no alteration should at any time be made in any of said articles, "unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislature of every State."

The Federal Constitution provided still a different mode, though it bore in general a strong resemblance to the class first above mentioned, save in the mode of ratification by the people. It was as follows:

"Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution . . . which.... shall be valid to all intents and purposes as parts of this Constitution, when ratified by the legislatures of threefourths of the several States, or by Conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by Congress." 1

1 In connection with this clause of the Federal Constitution, it may not be out of place to consider the animadversions of a late writer respecting the mode thus provided for effecting amendments to that instrument as contrasted with that pursued under the English Constitution. I refer to Fisher, in his interesting work, entitled Trial of the Constitution. Justly admiring the English Constitution, and naturally entertaining great solicitude for the public safety during the perilous times through which we were lately passing, that writer has pronounced the Constitution of the United States to be in comparison with it, inadequate to a crisis like that of 1861-5, in that it does not contain a practicable provision for amendments. In his opinion, had the United States been in a condition to settle the vexed question of slavery through an amendment to its Constitution, effected by the direct action of Congress in its ordinary capacity, the late desolating war would not have fallen upon us. The result of his discussion is, an earnest recommendation of the English mode of fundamental legislation by mere parliamentary majorities, followed up by the formality of the executive sanction.

This view of the subject I regard as a mistaken one. Although it has been stated in general terms to be one of the functions of the English Parliament to enact amendments to the Constitution of the realm, yet that remark is but formally and superficially true, the function of that body being rather to register than to enact them. The fact is, that every considerable change in the English Constitution from Magna Charta down to our day, has been achieved by conflict outside the walls of Parliament —often by the blood of the English people. When victory has declared itself, the principle established by it has by Parliament been written down as a part of the fundamental code the three estates of the realm as it were following in the train of the national armies, and gathering up and depositing among the treasures of the kingdom the fruits of their conflicts. Never, either in England or elsewhere, do the peaceful labors of the legislator produce changes that touch radically the passions or the interests of men. Force

§ 544. It has already been observed that, generally, whichever mode of amending Constitutions is adopted, the intervention of the legislature is required. It either proposes to the people the calling of a Convention, and, if they vote in favor of it, provides for its call; or it recommends specific amendments to be passed upon by the people in some one of the modes referred to.

To this rule there are exceptions, however, in the cases of the Pennsylvania Constitution of 1776, and of the several Constitu tions of Vermont. In these cases the legislatures were allowed no participation in the business of concocting amendments, but they were effected by Conventions, called by a body styled the Council of Censors, which alone had power to propose thema device which experience has shown to be more ingenious than useful. Among the powers of the Council, which was to meet every seventh year, was that of calling a Convention, to meet within two years after their sitting, if there should appear to them an absolute necessity of amending any Article of the Constitution which might be defective, explaining such as might be thought not clearly expressed, and adding such as were necessary for the preservation of the rights of the people; but it was wisely further provided, that the Articles to be amended, together with the amendments proposed, and such Articles as were proposed to be added or abolished, should be promulgated, at least six months before the day appointed for the election of such Convention, for the previous consideration

alone works out such changes. Accordingly, had the American Constitution contained the provision so lauded by Mr. Fisher, the terrible war through which we have just passed would not have been prevented. So soon as party tactics should have failed to guard our Constitution against amendments in the interest of freedom, by filling Congress and the high judicial tribunals with the devotees of slavery, the latter would, precisely as they have now done, have appealed to arms. To men bent upon accomplishing a purpose, a pretext alone is necessary. Had our Constitution distinctly permitted Congress to ordain amendments to the fundamental code, the range within which to seek a pretext for revolution would hardly have been lessened. It is only formal and unimportant amendments that can be thus carried through, by the peaceful action of the majority- amendments of such a stamp that they commend themselves as needful or as proper to all candid minds when first presented, and so appearing are readily acquiesced in, because of slight importance not such as are vital to powerful interests, against which they are aimed, or which, at least, they will most injuriously affect.

of the people, that they might have an opportunity of instructing their delegates on the subject.

This plan, which seems excellent, was not found to work well in Pennsylvania; two stormy sessions of the Council resulting in a hopeless disagreement, after which it never met again, and was abolished in 1790.

§ 545. From Pennsylvania, in the mean time, in 1777, this peculiar provision had been borrowed by Vermont, by which it has been retained until this day. Although, at an early day, this Council did an essential service to the cause of constitutional government in Vermont, by the faithfulness with which it discharged certain censorial duties committed to it by the Constitution, and has been instrumental in initiating some very important constitutional changes, still, on the whole, it cannot be regarded as a success. Of late years, it has been found to be too inflexible, serving rather as a shield to protect, than as a sword to cut down, abuses, and will hence, probably, ere long, give place to some scheme by which the public will can be more certainly reflected. It is doubtful, moreover, whether the election, once in seven years, of a Council for the purpose, among others, of proposing changes in the Constitution, if deemed absolutely necessary, is not practically to hold out inducements to recommend changes whether really necessary or not. If no substantial reform is demanded by the people, a desire to magnify their office is likely to lead the Council to propose amendments of a trivial and unimportant character, lest there should seem to be in them a want either of critical acumen, or of zeal for the public good.

