1877]

INAUGURATION OF R. B. HAYES

481

4,033,950. Peter Cooper received 81,740, and Green C. Smith, 9,522. The Senate was Republican, the House Democratic. Great excitement prevailed all over the country. Probably in any other, civil war would have broken out. The 4th of March fell on Sunday. The new President took the oath, privately at the White House, on the 4th, in the presence of General Grant and Hamilton Fish, Secretary of State. On the 5th he took it again, at the public inauguration. It was administered by the chief justice of the Supreme Court, Morrison R. Waite.

CHAPTER XXXV

THE STATES AFTER THE CIVIL WAR

1865-1900

The eighteenth-century state constitutions, and those made down to the opening of the war, were mostly silent concerning the relation of the states to the national government. This silence was broken after 1860. All the southern constitutions, formed during reconstruction times, and later, have acknowledged the paramount authority of the national government and the paramount allegiance of every citizen to it.* The right to secede, which never was claimed under a state constitution, was now distinctly disclaimed by those of the South, and the common language employed was that the state should "ever remain a member of the American Union."

The ordinances of secession were repudiated, and all debts and liabilities incurred in aid of the rebellion were declared void. During the war, the legislatures of the insurrectionary states assembled under their existing constitutions, which by amendment were made to recognize the authority of the Southern Confederacy. They enacted many laws, of which all that were solely to promote the good order and well-being of society, and which were made by a lawfully organized government, were later deemed valid, and were recognized in the southern constitutions. adopted in 1865 and 1868. The restoration constitutions of 1865-66 excluded the African race from the basis of representation, and largely for that reason were rejected by Congress. Those adopted in 1867 and 1868, the reconstruction constitutions, included the negroes in the basis of representation, recognized them as citizens, and gave them

* There is one exception, the South Carolina constitution of 1895. † Reynolds vs. Taylor, 43 Alabama, 420; Wallace vs. The State, 33 Texas, 445.

1863-1900]

NEW PROVISIONS

483

the right to vote and to hold office. These constitutions uniformly excluded from office all persons who were excluded by the reconstruction acts, and their administrative provisions reflected the spirit and purpose of those acts.

The provisions common to the bills of rights adopted in the eighteenth century, and down to 1860, were repeated in the constitutions adopted later. There were, however, some new and highly significant clauses added. Maryland, in the eighteenth century, had pronounced against monopolies, and by 1870 seven states had followed her lead.* Religious tests for office were uniformly forbidden, and a liberal provision was made for the administration of oaths in such manner as would be most binding upon the conscience. Religious freedom was everywhere emphasized. An apprehension that gifts for religious purposes might endanger the state led Missouri to require the prior consent of the legislature. Appropriations of public money for sectarian purposes were forbidden. Aliens were freely declared capable of enjoying the property rights of natives, but the privilege was not granted on the Pacific coast to Chinamen. Slavery was prohibited and the equal rights of the colored race carefully defined.

Some provisions of a new type were introduced into the bills of rights, forbidding, or restricting, the sale of intoxicating liquors, regulating public health and quarantine, and protecting the interests of new industrial groups, such as minors and married women, the latter, after 1850, being by law gradually suffered to exercise the rights of property as single women. The rapid settlement of the West led to the insertion of a provision protecting the homestead and exempting it from all claims of debt, the ostensible purpose being the protection of the widows and children. Exemption laws had run a course of great popularity throughout the western states, and their substance was incorporated in the constitutions of most of them. Not infrequently the amount of exemption was explicitly stated in the constitution.

*Nevada, California, Illinois, North Carolina, Vermont, Tennessee and Texas. Michigan, Texas, and West Virginia.

The three functions of government familiar to our earlier constitutions were now increased by the gradual recognition of a fourth, the administrative, which in some of the constitutions of the northwestern states, admitted in 1889 and 1890, was elaborated into an article.

The great change in the basis of representation was the obliteration of all discrimination against the black race; and applied equally North and South. The single-district system, introduced by Michigan in 1850, was received with widespread approval, and in consequence the problem of the apportionment of representation was simplified more satisfactorily than in earlier times. The means of its solution were improved by the uniform provision for a state census, which usually occurred five years after the census taken by the United States.*

The qualifications for membership in the lower house were less restrictive than in earlier times. The candidate was required to be an elector, which signified that he was a citizen of the United States, and of the state in which he resided. The qualification of age remained unchanged. A longer period of residence, which was usually from five to seven years, instead of one or two, and greater age, as twenty-five or thirty years, instead of twenty-one, were required of the candidate for the upper house. Long before the war, the people realized the evils of over-legislation, and began to check them by changing the sessions of the legislature from annual to biennial. The change was effected everywhere in the country, except in New England, and before the century closed the usual term of a member of the lower house was two years, and of the upper, four. The annual salaries of senators and members of the house were usually the same.

A further effort of the people to prevent legislative evils was the gradual adoption of a time limit for the regular sessions. This was effected by an explicit enumeration of the number of days beyond which the legislature should receive no pay for its services, and a similar limitation was prescribed for extra sessions. In most of the states the colonial term "general assembly" continued to be the *I. e., 1865, 1875, 1885, etc.

1889-1890]

THE LEGISLATIVE

485

official designation of the state legislature as a bicameral body. With a more perfect system of apportionment, the people gradually limited the membership of each house. The ratio of the house and of the senate was usually two or three to one. Few state senates consisted of more than fifty members, and the usual number was about thirty-five. The principle regulating the membership was the same as that followed by Congress, namely, to secure a working legislative body, neither too large nor too small.

A state, in its first constitution, usually prescribes the number of members for each house, but leaves the later membership to be regulated by population. In no state was the pay of members great. It seldom exceeded three dollars a day, and in some states was limited to from one hundred to five hundred dollars for the session. Extra sessions were discouraged, and substantially, by the provision that the pay of members should be only one-half as great as at regular sessions. Mileage was usually fixed by law, and rarely exceeded ten cents per mile.

The article on the legislative department was the first to become long and elaborate. This was due to the incorporation of the substance of many laws, and of rules of the two houses; thus, the clauses against bribery were taken from the statutes on the subject, and the rules of procedure from the house and senate manuals. All the constitutions in their legislative provisions reflected the national instrument, and new states commonly used its language. The provision against special legislation, and for the purpose of compelling the general assembly to enact laws, multiplied on every hand. The war on special legislation raged all through the last forty years of the century, and culminated in a multitude of provisions on the subject in the constitutions adopted in the Northwest in 1889 and 1890. The purpose was obvious; to safeguard the state treasury, to secure uniform and general legislation, and to avoid the costly confusion into which the states, during their earlier history, had been thrown by the enactment of innumerable private acts and special laws. A further means of safety forbade the introduction of bills into either house during the last few days of the session.