part of the legislature being requisite, except by resolution to notify the towns to vote on the proposed amendments as prescribed in the Constitution. It is the practice to present the resolutions embodying the amendments to the Governor.

In all these cases, the Constitutions give to the Governor a qualified negative, substantially like that of the President of the United States, except that of Rhode Island, which provides no negative whatever. One Constitution, that of Connecticut, gives to a majority of the legislature the power of passing over the Governor's head any measure returned with his objections.1

It thus appears that the practice of the legislatures of the several States is generally conformable to the theoretical principles proper to govern in such cases, as developed in previous sections of this chapter.

§ 562. While the foregoing are the only precedents bearing on the question under consideration which I have been able to find, indications of opinion respecting it may be drawn from the provisions of two Constitutions that of Delaware of 1792, and that of Louisiana of 1845. By the former, it was provided that amendments might be proposed by two-thirds of each house of the legislature, with the approbation of the Governor. They were then to be published, and if adopted by three-fourths of each branch of the succeeding legislature, they should be valid as parts of the Constitution. The provision of the Louisiana Constitution was the same, except that the successive legislatures were to adopt the amendments, the first by a vote of threefifths, and the second by a majority only of the persons elected to each house, and they were then to be submitted to the people. In these cases, it is perhaps fair to infer that the action of the second legislature did not require the approbation of the Governor, else the clause requiring it for that of the first would have been so worded as to apply to both. Especially may this be inferred in relation to the Louisiana case, since the Constitution of that State referred to, while in one clause permitting the second legislature to adopt resolutions of amendment by a majority vote merely, in another required to overcome the negative of the Governor a vote of two-thirds, which, supposing a negative in such cases possible, would be inconsistent with the former provision.

1 For the facts stated in this section I am indebted to the Secretaries of State of the several States mentioned therein.

§ 563. IV. There arose in 1865, on the side of the State legislatures, a question whether, when an amendment had been constitutionally proposed to them by Congress, and one of those bodies had passed upon it in the negative, it was competent for a subsequent legislature to reconsider and reverse that action. The question arose in Kentucky, the legislature of that State having rejected the amendment abolishing slavery throughout the United States. From the nature of the case there was no decision having the force of a precedent; but the legislature laying before the Governor its resolution of rejection, that officer returned to it a communication in which, after expressing his opinion that its action was complete without his approval, he asserted, in very forcible terms, his conviction that its act rejecting the resolution only remitted the question to the people and the succeeding legislature, and no more precluded future ratification than the refusal to adopt any other measure would preclude the action of its successors.

After citing the terms of the Federal Constitution, which declared amendments proposed by Congress to be valid to all intents and purposes as parts of that instrument, "when ratified by the legislatures of three-fourths of the several States," &c., he continued:

"When ratified by the legislatures of the several States, the question will be finally withdrawn, and not before. Until rati fied, it will remain an open question for the ratification of the legislatures of the several States. When ratified by the legislature of a State, it will be final as to such State; and, when ratified by the legislatures of three fourths of the several States, will be final as to all. Nothing but ratification forecloses the right of action. When ratified, all power is expended. Until ratified, the right to ratify remains." 1

Although the subject is not free from difficulties, it is probable that the foregoing will be accepted as the true construction of the fifth article of the Constitution. It could hardly have been unintentional, that the contingency of a rejection of the proposed amendment by one or more States was left unprovided for; and it would seem a stretch of power to interpolate into that article a provision, that if rejected by one legislature or by three-fourths or even all of the legislatures, such action should be

1 Message of Governor Bramlette of March 1, 1865, to the Kentucky Legis lature.

taken to be definitive. On the contrary, it is reasonable to suppose the Convention intended to give to dissenting legislatures an opportunity to recede from an application of their negative which circumstances might show to be hasty and disastrous.

§ 564. V. Before concluding the discussion of the doctrine of amendments to Constitutions, I propose further to consider a question, already several times alluded to in preceding pages, but particularly germane to the subject now in hand, namely, whether, when a Constitution contains a provision for effecting its own amendment, in either of the modes above mentioned, another and a different mode can be adopted, or whether the constitutional provision must alone be pursued for that purpose?

There may be two cases, according to the terms in which the constitutional provisions are couched.

