 
 concentrating the responsibility for the management of all chari- 
 table and penal institutions in a single state board of control. 
 As President Lowell has said, "it would seem wiser, therefore, to 
 confine the referendum to questions involving general principles 
 alone, and to the class of matters where the public is normally 
 familiar with the facts required for a decision, than to extend it 
 promiscuously to questions where a rational opinion can be 
 formed only by a knowledge of details with which the ordinary 
 man does not readily become acquainted." 1 Experience shows 
 that it is the compulsory rather than the optional form of therefer- 
 
 1 A. L. Lowell, Public Opinion and Popular Government, p. I.<;Q.
 
 428 STATE GOVERNMENT IN UNITED STATES 
 
 endum which is mainly responsible for the submission of the 
 wrong kind of measures to the voters, just as it is the compulsory 
 rather than the optional form which is mainly responsible for the 
 submission of the excessive number of measures. If the refer- 
 endum is to be used under the most favorable conditions, therefore, 
 it would seem to be necessary to restrict its use under the compul- 
 sory form and to extend its use under the optional form. In 
 short, it would seem not only that the referendum has come to 
 stay, but also that the optional form should tend more and more 
 to prevail. 
 
 WORKING OF THE DIRECT POPULAR INITIATIVE 
 
 The referendum is commonly connected in political discussions 
 with the initiative. The literature relating to the subject almost 
 invariably treats them as if they were inseparable. In practical 
 politics also the two have generally been found together. Only 
 two of the twenty-four states which have submitted to the elec- 
 torate proposals to establish the optional referendum have failed 
 at the same time to submit the direct popular initiative. 
 
 The two devices, however, are distinct, and should be care- 
 fully distinguished in all discussions of the work of the state elec- 
 torates. The referendum enables the electorates to disapprove 
 and thereby annul a measure adopted by the legislature, and has 
 on that account been termed, as has been said, the popular veto, 
 or more properly, the electoral veto. The initiative enables the 
 electorate itself to adopt a measure disapproved and therefore not 
 adopted by the legislature. It has been accordingly termed the 
 procedure for direct legislation by the people, or more properly, 
 by the electorate. Ordinarily this expression is understood to in- 
 clude both the referendum and initiative, but such usage of the 
 term is inaccurate and objectionable. The procedure for direct 
 legislation by the electorate is necessarily completed by a popular 
 vote, and to that extent the initiative resembles the referendum, 
 but in all the earlier stages of the procedure the differences are 
 more important than the resemblances. The vital distinction 
 between them consists in the fact that under the referendum no 
 measure can come before the electorate unless previously ap- 
 proved by the legislature, whilst under the initiative no measure
 
 DIRECT LEGISLATION BY THE ELECTORATES 429 
 
 comes before the electorate if it has been previously approved by 
 the legislature. 
 
 So far as the procedure for direct legislation by the electorate 
 is identical with that for the exercise of the electoral veto, it may 
 be expected to operate in the same manner. Whether a measure 
 originates within or without the legislature is in itself immaterial 
 to the electorate. It is not the origin but the nature of the 
 measure that concerns the voters, when it is submitted to them. 
 If the voters can act intelligently on measures brought before 
 them by means of the referendum, they can also act intelligently 
 on measures submitted to their decision by means of the initia- 
 tive, other things being equal. In other words, unless it can be 
 shown that measures brought before the voters by means of the 
 initiative tend to differ in some definite way from measures 
 brought before them by means of the referendum, there is no 
 reason to suppose that the electorate will be less capable of decid- 
 ing wisely in the one case than in the other. The first question 
 that arises, therefore, in connection with the initiative is not 
 whether the voters can be trusted to use with discretion the power 
 of direct legislation, but what, as a matter of fact, are the char- 
 acteristic differences, if any, between initiated and referred 
 measures. 
 
 If there were any marked differences between initiated and re- 
 ferred measures, it might be supposed that these differences 
 would be reflected in the results of the voting thereon. If, for 
 example, initiated measures, as a class, were generally felt to be 
 less important than referred measures, the voting thereon should 
 be less general. If the purposes of initiated measures were gen- 
 erally considered more objectionable, the election returns should 
 show that a larger proportion of them are defeated. If their 
 drafting and technical detail were generally found to be less per- 
 fect, the fact should appear in a growing distrust of initiated as 
 contrasted with referred measures, and an increasing tendency 
 to reject those which have failed to secure legislative approval. 
 
 In fact, the action of the electorates upon measures submitted 
 by means of the initiative has hitherto not been markedly differ- 
 ent from its action upon measures submitted by means of the op- 
 tional referendum. In each case the interest in the measures 
 brought before the voters, as indicated by the voting thereon,
 
 430 STATE GOVERNMENT IN UNITED STATES 
 
 has been conspicuously greater than in measures submitted by 
 means of the compulsory constitutional referendum. As in the 
 case of the measures submitted by means of the optional referen- 
 dum nearly one half of the measures submitted by means of the 
 initiative have been voted on by not less than three-fourths of 
 those who have gone to the polls, and only a small minority of 
 the measures have failed to interest a majority of the voters. 
 The degree of interest shown by the voters in measures submitted 
 by means of the initiative has been on the whole a little greater 
 than that in measures brought before the voters by means of the 
 optional referendum. This result, however, seems to be due 
 mainly to the exceptional interest aroused by certain measures 
 not infrequently brought before the voters by means of the 
 initiative, rather than to any generally greater interest in ini- 
 tiated measures as such. The initiated measures which have 
 aroused the most interest have related to such matters as the 
 regulation of the traffic in intoxicating liquors, taxation and the 
 use of public credit, and the extension of the suffrage to women. 
 They have raised clean-cut issues, in the decision of which most 
 voters have felt a direct personal interest. With the exception 
 of the measures relating to taxation, they have generally involved 
 questions of principle only, unconfused by questions of detail or 
 of ways and means. Other matters with respect to which much 
 legislation has been proposed by means of the initiative, and 
 upon which comparatively large votes have been cast, are public 
 education and improvements, the regulation of public utilities, the 
 regulation of conditions of industrial employment, and the reform 
 of systems of nomination and election to public office. In short, 
 the questions that have aroused most interest are substantially 
 the same as those which have aroused most interest when raised 
 by means of the optional referendum. So far as the degree of 
 interest in initiated measures in general is an indication of their 
 character, the evidence does not indicate that there are any 
 marked differences in the character of initiated and referred 
 measures respectively. 
 
 The evidence afforded by the election returns is a little more 
 illuminating with reference to the relative acceptability of ini- 
 tiated and referred measures. Of the 209 initiated measures, 
 which had been brought before the voters in 14 states down
 
 DIRECT LEGISLATION BY THE ELECTORATES 431 
 
 to the close of 1914, 86 were approved by a majority of 
 those voting thereon, and 81 were legally adopted. The 
 other 128 failed of adoption. It is evident, therefore, that a 
 smaller proportion of the measures brought before the electorates 
 by means of the initiative have been adopted than of those 
 brought up by means of the optional referendum. The fate of 
 the initiated measures has not apparently been affected by the 
 fact that 1 20 of them were proposed statutes and the other 89 
 proposed constitutional amendments. The proportion adopted 
 was substantially the same in each case. So far as these figures 
 indicate anything with respect to the operation of the initiative 
 and of the referendum, respectively, they indicate that the persons 
 responsible for the submission of measures to the electorates 
 have been somewhat more successful when they have appealed 
 to the voters to veto measures which the legislatures had approved 
 than when they have appealed to the voters to adopt measures 
 which the legislatures had not approved. The difference, how- 
 ever, between the proportion of measures adopted under the 
 initiative and under the optional referendum is not great enough 
 to warrant any definite conclusions. 
 
 The evidence with respect to the growth of a tendency to dis- 
 trust measures submitted by means of the initiative is perhaps 
 a little more significant. In Oregon the number of initiated meas- 
 ures submitted to the voters and the results of the voting thereon 
 in each year since the adoption of the initiative is as follows : 
 
 YEA* 
 
 MEASURES SUBMITTED 
 
 MEASURES ADOPTED 
 
 1904 
 
 2 
 
 2 
 
 1906 
 
 10 
 
 7 
 
 1908 
 
 II 
 
 8 
 
 1910 
 
 25 
 
 8 
 
 1912 
 
 28 
 
 8 
 
 1914 
 
 19 
 
 5 
 
 The proportion of initiated measures adopted by the voters has 
 steadily declined. Yet it would be a mistake to infer too much 
 from these figures. Oregon is only one of fourteen states in which 
 the initiative has been put to use. In the other states not much
 
 432 STATE GOVERNMENT IN UNITED STATES 
 
 use of the initiative was made prior to 1912, and although a 
 larger proportion of initiated measures in these other states 
 was rejected in 1914 than in 1912, the voters were everywhere 
 more conservative in 1914 than in 1912, and the rejection of a 
 greater proportion of the initiated measures may have been due 
 rather to the conservative feelings of the voters in general than to 
 any special distrust of initiated measures in particular. In 
 short, much caution is necessary in interpreting the election re- 
 turns relating to measures submitted to the voters by means of 
 the initiative. 
 
 THEORETICAL OBJECTIONS TO THE DIRECT POPULAR 
 
 INITIATIVE 
 
 Opponents of the initiative assert, nevertheless, that certain 
 characteristic differences are to be expected between measures 
 originating outside of and not approved by the legislatures and 
 those for which legislative approval is secured, and that if those 
 differences are not yet clearly reflected in the election returns, it 
 is because the initiative has not yet been in operation long enough 
 for its full effects to become apparent. Ultimately, the less 
 satisfactory operation of laws enacted by the people under the ini- 
 tiative will become apparent, it is urged, and the causes will be 
 found to lie in the nature of the measures. In the first place, 
 measures submitted to the electorate in accordance with the pro- 
 cedure of the initiative are devised and put forth by persons not 
 acting in any official representative capacity and not responsible 
 to anybody but themselves. The members of the legislature 
 are chosen to provide for the common interests and promote the 
 general welfare of the whole people, and have to deal with many 
 measures, knowing that no two will be approved by precisely the 
 same body of voters. The initiators of a measure to be submitted 
 directly to the electorate are self-chosen, and need consider only 
 the interests of a majority of those whom they expect to vote 
 thereon. If they have no ambition to hold public office, they may 
 utterly disregard the interests and beliefs of those whom they ex- 
 pect to vote against their measure. Therefore, it is to be feared 
 that measures submitted under the initiative will tend to show 
 less consideration for the rights of minorities than measures
 
 DIRECT LEGISLATION BY THE ELECTORATES 433 
 
 enacted by representative legislators. But without fair con- 
 sideration for the rights of minorities, the peaceful operation of 
 democratic institutions is impossible. In short, under such con- 
 ditions the initiative, far from affording a beneficial educational 
 discipline, would exercise, its opponents say, a profoundly 
 demoralizing influence on the public mind. 
 
 Secondly, it is asserted by the opponents of the initiative that 
 initiated measures, even if unexceptionable in principle, are more 
 likely than legislative measures to be offiective in detail. A legis- 
 lative body is bound by rules of procedure intended to secure 
 freedom of debate and adequate publicity for the reasons of its 
 acts, as well as for the acts themselves. Its proceedings are in- 
 tended to be deliberate, and to afford ample opportunity for the 
 revision of immature proposals and for the amendment of those 
 that are imperfect. The initiators of a measure to be submitted 
 directly to the voters are bound also by rules of procedure, but 
 these rules impose no restraint on secret deliberations and 
 ordinarily afford no convenient opportunity for the revision of 
 immature or for the amendment of imperfect proposals. Once a 
 measure has been initiated, it must be accepted or rejected by 
 the voters as it stands. Upon the electorate, therefore, there is 
 more likely to be thrown under the initiative than under the 
 referendum the difficult task of balancing an end that is good 
 against a means that is doubtful, or of weighing the advantages of 
 immediate action against those of acting more slowly with the 
 aid of probably riper wisdom. In short, in so far as measures 
 not approved by legislative bodies may be expected to differ from 
 those which are so approved, they should be less rather than 
 more perfect, it is argued, and the initiative therefore should 
 tend to impair rather than improve the quality of legislation. 
 
 The first of these theoretical objections to the initiative^may be 
 partially tested by a further examination of the measures hitherto 
 submitted to the electorates by means of the initiative. The 
 following are the main classes of legislation in connection with 
 which the rights of minorities seem most likely to be placed in 
 jeopardy taxation, the regulation of corporations, especially 
 of public service corporations, the regulation of conditions of 
 industrial employment, the regulation of social conditions involv- 
 ing vested business interests, as in the case of the liquor traffic, 
 a?
 
 434 STATE GOVERNMENT IN UNITED STATES 
 
 and legislation touching special racial or religious interests. The 
 single tax is the most radical proposal in the field of taxation that 
 has been brought before the electorates by means of the initia- 
 tive. In several states single tax measures of various sorts have 
 been brought to a vote, and have been defeated in every case by 
 majorities varying from nearly two to one to more than five to 
 one. In general the voters have shown themselves extremely 
 cautious in adopting changes in their system of taxation, whether 
 proposed by initiative or otherwise. 1 Measures relating to the 
 regulation of public utilities have been brought before the voters 
 in most states in which the initiative has been put to any con- 
 siderable use, but not all the measures so submitted have been 
 adopted, and no measures have been adopted by means of the 
 initiative for which there was not precedent in the legislation 
 adopted by other state legislatures. The same is true of labor 
 legislation. No laws have been adopted by means of the initia- 
 tive for which precedent cannot be found in the enactments of 
 the state legislatures, nor do the voters adopt all the labor laws 
 submitted to them. Thus, the eight-hour day for women when 
 submitted by initiative in Oregon in 1914 was rejected, although 
 it had been previously (1912) adopted by the legislature of Cali- 
 fornia. With respect to liquor laws the situation is the same. 
 In 1914, for example, prohibition was submitted in five and 
 adopted in four western states. In the fifth (California), where 
 the measure submitted to the people contained some novel and 
 comparatively oppressive provisions, the voters, though appar- 
 ently friendly to prohibition, rejected the proposed measure. 
 Among the 209 measures that have been submitted by means of 
 the initiative, down to the close of 1914, there has been no measure 
 which has raised a religious issue of any kind. The principal 
 measures which have raised racial issues hi the states possessing 
 the initiative have been submitted by the legislatures, and they 
 have been directed against aliens. Experience in the "direct 
 legislation" states indicates, so far as experience can yet indicate 
 anything, that racial and religious questions will not be raised by 
 means of the initiative, except under such circumstances as would 
 probably cause them to be raised by the legislatures, if there were 
 no procedure for direct legislation. 
 
 1 See especially, Oregon election returns, 1912, 1914.
 
 DIRECT LEGISLATION BY THE ELECTORATES 435 
 
 There is as yet no convincing evidence that the initiative has 1 
 tended to demoralize the electorates by exposing casual majorities < 
 of voters to the temptation of abusing the rights of helpless j 
 minorities under the lead of irresponsible and reckless agitators.* 
 Either there have been legislative precedents for the radical 
 measures submitted by means of the initiative, or they have been 
 rejected at the polls. The best examples of the latter have been 
 the single tax measures and those proposed by the Oregon re- 
 formers for the purpose of making over the constitution of that 
 state. So far as proposals for radical reforms go, the chief effect 
 of the initiative has been to secure for their proponents an earlier 
 and wider hearing than would otherwise have been the case. 
 Presumably this means that those proposals which are sound have 
 a better prospect of speedy adoption by the legislature than if the 
 initiative did not exist. Submission to the electorate by means 
 of the initiative serves the double purpose of affording some bene- 
 ficial educational discipline to the voters, and of revealing to the 
 legislatures more clearly than can be done in any other way the 
 state of the public mind. Where the result of the voting upon a 
 measure shows a demand for action, even if the electorate itself 
 refuses to accept the particular measure submitted to it, a wise 
 legislature will act accordingly. The submission of so-called 
 "blue sky" laws and their rejection by the electorates of three 
 western states in 1912 and 1914 showed, first, that there was a 
 public demand for the more effective protection of investors 
 against fraudulent securities, and, secondly, that the voters 
 were reluctant to approve legislation on the subject without 
 further consideration. In one of the same states a "blue sky" 
 law enacted by the legislature and submitted to the voters by 
 means of the optional referendum was approved at the same time 
 that an initiated measure was rejected. To secure the informa- 
 tion concerning the state of the public mind afforded by the sub- 
 mission of these measures, the votes were well worth taking. 
 Nor could the consideration of the measures have failed to be 
 instructive to the voters. It is doubtless true that the full 
 effects of direct legislation by the voters are not yet apparent, 
 but the fears of those who assert that the initiative will exert 
 a bad influence upon the electorates do not seem likely to be 
 verified.
 
 436 STATE GOVERNMENT IN UNITED STATES 
 
 The second of the theoretical objections to the initiative may 
 be partially tested in the same way as the first. There are many 
 examples of initiated measures which raise for the consideration 
 of the voters not only a main issue, consisting of some general 
 principle of public policy, but also subordinate issues, arising 
 out of the means proposed to give effect to the general principle 
 of the measure. Now, the voters cannot decide at a single ballot- 
 ing on a given measure more than one of the issues that may be 
 involved in it. Either they will lose sight of the general principle 
 because of the superior importance attached to subordinate 
 issues, or they will shut their eyes to defects of detail because of 
 the engrossing interest of the general principle. For example, 
 if a proposed law to prohibit the sale of intoxicating liquors should 
 incidentally attempt to prohibit the growing of grapes or hops, 
 grape and hop growers as a class would presumably take most 
 interest hi the features of the measure that concerned them 
 most directly. A legislative system which does not permit the 
 offering of amendments is bound to be inferior to one which does, 
 so far as all but the simplest issues are concerned. Direct legis- 
 lation by the voters, regarded solely as an educational discipline, 
 may be more effective than legislation by representatives, but 
 regarded from any other point of view, its utility will depend upon 
 the nature of the issues involved in a given measure. A bill to 
 abolish capital punishment may be effectively disposed of by the 
 same voters, who find themselves at a loss how to vote on a meas- 
 ure to establish a public service commission and define its powers. 
 Even if a majority of the voters are sure that they want more 
 adequate regulation of the rates and service of public utilities, 
 they may not be sure that a commission is the best means for se- 
 curing that end, or that a commission of the particular sort, and 
 armed with the particular powers, proposed in the measure sub- 
 mitted to them, is the kind of commission best fitted to carry 
 out their purposes. Still less are the voters capable of voting 
 intelligently on proposals to fix rates and conditions of service 
 directly by law. The actual fixing of rates that will be just to 
 all parties is dependent upon acquaintance with matters of fact 
 about which it is unreasonable to expect many voters to be ade- 
 quately informed. 
 
 It is also unreasonable to expect that those who prepare meas-
 
 DIRECT LEGISLATION BY THE ELECTORATES 437 
 
 ures for submission to the voters will always be actuated by a de- 
 sire to assist the voters to make their decision wisely. For 
 example, in Colorado in 1914 a measure was submitted to the 
 voters permitting juries to return verdicts by a three-fourths 
 vote in civil cases, and also permitting women to serve on juries. 
 As women vote in Colorado, this manner of putting the question 
 may have seemed to its sponsors a good joke on the opponents 
 of any departure from the established principle that the verdicts 
 of juries shall be unanimous. The "joke," however, was too 
 apparent, and the measure was rejected. But less conspicuous 
 "jokers" may be deliberately inserted in lengthy technical bills, 
 as when the Oregon single taxers initiated a measure to provide 
 for the county regulation of local taxation and to abolish the poll 
 tax. 1 Doubtless many of the devices for beguiling or deceiving 
 members of legislative bodies, that have been employed by 
 special interests to gain their private ends, will also be employed 
 for the same purpose in connection with direct legislation by the 
 people, though with less likelihood of success. 
 
 IMPROVEMENT OF PROCEDURE FOR DIRECT LEGISLATION 
 
 In several of the states in which it has been proposed to estab- 
 lish the initiative, attempts have been made to improve the pro- 
 cedure for direct legislation. In California, the amendment 
 adopted in 1911, by which the initiative was established, provided 
 that measures might be submitted directly to the electorate on 
 petition of 8 per cent of the voters, or that they might be sub- 
 mitted first to the legislature on petition of 5 per cent of the 
 voters. If the legislature should fail to enact the measure as pro- 
 posed by the petitioners, it should be submitted to the electorate, 
 but not otherwise. This plan was intended to prevent the need- 
 less submission of measures, but afforded no means by which an 
 initiated measure, if amended in the legislature with the approval 
 of its initiators, could be enacted without submission to the elec- 
 torate. Even if convinced that the legislature had improved 
 their measure, the initiators would, nevertheless, have no re- 
 course but to let their original draft be submitted to the electo- 
 
 1 This measure was adopted by the voters in 1910, but two years later they re- 
 pealed all of it except the part abolishing the poll tax.
 
 438 STATE GOVERNMENT IN UNITED STATES 
 
 rate and to urge the voters to reject it and accept the perfected 
 bill referred as an alternative by the legislature. In Wisconsin, 
 by an amendment first proposed in 1911, 1 it was provided that no 
 measure should be submitted to the electorate unless it had been 
 previously submitted to the legislature. If those desiring the 
 enactment of a proposed measure could not induce the legislature 
 to accept it, either in its original form or in any amended form 
 that would be satisfactory to them, they could secure its sub- 
 mission to the electorate, either in its original form or with any 
 proposed amendments. The procedure for the submission of a 
 measure to the electorate was to be substantially the same, 
 whether a measure was or was not approved by the legislature. 
 In other words, no distinction was made between the procedure 
 for the initiative and that for the optional referendum, except 
 that the former should apply to measures which the legislature 
 should not and the latter to measures which it should approve. 
 Such a scheme might be expected to prevent the submission of 
 measures to the electorate, whenever action could be secured from 
 the legislature, and where no satisfactory action from the legis- 
 lature could be secured, such a scheme might be expected to in- 
 sure the submission of a measure in its most improved form. 
 Unfortunately, the Wisconsin scheme was rejected by the voters, 
 and the opportunity to put these expectations to the test of 
 experience was deferred. 
 
