in the first place, the older states whose constitutions bear the impress of colonial times. In this group we may place Massachusetts, whose fundamental law of 1780 has not been reorganized; Connecticut, with a constitution that has not been subjected to a general revision since its establishment in 1818; Rhode Island, with the slightly amended constitution of 1842; New Hampshire, with the old fundamental law of 1792, slightly reconstructed in 1903.

In the second group may be placed the constitutions which may be said to belong to the generation just past, and in size, form, and general content stand midway between the New England constitutions and those of the most recent years: New York (1894), Pennsylvania (1873), Ohio (1851), Indiana (1851), Illinois (1870), Wisconsin (1848), Kentucky (1891), Minnesota (1857), Nebraska (1875), Missouri (1875), Iowa (1857), and Tennessee (1870).

In the third group may be placed the southern states, many of which Virginia (1902), South Carolina (1895), Alabama (1901), Mississippi (1890), and Louisiana (1898) have revised their constitutions within the last fifteen or twenty years.

In the fourth group may be placed the newest western constitutions, noted for their more or less radical departures from the precedents set by the older commonwealths: California (1879), with frequent alterations; Oregon (1857), embracing the important amendments of 1902, 1906, and 1908; Oklahoma (1907); and Michigan (1908).

The differences in the constitutions, however, are no index to the real differences in form of government, for nearly all of the newer and more bulky fundamental laws provide for institutions which have been set up in older states by legislative enactment. For example, there is no clause in the constitution of New York creating a public service commission, and yet New York has a commission with large powers over common carriers within each of the two districts into which the state is divided. On the other hand, the constitution of Oklahoma contains several pages of law creating the public service commission and defining its powers and activities. Moreover, in drafting new constitutions, the state conventions are quick to take advantage of a comparative study of the laws of other states. The members of the New York constitutional convention, for instance, had before them in tabu

lated form the provisions of the constitutions of every state in the Union, grouped according to subject-matter;' and this handy compendium of comparative constitutional law was evidently examined with considerable care, as the debates from day to day revealed. A study of the constitution of Oklahoma shows many clauses which have been taken almost word for word from the constitutions of other states.

A state constitution usually falls into six parts: (1) a bill of rights; (2) the sections providing the framework of government, central and local, and the fundamental limitations of each branch; (3) the sections dealing with state finances; (4) the clauses providing for the control of economic interests, such as railways, insurance, banking, and labor; (5) the clauses providing for education and social welfare generally; and lastly (6) the amendment clause.

I. Taking several of the state constitutions together, we find that a composite view of the bill of rights reveals two somewhat sharply defined parts. The older part contains those ancient and honorable limitations on behalf of private rights so famous in the constitutional history of England and the United States - indictment by grand jury; trial by jury; the free exercise of religious worship without discrimination or preference; the privilege of the writ of habeas corpus save in case of rebellion, invasion, or public danger; prohibition of excessive bail and fines and cruel and unusual punishments; compensation for private property when taken for public use; the right of every citizen to speak freely, write and publish his sentiments on all matters subject to responsibility for libellous publications; and the right peaceably to assemble and petition the government or any department thereof.1

By the side of these rights of ancient English origin, we find, in many of the recent state constitutions, a number of newer principles; such, for example, as are laid down in the constitution of Oklahoma. In that document, prosecution for felony and misdemeanor by information as well as by indictment is expressly sanctioned, but no one may be prosecuted by information for

1So also in Michigan in 1907.

2 See Readings, p. 144.

3 Compare, for example, the bill of rights of the Oklahoma constitution with that of the New York constitution.

* Drawn from Article I of the constitution of New York.

felony without having had a preliminary hearing before an examining magistrate or having waived such hearing. In county courts and courts not of record the petty jury consists of only six men; and in civil cases and in criminal cases involving crimes less than felony, three-quarters of the whole number of jurors may render a verdict. In other cases unanimity is required. In all criminal prosecutions for libel the truth of the matter alleged to be libellous may be given in evidence to the jury, and if it appears to the jury that the matter charged as libellous is true, or was written with a good motive or for justifiable ends, the party shall be aquitted a provision in behalf of liberty of speech and press which is to be found in the constitutions of more conservative states like New York.

