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,1 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.

2

when we speak of the actual administration of government, it is they whom we mean by the term people that Constitutions are properly to be submitted. How far this principle has been carried out in practice may be inferred from the requirements, first, of Convention Acts, and secondly, of Constitutions, as to the persons to whom Constitutions were to be submitted.1 These will be considered in their order, beginning with Convention Acts. 1. Of the Constitutions submitted in pursuance of special provisions of the Convention Acts, some were submitted to the qualified electors or voters of the State; some, to the people ; 3 one, to the freeholders and inhabitants qualified to vote for representatives; two, to the freemen of the several towns; 5 two, to persons entitled to vote for members of the General Assembly; and ten, being those framed by the second series of Reconstruction Conventions, to the male citizens of the several States, twenty-one years of age and upwards, of whatever race or previous condition, resident in such States one year previous to the election, except persons disfranchised for rebellion or for felony at common law.7

1 Obviously the best evidence on this point would be the Acts or resolutions of the legislatures or Conventions describing the persons who were to vote on the question of adopting or rejecting the proposed Constitutions. As most of the submissions made have been made by Conventions, some by provisions inserted in the schedules attached to such Constitutions, and some by ordinances subsequently passed, which are often published neither in the journals or proceedings of the Conventions, nor in the collections of State statutes, we must content ourselves with the best data that are accessible, which are believed to be the Convention Acts and the Constitutions.

2 Convention Acts of Alabama, 1875; Connecticut, 1818; Delaware, 1852; Florida, 1885; Georgia, 1833 and 1839; Illinois, 1847, 1862, and 1869; Indiana, 1850; Iowa, 1844, and 1857; Maryland, 1850, 1864, and 1867; Missouri, 1861; Nebraska, 1875; Nevada, 1863; New York, 1846; North Carolina, 1875; Ohio, 1850 and 1873; and Pennsylvania, 1837 and 1872.

8 Convention Acts of Massachusetts, 1820 and 1853; Michigan, 1850 and 1867; New Hampshire, 1781, 1850, and 1876; North Carolina, 1835; Tennessee, 1865 and 1870; Virginia, 1850 and 1861; West Virginia, 1872; and Wisconsin, 1846.

4 Convention Act of Massachusetts, 1780.

5 Convention Acts of Rhode Island, 1824 and 1834.

6 Convention Acts of California, 1879; Georgia, 1877; and Iowa, 1846 and 1857.

7 Convention Acts of Alabama, 1867; Arkansas, Florida, Georgia, Louisi

The Convention Acts of a few States contained special provisions of an unusual character. Thus, that of the New York Convention of 1821 required the Constitution it should frame to be submitted to the citizens entitled to vote for delegates under that Act, which, as we have seen,1 had extended the right to vote to citizens not before entitled, and at the same time had disfranchised certain classes of colored voters. So, the Convention Act of New Jersey, 1844, required submission to be made to the persons qualified by the same Act to vote for delegates-a class much larger than the electorate established by the existing Constitution, that of 1776, because of the omission of the property qualification required by the latter. In like manner, the Act calling the Virginia Convention of 1829 had directed the submission of the new Constitution to the persons authorized by it to vote for members of the most numerous branch of the legislature. The same was, in substance, true of the Acts calling the two legitimate Conventions of Rhode Island, of 1841 (November) and 1842, both of these Acts extending the franchise as fixed by the charter, and requiring the Constitutions which should be framed to be submitted to the persons by those Acts qualified to vote for delegates, and to those declared entitled to the suffrage by the new Constitution. The call of the People's Convention of the same State, held in 1841, extended the suffrage to all male American citizens aged twenty-one years, who had resided in the State one year, and required the Constitution framed by the Convention to be submitted to the voters as thus described, upon certain days named, and added the remarkable provision, that every person who, "from sickness or other causes," did not vote on one of those days, might send his vote in to the moderator within three days thereafter." The New York Convention Act of 1867 required the submission to the persons entitled by law to vote for members of the General Assembly, but provided that no person should vote who would not, if duly challenged, take and subscribe a prescribed oath of fidelity to the United

ana, Mississippi, North Carolina, South Carolina, Texas, and Virginia, 1868. Very similar were the provisions of the Act calling the Kansas Convention of 1857, save as to the residence required, which was thirty days in the Territory and ten days in the county, and save that it did not include a provision for disfranchisement.

1 Ante § 264.

States. Mention has already been made of the call of the Pennsylvania Convention of 1789, which recommended by the Act calling it to publish the amendments and alterations it should propose, and adjourn at least four months previous to confirmation of the same; a proceeding which might be considered as nearly equivalent to a submission to the people.1

§ 501 a. 2. Constitutional provisions respecting submission have been of two kinds: first, such as required the submission of the instruments of which they formed a part, and, secondly, such as required the submission of the Constitutions which should be framed by future Conventions.

Of the former variety, nineteen have directed submission to be made to the qualified electors or voters of the State; 2 four, to the citizens of the State entitled to vote for members of the General Assembly; and one, to the people without further description. In three cases of Territorial Constitutions, submission was required to be made to the white male inhabitants of the respective Territories over twenty-one years of age resident in the district in which they offered to vote.5 One Territorial Constitution framed in 1864, that of Nevada, required submission to be made to the persons qualified by the laws of the Territory, on certain dates mentioned, to vote for representatives to the General Assembly, including soldiers in the army of the United States in or out of the Territory. Three Constitutions, framed by Conventions called under the Reconstruction Acts of March and July, 1867, were required to be submitted to the voters of the State

1 See ante, § 491.

2 These are: Arkansas, 1874; California, 1849; Florida, 1838; Indiana, 1851; Iowa, 1846 and 1857; Kansas, 1855; Louisiana, 1864; Maryland, 1851 and 1867; Missouri, 1875; Nebraska, 1866 and 1875; Ohio, 1851; Oregon, 1857; Pennsylvania, 1873; Tennessee, 1834 and 1870; and West Virginia,

1872.

In the cases of Indiana, 1851, and Maryland, 1851 and 1867, the provisions touching submission were indirect and inferential, since they merely regulated the submission which was assumed rather than directly required. The class of persons authorized to vote were, however, indicated with sufficient clearness to be those stated in the text. In Tennessee, 1865, the taking of a stringent oath of loyalty was made a condition of the right to vote.

8 Constitutions of California, 1879; Illinois, 1848 and 1862; and Michigan, 1850.

4 Constitution of Kansas, 1858.

5 Constitutions of Kansas, 1857; Minnesota, 1857; and Wisconsin, 1848.