After violent contests between the friends and enemies of a reform of the State Constitution, an Act was finally passed in 1850, in direct violation of this provision of that instrument, to call a Convention, the result of which was the election of such a body, and the adoption by it of the Constitution of 1851.

§ 567. Attempts, as I have said, have been made to defend this action of the States of Delaware and Maryland, on legal grounds. In the case of Delaware, the legality of the course pursued was distinctly asserted by Mr. Bayard, the Senator from that State, in a speech delivered in the Senate of the United States, in 1858, upon the Lecompton Constitution. As one reason why it would not be unjust to force that Constitution upon the people of Kansas against their will, he affirmed, that it would be in their power at any time to amend it, should it prove distasteful to them, notwithstanding positive provisions were contained in it forbidding amendments for a fixed period; and, to establish that position, he referred to the action of his own State in 1792; the broad principle being asserted by him, that a majority of a people could not be restrained by constitutional inhibitions from changing their fundamental law when and as they pleased. The reasoning, in brief, by which this remarkable proposition was sustained, was comprised in these political axioms, resulting, as he claimed, "from the nature of man" first, that all powers of government rest ultimately in the people at large; secondly, that a majority of those who choose to act may organize a government; and, thirdly, that the right to change is included in the right to organize, and may in like manner be exercised at any time by a majority. According to these principles, as the Senator affirmed, "the right of a majority to organize a government, under the law of the social compact, precludes any power in that majority to render the government they form unalterable, either for twenty or ten years, or for one year; because such a restriction is inconsistent with their own authority to form a government, and at war with the very axiom from which their own power to act is derived." 1

§ 568. So, in reference to the Maryland case, the Hon. Reverdy Johnson, United States Senator from that State, in a late 1 Appendix to Vol. XXXVII. of the Congressional Globe, p. 188.

letter respecting certain proceedings of the Maryland Convention of 1864, said :

"No man denies that the American principle is well settled, that all governments originate with the people, and may by like authority be abolished or modified; and that it is not within the power of the people, even for themselves, to surrender this right, much less to surrender it for those who are to succeed them. A provision, therefore, in the Constitution of any one of the United States, limiting the right of the people to abolish or modify it, would be simply void. And it was upon this ground alone that our Constitution of "76 was superseded by that of '51. . . . . The Constitution of 1851, therefore, rests on the inherent and inalienable American principle, that every people have a right to change their government." Subsequently, referring to this principle, he says: "In its nature it is revolutionary, but, notwithstanding that, it is a legal principle." 1

§ 569. Two points involved in these extracts deserve consideration.

1. The right is claimed for the people to establish and to change their governments at pleasure a right which cannot in general be denied. But who are the people? In the true sense of the term, it means the political society considered as a unit, comprising in one organization the entire population of the State, of all ages, sexes, and conditions. Unquestionably, it is the right of the people in this sense to found its institutions, and to determine how they shall and how they shall not be abolished or amended. Having ordained the mode, however, in which changes therein may, and in which they shall not, be made, clearly no mode can be legal which contravenes the express letter of that fundamental provision. The society has, it is true, the physical power to override its own restrictions. But such an act would most certainly be illegal, because in violation of the letter of the law. Even were the whole people, by unanimous action, to effect organic changes in modes forbidden by the existing organic law, it would be an act of revolution.

2. That whatever the people are authorized to do, a majority of them may do, is generally true- by the term majority meaning the greater number. But it is important to determine the

1 Letter to William D. Bowie and others, dated Oct. 7, 1864, published in the N. Y. Daily Tribune of June 5, 1865.

stage at which that proposition holds good. Nature knows nothing of any majority but that of force. Anterior, then, to any positive institutions, and this side an appeal to force, nothing less than the whole can rightfully bind the whole. It is only when a political society, with positive laws and compacts, has been established, that the whole can be bound by the action of a number less than the whole; and the number to which shall be accorded the power to act for the whole, and the conditions under which it may so act, are matters of positive regulation, in which alone they find their warrant. From this it is apparent, that a mere majority in number of all the citizens of a State, or of the electors of a State, have no right whatever to act for the whole State, unless they can point to authority to that effect, express or implied, in the Constitution of the State; and that if the action taken or proposed by such majority is palpably in the teeth of a constitutional provision, it is usurping and revolutionary. This, it will have been observed, was admitted by Senator Johnson in the extract given above, although, it is true, that eminent lawyer gave utterance to the astounding paradox, that the action of the Maryland Convention was at once revolutionary and legal—a contradiction, which we have a right not to expect from a man occupying the high position of a Senator of the United States, not to say, of the foremost lawyer of the Union.

