imprisonment n the county jail for a term of not less then fifteen nor more than ninety days.

Among the bills recommended for passage in the Indiana House has been one making it unlawful to play football in that State.

A member of the Pennsylvania Legislature has proposed a bill by which the custom of "treating" is to be declared illegal, and a penalty put upon the offender.

The lower house of the Tennessee Legislature has passed a bill providing that all contracts hereafter made in that State, which stipulate for payment in gold, shall be void to the extent that they stipulate for such payment, and that all such contracts may be lawfully discharged in any kind of legal tender.

The Legislature of Indiana has before it a bill which provides a tax of $10 per year on every man wearing chin whiskers or "burnsides," and a lighter tax on goatees. Mustaches are exempt.

In the Legislature of Kansas, a bill has been introduced and solemnly referred to the Committee on Judiciary, to enact the Ten Commandments as part of the statutory law of that singular Commonwealth.

It is some relief to know that, of the enormous number of bills introduced into every Legislature, only a small proportion, not more than one-fifth, never more than one-half, succeed in passing; and that many of them receive their quietus through the Governor's veto. But notwithstanding this, the numbers that crowd themselves between the lids of the books of session laws is a subject of alarm. It is not the numbers merely that furnish just ground for concern, for the work of the Legislature never equals that of the courts. While the Legislature turns out one volume in two years, the appellate courts of the same State may turn out ten or even twenty volumes of reports in the same time. It is the mass of ignorance, incongruity, contradiction, inaptness and unsuitableness, the result of new laws made by men who have no idea what the old laws are, or what new laws are needed, that appals. It is true that there is much confusion and contradiction in the opinions of the highest appellate courts-judges forgetting their previous decisions and overruling them without noticing the fact; rendering heated opinions which overturn all sound principles and merely illustrate the supreme thought or passion of the hour. But yet the contrast is so wide between the legislative rabble and the weak twaddle

of which the speeches made in legislative bodies so often consist, and the judicial courts, sitting with dignity, listening to solemn argument, examining every question presented to them with some degree of learning, care and deliberation, with the view of ascertaining what, in every case, law and right are, that even the most unenlightened appreciate the difference. Another principal reason for the disparity in power and influence between the legislatures and the courts is that the legislatures meet infrequently and are limited to short sessions; while, with the exceptions of brief vacations, the courts are always at work, "sapping and mining," as Mr. Jefferson would say; but, as we see, know, and feel, forever moving forward like a glacier, overcoming all resistance, crowding all obstacles from their path, and thus establishing "Judicial Supremacy." It is simply an illustration of the natural law by which steady and persistent force overcomes irregular and spasmodic force. Most of the constitutional changes of recent years have taken the direction of curtailing, in some way, the XVIII. Clipping the Wings of the Legisla- power of the legislatures. To prevent frauds upon legislation, it has been ordained that no bill shall contain more than one subject, which subject shall be plainly expressed in its title. To secure uniformity of laws and rights, and to prevent as far as possible the evil of "log-rolling," it has been provided that no local or special law shall be passed relating to an enumerated class of subjects. To secure the necessary attention to each bill, every bill is to be read three times and generally on three different days, in each House, and when it is passed and signed by the speaker, he must announce that fact aloud to the House. In many States, while the Legislature is in session, the business community is in a modified state of terror. Measures are introduced and their passage pressed, for the mere purpose of baving them bought off by the interests to which they are inimical; and the feeling is strong that an extension of the time of legislative sessions is an extension of the opportunities for legislative wickedness. Accordingly, the duration of the legislative sessions has been limited to short periods,-in my State, the ordinary sessions to seventy days; in this State, I believe, to sixty days.

tures.

After the expiration of that period the members get small pay, or no pay at all. The public thus treat their legislatures very much as they treat houses of prostitution and dram shops in large cities, as necessary evils which cannot be entirely eradicated, but which ought to be curtailed as far as possible. I doubt the expediency of too much curtailing the duration of the legislative session. In sixty or seventy days there is not time enough for the members to get acquainted with each other, and to do any considerable amount of sedate and deliberate work. It seems to me that what is really wanted as far as constitutional changes can effect a reform, is not, to limit the duration of the sessions, as much as to check the indiscriminite right of every member to introduce bills. There ought to

XIX. A Limited In

itiative and Referendum.