 There has been a marked tendency in the states which have 
 most recently considered the adoption of the initiative to provide 
 for as much deliberation as possible in the procedure for direct 
 legislation by the voters. 2 A plan proposed in Massachusetts 3 
 provides that only a part of the signatures required for submitting 
 a measure to the electorate need be secured in the first stage of 
 the procedure, the rest to be secured after tHe adjournment of 
 the legislature in case that body fails to take action satisfactory 
 to the original initiators. These persons are entitled to choose 
 a committee to represent them, and the committee is authorized 
 
 1 Endorsed by the legislature in 1913, but rejected by the voters in 1914. 
 
 2 See the Minnesota amendment, rejected in 1914, and the Iowa amendment, 
 to be submitted in 1916, in the American Year Book for 1913, pp. 76-77. 
 
 3 See L. J. Johnson, The Initiative and Referendum, an Effective Ally of 
 Representative Government, gth ed.
 
 DIRECT LEGISLATION BY THE ELECTORATES 439 
 
 to consider and approve any amendments that may be proposed 
 in the legislature. If by this means the bill may be so modified 
 as to become acceptable to the legislature without becoming un- 
 acceptable to the committee, further proceedings under the origi- 
 nal petition may be discontinued. Such a plan would seem cal- 
 culated to exert the maximum of pressure upon the legislature 
 with the minimum of effort on the part of the electorate as a 
 whole, and at the same time to preserve all the advantages of the 
 Wisconsin plan with respect to the incorporation of perfecting 
 amendments in measures actually submitted to the voters. 
 
 Yet when all is done that has yet been proposed, the initiative 
 will remain a cumbersome piece of legislative machinery. Ini- 
 tiated bills must still be accepted or rejected by the voters in the 
 exact form/in which they are submitted. The electorate cannot 
 revise and amend, like a law-making body which physically meets, 
 and it can recommit a measure only by defeating it. In such an 
 event, there can never be any certainty as to the grounds of the 
 voters' objections, whether they approve the measure in principle 
 and condemn the means employed to give effect thereto, or 
 whether they condemn it in principle and in detail alike. It is as 
 if an ordinary legislature had no option but to give an unqualified 
 yes or no to every measure laid before it, as a jury can bring in no 
 verdict but one of guilty or not guilty. As a means of improving 
 the technical character of state legislation the initiative holds 
 out little promise. The genius that would be required to perfect 
 it, if devoted to the further improvement of methods of law- 
 making in the state legislatures, should bring a much greater 
 return. 
 
 The conditions under which the initiative operates to best 
 advantage are the same as those under which the optional refer- 
 endum operates to best advantage. The number of measures 
 submitted at the same time must not be too great, and the na- 
 ture of the measures must not be too technical or too remote from 
 the experience of the voters. Not a few measures have been sub- 
 mitted to the voters by means of the initiative which have con- 
 spicuously failed to arouse general public interest. Among these 
 have been a number of measures relating to purely local affairs, 
 or to the general forms of local government when only special 
 localities were really concerned. Some measures, indeed, of gen-
 
 440 STATE GOVERNMENT IN UNITED STATES 
 
 uine public concern have been voted on by a surprisingly small 
 number of persons. For example, in Colorado in 1912 measures 
 were initiated to provide for trial by jury in cases of contempt of 
 court and to place all appointed public officers under civil service 
 rules. The former was rejected and the latter was adopted, only 
 28 per cent of the voters who attended the polls voting thereon. 
 That was the smallest interest ever shown in initiated measures, 
 yet the measures were not unimportant. In general there seem 
 to be proportionately no more measures of trivial importance 
 brought before the voters by means of the initiative than by 
 means of the optional referendum. But the number of initiated 
 measures has been excessive in several of the direct-legislation 
 states, and measures of an excessively technical or abstract char- 
 acter have been initiated in most of them. The Colorado 
 measures noted above afford excellent illustrations of this. There 
 were too many measures on the ballot in that state in 1912, the 
 provisions for informing the voters about them were inadequate, 
 and the particular measures noted above were technical in char- 
 acter and related to matters outside the experience of the 
 mass of the voters. 
 
 The states which have introduced the official bulletin as a 
 means of placing before the electorate the texts of referred 
 measures, together with arguments thereon, have invariably 
 made similar provision for publicity in connection with the use 
 of the initiative. Thus one pamphlet contains all the matter 
 relating to measures to be voted on by the electorate, regardless 
 of the origin of the measures. In general what has already been 
 noted concerning the value of the official bulletin as a means of 
 publicity in connection with the referendum applies also to its 
 use in connection with the initiative. The advocates and oppo- 
 nents of initiated measures, however, publish arguments in the 
 official bulletins, the use of which for purposes of discussion is 
 optional, much more freely than the advocates and opponents 
 of referred measures. In no state does the available evidence 
 indicate that the publication of arguments has any decisive in- 
 fluence upon the result of the vote. The arguments themselves 
 vary widely in forensic power but are usually unexceptionable 
 in tone and reveal a decent respect for the character of those to 
 whom they are addressed. If it were certain that they were read
 
 DIRECT LEGISLATION BY THE ELECTORATES 441 
 
 by all the voters, it would be possible to bestow high praise upon 
 the educational value of direct action by the electorate. The 
 election returns demonstrate, however, that the direct action 
 of the electorate upon measures is an educational discipline of 
 which a considerable minority of the voters do not as yet take 
 advantage. Such voluntary disfranchisement of ignorant and 
 indifferent voters, on the other hand, so far as voting upon 
 measures is concerned, doubtless improves the operation of the 
 initiative as an instrument of legislation. 
 
 Regarded as an instrument of legislation, however, the initia- 
 tive is of limited value. It is not reasonable to expect that the 
 electorate can enact directly more than a small fraction of the 
 total mass of legislation demanded by the people of the states. 
 In the main the people must continue to rely upon their less imme- 
 diate representatives, the members of the legislatures. It is not 
 reasonable to expect that the electorate can deal satisfactorily 
 with any but the simplest issues, except temporarily until the 
 legislature can be incited to action. Finally there are some mat- 
 ters over which the electorate should not be permitted to exer- 
 cise an independent authority at all. 
 
 LIMITATION OF LEGISLATIVE POWERS OF ELECTORATES 
 
 In several states which have adopted the initiative, the power 
 of the electorate has been restricted to the enactment of statutes. 
 The power to adopt constitutional amendments without the 
 previous approval of some other legislative body has been denied. 1 
 The objection to the constitutional initiative seems to be based 
 upon the fear that the electorate cannot be trusted with direct 
 legislative power and that the consequences of its abuse will be 
 more serious in connection with constitutional amendments than 
 in connection with ordinary legislation. A facile reply to this 
 objection is that the nature of a measure under the conditions that 
 exist in most states has no necessary connection with its status 
 as constitutional or statutory, and that a discrimination against 
 the use of the initiative for the adoption of such measures as 
 happen to arise in the form of constitutional amendments is 
 
 1 South Dakota, Utah, Montana, Maine, Idaho, Washington.
 
 442 STATE GOVERNMENT IN UNITED STATES 
 
 therefore not justified. This reply, however, does not wholly 
 meet the objection. It can be seen by inspection of the election 
 returns that most constitutional amendments are no less suited 
 by nature for consideration and enactment directly by the elec- 
 torate than ordinary legislation. There is one class of constitu- 
 tional amendments, however, of which this is not true, namely, 
 those which are intended to define or enlarge the powers of the 
 electorate itself. It is natural for all persons, voters as well as 
 those in more conspicuous places of authority, to strive for greater 
 power. The electorate, if permitted to define its own powers, 
 cannot be expected to resist the temptation unduly to enlarge 
 them. The dangers that may result from the lack of any 
 restrictions upon the power of electoral initiative in an American 
 state are greatly diminished by the power possessed by the 
 federal courts to veto state legislation in conflict with the Federal 
 Constitution. The state electorates cannot destroy the republi- 
 can character of established institutions, nor deny to any person 
 the benefit of due process of law. The difficulties, however, 
 that may result from the unrestricted initiative are not inconsider- 
 able. For example, in Arizona a constitutional amendment was 
 proposed by means of the initiative in 1914 for the purpose of 
 depriving the legislature of the power to amend or repeal any 
 statute adopted by the electorate. The needlessness of this 
 proposal and the inconveniences that might be caused by it 
 were pointed out in an able argument published in the official 
 bulletin, but it was nevertheless adopted. The action of the elec- 
 torate in this instance was not rational ; it was instinctive, and 
 action in such cases is more likely to be instinctive than rational. 
 The electorate is not the people, and under our system of gov- 
 ernment it is just as improper for the electorate directly to define 
 its own powers as for the legislature or the courts to define their 
 own powers. The right of the legislature or courts to define their 
 own powers is checked and balanced by the right of the other 
 organs of government to do likewise. The same should be the 
 rule for the electorate. The legal responsibility of the other or- 
 gans to the electorate insures that the will of the voters, if well 
 considered, will ultimately prevail. 
 
 There are some other limitations that should be imposed upon 
 the direct popular initiative. When the electorate exercises the
 
 DIRECT LEGISLATION BY THE ELECTORATES 443 
 
 power of initiative, it acts as a legislative body, and is subject 
 to many of the temptations that surround other legislative bodies. 
 Experience has shown what these temptations are, and, to guard 
 against them, many constitutional limitations have been imposed 
 upon the ordinary state legislatures. In so far as these limita- 
 tions regulate the procedure of the legislatures, they are mostly 
 inapplicable to the electorates, a fact which renders it im- 
 possible that the electorate can ever be a satisfactory independ- 
 ent agency for the enactment of the greater portion of state legis- 
 lation. In so far as these limitations, however, relate to the 
 powers of the state legislatures, they are applicable to the elec- 
 torates. In Wisconsin, the proposed plan for direct legislation 
 by the electorate, rejected by the voters in 1914, provided that the 
 constitutional limitations upon the powers of the ordinary legis- 
 lature should be imposed also upon the electorate, when acting 
 as a legislative body. The Wisconsin plan showed a prudent 
 recognition of the lessons of experience with American legislative 
 bodies, but it was not altogether above criticism. The effect of 
 constitutional limitations upon the powers of a state legislature, 
 when properly enforced by executive and judiciary, is to prevent 
 the enactment of the prohibited measures without the express ap- 
 proval of the electorate. It is not certain, however, that those 
 kinds of measures which a legislature cannot be trusted to enact 
 without the express approval of the electorate are identical with 
 those which an electorate cannot be trusted to enact without the 
 approval of the legislature. Nor, as has been pointed out, is it 
 even certain that the existing limitations upon the powers of the 
 legislatures are those which are most necessary and appropriate 
 for legislative bodies. But in a general way it may be said that 
 at the least such constitutional limitations should be imposed 
 upon the electorates as will effectually prevent them from exer- 
 cising executive or judicial powers under the guise of popular 
 law-making. 
 
 During the twelve years that have elapsed since the initiative 
 was first employed for the enactment of legislation directly by 
 the voters, many popular measures have been adopted by the 
 state electorates, which certainly would not have been adopted 
 so soon, if the legislatures in those states had possessed a 
 monopoly of the law-making power. The most notable illustra-
 
 444 STATE GOVERNMENT IN UNITED STATES 
 
 tion of the use of the initiative is afforded by the experience of 
 Oregon. Among the measures that have been adopted in that 
 state by means of the initiative are the following : the direct 
 primary law, a local option liquor law, later state-wide prohibi- 
 tion, municipal home-rule, a railroad anti-pass law, several 
 special corporation tax laws, the state-wide recall, a stringent 
 corrupt practices act, the so-called Oregon plan for the direct 
 election of United States senators (now superseded by the 
 seventeenth amendment to the Federal Constitution), an em- 
 ployers' liability act, woman suffrage, extension of the public 
 debt limit for road construction, the eight-hour day on public 
 works, a public utilities commission law, prohibition of prison 
 contract labor, and abolition of capital punishment. Neverthe- 
 less, regarded primarily as an instrument of government rather 
 than as an educational discipline, the value of the initiative has 
 consisted hitherto and must continue to consist principally in its 
 efficacy as a mode of expressing public opinion. Modes of ex- 
 pressing the opinion of the voters which are advisory only cannot 
 be as effective as those which are mandatory, and eventually will 
 be treated by them with comparative indifference. The opera- 
 tion of the Illinois public opinion law of 1902 has demonstrated 
 this. Under the initiative, the voters' knowledge that their 
 opinions will have a certain effect brings out a fuller and more 
 deliberate expression of opinion than under any other system. 
 Whether initiated measures submitted to the voters are adopted 
 or rejected, the value of the vote as an expression of opinion is 
 equally great. The best effects of the popular initiative should 
 be found, in the long run, not in the legislation placed by its use 
 directly upon the statute books, but in the improvement of the 
 legislation placed there by the legislatures.
 
 PART IV 
 
 CONCLUSION
 
 CHAPTER XIV 
 
 THE FURTHER REFORM OF STATE GOVERNMENT 
 
 Two conclusions stand out clearly from the study of state 
 government in the United States. In the first place, it is evident 
 that the governments of the states are now very different from 
 what they were in the beginning. We are accustomed to look 
 back at the institutions of the Fathers with veneration and awe. 
 The truth is, so far as state government is concerned, that the 
 institutions originally established were for the most part very 
 imperfect. The people of all the states began with the same 
 fundamental principles, popular sovereignty and the reign of 
 law. But there was no agreement upon methods of reducing 
 those principles to practice. Some of the methods originally 
 employed were well devised and have endured. The government 
 of Massachusetts, the most carefully planned and best balanced 
 of the original state governments, is still carried on under the 
 original constitution. In that state the character of the govern- 
 ment has been much more affected by the growth of parties and 
 the development of administrative activities than by the formal 
 amendment of the constitution. In most of the original states, 
 however, the first governments were not carefully planned and 
 have been greatly altered by constitutional changes. These 
 changes have been many and various, but, as already indicated, 
 they may all be classified under one or the other of two heads. 
 The changes falling under the first head have to do with the 
 democratization of the forms of government. The electorates 
 have been made broader and more completely representative of 
 the people. Their control over the other branches of govern- 
 ment, legislative, executive, and judicial, has been strengthened. 
 The changes falling under the second head have to do with the 
 redivision of powers between the legislative, executive, and ju- 
 dicial branches. The legislatures, practically supreme in most 
 
 447
 
 448 STATE GOVERNMENT IN UNITED STATES 
 
 of the original states, have been subjected to more effective 
 checks, and a better balance has been established between them 
 and the coordinate branches. The result is that state govern- 
 ment is now not only very different, but also on the whole very 
 much better than it was in the beginning. 
 
 The second conclusion to be drawn from the study of the 
 government of the states is that the process of change by which 
 the improvement of state government has been accomplished has 
 not yet come to an end. The state governments are expected to 
 do a great deal more for the people than in the beginning, and 
 many things no doubt are now done much better. Nevertheless, 
 it is generally believed that state government is not very efficient 
 and in some cases not even decent. Whilst much of the dis- 
 satisfaction with the state governments must be ascribed to the 
 imperfections of human nature, it is evident that the forms of 
 government also still remain imperfect. The people have be- 
 trayed their dissatisfaction by the continual discussion of fresh 
 expedients for further reform. In recent years some of these 
 expedients have been adopted, notably the direct primary, the 
 regulation of the use of money in elections, and, to a more limited 
 extent, direct legislation and the recall. But in general public 
 opinion seems bewildered by the variety of expedients that are 
 offered. There is no agreement yet concerning the proper quali- 
 fications for the suffrage or the best methods of making nomina- 
 tions and conducting elections. There is no agreement concern- 
 ing the organization or powers of the legislatures, executives, and 
 judiciary. There is no agreement concerning the functions of the 
 electorates or the methods of changing the state constitutions. 
 It is not surprising, therefore, that the recent discussion of the 
 need for further reform has as yet been followed by a dispropor- 
 tionately small amount of actual achievement. There is no 
 reason to suppose, however, that either the popular dissatisfac- 
 tion or the discussion of expedients for further reform will cease, 
 while political conditions in the states remain as they are at 
 present. State government in the future, as in the past, will 
 probably be very different from what it is now. If the right 
 expedients are now adopted, it ought also to be very much better. 
 
 The changes in state government now most frequently pro- 
 posed for adoption, like those already adopted, may all be
 
 THE FURTHER REFORM OF STATE GOVERNMENT 449 
 
 classified under one or the other of two heads. First, there are 
 those intended to broaden the electorates and give them greater 
 control over the conduct of public affairs. Secondly, there are 
 those intended to impose further limitations upon the powers of 
 the legislatures and to increase the authority and usefulness of 
 the executives and judiciary. The first class of changes, now 
 as in the beginning, are advocated for the purpose of making the 
 state governments more popular; the second, to make them 
 more efficient. Most contemporary plans for the further reform 
 of state government, however, deal only with special cases of 
 imperfection. Specific remedies are suggested for specific evils, 
 regardless of their bearing upon the government of the state in 
 other respects. The messages of the governors, for example, in 
 recent years have frequently contained suggestions for changes in 
 the conduct of elections, as by the adoption of better ballot laws, 
 or for changes in the organization and procedure of the legisla- 
 tures, as by the adoption of the unicameral system, or in the 
 executives, as by the introduction of the budget system, or in the 
 judiciaries, as by the reform of the use of injunctions or of the 
 system of trials of appeals. But plans for the systematic revi- 
 sion of state government as a whole are comparatively infrequent. 
 When politicians or reformers do take a broader view of the 
 problems of state government, their attention seems generally 
 to be directed either to the further democratization of the forms 
 of government in the interest of greater popular control or to the 
 further redivision of powers between the legislatures and the 
 coordinate branches in the interest of greater efficiency, but 
 rarely to both at once. Several noteworthy plans for the more 
 or less general reform of state government, however, have 
 recently been put forth. 
 
 I 
 
 THE COMMISSION PLAN 
 
 The most radical of the various plans for the further reform 
 of state government is the commission plan. The commission 
 plan for states is based upon the commission plan for cities, the 
 principal features of which are the following : (i) the concen- 
 
 2G
 
 450 STATE GOVERNMENT IN UNITED STATES 
 
 tration of all legislative and executive authority in a single small 
 body, the commission, consisting usually of five members; 
 (2) the exercise of legislative powers by the commission as a 
 whole ; (3) the exercise of executive powers by each commissioner 
 over a separate department of administration ; (4) the election 
 of the commissioners at large; and (5) the enforcement of re- 
 sponsibility to the people and the maintenance of continuous 
 popular control over both the legislative and the administrative 
 acts of the commission and of each commissioner by means of 
 the direct popular referendum, initiative, and recall. Consider- 
 able variation in details is to be found among the charters of 
 commission-governed cities, but in general the differences are of 
 minor importance. The terms for which commissioners are 
 elected range from one to six years, two and four year terms being 
 the most common, and are usually so adjusted that they expire 
 one or two at a time. In most cities where the commission plan 
 has been adopted the assignment of departments to the several 
 commissioners is made by the commission itself, but in some 
 cities each commissioner is elected to take charge of a particular 
 department, and the commission as a whole cannot alter his 
 administrative duties, except by altering the organization and 
 functions of the department, so far as permitted by the charter. 
 In most cities the commissioners are nominated in a non-partisan 
 primary and elected without party designation of any sort. In 
 some the primary has been abolished and in its place the prefer- 
 ential ballot is employed at the election. Subordinate officials 
 are often protected by the merit system, and partisan control of 
 patronage and partisanship in general are so far as possible 
 eliminated. 
 
