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THE JUDICIARY.

tained their validity. Taken as a whole, the decisions of this period constitute a body of law unique as regards the questions raised, and of farreaching importance as establishing the Constitutional power of the Government in directions and for purposes scarcely imagined before. History will not fail to regard this as a period in the life of the Federal judiciary not less interesting and important than any that had preceded it. With the accession of Edward D. White to the Chief-Justiceship in 1910 and the change in the personnel of nearly one-half the Court in that and the preceding year, the Court in effect entered upon a new career, in which the indications were that its wisdom would be called into exercise more than ever before upon questions relating to the commercial and industrial interests of the people.

In its later, no less than in its earlier, career the Supreme Court has proved one of the most efficient and most admirable arms of the Government.

One of its warmest admirers has written of it in terms profoundly just, though unduly enthusiastic:

"The establishment of the Supreme Court of the United States was the crowning marvel of the wonders wrought by the statesmanship of America. In truth the creation of the Supreme Court with its appellate powers was the greatest conception of the Constitution. It embodied the loftiest ideas of moral and legal power, and although its prototype existed in the superior courts of the various States, yet the majestic proportions to which the structure was carried became sublime. No product of government either here or elsewhere has ever approached it in grandeur. Within its appropriate sphere it

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is absolute in authority. From its mandates there is no appeal. Its decree is law. In dig

nity and moral influence it outranks all other

judicial tribunals of the world. No court of either ancient or modern times was ever invested with such high prerogatives. Secure in the tenure of the judges from the influences of politics and the violence of prejudice and passion, it presents an example of judicial independence unattainable in any of the States and far beyond that of the highest court in England. No institution of purely human contrivance presents so many features calculated to inspire both veneration and awe." *

From its institution in 1790 to 1912 the Supreme Court had only nine Chief Justices, all but two of whom (John Jay and Oliver Ellsworth) died in office. Prior to the incumbency of Chief Justice White (appointed in 1910) the average term of service was little more than 14 years. Prior to 1912 there had been 59 Associate Justices, whose average term of service was about 17 years. Those longest on the bench were Chief Justice Marshall, Justice Joseph Story, Justice Stephen J. Field, and Justice John M. Harlan, each serving 34

years.

While the Supreme Court was created by the Constitution, the creation of the inferior courts was left to Congress. There was even more difference over these courts by the framers of the Constitution than there was respecting the higher court. There was a strong demand for leaving to the State courts jurisdiction in first instance over Federal cases as well as those pertaining to the State.

* Hampton L. Carson, The Supreme Court of the United States: Its History, pp. 6-8.

It was feared by many that the inferior Federal courts would in time destroy the power of the State judiciaries. Eventually Congress came to exercise its power of creating these courts and none of the disastrous consequences which had been predicted were ever experienced.

Circuit courts were established and their number was gradually increased as the country grew, until at the opening of the Twentieth century they were nine in number, the jurisdiction of each circuit covering several States. The circuit courts are inferior in power only to the Supreme Court. They have jurisdiction in all cases where the United States is party to the litigation, and exclusive jurisdiction in capital cases against the Federal Government. There are 29 circuit judges, no circuit having less than two. By act of 1891 a Supreme Court Justice and the judges of a circuit were designated a court of appeals for that circuit. Other inferior Federal courts were established. The most important and the oldest of these are the district courts, inferior to the circuit courts. Before them is brought admiralty and bankruptcy business and they have jurisdiction of all crimes, not capital, of which the United States takes cognizance. In each State there is one district court and in several of the larger States there are two or more.

A

court of claims, consisting of one chief justice and four associate judges to hear and determine claims against the United States, was established and organized in 1855. By act of Congress in 1891 a court of private land claims was established to determine land claims and grants under the United States law. This court expired in 1903. There have also been other

special courts of limited duration, such as the court on the Spanish War claims. The judiciary system of the District of Columbia is Federal, constituted by Congress and consisting of a Supreme Court with powers corresponding to those of the United States District Courts. By act of Congress, June 18, 1910, a commerce court of five judges was created to have the same jurisdiction possessed by circuit courts over cases for the enforcement of orders of the Interstate Commerce Commission other than for the payment of money; over disputes arising from the action of the Interstate Commerce Commission; etc.*

* Thomas M. Cooley, General Principles of Constitutional Law in the United States of America (Boston, 1880); A. P. C. Griffin, List of References on Federal Control of Commerce and Corporations (Library of Congress, Washington, 1903); W. H. Barnes, The United States Supreme Court (Washington, 1877); H. W. Scott, Distinguished American Lawyers (New York, 1891); J. W. Schuckers, Life and Public Services of Salmon P. Chase (New York, 1874); Albert B. Hart, Salmon P. Chase (American Statesmen series, Boston, 1892).

STATE CONSTITUTIONS.

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CHAPTER IV.

1865-1912.

THE FORMATION AND ADOPTION OF STATE CONSTITUTIONS.'

State constitutions adopted since the Civil War
Methods of enacting and amending constitutions

Thirty-six States were admitted to the Union up to 1865 and twelve States after 1865. The latter are as follows: 1866. Nebraska. Enabling act of Congress 1864;

Congressional act for admission and
President's proclamation announcing ad-
mission, both 1867. Later constitution,
1875.

1876. Colorado.

Enabling act of Congress, 1875, and President's proclamation announcing admission, 1876.

1889. Idaho. Enabling act of Congress 1890. 1889. Montana. Enabling act of Congress and President's proclamation announcing admission, both 1889.

