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 The methods of changing the constitution 
 
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 3 1924 030 488 005 
 
 
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 PRINTED IN U.S A. 
 

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 Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924030488005 
 
THEmMETHO-DS 
 
 ( 
 
 \ 
 
 OF CHANG INfiJj|HE, 
 
 CONSTITUTIONS OF THE STATES, 
 
 ESPECIALLY THAT OP 
 
 RHODE ISLAND. 
 
 BOSTON: 
 
 ALFUED MUDGE & SON, PRINTERS, 
 No. 24 Franklin Street. 
 1885. 
 (3? 
 
j/tORNELL^ 
 
 V 
 
 \ 
 
 LIBRARY 
 
 3\( 
 
 ^-S 6 i) '0 3, 
 
PREFACE. 
 
 Most of the papers in this compilation have been prepared 
 with a view to the practical action, at the times when they ^veve 
 issued, of the people and the legislators of the State of Rhode 
 Island. They were not intended as literary or didactic trea- 
 tises. They relate to a subject of no slight importance in the 
 history and institutions of our American States, settled indeed 
 in many, yet undetermined in some, — a subject upon which but 
 little has been written. An English nol)leraan, than whom no 
 one in foreign lands is more instructed, very recently told an 
 American citizen that he was not able to find anything in print 
 upon the subject of the mode of changing the American State 
 constitutions. Jameson had indeed, in his work upon conven- 
 tions, written some years since, given attention to the subject. 
 But our works upon general constitutional law hardly refer to 
 it. The action of our States has not yet passed into written 
 history. 
 
 The purpose of the compilation is to show tliat there are at 
 least two methods of constitutional chano'e in a State constitu- 
 tion ; the first and original one consisting in the action of a 
 convention of delegates elected by the people to frame a new or 
 amended constitution, and the adoption of such new constitu- 
 tion by vote of a majority of the people of the State ; all the 
 proceedings being conducted pursuant to a law passed by the 
 existing government. 
 
 The second method arises from an express provision of an ex- 
 isting constitution (first introduced about 1820), which author- 
 izes a legislature, with certain precautions, to propose amend- 
 ments of the constitution to the people, to be determined by 
 their majority vote. And it is further claimed that these two 
 
methods are concuiTent, without express provision in the eoiisli- 
 tution for a convention. 
 
 The States in which this doctrine is definitely settled are 
 ^lassuchusetts. Xew York, Pennsylvania, Maryland, Missouri, 
 Arkansas, Louisiana, Texas, Tennessee, South C'aiolina ; to 
 these may he added Alal)ama and Mississippi, and similar action 
 occurred in Delaware, and Indiana. In these states, and in 
 three others, their constitutions, like that of Ehode Island, pro- 
 vide in terms for the latter method, and not for the former. 
 These three are Connecticut, New Jersey, and Ore^'on. 
 
 It so happens that while the appendix of this compilation was 
 in preparation and passing through the press, a bill providing 
 for a convention was introduced into the legislatures of each of 
 those three States. And it is believed, after inquiry, that the 
 constitutional objection to such a bill as declared in the opinion 
 of the judges, and in the pam})hlet of the present chief justic^o 
 of Rhode Island, was not raised in the legislatures of either of 
 those States. 
 
 The bill was not much considered in Connecticut. Its House of 
 Representatives is like the State Senate of Rhode Island in repre- 
 senting municipalities instead of population, a system which the 
 pamphlet thinks no one can oppose and uphold the equality of 
 
 « 
 
 the States in the Senate of the United States " without the most 
 egregious self-stultification." 
 
 still, as the bill was not passed, it may be hereafter; 
 the (juestion may be canvassed elsewhere. It pertains to the 
 class of constitutional questions which, in the new departure of 
 our constitution, require careful study. And the high authority 
 of the judges in Rhode Island against the doctrine may justify 
 an attempt to vindicate it. 
 
 Jurists, not statesmen, may continue to apply le^-al, as 
 distinct from constitutional, reasoning to the subject. The 
 citizen whose duty it is to act and to vote, may, it is hoped, 
 find in this compilation some material of fact, and perhaps 
 of reasoning, to aid him in his inquiry. A full tal)le of con- 
 
tents of the appendix, and analysis and index of the whole 
 compilation, has been added to assist the reader in the use 
 of the material collected. 
 
 Other subjects of interest, namely, as to the legal effect of 
 the opinion of judges when given, according to the provisions 
 in a few State constitutions, to the other branches of the gov- 
 ernment, and also as to some of the constitutional powers of a 
 legislature, and as to some historic facts peculiar to Rhode 
 Island, have been introduced, from the necessities of a reply, 
 into the discussion. 
 
OOISTTEJISTTS. 
 
 I. Tlie Questions proposed by the Senate of Rhode Island to the 
 Judges of its Supreme (Jourt, March 24, 1883. 
 
 II. The Answer and Opinion of the Judges, March 30, 1883. 
 
 III. An Article upon the Opinion contributed to the Providence 
 
 Journal, May 31, 1883. 
 
 IV. A Reply lo a Pamphlet entitled "Some Thoughts on the Con- 
 
 stitution of Rhode Island, by Thomas Durfee," issued in 
 
 November, 1884. 
 
REQUESTS BY THE SENATE OF THE STATE OF 
 EHODE ISLAND TO THE JUDGES OF ITS 
 SUPEEME COURT FOR THEIR OPINION AS TO 
 THE EFFECT OF A CERTAIN METHOD OF 
 CHANGING THE CONSTITUTION OF THE 
 STATE, MARCH 24, 1883. 
 
 I. Whereas, A difference has arisen among members of the 
 General Assembly as to the legal competency thereof, under the 
 constitution of the State, to call upon the electors to elect mem- 
 bers to constitute a convention to frame a new constitution of 
 the State, and to provide that the new constitution should be 
 submitted for adoption, either to the qualified electors of the 
 State or to the persons who would be entitled to vote under 
 said new constitution for adoption ; and if a majority of such 
 electors, or persons voting, should vote in favor thei'eof, 
 whether the new constitution would then become the legally 
 adopted constitution of the State, and be binding, as such, upon 
 all of the people thereof. 
 
 II. As to whether it is legally competent for the General 
 Assembly to submit to the qualified electors the question 
 whether said electors will call a convention to frame a new con- 
 stitution, and to provide l)y law, if a majority of the electoi's 
 voting upon said question shall vote in favor of calling such 
 convention, that the same he held, and the new constitution 
 framed by said convention be submitted to the electors for 
 their adoption, either to the electors qualified by law or to the 
 persons who may be qualified to vote under such new constitu- 
 tion ; and whether, if a majority of the electors, or persons 
 votinf thereon, vote for the adoption of such constitution, 
 
M-hether the constitution so to be framed and adopted would be 
 the loiral constitution of the t^tate, and, as such, be binding 
 upon all the people thereof; and. 
 
 Whereas, The existing constitution provides that either 
 house of the General Assembly may require the opinion of the 
 judnes of the Supreme Court upon any ([ucstion of law, it is, 
 therefore, hereby 
 
 liesnlced. That the said judges of the said Supreme Court 
 be, and they hereby arc re(|ucstcd, without unnecessary delay, 
 to gi\e tlicir opinion to the Senate upon the two questions 
 stated in the preamble hereto, upon whicii ditlerences of opinion 
 ha\ e arisen bclwccn the members of the Ceneral Assembly. 
 
 OPINION. 
 
 To the Ilonnnihle the Sendte of tlie Sfafe of Rhode Island and 
 rraridence Rlan/a/ioiiK : 
 
 ^Ve recci\ed from your Honors on the 24th inst. a resolution 
 requesting our opinion in regard to the legal competency of the 
 (jieneral .Vs^cnibly to call a convention tor the revision of the 
 constitution. In reply, we have to say that we are of opinion 
 that the mode provided in the constitution for the amendment 
 thereof is the only mode in which it can be constitutionally 
 amended. The ordinary rule is that where power is given to do 
 a thing in a particular way, there the affirmative words, marking 
 out the particular way, prohibit all other ways by implication, 
 so that the particular way is the only way in which the power 
 can be legally executed. The rule was recently recognized by 
 the Supreme Court of the United States in Smith v. Stevens, 10 
 "Wallace, 321. There, by Act of ("ongress, lands were ceded to 
 Indians with poM'er to sell them, or parts of them, in a particu- 
 lar manner, and the court held that a sale in any other manner was 
 void. The rule was likewise recently recognized by the English 
 Court of Exchequer in a case in which it was thus expressed : 
 "If authority is given expressly, though by affirmative words, 
 upon a defined condition, the expression of that condition 
 excludes the doing of the act authorized under other circum- 
 stances than those so defined: ' E^qjres.no unius est exdasio 
 
aUerius.'" North Staiford Steel, etc. Co. v. Ward, L. E. 3 
 Exc. 177. Cases to the same point might be indefinitely mul- 
 tiplied. 1 Kent's Com. 467, note d ; 1 Sugden on Powers, 258 
 et seq. ; Xew Haven v. Whitney, 36 Conn. 373 ; District Town- 
 ship, etc., V. Dubuque, 7 Clarke, 262. It has been claimed, 
 indeed, that the rule, though applicable in the interpretation of 
 statutes, deeds, wills, and other ordinary instruments, is inap- 
 plicable in the interpretation of a State constitution. Those 
 who assert this difference, however, do not appear to have any 
 reason to give for it but this, namely : That under stress of 
 strong political excitement, the rule, if it exists, is pretty sure 
 to be disregarded, as past experience proves, and, therefore, it 
 is better to conclude that it does not exist. We do not consider 
 the reason satisfactory. The rule is simply a guide to the 
 meaning of language, when used in a particular way, and we do 
 not see why it is not as trustworthy a guide to the meaning 
 when the language so used occurs in a State constitution, as 
 when it occurs in a statute or a will. Men do not put away 
 their spontaneous and habitual modes of expressing themselves 
 merely because they are engaged in the unaccustomed work of 
 framing or adopting a constitution. In this view we are not 
 without precedent. One of the greatest of modern jurists. 
 Chief Justice Shaw, was of the same way of thinking, and, con- 
 jointly with his associates, declared it to be his opinion that 
 the constitution of Massachusetts is constitutionally amenda- 
 ble only as therein provided. The provision for amendment 
 in our constitution is singularly explicit. The proposed 
 amendment is first to pass the two houses of the General 
 Assembly by a majority of the members elected ; it is 
 then to be published, ^vith the vote thereon, in the news- 
 papers, and otherwise brought to the attention of the people ; 
 it is then to pass the Assembly elected after such publication by 
 a majority of both houses ; and finally it is to be submitted to 
 the approval of the electors, and, if it be approved by three 
 fifths of the electors voting (and not otherwise) , it is to become 
 incorporated in the constitution. Evidently the purpose was 
 to insure the calm and considerate action of both the Assembly 
 and the people. It was to pass two Assemblies, so that the 
 
8 
 
 members of the second, elected after publication, might, if the 
 electors thought proper, be elected esjiecially to consider it. 
 The popular mind was not to be taken In' surprise or to be 
 carried away by any sudden sentiment, but it was to act delib- 
 erately after reflection. To tliis end a three-fifths Aote was 
 required for approval. The ol)ject was not to hamper or baffle 
 the public will, liut to insure its full expression. Our ancestors 
 knew, what we all know, that in spite of all ])rccautions, a 
 majority may lie worked up for an oi'casion, which is not the 
 true and jiermanent majority. They also knew, what we all 
 knt)w, that many electors, perfectly satisfied with the existing 
 state of things, stay away from the polls on election day from 
 mere inertness of temperament. It is inconceivable to us that 
 tiicy M'ould have elaborated so guarded a mode of anien<lment, 
 unless thev had intended to have it exclusive and controlling:. 
 They doubtless did so intcml, and if they did, we cannot say 
 they did not, simjily because since then tlie constitutions of 
 other States, having similar provisions, have been amended 
 throngli the medium of con\'cntions. The framers of our con- 
 stitution could not foreknow this action in otlicr States, and 
 therefi)re cannot have liecn influenced by it. If our constitu- 
 tion had no provision for amendment, then, indeed, a ])ower in 
 the Assembly to call a convention or to initiate amendments in 
 some other manner might be implied ex nere-KKitafe. The 
 Asseml)ly, under the cliarter, exercised such a power, because 
 the charter had no such provision ; though it is proper to re- 
 mark that under the charter the legislative power of the Assem- 
 l)ly was practically unlimited. Again, if the provision for 
 amendment was imi)racticable, there might be, if no legal rea- 
 son, yet some excuse for disregarding it. But it is practicable, 
 as a successful resort to it in several instances has demon- 
 strated. The only things which can be said against it are that 
 it is dilatorjs and that it requires the assent of more than a bare 
 majority. But these are the very things which recommended 
 it to its authors, and therefore they cannot be alleged as reasons 
 for believing that they did not mean it to be exclusive and 
 controlling. 
 
 Our constitution is, by its own express declaration, the 
 
supreme law of the State ; any law inconsistent with it is void, 
 and, therefore, if the provision which it contains for its own 
 amendment is exclusive, implying a prohibition of amendments 
 in any other manner, then, of course, any act of the Assembly 
 providing for a convention to amend the constitution is uncon- 
 stitutional and void. 
 
 An argument in favor of a convention has been suggested 
 which is not specifically met in the preceding. It is this, 
 namely : That though the General Assembly has no power to 
 introduce amendments and carry them to their consummation in 
 any manner not provided in the constitution, it, nevertheless, , 
 has power to call a convention to frame a new constitution for 
 submission to the people. The argument is, in our opinion, 
 rather specious than sound. The convention, if called, would 
 be confined by the constitution of the United States to the 
 formation of a constitution for a republican form of government, 
 and our present constitution contains the fundamental provisions, 
 the great giound plan, of such a form of government as it is 
 known throughout the Union. Any changes which are in con- 
 templation are merely changes of superstructure or detail. Our 
 constitution, too, contains in its Bill of Eights the great historic 
 safeguards of liberty and property, which certainly no conven- 
 tion would venture either materially to alter or to abolish. Any 
 new constitution, therefore, which a convention would form, 
 would be a new constitution only in name ; but would be in 
 fact our present constitution amended. It is impossible for us 
 to imagine any alteration, consistent with a republican form of 
 government, which cannot be effected by specific amendment as 
 provided in the constitution. 
 
 Again, it has been maintained that the General Assembly has 
 power to call a convention under Section 10 of Article IV., 
 which provides that " The General Assembly shall continue to 
 exercise the powers they have heretofore exercised, unless 
 prohibited in this constitution." But, under this section, the 
 General Assembly can only exercise powers which are not 
 prohibited ; and, if the provision for amendment is, as we think 
 it is, exclusive, then a power to call a convention is prohibited 
 by implication, and, as was clearly shown in Taylor v. Place, 
 
10 
 
 4 E. I. 324, an implied is as eflectual as an express proliibi- 
 tion. 
 
 Finally, it has been contended that there is a crcat unwritten 
 common law of the States, which existed before the constitu- 
 tion, and which the constitution was powerless to modify or 
 abolish, under which the people have the riizht, wlieneAcr in- 
 vited b}^ the (leneral Assembly, ^ and, as some maintain, -with- 
 out any invitation, — to alter and amend their constitutions. If 
 there lie any such law, — for there is no record of it, or of any 
 lci;islation or custom in this State recognizing it, — then it is, in 
 our opinion, rather a law — if law it can be called —of revolu- 
 tionary than of constitutional change. Our constitution is, as 
 already stated, by its own terms, " the sujireme law of the 
 State." A\'c know of no law, except the constitution and laws 
 of the United States, which is paramount to it. 
 
 'We think the foregoing is in effect, if not in form, an answer 
 to tlic^ questions propounded to us in the resolutions. The ques- 
 tions are extrcmel}' important, and we should have been glad o 
 an opportunity to give them a more careful study, but under 
 the rcqu(>^;t of the Senate for our opinion "without any unneces- 
 sary delay," we have thought it to be our duty to return our 
 opinion as soon as we could, without neglecting other duties, 
 prepare it. 
 
 THO]MAS DURFEE. 
 CHARLES MATTESON. 
 JOHN H. STINESS. 
 P. E. TILLINGHAST. 
 G. M. CARPENTER, Jr. 
 
 Providexce, 30 March, 1883. 
 
11 
 
 AN ARTICLE ON CONSTITUTIONAL REFORM. — 
 SOME SUCxGESTIONS CONCERNING A RECENT 
 OPINION OF THE SUPREME COURT OF RHODE 
 ISLAND. 
 
 Providence Journal, May 31, 1883. 
 
 I. 
 
 To the Editor of the Journal: 
 
 The right of the people of the State of Rhode Island to 
 adopt a new constitution in place of the present one, by the 
 method heretofore adopted in this and all the States of the 
 American Union, has recently been denied. That method is, 
 through a convention of delegates, called and elected by the 
 people, to frame a new constitution, and the acceptance of that 
 constitution by a vote of the people, the whole proceeding be- 
 ing with the approval and pursuant to an Act of the Legislature 
 of the existing government. This denial is found in the report 
 of a majority of a committee of the General Assembly, and in 
 an opinion of the judges of the Supreme Court. The latter 
 opinion was given in answer to two inquiries of the Senate of the 
 State. The second was as follows, viz. : "As to whether it is 
 legally competent for the General Assembly to submit to the 
 qualified electors the question whether said electors will call a 
 convention to frame a new constitution, and to provide by law, 
 if a majority of the electors voting upon said question shall 
 vote in favor of calling such convention, that the same be held, 
 and the new constitution framed by said convention be sub- 
 mitted to the electors for their adoption, either to the electors 
 qualified by law, or to the persons who may be qualified to vote 
 under such new constitution, and whether, if a majority of the 
 electors or persons voting thereon vote for the adoption of such 
 constitution, whether the constitution, so to be framed and 
 adopted, would be the legal constitution of the State, and, as 
 such, be binding on all the people thereof?" The first is sub- 
 stantially the same, except that the convention is supposed to 
 be assembled by an act of the Legislature, without vote of the 
 people, they electing the delegates but not calling the con- 
 vention. 
 
12 
 
 The Court answer, " That the mode provided in the constitu- 
 tion for the amenduK'nt thereof is the only mode in which it 
 can be constitutionally amended," and that " any act of the 
 As.sembly providing for a convention to amend the constitution 
 is unconstitutional and void." The ground upon which the 
 denial rests is, that the provision for amendment in tiie consti- 
 tution liy acts of legislation and votes of the people inferen- 
 tially precludes all other modes of change. 
 
 This is the usual mode of amendment by the acts of two 
 Legislatures, an intervening special publication, and the vote of 
 the people. It is found in not less than forty of the State 
 constitutions adopted in this country. It existed in all the 
 coustitutioiis submitted to the people of Khodo Island pre- 
 \ imisly ; the question, therefore, is not a new one in the con- 
 stitutional history of the States of this country. The denial is 
 novel. As the paramount question of American public law, it 
 challenges the attention and consideration of the peo})le of this 
 State. 
 
 A construction has also l)cen put upon the opinion of the 
 judges, that it is like a judgment to which, whether right or 
 wrong, parties must submit; that it is binding upon the action 
 of other departments of the government, and obligatory upon 
 all the citizens of the State. 
 
 That these new doctrines of constitutional law should be thus 
 declared is partly e.\i)licaljle liy the peculiar circumstances under 
 M'hich the opinion of the judges was given. The infjuiry was 
 made on the 24th of March, the opinion given on the 30th, when 
 the Assembly adjourned over election week for ten days on the 
 30th. The election was held on the 4tli of April. The subject 
 of constitutional reform was before the people in the election. 
 Xo action was taken upon the opinion by the Assembly, exce})t 
 that upon its reception it was ordered to be placed on file and 
 printed. These circumstances should be borne in mind in con- 
 sidering the opinion. And the Court say : "The questions are 
 extremely important, and we should have been glad of an 
 opportunity to give them a more careful study ; but under the 
 request of the Senate for our opinion without any unnecessary 
 delay,' we have thought it to be our duty to return our opinion 
 
13 
 
 as soon as we could, without neglecting other duties, to prepare 
 it." As the legitimate purpose of calling for such opinion is 
 in aid of the action of the Legislature, and as such action was 
 not possible until after the ten days' recess for the election, and 
 as it is the right of the Court to determine what response it 
 will make, and at what time, to such request, it is to be re- 
 gretted that more time, at least, was not taken by the Coui-t. 
 The opinion, however, must be, and has been, taken as it is, 
 and its reasoning and its conclusions considered as they are, as 
 no modification of it has been suggested. 
 
 II. 
 
 The construction of the opinion that it is binding upon the 
 other departments of the State and the citizens is one for which 
 the opinion itself may not be alone responsible. That conclu- 
 sion is derived from it in the able summary of the opinion in 
 the editorial columns of the Journal. It is considered also in 
 other editorial columns that the opinion is an insuperable bar- 
 rier to any attempt by a law of the General Assembly to pro- 
 vide for the calling of a constitutional convention and the 
 election of delegates thereto by the people, and the preparation 
 and submission of changes in the constitution by the convention 
 to the people, and the adoption by them of these changes. 
 Such a law, the opinion declares, would be "unconstitutional 
 and void." 
 
 This opinion of the Court is not lilie a judgment, binding 
 upon the parties before it, whether right or wrong. It is sim- 
 ply an opinion of these judges who signed it, carrying no force 
 of obligation with it. For this is a subject upon which a court 
 cannot sit, even in independent judgment. The political branch 
 of the government is the determining power upon questions of 
 this nature. Upon these questions it is the duty of the judicial 
 department to follow and sustain the decisions of the other de- 
 partments. What is the legitimate constitution of a state, and 
 who are its magistrates, is decided by the political department. 
 The consciences and judgment officially expressed of officers of 
 that department are the appointed authorities upon these ques- 
 
14 
 
 tions. The Court is their creation, and must yield obedience 
 on this subject to them. It is not their creator, and over their 
 action it lias no mandatory power in this regard. It is strange 
 that in Rhode Island this doctrine should be doubted or denii'd. 
 For in this State it has been officially declared by its Supreme 
 Court in an important constitutional trial, that of Thomas AVil- 
 son Dorr, The prisoner in that case offered evidence of the 
 proceedings which he claimed show him to be the constitu- 
 tional go\ernor of the State at the time of the acts charged, and 
 therefore exercising lawful power. 
 
 The Court say in their charge : " This evidence we have 
 ruled out. Courts and juries, gentlemen, do not count votes to 
 determine whether a constitution has been adopted or a gov- 
 ernor elected or not. Courts take notice, without proof offered 
 from the bar, what the constitution is or was, and who is or was 
 the iiovcrnor of their own Stiite. It l)elongs to the Legislature 
 to exercise tliis iiigh duty. It is the Legislature which, in the 
 exercise of its delegated sovereignty, counts the votes and de- 
 clares whether a constitution be adopted or a governor elected 
 or not, and we cannot revive or reverse their acts in this par- 
 ticular, without usurping their power. And why not? Be- 
 cause if we did so we should cease to be a mere judicial, and 
 become a political, trilmnal, with the whole sovereignty in our 
 hand ; neither the people nor the Legislature would be sover- 
 eign ; we should l)e sovereign, or you would be sovereign." 
 " So\ereignty is above courts and juries, and the creature can- 
 not sit in judgment upon its creator." The admirable statement 
 of the principle that on this subject "in this particular," if the 
 Legislature pronounces a government to be constitutional and 
 valid, it is not in the power of its courts to pronounce such 
 government unccrastitutional and void, was quoted in full by 
 Mr. Webster, in his argument of the Rhode Island case, Luther 
 V. Borden, before the Supreme Court. That Court gave upon 
 this point a unanimous judgment, and refer to the " clear and 
 forcible " opinion of the Supreme Court of Rhode Island, in the 
 trial of Dorr. 
 
 That Court further said : " The question which the plaintiff 
 proposed to raised by the testimony he has offered has not 
 
15 
 
 heretofore been recognized as a judicial one in any of tlie State 
 courts." "Tlie political department has always determined 
 whether the proposed constitution or amendment was ratified 
 or not, by the people of the State ; and the judicial power has 
 followed its decisions." Referring to the Rhode Island decis- 
 ions, the Supreme Court of the United States further say : 
 " But the Court uniformly held that the inquiry proposed to be 
 made belonged to the political power, and not to the judicial ; 
 that it rested with the political power to decide whether the 
 charter government had been displaced or not ; and when that 
 decision was made, the judicial department would be bound to 
 take notice of it as the paramount la\v of the State." And 
 again : " If it (a court) decides at all as a court, it necessarily 
 affirms the existence and authority of the government under 
 which it is exercising a judicial power." 
 
 It is an entire misconception as to the power and position of 
 a court to suppose that it can direct the action of any of the 
 political officers of the government, or of its citizens, in deter- 
 mining in such cases what is and what is not the lawful govern- 
 ment of a State. Such attempts, our philosophic chief justice 
 of the olden time of our constitution said, in behalf of the 
 court,- would be a usurpation. 
 
 Such is the present law, as shown by recent decisions. White 
 V. Hart, 13 Wallace, 646, was a case before the United States 
 Supreme Court in which the validity of the constitution of the 
 State of Georgia was denied. The Court said, "The action of 
 Congress upon the subject cannot be inquired into. This case 
 is clearly one in which the judicial is bound to follow the action 
 of Ihe political department of the government, and is concluded 
 by it." 
 
 III. 
 
 We will proceed to consider the opinion with all the respect 
 due to the high source from which it emanates, and inquire 
 whether it is in harmony with the constitutional law of the 
 States of this Union, and especially with that of this State. 
 This question of the power of the people over their constitu- 
 tion has well been called the most important question of Ameri- 
 
16 
 
 can public law. It is a question upon which the experience of 
 all the States, our own included, has shed a flood of light, and 
 we need not err, unless we disregard that experience, and steer 
 away into the outer darkness of meioly individual opinions. Mr. 
 ■\Vel)stiT, when pleading the cause of our State before the 
 Supreme Court of the United States, in conjunction with one of 
 our own citizens, ^Ir. John Whipple, worthy to be his col- 
 league, will command our rcsi)ect as an expounder of constitu- 
 tional law. That argument he himself chose to submit as his 
 opinion and judgment on this question of American constitu- 
 tional law to posterity, in the la-t volume of his works, dedi- 
 cated to the memory of his belo\ ed daughter, and that of his 
 jroungest son, wlio gave his life to his country in the war with 
 ^Icxiro. Mr. Webstri- sums up the American constitutional law 
 upon the right of tiie peoi>le to change theii- constitutions in the 
 following terms : " We sie, therefore, from the commencement 
 of the g()\'ernment under which we live down to this late act of 
 the State of Xcw York, one uniform current of law, of prece- 
 dent, and of practice, all going to establish the point that changes 
 in govcrnnient are to be brought about ))y the will of the people 
 assembled under such legislative provisions as may be necessary 
 to ascertain that will, truly and authentically." 
 
 The act of the State of New York thus quoted by Mr. 
 Webster, and which he had dwelt upon in detail as an illus- 
 tration of American constitutional law, was an act of legislation 
 providing for a constitutional convention under an existing con- 
 stitution, containing a provision for amendment through a ma- 
 jority vote of one Legislature, followed by publication and a 
 two-thirds vote of the next Legislature, and a majority vote' of 
 the people. It contained no provision for calling a convention, 
 and no declaration of rights upon the subject. Our constitution 
 provides for amendment by a majority vote of one Legislature, 
 followed by publication, a majority vote of the next Legislature, 
 and a three-fifths vote of the people. This proceeding in New 
 York, j\Ir. Webster takes as typical of American constitutional 
 law, of the American method of changing a constitution. 
 
 The act of New York to which ]\Ir. Webster referred he thus 
 describes : " One of the most recent laws for taking the will of 
 
17 
 
 the people, in any State, is the law of 1845, of the State of New 
 York. It begins by recommending to the people to assemble 
 in their several election districts, and proceed to vote for dele- 
 gates to a convention. If you will take pains to read that act, 
 it will be seen that New York regarded it as an ordinary exercise 
 of legislative power. It applies all the penalties for fraudulent 
 voting, as in other elections. It punishes false oaths, as in other 
 cases, certificates of the proper officers were to be held con- 
 clusive, and the will of the people was, in this respect, collected 
 essentially in the same manner, supervised by the same officers, 
 under the same guards against force and fraud, collusion and 
 misrepresentation, as are usual in voting for State or United 
 States officers." 
 
 We thus see that the identical proceeding which the report 
 and opinion pronounce unconstitutional and void, Mr. Webster, 
 the expounder of American constitutional law, standing in the 
 Supreme Court of the United States, the chosen representative, 
 the advocate and defender of Rhode Island, takes as his illus- 
 tration, and declares it to be in conformity with the uniform 
 current of American law, precedent, and practice. The report 
 referred to this argument, and quoted in italics Mr. Webster's 
 opinion, that the people may in their constitutions put restric- 
 tions upon their own action. That is not the question now in 
 issue. The present question is whether the American provisions 
 for legislative amendment of a constitution is a prohibition of 
 their power to change a constitution through the medium of a 
 convention, and by a vote of the people, acting under the 
 sanction and safeguards of an ordinary act of legislation which 
 calls for a convention and provides for its action. There were 
 no special provisions of the constitution of New York directly 
 or indirectly sustaining the action of the Legislature, convention, 
 or people, which Mr. Webster nevertheless approved. He speaks 
 of such acts with approval, as acts of ordinary legislation. In 
 our constitution there are two special provisions, either of which 
 would fully sustain an affirmative answer to the inquiry of the 
 honorable Senate. There are many instances in the history of 
 the country similar in every respect to those of New York. 
 There are none in accordance with a denial of this right of con- 
 stitutional reform. 
 
18 
 
 IV. 
 
 To look further at the sabjcct historically : When the inde- 
 pendence of the rnitcd States was achieved, the sovereignty 
 before existing in tlie Crown or Parhament of (rreat Britain was 
 transferred to the people of the Slates. He who argues for 
 tills pi-oposition, argues, 'Sir. AVebster saj's, without an adver- 
 sary. In exercising this so\-eveignty in making or unmaking 
 constitutions, the people cannot assemble in mass ; thvy nuist 
 assemble liy delegates, who will consider and 2)ropose a consti- 
 tution and submit it to the people to be adopted or rejectcHl. 
 Xearl\- all our constitutions have thus been adopted in this coun- 
 try rerliai)s as many rejected. The common-sense of this 
 method is obvious. The same common-sense, tiie same practical 
 Avisdom in the affairs of government, has adopted a provision 
 for those partial and occasional amendments for which the as- 
 sembling of a convention is inexpedient or unnecessary. This 
 is tlirough the action of the Legislature, usually, from caution, 
 of two Legislatures, with an internu^diate and special publication 
 to call the attention of the people to the subject, and then a 
 vote of the people. These two methods exist side by side in 
 many constitutions which have been adopted in this country. 
 The latter method cannot exist without a special provision for 
 it in the constitution. The former, as the cjpinion of our 
 court admits, may exist without such special provision for it. 
 It is inherent in the system of ]iopular sovereignty. Constitu- 
 tions have been adopted through the action of conventions, 
 assembled pursuant to a law of the existing Legislature, in almost 
 all the cases, if not all in ^vhich constitutions have been created 
 or renewed. And this, whether the constitution contained a 
 special provision for calling a convention or not, and also 
 whether it contained a provision for legislative amendment or 
 not, and whether the latter stood alone in the constitution or 
 with a provision for a convention. As the cases where the con- 
 stitution did not contain provision for amendment or for a con- 
 vention are admitted to be cases in which conventions can 
 assemble, we will not consider them ; but only those in which 
 
19 
 
 the court think such convention and acts of legislation cannot 
 constitutionally exist because of the provision for legislative 
 amendment. And of these also, we will omit the many where 
 a special provision for a convention exists, and consider those 
 only where such provision for legislative amendment stands 
 alone. There are many such in the history of the country. 
 And though the opinion says, "it is inconceivable to us that 
 they" (t. e., our ancestors) "would have elaborated so guarded 
 a mode of amendment, unless they had intended to have it exclu- 
 sive and controlling," the action of jurists, statesmen, and peo- 
 ple, in many and leading States, is in direct conflict with this 
 opinion. What history shows to be conceivable and possible 
 in other States, under the same circumstances, should be, of 
 course, conceivaljle and possible in Rhode Island. 
 
 In Massachusetts, the constitution contained a provision for 
 an amendment by a majority of the Senate and two thirds of 
 the House in one Legislature, publication, and the same vote in 
 the next Legislature, and then a vote of the people. 
 
 It is stated in the opinion that " one of the greatest of mod- 
 ern jurists. Chief Justice Shaw, was of the same way of think- 
 ing" (as themselves), "and conjointly with his associates 
 declared it to be his opinion that the constitution of Massachu- 
 setts was constitutionally amendable only as therein provided." 
 As this is the only reference made by our Court to any other 
 opinion upon this subject, it should be carefully examined. 
 This opinion was given without argument or discussion of the 
 questions involved. Upon examination of the opinion, itisby no 
 means clear that the judges meant to express an opinion that the 
 acts of a convention elected by the people at the instance of the 
 Legislature would be unconstitutional and void. On the contrary, 
 they seem to recognize the validity of such proceeding. 
 
 The two questions addressed to the Massachusetts Court were 
 unlike the two questions submitted to our Court. Our judges 
 are asked if a constitution framed through a convention and 
 act of legislation by the people would be binding upon the 
 people. The first question in ^Massachusetts assumes the vahd- 
 ity of a constitution framed through such convention of dele- 
 gates, and only asks if the convention would be limited to the 
 
£0 
 
 specified parts of the constitution proposed for alteration in the 
 act of the Legislature and in the vote of the people calling the 
 convention. The Court answer that the convention would be 
 thus limited. 
 
 So the second question asks merely whether the " specific and 
 particular amendments" provided for in their provision for 
 legislative amendments can be made otherwise than as thus pro- 
 vided. To answer this question the Court arc careful to say 
 that they do not give an opinion as to what would be "the 
 effect of any change or alteration of their constitution, made 
 under such circumstances, and sanctioned liy the assent of the 
 people," tliat is, circumstances " of great emergency, or upon 
 tlie obvious failure of their existing constitution to accomplish 
 the ol)icct for which it was designed." They do not say that 
 such change or alteration would not be binding, but decline to 
 give any opinion upon that question, which is sulistantially the 
 present iinjuirv. 
 
 They go on to consider the question as one in regard to 
 "the rights and powers derived from and under the constitution 
 and law," not the rights and powers reserved under the consti- 
 tution. If the judges mean that under the derived powers 
 there was no legislative special and particular amendment, ex- 
 cept that provided in the constitution, they were in accord with 
 the ](>gislative and judii-ial mind of the country. If they meant 
 more, if their answers are not to be construed in the lijrht of 
 the questions addressed to them, if they meant to be of the 
 same war of thinking as our Court, they have not l)een so un- 
 derstood in ]\Iassa(.-husetts, or at all events, have not been sus- 
 tained by the jurists, statesmen, and people of that State. 
 
 Under this constitution a convention was assembled in Mas- 
 sachusetts in 1853. In that convention, Marcus INlorton, who 
 was one of the judges who gave the opinion, and who was 
 twice governor of the State, said : " Whether we sit legally or 
 illegally, whether by right or usurpation, if the people choose 
 to adopt what we submit to them, it then becomes authority." 
 
 Joel Parker, a former chief justice of New Hampshire, who, 
 in his judicial controversy with Judge Story, in regard to a 
 question under the bankrupt law, was sustained by the Supreme 
 
21 
 
 Court of the United States, was at that time Dean of the Law 
 School at Cambridge, and a member of the convention. He 
 said : " It is well known that the argument has been advanced 
 (not opinion announced) that this convention was revolution- 
 ary in its character because the constitution provided no such 
 mode in which a convention could legally assemble ; that there 
 was one mode provided by the constitution for the revision of 
 that instrument, and any other mode is in its nature revolution- 
 ary. For myself, personally, I do not entertain that opinion. 
 I believe this convention to have been lawfully assembled, 
 and that it is bound to proceed according to law." 
 
 Rufus Choate, the friend of Webster, said : "Assuming that the 
 Legislature, which, by the act of May 7, 1852, ordained that this 
 sealed envelope should be used in voting for delegates to tile 
 convention, had power under the constitution to make such a 
 provision, as in my Judgment it is peifec/fy dear that they had, 
 and which nobody has yet called in qutMion.'" 
 
 The leading men of the State, of all schools in politics, were, 
 as a rule, members of the con\ention ; and not one, it is be- 
 lieved, expressed a doubt as to the validitj' and constitutionality 
 of the proceeding. 
 
 The people, by a close vote, rejected the proposed constitution ; 
 but not on the ground of the nature of its origin. 
 
 The case of New York has already been stated. The provision 
 for amendment to the constitution of 1821 was the same as our 
 own. Under it a convention assembled in 1845, and a consti- 
 tution Avas adopted. Charles O'Connor, Samuel J. Tilden, 
 Samuel Nelson, chief justice of the State, Ira Harris, also a 
 chief justice, and others, their compeers, were members of the 
 convention. One may well conjecture what would be the reply 
 of such men as O'Connor, whose position as head of the bar was 
 due not less to his conscientious and Christian character than to 
 his abilities and learning, and the many like him throughout the 
 country who have concurred in such conventions in States where 
 the provision for amendment was the same as our own, to the 
 imputation in the report that such men are revolutionists, and 
 acted in violation of their oaths of office. Possibly they might 
 answer to the able jurist in the committee, its chairman, that it 
 
22 
 
 was as much revolutionary and in violation of the oath of ofhee 
 to deny to the people and their Legislature tiie powers i;-iveu 
 tliem under a constitution, as it was to enlarge those powers 
 heyond the constitution. Perhaps the expressive word Mv. 
 ( )'(."iinnor frec|uently used would escape from his curled lips. 
 Probably the vast crowd of jurists, statesmen, and intelligent 
 jieople would move on, little heckling this imputation, unless 
 another trouble in Rhode Island might demand their attention. 
 
 The constitution of Pennsylvania, of 1n;!S, contained the pro- 
 visions for amendment by the vote of two suct'ceding Legisla- 
 tures, special publication intervening, and then a vote of the 
 jx^ople. It cdntaincd no provision for calling a convention. 
 Tlic Bill of Rights affirmecl the right of the peoplcto alter, reform, 
 or abolish their go\crnment in such manner as they may think 
 l)roper. A con\cntion was called in 1<S78, pursuant to a legis- 
 lative act and vote of the people. And the new constitution 
 proposed by the convention was adopted by the people and 
 wont into operation. The Su}iremc (Jourt, in a cause (Wells v. 
 Bain, 75 Penn. St. '.'>'.>) argued before it by the pr(^s(Mit attorn(^y- 
 geueral of the United States and by other eminent counsel, 
 considered this subject. In their opinion the Court say: "The 
 words in such manner as they think proper in the Declaration of 
 Rights emiiracc but three knciwn recognized modes by which 
 the whole people of the Slate can give their consent to an alter- 
 ation of an existing lawful form of government, viz. : First, 
 the mode provided in the existing constitution. Second, a law 
 as to the instrumental means of raising the body for revision and 
 conveying to it the power of the people. Third, a revolution." 
 "The government gives its consent either by pursuing the modes 
 provided in the constitution or by passing a law to call a con- 
 vention." 
 
 "It is notpretended that the late convention sat as a revolu- 
 tionary body, or in defiance of the existing irovermnent, and it 
 did not proceed in the mode provided for amendment in 'the 
 constitution, that being a legislative proceeding only. It was 
 therefore, the offspring of /«h'. It had no other source of exist- 
 ence. The process was an application or petition to the L<>uis- 
 lature to call a convention ; the passage of a law to o-ather the 
 
23 
 
 sense of the people on the question whether a convention should 
 be called ; an election authorized by this law, to take the sense 
 of the whole people on this question ; and, finally, the passage 
 of a law to call the convention and define its powers and duties, 
 as law is the only form in which the Legislature, the body in- 
 vested with the powers of government, can act, and thereby its 
 own consent be given and revolution avoided." 
 
 The constitution of Missouri, of 1821, provided for an amend- 
 ment by a vote of two thirds of two Legislatures, with an inter- 
 vening publication. There was no provision for calling a 
 convention. The Bill of Rights affirmed the right of the peo- 
 ple to alter their constitution, whenever necessary for their safety 
 and happiness. Under this constitution two conventions have 
 been called, in 1845 and 1865. The constitution proposed in 
 1846 was rejected ; that in 1865 was adopted. 
 
 In Louisiana the constitution of 1845 contained the usual 
 provision for legislative amendment by two Legislatures, with 
 a publication, and by a vote of the people. There was no pro- 
 vision in regard to a convention. The Declaration of Rights 
 contained no assertion of the power of the people to alter the 
 constitution. In 1852, a convention assembled in accordance 
 with an act of the Legislature and vote of the people, and the 
 constitution proposed by it was adopted. This constitution con- 
 tained the same provisions, excepting the vote of the second 
 Legislature. Under it, and the reconstruction acts of Congress, 
 a convention assembled in 1864, and framed the present consti- 
 tution, adopted by the people. 
 
 The constitution of Arkansas, of 1868, contained the usual 
 provision for legislative amendments, by two Legislatures, with 
 special publication and vote of the people, and no provision for 
 calling a convention. The Bill of Rights affirmed the right of 
 the people to alter the government whenever the public good 
 may require it. Under that constitution a convention was 
 called in 18&4, and the present constitution adopted. 
 
 The constitution of 1868, in Texas, contained the usual pro- 
 vision for amendments by a two-thirds vote of two Legislatures, 
 a majority of the vote of the people, and publication interven- 
 ing-. It contained no pi'ovision for calling a convention, and 
 
24 
 
 the Bill of Eiirhts contained no claim of right in the people to 
 alter the constitution. In 1S76 a convention w;\8 called by the 
 Legislature, and the constitution proposed hy it was accepted by 
 the people. 
 
 The constitution of is.U of Tennessee contained the usual 
 ]>rovision for amendment, a majority of one Legislature, two 
 thirds of the next Legislature, and a majority of the popular 
 vote. It contained no provision for a convention. Its Bill of 
 Eights affirmed the right of the people to alter the goverinnent 
 as they may think proper. ^V convention was called in 1870, 
 and the constituiion proposed by it -was adopted. 
 
 The constitution of ^Mississippi, of Ls.")2, contained the pro- 
 vision for amendment, omitting the act of the second Legislature. 
 I'ndcr this, and the reconstruction acts of Congress, a convention 
 was held and framed a constitution, Avhich was adopted by the 
 pe(i[)le in LSlJiS. 
 
 The constitution of Alabama contained the usual provisions 
 for legislation l)y two Legislatures, publication intervening, and 
 the vote of the people. The majority in the Legislature must 
 )>e two thirds. The Declaration of Rights affirmed the right of 
 the people to alter, etc., the government in such a manner as 
 the_\' ma}' think expedient. There was no provision in the con- 
 stitution for calling a convention. The .Supreme Court of Ala- 
 bama, Collier v. Ferguson, 24 Ala. 108, in considering the 
 validity of certain amendments under the constitution, say : 
 "The constitution can be amended in but two ways, either by 
 the people who originally framed it, or in the mode prescribed 
 by the instrument itself. A\"e entertain no doubt that to chano-e 
 the constitution in any other mode than by a convention, every 
 requisition which is demanded by the instrument itself must 
 be observed." 
 
 There may be other instances of States whose constitutions 
 contain legislati\e amendment provisions standing alone, as it 
 is claimed that it does in our own, where conventions have been 
 held and constitutions adopted, in which the courts have ex- 
 pressed judgments affirming the right, Hke those we have cited. 
 We know of none in which a contrary opinion has been declared 
 in judgment, or acted upon by the people of a State. 
 
25 
 
 Upon this question, whether the people of this country con- 
 sider that the legislative methods of amendment exclude the 
 action of the people through conventions, the fact that in more 
 constitutions which have from time to time been adopted than 
 there are now States, there are, side by side with the legistative 
 method, a recognition of, or provision for, the convention 
 method, would seem conclusive. In how many other consti- 
 tutions which have been rejected the same fact existed, it is 
 not easy to ascertain. Thus much for the opinion in the States 
 as to the coexistence of the two methods, in express terms and 
 by the action of the States. 
 
 Let us see what the action of the general government has 
 been on the subject. 
 
 When changes became necessary in the constitutions of the 
 States which attempted to secede. Congress provided that the 
 ante-bellum constitutions should be changed through the medium 
 of conventions, and not according to the method provided in 
 them for amendment through the Legislature. That could as 
 easily have been adopted as the other. It never seems to have 
 occurred to these jurists and statesmen that any other mode 
 than that provided in the constitution to be changed would be 
 unconstitutional and void, upon the principles of American con- 
 stitutional law. The States of Alabama, Arkansas, Georgia, 
 Louisiana, Mississippi, Tennessee, and Texas had in their con- 
 stitutions preceding tlie war the same provisions for amendment 
 that we have in lihode Island, without any provisions for a con- 
 vention. And the proper method of change under them was 
 deemed in Congress, and in those States, to be by convention, 
 and not by legislative amendment. 
 
 Indeed, the " current of law, precedent and practice " has 
 been running deeper and broader since Mr. Webster's time, and 
 though individuals, jurists and laymen, may have dissented, it 
 is believed that no official body has denied his doctrine except 
 in our State. 
 
 We may be pardoned for quoting Webster upon what is the 
 vital question, whether the power over our forms of government 
 is in the government or people. In his reply to Mr. Calhoun, 
 in 1883, he said : " The sovereignty of government is an idea 
 
26 
 
 belonging to the other side of the Atlantic. No such thing is 
 known in Xorth America ; her governments are all limited. In 
 Europe, sovereignly is of feudal origin, and imports uo more 
 than the state of the sovereign. It comprises his rigiits, duties, 
 exemptions, j^rerogatives, and powers. But witli iis all power 
 is with the people. They alone are sovereign, and they erect 
 what governments tliey please, and confer upon such powers as 
 they please. Xone of these go\ ernments are sovereign in the 
 European sense of the word, all being restrained by written 
 constitutions." 
 
 It lias lieen said by a court, in rendering judgment in a State 
 whose constitution is, in tliis regard, the same as our own 
 (Stowc, J., Wood"s appeal, 75 Pemi. St. 41)) : "The question 
 whether the calling of a constitutional convention was a leg;il 
 exercise of powt'r by the Legislature siiould now be considered 
 by all judicial tribunals as settled so firmly as a part of the 
 common law of our government, that any attempt to disturb it 
 would savor more of revolution than legitimacy." 
 
 V. 
 
 Vi'e leave the historic view of the subject, and proceed to 
 brielly consider the legal reasoning upon which the opinion and 
 report rest. The rule of law relied upon is stated to )>e that 
 "where power is given to do a thing in a particular way, then 
 the affirmative words marking out the pai'ticular way prohibit all 
 others by implication, so that the particular way is the only 
 waj^ in which the power can be legally exercised." The Court 
 further says : "We do not see why it (the rule) is not as trust- 
 worthy a guide to the meaning, when the language so used 
 occurs in a state constitution, as when it occurs in a sttitute or 
 a will." 
 
 This rule does not apply to provisions in a statute, so as to 
 take away any right of the sovereign power. 
 
 " The rights of the ci'own can never be taken away by doubt- 
 ful words or ambiguous expressions, but only by express terms." 
 — Dwarris on Statutes, 706. The good sense of this qialifica- 
 tion is manifest. Any legislation which is to alfect tha sover- 
 
27 
 
 eign power should not leave the right to mere inference. It 
 should be direct, especially in constitutions addressed to the 
 popular mind and adopted by it ; a great sovereign right should 
 not be left to legal conjecture and implication. The people, in 
 such proceedings, say Avhat thej' mean. They do not leave a 
 negation of one power to be inferred from the grant of another. 
 The rule does not apply, again, in a statute so as to take away 
 a right previously existing under the common law, or by cus- 
 tom, or by a preceding statute. It applies only to statutes by 
 which all the rights claimed under it are granted by it. "Affirm- 
 ative words do not take away the common law, a former custom, 
 or a preceding statute." — Dwarris, 712. 
 
 The right here in question exists l)y the common laws of the 
 constitutions of American States, as we have seen by the foniier 
 customs of this and other States. It exists, also, as we shall 
 see, by the enactment of this constitution. A grant of land to 
 Indians by the government, with certain power of disposition, 
 may be thus construed to determine the power of the Indians, 
 hardly to determine the present or past powers of the govern- 
 ment. A grant to a corporation, in its charter of power, to 
 secure its debts in one way, does not, it has been decided, im- 
 pliedly take away its power to secure them in another way. 
 Thus much for the rule in case of statutes. It is said in the 
 New York Court of Appeals, 4 Sclden, 493, "The maxim, 
 Expressio uiiius est exdusio alterias, is more applicable to deeds 
 and contracts than to a constitution, and requires great caution 
 in its application, in all cases." But we are dealing in larger 
 subjects. Let us try to understand what a State constitution is 
 in this regard. We say State constitution, for the minds of 
 learned men in America are sometimes warped by a familiarity 
 with the rule in the constitution of the United States, which is 
 the reverse of the rule of construction in a State constitution. 
 
 ]Mr. "Webster says, in his letter to the Barings, Vol. VI. of 
 his works : — 
 
 "Every State is an independent, sovereign, political commu- 
 nity, except in so far as certain powers, which it might other- 
 wise have exercised, have been conferred on a general govern- 
 ment, established under a written constitution, and exercising 
 
28 
 
 its authority over the peoplt* of all the States. This iicneral 
 ir"vciiiment is a limited government. Its powers arc speeilie 
 and enumerated. All powers not conferred on it still remain 
 with the States or with the people. The State Legislatures, on 
 the other hand, possess all usual and ordinary powers of govern- 
 ment, subject to any liniitatious which may he im))osed hy their 
 own constitutions, and with the exception, as I have said, of the 
 ()]icration on those powers of the constitution of the United 
 Slates." 
 
 That tlic power to pass an act providing for a convention of 
 the peojile of a State to reconstruct their State constitution 
 exists in the Legislature of a Slate, unless it has been prohib- 
 ited, no one will disjjute. It need not be specifically granted. 
 It exists l)y force of this creation, or in grant to one lii'anch of 
 tlic government of general legislati\c power. The Legislature 
 of our Slate has that power, unless prohiliited, as a part of its 
 prerogative and right: not e.r-necessitafe, '.\n the opinion says. 
 There is, therefore, no room for an}' implied prohibition, for 
 tiiere is an express grant of the power in question by a general 
 grant of it'gislati\e powers, which include it. 
 
 The rule does not apply, for the further reason, that the 
 power granted and power in (| nest ion are ditferent. We have 
 seen, historically, that the power to reconstruct a constitution 
 and the power to amend are ditFercMit. As they are in common 
 understanding, the power to repair a house is ditferent from the 
 ])ower to tear down ami rebuild it. The power in a legislature 
 to amend an act of legislation does not exclude the power to re- 
 peal the act and make a new one. So the power in a f>-overn- 
 ment to amend its constitution, as occasion may require, does 
 not exclude the power to recimstruct it anew, as occasion may 
 require. The meaning of language is determined by usao-e. 
 The usage of the provisions and terms by the people of this 
 country is certainly uniform and fixed. The suggestion that we 
 use them in a different sense in Rhode Island has no perceptible 
 foundation. Indeed, it is hardly affirmed in the report or 
 opinion. 
 
 There is a difference in the legal status of these methods. 
 The courts which maintain that they can sit in judgment upon 
 
29 
 
 the action of the Legislature in the exercise of its power of 
 legislative amendments of the constitution, admit that this power 
 of change through constitutional conventions is one in which the 
 Legislature is above their control. In the most recent of those 
 cases (in Iowa, Roehler v. Hill), the Court say, as to the argu- 
 ment of counsel, that they could not " decide that the constitu- 
 tion of 1857, under which they are organized, had not been 
 i:)roperly adopted. The courts of this State possess no such 
 power, and they could not assume such a jurisdiction. The 
 reason why a court could not enter upon the determination as to 
 the validity of a constitution under which it is itself organized 
 is forcibly set forth in the case of Luther v. Borden, upon which 
 appellant relies. The distinction between such a case and one 
 involving merely an amendment not in any manner pertaining to 
 the judicial authorities, must at once be apparent to the legal 
 mind. The authorities recognize the distinction." 
 
 VI. 
 
 In conclusion, we will briefly consider some facts in the his- 
 tory of Rhode Island, and especially the special provisions of 
 the constitution, which place beyond all doubt the right to 
 change her constitution by the convention method. 
 
 The same provision for amendment which exists in the pres- 
 ent constitution is found in each of the three constitutions 
 before submitted to the people, — that of 1834, the people's con- 
 stitution, and the landholders', so called. The proportion of 
 the vote required to constitute a constitutional majority varies, 
 but the plan is substantially the same. Is it to be presumed that 
 those who voted for the people's constitution, and those who 
 framed it, intended to deny the right to change a constitution 
 by convention and popular vote ? And many more votes were 
 given for that than for the present constitution. We are not 
 comparing the legality of the two constitutions, but citing the 
 usage of this language among the people of the State. 
 
 The question, finally, in Rhode Island, in 1841 and 1842, was, 
 whether a constitutional convention and vote of the people in 
 adopting a constitution must be authenticated by an act of legis- 
 
30 
 
 lation, and have the concurrence of the existing government, 
 to be constitutional and valid. That question was determined 
 by tlie political department, and by the courts. It was brought 
 into the convention that framed the present constitution by a 
 proposal to adopt in the Bill of Rights the provision of the peo- 
 ple's constitution. The matter was referred to a committee, 
 and tiie present provision of the Bill of Rights was recom- 
 mended and adopted in the following terms : — 
 
 Skction 1. In the words of the father of his country, we 
 declare: "That the l)asis of our political systems is the right 
 of the people to make and alter (heir constitutions of govern- 
 ment ; but that the constitution which at anytime exists, till 
 changed by an (>x})licit and authentic act of the whole people, 
 is sacredly ol)ligatory upon all." 
 