 The commission plan, as applied in the cities, has demon- 
 strated its possession of many advantages. 1 The concentration 
 of powers has put an end to the friction between mayors and 
 councils that often occurred in cities governed in accordance with 
 the traditional plan, and has centralized responsibility for the 
 management of municipal affairs. It has facilitated the adop- 
 tion of businesslike methods in the conduct of the public busi- 
 ness and stimulated attention to economy and efficiency. If the 
 adoption of the commission plan has not greatly altered the per- 
 
 1 See W. B. Munro, The Government of American Cities, pp. 304-310.
 
 THE FURTHER REFORM OF STATE GOVERNMENT 451 
 
 sonnel of municipal government, it has unquestionably improved 
 the tone of municipal politics. On the other hand, its limitations 
 are equally apparent. It restricts the public service, at least so 
 far as holding political offices are concerned, much more narrowly 
 than the older system of municipal government. It offers no 
 security for an adequately representative government in cities 
 with a large and variegated population. It provides an adminis- 
 tration, which, unless it is to be dangerously susceptible to sinister 
 control, requires for the protection of the public a large measure 
 of publicity in all its proceedings and a watchful citizenry. In 
 particular, the concentration of the appropriating and the spend- 
 ing power in the same hands may lead the commissioners into 
 grave temptations, unless they are adequately checked by the 
 instruments of direct popular control, the referendum, initia- 
 tive, and recall. In the smaller cities, however, these limitations 
 are not seriously felt. In all kinds of cities the commission plan 
 promises a frame of government which the voters can readily 
 understand, a consideration which doubtless has greatly aided 
 in promoting its rapid and widespread adoption. As a leading 
 authority on the government of cities has well said, the advocates 
 of the commission plan have "rendered a real service in directing 
 public attention to the most urgent need of the American muni- 
 cipal system, the simplification of a machine which is far too 
 complex for the work that it has to do. As a protest against 
 the old municipal regime it has been effective ; as a policy it has, 
 despite incidental shortcomings, fulfilled much of what its spon- 
 sors have claimed for it." l 
 
 The adoption of the commission plan for cities, and the accom- 
 panying marked improvement in the tone and results of muni- 
 cipal government, inevitably led to the suggestion of the com- 
 mission plan for states. To the advocates of the commission 
 plan it was enough to point to the conditions in commission- 
 governed cities. To the careful student of state government, 
 however, that argument was inconclusive. In the first place, it 
 is evident that much of the improvement in the character of 
 municipal government that has followed the rapid spread of the 
 commission plan has been the result of features commonly intro- 
 duced with the commission plan, but not essential to it. Non- 
 
 1 Munro, op. cii., p. 319.
 
 452 
 
 partisan nominations and elections, the short ballot, the abolition 
 of petty local representation, the merit system of appointment 
 and promotion, wider and more effective use of experts in ad- 
 ministration, uniform methods of accounting, improvements in 
 budgetary practice, greater publicity in the conduct of official 
 business, and greater popular interest in public affairs: these 
 features alone would have worked a great improvement in the 
 government of cities. Secondly, it is evident that the commis- 
 sion plan is more suitable for the conduct of administration than 
 for legislative purposes. In municipal government, administra- 
 tive functions are far more important than legislative, but in 
 state government the legislative functions are the more impor- 
 tant. The people of a city, especially of a small city, may be 
 adequately represented for the purpose of framing and adopting 
 ordinances by a body of five persons elected at large, but law- 
 making for the people of a whole state requires a more numerous 
 representative body. The burden of administration in a large 
 city, if too heavy for five commissioners, can be lightened by 
 delegating a part of the work to technical assistants or subordi- 
 nates. The burden of legislation in a state, if too heavy for 
 the commission, cannot so easily be delegated. A watchful citi- 
 zenry may exercise an effective control over a municipal com- 
 mission, if the city be not too large nor its affairs too compli- 
 cated, without an excessive burden upon the ballot through the 
 use of the referendum, initiative, and recall; but in a state 
 governed by the commission plan the same effect could be secured 
 only by a much greater effort on the part of the electorate. It 
 has already been pointed out that there is a point beyond which 
 increased direct action by the voters will not yield a correspond- 
 ing increase in the effectiveness of that mode of governmental 
 control. Finally, the commission plan is illogical. As Professor 
 Munro says, "Nearly all the arguments that can be advanced in 
 favor of the five-headed executive can be urged with greater 
 cogency for the policy of concentrating all final powers of an 
 administrative character in the mayor alone." 1 Another able 
 critic of American government puts it more strongly. "I do 
 not advocate the commission plan, either for states or cities, 
 because it violates the fundamental principles of government 
 
 1 Op. dt., p. 317.
 
 THE FURTHER REFORM OF STATE GOVERNMENT 453 
 
 and all other successful cooperative enterprises in this : It 
 divides executive responsibility and power among from three 
 to seven men. These fundamental principles, as I understand 
 them, are that for legislation it is impossible to have too many 
 minds. . . . On the executive side there must be undivided 
 responsibility one mind. There can be no danger in placing 
 too much executive power with one man, if he is directly re- 
 sponsible to his employers, the people." 1 
 
 It is not surprising, therefore, that, despite the great popu- 
 larity in recent years of the commission plan for the government 
 of cities, plans for the reform of state government by merging the 
 legislature with the governor and other principal executive officers 
 into a single state commission, exercising both legislative and 
 executive powers, have not developed to the point where they 
 could command serious consideration or official support. There 
 have been several so-called commission plans for state govern- 
 ment, but they have invariably lacked some of the essential 
 features of the genuine commission plan. One of the most widely 
 discussed of these was suggested by Governor Hodges of Kansas 
 in 1913. He proposed that the executive branch of the state 
 government be left as it was, but that in place of the bicameral 
 legislature a single "commission" be substituted. This legisla- 
 tive commission was to consist of two members elected from each 
 congressional district for comparatively long terms. They were 
 to give all their time, if necessary, to the task of law-making, 
 and were to receive much better compensation than ordinary 
 state legislators. Governor Hodges argued that the members of 
 such a legislative commission would be more carefully selected 
 than members of an ordinary legislature, that the work would 
 attract a more efficient set of men, and that they would be able 
 to perform their duties under more favorable conditions. His 
 proposal, however, was obviously a half measure, since it took 
 no account of the necessity for improving administrative as well 
 as legislative methods, and, perhaps for that reason, it found 
 little favor with the Kansas legislature. Nevertheless, the sub- 
 stitution of unicameral councils for separate common councils 
 and boards of aldermen has been a change distinctly for the 
 better in several large cities, which did not venture to try the 
 
 1 "Clear Ideas from Hon. W. S. U'Ren," Equity, vol. jv, pp. 163-164.
 
 454 STATE GOVERNMENT IN UNITED STATES 
 
 commission plan, and similar consolidations in the state legisla- 
 tures have been recommended in recent years by several govern- 
 ors. As has been already pointed out, this is a specific reform 
 for which much can be said, irrespective of any changes to be 
 made in other departments of state government. 
 
 The commission plan of government, it is now clear, marked 
 the climax of a reaction against the established American prac- 
 tice of the division of powers. The division of powers was 
 carried to extreme lengths in the traditional form of municipal 
 government, and public impatience with some of its results was 
 justified. Five executive heads are certainly better than fifty 
 or than none at all, which was substantially the situation in 
 many city and state governments, if unofficial bosses be left out 
 of view. But for purely executive purposes one head is even 
 better than five, whilst for the business of law-making on any 
 considerable scale five commissioners are not enough. The 
 necessity for the complete abandonment of the principle of the 
 division of powers has not yet been demonstrated. Opinion 
 among reformers now tends to recognize that a more rational 
 application of the principle than under the tradition form of 
 municipal government is what is required. Indeed, the impor- 
 tance of a rational division of powers was never wholly ignored, 
 though it was apparently denied by some of the commission plan 
 advocates. The merit system of appointments and promotions, 
 often associated with the commission plan, was itself a conces- 
 sion to the principle of the division of powers, and the growing 
 favor of the so-called commission-manager or Dayton plan for 
 the government of cities plainly indicates a turn in the tide of 
 public sentiment. Under this plan, the chief executive is to be 
 chosen by a comparatively small representative council for fit- 
 ness without regard to politics, and to be intrusted with full 
 powers of administration. He is in short, as the name indicates, 
 a city manager. He has no veto over ordinances or appropria- 
 tions passed by the council, but is expected to take the initiative 
 in the preparation of proposed ordinances and of the budget. 
 Legislative power remains exclusively with the council, subject, 
 if desired, to the popular control through the referendum, initia- 
 tive, and recall. Since the development of this new plan for the 
 division of powers in the government of cities, talk of the com- 
 mission plan for states has come to an end.
 
 THE FURTHER REFORM OF STATE GOVERNMENT 455 
 
 II 
 
 THE SOCIALIST PLAN 
 
 A less radical plan for the reform of state government is that 
 proposed by the Socialist party. This plan seems originally to 
 have been brought from Germany in the seventies by the founders 
 of the old Socialist-Labor party. In the form in which it appears 
 in the early platforms of that party it closely resembles the plan 
 of political reorganization advocated by the German Socialists 
 of the same period, and doubtless reflected the experience and 
 hopes of Swiss democracy, then the inspiration of revolutionary 
 Germans, rather than those of America. In the early platforms, 
 for example, it was proposed to abolish the presidency (and pre- 
 sumably also the office of governor in the states) and substitute 
 an executive commission or council, chosen by the legislature. 
 When in 1888 presidential electors were first nominated by the 
 Socialist-Labor party, they were instructed, if successful at the 
 polls, to cast their votes for "No President." 1 With the lapse 
 of time socialism in the United States has become more Ameri- 
 canized, and the " immediate political demands" of the present 
 Socialist party say nothing about Swiss executive councils. The 
 principal features of the Socialist plan are now as follows: 
 (i) unrestricted and equal suffrage for men and women ; (2) aboli- 
 tion of the upper houses of the legislatures and election of the 
 lower houses by some system of proportional representation ; 
 (3) abolition of the executive and judicial vetoes and restriction 
 of the executive and judicial departments to purely administra- 
 tive and judicial duties ; (4) election of all important adminis- 
 trative and judicial officers directly by the people ; and (5) the 
 direct popular referendum, initiative, and recall. Of these all 
 but the fourth have been expressed or implied in Socialist plat- 
 forms since the Socialists first entered American politics with an 
 organization of their own. 
 
 Much of this plan is the common property of American re- 
 formers. Manhood suffrage had been strongly favored by the 
 fourteenth and fifteenth amendments, and the grant of the suffrage 
 to women on the same terms as to men had been begun in the 
 
 1 See Morris Hillquit, History of Socialism in the United States (sth ed.), P- 257.
 
 456 STATE GOVERNMENT IN UNITED STATES 
 
 West, before the first platform of the modern Socialist movement 
 in America was written. Equal suffrage has now (1916) been en- 
 dorsed by all political parties and of course cannot be classed as 
 a peculiarly socialistic reform. The proposal to consolidate the 
 bicameral legislatures into single-chambered bodies, as has been 
 shown, goes back to the beginning of the state governments, and 
 discussion of the proposal has been recently revived without 
 reference to the plans of the Socialists. The proposal to elect 
 representatives by some system of proportional representation 
 is scarcely more novel, and has been discussed in America ever 
 since the publication shortly before the Civil War of J. S. Mill's 
 influential essay on Representative Government. Various sys- 
 tems have been experimented with, notably cumulative voting, 
 adopted for the election of members of the lower house of the 
 legislature in Illinois in 1870, and limited voting, employed in the 
 election of delegates to the Pennsylvania constitutional conven- 
 tion in 1873. Interest in proportional representation declined 
 in the seventies, but revived two decades later. Like the con- 
 temporary interest in the initiative and referendum, this revival 
 was probably inspired directly by the example of Switzerland 
 rather than by the propaganda of the Socialists. Recent dis- 
 cussion of proportional representation has been more particularly 
 concerned with its possible application to municipal councils. 
 The system advocated by Mill was tried for the first time in 
 1915 in connection with the election of a representative council 
 under the commission-manager plan in Ashtabula, Ohio. 1 Both 
 the executive and the judicial vetoes were opposed by early 
 American democrats, and both, particularly the latter, are still 
 opposed by many non-socialist critics of existing institutions in 
 the states. The direct popular election of administrative and 
 judicial officers was a cardinal principle of nineteenth-century 
 American democracy, and the direct popular initiative, referen- 
 dum, and recall have been incorporated in the program of all 
 twentieth-century American democrats. 
 
 The significance of the Socialist plan does not lie in the char- 
 acter of its several features, but in their combination into a 
 general scheme of reform. Viewed as a whole, the plan resembles 
 the commission plan in its insistence upon the direct election of 
 
 1 See Proportional Representation Quarterly, 3d series, no. 37, Jan. 1916.
 
 THE FURTHER REFORM OF STATE GOVERNMENT 457 
 
 administrators as well as legislators and upon the direct control 
 of their operations by the electorate. The Socialist plan also 
 resembles the commission plan in marking a reaction against the 
 doctrine of the division of powers. But it does not, like the 
 commission plan, propose to do away altogether with the division 
 of powers between coordinate branches of the government. The 
 Socialists are content to leave the executive and judiciary inde- 
 pendent of the legislature, proposing merely to deprive them of 
 their political powers. In other words, so far as concerns the 
 relations between the different departments of government, 
 they propose partially to restore the conditions which existed 
 during the early period of legislative supremacy. They would 
 democratize the forms of government to the utmost limit com- 
 patible with the maintenance of representative institutions, but 
 they would make little change in the original division of powers. 
 The study of contemporary state government clearly indi- 
 cates, however, that under present conditions the people cannot 
 safely rely on direct action by the electorates for all the protec- 
 tion against legislative mistakes and misdeeds now afforded by 
 the existing checks and balances. The direct popular veto, for 
 example, cannot do all the work now done by the executive and 
 judicial vetoes. The state in which the electorate has made the 
 most vigorous use of its powers is Oregon. Down to the close 
 of the year 1914 six measures which had been enacted by the 
 legislature and approved by the governor had been vetoed by 
 the Oregon electorate by means of the optional referendum. 
 During the same period eighteen measures were vetoed by the 
 Oregon supreme court and two hundred or more by the governor. 
 In Oregon, however, the courts exercise the judicial veto with 
 great caution, and the governor may use the executive veto 
 only during the course of the legislative session or within five 
 days of its close, and may not veto separate items of appropria- 
 tion acts. In states where the courts exercise their political 
 powers more boldly and where the executive veto is more highly 
 developed than in Oregon, the disproportion between the results 
 of the executive and judicial vetoes and of the popular veto 
 would be even greater than in Oregon. When the character as 
 well as the quantity of legislation vetoed by the executives and 
 courts is considered, it is obvious that the burden of checking
 
 458 STATE GOVERNMENT IN UNITED STATES 
 
 undesirable legislation now borne by the executives and courts 
 could not be shifted to the state electorates. If the established 
 balance between the legislatures and the coordinate departments 
 were upset, there is little reason to believe that an equally effec- 
 tive balance between the existing legislatures and the electorates 
 could be contrived. Neither the practice of direct legislation 
 by the electorates nor the recall, as has been shown, gives promise 
 of any such development as would warrant a reversion to the 
 system of legislative supremacy, which many of the states have 
 already tried and rejected, limited only by the direct action of 
 the electorates. 
 
 The Socialist reply to the charge that, so far as concerns their 
 attitude towards the division of powers, they are stupid re- 
 actionaries, is to point to their demand for proportional represen- 
 tation. It will not be necessary, they urge, to rely greatly upon 
 direct action by the electorates for protection against legisla- 
 tive abuses, when the legislature itself is properly constituted. 
 Under a representative system based on proportional represen- 
 tation, it is claimed, the legislature will represent the whole 
 body of voters, not, as at present, that fraction which has been 
 so fortunate as to cast their ballots for the successful candidates 
 in the several representative districts. Thus each considerable 
 group, holding like opinions, may secure a representative of its 
 own, regardless of geographical distribution. Each representa- 
 tive, moreover, will be the best man available for selection by the 
 group whose predominant opinions he shares. There will be no 
 colorless, not to say unprincipled, compromise candidates, now 
 so much in demand in doubtful districts ; there will be no narrow 
 restriction of candidacies by artificial residence requirements ; 
 there will be the promise of long-continued service for honorable 
 and capable men. A legislature, so chosen and containing such 
 a body of members, will produce legislation more acceptable to 
 the people and technically more nearly perfect than that pro- 
 duced by the existing state legislatures. Since any group of 
 voters will be free to select their own candidates and any citizen 
 will be free to appeal to his followers in all parts of the state, or 
 at least in comparatively large districts, for support, there will 
 be no need for elaborate systems of nomination, and therefore 
 little likelihood of undue influence by any " invisible government."
 
 THE FURTHER REFORM OF STATE GOVERNMENT 459 
 
 The artificial combination of the bulk of the voters into two major 
 parties will give way to more numerous and more natural group- 
 ings, and party government will give way to popular govern- 
 ment. From the time when J. S. Mill was first captivated by 
 these arguments, the theory of proportional representation has 
 made a strong appeal to idealistic reformers. Upon more prac- 
 tical grounds also it makes a strong appeal to Socialists and the 
 members of other minor parties. 
 
 Before accepting the claims of the advocates of proportional 
 representation, there are two queries to be considered. First, 
 what is the justification of the existing bipartisan system in 
 state politics? That is, what are the reasons for opposing such a 
 splitting up of the major parties into minor groups as would 
 result from the introduction of proportional representation, 
 according to its advocates? 
 
 The case in favor of bipartisan politics in general has been 
 strongly put by a writer who is himself an influential Socialist 
 politician. 1 Democracy, Macdonald argues, means voting for a 
 general policy, not merely for an individual representative. 
 This view may be illustrated by the case of a Prohibitionist, 
 elected to membership in some representative body. He would 
 have not merely to vote for temperance measures but to support 
 or oppose all the measures of the administration or party in power. 
 But hi accordance with the theory of proportional representation 
 only on temperance is he a representative. Therefore propor- 
 tional representation would weaken the representative character 
 of legislation. The fundamental error of proportional represen- 
 tation, Macdonald concludes, lies in regarding the representative 
 body merely as a mirror of opinion, whilst it is in fact the active 
 will of the community which it represents. "Thus a system of 
 proportional representation will exaggerate rather than remove 
 those dangers which arise from the fact that governments may 
 not be really representative. It is a method of election for secur- 
 ing the representation of fragments of political thought and desire, 
 and for inviting those fragments to coalesce after and not before 
 elections. ... It is rather in accordance with the requirements 
 of popular rule that a government should be supported by such 
 
 1 See J. R. Macdonald, Socialism and Government, published by the Independent 
 Labour Party, London, 1909.
 
 460 
 
 a majority as makes it absolutely responsible for its actions, 
 rather than that it should have to effect compromises and coali- 
 tions which do not reflect popular wishes or arise from popular 
 demands." 1 
 
 "Democracy without a party would be a crowd without a 
 purpose. Each person would follow the enticements of his own 
 personal interests or his own personal will. . . . The people as 
 a political agency have to develop a capacity to express their own 
 will and to discover a method of carrying out their will. Party 
 alone in some shape or form enables both these things to be 
 done. . . . When political issues are pretty clear two parties 
 are evidently enough. ... A party is an organization of groups 
 which find in it on the whole a better companionship than in any 
 other combination, and a greater effectiveness than they would 
 have were they not in the combination. . . . Under the party 
 system new ideas easily permeate the active mass of party ad- 
 herents. The party having to keep in touch with the whole of 
 the nation is far more responsive to changes in popular outlook 
 than is the group which only appeals to a special class or body 
 of opinion. . . . Some Socialists . . . support the group sys- 
 tem on the ground that it makes for the liberty of the electors. 
 But this is a mistake. A majority must be found if responsible 
 government is to exist, and no group can be inside that majority 
 one day and outside it the next day. . . . On the whole it seems 
 to me far better that the absorption of groups should take place 
 outside Parliament than that they should combine inside. . . . 
 Two parties will thus be formed, each with its center of gravity 
 determined not by the bargaining of parliamentary managers 
 and the barter of parliamentary office, but by public opinion. 
 And so I return to the argument I advanced in a previous chap- 
 ter: a group system of government is not so democratic as a 
 party system because the latter to a greater extent than the 
 former gives the electors a direct voice in saying what is to be 
 the character of their government." 2 
 
 The force of this general argument against proportional rep- 
 resentation, as Macdonald himself would admit, varies according 
 to circumstances. It is clearly greatest in the instance which 
 he had particularly in mind when he wrote, that of the British 
 
 1 Op. cit., i, pp. 164-167. 2 Op. cit., ii, pp. 13-19.
 
 THE FURTHER REFORM OF STATE GOVERNMENT 461 
 
 Parliament. It would not be so great, if the argument were 
 directed particularly against a proposal to adopt some system of 
 proportional representation in the election of members of the 
 popular branch of the American Congress, for the federal House 
 of Representatives does not possess the full responsibility for the 
 conduct of affairs, but shares its political powers with the Senate 
 and President. Neither President nor Senators are so dependent 
 upon the support of a co-partisan majority in the lower house as 
 the British Cabinet is upon the House of Commons. Moreover, 
 the will of the American people, so far as their preference between 
 party programs is concerned, is as well, if not better, represented 
 by the President than by his party associates in Congress. The 
 argument has the least force when applied to the problem of 
 representative government in cities. The connection between 
 national and municipal issues is remote, and the organization of 
 the voters for the selection of municipal officers into two per- 
 manent groups upon the same lines as in national politics is not 
 justifiable upon the particular grounds advanced by Macdonald. 
 His argument can only justify the organization of two special 
 municipal parties upon local issues. 
 
 The maintenance of national party lines in local politics is 
 commonly justified in the United States on different grounds 
 than those advanced by Macdonald. Thus the late Senator 
 Platt, the "easy boss," is reported to have said : "For the doc- 
 trine of non-partisanship in local elections I had the sincerest 
 and the profoundest contempt. I used to be amused at the 
 that-settles-it air with which the question would be plumped at 
 me: 'What has a man's views of the tariff to do with his ca- 
 pacity to give the people of New York City an honest and busi- 
 nesslike administration ? ' - as though my agreement that they 
 had nothing to do with that matter involved a concession to the 
 principle of local non-partisanship. It has everything to do 
 with a man's ability to administer government, anywhere in the 
 North or West, whether the influences about him are Republican 
 or Democratic ; and so strong is the predisposition of the Ameri- 
 can people in favor of a party as a political agent, and so strong 
 is their prejudice against a multiplicity of parties, and so similar 
 are the problems of administration, no matter what the political 
 division to which they relate, that it is idle to attempt to create
 
 462 STATE GOVERNMENT IN UNITED STATES 
 
 municipal parties or factions. The success of such an attempt 
 would have a demoralizing effect on party organization." 1 The 
 growing success of non-partisanship in municipal government, 
 however, has demonstrated the weakness of this old-fashioned 
 argument. The recent experience of the cities indicates the 
 value in local elections of any electoral system, whether "non- 
 partisan " primaries, preferential voting, or proportional represen- 
 tation, which will discourage the maintenance of the same party 
 divisions in both national and local affairs. 
 