While safeguarding private property by providing that it shall be taken for private use only under very strict limitations and for public use only when just compensation is given, the Oklahoma constitution declares that "the right of the state to engage in any occupation or business for public purposes shall not be denied nor prohibited, except that the state shall not engage in agriculture for other than educational and scientific purposes and for the support of its penal, charitable, and educational institutions. " It furthermore provides that municipal corporations may engage in any business or enterprise which may be carried on privately under a franchise from the municipality.' Perpetuities and monopolies are declared to be contrary to the genius of free government and forever prohibited.

Corporations are excluded from several privileges and immunities secured to natural persons, for the framers of Oklahoma's fundamental law have provided for unrestricted searches into the actual operations of corporations, by explicitly stating that their records, books, and files shall be at all times subject to the full visitorial and inquisitorial powers of the state, notwithstanding the rights secured to persons and to citizens. The ancient rule of law that a person is not required to give evidence tending

'In case a state should engage in business on such a large scale as to destroy the enterprises of private persons, would claims for compensation lie against it, or would the Oklahoma courts extend to the body politic that principle laid down by the English courts with reference to private corporations, namely, that damages are not recoverable for injury done in the ordinary course of competition? See Webb, Industrial Democracy (1902), p. xxix.

to incriminate himself when testifying against any other person or corporation is abrogated, but his substantial right is secured by the provision that he shall not be prosecuted or subjected to any penalty or forfeiture for or on account of anything concerning which he may testify or produce evidence.

The constitution of Oklahoma furthermore guarantees to its citizens complete immunity from martial law by declaring, "The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state." This subordination of military to civil authority is accompanied by a positive limitation on the power of the judiciary in the granting of injunctions. The legislature, it is declared, shall pass laws defining contempts and regulating proceedings and punishments in case of contempt; but every person accused of violating or disobeying an injunction out of the presence and hearing of the court is to be entitled to trial by jury to determine his guilt or innocence, and in no case shall penalty or punishment be imposed for contempt until the accused has had an opportunity to be heard.

In addition to these ancient and newer principles of civil liberty, there are to be found in several bills of rights curious provisions which belong rather to the sphere of political theory than to constitutional law, but are interesting nevertheless. The constitution of Lousiana, drafted in 1898, declares that "all government of right originates with the people, is founded on their will alone and is instituted solely for the good of the whole; its only legitimate end is to secure justice to all, preserve peace and promote the interest and happiness of the people." According to the constitution of Kentucky (1891), "absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority. All men when they form a social compact are equal; . . . all power is inherent in the people and all free governments are founded on their authority and instituted for their peace, safety, happiness, and the protection of property. For the advancement of these ends, they have at all times an inalienable and indefeasible right to alter, reform, or abolish their government in such manner as they may deem proper." The Massachusetts constitution solemnly announces: "It is the right as well as the duty of all men in society, publicly and at stated seasons to worship the Supreme Being, the great creator and the preserver of the universe." The inhab

itants of Vermont are warned by the eighteenth article of the declaration of rights "that frequent recurrence to fundamental principles and a firm adherence to justice, moderation, temperance, industry, and frugality are absolutely necessary to preserve the blessings of liberty and keep government free; the people ought, therefore, to pay particular attention to these points, in the choice of officers and representatives, and have a right in a legal way to exact a due and constant regard to them, from their legislators and magistrates, in making and executing such laws as are necessary for the good government of the state." While guaranteeing freedom of religious worship, the constitution of Pennsylvania declares, "that no person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this commonwealth."

II. The second part of a state constitution embraces those sections dealing with the distribution of powers, the frame of government, and the limitations on the authorities of the state. This part usually outlines the form of the central government in considerable detail, and contains more or less explicit provisions in relation to rural and municipal government. It defines the suffrage, provides for the organization of the legislature, and prescribes the limitations under which it must operate. It provides for the election of the governor and the great officers of state, leaving the construction of the minor administrative offices and boards to the legislature; it creates the judicial system, state and local; but generally intrusts the regulation of minor details with regard to jurisdiction, procedure, and appeals to the legislature.

III. The third division of our composite state constitution places fundamental limitations upon the financial power of the state legislature.' The provisions are often detailed and complicated, but their general purpose is to fix a debt limit beyond which the legislature cannot go, and to compel that body to make adequate provision for the payment of interest and principal on debts created.2

IV. The fourth part of our composite state constitution lays down, with considerable minuteness, the general principles which

'See below, chap. xxxi.

2 Readings, p. 460.