 The first article of tlie constitution declares that the essential 
 and unquotionable riglits and principles hereinafter mentioned 
 shall be cstablislicd, maintained, and preserved, and sliall be of 
 paramount obligation in all legislative, judicial, and executive 
 proceedings. Of these rights and principles the very first 
 named is the right to alter their system of government by the 
 ex])licit and authentic act of the people. 
 
 2sow, there can be no doubt that a change adopted in the 
 metliod pointed out by Mr. Webster, in his argument for the 
 present government, and by the will of the people, assembled 
 under such legishUive provisions as may be necessary to ascer- 
 tain that will truly and authentically, is an explicit and authen- 
 tic act of tlie whole people. 
 
 No one will have the hardihood to deny that the act by 
 which, throughout more than a century, the constitutions of 
 the States of this Union have been made and unmade, is an ex- 
 plicit and authentic act for that purpose. None will so insult 
 the character of Washington as to assume that in the use of 
 that phrase in his farewell address he did not refer to that mode 
 of change which he had so often witnessed around him, the only 
 methods known at that time. This provision of our constitu- 
 tion is conclusive as to the existence of the right. It is not 
 referred to in these denials of the right. 
 
 There is another provision of the constitution which o-rants 
 
31 
 
 the power in question. Under the charter government, the 
 General Assembly possessed all powers. Many of the people 
 of the State preferred this patriarchal government to the di- 
 vision of powers systematically arranged in the usual State 
 constitution. They yielded reluctantly to the pressure and 
 persuasion of enemies and friends. While granting a consti- 
 tution, they yet incorporate in it the provision that the General 
 Assembly shall continue to exercise the powers they have 
 hitherto exercised unless prohibited by the constitution. 
 Among those powers was that of calling a constitutional con- 
 vention. Had they meant to have excluded that power, they 
 would have said so. 
 
 The mere permission to tlie Assembly to propose amend- 
 ments does not prohibit the otlier power. It is said that there 
 can be an implied prohibition. Taylor v. Place is cited for 
 this doctrine. The principle there acted upon is thus stated : 
 "Affirmative words, vesting power under a constitution, are 
 construed as prohibiting the exercise of the power by all other 
 departments of the government, triJjunals, or officers, as the case 
 may be, when otherwise the words woidd have no operation at 
 all, or would not have their full and proper operation." In 
 Marbury v. JNIadison, the case referred to, Marshall, C. J., 
 said in this case: "A negative or exclusive sense must be 
 given to them, or they have no operation at all." It certainly 
 cannot l)e claimed that the amendatory power given to the Gen- 
 eral Assembly cannot operate or exist while the reforming 
 power over their constitution by the people, through a conven- 
 tion and act of Assembly, also exists. The coexistence of these 
 powers has been manifested in terms and in action under nearly 
 fifty State constitutions in this country. 
 
 There are three provisions of our constitution by which these 
 rights are secured to the people in the Assembly. First, the 
 general grant of legislative power, which we have seen includes 
 this power ; second, the express reservation of the entire right 
 of the whole proceeding in the first section of that Bill of Rights, 
 which is declared to be of paramount obligation upon all de- 
 partments of the governments ; and third, the express provis- 
 ion that the General Assembly shall continue to exercise the 
 
32 
 
 powers they have hitherto exercised unless prohibited in this 
 constitution. 
 
 There can he no implied prohibition under the rule relied 
 upon in the opinion and report, because the rule only applies, by 
 its very terms, to methods and powers not expressed. The 
 Latin expressions of the rule in words that have been so angli- 
 cized as to be intelligible to all, express the rule with brevity 
 and clearness : — 
 
 Expre.^sio uiiiiis exrh/sio alter ins exjvessum facit cessare 
 /nri(u//i. 
 
 The expression of one method is the exclusion of the alter- 
 native method not expressed. The express causes the tacit 
 (unexpressed) to cease. 
 
 The whole argument for prohibition in our constitution rests 
 upon the assumption that the power is nowhere expressed or 
 reserved. This assumi>tion is manifestly unfounded. The im- 
 portance of the subject, not only in the present but in the long 
 fnture, requires a full consideration of the legal and constitu- 
 tional right. 
 
 A single word, in conclusion, upon the practical question. 
 The Legislature represents localities ; the convention, the mind 
 and character of the whole, and its varied interests. This very 
 question of the present local distribution of power is one most 
 requiring consideration. 
 
 AMien the late Judge Potter introduced a plan for a distribu- 
 tion of power, Mr. Simmons, the leading mind of the conven- 
 tion, said, "that according to this plan a small minority of the 
 people of the States might elect every officer of the State. 
 Thirty-six thousand jjcople could elect as many senators and 
 repre*entatives as seventy-two thousand. This is the most 
 arbitrary plan that ever was proposed, and which no one could 
 defend before the enlightened citizens of the State. It was 
 worse than the old system, and worse than any system which 
 had been devised among civilized men for a republican govern- 
 ment." 
 
 The system that was adopted has become worse than that so 
 vigorously condemned. Xow nineteen towns, containing thirty- 
 six thousand three hundred and twenty-nine (36, .329) people, 
 
33 
 
 elect a majority of the Senate. Thirty towns, containing 
 ninety-four thousand nine hundred and seventy-two (94,972) 
 people, elect a majority of the House. The total population of 
 the State by the same census, 1880, was two hundred and sev- 
 enty-six (276,531) thousand. This disproportion is con- 
 stantly increasing. Is it just and right? If not, can it Ije wise ? 
 In this connection, it should be remembered there is no veto 
 power in the governor, who represents the whole people of the 
 State. This disproportion and injustice is constantly increas- 
 ing- 
 
 Again, the independence of the judiciary is of primary 
 importance. Under the present constitution, the seat of judge 
 may be declared vacant at the annual session for the election of 
 public officers, without hearing and without cause assigned, by 
 the vote of a majority of those elected to the Assembly. But 
 this is not the time to point out the provisions of the present 
 constitution which are most injurious in their consequences to 
 the best interests of the State. We have been considering the 
 method of constitutional reforms. 
 
A REPLY TO A PA:\irHLET ENTITLED "SOME 
 TPIOrOHTS ON THE CONSTITUTION OF RHODE 
 ISLAND, BY THOMAS DURFEE," NOVEMBER, 
 
 1S.S4:. 
 
 A TAMPHLET entitled " Some Thouolits on the Constitution 
 of Rhode Ifsland, by Thomas Durfce," has recently appeared. 
 The author is the cliief justice of Rhode Island. 
 
 It discusses three of the proposed cliauucs in the constitution 
 which have somewhat occupied tlio public mind. To these 
 twenty-four paiics are devoted. Tlie remaining pages, thirty- 
 three out of tifty-seven of the pamphlet, purport to be a reply 
 to an article publislicd in the Providence Journal, in May, 1883, 
 as t(i the methods of constitutional reform in Rhode Island. 
 
 The pamphlet opens with a eulogium upon Rhode Island, 
 instancing especially the increase of the past thirty years in her 
 wealth and population and in her facilities for education. It 
 dwells upon the many virtues which characterize her people. 
 From this eulogium there is no dissent. It also indulges in a 
 eulogium of the makers of the constitution, or ratlier an attack 
 upon some unknown persons by whom it says they have been 
 " Hippantly maligned." It further truly states that our consti- 
 tution was the work of the law and order party, though but 
 one of the live Democrats, Elisha R. Potter, whom it enumer- 
 ates as the jjrominent men in the Democratic element of that 
 part}', and but one of the six Whigs, James F. Simmons, whom 
 it enumerates as the prominent men in that element of the 
 party, were present at th(j convention. 
 
 The pertinency of arguments drawn from the prosperity 
 of the State as to the wisdom or unwisdom of the proposed 
 amendments to which the author objects, would be illustrated if 
 we could suppose that the chief justice of Massachusetts should 
 issue a pamphlet in favor of the provision of the constitution of 
 that State which makes no discrimination against foreign-born 
 voters, and should instance in support of his argument, the 
 increase of that State in wealth, population, and educational 
 
35 
 
 facilities, or should compare the much greater ratio of Fall Eiver 
 with that of Providence. 
 
 Tlie provision in our constitution restricting the right of 
 suffrage in naturalized citizens, which the pamphlet desires to 
 uphold, is one not referred to in the article which it attacks. 
 It is certainly a purely political question. The author of the 
 pamphlet says, " I propose to look at a purely political question 
 from a political point of view." The consideration, therefore, of 
 this subject with which he occupies eighteen pages may be left 
 to those political gentlemen who have charge of our interests in 
 the General Assembly. That body has, during the past year, 
 voted to propose an amendment of the constitution in that 
 regard. The vote was well-nigh unanimous. But two fifths of 
 the popular vote has heretofore defeated all amendments in 
 regai'd to suffrage. 
 
 The second proposed change mentioned in the pamphlet 
 relates to the ratio of representation in the Senate and in the 
 House. The present representation in the House is based on 
 tlie ratio of population in each town, with the limitation that 
 no city or town shall have more than one sixth of the members 
 of the House, whose number shall never exceed seventy-two, and 
 that each town shall have at least one member ; in the Senate 
 there is one member for each town or city. 
 
 The author of the pamphlet says, " I do not think it would 
 be unreasonable for her (Providence) to have a little larger 
 representation, though personally I do not care for it." She 
 has one senator and twelve representatives. Her population is 
 104,857, and the total population of the State is 276,531. The 
 figures are those of the United States Census of 1880. It may 
 be added that there are twelve towns, — one third of the entire 
 number, — neither of which has a population of two thousand, 
 and the average of which is about thirteen hundred ; that three 
 towns and cities, one twelfth of the entire number, have more 
 than half the entire population of the State ; and that five towns 
 and cities have three fifths of the entire population. 
 
 The pamphlet charges that othei'S, who also think that a 
 change should be made, wish the Senate put on a strictly pop- 
 ular basis. Such is not the fact. 
 
36 
 
 The life-long senator from Rhode Island, in his elaborate 
 defeiii.e of Rhode Island,* made no attempt to defend the ap- 
 portionment of political power under the present constitution. 
 
 A system less unequal than the present one has become was 
 denounced in unmeasured terms by the leader of the conven- 
 tion that framed the constitution,! and was rejected by the 
 body whose members are so higlily eulogized in the pamphlet. 
 
 Xever before in the history of the State or in any constitution 
 proposed for adoption were senators elected liy towns ; still less 
 was there any such ratio as at present. 
 
 And it must be noticed that the evil is increasing. The city 
 of Providence has, by the action of the General Asseml)ly, 
 been greatly enlarged in area and population taken from the 
 adjacent towns, and several country towns have been divided. 
 
 The thini proposed change is the abolition of the registry 
 tax. As to that the autlif)r of the pamphlet says : " I have 
 long been of the opinion that the tax, by its perversion, has 
 become a prolific source; of evil. I have voted, and am ready 
 to vote again, for its abolition. But while I condemn the tax, I 
 cannot condenm thi- authors of it." So of the three proposed 
 chanii-cs discussed by the author of the pamphlet, one to which 
 he is opposed has already been recommended by the well-nigh 
 unanimous vote of the General Assembly ; to the other two he 
 fives his sanction. He further says, "j\mendments are also 
 suu-o;ested, some of which I should not l.)e sorry to see adopted, 
 if they were constitutionally adopted." As he does not say 
 what they are, his fellow-citizens are not enlightened, except by 
 the important fact that he is in favor of still further changes. 
 
 The pamphlet has also said that "certain high offices go 
 almost as a matter of course to men who can make or secure 
 large contributions to the necessary funds." No weightier rea- 
 son can be given for change and reform. 
 
 * Drfenci: of Rhode Island. Speech by Henry B. Anthony in the Sea- 
 ate of the United States, February, 1881. 
 
 t " Thirtj'-six thousand people," said Mr. Simmons, "could elect as many 
 senators and representatives as seventy-two thousand. This was the most 
 arbitrary plan that ever was proposed, and which no one could defend before 
 the enlightened citizens of the State. It was worse than the old system, and 
 worse than any system which had been devised among civilized men for a 
 repnbllcau government." — Journal of the ConKfntion, Sfjilember, 1842, p. 42. 
 
37 
 
 THE MODES OF CHANGING THE CONSTITUTION. 
 
 The pamphlet next comes to its question whether " the mode 
 provided in the constitution is the only mode by which it can 
 be constitutionally amended." The discussion of this question 
 is the principal purpose of the pamphlet, though not indicated 
 in its title. Unlike the rest of the pamphlet, it contains much 
 that is novel to the public, and that demands a reply. 
 
 THE SPIRIT AND PURPOSK OF THE DISCUSSION 
 ADOPTED IN THE PAMPHLET AND PROPOSED 
 IN THE REPLY. 
 
 The author of the pamphlet would make the discussion in 
 terms, and in his treatment of it, a personal one. He says, "I 
 shall endeavor to be brief, and at the same time plain and 
 simple, so that everybody can understand what I say, and easily 
 judge whether it be sound or sophistical." The truth is the only 
 worthy object of any man's endeavor in this discussion. Espe- 
 cially should this be so in one holding the office of a judge ; 
 with him a reverence of the truth is first and last and all the 
 time an essential requisite. Without it judicial integrity cannot 
 exist ; without it the decisions of a judge binding upon his 
 fellow-citizens are not a true expression of their rights. In 
 reply to what the pamphlet terms its counter argument, the 
 present writer will take as the test the simple inquiry on every 
 point. What is the truth? 
 
 THE CIRCUMSTANCES UNDER WHICH THE OPINION 
 OF THE JUDGES WAS PREPARED. THE GREAT 
 CAUTION PROPER IN GIVING SUCH OPINIONS. 
 
 The discussion has a long personal preface. It begins as 
 follows : " Before I take up Judge Bradley's argument I have a 
 word to say in regard to certain preliminary strictures on the 
 judges, in which he has been pleased to indulge himself." He 
 further says, " Judge Bradley blames them for their expedition, 
 and infers that their opinion must have been given oif-hand on 
 a question which was new to them, and that it may therefore be 
 
33 
 
 regarded as precipitate and ill-advised. I care nothing for the 
 censure, liut I contra vert the inference." A\'hat Judge Bradley 
 did say was : " That the circumstances (to wit, those under 
 whicli the opinion was given) should be borne in mind iu con- 
 sidering the opinion." He also added: "It is to lie regretted 
 that more time at least was not taken by the Court." As 
 the pamphlet says that " the judges, in their opinion, expressed 
 a regret that they had not had an opportunity for a more careful 
 study," an expression of such regret by a well-wisher of theC'ourt 
 is certainly permissible. That is all there is iu the article of 
 what the pamphlet calls strictures, blame, censure, and infer- 
 ences. All tlie rest is a cold statement of fact ; none of the 
 statements there made are denied or in any manner gainsaid in 
 the pamphlet. We qut)te the entire statement in the article, that 
 the reader may compare it with the statement in the pamphlet : 
 "That these new doctrines of constitutional law should be 
 thus declared, is partly explicable by the peculiar circumstan- 
 ces under which the opinion of the judges was given. The 
 inquiry was made on the 24th of I\Iarch, the opinion given 
 on the 30th, when the Assembly adjourned over election 
 week, for ten days. The election was held on the 4th of 
 April. The subject of constitutional reform was before the 
 people in the election, ^.o action was taken upon the opinion 
 by the Assembly, except that upon its reception it was or- 
 dered to be placed on file and printed. These circumstances 
 should be borne in mind in considering the opinion. And the 
 Court says : ' The questions are extremely important, and we 
 should have been glad of an opportunity to give them a more 
 careful study : but under the request of the Senate for our 
 opinion, "without any unnecessary delay," we have thought it 
 to be our duty to return our opinion as soon as we could, with- 
 out neglecting other duties, prepare it.' As the legitimate 
 purpose of calling for such opinion is in aid of the action of 
 the Legislature, and as such action was not possible until after 
 the ten days' recess for the election, and as it is the rio-ht 
 of the Court to determine what response it will make and at 
 what time, to such request, it is to be regretted that more time, 
 at least, was not taken by the Court. The opinion, however^ 
 
39 
 
 must be, and has been, taken as it is, and its reasoning and its 
 conclusions considered as they are, as no modification of it has 
 been suggested." 
 
 The pamphlet adds two important facts that will deepen the 
 regret felt by every intelligent friend of the Court : one, that 
 the judges " were holding court all the while " during the six 
 days between the request and the opinion ; and second, the state- 
 ment of the want of previous study of this "extremely impor- 
 tant question." "That to one of the judges, at least," the pam- 
 phlet says, "the question was not novel, though I had not given 
 it any especial study." If he had considered that any of his 
 colleagues were better prepared than himself, it i* to be pre- 
 sumed that he would have said so. He saja, " The question 
 had been known to me ever since the time, more than thirty 
 years ago," when I hsard the late Chief Justice Greene charac- 
 terize the proceedings " in amending the constitution of New 
 York, through the medium of a convention without following 
 the method prescribed in it," "as a species of Dorrism." "His 
 remark sunk the more deeply into my mind, like a living seed 
 for future germination." 
 
 Chief Justice Greene had great legal knowledge, and a judicial 
 habit of mind, which it has been often the pleasure of the pres- 
 ent writer to acknowledge, as the pamphlet observes. But his 
 friends never claimed for him that he was a constitutional law- 
 yer. He gave little attention to political affairs or questions. 
 
 Chief Justice Greene and his colleagues once gave an opinion 
 upon a constitutional question, in answer to a request from the 
 General Assembly. That opinion was described by the Supreme 
 Court of the State, in Taylor v. Place, as follows : "The grounds 
 of the conclusion destroy the reservation, or the grounds of 
 the reservation destroy the conclusion. Whichever way, we 
 can hardly believe that the learned judges were guilty of such 
 an oversight. We are inclined to think that when they said 
 that ' they did not mean to intimate the slightest doubt of the 
 validity of certain acts,' they meant merely not to express an 
 opinion." Much more of similar criticism is found in the judg- 
 ment in the case to which the pamphlet often refers. Knowing 
 the judgment of our Supreme Court upon this advisory opinion 
 
40 
 
 to the Assembly liy the late Chief Justice Greene, our present 
 fhief justice choo.se:< to adopt, as a correct exposition of an "ex- 
 tremely important question ■■ of constitutional law, his conversa- 
 tional remarks, instead of the concurrent judgment of the lumi- 
 naries of the bar and bench, and of the eminent statesmen of 
 both parties throughout the country. From such a conversation 
 comes the seed, which, after lying in the fallow soil of a mind 
 more than thirty years, germinates with little study or reflection 
 (upon a question necessarily involving learning and research 
 and historical inquiries from sources difficult of access and col- 
 lecti(in) into the opinion, and thence by a sequence natural to 
 some minds into the pamphlet. 
 
 A further fact, not mentioned in the article, may be stated. 
 That the election [jcnding at the time of the opinion involved, 
 in addition to the question of constitutional changes (if one 
 ma}- credit the Providence Jriunial, the morning reading of the 
 chief justice), the continuance in office of some of the judges of 
 the court. AVilliam Sprague was at that time tlie candidate of 
 two conventions for governor. The action of the chief justice 
 in regard to the Sprague litigation will hereafter appear in reply 
 to other portions of the pamphlet. 
 
 The pamphlet claims that the judges arc the constitutional 
 advisers of the Assembly ; it does not claim that it is within 
 their province to issue an opinion on the eve of an election, as 
 constitutional advisers of the people, at too late a period for 
 reply, and such intent is not to be presumed. 
 
 The object of this provision of the constitution, as stated by 
 Chief Justice tiray and his associates (122 Mass 600), "is to 
 enable the advice of the judges to be oljtained upon any impor- 
 tant question of law which the body making the inquiry has 
 occasion to consider in the exercise of the legislative or execu- 
 tive powers intrusted to it." And even with this limitation, 
 this provision, adopted by Maine, Xew Hampshire, and Ehode 
 Island from ^Massachusetts, the only States in which it is be- 
 lieved that it exists,* has not worked satisfactorily, as the con- 
 
 • A similar provision, first introduced in the Missouri constitution of 1865, 
 restricted to questions of constitutional law, was dropped, in framing the 
 existing constitution of 1875. 
 
41 
 
 elusions of the judges in these cases, unlike their judgment in 
 ordinary cases, are not given after hearing adverse argumenta- 
 tive discussion ; and hence the necessity of great caution in the 
 exercise of the power. 
 
 The opinion of the Massashusetts convention of 1820, in re- 
 gard to this power, is thus expressed in their " Address to the 
 People " : " In the second article of the third chapter it is pro- 
 vided that each branch of the Legislature, as well as the gov- 
 ernor and council, shall have authority to require the opinion 
 of the judges on important questions of law and upon solemn 
 occasions. We think this provision ought not to be a part of 
 the constitution ; because. First, each department ought to act 
 on its own responsibility. Second, judges may be called on to 
 give opinions on subjects which may afterwards be drawn into 
 judicial examination before them, by contending parties. 
 Third, no opinion ought to be formed and expressed, by any 
 judicial officer, affecting the interest of any citizen, but upon 
 full hearing, according to law. Fourth, if the question pro- 
 posed should be of a public nature, it will be likely to partake 
 of a political character ; and it highly concerns the people that 
 judicial officers should not be involved in political or party dis- 
 cussions." 
 
 The constitution proposed by the convention in Massachusetts 
 in 1853 prohibited the exercise of this power. It was not con- 
 tained in any of the constitutions heretofore proposed in Rhode 
 Island. The reader will find an instructive paper in regard to 
 this provision whereby the judges can be called upon to give 
 advisory opinions, in the Appendix. It is from the pen of 
 Professor Thayer, of the Harvard Law School. 
 
 THE NATURE OF AN ADVISORY OPINION OF THE 
 JUDGES UPON A POLITICAL QUESTION NOT LIKE 
 A JUDGMENT OF THE COURT. 
 
 The author of the pamphlet says : " Judge Bradley next 
 passes to a labored effiDrt to show that the opinion of the judges 
 is nothing but their opinion, and that the General Assembly 
 has the same power to call a constitutional convention which it 
 
42 
 
 had before it was given. He professes to think that the judges 
 themsehes have somewhere advanced an exorbitant claim of 
 authority for their opinions, though he confesses that they are 
 not the chief offenders. I think the notion that they have 
 offended at all is simply the coinage of his own too lively fancy. 
 The only case that I know of in which the matter is so much 
 as broached is Taylor c. Place, 4 R. I., o2l. IVM. The ques- 
 tion there was, whether the General Assembly has judicial 
 power, and the position was taken that the question was an- 
 swered by the opinion of the judges, given at the request of 
 the (xeneral Asseml)ly, on the constitutionality of an act to 
 reverse and annul the judgment for treason against Thomas W. 
 Dorr, and was, therefore, to be regardetl as ren ad judicata. 
 This position, however, was taken, not by the court, nor by 
 any of the judges, but by counsel, and iiilrahile dic.l.u, Judge 
 Bradley was himself the counsel. Judge Bradley now dis- 
 tinguishes between a judgment of court and an opinion of the 
 judges. He })rofesses great reverence for the judges when 
 deciding cases, but thinks they are entitled to no more respect 
 than so many lawyers when they give an opinion. Doubtless 
 his distinction is not unfounded, but, nevertheless, I think he 
 jHishes it to an exti'enie." 
 
 The statement of the article was, "The construction of the 
 opinion that it is binding upon the other departments of the 
 State and the citizens is one for which the opinion itself may 
 not l)e alone responsil)le. That conclusion is derived from it 
 in the al)le summary of the opinion in the editorial columns of 
 the Jouriird It is considered, also, in other editorial columns, 
 that the opinion is an insuperable l)arrier," etc. Again, "This 
 opinion of the Court is not like a judgment, l)inding upon the 
 parties before it, wlietiier right or wrong. It is simply the 
 opinion of the judges who signed it, carrying no force of obli- 
 gation with it." 
 
 The reader in this instance, and throughout this reply, will 
 decide to whom credit should be given for " the coinage of a 
 too lively fancy," and by whom the alloy is added, in the reissue 
 of the original statement. 
 
 The principal purpose of the paragraph seems to be to accuse 
 
43 
 
 the author of the article of having once, as counsel, claimed 
 more weight for the opinion of the judges than he does now. 
 According to the report of his argument in Taylor v. Place, as 
 counsel in that case, he replied to the citation by opposite coun- 
 sel from the opinion of the judges given to the Assembly as to 
 the extent of its judicial powers, and said, it seems, that 
 the part of the opinion cited by his opponent in favor of the 
 power was an obiter dtctuin, something aside from the answer 
 given to the inquiry of the Assembly. That direct answer he 
 called res judicata. 
 
 It is the right and duty of an advocate in courts to present 
 one side of a cause and the truths that make for his client and 
 arguments that favor him, and to urge them strongly. It is 
 the duty of a judge or a citizen giving his personal opinion to 
 his fellow-oitizens to state the balanced result, the final truth in 
 his own mind. 
 
 The really important inquiry is, whether the position taken in 
 the article as to the weight of an advisory opinion is a true one. 
 To that the judgment in Taylor v. Place gives a decisive answer. 
 To that answer the pamphlet does not refer. The ordinary 
 reader of it is allowed to receive the impression that neither the 
 court nor any judge had taken any position on this point. 
 
 What the Court does say is : " The advice or opinion given by 
 the judges of this Court, when requested, to the governor, or 
 to either house of the General Assembly, under the third sec- 
 tion of the tenth article of the constitution, is not a decision of 
 this Oourt; and given, as it must be, without the aid which the 
 Court derives, in adversary cases, from able and experienced 
 counsel, though it may afford much light from the reasonings or 
 research displayed in it, can have no weight as a precedent." 
 
 "The great Massachusetts chief justice," Shaw, and his col- 
 leagues have also said it " would be contrary to the plain dic- 
 tates of justice, if such an opinion could be considered as hav- 
 ing the force of a judgment, binding on the rights of parties." 
 
 The pamphlet proceeds : "Judge Bradley makes the point that 
 the question on which the opinion was given is political, not 
 judicial, and argues that it is for the General Assembly to de- 
 cide it for the judges, rather than for the judges to decide it for 
 
44 
 
 the General Asenibly. I do not care to contest the point with 
 him ; l)ut, conceding it, what follows?" 
 
 The article stated the position, and sustained it by quoting 
 quite fully the opinion of the Supreme Court of Rhode Island, 
 in the trial of T. W. Dorr, the adoption of that opinion by iMr. 
 Webster in terms, and its adoption by the Supreme Court of the 
 United States in the Ehode Island cases, and the corresponding- 
 decision in the Georgia case. The reader of the pamphlet has 
 no intimation of this conclusive weight of authority in favor of 
 the doctrine. 
 
 The chief justice, howe\'er, says, "It seems to me further that, 
 as a matter of conscience — though I am no casuist — it will be 
 better for them (the General Assembly) to follow it until they 
 are clearly satistied that it (the opinion) is wrong." In other 
 words, the department of government, upon whose conscience 
 and judgment the determination of such questions rests, is 
 bound in conscience to follow the judgment of another depart- 
 Tuent in the hrst instance, and only to disregard that opinion 
 when "conclusively refuted," "whether the question be politi- 
 cal or non-political." The pamphlet finally asks, " What is the 
 use of befogging a plain matter by irrelevant distinctions?" It 
 regards distmciions between opinions which, in the language of 
 the Supreme Court in Taylor v. Place, "have no weight as a 
 precedent," and those which are conclusive and also between 
 judicial and political (juestions and departments as irrelevant. 
 
 The Supreme Court of this State, and of other States, and of 
 the United States, does not so regard them, as the reader of the 
 article and of this reply will perceive, though the reader of the 
 pamphlet is not informed by it in this matter. 
 
 PERSONALITIES AND OTHER MATTERS INTRODUCED 
 IN THE PAMPHLET. 
 
 The chief justice proceeds, and becomes still more personal. 
 The assumption of the pamphlet gives full opportunity to retort 
 these personal imputations. But they are unworthy of such 
 a discussion. 
 
 The chief justice goes further, and says that " whenever he 
 
45 
 
 (the author of the article) discovers a lack of weight in his 
 argument he promptly throws his reputation, as a conqueror 
 might throw his sword, into the ascending scale. A notable 
 instance occurred last winter at a hearing before a committee of 
 the General Assembly. Judge Bradley appeared before the 
 committee, and, making a few remarks, handed to the mem- 
 bers printed slips containing his argument. 'In answer to a 
 question by Dr. Garvin,' says the Providence Journal, in its 
 report of the hearing, 'Judge Bradley said that the constitution 
 did not impliedly or explicitly prohibit the holding of a conven- 
 tion, but requires and confirms the right of the Assembly to 
 initiate proceedings.' The reader will remark the absolute 
 assurance of his answer. He puts his foot upon the opinion of 
 five judges, as if it were simply an egg-shell, which he had only 
 to step upon to crush it to atoms." 
 
 If any citizen is to attempt to refute an opinion, he must 
 state the counter proposition ; the first part of the sentence 
 quoted was the counter proposition, the latter part was concur- 
 rent with the opinion. The former part was correctly reported. 
 That is all that was said, and that in answer to a question, 
 after having submitted the argument in print to the committee. 
 Where is the assurance, in the exercise of this right or in such 
 an attack upon a citizen because he expresses an opinion diflerent 
 from an advisoiy opinion of the judges? 
 
 It is not the weight of any man's foot, which, as he says, 
 crushes the opinion like an egg-shell. It is the weight of his- 
 toric fact and of the concurrent judgment of competent persons . 
 The pamphlet will not prove any stronger though filled with 
 what it ought not to contain. 
 
 The pamphlet, in a note, refers to some articles in the Provi- 
 dence Journal, and charges that they reflected upon the Court 
 for not giving the reasons for its decisions upon questions of 
 fact. The articles referred principally to the duty of giving rea- 
 sons for decisions of questions of law. The neglect of this 
 duty the pamphlet does neither deny nor defend. The pamphlet 
 says the articles on "Proceedings in Court" contained many 
 wise and valuable remarks. The attack and the commendation 
 may justify their appearance in a supplement, with a contin- 
 uation of them. 
 
4G 
 
 THE ACTS OF THE GKXKRAL ASSEMBLY IN 1853 PRO- 
 VIDING FOR A CONSTITUTIONAL CONVENTION. 
 
 The chief justice next refers to a certain political action of the 
 author of the pamphlet more than thirty yeart* ago. The action 
 was not individual, but concurrent with a majority of the Gen- 
 eral Assembly at that time. The aetinn referred to is a part of 
 the history of this question in this State. Its historic, not its 
 personal aspect may have some interest for the reader. 
 
 Two acts submitted the question of holding a convention by 
 those qualified to vote under the existing constitution, and 
 l>rovided that the delegates should be the same in numbers as 
 the members of the Assembly from each town. In these re- 
 spects it was like the provisions for the amendment to the con- 
 stitution recently proposed by the adherents of the doctrine of 
 the ('(jurt and rejected by the people. 
 
 The chief justice says that the " people, mindful of the lesson 
 which they had learned in 11SI2," rejected the iirst act. Is he 
 well advised in saying that? The principal opposition was in 
 the columns of the Post in articles signed a "Democrat of '42." 
 The ^\Titer was Thomas Wilson Dorr. 
 
 Xo argument against the constitutionality of the act, it is be- 
 lieved, was submitted in the Assembly, certainly not in the 
 Senate; and not in the Journal even. It contented itself with 
 simple assertions until the second act, when an argument, not 
 editorial, but contributed, appeared in its columns. 
 
 The act of October was not a simple act to revise the con- 
 stitution, as it appears in the pamphlet. It was for limited 
 purposes and specific changes only. The act submitted to the 
 voters whether the delegates chosen in June, whose selection 
 the Journal highly commended, should assemble to consider 
 those questions only. Its terms were : " Shall the delegates 
 elected on the 28th of June; A. D. 1853, under and by virtue 
 of an act recommending a convention, passed at the last May 
 session of the General Assembly, convene for the purpose of 
 considering the expediency of framing a constitution of govern- 
 ment of this State, diflerent from the present constitution in 
 
47 
 
 these specific and only particulars, to wit, the abolition of the 
 registry tax ; the extension of the time of registration as a 
 qualification for voting ; and the districting the cities and larger 
 towns of the State, in the election of representatives to the 
 General Assembly ? " 
 
 The Democratic delegates from Smithfield, at the head of 
 whom was Thomas Steere, then Speaker of the House, and for 
 many years one of the editorial corps of the paper which has 
 guided the public opinion of the State, and the delegates from 
 North Providence, the youngest of whom was the present 
 writer, issued addresses to the voters of their respective towns, 
 pledging themselves to entertain no other proposition except 
 those contained in the act. A majority of the members elected 
 were also of the opposite party. This was the precise case 
 contemplated in the second question and answer of the opinion 
 of the Massachusetts judges, upon which the pamphlet and 
 opinion rely. 
 
 The question and answer were as follows : — 
 
 " 2nd. Whether, if the Legislature should call a convention of 
 delegates for the purpose of making a specific revision of the 
 constitution in certain departments, that convention would have 
 any power to go beyond those specific amendments proposed 
 by the terms of the vote calling the convention ? " 
 
 Aiu. " If the Legislature should sul)mit to the people the 
 expediency of calling a convention to revise or alter the consti- 
 tution in any specified part thereof, and the people should, by 
 the terms of their vote, decide to call a convention, the dele- 
 gates would derive their whole authority and commission fro7n 
 such vote, and would have no right, under the same, to propose 
 amendments in other parts of the constitution not so specified." 
 
 The Journal had expressed its willingness that the registry 
 tax should be abolished, but opposed the call of a convention ; 
 and in its issue of Nov. 1, 1853, it said, "There will be no op- 
 position to the repeal of the registry tax in the legal and con- 
 stitutional mode." With the opposition of Thomas W. Don- 
 in the Post and this promise by Henry B. Anthony in the 
 Journal, the project for the vital reform failed. The Journal 
 concurred in the wisdom and expediency of such a change in 
 
48 
 
 the constitution. It promised that the change should be naade 
 hy amendment. Its party has been in full power for thirty 
 years, and the amendment has never been made. 
 
 The pamphlet says: "The payment (of the registry taxes) 
 has long come to be regarded as a regular part of the election 
 expenses, and certain high offices go almost as a matter of 
 course to men who can make or secure large contributions 
 to the necessary fund. And this, though bad enough, is 
 not the worst, for the descent is easy from such a practice to 
 downright bribery and corruption." The chief justice says : 
 " AMiile I condemn the tax, I cannot condemn the authors of it. 
 They meant it for aood, and they are not to blame, because, 
 while they clearly saw the good which would result from its 
 legitimate operation, th(>^' did not also foresee the evil to which 
 it might be per\erted." He is not historically just to some of 
 the framers of the constitution. Elisha R. Potter said of "the 
 system of voluntary taxation": "It was virtually setting up 
 shops for the sale of the right of suffrage." Judge Potter was 
 instructed in political knowh'dge not only by his own experience 
 and education, but by his fatlier, of whom tradition speaks as 
 one of the greatest men in public life the State ever had. 
 So liichard K. Kandolph, whose high personal honor impressed 
 all who met him, and illumined his judgment, says, on p. 52 of 
 the journal of the convention, "that he was opposed to the 
 report of the committee, and should vote for the amendment. 
 He did so because he did not like the registry tax as a qualifi- 
 cation. It was too much like selling the right of voting. It 
 was saying to a man : The rights of electors are for sale, and 
 you can enjoy them for a dollar a year. Besides, a great door 
 was left open here for fraud. The tax might be paid by poli- 
 ticians, and thus induce a trade in votes." 
 
 After ten years of experience, these predictions had, to the 
 minds of those who voted for the convention acts of 1853, 
 proved true. 
 
 The pamphlet stands now — the Journal did then — in opposi- 
 tion to the only practical remedy for a most destructive evil. 
 
 There are those who profit by the continuance of this system ; 
 but one is not willing to expose the shame of the State, — the 
 
49 
 
 chief justice has spoken distinctly enough. Strong measures 
 are justified, and experience shows they are demanded, for this 
 system elevates the followers of Judas : they who give the 
 bribes not less than they who take them betray the State. 
 
 When the acts of 1853 were passed, the horizon, both east 
 and west, was full of light upon this constitutional question. 
 Massachusetts had acted. New York had acted, other States also. 
 Those States had held conventions to frame constitutions to be 
 submitted to the people. Those conventions had assembled, 
 pursuant to acts of legislation, and those acts of legislation 
 had been passed under constitutions which contained provisions 
 for amendment like our own, and did not contain any provision 
 for calling conventions. We who had lived in this State had 
 heard the question discussed ; we had lived at a period when, 
 as the pamphlet says, " men were led by the political upheaval 
 of the time to study the entire volume, not only of political 
 principles, but also of political practices." We knew that some 
 men differed from us, but our own judgments and consciences 
 were clear. Courts and legislatures and conventions and the 
 general government itself have concurred in the opinion upon 
 which we then acted. All was light then, and all is light now ; 
 there is but one cloud in the skv. 
 
THE ACT OF THE ASSE?»mLY IN REGARD TO 
 T. ^X. DORR. 
 
 The chief justice mounts still higher in his sciile of accusa- 
 tion, and says that the act of the General Assembly which 
 revoked and annulled the judgment and sentence upon Thomas 
 "\V. Dorr was an " unprecedented indignity " upon which he 
 will not comment, and was a virtual adoption of the principles 
 of Dorr, that a constitution might be changed with or without 
 law. The grounds for that act are stated in its preamble. A 
 copy of the preamble and the act will apjiear in the Appendix. 
 The reasons of law and fact there stated have never met with 
 any attempt at reply, except in an advisory opinion given to 
 the General Assembly by the judges. What judgment was 
 afterwards rendered by the Court upon that opinion fully ap- 
 pears in the decision in Taylor v. Place. The portion of that 
 judgment relating to the opinion will also appear in the Appen- 
 dix. That judgment not only condemns the major |;art of the 
 opinion, but intimates very plainly that the part in which it con- 
 curs does not sustain that portion of the opinion that held the 
 act to be unconstitutional. 
 
 Upon the question of the authority of the General Assembly 
 to pass such an act, the chief justice will, of course, accept 
 the opinion of his father, who was both a member of the conven- 
 tion that framed the constitution, and also chief justice of the 
 State at the time. The elder Chief Justice Durfee opposed a 
 motion to amend the provision in regard to the continuance 
 of the previous powers of the General Assembly. The land- 
 holders' constitution was taken as the basis of the proceedino-g 
 of the convention. In that constititution the provison was : 
 " The General Assembly shall continue to exercise the Judicial 
 
51 
 
 pmver, the power of visiting corporations, and all other powers 
 they have heretofore exercised, not inconsistent with this consti- 
 tution." When the phraseology of that provision was changed so 
 as to read as it does in the present constitution does not appear. 
 The description of powers retained is in eflect the same ; the 
 one specific, the other inclusive. It now reads. Article IV., 
 Sect. 10 : "The General Assembly shall continue to exercise the 
 powers they have heretofore exercised, unless prohibited in this 
 constitution." A motion was made to amend it as follows 
 (Journal of the Convention, page 65) : "Mr. Shearman offered 
 a substitute for the eighteenth section of the fourth article. It 
 took away from the General Assembly the appellate jurisdic- 
 tion on petitions for divorce, benefit of the insolvent laws, new 
 trials, and the jurisdiction on sales of real estate. After much 
 debate, in which Messrs. Shearman and Potter advocated the 
 amendment and Messrs. Simmons, Durfee, Nathan B. Sprague, 
 and Updike opposed it, the amendment was rejected." So that 
 the elder chief justice was opposed to any change of the 
 provisions of the constitution which continued to the Assembly 
 its revisory and appellate power over judicial proceedings. The 
 last argument submitted by the pamphlet purports to be a portion 
 of a charge given to the grand jury, in 1843, by the elder Chiet 
 Justice Durfee, and found among his papers. In that paper, as 
 produced in the pamphlet, we find this statement : "With the ex- 
 ception of a few restrictions, the legislative power, by an express 
 provision of the constitution, remains the same as under the 
 charter." The elder Chief Justice Durfee was one of the com- 
 mittee to revise the statutes of the State, so that they should 
 accord with the new constitution. Those statutes provided 
 modes for taking appeals to the Assembly from the courts. The 
 authority of the elder Chief Justice Durfee in favor of con- 
 tinuing the judicial power to the General Assembly, and his 
 opinion that it was thus continued, are clear. This opinion was 
 entertained by every one for years after the adoption of the 
 constitution. 
 
 The power of the Assembly to pass such an act does not rest 
 onlj' upon its judicial power, as expressed in the charter and 
 continued in the constitution. It is the power over judgments 
 
52 
 
 for treason always exercised hy our English fathers in Parlia- 
 ment, not as a judicial power, and with the eminent approval 
 of all later times. There are many cases. The act in one of 
 these, Lord Russcirs, is copied in the Appendix. Such power 
 was exercised liy the General Assembly the first year after the 
 trial of Dorr in their act of amnesty and liberation, overturning 
 the judgment of the court which condemned him to imprisonment 
 for life at hard labor. That tins power was not judicial and yet 
 was constitutional, the Superior Court in Taylor v. Place well 
 knew and recognized. They decided that the Assembly had not 
 judicial power, and yet carefully avoided being understood to 
 think that the reversal act was void. 
 
 "The judges gave their opinion that the act in question was 
 unconstitutional and void, «.s an e.rervise nf judicial poiver pro- 
 liihiici] by the corinlilKlioii to the (/encral asseiiihli/ ; but not having 
 that case now before us, for the purpose of ascertaining how far 
 the prohibition in (|uestion applied to it." [Italicized by the 
 Court ] ISesides, the indictment was found under the charter. 
 
 The pamphlet says (p. 54) : "There is an old maxim which 
 in Latin reads, Cdiileiuporaiiea Kxpoxilio e.s< optima, and which in 
 English means that contemporaneous construction is best. The 
 rea.^cm for it is ol)vious. The men who make a law know what 
 they mean )\y it, and therefore when, immediately after making 
 it, they construe it l)y word or act, their construction is of high 
 authority." The facts of tliis construction and of tlie origin of 
 the constitution are stated in a paper written by the Hon. J. P. 
 Knowles in l.So.S, and found in the Appendix. 
 
 The facts which the preamble to the act of the Assembly sets 
 forth have not been controverted. One fact to the credit of the 
 presiding justice, Chief Justice Durfee, should be known. He 
 was strenuously opposed to the determination to put Dorr 
 upon trial before the courts. This I know from a report of his 
 conversation by my then partner, Charles F. Tillinghast, a name 
 I never can permit myself to mention without an expression of 
 respect. 
 
 The chief justice well knew that there had been a political con- 
 troversy, going to the very verge of civil war, and ended by 
 the application, through leading citizens of our State, to the gen- 
 
53 
 
 eral government for protection, which was granted. He fore- 
 knew, also, that in the division which existed in the public mind, 
 the endeavor to add to the political destruction of Dorr and 
 his adherents, a conviction in the courts would prove a fail- 
 ure, or must be carried through with a strong hand, and in 
 either event would be worse than useless. Other counsels pre- 
 vailed, and the cause was tried, and what occurred appears in 
 reports well-nigh forgotten, but still extant. The first Assembly 
 elected after the trial of Dorr passed a general act of amnesty, 
 and liberated him from imprisonment. 
 
 We print in the Appendix some extracts from the report of 
 the trial. 
 
 They show, as does the report in the Journal, that the chief 
 justice was strenuous that the members of one political party 
 only should be put on the jury. They show that two of his 
 colleagues, each of whom afterwards became chief justice, did 
 not agree with him in his law. The Providence Journal did not. 
 One hundred and seven out of one hundred and eight of the 
 panel of the jury were from one party, and the jury itself 
 was composed only of the members of that party. 
 
 If the author of the pamphlet chooses to wander from the 
 question, and to assail, in the phrases he uses and in the.accusa- 
 tions he makes, the majority of the General Assembly at that 
 time, because they differ from him, without even reading the 
 vindication of their act in its preamble, he must not complain 
 if the facts of the trial as contained in a report of undoubted ac- 
 curacy are brought out in response to the charge. It especially 
 concerns that " one undeniable fundamental privilege " which 
 Hallam says, " in the worst times except those of the late usur- 
 pation had been the standing record of primeval liberty, trial 
 by jury." It touches other Questions of moment somewhat aside 
 from the present inquiry, and may be remanded to the Appendix. 
 
54 
 
 HISTORIC ORIGIN OF THE QUESTION UNDER DISCUS- 
 SION.— ITS TERMS AS PROPOSED BY THE SENATE 
 TO THE JUDGES, AND THEIR ANSWER. 
 
 The chief justice passes by the historical argument of the 
 article, which is the main portion of it, and begins his " counter 
 argument " in a different order. 
 
 A brief statement of the tacts out of which the question 
 arises is necessary to a fair understanding of what the question 
 is. There was originally but one, there are now two modes of 
 changing State constitutions, one by amendment by the Legisla 
 ture and people, the other by a change through a convention 
 elected for that special purpose, and acting under a law, and by 
 vote of the people. Sometimes one of these methods is pro- 
 vided in the constitution, sometimes both, sometimes neither. 
 
 The method by legislation never exists, except by express 
 provision ; for a legislature elected to carry out a constitution 
 could not change it, except by special authority in the con- 
 stitution so to do. Propositions are made by a legislature under 
 certain precautions as to time and modes, and the majority of it 
 required, lest the people might be surprised by sudden action. 
 Such a mode is convenient, also, in unimportant matters, or in 
 matters upon which there is no real difference of opinion among 
 the people, as in the four amendments made in our constitution. 
 
 The other method is the one in which the sovereign power over 
 constitutions is usually exercised in America. The sovereign in 
 such matters is the people. He who argues for that proposition, 
 Mr. Webster says, argues without an adversary. The people can- 
 not act en masse upon such a suliject : they must act by delegates 
 assembled in convention. Such is the usual American mode. 
 An unljroken current exists, says j\Ir. Webster, of law, of 
 precedent, and of practice, from the commencement of our 
 government down to the latest example at the date of his 
 argument (1845), that of Xew York. This method of change 
 has been pursued when the constitution contained provision for 
 legislative amendment, as our constitution does, just as uni- 
 
55 
 
 formly as when it does not contain such provision. Instances 
 of this first kind occur in such leading States as New Yorlt, 
 Pennsylvania, Missouri, Georgia, Louisiana, Texas, Tennessee, 
 Arkansas. The general government pursued the same course 
 in the changes Tnade by seceding and reconstructed States ; it 
 required changes to be made l)y convention in States which 
 had a provision for amendment in their constitution the same 
 as in those States that did not. All this is fully shown in the 
 article. 
 
 In the history of Rhode Island there liave been a number of 
 instances in which the General Assembly have exercised the 
 power to call a constitutional convention., The General As- 
 sembly had, prior to the adoption of the present constitution, 
 four times called conventions and invited the people to send 
 their delegates to it ; and their laws provided tliat the action 
 of the convention should be submitted to the vote of the people, 
 and the result determined by a majority of votes. The two 
 laws passed by the General Assembly since the adoption of the 
 constitution left it to the legal voters by a majority vote to 
 decide whether the convention should be held. 
 
 Our General Assembly, having this method of changing the 
 State constitution in mind, submitted the following to the judges 
 for their opinion : " A diflerence has arisen among members 
 of the General Assembly as to the legal competency thereof, 
 under the constitution of the State, to call upon the electors to 
 elect members to constitute a convention to frame a new consti- 
 tution of the State, and to provide that the new constitution 
 should be submitted for adoption either to the qualified electors 
 of the State or to the persons who would be entitled to vote 
 under said new constitution for adoption, and if a majority of 
 such electors, or persons voting, should vote in favor thereof, 
 whether the new constitution would then become the legally 
 adopted constitution of the State, and be binding, as such, 
 upon all of the people thereof." 
 
 The second question was similar, on the supposition that the 
 act of the Assembly should leave the question of calling a con- 
 vention to the vote of the people. 
 
 The opinion answered the question in this wise : " We re- 
 
5i3 
 
 ccived from your Honors on the 24tli inst. a resolution, request- 
 ing our opinion in regard to the legal competency of the General 
 A?*cmbh' to call a convention for the revision of the Constitu- 
 tion. In reply, we have to say that we are of opinion that the 
 mode provided in the Constitution for the amendment thereof 
 is the onh' mode in which it can be constitutionally amended." 
 It then gave the reasons for their opinion. A doubt has been 
 expressed whether their opinion answered the entii'e question. 
 The chief justice says (page 32) : "If the Assembly is shut up 
 to the mode expressly provided,, the people are also shut up to 
 it, since the people cannot move in the matter of an amend- 
 ment, without the initiative of the Assembly." 
 
 But he further says (page 48) : "But if a new constitution is 
 established, resulting in the establishment of a new government, 
 with the assent of the old, the change, though unconstitutional 
 and revolutionary, is nevertheless effectual, and it cannot be 
 reversed, within the State, without a counter revolution." It 
 is therefore binding. The supposed case is of a change that is 
 unconstitutional and revolutionary. The pamphlet appears to say 
 that a change made by the sovereign power with the consent of 
 the existing government would be revolutionary. "A revolution 
 in politics is the consummation of a rebellion or revolt against 
 the establisjied or existing government." — Worcester's Diction- 
 (inj. It is not properly applied to an act of the sovereign and 
 existing government. The opinion does say that the act of the 
 Assemlily would be unconstitutional and void, so that the mean- 
 ing of the judges is as interpreted and expressed by the chief 
 justice, that though the act of the Assembly should be uncon- 
 stitutional, still, if acted upon by the people and carried out, 
 the new constitution would be binding. 
 
 The reasons given in the opinion were principally the rule of 
 law ex^pre.'^sio uinas, which will be specially considered. Then 
 a claim follows that the judges of the Supreme Court of Massa- 
 chusetts have expressed a similar opinion. This claim has been 
 and will be fully considered. Then after a description of the 
 constitutional provision and the reasons for it, the inference is 
 drawn that " it is inconceivable to us that they would have 
 elaborated .so guarded a mode of amendment, unless they had 
 
57 
 
 intended to have it exclusive and controlling." This inference 
 is met by the historic fact that such provisions have not been 
 so considered in about fifty State constitutions, which contained 
 
 ERRATUM. 
 On page 57, line 5, " twenty-eight " should read " over eight." 
 See further, pages 75, 76. 
 
 ^vi-wT7^:ir' citjv^wrxrrilii VKJ Lilt; UumillUll 
 
 usages of human speech, a constitution, adopted by the people 
 as the expression of their sovereign will, ought to be so con- 
 strued, unless there is some reason, historic or other, for 
 construing it otherwise." 
 
 The opinion then proceeds to consider the question whether 
 the undertaking to frame a new constitution would be a different 
 one from making amendments to the existing constitution, and 
 says that the distinction " is, in their opinion, rather specious 
 than sound." In this, again, they stand alone as against the his- 
 toric recognition of the difference and distinction. The opinion 
 assumes that nothing but a " superstructure and details " will 
 have to be considered. The Fedei-alist said the definition of 
 the right of suffi'age is very justly regarded as a fundamental 
 article of republican government. Questions of suffrage and 
 the apportionment of political power are those considered in the 
 pamphlet. They are fundamental. The Legislature, the chief 
 justice says, " is not generally well fitted to decide legal or 
 constitutional questions." Shall it exclude the usual American 
 method, — a convention by delegates specially selected for this 
 purpose, whose members are not necessarily from the vicin- 
 age which selects them, but chosen at the option of the towns 
 throughout the State ? 
 
 And again, is it best that such questions should be decided 
 by a minority instead of by a majority of the people ? The lat- 
 ter is the American and the European method when any consti- 
 tutional matter is submitted to popular vote. There is only one 
 solitary exception to this besides Ehode Island. This inquiry 
 
58 
 
 will be further considered. The opinion concludes that there 
 are no rights to be considered, except those derived from a 
 written constitution. In all these matters the pamphlet follows 
 the opinion. The opinion follows, in turn, the report of a com- 
 mittee of the Assembly of 18'S2. A portion of that report, 
 which anticipates tiie principal portions of the opinion and the 
 pamphlet, appears in the Aj)pendix, marked " Z." The pam- 
 phlet, as a most carefully prepared and elaborated statement, will 
 receive a full reply, with an endeaver, however, to disregard its 
 studied oliensiveness of expression. 
 
 THE PAMPHLET ASSUMES THAT THE POSITION IN 
 THE ARTICLE IS THAT THERE CANNOT BE AN 
 IMPLIt;D FROHIBiriON OF THE POWER IN QUES- 
 TION. TIIE ARTICLE DKNIES THAT TIIE RULE 
 RELIED UPON BY THE OPINION WORKS SUCH 
 PROHIBITION. (QUOTATIONS FROM PAMPHLET AND 
 ARTICLE. 
 
 The pamphlet in opening the discussion says : " The judges, 
 in their opinion, yielding to this declaration, maintained that 
 the constitution having provided a mode for its own amend- 
 ment, the enactment of any different mode by the General 
 Assembly would be void. The correctness of this proposition 
 seems, at first blush, too plain for controversy. Its opponents 
 attempt to controvert it in this way : The constitution, they 
 argue, though it provides a particular mode of amendment, does 
 not prohibit amendment in other modes, and, therefore, an 
 amendment through the medium of a constitutional convention, 
 without following the provision, is valid. The argument, it 
 will be observed, rests on the assumption that the power cannot 
 be deemed to have been prohibited to the General Assembly, 
 because it is not prohibited l^y words of express neo-ation." 
 The reader may compare the statement of the question and of 
 the opinion with the terms of each previously quoted. 
 
 The position of the opponents of the opinion of the jud-res is 
 not correctly or truly stated in the pamphlet. " Their argument" 
 
59 
 
 does not " rest on the assumption that the power " (to provide 
 for a convention by legislation) " cannot be deemed to have been 
 prohibited to the General Assembly because it is not prohibited 
 by words of express negation." A full comparison of the 
 statement of the positions of the article as made in the 
 pamphlet, with the statements of the article itself, will now be 
 made. In one place the pamphlet says: "The assertion that 
 the sovereign power of the people cannot be limited by implica- 
 tion has so imposing a sound that the unwary reader might 
 easily be led to accept it as a legal aphorism ; but, nevertheless, 
 I venture to deny it, and to call for authority in support of it." 
 
