light upon a point in respect to which misapprehension has not infrequently existed, they will be examined at some length.

The 14th Section of the Bill of Rights of the Arkansas Constitution of 1836, contained the following provision: "That no man shall be put to answer any criminal charge but by presentment, indictment, or impeachment." By the 24th Section, it was declared as follows: "Every thing in this Article" (Article II., comprising the Bill of Rights) "is excepted out of the general powers of government, and shall forever remain inviolate." At its session in 1844, the General Assembly of Arkansas, in pursuance of authority given in the Constitution, proposed an amendment to the Constitution, which was finally adopted by the next succeeding General Assembly, in 1846, to the following effect: the amendment declares that "the General Assembly shall have power to confer such jurisdiction as it may from time to time deem proper, on justices of the peace, in all matters of contract, covenants, and actions for the recovery of fines and forfeitures, when the amount claimed does not exceed one hundred dollars; and in actions and proceedings for assault and battery, and other penal offences, less than felony, which may be punished by fine only."

For the purpose of carrying into effect the power thus conferred, the General Assembly, in December, 1846, passed an Act entitled "An Act to define the Jurisdiction and regulate the Proceedings of Justices' Courts in cases of Breaches of the Peace," of which the 1st Section declared, that "hereafter no assault and battery or affray shall be indictable, but such offences shall be prosecuted and punished in a summary manner, by presentment of a constable, or any other person, before justices of the peace, as hereinafter provided;" thus, contrary to the 14th Section of the Bill of Rights as it originally stood, putting persons arrested for assault and battery, or for an affray - both criminal charges to answer without "presentment, indictment, or impeachment." At the October Term, 1847, of the Circuit Court of Carroll County, the grand jurors returned an indictment against Jackson A. Cox, for an assault and battery. Defendant pleaded to the jurisdiction of the court, alleging that by the Act of December 16th, 1846, the court was divested of jurisdiction of the offence, and jurisdiction thereof given to justices of the peace. To this plea the Attorney for the State demurred, the court overruled the demurrer, and the State appealed.

On the hearing in the Supreme Court, the point raised was, that the Bill of Rights had not been amended by the proceedings of the legislature, but was still in force, notwithstanding those proceedings, that body having no power to amend that part of the fundamental law, under the specific power given it to amend the Constitution, by Article IV. § 35, thereof; since by the terms of Section 24 of the Bill of Rights (Article II.) every thing contained in that Article was excepted out of the general powers of government.

§ 552. This objection the Supreme Court overruled, and sustained the judgment of the court below declaring the amendment valid and the Act constitutional. By Oldham J., they

say:

"To the general and ordinary powers of the government conferred by the Constitution, the prohibition extends, and no further, but does not limit the General Assembly, in the extraordinary and specific authority and power conferred upon it, to propose and adopt amendments to the Constitution. The Constitution, in prescribing the mode of amending that instrument, does not limit the power conferred to any particular portion of it, and 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 1 The State v. Cox, 3 English's R. 436. 2 Eason v. The State, 6 English's R. 481.

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 powers 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." 1

§ 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 fallacious, 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 follows:

"This enumeration of rights shall not be construed to deny or disparage others retained by the people," - that is, the rule

1 Eason v. The State, 6 English's R. 481 (490).

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 general 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 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, they ought to receive the approval and the signature of the executive; but that when they bear only the 1 See ante, §§ 547-550.