 Now state government in the United States is a form of local 
 government. In the state legislatures, as has been shown, 
 national party lines are of secondary importance. The majority 
 party organizes the legislature, appropriates for its own members 
 the speakership, the committee chairmanships, and the majority 
 of the places on committees, and makes a partisan distribution 
 of the legislative patronage. Thereafter little attempt is made, 
 except in a few close states, to operate the machinery of legisla- 
 tion on a partisan basis, and members rarely vote on party lines. 
 The party caucus ordinarily has nothing to do after the selection 
 of the candidate for the speakership. It is the "organization" 
 or the governor to whom members look for leadership. Neither 
 of these relies for support exclusively upon the party majority, 
 but accepts assistance wherever it can be found. It is only in 
 the distribution of the patronage that partisanship upon national 
 lines is the rule in state government. If state politics were sepa- 
 rated from state administration by the removal from the ballot 
 of non-political offices and by the general introduction of the 
 "merit system," one of the principal difficulties standing in the 
 way of state non-partisanship would be overcome. Non-parti- 
 sanship in state and municipal elections does not mean the 
 absence of partisanship. It means merely the repudiation of 
 national party affiliations as the basis of action in state and mu- 
 nicipal politics. Doubtless it would be more difficult to organize 
 special parties upon state issues than it is to organize special 
 parties upon municipal issues. For that reason the recognition 
 of national political associations and the protection of the integ- 
 rity of the major parties may be more suitable measures in the 
 
 1 The autobiography of Thomas Collier Platt, compiled and edited by Louis 
 J. Lang, pp. 3S8-359-
 
 THE FURTHER REFORM OF STATE GOVERNMENT 463 
 
 government of the states than in municipal government for 
 making representative government responsible to the majority 
 of the voters, but they are certainly less suitable than in the 
 government of the nation. 
 
 The second query which must be considered before the claims 
 of the advocates of proportional representation can be accepted 
 is this. What is it that in actual practice under American condi- 
 tions will be proportionally represented? 
 
 The advocates of proportional representation often appear to 
 assume that it is groups of voters, united for the purpose of pro- 
 moting the public interest upon some particular principle in 
 which they are all agreed, which will be proportionally repre- 
 sented. Now, as Graham Wallas has so convincingly shown, 
 "the origin of any particular party may be due to a deliberate 
 intellectual process. . . . But when a party has once come into 
 existence, its fortunes depend upon the facts of human nature of 
 which deliberate thought is only one." * When the highly arti- 
 ficial major parties are broken up, as the advocates of propor- 
 tional representation claim they will be, into smaller and more 
 natural groups of voters, it is by no means certain that the lines 
 of subdivision will be rational, that is, that "principles" will be 
 the basis of union between the members of such groups. In 
 Ashtabula, we are told, as a result of the first employment of 
 proportional representation, "all sections and factions are rep- 
 resented in the new council." Though the seven councilors 
 were elected in the city at large, regardless of the former division 
 into four wards, "there were two from the first ward, one from 
 the second, two from the third, and two from the fourth. . . . 
 The 'drys' and the 'wets' are represented. The Protestants 
 and Catholics ; the business, professional, and laboring men ; the 
 Republicans, Democrats, and Socialists ; the English, Swedes, 
 and Italians are all represented." 2 Now this was probably, as 
 claimed by the advocates of proportional representation, the 
 most representative body in the history of the city. But much 
 besides "principles" was represented. Local, religious, partisan, 
 social, and racial ties were likewise represented. If the "drys" 
 and "wets" or the Swedes and Italians deliberately or instinc- 
 
 1 Human Nature in Politics, pp. 82-83. 
 
 1 Proportional Representation Review, 3d scries, no. 37, pp. 19-24.
 
 464 STATE GOVERNMENT IN UNITED STATES 
 
 tively unite in order to elect special "dry" and "wet" or Swedish 
 and Italian representatives, there is no security that these repre- 
 sentatives will actually represent them on any but the liquor or 
 racial question. To what extent, under such a system, voters 
 will unite in the choice of representatives as a result of rational 
 intellectual processes and to what extent as a result of impulses 
 and instincts of which they may not be consciously aware, can 
 be determined only by experience. The practice, however, of 
 electing men to represent particular localities in city councils 
 because they are Republicans or Democrats in national politics, 
 fails to insure that such representatives will actually represent 
 their constituents on any local question; and impulse and in- 
 stinct certainly are riot excluded from politics under the system 
 of local representation. At all events, the defects of the existing 
 representative system are serious, especially in populous urban 
 localities, and the advantages claimed for proportional represen- 
 tation are substantial and important. The proposal is at least 
 promising enough to merit further trial, but municipal rather 
 than state government seems the more suitable field for the 
 experiment. 
 
 The Socialist plan of reform, as applied to the government of 
 the states, is objectionable, considered as a whole, because it 
 places an excessive reliance upon direct action by the electorate 
 and upon reforms in electoral methods. Direct action by the 
 electorate, as has already been pointed out, serves as a useful 
 check on the operations of representative government, but its 
 usefulness is limited, both quantitatively and qualitatively. 
 The reform of electoral methods has already made considerable 
 progress, but much remains to be done before an election can 
 become a wholly reliable means of expressing public opinion. 
 The existing laws against corrupt practices represent rather the 
 growing purpose of the states to control the conditions under 
 which electoral opinion is formed than any large measure of 
 success in carrying out that purpose. Meanwhile, plans for the 
 reform of state government which depend for their efficacy almost 
 entirely upon electoral action and upon the improvement of the 
 methods of voting and of counting votes, rather than upon the 
 improvement of methods of legislation and administration, seem 
 likely, if adopted, to prove disappointing to their advocates.
 
 THE FURTHER REFORM OF STATE GOVERNMENT 465 
 
 HI 
 
 THE OREGON PLAN 
 
 Another noteworthy plan for the reform of state government 
 is that elaborated by a group of Oregon reformers, well known in 
 their own state under the name of the People's Power League. 
 The essentials of this plan are explained by one of its principal 
 authors, Mr. U'&en, in a letter to which reference has already 
 been made. 1 "In my opinion the experience of mankind indicates 
 that the path to follow to make the best government is the elec- 
 tion of a responsible and responsive legislature composed of the 
 brightest constructive minds in the community ; that the execu- 
 tive shall be a member of the legislative body ; that laws made 
 by the people, or by the legislature and not disapproved by the 
 people, shall be the supreme law of the land, superior to the courts 
 and all other officers. That only the chief executive and the 
 members of the legislative bodies should be elected by the people ; 
 that the preferential method should be used in the election of 
 the executive, and some effective method of proportional repre- 
 sentation in the election of other members of the legislature. The 
 executive should be directly and alone responsible for the maximum 
 of all appropriations of public money. This is to kill corrupt 
 log-rolling. The comparative success of the parliamentary 
 form of government and of the Prussian cities in my opinion is 
 clearly because of their partial application of these principles. 
 It is to be understood of course that the initiative, referendum, 
 and recall are absolutely essential parts of any successful system 
 of popular government." 2 
 
 1 See Equity, July, 1913, pp. 163-164. 
 
 * The Oregon plan as a whole was never submitted to the people of Oregon. The 
 state-wide initiative and referendum, adopted after a long struggle in 1002, the 
 direct primary, municipal home rule, the corrupt practices act, and the recall, 
 adopted by means of the initiative in 1904, 1906, and 1008, may be regarded as in- 
 stalments of the general plan. The proposals relating to the reform of legislative 
 organization and procedure were submitted to the people in various forms in 1910, 
 1912, and 1914, but were rejected. The proposals for administrative reform were 
 submitted in 1910 and in part in 1912 with the same result. The proposals for 
 judicial reform were submitted in part in 1910 and adopted, but that part of the 
 plan seems never to have been completely worked out. The details of the plan 
 vary somewhat in the different proposals which were submitted to the people, but 
 its general nature is best represented by the Introductory Letter of 1911, published 
 by the People's Power League. 
 an
 
 466 STATE GOVERNMENT IN UNITED STATES 
 
 The resemblances between the Oregon and Socialist plans are 
 apparent. Both include the abolition of the state senate and the 
 election of members of the house by some system of proportional 
 representation, the abolition of the executive and judicial vetoes, 
 and the adoption of the direct popular veto, initiative, and recall. 
 But the differences are no less important. The Oregon plan, as 
 set forth in 1911 in the Introductory Letter of the People's Power 
 League, abandons the direct popular election of executive officers, 
 with the exception of governor and auditor, and presumably 
 would have abandoned the direct election of judges, had that 
 part of the plan been fully worked out. The governor is author- 
 ized to appoint the principal department heads, secretary of 
 state, treasurer, attorney-general, state printer, and super- 
 intendent of public instruction, together with a new officer, 
 called the state business manager, who is charged with the super- 
 vision of the rest of the administrative work of the state, except 
 that of the railroad commission. The state business manager is 
 clearly intended to be the most important administrative officer. 
 Indeed it seems to be the purpose of the plan that he should 
 occupy much the same position in relation to the governor as the 
 citysmanager occupies in relation to the council under the Dayton 
 plan of municipal government. These department heads are 
 removable by the governor at will and collectively form an 
 executive council or cabinet. The governor is expressly for- 
 bidden, however, to remove the state business manager or any 
 subordinate administrative officer for partisan reasons. Thus 
 the governor becomes exclusively a political leader, and the con- 
 duct of administration is vested for the most part in a responsible 
 professional administrator and his subordinates. Politics is sep- 
 arated from administration, and by removing the purely admin- 
 istrative officers (except the auditor) from the ballot, the number 
 of elected officers is greatly reduced, without diminishing popular 
 control over those who exercise political powers. In brief, the 
 introduction of the short ballot is a leading feature of the ma- 
 tured Oregon plan. As the ideas of the Oregon reformers devel- 
 oped, they came to be as much interested in the promotion of 
 administrative efficiency as in the progress of democracy. 1 
 
 1 The Oregon plan of 191 1 provided for a further reduction of the burden thrown 
 upon the electorate, under the existing Oregon system of popular government, by
 
 THE FURTHER REFORM OF STATE GOVERNMENT 467 
 
 The most important difference between the Oregon and 
 Socialist plans relates to the readjustment of the relations be- 
 tween the executive and the legislature. Under the Oregon 
 plan of 1911 the governor and the members of his cabinet were 
 to have seats in the legislature and to be entitled to participate 
 in debates. The governor was also to have the exclusive right 
 to introduce appropriation bills. The legislature could reduce 
 or reject any proposed appropriation, but could not make any 
 increase without the express approval of the governor. Though 
 he was to be deprived of the veto, under the proxy system of 
 proportional representation, he would normally have a greater 
 voice in legislation than any ordinary member of that body. In 
 other words, the governor was not only to become a part of the 
 legislature, but it was clearly intended that he should take the 
 lead in the work of legislation, like the British prime minister hi 
 the business of Parliament. Indeed there was much in the Ore- 
 gon plan in its matured form that resembles the parliamentary 
 system of government. The governor and the members of his 
 cabinet were not only to have the privilege of speaking in the 
 legislature, but also were to be required to appear before it, when 
 requested, like members of the British cabinet before the House of 
 Commons, and answer questions concerning their conduct of 
 affairs. The speaker was to be deprived of the power to appoint 
 committees and control the course of legislation, and, like the 
 British speaker, was to be a nonpartisan presiding officer. By 
 appropriate changes in the committee system and in legislative 
 procedure the leadership of the governor in the legislature was to 
 be further fortified. In short, in place of the rigid separation 
 of the executive and legislative branches, as practiced in both 
 state and federal governments, there was to be a union of execu- 
 tive and legislature. But it was a union designed to bring only 
 the political powers vested in the two branches nearer together. 
 
 abolishing the direct primary for the nomination of candidates for legislative and 
 executive office. The adoption of proportional representation would have made 
 the direct primary superfluous in the former case, the adoption of preferential 
 voting would have had the same effect in the latter. But on this point there was 
 no difference between the Oregon and Socialist plans so far as the case of representa- 
 tives the legislature was concerned, nor is it probable that the Socialists would 
 object to the substitution of preferential voting for the direct primary in the case 
 of executive officers.
 
 468 STATE GOVERNMENT IN UNITED STATES 
 
 The separation of administration from politics, as already pointed 
 out, was to be more effectually secured than ever before. 
 
 The proposal to introduce certain features of the British cabinet 
 system into the United States is not new. The founders of the 
 Southern Confederacy were familiar with the defects of the tradi- 
 tional American practice, and when they came to adopt a con- 
 stitution for the Confederate States they took advantage of the 
 opportunity to make some changes in the established relations 
 between executive and legislature. Reference has already been 
 made to the increase of executive control over appropriations 
 authorized in the Confederate Constitution. In addition, it 
 was provided that "Congress may by law grant to the principal 
 officer in each of the executive departments a seat upon the floor 
 of either House, with the privilege of discussing any measure 
 appertaining to his department." l A committee of the United 
 States Senate in 1881 recommended a further step in the establish- 
 ment of closer relations between executive and legislature. 2 It 
 proposed that the members of the President's cabinet not only 
 should have the right to participate in debates in either house of 
 Congress, but also should be under the obligation to answer ques- 
 tions which might be put to them by members of Congress. This 
 sounds much like the Oregon plan. But there were two im- 
 portant differences. First, the proposals of the Senate Com- 
 mittee of 1 88 1 applied only to members of the president's cabinet, 
 whilst those of the Oregon reformers applied to the chief executive 
 as well as to the members of his cabinet. Secondly, the Senate 
 Committee further proposed that, immediately after the answer 
 to the question should be made by the cabinet officer to whom it 
 might be directed, and without any debate, there should be a vote 
 on the resolution upon which the question is based. Thus the 
 proposal of the Senate Committee, if adopted, would have es- 
 tablished a practice much more like that existing in the French 
 parliament, known as the interpellation, than the English practice 
 of questioning, proposed by the Oregon reformers. 
 
 The readjustment of the relations between the executive and 
 the legislature, proposed by the framers of the Confederate Con- 
 stitution, was never tried out under normal conditions, and that 
 
 1 Art. i, sect. 6, par. 2. 
 
 * See Senate Report, no. 837, 46th Congress, 3d Session, Feb. 4, 1881.
 
 THE FURTHER REFORM OF STATE GOVERNMENT 469 
 
 proposed by the United States Senate Committee of 1881 has 
 never been tried out at all. But there has been much discussion 
 of these proposals, especially the latter, by writers upon American 
 politics. Woodrow Wilson's brilliant essay on Congressional 
 Government, for example, was designed as a plea for closer re- 
 lations between the two coordinate branches along the lines 
 suggested by the Senate Committee. Among later writers 
 who have looked with favor on these proposals, the general 
 tendency has been to assume that their adoption would mean 
 the introduction of some form of the British cabinet system. 
 Thus Ford in his book, The Rise and Growth of American Politics, 1 
 bestows high praise on the Senate Committee report, and pre- 
 dicts that the ultimate type of government in the United States 
 will be one in which "the actual management of affairs will 
 naturally tend to pass into the hands of groups of statesmen 
 trained to their work by gradations of public service, their fitness 
 attested by success in coping with their responsibilities under the 
 direct and continuous scrutiny and criticism of Congress. The 
 presidency will tend to assume an honorary and a ceremonial 
 character, and will find therein its most satisfactory conditions 
 of dignity and usefulness." 2 And Kales, in his book, Unpopular 
 Government in the United States, dealing particularly with state 
 government, expresses more bluntly a similar conviction. Speak- 
 ing of the time when the cabinet system is established in the form 
 he advocates, he declares that " the method of selecting the single 
 executive, whose principal function it is to place the executive 
 power from time to time in the control of a proper council of state, 
 selected from among the leaders of the majority of the legislature, 
 is not very important." 3 The plans advanced by these writers 
 for the introduction of the cabinet system, when examined closely, 
 seem to contemplate the adoption of the form of the system 
 existing in France, with its dignified but relatively unimportant 
 president and its active ministry, responsible mainly to parlia- 
 ment. 
 
 1 See H. J. Ford, op. cit., pt. iv., Tendencies and Prospects of American Politics, 
 New York, 1898. 
 
 2 Op. cit., p. 369. 
 
 A. M. Kales, op. cit. (Chicago, 1914), p. 170. Cf., for an exposition of Kales's 
 general plan of reform, chaps. 14-16.
 
 470 STATE GOVERNMENT IN UNITED STATES 
 
 A little reflection will show that the proposal to introduce either 
 the French or the British cabinet system into the government of 
 the states runs counter to the whole course of their constitutional 
 development. The constitutional history of the states is a 
 history of the growth of limitations upon the authority of the 
 legislatures and of the expansion of that of the executive. The 
 governor in particular has gradually become the special object 
 of popular confidence, and has been endowed with more impor- 
 tant legislative powers than are vested in any other single officer. 
 Now the introduction of the cabinet system in either the English 
 or the French form means that the chief of the cabinet will not 
 be the governor, elected by the people, but a member of the 
 legislature, chosen by the majority of that body. It means there- 
 fore the enhancement of the authority of the legislature and the 
 decline of that of the nominal chief executive. The latter indeed 
 would be deprived of his leadership in state politics. Popular 
 election of the governor, as Kales intimates, would no longer be 
 worth while. Such a redivision of powers between the legislature 
 and the executive would be a reversal of the process that has been 
 going on since the system of legislative supremacy was first 
 questioned in the original states. It would cause the destruction 
 of the existing balance between the departments of government. 
 It has already been pointed out that there is no present need for 
 the abandonment of the principle of the division of powers in 
 state government. What is needed is a more rational applica- 
 tion of the principle. That means, more than anything else, 
 the further strengthening of the executive branch of the state 
 governments along the lines that have been pursued in the past, 
 subject to an effective popular control. 
 
 Other advocates of the establishment of closer relations between 
 executive and legislature contemplate the introduction of the 
 cabinet system in a different form. Bradford, for example, 
 in his book, The Lesson of Popular Government, 1 denies that the 
 cabinet system, which he proposes for adoption, is an imitation 
 of the British or French system. He argues that the President's 
 or governor's cabinet, though entitled to seats and a voice in the 
 legislative branch, would not become responsible to the legis- 
 
 1 Gamaliel Bradford, The Lesson of Popular Government, chaps. 30-32. New 
 York, 1899.
 
 THE FURTHER REFORM OF STATE GOVERNMENT 471 
 
 lature, but remain responsible to the chief executive. Under 
 the German system, he points out, the imperial chancellor and his 
 associates do not become responsible to the Reichstag, though 
 privileged to speak and obliged to answer questions in that body. 
 They remain responsible to the Emperor. In the United States 
 or in the separate states, where the chief executive is elected by 
 the people, and can be called to account by them at compara- 
 tively frequent intervals, he believes that the introduction of the 
 cabinet system, if no other changes were made in the organiza- 
 tion and powers of the executive, would increase its authority 
 instead of diminishing it. The results of the system would be 
 greater publicity for legislative proceedings, greater opportunity 
 for leadership, and more definite responsibility, not to the legis- 
 lature, but to the people, on the part of the chief executive. 
 Thus the introduction of the cabinet system is advocated on the 
 ground that it is thoroughly in harmony with the tendency in 
 American politics to strengthen the chief executive in his relations 
 with the legislature and to enhance his political authority as 
 the special representative of the whole people. It is this view 
 of the situation which probably determined the Oregon reformers 
 to adopt the plan, set forth in the Introductory Letter of 1911, 
 but they developed the idea more boldly and more consistently 
 than Bradford had done. 
 
 It would be a mistake to conclude that the Oregon plan was an 
 attempt to introduce the British or French cabinet system into 
 the United States. The direct election of the governor by the 
 people and his resulting independence of the legislature, not to 
 mention his power under the proposed system of proportional 
 representation to vote as the special representative of all members 
 of his party not otherwise represented as well as to speak in the 
 legislature, were calculated to make him a more powerful, and 
 also, from the viewpoint of the people, a more responsible political 
 leader than the British prime minister. On the other hand, the 
 popular veto, initiative, and recall make the legislature less 
 powerful, even within its restricted constitutional sphere, than 
 the British House of Commons. The Oregon reformers, in one 
 draft of their plan, proposed to strengthen the legislature some- 
 what by extending its term to six years, but even had that been 
 done, the governor would have been a more important figure than
 
 472 STATE GOVERNMENT IN UNITED STATES 
 
 the prime minister in the parliamentary system of Great Britain. 
 The conditions under which the cabinet engrosses most of the 
 executive powers in the British and French systems would not 
 exist in the system proposed by the Oregon reformers. The 
 British cabinet system is a system of undivided powers, for those 
 which the Parliament confers upon a ministry it can also take 
 away. The cabinet is but a committee of Parliament. The 
 Oregon plan contemplated a real division of powers, that could 
 not be altered except by the process of constitutional amendment, 
 a process not controlled by the legislature. Thus the Oregon 
 plan resembled the German rather than the English cabinet 
 system, but it was not identical with either. The German is an 
 irresponsible cabinet system, but the Oregon plan, if adopted, 
 would have left the governor and his cabinet completely respon- 
 sible to the people. It was really a logical development of the 
 traditional American theory of government, a redivision of 
 powers on lines calculated to give more adequate recognition 
 to the expert administrator and a greater opportunity to the 
 governor for political leadership than has hitherto been possible 
 in any American state. 
 
