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which may act hastily, excited by the prospect of some benefit to be obtained, some grievance to be removed, through a sweeping and perhaps insufficiently debated change in the law.

      The risk of careless and even reckless measures is undeniable. But they may, in some states, be just as likely to proceed from a legislature as from the people voting at the polls, for the average of knowledge and judgment is not substantially lower among the voters than among those who compose the legislatures; and the safeguards provided by the rules restraining legislative action cannot always be relied upon.

      We must wait and watch for some time before venturing to pronounce a judgment upon the working of these new expedients; nor does the experience of Switzerland furnish much guidance, so dissimilar are the social conditions and the political habits of the two nations.¹⁶

CHAPTER 40

       State Governments: The Legislature

      The similarity of the frame of government in the forty-eight republics which make up the United States, a similarity which appears the more remarkable when we remember that each of the republics is independent and self-determined as respects its frame of government, is due to the common source whence the governments flow. They are all copies, some immediate, some mediate, of ancient English institutions, viz., chartered self-governing corporations, which, under the influence of English habits, and with the precedent of the English parliamentary system before their eyes, developed into governments resembling that of England in the eighteenth century. Thirteen colonies had up to 1776 been regulated by a charter from the British Crown, which, according to the best and oldest of all English traditions, allowed each the practical management of its own affairs. The charter contained a sort of skeleton constitution, which usage had clothed with nerves, muscles, and sinews, till it became a complete and symmetrical working system of free government. There was in each a governor, in two colonies chosen by the people,¹ in the rest nominated by the Crown; there was a legislature; there were executive officers acting under the governor’s commission and judges nominated by him; there were local self-governing communities. In none, however, did there exist what we call cabinet government, i.e., the rule of the legislature through a committee of its own members, coupled with the irresponsibility of the permanent nominal head of the executive. This separation of the executive from the legislature, which naturally arose from the fact that the governor was an officer directly responsible to another power than the colonial legislature, viz., the British Crown, his own master to whom he stood or fell,² distinguishes the old colonial governments of North America from those of the British colonies of the present day, in all of which cabinet government prevails.³ The latter are copies of the present Constitution of England; the fomer resembled it as it existed in the first half of the eighteenth century before cabinet government had been fully developed.

      When the thirteen colonies became sovereign states at the Revolution, they preserved this frame of government, substituting a governor chosen by the state for one appointed by the Crown. As the new states admitted to the Union after 1789 successively formed their constitutions prior to their admission to the Union, each adopted the same scheme, its people imitating, as was natural, the older commonwealths whence they came, and whose working they understood and admired.⁴ They were the more inclined to do so because they found in the older constitutions that sharp separation of the executive, legislative, and judicial powers which the political philosophy of those days taught them to regard as essential to a free government, and they all take this separation as their point of departure.

      I have observed in an earlier chapter that the influence on the framers of the federal Constitution of the examples of free government which they found in their several states, had been profound. We may sketch out a sort of genealogy of governments as follows:

      First. The English incorporated company, a self-governing body, with its governor, deputy-governor, and assistants chosen by the freemen of the company, and meeting in what is called the general court or assembly.

      Next. The colonial government, which out of this company evolves a governor or executive head and a legislature, consisting of representatives chosen by the citizens and meeting in one or two chambers.

      Thirdly. The state government, which is nothing but the colonial government developed and somewhat democratized, with a governor chosen originally by the legislature, now always by the people at large, and now in all cases with a legislature of two chambers. From the original thirteen states this form has spread over the Union and prevails in every state.

      Lastly. The federal government, modelled after the state governments, with its president chosen, through electors, by the people, its two-chambered legislature, its judges named by the president.⁵

      Out of such small beginnings have great things grown.

      It would be endless to describe the minor differences in the systems of the several states. I will sketch the outlines only, which, as already observed, are in the main the same everywhere.

      Every state has:

      An executive elective head, the governor

      A number of other administrative officers

      A legislature of two houses

      A system of courts of justice

      Various subordinate local self-governing communities, counties, cities, townships, villages, school districts

      The governor and the other chief officials are not now chosen by the legislature, as was the case under most of the older state constitutions, but by the people. They are as far as possible disjoined from the legislature. Neither the governor nor any other state official can sit in a state legislature.⁶ He cannot lead it. It cannot, except of course by passing statutes, restrain him. There can therefore be no question of any government by ministers who link the executive to the legislature according to the system of the free countries of modern Europe and of the British colonies.

      Of these several powers it is best to begin by describing the legislature, because it is by far the strongest and most prominent.

      An American state legislature always consists of two houses, the smaller called the Senate, the larger usually called the House of Representatives, though in six states it is entitled “the Assembly,” and in three “the House of Delegates.” The origin of this very interesting feature is to be sought rather in history than in theory. It is due partly to the fact that in some colonies there had existed a small governor’s council in addition to the popular representative body, partly to a natural disposition to imitate the mother country with its Lords and Commons, a disposition which manifested itself both in colonial days and when the revolting states were giving themselves new constitutions, for up to 1776 some of the colonies had gone on with a legislature of one house only. Now, however, the need for two chambers has become an axiom of political science, being based on the belief that the innate tendency of an assembly to become hasty, tyrannical, and corrupt, needs to be checked by the coexistence of another house of equal authority. The Americans restrain their legislatures by dividing them, just as the Romans restrained their executive by substituting two consuls for one king. The only states that ever tried to do with a single house were Pennsylvania, Georgia, and Vermont, all of whom gave it up: the first after four years’ experience, the second after twelve years, the last after fifty years.⁷ It is with these trifling exceptions the quod semper, quod ubique, quod ab omnibus of American constitutional doctrine.⁸

      Both houses are chosen by popular vote, generally⁹ in equal electoral districts, and by the same voters, although in a few states there are minor variations as to modes of choice.¹⁰ Illinois by her Constitution of 1870 created a system of proportional representation by means of the cumulative vote; i.e., the elector may cast as many votes for any one candidate as there are representatives to be elected in the district, or may distribute his votes among the candidates. The plan was suggested to the people of Illinois, by the fact that the northern counties (called Canaan) had usually had a Republican, the southern (called Egypt) a Democratic, majority, so

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