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, But 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. 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." 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.1 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. 1 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 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 Presi dent Johnson; but as it is the hope and trust of our people that the occa sion 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 representation 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. 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. 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 consist its chief excellencies, 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 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 executive 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 1 Park Commissioners v. Common Council of Detroit, 28 Mich. 228; People v. Albertson, 55 N. Y. 50. |