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.

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.

§ 566. 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

§ 567. So, in reference to the Maryland case, the Hon. Reverdy Johnson, United States Senator from that State, in a late 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 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 revolution.. ary, but, notwithstanding that, it is a legal principle."2

§ 568. Two points involved in these extracts deserve consid

eration.

1. The right is claimed for the people to establish and to 1 Appendix to Vol. XXXVII. of the Congressional Globe, p. 188.

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

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 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.

§ 569. Whether or not the acts thus pronounced to be revolutionary 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 legisla ture 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." The Constitution having no express provision for amendment in any save the legislative mode, the General Assembly might undoubtedly have called a Convention, had there been no clause in negative terms prohibiting it; for it

is thoroughly settled that a grant of general legislative authority, alone considered, carries with it the power to call a Convention. But the power would have been an implied power, arising by inference from the general power of legislation expressly granted; and it need not be said that no power can be implied in the face of a direct and express prohibition. In such a case, the prohibitive clause could not be construed as directory, but must be taken to be absolutely mandatory.

§ 570. 2. The second case involved in the first of the two questions stated is that in which the constitutional provisions relating to amendments are permissive merely, without words restricting the legislature or the people to the mode or modes prescribed.

In this case, the answer to the question would vary according to the nature of the constitutional provisions:

If the Constitution authorized its own amendment through the agency of a Convention, without further provisions, it is beyond dispute, that it could not be amended in what we have called the legislative mode. This proposition no one, so far as we are aware, has ever denied. Controversy has been confined to the case in which a Constitution has contained no provision for its own amendment, save in the legislative mode; and it has related to the question whether it could, nevertheless, be amended through the agency of a Convention, a question of greater difficulty, and one of such importance that it deserves a careful consideration, to which we now proceed.

When the Constitution makes no provision, then, for amendments, save in the legislative mode, can a Convention be lawfully called? Looking first at the precedents, we have seen in a former chapter,' that numerous instances have occurred in which Conventions have been called by the legislatures of States under the circumstances indicated. In some of these, the provisions permitting amendments to be made, through the agency of the legislatures, in a particular manner, or at a designated time, had proved unsatisfactory, because they either required, to effect their object, too large a majority of those bodies or of the people, or authorized them to be made at a time too remote, so that the practical consequence seemed to be a closing of all avenues to a seasonable change. In other cases, men of ability and 1 See ante, § 219.