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Every colony had also its charter, emanating from the [* 26] Crown, and constituting its colonial constitution. All but two of these were swept away by the whirlwind of revolution, and others substituted which had been framed by the people themselves, through the agency of conventions which they had chosen. The exceptions were the States of Connecticut and Rhode Island, each of which had continued its government as a State under the colonial charter, finding it sufficient and satisfactory for the time being, and accepting it as the constitution for the State.1

New States have since, from time to time, formed con- [* 27] stitutions either regularly in pursuance of enabling acts passed by Congress, or irregularly by the spontaneous action of the people, or under the direction of the legislative or executive authority of the Territory to which the State succeeded. Where irregularities existed, they must be regarded as having been cured by the subsequent admission of the State into the Union by Congress; and there were not wanting in the case of some States plausible reasons for insisting that such admission had [* 28] become a matter of right, and that the necessity for an enabling act by Congress was dispensed with by the previous stipulations of the national government in acquiring the Territory from which such States were formed.2 Some of these constitu

United States from foreign powers, traces will be found of the laws existing before the change of government. Louisiana has a code peculiar to itself, based upon the civil law. Much of Mexican law, and especially as regards lands and land titles, is retained in the systems of Texas and California. In Michigan, when the acts of Parliament were repealed, it was also deemed important to repeal all laws derived from France, through the connection with the Canadian provinces, including the Coutume de Paris, or ancient French common law. In the mining States and Territories a peculiar species of common law, relating to mining rights and titles, has sprung up, having its origin among the miners, but recognized and enforced by the courts. Regard

ing the canon and ecclesiastical law, and their force in this country, see Crump v. Morgan, 3 Ired. Eq. 91; Le Barron v. Le Barron, 35 Vt. 365.

It is worthy of note that the first case in which a legislative enactment was declared unconstitutional and void, on the ground of incompatibility with the constitution of the State, was decided under one of these royal charters. The case was that of Trevett v. Weeden, decided by the Superior Court of Rhode Island in 1786. See Arnold's History of Rhode Island, Vol. II. c. 24. The case is further referred to, post, p. 160, note.

*

2 This was the claim made on behalf of Michigan; it being insisted that the citizens, under the provisions of the ordinance of 1787, whenever the Territory acquired the requisite

tions pointed out the mode for their own modification; others were silent on that subject; but it has been assumed that in such cases the power to originate proceedings for that purpose rested with the legislature of the State, as the department most nearly representing its general sovereignty; and this is doubtless the correct view to take of this subject.1

The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority. The people of the Union created a national constitution, and conferred upon it powers of sovereignty over certain subjects, and the people of each State created a State government, to exercise the remaining powers of sovereignty so far as they were disposed to allow them to be exercised at all. By the constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law. But in every State, although all persons are under the protection of the government, and obliged to conform their action to its laws, there are always some who are altogether excluded from participation in the government, and are compelled to submit to be ruled by an authority in the creation of which they have no choice. The political maxim, that government rests upon the consent of the governed, appears, therefore, to be practically subject to many exceptions; and when we say the sovereignty of the Sate is vested in the people, the question very naturally presents itself, What are we to understand by The People as used in this connection?

[* 29]

*What should be the correct rule upon this subject, it does not fall within our province to consider. Upon this

population, had an absolute right to form a constitution and be admitted to the Union under it. See Scott v. Detroit Young Men's Society's Lessee, 1 Doug. (Mich.) 119, and the contrary opinion in Myers v. Manhattan Bank, 20 Ohio, 283. The debates in the Senate of the United States on the admission of Michigan to the Union go fully into this question. See Benton's Abridgment of Congressional Debates, Vol. XIII. pp. 69-72. And

as to the right of the people of a Territory to originate measures looking to an application for admission to the Union, see opinions of AttorneysGeneral, Vol. II. p. 726.

1 See Jameson on Constitutional Conventions, c. S.

2 McLean, J., in Spooner v. McConnell, 1 McLean, 347; Waite, Ch. J., in Miror v. Happersett, 21 Wall. 162, 172; Potter's Dwarris on Stat.

c. 1.

men will theorize; but the practical question lies back of the formation of the Constitution, and is addressed to the people, themselves. As a practical fact, the sovereignty is vested in those persons who are permitted by the constitution of the State to exercise the elective franchise. Such persons may have been. designated by description in the enabling act of Congress permitting the formation of the constitution, if any such there were, or the convention which framed the constitution may have determined the qualifications of electors without external dictation. In either case, however, it was essential to subsequent good order and contentment with the government, that those classes in general should be admitted to a voice in its administration, whose exclusion on the ground of want of capacity or of moral fitness could not reasonably and to the general satisfaction be defended.

Certain classes have been almost universally excluded, the slave, because he is assumed to be wanting alike in the intelligence and the freedom of will essential to the proper exercise of the right; the woman, from mixed motives, but mainly perhaps, because, in the natural relation of marriage, she was supposed to be under the influence of her husband, and, where the common law prevailed, actually was in a condition of dependence upon and subjection to him; 2 the infant, for reasons similar to those which exclude the slave; the idiot, the lunatic, and the felon, on obvious grounds; and sometimes other classes for whose exclusion it is difficult to assign reasons so generally satisfactory.

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The theory in these cases we take to be that classes are excluded because they lack either the intelligence, the virtue, or the liberty of action essential to the proper exercise of the elective franchise. But the rule by which the presence or absence of these qualifications is to be determined, it is not easy to establish on grounds the reason and propriety of which shall be accepted by all. It must be one that is definite and easy of application, and it must be made permanent, or an accidental majority may at any time change it, so as to usurp all power to themselves. But to be definite and easy of application, it must also be arbitrary. The

1

The people, for political purposes, must be considered as synonymous with qualified voters.” Blair

v. Ridgely, 41 Mo. 63.

2 Some reference is made to the

reasons for the exclusion in the opinions in Bradwell v. State, 16 Wall. 130, and Minor v. Happersett, 21 Wall. 362.

*

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.

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