 The Oregon plan, so far as it was concerned with the reorgani- 
 zation of state administration and the establishment of closer 
 relations between executive and legislature, was in fact the fore- 
 runner of a number of similar plans for the reform of state govern- 
 ment. In 1910 President Taft obtained from Congress an ap- 
 propriation of one hundred thousand dollars to enable him "to 
 inquire into the methods of transacting the public business of the 
 executive departments and other government establishments 
 and to recommend to Congress such legislation as may be neces- 
 sary to carry into effect changes found to be desirable that cannot 
 be accomplished by executive action alone." This was the be- 
 ginning of a general movement for greater economy and efficiency 
 in the business of government, both national and state. In 
 1912 Massachusetts and New Jersey established state economy 
 and efficiency commissions, and in the following year similar 
 action was taken in several states, notably in Illinois, Iowa, 
 Minnesota, and Pennsylvania. In New York a Department of 
 Efficiency and Economy was created, and in the following year, 
 after the people had approved the call for a constitutional con-
 
 THE FURTHER REFORM OF STATE GOVERNMENT 473 
 
 vention, a special commission was appointed to procure all in- 
 formation that might be useful to that body when it should meet. 
 The result was a more careful consideration than had ever before 
 been practicable of the advantages of administrative reorganiza- 
 tion and of the readjustment of executive and legislative relations 
 from the standpoint of economy and efficiency. The various 
 state commissions came to surprisingly uniform conclusions. 1 
 They all recommended more or less extensive consolidations of 
 separate administrative departments, and most of them also 
 recommended greater executive control of appropriations. Some 
 minor improvements in methods of transacting public business 
 were actually brought about, and in many instances a healthier 
 tone was imparted to state administration. In general, however, 
 the state legislatures neglected the more important recommenda- 
 tions, and except in New York, no general plan of reform re- 
 quiring constitutional changes was carried to the point of sub- 
 mission to the people. 
 
 The principal features of the plan to secure greater economy 
 and efficiency in state government, as developed by the New York 
 Constitutional Convention of 1915, were as follows: (i) the 
 shortening of the ballot by the removal of several administrative 
 officers from the elective to the appointive class; (2) the aboli- 
 tion of the power of the senate to reject nominations of depart- 
 ment heads in certain cases ; (3) the consolidation of one hundred 
 and fifty and more separate administrative agencies into a manage- 
 able number of executive departments; (4) the extension and 
 
 ', x Among the reports of these state commissions the following are the most 
 important: i. Massachusetts, Commission on Economy and Efficiency, a. Func- 
 tions, Organization, and Administration of the Departments in the Executive Branch 
 of the State Government, 1914. b. Report on Budget Procedure, 1916. 2. New Jer- 
 sey, Commission upon the Reorganization and Consolidation of different Depart- 
 ments of the State Government whose functions are interrelated. Second Report, 
 1914. 3. Illinois, Efficiency and Economy Committee, Report, 1915. 4. Iowa, 
 Committee on Retrenchment and Reform, Recommendations, 1914. 5. Minnesota, 
 Efficiency and Economy Commission, Final Report, 1914. 6. Pennsylvania, 
 Economy and Efficiency Commission, Report, 1915. 7. New York, Department of 
 Efficiency and Economy, a. Stale Budget Report, 1914. b. Government of the Stale 
 of New York, a Survey of its Organization and Functions, 1915. (Prepared in collab- 
 oration with the New York Bureau of Municipal Research.) The New York Con- 
 stitutional Convention Commission was greatly aided by the New York Bureau of 
 Municipal Research. Bulletins 61,62, and 63, published by the Bureau, and re- 
 spectively entitled, The Constitution and Government of the State of New York, Budget 
 Systems, and State Administration, are especially valuable.
 
 474 STATE GOVERNMENT IN UNITED STATES 
 
 strengthening of the classified civil service system ; (5) the charg- 
 ing of the governor with the duty of preparing an executive 
 budget ; (6) the making difficult of any increases by the legis- 
 lature in the appropriations recommended by the governor in 
 the budget ; and (7) the establishment of closer relations between 
 the governor and his department heads, on the one hand, and 
 the legislature, on the other, by authorizing the former to speak 
 in either house on matters relating to the budget and requiring 
 them to attend and answer questions at the request of either 
 house. 1 Thus the New York plan was intended to increase the 
 authority of the governor, both in the conduct of state administra- 
 tion and in his relations with the legislature. The New York 
 reformers avowedly founded their hopes for economy and 
 efficiency on the development of further limitations upon legis- 
 lative powers and procedure, especially in matters of finance. 
 But instead of relying, in accordance with a tendency that has 
 almost uniformly prevailed for more than a hundred years, 
 upon specific constitutional limitations, enforceable by the courts, 
 or upon the direct action of the electorate, they sought rather to 
 shift the balance of power between governor and legislature, 
 strengthening the check exercised by the former. In other words, 
 the New York plan for an executive budget may be regarded as a 
 logical development of the executive veto power. 
 
 The New York plan contains many points of resemblance to 
 that of the Oregon reformers. Thus the New York short ballot 
 proposal, if adopted, would have put into the class of appointive 
 officers all those put into the same class under the Oregon plan 
 except the attorney-general. In this respect the Oregon plan 
 was more complete. The New York proposal to limit the power 
 of the senate over executive appointments, combined with the 
 extension of the "merit" system in the civil service, was cal- 
 culated to correct the most serious evil resulting from the exist- 
 ence of the state senate with its peculiar powers. The Oregon 
 proposal to abolish the senate was bolder and, taken in connec- 
 tion with the proposals to increase the legislative authority of 
 the governor, seems under existing conditions to be preferable. 
 
 1 For a detailed account of the work of the New York Convention, see the 
 American Year Book for 1915, pp. 87-94. The New York plan of 1915, like the 
 Oregon plan of 1911, failed of adoption by the people.
 
 THE FURTHER REFORM OF STATE GOVERNMENT 475 
 
 The New York plan for the consolidation of executive depart- 
 ments was excellent so far as it went, but it might well have gone 
 further. In a great state like New York, however, no such far- 
 going consolidation would be practicable as that involved in 
 the Oregon plan to create the new office of state business manager. 
 The New York budget plan was more carefully worked out than 
 that of the Oregon reformers, and the provision for the voting 
 of appropriations not included in the executive budget by special 
 bills after the executive budget should have been disposed of 
 was a wise safeguard against abuse of executive power. The 
 New York plan for giving the governor and his department heads 
 the right to speak in the legislature, and the legislature the right 
 to question the governor and his associates, was more conserva- 
 tive than the corresponding feature of the Oregon plan. The 
 preservation of the executive veto in New York, except in the 
 case of the budget, was also more conservative than the Oregon 
 plan of abolishing the veto and conferring upon the governor 
 under the proxy system of proportional representation an exten- 
 sive but uncertain power to vote directly upon all matters of 
 proposed legislation. In this respect the New York plan was 
 undoubtedly superior to that of the Oregon reformers. In 
 general, the New York plan was more carefully worked out and 
 betrays a greater consideration for the exigencies of practical 
 politics than that of the Oregon reformers, but their underlying 
 principles are the same. Both alike may be better described 
 as plans for the further development of the American principle 
 of the division of powers in the government of the states than as 
 plans for the introduction of the cabinet system. 
 
 The superiority of the Oregon plan, and of the New York plan 
 as far as it went, over that of the Socialists is manifest. The 
 short ballot, the better provision for the employment of expert 
 administrators, the clearer recognition of the need for improve- 
 ment in administrative and legislative methods, the arrangements 
 for a more effective control of appropriations, the more intelligent 
 conception of the function of the governor in the government 
 of the states, in short, the more rational separation of politics 
 from administration, and in general the more scientific applica- 
 tion of the old American principle of the division of powers : 
 these were the decisive advantages of the New York and Oregon
 
 476 STATE GOVERNMENT IN UNITED STATES 
 
 plans. Each plan had its own peculiar shortcomings. The 
 York plan contains nothing like those early features of the Oregon 
 plan which were intended to facilitate the direct control of 
 governmental operations by the electorate. Undoubtedly this 
 omission helped to defeat the New York plan, when submitted 
 to the people, for there was a popular feeling that the great powers 
 which it was proposed to confer upon the governor would make 
 him dangerously powerful, unless he were subjected to a more 
 direct responsibility to the people than results from biennial 
 elections alone. Doubtless the direct popular initiative, as it 
 exists in Oregon, is too easily and too frequently used. Probably 
 all the good results to be expected from it in the long run could be 
 obtained if there were more adequate safeguards to prevent its 
 inconsiderate use. Yet there are distinct advantages, as has 
 already been pointed out, to be derived from the existence of pro- 
 cedure for the direct initiation by the people of certain kinds of 
 measures. The direct popular referendum, though little used, 
 undoubtedly is a valuable instrument of popular government, 
 perhaps even more on account of the effect it produces upon 
 the general atmosphere of legislation than on account of its 
 tangible results. The recall, also, if confined to political officers, 
 especially if they are elected for reasonably long terms, should 
 prove to be a valuable instrument for similar reasons. 
 
 The Oregon plan as a whole, whatever may be thought of the 
 arrangements for direct action by the electorate, was clearly 
 immature. When the later features of the plan are taken into 
 consideration, this is most evident. The proposal to abolish the 
 executive and judicial vetoes was not justified by the experience 
 of Oregon. The abolition of the executive veto was indeed 
 wholly inconsistent with the general tendency of the Oregon plan 
 to increase the power of the governor. The complete abolition 
 of the judicial veto would of course be impossible without an 
 amendment to the Federal Constitution. If such an amend- 
 ment were adopted, as advocated by some radicals, the most 
 convenient mode of maintaining the supremacy of the national 
 government within its constitutional sphere would be destroyed. 
 If the abolition of the judicial veto were confined to the implied 
 power to veto measures in conflict with the state constitution, 
 the effect under the conditions that exist in Oregon would not
 
 THE FURTHER REFORM OF STATE GOVERNMENT 477 
 
 be very Important. In fact the People's Power League has not 
 submitted to the people of Oregon any specific proposal for the 
 abolition of the judicial veto. That part of the plan was never 
 worked out. The immaturity of the Oregon plan, as worked out, 
 is clearest in the case of the proposals for proportional representa- 
 tion. Three different schemes were submitted to the people at 
 three successive general elections. Apparently the reformers 
 did not know what they wanted. It is not surprising that the 
 people of Oregon lost confidence in the People's Power League. 
 
 IV 
 
 THE OUTLOOK FOR FURTHER REFORM 
 
 The soundness of the original principles of state government, 
 as understood by the Jeffersonian republicans, has been demon- 
 strated by the experience of more than a century. Popular 
 control of the constitutions and government of the states is now 
 more firmly established, the division of powers is universally more 
 effective, than in the beginning. Both the democratization of 
 the forms of government and the redivision of powers have made 
 the state governments better instruments for the service of the 
 people. But in most states popular control can be made more 
 complete than it is now, and in all the division of powers can be 
 made much more effective. 
 
 More complete popular control of government can be brought 
 about in many states by the adoption of the referendum, ini- 
 tiative, and recall. But too much reliance should not be placed 
 on these devices, and their use should not be made too easy. 
 The procedure for direct legislation by the electorates should be 
 subject to such safeguards as may be necessary in order to pre- 
 vent the electorates from usurping non-legislative powers, 
 which they are not fitted to exercise, and to insure due delibera- 
 tion in the use of the powers which may properly be granted to 
 them. In most states, however, what is most needed to bring 
 about complete popular control of government is the simplifica- 
 tion of the existing forms of government. A shorter ballot, more 
 convenient methods of nomination of elective officers, the aboli- 
 tion of artificial electoral districts, more effective regulation of
 
 478 STATE GOVERNMENT IN UNITED STATES 
 
 the processes by which the opinion of the electorate is formed: 
 these are the reforms that offer the most promise. The removal 
 of non-political officers from the elective to the appointive class, 
 the consolidation of separate legislative chambers into a single 
 house, the election of representatives, at least those from populous 
 urban districts, by some form of proportional representation 
 instead of by the prevailing general ticket or single district 
 systems, the abolition of official primary elections for the nomina- 
 tion of partisan candidates and the substitution, in cases where 
 proportional representation is not suitable, of some form of pref- 
 erential voting at the general election, the payment by the 
 state of a larger share of the necessary cost of campaigns and 
 elections, and the stricter regulation of the use of money by can- 
 didates and parties : these are some of the means by which the 
 above reforms seem most likely to be accomplished. 
 
 The greatest defect in the government of the states has always 
 been the abuse of power by the legislatures. After the experience 
 of more than a century it should be clear that this defect cannot 
 be cured merely by increasing the constitutional limitations 
 upon legislative powers and procedure. It is in the organiza- 
 tion of the legislature itself and in the readjustment of the rela- 
 tions between the legislature and the coordinate departments of 
 government that the best hope for the future lies. The history 
 of the constitutional convention shows how a legislative body may 
 best be organized. The history of the growth of executive and 
 judicial independence, of the separation of politics from adminis- 
 tration, of the rise of the political influence of the governor and 
 of the influence of the non-political expert in administration, 
 shows how the relations between the legislature and the co- 
 ordinate departments may best be adjusted. Indeed the greatest 
 promise for the future lies, not in further changes in the forms 
 of government, but in the further redivision of powers. Addi- 
 tional checks upon the authority of the legislatures are needed. 
 A better balance between the departments must be established 
 by further strengthening both the executive department and 
 the judiciary. 
 
 The strengthening of the executive seems most likely to be 
 accomplished in two ways, by the further development of execu- 
 tive leadership in legislation and by the further reorganization
 
 THE FURTHER REFORM OF STATE GOVERNMENT 479 
 
 of state administration. The more general use of administrative 
 agencies for gathering information upon which legislation is to 
 be based and in the preparation of legislative measures, the estab- 
 lishment of closer relations between the principal executive officers 
 and the legislature, the further development of the executive 
 veto, and above all the introduction of the executive budget : 
 these are the most promising means by which executive leadership 
 in legislation may be further developed. The extension of the 
 "merit" system, the improvement of the methods of depart- 
 mental organization, the further centralization and integra- 
 tion of administrative organization hi general, the development 
 of administrative tribunals, such as the public service commis- 
 sions and other rule-making bodies, and the wider recognition 
 of the expert in the business of government : these are the most 
 promising means of administrative reform. The proposals of 
 the New York constitutional convention of 1915 for the 
 strengthening of the executive, both on the legislative side by the 
 establishment of the budget system 1 and on the administrative 
 side by the consolidation of boards and commissions and the 
 creation of an executive cabinet, indicate the lines upon which 
 the further strengthening of the executive may be expected to 
 proceed. The New York proposals for municipal and county 
 "home rule" and for the delegation of broader legislative powers 
 in local matters to the municipal governments suggest further 
 means of relieving the legislatures from the demoralizing burden 
 of special legislation. 
 
 The judicial branch of the state governments is that which has 
 hitherto given the most acceptable service. In most states, 
 however, the organization of the courts and the management of 
 judicial business is by no means satisfactory, and the exercise 
 of the power of judicial review of legislative and administrative 
 acts too often imposes an undesirable burden upon the judiciary. 
 In many states the development of better methods of legislation 
 and of a more competent administrative system would go far 
 to relieve the strain which legislative and administrative incom- 
 petence now throws upon the judicial system. In the administra- 
 
 1 The best of the recent plans for an executive budget is that reported by the 
 Maryland Economy and Efficiency Commission and submitted to the people of 
 that state in 1916.
 
 480 STATE GOVERNMENT IN UNITED STATES 
 
 tion of justice as well as in other branches of administration, the 
 most promising reforms seem to be those designed to eliminate 
 political influences, such as the adoption of better methods of 
 selecting judges, and to promote economy and efficiency, such 
 as the further centralization and integration of judicial organiza- 
 tion and the grant to the courts of more power to regulate judicial 
 procedure. The proposals of the New York convention of 1915 
 for judicial reform were much less courageous than those for the 
 reform of the executive, but so far as they went they indicate the 
 lines upon which further reform may be expected to proceed. 
 
 "Some men," wrote Jefferson, 1 several years after his final 
 retirement from public life, "look at constitutions with sancti- 
 monious reverence, and deem them like the ark of the covenant, 
 too sacred to be touched. They ascribe to the men of the 
 preceding age a wisdom more than human, and suppose what 
 they did to be beyond amendment. I knew that age well; 
 I belonged to it, and labored with it. It deserved well of its 
 country. It was very like the present but without the experience 
 of the present ; and forty years of experience in government is 
 worth a century of bookreading ; and this they would say them- 
 selves were they to rise from the dead. I am certainly not an 
 advocate for frequent and untried changes in laws and consti- 
 tutions. I think moderate imperfections had better be borne 
 with ; because, when once known, we accommodate ourselves 
 to them and find practical means of correcting their ill effects. 
 But I know also that laws and institutions must go hand in hand 
 with the progress of the human mind." 
 
 1 Thomas Jefferson to Samuel Kercheval, July 12, 1816.
 
 APPENDIX 
 
 A Selected List of References for the Study of State Government l 
 
 A. BIBLIOGRAPHIES. 
 
 Reece, Ernest J. State Documents for Libraries. Univ. of 111. 
 Bulletin, xii, 36. Urbana, 1915. 
 
 The best general guide to the official publications of the states. 
 Bowker, R. R. State Publications ; a provisional list of the official 
 publications of the several states of the United States from their 
 organization. N. Y. Publishers' Weekly, 1002-1908. 
 
 The only approximately complete check-list of state documents. 
 U. S. Library of Congress. Monthly List of State Publications. 
 Washington, 1910-. 
 
 The most complete list of current state publications. 
 American Historical Association. Annual Reports, 1900-1911; 
 Reports of Public Archives Commission on official literature of a 
 large number of states. Washington, 1900-1911. 
 
 The best source of information on the archives and manuscript 
 records of the states. 
 
 Public Affairs Information Service Bulletin. White Plains, N. Y., 
 1914-. 
 
 A current record and description of all literature relating to public 
 affairs. 
 
 Hasse, A. R. Index of Economic Material in Documents of the States 
 of the United States. Carnegie Institution, Washington, 1907-. 
 
 An index of such material from 1789. To 1915, eleven volumes 
 on eleven of the principal states had appeared. 
 Channing, Edward, Hart, A. B., and Turner, F. J. Guide to the 
 Study and Reading of American History. Boston, 1912. 
 
 Contains the best selected lists of public records and documents 
 and secondary works relating to the history and government of the 
 states. 
 
 McLaughlin, A. C., and Hart, A. B., editors. Cyclopedia of American 
 Government. 3 vols. N. Y., 1914. 
 
 Contains selected lists of references appended to the several 
 articles relating to state government and administration. 
 
 1 References cited in the text or in the foot-notes are, for the most part, 
 omitted from this list. 
 
 2 l 481
 
 482 APPENDIX 
 
 The American Year Book. New York, 1910-. 
 
 Contains selected lists of references on the current history and 
 activities of the state governments. 
 
 B. THE STATE CONSTITUTIONS. 
 
 Thorpe, F. N. The Federal and State Constitutions, Colonial 
 
 Charters, and other Organic Laws of the States, Territories, and 
 
 Colonies now or heretofore forming the United States of America. 
 
 7 vols. Washington, 1909. 
 The latest and most complete compilation of the state constitu- 
 
 tions. 
 N. Y. State Constitutional Convention Commission. Index Digest 
 
 of State Constitutions. N. Y., 1915. 
 
 An excellent digest of the state constitutions at the beginning of 
 
 1914. For subsequent amendments to the state constitutions, 
 
 see The American Year Book. 
 Stimson, F. J. Law of the Federal and State Constitutions of the 
 
 United States. Boston, 1908. 
 Contains a digest of the state constitutions, which, though older 
 
 than the above, is still useful. 
 
 C. THE NATION AND THE STATES. 
 
 Willoughby, W. W. The American Constitutional System. N. Y., 
 1904. 
 
 The best general statement of the constitutional position of the 
 states in the Union. 
 
 Willoughby, W. W. The Constitutional Law of the United States. 
 2 vols. N. Y., 1910. 
 
 The most recent and complete treatise on the law of the federal 
 constitution. 
 
 Cooley, T. M. A Treatise on the Constitutional Limitations which 
 rest upon the Legislative Power of the States of the American 
 Union, yth ed., Boston, 1903. 
 The standard treatise on the law-making powers of the states. 
 
 D. THE ORIGIN AND DEVELOPMENT OF THE STATE CONSTITUTIONS. 
 
 The Massachusetts Declaration of Rights of 1780. Thorpe's Con- 
 stitutions, iii, 1888-1893. 
 
 The best statement of the original principles of government. 
 Jefferson's Proposed Constitution for Virginia, 1783. The Writings 
 of Thomas Jefferson, Ford's ed., iii, 320-333. 
 
 The best example of a plan of government constructed upon the 
 original principles. 
 Dealey, J. Q. Growth of American State Constitutions. Boston, 
 
 The best summary of the constitutional history of the states. 
 Merriam, C. E. History of American Political Theories. N. Y., 
 1003. 
 
 The best general account of the development of American political 
 ideas.
 
 APPENDIX 483 
 
 Ford, H. J. The Rise and Growth of American Politics. N. Y., 
 1898. 
 
 A brilliant study of underlying tendencies in American politics. 
 Smith, J. A. The Spirit of American Government. N. Y., 1907. 
 An able study of underlying tendencies from another view- 
 point. 
 
 Croly, H. The Promise of American Life. N. Y., 1909. Progres- 
 sive Democracy. N. Y., 1914. 
 
 These two volumes together furnish the most systematic and 
 suggestive interpretation of the history of American politics. 
 E. THE WORKING OF THE STATE GOVERNMENTS. 
 
