§ 523. Some of the above modes of announcement are sufficiently indefinite. Others have been practised, however, that are still more so. Thus, in the Maryland Convention of 1850, and that of Minnesota of 1857, the Schedules merely provided that, if a majority of all the votes cast should be for the Constitutions submitted, the same should be deemed to be adopted as the Constitutions of those States respectively. The Massachusetts Convention of 1779, and that of Kentucky of 1849, adopted still a different mode of announcing the result of the submission to the people. Having matured their respective Constitutions, and provided for a vote of the people upon them on a certain day, they adjourned to a day subsequent to that fixed for the election, at which time they reassembled, received the returns of the elections, and announced their results to the people by proclamation. A different mode was adopted by the last two Conventions of Massachusetts — those held in 1820 and 1853. The returns of the elections were made to the Secretary of the Commonwealth, were canvassed, and the votes counted by committees of the Conventions, appointed for that purpose previously to their dissolution, and proclamation of the results made by the Governor. In the Pennsylvania Convention of 1837, the returns of the elections were opened by the Speaker of the Senate, in joint session of the two houses, the result publicly announced by him, and a formal certificate of that fact made and filed among the public archives.

The Constitution having been submitted to the people under regulations restricting the right to vote, within the State, to qualified electors who should have taken a prescribed oath, but permitting soldiers in the service of the United States to vote outside the limits of the State, the returns of the election coming into the hands of the Governor to be counted, an application was made to the Superior Court of Baltimore City for a rule upon the Governor to show cause why a mandamus should not be issued commanding him, in ascertaining the number of votes cast at the said election, to count certain votes tendered and rejected because the required oath had not been taken, and to exclude certain others cast by soldiers beyond the limits of the State.

The application being refused, the case was carried to the Court of Appeals, by which the judgment of the court below was affirmed, a majority of the court holding that the power to pass upon the returns in such a case was a political and not a judicial power, and, therefore, was not subject to revision by the judicial tribunals. See Miles v. Bradford, Governor of Maryland, 22 Md. R. 170, (decided at the June Term, 1864.) For a complete statement of the facts of this case, including the proceedings in the court below, see Deb. Md. Conv. 1864, Vol. III. Appendix.

§ 524. In case of the Territories, the proper authority to make the announcement is evidently the government of the Union, representing the people thereof. Accordingly, the mode of offi cially making known the establishment of a new Constitution, and the contemporaneous birth of a new State, is for Congress either to pass an Act reciting the framing of the Constitution, that it is republican in form, and concluding with a declaration that the Territory is thereby admitted into the Union, or to an ticipate the action of the Territorial Convention by providing that such a body might meet to frame a Constitution and State government, or to accept conditions of admission into the Union imposed by Congress, their Constitution having been already formed, and that, thereupon, if the action of the Convention should be favorable, its results should be announced by a procla ination of the President, and the admission of the Territory into the Union be complete.

Of all the modes of announcement above described, that by a formal proclamation is clearly the most conformable to theoretical principles, and the most satisfactory in a practical point of view. From this there is, however, a descent through various gradations until modes of promulgation are reached, which are so indefinite and so inadequate, that it seems a matter of the greatest good fortune that serious embarrassments have not followed their adoption. Thus, take the cases in which it was provided that the Constitutions should go into effect, if adopted by a majority of the votes cast at an election on a day fixed, but in which no provision whatever was made for a canvass of the returns of the election, or for a promulgation, by some recog nized official authority, of its results. That disputes have not arisen involving the validity of the fundamental Acts thus loosely ushered into the world, is due, not to the sufficiency of the processes by which they were promulgated, but to the peace and order of the times, and the utter absence of motive to raise, respecting their validity, even a doubt.

CHAPTER VIII.

§ 525. As the plan of this treatise extends only to a discussion of the Convention, the mode of initiating or calling, and of organizing it, its functions, powers, and modes of proceeding, the foregoing chapters would seem to complete the circle, and to render improper the consideration of other topics not strictly within that plan. But while this is, in the main, true, it may, nevertheless, be useful to touch upon the subject of constitutional provisions for amending Constitutions. And, in one view of it, a discussion of that topic may be regarded as logically involved in an exhaustive treatise upon the Convention system. We have seen, that the creation or renovation, by an organized political society, of its Constitution of government, is analogous to the exercise of the procreative function in animals — obviously, an important topic in their natural history — and, as the Convention is the principal organ through which the political body effects changes in its Constitution, whether extending to its transformation or to its mere reparation, no discussion of that organ would be complete which should overlook the Constitutional provisions regulating its use and operation, or which should omit to state its excellences and defects as compared with those of other modes of attaining the same ends.

