no Convention is to be called to amend the same, "unless in pursuance of a law to take the sense of the people on the question of calling a Convention, nor unless a majority of the votes of the people should be in favor of a Convention." It also provides that no members of a Convention are to be elected "until one month after the result of the poll should be ascertained and published;" and that all Acts and Ordinances of any such Convention are to be submitted to the voters of the State for ratification or rejection, and "are to have no validity whatever until they are ratified."

The question as to the force of such provisions may be determined by considering the case of a Convention called by the legislature of West Virginia, without submitting the question of calling it to the voters, as required by the Constitution. It is believed, it would be impossible to attribute to such a body any validity or legitimacy whatever. The Act by which it should be assembled would have been passed in direct and palpable violation of the paramount law of the State, and would, therefore, bind neither the magistrate nor the citizen; it would be an act of revolution. This is too plain for argument; and, doubtless, all cases depending on provisions of a similar character are to be governed by the same considerations.

§ 564. That the estimate formed in the last section of the force of the negative provisions in question is a correct one, may be inferred from the acts and expressed opinions of the members of the Federal Convention, in relation to the Articles of Confederation, in which a similar provision relating to amendments was contained. By the 13th of those Articles, it was provided that no alteration should at any time be made in any of those Articles, "unless such alteration (should) be agreed to in a Congress of the United States, and be afterwards confirmed by the legislature of every State." It is well known that the Federal Constitution of 1787 was, in direct violation of that Article, confirmed, not by the legislature of each State, but by Conventions called in the several States. It was provided, moreover, in that Constitution, in palpable contradiction to the same Article, that that instrument should go into operation as to the ratifying States, when they should comprise, not the whole thirteen States constituting the Confederation, but nine States, at least. In fact, the new Constitution went into opera

tion on the 4th of March, 1789, when only eleven States had ratified it, North Carolina withholding her assent until the 21st of November following, and Rhode Island, until the 29th of May, 1790. But, the point to be noted is, that while the Federal Convention acted, in the particular mentioned, in evident violation of the existing Constitution, it frankly admitted that fact, and excused its illegal and revolutionary proceedings upon the ground of absolute necessity. Our fathers were convinced of two things: first, that the salvation of the United States depended on the substitution of a firm national government for the loose Confederation then existing; and, secondly, that to attempt to effect that change by the unanimous action of the State legislatures, as required by the 13th Article above quoted, would be to court failure, which would be nearly certain ruin. Hence the Convention, and hence its irregular provision for securing the adoption of the system it recommended.1 In this case, then, it is clear, that the act of disregarding the provisions of the 13th of the Articles of Confederation, was done confessedly as an act of revolution, and not as an act within the legal competence of either the people or the Convention, under the Constitution then in force. It was truly a revolutionary act, happily, indeed, consummated without actual force, but involv ing, as possible elements of the problem, both violence and bloodshed, should they be needed to make the revolution effectual.

§ 565. There are certain cases, however, in which amendments have been effected in spite of such negative provisions, where attempts have been made to justify them on legal grounds. One of the most notable of these occurred in Delaware, in 1791-2. The first Constitution of Delaware, Article XXX., was as follows:

"No article of the Declaration of Rights and Fundamental Rules of this State, agreed to by this Convention," (that of 1776,) "nor the first, second, fifth (except that part thereof that relates to the right of suffrage), twenty-sixth, and twenty-ninth articles of this Constitution, ought ever to be violated on any pretence whatever; no other part of this Constitution shall be altered, changed, or diminished, without the consent of five parts

1 For the arguments relating to this subject in the Convention, by which the above statements are confirmed, see Elliott's Deb., Vol. V. pp. 352–356, 499-502,

532-534.

in seven of the Assembly, and seven members of the Legislative Council."

As the Assembly consisted of only seven Representatives, and the Legislative Council of only nine members, this provision required, to amend the Constitution in those parts which were made liable to amendment, five-sevenths of the one, and seven-ninths of the other, and the amendments were to be effected through the agency only of the legislative branch. Nevertheless, in 1791, the legislature passed an Act calling a Convention to revise and amend the Constitution. Accordingly, a Convention was elected, assembled in 1792, and framed the second Constitution of the State.

Similar action was taken in 1850 in the State of Maryland. The Constitution of 1776, then in force, Sec. 59, provided that neither the Form of Government nor the Bill of Rights, nor any part thereof, should be altered, changed, or abolished, "unless a bill so to alter, change, or abolish the same should pass the General Assembly, and be published at least three months before a new election," &c.