1. The Constitution may contain clauses, in negative terms, forbidding amendments, except when effected in a prescribed mode. Instances of this kind have been given in this chapter,1 of which that contained in the Constitution of West Virginia is the most striking. That Constitution, Art. XII. provides that no Convention is to be called to amend the same, "unless in pursuance of a law to take the sense of the people on the question of calling a Convention, nor unless a majority of the votes of the people should be in favor of a Convention." It also provides that no members of a Convention are to be elected "until one month after the result of the poll should be ascertained and published;" and that all Acts and Ordinances of any such Convention are to be submitted to the voters of the State for ratification or rejection, and "are to have no validity whatever until they are ratified."

The question as to the force of such provisions may be determined by considering the case of a Convention called by the legislature of West Virginia, without submitting the question of calling it to the voters, as required by the Constitution. In my judgment, it would be impossible to attribute to such a body any validity or legitimacy whatever. The Act by which it should be assembled would have been passed in direct and palpable violation of the paramount law of the State, and would, therefore, bind neither the magistrate nor the citizen; it 1 Ante, § 537.

would be an act of revolution. This is too plain for argument; and, in my view, all cases depending on provisions of a similar character are to be governed by the same considerations.

$565. That the estimate formed in the last section of the force of the negative provisions in question is a correct one, may be inferred from the acts and expressed opinions of the members of the Federal Convention, in relation to the Articles of Confederation, in which a similar provision relating to amendments was contained. By the 13th of those Articles, it was provided that no alteration should at any time be made in any of those Articles, "unless such alteration (should) be agreed to in a Congress of the United States, and be afterwards confirmed by the legislature of every State." It is well known that the Federal Constitution of 1787 was, in direct violation of that Article, confirmed, not by the legislature of each State, but by Conventions called in the several States. It was provided, moreover, in that Constitution, in palpable contradiction to the same Article, that that instrument should go into operation as to the ratifying States, when they should comprise, not the whole thirteen States constituting the Confederation, but nine States, at least. In fact, the new Constitution went into operation on the 4th of March, 1789, when only eleven States had ratified it, North Carolina withholding her assent until the 21st of November following, and Rhode Island, until the 29th of May, 1790. But, the point to be noted is, that while the Federal Convention acted, in the particular mentioned, in evident violation of the existing Constitution, it frankly admitted that fact, and excused its illegal and revolutionary proceedings upon the ground of absolute necessity. Our fathers were convinced of two things: first, that the salvation of the United States depended on the substitution of a firm national government for the loose Confederation then existing; and, secondly, that to attempt to effect that change by the unanimous action of the State legislatures, as required by the 13th Article above quoted, would be to court failure, which would be nearly certain ruin. Hence the Convention, and hence its irregular provision for securing the adoption of the system it recommended.1 In this

1 For the arguments relating to this subject in the Convention, by which the above statements are confirmed, see Elliott's Deb., Vol. V. pp. 352–356, 499–502,

532-534.

case, then, it is clear, that the act of disregarding the provisions of the 13th of the Articles of Confederation, was done confessedly as an act of revolution, and not as an act within the legal competence of either the people or the Convention, under the Constitution then in force. It was truly a revolutionary act, happily, indeed, consummated without actual force, but involving, as possible elements of the problem, both violence and bloodshed, should they be needed to make the revolution effectual.

§ 566. There are certain cases, however, in which amendments have been effected in spite of such negative provisions, where attempts have been made to justify them on legal grounds. One of the most notable of these occurred in Delaware, in 1791-2. The first Constitution of Delaware, Article XXX., was as follows:

"No article of the Declaration of Rights and Fundamental Rules of this State, agreed to by this Convention," (that of 1776,) "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."

As the Assembly consisted of only seven Representatives, and the Legislative Council of only nine members, this provision required, to amend the Constitution in those parts which were made liable to amendment, five-sevenths of the one, and seven-ninths of the other, and the amendments were to be effected through the agency only of the legislative branch. Nevertheless, in 1791, the legislature passed an Act calling a Convention to revise and amend the Constitution. Accordingly, a Convention was elected, assembled in 1792, and framed the second Constitution of the State.

Similar action was taken in 1850 in the State of Maryland. The Constitution of 1776, then in force, Sec. 59, provided that neither the Form of Government nor the Bill of Rights, nor any part thereof, should be altered, changed, or abolished, "unless a bill so to alter, change, or abolish the same should pass the General Assembly, and be published at least three months before a new election," &c.