might, in the absence of such provisions, be tempted at moments of excitement to suspend the ordinary law and arm the magistrates with excessive powers. They are therefore, it is held, still safeguards against tyranny; and they serve the purpose of solemnly reminding a state legislature and its officers of those fundamental principles which they ought never to overstep.16 Although such provisions certainly do restrain a state legislature in ways which the British Parliament would find inconvenient, few complaints of practical evils thence arising are heard.
A general notion of these bills of rights may be gathered from that enacted for itself in 1907 by the new state of Oklahoma, printed in the Appendix to this volume. I may mention, in addition, a few curious provisions which occur in some of them.
All provide for full freedom of religious opinion and worship, and for the equality before the law of all religious denominations and their members; and many forbid the establishment of any particular church or sect, and declare that no public money ought to be applied in aid of any religious body or sectarian institution.17 But Delaware holds it to be “the duty of all men frequently to assemble for public worship”; and Vermont adds that “every sect or denomination of Christians ought to observe the Sabbath or Lord’s Day.” And thirteen states declare that the provisions for freedom of conscience are not to be taken to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state,18 Mississippi adding (1890) that they shall not be construed to exclude the Bible from use in schools, and Idaho, Montana, and Utah (states familiar with Mormonism), denouncing bigamy and polygamy as crimes to be made punishable.
Louisiana (Constitution of 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.”
A large majority of the states declare that “all men have a natural, inherent, and inalienable right to enjoy and defend life and liberty”; and all of these, except the melancholy Missouri, add, the “natural right to pursue happiness.”
Most declare that all men have “a natural right to acquire, possess, and protect property,” while Arkansas and Kentucky are so penetrated with the importance of this right that they declare it to be “before and higher than any constitutional sanction.”
Mississippi and Louisiana (Constitutions of 1868) provided that “the right of all citizens to travel upon public conveyances shall not be infringed upon nor in any manner abridged.” Both states have now dropped this injunction.19
Kentucky (Constitution of 1891) lays down that “absolute arbitrary power over the lives, liberty, and property of freemen exists nowhwere 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 security, 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.” 20
All in one form or another secure the freedom of writing and speaking opinions; and some add that the truth of a libel may be given in evidence.21
Nearly all secure the freedom of public meeting and petition. Considering that these are the last rights likely to be infringed by a state government, it is odd to find Florida in her Constitution of 1886 providing that “the people shall have the right to assemble together to consult for the common good, to instruct their representatives, and to petition the legislature for redress of grievances,” and Kentucky in 1891 equally concerned to secure this right.
Many provide that no ex post facto law, nor law impairing the obligation of a contract, shall be passed by the state legislature; and that private property shall not be taken by the state without just compensation.
Many forbid the creation of any title of nobility.
Many declare that the right of citizens to bear arms shall never be denied, a provision which might be expected to prove inconvenient where it was desired to check the habit of carrying revolvers. Tennessee therefore (Constitution of 1870) prudently adds that “the legislature shall have power to regulate the wearing of arms, with a view to prevent crime.” So also Texas, where such a provision is certainly not superfluous. And eight others22 allow the legislature to forbid the carrying of concealed weapons.
Several forbid armed men to be brought into the state “for the suppression of domestic violence,” in order to prevent employers from resorting to this means of protecting property in case of labour disputes accompanied by violence.
Some declare that the estates of suicides shall descend in the ordinary course of law.
Most provide that conviction for treason shall not work corruption of blood nor forfeiture of estate.
Eight forbid white and coloured children to be taught in the same public schools, while Wyoming provides that no distinction shall be made in the public schools on account of sex, race, or colour.
Many declare the right of trial by jury to be inviolate, even while permitting the parties to waive it. Several states empower a jury in civil cases to render a verdict by a three-fourths or two-thirds majority, and five states permit it to consist of less than twelve.
Some forbid imprisonment for debt, except in case of fraud, and secure the acceptance of reasonable bail, except for the gravest charges.23
Several declare that “perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed.”
Many forbid the granting of any hereditary honours, privileges, or emoluments.
North Carolina declares that “as political rights and privileges are not dependent upon or modified by property, therefore no property qualification ought to affect the right to vote or hold office”; and also, “secret political societies are dangerous to the liberties of a free people, and should not be tolerated.”
Massachusetts sets forth, as befits a Puritan state, high moral views: “A frequent recurrence to the fundamental principles of the Constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty and to maintain a free government. The people ought consequently to have a particular attention to all those principles in the choice of their officers and representatives, and they have a right to require of their law-givers and magistrates an exact and constant observance of them.”
South Dakota and Wyoming provide that aliens shall have the same rights of property as citizens. Montana confers this benefit as respects mining property, while Washington prohibits the ownership of land by aliens, except for mining purposes. New York in her (now superseded) Constitution of 1846 declared, “All lands within the State are declared to be allodial.”
North Dakota (1889) enacts: “Every citizen shall be free to obtain employment wherever possible, and any person, corporation, or agent thereof, maliciously interfering or hindering in any way any citizen from obtaining, or enjoying employment already obtained, from any other corporation or person, shall be deemed guilty of a misdemeanor.”
Maryland (Constitution of 1867) declares that “a long continuance in the executive departments of power or trust is dangerous to liberty; a rotation, therefore, in those departments is one of the best securities of permanent freedom.” She
