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infant of tender years is wanting in competency, but he is daily acquiring it, and a period is fixed at which he shall conclusively be presumed to possess what is requisite. The alien may know

nothing of our political system and laws, and he is ex[* 30] cluded until * he has been domiciled in the country for

a period judged to be sufficiently long to make him familiar with its institutions; races are sometimes excluded arbitrarily; and at times in some of the States the possession of a certain amount of property, or the capacity to read, seem to have been regarded as essential to satisfactory proof of sufficient freedom of action and intelligence.

Whatever rule is once established must remain fixed until those who by means of it have the power of the State put into their hands see fit to invite others to participate with them in its exercise. Any attempt of the excluded classes to assert their right to a share in the government, otherwise than by operating upon the public opinion of those who possess the right of suffrage, would be regarded as an attempt at revolution, to be put down by the strong arm of the government of the State, assisted, if need be, by the military power of the Union.?

In regard to the formation and amendment of State constitutions, the following appear to be settled principles of American constitutional law :

I. The people of the several Territories may form for themselves State constitutions whenever enabling acts for that purpose are passed by Congress, but only in the manner allowed by such enabling acts, and through the action of such persons as the enabling acts shall clothe with the elective franchise to that end. If the people of a Territory shall, of their own motion, without such enabling act, meet in convention, frame and adopt a consti

1 State v. Woodruff, 2 Day, 504; ford v. Wilson, 4 Barb. 504. Many Catlin v. Smith, 2 S. & R. 267; special statutes, referring to the peoOpinions of Judges, 18 Pick. 575. See ple of a municipality the question of Mr. Bancroft's synopsis of the first voting aid to internal improvements, constitutions of the original States, have confined the right of voting on in his History of the American Rev- the question to tax-payers. olution, c. 5. For some local elec- 2 The case of Rhode Island and tions it is quite common still to the “Dorr Rebellion,” so popularly require property qualification or the known, will be fresh in the minds of payment of taxes in the voter; but all. For a discussion of some of the statutes of this description are gener- legal aspects of the case, see Luther ally construed liberally. See Craw- v. Borden, 7 How. 1.

tution, and demand admission to the Union under it, such action does not entitle them. as matter of right, to be recognized as a State; but the power that can admit can also refuse, and the territorial status must be continued until Congress shall be satisfied to suffer the Territory to become a State. There are always in these cases questions of policy as well as of constitutional law to be determined by the Congress before admission becomes a matter of right; — whether the constitution formed is republican; whether suitable and proper State boundaries have been fixed upon ; whether the population is sufficient; whether the proper qualifications for the exercise of the elective franchise bave been agreed to; whether any inveterate evil exists in the Territory which is now subject to control, but which might be perpetuated under a State government; — these and the like questions, in which the whole country is interested, cannot be finally solved by the people of the Territory for themselves, but the final decision must rest with Congress, and the judgment must be favorable before admission can be claimed or expected.

II. In the original States, and all others subsequently admitted to the Union, the power to amend or revise their constitutions resides in the great body of the people as an organized body politic, who, being vested with ultimate sovereignty, and the source of all State authority, have power to control and alter at will the law which they have made. But the people, in the legal sense, must be understood to be those who, by the existing constitution, are clothed with political rights, and who, while that instrument remains, will be the sole organs through which the will of the body politic can be expressed.?

III. But the will of the people to this end can only be expressed in the legitimate modes by which such a body politic can act, and which must either be prescribed by the constitution whose revision or amendment is sought, or by an act of the legis

1 When a constitution has been the legislature accepts such changes adopted by the people of a Territory, and additions, and it is admitted, the preparatory to admission as a State, changes become a part of the constiand Congress prescribes certain tution, and binding as such, although changes and additions to be adopted not submitted to the people for apby the legislature as part of the con- proval. Brittle v. People, 2 Neb. stitution, and declares such changes 198. and additions to be fundamental con- 2 Luther v. Borden, 7 How. 1; ditions of admission of the State, and Wells v. Bain, 75 Penn. St. 39.

lative department of the State, which alone would be authorized to speak for the people upon this subject, and to point out a mode for the expression of their will in the absence of any provision for amendment or revision contained in the constitution itself.1

