twenty two, to the persons voting, or qualified to vote, for representatives or members of the General Assembly;1 nine, to Conventions called by Councils of Censors; 2 one, to the freemen of the State; and one, to the inhabitants voting in town meeting.* Some of the provisions touching the submission of Constitutions described in this and the preceding section relate to the first Constitutions of States formed out of territory of the United States, and the phraseology referred to indicates the persons to whom, not the regular submission required by the Federal Constitution, was made for that, as we have seen,5 is always to the Congress of the United States - but that supererogatory submission authorized by Congress of late years, for the purpose of securing the settlers in our Territories against a recurrence of the outrages which so foully disgraced the American name in Kansas. In all cases of Territories framing their first Constitutions, it is believed, that submission can with strict legal propriety be made only to the people of the United States represented in Congress, and they have all of necessity conformed to this rule; that is, no Territories have ever been admitted into the Union under Constitutions without the submission of the same to that body for approval, and without its previous consent to their admission as States.

§ 502. Among the instances of submission given, are a few which deserve special attention on account of their exceptional character. Of these, the first that I shall mention are the two cases of Constitutions framed for the United States. The Constitution, improperly so-called, of the Confederation, comprised in thirteen articles, was the Constitution of a league of States, each of which expressly reserved to itself "its sovereignty, freedom, and independence." It was, therefore, a mere treaty, and, of course, its framers, the Continental Congress, were bound to

1 Constitutions of Alabama, 1819 and 1867; Arkansas, 1868; California, 1849; Florida, 1868; Iowa, 1846 and 1857: Michigan, 1835, 1850, and 1867; Nevada, 1864; New Jersey, 1844; New York, 1821 and 1846; North Carolina, 1835 and 1868; Tennessee, 1834 and 1870; Texas, 1866, 1868, and 1876; and Virginia, 1870.

2 Constitutions of Pennsylvania, 1790, and Vermont, 1785, 1792, 1820, 1827, 1834, 1841, 1848, and 1855.

3 Constitution of Vermont, 1870.

4 Constitution of Maine, 1820.

5 See ante, § 495.

submit it to the States, of which they were the representatives. This course was followed, and that instrument was ratified by the States as political societies, each acting by its legislative Assembly. The Federal Constitution, on the other hand, was a Constitution based not only on States, but on individuals, and so far involved the substitution, for the principle of a league, of that of a national government. It had been found that the system of the Confederation was so powerless as to make it nearly useless for many purposes of government. Necessity required the enlargement of the plan, and not a mere revision or amendment of the government framed on the existing plan. Accordingly, although nothing was swept away which had shown itself useful, unless clearly incompatible with the plan demanded by the public necessities, the system proposed was, in its most characteristic particulars, a radically new one. It was a national government with federal features, instead of a mere league, with scarcely any features at all of an effective government. While it preserved the States, as political cominunities, they entered into the new system shorn of many of their most important powers. The new government was, in its essence and organization, a popular government, and not a mere sleazy union between popular governments; and in it first emerged into prominent political self-assertion The People of the United States, in whose name it purported to be framed.

$503. The sources, then, from which the Federal Constitution must seek ratification, were three: first, the existing government of the Union, embodied in the Congress of the Confederation; secondly, the States, as political organizations, represented by their legislatures; and thirdly, the people of the United States, by that Constitution made the inheritors of many of the powers and responsibilities of the two former. The necessity of securing a ratification of the new system by the Congress of the Confederation and by the States is apparent, as well from the fact that they were required by it to yield, the first all, and the second much, of its power to that system, as because the 13th Article of the existing Constitution expressly forbade the making of any alteration in its terms, "unless such alteration should be agreed to in a Congress of the United States, and be afterwards confirmed by the legislature of every State." Submission to the people of the United States, on the other hand, was

demanded by the consideration that they were really the principals, in whose name the great act was to be consummated, whilst all others, the Congress and the States, were subordinates and accessories.

Accordingly, the Convention of 1787 provided for a submis sion which should satisfy all these conditions, in the following resolution:

"Resolved, That the preceding Constitution be laid before the United States in Congress assembled, and that it is the opinion of this Convention that it should afterwards be submitted to a Convention of delegates, chosen in each State by the people thereof, under the recommendation of its legislature, for their assent and ratification."

By acting according to this resolution, it is evident that both the government of the Confederation and those of the States would express their assent to the new Constitution. The provision that the people of the several States should elect delegate. Conventions to pass upon it, fulfilled the remaining condition, since thus, and thus only, could the people of the United States vote upon the proposed Constitution as a whole, that is, by voting in groups by States.