After violent contests between the friends and enemies of a reform of the State Constitution, an Act was finally passed in 1850, in direct violation of this provision of that instrument, to call a Convention, the result of which was the election of such a body, and the adoption by it of the Constitution of 1851.

§ 566. Attempts, as I have said, have been made to defend this action of the States of Delaware and Maryland, on legal grounds. In the case of Delaware, the legality of the course pursued was distinctly asserted by Mr. Bayard, the Senator from that State, in a speech delivered in the Senate of the United States, in 1858, upon the Lecompton Constitution. As one reason why it would not be unjust to force that Constitution upon the people of Kansas against their will, he affirmed, that it would be in their power at any time to amend it, should it prove distasteful to them, notwithstanding positive provisions were contained in it forbidding amendments for a fixed period; and, to establish that position, he referred to the action of his own State in 1792; the broad principle being asserted by him, that a majority of a people could not be restrained by constitutional inhibitions from changing their fundamental law when

and as they pleased. The reasoning, in brief, by which this remarkable proposition was sustained, was comprised in these political axioms, resulting, as he claimed, "from the nature of man:" first, that all powers of government rest ultimately in the people at large; secondly, that a majority of those who choose to act may organize a government; and, thirdly, that the right to change is included in the right to organize, and may in like manner be exercised at any time by a majority. According to these principles, as the Senator affirmed, "the right of a majority to organize a government, under the law of the social compact, precludes any power in that majority to render the government they form unalterable, either for twenty or ten years, or for one year; because such a restriction is inconsistent with their own authority to form a government, and at war with the very axiom from which their own power to act is derived." 1

§ 567. So, in reference to the Maryland case, the Hon. Reverdy Johnson, United States Senator from that State, in a late letter respecting certain proceedings of the Maryland Convention of 1864, said:

"No man denies that the American principle is well settled, that all governments originate with the people, and may by like authority be abolished or modified; and that it is not within the power of the people, even for themselves, to surrender this right, much less to surrender it for those who are to succeed them. A provision, therefore, in the Constitution of any one of the United States, limiting the right of the people to abolish or modify it, would be simply void. And it was upon this ground alone that our Constitution of '76 was superseded by that of '51. . . . . The Constitution of 1851, therefore, rests on the inherent and inalienable American principle, that every people have a right to change their government." Subsequently, referring to this principle, he says: "In its nature it is revolutionary, but, notwithstanding that, it is a legal principle.”2

§ 568. Two points involved in these extracts deserve consideration.

1. The right is claimed for the people to establish and to 1 Appendix to Vol. XXXVII. of the Congressional Globe, p. 188.

2 Letter to William D. Bowie and others, dated October 7, 1864, published in the N. Y. Daily Tribune of June 5, 1865.

change their governments at pleasure—a right which cannot in general be denied. But who are the people? In the true sense of the term, it means the political society considered as a unit, comprising in one organization the entire population of the State, of all ages, sexes, and conditions. Unquestionably, it is the right of the people in this sense to found its institutions, and to determine how they shall and how they shall not be abolished or amended. Having ordained the mode, however, in which changes therein may, and in which they shall not, be made, clearly no mode can be legal which contravenes the express letter of that fundamental provision. The society has, it is true, the physical power to override its own restrictions. But such an act would most certainly be illegal, because in violation of the letter of the law. Even were the whole people, by unanimous action, to effect organic changes in modes forbidden by the existing organic law, it would be an act of revolution.

2. That whatever the people are authorized to do, a majority of them may do, is generally true-by the term majority meaning the greater number. But it is important to determine the stage at which that proposition holds good. Nature knows nothing of any majority but that of force. Anterior, then, to any positive institutions, and this side an appeal to force, nothing less than the whole can rightfully bind the whole. It is only when a political society, with positive laws and compacts, has been established, that the whole can be bound by the action of a number less than the whole; and the number to which shall be accorded the power to act for the whole, and the conditions under which it may so act, are matters of positive regulation, in which alone they find their warrant. From this it is apparent, that a mere majority in number of all the citizens of a State, or of the electors of a State, have no right whatever to act for the whole State, unless they can point to authority to that effect, express or implied, in the Constitution of the State; and that if the action taken or proposed by such majority is palpably in the teeth of a constitutional provision, it is usurping and revolutionary. This, it will have been observed, was admitted by Senator Johnson in the extract given above, although, it is true, that eminent lawyer gave utterance to the astounding. paradox, that the action of the Maryland Convention was at once revolutionary and legala contradiction, which we have