1889. North Dakota. Enabling act of Congress and President's proclamation of admis sion, both 1889.

1889. South Dakota. Same as North Dakota. 1889. Washington. Same as North Dakota. 1889. Wyoming. Congressional act for admission, 1890.

1895. Utah. Enabling act of Congress 1894, and President's proclamation of admission, 1896.

1907. Oklahoma. Enabling act of Congress 1906,
and President's proclamation of admis
sion, 1907.

1910. Arizona. Enabling act of Congress 1910.
Constitution adopted in 1910 but not ap-
proved by the President and Congress.
Joint resolution of Congress August 21,
1911, granting statehood conditional
upon elimination of objectionable pro-
visions from State constitutions.
1910. New Mexico. Same as Arizona.

*

Prepared for this History by William George Jordan, formerly Secretary of the Governors' Conference.

*

Characteristics and tendencies in newer constitutions
Ease and frequency of change.

The constitutions of this period reveal a tendency to strengthen the powers of the executive and the judiciary; the governors and judges serve for a longer term and the governors have the limited veto power in all States save North Carolina. The legislatures during this period have important limitations put upon their powers particularly as affecting special legislation, internal improvements, State indebtedness, and the length of the legislative session. During this period, too, the field of administrative activity has been enlarged as required by the modern industrial State. The regulation of corporations, the government of cities, the conditions in factories and the hours of labor, public health, public schools, charitable and reformatory institutions, etc., all are considered in the constitutions of this period.

One of the most noticeable features of the newer constitutions is their great similarity. They have an endless variety of detail, but they agree in essentials. Whatever tendencies have been at work, the influence has been the same throughout the Union.

The constitutions are all longer, the old topics being treated at far greater length than in the first half of the Nineteenth century and the latter part of the Eighteenth century. Education, railroads, private law, State and municipal indebtedness are among the topics which were either untouched or very indifferently mentioned in the early constitutions. The later provisions regarding the judiciary, and particularly those restricting the power of the legislature, have grown far more minute in recent years. This is attributed to the frequent abuses of power and the waning respect for legislative authority. "The time might almost seem to have come," observes Mr. Bryce, "for prescribing that, like Congress, they [the legislatures] should be entitled to legislate on certain enumerated subjects only, and be always required to establish affirmatively their competence to deal with any given topic."

Perhaps the one thing most noticeable in the development of the State constitutions has been the earlier exalting of the powers of the legislature and their subsequent diminution by restrictive clauses inserted in the fundamental law, extending the direct interference of the people through their representatives and changing the constitution itself from a short and simple document to a long and complex one. Just how far this will go in coming years it is impossible to foresee. It is but natural, after all, that the checks and balances of government

should be brought into the fundamental law and there made to represent the guiding principles both of our National life and personal relations, just as the Ten Commandments of old stood by themselves as a fundamental digest or code of laws embracing the many other provisions, in the ancient scheme of government; for the State constitution of to-day stands in relation to the statute law as the Ten Commandments stood in relation to the other laws of Moses which follow the Twentieth Chapter of Exodus.

A slight reaction might be noted after the Civil War, up to which time. there had been a strong Democratic tendency in all American institutions. The reaction was not against popular sovereignty, which had grown stronger than ever, it was as already stated in favor of strengthening the executive and judicial departments. Undoubtedly the most notable development since 1865 has been the narrowing legislative activity and the checking of its powers by a variety of complicated restrictions. Mr. Bryce, a commentator who is read to-day with as much respect and interest for his clear observation and illuminating suggestion as when he first published The American Commonwealth, has this to say regarding this most notable feature in the development of the State constitutions: "It may seem that to take powers away from the legislature is to give them to the people, and is therefore another step towards pure democracy. But in

STATE CONSTITUTIONS.

America this is not so, because a legislature always yields to any popular clamor, however transient, while direct legislation by the people involves some delay. Such provisions are therefore conservative in their results, and are really checks imposed by the citizens upon themselves."

Since 1789 the States which have been admitted to the Union have previously drawn up their constitutions and submitted them to Congress for approval; or else Congress has passed an act empowering the people of the territory seeking statehood to hold a convention and enact a constitution, and the constitution so enacted has received Congressional endorsement. A state constitution must contain no provisions contrary to the declarations of the Federal Constitution, and none contrary to the decisions of the United States Supreme Court interpreting the Federal Constitution, or opposed to any treaty authorized under the Federal Constitution.

State Constitutions are amended in three different ways in a manner prescribed in the constitutions themselves. Many of them provide for amendment through a constitutional convention to which delegates are nominated and elected. Another method, prescribed in all the States except New Hampshire, is by action of the legislature which is afterward ratified by popular vote. Finally, we now have the method recently adopted in several of the States that of the popular initiative and referendum.

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In

When a new constitution is to take the place of an existing one, the constitutional convention is called for the purpose of drafting and discussing each new provision proposed, and the form of the whole instrument. several States the existing constitutions provide that such conventions shall be held at regular intervals; and in a number of other States the constitutions require that the people shall vote every seven, ten, sixteen, or twenty years whether a constitutional convention shall be called; and in still other States the legislature is given the power to decide in favor of such convention being called (a two-thirds vote of the members of both houses being generally necessary to pass such a resolution).

The method is to give notice by publication in the newspapers. Then a vote of the people is taken on the question whether a convention shall be called, and the result of this vote determines the action of the legislature, thus: If there is a majority vote in favor of the convention, the time and place of holding it is decided by the legislature, which also arranged for the election of delegates. It is the common practice now to submit the new constitution which the convention has drafted to the vote of the people for their endorsement or rejection. Down to 1887, 157 constitutional conventions had met, 113 of which, following the lead of Massachusetts (1780), submitted their work to the people.

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