legislative authority, the legal exponent of the will of the majority, which alone is entitled to the force of law.1 The mode usually employed is that of summoning a Convention; and it is doubtful if any means are legitimate for the purpose indicated but Conventions, unless employed under an express warrant of the Constitution. The idea of the people thus restricting themselves in making changes in their Constitutions is original, and is one of the most signal evidences that amongst us liberty means not the giving of rein to passion or to thoughtless impulse, but the exercise of power by the people for the general good, and, therefore, always under the restraints of law.

§ 529. But, while the framers of our Constitutions have sought to avoid the dangers attending a too frequent change of their fundamental codes, they have adverted to an opposite danger, to be equally shunned that of making amendments too difficult. With a view to obviate this danger, in all our late Constitutions there have been inserted special provisions, the tenor of which will be explained hereafter. The general principle governing their selection, and, in truth, lying at the foundation of the whole subject, as a branch of practical politics, is this: Provisions regulating the time and mode of effecting organic changes are in the nature of safety-valves, they must not be so adjusted as to discharge their peculiar function with too great facility, lest they become the ordinary escapepipes of party passion; nor, on the other hand, must they discharge it with such difficulty that the force needed to induce action is sufficient also to explode the machine. Hence the problem of the Constitution-maker is, in this particular, one of the most difficult in our whole system, to reconcile the requisites for progress with the requisites for safety. This problem can

1 See Curtis' Hist. Const. U. S., Vol. I. pp. 261-264.

2 Mr. John Stuart Mill thus states the problem : - "No government can now expect to be permanent unless it guarantees progress as well as order; nor can it continue really to secure order unless it promotes progress. It can go on, as yet, with only a little of the spirit of improvement. While reformers have even a remote hope of effecting their objects through the existing system, they are generally willing to bear with it. But, when there is no hope at all,when the institutions themselves seem to place an unyielding barrier to the progress of improvement, the advancing tide heaps itself up behind them till it bears them down.". - The French Revolution and its Assailants, in "Miscellanies."

not be yet regarded as solved, though we are doubtless approximating to a solution. Every new Constitution gathers up the fruits of past experience, and in turn contributes something to the common stock. We have reached such a stage that the provisions of our latest Constitutions may be considered as adequate to all ordinary exigencies of our condition. No community of American citizens would be badly provided for, were it compelled to accept any one of a score of Constitutions now in force amongst us, without modification, save in unimportant particulars depending on provisions merely local in effect.

§ 530. Having thus formed a general conception of the doctrine of amendments in the American system, I pass to inquire, -I. What modes have been provided by our various Constitutions for effecting them? II. What are their comparative excellences and defects?

I. There are two modes of effecting amendments, thus far devised: first, that by the agency of Conventions; and, secondly, that by the agency of our General Assemblies, without Conventions both regularly followed by a ratification by the people.

Of the whole number of our Constitutions to which I have had access, forty-four have contained provisions for making amendments through Conventions, and forty-three through the intervention of the legislature, - commonly called the specific mode, from the fact that it is used for effecting specific amendments, generally few and relatively unimportant. Of the fortyfour which have provided for Conventions, twenty have provided also for amendments by the specific mode, so that these latter figure in both lists. Stating the result in another way, twentyfour Constitutions have contained provisions a thorizing the call

1 The number of Constitutions is obviously less than that of Conventions, since many of the latter have framed no Constitutions, but only amendments, of so little importance that they have not been incorporated in their respective Constitutions, but merely appended to them; and many which have framed socalled Constitutions have been revolutionary bodies, for which reason the results of their labors have been repudiated as of no validity, and I make no account of them.

A considerable number of Constitutions, moreover, known to exist, I have not been able, after much research, to find at all. I have succeeded in ferreting out about eighty, referred to in the next succeeding note.

of Conventions only; twenty-three, authorizing the enactment of amendments in the specific mode only; and twenty, in both modes. Beside these, ten Constitutions known to me have contained no provision whatever relating to the subject; and one, that of Georgia of 1777, contained provisions for that purpose, but of what nature I have been unable to ascertain.1

§ 531. From the foregoing statement, it is evident that the two modes of amending Constitutions are of about equal antiquity and about equal authority. The specific mode originated with the Continental Congress, and its particulars were, in that case, determined by the relations of the Confederation to the States. The mode of amending or revising by Conventions called for that purpose, was first adopted by Pennsylvania in 1776, from which State it was, in the following year, borrowed by Vermont. These two modes, devised thus in the first years of our independence, have kept pretty equal pace throughout the whole range of our constitutional history, some Constitutions adopting one mode and some the other; but, for the first

1 The Constitutions comprised in the various classes indicated, with the dates at which they were framed, are shown in the following lists - reckoning as Constitutions as well amendments as complete revisions :

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1. Constitutions which have authorized amendments through Conventions only: Those of Pennsylvania, 1776; Vermont, 1777, 1786, 1793, 1822, 1828, 1836, 1843, 1850, and 1857; Georgia, 1789; Kentucky and New Hampshire, 1792; Tennessee, 1796; Kentucky, 1799; Ohio, 1802; Louisiana, 1812; Indiana, 1816; Illinois, 1818; Iowa, 1846; Kentucky, 1849; New Hampshire, 1850; Maryland, 1851; Kansas, 1857.