 Again (page 35), and in more offensive terms, it says, of the 
 seceding States : " That in one matter, they took the same 
 position that Judge Bradley took. They maintained that the 
 States, though they had united to form the Union, had never 
 expressly agi'eed that the Union should be indissoluble, and 
 that their power could not be limited by implication. This 
 doctrine was confuted on the battle-fields, and disaffirmed by 
 the courts," etc., "and ought to be regarded as too thoroughly 
 discredited to find a place anywhere out of the limbo of exploded 
 errors." 
 
 Again, it is said (page 45) : '"The idea that the exercise of 
 the power can be prohibited only by express negation, is 
 utterly untenable. For if it were tenable, mark the result : 
 The General Assembly, under the old charter, was accustomed 
 to exercise power over the right of suffrage, restricting or 
 extending it. It is nowhere prohibited, by express negation, 
 from continuing to exercise the power ; but, certainly, no 
 one, not a fanatic nor a fool, will have the effrontery to 
 maintain that it can still continue to exercise it. There is a 
 kind of reasoning which the logicians call a reductio ad absurd- 
 um, which consists in showing that a proposition must be erro- 
 neous because it is absurd. It seems clear to my mind that the 
 proposition which I am combating is of that character." 
 
 Now let us see the position of the article in regard to an 
 implied prohibition, and what is the ground upon which it 
 opposes the rule relied upon by the court. The article 
 stated, early in the discussion, "as to Mr. Webster's opinion, 
 
60 
 
 that the people may in their constitutions put restrictions 
 upon their own actions, that is not the question now in issue. 
 The present question is whetlier the American provisions for 
 legislative amendment of a constitution is a prohibition of their 
 power to change a constitution through the medium of a con- 
 vention, and by a vote of the people, acting under the sanction 
 and safeguards of an ordinary act of legislation which calls for 
 a convention and provides for its action." 
 
 Again, toward the conclusion, in considering the question of 
 an implied i^rohibition, the article reads : "It is said that there 
 can be an implied prohibition. Taylor v. Place is cited for this 
 doctrine. The principle there acted upon is thus stated : 
 'Affirmative words, vesting power under a constitution, are 
 construed as prohibiting the exercise of the power by all other 
 departments of the government, tribunals or officers, as the case 
 may be, when, otherwise, the words would have no operation 
 at all, or not their full and proper operation.' In Marbury v. 
 ]Madison, the case referred to in this case, Marshall, C. J., 
 said : ' A negative or exclusive sense must be given to them 
 or they have no operation at all.' It certainly cannot be 
 claimed that the amendatory power given to the General As- 
 sembly cannot operate or exist while the reforming power over 
 their constitution by the people, through a convention and act 
 of the Assembly, also exists. The coexistence of these powers 
 have been manifested in terms and in action under nearly fifty 
 State constitutions in this country." 
 
 The article, it will be observed, stated the doctrine on which 
 these cases rest in the language of the courts, and then pointed 
 out that the doctrine did not apply to the present question. 
 Neither did the opinion of the judges nor the pamphlet claim 
 that it does. The opinion cited Taylor v. Place to show, 
 " That an implied is as effectual as an expressed prohibition." 
 And the pamphlet does not controvert the correctness of the 
 statement of the doctrine nor the soundness of the conclusion 
 that the doctrine does not apply to the present question ; it 
 says, as before, simply: "In Taylor v. Place, 4 R. I. 324, the 
 Supreme Court decided that an implied is as effectual as an ex- 
 press prohibition." That proposition has not been denied. 
 
61 
 
 The pamphlet, however, without quoting any portion of what 
 the article did contain, attempts a reply. It assumes that it 
 contains the idea of which the pamphlet accuses its opponents ; 
 that there may be an expressed and cannot be an implied pro- 
 hibition. Its reply is in these terms : "Judge Bradley attempts 
 to limit the authoi'ity of Taylor v. Place, but the attempt, con- 
 trary to his wont, is rather blind, and it certainly is not success- 
 ful " ; and then adds what has once been quoted about a fanatic 
 and a fool — once is enough. This is the way in which the 
 pamphlet states the position of an opponent and the way it 
 meets it. 
 
 The position that was taken in the article in regard to the 
 rule is shown in the conclusion of its argument : — 
 
 " There are three provisions of our constitution by which these 
 rights are secured to the people in the Assembly. First, the 
 general grant of legislative power which we have seen includes 
 this power; second, the express reservation of the entire right 
 of the whole proceeding in the first section of that Bill of 
 Rights which is declared to be of paramount obligation upon all 
 departments of the government ; and third, the express pro- 
 vision that ' The General Assembly shall continue to exercise 
 the powers they have heretofore exercised unless prohibited in 
 this constitution.' 
 
 " There can be no implied prohibition under the rule relied 
 upon in the opinion and report, because the rule only applies by 
 its very terms to methods and powers not expressed. The Latin 
 expressions of the rule, in words that have been so anglicized as 
 to be intelligible to all, express the rule with brevity and 
 clearness : — 
 
 "JExpressio unius exdusio est alterius. Expressum facit ces- 
 sare taciturn. 
 
 " The expression of one method is the exclusion of the alter- 
 native method not expressed. The express causes the tacit 
 (unexpressed) to cease. 
 
 " The whole argument for prohibition in our constitution rests 
 upon the assumption that the power is nowhere expressed or 
 reserved. This assumption is manifestly unfounded." 
 
 This is the statement of the principal objection to the appli- 
 cation of the rule relied upon by the judges. To the correctness 
 of the version of the rule as thus stated no exception is taken 
 in the pamphlet. The law is not guilty of such absurdity as to 
 
62 
 
 sa}' that of two powers conferred in an instrument, one excludes 
 the other, nor does it sny that a power specifically expressed is 
 to exclude another wliich is described in general terms. 
 
 But the pamphlet, while not controverting the meaning of 
 the rule, still relies, as did the opinion, upon the rule of law, 
 Expressio unius exchn^io est alferius, for the conclusion which 
 was stated to the Assembly. It says : — 
 
 "Xow the judges, applying this principle, held that, a par- 
 ticular mode of amendment being presented, any other mode 
 was proliil)ited l)y implication, although no prohibitory lan- 
 guage was employed. . . . The old Roman jurists saw this 
 centuries ago, as clearly as we see it to-day, and accordingly 
 laid down the rule, 'expressio icniu.i est excJusin alterius,' which 
 is as much a rule of our law as of theirs. The judges, in their 
 opinion, apply this rule to the constitution for the purpose of 
 getting at its meaning." 
 
 The idea of the pamphlet, it may be remarked in passing, 
 as to wliat is tlic ground of an implication of prohibition from 
 affirmative words is peculiar. It takes, as an illustration, the 
 article in tlie Bill of Rights, that the right of trial by jury shall 
 remain inviolate, as if the expression was not in terms a pro- 
 hibition, — as if it was not the precise equivalent of saying that 
 the right should not be violated by any department of the 
 government. The pamphlet says, "It only declares that the 
 riglit of trial by jury shall remain inviolate, and from this 
 affirmative language the prohibition is implied. Other exam- 
 l)les might be gi^'cn." 
 
 THE ARGUMENT OF THE PAMPHLET BEGINS WITH 
 A CHARACTERISTIC PREFACE. 
 
 The position of the article and of the pamphlet having been 
 thus ascertained, we now proceed to consider what the pamphlet 
 submits by way of argument. It says : " Now let us consider 
 the reasons which Judge Bradley opposes to this construction. 
 His first reason is that the rule applied by the judge's, however 
 applicable it maybe in private matters, is not applicable to limit 
 the sovereign power; or, in other words, that the power of 
 
63 
 
 the people, including their power to amend their form of gov- 
 ernment, cannot be limited by implication." Here again i.y the 
 substitution of one thing for another. To say that a certain 
 rule is not applicable so as to be the ground for an implied 
 prohibition, is a very different thing from the assertion that the 
 power of the people, including the power to amend their 
 form of government, cannot be limited by implication. Eather 
 oddly the pamphlet observes in the next sentence: "The 
 wide-awake reader will here detect a specimen of the logical 
 legerdemain which is sometimes resorted to by the skilful 
 advocate." The writer did not intend to apply this sen- 
 tence to his own performance, but to apply it to his oppo- 
 nent. And he adds, "The judges maintained that the constitu- 
 tion having provided one mode of amendment, the General 
 Assembly could not provide another, their power being limited 
 by implication. Judge Bradley, adroitly substituting the 
 people for the Assembly, replies that the power of the people 
 cannot be limited by implication. Why does he make the sub- 
 stitution? He makes it because he knows that the power of 
 the Assembly can be limited by implication, and is so limited 
 in our constitution. He has some excuse, however ; for if the 
 Assembly is shut up to the mode expressly pi'ovided, the people 
 are also shut up to it, since the people cannot move in the 
 matter of an amendment without the initiatives of the Assembly. 
 But though this may be some excuse for the substitution, it does 
 not justify it." 
 
 The degree of truth and courtesy characteristic of the pamph- 
 let appears in this quotation from it. What the judges did say 
 was : " That the mode provided in the constitution for the 
 amendment thereof, is the only mode in which it can be consti- 
 tutionally amended." The pamphlet substitutes for this the 
 statement : " The constitution having provided one mode of 
 amendment, the General Assembly could not provide another." 
 
 The article said : " The rule does not apply to provisions in 
 statutes so as to take away any right of the sovereign power.'' 
 The phrase, "any right of the sovereign power," was adopted 
 as equivalent to the phrase, "rights of the Crown," used by 
 Dwarris, an English writer, and quoted in the next sentence 
 of the article. 
 
64 
 
 The pamplilet says that Judge Bradley, "adroitly substituting 
 the people for the Assembly," replies " that the power of the 
 people cannot be limited by implication." No such change was 
 made. Xeither word was used. It could not have been made, 
 as there was no opportunity for it in the language already used 
 in the opinion. Such change would have been useless also, for 
 the pamphlet admits that whetiier the people or the Assembly 
 are the words used, the result, as far as this question is con- 
 corned, would be the same. The motive charged for the alleged 
 substitution was an insult that is not entitled to an answer. A 
 writer who has made three substitutions in a single breath, as it 
 were, is in such an atmosphere that everything appears to him 
 to be an adroit substitution from motives of deception. 
 
 The pamphlet says (page 3-1) : "The assertion that the 
 sovereign power of the people cannot be limited by implication, 
 has so imposing a sound that the unwary reader might easily be 
 led to accept it as a legal aphorism ; but, nevertheless, I venture 
 to deny it, and to call for authority in sujDport of it." 
 
 "Judge Bradley has adduced what he claims tcj be authority. 
 Let us examine it. In the first place, he adduces a rule laid 
 down in Dwarris on Statutes, that the rights of the crown can 
 never be taken away by doubtful words or ambiguous expres- 
 sions, but only by express terms." 
 
 The article said (and comment is unnecessary) : — 
 
 " We leave the historic view of the subject and proceed to 
 briefly consider the legal reasoning upon which the opinion and 
 repoi't rest. The rule of law relied upon is stated to be that 
 ' where power is given to do a thing in a particular way, then 
 the affirmative words marking out the particular way prohibit 
 all others by implication, so that the particular way is the only 
 way in which the power can be legally exercised.' The Court 
 further say : 'We do not see why it (the rule) is not as trust- 
 worthy a guide to the meaning, when the language so used 
 occurs in a State constitution, as when it occurs in a statute or 
 a will.' 
 
 " This rule does not apply to provisions in a statute so as to 
 take away any right of the sovereign power. 
 
 " The rights of the crown can never be taken away by doubt- 
 ful words or ambiguous expressions, but only by express terms." 
 — Dwarris on Statutes, 706. 
 
65 
 
 THE PAMPHLET, DIFFERING FROM THE OPINION, 
 STATES THAT THE POWER IN THE ASSEMBLY TO 
 PROVIDE FOR A CONSTITUTIONAL C0NVP:NT10N IS 
 INCLUDED IN THE GENERAL GRANT OF LEGISLA- 
 TIVE POWER. ITS PROHIBITION THEN CANNOT BE 
 IMPLIED UNDER THE RULE RELIED UPON IN THE 
 OPINION AND PAMPHLET. 
 
 The writer will now call attention to some of the proposi- 
 tions in which the article and the pamphlet agree. The 
 article had said that a power expressed in the constitution 
 could not be prohibited by the provision for amendment under 
 the rule relied upon by the judges. This position has not 
 been controverted by the chief justice, nor can it, indeed, 
 be controverted by any one. The meaning of the rule is known 
 to every boy in the profession, and is obvious to every man of 
 sense. As has been said, the law is not guilty of the absurdity 
 of saying that of two expressed modes, one excludes the other ; 
 nor does it say that the specific expression of one excludes the 
 other when described in general tei-ms. 
 
 Another doctrine upon which an agreement exists is thus 
 stated in the article : " That the power to pass an act providing 
 for a convention of the people of a State to reconstruct their 
 State constitution exists in the legislature of a State, unless it 
 has been prohibited, no one will dispute. It need not be specifi- 
 cally granted. It exists by force of this creation, or in the grant 
 to one branch of the government of general legislative power. 
 The Legislature of our State has that power, unless prohibited, 
 as a part of its prerogative and right ; not ex-necessitate, as the 
 opinion says." Upon this point the pamphlet says : "The real 
 fact is this, that the General Assembly has no power except that 
 which the people, which it represents, have conferred upon it, 
 either expressly or implicitly, in the constitution. Judge Brad- 
 ley virtually admits this latter in his argument. The judges, in 
 their opinion, had said that, in the absence of any express pro- 
 vision, the General Assembly would have the power to initiate 
 
C6 
 
 constitutional change, e:i'-necess>tate ]>y implication and without 
 restriction. Judge Bradley, correcting this, declares that the 
 power is legislative power included in the general grant. Doubt- 
 less this is the hotter view." 
 
 The chief justice thus asserts a different doctrine from that 
 of the opinion of the judges as to the ground upon which the 
 Assembly formerly did or might exercise the power in question. 
 They say it was an implied power from necessity, and he siiys 
 that it is a part of the ordinary legislative power. "By this 
 change,'" to use his own phrase, "he undermines his own argu- 
 ment." 
 
 HISTORIC FACTS AND PRINCIPLES OF AMERICAN 
 CONSTITUTIONAL STATE GOVERNMENTS. 
 
 Xow let us jinicced to look at the subject fiom a more com- 
 prehensive point of view, not omitting, however, to consider 
 fully every sugge^tion of the pamphlet. In the first place, 
 the historic fact lies outstretched before us of a century of 
 American constitutional existence. Throughout that period 
 constitutions almost as numerous as the years have been 
 changed by legislation, convention, and a majority vote of the 
 people. This is the one great fact of American constitutional 
 law known to all. Xow, what are the principles of these State 
 governments? 
 
 Fir.^L That the people of each State are sovereign, re- 
 strained only liy the constitution of the United States. Mr. 
 Webster says : "Well, thisn, let all admit, what none deny, that 
 the only source of political power in this country is the people. 
 Let us admit that they are noferelgii., for they are so ; that is to 
 say, the aggregate community, the collected will of the people, 
 is sovereign." (Welister's "Works, Vol. VI. p. 222.) 
 
 tS'-fi-oiiA. That this sovereignty is expressed by the majority 
 of the people, and not by a minority. ]\Ir. Weljster again says, 
 " He knew no principle that could prevent a majority, even a 
 bare majority, of the people from altering the constitution.'' 
 (Proceedings Massachusetts Convention, 1820, page 407.) Mr. 
 Curtis says: "The American constitutions, therefore, are 
 
67 
 
 founded wholly upon the principle that a majority expresses 
 the will of the whole society, and may estabUsh, change and 
 abrogate forms of government at its pleasure."* Such has been 
 the practice of all the States, with one exception. Jameson 
 says, p. 498 : " On the popular vote to ratify the action of the 
 legislature a majority was I'equired in all cases but that of Ehode 
 Island (1842), which made a vote of three fifths of the people 
 necessary." 
 
 Third. As the people, or a majority, cannot act en masse, 
 they assemble, as the phrase is, in conventions, through dele- 
 gates whom they appoint by their suffrages to represent them. 
 All the constitutions that have existed and that now exist have 
 been framed by such conventions, and submitted to the vote of 
 the people. 
 
 Fourth. Experience taught that some less elaborate mode of 
 amendment of a constitution might be expedient for minor 
 changes or changes on which all were agreed. And powers 
 were introduced, after the lapse of a generation, into some 
 State constitutions, allowing the Legislature to propose such 
 changes to the people to be determined by their majority vote. 
 This was not a part of the legislative power. It required a 
 special authority in the constitution. As Mr. Webster said, 
 " This was not an exercise of legislative power : it was only 
 referring to some branch the power of making propositions to 
 the people." ( Proceedings of Massachusetts Convention, 1820, 
 page 407.) 
 
 Fifth. This method of legislative proposal has not supei- 
 seded the convention method in a single State. They are 
 recognized as coexistent methods of change in nearly fifty 
 constitutions. The convention method has been pursued when 
 the amendment method was provided, and there was no pro- 
 vision in terms for a convention, in the leading States of the 
 Union. 
 
 Sixth. To claim, in Rhode Island, that the provision for 
 legislative amendment takes the place of the convention, is to 
 violate a fundamental principle of American State governments, 
 — that a majority, not a minority, determines the question of 
 
 " In Vol. I of Curtis's History of Constitutional Law, p. 262. 
 
68 
 
 change. That provision in the present constitution of Rhode 
 Island requires more than a majority (three fifths) of the popu- 
 lar vote to adopt an amendment. No provision requiring more 
 than a majority of the popular vote to adopt an amendment 
 exists in any of the many constitutions that have existed, 
 or now exist, containing provisions for legislative amendment. 
 And of nearly one hundred constitutions which now exist, or 
 have existed in this country, there is hut one — that of New 
 Hampshire of 1792 — which requires more than a majority to 
 adopt a constitution proposed by a convention. 
 
 The following may interest the reader : A learned friend, 
 whose name, did his modesty permit me to give it, would be 
 entirely trustworthy, sends nie a note in regard to the modes 
 of changing the constitutions of the cantons of the Republic of 
 Switzerland. Each cantonal constitution prescribes the method 
 of i)artial or total revision of the constitution. Ordinarily this 
 may be brought on as well by the people as by the authorities. 
 In the former case (that of popular initiative) it is commonly 
 required that a certain portion of the citizens should demand a 
 submission of the (|ucstion whether a revision shall be under- 
 taken, to the people. If the submission is made, it is usual to 
 couple with it the <iuestion whether the people will submit the 
 revision to the (irand Council {i. e., the ordinary legislative 
 bodv) or to a constituent assembly (?'. e., an assembly chosen 
 for the purpose of considering changes in the constitution). 
 AVhen the revision is total, the second method is preferred; 
 when simply partial, the first is preferred. The result of their 
 deliberations is submitted to the people and determined by 
 a majority vote. If it is accepted by the people, it then needs 
 the federal guarantee. 
 
 Our pamphlet has a different idea, and different knowledge 
 from any one else on the subject. It says (page 54) : "Is it not 
 clear, then, that his meaning is that the people secure their 
 forms of government from hasty changes by simple majorities 
 by prescribing modes of amendment which require the consent 
 of more than simple majorities? That is evidently what he 
 means. He mentions no other way, and, so far as I know, 
 there was no other way in which such security was made in any 
 State constitution." 
 
69 
 
 The author, faUing thus in historic knowledge, is unable to 
 perceive and to reason from the great fact and the experience of 
 the century. He says (page 36) : To look upon anything out- 
 side of the written constitution is to look upon a " hypothetical 
 nebula." To found an argument on the existence of the usage 
 and practice of the country in changing their constitutions is 
 a '" most egregious fallacy." 
 
 When our constitution says this General Assembly shall 
 continue to exercise the powers it has heretofore exercised, it 
 calls upon us to look into past history. When it says in the last 
 section of the Bill of Eights, " The enumeration of the forego- 
 ing rights shall not he construed to impair or deny others re- 
 tained by the people," it means that the parchment is not the 
 only thing at which the people may look. When the elder 
 Chief Justice Durfee, in the memorandum quoted in the pam- 
 phlet, spoke of ' fundamental principles of individual rights 
 which lie at the foundation of all constitutional governments," 
 he had some meaning. When Webster spoke of this uniform 
 current, from the very commencement of our government of 
 law, of precedent, and of practice in the mode of changing con- 
 stitutions, he stated a fact of the weightiest moment. Such a 
 fact may well be termed a part of the common law of our gov- 
 ernment, as jurists and statesmen have been accustomed to do ; 
 see the quotations from the courts in Pennsylvania, and Senator, 
 afterwards Vice-President Wilson, in this reply. The Supreme 
 Court of New Hampshire, in an opinion in the 3d vol. p. 534 of 
 their reports, illustrates the capacity to look outside of the 
 words of a constitution. They say : " But the power of the 
 Legislature to take the property of individuals for public pur- 
 poses is indisputable. It is a power limited, undoubtedly, in 
 its nature by the public exigencies ; but it is a power recog- 
 nized by the constitution. There is no doubt, that when this 
 power is exercised, a just compensation is to be made. The 
 constitutions of some of the States expressly declare, that such 
 compensation shall be made, and natural justice speaks on this 
 point, where our constitution is silent." Webster and Mason, 
 perhaps, never excelled at the bar of America, founded their 
 argument in the Dartmouth College case on the same doctrine. 
 
70 
 
 THREE CLAL'SES IN THE CONSTITUTION WHICH VAXE 
 THE POWER TO PASS AN ACT PROVIDING FOR A 
 CONSTITUTIONAL CONVENTION; ALSO, THE PRO- 
 VISION OF THE CONSTTTUITON GIVING THE GEN- 
 vERAL ASSEMBLY POWER TO PROPOSE AMENDMENTS. 
 
 There are two other jtrovisions, three in all, in the constitu- 
 tion, which confer the power of calling for conventions, and 
 throu_i:ii the action of Legislature, convention, and popular vote, 
 revisini;' the constitution. 
 
 That each of these provisions, standing by itself, confers this 
 power, the pamphlet admits. But its admission is not neces- 
 sary to establish the construction of these clauses. For these 
 three reasons, therefore, the rule relied upon in the opinion 
 and the pamphlet does not apply. 
 
 These three powers are, in terms, as follows : — 
 
 " ARTICLE I. 
 
 "DECLARATION' OF CERTAIN C;i >XSriTUTIONAL RIGHTS AND PRIN- 
 CIPLES. 
 
 "In order etrectually to secure the religious and political 
 freedom esta])lished by our venerated ancestors, and to preserve 
 the same for our jxjsterity, we do declare that the essential 
 and unquestional)le rights and principles hereinafter mentioned, 
 shall be established, maintained, and preserved, and shall be 
 of paramount obligation in all legislative, judicial, and execu- 
 tive proceedings." 
 
 " Sect. 1. In the words of the Father of his Country, we 
 declare that ' the basis of our political systems is the right of 
 the people to make and alter their constitutions of government ' ; 
 but that the constitution which at any time exists, till changed 
 by an explicit and authentic act of the whole people, is sacredly 
 obligatory upon all."' 
 
 This is in accordance with the American Constitutional Law, as 
 shown liy history, and is but the recognition and enactment of 
 previously existing rights. 
 
71 
 
 or THE LEGISLATIVE POWER. 
 
 " Sect. 1. This constitution shall be the supreme law of the 
 State, and any law inconsistent therewith shall be void. The 
 General Assembly shall pass all laws necessary to carry this 
 constitution into effect." 
 
 " Sect. 10. The General Assembly shall continue to exercise 
 the powers they have heretofore exercised, unless prohibited in 
 this constitution." 
 
 The provision conferring upon the Legislature the power to 
 propose amendments and pi'esci'ibing the mode in which it should 
 be exercised is as follows : " The General Assembly may pro- 
 pose amendments to this constitution by the votes of a majority 
 of all the members elected to each house. Such propositions for 
 amendment shall be published in the newspapers, and printed 
 copies of them shall be sent by the Secretary of State, with the 
 names of all the members who shall have voted thereon, with 
 the yeas and nays, to all the town and city clerks in the State. 
 The said propositions shall be, by said clerks, inserted in the 
 warrants or notices by them issued, for warning the next annual 
 town and ward meetings in April ; and the clerks shall read said 
 propositions to the electors when thus assembled, with the names 
 of all the representatives and senators who shall have voted 
 thereon, with the yeas and nays, before the election of senators 
 and representatives shall be had. If a majority of all the 
 members elected to each house at said annual meeting shall 
 approve any proposition thus made, the same shall be published 
 and submitted to the electors in the mode provided in the Act 
 of Approval ; and if then approved by three lifths of the 
 electors of the State present, and voting thereon in town and 
 ward meetings, it shall become a part of the constitution of the 
 State." 
 
& 
 
 72 
 
 THE MEANING OF THE WORDS "MAY" AND "SHALL' 
 ]N THE PROVISION FOR AMENDMENT CONSIDERED. 
 
 The pamphlet calls attention to the distinction between the 
 grant of the power and the direction as to the mode of its 
 exercise. The writer thinks that the opinion of the Court did 
 not lay sufficient stress on this distinction. Ho says : "I come 
 now to a point' which I think did not receive the prominence it 
 is entitled to in the oi)inion of the judges." The pamphlet 
 says : " It [the provision] begins by giving the General 
 Assembly leave to propose amendments. The language is 
 purely permissive. The Assembly may or may not propose as it 
 chooses." In directing "the steps which are to be taken there 
 is an entire change in the form of expression. The language 
 ceases to be permissive, and becomes peremptory. It is not 
 'may,' but 'siiall,' ' shall,' ' shall.'" The pamphlet thinks this 
 phraseology is so conchisive a denial of the power to call a 
 convention that it saj's : "I will not multiply words. The 
 demonstration is complete without them." 
 
 The purely permissive language of the constitution, in con- 
 ferring the power to propose amendments, is conclusive that it 
 was not binding upon the Legislature to act under it. It does 
 not say that amendments shall or must be made through pro- 
 posals from the General Assembly, or that the General Assem- 
 bly shall make proposals (as in their judgment expedient) for 
 amendments of the constitution. There are none of the words 
 of command usual in constitutions when a duty is imposed. A 
 mere permission to them to act is certainly not in terms ex- 
 clusive of the modes of revision known and used for over sixty 
 years throughout the country, and four times adopted in Rhode 
 Island. 
 
 The provisions as to the mode of the exercise of the power 
 are directory and mandatory. How the power if resorted to by 
 the Assembly is to be carried into execution must be provided. 
 No general law and custom existed for such a proceeding. It 
 was a novel power conferred upon the General Assembly, and 
 
73 
 
 the mode of its exercise, wlierever it has been conferred, has 
 been pointed out. There is in these words no evidence of an 
 intent to exclude the operation of the other power. A mere 
 permission is not exclusive. 
 
 THE POWER TO CALL A CONSTITUTIONAL CONVEN- 
 TION NOT LIMITED BY THE TERMS OF THE 
 PROVISION FOR LEGISLATIVE AMENDMENT. 
 
 We have seen attempts at the substitution of expressions of 
 the pamphlet in place of those of the article in stating its po- 
 sition. We now come to an attempt to state such position by 
 quotation. And even in this the pamphlet is stating a meaning 
 difterent from the article. And this is accomplished hy taking 
 a single sentence apart from its context. The position taken 
 in this reply is also in the article ; in discussing the applicability 
 of the rule, expressio unius, etc., it said, "there is, there- 
 fore, no room for any implied prohibition, for there is an express 
 grant of the power in question by a general grant of legislative 
 powers which includes it." The next sentence was, "The rule 
 does not apply for the further reason." Yet the pamjohlet 
 quotes the first sentence as a denial of any possible limitation 
 upon a granted power. 
 
 Assume that a general grant may have limitations. The ques- 
 tion remains, Is the grant in the general power thus limited by 
 the provision for amendment? The pamphlet says, on page 
 36: "The literary plan of the constitution requires that the 
 grant of power, as included in the general grant, shall be ex- 
 pressed in one place, and the mode of exercising it prescribed 
 in another." The power that is included in the general grant 
 is confessedly the power to pass an act pursuant to which a 
 convention to frame a constitution may be elected, and the con- 
 stitution submitted to the vote of the people. In other words, 
 that the mode of proceeding universally adopted in this country 
 for a century in making a new constitution may be adopted. 
 The provision for self-amendment in the constitution, by which 
 the Legislature submits the proposed amendment to the people, 
 
74 
 
 confers a power upon the Legislature ; that power is not con- 
 tained in the general grant of legislative power or by that com- 
 mon law of our government, as the Pennsylvania court termed 
 it, and which Welister described as the current of law of prece- 
 dent and of practice. It exists only by force of a special 
 provision in a constitution ; it is contained in some and not in 
 others. 
 
 The pamphlet says that the tirst power is included in the gen- 
 eral clause, which is true. It then says that the mode of exer- 
 cising is prescribed in another provision ; it certainly is not in 
 terms ; no such provision was necessary, the mode was simple 
 and well known. The pamphlet points out the provision which 
 it claims pi-cscribes the mode of exercising that power. The 
 provision grants the power to amend by proposals from the 
 Legislature only, and points out the mode of the exercise of 
 such power under such a grant, and the mode of its exercise is 
 necessarily a matter of special provision in a constitution. This 
 is apparent from the nature of the power and from the historic 
 fact concerning it. 
 
 To say that the mode of exercising the greater and inherent 
 power is prcscri])ed in the provision conceding and providing 
 a method fiu- the exercise of the lesser power, which depends 
 on such provision for its existence, is an obvious error. 
 
 CHANGES BY LEfilSLATIVE AMENDMENT AND THROUGH 
 CONVEXTION PRACTICALLY DIFFERENT. 
 
 The pamphlet next proceeds to claim that provisions for 
 amendment in a State constitution are not different from provis- 
 ions for a change of constitution by legislation, convention, and 
 vote of the people. There is certainly reason for o-reater 
 caution and more time in regard to changes, which may be 
 proposed by an accidental majority in the Legislature before 
 they are allowed to ripen into a permanent part of the consti- 
 tution, because the pubhc mind of the State may not have been 
 called to a consideration of the change or had an opportunity 
 to pass upon it; whereas, in the case of the convention, the 
 
75 
 
 attention of the State is called to the fact that the convention is 
 assembled for the very purpose of making constitutional changes. 
 There is an election of delegates for that special purpose, and 
 as in the latter instance in our own State, they were called to 
 vote upon the question whether there should be a convention. 
 
 In the nature of things, there may be often, as there has been 
 four times in our own State, occasion for some slight changes 
 in the constitution which can be conveniently adopted through 
 legislation and vote of the people. Upon some important 
 changes there may be a general consent. On the other hand, 
 large and doubtful changes may be proposed, which should be 
 canvassed by the best wisdom of the State, composed of dele- 
 gates chosen without restriction of locality, and assembled in 
 convention, and their work afterwards submitted to the people. 
 That these two classes of changes exist from time to time 
 is obvious in the nature of things. Practical wisdom in 
 forming constitutions should make provision for either method. 
 Instances of both methods are found to have been exercised in 
 the history of the States of this Union times without number. 
 In more constitutions which have been from time to time 
 adopted than there are States in this Union, the two methods 
 have existed side by side. 
 
 The historical argument, that drawn from the facts of Amer- 
 ican history, showing the concurring judgment and action of 
 many and leading States in the Union, is briefly passed over. 
 The facts are not stated in the pamphlet. The article points 
 out the States which have changed their constitutions, and the 
 dates when such changes occurred, and the provisions of previ- 
 ous constitutions concerning amendments and changes. The 
 cases in which changes have been made under constitutions 
 containing similar provisions to that of Rhode Island, with no 
 provision for calling a convention, are New York ( 1845 ) , Mis- 
 souri (1865, ccmvention called also in 1845), Louisiana (1852, 
 1864), Mississippi (1868), Tennessee (1870), Pennylvania 
 (1873), Arkansas (1874), Texas (1875). In Massachusetts a 
 convention was called in 1853. Besides these instances the 
 following States which had provisions like our own were 
 restored, pursuant to acts of Congress, by means of conventions. 
 
76 
 
 and Dot l\v legislative action : Alabama, Arkansas, Georgia, 
 Louisiana, Mississippi, Tennessee, and Texas. 'Jbe pamphlet, 
 replies to these facts, that many of the States were seceding 
 States, and the author of the pamphlet does not think much of 
 their precedents. The pamphlet frequentl_y indulges in such 
 reflections upon these States. Grievously have those States 
 erred, and grievously have they answered it. Those whose 
 homes the war did not touch should not use its sad mem- 
 ories for unnatural purposes. 
 
 AVith the facts of the century before him, the pamphlet says, 
 with great simplicity (page. 41) : "But why a convention is 
 necessary, or what is the nature of that virtue which it can im- 
 part, he does not tell us ; and I confess I cannot conjecture." It 
 is simply the American mode of considering proposed organic 
 eiianges ; tumultuous popular meetings cannot do it ; legislatures 
 not well, if the opinion of the pamphlet is correct. 
 
 He further says : — 
 
 " It rests on the idea that a convention gets from the legisla- 
 ture or from the people, or from the legislature and the 
 people, in some mysterious way, a i^ower which neither the 
 legislature nor the people, nor the legislature and the people 
 both together have without it. Such a doctrine savors of mira- 
 cle or necromancy, and it is at any rate too transcendental for 
 me ; for whatever other merit it may have, it lacks the sover- 
 eign merit of common-sense." Such ideas the pamphlet sets 
 up and then assails them with such words. 
 
 Let us turn from that kind of discourse to the author who 
 has made a special study of the subject of conventions. Mr. 
 Jameson says of the American method of revising the funda- 
 mental law : — 
 
 "The legislature, forbidden itself to meddle with it, calls a 
 convention to revise the fundamental law. The convention 
 matures a scheme of amendments which it deems necessary, and 
 recommends them, but ventures to conclude nothing. The 
 electors, the ultimate body of functionaries, take up the projet 
 which the convention has forged into shape, and temper and 
 A'italize it by a power derived from the sovereign itself, and 
 which they wield as its immediate representatives. Such is the 
 
77 
 
 distribution of functions exhibited in the work of fundamental 
 legislation." (Jameson, 457.) 
 
 And of the mode of amendment by legislative propositions, 
 he further says : — 
 
 "It ought to be confined, in my judgment, to changes which 
 are simple or formal, and, therefore, of comparatively small 
 importance. For a general revision of a constitution, or even 
 for single propositions involving radical changes as to the policy 
 of which the popular mind has not been informed by prior 
 discussion, the employment of this mode is impracticable or of 
 doubtful expediency." (Jameson, 495.) 
 
 One concession at the close may be noted. The writer says : 
 "When I say this, however, I do not mean to say that the Gen- 
 eral Assembly cannot call a convention to prepare amendments, 
 or even to prepare them in the form of a new constitution, but 
 I mean to say this only '' ; but in substance, that the people and 
 convention are powerless to act, except through the methods 
 pointed out in the constitution for amendments proposed by a 
 legislature only. There is another recognition of the right 
 under the constitution of the Assembly to call a convention to 
 prepare a new constitution. 
 
 The admission of the chief justice that it is the right of the 
 Assembly to call a convention, either to prepare amendments or 
 a new constitution, leaves the question in this position ; shall a 
 constitution thus formed be submitted to the people as has been 
 the practice of probably nearly a hundred instances in this coun- 
 try ? In some rare case the action of the convention may have 
 been final. Shall it afterwards be subjected to the novel device 
 in such cases proposed by the chief justice, and to all the provis- 
 ions to which the States have wisely subjected the powers of 
 amendment by the legislature ? It would seem that there should 
 be some reason offered for such a novel view beyond the mere 
 assertion of the chief justice ".that I mean to say this only." 
 
 The chief justice had said (page 46) : "I desire to speak re- 
 spectfully and without offence ; but, nevertheless, I must say 
 that, in my opinion, a legislature is not generally well fitted to 
 decide legal or constitutional questions." 
 
 To subject an amendment or a new constitution, framed by 
 
78 
 
 the people in convention assembled, l)y delegates chosen for 
 that purpose, to the action of two successive legislatures, of 
 whom the chief justice has just given us his opinion, and, 
 further, to require that the result of the labors of such conven- 
 tion should not be aeeopted by a majority vote of the people, 
 but in disregard of the universal method of adoption by majori- 
 ties, a fundamental idea of American government should be ac- 
 cepted only l)y a vote of three fifths of the people, is certainly 
 a novel device in constitutional law. 
 
 THE PROVISION IN THE BILL OF RIGHTS. 
 
 The pamphlet jn-occeds to consider the declaration of the 
 Bill of Rights, Sect. 1, Art. I. : In the words of the Father 
 of his Country, we declare, that "the basis of our political 
 systems is the riglit of the people to make and alter their 
 constitutions of government ; but that the constitution which at 
 any time exists, till changed by an explicit and authentic act of 
 the whole people, is sacredl\' obligatory upon all." The first 
 inquiry is, what do these words mean? Does "an explicit and 
 authentic act of the whole people " include the proceeding by 
 legislature, convention, and the people, by which constitutions 
 have always been changed ? The article had said : " No one 
 will have the hardihood to deny that the act by which, through- 
 out more than a century, the constitutions of the States of this 
 Union have been made and unmade, is an explicit and authentic 
 act for that purpose. Xone will so insult the character of 
 Washington as to assume that in the use of that phrase in his 
 Farewell Address he did not refer to that mode of change which 
 he had so often witnessed around him, the only methods known 
 at that time." 
 
 The chief justice says: "I agree that it means this in its 
 retrospective application, for our fathers proceeded in that 
 manner when they adopted our present constitution." But he 
 says its meaning was changed after the constitution was 
 adopted. Constitutions are made to operate in the future, not 
 in the past. The question rife in Rhode Island was, whether the 
 
79 
 
 changes desired by a majority of its people could be made 
 by a constitution adopted by convention assembled without 
 the sanction of law, and approved by a vote of the people, or 
 whether such changes must have the sanction of the Legislature ? 
 The people's constitution, so called, was adopted upon the 
 former theory, and contained an express declaration of that 
 doctrine. Tlie landholders' constitution, which had been called 
 pursuant to a law of the Assembly, contained no declaration 
 upon this vital question of difference. 
 
 In the convention which formed the present constitution it 
 was proposed to adopt the provision of the people's constitu- 
 tion. The matter was vehemently discussed, and referred to a 
 committee, consisting of E. E. Potter, James F. Simmons, and 
 Nehemiah E. Knights. The chairman, E. E. Potter, had 
 issued a pamphlet upon the Ehode Island question, in which he 
 had said : "The more we consider these things, the more reason 
 we shall see in the old-fashioned doctrine, that a change of 
 government can only take place in one of two ways — legally, 
 with the consent of the existing government, or by a revolution, 
 brought about by force, or the fear of force." The provision 
 in its present form was adopted. The law and order party, of 
 which this constitution was " the crowning work," held that the 
 consent of the existing government made a change legal. 
 
 The chief justice argues that this provision of the Declara- 
 tion of Eights is changed by the subsequent provision for a 
 mode of amendment of the constitution. To this position 
 insuperable objections exist. 
 
 First. If that provision for amendment is construed so as to 
 limit and change the declaration of the Bill of Eights, and we are 
 to consider both, which is to prevail ? That question is answered 
 by the constitution itself. In case of conflict the Declaration of 
 Eights is to prevail. The language of the constitution immedi- 
 ately preceding this section is as follows : " In order effectually 
 to secure the religious and political freedom established by our 
 venerated ancestors, and to preserve the same for our posterity, 
 we do declare that the essential and unquestionable rights and 
 principles hereinafter mentioned shall be estabhshed, main- 
 tained, and preserved, and shall be of paramount obligation in 
 all legislative, judicial, and executive proceedings." 
 
80 
 
 Second. As the meaning of the Declaration is clear upon 
 the question, we should construe a provision for amendment 
 made hy our wise and good fathers as consistent with it. 
 
 Third. As the provision for amendment does not in terms 
 exclude proceedings for a convention, there should be some 
 reason for giving it that effect by implication, as strong as an 
 express declaration would be. 
 
 Fiiurth. It would be an imputation upon the framers of the 
 constitution, which, l)eing such men as the pami)hlet describes 
 them to be, they did not deserve, to suppose that they used 
 the lano-uao-e of \Va.shini'ton with a different meaning from that 
 in which he used it. If Ihey meant that the cinntltution should 
 he chaiujed only in the special mode, why did they not say so? 
 
 Fifth. The chief justice says (page 46) : "If the declaratory 
 clause, which was ofiered and rejected in the convention which 
 framed our constitution, had been adopted, we should find it 
 difficult to maintain that the special provision is exclusive and 
 controlling." 
 
 That clause was the one contained in the people's constitution, 
 which affirmed, in substance, the right of the people to change 
 their constitution without a previous act of legislation. The 
 people's constitution, it may be observed in passing, contained 
 a provision for amendment like our own, except that it required 
 only a majorit}' vote of the people to effect the amendment. 
 The chief justice admits that such provision for amendment 
 would not overrule the declaratory clause in the Bill of Eights ; 
 so, doubtless, thought ]\Ir. Dorr and the men who framed and 
 voted for that constitution. The declaratory clause in our con- 
 stitution affirmed the right of the i)eople to change it by any 
 explicit and authentic act. The usual mode of chanffino: a con- 
 stitution in this country by legislation, convention, and popu- 
 lar vote, is beyond all question an explicit and authentic act of 
 the whole people. Why should this more limited expression of 
 the right of the people to reform their institutions be further 
 limited by the provision for amendment, if the larger right ex- 
 pressed in the people's constitution was confessedly not thus 
 limited ? 
 
 The provision of the Bill of Rights is not referred to in the 
 opinion nor in the report of the committee of the General 
 
81 
 
 Assembly. It did not occur to the judges, it is to be presumed, 
 in the conference which the pamphlet implies that they held, 
 and we have not their opinion upon it. "We have, however, the 
 opinion of the pamphlet. 
 
 It says the section declares that the existing constitution 
 remains obligatory till changed by an explicit and authentic act 
 of the whole people. "There are two requirements here: 
 first, the act must be authentic ; and second, it must be the 
 the act of the whole people. To meet these requirements, the 
 act must be performed under the sanction of the law, for other- 
 wise it cannot be legally authenticated, nor be the act of the 
 whole people, if any portion of them dissent. The vote of 
 any number less than all cannot be the vote of the whole people, 
 even in contemplation of law, unk'ss it is legally and constitu- 
 tionally giVen. It is not enough, therefore, that the change is 
 eifected under an act of the General Assembly, unless the act 
 is constitutional. An unconstitutional statute is a nullity. 
 We are thus brought back to the very question which I have 
 already so fnlly argued, namely, whether an act which pur- 
 ports to provide for a change of the constitution in any manner 
 other than that which is prescribed in the special provision is 
 constitutional. I maintain, for reasons which I need not repeat, 
 that such an act, being inconsistent with the special provision, 
 is unconstitutional and void. It follows that the only mode in 
 which our constitution can be changed by ' an explicit and 
 authentic act of the whole people ' is the mode prescribed in 
 the special provision." 
 
 We give the pamphlet the benefit of its careful and full 
 reasoning. The assumption that the permission for amendment 
 is exclusive and controlling, has no basis, as the examination 
 of the pamphlet shows. But assume, for the sake of the 
 argument, that such an implication can be derived from it ; 
 and assume that the declarations in the Bill of Eights and 
 other provisions do not negative such implication, resting, as it 
 does, on inference merely, from the words of a provision which 
 does not stand alone in granting powers of action in this 
 matter ; and assume that it is the only mode by which, under 
 the constitution, the right of the people to alter their constitu- 
 tion can be exercised. 
 
82 
 
 What follows? This declaration in the Bill of Rii;lits, in its 
 very first section : "That the basis of our political system is the 
 risrht of the people to make and alter their constitution of gov- 
 ernment, but that the constitution which at any time exists, till 
 changed 1)V an explicit and authentic act of the whole people, is 
 sacredly obligatory upon all." And the preamble to the M'hole 
 declaration, that the rights declared in it " shall be of para- 
 mount obligation on all legislative, judicial, and executive pro- 
 ceedings," this preamble and section are both, so far as this 
 fundamental risht is concerned, absolutely useless and without 
 meaning. Thej' confer or secure no rights, according to the 
 pamphlet, except those otherwise conferred and secured in the 
 provision for legislative proposition for amendments of the con- 
 stitution. If that clause is exclusive and controlling, this con- 
 stitutional guaranty of the great American right of self-govern- 
 ment by the people is nothing, in effect, but blank paper. The 
 right outside the constitution is extinguished, the pamphlet also 
 claims, b\' the same exclusive and controlling provision. This 
 makes the whole Bill of Eights, in this respect, a simple piece of 
 useless absurdity. If the framers of the constitution were such 
 men as the pamphlet describes them to ])e, would they have en- 
 gaged in such an imposition and mockery upon the people of 
 the State? Shall we now gravely say that the constitution has 
 precisely the meaning it would have had, had not the careful 
 language of A\'asl)ington )>een chosen as its corner-stone ? There 
 is such a thing, the pamphlet says, as the reiJactio ad ahsiirdum, 
 " showing that a thing must be erroneous because it is absurd." 
 Simple common-.sense will prefer to continue in those words 
 their natural and admitted meaning, before the adoption of the 
 constitution, the same meaning afterward and forevermore. 
 
 AVliat has l)een ever the sjiirit and meaning of the Ilhode 
 Island fathers ? The pamphlet says : " Hitherto Rhode Island has 
 led her sisters oftener than she has followed them. It is her 
 glory that she began her career by leading the world." With 
 her sister States she formed the Union ; with them she declared 
 in that solemn act her doctrine of liberty and law. It has no 
 uncertain sound. Let her sons in all positions and capacities 
 be true to that great inheritance. She said, through the con- 
 
83 
 
 vention of 1790, "That all power is naturally vested in and con- 
 sequently derived from the people ; that magistrates, therefore, 
 are their trustees and agents, and at all times amenable to them. 
 And that powers of government may be resumed by the people 
 whensoever it shall become necessary to their happiness." 
 
 The chief justice, to-day, instead of drawing from these foun- 
 tains, holds doctrines for which political analogies existed only 
 in the early and untaught States in the slave-holding portions of 
 the country. A number of their constitutions contained provis- 
 ions vesting power in their legislatures to change their consti- 
 tutions without a vote of the people, though they never denied 
 the power of the people, in convention assembled, through its 
 acts and a popular vote, to change them. Those States and con- 
 stitutions were : South Carolina, 1790 ; Delaware, 1792, 1831 ; 
 Georgia, 1798; Missouri, 1820; Arkansas, 1836; Florida, 
 1838. There have been no others. Such power in legislatures 
 has vanished with the growth of American liberty and intelli- 
 gence. 
 
 The people of Rhode Island will not be pleased that their 
 chief justice has in his rhetoric " blazoned in letters of living 
 light'" South Carolina's act of secession. They remember, as 
 does every Amei'ican, the hallowed words of Webster, uttered 
 in blessing and not in derision, as he read upon his country's 
 flag, "Everywhere spread all over in characters of living light, 
 blazing on all its ample folds as they float over the sea and 
 over the land and in every wind under the whole heavens, that 
 other sentiment dear to every true American heart. Liberty and 
 Union, now and forever, one and inseparable." 
 
 AETICLE IV., SECTION 10. 
 
 The provision that " The General Assembly shall continue to 
 exex'cise the powers they have heretofore exercised, unless pro- 
 hibited in this constitution," includes the legislative power of 
 calling a constitutional convention, which power it had there- 
 
84 
 
 tofore exercised on four occasions, unless that power is prohib- 
 ited in the constitution. 
 
 The origin, historically and literally, of this provision may be 
 briefly stated. The People's Convention, so called, framed a 
 constitution in October, 1841. The Landholders' Convention, 
 called under an act of the General Assembly, met in November, 
 1841, and adjourned to February, 1842, when it completed its 
 work. In December, 1841, the vote was taken on the People's 
 Convention, when its supporters claimed that it had been adopted. 
 In ^larch, 1842, the vote was taken on 1he Landholders' Conven- 
 tion, and it was rejected liy about eight hundred majority on a 
 vote of about fifteen thousand. The theory of the people's con- 
 stitution was in accordance with the usual distribution of power 
 and declaration of rights in other State constitutions. In that 
 convention a learned man in political lore was the leading mind, 
 T. AV. Dorr. The landholders' constitution contained largely 
 the same division of powers and similar declarations of rights. 
 It differed in two essential particulars pertinent to the present 
 subject. It contained no declaration of the right of the people 
 to change the constitution. And it did contain (in contrast to 
 the provision in the people's constitution concerning the powers to 
 be retained by the General Assembly) an express statement that 
 "The Cicncral Assuuihly shall continue to exercise the judicial 
 power, the power of visiting corporations, and all other powers 
 they have heretofore exeicised not inconsistent with this consti- 
 tution." 
 
 In the convention of 1842, called in June, elected in August, 
 and convened in September of that year, there was some change 
 in the membership compared with the Landholders' Convention. 
 An attempt had been made to inaugurate the people's constitu- 
 tion, and the officers elected under it. The general government 
 had been appealed to b\' the charter government, and had prom- 
 ised to support it. Martial law had been declared at the 
 same time the convention act was passed. It was suspended 
 while the voting for delegates was taking place. The conven- 
 tion was of one political party. Mr. Simmons, Chief Justice 
 Durfee, and AVilliam Sprague were of the new members of that 
 convention. 
 
 The delegation from Providence to the Landholders' Conven- 
 
85 
 
 tionhad been Joseph Veazie, Thomas W. Dorr, William C. Bar- 
 ker, HezekiahWillard, Oliver Johnson, Thaddeus Curtis. The 
 delegates to the new convention were Charles F. Tillinghast, 
 Charles Jackson, William Tallman, James Fenner, Isaac Thur- 
 ber, Nehemiah R. Knight. The former, it is believed, were 
 suffrage men ; the latter moderate law and order men. Or if 
 Gov. Fenner is to be considered of a more extreme type, it is 
 to be remembered that he wore the suffrage badge in the ox- 
 roasting suffrage procession of 1841. William Sprague had 
 voted for the people's constitution, and had since been elected 
 United States senator by the law and order party. 
 
 With this change in circumstances, and in the personal mem- 
 berships of the convention, it will not be supposed that the con- 
 vention would make its constitution any less of the old Rhode 
 Island type. It therefore provided that "all the powers they 
 have heretofore exercised" (the most simple and comprehen- 
 sive term) should be continued to the General Assembly. In 
 the landholders' constitution it named two powers and added 
 "all other." The very specification, according to a usual rule 
 of construction, might limit the general word to those of the 
 kind enumerated. The reservation was no longer " not incon- 
 sistent with " (that is, open to argument and opinion), but "un- 
 less prohibited," which is strong, emphatic, and means some- 
 thing clear and definite to the public mind. It can be easily 
 imagined that Mr. Simmons, with his determination to main- 
 tain, so far as possible, the old order of things, might have 
 suo-o-ested these changes of expression. He did not forget the 
 power of the Assembly to call conventions. 
 
 In deference to the construction of the phrases distributing 
 power in other constitutions, the judicial power has been by the 
 court taken from the Assembly, nof withstanding the tenth 
 section, its origin and construction. The construction claimed 
 for the word "prohibited" in the pamphlet, not only deprives 
 the Assembly of a great and accustomed right, but it is reached 
 by putting a different construction from that put everywhere 
 else upon the same amendment provision in a constitution. Its 
 supporters have at once to contend against our State and most 
 of the other States. In such a contest the result in the long 
 run is inevitable. 
 
86 
 
 PENNSYLVANIA DECISIONS. 
 
 That of the Supreme Court of Pennsylvania in Wells v. Bain 
 (7,") Pa. St. 4(i) was (jnoted in the article. Not a word of it 
 meets the eye of the reader of the pamphlet. It is explicit 
 enough, that the modes of legal change are two. First, The 
 mode provided in the existing constitution. Second, "A law, 
 as the instrumental process of raising the body for revision, and 
 conveying to it the power of the people." Fuller quotation 
 may l)e found in the article. The distinction between the two 
 methods was fully considered by the Court. But the argument 
 or points of counsel are not given. The counsel were R. S. 
 Ashurst, J. E. Ciowen, B. H. Brewster (now attorney-general 
 of the United States), on one side, and C. li. Buckalew, W. H. 
 Armstrong, and Cr. AV. Biddle, on the other. The presumption 
 is that everything was ai'gued, at least everything that was 
 decided elal)orately hy the Court. The Court do not say, as 
 the pamphlet doi^s, that "the lawfulness of the convention was 
 assumed '" ; on the contrary, it elaborately argues and discusses 
 the lawfulness of the convention, and sustains it. 
 
 The pamphlet says of the judge's opinion in Wood's appeal : 
 "For the theory is identical with one of Judge Bradley's 
 theories, which I have considered, and which I think I have 
 shown to be chimerical." We will now quote some of the 
 reasoning and learning of the judge, and see where the chimera 
 is. The positions that the judge considers are these : "There 
 is no power given by the present constitution to the Legislature 
 authorizing such a proceeding. There is a different method 
 provided by the constitution, by which it may be amended, 
 and, therefore, upon well-recognized principles of law, the leo-al 
 conclusion arises that no other exists." The aro-ument of 
 counsel he states as follows: "It is urged, and with much 
 apparent force, that because the constitution, in the tenth 
 article ' of amendments,' provides a certain and carefully de- 
 fined way for amending the fundamental law, the well-recognized 
 
87 
 
 legal maxim ordinarily applies to the construction of deeds and 
 written instruments, as well as acts of legislation, ' ^xpreasio 
 unius est exclusio alterius,' leads to the fixed legal presumption 
 that no amendment can, under the constitution, be made to it, 
 except in the way thus specially provided." 
 
