except other provisions by declaring them to be amendable. The General Assembly, in amending the Constitution, does not act in the exercise of its ordinary legislative authority, of its general powers; but it possesses and acts in the character and capacity of a Convention, and is, quoad hoc, a Convention, expressing the supreme will of the sovereign people, and is unlimited in its power save by the Constitution of the United States. Therefore every change in the fundamental law, demanded by the public will for the public good, may be made subject to the limitation above named." 1

§ 553. Three years later, the composition of the Supreme Court having undergone a change, another case, similar in its essential circumstances, except that the Circuit Court had pronounced against the validity of the amendment, notwithstanding the above decision, came before that tribunal on appeal taken by the respondent.2

After full argument, the main point decided by the court in The State v. Cox, was overruled, the judges holding, that the provisions of the Bill of Rights constitute the essential principles of free government- the great landmarks of freedom that the power to repeal or change them is not given to the General Assembly when acting either in the exercise of ordinary legislative authority or in the exercise of the higher power of amending the Constitution, but is reserved to the people themselves, acting through a Convention, lawfully called.

The principal argument by which this position was supported, rested upon a construction of Section 24,- the concluding section of the Bill of Rights, a part of which has been given above, but which, entire, is as follows:

"This enumeration of rights shall not be construed to deny or disparage others retained by the people; and to guard against any encroachment on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare, that every thing in this Article is excepted out of the general powers of government, and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void."

By the court it was maintained, that one of "the higher pow1 The State v. Cox, 3 English's R. 436. 2 Eason v. The State, 6 English's R. 481.

ers herein delegated," was the power of amendment; since, they said, in those terms must be included all the powers delegated, whether they be denominated "general powers" or "specific powers;"" inevitably, therefore," it was said, "if these powers of amendment be a portion of the higher powers delegated,' which no one will attempt to gainsay, they must necessarily be as much within the controlling influence of the provisions of the Bill of Rights, as any others of these delegated powers."

·

§ 554. Upon this decision of the court, I shall make but one or two observations.

That the reasoning of the court in relation to Section 24 of the Bill of Rights and the power of amendment, is utterly fal lacious, becomes evident when that section is fairly interpreted, according to its terms, and considered in connection with the other sections of the Bill of Rights.

Read and interpreted as it should be, Section 24 is as fol lows:

"This enumeration of rights shall not be construed to deny or disparage others retained by the people," - that is, the rule of law, "expressio unius est exclusio alterius," shall not obtain, as a rule of construction, in relation to this Bill of Rights, but the people shall hold and enjoy all such rights as belong to them, whether specified in this Bill of Rights or not; -" and to guard against any encroachment on the rights herein retained," that is, in this Bill of Rights specially reserved to the people; "or any transgression of any of the higher powers herein delegated," that is, in this Bill of Rights delegated; "we declare that every thing in this Article," that is, in this Bill of Rights, "is excepted out of the general powers of government, and shall forever remain inviolate," that is, the three departments of the government, created by the following Articles of this Constitution, legislative, executive, and judicial, and invested, severally, in gen eral terms, with governmental powers, shall not, by reason of the generality of the grants of power to them, presume to encroach on the rights, or transgress any of the powers, in this Bill of Rights retained or delegated, but the same shall forever remain inviolate; "and" we further declare, "that all laws contrary thereto, or to the other provisions herein contained, shall be void," that is, that all laws, passed by the General Assembly, by virtue 1 Eason v. The State, 6 English's R. 481 (490).

of its general power of legislation, contrary either to the rights retained, the powers delegated, or the other provisions contained in this Bill of Rights, shall be void.

§ 555. That this is the true interpretation of the section in question is evident from a careful inspection of the Bill of Rights as a whole. The interpretation given requires us to find in the Bill of Rights three classes of provisions: 1, such as reserve to the people rights; 2, such as delegate powers; and 3, other provisions, differing from both the other two.

