"We think this provision ought not to be a part of the Constitution, because, First. Each department ought to act on its own responsibility. Second. Judges may be called on to give opinions on subjects which may afterwards be drawn into judicial examination before them by contending parties. Third. No opinion ought to be formed and expressed by any judicial officer affecting the interest of any citizen but upon full hearing according to law. Fourth. If the question proposed should be of a public nature it will likely partake of a political character, and it highly concerns the people that judicial officers should not be involved in political or party discussions. We therefore recommend that this second article should be annulled." Ibid. p. 629.

Upon submission to the people the article of amendment embodying this recommendation was lost, by a vote of 12,471 yeas to 14,518 nays. Ibid. p.

633.

In like manner the Convention of 1853 proposed the annulment of the provision, but the entire Constitution framed by that body was rejected by the people. In Massachusetts, therefore, a proposition which received the approval of the leading lawyers and judges of the Convention, of all parties, and which involved simply a legal or constitutional question, was twice voted down by a majority consisting largely of farmers, mechanics, and tradesmen; though it is fair to say that, upon the last occasion, their hostility to the amendments proposed may have been directed partly or wholly to other provisions.

For a statement of the classes of questions, proper and improper to be submitted under provisions of the kind we are considering, see 10 Cl. & Fin. Ch. R. 200; 37 Mo. R. 135; 51 Mo. R. 586; 55 Mo. R. 497; 58 Mo. R. 469; 64 N. C. R. 785-796; 122 Mass. R. 600; 126 Mass. R. 557, 562; 5 Metc. R. 596; 9 Cush. R. 604.

F.

AT the extra session of the New York legislature, in November, 1820, a Lill passed both houses, by the provisions of which a Convention was to be called, without referring the question to the people in the first instance. Delegates were to be chosen in February, 1821, and the Convention was to assemble in June following. This bill was sent to the Council of Revision, who returned it with the following objections, drawn up by Chancellor Kent, and concurred in by his Excellency Governor Clinton, and Chief Justice Spencer, and dissented from by Justices Yates and Woodworth, - Justices Van Ness and Platt being absent.

IN ASSEMBLY, November 20, 1820.

Objections of the Council to the bill calling a Convention. In Council of Revision, November 20, 1820,

Resolved, That it appears improper to the Council that the bill, entitled "An Act recommending a Convention of the people of this State," should become a law of this State.

1. Because the bill recommends to the citizens of this State to choose by bal

lot, on the second Tuesday of February next, delegates to meet in Convention, for the purpose of making such alterations in the Constitution of this State as they may deem proper, without having first taken the sense of the people whether such a Convention, for such a general and unlimited revisal and alteration of the Constitution, be, in their judgment, necessary and expedient.

There can be no doubt of the great and fundamental truth, that all free governments are founded on the authority of the people; and that they have at all times an indefeasible right to alter or reform the same, as to their wisdom shall seem meet. The Constitution is the will of the people, expressed in their original character and intended for the permanent protection and happiness of them and their posterity; and it is perfectly consonant to the republican theory and to the declared sense and practice of this country that it cannot be altered or changed, in any degree, without the expression of the same original will. It is worthy, therefore, of great consideration, and may well be doubted, whether it belongs to the ordinary legislature, chosen only to make laws in pursuance of the provisions of the existing Constitution, to call a Convention in the first instance, to revise, alter, and perhaps remodel the whole fabric of the government, and before they have received a legitimate and full expression of the will of the people that such changes should be made.

The difficulty of acceding to such a measure of reform, without the previous approbation of the constituents of the government, presses with peculiar force and with painful anxiety upon the Council of Revision, which was instituted for the express purpose of guarding the Constitution against the passage of laws ❝ inconsistent with its spirit."