 His own reasoning is in part thus stated : "Custom and usage 
 have also been allowed to aid in interpreting acts of Parliament, 
 'and that exposition,' says Lord Coke, 'shall be preferred which 
 is applied by constant use and experience.' It is by no means 
 certain that the maxim alluded to should find any favor as a 
 general rule of interpretation of an instrument like a constitu- 
 tion, which must of necessity deal in generalities ; but at all 
 events, if so applied, it must in all such cases be considered as 
 overcome by any established or common usage or understanding, 
 indicating a different conclusion." 
 
 His conclusion is : "Turning now to the history of the gov 
 ernment of the various States, for the purpose of discovering 
 what the usage in such cases has been, we find the practice has 
 been so frequent and uniform as clearly to indicate what the 
 common understanding of the people, lawyer and laymen, has 
 been in regard to this question." 
 
 After great research, he adds : " The question whether the 
 calling of a constitutional convention was a legal exercise of 
 power by the Legislature, should now be considered by all 
 judicial tribunals as settled so firmly as a part of the common 
 law of our government, that any attempt to disturb it would 
 savor more of revolution than legitimacy." This is the only 
 passage from the opinion quoted in the article. The pamphlet 
 terms it "judicial thunder." 
 
 The pamphlet says : " Judge Bradley says the opinion of the 
 inferior court was sustained by the Supreme Court. This is 
 an error." This statement is a multiform error. The article 
 did not say so. If it had, it would have been correct. 
 
 The Supreme Court in Wood's appeal say : " The calling of 
 a convention and regulating its action by law is not forbidden 
 in the constitution. It is a conceded manner through which 
 the people may exercise the right reserved in the Bill of 
 Rights," and thus sustains the decision of the Court on the point 
 
now at issue. The opinion re-enforces that given in Wells v. 
 Bain. 
 
 That case of AYells v. Bain was in the Supreme Court, as 
 stated in the article. The Supreme Court in A\'^clls v. Bain 
 gave th'' same judgment as to the lawfulness of the convention 
 that was given by the inferior court in Wood's appeal. 
 
 The further assertion in the pamphlet "that the lower court 
 had promulgated a wild and extravagant theory in regard to the 
 power of constitutional conventions, and that the Supreme 
 Court had dissected and demolished that theory in a manner 
 which, to say the least, will not add to the reputation of its author 
 as a wise and trustworthy guide on questions of constitutional 
 law,'" is an error. The decision of Stowe, J., was that the 
 convention was right in disregarding the limitations sought to 
 1)0 imposed upon its power, both as to what it should propose 
 to change in the present constitution, and how the proposal 
 should be submitted to the people for their adoption or 
 rejection. Another question as to the right of the convention 
 lo repeal an act of legislation, it did not decide because 
 "immaterial" to the parties before it. 
 
 Tile facts out of which these cases arose were that the Assem- 
 ))ly ])y law in 1841 submitted to the people the question of 
 assembling a convention. And the vote of the people was in 
 the aifirniative. The Assembly of 1842 enacted some limita- 
 tions and made certain provisions in regard to the action of the 
 convention. The con\'ention appointed by ordinance a board 
 of inspectors of election in Philadelphia, different from the 
 board appointed by existing law. The Supreme Court en- 
 joined the l)oard appointed by the convention from acting under 
 their appointment. After the constitution had been adopted, 
 the case of Wood's appeal came before the court. They said 
 the matter was no longer open to judicial cognizance, but pro- 
 ceeded to give an extra-judicial opinion, arraigning as ille"-a] the 
 alleged purpose of the convention to adopt a constitution with- 
 out submitting it to the people. They decide in conclusion that 
 there is nothing which can justify an assumption that a conven- 
 tion so called, constituted, organized and limited, can take 
 from the people their sovereign right to ratify or reject a con- 
 
89 
 
 stitution or ordinance framed by it, or can infuse present life 
 and vigor into its work before its adoption by the people." 
 Wood's appeal, 76 Penn. St. p. 75. 
 
 While the convention, through its committee, advised sulj- 
 mission to the injunction of the court, upon reassembling, it 
 resolved, by a vote of seventy-seven to seven, that "the con- 
 vention was called by authority of the people, as determined 
 by their vote under the act of 1871, declaring that a convention 
 shall be called to amend the constitution of this Common- 
 wealth, and this was a mandate to the Legislature, which 
 that body was not at libert/ to disobey or modify." 
 
 And by vote of sixty-three to thirteen, the convention further 
 resolved, in substance, that the constitution had reserved the 
 right to modify the government, and " excepted it out of the 
 general powers of government, and declared that such right 
 shall remain inviolate." "It is not in the power of any depart- 
 ment of an existing government to limit or control the power 
 of the convention, and that the convention, subject only to the 
 constitution of the United States, is answerable only to the 
 people." The courts and the "convention filled with the best 
 men in the State "* concur (however they differ as to the respec- 
 tive sphere of the Legislature and convention) that a convention 
 is constitutionally holden in Pennsylvania, under a constitution 
 that provides for amendment like our own, and contains no special 
 provision for a convention. Neither courts nor convention, no 
 one, in short, who had the responsibility of judgment, then 
 held that the provision for amendment limited or prohibited the 
 exercise of power expressed in the Bill of Rights. A Bill of 
 Rights in that State means what it says, and is not set aside by 
 an inference as to the meaning of another clause. If the people 
 of one State may legally and constitutionally pi'oceed in the ac- 
 customed manner, and notwithstanding the provisions for legis- 
 lative amendment, why not Rhode Island also in a manner in- 
 cluded in the terms used in her Bill of Rights ? 
 
 * The opinion says : "The act opened a wide door to men of all parties, 
 and filled the convention'with the best men in the State." 
 
93 
 
 THE OPINION AND ACTION OF JUDGES, JUEISTS, AND 
 STATESMEN IN MASSACHUSETTS. 
 
 The opinion of the ^Massachusetts judges, and the examination 
 of it in the article, and the opinions of leading jurists of that 
 State, in its convention of 1853, as quoted in the article, are 
 both easily disposed of in the pamphlet ; the latter by abso- 
 lute silence. The examination of the opinion in the article, to 
 determine its ti-ue meaning, the author of the pamphlet seeks 
 to dispose of by simply saying, " Judge Bradley tries to explain 
 it away ; I do not think he succeeds." 
 
 The chief justice quotes one of the questions and one of the 
 answers. That question propounded to the ]\Iassachusetts judges 
 was : " Can any specific and particular amendment or amend- 
 ments be made in any other manner than that prescribed in the 
 ninth article of the amendments adopted in 1820 ? " Their answer 
 was : "Under and pursuant to the existing constitution there is 
 no authority given by any reasonable construction or necessary 
 implication liy which any specific and particular amendment or 
 amendments of the constitution can bo made in any other man- 
 ner than that prescribed in the ninth article of the amendments 
 adopted in 1820." That is, a legislative mode of amendment, 
 created by the constitution, does not authorize another mode. 
 This is all that the pamphlet quotes As to the question here 
 pending, whether any other mode of change may coexist, 
 whether changes can l)e made through a convention, the validity 
 of such a proceeding ultimately seems to be implied in the 
 other question and answer. 
 
 "Second. "Whether, if the Legislature should call a convention 
 of delegates for the purpose of making a specific revision of 
 the constitution in certain departments, that convention would 
 have any power to go beyond these specific amendents pro- 
 posed by the terms of the vote calling the convention ? " 
 
 Ans. " If the Legislature should submit to the people the 
 expediency of calling a convention to revise or alter the consti- 
 tution in any specified part thereof, and the people should, by 
 
91 
 
 the terms of their vote, decide to call a convention, the dele- 
 gates would derive their whole authority and commission from 
 such vote, and would have no right, under the same, to propose 
 amendments in other parts of the constitution not specified." 
 
 The pamphlet, after quoting the first question and answer 
 says, "That is all of the opinion which is pertinent. It is short, 
 but in Mercutio's phrase, ' it is enough.' Judge Bradley can- 
 not parry it. It leaves him without any ground to stand upon 
 Imt this : That though an amendment cannot be constitutionally 
 made in the form of an amendment, in any other than the pre- 
 scribed mode, it can be constitutionally made independently of 
 that mode, if you only put it in the form of a new constitution, 
 and call it reconstruction. My opinion is that the grand old 
 Massachusetts chief justice would have made short work with 
 that argument, if he had had occasion to consider it." 
 
 One of Chief Justice Shaw's colleagues, who signed the 
 opinion, probably understood it as well as the author of the 
 pamphlet. Judge Morton, who with his son, the present chief 
 justice, was a member of the convention, said, "If the peo- 
 ple choose to adopt what we submit to them it then becomes 
 authority." This is the question submitted to our judges. 
 Joel Parker, formerly chief justice of New Hampshire, then 
 a professor at the Cambridge Law School, said, "I believe this 
 convention to have been lawfully assembled." 
 
 He further says : — 
 
 " Is not this mode of amending the constitution, which is pre- 
 scribed in the constitution in express terms, perfectly consistent 
 with the other mode, by a convention of delegates? There is 
 no antagonism between the two modes The people say by 
 their constitution, ' We will have a convenient mode by which 
 this instrument can be amended without a convention ; and we 
 will therefore embody a provision that the opinion of two suc- 
 cessive Legislatures that the constitution ought to be amended 
 shall be submitted to us for our action without the expense of 
 a convention.' This is all very well ; but does it exclude the 
 idea that there is any other mode ? Does it exclude the idea 
 that a convention may be holden, when there is nothing antag- 
 onistical between the two modes? By no means. Sir, I do 
 
92 
 
 not stand alone in this opinion. I am supported in it by em- 
 inent writers on constitutional law. I will read an extract from 
 Mr. Rawle's Treatise on the Constitution, the work of a jurist 
 of well-known reputation, and one whose opinions are entitled 
 to high respect. He says : — 
 
 "'The laws of one legislature maybe repealed by another 
 legislature, and the power to repeal them cannot be withheld 
 by the power that enacted them. 80 the people may, on the 
 same principle, at any time, alter or abolish the constitution 
 thej have framed. This has been frequently and peaceably 
 done by several of these States since 1770. If a particular 
 mode of affecting such alterations has been agreed on, it is 
 most convenient to adhere to it, but it is not exclusively 
 binding.' 
 
 " There is the doctrine laid down distinctly. If a particular 
 mode has liecn designated by which this may be done, it is 
 convenient to adhere to it, but it is not exclusively binding. 
 It may be done in other modes ; and the mode by which it is 
 to be done at the present time is l)y the action of this conven- 
 tion." 
 
 Judi;e ,'=^prague of the United States District Court, formerly 
 a member of the United States Senate from Maine, said : " I 
 agree with tlu'ni (Judges Morton and Parker), that the act of 
 the Legislature, by virtue of which the convention was assem- 
 bled, was to be their guide. It was the charter, the organic 
 law of that body, under which they must act, and they had no 
 right to go beyond its true meaning . . . whether it be consid- 
 ered as deriving its force merely from the Legislature, or also 
 from adoption by the people." And Rufus Choate, then at- 
 torney-general of Massachusetts, a coadjutor in all things polit- 
 ical with Webster, a member of the same bar, that of Salem, 
 with Chief Justice Shaw, speaking of the power of the Leo-isla- 
 ture, under the constitution, to pass an act regulating the mode 
 of electing delegates to the convention, said : " To my judo-- 
 ment it is perfectly clear that they had, and which nobody has 
 yet called in question." Henry Wilson, the life-long senator of 
 Massachusetts and Vice-President of the United States, said 
 (Debates in the Massachusetts Convention, 1853, Vol. I. p, 
 179): — 
 
93 
 
 " Whether the act of 1852 has any warrant in the constitution 
 or not, it has the authority of precedent, the precedent of 
 the convention of 1780 that framed the constitution, and of 
 the convention of 1820, by which it was revised. Thirty-one 
 State constitutions have been formed, thirty-two conventions 
 have been held in nineteen States for the revision of their 
 organic Uiws. These sixty-three conventions, running through 
 seventy-seven years, have almost uniformly been held in accord- 
 ance with the provisions of legislative enactments. This mode 
 to ascertain the sense of the people has become the practice of 
 the States, — the practice alike of States having provisions for 
 thus taking the sense of the people, and of States having no 
 such provision. This mode has become the fixed practice of 
 our political system ; it is common law ; it is peculiarly Ameri- 
 can. Mr. Webster characterized it as the 'American prin- 
 ciple.' The act of 1852 is sustained by the almost uniform 
 precedents of the conventions which framed the constitution of 
 the United States, and the constitutions of the several States, 
 and of the conventions which have been called to revise the 
 constitutions of the States." 
 
 It is remarkable that in the long debate in the convention no 
 reference is made to the opinion of the Court, except by Mr. 
 Hallett, who quotes it for the position that the convention de- 
 rives its authority from the vote of the people. What these 
 men and their compeers said and thought and did upon this 
 question in Massachusetts was set forth in the article. These 
 facts the panlphlet — professing to answer everything — does not 
 notice. One of two things is evident : either these jurists of 
 Massachusetts thought the opinion was as claimed in the article 
 and was right, or was as claimed in the pamphlet and was 
 wrong. 
 
 It was intended, in those amendatory clauses of the Massa- 
 chusetts constitution, that it should not provide a mode for a 
 general revision of the constitution. It was intended to be 
 limited to Ihe amendments, in the original sense of the word, 
 which should be necessary from time to time. This meaning is • 
 plainly intended in the words used ; they are, "specific and par- 
 ticular amendments." Those, of themselves, to a fair mind, 
 
94 
 
 would not include a new constitution. The framers of that 
 constitution thought, as usual, their work would need nothing 
 but amendment. If it should, the way was open, in the history 
 of the State and the country, to make such revision. Once, in 
 the history of the State, a new constitution has been proposed 
 1)V the Legislature and rejected by the people. Twice had 
 conventions been culled. The constitution framed by the first 
 was approved by the people ; the second was then engaged 
 at its work. xVll this is made plain by wliat was said in the 
 Convention Proceedings, 417: "Mr. "Webster repeated the 
 grounds on which he made the proposition. It occurred to the 
 committcH^ that, with the experience which we had had of the 
 constitution, there was little probability that, after the amend- 
 ments which should now be adopted, there would ever be anj'' 
 occasion for great changes. No revision of its general principles 
 would be necessary, and the alterations which should be called 
 for by a change of circumstances would be limited and specific. 
 It was therefore the opinion of the committee tJiat no provision 
 for a revision of the whole constitution ivas ej:j)ed>aiit, and the 
 only quexluin lyas in -wliat manner it should he provided that 
 pH-irtindar amendments might be obtained. It was a natural 
 course, and confornial)le to analogy and precedent in some de- 
 gree, that every proposition for amendment should originate 
 in the Legislature under certain guards, and be sent out to the 
 people. The question then arose, what guards should be pi'o- 
 vided ? It was thought proper to provide that an amendment 
 should not be proposed and sent out to the people under the 
 influence of a popular excitement. To prevent this they pro- 
 posed to require the repeated assent of the Legislature ; and the 
 Cjuestion, in the mean time, would be, in some measure, tried 
 by the people, who would express their opinions in the next 
 election. This was one of the guards which they proposed, 
 and another was, that the measure should be assented to by 
 more than a bare majority of the two houses." ^Ir. Pickman, 
 who closed the debate, said "he did not consider it a question 
 •what power should be vested in the people, but what power 
 should be vested in the Legislature. He agreed that the people 
 are the sovereigns of the country, and that a majority must 
 
95 
 
 control the will of the people. But the question now was, 
 what powers should be given to the Legislature." Did Mr. 
 Webster understand the meaning of the clause he helped to 
 prepare? There had been, previous to his time, express pro- 
 visions for calling a constitutional convention. 
 
 MR. WEBSTER'S POSITION ON THIS QUESTION. 
 
 What Mr. Webster said in his argument in the Ehode Island 
 case, and what he submitted to the world in the last volume of 
 his works (and thereby intended, presumaljly, to leave as an 
 expression of opinion, and not merely as the argument of an 
 advocate), was quoted in the article. The pamphlet gives its 
 version of it. A quarter of the space would have suiBced to have 
 quoted it, and then its readers could have fonned some opinion 
 as to the truth of the assertion in the pamphlet, " That Judge 
 Bradley claims that Mr. Webster is authority. The claim is 
 simply conjectural." We quote, as in the article, the language 
 of Mr. Webster. None of it is quoted in the pamphlet. The 
 constitution of New York contained a provision for ameiidment 
 similar to our own. It contained no provision under which 
 any one claimed that the Legislature had power to call a con- 
 vention, except the general grant of legislative power. Mr. 
 Webster said, " One of the most recent laws for taking the 
 will of the people in any State is the law of 1845 of the State 
 of New York. It begins by recommending to the people to 
 assemble in their several election districts, and proceed to vote 
 for delegates to a convention. If you will take the pains to 
 read that act, it will be seen that New York regarded it as an 
 ordinary exercise of legislative power. It applies all the penal- 
 ties for fraudulent voting, as in other elections. It punishes 
 false oaths, as in other cases. Certificates of the proper officers 
 were to be held conclusive, and the will of the people was, in 
 this respect, collected essentially in the same manner, super- 
 vised by the same officers, under the same guards against force 
 and fraud, collusion and misrepresentation, as are usual in vot- 
 inof for State or United States officers." 
 
9G 
 
 "We see, therefore, from the commencement of the govern- 
 ment under which we live down to this late act of the State 
 of New York, one uniform current of law, of precedent, and of 
 practice, all goinir to establish the point that changes in govern- 
 ment are to be brought about b3^ the will of the people, assem- 
 bled under such legislative provisions as may be necessary to 
 ascertain that will truly and authentically." 
 
 The pamphlet argues that when he said this he did not be- 
 lieve that the act of Xew York was constitutional. And yet 
 he takes it as an illusti-ation of the American method of chan- 
 ging our State governments. If it fatally departed from " the 
 current of law, of precedent, and of practice," in Mr. Webster's 
 opinion as it does in the opinion of the author of the pamphlet, 
 and that to a ridiculous extent, as he claims, could Mr. Web- 
 ster have described it as a part of that current? But the lan- 
 guage is plain enough. 
 
 Omitting all of this, the pamphlet quotes at length what Mr. 
 Webster said in the same argument about the power of the 
 people to limit tlunnselves in their constitution, and the care 
 they had taken " to secure what they had established against 
 hasty changes by simple majorities." He instances only the 
 provision in the constitution of the United States. Two things 
 it may be well for the reader to remember : one that Mr. 
 Webster cites and the constitution contains provisions for 
 amendment through legislation and through conventions. These 
 two methods exist in the United States, and in the States ; the 
 author of the pamphlet has never been able to perceive that 
 the power to change through convention is coexistent with the 
 power to change through legislation. When the mind is once 
 open to a realizing sense of this undoubted historic fact, the 
 whole counter argument, to quote it, " vanishes like a vapor." 
 
 Another fact to be borne in mind here is the different nature 
 and powers of the general government and of the State govern- 
 ments. Mr. Webster has stated that difference in terms quoted 
 in the article. In short, that the general government is one of 
 specified powers, and that the State legislatures have all usual 
 powers, subject only to the limitations imposed by the State 
 constitutions or the United States constitution. 
 
97 
 
 Again it may be observed that Mr. Webster points out only 
 the provisions preventing hasty action by requiring a majority 
 merely in initiating amendments. The final action on the ques- 
 tion of changing the constitution of the United States is by a 
 mere majority either of the legislature or the convention. It 
 is not submitted to the people as are changes in a State consti- 
 tution. The United States were a combination of States, and 
 not one state, when the constitution was formed. What illus- 
 trations Mr. Webster takes from its provisions for changes are 
 not so instructive as what he says upon the mode of changing 
 State constitutions. 
 
 We will quote from the same speech what he says upon 
 changes in State constitutions : — 
 
 " Yet there is hardly one that has not altered its constitu- 
 tion ; and it has been done by conventions called by the Legis- 
 lature as an ordinary exercise of legislative power. Now what 
 State ever altered its constitution in any other mode ? What 
 alteration has ever been brought in, forced in, or got in any 
 how, by resolutions of mass meetings and then by applying 
 force? In what State has an assembly calling itself the people, 
 convened without law, without authority, without qualifications, 
 without certain officers, with no oaths, securities or sanctions of 
 any kind, met and made a constitution, and called it a consti- 
 tution of the State ? There must be some authentic mode of 
 ascertaining the will of the people, else all is anarchy." 
 
 Again he says, " What do I contend for? I say that the will 
 of the people must prevail when it is ascertained ; but there 
 must be some legal and authentic mode of ascertaining that 
 will, and then the people may make what government they 
 please." 
 
 Again, "But the law and the constitution, the whole system of 
 American institutions, do not contemplate a case in which a resort 
 will be necessary to proceedings aliunde, or outside of the law 
 and the constitution, for the purpose of amending the frame of 
 government. They go on the idea that the States are all repub- 
 lican, that they are all representative in their forms, and that 
 these popular governments in each State, the annually created 
 creatures of the people, will give all proper facilities and neces- 
 
98 
 
 san' aids to bring about changes which the people may judge 
 necessary in the constitutions. Tliey take this ground and 
 act on no other supposition. They assume that the popular 
 will, in all particulars, will be accomplished. And history has 
 proved that the presumption is well founded. 
 
 "This, may it please your Honors, is the view I take of what 
 I have called the American system. These are the methods of 
 brinrrino: about chan2;es in government." 
 
 Keferring to the passage quoted in it, the pamphlet observes : 
 'I want the reader to study these pregnant sentences. Mr. 
 AVcbster says the people limit themselves. He says they 
 secure the forms of gov^'rnment which they establish, from 
 hasty changes, by simple majorities. He tell us that this is 
 their great conservative principle. But how do they secure 
 their forms of go\ornment fi'om hasty changes by simple major- 
 ities? He shows how, by refei'ring to the provision," etc. 
 
 "Is it not clear then, that his meaning is, that the people 
 secure their forms of government trom hasty changes by simple 
 majorities, by prescribing modes of amendment which re((uire 
 the consent of more than simple majorities? This is evidently 
 what he means. He mentions no other way, and so far as I 
 know, there was no other way in which such security was made 
 in any State constitution." 
 
 This assertion is of two things. First, that Mr. Webster 
 means that the people secure their form of government by pre- 
 scribing modes of amendment which require the consent of more 
 than simple majorities. Second, that in fact there is no other 
 wav'in which such security is obtained in any State constitution. 
 The inference as to Mr. AVebster's meaning has no foundation 
 in what he has said, except that more than a majority of a legis- 
 lature is sometimes required to initiate proceedings and thus 
 to prevent haste or surprise. Our constitution does not contain 
 that provision. ^Ir. Webster never said that a constitution 
 may require more than a majority of the popular vote to make 
 a change. The provision for amendment in our constitution 
 requires three fifths. 
 
 In what sense does Mr. Webster use the word " people " in the 
 passages quoted from him ? He means the majority who repre- 
 
99 
 
 sent the whole in the vote. He never was so un-American as to 
 claim that a minority could prevail when questions of amend- 
 ment or change of constitution were submitted to the vote of 
 the people. 
 
 Mr. Webster said in the Massachusetts convention, 1820, 
 page 407, "He knew no principle that could prevent a majority, 
 even a bare majority of the people from altering the constitu- 
 tion." 
 
 The pamphlet says that Mr. Webster mentions no other mode 
 of securing the form of government from change than " by 
 requiring the consent of more than a majority." Mr. Webster 
 certainly nowhere mentions that mode as to be applied on a vote 
 by the people. 
 
 But the chief justice says : " So far as I know, there was no 
 other way in which such security was made in any State consti- 
 tution." 
 
 We are brought now to a question of fact. The collection of 
 State constitutions made by the Hon. Ben : Perley Poore, pur- 
 suant to an act of Congress, shows that there have been eighty- 
 four State constitutions in force in this country, In but two of 
 those is there a provision requiring more than a majority vote 
 of the people to adopt either an amendment or a change of the 
 constitution. One of these constitutions is that of New Hamp- 
 shire of 1792. The other is the present constitution of Rhode 
 Island. In the light of these facts, what are we to think of the 
 knowledge of the chief justice on the subject as declared by 
 himself? And what becomes of his interpretation of the mean- 
 ing of Mr. Webster's language? Who, to use the expression 
 of the pamphlet, "Empties that language of its significance"? 
 
 CHARGE OF THE ELDER CHIEF JUSTICE DURFEE HOW 
 TO BE CONSIDERED. 
 
 The pamphlet quotes, in its conclusion, from a paper purport- 
 ing to be the memoranda of a charge to the grand jury in 1843, 
 by the elder Chief Justice Durfee. 
 
 It has often been the pleasure of this writer to render tribute 
 
100 
 
 to the high power of that chief justice, especially to his phil- 
 osophic and poetic cast of mind, and to the manly impulses of 
 his nature. But, like all men, the chief justice had his limita- 
 tion. Xo one ever claimed for liim great learning in the law. 
 The pamphlet has recalled events occurring further back than 
 the lifetime of a generation, and yet as vivid as yesterday in 
 the memorj' of the actors. 
 
 There was occasion, at the time, for the writer to express his 
 opinion of that magistrate, then not long deceased. The House 
 had passed a resolution declaring the seats of all the judges 
 vacant. This resolution came to the Senate. Every vote of the 
 majority was needed. The writer, having one vote, said that he 
 could not concur in such a resolution unless there could be found 
 a man to take tiie place of chief justice, who was either, like the 
 late chief justice, a man of such intellectual power that he 
 could understand a case when it had been well argued on both 
 sides and decide it correctly, or a man like the then Chief 
 Justice (ireene, whose legal learning and judicial habit of mind 
 would usually enable him to decide rightly. This opinion 
 was by no means singular ; it was the common undei'stand- 
 ing of the bar at the time. What is more, the chief himself 
 knew and acknowledged the limitations referred to. Mr. Ames, 
 conversing upon the subject once in the court house, as this 
 writer distincti}' remembers, said, after expressing strongly his 
 opinion as to this deficiency in learning : " The chief justice 
 says himself, that he often feels out of place on the bench be- 
 cause he is culled upon to administer a science which he has not 
 studied." Constitutional questions are historic questions. No 
 man's intuitions or reasoning are sufficient for them. The mean- 
 ing of terms in an instrument depends upon usage. ISTot to 
 know the usage is not to know the meaning. Hence Daniel 
 "Webster's argument (which has just been quoted) as to the 
 American methods of changing the constitution is largely a 
 statement of historic facts. 
 
 Thus much as to the learning of the elder chief justice, and 
 the need of it on such a question. A striking instance of want 
 of knowledge in the present chief justice as to the usual con- 
 stitutional requirement of a majority, and of a consequent error 
 
101 
 
 in judgment and misinterpretation of Mv. Webster's language, 
 we have just seen. There was another serious difficulty in the 
 early chief justice, growing out of the large and powerful im- 
 pulses of his nature. His feelings would lead his judgment. 
 Witness two instances : One in his conduct in the Dorr trial, 
 in which, as we see by the quotations from the report, he was 
 tirst and last and all the time of the opinion that all the mem- 
 bers of one political party should be excluded from the panel 
 of the jury. This is a natural opinion for an outsider. But a 
 jurist, who understands the nature of a jury trial in our history, 
 could not take such a view. Judges Staples and Brayton did 
 not concur with him. Even the Journal did not. 
 
 In a similar English case, to use the phrase of the popular 
 historian, a Tory sheriff wrongfully selected a Tory jury. One 
 party has the administration of the laws entirely in its hands, 
 and can wield it for the destruction of its political opponents ; 
 now, perhaps, in trials for treason ; now, in trials for libel. 
 It is of such proceedings that the great advocate Erskine 
 uttered his words of wisdom and fire. 
 
 Witness again the philosophic and poetic and eloquent charge 
 of the late chief justice to the grand jury at Bristol, in March, 
 1842. The conclusion the elder chief justice reaches in his 
 own mind, and with which he would terrify the public mind, 
 rs that if the government should be changed by the adoption 
 of the people's constitution, Khode Island would cease to be one 
 of the United States. Congress would not recognize the State. 
 The Supreme Court would not recognize her. Her constitution 
 would be. of no more value in the courts of the Union than so 
 much blank parchment. He proceeds : — 
 
 " What becomes of the public property of all sorts ? your 
 court houses ? your jails ? your public records ? public treasury 
 bonds and securities of all sorts which belong to the present 
 corporate Rhode Island, and to her only, and can pass from her 
 only by her legislative consent ? What become of the actions 
 now pending on the dockets of every court in this State, bills 
 of indictment for crimes committed or that may be committed ? 
 What becomes of j^our State prison and your convicts, from the 
 wilful murderer to the petty thief? What becomes of your 
 
]02 
 
 corporations of all sorts'? of your corpornte towns and their 
 records? Xay, are there not questions t()uchin<z: life, liberty, 
 and individual property'? I dare go no further; })erhaps I 
 have already gone too far. But whate\cr answer may l>c 
 li'ivcu to these questions (and answered they nmst ultimately 
 be in the Supreme Court of the Union), the bare fact that 
 these (juestions must be raised, tried, and decided is sufficient 
 to send a thrill of horror through the heart of every man, 
 woman, and child in tliis State." 
 
 AVhat an utter want here of practical wisdom I What a want 
 of judicial wisdom ! Did not the chief justice with iiis col- 
 leagues sliortly afterwards decide that the political ([uestion as 
 to the existence of a constitution upon which such title depends 
 is one for the political and not the judicial department of the 
 government? 
 
 Again, the notes of this ch;irge to the grand jury in 1<S43 
 were not considered liy their author or his son and biographer 
 as sufficiently complete for pul)lication in the collection of his 
 works, notwitiistanding the importance of the subject. A 
 charge to a gi'and jury is not a judgment of a court. Judgments 
 are vaiiitible and ujakc^ the safe l)asis upon which society rests, 
 because they are tiie result of I'oulending argument. The opin- 
 ion of any man without such examination of both sides of a 
 (|Liestion is not a judicial one, though it may have come from a 
 judge. To transfer to the personal opinion of one holding judi- 
 cial office the weight attached to the opinion judicially formed, 
 is to encourage that most dangerous tendency in a judge to decide 
 cases without regard to the argument of the parties. This is 
 sucli a failure to perform the duties of the office that the judge 
 who thus conducts himself is entitled to have his seat declared 
 vacant 
 
 Did the elder chief justice live in our day, the present writer 
 believes that he would not have expressed the opinion attrib- 
 uted to him, and that a man of his high qualities and powers 
 would not have approved of the pamphlet before us. 
 
 The memoranda before us seem to show in one portion of 
 them that the early chief justice thought a provision for amend- 
 ment was exclusive of all other modes of change. And yet 
 
103 
 
 when he comes to his final proposition, he uses lanaruage which 
 would recognize other legal modes of change. He says, ' or 
 change of government, effected without pursuing a legal 
 course." A change through a convention and act of legislation 
 and vote of the people is a legal course, and therefore comes 
 within the language of the charge. If its author meant to 
 include any legal course, there is no conflict. If he meant to 
 say that the amendment was the only legal mode of change, 
 then there is such conflict. Now let us test the practical wisdom 
 of such an opinion, if we construe it as the pamphlet does. 
 The memorandum says : "Once establish it as constitutional law 
 in the Union that an article providing for the amendment of a 
 constitution may be disregarded, or a change of government 
 effected, without pursuing a legal course, and the last trumpet 
 has sounded, and the day of doom has come to our political 
 institutions." Such a doctrine has been established law in New 
 York, and Pennsylvania, and Missouri, Tennessee, Georgia, 
 Louisiana, Arkansas, and Texas, and even in Massachusetts, 
 and throughout the country ; indeed was proclaimed by the 
 advocates for Rhode Island, John Whipple and Daniel Webster, 
 in the Supreme Court of the United States only five years 
 after the delivery of the charge. It was acted upon by the 
 general government in the restoration of the seceding States. 
 Did the last trump sound and the day of doom come ? Let us 
 put aside I'hetoric and rely upon practical wisdom in the affairs 
 of government. Practical wisdom tests the soundness of polit- 
 ical philosophy. 
 
 CONCLUSION. 
 
 This reply is offered as a contribution towards the knowledge 
 of events in the history of the State, most of the actors in 
 which have departed, and upon w^hich the calm light of history 
 has not yet arisen. 
 
 It is offered also as a contribution to the knowledge of what 
 has occurred in other States, bearing on the questions submitted 
 by the Honorable the Senate of the State to the Honorable the 
 Judges of the Supreme Court, concerning a mode of changing 
 the constitution of the State. 
 
Over forty yeav> elapsed, during which the constitutimis of 
 Ainoricaii States were ehani;ed, through convention and popu- 
 lar vote. Then the method hy legislative proposition and pop- 
 idar vote was introduced both at the extreme- South and in 
 Xew P^nghuid. .Vt'ter o\er forty years more had elapsed, the 
 I'onimentator on constitutional conventions, having reviewed 
 history, says : " That course,"' that is, the course of changing a* 
 constitution through convention and jtopular vote, when the 
 existing constitution contained the provision for amendment by 
 lcgislati^•e provision and popular vote, without providing for a 
 con\('ution, — "that eouise," he said, "has l)ecn pursued, not 
 always without doubt or protest, though generally with the 
 consent of the wise, to which time has commonly added, the 
 ac(|uicsc<'nce of all." 
 
 'SUn-o States ha\ c followed that course since he wrote than 
 before. Amc.ng them the Keystone State and the State which 
 is to be the Empire State of the future. Rhode Island was 
 " tirst in the tight and last at the feast " of independence and 
 Union. Iler people were once ready to tight over the method of 
 ciianging their constitution. It is to I)e hoped that they are 
 now ready to unite with their sister States and join in the har- 
 monies of American constitutional libert}^ and law. For therein 
 are both i>rogress and safety. 
 
TABLE OF CONTENTS OF APPENDIX. 
 
 1. Memorandum as to the legal efTect of opinions given by 
 
 judges to the executive and legislature under certain 
 American State constitutions, by Prof. J. B. Thayer, 
 of the Harvard Law School, with supplementary ^^"'^ 
 
 note, 1-17 
 
 2. The Act to reverse and annul the judgment for trea- 
 
 son against Thomas W. Dorr, with the preamble in 
 
 full, stating the grounds and reasons for the Act . 17-19 
 
 3. The judgment of the Supreme Court of the State upon 
 
 the advisory opinion of the judges in regard to said 
 
 Act 19, 20 
 
 4. Acts of reversal in England and Massachusetts . . 21,22 
 
 6. Portions of an article written in 1858 by the Hon. John 
 
 P. Knowles, subsequently, and until his recent res- 
 ignation, judge of the U. S. District Court for the 
 District of Rhode Island, upon the decision of the 
 Supreme Court of Rhode Island denying judicial pow- 
 ers to the General Assembly under the present consti- 
 tution, in Taylor v. Place, 4 R. 1. The article going 
 fully into the history of that question in Rliode Island, 
 including much of the history of the origin of the 
 present constitution and of the construction put upon 
 it in regard to the powers of the Assembly under it . 23-38 
 C. Conclusions of an elaborate article upon the subject of 
 the judicial powers of the General Assemblj^, under 
 the present constitution, published in 1859, by James 
 F. Simmons, who is shown, by the records and re- 
 ported proceedings of the convention that framed the 
 constitution, to have been its most influential member 
 and leader ........ 39 
 
 7. Extracts from the report of the trial of T. W. Dorr, 
 
 showing the facts stated in the preamble of the re- 
 versal Act, and also certain actions and opinions of the 
 then chief justice, whose charge to a grand jury in 
 the following year is the final and principal reliance 
 in the pamphlet issued by his son for tiie construction 
 of the constitution advocated by its author . . 39-45 
 
8. Articles written by the Hon. Abraham Payne, in Octo- 
 
 ber, 1883, and March, 1884, containing a full discus- 
 sion of the questions arising from the opinion of the 
 judges as to the constitutional powers of the General 
 Assembly and the people, in reg'ard to a constitu- 
 tional convention, and a change and revision of the 
 constitution, including many facts in the histoi'y of 
 Rhode Island, and some reasons for a change in its 
 constitution. ^^See index.) ..... 45-69 
 
 [P. S. One of the two historic arguments referred 
 to in Mr. Payne's articles vvas written by the Hon. 
 C. E. Gorman. The tompiler had proposed to include 
 it in the appendix.] 
 
 9. The grounds given in the report of the majority of the 
 
 committee of the General Assembl}-, Wm. P. Sheffield, 
 chairman, for the doctrine that tlie power conferred ia 
 the constitution upon the Assemblj- to propose changes 
 in the constitution to the people destioyed the ex- 
 isting power in the people to change their constitu- 
 tion through a convention and popular vote, when the 
 whole proceedings was conducted pui'suaut to an 
 Act of legislation providing for them ; being the 
 grounds adopted in the opinion of the judges. Also 
 extracts from an argument in March, 1884, by the 
 chairman in repl}' to the article in May, 1883, and 
 an answer to them, showing the methods of quota- 
 tion and statement adopted by the argument . . 70-73 
 
 10. The statement of J. G. Palfrey, the philanthropist, 
 
 statesman, and historian, that the method of change 
 through a convention exists in Massachusetts, though 
 her constitution provides in terms only for a change 
 thiough legislative proposal. And that such is the 
 concurrent opinion of all parties there . . .74, 75 
 
 11. The wisdom and justice of the proposed changes in 
 
 the system of legislative proposals offered b}' Charles 
 F. TiUinghast in the convention, which would have 
 secured a nearer approach to that equality which is 
 the safe basis of any constitution .... 76, 77 
 
 12. Tables showing the provisions in the various State con- 
 
 stitutions in regard to changes in them, and showing 
 also what the action has been under such constitu- 
 tions in regard to such changes. These tables furnish 
 the facts upon which a sound opinion upon this and 
 similar questions can alone rest ... 78 84 
 
13. Tables which show the provisions of State constitu- 
 
 tions in regard to tlie power of the majority of the 
 
 people to make changes in State constitutions . . 85-88 
 
 14. The principles of American State constitutional law, in 
 
 regard to the reform of a constitution, as stated by 
 Mr. Webster, and by the Supreme Court of the 
 United States 88, 89, 90 
 
 15. The action of the American people and the judgments 
 
 of the Supreme Court of the United States fuinish 
 
 the proper rules for the construction of constitutions . 90, 91 
 
 16. Effect of the pamphlet of the chief justice. Its posi- 
 
 tions in the discussion, against and in addition to 
 those of the opinion, destroy the principal reason upon 
 which it rested. It has called out more fully the 
 reasons for the position of the article, historical and 
 others, and thus strengthened them. It is wrong in 
 its historic impressions, and in the fundamental 
 principles of its reasoning 91-106 
 
MEMORANDUM 
 
 LEGAL EFFECT 
 
 OPINIONS GIVEN BY JUDGES 
 
 THE EXECUTIVE AND THE LEGISLATURE 
 
 UNDER CERTAIN AMERICAN CONSTITUTIONS. 
 
 jrl3j''THAYER, 
 
 Pbofessok of Latt at the Law School of Harvahd Ukiversity. 
 
 BOSTON : 
 
 ALFRED MUDGE & SON, PRINTERS, 
 24 Fbanelin Street. 
 
 1885. 
 
 ? 
 
NOTE. 
 
 The following Memorandum was prepared at the request of 
 my friend and kinsman Chief Justice Bradley of Rhode Island, 
 as an Appendix to a pamphlet published by him, entitled "The 
 Methods of Changing the Constitutions of States, especially 
 that of Rhode Island. Boston : Alfred Mudge & Son, Printers, 
 No. 24 Franklin Street. 1885. 
 
 J. B. T. 
 
 Cambridge, January 28, 1885. 
 
MEMOKANDUM. 
 
 1. There are but four constitutions in which any provision is 
 made for taking the opinion of the judges by the executive or 
 legislative department, — those of Massachusetts, New Hamp- 
 shire, Maine, and Rhode Island. They are named in the order 
 of their dates. The clause was put into the Constitution of 
 Massachusetts (the only Constitution that State has ever had) 
 in 1780, in this form : " Each branch of the legislature, as well 
 as the governor and council, shall have authority to require the 
 opinions of the justices of the Supreme Judicial Court upon 
 important questions of law, and upon solemn occasions." — 
 Const. Mass., Part II., Ch. iii., Sec. 2. 
 
 It was not in the brief Constitution of New Hampshire of 
 1776, but appeared first in the fuller document of 1784, thus : 
 "Each branch of the legislature, as well as the president and 
 council, shall have authority to require the opinions of the jus- 
 tices of the Superior Court upon important questions of law and 
 upon solemn occasions." — Const. N. H. (1784), Part II., title, 
 Judiciary Power. The clause is retained in the same part of 
 the Constitution of 1792 (the existing one) in precisely the 
 same form, substituting only the term "governor"' as the later 
 name of the chief magistrate. 
 
 In the Maine Constitution of 1820 (Maine has had but one) 
 the provision is : "They [the justices of the Supreme Judicial 
 Court] shall be obliged to give their opinion upon important 
 questions of law, and upon solemn occasions, when required by 
 the governor, council. Senate, or House of Representatives." — 
 Const. Maine, Art. YL, Sec. 3. 
 
 In the Rhode Island Constitution of 1842 (the only one ; there 
 was nothing in the charter which touches this question) it is 
 provided : " They [the, judges of the Supreme Court] shall also 
 give their written opinion upon any question of law, whenever 
 
requested by the governor, or by either house of the General 
 Assembly." — Const. R. I , Art. X., Sue. 3. There is no coun- 
 cil in Rhode Island. 
 
 To make the statement complete, it should be added that in 
 the second Constitution of Missouri, that of 1865, there was in- 
 troduced, for the first time, a similar provision: "The judges 
 of the Supreme Court shall give their opinion upon important 
 questions of constitutional law, and u[)on solemn occasions, 
 when required by the governor, the Senate, or the House of 
 Representatives ; and all such opinions sliall be published in 
 connection with the reported decisions of said Court." — Const. 
 Missouri (1865), Art. VI., Sec. 11. Thei'e was no council in 
 Missouri. In the Constitution of 1875 (the existing one) no 
 such provision is found. 
 
 And it has not been found, I believe, in any other constitution 
 in the country, past or present. 
 
 2. The clause appears to have been copied into the other 
 constitutions from that of Massachusetts. The identity or close 
 similarity of the language points pretty plainly to that. In 
 Rhode Island there is a peculiarity, in requiring a written 
 opinion ; but this is rather an apparent difference than a real 
 one, the American usage having been uniform, it is believed, 
 in favor of written opinions. The short-lived Missouri clause 
 was limited to questions of constitutional law. And it may be 
 added that in Rhode Island the qualification of " important " 
 questions of law and that of "solemn" occasions are omitted. 
 
 3. AThere did ^Massachusetts get it? That question is no 
 doubt correctly answered, in one of the best of these opinions, 
 by the justices of the Supreme Court of Massachusetts. After 
 quoting the provision, they remark: "This article, as re- 
 ported in the convention that framed the Constitution, limited 
 the authority to the governor and council and the Senate, 
 and was extended by the convention so as to include the 
 House of Representatives ; and, as may be inferred from the 
 form in which it was originally presented, evidently had in 
 view the usage of the English Constitution, by which the kinir, 
 as well as the House of Lords, whether acting in their judicial 
 or their legislative capacity, had the right to demand the opin- 
 
ions of the twelve judges ef England" (126 Mass. at p. 561). 
 This opinion (an extremely learned and valuable consideration 
 of the meaning of the term "money-bills," which is understood 
 to have been drawn by Chief Justice Gray) refers to English 
 precedents, coming down as late as 1760, in which the king called 
 for opinions from the judges ; and also adverts to the well-known 
 practice, still continuing, by which the House of Lords requires 
 such opinions. The latest recorded instance in which such a re- 
 sponse was rendered to the king was one of March, 1760, con- 
 cerning the proposed trial of Lord George Sackville by court 
 martial, reported in 2 Eden (Appendix), 371. 
 
 4. What is the legal quality of such opinions ? Are they 
 authoritative declarations or merely advisory ? 
 
 (a.) In England. The character of all these opinions is 
 well indicated in the one just referred to, rendered by Lord 
 Mansfield and other judges to the king in 1760. Alter briefly 
 stating that an ofl[icer who had been dismissed from the 
 service could nevertheless be tried by court martial, it is 
 added : " But as the matter may several ways be bi'ought, in 
 due course of law, judicially before some of us by any party 
 affected by that method of trial, if he thinks the court has no 
 jurisdiction ; or if the court should refuse to proceed, in case 
 the party thinks they have jurisdiction ; we shall be ready with- 
 out difficulty, to change our opinion, if we see cause, upon 
 objections that may be then laid before us, though none have 
 occurred to us at present which we think sufficient." 
 
 But the matter may be further illustrated by considering 
 the opinions given to the House of Lords. (1.) The case 
 in which the Lords in their judicial capacity* call for the 
 opinion of the judges, is a very familiar one. No one supposes 
 that in this instance the law Lords are bound by the opinions 
 thus given. It is unnecessary to cite cases to show that the 
 Lords use them simply as advice. O'Connell's Case (11 
 Clark & Fin. 155) is one where the decision of the Lords 
 
 * A body which Bagehot, after referring to the Juclici:il Conimiltoe of iho 
 Privy Council, characterized as "what is in fact, though not in nnmi-, the 
 Judicial Committee of the House of Lords." — Bag/thot, English Gunstilut on 
 (Sdet?.), 120. 
 
was against the opinion of a majority of the judges. (2.) A 
 well-known case where the judges were called on for an opinion 
 in a matter of legislation is what is known as the Queen's Case. 
 In that matter no litigation was pending. The Lords had in 
 hand a legislative measure, a bill of pains and penalties touch- 
 ing Queen Caroline, and were making certain preliminary in- 
 quiries and examining witnesses. The judges were called in and 
 kept at hand to answer questions of evidence from time' to time. 
 Those answers, in several instances ill-considered, and hastily 
 given, as appears in Hansard, are also reported in 2 Brod. & 
 Bing. 284, from which they are often cited as if -they had been 
 given in the course of a regular trial. Their true character, 
 as touching any supposed authoritative quality, appears to 
 be correctly indicated by a valuable English writer. Best, 
 in his work on Evidence, Sec. 474: "It may be doubted 
 how far the proceedings in Queen Caroline's Case are binding 
 on tribunals, the answers of the judges to the House of 
 Lords having no binding force jier se; and although in that 
 case the House adopted and acted on those answers, it was not 
 sitting judicially, but with a view to legislation, which finally 
 proved alrortive." (3.) For an instance which brings out 
 with the greatest plainness the purely advisory quality of these 
 judicial responses, a very well-known precedent may be cited, 
 M'Xaghtens Case, 10 Clark & Fin. 200. Here not only was 
 there no litigated question before the Lords, but not even any 
 pending legislative question. The Lords, in the course of 
 their debates, having fallen into a discussion about a case 
 recently tried at the Central Crim nal Court, but not in any way 
 before them, — a case developing interesting questions in the 
 law relating to insanity, — conceived that they would like to 
 know a little more accurately what the law on these points was. 
 They accordingly put a set of "abstract" questions to the judges, 
 — questions not arising out of any business before them, 
 actual or contemplated. One of the judges (^laule) protested 
 against this proceeding, but, as the others answered, he 
 also answered. The Lords took notice of this, and while 
 courteously thanking the judges for their opinions, expressed 
 a unanimous judgment that it was proper and in order for the 
 
9 
 
 Lords to call for opinions on " abstract questions of existing 
 law." " For your lordships," said Lord Campbell, " may be 
 called on, in your legislative capacity, to change the law." 
 
 It needs no argument to show that opinions so given are not 
 binding upon any body, and should not be. If reasons were 
 asked for such a view, it would be enough to refer to what Mr, 
 Justice Maule suggested in his protest, when he objected that 
 the questions put " do not appear to arise out of and are not put 
 with reference to a particular case, or for a particular purpose, 
 which might explain or limit the generality of the terms " ; that 
 he had heard no argument; and that he feared "that, as the 
 questions relate to matters of criminal law of great importance, 
 the answers to them by the judges might embarrass the admin- 
 istration of justice when they are cited in trials." 
 
 So much for England. 
 
 (6.) To turn to this country. It might be anticipated that 
 since the constitutional arrangement now under discussion was 
 introduced into Massachusetts from England, it would be dealt 
 with on similar principles. It has been so dealt with. The 
 first recorded opinion given by the Massachusetts justices under 
 the provision in question was only very lately reported, in 126 
 Mass. 546. The several judges, upon very short notice, came 
 personally into the Senate on Feb. 22, 1781, and "delivered 
 their several opinions in writing." A joint order of the two legis- 
 lative houses had called for opinions in writing. It is quite 
 apparent, from the tone of these answers, that the judges con- 
 ceived of their function as merely advisory. Mr. Justice 
 Sargeant sa\s that he has done as well as is possible "in the 
 very short time allowed me. . . . Perhaps, if I had heard all 
 the arguments that have been made use of [in the legisla- 
 ture], I might be of a different opinion." Mr. Justice Sewall 
 says: "I do not, therefore, at present see," etc , etc. Mr. 
 Justice Sullivan civilly remarks that he is " very sensible of the 
 honor done to the bench by the command of the legislature in 
 this instance ; but am obliged to say, that in a question so com- 
 plicated, and of such magnitude, I could have wislied that a 
 lon"-er space than two days had been allowed me." Other early 
 opinions, of 1791 and 1807, may be found in 3 Mass. 567, and 
 ib. 568. 
 
10 
 
 The matter, however, has lieeu expressly passed upon, both 
 in opinions of the charaeter now under tousideraliou and in 
 solemn judgments in litigated eases ; and it is settled doc- 
 trine in ^Massachusetts that such opinions have no binding 
 quality. Opinions of the justices ii\ 7 Pick. 125, note, at 
 p. 130; 5 Met at p. 5II7 ; 9 Cush. (iOl ; 122 Mass. at p. 603; 
 12G :\Iass. at p. 566. In the last citation the judges say : " In 
 giving such opinions the justices do not act as a court, but as 
 the constitutional ad\isers of tlie other dei)artnients of the 
 government." 
 
 But the best citation is Com. v. Circen, 12 Allen, 155, 
 163. This is a decision in a capital case, where the Court 
 were required to adjudicate a point on which they had pre- 
 viously given an opinion to the governor. The judges 
 advert to this opinion, declare it to be not at all l)inding, and 
 state that they have sought to free their minds from all pre- 
 possessions resulting from their having given it. "The opinion," 
 they declare, "thus given, like all others of a similar charac- 
 ter, was formed without the aid of counsel learned in the law, 
 or any statement of the reasons on wiiich the regularity or 
 validity of the proceedings had Ikhmi called in question. Al- 
 though it is well understood and has often been declared by this 
 Court, that an opinion formed and expressed under such cir- 
 cumstances cannot be considered in any sense as conclusive or 
 binding on the rights of parties, but is regarded as being open 
 to reconsideration and revision," yet it net'cssarily supposes that 
 an opinion has been formed by the judges, and the Court feel 
 the duty of guarding against any bias from this fact, etc. So 
 also in a precisely similar situation the Court (Wilde, J.) 
 said, in Adams v. Buckhn, 7 Pick, at p. 127 : " We do 
 not, however, consider that opinion binding upon us in this 
 action." 
 
 Such is the doctrine in jNIassachusetts. In New Hampshire 
 the same view apjiears to ))e taken. It is cxpresscjd in an 
 opinion of the justices in I'.'t X. II. 537. The Senate had 
 called for an opinion on the constitutionality of a certain legis- 
 lative bill. The judges ad\ert to several embarrassing circum- 
 stances, such as the lack of prccist; qu(;stiouH, the aliscnce of 
 
11 
 
 any aid from counsel, etc., and it is then added : "Ui^on these 
 considerations we feel it due to ourselves in justice to say, that 
 whatever opinions we might express upon this bill must be 
 regarded as impressions by wliich we should not feel our- 
 selves bound, if the l)ill should become a law, and if the 
 rights of a citizen should depend on its construction." 
 And again in an opinion of June 10, 1881, a date not yet 
 reached in the published volumes of Xew Hampshire reports, 
 the judges, in advising the Senate that the legislature liad the 
 power and right to proceed then to the election of a United 
 States senator, quote the language of the judges of Massaclm- 
 setts in 126 Mass. 5GG, partly cited above, and say : "In giving 
 such an opinion, the justices do not act as a court, but as the 
 constitutional advisers of either branch of the legislature requir- 
 ing their opinion ; and it has never been considered essential 
 that the question proposed should be such as might come 
 before them in their judicial capacity." It should be added 
 that there are signs here and there in the New Hampshire 
 opinions that their advisoiy quality is less distinctly appre- 
 hended thun it is in Massachusetts; e. g., in 58 N. H. at 
 p. 622, one of the judges phrases a brief supplementary 
 opinion of his own, thus: "For reasons peculiar to myself, I 
 think I should be excused from sitting as a member of the 
 court in the decision of this question." And he goes on to ex- 
 press the hope that "the question having now been three times 
 decided by the Court without any dissent and without any con- 
 flicting decision, it may be considered as finally settled and put 
 at rest," But such expressions weigh little as against the lan- 
 guage of the opinions first cited. 
 
