effect. A special interest attaches to the cases comprised in this variety, on account of an important constitutional question, considered elsewhere, to which they give rise, namely, Whether, under those instruments, amendments can be effected in any mode, or by any instrumentality, not pointed out by them?1

§ 538. (b.) The mode of effecting amendments to a Consti tution through the agency of the legislature, without a Convention, would seem to be the most natural, because the most simple one. Our fathers, as we have shown, were familiar with its use in England. The peculiar nature of our system, however, made the adoption of the English mode, without material modifications, inadvisable, for by the latter constitutional changes are, as in case of ordinary legislation, the work of King, Lords, and Commons, acting in conjunction. In America, however, fundamental legislation, even when carried on by our General Assemblies, is conducted in a manner very different from ordinary legislation. As, in calling Conventions, the legislature acts under checks unknown to it when exercising its usual function; so here, the restrictions upon its action are so numerous and important, and the departures from the processes of ordinary legislation so wide, that it has been made a question whether, in proposing amendments to the organic law, the legis lature is engaged in an act of legislation at all, a question which it will become our duty in due time to consider.

§ 539. Though this mode, under proper restrictions and in cases to which it is adapted, may be followed without danger, yet it is subject to obvious objections. The legislature is a body chosen for temporary purposes. It is a mirror of political passions and interests, and, with the best intentions, cannot be expected to be free from bias, even in questions of the highest moment. It is composed, moreover, in general, of politicians rather than of statesmen. Indeed, if a man shows himself, by culture and the breadth of his views, to be fitted for the highest trusts, it is nearly certain that he will not be found in the legislature, but be left in obscurity at home. But, when a Convention is called, it is sometimes possible to secure the return of such men. It is not necessarily because such a body is recog nized to be, as it is, the most important ever assembled in a State, but because the measures it is expected to mature bear 1 See post, §§ 564-574.

less directly on the interests of parties or of individuals. Party management, therefore, is not usually so much directed to the seeking of control of a Convention as of a legislature. Besides, the proper function of the latter body, that of municipal legislation, being one of the highest vested by the sovereign in any governmental agency, it cannot but be inexpedient, on a general view, that there should be added to it that of organic legislation, requiring different and higher gifts, and wider experience and study, thus threatening to unsettle the balance of the Constitution.1

§ 540. With proper safeguards, and under adequate checks, however, a legislature, as we have said, may be invested with the power of fundamental legislation without endangering the safety of the state. In point of convenience, such an arrangement possesses many claims to acceptance. The calling of a Convention is a measure attended commonly by much delay and expense, and is often compassed by very great difficulties. Reforms would often be foregone rather than resort to means so inconvenient. The amendments to our Constitutions are very commonly of no great extent; a doubt has arisen, perhaps, as to the construction to be put upon a particular clause; a change may be desired in the qualifications for the suffrage, or in the basis of representation; a branch of the administration is found to be too cumbrous for use; or a new distribution among the agencies of government of their constitutional powers is thought to be advisable to facilitate the transaction of business, or to render public operations more safe or more economical. For amendments of such a stamp, separately considered, the mode by legislative action is well adapted; and it is adapted to no other. It ought to be confined, in my judgment, to changes which are simple or formal, and, therefore, of comparatively small importance. For a general revision of a Constitution, or even for single propositions involving radical changes as to the policy of which the popular mind has not been informed by prior discussion, the employment of this mode is impracticable or of doubtful expediency.

The checks proper to be applied to a legislature, acting in a conventional capacity, are not different from those applied where

1 See Hildreth's Hist. U. S., Vol. I. 2d Series, p. 231; remarks of the author upon the South Carolina Constitution of 1790.

it assumes to call a Convention. They consist of increased majorities, of repeated votes, and of publication and submission to the people. In many cases, as we shall see, all of these devices for preventing hasty action, are employed simultaneously. When measures are thus initiated deliberately, in a right spirit and for proper ends, the conditions of safe legislation seem to be fulfilled.

§ 541. Of the forty odd Constitutions which permit amendments by the specific mode, that is, by combined legislative and popular action, without a Convention, - eleven contain substantially the following provision, copied from the Mississippi Constitution of 1832, which, in that particular, was doubtless modelled after that of the United States.1

"Whenever two-thirds of each branch of the legislature shall deem any change, alteration, or amendment necessary to this Constitution, such proposed change, alteration, or amendment shall be read and passed by a majority of two-thirds of each house respectively, on each day, for three several days. Public notice thereof shall then be given by the Secretary of State, at least six months preceding the next general election, at which the qualified electors shall vote directly for or against such change, alteration, or amendment; and, if it shall appear that a majority of the qualified electors voting for members of the legislature shall have voted for the proposed change, alteration, or amendment, then it shall be inserted by the next succeeding legislature as a part of this Constitution, and not otherwise."

