The American Commonwealth. Viscount James Bryce

Чтение книги онлайн.

СКАЧАТЬ religious purpose (except of a piece of land not exceeding five acres for a place of worship, parsonage, or burying-ground) to be void unless sanctioned by the legislature.

      Montana and Idaho declare the use of lands for constructing reservoirs, watercourses, or ways for the purposes of mining or irrigation, to be a public use, subject to state regulation.

      Oklahoma provides that “the right of the State to engage in any occupation or business for public purposes shall be be denied or prohibited” save that its agricultural enterprises are to be only “for scientific, educational or charitable purposes.”

      These instances, a few out of many, may suffice to show how remote from the common idea of a bill of rights, are some of the enactments which find a place under that heading. The constitution makers seem to have inserted here such doctrines or legal reforms as seemed to them matters of high import or of wide application, especially when they could find no suitable place for them elsewhere in the instrument.

      Of the articles of each state constitution which contain the frame of state government it will be more convenient to speak in the chapters which describe the mechanism and character of the governments and administrative systems of the several states. I pass on therefore to what have been classed as the miscellaneous provisions. These are of great interest as revealing the spirit and tendencies of popular government in America, the economic and social condition of the country, the mischiefs that have arisen, the remedies applied to these mischiefs, the ideas and beliefs of the people in matters of legislation.

      Among such provisions we find a great deal of matter which is in no distinctive sense constitutional law, but general law, e.g., administrative law, the law of judicial procedure, the ordinary private law of family, inheritance, contract, and so forth; matter therefore which seems out of place in a constitution because fit to be dealt with in ordinary statutes. We find minute provisions regarding the management and liabilities of banking companies, of railways, or of corporations generally; regulations as to the salaries of officials, the quorum of courts sitting in banco, the length of time for appealing, the method of changing the venue, the publication of judicial reports; detailed arrangements for school boards and school taxation (with rules regarding the separation of white and black children in schools), for a department of agriculture, a canal board, or a labour bureau; we find a prohibition of lotteries, of polygamy, of bribery, of lobbying, of the granting of liquor licenses, of usurious interest on money, an abolition of the distinction between sealed and unsealed instruments, a declaration of the extent of a mechanic’s lien for work done. We even find the method prescribed in which stationery and coals for the use of the legislature shall be contracted for, and provisions for fixing the rates which may be charged for the storage of corn in warehouses. The framers of these more recent constitutions have in fact neither wished nor cared to draw a line of distinction between what is proper for a constitution and what ought to be left to be dealt with by the state legislature. And, in the case of three-fourths at least of the states, no such distinction now, in fact, exists.

      How is this confusion to be explained? Four reasons may be suggested.

      The Americans, like the English, have no love for scientific arrangement. Although the constitutions have been drafted by lawyers, and sometimes by the best lawyers of each state, logical classification and discrimination have not been sought after.

      The people found the enactment of a new constitution a convenient opportunity for enunciating doctrines they valued and carrying through reforms they desired. It was a simpler and quicker method than waiting for legislative action, so, when there was a popular demand for the establishment of an institution, or for some legal change, this was shovelled into the new constitution and enacted accordingly.

      The peoples of the states have come to distrust their respective legislatures. Hence they desire not only to do a thing forthwith and in their own way rather than leave it to the chance of legislative action, but to narrow as far as they conveniently can (and sometimes farther) the sphere of the legislature.

      There is an unmistakable wish in the minds of the people to act directly rather than through their representatives in legislation. The same conscious relish for power which leads some democracies to make their representatives mere delegates, finds a further development in passing by the representatives, and setting the people itself to make and repeal laws.

      Those who have read the chapters describing the growth and expansion of the federal Constitution, will naturally ask how far the remarks there made apply to the constitutions of the several states.

      These instruments have less capacity for expansion, whether by interpretation or by usage, than the Constitution of the United States: first, because they are more easily, and therefore more frequently, amended or recast; secondly, because they are far longer, and go into much more minute detail. The federal Constitution is so brief and general that custom must fill up what it has left untouched, and judicial construction evolve the application of its terms to cases they do not expressly deal with. But the later state constitutions are so full and precise that they need little in the way of expansive construction, and leave comparatively little room for the action of custom.

      The rules of interpretation are in the main the same as those applied to the federal Constitution. One important difference must, however, be noted, springing from the different character of the two governments. The national government is an artificial creation, with no powers except those conferred by the instrument which created it. A state government is a natural growth, which prima facie possesses all the powers incident to any government whatever. Hence, if the question arises whether a state legislature can pass a law on a given subject, the presumption is that it can do so: and positive grounds must be adduced to prove that it cannot. It may be restrained by some inhibition either in the federal Constitution, or in the constitution of its own state. But such inhibition must be affirmatively shown to have been imposed, or, to put the same point in other words, a state constitution is held to be, not a document conferring defined and specified powers on the legislature, but one regulating and limiting that general authority which the representatives of the people enjoy ipso jure by their organization into a legislative body.

      “It has never been questioned that the American legislatures have the same unlimited power in regard to legislation which resides in the British Parliament, except where they are restrained by written Constitutions. That must be conceded to be a fundamental principle in the political organization of the American States. We cannot well comprehend how, upon principle, it could be otherwise. The people must, of course, possess all legislative power originally. They have committed this in the most general and unlimited manner to the several State legislatures, saving only such restrictions as are imposed by the Constitution of the United States or of the particular State in question.” ²⁴

      “The people, in framing the Constitution, committed to the legislature the whole law-making powers of the State which they did not expressly or impliedly withhold. Plenary power in the legislature, for all purposes of civil government, is the rule. A prohibition to exercise a particular power is an exception.” ²⁵

      It must not, however, be supposed from these dicta that even if the states were independent commonwealths, the federal government having disappeared, their legislatures would enjoy anything approaching the omnipotence of the British Parliament, “whose power and jurisdiction is,” says Sir Edward Coke, “so transcendent and absolute that it cannot be confined, either for persons or causes, within any bounds.” “All mischiefs and grievances,” adds Blackstone, “operations and remedies that transcend the ordinary course of the laws are within the reach of this extraordinary tribunal.” Parliament being absolutely sovereign, can command, or extinguish and swallow up the executive and the judiciary, appropriating to itself their functions. But in America, a legislature is a legislature and nothing more. The same instrument which creates it creates also the executive governor and the judges. They hold by a title as good as its own. If the legislature should pass a law depriving the СКАЧАТЬ