 The judges remark, in 41 N. H. at p. 552 : " We have 
 always to regret that when called upon by the legislature 
 for our opinions upon questions of law, we have not the usual 
 aid from the investigations of interested jiarties and their 
 learned counsel." But they sometimes call in their friends. 
 In 53 N. H. 640, in an answer to the governor, the judges 
 state that of their own motion they had written to two gentle- 
 men, '' requesting each as a friend of the Court to furnish to 
 the members of the Court a brief upon the points raised by your 
 
12 
 
 inquiries. Accordingly we luive received from each of those 
 gentlemen an able brief, which we have considered."* 
 
 In Khode Island the doctrine of the advisory character of 
 such opinions is clearly laid down. In Taylor v. Place, 4 R. I. 
 324, the Court, in a litigated case, had occasion to deal with a 
 question which had formerly been the subject of an opinion 
 given by the judges to the governor. On p. 362 the Court 
 (Ames, C. J.) says of a certain (juestion then under discus- 
 sion : " This is the iirst time since the adoption of the 
 constitution that this question has been brought judicially to 
 the attention of the Court. The advice or opinion given by 
 the judges of this (Jourt, when requested, to the governor or to 
 either House of the Assembly, under the third section of the 
 tenth article of the constitution, is not a decision of this Court ; 
 and given, as it must be, without the aid which the Court 
 derives in adversary cases from able and experienced counsel, 
 though it may afford much light from the reasonings or research 
 displayed in it, can have no weight as a piecedent." The italics 
 are those of the opinion. — A phrase occurs in one of the state- 
 ments of the judges in the old Rhode Island case of Trevett v. 
 Wheeden, which may perhajis indicate practices before the 
 Revolution that might throw light upon the question. When 
 the Superior Court of Judicature for the County of Newport 
 had rendered a decision in the case above named, in 1786, 
 which in effect annulled an act of the legislature, they were 
 summoned before that body. Mr. Justice Howell, in the course 
 of a long speech before the legislature, remarked that " the 
 order by which the judges were before the house might be con- 
 sidered as calling upon them to assist in matters of legislation, 
 or to render the reasons of their judicial determination." While 
 wholly declining to do the last, he remarked that as to the 
 former, "the Court wei'e ever ready, as constituting the legal 
 counsellors of the State, to render every kind of assistance to 
 the legislature in framing new or repealing former laws." 2 
 Chandler's Criminal Trials, 327. I am not aware of any ante- 
 Revolutionar\' usage of the sort refcri-ed to. 
 
 * SomethiDg of the same sort was done in Massachusetts, in the case of an 
 opinion given in 1825. 7 Pick, at p. 180, note. 
 
13 
 
 It is an interesting fact that Washington, in 1793, sought to 
 take the opinion of the judges of the Supreme Court of the 
 United States as to various questions arising under our trea- 
 ties with France. They declined to respond. The President 
 and Cabinet came to the conclusion to ask this opinion from 
 the judges on July 12, 1793. Those who were at hand appear 
 to have suggested delay until they could communicate with 
 their absent associates. A letter of July 23, from the Pres- 
 ident to Chief Justice Jay and his brethren, is preserved, in 
 which he assents to this delay, but expresses the pleasure that 
 he shall have in receiving the opinion at a convenient time. 
 (Sparks's Washington, X. 359.) The date was but alittle later, 
 — not far from Aug. 1, as it would seem, — of which Marshall 
 speaks when 'he says (Life of Washington, 441): "About this 
 time it is probable that the difficulties felt by the judges of the 
 Supreme Court in expi'essing their sentiments on the points 
 referred to them were communicated to the Executive. Con- 
 sidering themselves merely as constituting a legal tribunal for 
 the decision of controversies brought before them in legal form, 
 these gentlemen deemed it improper to enter the field of politics 
 by declaring their opinion on questions not growing out of the 
 case before them." It was, perhaps, fortunate for the judges 
 and their successors that the questions then proposed came in 
 so formidable a shape as they did. There were twenty-nine of 
 them, and they fill three large octavo pages in the Appendix to 
 the tenth volume of Sparks's Washington. Had they been brief 
 and easily answered the Court might, not improbably, have 
 slipped into the adoption of a precedent that would have 
 engrafted the English usage upon our national system. As it 
 is, we may now read in 2 Story, Const., Sec. 1571, that while 
 the President may require the written opinion of his Cabinet, 
 "he does not possess a like authority in regard to the judicial 
 department." 
 
 Eeference has now been made to the principles adopted in 
 all of the four States before mentioned, excepting Maine. 
 As to Maine there is something different to say. The early 
 procedure here showed small signs of any impression on the part 
 of the judges that they were engaged, when handing in these 
 
respcuises. id a matter of binding operation. Early opinions 
 are found in 2 Greenl. 431 ; 3 ib. 477 ; and (3 ib. 4SG. In 
 6 GrcL-nl. i")13, it appears from one of the commmiications of 
 the jiidaos to the council, that " the members of the court pro- 
 ceeded to ascertain each other's views by letter, not being able 
 from their scattered situation to have a personal interview." 
 And, again, it is said, that " questions propounded in this man- 
 ner are necessarily decided without argument, and we have not 
 been able to meet for discussion among ourselves." Indeed it 
 appears \{b. p. 507) that the Chief Justice sent in his opinion 
 without consulting his associates at all, and notified his scattered 
 brethren of it, "recpiesting them, if they think proper, to adopt 
 a similar mode of jiroceeding." Is it to be supposed that such 
 opinions are binding upon any body? And jet the justices of 
 the Supreme Court of Maine, in January, 1880 (70 Maine, 
 at p. ")S3j, in an opinion aswering certain questions put by 
 the legislature, while adverting to one or two previous opinions 
 then lately given, held the following remarkable language : 
 "Various questions, involving the true construction of the 
 constitution and statutes .... arose, and the governor called 
 upon this Court for its opinion on the questions propounded. The 
 Court was required by the constitution to expound and construe 
 the provisions of the constitution and statutes involved. It gave 
 full answers. The opinion of the Court was thus ol)tained in one 
 of the modes provided in the constitution for an authoritative 
 determination of ' important questions of law.' The law thus 
 determined is the conclusive guide of the governor and council 
 in the performance of their ministerial duties. Any action on 
 their part ... in violation of the provisions of the constitu- 
 tion and law thus declared is a usurpation of authority and must 
 be held void." This strange doctrine was laid down with no 
 citation of authority, no reference to any line of reasoning upon 
 which it could be supported, and no recognition of the history 
 and the law bearing upon the topic in hand, which is herein set 
 forth. It should also be said that it was laid down at a time of 
 great political excite:U3nt as r.-jgards the questions discussed. 
 
 It may be confidently expected that the subject, in Maine, 
 will not rest where it is thus left. 
 
 5. It will be well, by way of completing this statement, to 
 
15 
 
 refer to the usage in Missouri under the Constitution of 1865. 
 Here also the judges held that their function was not that of a 
 court. In 58 Mo. 295 (in 1873), they had occasion to answer 
 a call of the House of Representatives upon "the Supreme 
 Court of this State to give their opinion to this House," etc. 
 The judges reply: "If the annexed resolution is to receive a 
 literal interpretation, it appears to be a call on the Supreme 
 Court for its opinion as to' the constitutionality of the present 
 township and organization law. This Court has no authority 
 ... to give opinions on abstract questions of law. Its office is 
 to hear and determine real controversies. . . . It was not the 
 intention of Sec. 11 of Article VI. of the Constitution to allow 
 the Supreme Court to give its opinion on questions of constitu- 
 tional law, referred to in that section. The judges and not the 
 court are required by that section, etc. ; . . . but assuming 
 that the intention of the resolution Avas that the judges should 
 give their opinion as law officers ^ro liac vice, we will proceed," 
 etc. After this it is strange to find the reporter describing 
 this as an " opinion of the Supreme Court." The first instance 
 of these opinions in Missouri is one of Nov. 27, 1865, reported 
 in 37 Mo. 129. The second response (37 Mo. 135), on Dec. 9, 
 1865, declined to answer certain questions of the Senate, and 
 defined in very narrow limits the power of the other depart- 
 ments to ask the opinion of the judges. In like manner they 
 also declined to answer questions of the Senate in 51 Mo. 586, 
 and said : " It is not contemplated by the Constitution that the 
 judges are to give their opinion on any questions which may 
 afterwards come before them for adjudication." Again, in Feb- 
 ruary, 1874 (55 Mo. 497), they-declined, "with the highest re- 
 spect for the House of Eepresentatives," to answer certain ques- 
 tions. The next and last instance of these responses is given, 
 as of " October term, 1874," in 58 Mo. 369. The judges again 
 declined to answer the questions put to them ; and thereupon 
 the Constitution of the next year wholly relieved them of this 
 sort of duty.* It is pretty manifest that the judges put upon 
 
 * Instances of declining to answer may, perliaps, be found elsewhere, c. g., 
 In 123 Mass. GOO; but the refusals in Missouri in their ten years' experience 
 probably outnumber all in the four New England States from the beginning. 
 Indeed, outside of Missouri, I do not recall a second case. 
 
16 
 
 the Constitution of ISfio a ninch narrower construction than it 
 should have received, in view of the origin and hintory as herein 
 traced of the function which they were exercising ; but as 
 regards the advisory nature of this function, they were in accord 
 with almost all the precedents. 
 
 6. Upon the whole, it seems clear that the opinions herein 
 referred to are purely advisory. There is, indeed, a popular 
 impression that they are on the same footing as decisions in 
 litigated cases; witness, e. g., the language of leading news- 
 papers, such as the Boston Daily Advertiser of Jan. 12, 1880* 
 But if such responses under any of our constitutions are to 
 hold their place (and it appears to me that they are useful), 
 if is of grave importance that the notion of their binding 
 quality should be dispelled. 
 
 •This leading New England newspaper designated the opinion of the 
 Maine judges above quoted as a " decision of the court," and laid it down 
 that there are two ways of exercising judicial povver, — one, the regular way 
 of litigation, and the other, that of giving these opinions, — and that they 
 are equally binding. " So far," it added, "as Gov. Garcelon and his council 
 are concerned, there can be no doubt of its binding force. . . . The opinion 
 of the court is supreme and binding upon all in authority as public officers, 
 as much as a final judgment, entered up after a full hearing, is upon an indi- 
 vidual. In the constitutional method . . . a decision has been reached, and 
 it is no longer advice or counsel, but has the force of the constitution itself. 
 The view of Gov. Garcelon would make a farce of all judicial appeals," etc. 
 Since I have criticised the Maine opinion, I talie leave to add that I sympa- 
 thized with the side which that opinion supported, and greatly admired the 
 political good sense which led all parties, under the circumstances of that 
 time, to accept the conclusions of the judges. 
 
SUPPLEMENTARY NOTE TO A " MEMORANDUM ON THE 
 LEGAL EFFECT OF OPINIONS GIVEN BY JUDGES TO 
 THE EXECUTIVE AND THE LEGISLATURE UNDER CER- 
 TAIN AMERICAN CONSTITUTIONS." 
 
 I avail myself at once of two or three suggestions from friends, 
 received since the Memorandum was printed. 
 
 1. The State of Florida should be added to the four therein named. 
 The following clause was introduced into the constitution of 1868 (the 
 existing one): "The governor may at any time require the opinion 
 of the justices of the Supreme Court as to the interpretation of any part 
 of this constitution or upon any point of law, and the Supreme Court 
 shall render such opinion in writing." Const, of Florida (1868), Art. V., 
 Sect. 16. The power of calling-for opinions, it will be noticed, is given 
 only to the governor. On the other hand it is a wide power, cover- 
 ing " any point of law." By an amendment in 1775, this clause is made 
 to read: " The governor may at any time require . . . of this consti- 
 tution, upon any question affecting his executive powers and duties, and 
 the justices," etc. — Amendment XI., of 1875. As it now stands, the 
 Florida clause may be compared with a peculiar one in the constitution 
 of Virginia (Art. IV., Sect. 6), giving the governor power to require the 
 " opinion in writing of the attorney-general upon any question of law 
 connected with his otHcial duties." 
 
 Opinions rendered under this provision in its earlier and later form are 
 found in 12 Florida, 651 and 660, both in 1868; 76., 686 and 690, both 
 in 1869; 13 Florida, 687 (1870); 16., 700 (1871); 15 Florida, 737 and 7H9, 
 both in 1875; and 16 Florida, 842 (1877). I observe nothing in them indi- 
 cating any impression on the part of the judges that they are authorita- 
 tive; while on the other hand in 12 Florida, at p. 664, one of the judges 
 (the common practice here is that of separate opinions ) hardly conceals 
 his surprise, in quoting the intimations of a Maine opinion in 7 Greenl. 
 482 (1830): "It will be perceived," he says, " that the justices in this 
 case go so far as to'.say that the Senate, in making its decision, must 
 construe the constitutiT)n in accordance with the opinion of the Court; 
 thus intimating that their opinion interpreting a clause in the constitution 
 as to the manner of exercising a power vested exclusively in the Senate, 
 was a law to the Senate itself in its action." Although the power of 
 calling for opinions is given only to the governor, on one occasion the 
 Legislature, by a concurrent resolution, requested the governor to ask 
 the judges for an opinion; and upon his transmitting the resolution to 
 them with a request for an answer, the judges gave it without any re- 
 mark. 12 Florida, 686. 
 
 2. The case of the refusal to answer, of Jay and his associates (p. 13), 
 may be compared with the " Report of the Judges," 3 Binney,595 (1808) 
 
A statute of Pennsylvania provided " That the judges of the Supreme 
 Court are hereby required to examine and report to the next Legislature 
 which of the English statutes are in force in this Commonwealth," etc. 
 The judges answered, without remark, in an elaborate paper. The re- 
 porter (p. 595) has this note: " This important document is here inserted 
 at the request of the judges of the Supreme Court. In many respects it 
 deserves to be placed bj' the side of judicial decisions ... It may not, 
 perhaps, be considered as authoritative as judicial precedent, but," e;c. 
 But in an interesting Minnesota case, In the matter of the application of the 
 Senate,.10 Minnesota, 78 (1866), tlie judges refused an answer to the 
 Senate, and declared unconstitutional a statute which provided that 
 " either house may by resolution require the opinion of the Supreme 
 Court or any one or more of the judges thereof upon a given subject, 
 and it shall be the duty of such court, or judges thereof, when so re- 
 quested, respectively to give such opinion in writing." 
 
 It should have been stated in the Memorandum that the results 
 there reached came from a personal examination of what relates to 
 the judicial power, in all the American constitutions, with their amend- 
 ments, included in Poor's two volumes (1877), compiled by order of the 
 Senate of the United States. There are one hundred and two constitu- 
 tions, including that of the general government. Since finding that the 
 Florida provision was put under the head of the executive department, I 
 have added a personal examination of all the latest constitutions in these 
 volumes, under the head of the executive and legislative departments. 
 I have also examined such later constitutions as are known to mo. 
 
 3. The unpublished New Hampshire opinion mentioned on pao-e 11 
 now appears in 60 N. H. 585. On p. 15, third hne from the top, for 58 
 Mo. read 55 Mo. 
 
 Feb. 13, 1885. j. b. T. 
 
AN ACT to reverse and annul the Judgment of the Supreme 
 Court of Khode Island for Treason, rendered against 
 Thomas W. Dorr, June 25, A. D. 1844. 
 
 Whereas, the General Assembly of this State hath from time 
 to time exercised the powers conferred upon it by the Charter 
 of King Charles the Second, "to alter, reverse, annul or pardon, 
 under their common seal or otherwise, such tines, mulcts, 
 imprisonments, sentences, judgments and condemnations as shall 
 be thought fit " : 
 
 And whereas, the same powers were continued to the General 
 Assembly under the existing constitution of this State by the 
 terms thereof, which provide " that the General Assembly shall 
 continue to exercise the powers they have heretofore exercised, 
 unless prohibited by this constitution " ; and by the provision 
 that " the supreme court established by this constitution shall 
 have the same jurisdiction as the supreme judicial court" there- 
 tofore existing : 
 
 And whereas, an alleged political offence, for which a judg- 
 ment hath been rendered in favor of the State, may in certain 
 cases furnish a proper occasion for the exercise of such high 
 powers : 
 
 And whereas, upon the trial of Thomas Wilson Dorr, for the 
 alleged crime of treason, there was an improper and illegal 
 return of jurors in this, that one hundred and seven jurors from 
 one political party were designedly selected by the sheriff, in 
 part with the aid and assistance of persons acting in behalf of 
 the State, and only one juror from the other political party, and 
 the accused was tried in a county other than that in which the 
 alleged offence was committed and in which he resided, and he 
 was allowed but two days with any, and but a few hours with 
 some of the panel of jurors in which to inquire as to their dis- 
 
18 
 
 qiialificntions or obtain proof tliereof, and was not allowed after 
 the percmptorv challcni^o of several such jurors, and after 
 obtaininy- proof of such iliscpialitications, to withdraw said per- 
 emptoiy challeni;es, and to challenge said Jurors for cause, or 
 to have a new trial in c(nise(nuMice thereof : 
 
 ^Vod Avheieas, the court denied the jury the right to pass 
 upon questions of law, though said court had previously, in 
 accordance with the common law, held that the juiy might in 
 criminal cases take upon themsehes the responsibility of 
 deciding (juestions of law ; and the accused was not allowed to 
 show in justitieation or in exjdanation of his motives or intent, 
 that he acted under a constitution which had b.^en adopted by a 
 large majority of the peojjle of the Ktatc, and an election under 
 the same as governor of the State, and in accordance with what 
 he deemed to lie his right and duty in conseijuenco thereof: 
 
 And whereas, the said Thomas Wilson Dorr was thereby 
 wrongfully eouN'icted : 
 
 And wliereas, it is desirable for the best interests of this State 
 that the wrongs thereby inflicted upon said Dorr, and upon the 
 people of the State, should be redressed, and that the animosities 
 created by the civil commotions which preceded and accompanied 
 said trial siiould cease and determine : 
 
 And whereas, it has been the custom of our English fore- 
 fathers (but for which there hath been happily no occasion 
 heretofore in the history of this country), whc^never judgments 
 for treason have l)c;en thus illegally and wrongfully obtained, to 
 reverse by act of Parliament such judgments, and to direct, to 
 the end that justice be done to those who have becni thus con- 
 victed, that the records thereof be cancelled or destroyed : 
 
 It is enac/ed hy the General AsueiiJih/ as follows : 
 
 Section 1. The judgment of the Supreme Court, whereby 
 Thomas AVilson Dorr, of Providence, on the t\\'ent\'-fifth day of 
 June, A. D. 1.S44, was sentenced to imprisonment for life, at 
 hard labor, in separate confinement, is hereby repealed, reversed 
 annulled and declared in all respects to be as if it had never 
 been rendered. 
 
 Sec. 2. To the end that right be done to the said Thomas 
 
19 
 
 Wilson Dorr, the clerk of the supreme court for the county of 
 Newport is hereby directed to write across the face of the record 
 of said judgment the words, "Reversed and annulled by order 
 of the General Assembly, at their January session, A. D. 
 1854." 
 
 Sec. 3. The secretary of State is hereby directed to trans- 
 mit a copy of this act to each of the governors of the several 
 States, and to the Congress of the United States. 
 
 Sec. 4. This act shall take effect from and after its passage. 
 
 OPINION OF THE COURT IN TAYLOR vs. PLACE, 4 E. I., 
 PAGE 362, IN REGARD TO THE ADVISORY OPINION 
 OF THE JUDGES UPON THE REVERSAL ACT. 
 
 This is the first time, since the adoption of the constitution, 
 that this question has been brought Judicially to the attention of 
 the court. The advice, or opinion, given by the judges of this 
 court, when requested, to the governor, or to either house of 
 the General Assembly, under the 3d section of the 10th article of 
 the constitution, is not 2i decision of this court ; and given, as it 
 must be, without the aid which the court derives, in adversary 
 cases, from able and experienced counsel, though it may afford 
 much light, from the reasonings or research displayed in it, can 
 have no weight as a precedent. We have been referred by the 
 counsel, both for the plaintiffs and for the defendants, to the 
 opinion of the judges of this court given, in 1854, to the Gen- 
 eral Assembly, in answer to a request of that body, with regard 
 to the constitutionality of an act of the General Assembly, 
 passed at its January session, 1854, reversing and annulling the 
 sentence of this court, passed ten years before, upon the late 
 Thomas W. Dorr. The judges gave their opinion that the act 
 in question was unconstitutional and void, as an exercise of 
 judicial power 2)rohihited by the constitution to the General Assem- 
 bly ; but not having that case now before us, for the purpose of 
 ascertaining how far the prohibition in question applied to it, 
 
20 
 
 we are satisfied that the reasoning, in the former part of their 
 opinion, from the purpose of the distribution of the govern- 
 mental powers, under the constitution, that the exercise of 
 judicial power was prohibited to the General Assembly, is unan- 
 swerably correct. If the latter part of the opinion is to be con- 
 strued as reserving to the General Assembly ordinary judicial 
 power, in granting new trials in actions at law ; or chancery 
 powers, to be applied by the Assembly in pending oases, or, in 
 any judicial mode, to cases of accident or mistake; or, as any- 
 thing more than tliat, in the matter before them, they had no 
 occasion to meddle with that question, it was not only wrong, 
 but logically at war with the only ground which they state for 
 their first conclusion. The logic of it, shortly put, would be 
 this : "The General Assemljly has no power, since the adoption 
 of the constitution, to annul the sentence in question, because 
 that is an exercise of judicial power, and the exercise of that 
 species of power, ho\vc\er customary with the Assembly, before 
 the constitution, is prohibited to that body by it ; but, to grant 
 new trials, and relieve, as a court of chanceiy, though the exer- 
 cise of judicial power, is constitutional, because the Assembly 
 habitually exercised that power previous to the adoption of the 
 constitution." It is evident that the ground of the conclusion 
 destroys the reseiwation, or that the ground of the reservation 
 destroys the conclusion ; and ^vhichever way it be, we can hardly 
 believe that the learned judges were guilty of such an over- 
 sight. AYe are inclined to think that when they said "that they 
 did not mean to intiuiute the slightest doubt of the validity " of 
 certain acts of judicial power exercised by the General Assembly 
 since the adoption of the constitution, if exercised and acqui- 
 esced in by the people since, they are to be understood aa 
 meaning that they reserve their opinion upon that subject, as 
 unnecessary and inapplicable to the question before them. But 
 if it was intended as anything more than this, the reservation 
 was at war with the conclusion, so far as justified by the exer- 
 cise of judicial ix)wer, by the General Asseml>ly, before the 
 adoption of the constitution ; and certainly, ten or twelve years' 
 infringement, by such a body, of a plain prohibition of the con- 
 stitution, could not be deemed, upon any principle, to have 
 shot up, in that time, into a right. 
 
21 
 
 EXHIBIT D. 
 ACTS OF REVERSAL. 
 
 State Trials. 
 Vol. 8, p. (471.) 
 
 (Old Style Spelling.) 
 
 "Number XXVI. 
 
 Anno 10 Gul' & Marire > ^" ^*^* ^o"" annulling and making 
 
 N° IV. I ^°^^ ^^^ Attainder of William Russell 
 
 ) Esq. ; Commonly called LordEussell. 
 
 Whereas William Russell, Esq. ; Commonly called Lord 
 Russell, eldest son of the Right Honourable William Earl of 
 Bedford, in the Month of July, in the five-and-thirtieth Year of 
 the Reign of our late Sovereign Lord King Charles the Second, 
 at a Sessions of Goal Delivery, holden at the Old Bailey, 
 London, was by undue and illegal Returne of Jurors, haveing 
 been refused his lawfuU Challenge to the said Jurors, for want 
 of Freehold, and by partiall and unjust Constructions of Law, 
 wrongfully convicted, attainted, and executed for High Treason ; 
 May it therefore please your most excellent Majestyes, at the 
 humble Petition of the said Earl of Bedford, and the Right 
 Honourable the Lady Rachell Russell, Relict of the said Lord 
 Russell, That it be declared and enacted by the Authority of 
 this present Parliament ; and be it enacted by the King and 
 Queen's most Excellent Majesties, by and with the Advice and 
 Consent of the Lords Spiritual and Temporal, and Commons, 
 in this present Parliament assembled, and by Authoritj' of the 
 same. That the said Conviction, Judgment, and Attainder of 
 the said William Russell, commonly called Lord Russell, be, 
 and are hereby repealed, reversed, made and declared null and 
 void, to all Intents, Constructions, and Purposes whatsoever, as 
 if no such Conviction, Judgment, or Attainder, had ever been 
 had or made : And that no Corruption of Blood, or other Pen- 
 alty, or Forfeiture of Honours, Dignities, Lands, Heredita- 
 ments, Goods, or Chattels, be by the said Convictions or 
 
22 
 
 Attainder incurred ; anj^ Law, Usage, or Custom to the con- 
 trary notwithstaiidins:. And to tlie End that Right be done to 
 the Memory of the deceased Lord Eu^scll aforesaid, Be it 
 further enacted, That all Eecords and Proceedings relateing to 
 the said Attainder, lie wholly cancelled, and taken ofi' the File, 
 or otherwise defaced and obliterated, to the Intent the same 
 may not be visi))le in after Ages : And that at the next Ses- 
 sions of Goal Delivery, to be holden for the City of London, 
 the said Records and Proceedings shall bo brought into the 
 Court, and then and there taken otf from the File, and cancelled. 
 
 willia:\i couper, 
 
 (Exam.) Clev. Parliamentor. 
 
 A PORTION OF THE ACT PASSED BY THE MASSACHU- 
 SETTS LEGISLATURE IN 1711 REVERSING THE 
 JUDGMENT IN THE CASES OF WITCHCRAFT. 
 
 " Be It Declared and Enacted by His Excellency the Governour, 
 Council and Representatives, in General Court Assembled, and 
 by the authority of the same. That several convictions, judg- 
 ments and attaindei's against the said " several persons convicted 
 of witchcraft, " and every of them, Be and hereby are Reversed, 
 Made and Declared to be Null and Void to all Interests, Con- 
 structions and Purposes whatsoever as if no such Convictions, 
 Judgments or Attainders had ever been had or given. And 
 that no Penalties or Forfeitures of Goods or Chattels be by the 
 said Judgments and Attainders, or either of them had or incurred. 
 
 Any Law, Usage or Custom to the contrary, notwithstandino-." 
 
 Some doubts have been expressed whether the Act received 
 the approval of the governor, though no <juestion has been ex- 
 pressed as to the authority to pass the Act, or the Act of 1703. 
 Copied from heliotype plate, in pamphlet, in regard to the Act, 
 by A. C. Goodel, Cambridge, 1884. 
 
23 
 
 EXHIBIT E 
 
 JUDGE KNOWLES' STATEMENT OF THE CIRCUMSTANCES UNDER 
 WHICH THE CONSTITUTION WAS FRAMED, AND THE INTENT 
 OF ITS FRAMERS IN REGARD TO A CONTINUANCE OF THE 
 POWERS OF THE GENERAL ASSEMBLY. PUBLISHED IN PROVI- 
 DENCE POST, SEPTEMBER 11, 1858. 
 
 It is important here to remind the reader of the fact, tran- 
 scending in importance any other recorded in the annals of 
 1841 and 1842. In the winter of 1842, the Hon. Nathan E. 
 Dixon, a Senator in Congress, deceased, and the Hon. William 
 Sprague was elected his successor. Down to this time, the 
 Suffrage movement had received his countenance and support ; 
 but thereafter his zeal waxed cold, and but a few weeks elapsed 
 ere he was found, with his thousands of followers and retainers 
 of every grade and degree, in the landholders' camp. . . . 
 It was the hope and belief of the leaders of the charter party 
 that the Landholders' Constitution would be adopted by the 
 people, and the People's Constitution, thus superseded, by a 
 later expression of the people's will, be deprived of even a 
 shadow of claim to respect as a valid constitutional compact. 
 In this hope not a few of the Suffrage party shared, and there- 
 fore voted with their opponents in favor of the Landholders' 
 Constitution. But in this battle the Charter party were defeated. 
 Through deference to the wishes and representations of Mr. 
 Dorr and a few others, it was resolved, on behalf of the Suf- 
 frage party, to oppose that constitution. It was o[)posed, and 
 although in this conflict Mr. Sprague and his forces fought under 
 the banner of the Charter party, the constitution was rejected 
 by a majority of 676. The number of votes cast against the 
 constitution was 8,689 — a less number by 5,277 than were cast 
 for the People's Constitution in December preceding — a fact I 
 mention in this connection, only because it was one in view of 
 which the Charter party, giving thanks to whom due — (to Mr. 
 Sprague, doubtless, as one of the benign powers) — took cour- 
 age, and at the adjourned session of the Assembly in March 
 (after counting the votes) , by statutory enactments proclaimed 
 
24 
 
 their intention to resist any attempt to organize a government 
 under the People's Constitution. 
 
 In their constitution, unwiselj^ rejected by tlie Suffrage party, 
 the landholders had virtually conceded all that the advocates of 
 an extension of suffrage had demanded ; but the instrument was, 
 in respect to other subjects, not satisfactory to some of the 
 most influential of the supporters of the People's Constitution. 
 Of these gentlemen, Mr. Dorr was the leader and guide, and a 
 reform in our sijstem of government, not merely an extension of 
 suffrage, was always his aim. He was a constitutionalist, as 
 from 1834 and earlier he had been, as well as a suffrage man, 
 and in the People's Constitution he had embodied his views as a 
 constitutionalist. Many of these the Landholders' Convention 
 had adopted ; but others that convention had ignored, and yet 
 others had contumeliously rejected as unworthy the least coun- 
 tenance or favor on their part. Of this latter class were his 
 views respecting the judiciary department. He insisted on an 
 entire separation of the judicial from the legislative power, as 
 well as upon a more stable tenure in the judicial otSce. As 
 regarded the term of service and the removal of judges, the 
 provisions of the Landholders' Constitution were identical with 
 those of the People's ; but as regarded the separation of the 
 legislative from the judicial power, the provisions of the two 
 instruments were diametrically opposed. The People's Consti- 
 tution contains these provisions : 
 
 " The powers of the government shall be distributed into 
 three departments — the legislative, the executive, and the 
 judicial." Art. HI., Sec. 1. 
 
 " No jurisdiction shall hereafter be entertained by the general 
 assembly in cases of insolvency, divorce, sale of real estate of 
 minors, or appeal from judicial decisions, nor in any matters 
 appertaining to the jurisdiction of judges and courts of law. 
 But the general assembly shall confer upon the courts of the 
 State all necessary powers for affording relief in the cases herein 
 named ; and the general assembly shall exercise all other juris- 
 diction and authority which they have heretofore entertained 
 and which is not prohibited by, nor repugnant to, this constitu- 
 tion." Art. IX., Sec. 4. 
 
25 
 
 "The general asrembly shall exercise, as heretofore, a visita- 
 torial power over corporations. Three bank commissioners 
 shall be chosen," etc., etc. Art. IX., Sec. 11. 
 
 "The judicial power of this State shall be vested in one 
 supreme court, and in such other courts, inferior to the 
 supreme court, as the legislature may from time to time 
 establish ; and the jurisdiction of the supreme and of all other 
 courts may from time to time be regulated by the general 
 assembly." Art. XI., Sec. 1. 
 
 " The supreme court established by this constitution shall 
 have the same jurisdiction as the supreme judicial court at 
 present established ; and shall have jurisdiction of all causes 
 which may be appealed to or pending in the same ; and shall 
 be held at the same times and places in each county as the 
 present supreme judicial court until the general assembly 
 shall otherwise prescribe." Art. XIV., Sec. 20. 
 
 Now, the reader will remember that the People's Constitution 
 was framed and published before the meetina: of the Land- 
 holders' Convention ; and then note the fact, that this conven- 
 tion with that constitution before them, embodying the views 
 of the Suffrage party, insert in the Landholders' Constitution 
 these provisions : — 
 
 " The powers of the government shall be distributed into 
 three distinct branches — the legislative, executive, and judi- 
 cial." Art. III. 
 
 " The general assembly shall continue to exercise the judicial 
 power, the power of visiting corporations, and all other powers 
 they have hitherto exercised, not inconsistent with this constitu- 
 tion." Art. IV., Sec. 10. 
 
 The Art- XL, Sec. 1, in the Landholders' Constitution (relating 
 to the power and jurisdiction of 'the supreme court), is in 
 substance the same as that in the People's, as above quoted ; 
 and Sec. 20, Art. XIV., as quoted from the latter instrument, 
 is copied verbatim in the Landholders', as Sec. 3 of Art. XIV. 
 The latter section, by the way, was copied from the rejected 
 constitution of 1824, and is Sec. 3 of Art. XIV. of our present 
 constitution. 
 
 These citations from the rival constitutions conclusively show 
 
26 
 
 that down to ^Nlnrch, 1842, ivhen the Landholders' Constitution 
 was submitted to the people, the Charter party and the "Don- 
 part}' ' were directly at variance in respect to the exercise of 
 judicial power by the assembly. In this rcfjard the Land- 
 holders would concede nothing. The assembly, they insisted, 
 should continue to be, under a written constitution, as " omnipo- 
 tent" as it had been under the charter. 
 
 ^Vs we have seen, the Landholders' Constitution was rejected 
 in March ; and now, said the exultant majority, the People's 
 Constitution becomes, on the tirst Tuesday of jNIay, the law 
 paramount. . . . The delegates to this new convention were to 
 be chosen in the latter pai't of August, and in view of this (a 
 popular election under martial law would have ])een a novelty, 
 truly!) Governor King, by his proclamation on the 8th of 
 August, suspended martial law "until the 30th," and on the 30th, 
 I will state in j)assiiig, by another proclamation, it was suspended 
 indefinitely. In September the convention met in Newport and 
 framed the constitution of 1842, but deferred completing and 
 publishing it, until after the October session of the assembly, 
 for a reason which it may be well here to state. 
 
 The act of June, under which the convention assembled, pre- 
 scribed that "if the constitution should be adopted by the ma- 
 jority of the persons having the right to vote, the same shall go 
 into operation." Under this provision it was foreseen that prob- 
 ably the constitution would not be adopted, and that an amend- 
 ment of the act was desirable, if not necessary. An "explan- 
 atory act "was therefore passed at the October session, in virtue 
 of which the constitution should go into effect if adopted by the 
 majority of the persons having the right to vote and actually 
 voting upon the question of adopting the same." This done, the 
 convention completed its work on the 5th of November, di- 
 recting that the constitution be submitted to the people on the 
 21st, 22d and 23d of that month. 
 
 The members of this convention, it is hardly necessary to say, 
 were exclusively of the victor party, — its chosen cognomen 
 at that period "The Rhode Island party." James Fenner, 
 James F. Simmons, Samuel F. Mann, Richard K. Randolph, 
 Wilkins Updike, Job Durfee, Nathan B. Sprague, and others 
 
27 
 
 little less distinguished for " conservatism " were of this con- 
 vention. Indeed, I deem it not unfair nor extravagant to as- 
 sume that of the members not one in twelve was personally 
 and individually in favor of any change in our system, other 
 than the equalization of representation in the assembly ; and 
 in respect to this, the call for reform was heard only from the 
 northern section of the State. With few exceptions they hon- 
 estly believed that the old Charter government was the 
 best in Christendom, — our freehold qualification for suffrage 
 the best, — our judiciary system the best. They were, however, 
 convinced that under existing circumstances, it was expedient 
 if not necessary to discard the old charter and to adopt a 
 written constitution, securing the right of voting for their 
 rulers, to others than freeholders and their eldest sons. " A de- 
 cent respect for the opinions " of the American people of every 
 sect, party, or faction, demanded that this l)c done ; to say 
 nothing of promises and pledges volunteered or required, when 
 from John Tyler and his Cabinet was at length begged, bought 
 or wrung that threat of Federal interposition on behalf of the 
 Charter party, — in view of which an appeal to arms on the part 
 of their opponents, — no matter how numerous, — had been 
 idiotic folly. A change in the system, therefore, must be made, 
 distasteful as might be the work. The inequality of represen- 
 tation, which for half a century had been a cause of heart-burn- 
 ing and complaint, the convention were sensible must be now 
 corrected. Modifications of the existing system, in these re- 
 spects, the members were prepared to make ; but in regard to 
 other matters, it was to be expected, that the principles and 
 usages of the charter government would, as far as practicable, 
 be recognized and embodied in the instrument this convention 
 should frame. This would be the aim of the members as good 
 citizens of Ehode Island, honestly averse, as individuals, to all 
 innovation ; and their aim, too, as partisans, but recently in 
 arms in support of their opinions, and now in a position to im- 
 pose any terms upon their vanquished opponents. At this time, 
 there was no occasion for compromise or concession. The year 
 previous, the party had been constrained to yield something to 
 their antagonists, in the matter of suffrage. In the Land- 
 
28 
 
 holders' Constitution the right to vote was conceded to the resi- 
 dent of but two years ; but in June, 1842, us we have seen, the 
 assembly took a step backward in this regard, withholding the 
 right fi-om all but the residents for a term of at least three years. 
 The convention, however, in this respect, followed the lead of 
 the Landholders' Constitution. They prescribed, as a qualifica- 
 tion for voting, a two years" residence only, but — what? Why 
 they inserted in the constitution those Jesuitical provisions con- 
 cerning removals from town to town, a registry tax and the 
 registering of voters, so adroitly framed as practically to ex- 
 clude from the polls more tlian a moiety of that class of citizens, 
 whom another section of the constitution seemingly placed on equal 
 footing with the freeholder and his first born. The convention 
 of 184:1, the SutlVage party in the field, dared not, in this indi- 
 rect and disingenuous manner, any more than by explicit 
 provision, to withhold from the disfranchised the privilege they 
 claimed as their right. 
 
 The convention of 1842, it is evident, deemed it neither 
 wrong nor inexpedient to frame a constitution far miore objec- 
 tionable to their opponents, even as regarded the right of 
 suffrage, than was that of 1841. Did the convention, I ask, 
 aim to make the instrument more acceptable to the leading men 
 of their opponents, in the matter of the separation of the legisla- 
 tive from the judicial power? Did it aim and intend to embody 
 in our fundamental law, that principle which Mr. Dorr espe- 
 cially had for so many years advoc*ated, and had incorporated 
 into the People's Constitution, and concerning which ninety- 
 nine in the hundred of the masses who had clamored and strug- 
 gled for an extension of sufi"rage were totally indifferent? Is 
 this credible? A\'hat single individual among the leading 
 spirits of that convention was ever, in 1842, or before or since, 
 heard to complain of the " omnipotence " of the assembly ? 
 Was there not, on the contrary, some ground for the suspicion 
 that they had persistently opposed the Suffrage movement, 
 because they feared and deprecated a subversion of " the good 
 old system," under which the will of the majority of the assem- 
 bly was, practically, the supreme law, whoever chanced to be 
 the party dictator of the year — an Arthur Fenner, a Jamea 
 
29 
 
 Fenner, a John R. Waterman, a Potter, a Hazard, a Sprague, 
 or a Simmons ? 
 
 No ! The aim of the framers of the constitution of 1842 was 
 to provide for the State a written constitution, in which should 
 be embalmed, as it were, as many of the peculiar excellences 
 of the charter system, as could in 1842 be retained. Hence, 
 when they reluctantly discard as an obsolete idea the landed 
 qualification, they shrewdly endeavor, and not unsuccessfully, 
 to render nugatory the concession, by requiring the payment of 
 a registry tax — "for the support of public schools ! " as a con- 
 dition precedent of voting. Hence, too, they prescribe that the 
 pay of members of the assembly shall be but one dollar for 
 every day of attendance — meaning actual attendance; believ- 
 ing that under this provision none but the "men of substance" 
 in the State would accept legislative appointments, and the 
 landless and moneyless of the " masses " would practically be 
 excluded from the State's councils. And hence, again (to come 
 at once to the important point in this connection) , as one of the 
 provisions of the constitution, and of equal validity and force 
 with any other provision, and intended to qualify and control 
 other provisions if seemingly inconsistent, they inserted in Art. 
 IV. this: — 
 
 " Sec. 10. — The general assembly shall continue to exercise 
 the powers they have heretofore exercised, unless prohibited in 
 this constitution." 
 
 The reader has already seen that the provision in the People's 
 Constitution and that in the Landholders', in relation to the 
 powers of the assembly, were diametrically antagonistic. Is 
 the constitution of 1842 unlike the Landholders' in this regard? 
 Did the convention of 1842, composed of the leading men of 
 the victo}'ious Charter party, frame a constitution upon " Tom 
 Dorr's " model, or upon the model of the Landholders' Conven- 
 tion? Let the record speak. I first quote from the Land- 
 holders' Constitution. 
 
 "The powers of the government shall be distributed into 
 three distinct branches — the legislative, executive, and judi- 
 cial." Art. III. 
 
 "The judicial power of this State shall be vested in one 
 
30 
 
 supreme judicial court and in such inferior courts as the 
 general assembly may from time to time ordain and establish ; 
 and the jurisdiction of the supreme judicial court and of all 
 other courts may from time to time be regulated by the general 
 assembly." Art. XL, Sec. 1. 
 
 " Chancery powers may l)e conferred by the general assem- 
 bly on the supreme judicial court ; but no other court exer- 
 cising chaucerj- powers shall be established in this State, except 
 as now pi'ovided by law." Art. XI., Sec. 2. 
 
 "The general assembly shall continue to exercise the judicial 
 power, the power of visiting corporations, and all other powers 
 they have heretofore exercised not inconsistent with this consti- 
 tution." Art. IV., Sec. 10. 
 
 The provisions respecting the election and removal of judges, 
 and their salaries, are the same in this constitution as in that of 
 1842. 
 
 Kow what are tlie corresponding provisions in the constitu- 
 tion of 1842, framed by Messrs. Simmons, Mann, Durfee, and 
 their associates? I (jiiote from that instrument. 
 
 " The powers of the government shall be distributed into 
 three departments — the legislative, executive, and judicial." 
 Art. III. 
 
 " The judicial power of this State shall be vested in one 
 supreme court, and in such inferior courts as the general 
 assembly may from time to time ordain and establish." Art. 
 X., Sec. 1. 
 
 "The several courts shall have such jurisdictions as may 
 from time to time be prescribed by law. Chancery powers 
 may Ijc conferred on the sui)reme court but on no other court, 
 to any greater extent than is now provided by law." Art. X., 
 Sec. 2. 
 
 " The general assembly shall continue to exercise the powers 
 they have heretofore exercised, unless prohibited in this con- 
 stitution." Art. IV., Sec. 10. 
 
 The question I now propose is this : Has not the assembly, 
 under the constitution of 1842, the same power in judicial mat- 
 ters which it would have had under that of 1841? The 
 provisions of the respective instruments, it is seen, are almost 
 
31 
 
 identical, when the courts and judges are named or referred 
 to ; and as respects Sec. 10, of Art. IV., is it to be denied, that 
 that of 1842 is, substantially, identical with that ot 1841? 
 These differ in what? In that of 1841, the draughtsman inserts 
 two specifications, and adds "and all other powers, not incon- 
 sistent with this constitution." The draughtsman of 1842, 
 studying conciseness but aiming and intending to enlarge in 
 favor of the assembly the meaning of the section as he finds 
 it printed in the constitution of 1841, omits the specifications, 
 uses the all-comprehending phrase " the powers " — and let ua 
 remark, substitutes the unambiguous word "prohibited," for 
 that very indefinite word, " inconsistent." I submit to the 
 reader that the Sec. 10 of 1842 is, rhetorically, logically, legally, 
 at least the full equivalent of the Sec. 10 of 1841, — and pause 
 for a denial, from any quarter. 
 
 But other facts are yet to be presented and weighed. 
 
 Of the convention of 1842, as of that of 1841 , T. A. Jenckes, 
 Esq., was a Secretary, and of its proceedings from day to day 
 furnished a report for the Providence Journal. His report of 
 the proceedings of September 29, when Art. VI., after engross- 
 ment, was under consideration, contains this paragraph : 
 
 " Mr. Sherman offered a substitute for the eighteenth section 
 of the fourth article. It took away the appellate jurisdiction 
 on petitions for divorce, benefit of the insolvent laws, new 
 trials, and the jurisdiction on sales of real estate. After much 
 debate, in which Messrs. Sherman and Potter advocated the 
 amendment, and Messrs. Simmons, Durfee, Nathan B. Sprague, 
 and Updike opposed it, the amendment was rejected." 
 
 It is probable, as has been suggested, that the now Sec. 10 
 stood in the draft at this date as Sec 18, the number of the 
 sections of this article being eighteen : but be this as it may, it 
 appears that the convention refused to despoil the assembly 
 of its judicial powers, and that Messrs. Simmons, Durfee, 
 Updike, and Sprague were of the assembly's champions, in 
 this regard. Yes ! James F. Simmons, whose was the leading 
 mind in that convention, and who and his, it may as truthfully 
 be said, framed the constitution of 1842, as it may that Thomas 
 "W. Dorr and his framed the People's Constitution of 1841 ; 
 
32 
 
 James F. Simmons, who, in February, 1858, in the Senate of 
 the United States, says of the constitution of 1842, "It is 
 not so good a one as we had had for two hundred years. That 
 is my notion about it, though I helped to frame it " ; and of the 
 consititution of 1841 (the Landholders') says, "My friends 
 asked me to go out and make a speech in favor of it when I got 
 to Providence. But I told them, no ! I would never make a 
 speech in favor of that alteration. I would rather have the 
 old Charter : but out of deference to their wishes, I would vote 
 silently for the new constitution, though I thought the altera- 
 tion no improvement." And who, finally, in the spring of 
 1842, face to face with Mr. Dorr, said to him, if you attempt to 
 organize a government under your People's Constitution, " we 
 will shoot you just as soon as we would a black snake ! " The 
 Hon. James F. Simmons, in September, 1842, frame a con- 
 stitution, — aye, or permit his party to frame one, — that 
 should restrict, in any important particular, the power, the 
 " omnipotency " of the general assembly I Credat Judaeu^ 
 appella! Tell this to the marines! I call for Mr. Simmons' 
 "sworn affidavy" on this point. Until that, or some other new 
 evidence to the contrary is produced, I shall ask the reader to 
 concur with me in the conclusion, that the intent of the leading 
 minds of the convention was, that under Sec. 10 of Art. IV. the 
 assembly should continue to do, whatever the exigencies of 
 "the party" might require to be done, be the literal reading, 
 or the implied meaning of other sections, clauses and words, 
 what it might. "Not prohibited in this constitution," is the 
 language. 
 
 The constitution was adopted in November, 1842, and 
 although martial law had been suspended since August 30, only 
 fifty-one votes were polled against it in an aggregate vote of 
 7,034 ! By its terms it was to become the law paramount on the 
 first Tuesday of May, 1843, and in view of the consequent change, 
 the assembly in January, 1843, by vote directed the Hon. 
 W. R. Staples to complete, as soon as practicable, a revisal of the 
 laws then in progress. The government under the constitution 
 was organized May 2, 1843, and at the June session the fol- 
 lowing resolution was passed. 
 
33 
 
 "Resolved, That Albert C. Greene, John Whipple, Samuel 
 Ames, Charles F. TiJlinghast, JoIj Durfee, Levi Halle, Henry 
 Bowen, Joseph M. Blake, Thomas Burgess, John Brown Fran- 
 cis, Sylvester G. Sherman, George A. Brayton, Elisha E. Pot- 
 ter, George G. King, Nathaniel Bullock, Samuel Weatherhead, 
 and Joseph Smith, be appointed to examine the report of the 
 committee appointed to revise the laws, previous to the said 
 report being made to the general assembly at the next Octo- 
 ber session." 
 
 The report of this committee (Judge Staples) appears not to 
 have been rendered until the January session, 1844, when by 
 vote Messrs. Wilkins Updike and Fenner Brown of the House, 
 and Levi C. Eaton of the Senate were added to the committee, 
 of revision. This committee of twenty-one, comprised at least 
 eight of the framers of the constitution, including Chief Jus- 
 tice Durfee and Associate Justice Brayton, — the four judges 
 of the supreme court, the attorney-general, and the secretary 
 of State ; and all of them, with the exception of the judges, 
 the attorney, the secretary, were members of the assembly, as 
 also were at least four other gentlemen who had served aa 
 members of the constitutional convention, Messrs. Eandolph and 
 Lawton, of Newport; Mr. Thurber, of Providence; and Mr. 
 Sheffield, of New Shoreham. Governor Fenner and Lieut. 
 Governor Diman also were of that convention. Of the assem- 
 bly of that year, moreover, were Elisha Harris, Kobert B. 
 Cranston, J. B. M. Potter, Nathaniel Church, George G. King, 
 Stephen Branch, Rufus Waterman, William Sheldon, James Y. 
 Smith, Nathan F. Dixon, Isaac P. Hazard, Thomas Buffum, 
 Israel Brayton, Thomas Whipple, Obadiah Potter, Alfred Bos- 
 worth, Henry H. Luther, Joseph T. Sisson, William Steere, 
 Christopher Allen, Thomas R. Greene, Gideon Spencer, and 
 Ariel Ballon, to name no others. 
 
 By this committee and by this assembly, the Digest of 1844 
 was prepared, in which the statutes of the State, as was sup- 
 posed, were made to harmonize with the constitution ; and in 
 this Digest, among the earliest enactments (p. 69), we find one 
 prescribing the method of preferring petitions to the assembly 
 for the exercise of their judicial powers, and the manner of 
 
34 
 
 acting upon them, the provisions of which act, it is univorsiiUy 
 conceded, conchisively show, that ))y this committee and this 
 legislature, it was understood that the assembly was not for- 
 bidden l)y the constitution to entertain and act upon any sub- 
 ject or petition of which, under the charter, it had been 
 accustomed to take cognizance, as a semi-judicial body. So far 
 as can i>o learned from the nc\vsi)aper report of the proceed- 
 ings at this session, by no mcml)er was cnen a doubt upon this 
 point suggested. The only instance in which reference was 
 made to Sec. 10 of Art. IV. was in a reply to ISIr. Ballou, who 
 had contended that the assembly under the constitution had no 
 power lo add to the number of justices of the peace, after a 
 town iiad elected as many as it saw tit. The reply was from 
 Mr. Ames of Providence, the acting chairman of the revising 
 committee, and the leading expounder of its propositions and 
 bills, who urged that this Sec. 10 of Art. IV. reserved to the 
 asscml)ly all needful power — the power of electing justices, 
 being one heretofore exercised. Who doubts, I will here ask, 
 that the same answer would at that session have Ix^en made to 
 any objection to a continued exercise l)y the assembly of its 
 judicial powers? 
 
 In the same Digest of 1844 (p. 215), an appeal from the 
 supreme court to the assembly is expressly given to any party 
 aggrie\'cd by a decision of the court upon an insolvent's 
 petition. And from January, l'S44, down to January, 1.S54, 
 when the act reversing the sentence of Mr. Dorr was submitted 
 to the assembly, who does not know that the assembly con- 
 tinued to exercise, as under the charter, all its judicial and 
 quasi judicial powers, without cavil or question, — whoever may 
 have occupied the Governor's ; whoever the Speaker's Chair ; 
 whoever in the Senate; whoever in the House; or — most im- 
 portant of all — whoever were of the judiciary committees of 
 the two Houses, as chairman or as members? If any are in 
 ignorance or in doubt, on this point, let them turn to the 
 schedules of those ten years, and note the hundreds upon hun- 
 dreds of acts and resolves of the ye)? ''.s judicial which the assem- 
 bl}^ have passed, not a few liills of divorce included ; acts and re- 
 solves, under which men, women and children have bought and 
 
35 
 
 sold and intermarried, and lawyers have counselled and advised, 
 and clients confidingly acted ; or, as less onerous, let the un- 
 informed or the sceptical turn to the opinion of the court of 1854, 
 given to the legislature, or the opinion of the court of 1858, in 
 Taylor & Co. v. Place, and find in each of these an unequivocal 
 concession that the practice of the assembly has always been 
 as here represented. 
 
 One of the acts referred to by Judge Kno wles begins as follows : 
 
 " Whenever any person shall prefer a petition to general 
 assembly, praying that any judgment, rule of court or 
 determination may be set aside, or that execution may be 
 stayed, or for any matter or thing whereby any action or pro- 
 ceeding in any court may be stayed or delayed, or the place of 
 trial of any action may be changed, he shall," etc. (Public 
 Laws of Ehode Island, 1844, p. 69.) He also said : — 
 
 The truth is, as I humbly submit, that the opinion of the 
 court upon this case could have been fully expressed in a num- 
 ber of lines, not exceeding the number of pages of the pam- 
 phlet copy of the opinion. Only one of the several points or 
 topics discussed, do I believe the court deemed it at all essential 
 to consider ; and as to this point, their views would have been 
 fully embodied in a single paragraph, substantially as follows : — 
 
 "Our constitution contains certain sections and phrases, 
 similar to those found in the Federal Constitution, and the con- 
 stitutions of most of the States of the Union. These have 
 uniformly received from learned courts a certain construction ; 
 and as this construction must have been known to the framers 
 of the constitution in 1842, and to the people, that construc- 
 tion we must give to them here. Whatever in the instrument 
 appears inconsistent with this position, must be so interpreted 
 as to harmonize with it, or be ignored, as either signifying noth- 
 ing or as embodying a meaning yet to be discovered. ' We do 
 not deem the question doubtful in the slightest degree,' and there- 
 fore think it not needful, nor even permissible, to inquire what 
 was, in fact, the intent of the framers of the instrument as evi- 
 denced by their declarations, motions, votes and speeches in the 
 convention, or their acts in after years as sworn legislators under 
 the instrument; nor what has been, since 1843, the established 
 
36 
 
 and recognized construction of the instrument among the people 
 themselves. The question is really res a(JJn<Jiv(xta; and no 
 learned court can reasonably be urged to give to it a moment's 
 deliberation. It is clear enough to any man of common sense, 
 that when ' THE judicial power of the State ' is vested in the 
 courts, the whole judicial [)ower is conveyed ; and every law- 
 yer knows, or ought to know, that the point was solemnly 
 decided by the Supreme Court of the United States as early as 
 the second volume of Dallas, and that that decision has been 
 reaffirmed and recognized over and over and over again, even 
 as recently as the IStb of Howard! A court that knows its 
 duty and respects itself, will not permit its valuable time to be 
 wasted in the discussion of a question so often and so satisfac- 
 torily settled." 
 
 This paragraph, I I'epeat (axid I was present at the hearing), 
 seems to contain all that the court would have cared to utter, 
 had the question not been one of unparalleled importance. But 
 this, it was foreseen, few of any class of readers would regard 
 as a stable foundation for a "decision" that an act of the assem- 
 bly of 1854, in relief of a garnishee, was '' unconstitutional 
 and void," — in legal effect, an injunction against the exercise 
 hereafter by that body of any power of the genus judicial. It 
 could not but be remembered that many of the people of the 
 State would at once turn to the constitution, and would find 
 there, in Art. IV., these lines : 
 
 " Sec. 10. The general asseml^ly shall continue to exercise 
 the powers they have heretofore exercised unless prohibited in 
 this Constitution." 
 
