had 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.1 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 the power to originate proceedings for that purpose rests 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.2

3

The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority. They have created a national Constitution, and conferred upon it powers of sovereignty over certain subjects, and they create State governments upon which they confer the remaining powers of sovereignty, so far as they are disposed to allow them to be exercised at all. By the constitutions which they form, they tie up alike their own hands and the hands of their agencies; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to these fundamental laws. 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 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. This patent fact suggests the inquiry, Who are the people in whom is vested the sovereignty of the State? since it is evident that they cannot include the whole population, and that the maxim that government rests upon the consent of the governed is in practice subject to exceptions.

This was the claim made on behalf of Michigan; it being insisted that whenever the Territory acquired the requisite population, its citizens had an absolute right to form a constitution and be admitted to the Union under the provisions of the Ordinance of 1787. 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. See also the opinions of the Attorney-General, vol. 2, p. 726. 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. 13, p. 69 to 72.

2 See Jameson on Constitutional Conventions, ch. 8. McLean, J. in Spooner v. McConnell, 1 McLean, 347.

What should be the correct rule on this subject, it does not fall within our province to consider. That is a question which 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 by the constitution of the State are allowed 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 such an act there was, or the convention which framed the constitution may have determined upon 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 persons generally should be admitted to a voice in the government 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 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, and under the common law actually was, in a condition of dependence upon and subjection to the husband; 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 freedom of action essential to the proper exercise of the elective franchise. But the rule by which the presence of these qualities 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 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 the only satisfactory proof of sufficient freedom of action and intelligence.1

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 States; 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

1 State v. Woodruff, 2 Day, 504; Catlin v. Smith, 2 S. & R. 267; Opinions of 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.

The case of Rhode Island and the "Dorr Rebellion," so popularly known, will be fresh in the minds of all. For a discussion of the legal aspects of the case, see Luther v. Borden, 7 How. 1.

to be determined by the Congress before admission becomes a matter of right: 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 exists in the Territory which is now subject to control, but which might be perpetrated 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 the law which they have made at their will. 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 legislative 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. 1, ch. 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

IV. In accordance with universal practice, and from 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 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; but 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

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 for State that a majority of those voting for representatives have voted in favor of the proposed amendments, and they must be ratified by two thirds 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.