body of representatives, unless specially clothed with power for that purpose by the people when choosing them, can rightfully take definitive action upon amendments or revisions; they must submit the result of their deliberations to the people who alone are competent to exercise the powers of sovereignty in framing the fundamental law for ratification or rejection. The constitutional convention is the representative of sovereignty only in a very qualified sense, and for the specific purpose, and with the restricted authority to put in proper form the questions of amendment upon which the people are to pass; but the changes in the fundamental law of the State must be enacted by the people themselves.1

V. The power of the people to amend or revise their constitutions is limited by the Constitution of the United States in the following particulars:

1. It must not abolish the republican form of government, since such act would be revolutionary in its character, and would call for and demand direct intervention on the part of the government of the United States.2

2. It must not provide for titles of nobility, or assume to violate the obligation of any contract, or attaint persons of crime, or provide ex post facto for the punishment of acts by the courts which were innocent when committed, or contain any other provision which would, in effect, amount to the exercise of any power expressly or impliedly prohibited to the States by the Constitution of the Union. For while such provisions would not call for the direct and forcible intervention of the government of the Union, it would be the duty of the courts, both State and national, to refuse to enforce them, and to declare them altogether void, as

1 See, upon this subject, Jameson on the Constitutional Convention, §§ 415-418, and 479-520. This work is so complete and satisfactory in its treatment of the general subject as to leave little to be said by one who shall afterwards attempt to cover the same ground. Where a convention to frame amendments to the constitution is sitting under a legislative act from which all its authority is derived, the submission of its labors to a vote of the people in a manner different from that prescribed by the act is nugatory. Wells v. Bain, 75 Penn. St. 39. Such a convention has no inherent rights; it has delegated powers only, and must keep within them. Woods's Appeal, 75 Penn. St. 59. Compare Loomis v. Jack

son, 6 W. Va. 613, 708. The Supreme Court of Missouri have expressed the opinion that it was competent for a convention to put a new constitution in force without submitting it to the people. State v. Neal, 42 Mo. 119. But this was obiter. Where proposed amendments are required to be submitted to the people, and approved by a majority vote, it is a mooted question whether a majority of those voting thereon is sufficient, when it appears that they do not constitute a majority of all who voted at the same election. See State r. Swift, 69 Ind. 505; and cases cited, post, 747, 748.

2 Const. of U. S. art. 4, § 4; Federalist, No. 43.

much when enacted by the people in their primary capacity as makers of the fundamental law, as when enacted in the form of statutes through the delegated power of their legislatures.1

VI. Subject to the foregoing principles and limitations, each State must judge for itself what provisions shall be inserted in its constitution; how the powers of government shall be apportioned in order to their proper exercise; what protection shall be thrown around the person or property of the citizen; and to what extent private rights shall be required to yield to the general good.2 And the courts of the State, still more the courts of the Union, would be precluded from inquiring into the justice of their action, or questioning its validity, because of any supposed conflict with fundamental rules of right or of government, unless they should be able to show collision at some point between the instrument thus formed and that paramount law which constitutes, in regard to the subjects it covers, the fundamental rule of action throughout the whole United States.3

1 Cummings v. Missouri, 4 Wall. 277; Jefferson Branch Bank v. Skelly, 1 Black, 436; State v. Keith, 63 N. C. 140; Jacoway v. Denton, 25 Ark. 525; Union Bank v. State, 9 Yerg. 490; Girdner v. Stephens, 1 Heisk. 280; Lawson v. Jeffries, 47 Miss. 686; s. c. 12 Am. Rep. 342; Penn v. Tollison, 26 Ark. 545; Dodge v. Woolsey, 18 How. 331; Pacific R. R. Co. v. Maguire, 20 Wall. 36; Railroad Co. v. McClure, 10 Wall. 511; White v. Hart, 13 Wall. 646; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; Fisk v. Jefferson Police Jury, 116 U. S. 131. The fact that the constitution containing the obnoxious provision was submitted to Congress, and the State admitted to full rights in the Union under it, cannot make such provision valid. Gunn v. Barry, 15 Wall. 610.

2 Matter of the Reciprocity Bank, 22 N. Y. 9; McMullen v. Hodge, 5 Texas, 34; Penn v. Tollison, 26 Ark. 545; Matter of Oliver Lee & Co.'s Bank, 21 N. Y. 9. In the case last cited, Denio, J., says: "The [constitutional] convention was not obliged, like the legislative bodies, to look carefully to the preservation of vested rights. It was competent to deal. subject to ratification by the people and to the Constitution of the federal government, with all private and social rights, and with all the existing laws and institutions of the State. If the convention had so

willed, and the people had concurred, all former charters and grants might have been annihilated. When, therefore, we are seeking for the true construction of a constitutional provision, we are constantly to bear in mind that its authors were not executing a delegated authority, limited by other constitutional restraints, but are to look upon them as the founders of a State, intent only upon establishing such principles as seemed best calculated to produce good government and promote the public happiness, at the expense of any and all existing institutions which might stand in their way."

8 All the State constitutions now contain within themselves provisions for their amendment. Some require the question of calling a convention to revise the constitution to be submitted to the people at stated periods; others leave it to the legislature to call a convention, or to submit to the people the question of calling one; while the major part allow the legislature to mature specific amendments to be submitted to the people separately, and these become a part of the constitution if adopted by the requisite vote.

When the late rebellion had been put down by the military forces of the United States, and the State governments which constituted a part of the disloyal system had been displaced, serious questions

How far the constitution of a State shall descend into the particulars of government, is a question of policy addressed to the convention which forms it. Certain things are to be looked for in all these instruments; though even as to these there is great variety, not only of substance, but also in the minuteness of their provisions to meet particular cases.