2. Constitutions authorizing amendments in the specific mode only :- Those of Maryland and Delaware, 1776; the Articles of Confederation, 1781; the Constitutions of Georgia, 1798; Connecticut, 1818; Alabama and Maine, 1819; Missouri, 1820; Massachusetts and New York, 1821; Mississippi, 1832; Tennessee, 1834; Arkansas, 1836; Pennsylvania, 1838; Rhode Island, 1842; New Jersey, 1844; Louisiana and Texas, 1845; Missouri, 1846; Indiana, 1851; Louisiana, 1852; Oregon, 1857; Missouri, 1865.

3. Constitutions authorizing amendments in both modes: -Those of the United States, 1787; Delaware, 1792 and 1831; and Michigan and North Carolina, 1835; Florida, 1839; New York and Wisconsin, 1846; Illinois, 1847; Wisconsin, 1848; California, 1849; Michigan, 1850; Ohio, 1851; Massachu setts, 1853; Kansas, 1855; Minnesota and Iowa, 1857; Kansas, 1859; Illinois, 1862; West Virginia, 1863.

4. Constitutions containing no provisions on the subject: - Those of Virginia, New Jersey, North Carolina, and New Hampshire, 1776; New York, 1777; New Hampshire, 1779 and 1783; Pennsylvania, 1790; and of Virginia, 1830 and 1851.

sixty years, only two authorizing both modes, that of the United States of 1787, and that of Delaware of 1792. During the period beginning with 1830 and ending with 1865, however, nine Constitutions have provided for amendments by Conventions only, twelve in the specific mode only; and nineteen in both modes, showing a growing conviction that the specific mode has advantages which make its more general adoption seem desirable, and yet that it alone is not adequate to the exigencies of the times, but needs to have coupled with it a provision for a Convention when the people should deem it necessary or expedient to make a general revision of the Constitution.

$532. II. To determine the excellences and defects of these two modes of amending Constitutions, they must be considered with reference to their tendency, respectively, to prevent or to alleviate the three great evils of popular government, hasty legislation, excessive legislation, and partisan legislation. Let us consider, from this point of view,

(a). The mode by Conventions.

It is obvious that, were the existing government of a State, or any branch of it, invested with the power, without condition or limit, to call Conventions to change the organic law, there would be cause to apprehend two dangers: one, that the permanent, and, therefore, paramount and sacred character of that law would be impaired; for, what the government could at any time procure to be changed or repealed, would, in effect, be but an ordinary statute; the other, that our Conventions would become the arenas, and our Constitutions the objects as well as the instruments, of party conflict. The right of the people, at any time to amend their Constitutions must be admitted; but as they can never do this directly, the necessity becomes apparent of checks, to render it probable that a movement to that end has been sanctioned by them, and that it has been done upon due consideration. What those checks should be, is a problem of which the conditions will vary with the circumstances of the case. In this country, the difference between States which differ most is but slight, and hence the results of their individual experience are in the main equally useful to all. Conventions being universally called amongst us by legislative authority, the checks must be such as will obviate the evils above enumerated, resulting from haste, excess, and partisan zeal, in legislation.

§ 533. The readiest mode of preventing these evils is either to increase the majority required to call a Convention, or to compel the submission of the legislative Act, passed for that purpose, to the people, before it shall take effect.

The first of these checks would doubtless be efficacious, unless the minority, invested with a veto upon the Act, were too small. On most questions, of whatever magnitude or character, if the vote of a party were sufficient to determine results, it would be likely to be cast as the interest of the party should require. In the see-saw of politics, it is rare that a party very much or very long outnumbers its antagonist. Hence, if party majorities were allowed free scope to tamper with our organic laws, there would be nothing stable in them. On the other hand, if a reform of the fundamental code be really needed, men of all parties will admit the fact, or enough men in all parties to carry it. Should the proposed amendments, however, assume a partisan character, or for any other reason be improper to be made now, or at all, there should be no room for danger of their adoption. It seems evident, then, that where the check is sought in numbers, a majority is too small, and a unanimous vote too large, for either practicability or safety. A mean must be sought not liable to these objections, and that not from à priori considerations, but from experience. What that mean has generally been in the practice of the several States, will be seen further on.

§ 534. The second check, which is found in a submission of the question of calling a Convention to the people, seems more efficacious. By the term "people" is meant, theoretically, the political society, but practically, as we have seen, the body of the electors, which is its representative, at the nearest hand. The views of the latter, expressed in any mode adapted to its organization, may more fairly be presumed to be those of the political society than those of any body less numerous and further removed from it; and, therefore, whenever the electors have assented to the call of a Convention, its necessity or eminent propriety may be considered to be beyond doubt. Such a body may be swayed by passion, but it will be by a passion that is national. A State, in which the passion of a majority of its electors, on high questions of fundamental law, is selfish and local, must be near its downfall. At all events, when a legisla