 1. General Works. 
 
 Hamilton, A., Madison, J., and Jay, J. The Federalist, ist ed., 
 N. Y., 1788-1789. 
 
 Contains the best critical study of the state governments before 
 the adoption of the federal constitution of 1787. 
 Tocqueville, A. de. Democracy in America. 2 vols. ist ed., 
 1835-1840. 
 
 Contains the most brilliant study of the forms and spirit of state 
 government in the early nineteenth century. 
 
 Bryce, J. The American Commonwealth. 2 vols. ist ed., 1888 ; 
 rev. ed., 1910. 
 
 Contains the most brilliant study of the forms and spirit of state 
 government at the close of the century. 
 
 2. Parties and Elections. 
 
 Cleveland, F. A. Organized Democracy. N. Y., 1913. 
 
 The most comprehensive study of the electorate and elections. 
 Macy, J. Party Organizations and Machinery. Rev. ed., N. Y., 
 1912. 
 
 A sympathetic account of party government. 
 
 Ostrogorski, M. Democracy and the Party System of the United 
 States. N. Y., 1910. 
 
 An unsympathetic account of party government. 
 Ray, P. O. Introduction to Practical Politics and Political Parties. 
 N.Y.,i 9 i 3 . 
 
 A general account of party issues, nominations and elections. 
 Woodburn, J. A. Political Parties and Party Problems in the United 
 States. 2d ed., N. Y., 1914. 
 
 Another useful description of party issues and the conduct of 
 campaigns. 
 
 3. The State Legislatures. 
 
 Reinsch, P. S. American Legislatures and Legislative Methods. 
 N. Y., 1907. 
 
 The best general account of the state legislatures. 
 Reed, A. Z. The Territorial Basis of Government under the State 
 Constitutions. N. Y., 1911. 
 A study of the systems of representation in the state legislatures.
 
 484 APPENDIX 
 
 Moore, B . F. The History of Cumulative Voting and Minority Repre- 
 sentation in Illinois, 1870-1908. Urbana, 1909. 
 
 A study of the partisan representative system in effect in 
 Illinois. 
 
 Steffens, Lincoln. The Straggle for Self-government. N. Y., 1906. 
 The most effective of the studies of legislative incompetence and 
 corruption, published during the "muck-raking" period. 
 American Bar Association. Report of the Committee on Noteworthy 
 Changes in Statute Law. 1915-. 
 
 A useful annual summary of new legislation, appearing prior to 
 1915 in the form of an appendix to the Annual Address of the 
 President of the Association. 
 
 National Association of State Libraries and American Association of 
 Law Libraries. Official Index to State Legislation. N. Y., 1915-. 
 A subject and numerical index, digest, and record of all bills 
 and resolutions in all legislatures, cumulated and corrected 
 weekly. 
 4. The State Executives. 
 
 Finley, J. H., and Sanderson, J. F. The American Executive and Ex- 
 ecutive Methods. N. Y., 1908. 
 
 A study chiefly of the presidency and of the office of governor. 
 Fairlie, J. A. Local Government in County, Town, and Village. 
 N. Y., 1006. 
 
 An excellent description of local administrative organization. 
 Goodnow, F. J. Principles of the Administrative Law of the United 
 States. N. Y., 1905. 
 
 The best general account of administrative organization and the 
 rules of administrative action. 
 
 Mathews, J. M. Principles of American State Administration. 
 N. Y., 1917. 
 
 The latest comprehensive account of the objects and methods of 
 administrative action. 
 
 U. S. Bureau of the Census. Financial Statistics of States, 1915. 
 Washington, 1916. 
 
 A full exhibit of the sources of state revenues and of the nature and 
 amount of state expenditures. 
 
 The Proceedings of the Governors' Conferences, held annually since 
 1908, and of the annual meetings of the various associations of 
 state officers and other persons interested in special branches of state 
 administration, such as the National Tax Association, the National 
 Assembly of Civil Service Commissions, the National Association 
 of Railway Commissioners, etc., contain a mass of useful information 
 concerning the activities and problems of the administrative depart- 
 ments of the state governments. These publications, as well as the 
 official reports of administrative officers and departments, are listed 
 in the Library of Congress' Monthly List of State Publications, 
 noted above.
 
 APPENDIX 485 
 
 5. The State Judiciary. 
 
 Baldwin, S. E. The American Judiciary. N. Y., 1905. 
 
 The best general account of the judicial systems of the states. 
 Pound, Roscoe. The Place of Judge Story in the Making of American 
 Law. 48 American Law Review, 676. The Administration of 
 Justice in the Modern City. 26 Harvard Law Review, 302. 
 
 Suggestive accounts of two phases hi the development of American 
 law. 
 
 Frankfurter, Felix. The Constitutional Opinions of Justice Holmes. 
 29 Harvard Law Review, 683. 
 
 A valuable discussion of the modern doctrine of judicial 
 review. 
 
 Goodnow, F. J. Private Rights and Administrative Discretion. 
 Journal of the American Bar Association, October, 1916. 
 
 A valuable discussion of the modern development of administra- 
 tive law. 
 
 American Judicature Society to Promote the Efficient Administration 
 of Justice. Bulletin. Chicago, 1914. 
 
 Contains many suggestive articles on judicial organization and 
 procedure. 
 
 6. The Constitutional Convention. See p. 394 n. 
 
 7. The Initiative, Referendum, and Recall. 
 
 Beard, C. A., and Schultz, B. E. Documents on the State-wide 
 Initiative, Referendum, and Recall. N. Y., 1912. 
 
 A collection of source materials with a discriminating introduc- 
 tion. 
 
 Lowell, A. L. Public Opinion and Popular Government. N. Y., 
 1912. 
 
 Contains a critical study of the working of the initiative and 
 referendum. 
 
 Munro, W. B., ed. The Initiative, Referendum, and Recall. N. Y., 
 1912. 
 
 A collection of essays on different sides of the question, including 
 a valuable essay by the editor. 
 
 Wilcox, D. F. Government by All the People, or the Initiative, 
 Referendum, and Recall as Instruments of Democracy. N. Y., 
 1912. 
 
 The most comprehensive statement of the case for direct legisla- 
 tion and the recall. 
 
 Roe, G. E. Our Judicial Oligarchy. N. Y., 1912. 
 A statement of the case for the recall of judges. 
 Ransom, W. L. Majority Rule and the Judiciary. N. Y., 1912. 
 
 A statement of the case for the recall of judicial decisions. 
 Root, E. Experiments in Government and Essentials of the Consti- 
 tution. Princeton, 1913. 
 
 A statement of the case against the initiative, referendum, and 
 recall.
 
 486 APPENDIX 
 
 F. THE FURTHER REFORM OF STATE GOVERNMENT. 
 
 In addition to the works cited in the text or in the foot-notes, the following 
 are the most useful. 
 
 Roosevelt, T. Progressive Principles. N. Y., 1913. 
 
 Contains the most effective presentation of the progressive plan 
 of reform, consisting of speeches delivered during the campaigns of 
 1912. 
 
 Root, E. Addresses on Government and Citizenship. Cambridge, 
 1916. 
 
 Contains the most effective presentation of the conservative plan 
 of reform, including speeches delivered in the N. Y. State Consti- 
 tutional Convention of 1915. 
 
 New York Bureau of Municipal Research. Bulletins 69, 70, and 
 73, entitled respectively Responsible Government, Budget Legisla- 
 tion in Two States, and Three Proposed Constitutional Amend- 
 ments for the Control of the Purse. N. Y., 1916. 
 
 The best statement of the case for the executive budget. 
 The American Year Book. Articles entitled State Government, and 
 Popular Government and Current Politics, contain descriptions of 
 the principal current proposals for further reform.
 
 INDEX 
 
 Absent voting, 237. 
 
 Adams, John, Defence of the Constitutions oj 
 the United States, 23 n; on equality, 22; 
 on rebellion, 33 ; on division of powers, 
 65-67 ; author of Massachusetts constitu- 
 tion, no; on representative system, 241. 
 
 Adams, John Quincy, on liberty, 25; on 
 division of powers, 60 n; "Letter of 
 Menander," 64 n. 
 
 Addams, Jane, on abuse of judicial veto, 372. 
 
 Administration, decentralization of, 281, 
 284 ; partisanship in, 282 ; judicial control 
 of, 283, 381-391 ; reorganization of, 285- 
 287, 326, 391; departments of, 287-317, 
 see also under Militia, Education, etc.; 
 disorganization of, 317-319; organiza- 
 tion of, 319-325; development of quasi- 
 judicial powers of, 385 ; ministerial and 
 discretionary acts of, 388-300; reorgan- 
 ization of, conclusion on, 478479. 
 
 Advisory opinions, judicial. See Opinions, 
 advisory. 
 
 Agger, E. E., The Budget Right in American 
 Commonwealths, 314 n, 316 n, 334 n. 
 
 Agriculture, administration of, 301-302. 
 
 Alabama, "Grandfather" clause in, 83; 
 constitutional amendment in, 99; limita- 
 tion of legislative powers in, 122; reg- 
 istered voters in, 147 ; unconstitutional 
 laws in, 374. 
 
 Alaska, woman suffrage in, 87. 
 
 Amendment of constitutions, methods of, 
 08-09, 135-136; effect of, 120-130; work- 
 ing of,- 394-400, 40241 1 . See also Conven- 
 tion, constitutional, and Initiative, pop- 
 ular. 
 
 American Tobacco case, 365. 
 
 Appointment, power of, in original states, 
 51, 52, 54; effect of restrictions on, 113- 
 114; executive, 335-338; effect of "merit" 
 system on, 341-342. 
 
 Apportionment, legislative, methods of, 242- 
 244 ; working of, 244-248. 
 
 Appropriations, control of, in colonies, 69 ; 
 by legislature, 331-333, 335 ; by executive, 
 334 ; under Oregon plan, 467 ; under New 
 York plan, 474 ; conclusion on, 479. 
 
 Aristotle, influence of, in American colonies, 
 21 ; on kings and tyrants, 186. 
 
 Arizona, condition of admission to Union of, 
 8 ; literacy test in, 85 n ; woman suffrage 
 in, 87 n ; popular voting in, 145 ; regis- 
 tered voters in, 146 ; legislative organiza- 
 tion in, 242 n ; working of bicameral sys- 
 tem in, 266; working of initiative in, 442. 
 
 Arkansas, alien suffrage in, 85 n ; listing of 
 voters in, 215 ; use of pardoning power in, 
 392. 
 
 Ashtabula, proportional representation in, 
 456, 463-464. 
 
 Attorney-general, duties of, 315. 
 
 Auditor, state, duties of, 316. 
 
 Austin, John, on drafting of bills, 271 n. 
 
 Australia, official ballot in, 205. 
 
 Ballot, official, introduction of, 205 ; Massa- 
 chusetts form of, 206 ; New York form of, 
 207; Mass. v. N. Y. form of, 208-212; 
 short, see Short ballot. 
 
 Barnes-Roosevelt libel case, 337. 
 
 Barnett, J. D., The Initiative, Referendum, 
 and Recall in Oregon, 411 n. 
 
 Beard, C. A., Readings in American Govern- 
 ment and Politics, 278 n. 
 
 Belmont, Perry, on use of money in elections, 
 230. 
 
 Bentham, influence of, in America, 348. 
 
 Bicameral system, in original legislatures, 
 65-67 ; reform of, 88-89 ', arguments for, 
 241-242; working of, 244-248, 264-266; 
 conclusion on, 453-454, 478. 
 
 Bipartisan system, character of, 179-182; 
 prospect for, 204 ; working of, in elections, 
 213-215 ; conclusion on, 461-463. 
 
 Blackstone, influence of, in America, 21, 348. 
 
 Boss, political, definition of, 186. 
 
 Boss rule, working of, 336-338, 341, 342. 
 
 Bradford, G., on cabinet system, 470. 
 
 Bryan, W. J., on patronage, 336 n ; on criti- 
 cism of Supreme Court, 368. 
 
 Bryce, The American Commonwealth, 103 n., 
 224 n; on American parties, 208. 
 
 Budget, executive, development of, 334-335 ; 
 under commission plan, 452 ; under Ore- 
 
 487
 
 INDEX 
 
 gon plan, 467 ; under New York plan, 
 474i 47S ; conclusion on, 479. 
 Burke, on study of government in America, 
 2i ; Reflections on the Revolution in France, 
 30 n ; definition of party by, 100. 
 
 Cabinet system, proposals of, under Oregon 
 plan, 467, 471 ; under other plans, 468- 
 470 ; under New York plan, 474, 475 ; 
 conclusion on, 479. 
 
 Cabot, R. C., "The Administration of Public 
 Health," 297 . 
 
 Calhoun, J. C., Disquisition on Government 
 and Discourse on the Constitution and Gov- 
 ernment of the United States, 8 n ; theory 
 of government of, 68; on nominating 
 conventions, 183. 
 
 California, literacy test in, 85 ; woman 
 suffrage in, 87 n; regulation of primary 
 elections in, 104 ; limitations of legislative 
 powers in, 122 ; county home rule in, 132 ; 
 popular voting in, 144 ; party enrollment 
 in, 177; non-partisan primary in, 200; 
 registration of voters in, 215; limitations 
 on use of money in elections in, 236; 
 state board of control in, 295 ; executive 
 veto in, 327, 329, 330; civil service reform 
 in, 340 n; recall of judges in, 375 ; consti- 
 tutional amendments in, 403 ; voting on 
 constitutional amendments in, 406; ur- 
 gency legislation in, 418; official campaign 
 bulletin in, 422-424; working of popular 
 referendum in, 426; procedure for direct 
 legislation in, 437. 
 
 Cambridge Modern History, 61 n. 
 
 Campaign bulletins, official, 104, 238; 
 official, and the referendum, 421-424; 
 and the initiative, 440. 
 
 Campaign funds, growth of, 229-230; regu- 
 lation of, 231-232. 
 
 Carter, Law, its Origin, Nature and Growth, 
 35 , 378 n. 
 
 Caucus, in original states, 101 ; in legisla- 
 tures, 263. 
 
 Censors. See Council of censors. 
 
 Charities, administration of, 292-296, 323. 
 
 Checks and balances, doctrine of, 60-65. 
 
 Chicago, municipal courts in, 350. 
 
 Childs, R. S., Short Ballot Principles, 161 n. 
 
 Chipman, Nathaniel, Sketches of the Prin- 
 cipks of Government, 24 , 30 n, 65 n ; on 
 bicameral system, 67. 
 
 Church, and state, separation of, 27. 
 
 Cicero, influence of, in American colonies, 21. 
 
 Citizen, definition of, 31. 
 
 Civil rights. See Rights, Civil. 
 
 Civil service, extent of, 338 ; reform of, 339- 
 340; working of, 340-342; reform of, 
 
 under commission plan, 452, under Ore- 
 gon plan, 466, under New York plan, 474, 
 conclusion on, 478, 479. 
 
 Civil service system, for election officers, 217. 
 
 Cleveland, municipal courts in, 350. 
 
 Clinton, DeWitt, influence of, on state 
 administration, 285. 
 
 Codification, demand for, 348, 349; results 
 of, 353- 
 
 Colorado, woman suffrage in, 87 n ; subsidy 
 to parties in, 104, 238; advisory opinions 
 in, 118 n; legislative referendum in, 133; 
 popular voting in, 144; effect of equal 
 suffrage in, 154; legislative organization 
 in, 242 n; civil service reform in, 340 n; 
 judicial procedure in, 354 n; recall of 
 judicial decisions in, 376; working of 
 referendum in, 423-424; working of 
 initiative in, 440. 
 
 Colvin, D. L., The Bicameral Principle in 
 the New York Legislature, 265 n, 266 n, 
 33 . 331 , 334 
 
 Commission plan of government, for states, 
 449-;454- 
 
 Committee, legislative, privileges of, 253, 
 in Massachusetts, 253255, in general, 
 256-258, in New York, 250-261. 
 
 Committee, party, organization of, 160-170. 
 
 Commons, J. R., Proportional Representa- 
 tion, 246 . 
 
 Compact, social, doctrine of, 30-31. 
 
 Compulsory voting, 237. 
 
 Confederacy, Southern, nature of, 5 ; veto 
 power in, 113; cabinet system in, 468. 
 
 Confederation, Articles of, nature of, 6. 
 
 Connecticut, adoption of original constitu- 
 tion in, 41 ; original division of powers in, 
 53, 54 ; character of original government 
 of, 74; literacy test in, 85 ; constitu- 
 tional amendment in, 09; legislative 
 organization, 242 n, 244, 247 ; civil service 
 reform in, 340 n; judicial procedure in, 
 354 . 
 
 Constabulary, state, 289. 
 
 Constitution, model, prepared by Jefferson, 
 741 
 
 Constitutions, original, adoption of, 40-41 ; 
 revision of , 74, 110-120; length of, 124. 
 
 Convention, constitutional, in original states, 
 41. 58-59. 7i; development of, 92-04; 
 present use of, 95-98; growth of power 
 of, 123-124; present status of, 125-128; 
 organization of, 395397 ; partisanship in, 
 397 ; procedure in, 398 ; working of, 399- 
 400 ; conclusion on, 478. 
 
 Convention, nominating, origin of, lot 102 ; 
 organization of, 167169; working of, 
 182-184; failure of, 186-188.
 
 INDEX 
 
 489 
 
 Cooley, T. M., Constitutional Limitations, 
 
 64 n, 362 n; Michigan, gi n. 
 Corporations, regulation and control of, 
 
 305-307, 323; supervision of, by admin- 
 istrative commissions, 387, 388. 
 Corrections, administration of, 292296. 
 Corruption, political, nature of, 220-221 ; 
 
 difficulty in preventing, 224-227. 
 Corwin, E. S., "The Establishment of Judi- 
 cial Review," 356 n ; " Due Process of Law 
 
 before the Civil War," 361 n. 
 Council, executive, in original states, 52, 54 ; 
 
 abolition of, 88; effect of, 113-114. 
 Council of appointment, in New York, 51 ; 
 
 abolition of, 90. 
 Council of censors, in original states, 56-58 ; 
 
 working of, 75-76; abolition of, 76-77; 
 
 criticism of, 78. 
 Council of revision, in New York, 52, 60; 
 
 abolition of, in, 115. 
 Court of errors, in New York, 58, 60, 115. 
 Coxe, B., Judicial Power and Unconstitutional 
 
 Legislation, 61 n. 
 Croly, Herbert, Progressive Democracy, 122 n ; 
 
 The Promise of American Life, 286 n. 
 
 DalUnger, F. W., Nominations to Elective 
 Office, 102 n. 
 
 Dartmouth College case, 305. 
 
 Davis, H. A., The Judicial Veto, 63 n, 357 n. 
 
 Delegate convention. See Convention, nomi- 
 nating. 
 
 Delaware, adoption of original constitution 
 in, 41 n ; original division of powers in, 54 ; 
 popular election of governor in, 89; con- 
 stitutional referendum in, 97 n; consti- 
 tutional amendment in, 98; party organ- 
 ization in, 102 ; executive veto in, 1 1 1 ; 
 popular voting in, 144; registered voters 
 in, 146; legislative organization in, 242 n, 
 247 n ; unconstitutional laws in, 358. 
 
 Democracy, progress of, 78. 
 
 Departments, executive, organization of, 
 310-325. 
 
 Dicey, A. V., Introduction to the Study of the 
 Law of the Constitution, 30 n, 36 n, 71 n. 
 
 Dickerson, O. M., The Illinois Constitutional 
 Convention of 1862, 128 w. 
 
 Direct primary. See Primary, direct. 
 
 Division of powers. See Powers, division of. 
 
 Districts, electoral, system of, 158-160; 
 defects of, 160-163. 
 
 Dodd, W. F., The Revision and Amendment of 
 State Constitutions, 95 n, 96 , 97 n, 98 n, 
 394 *. 4<>3 n. 
 
 Dougherty, J. H., Power of Federal Judiciary 
 over Legislation, 63 n. 
 
 Douglas, Stephen A., on equality, 23. 
 
 Dred Scott, case of, 31. 
 Dubois, W. E. B, "Social Effects of Emanci- 
 pation," 147 . 
 
 Economy and efficiency, commissions on, 
 
 472-473- 
 Education, administration of, 289-292, 322, 
 
 323- 
 
 Elections, annual, in original states, 59, 
 generally abandoned, 89; popular, of 
 executives, 89-90, of judges, 90-91 ; 
 majority v. plurality, 162-164 ; conduct of, 
 213-215; campaigning before, 218-220; 
 corrupt practices in, 220-221 ; corrupt 
 practices acts, in England, 221224, ^ 
 America, 227232, working of, 233235, 
 further development of, 236-237, con- 
 clusion on, 464. See also Primary and 
 Party, political. 
 
 Electorate, nature of, in original states, 45 
 46; democratization of, 79-81, 85-88; 
 growth of power of, 129 ; effect of suffrage 
 qualifications on, 143-146; organization 
 of, 158-160. 
 
 Executive, organization of, in original states, 
 5156; popular election of, 89-91 ; tenure 
 of, changes in, 92 ; disorganization of, 280- 
 281 ; reorganization of, 285-287, 317-319; 
 popular election of, effects of, 320-321, 
 conclusion on, 478479. See Governor, 
 and other executive officers by title, 
 Administration, Veto, and Commission, 
 Oregon and New York plans. 
 
 Expenditures, state, 308-310. 
 
 Fairlie, J. A., "The State Governor," 389 n. 
 
 Farrand, Max, The Framing of the Constitu- 
 tion of the United States, 63 n. 
 