§ 546. With these exceptions, no Constitution has ever contemplated amendments except through the prior ministry of the legislature. In the Massachusetts Convention of 1853, Mr. Hallett, indeed, proposed a plan not subject to the objections existing to that of a Council of Censors, and which, nevertheless, avoided the necessity of legislative intervention in the matter of calling Conventions. His plan was to authorize the qualified electors, in the year 1873, and every twentieth year thereafter, at the general election then to be held, to vote on this question: "Shall there be a Convention to revise the Constitution, in conformity to the provisions of the Act of 1852, Chapter 188, relating to the calling a Convention of delegates of the people for

the purpose of revising the Constitution?" If it should appear, by the returns made, that a majority of the qualified voters throughout the State, who should assemble and vote thereon, were in favor of such revision, the same should be taken to be the will of the people of the Commonwealth, that a Convention should meet accordingly; and thereupon delegates should be chosen, on the first Monday of March next succeeding, and such delegates should meet in Convention in the State House, on the first Wednesday of May succeeding, in the same manner, and with the same authority, as was provided in the second, third, and fourth sections of that Act.1

Though doubtless possessed of some objectionable features, especially in regard to Conventions at fixed periods, and to the character of the Act referred to, the principle of this provision seems in some respects to be salutary. It certainly would obviate the difficulties experienced in many of the States in securing the consent of the legislature to the call of a Convention, to lessen, perhaps, their power and emoluments. One material

question relating to it, however, it is now too early to answer definitively; and that is, whether or not such a provision unduly facilitates the alteration of the Constitution. For want of some such clause, the State of Rhode Island was, in 1842, thrown into a revolution, in which, as is not unusual, the law was on one side, and substantial justice on the other. On the other hand, it is possible, that had the States lately in rebellion against the Union, contained the provision offered by Mr. Hallett, and left no power in the legislatures to meddle with Constitutional changes at all, the inauguration of their revolution would have been prevented. To the leaders of the revolt, the alternatives would have been distinctly presented, either to wait on the movements of the electors in the several States, or openly to violate the Constitution - neither of which would have favored the secession scheme. But, as we have seen, it is, perhaps, now too early to pronounce upon a question which can be determined only by long constitutional experience.

§ 547. It is a matter of interest now to ascertain, first, the nature of the participation of a legislature in the work of amending a Constitution whether the act it performs is an act of legislation or a special ministerial act, finding its analogies in 1 Deb. Mass. Conv. 1853, Vol. III. p. 118.

those of a Convention, which, as we have seen, are mere recommendations addressed to a body above and beyond it, which alone enacts them into laws; and, secondly, when that body recommends amendments to a Constitution, the extent of its power in that particular.

I. In relation to the first subject of inquiry, there will be found, I am confident, upon a careful survey of the whole field, two distinct cases: first, that in which legislatures intervene to call Conventions, or to require the people to vote upon the question of calling Conventions, or upon amendments which legislatures submit to them; and, secondly, that in which legislatures merely, by resolution, declare the adoption of specific amendments to be expedient, as a preliminary step towards submitting them to a vote of the people. In the first case, their action is believed to be strictly legislative; in the second, to be merely ministerial. These will be considered in their order.

In every case in which a legislature intervenes in the business of fundamental legislation, it does so by some vote or resolution; and to determine whether or not, in so doing, it performs an act of legislation, the readiest mode is to examine the result of its deliberations in detail. If it have the characteristics of a law, if it appear to have been passed by the law-making power within the scope of its authority as such, and to furnish a rule of action binding upon individuals, it must be classed with acts of legislation, whatever fine-spun theories may teach to the contrary.

It has been seen that our Constitutions usually provide for the call of Conventions by the legislature, either at their own discretion, or upon the expressed desire of the people voting on the question at some fixed time, or when requested so to do by the legislature. The essence of the provisions, however, is, that the legislature, when moved thereto by an evident expediency, or by the public voice constitutionally expressed, shall call a Convention. This course has been universally followed, and the call has commonly been made in very nearly the same terms. It generally provides for an election on a given day, to choose delegates for a Convention; it prescribes the duty of the delegates, namely, to revise the Constitution, sometimes descending to particulars, as, to amend that part of it relating to the basis of representation, or to the appointment and tenure of judicial