practically it is less to be commended than the one with which it is contrasted.

§ 495. The remaining case, presenting peculiarities in the mode of submission, is that of Territories framing their first Constitutions, preparatory to entering the Union as States.. These are commonly, but, as I am confident, erroneously, cited as cases of non-submission. Assuming, for the present, that it is to the people-the sovereign that Constitutions ought to be submitted, the question, To whom, in particular, should those framed for Territories be submitted? admits of a ready answer. The sovereign authority in the Territories is the peo-ple of the United States. When a Constitution, then, is framed for a Territory, if submitted at all, it should be to the people of the United States, in some one of 'the ways recognized as proper for ascertaining its will. The best way, as we have shown, would doubtless be to take a vote upon the question of the electors throughout the Union; but the practice of the government, under the Constitution of the United States, has been uniformly to leave the adoption or rejection of a Territorial Constitution to the Congress of the United States, the principal representative of the general sovereignty of the Union. This seems, implicitly at least, to be required by those clauses of the Constitution which provide that "new States may be admitted by Congress into this Union," and that "the United States shall guarantee to every State in this Union a republican form of government."1 Beside this, which, in my judgment, is the normal and sufficient mode of submission, another has of late years come into use in these cases. In all, or nearly all, the enabling Acts of Congress authorizing Conventions in Territories of the United States, passed since the troubles in 1855-9 in Kansas, a clause has been introduced requiring those bodies to submit the Constitutions framed by them to the inhabitants of the respective Territories. This course, though theoretically not requisite, is highly proper, since otherwise Constitutions might be forced upon Territories by packed Conventions, in eague with the majority of Congress, to which the people to be governed by them were hostile. It is to be understood, however, that the adoption of this mode is not obligatory upon Congress, and that the action of the territorial inhabitants is

1 Const. U. S., Art. IV. §§ 3, 4.

petitory only, the power of absolute disposition remaining in Congress. It is not probable that the latter would, after the events which occurred in Kansas, ever sanction a Constitution condemned by a vote of a majority of the inhabitants of the Territory fairly taken.

§ 496. Having thus considered the importance of submission in general, and the extent to which it has been practised in our constitutional history, it is proper now to inquire what is involved in the term "submission."

The term "submission," considered as designating a political act, involves, according to the point of view from which it is regarded, two distinct though related conceptions: first, that of something to be done by the submitting body; and, secondly, that of something to be done by those to whom it is submitted. To an adequate exposition of the subject, it is necessary that each of these conceptions should be analyzed, and its several features separately considered; and this, I think, may be: conveniently done by discussing in their order the following subjects:

I. By whom the particular regulations necessary for submitting Constitutions ought to be made.

II. To whom they ought to be submitted.

III. The nature of the act performed by the person or body to whom submission is made.

IV. In what manner Constitutions should be submitted.

V. The final proclamation or announcement by which the act of submission is crowned or consummated.

§ 497. I. In reference to the body by whom the regulations for submitting Constitutions ought to be made, it seems, laying out of view all questions of convenience or economy, that the most proper body is that by which the Convention is called, that is, the General Assembly. That body is in constant direct relations with the people, and with their more immediate representatives, the electors. Its voice is not only known to them, but it is in an emphatic sense their own voice. Moreover, as has been already shown, the legislature has undoubted authority, under its general grant of legislative power, to pass the Acts necessary to submit a Constitution with such restrictions as shall secure respecting it an authentic expression of the public will; to which

1 See ante, §§ 482, 483.

end it may provide by law for punishing such as attempt to cast illegal ballots, or to disturb the quiet of the election. With a Convention, the case is widely different. Conceding to it equal wisdom and experience, its power to legislate is denied by most, and doubted by all, respectable authorities; certainly, its power, by legislation, both to provide for submission with the necessary safeguards, and to enforce by penalties the observance of its requirements. If a Convention has any power at all in the premises, it is confined to that which is indispensable to the complete execution of its commission. It cannot extend to such special considerations as the exigencies of time and place may require, and to meet which, a wide legislative discretion alone is adequate. For, even if no clause of the Convention Act indicates the disposition to be made by the Convention of its work, common sense would seem to require that it should report its proposed Constitution to the body that called it, to deal with as it might deem advisable.

§ 498. The precedents, however, have not conformed precisely to the principles enunciated in the last section. Of the whole number of submitted Constitutions, one hundred and thirteen in all, more than one-half have been submitted in pursuance of their own express provisions, or of ordinances appended to them, containing sometimes specific instructions as to the mode of taking the votes of the people, but generally requiring the same to be taken as in ordinary elections, or leaving the time and mode of conducting the election to the discretion of the respective legislatures. In some cases, submission has been required both by the Constitutions themselves, and by the Convention Acts in pursuance of which they were framed.2