There are minor differences in the several Constitutions of this class. Thus, the restrictive clause at the end is not usually inserted. The other points of difference relate to the majority of the legislature required to recommend a change, and the length of the notice to be given. Thus, in the Constitutions of Louisiana, 1845, and Ohio, 1851, the vote required was threefifths of the members elected to each house; in that of Louisi ana, 1864, it was a majority. In the others it was two-thirds. The length of time required for the notice to the people was generally three instead of six months. That of Louisiana of 1864, however, required only thirty days, and those of Michigan

1 The Constitutions referred to are the following: of Mississippi, 1832; Maine, 1819; Wisconsin, 1846 and 1848; California, 1849; Michigan, 1850; Louisiana, 1845, 1852, and 1864; Ohio, 1851; and Kansas, 1859.

of 1850, and of Maine of 1819, no notice at all. In the Kansas Constitution of 1859, the notice of three months was required to be given by publication in at least one newspaper in each county in the State where a newspaper was published.

§ 542. Of the Constitutions referred to, twenty-five contained provisions in the main similar to the following taken from the Connecticut Constitution of 1818:

"Whenever a majority of the House of Representatives shall deem it necessary to alter or amend, this Constitution, they may propose such alterations or amendments; which proposed amendments shall be continued to the next General Assembly, and be published with the laws which may have been passed at the same session; and if two-thirds of each house at the next session shall approve the amendments proposed, by yeas and nays, said amendments shall, by the Secretary, be transmitted to the town clerk in each town in this State, whose duty it shall be to present the same to the inhabitants thereof, for their consideration, at a town-meeting, legally warned and held for that purpose; and, if it shall appear in a manner to be provided by law, that a majority of the electors present at such meetings shall have approved such amendments, the same shall be valid, to all intents and purposes, as a part of this Constitution."1

The initiation of amendments by this plan, it will be observed, is confined to the House of Representatives. In most of the Constitutions of this class, however, the right originally to propose them is given to either house of the General Assembly, or simply to the General Assembly; after which, if they are agreed to by the requisite majority of each house, they are referred to the General Assembly next to be elected, and published, &c. In several instances the final act of submission to the people is dispensed with.2 As in the class last noted, there are considerable differences in respect of the majorities and the

1 The Constitutions embraced in this class are, of Maryland, 1776; South Carolina, 1790; Delaware, 1792 and 1831; Georgia, 1798; Connecticut, 1818; Alabama, 1819; Missouri, 1820; Massachusetts, 1821 and 1853; New York, 1821 and 1846; Michigan, 1835; Tennessee, 1834; Arkansas, 1836; North Carolina, 1835; Pennsylvania, 1838; New Jersey, 1844; Rhode Island, 1842; Texas, 1845; Illinois, 1847 and 1862; Iowa and Oregon, 1857; and West Virginia, 1863.

2 As in that of Maryland, 1776; South Carolina, 1790; Georgia, 1798; Delaware, 1792; and Florida, 1839.

length of notice required in the various cases, and in other minor particulars. In eight of the cases, both votes of the two houses that preceding and that following the publication of the proposed amendments-were to be of two-thirds of each house, and in eight they were to be of a majority of the same.2 In two cases the votes were to be, the first of two-thirds, and the second of three-fourths; in two they were to be, the first of a majority, and the second of two-thirds; in two, these last fractions were reversed; 5 and in one, the first was to be of three-fifths and the second of two-thirds. In two cases, on the votes in the legislature, there were to be a majority of the Senate and two-thirds of the House.7

On the popular vote to ratify the action of the legislature, a majority was required in all the cases but that of Rhode Island, 1842, which made a vote of three-fifths of the people necessary.

§ 543. There are a few cases which are not reducible to any rule, that it may be useful to note separately. The first of these is that of the Delaware Constitution of 1776, by Section XXX. of which it was provided as follows:

"No article of the Declaration of Rights and fundamental rules of this State, agreed to by this Convention, nor the first, second, fifth (except that part thereof that relates to the right of suffrage), twenty-sixth, and twenty-ninth articles of this Constitution ought ever to be violated, on any pretence whatever. No other part of this Constitution shall be altered, changed, or diminished, without the consent of five parts in seven of the Assembly, and seven members of the Legislative Council." 8

The Articles of Confederation provided, Article XIII., that

1 South Carolina, 1790; Georgia, 1798; Alabama, 1819; Missouri, 1820; Michigan, 1835; Arkansas, 1836; Florida, 1839; and Texas, 1845.

2 New Jersey, 1844; Pennsylvania, 1838; New York, 1846; Rhode Island, 1842; Indiana, 1850; Iowa and Oregon, 1857; and West Virginia, 1863. 3 Delaware, 1792 and 1831.

4 New York, 1821; Tennessee, 1834.

5 Illinois, 1847 and 1862.

6 North Carolina, 1835.

7 Massachusetts, 1821 and 1853.

8 The Legislative Council consisted of nine members, so that five-sevenths of the Assembly and seven-ninths of the Council were necessary to amend the Constitution.