The Constitution of this State has been in operation upwards of forty years, and we have but one precedent on this subject, and that is the case of the Convention of 1801. But it is to be observed that the Convention in that year was called for two specific objects only, and with no other power or authority whatsoever. One of these objects was merely to determine the true construction of one of its articles, and was not intended to alter or amend it; and the other was to reduce and limit the number of the Senators and Members of Assembly. The last was the single alteration proposed; and perhaps, even with respect to that point, it would have been more advisable that the previous sense of the people should have been taken. But there is no analogy between this single and cautious case and the measure recommended by the present bill, which is not confined to any specific object of alteration or revisal, but submits the whole constitutional charter with all its powers and provisions, however venerable they may have become by time and valuable by experience, to unlimited revisal. The Council have no evidence before them, nor does any legitimate and authentic evidence exist, that the people of this State think it either wise or expedient that the entire Constitution should be revised and probed, and perhaps disturbed to its foundation.

The Council, therefore, think it the most wise and safe course, and most accordant with the performance of the great trust committed to the representative powers under the Constitution, that the question of a general revision of it should be submitted to the people in the first instance, to determine whether a Convention ought to be convened.

The declared sense of the American people throughout the United States on

this very point cannot but be received with great respect and reverence; and it appears to be the almost universal will expressed in their constitutional char ters that Conventions to alter the Constitution shall not be called at the instance of the legislature without the previous sanction of the people by whom those Constitutions were ordained.

The Constitution of Massachusetts was established in 1780, and contains the earliest provision on this subject. It provided that, in the year 1795, the sense of the people should be taken on the necessity or expediency of revising the Constitution; and that if two-thirds of the votes of the people were in favor of such revision and amendment, the legislature should provide for calling a Convention. The Convention now sitting in that State was called in consequence of a previous submission of such a question to the people. The Constitution of South Carolina was ordained in 1790; and in that it is declared that no Convention shall be called unless by the concurrence of two-thirds of both branches of the legislature. And the Constitution of Georgia, established in 1798, contains the same provision; thus showing, that though the people be not previously consulted on the question, yet a more than ordinary caution and check upon such a measure was indispensable. The Constitution of Delaware, of 1792, declares very emphatically that no Convention shall be called but by the authority of the people, and that their sense shall be taken by a vote for or against a Convention; and that if a majority of all the citizens shall have voted for a Convention, the legislature shall make provision for calling one. The same constitutional provision, that no Convention shall be called to alter or amend the Constitution, until the sense of the people by vote shall have been previously taken, whether, in their opinion, there was a necessity or expediency for a revision of the Constitution, has been successfully adopted, by the Constitution of New Hampshire, in 1792; by the Constitution of Tennessee, in 1796; by the Constitution of Kentucky, in 1799; by the Constitution of Louisiana, in 1812; by the Constitution of Indiana, in 1816; by the Constitution of Mississippi, in 1817; and by the Constitution of Illinois, in 1818.

It would, as the Council apprehend, be impossible to produce higher and more respectable authority in favor of such a provision, and of its value and safety.

2. Because the bill contemplates an amended Constitution, to be submitted to the people to be adopted or rejected, in toto, without prescribing any mode by which a discrimination may be made between such provisions as shall be deemed salutary and such as shall be disapproved by the judgments of the people. If the people are competent to pass upon the entire amendments, of which there can be no doubt, they are equally competent to adopt such of them as they approve, and to reject such as they disapprove; and this undoubted right of the people is the more important if the Convention is to be called in the first instance without a previous consultation of the pure and original source of all legitimate authority. And it is worthy of consideration, and gives additional force to the expediency and fitness of a previous reference to the people, that time will be thereby given for more mature deliberation upon questions arising upon the Constitution, which are always momentous in their nature and calculated to affect not the present generation alone but their distant posterity, and when the legislature may probably have it in their power to avail themselves of a more

just and accurate apportionment of the representation in the Convention among the several Counties in this State.

Ordered, That the Secretary deliver the bill, together with a copy of the objections aforesaid to the Honorable Assembly.

J. V. N. YATES,

Secretary.

INDEX.