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Crown, and constituting its colonial constitution. All but two of these were swept away by the whirlwind of revolution, and

has been said in La Plaisance Bay Harbor Co. o. The City of Monroe, Wal. Ch. 155, and Depew v. Trustees of Wabash & Erie Canal, 5 Ind. 8, that the ordinance of 1787 was superseded in each of the States formed out of the North-West Territory by the adoption of a State constitution, and admission to the Union, yet the weight of judicial authority is probably the other way. In Hogg v. The Zanesville Canal Manufacturing Co., 5 Ohio, 410, it was held that the provision of the ordinance that the navigable waters of the territory, and the carrying-places between should be common highways and for ever free, was permanent in its obligation, and could not be altered without the consent both of the people of the State, and of the United States, given through their representatives. “ It is an article of compact; and until we assume the principle that the sovereign power of a State is not bound by compact, this clause must be considered obligatory.” Justices McLean and Leavitt, in Spooner v. McConnell, 1 McLean, 337, examine this subject at considerable length, and both arrive at the same conclusion with the Ohio court. The view taken of the ordinance in that case was, that such parts of it as were designed temporarily to regulate the government of the territory were abolished by the change from a territorial to a State government, while the other parts, which were designed to be permanent, are unalterable except by common consent. Some of these, however, being guaranteed by the federal Constitution, afterwards adopted, may be regarded as practically annulled, while any others which are opposed to the constitution of any State formed out of the territory must also be considered as annulled by common consent; the people of the State assenting in forming their constitution, and Congress in admitting the State into the Union under it. The article in regard to navigable waters is therefore still in force. The same was also said in regard to the article prohibiting slavery, though that also may now be regarded as practically annulled by the amendment to the federal Constitution covering the same ground. The like opinion was subsequently expressed in Palmer v. Commissioners of Cuyahoga Co., 3 McLean, 226, and in Jolly v. Terre Haute Drawbridge Co., 6 McLean, 237. See also Strader v. Graham, 10 How. 82; Doe v. Douglass, 8 Blackf. 12; Connecticut Mutual Life Ins. Co. v. Cross, 18 Wis. 109; Milwaukee Gaslight Co. v. Schooner Gamecock, 23 Wis. 144; Wisconsin River Improvement Co. v. Lyons, 30 Wis. 61. Compare Woodburn v. Kilbourn Manuf. Co., 1 Abb. U. S. 158. In the cases in the first and third McLean, however, the opinion was expressed that the States might lawfully improve the navigable waters and the carrying-places between, and charge tolls upon the use of the improvement to obtain reimbursement of their expenditures.

In some of the States formed out of the territory acquired by the United States from foreign powers, traces will be found of the laws existing before the change of government. Louis ana 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 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.

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 constitutions pointed out the mode for their own modification; others were silent on that subject; but it has been assumed that in such cases

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, baving its origin among the miners, but recognized and enforced by the courts.

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, n.

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 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 Attorneys-General, Vol. II. p. 726.


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.

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 State is vested in the people, the question very naturally presents itself, What are we to understand by The People as used in this con

nection ? [* 29] * What should be the correct rule upon this subject, it

does not fall within our province to consider. Upon this 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. These 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

| See Jameson on Constitutional Conventions, c. 8.

McLean, J., in Spooner v. McConnell, 1 McLean, 347 ; Potter's Dwarris on Stat. c. 1.

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the qualifications of electors without external dictation. In either case, however, it was essential to subsequent good order and satisfaction 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; 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.

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 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 excluded until * he has been domiciled in the country [* 30] for a period judged to be sufficiently long to make him familiar with its institutions; races are sometimes excluded arbitrarily; and there have been times when in some of the States the possession of a certain amount of property, or the capacity to read, were regarded as essential to satisfactory proof of sufficient freedom of action and intelligence.1

State v. Woodruff, 2 Day, 504; Catlin v. Smith, 2 S. & R. 267 ; Opinions of Whatever the rule that is once established, it 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 constitution, 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

whether the constitution formed is republican; whether the 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 exist in the Territory which is

Judges, 18 Pick. 575. 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 Crawford 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.

1 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.

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