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was never denied or even doubted; and, as we have seen, though there have been exceptions, in general all Constitutions of that class have contained Bills of Rights.

§ 99. The chief practical advantage of Bills of Rights, as above intimated, is that they furnish a guide to the departments of the government in the exercise of their powers and duties in cases of doubt. They are for them what prudential maxims resulting from individual experience are for men in the ordinary concerns of life. But the experience from which the former are drawn is that of society, accumulated in the course of many centuries, and so, not likely to be that also of the individuals who administer the government, nor to be known to them unless specially inculcated in some conspicuous manner. It is upon the determinations of courts of justice that they have the most direct and beneficial effect. In questions of constitutional power or duty, in their bearing upon private rights, they are an invaluable guide, and our books of reports are filled with cases, the decisions of which turned upon the principles embodied in them. These principles, indeed, may be distinguished from the provisions of that part of the Constitution denominated the Frame of Government, as embracing, the former, guaranties for private rights, and the latter provisions relating to the policy of the State and to its political power and organization. It being impossible in general language to lay down rules for the determination of particular cases, our courts would, on very many questions of construction, be wholly afloat, without the fixed principles of public policy and private right laid down in our Bills of Rights.

§ 100. 2. The Frame of Government is that part of a written Constitution in which are described the structure and functions of the government; that is, the distribution of political power, the particular agencies which are to wield it, the extent and duration of their authority, their emoluments, modes of appointment or election, and the apparatus designed for amending or reproducing the system. Though in general all official persons and duties are delineated in this part of the Constitution, there are some exceptions, as in case of sheriffs, whose election merely is regulated, without specifying their duties or powers. They being officers well known at common law, a description of those 1 Sedgwick on Stat. and Const Law, pp. 475-6.

particulars is deemed unnecessary, as being involved, to the common apprehension, in the name of the office. The same is true. of some other functionaries, as coroners, the higher military officers, judges of the courts, and others.

§ 101. In the Frame of Government are often, especially in the later Constitutions, included also positive provisions relating rather to the general policy of the State than to its political power or organization. Thus, many contain clauses designed to promote education, to encourage charitable institutions, to deter mine the status of the citizens of the State, as slave or free, or to regulate corporate rights, as of banks or of railroad companies, or the privileges of particular classes of citizens, such as homestead exemption, rights of married women, and the like. Indeed, as Constitutions embody settled policy, as well as the general features of the political organization, so fast as measures of policy become really settled, that is, removed from the arena of party conflict, they are commonly enshrined in the Constitution, so that every generation, in communities like ours open to progress, witnesses an extension of these provisions in our fundamental charters. Beside these provisions, State Constitutions usually contain others defining the boundaries of the territory claimed as within their jurisdiction; and, in close relation thereto, announcing the State policy with reference to the management and disposition of the public domain, or to internal improve

ments.

§ 102. 3. The Schedule is that part of a written Constitution in which are comprised provisions deemed necessary-1, to ascertain the will of the people with respect to the adoption of the instrument, matured by a Convention, as the Constitution of the State; 2, to effect, without inconvenience or embarrassment, the transition from the old to the new order of things, and to save rights, acquired under existing laws, from lapsing by their repeal; 3, to set up and put in operation the institutions and agencies described in the Constitution, so far as not already in operation. These provisions are mostly temporary in purpose. and effect; and although they are, some of them, of a character more or less fundamental, they seem incongruous with the permanent provisions of the Constitution, properly so called, and with the Bill of Rights. Beside these, which are the usual aud