1 These Constitutions are the Articles of Confederation, 1781; the Federal Constitution, 1787; those of Arkansas, 1864, 1868, and 1874; California, 1849 and 1879; Florida, 1839 and 1885; Georgia, 1877; Illinois, 1848, 1862, and 1870; Iowa, 1857; Kansas, 1855, 1857, 1858, and 1859; Louisiana, 1845, 1852, 1864, and 1868; Maryland, 1864 and 1867; Massachusetts, 1821 and 1853; Michigan, 1835, 1850, and 1867; Minnesota, 1857; Missouri, 1865 and 1875; Nebraska, 1865 and 1876; Nevada, 1864; North Carolina, 1868; Ohio, 1851 and 1874; Oregon, 1857; Pennsylvania, 1873; Tennessee, 1834, 1865, and 1870; Texas, 1845 and 1868; the last nine Constitutions of Vermont; Virginia, 1830, 1851, and 1870; West Virginia, 1872; and Wisconsin, 1848.

2 These were the following Constitutions: Arkansas, 1874; California, 1879; Florida, 1885; Georgia, 1877; Illinois, 1848, 1862, and 1870; Iowa, 1857; Kansas, 1857; Louisiana, 1845 and 1852; Maryland, 1864 and 1867; Massa

A careful search has not enabled us to determine, in the remaining cases, by whom the submission of Constitutions has been made. The ordinances of Conventions have not always been preserved. It is safe, however, to say that it has generally been the work of Conventions acting either under express authority of law, or in obedience to the tacit understanding that submission should be made, which has prevailed in this country. The motives which have, doubtless, led to the acquiescence of the people in these acts of legislation by Conventions have been considerations of convenience and economy, both of which are promoted by them.

$ 499. When not done by the Conventions, submission has been commonly effected through the medium of the General Assemblies. It was so done in Virginia, in 1830, though under the direction, or at the request, of the Convention; so, also, in Indiana, in 1851, and in many other cases. The Federal Constitution was submitted by the Congress of the Confederation, in pursuance of the request of the Convention of 1787. In Virginia, the Act under which the Convention of 1850 assembled required it to transmit a certified copy of the Constitution to the General Assembly, in order that provision might be made by law for submitting the same to the people, and for organizing the government under it. This provision, however, was changed by the following legislature, which passed an Act requiring the certification of the Constitution to the Governor, who was authorized to call an election to pass upon its adoption or rejection.

§ 500. II. As to the body to whom submission should be made, it is evident, in general, that no one can be entitled to pass upon the fundamental law but the sovereign itself; or, in the States, some person or body of persons, to whom, by the nation at large, has been committed the exercise of sovereign rights, in local affairs. This would point to the peoples of the several States. But, because it is impracticable to submit it to such bodies, a choice must be made among the various orders of functionaries who represent the sovereign within the several States, or a special body must be deputed to act for them in the matter; chusetts, 1821 and 1853; Michigan, 1850 and 1867; Missouri, 1865; Nebraska, 1865 and 1876; Nevada, 1864; North Carolina, 1868; Ohio, 1851 and 1874; Pennsylvania, 1873; Tennessee, 1865 and 1870; Virginia, 1830, 1850, and 1870; West Virginia, 1872; and Wisconsin, 1848.

and, as the submission must thus, at best, be virtual, it is the duty of the authorities charged with the business of perfecting a fundamental code to see to it that, in selecting the representative to whom submission is to be made, one be chosen who will act therein at once the most honestly, the most intelligently, and the most safely. Applying this test, it is evident that neither of the three ordinary departments of the government, legislative, executive, and judicial, ought to be selected for that office. Not to repeat arguments already sufficiently presented, tending to show the impropriety of confiding fundamental legislation to that department which enacts our ordinary laws, to that which interprets and applies them, or to that which executes them, it is apparent that the electors, the most numerous order of functionaries in the State, withdrawn most completely from the passions and temptations of actual administration, and standing nearer to the people than any other, are the best fitted for that delicate duty. Their number is so great, and they are, withal, so evenly diffused, that the views they may at any time hold may reasonably be presumed to be those of the sovereign, - a presumption, indeed, lying at the foundation of our whole suffrage system,yet they are not so numerous or so diffused as to render a collective ballot by them impracticable. By naming the electors to this office another advantage is gained, one of the utmost importance to all governments founded upon a popular basis, and that is, that substantive powers are not accumulated in a few hands, or in a single department, but are distributed, and thus made to counterpoise each other. The legislature, forbidden itself to meddle with it, calls a Convention to revise the fundamental law. The Convention matures a scheme of amendments. which it deems necessary, and recommends them, but ventures to conclude nothing. The electors, the ultimate body of functionaries, take up the projét which the Convention has forged into shape, and temper and vitalize it by a power derived from the sovereign itself, and which they wield as its immediate representatives. Such is the distribution of functions exhibited in the work of fundamental legislation.

§ 501. It is to the people, then, that is, to the electors

for

1 See §§ 367-372, ante; also speech of Daniel Webster in the case of Luther v. Borden, 7 How. 1, in Great Speeches of Daniel Webster, by E. P. Whipple (Little, Brown & Co., 1879), p. 543.