 Federalist, The, on partisanship, 99; on 
 veto power, 330 n. 
 
 Ferguson, Maxwell, State Regulation of Rail- 
 roads in the South, 387 n. 
 
 Finance, legislative control of, 331-335. 
 
 Fiske, John, on critical period in American 
 history, 107. 
 
 Florida, advisory opinions in, 118 n; reg- 
 istered voters in, 146; public health 
 administration in, 299. 
 
 Ford, H. J., on cabinet system, 469. 
 
 Fox, on partisanship, 100. 
 
 France, electoral system of, 199; cabinet 
 system in, 469. 
 
 Franchise, electoral, theory of, 155-158. 
 See Suffrage. 
 
 Frankfurter, Felix, "Hours of Labor and 
 Realism in Constitutional Law," 379 n. 
 
 Franklin, on division of powers, 67. 
 
 Freund, E., The Polite Power, 367 n; The
 
 4QO 
 
 INDEX 
 
 Problem of Adequate Legislative Powers, 
 
 373 , 374 
 
 Frothingham, L. A., A Brief History of the 
 Constitution and Government of Massachu- 
 setts, 255 n, 381 n. 
 
 Fry, Elizabeth, prison reformer, 293. 
 
 Georgia, adoption of original constitution in, 
 41 ; original right to vote in, 45 n; 
 original division of powers in, 54; con- 
 stitutional initiative in, 58; unicameral 
 legislature in, 66; character of original 
 government of, 73; reform of original 
 constitution of, 75; "Grandfather" 
 clause in, 84 ; popular election of governor 
 in, 90 n ; constitutional convention in, 93 ; 
 executive veto in, HI; judicial veto by 
 jury in, 116; legislative incapacity in, 119; 
 limitation of legislative powers in, 123. 
 
 Germany, electoral system of, 109; cabinet 
 system in, 472. 
 
 Gerrymander, 245. 
 
 Gitterman, "The Council of Appointment in 
 New York," oo n. 
 
 Godkin, E. L., "The Decline of the State 
 Legislatures," 272 n. 
 
 Gompers, Samuel, on use of money in elec- 
 tions, 230. 
 
 Goodnow, F. J., on the division of powers, 49 ; 
 Politics and Administration, 49 n; Princi- 
 ples of the Administrative Law of the United 
 States, 49 n, 170 n, 172 n, 386 n, 389 n; 
 Social Reform and the Constitution, 367 n. 
 
 Governor, under colonial governments, 69; 
 direct popular election of, 80-91 ; extension 
 of powers of, 110114; original powers of, 
 148, 281 ; transformation of office of, 282, 
 327; present position of, 317-319, 335, 
 338, 341 ; proposed position of, under 
 Oregon plan, 466, 467, under New York 
 plan, 474, conclusion on, 479. See also 
 Veto, executive ; Appointment, power of ; 
 Pardon, power of; Budget, executive; 
 and Oregon and New York plans. 
 
 "Grandfather" clauses, nature of, 82-85; 
 effect of, 147-148. 
 
 Granger cases, 305. 
 
 Grant, election of, 181. 
 
 Great Britain, Australian ballot in, 205; 
 corrupt practices act of, 221-224; cabinet 
 system in, 467. 
 
 Greene, E. B., The Provincial Governor, 69 n. 
 
 Haines, C. G., The American Doctrine of 
 Judicial Supremacy, 61 n, 62 n, 63 n, 356, 
 359 
 
 Haines, Lynn, The Minnesota Legislature, 
 277 n. 
 
 Hamilton, on the party system, 99 
 
 Hanna, Mark, on party finance, 234. 
 
 Harlan, J. M., on the police power, 369. 
 
 Harrington, influence of, in American col- 
 onies, 21 n. 
 
 Hart, A. B., "The Exercise of the Suffrage," 
 237 n. 
 
 Harvester cases, 365. 
 
 Health, public, administration of, 296-300, 
 323, 325- 
 
 Hearst, W. R., political influence of, 236. 
 
 Hichborn, F., Story of the California Legis- 
 lature, 277 . 
 
 Hillquit, Morris, History of Socialism in the 
 United States, 455 . 
 
 Hoar, G. F., on partisanship, 100. 
 
 Hodges, Governor, on drafting of bills, 271 n ; 
 on commission plan, 453. 
 
 Holcombe, A. N., "Direct Primaries and the 
 Second Ballot," 201 n. 
 
 Holmes, O. W., on the police power, 369 ; on 
 liberty and justice, 378. 
 
 Home rule, development of, 130-132 ; con- 
 clusion on, 479. 
 
 Howard, John, prison reformer, 293. 
 
 Howe, F. C., Wisconsin, an Experiment in 
 Democracy, 273 n. 
 
 Hughes, C. E., Message to N. Y. Legislature, 
 103 n ; on direct primary, 203 ; investiga- 
 tion into political expenditures of life 
 insurance companies by, 275 ; use of 
 veto by, 330. 
 
 Hume, "Of the Original Contract," 30 n; 
 on right of revolution, 32; "Of Passive 
 Obedience," 32 . 
 
 Idaho, woman suffrage in, 87 n; popular 
 voting in, 144. 
 
 Illinois, woman suffrage in, 87 ; develop- 
 ment of executive veto in, 113 ; status 
 of constitutional convention in, 128; 
 advisory referendum in, 135 ; proportional 
 representation in, 138; Australian ballot 
 in, 212; legislative committee system in, 
 257; administrative agencies in, 286; 
 state board of equalization in, 320; civil 
 service reform in, 340 ; use of judicial 
 veto in, 377 ; organization of constitutional 
 convention in, 396; working of conven- 
 tion in, 399; procedure for constitutional 
 amendment in, 409; results of public 
 opinion law in, 444; cumulative voting 
 in, 456 ; economy and efficiency commis- 
 sion in, 472. 
 
 Impeachment, provision for, in original 
 states, 51, 52, 55, 57! cases of, 342; con- 
 clusion, 343 . 
 
 Indiana, alien suffrage in, 85 n; popular
 
 INDEX 
 
 491 
 
 voting in, 144; electoral frauds in, 216; 
 volume of legislation in, 240 ; republican 
 government in, 300 ; constitutional amend- 
 ments in, 403; procedure for constitu- 
 tional amendment in, 409; working of 
 constitutional referendum in, 410. 
 
 Initiative, popular, definition of, 130; de- 
 velopment of, 135-136; use of, 403, 404; 
 working of, 428-432 ; criticism of, 432- 
 437 ; improvement of, 437-441 ; limita- 
 tions on, 441-443 ; conclusion on, 443-444, 
 458, 464, 476, 477. 
 
 Iowa, legislative referendum in, 134 ; repre- 
 sentative system in, 243; illiteracy in, 
 290; economy and efficiency commission 
 in, 472. 
 
 Italy, electoral system of, 109. 
 
 Ivins, W. M., Machine Politics and Money 
 in Elections in New York City, 184 n, 
 218 n, 224 n. 
 
 Jackson, election of, 181. 
 
 Jacobs, In re, 366. 
 
 Jameson, J. A., The Constitutional Conven- 
 tion, 394 . 
 
 Jameson, J. F., "Did the Fathers Vote ?" 
 45 n; " Origin of the Standing Committee 
 System in American Legislative Bodies," 
 259 n. 
 
 Jay, John, author of New York constitution, 
 no; on representative system, 241. 
 
 Jefferson, Notes on Virginia, 23 n, 26 n; 
 on natural rights, 24; on religious dis- 
 establishment, 28 ; on rebellion, 32 ; 
 on republican form of government, 38; 
 on original constitution of Virginia, 40, 50, 
 55> 56, 71 n ; on Virginia suffrage qualifica- 
 tions, 45, 79; on suffrage, 46; on the 
 division of powers, 48 ; on the referendum, 
 59 ; on checks and balances, 60 ; on power 
 of judiciary, 64 ; on bicameral system, 
 66, 67 ; model constitution prepared by, 
 74 ; on revision of constitutions, 95 ; 
 on system of legislative supremacy, 106; 
 on representative system, 241 ; on prog- 
 ress in government, 480. 
 
 Jeffersonian principles of state government, 
 importance of, 74 ; soundness of, 477. 
 
 Johnson, L. J., The Initiative and Referendum, 
 an Effective Ally of Representative Govern- 
 ment, 438 n. 
 
 Jones, C. L., Statute Law Making in the 
 United States, 258 n. 
 
 Judges, popular election of, 91, working of, 
 351 ; recall of, 375. 
 
 Judicial decisions, recall of, 375-376. 
 
 Judicial review of constitutionality of legis- 
 lation. See Veto, Judicial. 
 
 Judiciary, organization of, in original states, 
 51-56, 61; tenure of, changes in, 92; 
 organization of, 340-352 ; procedure of, 
 352-355; working of, in Massachusetts, 
 380-381 ; reform of, conclusion on, 479- 
 480; control of administration by, see 
 Administration, judicial control of; con- 
 trol of legislation by, see Veto, judicial. 
 
 Jury, as a political institution, 7172 ; exer- 
 cise of judicial veto by, 116-118; trial 
 by, 354-355- 
 
 Justice, administration of, 346-347. 
 
 Kales, A. M., Unpopular Government, 160 ; 
 on cabinet system, 469. 
 
 Kansas, racial discrimination in, 81 ; alien 
 suffrage in, 85 ; woman suffrage in, 
 86 n, 87 ; legislative referendum in, 133 ; 
 the recall in, 137, 138; legislative in- 
 competence in, 271 ; civil service reform 
 in, 340 n. 
 
 Kentucky, manhood suffrage in, 80 ; woman 
 suffrage in, 86 ; popular election of gover- 
 nor in, 90; executive veto in, in. 
 
 Koehler & Lange r. Hill, 374 n. 
 
 Labor legislation, administration of, 300, 
 323-325- 
 
 LaFollette, Robert M., on the lobby, 277. 
 
 Lamb, Congressman, on use of money in 
 elections, 231. 
 
 Law, reign of, 34-36 ; development of, 347 
 349; due process of, 360-362. 
 
 Legislation, methods of, reform of, 267-268; 
 emergency, and the referendum, 415-418; 
 direct, see Initiative. 
 
 Legislature, supremacy of, in original 
 states, 55, 61, 68-70, 73, reaction 
 against, 106-110; powers of, growth of 
 limitations on, 110-122; bicameral sys- 
 tem in, 241-242; apportionment of 
 representatives in, 242-244; procedure 
 in, 248-252 ; organization of, 252-261 ; 
 partisanship in, 263-264; work of, 
 classification of, 268-272 ; powers of, 
 further limitation of, 272-274, 278-279; 
 control of appropriations by, 331-335; 
 delegation of powers by, 382 ; reform of, 
 conclusion on, 478-479. See also Bi- 
 cameral system, Apportionment, and 
 Proportional representation. 
 
 Liberty, idea of, at Revolution, 24-28; 
 idea of, change in, 378-379. 
 
 Lieber, Francis, Miscellaneous Writings, 24 n ; 
 Civil Liberty and Self Government, 26 n ; 
 Principles of Political and Legal Her- 
 meneutics, 35 n ; on the party system, 
 100 ; Manual of Political Ethics, 150 n;
 
 492 
 
 INDEX 
 
 "Reflections on the Present Constitution 
 of New York," 392 . 
 
 Lincoln, on nature of Union, 3-4, 7; sus- 
 pension of the privilege of the writ of 
 habeas corpus by, 17; on natural rights, 
 23; Address at Cooper Union, 43 n; 
 election of, 181. 
 
 Lincoln, C. Z., Constitutional History of 
 New York, 90 n, 1 1 1 n. 
 
 Loan Association v. Topeka, 362. 
 
 Lobby, power of, 270; regulation of, 274- 
 277. 
 
 Lochner v. N. Y., 368. 
 
 Locke, influence of, in American colonies, 21 ; 
 on liberty, 25 ; on doctrine of the social 
 compact, 30; on the division of powers, 
 48. 
 
 Louisiana, constitutional referendum in, 
 97 n; limitation of legislative powers in, 
 122; representative system in, 243 ; civil 
 service reform in, 340 n ; unconstitutional 
 laws in, 358; constitutional amendments 
 in, 403. 
 
 Lowell, A. L., The Government of England, 
 224 n; on influence of party upon legisla- 
 tion, 263 ; Public Opinion and Popular 
 Government, 403 n, 413 n, 417 n, 427 n. 
 
 Luetscher, G. D., Early Political Machinery 
 in the United States, 102 n. 
 
 Macdonald, J. R., Socialism and Government, 
 459 , 460 . 
 
 Machiavelli, theory of government of, 67. 
 
 Mack, Norman E., on use of money in 
 elections, 230. 
 
 Madison, on republican form of government, 
 37, 38 ; on the division of powers, 49, 50, 
 56; on checks and balances, 59, 60; on 
 council of censors, 76; on the party sys- 
 tem, 99 n. 
 
 Magruder, F. A., Recent Administration in 
 Virginia, 128 n, 147 . 
 
 Maine, negro suffrage in, 81 ; literacy test in, 
 85 ; constitutional amendment in, 99; 
 advisory opinions in, 118 n. 
 
 Maine, Sir H. S., Popular Government, 150 n. 
 
 Mann, Horace, influence of, on state ad- 
 ministration, 285 ; administrative methods 
 of, 323- 
 
 Marbury v. Madison, 389. 
 
 Maryland, established church in, 27 ; doc- 
 trine of non-resistance in, 33 ; adoption of 
 original constitution in, 41 n; property 
 qualifications for officeholders in, 47; 
 division of powers in, 48, 54; racial 
 discrimination in, 81 ; popular election 
 of governor in, 90; constitutional amend- 
 ment in, 98 ; representative system in, 243 ; 
 
 anti-lobby act of, 976; plan for executive 
 budget in, 479 n. 
 
 Massachusetts, declaration of rights, 24, 
 42; emancipation of slaves in, 26; reli- 
 gious qualifications for office in, 27; dis- 
 continuance of public support of religion in, 
 28; adoption of original constitution in, 
 41 ; original right to vote in, 45 ; prop- 
 erty qualifications for office holders in, 
 47 ; original division of powers in, 52-53 ; 
 constitutional referendum in, 58; inde- 
 pendence of judiciary in, 61 ; special 
 privileges for property in, 66; character 
 of original government of, 73 ; extension 
 of suffrage in, 80; negro suffrage in, 80; 
 literacy test in, 85 ; reform of bicameral 
 system in, 88; annual elections in, 89; 
 tenure of judges in, 91 ; constitutional 
 referendum in, 97; Australian ballot in, 
 104 ; system of checks and balances in, 1 10 ; 
 executive veto in, no, nr; effect of 
 executive veto in, 114; judicial veto in, 
 114; advisory opinions in, 115-118; 
 limitation of legislative powers in, 120- 
 122; length of original constitution of, 
 124; popular veto in, 129; municipal 
 home rule in, 130; state-wide referendum 
 in, 132, 135 ; annual elections in, 136 ; 
 popular voting in, 144 ; registered voters 
 in, 146; effect of literacy qualification in, 
 151, 152; electoral districts in, 159; 
 majority elections in, 162 ; legal definition 
 of political party in, 166 ; annual election 
 of party officials in, 170; legal test of 
 party affiliation in, 176; Australian 
 ballot in, 206, 208, 212; corrupt prac- 
 tices act of, 227, 232 ; representative 
 system in, 243 ; volume of legis- 
 lation in, 249; legislative committee 
 system in, 253-255 ; legislative incapacity 
 in, 271; anti-lobby act of, 275-276; 
 administrative agencies in, 286 ; organiza- 
 tion of militia in, 287 ; district police in, 
 289 ; educational organization in, 291 ; 
 public health administration in, 298; 
 labor law administration in, 300; regula- 
 tion of public utilities in, 307 ; tax reform 
 in, 312313; departmental organization 
 in, 323, 324, 325; appropriations in, 332; 
 state employees in, 338; civil service 
 reform in, 339; "merit" system in, 342; 
 judicial tenure in, 351, 380-381 ; unconsti- 
 tutional laws in, 358; working of judicial 
 system in, 380-381 ; advisory opinions in, 
 381 ; organization of constitutional con- 
 vention in, 396; non-partisan elections 
 for, 397 ; working of convention in, 399 ; 
 proposed procedure for direct legislation
 
 INDEX 
 
 493 
 
 in, 438; stability of original constitution 
 of, 447 ; economy and efficiency commis- 
 sion in, 472. 
 McCarthy, Charles, The Wisconsin Idea, 
 
 273 
 
 McLaughlin, A. C., The Courts, the Constitu- 
 tion and Parties, 63 n. 
 
 Meader, L. H., "The Council of Censors, " 
 77 n. 
 
 Merriam, C. E., Primary Elections, 103 . 
 
 Meyer, E., Nominating Systems, 188 w. 
 
 Michigan, constitutional conventions in, 96 ; 
 legislative referendum in, 135; corrupt 
 practices in, 214; working of bicameral 
 system in, 264 ; state tax commission in, 
 315; administrative reorganization in, 
 326 n; appropriations in, 331. 
 
 Militia, state, 287-288. 
 
 Mill, J. S., Representative Government, 150 n; 
 on drafting of bills, 274; on government, 
 401 ; on proportional representation, 456, 
 
 459- 
 
 Milton, influence of, in American colonies, 
 21 ; on liberty, 25. 
 
 Minnesota, negro suffrage in, 81 ; popular 
 voting in, 144; non-partisan primary in, 
 200; Australian ballot in, 212; legislative 
 organization in, 242 n; limitation of 
 judicial veto in, 377 n; working of con- 
 stitutional referendum in, 410; economy 
 and efficiency commission in, 472. 
 
 Mississippi, negro disfranchisement in, 82, 
 83 ; popular election of judges in, 91 ; 
 constitutional referendum in, 96, 97 n ; con- 
 stitutional amendment in, 99 ; status of 
 constitutional convention in, 126; popu- 
 lar voting in, 144; unconstitutional laws 
 in, 374- 
 
 Missouri, alien suffrage in, 85 n; constitu- 
 tional conventions in, 96 ; advisory opin- 
 ions in, 118 n; limitation of legislative 
 powers in, 122; municipal home rule in, 
 131; woman suffrage campaign in, 152; 
 corrupt practices act of, 228; unconstitu- 
 tional laws in, 358; constitutional amend- 
 ments in, 403 ; working of referendum in, 
 422, 426. 
 
 Montana, woman suffrage in, 87 n; popular 
 voting in, 144; woman suffrage campaign 
 in, 152; referendum petitions in, 419. 
 
 Montesquieu, influence of, in American 
 colonies, a i ; on liberty, 24 ; on the divi- 
 sion of powers, 50. 
 
 Moore, B. F., The Supreme Court and Uncon- 
 stitutional Legislation, 357 n, 358 n, 360 n. 
 
 Morey, W. C., "The Genesis of a Written 
 Constitution" and "The First SUte 
 Constitutions," 54 
 
 Mugler . Kansas, 370. 
 
 Municipal home rule, development of, 130- 
 
 132 ; futher development of, 479. 
 Munn f. 111., 363. 
 Munro, W. B., The Government of American 
 
 Cities, 450 n; on the commission plan, 
 
 451, 452. 
 
 Nebraska, alien suffrage in, 85 n; woman 
 suffrage campaign in, 152; working of 
 constitutional referendum in, 410. 
 
 Nevada, woman suffrage in, 87 n; popular 
 voting in, 144. 
 
 New Hampshire, religious qualifications for 
 office in, 27 ; doctrine of non-resistance in, 
 33 ; adoption of original constitution in, 
 41 n; property qualifications for office- 
 holders in, 47 ; original division of powers 
 m > 47i S3 J constitutional referendum in, 
 58; special privileges for property in, 66; 
 negro suffrage in, 80 ; literacy test in, 85 ; 
 constitutional convention in, 93 ; execu- 
 tive veto in, in; advisory opinions in, 
 115, 118 n; majority elections in, 162 n; 
 legislative organization in, 242 n ; state 
 highways in, 304 ; working of convention 
 in, 399; procedure for constitutional 
 amendment in, 409. 
 
 New Jersey, religious inequality in, 28; 
 adoption of original constitution in, 40 n ; 
 woman suffrage in, 46; original division 
 of powers in, 54 ; extension of suffrage in, 
 80; annual elections in, 89; popular 
 election of governor in, oo; tenure of 
 judges in, 91, 351 ; party organization in, 
 102 strengthening of executive veto in, 
 112 limitation of legislative powers in, 
 119 registration of voters in, 217; 
 representative system in, 243, 244, 247 ; 
 organization of administration in, 319; 
 civil service reform in, 340 n; judicial 
 procedure in, 354 n; unconstitutional 
 laws in, 358; voting on constitutional 
 amendments in, 404 ; economy and effi- 
 ciency in, 472. 
 
 New Mexico, condition of admission to 
 Union of, 8; referendum petitions in, 419. 
 
 New Republic, The, quoted, 180 n. 
 