be some sort of initiative,— either the recommendation of the Governor, or the concurrence of the heads of the principal departments of the State government, or a petition by a stated number of citizens, or, in the case of bills creating changes in remedial justice or legal procedure, the recommendation of a certain proportion of the judges or of the bar. Then I differ from Governor Griggs about the feasibility of the new idea of a referendum to the people before a given measure shall become a law. As a check upon legislative corruption, especially in the matter of bartering away valuable franchises, I would give that system a limited trial. Laws granting or renewing special franchises to corporations ought, it seems to me, to be submitted to the inhabitants of the municipalities affected by them; and if they are general in their nature, to the inhabitants of the whole State. The bill known as the Adams' Bill, which passed the last Legislature of Illinois, would never have been ratified by the voters of Chicago, much less by those of the whole State. In these two principles, the initiative and referendum, experimentally introduced at first, and carefully hedged and guarded, will be found the germs of a large and substantial reform. We have in some States the referendum already with reference to some local matters, such as the licensing of the sale of intoxicating liquors, whether agricultural lands shall be fenced or cattle restrained, etc.

XX. Destruction

tures.

But, after all, at the root of the evil of bad and excessive legislation lies a lethargic public opinion. The people ought to be aroused to the of our Free Legisla- necessity of sending better men to their legislatures; and in this matter the legal profession, charged in a peculiar sense with the execution of the laws, and hence the leaders of public opinion, have a grave duty to perform. We should labor without ceasing to reform and strengthen the weakest, but the most important branch of our free governments. No nobler task can command the exertions of the great and powerful profession to which we belong. Let us remember that in our past history the halls of legislation have been the rallying-places of liberty. It was in the House of Commons that Hampden denounced the collection of the Ship Money, while seven of the twelve judges opposed him. It was in the House of Burgesses, of Virginia, that Patrick Henry electrified the colonies by the immortal declaration, "Give me liberty or give me death." Our first charter of liberty our Declaration of Independence - was promulgated by a free legislative assembly; the Dred-Scott Decision, by a judicial court. As a member of the legal profession, as a well-wisher of his country, I solemnly protest against the destruction of our free legislatures, whether by unwise constitutional curtailments, or by the new doctrine of "Judicial Supremacy."

Court of the United
States.

In his letter to his brethren on the occasion of his retiring from the office of Justice of the Supreme XXI. The Supreme Court of the United States, an office which he had held more than thirty-four years, a period exceeding that of Marshall or any other member of the court, the venerable Justice Stephen J. Field used this language:

"If it may be said that all of our decisions have not met with the universal approval of the American people, yet it is to the glory of that people that always and everywhere has been yielded a willing obedience to them. That fact is eloquent of the stability of popular institutions, and demonstrates that the people of these United States are capable of self-government. As I look over the more than a third of a century

that I have sat on this bench. I am more and more impressed with the immeasurable importance of this court. Now and then we hear it spoken of as an aristocratic feature of a Republican government. But it is the most democratic of all. Senators represent their States and Representatives their constituents, but this court stands for the whole country, and as such it is truly of the people, by the people, and for the people.' It has, indeed, no power to legislate. It can not appropriate a dollar of money. It carries neither the purse nor the sword. But it possesses the power of declaring the law, and in that is found the safeguard which keeps the whole mighty fabric of government from rushing to destruction. This negative power, the power of resistance, is the only safeguard of a popular government, and it is an additional assurance when the power is in such hands as yours."

It may seem ungenerous to offer even a word of dissent from language used on so solemn and pathetic an occasion, by a judge so eminent, by one who is held by the bench, the bar, and the people of our country in such an affectionate veneration. But a possible doubt may come into the popular mind as to whether the Supreme Court of the United States is the most democratic feature of all our institutions. It is in fact the least democratic of all. It is removed three degrees from the people. Its judges are appointed by a President who is not directly elected by the people; they are confirmed by a Senate whose members are not so elected. The President who appoints the judges is elected by a body of electors elected from the different States, and they are confirmed by a Senate elected by the legislatures of the different States. We have had Presidents who did not represent the majority of the popular vote, notably, John Quincy Adams and Rutherford B. Hayes. In the Senate the least populous of the States have a representation equal to the most populous. The forty thousand people of Nevada count as much in that body as the six or seven millions of New York. The Senate is in no just sense a representative body. Not only are the judges of the Supreme Court not appointed or elected by the people, or by officers directly elected by the people, but in case of an impeachment of any of them, the impeachment would be tried by the Senate, which, as I have shown, is a non-representative body. Nor do the judges of the Supreme Court