§ 570. Whether or not the acts thus pronounced to be revolu tionary were necessary or excusable, that is, on the whole expedient, even at the price of revolution, is a different question, which I do not decide. But that they were revolutionary is inferable from the preamble of the Act of the Delaware legislature calling the Convention of 1792, setting forth, the grounds upon which it took that step. It did not pretend to have a legal right to call a Convention, but affirmed that it was expedient so to do. Its language was as follows: "By the thirtieth article of the Constitution of this State, the power of revising the same, and of altering and amending certain parts thereof, is vested in the General Assembly; and it appears to this house that the exercise of the power of altering and amending the Constitution by the legislature would not be productive of all the valuable purposes intended by a revision, nor be so satisfactory and agreeable to our constituents; and that it would be

more proper and expedient to recommend to the good people of the State to choose deputies for this special purpose to meet in Convention."

There can be little doubt that this was true, and that the framers of the Constitution of 1776 acted indiscreetly in limiting amendments, in negative terms, to the General Assembly, and thereby, by irresistible inference, inhibiting the call of a Convention. But the real question was not, is it expedient that the Constitution be revised by a Convention, but can a Convention be called for that purpose, in the face of the provision, that no part of the Constitution (with certain exceptions not to the purpose here) should be "altered, changed, or diminished, without the consent of five parts in seven of the Assembly, and seven members of the Legislative Council?" This latter question the legislature itself answered implicitly in the negative, when it premised that the power of revising the Constitution and of altering and amending certain parts thereof was "vested in the General Assembly."

§ 571. 2. The second case is that in which the terms of the constitutional provisions relating to amendments are permissive merely, without words restricting them to prescribed modes.

In this case, upon authority certainly, and I think also upon principle, it is competent for the people, at the instance and through the ministry of the existing government, to amend their Constitution either in the mode presented or in such other mode as custom may have sanctioned, and as sound statesmanship may, under all the circumstances, approve. In my judgment, however, to render such action safe, or, consequently, legitimate, both these conditions should concur.

Looking first at the precedents, it has been seen in a former chapter, that several instances have occurred in which Conventions have been called by the legislatures of States under the circumstances indicated. In those cases, constitutional provisions permitting amendments to be made in a particular manner or at a fixed time, through the agency of the legislative branch, had been found or fancied to be inadequate, because they either required to effect that object too large a majority of that branch or of the people, or authorized them to be made at a time too remote, so that the practical consequence was a closing of all legal avenues to change. Seeing no alternative to a resort to

force but the calling of a Convention, under the sanction of law, that course bas by preference been pursued, not always without doubt or protest, though generally with the consent of the wise, to which time has commonly added the acquiescence of all. It is unnecessary to do more than merely to state that Conventions have been thus called in some of the most important States in the Union. Amongst these were the Conventions of New York, 1846, Louisiana, 1852, Massachusetts, 1853, and Missouri, 1845 and 1861.

§ 572. In respect to the legitimacy of those Conventions, as has been observed, it is now too late to raise a question. They have the sanction of long and general approval, and were there greater doubt than exists as to their regularity or validity, the necessities out of which they sprung, and the evils from which their labors have from time to time rescued our States, would vindicate their claim to be recognized as lawful assemblies. The seventy odd years of our constitutional history, indeed, have rendered it quite clear that it would have been wise in our earlier Constitutions to forestall doubt, by expressly providing, as is very commonly done in those framed in our day, that it should be competent for our legislatures to call Conventions, not only at times definitely fixed, but whenever it should seem to them advisable so to do. In popular governments, it is the part of wisdom to recognize the fact, that what the people strongly desire they are likely in some manner to effect. If the attainment of their purposes by legal means be rendered too difficult, they will probably resort to such as are illegal. Having a right, within the limits imposed by the moral law, and, in the States, by the Federal Constitution, to do whatever they please, restrictions should have for their object mainly to make it certain that it is the people who speak, and that the language uttered by them is the expression of their matured opinions.

§ 573. Viewed upon principle, the question I am considering turns mainly on the applicability of the legal maxim, expressio unius est exclusio alterius, to the construction of constitutional instruments. Were there no authority upon the point, it would be doubtful whether, in dealing with great questions of politics and government, the same maxim ought to prevail which regulates the construction of contracts between man and As a matter of speculation, it may be admitted that that

man.