 Hence, though in fact deciding the question solely through 
 deference for the rulings of learned courts upon the constitu- 
 tions of other States not containing a Sec. 10 of Art. IV. nor 
 anything tantamount or analogous to that section, it was but 
 ordinary sagacity in preparing an opinion for the reading pub- 
 lic, to present whatever other grounds, reasons or arguments 
 might seem to any class of minds to support the court's conclu- 
 sion. Give a jury a score of grounds more or less plausible, 
 for a finding in your favor, and you may win your cause, though 
 no one of the jurors shall agree with you upon the one point, 
 
37 
 
 upon which alone a verdict for you can legally or equitably be 
 founded ; and though no two of them shall agree upon any one 
 of the grounds presented. Accordingly, of grounds, reasons 
 and arguments, we find in the opinion a full assortment. Of 
 the real ground of the decision, as above set forth, I will first 
 treat. 
 
 This, as will be remembered, is in brief this : That the 
 phraseology and structure of certain clauses and sections of the 
 constitution separately considered, vest in the courts all the 
 judicial power of the State, and thus impliedly prohibit the 
 exercise of " any judicial power whatsoever " by the assembly, 
 and some five or six pages are occupied by the argument and 
 authorities on this point. Now, singular as it may seem, no 
 argument was here needed 1 The truth is, that no man, woman 
 or child in Rhode Island, was ever heard to deny the proposi- 
 tion ! Who can doubt that the phrases and clauses analyzed 
 and discussed with so much acumen, must be construed to confer 
 on the courts all judicial power, if rightfully these can be con- 
 sidered distinct from, independent of, and unaffected by, Sec. 10 
 of Art, IV. above quoted ? The court assume tliat thus these 
 may be, nay, must be, considered ; and if herein the court is 
 right, their decision was right ; if in error, their decision was 
 erroneous. 
 
 The court, it will be observed, decide, that is, arrive at a 
 conclusion upon, the question before them, without expounding 
 or even noticing otherwise than incidentally. Sec. 10 of Art. 
 IV., although it is cited in an early page of the opinion, as one 
 of the constitutional provisions entitled to consideration. Yet 
 they say, with all the emphasis of italics, " We do not deem 
 the question doubtful in the slightest degree," and then in eifect 
 add, that because it is thus free from doubt, they judge it un- 
 necessary, if not unwarrantable, to inquire what was the mean- 
 ing of the framers of the constitution, or of the people who 
 adopted it, or what has been its practical construction since its 
 adoption by the several branches of the government, and by 
 the people themselves ; for, it is in cases of " doubtful construc- 
 tion " only, that a court is at liberty to resort to these sources 
 of light and knowledge. 
 
38 
 
 Now I must be permitted here to differ \A'ith tlie honorable 
 court. In my judgment, the insertion in our constitution of 
 Sec. 10, Art. IV., does, to say no more, occasion so much of 
 doubt as to the meaning of other clauses which separately con- 
 sidered seem to limit the powers of the assembly, as to render 
 a recurrence to contemporaneous exposition and other kindred 
 sources of light, absolutely necessary : and this point I am 
 content to sul)mit to the bar (Ch. Justices Shaw, Greene, and 
 Staples, and Justice Curtis included) as a question of law, and 
 to the reading public as a question of common sense. It is, I 
 hold, one upon which the opinion of any man of sound judg- 
 ment, who has resided in Rhode Island during the last twenty- 
 five years, is worth as much intrinsically as that of any lawyer 
 in the State. Arc not the people who make the constitution, 
 to be held com|)ctcnt to understand the language they employ, 
 and the sections they insert in such an instrument? And when 
 a court is called to declare its meaning, is it not always perti- 
 nent to incpiire what has ])een its received, authorized, practical 
 construction, on the part of the people and their sworn agents 
 of the several departments of the government? Chief Justice 
 Shaw, in Simms' case, Cush. 300, decided in 1851, speaking 
 of an act of Congress, the constitutionality of which was ques- 
 tioned, says : "It was passed at the Second Congress, so soon 
 after the adoption of the constitution that many of the mem- 
 bers may be well presumed to have been members of the con- 
 vention, and all of them to have been intimately conversant 
 with the great princii)les of the constitution, and with the 
 views, intentions, and purposes of its framers. This species of 
 contemporaneous construction has ever been regarded as of 
 great weight and importance, and is entitled to the highest 
 respect. It bears with great weight and authority upon," etc. , 
 etc. Justice Curtis, in the Dred Scott case, in 1857, says : " A 
 practical construction nearly contemporaneous with the adop- 
 tion of the constitution, and continued by repeated instances 
 through a long series, of years, mny always inflneme, and in 
 doubtful cases should determine, the judicial mind on a ques- 
 tion of the interpretation of the constitution," and cites five 
 cases from the Rep. of Sup. Ct. p. 616. 
 
39 
 
 OPINION OF JAMES F SIMMONS. 
 
 JUDGE ItNOWXES REFERS TO MR. SIMMONS. 
 
 James F. Simmons published in the Providence Journal in 
 May, 1859, an elaborate communication in which he stated his 
 conclusions as follows : — 
 
 1. "That the General Assembly are authorized to continue 
 to exercise such judicial powers as they had heretofore exer- 
 cised, and that the establishment of courts to be vested with 
 judicial powers is not of itself a prohibition of any power 
 specifically granted to the Assembly. 
 
 2. " That the judicial power of the State, to be vested in 
 the courts, is by the constitution placed entirely within the 
 discretion and regulation of the General Assembly, to be exer- 
 cised by that body in good faith, for the best interests of the 
 people of the State. 
 
 3. "That the proceedings of the convention undeniably 
 prove that they intended the Assembly should continue to 
 exercise these judicial powers by refusing, upon a distinct 
 motion to that effect, to prohibit them. 
 
 4. " That all the laws enacted, providing for the exercise of 
 these powers, and all the proceedings of the Assembly where 
 the power has been exercised since the adoption of the consti- 
 tution, have been recognized as valid by all the departments of 
 the government, and by the people, with the exception of the 
 one we are now considering." 
 
 He also observes, " To enlarge the suffrage and equalize the 
 representation, it is well known, were Hhe principal subjects" of 
 the convention. 
 
 PROCEEDINGS AT THE TRIAL OF T. W. DORR. 
 
 The following extracts are from a report of the Dorr trial 
 made by George Turner and W. S. Burges, which they say 
 "had been prepared with great care and labor," and "that it 
 is believed that the testimony, the rulings of the court, the 
 points raised, and the decisions thereon, are scrupulously 
 
40 
 
 exact." Thoy were of counsel for the prisoner; one of them, 
 George Turner, now deceased, was a gentleman whoso truthful 
 accuracy was never questioned. The other, yet living, for many 
 years an honored judge of the Supreme Court. 
 
 The first charge is that of one hundred and eight jurors sum- 
 moned by the sherifl', one hundred and seven were of one 
 political party and one of the other political party (the law and 
 order party and suffrage party were the designations each party 
 respectively claimed for itself) , and that such jurors were de- 
 signedly selected l)y agents and officers of the government ; in 
 short, the jury was packed. 
 
 Bearing upon this question of the selection of a jury in this 
 Ciise, it may be observed that among the questions proposed to 
 be asked of the jurors was one whether the juror had voted for 
 Thomas Wilson Dorr for governor, or whether he believed 
 Dorr was authorized to act as governor. 
 
 The report, page 7, says: "The Court, after deliberation, 
 were equally divided upon the motion of the Attorney-General, 
 and the question was overruled. Chief Justice Durfee, and it 
 is believed Judge Haile, were in favor of putting the questions, 
 and Judges Brajton and Staples in the negative. The Chief 
 Justice observed that he was clearly of the opinion that they 
 ought to be asked." 
 
 Page 101. The 18th exception was, "Because the officers 
 charged with the seiwice of writs of venire for the return of 
 one hundred and eight jurors, selected and summoned the 
 whole number, except one, from the members of one political 
 party in the State, whose political feelings and prejudices are 
 inimical to the political party to which the defendant is at- 
 tached, and to the defendant himself." 
 
 DuEFEE, C. J. \Yhat do you propose? That we shall de- 
 termine what makes a Democrat or a Whic? 
 
 Doer. AVe offer to prove the facts alleged by competent 
 witnesses. (Keads 1 Chitty, etc. ) 
 
 TuENEE comments on the singular fact, that where public 
 opinion had been so generally divided, as on recent Ehode 
 Island affairs, the sheriff should have summoned one hundred 
 and seven out of one hundred and eight men of the opposite 
 party. 
 
41 
 
 Blake. A good deal is said about party ; what party do you 
 mean ? 
 
 Turner. I have so far, may it please your Honors, avoided 
 the use of any term that might be oflPensive either to the Court 
 or the government ; but, being so pointedly called on, I say 
 that I mean the Algerine, the "lavr and order," the Anti-Suf- 
 frage party ; the party that, with exasperated and embittered 
 feelings, are opposed to Mr. Dorr and the party with which he 
 has acted. These parties, at one time, constituted the two 
 great political divisions of the people of this State. I, there- 
 fore, say that it does not seem to me the best way in the world 
 to get an impartial jury, to look for them all among political 
 enemies. 
 
 DuRFEE, C. J. Would it be fairer to take- them from the 
 other party? 
 
 Turner. No ; but from both, indiscriminately. 
 
 DuRFEB, C. J. All who are not for the government are 
 against it. 
 
 Turner. We offer evidence to prove what we allege as to 
 their hostile political party feelings. 
 
 Dorr. What I complain of is, that the sheriff studiously 
 avoided the members of one party, apparently deeming them 
 not the most advantageous triers, and selected them all from 
 another party. It looks a little like an unfairness which is in- 
 consistent with my right to an impartial jury. 
 
 Atwell. (Made an allusion to the convent case.) 
 
 Dorr. Mine is a much stronger case than that of the 
 Catholics in the recent case of Daniel O'Connell. 
 
 BoswoRTH. None of those summoned took part in the re- 
 bellion. 
 
 Blake. There were several who left Mr. Dorr when he 
 used force. 
 
 The Court refuse to admit any evidence as to the political 
 character of the jury. (P. 102.) 
 
 With the opinion of Chief Justice from first to last that ju- 
 rors should be from one political party only, it is not surprising 
 that the sheriff should have selected one hundred and seven 
 out of one hundred and eight from that party. Not only were 
 
42 
 
 two of the judao'^, each of whom afterward liecamo chief justice, 
 against the opinion of tlie elder Chief Justice. l)ut even the 
 Providence Journal said during the trial, I\Iay 2, IS 44: "In 
 ever_v otiier case on record when an insurrection has broken out 
 like that in this State, the partieiinilors in the rebellion have 
 been by law excluded from the jury box. Such was the case 
 in the English reljellion ; such was the case in Shay's reliellion 
 in ^lassachusctts ; and such ought to have been the ease hero. 
 But the government made no such provision, but left the jury 
 box just as it was." 
 
 ^linot's History of Shay's Rebellion, page 161 et seq., desci'ibes 
 the acts of legislation in regard to jurors and the appointment 
 of a commission to grant amnesty. 
 
 In ci)iisidering the claim to oll'cr evidonee that certain jurors 
 had tbrmod and (expressed opinions before the trial, the (Ihief 
 Justice observed as follows : " My difficulty is that the jurymen 
 have not been prevented from giving a fair verdict, in a very 
 plain ease like this, ^\'hatevcr the cause of challenge might 
 have been, it is not shown that it had any influence in the 
 formation of the verdict" (page tl7). 
 
 Blake, Attorney-General, adds : " The jurors must have given 
 an unfair decision. Prtjudice, however strong, is not enough. 
 No matter what the jurors may have said against the prisoner, 
 did he act fairly, is the (juestion. 
 
 Page yO : " Atwell asks : AVas the question as put, ' formed 
 anil ex|)resse(l,' or formed or expressed an opinion?" 
 
 DiJKFEE, ('. J. The formc;r. 
 
 DoKK. I lielieve the iuror was not set aside for havins 
 formed an opinion, if he had not also expressed it. 
 
 Atwell. If a man has formed an opinion, it is not in 
 aeconhmee with the right of the subject, or the old-fashioned 
 notions of the right of trial by jury, that a subject should have 
 such a man for a juror for him. If a man has formed an oi)in- 
 ion, he is no longer impartial, he has prejudged the cause. 
 It is of no importance whether he has expressed it or not, or 
 how he may have formed it, — whether from news])aper state- 
 ments, proclamations, hand-bills, or hearsays, — the lodgnumt is 
 there in the mind, and the juror no longer "stands indilferent 
 as he stands unsworn." 
 
43 
 
 P;igG 102: DuRFEE, C. J. delivered the opinion, "That no 
 evidence should ))e roccMved to disqualify the jurors by proof of 
 previous hostility to the prisoner." 
 
 TIME ALLOWED FOR INQUIRY AS TO JURORS. 
 
 Turner (p. 91 el seq. ) : "We proceed to the fifth Art. (Mr. 
 Turner read tlie exception, that prisoner was not duly served 
 with copies of the panels of jurors returned on venires.) The 
 Court will recollect that at the sitting in March, when the first 
 venire for sixty jurors was ordered, returnable on the 26th of 
 April, and when there was intervening time enough, I suggested 
 that it should issue for a greater number, and moved that the 
 prisoner should be furnished with a copy of the panel at least ten 
 days before the trial commenced ; urging as a reason, the im- 
 probability of obtaining a full jmy out of a panel of sixty, in a 
 case where opinions bad so generally l)een expressed ; and to give 
 the prisoner, who was an entire stranger to the county, full 
 opportunity to ascertain the qualifications or objections to the 
 jurors, without delaying the progress of the trial, for that pur- 
 pose, after it should be once commenced. The Court, however, 
 for reasons which they gave at the time, did not think proper 
 to increase the number, and directed the sheriff to furnish us 
 with a copy of the j^anel only huo full days before the time for 
 trial ; this was accordingly done, the whole sixty being utter 
 strangers to the prisoner, and most of them unknown to me. 
 The sixteen drawn jurors and the sixty summoned on the venire 
 were all exhausted on the first day of the trial, and but eight 
 jurors sworn. The Court then, before its adjournment, ordered 
 the clerk to issue two additional writs, for twelve each, one of 
 them to be returned at nine o'clock the next morning, the 
 other at noon, — directing the officers to furnish us witli lists of 
 the persons summoned, as soon as those writs wore served. 
 The first of those lists was handed me about eight o'clock the 
 next morning, and the other in court at ten o'clock ; the Court 
 and ourselves being then engaged in tr^'ing the challenge of 
 Abner Tallman. As soon as that and another challenge had 
 
44 
 
 been disposed of, then neiir noon, I moved the Court to adjourn 
 over till ^londiiy, in order to give us time and opportunity' to 
 canvass the lists, and if occasion required to make and sustain 
 our challenges; explaining to the Court that, of course, up to 
 that time no opportunity had been afforded us for that purpose. 
 My motion, however, was only so far granted as to allow U8 
 until three p. Ji. on the first list, and until IMonday morning on 
 the other; so that instead of h&\\ug two full dai/s to canvass 
 the fitness of the jurors, we had but about three hours in the 
 one case, and only from the ;idjournment of the court on Sat- 
 urday evening, until nine o'clock on Monday morning in the 
 other. The next venire for twelve was issued at the adjourn- 
 ment of the court on Saturday evening, returnable on Monday 
 morning; a fourth, on Monday evening, returnable on Tues- 
 day morning, allowing, under the circumstances, no adequate 
 or reasonable time to ascertain the feelings, sentiments or opin- 
 ions of the persons who were to be called and sworn. One of 
 the consequences was, as your Honors are aware, that the 
 prisoner was driven, in six instances, to make use of his 
 peremptory challenges ; when, if more time had been allowed 
 him, the same men would have been set aside upon challenges 
 for cause." 
 
 "It is very time, that in this State we have no statute on this 
 subject ; and as we have hitherto had no such cases, we can 
 have no established ^rac^ice to regulate us. But the statute of 
 the United States enacts that the prisoner in cases of treason, 
 shall be furnished with a list of the jurors Jive days ; and in 
 England, the statute of Anne in the same cases extends the 
 time to ten days. Now, supposing neither the English or the 
 United States law to be binding on the courts in Ehode Island, 
 yet it is obvious that both make a marked distinction, in this 
 respect, between cases of treason, and all other capital 
 offences, so that the courts here may well follow the prac- 
 tice, if they are not bound by the authority of one or the other 
 of those statutes. We say, therefore, that in this respect, the 
 right of challenge in the defendant was injuriously abridged, 
 but to what extent we cannot tell. But be it more or less, we 
 ask for a new trial to correct it." 
 
45 
 
 Staples, J. : " Did you make any complaints that you had 
 not had time enough, when the jurors were called?" 
 
 TuKNEE : " I did not deem it decorous, after the Court had 
 fixed the time ; we had repeatedly asked the Court to give us 
 longer time, and we now ask if this was long enough time to 
 canvass the qualifications of so many strangers." 
 
 The right of the jury to render a general verdict and to pass 
 upon questions of law and fact, and to have itU the evidence 
 before them upon the question of interest, is settled in our 
 jurisprudence. The experience of our race has taught that the 
 liberty of the citizen in political controversies, and the liberty 
 of the press, are safer in the hands of the jury than in those of 
 the Court. Hence the law in those cases. Those grounds 
 were taken on the trial. The motion on all grounds was over- 
 ruled as follows (Durfee, C. J., p. 104) : "The delay in deliv- 
 ering the opinion of the Court has been occasioned by an eflbrt 
 to reduce it to writing ; it has not yet been completed and can- 
 not be done now, for perhaps some days. It will state the 
 general result ari'ived at now, with a view to any further pro- 
 ceedings, and when completed have the written opinion put on 
 the files in the clerk's office. The motion for a new trial is 
 overruled." 
 
 The Court also overruled the motion in arrest of judg- 
 ment, made on the ground that the trial should have been 
 in the county where the prisoner lived and in which the offence 
 was charged to have been committed. This right is usually 
 secured by provisions in the constitutions of the' States, which 
 require, "in prosecutions by indictment or information, a 
 speedy trial by an impartial jury of twelve men of his vicin- 
 age" (Bateman, p. 83). This is not the occasion to consider 
 these questions of law. 
 
 AN ARTICLE WRITTEN BY HON. ABRAHAM PAYNE, AND 
 PUBLISHED IN THE PROVIDENCE EVENING PKESS, 
 MARCH 17, 1884. 
 
 In the discussion about a constitutional convention now going 
 on in the General Assembly and among the people, there are 
 several questions involved. First : Can the General Assembly 
 lawfully provide for such a convention ? Second : A^'hat is the 
 
46 
 
 proper construction of the answers of tlie judiies of the Supreme 
 Court to the questions of the Senate ui)on the sul/u'et? Tliird : 
 Are these answers ))indin^ upon the (ieneral Assembly as a 
 judicial eonstruetiou of the constitution, or are they opinions 
 entitled to such weight as ])eloniis to the character and otiicial 
 position of the eminent men hy M'hom they are held and to the 
 reasoiiina' bj^ which they are sustained? Fourth: Is it ex- 
 pedient that a constitutional convention should l)e held at this 
 time ; that is to say, is there any evidence that the people desire 
 such changes in their i!-overument as can only be made by a 
 general revision of the futuhnnental law? 
 
 F(u- the pur])()se of fair discussion, these questions should be 
 kept distinct from each other. In the recent elalxirate s])eech 
 of .Mr. Shctticld, which has been highly commended, these 
 questions are blended with each other, and with irrelevant 
 matter, to such an extent that it is sometimes dillieult to discern 
 what are the propositions which the spi^aker intends to contro- 
 vert or defend, lie begins liy a eulogy on Ex-(!iru^f -lustice 
 Bradley, of \vhich nobody will complain, and proc(H;ds to cite 
 some remarks of Judge Bradley before the Bar Association at 
 vSaratoga, vrith the sugat'stion that they are in conflict with the 
 article that was published in the Jounntl, and which has been 
 read to the Assembly. That there is no such conflict is V(u-y 
 clear to any one who will take the pains to investigate the sub- 
 ject, lie cites the pream))le which was proposed by ]Mr. Ennis 
 and rejected by the convention of 1<S42, with the suggc^sliou 
 that the preamble ])roi)osed by Mr. Ennis contained the doc- 
 trine for which those who now advocate a constitutional con- 
 vention contend. This is not the fact. 
 
 ^Ir. Ennis contended that the people might assemble in 
 convention vi'ithout the authority of existing law. Those who 
 advocate a constitutional convention hold with Chief Justice 
 Job Durfee, Daniel "VA'ebster, and the uniform practice of the 
 States of this Union, including Rhode; Island, that they may 
 so assemble pursuant to an ordinary act of leiz'islation Drovidiu"' 
 the means by which they may assemble in con\'ention if they 
 so choose. That they can do so has never ))e(;n denii'd by anv 
 legislature or any court or any text writer, and in fact is sid)- 
 
47 
 
 stantially admitted by Mr. Sheffield himself in this speech. 
 He says in sul)stance that if the legislature pass an act provid- 
 ing for a convention, and the people decide to assemble in 
 convention by delegates, and the convention sul)mit a constitu- 
 tion to the people, and the people adopt it, it would l>ecome 
 the fundamental law of the State. Mr. Sheffield chooses to 
 call this " revolution." This is a misuse of the word. We 
 mean by revolution a change effected without law and against 
 law. 
 
 It has been decided again and again that the legislature can 
 propose amendments only in the mode pointed out by the con- 
 stitution. But it has never been decided that the people cannot, 
 pursuant to an ordinary act of legislation, fi-ame a new consti- 
 tution for themselves. The Declaration of Rights very properly 
 asserts that the present constitution is binding until changed 
 by an explicit and authentic act of the whole people. If the 
 framers of that Declaration meant that the present constitution 
 would be binding until changed l)y amendments proposed l)y 
 the General Assembly, and adopted by three fifths of the 
 people, and that it could be changed in no other way, they 
 could easily have said so. We venture to say that if a proposi- 
 tion had l)een made to insert those words in the preamble, it 
 would have been rejected with the same unanimity by which the 
 heresy of Mr. Ennis was thrown out. Such a proposition 
 would have been in conflict with the history and pedigree of 
 American liberty, and with the history and institutions of 
 Rhode Island, so highly commended by Mr. Sheffield, in which 
 commendation we heartily concur. The simple fact is tliat 
 nobody really doubts that a constitutional convention can be 
 lawfully held in the manner proposed. The real question is 
 whether the people desire to have such a convention ; that is to 
 say, whether they demand substantial changes in the constitu- 
 tion. This is the practical question which legislators would 
 do well to discuss. For when the people really desire such 
 chanc'es the convention will be i)rovided for, and a new consti- 
 tution will ))e fi-amed and adopted, and wlien so adopted it will 
 become, as Mr. Sheffield admits, the fundamental law, binding 
 upon tlie courts and the good people of the State. 
 
48 
 
 ARTICLES WRITTEN BY HON. ABRAHAM PAYNE, AND 
 PUBLISHED IN THE PROVIDENCE EVENING PRESS, 
 IN A SERIES COMMENCING OCT. 10, 1883. 
 
 Some years since, at the request of some friends of consti- 
 tutional reform, I expressed the opinion that an act of the Gen- 
 eral Assembly, inviting the qualified electors of the State, 
 assembled by delegates in a convention, to frame a constitu- 
 tion to be submitted to the people of tlie State for their 
 approval, would be a lawful proceeding, and that such a con- 
 vention ought to be held. While I do not consider my opin- 
 ions of sufficient importance "to be either anxiously com- 
 municated or withlield," as there are those who seem to differ 
 from me upon this subject, I should like to state some of the 
 reasons for this opinion. 
 
 I shall enter upon no discussion upon abstract questions 
 about the origin of government or the sources of political 
 power. I shall assume that certain principles of public law 
 in this country are settled beyond controversy ; that among 
 these are, first, that the sovereign power in the States of this 
 Union is in the people of the States, subject only to the Con- 
 stitution of the United States. That in the words of the first 
 article of the Declaration of Rights, in the constitution of Ehode 
 Island, " the 1>asis of our political systems is the right of the 
 people to make and alter their constitutions of government ; 
 but that the constitution which at any time exists, till changed 
 by an explicit and authentic act of the whole people, is sacredly 
 obligatory upon all." By an explicit and authentic act of the 
 whole people, I understand the will of the majority expressed 
 in accordance with existing law. If, then, the General Assem- 
 bly, by an act of ordinary legislation, submit to the people, 
 qualified to vote, the question whether they will hold a conven- 
 tion, providing, in case the people so decide, for the time and 
 mode of electing delegates and for the submission of the con- 
 stitution which the convention should propose to the people for 
 their approval, and they approve the same, by a majority of 
 
49 
 
 their votes, this would be an explicit and authentic act of the 
 whole people. This has been the practice of the States of this 
 Union, sanctioned by long acquiescence, and unquestioned so far 
 as I know by any judicial or legislative authority, unless, 
 indeed, it has recently been called in question by the action of 
 our General Assembly, or by the opinion of our judges of the 
 Supreme Court. 
 
 At the January session of the General Assembly, 1881, peti- 
 tions for a constitutional convention were presented and referred 
 to a joint special committee, which made a report understood 
 to be from the pen of its chairman, Mr. Sheffield. In this 
 report it is said, " The claim made on behalf of the peti- 
 tioners is that the General Assemlily has the right to authorita- 
 tively call upon the electors of the State to elect delegates to a 
 convention to frame a constitution for the State ; to designate 
 the time and place of holding the convention, and the manner 
 in which it shall proceed, and that the General Assembly ought 
 at this time to exercise this authority." 
 
 What authority the committee have for this statement I do 
 not know. I have made no such claim, nor have I expressed 
 the opinion that the General Assembly has any such power. 
 The able argument, therefore, of the committee, in opposition 
 to the existence or exercise of this power, is wholly in-elevant 
 to any position of mine. I make no claim that the General 
 Assembly, who are the agents of the people, can compel their 
 principals, who are the people, to hold a convention. "What 
 I claim is, that the people, through their agents, the General 
 Assembly, may provide the means by which, if they so choose, 
 they can assemble by delegates in convention. To call this 
 proceeding revolutionary, in a State where confessedly the sov- 
 ereign power is in the people, is, it seems to me, to use lan- 
 guage without meaning. To call it dangerous or radical is to 
 ignore common-sense. It is conservative and safe, from its 
 commencement to its close. 
 
 The subject of a constitutional convention is under discus- 
 sion. The people elect a legislature who propose to the qual- 
 ified electors to decide whether such convention shall be held, 
 and at the same time, if the people so decide, prescribe the 
 
50 
 
 time of electing delegates, the time und place of holding the 
 convention, and the time and mode of submitting the proposed 
 constitution to the people for their approval or rejection. If 
 approved, it ))econies a fundamental huv of the State. "When- 
 ever a majority of the people of the State desire a constitu- 
 tional convention, the objections to this mode of proceeding 
 will disappear like the dust of the sununer thrashing floor 
 before a breath of north wind. In my opinion they exist only 
 in the minds of those who have not examined the subject, or in 
 the convictions of those who think that such a convention is 
 not expedient. The remaining topics discussed in the report 
 of this committee I will consider in another article. 
 
 At a subsequent session of the General Assembly, fresh 
 petitions for a constitutional convention were presented and 
 referred to a joint special committee, of which Senator Lapham, 
 of Providence, was chairman. At the re([uest of this commit- 
 tee, the Senate proposed certain questions to the judges of the 
 Supreme Court. (See pages 1-10 of pamphlet.) 
 
 It will be oljserved that the (juestions are preceded by the 
 recital that a difference of opinion exists as to the power of 
 the General Assembly to call a convention, etc., and the 
 answer of the judges commences with the recital, that their 
 opinion has l)een asked as to the legal competency of the Gen- 
 eral Assembly to call a convention, etc. 
 
 If the judges understood that they were requested to 
 answer this question, in the sense of compelling the people to 
 hold such a convention, and intended to confine their answer 
 to this question, I have no controversy with their opinion. I 
 hold that the people cannot be compelled to assemble by dele- 
 gates in convention. It has been supposed, however, that the 
 opinion of the judges is, that no change can lawfully be made 
 in the constitution of the State except in the mode provided 
 therein for its amendment. If this is a proper construction of 
 the opinion, which, however, I very much doubt, it seems to 
 me to be in direct conflict with settled and elementary princi- 
 ples of law in this country. I ask leave, respectfully, to present 
 some reasons for my dissent from the popular construction that 
 has been placed on this decision of the judges. 
 
51 
 
 There is a popular impression that the answer of the judges 
 to the question of the Senate, in regard to the calling of a con- 
 stitutional convention, has the force of a judgment or decree. 
 It has the weight which, under the circumstances, attaches to 
 the opinion of gentlemen in whose learning, integrity, and 
 ability the people have shown their confidence by intrusting 
 tliem witk the exercise of judicial power. This, no doubt, is 
 the view of the judges themselves. If they had understood 
 that their answer would conclusively decide the questions sub- 
 mitted to them, they would not have used this language : — 
 
 " The questions are extremely important, and we should have 
 been glad of an opportunity to give them a more careful study, 
 but under the request of the Senatcfor our opinion ' without any 
 unnecessary delay,' we have thought it to be our duty to return 
 our opinion as soon as we could without neglecting other 
 duties to prepare it." 
 
 This is what a prudent counsellor would say, if his opinion 
 were called for by a client : " This is the best opinion I have 
 been able to form during the time which has been allowed me 
 in which to consider the case." No wise judge would pro- 
 nounce judgment, or enter up a decree which should finally 
 settle rights of property or person, until he had taken all the 
 time which he thought necessary for full investigation. 
 
 The judges say, "We are of opinion that the mode pro- 
 vided in the constitution for the amendment thereof is the only 
 mode in which it can be constitutionally amended," and the 
 authorities cited by them support this opinion. I make no 
 question that language used in the constitution is subject to the, 
 same rules of construction as if used in a will, deed, or contraot. 
 I make no question that the mod,e of amendment provided in the 
 constitution of Ehode Island is the only lawful mode of amend- 
 ment properly so called . What I claim is , that for the General As- 
 sembly to propose amendments to the people for their adoption, 
 is one thing, and for the people, through their agents, the 
 General Assembly, to provide the means by which, if they so 
 choose, they can assemble in convention to frame a new consti- 
 tution, to be submitted to them for their approval or rejection, 
 is another and wholly different thing, No man, as it seems to 
 
52 
 
 me, Mill confound the two things. In framing their constitu- 
 tion, the people say to the General Assembly : " Upon certain 
 conditions you may propose amendments to us, and if we adopt 
 them ))y a three-fifths vote, tliey shall l)ecome a part of tliis 
 constitution ; but to guard against popular excitement and to 
 secure a permanent majority, you shall propose amendments in 
 no other mode. "We M-ill not be called upon to pass 
 upon amendments which may be proposed by a majority 
 which may be worked up by a sudden emergency. For 
 similar reasons you shall not compel us to assemble in conven- 
 tion without our consent, but the sovereign power remains with 
 us. "We cannot abdicate, we cannot delegate this power. We 
 :u-e a permanent body ; the individuals that compose this body 
 change fi'om year to year, but the body remains in perpetual 
 succession, and we cannot part with the power to make and 
 alter our constitutional government, by our explicit and au- 
 thentic act. This is the basis of our political system. An 
 explicit and authentic act means the will of the majority law- 
 fully' expressed. This is elementary and fundamental Ameri- 
 can public law, settled by long practice in this country and in 
 this State, and expressed in the first article of our Declaration 
 of Rights. "When, therefore, through our agents, the General 
 Assembh', hj an ordinary act of legislation, we cause to be 
 submitted to us the question, whether we will assemble in con- 
 vention, to frame a new constitution to be submitted to us for 
 approval or rejection, we are in the lawful exercise of our in- 
 alienable sovereign power." 
 
 In all that the judges sa}' about the well-guarded mode in 
 which amendments to the constitution should be proposed to 
 the people, by the General Assembly, about the practicability 
 of procuring amendments in this way, all well-instructed citi- 
 zens will heartily concur. Xor, so far as I know, was it ever 
 questioned by any body, that a law proposing amendments in 
 any other way would be unconstitutional and void. 
 
 The Court proceed to say : — 
 
 " An argument in favor of a convention has been suggested 
 which is not specificially met in the preceding. It is this, 
 namely : That though the General Assembly has no power to 
 
53 
 
 introduce amendments and carry them to their consummation 
 in any manner not provided in the constitution, it nevertheless 
 has power to call a convention to frame a new constitution for 
 submission to the people." 
 
 If anybody has suggested this argument, I quite agree with 
 the judges that it is unsound, and it does not seem to me to be 
 even specious. It assumes that the General Assembly can by 
 law compel the people to hold a convention, which is contrary 
 alike to authority and common-sense. When the people 
 assemble in convention to frame a constitution, they exercise 
 their sovereign power. In order to do this lawfully, they 
 provide a necessary machinery by their agents, the General 
 Assembly. 
 
 The judges proceed to say : — 
 
 " The convention, if called, Avould be confined by the Con- 
 stitution of the United States to the fonnation of a constitution 
 for a republican form of government, and our present constitu- 
 tion contains the fundamental jiro visions, the great ground 
 plan, of such a form of government as it is known throughout 
 the Union. Any changes which are in contemplation are 
 merely changes of superstructure or detail. Our constitution, 
 too, contains in its Bill of Eights the great historic safeguards 
 of liberty and property, which certainly no convention would 
 venture either materially to alter or abolish. Any new consti- 
 tution, therefore, which a convention would form, would be a 
 new constitution only in name, but would be in fact our present 
 constitution amended . It is impossible for us to imagine any 
 alteration, consistent with a republican form of government, 
 which cannot be eflfected by specific amendment as provided in 
 the constitution." 
 
 This is very clear and well expressed ; but it seems to me to 
 be an argument against the expediency or necessity of a con- 
 vention, rather than against the power of the people to hold a 
 convention if they chose to do so. The question of the expedi- 
 ency of such a convention in Ehode Island I will consider in a 
 future article. 
 
 As to the power of the General Assembly to call a conven- 
 tion under Section 10 of Article IV. of the Constitution, there is 
 a difference of opinion, which I do not propose to discuss. If 
 
54 
 
 the power exists, I do not think that it ought to be exercised. 
 I do not think that the people should l)o obliged to hold a con- 
 vention without their consent being lawfully obtained hj a 
 direct appeal to them in their sovereign capacity. 
 The Court proceed to say : — 
 
 " Finally it has been contended that there is a great un- 
 written common law of the States, which existed before the 
 constitution, and which the constitution was powerless to 
 modify or abolish, under which the people have the right, 
 whenever invited by the General Assembly — and, as some 
 maintain, without any invitation — to alter and amend their 
 constitution. If there be any such law, — for there is no record 
 of it, or of any legislation or custom in this State recognizing 
 it, — then it is, in our opinion, rather a law — if law it can be 
 called — of revolutionary than of constitutional change. Our 
 constitution is, as already stated, by its own terms, ' the 
 supreme law of the State.' We know of no law, except the 
 constitution and laws of the United States, which is paramount 
 to it." 
 
 I am not now discussing the power of the people under any 
 unwritten law ; I am considering what they may do under a 
 constitution which declares that the basis of their political sys- 
 tem is their right to make and alter their constitutional govern- 
 ment, by their explicit and authentic act. As to what is an 
 explicit and authentic act of the people, I hold with Mr. 
 Webster, that American liberty has a history and a pedigree ; 
 and by that history and pedigree, uniform and unbroken, the 
 decision of a majority, made in pursuance and under the forms 
 of existing law, is an explicit and authentic act of the whole 
 people. 
 
 I have carefully considered these answers of the judges to 
 the questions of the Senate, certainly with respect, and I hope 
 without offence, and I do not find in them any clear and un- 
 doubted evidence that they mean to deny the right of the 
 people to assemble by delegates in a convention, if they so 
 choose, in accordance with act of the General Assembly pro- 
 viding for the time and place of holding such convention and 
 of electing the delegates thereto, to frame a constitution to he 
 submitted to them for their approval or rejection. If they do 
 
55 
 
 so intend, I am compelled to think it is a new departure in 
 American constitutional law. The subject is thoroughly dis- 
 cussed, historically, in an article published in the Providence 
 Journal of May 28, 1883, understood to be written by Ex- 
 Chief Justice Bradley, and in a paper recently read before the 
 Equal Eights Association, and published in the Evening 
 Telegram of Oct. 3, 1883. These articles are easily accessible 
 to all readers, and if I should try I could add nothing to the 
 exhaustive research which they exhibit. I will now consider 
 the conservative iniluence of the power for which I contend. 
 
 I will now assume that the people of the State are assembled, 
 by delegates lawfully elected, in convention to frame a consti- 
 tution. The delegates begin their work by a declaration of 
 rights and principles, happily described by the judges as con- 
 taining the great historic safeguard of liberty. Pursuant to 
 the general history and pedigree of liberty in the States of the 
 Union, they provide for a government, in three departments. 
 They intrust the lawgiving power to a Legislature in two 
 branches ; to interpret the law, an,d to ascertain and adjudicate 
 the rights of person and property, they create the department 
 of the judiciary ; they also provide a department for the exe- 
 cution of the laws. They prescribe the qualification of the 
 electors ; they define the mode of appointment, the power, 
 rights, and duties of the ofiicers in the difierent departments. 
 To avoid the necessity of frequent conventions, they provide a 
 mode by which the Legislature may propose amendments to 
 the constitution. They submit this constitution to the people, 
 and if approved it becomes and remains the, supreme and para- 
 mount law, until amended l>y the mode therein provided, or 
 until changed by an explicit and authentic act of the whole peo- 
 ple. That an explicit and authentic act of the whole people is 
 the decision lawfully expressed of the major part thereof, in 
 civil things, is as fundamental in Khode Island as is the doctrine 
 of soul liberty in spiritual things. 
 
 This constitution is the creature of the sovereign power ; but 
 in creating it, the people have parted with no part of that 
 power. There is no diflference of opinion as to the necessity 
 of guarding against sudden and frequent changes in the funda- 
 
53 
 
 mental law. To this end, the framers of our constitution have 
 wisely provided that a proposed amendment should pass through 
 successive Legislatures and be finally adopted by three fiftlis of 
 the electors. Construed as a mode by which single or specific 
 amendments may be proposed to the people, it is practicable, 
 safe, and wise. Construed as a limitation upon the power of 
 the people to change their constitution, it is, as it seems to me, 
 absurd and mischievous. This limitation of the power in the 
 Legislature to propose amendments, and of the people to ap- 
 prove such amendments, is, I apprehend, what Mr. "\Ye))stcr 
 meant when he said, " The people may limit themselves." To 
 give this language any other construction would put this lan- 
 iruairt' in conflict with the tenor of his whole argument in tlie 
 case of Luther v. Borden. That master of accurate thought 
 never confounded the power of the Legislature to propose 
 amendments to the people with the power of the people to 
 change their constitution in a new exigency, pursuant to an 
 ordinary act of legislation providing for a convention to frame 
 a constitution to be submitted to them for their approval. 
 
 It is quite clear that in any change in constitution, its general 
 framework will be preserved. Any changes would in a certain 
 sense 1 >e mattei's of detail ; but in any exigency requiring the 
 revision of the constitution these details could be arranged and 
 harmonized only by a convention. Shall the suffrage l)e 
 changed so as to render it equal and impartial? If so, what, if 
 any, new restrictions shall he placed on the right of suffrage V 
 shall there be an educational test ? Shall there be a property 
 qualification applicable in all cases, or shall all persons natu- 
 rally capable of political action, without distinction of race or 
 sex, be entitled to vote? Shall there be a change in the repre- 
 sentation of the towns in the General Assembly, and if so, 
 what shall be the basis and ratio of change ? Shall there be 
 any change in the mode of appointment to office and tenure of 
 the judiciary, and if so, shall that change be in the direction 
 of a choice by the people or of a nomination by the governor, 
 subject to the approval of the Senate or a Council of State ? 
 Shall the governor be intrusted with the veto power, and if so, 
 upon what conditions ? Shall the power of the Legislature to 
 
57 
 
 exempt property from taxation, and to expend money, be re- 
 stricted, and if so, to what extent? Shall the manufacture and 
 sale of ardent spirits be regulated or prohibited by the funda^ 
 mental law ? Shall the mode of creating corporations be changed 
 and their powers limited and defined ? These are all practical 
 questions, and it requires but slight acquaintance with public 
 affairs to see that they can be properly considered only in a 
 constitutional convention. The answer to any one of them 
 might and probably would depend on the answers given to some 
 of the others ; to procure a wise decision of them in the mode 
 provided for specific amendments would be wholly imprac- 
 ticable. 
 
 To provide for a revision of the constitution (assuming such 
 revision to be necessary or expedient) by a convention, in the 
 manner proposed by those who favor such convention, is both 
 conservative and safe. The subject is discussed until a major- 
 ity of the General Assembly is satisfied that the question of 
 holding such a convention ought to be submitted to the people. 
 Those who are opposed, as well as those who favor such con- 
 vention, have full opportunity to express their views in the press, 
 in public meetings, and private discussion. If a majority of the 
 people decide that a convention is unnecessary, there is an end 
 of the matter. If they decide in favor of a convention, they pro- 
 ceed to elect the delegates. According to all precedent and 
 probability, there would be in the convention many leading men 
 of the State, and men representing every interest and every 
 shade of opinion. The instrument proposed by the convention 
 to the people, when adopted by them and not till then, would 
 become the supreme law of the State. There is no chance for 
 changes of government by working up a majority through in- 
 trigue or excitement. No change will be had till desired by a 
 permanent majority of the people. Let the people understand 
 that they can change their constitutional government in this 
 way, and there is no pretext or excuse for revolutionary senti- 
 ments or proceedings. To tell the people in one breath that 
 they have the right to make and alter their constitutional gov- 
 ernment by their explicit and authentic act, and that this right 
 is the basis of their political system, and at the same time to 
 
58 
 
 tell them that they have by some legerdemain got a constitu- 
 tion which must remain as it is from generation to generation 
 under ^vhatever circumstances, so long as two fifths of them 
 can be induced to oppose any change, is to provoke and go far 
 to justify revolutionary proceedings. 
 
 More than forty yeai's since there were events in this State 
 which have made the charge of Dorrism a good party cry 
 against those who favor a constitutional convention. A calm 
 and impartial history of these events is now possible and much 
 to be desired. I am glad to know that at last the necessary 
 documents are in the hands of a gentleman every way com- 
 petent for the task, and a work may be expected which will 
 correct some popular errors. I do not now propose to discuss 
 that theory of popular government which was maintained by 
 Mr. Dorr and his associates. My purpose is simply to point 
 out a clear distinction between that theory and the mode of 
 constitutional change which I am attempting to explain and 
 defend. 
 
 That theory was that sovereignty was inherent and inalien- 
 able in the people ; that in its exercise the people might organ- 
 ize a movement, without the authority of any existing law, to 
 fi'ame a constitution, which, when adopted by a majority, would 
 become the supreme and paramount law of the State ; that this 
 exercise of sovereign power would not be revolutionary, but in 
 strict accordance with the fundamental principles of govern- 
 ment in this country. This theory, though ably maintained l)y 
 Mr. Dorr, was by no means original with him, but was sanc- 
 tioned by some of the greatest names in the history of our 
 countr}'. During the early stages of the controversy in Rhode 
 Island it was not much discussed nor often denied. The prin- 
 cipal objection to the movement was not that it was unlawful, 
 but that it was unnecassary ; that the existing government was 
 wide and liberal ; that the demand for the extension of suf- 
 frage came, not from the people, but from, a few discontented 
 politicians ; that it was, in fact, as one of the ablest opponents 
 declared, '' a tempest in a teapot." In a later stage of the con- 
 troversy. Chief Justice Job Durfee delivered his celebrated 
 charge to the grand jury, which changed the views of many 
 
69 
 
 who had before been the adherents of Mr. Dorr, and furnished 
 large numbers of his opponents with reasons for their opposi- 
 tion which had not previously occurred to them. This charge 
 contains a discussion of the principles of free government at 
 once profound, conservative, and liberal. It is the production 
 of a man instructed in Rhode Island history, and thoroughly 
 imbued with the love of individual liberty protected by public 
 law. No man is qualified to discuss the subject of constitu- 
 tional reform in this State who has not given to this work care- 
 ful and patient study. 
 
 Some years after this charge was delivered, Mr. Webster, as 
 counsel for the State of Rhode Island in the case of Luther r. 
 Borden, delivered an argument in the Supreme Court of the 
 United States, substantially in accord with the views of Chief 
 Justice Durfee. Both these distinguished men hold that by 
 the fundamental principles of constitutional law the sovereign 
 power is inherent and inalienable to the people ; that the 
 power can be exercised by the will of the majority lawfully 
 expressed ; but they also hold that the will of the majority can 
 only be lawfully expressed in accordance with pre-existing law. 
 This is, I think, now generally accepted as a wise and safe 
 limitation on the exercise of sovereign power by the people. 
 It is the only limitation which the most conservative mind can 
 reasonably require. Without, this limitation, it is contended 
 with great force of reasoning, the exercise of sovereign power 
 by the people must necessarily be revolutionary. Without this 
 limitation there is no authority to define who are the people 
 capable of and entitled to political action. 
 
 In this State, for instance, Mr. Dorr contended that the 
 political people consisted of the adult male population. Some 
 of his party, and enough to control the action of his conven- 
 tion against his will and his logic, considered the political people 
 as consisting of the adult resident white male population of the 
 State. At present many would claim that the people capable 
 of and entitled to political action would embrace the resident 
 adult population without distinction of birthplace, race, or sex. 
 Without the limitation above indicated, it would be impossible 
 legally to authenticate the proceedings of the people and to 
 
60 
 
 prove that they had adopted by a majority a new constitutional 
 frame of government. These objections are strongly urged in 
 the charge of Chief Justice Durfee and in the argument of iNIr. 
 Webster, above referred to, against the theory of government 
 known in this State as "Dorrism," but they have no force 
 against the mode of constitutional change for which I contend. 
 In this mode, while the inherent and inalienable sovereignty of 
 the people is recognized, and their power by the will of the 
 majority to make and alter their constitutional government is 
 maintained, every step in the proceedings is regulated and pro- 
 tected by pre-existing law. It has been suggested that I 
 have endeavored to give the support of the distinguished names 
 of Job Durfee and Daniel Webster to the proceeding for the 
 lawfulness of which I contend, by isolated quotations. So far 
 as I have observed, quotations are apt to be isolated. It will be 
 a long time, I think, before any one will show that the quota- 
 tions which I have made are unfair or in conilict with the gen- 
 eral tenor of the works from which they are taken. It has 
 been suggested that an act of the General Assembly providing 
 for the constitutional convention, if the people choose to hold 
 such a convention, is in the nature of an invitation, and that 
 the General Assembly does not issue invitations but commands. 
 If we will speak with entire accuracy, when the General As- 
 sembly acts within the strict limits of its law-making power, it 
 is the people who issue the command through their agent, the 
 General Assembly. If the General Assembly pass such an act 
 as I propose, they will simply obey the command of the people 
 to submit to them the question whether they will hold a consti- 
 tutional convention. This idea of supreme command in the 
 General Assembly is one aspect of the political fallacy which 
 transfers the sovereignty of the people to the existing constitu- 
 tional government, and precludes the possibility of change in 
 that government except in the mode of amendment therein pro- 
 vided. 
 
 At the risk of some repetition I will restate the grounds of 
 my opinion, that an act of the General Assembly providing for 
 a constitutional convention, if the people chose to hold one, 
 would be lawful. Under the constitution of Rhode Island, the 
 
61 
 
 people have the right to make and alter their constitution by 
 their explicit and authentic act. An explicit and authentic act 
 of the whole people is the will of the majority, expressed in 
 accordance with pre-existing law. The General Assembly can 
 propose amendments to the constitution only in the mode 
 therein provided. Amendments thus proposed must be adopted 
 by a three-fifths vote. If the framers of the present constitu- 
 tion had intended to limit the power of change to the mode of 
 amendment provided therein, they could easily have said so. 
 That they did not so intend is clear from the fact that they 
 have declared the right of the people to make and alter their 
 constitutional government by an authentic and explicit act of 
 the whole people. 
 
 The line between the two theories is distinctly drawn. One 
 theory leads necessarily to the conclusion that the present con- 
 stitution must remain as it is throughout all time and under 
 all changes of circumstances, so long as two fifths of the people 
 refuse to consent to any change. The other theory permits 
 changes in the constitution whenever desired by the majority 
 of the people, expressed in accordance with existing law. 
 This last theory has the support of uniform precedent in 
 American and Rhode Island history. The former theory, if 
 indeed it be maintained at all by anybody, is new, and as yet 
 lacks the sanction of the judgment of any court or the action of 
 any legislature. Between these two theories I have no doubt 
 what the final judgment of the people will be. Long after 
 Andrew Jackson had retired from public life, an old political 
 friend called to consult him about a new departure in the 
 Democratic faith, which had excited the indignation of the old 
 hero. With a flash of the old fire which years before had pro- 
 claimed that the Federal Union must be preserved, he said, 
 with some preliminary expression which I may as well omit, 
 " Sir, did you ever know common-sense as at discount? I 
 never did." 
 
 I now pass to consider the expediency of holding a con- 
 vention. 
 
 As a citizen of the State, I think that a constitutional con- 
 vention ought to be held. But the precise question which I 
 
62 
 
 propose now to discuss is, whether the circumstances are such 
 as to make it the duty of the General Assembly to submit to 
 the people the question whether they desire to hold such con- 
 vention, and in case the majority of the people shall vote in 
 favor of such convention, to provide bj^ law for the election of 
 delegates. In support of the affirmative of this question (as- 
 suming, of course, the lawfulness of such an act by the General 
 Assembly) I think I have the high authority of the joint special 
 committee of the General Assembly in their report of 1881. 
 After giving their reasons for denying the power of the General 
 Assembly to call such constitution, and submitting an argument 
 in favor of the convention as it is, the committee say : "Two 
 thousand one hundred and fifty-six persons, with four organ- 
 ized associations, have petitioned this General Assembly to 
 call a constitutional convention ; your committee are of the 
 opinion that the General Assembly has no authority to call 
 such convention ; but, nevertheless, considering the number 
 and standing of the petitioners, your committee, without ref- 
 erence to the opinions of the members of the committee as to 
 the results which the petitioners desire to attain, have con- 
 cluded that it was their duty to recommend to the General 
 Assembly to propose to the electors of the State an amendment 
 to the constitution, which they herewith submit, which amend- 
 ment, if adopted by the people, will authorize the General 
 Assembly to call a constitutional convention." 
 
 This means, I suppose, that the committee were of the opin- 
 ion that the demand for a convention was so reasonable and well 
 supported that provision should be made for holding such con- 
 vention. The amendment suggested by the committee was 
 proposed to the people and rejected. It is not difficult to 
 account for its rejection. All those citizens who held the 
 General Assembly could, by the consent of the people, provide 
 for such convention ; or those who held that the General Assem- 
 bly ought not to hold a convention without the consent of the 
 people ; and all those who held that to require a vote of three 
 fifths of the people, in approval of any constitution which the 
 convention might recommend, would be in conflict with the 
 Declaration of Eights, which authorize the people to make and 
 
ca 
 
 alter their constitutional government by their explicit and 
 authentic act, — would naturally vote to reject this amendment. 
 It cannot be too often repeated that an explicit and authentic 
 act of the whole people is the will of the majority lawfully ex- 
 pressed. " Government by a minority," said Abraham Lincoln, 
 " is either anarchy or despotism." I will agree with the com- 
 mittee, that the number and character of the petitions furnish 
 a sufficient reason for holding a constitutional convention. 
 The defence of the committee of the present constitution 
 furnishes, also, a sufficient reason for a convention of the people 
 to consider its revision. They state clearly the grave ques- 
 tions that are under discussion ; and they argue with ability 
 for the constitution as it is ; but it is for the people and not for 
 the committee to decide these important questions. The 
 present constitution was adopted in a time of great political 
 excitement. Forty years have elapsed since its adoption. Few 
 citizens, I think, would desire to retain all its provisions ; 
 many citizens, it is well known, desire a change in some of its 
 most important provisions. Is it not reasonable, then, that the 
 question be submitted to the people, whether they will assemble 
 in convention to discuss these questions ? 
 
 The objection most frequently heard is, that the people are 
 satisfied with the constitution as it is ; but that is the very 
 question which it is proposed to submit to them. It is by no 
 means clear that they are satisfied. We live in a time of what, 
 for want of a better term, is called apathy, in national as well 
 as State political aifairs. Earnest public discussion in political 
 meetings is now rather the exception than the rule. Most men 
 are very busy, and content themselves with a hasty glance at 
 their morning or evening paper. Political activity is very 
 much confined to candidates for office and their personal 
 friends. The causes of this state of things would be the sub- 
 ject of interesting inquiry, but it is not now in order. It may 
 readily be admitted that the great body of the people of the 
 State have not as yet taken an active interest in promoting a 
 constitutional convention. But it by no means follows that if 
 the question were submitted to them they would not vote for 
 such a convention. The number of those who have petitioned 
 
64 
 
 for such a convention is very large, and embraces many 
 representative men of both the Kepublican and Democratic 
 parties. 
 
 If I may be allowed a personal remark, I have no sympathy 
 with the harsh epithets that are sometimes appUed to the insti- 
 tutions of the State by men whose zeal outruns their knowledge. 
 I am not a native of the State, but I have lived here long, and 
 I have a profound regard for its history, its institutions, and its 
 people. Its foundations were laid in the fundamental doctrines 
 of the authority of the major part in civil things, and of the 
 absolute independence of the individual of all human authority 
 in spiritual things. 
 
 Under the old charter, until the changes in population ren- 
 dered the representation and suffrage unequal, there never was 
 a government in which the rights of all the people were more 
 perfectly protected than in the State of Rhode Island. I have 
 great confidence in the intelligence of the people, and I believe 
 that if the subject were fairly presented to them, they would 
 desire to bring the existing institutions of the government into 
 harmony with its previous history. 
 
