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.1 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.2 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; Catlin v. Smith, 2 S. & R. 267; Opinions of Judges, 18 Pick. 575. See Mr. Bancroft's synopsis of the first constitutions of the original States, in his History of the American Revolution, c. 5. For some local elections it is quite common still to require property qualification or the payment of taxes in the voter; but statutes of this description are generally construed liberally. See Craw ford v. Wilson, 4 Barb. 504. Many special statutes, referring to the people of a municipality the question of voting aid to internal improvements, have confined the right of voting on the question to tax-payers. 2 The case of Rhode Island and the "Dorr Rebellion," so popularly known, will be fresh in the minds of all. For a discussion of some of the legal aspects of the case, see Luther 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 have 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.1 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.2 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 adopted by the people of a Territory, preparatory to admission as a State, and Congress prescribes certain changes and additions to be adopted by the legislature as part of the constitution, and declares such changes and additions to be fundamental conditions of admission of the State, and the legislature accepts such changes and additions, and it is admitted, the changes become a part of the constitution, and binding as such, although not submitted to the people for approval. Brittle v. People, 2 Neb. 198. 2 Luther v. Borden, 7 How. 1; 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. 573; Collier v. Frierson, 24 Ala. 100. The first constitution of New York contained no provision for its own amendment, and Mr. Hammond, in his Political History of New York, Vol. I. c. 26, gives a very interesting account of the controversy before the legislature and in the council of revision as to the power of the legislature to call a convention for revision, and as to the mode of submitting its work to the people. In Collier v. Frierson, 24 Ala. 108, it appeared that the legislature had proposed eight different amendments to be submitted to the people at the same time; the people had approved them, and all the requisite proceedings to make them a part of the constitution had been had, except that in the subsequent legislature the resolution for their ratification had by mistake omitted to recite one of them. On the question whether this one had been adopted, we quote from the opinion of the court: "The constitution can be amended in but two ways: either by the people who originally framed it, or in the mode prescribed by the instrument itself. If the last mode is pursued, the amendments must be proposed by two-thirds of each house of the general assembly; they must be published in print, at least three months before the next general election for representatives; it must appear from the returns made to the Secretary of State that a majority of those voting for representatives have voted in favor of the proposed amendments, and they must be ratified by twothirds of each house of the next general assembly after such election, voting by yeas and nays, the proposed amendments having been read at each session three times on three several days in each house. We entertain no doubt that to change the constitution in any other mode than by a convention, every requisition which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment. We scarcely deem any argument necessary to enforce this proposition. The constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It has been said that certain acts are to be done, certain requisitions are to be observed, before a change can be effected. But to what purpose are those acts required or those requisitions enjoined, if the legislature or any department of the government can dispense with them? To do so would be to violate the instrument which they are sworn to support, and every principle of public law and sound constitutional policy requires the courts to pronounce against any amendment which is not shown to have been made in accordance with the rules prescribed by the fundamental law." See also State v. McBride, 4 Mo. 303. But where the constitution provided that amendments should be proposed by one general assembly, and approved and submitted to popular vote by a second, and seventeen amendments were thus approved together, and the second general assembly passed upon and submitted eight by one bill and nine by another, the submission was held sufficient and valid. Trustees 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.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 Penn. St. 39. Such a convention has no inherent rights; it has delegated powers only, and must keep within them. Wood's Appeal, 75 Penn. St. 59. W. 2. It must not provide for titles of nobility, or assume to violate 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 Compare Loomis v. Jackson, 6 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. 2 Const. of U. S. art. 4, § 4; Federalist, No. 43. 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 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 [* 34] good.2 *And the courts of the State, still more the 1 Cummings v. Missouri, 4 Wall. 277; Jefferson Branch Bank v. Skelly, 1 Black, 436; State v. Keith, 63 N. C. 140; Jackoway v. Denton, 25 Ark. 525; Union Bank v. State, 9 Yerg. 490; Girdner v. Stephens, 1 Heis. 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 Hart, 13 Wall. 649. 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. v. 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." |