1 Opinions of the Judges, 6 Cush. voting by yeas and nays, the proposed 573; Collier v. Frierson, 24 Ala. 100. amendments having been read at each The first constitution of New York session three times on three several contained no provision for its own days in each house. We entertain no amendment, and Mr. Hammond, in doubt that to change the constitution his Political History of New York, in any other mode than by a convenVol. I. c. 26, gives a very interesting tion, every requisition which is deaccount of the controversy before the manded by the instrument itself must legislature and in the council of revi- be observed, and the omission of any sion as to the power of the legislature one is fatal to the amendment. We to call a convention for revision, and scarcely deem any argument necessary as to the mode of submitting its work to enforce this proposition. The conto the people. In Collier v. Frierson, stitution is the supreme and para24 Ala. 108, it appeared that the leg- mount law. The mode by which islature had proposed eight different amendments are to be made under it amendments to be submitted to the is clearly defined. It has been said people at the same time; the people that certain acts are to be done, cerhad approved them, and all the requi- tain requisitions are to be observed, site proceedings to make them a part before a change can be effected. But of the constitution had been had, to what purpose are those acts reexcept that in the subsequent legisla- quired or those requisitions enjoined, ture the resolution for their ratifica- if the legislature or any department tion had by mistake omitted to re- of the government can dispense with cite one of them. On the question them? To do so would be to violate whether this one had been adopted, the instrument which they are sworn we quote from the opinion of the to support, and every principle of court: • The constitution be public law and sound constitutional amended in but two ways: either by policy requires the courts to prothe people who originally framed it, nounce against any amendment which . or in the mode prescribed by the in- is not shown to have been made in strument itself. If the last mode is accordance with the rules prescribed pursued, the amendments must be by the fundamental law.” See also proposed by two-thirds of each house State v. McBride, 4 Mo. 303. But of the general assembly; they must where the constitution provided that be published in print, at least three amendments should be proposed by months before the next general elec- one general assembly, and approved tion for representatives ; it must appear and submitted to popular vote by a from the returns made to the Secre- second, and seventeen amendments tary of State that a majority of those were thus approved together, and the voting for representatives have voted second general assembly passed upon in favor of the proposed amendments, and submitted eight by one bill and and they must be ratified by two- nine by another, the submission was thirds of each house of the next gen- held sufficient and valid. Trustees eral assembly after such election, of University v. McIver, 72 N. C. 76.


* IV. In accordance with universal practice, and from [* 32] the very necessity of the case, amendments to an existing constitution, or entire revisions of it, must be prepared and matured by some body of representatives chosen for the purpose. It is obviously impossible for the whole people to meet, prepare, and discuss the proposed alterations, and there seems to be no feasible mode by which an expression of their will can be obtained, except by asking it upon the single point of assent or disapproval. But no 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 [* 33] enacted by the people themselves.

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. It must not provide for titles of nobility, or assume to violate

* See, upon this subject, Jameson Penn. St. 39. Such a convention has on the Constitutional Convention, no inherent rights; it has delegated $$ 415-418, and 479-520. This work powers only, and must keep within is so complete and satisfactory in its them. Wood's Appeal, 75 Penn. St. treatment of the general subject, as 59. Compare Loomis v. Jackson, 6 to leave little to be said by one who W. Va. 613, 708. The Supreme shall afterwards attempt to cover the Court of Missouri have expressed the same ground. Where a convention opinion that it was competent for a to frame amendments to the consti- convention to put a new constitution tution is sitting under a legislative in force without submitting it to the act from which all its authority is people. State o. Neal, 42 Mo. 119. derived, the submission of its labors But this was obiter. to a vote of the people in a manner 2 Const. of U. S. art. 4, § 4; Feddifferent from that prescribed by the eralist, No. 43. act is nugatory. Wells v. Bain, 75

the obligation of any contract, or attaint persons of crime, or provide er 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 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.

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 (* 34] good.? * And the courts of the State, still more the



i Cummings v. Missouri, 4 Wall. like the legislative bodies, to look 277; Jefferson Branch Bank v. Skelly, carefully to the preservation of vested 1 Black, 436 ; State v. Keith, 63 N. C. rights. It was competent to deal, 140; Jackoway v. Denton, 25 Ark. subject to ratification by the people 525; Union Bank v. State, 9 Yerg. and to the Constitution of the fed490; Girdner v. Stephens, 1 Heis. 280; eral government, with all private Lawson v. Jeffries, 47 Miss. 686; 8. c. and social rights, and with all the 12 Am. Rep. 342; Penn v. Tollison, existing laws and institutions of the 26 Ark. 515; Dodge v. Woolsey, 18 State. If the convention had How. 331; Pacific R. R. Co. v. Ma- willed, and the people had concurred, guire, 20 Wall. 36; Railroad Co. v. all former charters and grants might McClure, 10 Wall. 511; White have been annihilated. When, thereHart. 13 Wall. 649. The fact that fore, we are seeking for the true the constitution containing the ob- construction of a constitutional pronoxious provision was submitted to vision, we are constantly to bear in Congress, and the State admitted to mind that its authors were not exefull rights in the Union under it, can- cuting a delegated authority, limited not make such provision valid. Gunn by other constitutional restraints, but v. Barry, 15 Wall. 610.

are to look upon them as the founders 2 Matter of the Reciprocity Bank, of a State, intent only upon establish22 N. Y. 9; McMullen v. Hodge, 5 ing such principles as seemed best Texas, 31; Penn v. Tollison, 26 Ark. calculated to produce good govern545; Matter of Oliver Lee & Co.'s ment and promote the public happiBank, 21 N. Y. 9. In the case last ness, at the expense of any and all cited, Denio, J., says: " The [consti- existing institutions which might tutional] convention was not obliged, stand in their way."

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