I. We are to expect a general framework of government to be designed, under which the sovereignty of the people is to be exercised by representatives chosen for the purpose, in such manner as the instrument provides, and with such reservations as it makes.

II. Generally the qualifications for the right of suffrage will be declared, as well as the conditions under which it shall be exercised.

III. The usual checks and balances of republican government, in which consists its chief excellence, will be retained. The most important of these are the separate departments for the exercise of legislative, executive, and judicial power; and these are to be kept as distinct and separate as possible, except in so far as the action of one is made to constitute a restraint upon the action of the others, to keep them within proper bounds, and to prevent hasty and improvident action. Upon legislative action there is, first, the check of the executive, who will generally be clothed with a qualified veto power, and who may refuse to execute laws deemed unconstitutional; and, second, the check of the judiciary, who may annul unconstitutional laws, and punish those concerned in

were raised as to the proper steps to be taken in order to restore the States to their harmonious relations to the Union. These questions, and the controversy over them, constituted an important part of the history of our country during the administration of President Johnson; but as it is the hope and trust of our people that the occasion for discussing such questions will never arise again, we do not occupy space with them in this work. It suffices for the present to say, that Congress claimed, insisted upon, and enforced the right to prescribe the steps to be taken and the conditions to be observed in order to restore these States to their former positions in the Union, and the right also to determine when the prescribed conditions had been complied with, so as to entitle them to representa tion in Congress. There is some discussion of the general subject in Texas v. White, 7 Wall. 700. And see Gunn v. Barry, 15 Wall. 610.

When a constitution has been regarded by the people of a State as valid, and it has never been adjudged illegal by the courts, a federal circuit court will not question its legal adoption. Smith v. Good, 34 Fed. Rep. 204.

It has been decided in some cases that a constitution is to have effect from the time of its adoption by the people, and not from the time of the admission of the State into the Union by Congress. Scott v. Young Men's Society's Lessee, 1 Doug. (Mich.) 119; Campbell v. Fields, 35 Texas, 751. The Texas reconstruction constitution became operative before the State was admitted to representation in Congress. Peak r. Swindle, 68 Texas, 242. An amendment to the Minnesota origi nal constitution adopted before formal admission of the State is valid. Any irregularity is healed by the admission, and the subsequent recognition of the validity of the amendment by the State. Secombe v. Kittelson, 29 Minn. 555.

enforcing them. Upon judicial action there is the legislative check, which consists in the power to prescribe rules for the courts, and perhaps to restrict their authority; and the execu tive check, of refusing aid in enforcing any judgments which are believed to be in excess of jurisdiction. Upon executive action the legislature has a power of restraint, corresponding to that which it exercises upon judicial action; and the judiciary may punish executive agents for any action in excess of executive authority. And the legislative department has an important restraint upon both the executive and the judiciary, in the power of impeachment for illegal or oppressive action, or for any failure to perform official duty. The executive, in refusing to execute a legislative enactment, will always do so with the peril of impeachment in view.

IV. Local self-government having always been a part of the English and American systems, we shall look for its recognition in any such instrument. And even if not expressly recognized, it is still to be understood that all these instruments are framed with its present existence and anticipated continuance in view.1

V. We shall also expect a declaration of rights for the protection of individuals and minorities. This declaration usually contains the following classes of provisions:

1. Those declaratory of the general principles of republican government; such as, that all freemen, when they form a social compact, are equal, and no man, or set of men, is entitled to exclusive, separate public emoluments or privileges from the community but in consideration of public services; that absolute, arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority; that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, happiness, security, and the protection of property; that 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 think proper; that all elections shall be free and equal; that no power of suspending the laws shall be exercised except by the legislature or its authority; that standing armies are not to be maintained in time of peace; that representation shall be in proportion to population; that the people shall have the right freely to assemble to consult of the common good, to instruct their representatives, and petition for redress of grievances; and the like.

1 Park Commissioners v. Common Council of Detroit, 28 Mich. 228; People v. Albertson, 55 N. Y. 50.

2. Those declaratory of the fundamental rights of the citizen: as that all men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness; that the right to property is before and higher than any constitutional sanction; that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed; that every man may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that every man may bear arms for the defence of himself and of the State; that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, nor shall soldiers be quartered upon citizens in time of peace; and the like.

3. Those declaratory of the principles which ensure to the citizen an impartial trial, and protect him in his life, liberty, and property against the arbitrary action of those in authority: as that no bill of attainder or ex post facto law shall be passed; that the right to trial by jury shall be preserved; that excessive bail shall not be required, nor excessive punishments inflicted; that no person shall be subject to be twice put in jeopardy for the same offence, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; that private property shall not be taken for public use without compensation; and the like.

Other clauses are sometimes added declaratory of the principles of morality and virtue; and it is also sometimes expressly declared what indeed is implied without the declaration - that everything in the declaration of rights contained is excepted out of the general powers of government, and all laws contrary thereto 'shall be void.

Many other things are commonly found in these charters of government; 2 but since, while they continue in force, they are to remain absolute and unchangeable rules of action and decision,

1 Hale . Everett, 53 N. H. 9; Board of Education v. Minor, 23 Ohio St. 211.

2 This, then, is the office of a written [free] constitution: to delegate to various public functionaries such of the powers of government as the people do not intend to exercise for themselves; to classify these powers, according to their nature, and to commit them to separate agents;

to provide for the choice of these agents by the people; to ascertain, limit, and define the extent of the authority thus delegated; and to reserve to the people their sovereignty over all things not expressly committed to their representatives." E. P. Hurlbut in Human Rights and their Political Guaranties.