Chapter 21

DRIFT AND DYE IN LAW-MAKING

Race war at the South following the abolition of slavery, new social conditions everywhere, and the archaic nature of many provisions in the old laws, induced, as the century drew to a close, a pretty general revision of State constitutions. New England clung to instruments adopted before the civil war, though in most cases considerably amended. New Jersey was equally conservative, as were also Ohio, Indiana, Michigan, and Wisconsin. New York adopted in 1894 a new constitution which became operative January 1, 1895. Of the old States beyond the Mississippi only Kansas, Iowa, Minnesota, and Oregon remained content with ante-bellum instruments. Between 1864 and 1866 ten of the southern States inaugurated governments which were not recognized by Congress and had to be reconstructed. Ten of the eleven reconstruction constitutions were in turn overthrown by 1896. In a little over a generation, beginning with Minnesota, 1858, fourteen new States entered the Union, of which all but West Virginia and Nebraska retained at the end of the century their first bases of government. In some of these cases, however, copious amendments had rendered the constitutions in effect new.

As a rule the new constitutions reserved to the people large powers formerly granted to one or more among the three departments of government. Most of them placed legislatures under more minute restrictions than formerly prevailed. The modern documents were much longer than earlier ones, dealing with many subjects previously left to statutes. Distrust of legislatures was further shown by shortening the length of sessions, making sessions biennial, forbidding the pledging of the public credit, inhibiting all private or special legislation, and fixing a maximum for the rate of taxation, for State debts, and for State expenditures.

South Dakota, the first State to do so, applied the initiative and referendum, each to be set in motion by five per cent. of the voters, to general statutory legislation. Wisconsin provided for registering the names of legislative lobbyists, with various particulars touching their employment. The names of their employers had also to be put down. Many new points were ordered observed in the passing of laws, such as printing all bills, reading each one thrice, taking the yeas and nays on each, requiring an absolute majority to vote yea, the inhibition of "log-rolling" or the joining of two or more subjects under one title, and enactments against legislative bribery, lobbying, and "riders."

While the legislature was snubbed there appeared a quite positive tendency to concentrate responsibility in the executive, causing the powers of governors considerably to increase. The governor now enjoyed a longer term, was oftener re-eligible, and could veto items or sections of bills. By the later constitutions most of the important executive officers were elected directly by the people, and made directly responsible neither to governors nor to legislatures.

The newer constitutions and amendments paid great attention to the regulation of corporations, providing for commissions to deal with railroads, insurance, agriculture, dairy and food products, lands, prisons, and charities. They restricted trusts, monopolies, and lotteries. Modifications of the old jury system were introduced. Juries were made optional in civil cases, and not always obligatory in criminal cases. Juries of less than twelve were sometimes allowed, and a unanimous vote by a jury was not always required. Growing wealth and the consequent multiplication of litigants necessitated an increase in the number of judges in most courts. Efforts were made, with some success, by combining common law with equity procedure, and in other ways, to render lawsuits more simple, expeditious, and inexpensive.

Restrictions were enacted on the hours of labor, the management of factories, the alien ownership of land. The old latitude of giving and receiving by inheritance was trenched upon by inheritance taxes. The curbing of legislatures, the popular election of executives, civil service reform, and the creation of a body of administrative functionaries with clearly defined duties, betrayed movement toward an administrative system.

A stronghold of political corruption was assaulted from 1888 to 1894 by a hopeful measure known as the "Australian" ballot. It took various forms in different States yet its essence everywhere was the provision enabling every voter to prepare and fold his ballot in a stall by himself, with no one to dictate, molest, or observe. Massachusetts, also the city of Louisville, Ky., employed this system of voting so early as 1888. Next year ten States enacted similar laws. In 1890 four more followed, and in 1891 fourteen more. By 1898 thirty-nine States, all the members of the Union but six, had taken up "kangaroo voting," as its foes dubbed it. Of these six States five were southern.