 New York, religious inequality in, 28 ; adop- 
 tion of original constitution in, 41 n; 
 division of powers in original constitution 
 of, 51-51; council of revision in, 58, 60; 
 special privileges for property in, 66; 
 character of original government of, 74 ; 
 extension of suffrage in, 80 ; negro suffrage 
 in, 80 ; reform of bicameral system in, 88 ; 
 annual elections in, 89 ; popular election 
 of judges id, 91; constitutional conven-
 
 494 
 
 INDEX 
 
 tions in, 96-97; party organization in, 
 101-102; regulation of primary elections 
 in, 104 ; system of checks and balances in, 
 no; veto of council of revision in, no, 
 in; strengthening of executive veto in, 
 112 ; development of judicial veto in, 115 ; 
 limitation of legislative powers in, 119, 
 121, 122; legislative referendum in, 133, 
 134; popular voting in, 144; registered 
 voters in, 146; effect of manhood suffrage 
 in, 151-152; electoral districts in, 159; 
 legal test of party affiliation in, 176; party 
 enrollment in, 177; Australian ballot 
 in, 207, 208, 212; registration of voters 
 in, 215; political use of saloons in, 218; 
 cost of campaign publicity in, 219 ; corrupt 
 practices act of, 227; legislative appor- 
 tionment in, 244, 247 ; volume of legisla- 
 tive in, 249 ; constitutional limitations on 
 legislative procedure in, 251 ; legislative 
 committee system in, 260-263 ; working 
 of bicameral system in, 265 ; administra- 
 tive agencies in, 287 ; educational organ- 
 ization in, 291; penal and charitable 
 administration in, 296; public health 
 administration in, 299 ; labor law adminis- 
 tration in, 301 ; agricultural administra- 
 tion in, 302; administration of public 
 works in, 303 ; regulation of public utili- 
 ties in, 307; tax reform in, 312; organiza- 
 tion of administration in, 318 ; educational 
 department in, 322 ; departmental organi- 
 zation in, 325; administrative reorganiza- 
 tion in, 326 n; executive veto in, 327, 329, 
 330; appropriations in, 333; state em- 
 ployees in, 338; civil service reform in, 
 339; tenure of judges in, 351 ; codification 
 foj 353 ; judicial veto in, 357 ; unconstitu- 
 tional laws in, 358; recall of judicial de- 
 cisions in, 376; use of judicial veto in, 
 377; organization of constitutional con- 
 vention in, 396 ; procedure in, 398 ; work- 
 ing of convention in, 399 ; voting on con- 
 stitutional amendments in, 404 ; economy 
 and efficiency commission in, 472. 
 
 New York Bureau of Municipal Research, 
 publications of, on state government, 473 n. 
 
 New York plan, for reform of state govern- 
 ment, 473-476; conclusion on, 479, 480. 
 
 Nomination, methods of, development of, 
 101103 ; further reform of, 198-201 ; con- 
 clusion on, 477. See Party, political. 
 
 Non-partisanship, tendency towards, 198- 
 201 ; under commission plan, 451 ; in 
 local government, 462. 
 
 North Carolina, admission of, to Union, 4 n ; 
 established church in, 27; adoption of 
 original constitution in, 41 n; original 
 
 right to vote in, 45 n; property qualifica- 
 tions for office holders in, 47 ; original 
 division of powers in, 54; special privi- 
 leges for property in, 66; extension of 
 suffrage in, 80; "Grandfather" clause in, 
 84; reform of bicameral system in, 88; 
 popular election of governor in, 90; 
 no executive veto in, 112; popular voting 
 in, 144; corporation commission in, 307. 
 
 Northern Securities case, 365. 
 
 Northwest Territory, exclusion of slavery 
 from, 26. 
 
 Oberholtzer, E. P., The Referendum in Am- 
 erica, 135 n. 
 
 Office, public, property qualifications for, in 
 original states, 47. 
 
 Ohio, racial discrimination in, 81 ; executive 
 veto in, in; effect of manhood suffrage 
 in, 151-152; electoral districts in, 161 n; 
 Australian ballot in, 207, 210 n, 212 ; char- 
 acter of offices filled by election in, 211 ; 
 representative system in, 243, 244; labor 
 law administration in, 301 ; agricultural 
 administration in, 303 ; state highways in, 
 304; tax inquisitor law in, 311 ; equaliza- 
 tion of assessments in, 314; civil service 
 reform in, 340 n; limitation of judicial 
 veto in, 377; constitutional convention 
 ini 397 ; non-partisan elections for, 397 ; 
 working of convention in, 399 ; voting on 
 constitutional amendments in, 406 ; work- 
 ing of constitutional referendum in, 410; 
 working of popular referendum in, 426. 
 
 Oklahoma, condition of admission to Union 
 of, 9; "Grandfather" clause in, 84; con- 
 stitutional conventions in, 95 n; length 
 of original constitution of, 124; popular 
 voting in, 144; legislative apportionment 
 in, 244 n; educational organization in, 
 292 ; bank deposit guarantee law in, 306 ; 
 working of constitutional referendum in, 
 410. 
 
 Opinions, advisory, by judges, in Massa- 
 chusetts, 53, 61; effect of, 118; working 
 of, 381. 
 
 Oregon, racial discrimination in, 81 ; woman 
 suffrage in, 87 n ; constitutional initiative 
 in, 99 ; direct primary in, 103 ; subsidy to 
 parties in, 104; limitation of legislative 
 powers in, 122; legislative referendum in, 
 133; initiative and referendum in, 136, 
 403, 404; the recall in, 137; popular vot- 
 ing in, 144; registered voters in, 146; 
 party enrollment in, 177; operation of 
 direct primary in, 188; Australian ballot 
 in, 212; corrupt practices act of, 231; 
 limitations on use of money in elections in,
 
 INDEX 
 
 495 
 
 236; official campaign bulletin in, 238, 
 422; social justice in, 379; voting on con- 
 stitutional amendments in, 405 ; working 
 of popular referendum in, 414 ; emergency 
 legislation in, 416; working of initiative 
 in, 431 ; results of initiative in, 443 ; 
 popular government in, 457. 
 Oregon plan for reform of state government, 
 
 465-477- 
 Orth, S. P., "Our State Legislatures," 250 n. 
 
 Paine, Thomas, on natural rights, 22 ; 
 Rights of Man, 30 n ; on republican form 
 of government, 39; on the division of 
 powers, 48; on bicameral system, 67. 
 
 Pardon, power of, in original states, 52, 54; 
 power of, use of, 392-393. 
 
 Partisanship, in elections, 177, 181, 213-215; 
 in the election of judges, 199, 351 ; in legis- 
 lative bodies, 263-264; in administration, 
 282, 336, 339; in constitutional conven- 
 tions, 309; in referendum elections, 411; 
 justification of, 460-462 ; conclusion on, 
 462-463. 
 
 Party, political, organization of, 101-103 ; 
 legal regulation of, 103-104; growth of 
 power of, 137-139; legal definitions of, 
 165-167; organization of, 167-173; affi- 
 liation, tests of, 173-176; enrolment, 
 figures of, 177; machine, 184-186; organ- 
 ization, further reform of, 202-204; sys- 
 tem, development of, 09-101 ; system, 
 criticism of, 208-209. 
 
 Pennsylvania, emancipation of slaves in, 26 ; 
 religious toleration in, 27; adoption of 
 original constitution in, 40 ; original right 
 to vote in, 44, 45; original division of 
 powers in, 56; council of censors in, 57; 
 unicameral legislature in, 66; character 
 of original government of, 73; reform of 
 original constitution of, 75 ; abolition of 
 council of censors in, 76; popular election 
 of governor in, 89; popular election of 
 judges in, 91 ; constitutional convention 
 in, 93 ; party organization in, 102 ; work- 
 ing of legislative supremacy in, 106; 
 executive veto in, 1 1 1 ; strengthening of 
 executive veto in, 112; limitation of legis- 
 lative powers in, 119; status of consti- 
 tutional convention in, 128; popular 
 voting in, 144; effect of property quali- 
 fication in, 151-152 ; volume of legislation 
 in, 249 ; state constabulary in, 289 ; 
 public health administration in, 299; 
 labor law administration in, 301 ; agri- 
 cultural administration in, 303; tax 
 reform in, 313 ; departmental organization 
 in, 325; executive veto in, 327, 329; un- 
 
 constitutional laws in, 358; organization 
 of constitutional convention in, 396; 
 limited voting in, 456; economy and effi- 
 ciency commission in, 472. 
 
 People v. Marx, 371. 
 
 People's Power League, introductory letter 
 of, 466. 
 
 Petitions, popular, and the referendum, 418- 
 421. 
 
 Plato, influence of, in American colonies, 21. 
 
 Platt, Thomas C., on patronage, 337, 338; on 
 non-partisanship, 461-462. 
 
 Polybius, influence of in American colonies, 
 21 ; theory of government of, 67. 
 
 Popular elections. See Elections, popular. 
 
 Pound, Roscoe, "Organization of Courts," 
 347 n, 350 ; "Liberty of Contract," 
 368 n. 
 
 Powell v. Pa., 371. 
 
 Powell, T. R., "Conclusiveness of Admin- 
 istrative Determinations in the Federal 
 Government," 383 n. 
 
 Powers, distribution of, by federal constitu- 
 tion, 7-1 1 ; division of, doctrine of, 47- 
 5ii 477> m original states, 51-56, 69-70, 
 73-74, 106, 109-110, under Socialist plan, 
 457-458, under Oregon and New York 
 plans, 471-472, 475-476, conclusion on, 
 478; state, under federal constitution, 
 12-17. 
 
 Preferential voting, 201 ; under Oregon plan, 
 465, 467 ; conclusion on, 478. 
 
 Primary, legal regulation of, 103-104 ; direct, 
 development of, 103, working of, 188-192 ; 
 effect of, on party organization, 193-195, 
 other effects of, 196-198; non-partisan, 
 198-200; reform of, 201-204; conclusion 
 on, 478. 
 
 Principles of government, in original states, 
 summary of, 70-72. 
 
 Procedure, legislative, methods of, 248-251, 
 working of, 261-263 ; judicial, 352-355. 
 
 Property, special privileges for, in original 
 states, 65-68. 
 
 Proportional representation, in Illinois, 138; 
 proposed by Socialists, 455 ; history of, in 
 America, 456; arguments for, 458-459; 
 criticism of, 450-464 ; under Oregon plan, 
 465, 467, 475, 477. 
 
 Public opinion, power of, 34. 
 
 Public opinion law, adoption of, 135 ; work- 
 ing of, 444. 
 
 Quay, Matthew S., on party finance, 234. 
 
 Rappard, W. E., "The Initiative, Referen- 
 dum, and Recall in Switzerland," 136 n. 
 
 Recall, development of, 136-137, 139; work- 
 ing of, 343-344; of judges, 375; of
 
 496 
 
 INDEX 
 
 judicial decisions, 375-376; under com- 
 mission plan, 450; under Socialist plan, 
 455 ; under Oregon plan, 465 ; conclusion 
 on, 476. 
 
 Reeves, History of English Law, 30 n. 
 
 Referendum, constitutional, in original states, 
 58-60, development of, 95-99, use of, 402- 
 403, 404-407, working of, 408-411, con- 
 clusion on, 415, 424-428; legislative, de- 
 velopment of, 132-135 ; popular, definition 
 of, 120-130, use of, 403, 404, working of, 
 412-415, improvement of, 415-424, conclu- 
 sion on, 424-428, 457, 476, 477- 
 
 Registration, requirement of, 87 ; results of, 
 on electorate, 146-150; methods of, 215- 
 317. 
 
 Reinsch, P. S., Readings on American State 
 Government, 250 n, 275 , 277 n; American 
 Legislatures and Legislative Methods, 255 n, 
 330 n. 
 
 Religion, public care of, in original states, 
 27-28. 
 
 Representation, proportional. See Propor- 
 tional representation. 
 
 Reprieves, power of, use of, 392-393. 
 
 Republic, definition of, 36-39; function of 
 jury in, 71-72. 
 
 Revenues, state, 310-315. 
 
 Revolution, right of, 31-33. 
 
 Rhode Island, admission of, to Union, 4 n; 
 religious toleration in, 27; adoption of 
 original constitution, in, 41 ; original divi- 
 sion of powers in, 53, 54 ; recall of judges 
 in, 61 ; character of original government 
 of, 74 ; extension of suffrage in, 80 ; con- 
 stitutional convention in, 93, 94, 98; 
 advisory opinions in, 118 n; legislative 
 referendum in, 133; organization of 
 Republican party in, 174; legislative 
 apportionment in, 247 ; executive veto 
 in, 327 ; procedure for constitutional 
 amendment in, 409. 
 
 Rights, natural, doctrine of, 22-24; civil, 
 reservation of, to people, 42-44, 70. 
 
 Roosevelt, Theodore, election of, 181 ; 
 Autobiography, 278 ; on invisible gov- 
 ernment, 337; on spoils system, 339; on 
 patronage, 341 ; on recall of judicial deci- 
 sions, 375-376. 
 
 Root, Elihu, on the treaty-making power, 14 ; 
 on powers of constitutional convention, 
 128 ; on invisible government, 186-187; 
 on legislative procedure, 261. 
 
 Rousseau, influence of, in American colonies, 
 21. 
 
 Russell, Governor, on the lobby, 274-276. 
 
 Secretary of state, duties of, 316. 
 
 Short ballot, need for, 900, 201, 903, 210 n, 
 2ii n, 212-213; under commission plan, 
 452; under Oregon plan, 466; under 
 New York plan, 474; conclusion on, 477. 
 
 Sidney, influence of, in American colonies, 21. 
 
 Slaughter-house cases, 361. 
 
 Slavery, attitude toward, in original states, 
 35. 
 
 Smith, Adam, influence of, in America, 348. 
 
 Smith, Alfred E., on legislative procedure, 
 261. 
 
 Smith, J. A., The Spirit of American Govern- 
 ment, 55 n. 
 
 Smyth v. Ames, 364. 
 
 Socialist Party, organization of, 172-173; 
 test of party affiliation of, 175; plan for 
 reform of state government of, 455-464. 
 
 Socialist Labor Party, on reform of govern- 
 ment, 455. 
 
 South Carolina, established church in, 37; 
 adoption of original constitution in, 40 n, 
 41 ; property qualifications for office 
 holders in, 47 ; original division of powers 
 in, 54 ; special privileges for property in, 
 66, 68 ; reform of bicameral system in, 88 ; 
 tenure of judges in, 91 ; constitutional 
 referendum in, 97 n ; constitutional amend- 
 ment in, 98, 99 ; popular voting in, 144 ; 
 party organization in, 170; organization 
 of Democratic party in, 174; operation of 
 direct primary in, 189; gerrymander in, 
 246 ; illiteracy in, 290. 
 
 South Dakota, alien suffrage in, 85 n; 
 advisory opinions in, 118 n ; initiative and 
 referendum in, 136; working of popular 
 referendum in, 414 ; emergency legislation 
 in, 416, 417. 
 
 Sovereignty, national, meaning of, 4, 7 ; 
 popular, 28-30. 
 
 Speakership, power of, 252253, 259, 260-261. 
 
 Spoils system, 282, 284, 336, 339. 
 
 Standard Oil case, 365. 
 
 State, definition of, 3. 
 
 States, new, admission of, 8 ; as instruments 
 of national government, 9 ; obligations of, 
 to one another, 10 ; obligations of national 
 government to, j i ; powers of, under 
 federal constitution, 12-17; importance 
 of, 17-18; original types of government 
 in, 73- 
 
 Steffens, Lincoln, The Shame of the Cities, 
 272 n. 
 
 Straus, Oscar S., Origin of the Republican 
 Form of Government in the United States, 
 21 n. 
 
 Suffrage, electoral, in original states, 44-46, 
 73; present qualifications for, 87; effect 
 of, on character of government, 150-152;
 
 INDEX 
 
 497 
 
 qualifications for, theory of, 155-158; 
 alien, 83 ; manhood, 70-81 ; negro, 80-82 ; 
 disfranchisement of negroes in spite of, 
 145, 147-148; woman, 37, 46, 85-87, 
 effect of, on electorate, 144-145, on char- 
 acter of government, 152-154, present 
 status of, 456. 
 
 Sulzer, Governor, impeachment of, 343. 
 
 Sumner, Helen L., on equal suffrage in 
 Colorado, 154. 
 
 Switzerland, initiative, referendum, and 
 recall in, 136; constitutional convention 
 in, 400; proportional representation in, 
 456. 
 
 Taft, W. H., "Recent Criticisms of the 
 Federal Judiciary," 378 n; on economy 
 and efficiency, 472. 
 
 Tammany, political influence of, 236. 
 
 Taxation, administration of, 310-315, 323. 
 
 Tennessee, doctrine of non-resistance in, 33 ; 
 manhood suffrage in, 80 ; popular election 
 of governor in, go ; executive veto in, 1 1 1 ; 
 unconstitutional laws in, 358. 
 
 Texas, admission of, to Union, 4 n; alien 
 suffrage in, 85 n. 
 
 Thayer, J. B., Cases on Constitutional Law, 
 44 n; "The Origin and Scope of the 
 American Doctrine of Constitutional 
 Law," 63 n; Legal Essays, 118 n. 
 
 Tiedeman, G. C., The Unwritten Constitution 
 of the United States, 63 n, 71 . 
 
 Tocqueville, de, on trial by jury, 72, 354; 
 on the party system, 100; Democracy in 
 America, 116 , 118 n; on American 
 parties, 208; on judicial control of ad- 
 ministration, 283, 284. 
 
 Toleration, religious, in American colonies, 27. 
 
 Treasurer, state, duties of, 316. 
 
 Tucker, St. G., Commentaries on Blackstone, 
 72 n. 
 
 Tweed, "Boss," on conduct of elections, 213. 
 
 Unicameral legislature, in original states, 66 ; 
 
 working of, 75 ; abandonment of, 88-89 ; 
 
 proposals for, 400, 453, 455, 466, 474; 
 
 conclusion on, 478. 
 Union, nature of, 4-6. 
 U'Ren, W. S., on the commission plan, 453 ; 
 
 on Oregon plan, 465. 
 Utah, polygamy in, 9; woman suffrage in, 
 
 87 n; popular voting in, 144. 
 
 Vermont, admission of, to Union, 4 n; 
 emancipation of slaves in, 26; original 
 right to vote in, 45 ; council of censors in, 
 58 ; unicameral legislature in, 66 ; charac- 
 ter of original government of, 73; aboli- 
 
 tion of council of censors in, 77 ; manhood 
 suffrage in, 80; listing of voters in, 215; 
 legislative organization in, 242 n, 244; 
 public health administration in, 209 ; 
 procedure for constitutional amendment 
 in, 409. 
 
 Veto, executive, in original states, 52, 55, 
 development of, 110-114, present use of, 
 327-330, conclusion on, 457, 475, 479; 
 judicial, origin of, 62-63, development of, 
 114116, exercise of, by jury, 116-118, 
 sources of, 355-356, use of, 356-358, effect 
 of, 350-360, 362-367, criticism of, 368- 
 372, on account of defects in legislative 
 procedure, 372-374, reform of, 374~377; 
 conclusion on, 380, 391, 457, 476; pop- 
 ular. See Referendum. 
 
 Virginia, attitude toward slavery in. at 
 Revolution, 26; established church in, 27; 
 abolition of religious tests in, 27 ; adop- 
 tion of original constitution in, 40; orig- 
 inal right to vote in, 44 ; original division of 
 powers in, 54 ; original legislative suprem- 
 acy in, 73 ; extension of suffrage in, 80 ; 
 popular election of governor in, oo; 
 popular election of judges in, 91 ; con- 
 stitutional conventions in, 96; constitu- 
 tional referendum in, 97 n; working of 
 legislative supremacy in, 107; length of 
 original constitution of, 124; status of 
 constitutional convention in, 128; regis- 
 tered voters in, 147; operation of direct 
 primary in, 189; corporation commission 
 in, 307. 
 
 Vote, right to. See Suffrage. 
 
 Wallas, Graham, Human Nature in Politics, 
 150 n, 220 n; on partisanship, 463. 
 
 Walsh, C. M., The Political Science of John 
 Adams, 38 n, 65 n, 68 n. 
 
 Washington, literacy test in, 85 n; woman 
 suffrage in, 87 n ; strengthening of execu- 
 tive veto in, 113; popular voting in, 144. 
 
 Washington, on the party system, 99. 
 
 West Virginia, executive veto in, 112. 
 
 Weyl, W. E., The New Democracy, 286 n. 
 
 White, W. A., The Old Order Changeth, 286 n. 
 
 Whitlock, Brand, On the Enforcement of 
 Law in Cities, 35 n. 
 
 Wigmore, J. H., The Australian Ballot, 208 n. 
 
 Wilson, James, on republican form of govern- 
 ment, 39 n. 
 
 Wilson, Woodrow, election of, 181 ; on legis- 
 lative committees, 258-259, 263 ; on 
 legislative procedure, 266; on cabinet 
 system, 469. 
 
 Wisconsin, direct primary in, 103 ; official 
 campaign bulletin in, 104, 238; operation 
 
 2K
 
 498 
 
 INDEX 
 
 of direct primary in, 188; corrupt prac- 
 tices act of, 231-232; anti-lobby act of, 
 276; labor law administration in, 301; 
 state life insurance in, 306; regulation of 
 public utilities in, 307 ; tax reform in, 
 312-313; state tax commission in, 315, 
 321 ; state industrial commission in, 324; 
 administrative reorganization in, 326 n; 
 appropriations in, 331 ; civil service re- 
 form in, 340 n; proposed procedure for 
 direct legislation in, 438, 443. 
 
 Wise, John, Vindication of the Government 
 of New England Churches, 21 n. 
 
 Woolsey, Theodore, Political Science, 150 n. 
 
 Works, public, administration of, 303-304. 
 
 Wyman, Bruce, "Jurisdictional Limitations 
 upon Commission Action, " 388 n. 
 
 Wynehamer v. The People, 361. 
 
 Wyoming, literacy test in, 85 n; woman 
 suffrage in, 86-87; limitation of legisla- 
 tive powers in, 122; popular voting in, 
 144- 
 
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 1963 
 
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