proper contents of a Schedule, are sometimes found others, whose true place is in the Frame of Government, or whose character is such that they cannot rightfully find any place in a Constitution. Of the former, sections relating to subjects treated of in the body of the instrument, but bearing upon points which have apparently been forgotten, or which are mere after-thoughts, are instances. It is, perhaps, rather a sense of logical completeness and order than substantial propriety which is offended by such provisions; but if a Schedule is a proper subdivision of a Constitution, it should be, not in the nature of a labor-saving postscript, made at the expense of clearness and finish, but of an appendix, in which to gather provisions of a temporary and miscellaneous character, related to the instrument in the main only as subservient to its general objects. Among provisions which ought to find no place in a Constitution at all, but which are, nevertheless, occasionally placed in a Schedule, may be mentioned laws or ordinances relating to the submission of the Constitution to the people, to take effect at once, in cases where power to make such laws or ordinances has been expressly withheld by the legislature calling the Convention, or where different directions have already been given to that end by the legislature itself, and, perhaps, where the legislature has been altogether silent on the subject of submission. The objection to such provisions is, that they are exercises of a legislative discretion not belonging to a Convention; and as, from the nature of the case, the action of such a body, in placing them in the Schedule as rules of conduct, cannot be revised, but is definitive, it is an excess of authority to assume to enact them. Whether or not it might be allowable to make such provisions in the case last supposed, where the legislature has been silent on the subject of submission, or of the time and mode in which it shall be made, is a fair subject for argument, which will be considered in a subsequent chapter.1

§ 103. It should be noted that the Schedule did not make its appearance until after the first batch of Constitutions, including those of the Union, had been framed and put in operation. The first Constitutions in which it was used were those of South Carolina and Pennsylvania, framed in 1790. Of the Constitutions now in force, only about two in three have them, though in a

1 See §§ 480, 481, 497-499, post.

few instances a separate article containing similar provisions is embraced in the Constitution, without special designation, or under the title of General Provisions.

§ 103 a. Beside schedules, there are appended to many Constitutions acts adopted by Conventions, called ordinances. Not all ordinances, however, are so appended, or have any direct relation to Constitutions. They are in their nature resolutions of the bodies adopting them, but taking the name, ordinances, to distinguish them from the similar acts of legislative bodies, denominated resolutions, which may be adopted by the Houses severally or jointly. Within the scope of the powers of a Convention, ordinances may be valid and effectual according to their terms and purpose. If they are employed to provide for temporary emergencies of the Convention, and do not transcend the limits of its powers as defined or implied in the act calling it, they are valid. If they are appended to the Constitution, and with it are submitted to the people for adoption or rejection, when submission is not dispensed with, and with it adopted, they are as valid as any part of the Constitution, and are equally binding upon the various departments of the Government.1

Before leaving the subject of Constitutions, it is proper to observe, that, wherever in this work the term "Constitution " is used, a written Constitution will be intended, unless the contrary is intended.

1 Stewart v. Crosby, 15 Texas R., 546; 13 Am. Law Reg. (O. S.), 716.

CHAPTER IV.

OF THE REQUISITES TO THE LEGITIMACY OF CONVENTIONS, AND OF THEIR HISTORY.

§ 104. HAVING, in the two preceding chapters, considered the doctrine of sovereignty, by which are mainly to be determined the powers of the Constitutional Convention, and defined what is meant by a Constitution, to frame which is the business of that body, I pass now to a series of inquiries having for their purpose to determine the requisites to the legitimacy of Constitutional Conventions, namely, first, What is the proper mode of initiating or calling a Convention? and, secondly, By whom should Conventions be elected?

These questions will form the subject of the present chapter, and will be considered from two separate points of view; 1, from that of theoretical principles; and, 2, from that of historical precedents.

§ 105. Before entering upon the wide field thus brought to view, it will be useful to ascertain the import of two terms,. which will be very frequently used in the course of the discussion, namely, legitimacy and revolution, with their derivatives.

The primary signification of the term legitimacy is accordance with the law, and it is most commonly employed with reference to the birth of children, to characterize it as lawful. In European governments, sovereignty being generally ascribed to the reigning monarch, from whom it descends to his offspring, according to certain rules, the legitimacy of a government follows from the personal legitimacy of the occupant of the throne, and vice versa; hence the term has there come to bear very commonly a merely political signification to characterize governments deemed to be regular and lawful, because, in the devolution of the rights of sovereignty from one incumbent of the throne to another, the established rules of legitimate succession have been observed.

§ 106. To the legitimacy of a prince of the blood, it is essential that he should be the offspring of the reigning monarch and his wife, begotten and born in lawful wedlock and during their joint occupancy of the throne, or the legitimate offspring of parents sustaining that relation. This rule, though apparently

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