 Some of my friends, who think they are very conservative 
 in opposing any change in the present constitution, are fond of 
 quoting to me, " Stand ye in the ways, and see, and ask for 
 the old paths, where is the good way, and walk therein " ; not 
 remembering, perhaps, that the author of these words was a 
 radical reformer, summoning his countrymen in a degenerate 
 age to return to the principles and practices that had made his 
 nation great. What is wanted in this country is faith in the 
 principles in which the foundations of our government were 
 laid, in the self-evident truths of the Declaration of Indepen- 
 dence, and in the great doctrines of popular liberty for which 
 our ancestors contended when they carried on a seven-years' 
 war against the dangerous claims contained in a preamble. I 
 see, perhaps, as clearly as most men, the dangers and defects 
 of our political system ; but we cannot protect ourselves against 
 them by ignoring the principles that are the basis of that sys- 
 tem. A stable government must keep its existing institutions 
 in harmony with its fundamental principles. An absolute mon- 
 
65 
 
 e 
 
 archy cannot be strengthened Vjy limiting the power of th 
 monarch. A government that recognizes the will of the people 
 as sovereign, will gain nothing by putting obstacles in the way 
 of the lawful expression of that will. The active opposition 
 to a constitutional convention in the State of Ehode Island to-day 
 comes, I think, to a great extent, from those who honestly 
 apprehend danger from extending suffrage to foreign-born and 
 native citizens on the same terms. I do not share in this ap- 
 prehension ; on the contrary, I think the danger lies in keeping 
 up the distinction that now exists. I think the true conserva- 
 tive policy requires us to extend equal and impartial suffrage 
 to all citizens who are naturally capable of political action. 
 The early history of the State is the voice of welcome to men 
 of all countries, all races, and of all shades of opinion, political 
 or religious. Our existing institutions are not in full harmony 
 with this early history. I would have the harmony restored, 
 in the spirit of the great man who struck the key-note of the 
 emancipation of mankind from the prejudices of caste and race, 
 when he said, " God hath made of one blood all nations of 
 men." I have made this contribution to the discussion now 
 going on among us, rather against my inclination, and only 
 because it seemed due to the gentlemen who did me the honor 
 to consult me, to give the reasons for the opinions which I 
 had expressed. I have no personal objects to gain or lose, 
 and no partisan feeling to gratify. I never had much love of 
 controversy, and I have now none at all. In a concluding 
 article I will endeavor to illustrate the expediency of a consti- 
 tutional convention, by a reference to the events which pre- 
 ceded the formation of the present constitution, 
 
 In 1829, certain petitioners for the extension of suffrage in 
 this State had liberty to withdraw upon the report of the com- 
 mittee, of which Benjamin Hazard was chairman. This report 
 is a great State paper, A single sentence, frequently quoted, 
 gives a wrong impression of its general tenor. It contains a 
 well-reasoned defence of the system of suffrage then existing 
 in this State. It is candid and even kind in its treatment of 
 opponents, and its style is such as might have been expected 
 from a man who is said to have given his days and his nights to 
 
66 
 
 the study of the writings of Dean Swift. A little more than 
 ton years from that time, the demand for the extension of suf- 
 fniue was so general that the most devoted adherents of the old 
 cliarter were forced to yield their reluctant assent. 
 
 In l.ssl, Mr. ShetEeld, at the head of his committee, with 
 great force and ingenuity, urges the present generation to 
 repeat the blunders of the past. And now, in the current num- 
 ber of the yort/i American Revieiv, comes Senator Anthony to 
 the defence of limited suffrage in Rhode Island. Time could 
 hardly have added anything to the grace and vigor of the style 
 wliich made the Provident'c Jonrnal under his supervision, 
 forty years since, the ablest paper in New England. This 
 j)aper adds to clear and adioit statement, that line flavor of sar- 
 casm and irony which the genial temper of the venerable sen- 
 ator keeps within reasonable bounds. To the argument of this 
 paper I would ask leave to reply in another place. 
 
 In the last analysis the reports of Mr. Hazard and Mr. Shef- 
 lield and the paper of Senator Anthony amount to this : Though 
 the sovereign })ower is in the people, they cannot be trusted 
 witli its exercise. The&Uacy which runs through them all is their 
 conflict with the fundamental jirinciples of American constitu- 
 tional law. " Xobody," says .Mr. Hazard, " would think of admit- 
 ting negroes or women to the riglits of suffrage." This in 1829, 
 and now, negroes have the right of suffrage, and women are 
 claiming it with a force of reasoning to which it is difficult to find 
 any adequate I'eply. "It will not do," says Mr. Sheffield, "to 
 put foreign citizens on an e(|uality with native-born " ; " if we do 
 tills," says Senator Anthony, "we shall become like New York 
 and Chicago " ; but if the great truths set forth in the Declaration 
 of Independence are anything more than glittering generali- 
 ties, if the basis of our political system is the sovereign power 
 of the people, then it follows that all who are capable of polit- 
 ical action, under proper restrictions of registry, residence, 
 etc., ought, for the welfare of the State, to be intrusted with 
 their share of the responsibility of political power. 
 
 In 1840, the great Whig party was rung into power under 
 the lead of "Tippecanoe and Tyler too." For sufficient reason 
 I shall avoid the use of names in this paragraph, but nowhere 
 
67 
 
 more perfectly than in Rhode Island was that political campaign 
 enjoyed. Many of its most prominent actors are no longer 
 with us. Those readers whose memory reaches back to that 
 tame are mostly gray-haired men; but they will not fail to 
 recall the scenes in the log-cabin, in the old town house, and in 
 the processions along the street. They will remember how, 
 
 " Blair and I called on our Van 
 To see what he could do, 
 To rid us of that pesky man 
 They call old Tippecanoe." 
 
 They will remember with what indignation the Democrats 
 heard in reply to their solemn arguments, — 
 
 " Old Tip '8 the boy to swino; the flail. 
 And make the locos all turn pale." 
 
 The non-electors enjoyed the songs, the speeches, and the 
 processions, and had their full share in the ridicule and fun 
 which was poured out without stint upon Van Buren and the 
 sub-treasury. But when election day came they could not 
 vote. They only wanted leaders to start the movement for an 
 extension of suffrage. These were easily found, and in the 
 spring of 1841 a vast procession moved through the streets of 
 Providence to enjoy a roasted ox on Federal Hill. The re- 
 spectable character of the men who formed the procession was 
 much commended by old politicians who stood upon the side- 
 walk, as Mr. Sheffield now commends the respectability of the 
 petitioners for a constitutional convention. If the General 
 Assembly had then seen fit to extend the suffrage and equalize 
 the representation, we might now be living under the old 
 charter, which in many respects was a much wiser form of 
 government than our present constitution, and we should have 
 avoided the troubles which go by the name of the Dorr war ; 
 but other counsels prevailed, and the General Assembly re- 
 fused to grant petitions for the extension of suffrage, or to 
 initate measures for a constitutional convention. 
 
 Mr. Dorr, discouraged by the failure of former attempts, had 
 thus far taken no part in the movement for the extension of 
 
G8 
 
 suffrage. But encouraged now by the great apparent strength 
 of this movement, he came forward and took an active part. 
 Under the au^jjices of a mass meeting, a convention was 
 organized without the authority of law, which framed a consti- 
 tution and submitted it to the people for their adoption. This 
 constitution was voted for, as Mr. Dorr and his adherents 
 claimed, l)}- a majority of the adult male resident population of 
 the State, and )>v a majority of the qualified voters under the 
 old charter. This constitution, as ^Ir. Dorr and his adherents 
 claimed, had become the supreme and paramount law of tlie 
 State. 
 
 Things are now getting warm. The General Assembly pro- 
 vided for a convention which framed an instrument known as 
 the "landowners' constitution," and submitted it to the people 
 for their adoption. If ]Mr. Dorr had been a politician or a 
 demagogue, he would have advised his followers to adopt this 
 constitution, and under it secure to themselves the political 
 power of the State. But he was a logician and an honest man ; 
 he said the people have already adopted a constitution ; it is 
 the supreme law and must be carried into effect. Meantime 
 Mr. Dixon had died, and Governor Sprague, sometimes called 
 the Earl of Warwick, had accepted a seat in the United States 
 Senate and withdrawn his support from the Dorr party. Chief 
 Justice Durfee, sjieaking for the Supreme Court, had charged 
 the gi'and jury that the movement under Mr. Dorr was treason. 
 The General Assembly passed the law declaring it to be trea- 
 son. John Whipple delivered in the town house that tremen- 
 dous philippic known as his tiger speech. The rest is known. 
 The attack on the arsenal, the gathering at Acote's Hill, are 
 they not recorded in the columns of the Providence Journal, 
 and in that witty and graceful poem, " The Dorriad," one of 
 the many bright productions of Henry B. Anthony? Are not 
 these events also burned into the memories of many of the 
 Dorr party — as honest men as ever contended in a lost cause ? 
 
 The events of three years had their comic as well as tragic 
 side, which hereafter may be exhibited in detail by an abler 
 pen than mine. The lesson which I wish to draw from them 
 now is, that it is unwise in a free government to refuse to give 
 
69 
 
 full consideration to a reasonable demand for changes in the 
 fundamental law. A constitution, though written, must con- 
 tain the elements of growth and be flexible to such changes as 
 altered circumstances and new exigencies may require. There 
 is nothing so dangerous to the welfare of the State as a blind 
 adherence to existing institutions and a refiisal to listen with 
 candor to those who ask for reform. Such a refusal is a denial 
 of justice, and "justice is the standing policy of nations, and 
 any eminent departure from it runs the risk of being no poUcy 
 at all." While writing these articles I have seen a notice for 
 the conference of the Liberals of England, under the lead of 
 John Bright, to consider the extension of the franchise, 
 woman's suffrage, and other matters of reform. It would be 
 well if the liberal men in Rhode Island would confer upon these 
 and similar topics. It is not a healthy sign of the times that 
 so many people either are or seem to be indiflferent to these 
 questions. 
 
70 
 
 MR. SHEFFIELD'S METHODS OF QUOTATION, AND 
 OPINIONS ON THIS QUESTION. 
 
 The accusation of self-contradiction, to which Mr. Payne 
 refers, against the author of the article, was attempted to W 
 sustained by quoting from his remarks before the American 
 Bar Association at Saratoga, in 1883, what had been said ujjon 
 a different class of cases, while the same brief report con- 
 tained what had been said upon this same class of cases. That 
 was in precise accordance with the article ; in fact, a mere 
 paraphrase of this portion of it. It is here reprinted, and 
 the reader may compare with that the remarks on the same 
 subject in the article. It would be incredible, in ordinary con- 
 troversy, that the accusation of self-contradiction could be made 
 upon such a state of facts. It was made in the only reply 
 which has been attempted to the article (except in the pam- 
 phlet) on the floor of the Assembly, and printed in full in the 
 Journal. The accusation was that one statement was made as by 
 a jurist, the other by a politician ; the implication, that one was 
 sincere, the other insincere. From the unexampled experience 
 of this accuser as a politician, his opinion that to speak as a 
 politician is to speak deceivingly, has some weight. Mr. Shef- 
 field was chairman of the committee, whose report was the basis 
 of the opinion of the judges. Similar wrong impressions are 
 given of the opinions of courts. He cites at great length a 
 portion of Judge Stowe's opinion, which is but the statement of 
 a hypothetical case, as if the opinion was in his favor. Judge 
 Stowe's opinion has been fully quoted in this reply, in which he 
 says, among other things, that a denial of the right in question 
 "savors more of revolution than of legitimacy." 
 
 The following is from the official report of the American Bar 
 Association, 1883 : — 
 
 "We have instanced one case of many in which the judicial 
 power must be supreme. There is a large class of cases in which 
 the legislative department is supreme over the judicial. The 
 
71 
 
 able writer of the thesis, representing, with such interest to us 
 all, the really Empire State, whose emblem is still the lone star, 
 will permit me to refer to an instance illustrating this doctrine in 
 the history of the smallest State save one in the Union, — a his- 
 tory, I may be permitted to say, which has been so instructive 
 in matters civil and religious that one of her sons happily com- 
 pared her to_ the statue of the Greek sculptor, which, though 
 ))ut a cubit in height, gave a better idea of vigor than the Co- 
 lossus. In this comparison, I certainly do not mean to say 
 that Texas is the Colossus. 
 
 "It happened in the history of this little State that two gov- 
 ernments claimed the allegiance of its citizens. The govern- 
 ment de facto placed on trial before its courts Thomas Wilson 
 Dorr, claiming to be governor de jure. The prisoner at the 
 bar offered evidence of certain facts, claiming that they in law 
 constituted him the governor of the State, with the right to 
 commit the acts for which he was arraigned. 
 
 "The Court held that such inquiries were not cognizable by it. 
 The decision of such questions was vested in the political de- 
 partment of the government. The Court would not revise or 
 reverse the action of the political department in this regard. 
 It was its duty simply to follow and obey ; any other course 
 would be a usurpation. Such was the doctrine of the Supreme 
 Coui"t of that State, propounded in such terms by its philo- 
 sophic chief justice, that Mr. Webster embodied tliem in full in 
 his argument of the case, Luther v. Borden, — an argument pre- 
 served for posterity in the last precious volume of his works, 
 dedicated by him to the memory of his beloved daughter and 
 of his youngest son, who gave his life to his country in the 
 war with Mexico. The Supreme Court of the United States, 
 composed principally of judges of a different school of politi- 
 cal thought from Mr. Webster, without dissent sustained the 
 doctrine ; and it has recently been acted upon by that tribunal 
 in a case arising upon the reconstructed constitution of Georgia. 
 " There is a class of cases in which the danger apprehended 
 by the author of the paper exists : it is those in which the 
 court is called upon to give opinions to the other branches of 
 the government. Such opinions are not in the exercise of its 
 judicial functions. They are not opinions given after listening 
 to antagonistic discussions. What constitutes the worth of 
 judicial decisions, what makes them in experience the just and 
 safe basis upon which society rests, is not only that the court 
 fulfils its oath of office in judging uprightly and impartially, 
 but also that it speaks judicially only after it has been in- 
 structed by argument on different sides of the question before 
 
72 
 
 it. Xo other opinions from it have the force, the weight, or 
 the wisdom of law. To attempt thus to introduce the personal 
 opinion of the judges into our system of government is to give 
 them an unnatural, a dangerous potency." 
 
 I\Ir. Sheffield did not quote these remarks upon the precise 
 subject of alleged contradiction, but quoted those upon a dif- 
 ferent class of cases in which the judgment of the court is tinal. 
 He quoted also the two intermediate out of the four following 
 paragraphs from the remarks in August : — 
 
 "There is another class of cases in which the judicial and 
 the political branches of the government have approached 
 collision ; those in which constitutional changes have been 
 attempted either through the provisions for amendment con- 
 tained in existing constitutions, or through conventions assem- 
 bled with the consent of the existino- oovernment. 
 
 "The most remarkable instance, perhaps, which has occurred 
 is that of Pennsylvania. When the last convention was held 
 in that State the court judicially declared that the mode of 
 submitting the proposed constitution to the people must be 
 that pointed out in the law providing for a convention. The 
 convention almost unanimously protested against this decision 
 of the court, but prudently yielded to its directions. 
 
 " Such questions must be considered yet in abeyance. And 
 so of others in which the courts — notably recently in Iowa — 
 have held that the mode and the particulars through which an 
 amendment pursuant to the constitution can be made must be 
 strictly complied with, or the amendment, though proposed by 
 the Legislature and adopted by the people, is void. 
 
 "It may well be a subject of consideration whether, in such 
 action, the judicial has not encroached on the political depart- 
 ment or assumed a power over the sovereign — the people 
 themselves." 
 
 He omitted those paragraphs which contained the expression 
 of the opinion of the author in citing evidence of what that 
 opinion was. From the views thus expressed, it is believed 
 that there was no dissent at the meeting of the American Bar 
 Association. 
 
 Mr. Sheffield, in behalf of the majority of the committee of 
 the General Assembly, also quoted the same passage from Mr. 
 Webster, with the same omissions as those of the pamphlet. 
 He is also mistaken in his statement as to the reason for 
 
APPENDIX Z. 
 
 EXTRACT FROM THE REPORT OF A MAJORITY OF THE COMMIT- 
 TEE OF THE ASSEMBLY, BY W. P. SHEFFIELD, CHAIUMAN. 
 
 4. The rules to be applied in construing statutes, writings 
 and constitutions, most of them embodied in classical language, 
 have come down to us from former generations, and courts, 
 legislators, and peoples are bound to observe these rules as 
 much as if they were incorporated into the written paper they 
 are called upon to construe. 
 
 " Inclusio unius est exdusio aUerius" is one of these maxims, 
 which, when applied to the subject under consideration, means 
 that the inclusion of one mode of amendment in the constitution 
 excludes any other. (See 11 Coke, 59.) There are other max- 
 ims of the law that apply equally to this sulyect, one of which 
 is, " when a law contains an affirmative proposition pointing out 
 a particular way in which a thing may be done, it implies a 
 negative, and the thing cannot be lawfully done in any other 
 way." 
 
 HAS THE LEGISLATURE THE POWER TO CALL A CONSTITUTIONAL 
 
 CONVENTION ? 
 
 The people of Rhode Island have instituted a government, 
 and in their constitution have limited its powers. The powers 
 and duties of the legislative department of the government are 
 therein defined and limited. The mode of amending the con- 
 stitution is prescribed by the people in the constitution ; this 
 power is superior to the legislature, and to disregai-d this pro- 
 vision of the constitution is to disregard the will of the people 
 of the State. 
 
 The legislative depa;rtment of the government possesses the 
 powers expressly delegated to it in the constitution, and the 
 powers necessarily to be implied from the powers expressly 
 delegated. As to the reservation of powers to the General As- 
 sembly theretofore exercised by Sect. 10, Art. IV., it need 
 
only l)c said that that provision refers only to powers not enu- 
 merated or provided for in the constitution, and it is not neces- 
 sary to consider that question further in this connection. The 
 case of Taylor r. Place, decided by the Supreme Court, and 
 reported in Vol. IV. of R. I. Reports, appears to answer any 
 argument which has been attempted, based on this provision of 
 the constitution. 
 
 The Supreme Judicial Court of Massachusetts considered, 
 upon the request of the House of Representatives of that Com- 
 monwealth, the matter of the power of the Legislature to call a 
 convention to frame a constitution there, and gave an opinion 
 against the validity of its exercise, which opinion is reported in 
 6 Cusliing's Reports, page 573. 
 
 The Legislature called the convention, however, the opinion 
 of the court to the contrary notwithstanding ; but the people of 
 the Connnonwealth rejected the constitution, and thereby sus- 
 tained the opinion of the court. 
 
73 
 
 tcjeoting the constitution of 1853 in Massachusetts. The rea- 
 sons urged by all the writers and speakers were, the inequality 
 ■of representation and the changes in the judicial tenure. In 
 both of these respects our constitution is far more objectionable 
 than that proposed and rejected in Massachusetts. Mr. Pal- 
 frey's statement, quoted in this appendix on this question, may 
 be accepted as historic. His statement which immediately fol- 
 lows should close all further discussion as to the state of the 
 public mind in Massachusetts. It is another illustration, of 
 which Mr. Jameson has observed, that this "course has 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." 
 
74 
 
 THE VIEW TAKEN OF THIS QUESTION IN MASSACHU- 
 SETTS AFTER ITS CONVENTION, AS STATED BY 
 J. G. FALFREY. 
 
 A volume was published containing speeches and articles 
 against the adoption of the proposed constitution, by George 
 T. Curtis, George S. Hillard, Marcus Morton, Samuel Hoar, 
 Charles Francis Adams, and John G. Palfrey. But one of them 
 expressed any objection to the validity of the proceeding by 
 a convention, —G. T. Curtis. It has been usually considered 
 that the most effective pamphlet was that of J. G. Palfrey. 
 He had been Dean of the Divinity School at Cambridge, a 
 member of Congress, and often engaged in large pubUc affairs, 
 and a leader in political controversy. He is, perhaps, best 
 known as the historian of New England. To its history, retiring 
 from active life, he devoted many studious years. His purpose 
 was thus declared in his Preface : " My ambition has rather 
 been to contribute something to the welfare of my country bj^ 
 reviving the image of the ancient virtue of New England." 
 And this, though he also said, " With the belief I entertain I 
 could not have been admitted to any church founded by the 
 Fathers." 
 
 It is pleasant here to record his allusion in the Preface of his 
 work to two gentlemen in Ehode Island, now deceased, who 
 shared his profound interest in such historic studies. Of Mr. 
 John Carter Brown, he says: "Mr. Brown, to whom I am 
 indebted for access to some (books) not to be found else- 
 where, carried his generosity so far as to request me to take to 
 my own house as much of his choice and sumptuous collection 
 as my convenience might require." Of another, he says : "A 
 history of Ehode Island is announced from the able pen of Mr. 
 Samuel Greene Arnold. I regret that it has not appeared in 
 season for me to compare the conclusions I have reached in that 
 branch of inquiry with those of so well instructed and judicious 
 an inquirer." Such a man does not enter upon a discussion, to 
 
75 
 
 use the words of the pamphlet, " in a carping and hypercritical 
 temper, but in the large and sagacious but conservative tem- 
 per," and he thus discourses upon the question before us, when 
 opposing the adoption of the constitution of 1853 in Massa- 
 chusetts : — 
 
 " The fourteenth chapter contains certain provisions in re- 
 spect to future amendments of the constitution. In the first 
 place, specific and particular amendments may be made by cer- 
 tain action of two successive Legislatures, sanctioned by a sub- 
 sequent popular vote (Chap. XIV., Art. 3). Here the existing 
 constitutional provision to this effect is incorporated into the 
 new constitution. There is no change. Another article (2) 
 recognizes ' the power of the Legislature to take action for 
 calling a convention,' 'as heretofore practised in this Common- 
 wealth.' This (which comes in a proviso) may be thought 
 superfluous, as the practice has sufiiciently established the 
 right, which, indeed, did not need practice to establish it : and 
 if, in a hot party discussion, it has been professedly called in 
 question within the last two or three years, the fact that after 
 all the objection made, the practice has been followed up in yet 
 another instance, establishes it on a firmer basis than before. 
 The pnrty which recently opposed it and denied its legitimacy 
 has given in. At its more recent State convention, it declared 
 itself in favor of certain constitutional amendments ' to be ob- 
 tained, if possible, through the action of the Legislature ; and, 
 failing thereby, a new popular convention, based upon an 
 equality of representation.' These two methods of obtaining 
 constitutional amendments, which from time to time may be 
 desired, are already in force." 
 
76 
 
 CHARLES FOSTER TILLINGHAST. 
 
 Mr. Tillinghast was at the head of the delegation in the con- 
 vention fi'om Providence. He offered an amendment of the 
 provision for changing the constitution by legislative proposal 
 that the votes in the Assembly should be in grand committee 
 of the two houses ; and that the popular vote required should 
 be a majority and not, as now, three fifths (p. S9). In this 
 motion he shows the native fairaess and justness of his mind. 
 He would not put this method of change at the mercy of a 
 small fraction of the people in the small towns as represented 
 in the Senate, nor would he confer upon the minority the power 
 which belongs to the majority. His political wisdom and his 
 concurrence with the spirit of our American literty and civ- 
 ilization are shown by the fact that his amendment in regard to 
 the popular vote would have placed our constitution in this 
 respect in harmony with every provision for submitting any 
 constitutional question to the people which has been adopted 
 during the nineteenth century. It is now the only exception in 
 about a hundred instances. 
 
 Had his amendment been adopted, that corrupting element 
 which the pamphlet says has proved so destructive, would have 
 long since disappeared from the constitution, for the majority 
 of the popular vote has several times been given for its removal. 
 It is to be feared that there were some influences in the conven- 
 tion that anticipated the advantages which the janizaries of our 
 politics now obtain from the crowd of mercenaries from whom 
 they recruit their forces. Indeed, it is to be further feared that 
 if the good people of this State should attempt to remove this 
 plague from our system, the janizaries and mercenaries could 
 bring to the polls the necessary two fifths required under this 
 constitutional provision to defeat any measure of reform. 
 
 In speaking of Mr. Tillinghast, I may further say that he 
 was one of those men who are at all times the safety of State. 
 With a natural distaste for the contests of politics and even of 
 
77 
 
 the forum, he declined the offers of office, and only yielded at 
 last to such entreaties as the most scholarly of the leaders of 
 the Rhode Island party made to him in the words, "But won't 
 you accept if we will all come on our knees to you ? " The 
 phrase well expressed the anxiety felt by the hot-headed leaders 
 of the party at the result of their management. 
 
 Mr, Tillinghast felt that a change in the sufii-age and repre- 
 sentation was demanded by the best interests of the State. He 
 was not ready to accept all the methods adopted by the suffrage 
 party, at that time led by Mr. Dorr. 
 
 He stood between the opposing forces in their bitterness of 
 spirit, though acting with the law and order party, — a bitter- 
 ness of spirit which brought the State to the crisis of civil war, 
 averted by the intervention of the general government. Much 
 of that bitterness remains after the lapse of over forty years. 
 Such bitterness leads to civil war, but does not often outlast for 
 •so long a period the fever of an actual contest. May our State 
 profit by its sad experience, and make wholesome changes with 
 a generous justice. 
 
78 
 
 LIST OF THE CONSTITUTIONS MADE OK AMENDED 
 THROUGH CONVENTIONS. 
 
 Alabama 1819 
 
 Alabama (Amendment) . . . 1861 
 
 Alabama 1865 
 
 Alabama 1867 
 
 Alabama 1875 
 
 Arkansas 1836 
 
 Arkansas (Amendment). . . 1861 
 
 Arkansas 1864 
 
 Arkansas 1868 
 
 Arkansas 1874 
 
 California 1849 
 
 California 1879 
 
 Colorado 1876 
 
 Connecticut 1818 
 
 Delaware 1776 
 
 Delaware 1792 
 
 Delaware 1831 
 
 Florida 1838 
 
 Florida (Amendment) . . . 1861 
 
 Florida 1865 
 
 Florida 1868 
 
 Georgia 1777 
 
 Georgia 1789 
 
 Georgia (Amendments) . . . 1795 
 
 Georgia 1798 
 
 Georgia (Amendment) . . . 1861 
 
 Georgia 1865 
 
 Georgia 1868 
 
 Georgia 1878 
 
 Illinois 1818 
 
 Illinois 1848 
 
 Illinois 1870 
 
 Indiana 1816 
 
 Indiana 1851 
 
 Iowa 1846 
 
 Iowa 1857 
 
 Kansas 1855 
 
 Kansas 1857 
 
 Kansas 1858 
 
 Kansas 1859 
 
 Kentucky 1792 
 
 Kentucky ........ 1799 
 
 Kentucky 1850 
 
 Louisiana 1812 
 
 Louisiana 1845 
 
 Louisiana 1852 
 
 Louisiana 1861 
 
 Louisiana 1864 
 
 Louisiana 1868 
 
 Louisiana 1879 
 
 Maine 1820 
 
 Maryland 1776 
 
 Maryland 1851 
 
 Maryland 1864 
 
 Maryland 1867 
 
 Massachusetts 1780 
 
 Massachusetts (Amendment) . 1820 
 
 Michigan 1835 
 
 Michigan 1850 
 
 Minnesota 1857 
 
 Mississippi 1817 
 
 Mississippi 1832 
 
 Mississippi (Amendment) . . 1861 
 
 Mississippi (Amendment) . . 1865 
 
 Mississippi 1868 
 
 Missouri 1820 
 
 Missouri (Amendments) 
 
 1861 and 1863 
 
 Missouri 1865 
 
 Missouri 1875 
 
 Nebraska 1875 
 
 Nevada 1864 
 
 New Hampshire 1776 
 
 New Hampshire 1784 
 
 New Hampshire 1792 
 
 New Jersey 1776 
 
 New Jersey 1844 
 
 New York 1777 
 
 New York (Amendments) . . 1801 
 
 New York 1321 
 
 New York i846 
 
 New York (Amendments) . . 1867 
 
 New York (Amendments) . . 1873 
 
 North Carolina 1770 
 
79 
 
 North Carolina (Amendments) 1835 
 
 North Carolina (Revision) . 1861 
 
 North Carolina (Amendment) . 1865 
 
 North Carolina 1868 
 
 North Carolina 1876 
 
 Ohio 1802 
 
 Ohio 1861 
 
 Oregon 1857 
 
 Pennsylvania 1776 
 
 Pennsylvania 17!J0 
 
 Pennsylvania 1838 
 
 Pennsylvania 1873 
 
 Khode Island 1842 
 
 South Carolina 1790 
 
 South Carolina 1861 
 
 South Carolina 1865 
 
 South Carolina 1868 
 
 Tennessee 1796 
 
 Tennessee 1834 
 
 Tennessee (Amendments) . . 1865 
 
 Tennessee 1870 
 
 Texas 1845 
 
 Texas (Amendments) . . . 1861 
 
 Texas 1866 
 
 Texas 1868 
 
 Texas 1876 
 
 Vermont 1777 
 
 Vermont 1786 
 
 Vermont 1793 
 
 Virginia 1776 
 
 Virginia 1830 
 
 Virginia 1850 
 
 Virginia (Amendments) . . 1861 
 
 Virginia 1864 
 
 Virginia 1870 
 
 West Virginia .... 1861-1863 
 
 West Virginia 1872 
 
 Wisconsin 1846 
 
 Wisconsin 1848 
 
 One hundred and twenty-two in all. 
 
 CONSTITUTIONS FRAMED OTHERWISE THAN BY CONVENTIONS 
 
 1776 
 
 Connecticut (General Court) 
 Nebraska (Territorial Legis- 
 lature) 1866-1867 
 
 South Carolina (General As- 
 sembly) 1776 
 
 Sonth Carolina (General As- 
 sembly) 1778 
 
 CONSTITUTIONS WITH NO EXPRESS PROVISION FOR CHANGE 
 THROUGH LEGISLATURE OR CONVENTION. 
 
 Connecticut 1776 
 
 New Hampshire 1776 
 
 New Jersey 1776 
 
 New York 1777 
 
 North Carolina 1776 
 
 Pennsylvania 1790 
 
 South Carolina 1776 
 
 Virginia 1776 
 
 Virginia 1830 
 
 Virginia 1850 
 
 Virginia 1864 
 
 Eleven in all. 
 
 CONSTITUTIONS CONTAINING EXPRESS PROVISIONS FOR 
 AMENDMENT THROUGH CONVENTION ONLY. 
 
 Note.— The pages in the following tables refer to the Charters and Con- 
 stitutions of the United States, edited by Ben. Perley Poore. 
 
 Illinois (p. 446) 1818 
 
 Florida (p. 844) 1865 
 
 Georgia (p. 383) 1777 
 
 Georgia (p. 387) 1789 
 
 Georgia (p. 411) 1865 
 
 Indiana (p. 608) 1816 
 
 Kansas (p. 612) 1867 
 
 Kentucky (p. 654) .... 1792 
 
80 
 
 Kentucky (p. 665) 1799 
 
 Kentucky (p. 683) 1850 
 
 Louisiana (p. 707) 1812 
 
 Maryland (p. 859) 1861 
 
 Massachusetts (p. 972) . . . 1780 
 (Provision for one convention only.) 
 Mississippi (p. 1064) . . . 1S17 
 Nebraska (p. 1211) . . . 1866-7 
 New Hampshire (p. 1293) . . 1784 
 
 New Hampshire (p. 1307) . 
 
 1792 
 
 Ohio (p. 1461) 
 
 1802 
 
 Pennsylvania (p. 1548) . . 
 
 1776 
 
 Tennessee (p. 1673) . . . 
 
 1796 
 
 Vermont (p. 1865) . . . 
 
 1777 
 
 Vermont (p. 1874) . . . 
 
 1786 
 
 Vermont (p. 1882) . . . 
 
 1798 
 
 Twenty-three In all. 
 
 
 CONSTITUTIONS CONTAINING EXPRESS PROVISIONS POE CHANGE 
 THROUGH CONVENTIONS AND LEGISLATURE BOTH. 
 
 Alabama (p. 59) 1865 
 
 Alabama (p. 76) 1867 
 
 Alabama (p. 97) 1876 
 
 California (p. 203) 1849 
 
 California 1879 
 
 Colorado (p. 245) 1876 
 
 Delaware (p. 287) 1792 
 
 Delaware (p. 300) 1831 
 
 Florida (p. 328) 1838 
 
 Florida (p. 364) 1868 
 
 Georgia (p. 426) 1868 
 
 Georgia (restricts power to call 
 
 convention) 1878 
 
 Illinois (p. 465) 1848 
 
 Illinois (p. i90) 1870 
 
 Iowa (p. 549) 1846 
 
 Iowa (p. 664) 1867 
 
 Kansas (p. 591) 1855 
 
 Kansas (p. 627) 1868 
 
 Kansas (p. 641) 1869 
 
 Maine (as amended, 1876) . . 1820 
 
 Maryland (p. 884) 1864 
 
 Maryland (p. 917) 1867 
 
 Michigan (p. 991) 1835 
 
 Michigan (p. 1012) .... 1850 
 
 Minnesota (p. 1040 .... 1857 
 
 Missouri (p. 1155) 1865 
 
 Missouri (p. 1195) 1875 
 
 Nebraska (p. 1232) .... 1875 
 
 Nevada (p. 1262) 1864 
 
 New York (p. 1365) .... 1846 
 
 North Carolina (p. 1417) . . 1776 
 
 (As amended in 1835, authority for 
 
 convention restricted.) 
 
 North Carolina (p. 1435) . . 1868 
 
 (Authority for convention 
 
 restricted.) 
 
 North Carolina (p. 1450) . . 1876 
 
 Ohio (p. 1478) 1851 
 
 South Carolina (p. 1633) . . 1790 
 
 (Authority for convention 
 
 restricted.) 
 
 South Carolina (p. 1644) . . 1865 
 
 (Authority for convention 
 
 restricted.) 
 
 South Carolina (p. 1663) . . 1868 
 
 Tennessee (p. 1707) .... 1870 
 
 Texas (p. 1797) 1866 
 
 Vermont (as amended 1870) . 1793 
 
 Virginia (p. 1971) 1870 
 
 West Virginia (p. 1971) 1861 and 1863 
 
 West Virginia (p. 2016) . . . 1872 
 
 Wisconsin (p. 2040) .... 1848 
 
 Forty-four in all. 
 
 CONSTITUTIONS CONTAINING EXPRESS PROVISIONS 
 AMENDMENT THROUGH LEGISLATURE ONLY. 
 
 Alabama (p. 44) 1819 
 
 Arkansas (p. 108) 1836 
 
 Arkansas (p. 126) 1864 
 
 Arkansas (p. 149) 1868 
 
 FOR 
 
 Arkansas (p. 180) 1874 
 
 Connecticut is 18 
 
 Delaware (p. 278) 1776 
 
 Georgia (p. 396) 1798 
 
81 
 
 Indiana (p, 525) , 
 liOuisiaaa (p. 723). 
 Louisiana (p. 737) 
 Louisiana (p. 753) 
 Louisiana (p. 7C9) 
 Louisiana .... 
 Maine (p, SW) . . 
 Maryland (p. 828) , 
 Massachusetts (p. 973) , 
 
 (As amended 1822 
 Mississippi (p. 1077) . 
 Mississippi (p. 1094) 
 
 1851 
 1«45 
 
 1862 
 
 1804: 
 
 1868 
 1879 
 1820 
 1776 
 1780 
 
 1832 
 1868 
 
 Missouri (p. 1114) . 
 New Jersey (p. 1823) 
 New York (p. 1348) . 
 Oregon (p. 1505) . . 
 Pennsylvania (p, 1566) 
 Pennsylvania (p. 1590) 
 Rhode Island (p. 1612) 
 Tennessee (p. 1687) . 
 Texas (p. 1779) . . 
 Texas (p. 1821) . . 
 Texas (p. 1855) . . 
 
 Thirty in all 
 
 1820 
 1844 
 1821 
 
 1867 
 1838 
 1873 
 1842 
 1834 
 1845 
 1868 
 1876 
 
 CONVENTIONS CALLED WHERE THEltE WAS NO EXPRESS PRO- 
 VISION FOR CHANGING CONSTITUTIONS THROUGH LEGIS- 
 LATURE OR CONVENTION, OTHER THAN SECESSION OR 
 RECONSTRUCTION. 
 
 Connecticut, 18] 8 under the Constitution of 1776 
 
 Massachusetts, 1820 " <' « «' i78o 
 
 (The provision in the Constitution of 1780 
 
 being for one convention only, in 1795.) ' 
 
 New Hampshire <i «< n << I'jig 
 
 Constitution framed but rejected . . . " " " " 1776 
 
 New Hampshire, 1781 to 1783 n <i << <i ujq 
 
 New Jersey, 1844 « « « >t jy^g 
 
 New Yorli, 1801 (Amendments) .» n .. « jy^y 
 
 New Yorlc, 1821 <i .i <i « 1777 
 
 North Carolina, 1835 •< ■< << .1 1775 
 
 Pennsylvania, 1838 " " " " 1790 
 
 So'ith Carolina, 1778 i< '■ « .< 1775 
 
 Virginia, 1830 " " " " 1776 
 
 Virginia, 1850 " " " " 1830 
 
 Twelve in all. 
 
 LIST OF CONVENTIONS CALLED WHERE EXISTING CONSTITU- 
 TIONS CONTAINED EXPRESS PROVISION FOR LEGISLATIVE 
 AMENDMENT AND NONE FOR CONVENTION, OTHER THAN 
 SECESSION AND RECONSTRUCTION CONVENTIONS. 
 
 Arkansas, 1874, 
 Delaware, 1792, 
 Louisiana, 1852, 
 Louisiana, 1879, 
 Maryland, 1851, 
 Massachusetts, 1853, 
 Missouri, 1845, 
 Missouri, 1861-1863, 
 
 under Constitution, 
 
 1868. 
 
 1776, negative provision. 
 
 1845. 
 
 1868. 
 
 1776, negative provision. 
 
 17H0, as amended in 1820. 
 
 1820. 
 
 1820. 
 
82 
 
 Missouri, 1865, under Constitution 1S2(1. 
 
 New York, 1846, " " lti21. 
 
 Pennsylvania, 1873, " " 1S;'jS. 
 
 South Carolina. 171)0, " " 1778. 
 
 Tennessee, 1865, " " 183-t. 
 
 Texas, 1875, " " 1868. 
 
 Fourteen in all. 
 
 There are three cases where conventions were called without 
 following the mode provided for calling convenlions in the 
 existing constitution : — 
 
 Pennsylvania, 17.S0. Proxision of constitution, 1776, was, 
 that convention should bo called by the council of censors once 
 in seven years ; it was called by the Legislature in one of the 
 intervening years, 17<s;i. 
 
 Indiana, LS'il. A similar instance in Indiana. The con- 
 vention which framed constitution of 1h;-)() was called by 
 legislature in a ditleicnt year from that provided in the consti- 
 tution of 181(3. 
 
 Delaware, 1JS,")2. A third instance in Delaware. The 
 convention which framed constitution of 1851) was called under 
 the constitution of l-S.U, which required a vote of a majority of 
 all the citizens qualified to \'()to for representatives to call a 
 convention; but the convention (of 1852) was called by a 
 majority of those voting on the proposition to call a conven- 
 tion. 
 
 Tlicre are se\eral constitutions which, in tiieir express pro- 
 visions for con\'eiitions, use no langiiagc to confer such right, 
 but restrict or limit it as a recognized and existing right. For 
 instance, those of South Carolina in 1790 and lS(;r>, North Car- 
 olina in 177(j, and of Georgia in 1868 and 1878, and perhaps 
 others. 
 
 In 1861, the States of Alabama, Arkansas, Georgia, Louis- 
 iana, Mississippi, and Texas, whose constitutions contained 
 provisions for amendment by legislative proposals like our own, 
 and no special provisions for convention, eall(;d conventions 
 which changed their constitutions and passed ordinances of 
 secession. These acts of secession are not cited as precedents 
 
83 
 
 hut as illustrations that the modes of action in great crises 
 were considered in those States to be the same as those adopted 
 in North Carolina, South Carolina, and Florida, whose consti- 
 tutions did contain provisions for changes by means of conven- 
 tions, and of Vii-ginia, whose constitution provided neither 
 mode of change. And when those States were restored to the 
 Union, — the States of Alabama (1865), Arkansas (1868), 
 Georgia (1865), Louisiana (r864 and 1868), Mississippi (1865 
 and 1868), and Texas (1866), — according to the methods 
 approved and prescribed by the general government, new 
 constitutions were adopted through conventions. The same 
 method, in this respect, was observed in the restoration of the 
 seceding States, without regard to the provisions for legisla- 
 tive amendment in their constitutions. This approval by the 
 general government and by Congress, composed exclusively 
 of members from States which did not secede, is certainly 
 deserving of weighty considerations upon this subject. It is 
 more than an answer to the taunts upon the seceding States, 
 upon which reliance is placed in the pamphlet. 
 
 It will be seen by these tables that the American method of 
 change originally and generally is through convention. That 
 the two methods are expressly coexistent in forty-four constitu- 
 tions ; that in twelve instances, conventions have been called 
 when the constitution provided in terms for neither mode of 
 change. These are admitted by the pamphlet to be legal and 
 constitutional methods of change in such cases. The tables 
 show that in a larger number of instances,, fourteen, where the 
 constitution contained provisions for change through the Legis- 
 lature only, conventions have been called. These States are 
 Massachusetts, New York, Pennsylvania, Delaware, Maryland, 
 Missouri, Arkansas, Tennessee, South Carolina, Louisiana, and 
 Texas, — neither secession nor reconstruction instances. The 
 same course has been pursued under such constitutions, in six 
 instances of secession and eight of reconstruction, — fourteen 
 more instances illustrating the understanding of the people of 
 those States and of the general government ; beside three 
 instances, Pennsylvania, Delaware, and Indiana, in which the 
 special provisions for convention were not followed. Thirty- 
 
84 
 
 one instances in all in the history of the country, in which the 
 provisions of the constitution have not lx?cii regarded as restric- 
 tive of the riglit of the Legislature to provide by htw for ihc 
 calhug of a couvcntiou ; there is no known instance to tlie 
 contrary. 
 
 These are cases outside of Rhode Island; four limes she 
 called con entions under her charter by force of the general 
 legislative power, and under her present constitution t\vice has 
 she passed acts nf legislation providing for a convention, and 
 submitting the question of its assembling to the people. Ilcr 
 action in all this has been in harmony with that of her sister 
 States. Against all this we have nothing but the opinion of some 
 of her magistrates, — that well-known provisions and terms in her 
 constitution have a ditferent meaning from the same provisions 
 and teiTOs in all other American States constitutions. Suppose 
 tlie same judges should, as a Court, decide other questions of 
 law in the same way, and should give to their fellow-citizens, 
 instead of the settled law, precedent, and practice tliroughout 
 the country, their "I think it ought not to be so," for the hiw ! 
 
 AVe now come to some tables of cases which show how 
 generally the people of the States of this Union have acted 
 upon constitutional questions submitted to them, by majorities 
 and not by minorities. These tables would seem superfluous 
 to any constitutional student. But the pamphlet has taken 
 strange ground in its statement of knowledge, or rather want 
 of knowledge, on this subject. And our c(mstitution is in this 
 respect jieculiar, against the judgment of the most trustworthy 
 member of the convention, as he was the most trustworthy 
 counsellor of the great city he represented there.* There were 
 others in the convention who would, doubtless, have sustained 
 him had they made the matter one of special study or had not 
 the convention been assembled at a time when calmness 
 and faii'ness could not be expected from most men. And yet 
 the pamphlet calls its constitution " the crowning work of the 
 law and order party." 
 
 * Charles Porter Tillingliast, App. 7G. 
 
85 
 
 CONSTITUTIONS WITH PROVISIONS FOR AMENDMENT BY CON- 
 VKNTION ONLY, WHICH REQUIRE A MAJORITY VOTE OF 
 THE PEOPLE. 
 
 Majority required to call a Convention. 
 
 No provision for ratifying work of convention. 
 
 .Illinois, 1818. 
 Indiana, 1816. 
 Kansas, 1857. 
 Kentucky, 1792. 
 Kentucky, 1799. 
 Kentucky, 1850. 
 Louisiana, 1812. 
 Maryland, 1851. 
 Mississippi, 1817. 
 Nebraska,' 1866-1867. 
 Ohio, 1802. 
 Tennessee, 1796. 
 
 CONSTITUTIONS OF THIS CLASS REQUIRING MORE THAN A 
 
 Massachusetts, 1780, 
 New Hampshire, 1784, 
 
 New Hampshire, 1792, 
 
 MAJORITY VOTE ARE, — 
 
 Required to call a convention. 
 Two thirds of qnallfied 
 
 voters voting. 
 Provides for one convention 
 without submission of the 
 question to the people. 
 Majority. 
 
 Required to ratify work of 
 a convmtion. 
 
 No provision. 
 
 Two thirds of qualified 
 voters voting. 
 
 Two thirds of the qual- 
 ified voters votiug. 
 
 CONSTITUTIONS PROVIDING FOR LEGISLATIVE PROPOSALS ONLY 
 AND ADOPTION BY THE PEOPLE, WHICH REQUIRE A MA- 
 JORITY OF THE POPULAR VOTE. 
 
 Alabama 1819 
 
 Arkansas 1868 
 
 Arkansas 1874 
 
 Connecticut 1818 
 
 Indianna 1851 
 
 Louisiana 1845 
 
 Louisiana 1852 
 
 Louisiana 1864 
 
 Louisiana 1868 
 
 Louisiana 1879 
 
 Maine 1820 
 
 Massachusetts 1780 
 
 Mississippi 1832 
 
 Mississippi 1868 
 
 New Jersey 1844 
 
 New York 1821 
 
 Oregon 1857 
 
 Pennsylvania 1838 
 
 Pennsylvania 1873 
 
 Tennessee 1834 
 
 Texas 1845 
 
 Texas 1868 
 
 Texas 1876 
 
 Twenty-three in all. 
 
 (as amended in 18:iO). 
 Rhode Island requires three fifths of the popular vote to adopt an amend 
 ment. 
 
86 
 
 CONSTITUTIONS PROVIDING FOR CHANGES BY LEGISLATIVE 
 PROPOSAL, AND BY CONVl.NTION, WHICH EXPRESSLY UE- 
 nUlKE A MAJORITY VOTE OF THE PEOPLE. 
 
 Majority required to ratify 
 amendments made through 
 legislative proposal. 
 
 ALibama, 1805. 
 Alabama, 1867. 
 Alabama, 1875. 
 Califoruia, 18-49. 
 Califoraia, 187U. 
 Colorado, 1876. 
 
 Florida, 1808. 
 
 Geor-ia, 1868. 
 
 Georgia, 1878. 
 
 Illinois, 1848. 
 
 Illinois, 1870. 
 
 Iowa, 1846. 
 
 Iowa, 1857. 
 
 Kansas, 1.S55. 
 
 Kansas, 1858. 
 
 Kansas, 1859. 
 
 Maryland, 1864. 
 
 Maryland, 1867. 
 
 Micliigan, 1835. 
 
 Michigan, 1850. 
 
 Minnesota, 1857. 
 
 Missouri, 1865. 
 
 Missouri, 1875. 
 
 Nebraska, 1875. 
 
 Nevada, 1864. 
 
 New York, 1846. 
 
 North Carolina, 1835 
 (Amendment to Consti- 
 tution of 1770). 
 
 North Carolina, 186S. 
 
 North Carolina 1876. 
 
 Ohio, 1851. 
 
 Tenessee, 1870. 
 Texas, 1866. 
 Vermont, 1793-1870. 
 Virginia, 1^70. 
 West VifKinia, 1861-1803. 
 West Virginia, 1872. 
 Wisconsin, 1848. 
 
 ilajority to adopt Constitution M.ijority required to call Con- 
 or -Vmendraents framed by vcntiou. 
 Convention. 
 
 Alabama, 1865. 
 Alabama, 1867. 
 Alabama, 1875. 
 California, 1849. 
 
 Colorado, 1876. 
 
 Illinois, 1870. 
 
 Kansas, 1858. 
 
 Maryland, 1864. 
 Maryland, 1867. 
 
 Missouri, 1865. 
 Missouri, 1875. 
 Nebraska, 1875. 
 
 Ohio, 1851. 
 
 Colorado, 1876. 
 Delaware, 1792. 
 Delaware, 1831. 
 Florida, 1868. 
 
 Illinois, 1848. 
 Illinois, 1870. 
 Iowa, 1846. 
 Iowa, 1857. 
 
 Kansas, 1858. 
 Kansas, 1851). 
 Maryland, 1804. 
 Maryland, 1867. 
 Michigan, 1835. 
 Michigan, 1850. 
 Minnesota, 1857. 
 Missouri, 1865. 
 Missouri, 1875. 
 Nebraska, 1875. 
 Nevada, 1864. 
 New York, 1846. 
 
 North Carolina, 1876. 
 Ohio, 1851. 
 South Carolina, 1868. 
 Tennessee, 1870. 
 
 Virginia, 1870. 
 West Virginia, 1861-1863. 
 West Virginia, 1872. 
 Wisconsin, 1848. 
 
87 
 
 CASES IN WHICH CONSTITUTIONS HAVE ACTUALLY BEEN RATI- 
 FIED BIT A MAjourrr, without any express provision 
 
 EEQUIRING SUBMJSSION TO THE PEOPLE. 
 
 Name of State and Date of Oonstitatiou or 
 Amendment. 
 
 Alabama, 1867, p. 60. 
 Alabama, 187.T, p. 76. 
 Delaware, 1831, p. 289. 
 Florida, 1868, p. 847. See note. 
 Georgia, 1868, p. 411. 
 Illinois, 1848, p. 449. 
 Illinois, 1870, p. 470. 
 Indiana, 1851, p. 512. 
 Iowa, 1857, p. 552. 
 Kentucky, 1850, p. 668. 
 Louisiana, 1845, p. 711. 
 Maryland, 1864, p. 859. 
 Michigan, 1850, p. 995. 
 Missi.-sippi, 1832, p. 1067. 
 Nebraska, 1875, p. 1214. 
 New York, 1869. 
 Ohio, 1851, p. 1465. 
 South Carolina, 1868, p. 1646. 
 
 Tennessee, 1834, p. 1677. 
 Texas, 1868, p. 1801. 
 
 Convention held under the Constitution. 
 
 Alabama, 1865. 
 Alabama, 1867. 
 
 Florida, 1838. See note, p 347. 
 
 Georgia, 1865. 
 
 Illinois, 1818. 
 
 Illinois, 1848. 
 
 Indiana, 1816. 
 
 Iowa, 1846. 
 
 Kentucky, 1799. 
 
 Louisiana, 1812. 
 
 Maryland, 1851. 
 
 Michigan, 1835. 
 
 Mississippi, 1817, 
 
 Nebraska, 1866-67. 
 
 New York, 1846. 
 
 Ohio, 1802. 
 
 South Carolina, 1865, and Recon- 
 struction Acts. 
 
 Tennessee, 1796. 
 
 Texas, 1866, and the Reconstruc- 
 tion Acts. 
 
 The references are to Poor's " Charters and Constitutions." 
 
 The constitution of West Virginia of 1861-63 contained a 
 provision for a convention, and provided that the acts and ordi- 
 nances of such convention should " be submitted to the voters 
 of the State for ratification or rejection." Under this provision, 
 the existing constitution (of 1872) was framed by a conven- 
 tion, submitted to the people, and ratified by a majority. 
 
 No conventions have been held under the following consti- 
 tutions, which contain provisions for conventions, but no 
 provisions for ratifying the work of a convention. 
 
 Alabama 1875 
 
 Delaware., 1831 
 
 Florida 1868 
 
 Iowa 1857 
 
 Kansas 1859 
 
 Michigan 1850 
 
 Minnesota 1857 
 
 Nevada 1864 
 
 North Carolina -. 1876 
 
 South Carolina 1868 
 
 Tennessee 1870 
 
 Virginia 1870 
 
 Wisconsin 1848. 
 
88 
 
 These tables show that either by express provisions, in one 
 hundred and fifteen instances, or by uniform action even 
 without sueh provisions, in twentj^ cases, the power of the 
 people over their constitutions is exercised by the majority. 
 The only exceptions were in constitutions of New Hampshire 
 and [Massachusetts in the last century, and in the same consti- 
 tutions there was no provision for compensation to the owner 
 for property taken from him without his consent. The ideas 
 of constitutional right were at that time immature. The only 
 instance in which such an exception has been adopted in the 
 present century is in the existing constitution of Rhode Island. 
 This, with some other provisions, may be accounted for by the 
 fact that the convention which framed it was called at the same 
 time with an act of the legislature which declared martial law 
 in the State. The vote upon the adoption of the constitution 
 was seven thousand and twenty-four in favor, and fifty-one 
 against. At the first vote under the present constitution, sixteen 
 thousand five huudi'ed and twenty votes were cast. And all per- 
 sons authorized to vote under the constitution were authorized 
 to vote upon the question of its adoption, in addition to those 
 qualified under the previously existing law.* 
 
 MR. WEBSTER'S DOCTRINES ARE THOSE ADOPTED IN 
 
 THIS REPLY. 
 
 Mr. AVobstcr was more the champion of existing power and 
 privileges than of the rights of the people. lie it was who, 
 as secretary of state, induced President Tyler to promise the 
 support of the general government to the charter govern- 
 ment. He expressed at the same time " his very clear 
 opinion" that arrests and prosecutions should cease, and that 
 a convention should be called. | He was the retained counsel 
 of Rhode Island when in the control of the Law and Order 
 
 * The People's Constitution, it was claimed, was adopted by thirteen 
 thousiind nine hundred and forty-four votes. The names of all these voters, 
 and the town and ward of their residence, will be found in Appendix 106 to 
 Burke's Report, page 47i. 
 
 t Letter to John Whipple, May 9, 1842 ; Curtis's Life of Webster, VoL II. 
 p. 126. 
 