Of the first class there are numerous examples, such as the right to bear arms, freely to assemble and to apply for redress of grievances, &c. Of powers delegated, instances are found in Section 23, which provides, that "the military shall be kept in strict subordination to the civil power;" and in Section 8, which permits the giving of the truth in evidence in prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity; and empowers juries" to determine both the law and the facts" in all indictments for libels. These provisions clearly involve a grant of power to the General Assembly to make laws in harmony with them, and to carry them into effect, making it at the same time its duty to do so. Of other provisions, examples are found in those clauses of the Bill of Rights which are couched in negative terms, and operate as restraints upon the various departments of the government, in the exercise of their acknowledged powers, rather than as substantive grants, or positive recognitions of rights or powers. Such are the provisions against ex post facto laws, the putting of persons twice in jeopardy of life or limb, for the same offence, and the like.

Having thus its full operation by applying it to the Bill of Rights alone, it is, in my judgment, erroneous to extend the provision of the 24th Section, as do the Court in the case under consideration, to that part of the Constitution relating to the making of amendments by the General Assembly.

Besides, it is noticeable, that it is "out of the general powers of government" that every thing enumerated in the Bill of Rights is excepted, not out of powers which are not powers of government at all, like that of amending the Constitution given to the General Assembly. A power of government is a power which expends itself in administering or operating the political

machine established by the Constitution, not one which goes to the rebuilding of that machine itself; or, to use a metaphor already once employed by me, it is a power proper not for the millwright, but for the miller.

I need hardly say, therefore, that I deem the first decision of the Supreme Court, in the case of The State v. Cox, the better law. It expresses with admirable brevity, force, and clearness, the true doctrine in regard to the power of our General Assemblies under similar clauses of our Constitutions.

§ 556. III. The question has been raised, whether or not propositions of specific amendments to a Constitution, made by a legislature, under the constitutional provisions referred to, ought to be submitted to the executive for approval.

Judging of this question from a priori considerations, it seems that the answer should be, that whenever the propositions are coupled with provisions which impart to the legislative Act, in whole or in part, the force of law, according to the principles above explained,1 they ought to receive the approval and the signature of the executive; but that when they bear only the character of recommendations, they ought not to be submitted to the executive. The reason for this distinction is simple. By our Constitutions, all Acts of the legislature, before they can become operative as laws, must receive the sanction and signature of the executive branch of the government. An Act which is not legislative in its nature, and when perfect and operative to the full extent intended by its framers, is yet destitute of all vigor as a law, not coming within the terms of the constitutional provisions, would clearly not be subject to the same conditions.

1. This question, so far as relates to amendments to the Federal Constitution, has been several times the subject of discussion in Congress, and once of adjudication in the Supreme Court of the United States.

The clauses of the Constitution of the United States, bearing on the question, are as follows:

"Art. V. The 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 part of this Constitution, when ratified by the legislatures of

1 See ante, §§ 547-550.

three-fourths of the several States, or by Conventions in threefourths thereof, as the one or other mode of ratification may be proposed by Congress."

Art. I. Sec. 7. "Every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment), shall be presented to the President of the United States; and, before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations presented in the case of a bill."

§ 557. It would naturally be supposed that a recommendation of amendments by Congress, by two-thirds of both houses, if not a bill, might properly be designated as a resolution or vote; and hence, that by the very terms of Art. I. Sec. 7, above quoted, such a recommendation ought to receive the approval of the Executive.

On the other hand, a close examination of Article V. shows that it contemplates nothing but a mere expression of opinion that amendments to the Constitution are necessary. That body being a numerous one, and representing the people, it is deemed probable that, whenever two-thirds of both its branches pronounce particular organic changes to be expedient, such is the sense of the people at large. There is to be no submitting of propositions to a vote of the people, consequently no directions for conducting an election, or making returns of votes, - in short, no prescribing of a rule of action to officers or citizens, for the reason that all action upon the subject is to be taken by separate agencies fully organized under State laws. In this view of the Constitution, then, the necessity of executive approval seems to be very doubtful; and of this opinion are the authorities generally.

Amendments to the Federal Constitution were proposed by Congress in 1789, in 1794, in 1803, and in 1866, and in neither case were they presented to the President for his approval.1 The same is substantially true of the amendments relative to slavery proposed by the same body in 1865.2

1 See Speech of Senator Trumbull of Illinois, in the Senate of the United States, in Daily Globe for Feb. 8, 1865. See also Hollingsworth v. Virginia, 3 Dall. R. 878. 2 Ibid.