It

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. 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 communities, 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 submission 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 of submission deemed exceptional, which I shall consider, are those adopted by the Virginia Conventions of 1829 and 1850, by those of Rhode Island of 1842, and West Virginia of 1863. The mode adopted in those cases, substantially the same in all, was to submit the Constitution to the persons thereby qualified to vote at the general State elections. It is evident that, in these cases, a new principle was invoked, namely, that of submitting proposed changes in the fundamental law to persons not intrusted with public functions in the State; in other words, to citizens forming no part of the existing governmental system. Such a submission was, in my judgment, not only a novelty, but a capital innovation, upon which might hang, for the States concerned, the most weighty consequences; and, unless the principles are misconceived, which ought to govern the subject, it was unwarranted and in the highest degree dangerous. In the first case mentioned, that of the Virginia Convention of 1829, the Convention Act had authorized that body to submit the Constitution to such persons as should be qualified by it to vote for members of the House of Burgesses, an authorization which, though in terms ample, it is in my judgment certain the General Assembly had no power to give.

§ 505. In neither of the four cases, so far as I am advised,

1 The Virginia Convention of 1829 was authorized to submit its work “to the voters thereby qualified to vote for members of the House of Burgesses;" that of 1850, "to the voters qualified under the existing or amended Constitution;" that of Rhode Island," to all persons qualified to vote, to all who might be qualified to vote under the existing laws previous to the time of such their voting, and all persons who should be qualified to vote under the provisions of such" (that is, the proposed) "Constitution;" and that of West Virginia, “to all persons qualified to vote under the amended Constitution." In all these cases the class of persons entitled to vote was increased above that under the existing Constitution.

was the propriety of that mode of submission discussed, except in the first. In the Virginia Convention of 1829, a powerful opposition was made to it by some of the leading men in the body. But a measure which received the votes of Barbour, president of the Convention, of Marshall, Tyler, and Madison, though opposed by Leigh, Giles, Nicholas, Mason, John Randolph, Tazewell, and Upshur, cannot be lightly condemned. 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 freeholders did not approve, they might have arrested the proceeding; that they had the same authority to give counter instructions as they had to give original instructions; that they could have gone to the polls again, and commanded the legislature to repeal the Act; but that, as the case was, if the legislature acted at all in the matter, it had plainly to prescribe the objects of the Convention, and how they were to be attained; that the whole subject had been referred to themthere being no other way to do it—and that the only remedy was to arrest the matter in pais; that such being the case,

what had been done? that the second Act, when presented to the freeholders, had been acquiesced in by the election of mem bers everywhere, without complaint or remonstrance; that, if there was any other mode in which the people could express their approbation, it might be said the Act was still unratified; when, therefore, it was complained, that the Convention was proceeding to act definitively upon the right of suffrage, by admitting persons to vote on the new Constitution, without consulting their constituents, the answer was, that it was true, but that their constituents had authorized them so to do; that it would not be pretended that their constituents had no such power, because it had never been supposed that the principal was necessarily bound to retain the right of ratifying the acts of his agent; that it might have been unwise in the people to grant such a power, but that was a question for the constituent body alone; that, finally, it was too late to assert such a limitation of the power of that body, since the existing Constitution of the State had never been submitted to the constituent body for their ratification; that, if that instrument was valid, as the supreme law, it was because the people had tacitly expressed their assent to it by electing officers under it, and by acquiescing in its provisions.

§ 507. On the other hand, by Mr. John Randolph, Nicholas, and others, it was contended, that, conceding the right of the General Assembly, by its second Act, to provide for the call and organization of the Convention, it transcended its power in authorizing that body to submit the result of its labors to any body but to the freeholders themselves. Thus, Mr. Randolph said:

"By whose authority did the legislature pass the .... Act under which we are assembled here? By the authority of their constituents. And who are their constituents? The freeholders of the Commonwealth. By whose authority do we sit here? Whence is our power? From our constituents.

And who are our constituents? The same answer must be given, the freeholders of the Commonwealth. Now, the freeholders of the Commonwealth having given their sanction to the. . . . Act of the legislature I refer to the first as well as the second Act on the subject of a Convention - and deputed us here to propose amendments to the old Constitution, or the

draft of a new one, to whom, I ask, in the nature of things, did the freeholders suppose the new Constitution was to be submitted for adoption or rejection? Must it not have been to that original authority, to that source and fountain, from whence is derived all our authority as a Convention? I mean to themselves? Let me suppose a case. A majority of the freeholders of Virginia . . . . being the body politic of Virginia, have consented that a Convention shall assemble for the purpose of devising amendments to the existing Constitution or proposing a new Constitution in its stead. Now, sir, the freeholders of Virginia have not yet decided — though they have decided that amendments shall be submitted to them that, with worse than the stupidity of Esau, they shall be deprived of their birthright. The Convention are proposing that the former limits of the right of suffrage shall be extended, I will say, ad indefinitum. Who is to decide on this question? Those to whom we propose to extend that right? Unquestionably, no; no more than the people of Ohio or Pennsylvania have a right to decide it. They have no right whatever; they have not a shadow of right. . . . . Sir, it is as plain as any proposition in Euclid, sir, it is plainer — it is self-evident that no other power on earth, save that power from which this Convention derives all its authority to propose any Constitution at all, can rightfully pronounce on the validity of our acts, or decide upon the acceptance or rejection of such Constitution as we shall make." 1

§ 508. The same principles that govern the foregoing cases, in which submission was made to the electors plus citizens not within the electoral circle, will settle that of submission to a part only of the electors, not representing the whole body.

This latter mode was attempted, in a case already referred to, by the Illinois Convention of 1862.2 In that case, an Ordinance was passed, entitled "An Ordinance to secure to the citizens of Chicago and the corporate authorities thereof the right to elect and appoint their own officers." By its terms this Ordinance was to be submitted, on the third day of the ensuing April, to the legal voters of the city of Chicago, and, if adopted, was to have the effect of repealing certain statutes obnoxious to a

id.

1 Deb. Va. Conv., 1829, pp. 866, 884, 885. See also Speech of Mr. Nicholas, p. 891.

2 See ante, §§ 430-434.