§ 526. By the principles of general law, the right of a people, at any time, to recast their political institutions, cannot be denied. The questions upon which difficulties arise, are, as to the extent to which it may be done, under given circumstances, without endangering the entire system, as to the modes of doing it, and the instruments through which it shall be effected. These questions, recurring under all forms of government, receive various answers, according to their respective circumstances and conditions. The cluster of States forming the American system are so dissimilar to those of Europe, in any age, that little light can be drawn, in this respect, from the practice of the latter, or

from the writings of their statesmen and publicists. Between England and the United States, there is, it is true, the sympathy of race, and the institutions of the former were the model after which those of the latter were built; but the imitation was not close, and in many of their most important features the institutions of the two countries are as variant as are those of England and Austria. The provisions of the English Constitution for effecting changes in itself are unique, being the fruits of the signal victory by which the Parliament in 1688 became the dominant power in the realm. Ever since that revolution, to that body has been conceded the power to enact fundamental, as it does the statute laws, by bill passed through the regular stages of legislation, and approved by the sovereign.

In America it was early felt in many of the States that although the governments succeeding to the colonial establishments were based upon the will of the people, limitations must be imposed upon the latter in regard to amending their Constitutions. The wisest statesmen of the time saw that, in a country where the people were admitted to a direct participation in the government, party passions and interests would be likely to lead to too much tampering with Constitutions, if effectual checks were not interposed. They, therefore, framed governments which, in this particular, departed from the English model. Their Constitutions, purporting to define the powers of the several branches of the government, in no case permitted definitive amendments by the legislature, and most of them omitted all mention of the power of amendment. A few, as the Articles of Confederation, the Federal Constitution, and those of Maryland and of Delaware, framed in 1776, gave that power to the legislature, but under restrictions which reduced it far below the power so familiar to our fathers in the Parliament; and two made provision for Conventions to be called for that purpose, also under restrictions,- those of Pennsylvania and Vermont.

§ 527. But it would be wrong to imagine the existence among the people of the United States, during the Revolutionary period, of a ripened public opinion on the subject of amending their Constitutions. There was, even in the States most noted for their steadfast zeal in the cause of liberty, a great lack of sound views of the power of the people over the institutions

they had founded, and of the safe methods of perfecting them. Thus, in Massachusetts, whose first Constitution contained no provision for amendments, the doctrine of the Revolution, that governments were founded by the people, and could be amended by them as they should think fit, was erroneously understood to warrant tumultuous assemblages of citizens, without legal authority, to dictate to the government not only its current policy, but amendments of the fundamental law. Shay's Rebellion was the natural outgrowth of such views, quickened, doubtless, by the distress almost universal in a community not yet recovered from the effects of a long war. The first batch of American Constitutions, moreover, were many of them framed in extreme haste, for temporary purposes, when little was thought or known of the best modes of constructing or amending such instruments. In several instances the State governments were intended to be mere provisional organizations, to be laid aside, not when new and better ones should be provided, but upon the expected contingency of a peace with England, following as a consequence of a redress of grievances. The result was, that the Constitutions first framed generally contained no provision for their future amendment, since the necessity of amendment was not at that time apprehended.

§ 528. But silence upon a subject of such importance was liable to misconstruction, and was therefore dangerous. Hence the policy of regulating by express constitutional provisions the exercise of so important a power soon began to be generally apparent. In several of the States the clauses of the Constitutions relating to amendments have been couched in negative terms, interdicting amendments except in the cases and modes prescribed. In a majority of the cases, however, they have been permissive, pointing out modes in which Conventions may be called, or specific amendments effected, without terms of restriction, or allusion to other possible modes.

But however liberal these provisions may seem to be, restriction is really the policy and the law of the country. By the common law of America, originating with the system we are considering, and out of the same necessities which gave the latter birth, it is settled, that amendments to our Constitutions are to be made only in modes pointed out or sanctioned by the 1 Curtis' Hist. Const. U. S., Vol. I. pp. 261-264.