§ 504. The next cases deemed exceptional which will be consid ered are those of Constitutions submitted by legislatures or Conventions, without constitutional authority, to a class of persons differing from that of the electors qualified to vote at general elections. Of these, the largest proportion were cases in which submission was made to the electors plus certain designated classes of persons previously not entitled to vote at such elections, and the residue, of cases in which submission was made to the electors minus certain classes of persons thus entitled, according to existing laws. To these should be added two cases in which submission of Constitutions was made to an electorate both increased and diminished, as compared with that qualified by the

1 Of the first description were the Constitutions of Illinois, 1870; Kansas, 1859; Louisiana, 1845 and 1852; Michigan, 1835; New York, 1821; Rhode Island, November, 1841 and 1842; Texas, 1845; Virginia, 1830 and 1850; and West Virginia, 1863.

Of the second, was the Maryland Constitution of 1864. To this may be added the case of the Chicago Ordinance, so-called, submitted to the voters of Chicago by the Illinois Convention of 1862. See § 508, post.

existing Constitutions. Thus, the Tennessee Convention of 1834, in submitting the Constitution of that year, restricted the suffrage given by the Constitution of 1796, by inserting the word "white," and enlarged it by no longer requiring a freehold as a qualification for an elector, as did the Constitution of 1796. The Arkansas Convention of 1868, on the other hand, in submitting its Constitution, enlarged the previous suffrage by striking out the word "white," and restricted it by disfranchising persons who were electors according to existing laws, for offences connected with the war of the rebellion. In a few cases, the Conventions, by schedules or ordinances, required submission to be made to the electors qualified to vote according to both the existing and the amended Constitutions. In most of these cases the effect was, on the whole, doubtless to increase the existing electorate. In five of them the Convention Acts expressly authorized the Conventions to submit in the manner described,2 but in the residue no such authority was given or pretended.

It is evident that, in these cases, a new principle was introduced, namely, that of submitting proposed changes in the fundamental law to persons other than the body entrusted with the electoral function under existing laws; in some cases, to citizens forming no part of the existing governmental system; in others, to a part only of the citizens comprised in that system. Such a submission, especially, when made to persons not forming a part of the existing electorate, it is conceived, was not only a novelty but a capital innovation, upon which might hang, for the States concerned, the most weighty consequences; and, unless the principles which ought to govern in the enactment of fundamental laws are misconceived, it was unconstitutional and in the highest degree dangerous. In those cases in which the Convention Acts had authorized such a submission, the respective Conventions, acting upon the authority given, are chargeable with a less offense against constitutional principle than those which assumed the power without legislative warrant. But though the authorization of the legislatures was, in terms, ample, it was one which those bodies, with the single exception of Rhode Island,

1 These were the Constitutions of Louisiana, 1845 and 1852; Texas, 1845; and Virginia, 1850.

2 These were the cases of New York, 1821; Rhode Island, 1841 and 1842; and Virginia, 1830 and 1850.

had very clearly no constitutional power to give. By its charter of 1663, the General Assembly of that State was authorized "to make, ordeyne, constitute or repeal . . . such laws, statutes, orders, and ordinance . . . as to them shall seeme meete, for the good and wellfare of the sayd company,"-terms, doubtless, covering the definition of the right of suffrage. In the absence of such constitutional authority, however, for a legislature, by its mere action as such, either to enlarge or to diminish the classes entitled to the right of suffrage as determined by the Constitution, is to repeal or to modify the fundamental law, and so beyond their competence.

§ 505. In neither of the cases in which the body of the citizens to whom submission was made was increased, without constitutional authority, was the propriety of such action discussed, save in that of the Virginia Convention of 1829. In that Convention a powerful opposition was made to it by some of the leading members, Leigh, Giles, Nicholas, Mason, John Randolph, Tazewell, and Upshur. A brief synopsis of the arguments advanced by both sides may be useful, premising merely that there had been passed by the General Assembly of Virginia two Acts relating to that Convention: first, an Act submitting to the people the question of calling a Convention; and, second, after the people had, by a large majority, sanctioned such a call, an Act to call and organize the Convention, in which was inserted the provision relating to submission before referred to.

§ 506. By the friends of the mode of submission proposed by the committee of the Convention on that subject, in conformity with the authorization of the General Assembly, it was argued, that when an affirmative answer was given by the people to the simple question propounded by the General Assembly, whether they desired a Convention or not, it was their intention that the Assembly should give expression to the public will, as well with respect to the manner in which the Convention was to proceed as to the purposes for which it was to be holden; that here, then, was the authority of the constituent body; here was the voice of the principals, to whom the legislature were but agents; that, acting under that authority, they declared the manner and purpose of the Convention; that that declaration, however, was not obligatory, had no sanction, did not bind the freeholders to send delegates; that, if it contained anything which the free