89 
 
 party, in the argument at Washington before the Supreme 
 Court ; yet he selected New York, with a provision for amend- 
 ment like our own,* and without a declaration in the Bill of 
 Eights, or aay express provision for a convention, as the type 
 of the American method of changing a State constitution. 
 The doctrines of this reply may he stated in his language, 
 " That the only source of political power in this country is 
 th3 people." (Vol. VI. p. 222, Eeply, 68. ) " He knew no prin- 
 ciple that could prevent a majority, even a hare majority, of 
 the people from altering the constitution." (IMassachusetts 
 Convention 1820, p. 407, R. 66.) " There is hardly one (State) 
 that has not altered its constitution, and it has been done by 
 conventions called by the Legislature as an ordinary exercise 
 of legislative powers." (Vol. VI. p. 227, R. 97.) "This (the 
 provision for legislative amendment) was not an exercise of 
 legislative power ; it was only referring to some branch of the 
 power of making proposition to the people." (Massachusetts 
 Convention 1820, p. 407, R. 67.) Of the purpose of such pro- 
 vision he further said, "It was therefore the opinion of the 
 committee that no provision for a revision of the whole consti- 
 tution was expedient, and the only question was in what man- 
 ner it should be provided that particular amendments might be 
 obtained." (Mass. Con., 417, R. 94.) Massachusetts had in one 
 constitution a provision for a convention which was not used. 
 (Constitution 1780.) She has repeatedly called conventions 
 "in the ordinary exercise of legislative powers." The one in 
 which Mr. Webster stood was an instance of this power. 
 
 THE DOCTRINE OF THE U. S. SUPREME COURT IN THE 
 RHODE ISLAND CASE. 
 
 The doctrines which underlie this question, and which are 
 much broader than what has been claimed in this discussion, 
 may be found in the decision in the Rhode Island case, in the 
 concluding words of the Supreme Court of the United States. 
 They are as follows : " No one, we believe, has ever doubted 
 the proposition that, according to the institutions of this 
 
 ' Requiring, of course, only a majority of the popular vote. 
 
90 
 
 country, the sovereignty in every State resides in the people 
 of the St:ite, and that tlioy may alter and change their form of 
 government at their own pleasure. But wln'thor they have 
 changed it or not, by abolishing an old government and estab- 
 lishing a new one in its place, is a question to be settled by the 
 political power. And when that power has decided, the courts 
 are bound to take notice of its decision, and follow it." 
 
 THE ACTION OF THE AMERICAN PEOPLE THE PROPEB 
 
 TEST. 
 
 The action of the American people, conceded by statesmen 
 and jurists to be the sovcrciiiu power, is shown in the tables 
 compiled in this appendix to lie so uniform that the opinion of 
 any man to the contrary is but as a dead leaf on the surface of 
 a mountain stream. 
 
 The power to provide for a convention by an act of legisla- 
 tion has Ijeen exercised in almost every State, including those 
 whose constitutions contain provisions for legislative amend- 
 ment only. The instances, so far as known, are given in these 
 tables. Xo State is known to have considered such provision 
 restrictive of the larg(a' power. It is deemed auxiliary to that 
 power, — less expensive and more convenient in some cases. 
 So in cases of sjjecial provision for conventions ; that has been 
 considered auxiliary, not exclusive of the original power. And 
 in some instances a power in terms restrictive has been held as 
 subordinate to the primary right of the people. 
 
 This historical view is the proper view of such questions. 
 The Supreme Court of the United States in the time of Marshall, 
 and as now constituted, has affirmed that an American constitu- 
 tion is an instrument which does not find its analogy, as the 
 opinion and the pamphlet suppose, in the common contracts of 
 citizens. It is the instrument through which the life of a State 
 manifests itself. 
 
 "A constitution, establishing a frame of government, de- 
 claring fundamental principles and creating a national sover- 
 eignt}', and intended to endure for ages and to be adapted to 
 the various crises of human affairs, is not to be interpreted with 
 
91 
 
 the strictness of a private contract. The constitution of the 
 United States, by apt words of designation or general description, 
 marks the outlines of the powers granted to the national legis- 
 lature ; but it does not undertake, with the precision and detail 
 of a code of laws, to enumerate the subdivision of those powers, 
 or to specify all the means by which they may be carried into 
 execution." (Gray, J., in Legal Tender Case, 110 U. S. 439.) 
 If this is true of the Constitution of the United States which 
 creates " a limited government, its powers are specific and 
 enumerated," yet more it should be the rule of construction 
 of State constitutions, "the legislature of which possess all 
 the usual and ordinary powers of .government, subject only to 
 limitations imposed" in the State or United States constitution, 
 — to use Mr. Webster's language (Vol. VI, p. 537), quoted in 
 Article, page 27. It is time that the unanimity of jurists upon 
 this question should be as complete as that of statesmen. 
 
 EFFECT OF THE PAMPHLET UPON THE DISCUSSION, 
 AND SUMMARY. 
 
 The question at issue is whether the power of the people 
 to decide to hold a constitutional convention, and to assem- 
 ble therein by delegates, and by such convention to frame a new 
 constitution, or changes in one already existing, and l^y a vote 
 of a majority of the people to adopt such changes (i)rovided the 
 whole proceeding is conducted i^ursuant to a law passed by the 
 General Assembly) , is taken from them by a provision in the 
 constitution authorizing the General Assembly to propose 
 amendments to be adopted by three fifths of the popular vote. 
 
 The pamphlet does not quote the question propounded by 
 the Senate, or state it. It does not quote or state the historic 
 facts out of which the question arises. It contents itself with a 
 statement of the question in the following terms : " The judges 
 maintained that the constitution having provided a mode for its 
 own amendment, the enactment of any diflferent mode by the 
 General Assembly would be void." That statement of the 
 opinion of the judges overlooks the facts that the grant of 
 legislative power, the declaration of the Bill of Eights, the 
 
92 
 
 Continuance Clauso of" tlio constitution, c;uh and all author- 
 ize another mode of chanii'e. 
 
 Those luovisions and the Amendment Chiuse are copied in 
 full, on jiages 70 and 71 of the reply. The pamphlet admits 
 that two of them contain this power; the other is express. The 
 pamphlet says: The opinion held that " in the absence of any 
 ex}iress provision, the Assembly would have the power to 
 initiate constitutional cliangcse.o necestfitatc" ; audthatthe article 
 claimed that "it was a legislative power included in the general 
 grant." Both the opinion and the article were considering 
 merely the right to pass an act providing for a convention. The 
 pamphlet adds: ''Doubtless, this (the position of the article) is 
 the better view." Again, of the declaration in the Bill of Eights 
 (not considered in the opinion), the pamphlet admits that con- 
 sidered by itself it confers the power to ])ass such an act. It 
 claims only "that such an act, l>cing inconsistent with the special 
 provision, is unconstitutional and void." See full quotations, 
 E. fi5, JSl. And it further says : "That if the declaratory clause 
 which was otfered and rejected in the convention which framed 
 our constitution had bctui adopted, we should find it difficult to 
 maintain that the special provision is exclusive and controlling " 
 (p. 41), E. ,S0). 
 
 And, again, the pamphlet says (p. 45) : "I will premise that 
 I admit that a legislature can provide for constitutional changes 
 to be ctFected by a mere majority vote, if the constitution con- 
 tains no restrictive i)rovision. The judges in their opinion 
 do not deny this. Precedents for such changes are, therefore, 
 not in point. There is no particular mode to follow, if there be 
 none prescribed." This admission is much broader than the 
 claim against which the pamphlet contends. 
 
 The continuance clause is an express grant of the power 
 (because previously exercised), unless elsewhere prohil)ited. 
 So that the whole question now is, whether the provision for 
 amendment is prohibitory of the power elsewhere given in 
 three provisions in the constitution. 
 
 The only attempt at affirmative reasoning is in the ar"-ument 
 that a grant of a power to propose amendments, which is in 
 
93 
 
 terms ns the pamphlet properly says " purely permissive," sub- 
 jects all the other grants of power in the constitution to the 
 limitations in the mode of their exercise impose! upon this special 
 power. Neither in this or in any other constitution has such an 
 intention been expressed. No constitution has in terms limited the 
 mode of change to this prescribed mode. In no State has it been 
 held that such limitation is implied. Xo such limitation is implied 
 from this language merely, in the opinion. The pamphlet thinks 
 this point " did not receive the {irominence it is entitled to, in 
 the opinion of the judges." The pamphlet stands alone. 
 
 The argument in another form is that " the literary structure 
 of the constitution requires that the grant of power as included 
 in the general grant shall be expressed in one place, and the 
 mode of exercising it prescribed in another." The grant and 
 the mode are together in the provision for proposal by the Assem- 
 bly. The argument tlaat the power to provide for a convention, 
 included confessedly in the general grant, is also limited by the 
 mode prescribed in the power to propose amendments, indi- 
 cates that confusion of ideas, as to the distinction between the 
 two, which pervades the pamphlet. (R. 72, 73.) 
 
 Mr. Payne well observes of Mr. Webster (page 56), "Tlrat 
 master of accurate thought never confounded the powder of the 
 Legislature to propose amendments to the people, with the 
 power of the people to change their constitution in a new exi- 
 gency, pursuant to an ordinary act of legislation providing for 
 a convention to frame a constitution to be submitted to them tor 
 their approval." Tliis is all there is of affirmative argument in 
 the pamphlet. 
 
 To return to the concessions. They are not made in candor. 
 The first was made while vainly seeking to convict the article 
 of inconsistency in claiming that the right in question existed 
 as a part of American common constitutional law, and also that 
 it was contained in the granted powers of the constitution. 
 The second, that a Bill of Eights may negative an inference from 
 the Amendment Clause, was made when seeking to "parry" the 
 force of the series of precedents cited in the article. With what- 
 ever intent made, the first concession is fatal to the argument 
 
91 
 
 of the opinion. The rule relied upon by • the judires is thus 
 stated hy them: "The ordinary rule is that where power is 
 given to do a thing in a particular way, then the affirmative 
 words marking out a particular wa,\- prohibit all other ways 
 by implication."' If power is given to do a thing in two ways, 
 one, of course, would not prohibit the other. Still less would 
 a particular way to do one thing exclude the way provided to 
 do another thing. 
 
 Kence the judges further say in their opinion, "If our con- 
 stitution had no provision for amendment, then, indeed, a power 
 in the Asseml)ly to call a convention or to initiate amendments in 
 some other manner miglrt be implied ex necexnitafe.'' To this 
 position the article replied, "That the power to jiass an act 
 providing for a convention " was contained "in the grant to one 
 branch of the government, of general legislative power. The 
 legislatui'e of our State has that power, unless prohibited, 
 as a part of its prerogative and riglit, not ex v.ecessi/d/e, as the 
 opinion says." The pamphlet says of the opinion of the judges 
 that the power existed " ex necessitate " by implication ; that 
 "Judge Bradley, correcting this, declares that the power is a 
 legislative power included in the general grant. Doubtless this 
 is the better view. This admission that the power in question 
 does not arise "ex necessitate'' by implication, but is includcsd in 
 the express grant of power to the Assembly, "undermines'' the 
 position of the opinion, which rests upon the rule which excludes 
 implied and not express powers ; and this, independcsnt of the 
 distinction, familiar and well known in the history of the country, 
 between the power to call conventions and the power to propose 
 amendments. And also, without regard to the suggestion of 
 pamphlet, that the Assem))ly may initiate amendments in any 
 mode, if none is provided. 
 
 The second admission in regard to the People's Constitution 
 (its declaration of rights was offered in the Landholders' Conven- 
 tion) which contained the same provision for amendment as the 
 present constitution, except that the adoption required (in com- 
 mon with universal American practice) only a majority vote, 
 concedes what was said in the article, — that no one would claim 
 in Khode Island that the Amendment Clause in the People's 
 
95 
 
 Constitution was exclusive and controlling. Neither do the de- 
 bates in the convention which framed the present constitution 
 give any intimation that the Amendment Clause was intended 
 to have such effect, or that, with the existing provision in the 
 Bill of Eights, it could have such effect. 
 
 The pamphlet says (what is important as to the intrinsic 
 weight of the opinion) that the judges were engaged in court 
 all the while (the five days) between the call for the opinion and 
 its delivery ; and also, that the Chief Justice had never made 
 a special study of those important questions ; he does not inti- 
 mate that any of the others had, and he takes upon himself 
 alone the defence of the opinion. Though the pamphlet does 
 not expressly admit, it does not deny the position of the article 
 that the opinion was merely advisory, not obligatory, and that 
 upon such questions the political department is to decide and 
 the courts to follow and obey. This silent acquiescence is im- 
 portant, considering the construction put upon the opinion by 
 the Journal and other papers.* 
 
 The indistinctness with which the pamphlet has spoken of 
 these points, and the great practical importance of them 
 because of the weight commonly given to any opinion of a 
 judge, seemed to require in reply a further consideration of 
 them. This, fortunately, has given to our readers the oppor- 
 tunity to peruse an exhaustive historical sketch of the law in 
 regard to these advisory opinions, from the pen of Professor 
 Thayer. From that it plainly appears that in England, whence 
 the practice originally came, they are always considered as 
 advisory merely, and frequently overruled and disregarded by 
 the legislative department which calls for them. 
 
 * The Journal said, March 31, 1883 : " It will be seen that the Court has, 
 with equal brevity and force, replied to the legal and popular propositions of 
 those who contend that the General Assembly can lawfully call a constitu- 
 tional convention. The question is concluded; whatever difference of opin- 
 ion may have been entertained as to the construction of the constituiion, this 
 unanimous opinion has conclusively construed it, and not only technically 
 but convincingly, upon the law and the precedents. The constitution having 
 been construed, and the members of the General Assembly being bound by 
 oath or affirmation to support this constitution, there can be no more agita- 
 tion in the Legislature as to method of procedure in matter of amendment. 
 
96 
 
 In this country, thoj were first adopted in ^Massachusetts, 
 then in Xew Hampshire, in the h\st century. Then in Maine 
 in iSi^O, when she was set off from Massachusetts. And in 
 1.S42 the provision was incorporated in the constitution of 
 Rhode Island ; perhaps, because her judges had, in the troub- 
 lous times of '42, given tiieir opinion, upon the recjuest 
 of certain citizens, — as nine distinguished hiwyers had given 
 an opposite opinion. AVhen judges and advocates are com- 
 batants against each other, justice takes her departure. 
 The A\\'l)ster constitutional convention of 1S20, in Massachu- 
 setts, rei)orted adversely to tliis provision of her constitution, 
 giving reasons which conclude as follows : " It highly concerns 
 the people that judicial oiEcers should not be involved in politi- 
 cal or part}- discussions."' * 
 
 Missouri adoi)ted a similar provision in 18(;,5. After experi- 
 ence, the pro\ision was omitted in the delil)erately framed con- 
 stitution of 1.S7.5. Florida adopted a like provision in 1<S(;,S. 
 
 The dangerous assertion of power made by the judges in 
 Maine stands alone. 
 
 The silent, yet almost universal rejection of this provision in 
 our State constitutions, shows the judgment of the American 
 people concerning it. Specially dangerous is it in a State 
 whose legislature has the power, by a majority vote of those 
 elected each year, to declare the seat of any judge vacant, and to 
 appoint his successor. 
 
 The law in Ilhode Island in regard to the advisory character 
 of an opinion of the judges given upon request, to any other de- 
 partment of its government, and also in regard to the fact 
 that the political, and not the judicial, departments are to deter- 
 mine political questions like those involved in a change of the 
 constitution of a State, is settled by its own tribunals. As to 
 the latter by the opinion of the Supreme Court in the Ehode 
 Island case just quoted (p. 89, App.), and by that of the 
 Supreme Court of the State in the Dorr trial (Articles 13, 14, 
 1.5, R. 41, 42, 4.3, 44). 
 
 The pampldct inadvertently brought to public attention the 
 conclusive decision of the Supreme Court of the State in Taylor 
 
 R. 41. 
 
97 
 
 V. Place, upon the advisory nature of such opinions. The Court 
 there said that an opinion of the judges, given upon request of 
 the General Assembly, " is not a decision of the Court,^' and 
 " has no weight as a precedent." The pamphlet made a per- 
 sonal attack upon the writer, who was counsel in that case, 
 based upon a brief report of his oral argument. Such a report, 
 not submitted to the speaker, usually has the modes of expres- 
 sion of the reporter, and at least gives only a general statement, 
 without the qualification used by the speaker. Besides, it is 
 the language of advocacy and not of judgment. Such an attack 
 is, of course, unfair, but it led to a research to see what the Court 
 decided (R. 43). And it may justify the writer in observing 
 that the counsel said nothing in reply to the citation by his op- 
 ponent of Art. 4, Sect. 10. It was, to his mind, unanswerable, 
 for the reasons so fully brought out )>y Judge Knowles in his 
 paper, quoted (p. 25 to 39, App.). As to the comprehensive 
 power intended to be given by the framers of the constitution, 
 and by those who voted for it, to the Continuance Clause of the 
 constitution, there can be no doubt (R. 83, 84, 85). 
 
 The opinion referred to an advisory opinion of the judges in 
 Massachusetts. Their opinion was carefullj^ examined and 
 fully quoted in the article to ascertain its meaning, and the 
 judgment of jurists, statesmen, and eminent citizens upon the 
 question in Massachusetts, cited and stated. To this no reply 
 was attempted, though the pamphlet proposed to answer every- 
 thing in the article. It contented itself with quoting one of 
 the answers in the opinion of the Massachusetts judges, and 
 then assumed with characteristic expressions that as the judges 
 said, "that there was no authority given" "for any specific 
 and particular amendment " " in any other manner," there was 
 none for a general revision, and ridiculed the idea that the 
 power of general revision was not included in that of amend- 
 ment. It so happens that Mr. Webster was chairman of the 
 committee which reported tlie amendment to the constitution in 
 1821. He then said, "That no provision for a revision of the 
 whole constitution was expedient, and the only question was in 
 what manner it should be provided that ])articular amendmentii 
 might be obtained." 
 
08 
 
 Tbiit the power to pass an sut providing for a convention, 
 together with the power to propose amendments, exists in 
 the Legislature of ^Massachusetts, according to the concuircnt 
 opinion of all, is shown by the statement of INIr. Pall'rey (iVpp- 
 74, 75), as well as by previous extracts trom the proceedings of 
 the convention. More could be added from the Nestor of the 
 liar, who was a member of the convention of l<>r)3, and others, 
 but it is unnecessary. (Art. 19, 20, 21, R. 90, 91, 92, 93, 94.) 
 One thing is certain, that if, as the opinion holds, "one of the 
 greatest of modern jurists, Chief Justice Shaw, was of the 
 same way of thinking " as our judges (which is not admitted), 
 we may expect that the same fate will come here, as that 
 which has' befallen such " a way of thinking " in Massa- 
 chusetts. It will have no followers. 
 
 The opinion did not refer to Mr. Wel)ster's views upon 
 the question ; the pamphlet does, but without bringing to 
 the notice of the readers any of the expressions relied upon by 
 its opponents. It gravely claims that Mr. Webster concealed 
 his real opinion, that the proceeding in New York was unconsti- 
 tutional and void, when he took it as the illustration of the 
 American method of change. Mr. AV^ebster's mind was not 
 small enough for such an evasion. Mr. Calhoun acknowledged 
 the respect for truth in discussion felt by his great ojjponent. 
 
 The pamphlet continues, and claims tiiat Mr. Webster is on its 
 side of this question, because Mr. Webster says that the people 
 may "limit themselves" and "secure their institutions" "against 
 the sudden impulses of mere majorities." His illustration is 
 taken from the constitution which created "an indissoluble union 
 of indestructible States " ; he did not take this amendment clause 
 in a State constitution as an illustration. His doctrine that no 
 principle can prevent a change by a majority, forbade that. But 
 the pamphlet thinks he meant to say, that in State constitutions, 
 the right to change is limited ; not by requiring that " constitu- 
 tions of government should be cautiously and prudently inter- 
 fered with," to use his own words, but by requiring " the con- 
 sent of more than simple majorities" ; and " so far as I know," 
 says the pamphlet, " there was no other way." 
 
99 
 
 The modes of proceeding are by repeated votes in the legisla- 
 tures, with special publication before the vote of the people, in 
 cases of amendment ; by act of legislation and vote of the people 
 upon calling a convention, and in the election of delegates and the 
 vote of the convention and people upon the constitution in cases 
 of revision. These are the methods to prevent "hasty changes by 
 simple majorities." The only method known to the pamphlet 
 exists in but one constitution adopted within the century. To 
 find in a constitution a provision for amendment requiring more 
 than a majority vote of the people, is going far enough away from 
 the fundamental doctrine of American constitutional liberty and 
 law ; to extend that departure hy implication so as to extinguish 
 the right of the people in any State to change their constitution 
 by law, convention, and popular vote combined, is impossible 
 for any one who does know what are the American methods of 
 change and the rights of a majority of the people. App. 85- 
 88 exhibits the historic facts called out by the pamphlet. 
 
 We should be grateful also to the pamphlet that it introduced 
 into the discussion, the legislation in the State in 1853. When 
 the history of that legislation, its purposes, and the causes of its 
 non-adoption by the people, are understood, those who were 
 concerned in it, and the friends of good government in the 
 State, have no occasion to regret that the effort was made. (R. 
 46, 47, 48, 49.) 
 
 While the pamphlet has thus furthered a right result in this 
 controversy, it has put one counter-weight into the scales, 
 which remains to be considered. The pamphlet closes with a 
 quotation from some memoranda found among the papers of the 
 elder Chief Justice Durfee, of a charge to the grand jury in 
 1843. The pamphlet places much reliance upon it, and as- 
 sumes, without reason as we shall see, that the opinion expressed 
 in the memorandum was acquiesced in by the public. The 
 mere opinion of any judge upon such a question, without special 
 study and consideration, and without discussion, is not entitled 
 to great weight. Burke has told us, long ago, of the eifect of 
 professional study and practice upon the mind. It narrows it. 
 Constitutional questions should he considered in a legal and 
 statesmanlike manner, as Marshall looked upon them. He ever 
 
100 
 
 remembered that it was a constitution he was interpreting. A 
 jurist may, uninstructed, take tlie view attributed to the ohler 
 Chief Justice in those troublous times. "We have seen how in 
 another elalx)rately written and published charge to a grand jury, 
 in 1842, he considered that the tribunal which was to pass upon 
 all the terrible questions which his excited mind beheld arising 
 from the trouble of the times, was the Supreme Coui-t of the 
 United States. When he came as a judge to consider and pass 
 upon that (luestion, he held that the political department, and not 
 the Court, determined them. When Mr. Bosworth, instructed 
 at that trial, stated this doctrine to Mr. Webster, preparing for 
 argument before the United States Supreme Court, he replied, 
 " That is the point of the case." And so said that Court. Is there 
 not reason to believe that our elder Chief Justice would have 
 changed his opinion upon this question, as he did upon that, 
 if he had given to it the consideration which should precede a 
 judgment to be acted upon? 
 
 The author of the pamphlet, unlike the pious son of old, has 
 thrown his father's memory into the flames which he has 
 kindled.* The pamphlet calls the act of the Assembly, reversing 
 the judgment in Dorr's case, " an unprecedented indignity." The 
 accusation makes necessary the publication of the preamble, 
 giving the reasons and grounds of the act, and also extracts 
 from the authentic report of the trial of Dorr, sustaining them. 
 (App. 17-22, 40-45; K. 50-53.) This writer would treat 
 the memory of the elder Chief Justice with tenderness and respect. 
 But these imputations from his son, now in the same high ofEee, 
 have compelled the quotation of these historic records in reply. 
 In them we see the impulsive force of a great nature per- 
 petrating the plainest errors. This writer is glad to repeat the 
 fact, before not publicly known, that the heart and the judgment 
 of the Chief Justice who presided at that trial, to his credit, were 
 against the proceeding : though when compelled officially to go 
 through it, he did it with his whole might, and without doubt, 
 
 * The article spoke of the opinion in terms as in fact, "with the 
 respect due to the high source from which it emanates," and used but one 
 personal word of regret that the judges had not taken more time ; a regret, 
 the pamphlet assures us, that the judges themselves felt. 
 
101 
 
 as he then thought, rightly in law, even when not sustained by 
 his colleagues, and yet most sadly in the wrong. 
 
 The pamphlet further assumes that this charge must have been 
 generally known, and that the absence of any dissent or discussion 
 is evidence of general consent to its doctrines. Thanks to the 
 pamphlet for the recognition of the right and the duty of those 
 who differ from advisory opinions of judges to express dissent 
 from them, else they "shoot up," to use Judge Ames's phrase, 
 into a right, and the advice comes to be regarded as a mandate, 
 submitted to by all. 
 
 A charge to a grand jury, more indulged in formerly than 
 now, was a discourse in which the judge allowed himself a free 
 rein in the expression of his personal opinion upon legal and 
 public questions. It bound no one. And a citizen would rarely 
 feel called upon to controvert it. No one would claim for it 
 the binding force which the Journal and other papers claimed 
 for the advisory opinion of the judges upon the pending 
 question. And at that time, no one would care to rake over the 
 ashes yet hot, of what was called a war, except upon some 
 sense of duty, for which there was no occasion. 
 
 Besides, the pamphlet is mistaken in the facts. It does not 
 appear that the charge was ever reported. The Journal, in an 
 editorial of Sept. 20, 1843, gives what it calls "a sketch of a 
 portion of it." In nearly a page, two sentences are given to 
 the doctrines now under discussion. Its closing denunciation 
 is, " that if we once establish the doctrine that the people without 
 law, and against law, are sovereign, that a mass of unorganized 
 individuals have power not only to transgress but to make law, 
 the last trumpet has sounded, and the day of doom to our gov- 
 ernment has come." The pam]phlet gives this passage as reading 
 between " doctrine " and " the last trumpet," " that an article 
 providing for the amendment of a constitution may be disre- 
 garded or a change of government effected without pursuing a 
 legal course," — a sharp contrast between the two reports, one 
 given to the public at the time, the other in this discussion. 
 
 The Herald of Sept. 23, 1843, refers to this sketch by the 
 Journal; and says it awaits the publication of "the charge at 
 length, as delivered from the bench," and adds, "It shall have 
 
102 
 
 a candid consideration." Oct. 21, 1848, it returns to the sub- 
 ject, and lays down its doctrine that " sovereignty has the same 
 power over the form that (roverument has over the laws made 
 pursuant to that form," and says "that sovereignty is in the 
 people," "though jMr. Durfee says, virtually, it reposes on the 
 government." This is more than " a trace of dissent." It is 
 plain, blunt antagonism. It is not believed that a " trace " of 
 approval can be found in the J<ninntl. Here, again, the pamphlet 
 mistakes its facts, and has no foundation for its inferences.* 
 
 The argument of the article was termed by Mr. Payne, an 
 historical argument. Many States were sjiccifiod, and the times 
 given in which conventions had been held and constitutions 
 framed and adopted, though the provisions considered by our 
 judges to be exclusive and controlling were found in the con- 
 stitution thus changed. 
 
 The i)amphlet professes to answer everything in the article. 
 Not one of these enumerated States is even mentioned in the 
 pamphlet. It stiites that changes in States, whose constitutions 
 contain no restrictive provisions, are not precedents. None 
 such were cited in the article. The pamphlet admits that in 
 such States, a convention is constitutional. Further research 
 has shown that the number of such conventions is twelve, Avhile 
 those held when the constitution contained this specific mode of 
 amendment is fourteen. The historical usage of the country is 
 mo're weighty in numljers and character, for the right as claimed 
 in the article, than it is for that conceded in the pamphlet. 
 There are, besides, many other cases strictly analogous (App. 
 81, 82, 83.) 
 
 The pamphlet further says: "Probably, the precedents, if 
 one only knew, are as numerous on the one side as the other." 
 It is speaking of the changes made, without following the 
 special provisions for amendment. Suppose a learned coun- 
 sellor in an argument in court, in reply to the cases cited a 
 year and a half previously in printed argument, should say, 
 "there are probably as many precedents on the other side," 
 
 *No documi-iit could therefore afford better proof of wliat was the 
 previileut construction of the conslilutlon at the time of its adoption. — 
 Paiiiphltt, 58. 
 
103 
 
 citing however none, would not his argument be received 
 with smiles, if not with pity ? 
 
 Again the pamphlet adds in the same style : the constitution 
 of those States may be in some respects different. Those con- 
 stitutions had been carefully compared in the article, both as 
 to the restrictive provision and the Declaration of Rights and 
 anj provision affecting this right. No attempt is made in the 
 pamphlet to point out any error in this regard. And the pam- 
 phkt says: "I have met all of Judge Bradley's arguments." 
 The supposition that there may be differences is not sustained 
 by a single instance in which even the pamphlet claims that 
 such difference is material. The concluding argument of the 
 pamphlet against those historic instances is the assertion that 
 four Out of the seven States were seceding States. Certainly 
 this pamphlet does not mean that the cases cited were cases of 
 secession, or even of reconstruction. Of the former, there 
 were, however, six; of the latter, eight. 
 
 The pamphlet further says : " I admit, however, that among 
 the cases of constitutional change cited by him there are cases 
 which go on all fours as precedents in his favor." Which are 
 those cases, or how many, it does not say. These generalities 
 and these conjectures justify a full re-examination of those cases. 
 Such research confirms all the statements made in the article- 
 (pp. 20, 21, 22, 23, 24, 25), and adds other cases to them. 
 (App. pp. 80, 81, 82, 83, 84.) 
 
 The instances are, first, that of Massachusetts. The unanimity 
 of her jurists, statesmen, scholars, and people were pointed 
 out in the article, 20, 21 ; Eeply, 90, 91, 92, 93, 94, and p. 74. 
 The example of this State is. important, because the supposed 
 opinion of her judges is the only precedent cited in the opinion 
 of our judges or in the pamphlet. If correctly understood 
 by them, the unanimous rejection of it is most instructive. 
 There was no clause in the constitution of Massachusetts like 
 the Continuance Clause in our constitution, or like the assertion 
 of the right to change, in our Bill of Rights. The repeated acts 
 providing for a convention in 1852 and 1853 rested upon the 
 general legislative powers. 
 
 The action of New York in 1846, calling a convention and 
 
104 
 
 adopting a constitution, is significant )>ccanso of the weiglit of the 
 Empire .State, leading as she does in most of the developments 
 of American institutions ; because of the eminent jurists of all 
 political parties who concurred in the nioNement, without any 
 opposition recognized in history ; and liccause her example is 
 selected by ilr. Webster as the type of the American mode of 
 constitutional cliange in State governments. The proceedings in 
 New York rested solely on the general legislative power. She 
 had no declaration of right upon the subject, or any provision 
 of the constitution for a convention (A. pp. 1(5, 17). 
 
 Then comes Pennsylvania, 1873. A question arose in that 
 State as to the rcspccti\c powers of the convention and the 
 legislature ; hence, the decisions of the courts of the State, and 
 of the convention in regard to them. Sufficient for the present, 
 that in the convention, was the Supre ne Court, "composed 
 of men of all parties," "of the l)est men of the State," when 
 a question arose as to providing in the new constitution 
 that the question of holding a convention should be submitted 
 to the people at fixed periods as in New York, Ohio, and 
 other States, it was repeatedly urged in argument, and without 
 dissent, that no one questioned the right of the Assembly to 
 provide by act for a convention whenever it pleased ; and no 
 provision in regard to a convention was embodied in the new, 
 the present constitution. There was no controversy or doubt 
 in legard to such power to be allayed or removed l)y an express 
 provision. 
 
 The constitution of Pennsylvania containing provision for 
 amendment, like our own, contained also a declaration in the 
 Bill of Rights of the rights of the people to change their consti- 
 tution, "in such manner as they may think proper." The 
 Supreme Court says that an act j^roviding for a convention is 
 there constitutional. The Supreme Court of Alabama holds 
 the same doctrine. No court ever held otherwise. Our Bill 
 of Rights says that, " an explicit and authentic act of the whole 
 people " may change our constitution. Proceeding imdcr an 
 act of legislation providing for a convention and a popular vote 
 upon the proposed constitution, is universally recognized as 
 an explicit and authentic act of the whole people. The 
 
105 
 
 pamphlet claims that this admitted right is overridden hy the 
 special provision for another mode of change. This claim 
 received no countenance from the courts in Pennsylvania. It 
 was overruled there. (A. 22, A. pp. 86, 87, 88, 89.) 
 
 Missouri in 1845, 1861, 1863, 1865, called conventions. She 
 had provisions for amendment through legislature ; none for a 
 convention ; with a declai-ation of the right of the people to 
 change the constitution. 
 
 Louisiana in 1852 and in 1879 called conventions, each of 
 which framed constitutions which were adopted by the people. 
 She did the same in 1864, 1868, under the reconstruction acts 
 of Congress. In each instance her existing constitution con- 
 tained provision for change by vote of legislature, special pub- 
 lication, and vote of the people. No provision for convention 
 nor declaration of rights upon this subject, in either constitu- 
 tion. But we cannot delay upon each instance. 
 
 Tennessee in 1865, Texas in 1876, Arkansas in 1874, Mary- 
 iJind in 1851, Delaware in 1792, South Carolina in 1790, with 
 all the others, show the same consent, in the latest and earliest 
 and intermediate times of our constitutional history. 
 
 No answer is attempted to all this array of precedents, ex- 
 cept that some of these States once attempted to secede, and 
 that Rhode Island will decide for herself. The first answer is 
 unworthy of reply. As to the second, Ehode Island will be 
 guided by her enlightened conscience, and not by a capri- 
 cious will, in deciding upon the claims submitted to her just 
 judgment by her citizens. 
 
 The spirit of the pamphlet is shown in its opening charge 
 that some one has " flippantly maligned " those it feels called 
 upon to defend. It gives no illustration or evidence. It is the 
 not uncommon device of making an attack under the pretence 
 of makino- a defence. Its method is to state the positions it 
 assails in its own terms, and never in those of its opponents. 
 Some essential mistakes thus made were pointed out in the re- 
 ply (pp. 58-64). The purpose of the pamphlet (apart from 
 assault) seems to be to give the opinions of the author to his 
 fellow-citizens as if they were final judgments, rather than to 
 discuss the facts or principles involved in the discussion. 
 
lOG 
 
 The style of tho composition is rich and carefully clalioratcd. 
 Many passages from it, including its principal statements, are 
 fully quoted in the reply and Appendix. 
 
 Mr. Pajne, in the close of his al)lc articles (App. 45, 69), 
 quotes fi-om the master of political wisdom, Burke : "Justice is 
 itself the great standing policy of civilized society." The poet, 
 who walked the loftiest heights, beheld in his vision of Paradise 
 the angels of God and heard their words to magistrates on earth, 
 the words of Hebrew iScripture, — "Love justice." What a 
 descent from cither heavenly or earthly wisdom to the doctrine 
 of the pamphlet, " ^\'itllout law, might is right, and weakness 
 is duty." 
 
 Let men, in making or applying the organic law of the State, 
 beware and not trifle with justice. 
 
INDEX AND ANALYSIS. 
 
 I. Questions proposed hy the Senate of Rhode Island to 
 
 the Judges of the Supreme Court, March 24, 1883. 
 (1) If the General Assembly should pass an act 
 providing for a convention to frame a new constitu- 
 tion, and if the people should vote to call such 
 a convention and elect the members thereof; and 
 if the constitution framed by such convention 
 should be adopted by a majority of the electors, 
 either under the existing or the proposed constitu- 
 tion, all proceedings being pursuant to such law, 
 whether such constitution would become the legally 
 adopted constitution of the State. (2) The same 
 question, omitting the vote of the people to call a 
 convention ........ 5, 6 
 
 II. Opinion of the judges in answer to these questions, 
 
 " that the mode provided in the constitution for its 
 own amendment [that of proposal by the Legisla- 
 ture to the people] is the only mode in which it can 
 be constitutionally amended," and the reasons there- 
 for, March 30, 1883 6-10 
 
 (1) The rule of law is, that one way provided 
 for doing a thing " prohibits all other ways by 
 implication." 
 
 (2) This rule applicable to constitutions. Chief 
 Justice Shaw and his associates " of the same way 
 of thinking." 
 
 (3) " It is inconceivable to us that they would 
 have elaborated so guarded a mode of amendment 
 unless they had intended to have it exclusive and 
 controlling." 
 
 (4) Without such provision the power " might 
 be implied ex necessitate." 
 
108 
 
 rAQE 
 
 (5) The power to frame a new constitution is 
 included in tlie power to make "specific amend- 
 ment." 
 
 (6) The clause continuing the powers heretofore 
 exercised not applicable, because the amendment 
 clause is exclusive and prohibitory. Taj-lor v. 
 Place, cited. 
 
 (7) Any other law for change would be " revo- 
 lutionarj-" and not "constitutional.'' 
 
 III. Article written by Charles S. Bradley in the Providence 
 Journal, May 31, 1883, on the method of reform 
 of State constitutions (pp. 11-33). 
 
 (1) The nature of the question and the circum- 
 stances under which the opinion was given . . 11-13 
 
 (2) That such an opinion is advisor}', not 
 obligatory, and refers to a political question to be 
 determined by the political department of the 
 government. (See R. 40, app. 5-16) . . . 13-15 
 
 (3) That the power of the people to amend their 
 constitution in the mode described in the question 
 was affirmed by the counsel of the State in the 
 Supreme Court of the United States, Mr. "Webster 
 citing in his argument the proceeding in New 
 Yorlf, and the previous history of the country as 
 having established " a uniform current of law, of 
 precedent, and of practice" on the subject . . 15-18 
 
 (4) The same view taken of the question in 
 Massachusetts (herein is considered an opinion of 
 her judges), and in New York, Pennsylvania, Mis- 
 souri, Louisiana, Arkansas, Texas, Tennessee, 
 Mississippi. The doctrine affirmed by the courts 
 in Pennsylvania and Alabama. The same course 
 pursued in the States of Alabama, Arkansas, 
 Georgia, Louisiana, Mississippi, Tennessee, and 
 Texas, under their reconstruction acts, with the 
 approval of the general government. The two 
 methods of change, through legislature and conven- 
 tion, have thus coexisted in practice throughout 
 the country. They have also coexisted in terms 
 in more constitutions than there are now States 
 in the Union. (See tables, App. 78 to 84.) Our 
 
109 
 
 PAGE 
 
 judges are alone in considering the provision for 
 change through legislative proposal, " exclusive 
 and controlling " 18-26 
 
 (5) The rule relied upon in the opinion of the 
 judges, that afQrmative words marking out a par- 
 ticular wa3' prohibit others by implication, consid- 
 ered and shown not to be applicable. (See R. 65, 
 
 66, App. 92, 94) 26-29 
 
 (a) Because the rule is not applicable in stat- 
 utes to cases of similar rights, nor is it applicable 
 to constitutions. 
 
 (6) Because the constitution in three separate 
 provisions secures the right. It does not arise from 
 implication as the judges assume. 
 
 (c) The two ways are so practically different 
 that one does not exclude the other. The test of 
 an implied prohibition in a constitution being that 
 one way must be exclusive or else it can "have no 
 operation at all," in Marshall's language. 
 
 (6) Peculiar provisions in the constitution, 
 and some facts in the history of Rhode Island, bear- 
 ing upon the question ...... 29-33 
 
 IV. Reply to a pamphlet, entitled " Some Thoughts on 
 the Constitution of Rhode Island, by Thomas 
 Durfee. November, 1884" (pp. 34-104), the 
 writer of the pamphlet being Chief Justice of the 
 State, and the pamphlet purporting to be in the 
 main a " counter argument " to the article. 
 
 (1) Reply to the prefatory part of the pam- 
 phlet touching the origin of the present constitution 
 
 and the reasons for a change therein . . . 34-36 
 
 (2) The pamphlet shows that the opinion was 
 prepared while the judges were engaged in couct, 
 and without previous study of the questions in- 
 volved, and under circumstances that especially 
 
 called for caution ....... 37-40 
 
 (3) Such an opinion advisory and not obliga- 
 tory, and upon a political and not a judicial ques- 
 tion. (See Art. pp. 13-15) .... 40-44 
 
 (Appendix, see Professor Thayer's article, 
 pp. 6-16.) 
 
 (4) Previous action in Rhode Island upon this 
 
110 
 
 rAOB 
 
 subject in submitting the question of calling a con- 
 vention to a vote of the people and the election of 
 delegates bj- them, both for a general and partial re- 
 vision of the constitution in 1853 .... 46-49 
 
 (5) The pamphlet charges that the General 
 Assembly of 1853 approved of the doctrine adopted 
 by Thomas W. Dorr, and committed " an unpre- 
 cedented indignity " in passing an act annullinii the 
 sentence and judgment against him. The grounds 
 
 of that proceeding stated ..... 50-53 
 (See Appendix, pp. 17-45.) 
 
 (6) Historic origin of the question under dis- 
 cussion. Its terms as propoocd by the Senate to 
 
 the judircs, and their answer ..... 54-58 
 
 (7) The differences between the position of the 
 article as stated by itself and stated by the pam- 
 phlet. Those differences shown by full quotations 
 
 from each 58-64 
 
 (8) The pamphlet differing from the opinion in 
 this, that the authority of Assembly to call a con- 
 vention is derived from its legislative powers and 
 not ex necessitate by implication, shows that the 
 
 rule upon which the opinion is based does not apply, 65, 66 
 (See Appendix, pp. 92, 93, 94, and 26-29.) 
 
 (9) The facts of our history show that our 
 American State constitutions rest upon the princi- 
 ples : First, that the people are sovereign ; second, 
 that the majoritj' express that sovereign power ; 
 third, that they generally act through conventions, 
 and by their own suffrages ; fourth, that they act 
 sometimes by their suffrages upon legislative pro- 
 posals, when there are special provisions therefor 
 in the constitution ; fifth, that the latter method has 
 in no State superseded the other. These methods 
 coexist in the Swiss Republic. These facts and 
 principles not admitted by the pamphlet . . 66-70 
 
 (See tables showing these facts in Appendix, 
 pp. 78-84, and pp. 102-105.) 
 
 (10) Three clauses in the constitution of Rhode 
 Island, under which power to call a convention may 
 be exercised, and the clause of the constitution 
 providing for amendments, quoted . . . 70, 71 
 
Ill 
 
 (11) The argument of the pamphlet upon the 
 language and supposed meaning of the Amend- 
 ment clause considered ..... 72-74 
 
 (See appendix, pp. 92, 93.) 
 
 (12) The two modes of change, through con- 
 vention and legislative proposal ma}' naturally 
 coexist, as they in fact, in many instances, do in 
 the history of the country. The reasoning of the 
 pamphlet contrasted with that of Mr. Jameson . 74-78 
 
 (See App., pp. 92, 93 ; Tables, pp. 78-84.) 
 
 (13) The provision in the Bill of Rights secures 
 the power to call a convention to the people and 
 the Legislature. That it does so of itself, is ad- 
 mitted in the pamphlet. The argument that the 
 provision for amendment prescribes the only mode 
 of constitutional changes, renders the provision in 
 the Bill of Rights a nullity, though the consti- 
 tution itself declares that the Bill of Rights is to be 
 of " paramount obligation in all legislative, judicial 
 
 and executive proceedings " . . . . . 78-83 
 
 (14) The peculiar provisions of the Rhode 
 Island constitution, that "the General Assembly 
 shall continue to exercise the powers they have 
 heretofore exercised, unless prohibited in this con- 
 stitution," in connection with the historic fact that 
 they had previously four times called a convention, 
 and in the light of the history of the adoption of 
 
 that provision, must be held to confer this power . 83-85 
 (Appendix, pp. 23-29 ; opinions of Judge 
 Knowles and James F. Simmons.) 
 
 (15) The courts of Pennsylvania and its con- 
 stitutional convention entertain no doubt of the 
 existence of the power in question . . . 86-89 
 
 (Appendix p. 104.) 
 
 (16) The jurists and statesmen of Massa- 
 chusetts are now all united in the opinion that this 
 
 power exists ....... 90-95 
 
 (Appendix, Mr. Palfrey's statement, pp. 74, 75.) 
 
 (17) Mr. Webster considers this right as a part 
 of our system of American constitutional law. 
 Mistakes of the pamphlet in regard to his meaning, 
 considered. Summary of Mr. Webster's positions, 95-99 
 
112 
 
 rA«E 
 
 (Appendix, pp. 85-88, for tables showing that 
 the people of the States act by mnjoritios in 
 constitutional questions, Rhode Island being the 
 only exception in this cpninvy. App. 88, 89.) 
 
 (18) Charge by the elder Chief Justice Durfee 
 
 to a grand jury in 1843 considered . . . 90-103 
 
 (Appendix, pp. 99-102.) 
 
 (19) Conclusion, quoting Jameson that this 
 doctrine of constitutional reform had, not without 
 dissent, the consent of the wise, and flntdly, the 
 acquiescence of all ...... 103, 104 
 
 APPENDIX. 
 
 Article by Prof. James B. Thayer of the Harvard Law 
 School, showing that opinions given by judgi's to 
 the legislature and the executive are advisory 
 only ........ 5-10 
 
 (1) That the constitutional provision allowing 
 such opinions exists in five States only, having 
 been intioduccd first in Massiichusetts in 1780, and 
 copied thfnce by New Hampshire in 1784, Maine 
 in 1820, and Ehode Island in 1842 ; that Missouri, 
 introducing it partially in 1865, dropped it in 1875 ; 
 and that Florida introduced it in a modified form 
 
 in 1868 . . . 5, 6, and " Supplementary Note." 
 
 (2) That JMassachusetts copied the provision 
 from England, where such opinions have always 
 
 been recognized as advisory only .... 6-9 
 
 (3) That ihey are held to be advisory, and not 
 obligatory. 
 
 (a) In Massachusetts 9, 10 
 
 (6) In New Hampshire . . 10-12 
 
 (c) In Ehode Island ... . 12 
 
 (d) In Missouri .... . 14-16 
 
 (e) In Florida (it seems). 
 
 See " vSupplementary Note. 
 (See 16 Florida reports, title "Advisory 
 Opinion.") 
 
 (4) That in Maine alone the judges, in giving 
 one of their opinions, have, without discussion and 
 
113 
 
 PAGE 
 
 witliout anjf citation of authority, declared siicli 
 opinions to b; obligatory . . . . . 13, 14 
 
 But in Maine, also, contra (per Kent, J.). 
 
 "It is true, unquestionably, tiiat the opinions 
 given under a requisition like tliis [from the execu- 
 tive council] have no judicial force and cannot bind 
 or control the action of anj' officer of anj' depart- 
 ment." 58 Me. 564. And so Tapley, J., ib. 591. 
 
 (5) That the answer of the judges of the Supreme 
 Court of the United States to Washington, asking 
 for an opinion, in 1793, shows that under the 
 American system the judges have no power to give 
 such opinions, except by express constitutional pro- 
 vision. 
 
 VI. Act of the General Assembly of Rhode Island annul- 
 
 ling the judgment for treason against T. W. Dorr, 
 and the preamble giving the grounds and reasons 
 therefor 17, 18 
 
 VII. Judgment by the Supreme Court of Rhode Island in 
 
 regard to the advisory opinion of the judges upon 
 
 the Reversal Act, Taylor «. Place, 4 R. I., 362 . 19, 20 
 
 VIII. Acts of reversal in England and Massachusetts . 21, 22 
 
 IX. An examination by the Hon. John, P. Knowles, late 
 
 judge of the District Court of the United States 
 for Rhode Island, published in 1858, of the consti- 
 tutional question of the judicial power of the Gen- 
 eral Assembly of Rhode Island, and of the history 
 of that question under the present constitution, 
 showing the existence of that power . . . 23-38 
 
 X. Opinion of the Hon. James F. Simmons, who was the 
 
 leading mind in the convention that framed the 
 constitution, published in 1859, announcing the 
 same conclusion ....... 39 
 
 XI. Extracts from the report of the trial of Thomas W. 
 
 Dorr for treason, showing in part the proceedings 
 in that cause. (The Court forbade the publication 
 of the evidence during the trial, and there was no 
 report of the proceedings in the motion for a new 
 trial, or for a writ of error, except the one quoted in 
 the appendix. It was reprinted with Burke's Re- 
 port) ' . . . . 40-45 
 
 XII. Articles of the Hon. Abraham Payne upon this con- 
 
lU 
 
 rAOK 
 
 stitutional question, published in the Providence 
 
 Press in 1883 and 18.S-1 45-69 
 
 i^iiiestions before Ihe Geiicial Asscmbl3' and tlie 
 people, 45. — These questions blended and confused 
 b3' Mr. Sheffield, 46. — Mr. ;Sheffield's misuse of 
 the word " revolution." 47. — The right of tlie people 
 to frame a coiisiitution never denied, 47. — The real 
 question is. Do the people desire a new coustitu- 
 tion? 47. — Certain principles assumed, 48. — 
 What is an explicit and authentic act of the whole 
 people, 48. — Tlie report of the committee of the 
 General Assembly, 4'J. — Wliat is proposed to be 
 done, 49. — Tlie opinion of the judges, 50. — 
 What weight it has, 51. — The relation of the Gen- 
 eral Assembl_y to the people, 51. — The opinion of 
 the judges criticised, 52. — An explicit and authen- 
 tic act of the whole people defined, 53. — The mode 
 of proceeding, 55. — Amendments, 56. — Wliat 
 questions will be considered by a convention, 56. — 
 Revision of the constitution by a convention con- 
 servative and safe, 57. — Mr. Dorr's theories, 58. 
 — Mr. Webster's view, 59. — What the political 
 people is, 59. — The opposing theories contrasted, 
 
 60. — The expediency of holding a convention, 
 
 61. — The number and character of the petitioners, 
 
 62. — Are the people satisfied? 63. — True conser- 
 vatism, 64. — Hazard, Sheffield, and Anthony on 
 suffrage in Rhode Island, 65. — The Whig cam- 
 paign of 1840, 66. — Thomas W. Dorr, his actions 
 and its results, 67. — The importance of the de- 
 cision, G«. 
 
 XIII. A reply to some statements upon this question, by 
 
 the Hon. Wm. P. Sheffield, chairman of a com- 
 mittee of the Assembly ..... 70-73 
 
 Extract from the report of the majority of the 
 committee, stating the positions adopted by the 
 judges afterwaril. 
 
 XIV. Statement of the Hon. J. G. Palfrey as to the ques- 
 
 tion in Massachusetts . . . . . . 74 75 
 
 XV. Charles Foster Tillinghast, his position in the con- 
 
 vention, and his motion in regard to the provision 
 
 for constitutional amendment . , . . 76 77 
 
115 
 
 PAGE 
 
 XVI. Tables showing a list of constitutions : — 
 
 (a) Made or amended through Conventions 
 
 (122 in all) 78, 79 
 
 (6) Framed otherwise than by Conventions 
 
 (4 in all) 79 
 
 (c) Containing no express provision for change 
 through legislature or convention (11 in all) . 79 
 
 (d) Containing express provisions for amend- 
 ment through convention only (23 in all) . . 79, 80 
 
 (e) Containing express provisions for change 
 through conventions and legislature both (44 in all). 80 
 
 (/) Containing express provisions for amend- 
 ment through legislature only (30 in all) . . 80 
 
 (g) Conventions called without express provis- 
 ions for convention or legislative proposal (12 
 in all) , not secession or reconstruction ... 81 
 
 (/t) Conventions called when constitution con- 
 tained provisions for legislative amendment, and 
 none for convention (14 in all), not secession or 
 reconstruction ....... 81 
 
 (i) Other instances of conventions analogous 
 to the last class (17 in all) 82,83 
 
 Summary of the tables and statement of the 
 Rhode Island instances . . . . . . 83, 84 
 
 (See special observations on Massachusetts, New 
 Tork, Pennsylvania, Missouri, Louisiana, and 
 others; Article, p. 18-26; App. pp. 103-105.) 
 XVII. Tables which show that the action of the States 
 
 upon the constitution is determined by the ma- 
 jority of the people. 
 
 (a) Constitutions requiring a majority of popu- 
 lar vote to call a convention, 13 ; one exception . 85 
 
 (6) Constitutions requiring a majority to adopt 
 legislative proposal, 23 ; one exception ... 85 
 
 (c) Constitutions containing provisions for con- 
 vention and legislative proposal which expressly 
 require a majority to ratify proposals, 37 ; a 
 change framed by convention, 9 ; a majority to 
 
 call convention, 32 ..... . 86 
 
 (d) Cases where adopted by majority, though 
 
 not expressly so provided, 40 ... . 87 
 
 Summary of these tables showing Rhode Island 
 to be the only exception in this century ... 88 
 
116 
 
 I'ACIE 
 
 XVni. The positions relied upon quoted from Mr. Webster 
 and slated bj' the Supreme Court of the U. S. in 
 the Rhode Island case, Luther u. Borden . 88, 89, 90 
 
 XIX. The rule for the interpretation of constitutions, as 
 
 declared by Ch. J. Marsliall and l)y the present 
 Supreme Court of the United Slates, 110 U. S. I.".'.), 90, 91 
 
 XX. Effect of the pamphlet upon the discussion and 
 
 summary, (a) A precise statement of the question 
 not found in the pamphlet. (&) It admits tliat 
 tlie grant of legijhitive power includes the right 
 in question, (c) Also that tlie bill of lights of 
 itself includes it !)2, 93, 94 
 
 (d) The argument of the pamphlet, derived 
 from the terms of the amendment provision, con- 
 founds tlie two metliods of change . . . 9-, 93 
 
 (SeeR. pp. 72-78.) 
 
 (e) The pamplilet, l)^' its statement of fads, 
 diminishes tlie intrinsic weiglit of the opinion. Tlie 
 construcUon of the le^al force of the opinion placed 
 up(jn it at the time has been demonstrated to be 
 entirely erroneous ...... 95, 96 
 
 (Sec Prof. Thayer's paper, App. 5-16, Art. 
 13-15, U. 40-14.) 
 
 (cZ) The reference of the pamphlet to Taylor v. 
 Place, to the opinion of ihc Massachusetts judges, 
 to the statement of Mr. Webster, and to the legis- 
 lation of bSM:-!, has brought out further facts which 
 confirm the positions taken in the article . 96, 98, 99 
 
 (e) The relerence to the charge of the elder 
 Chief .lustice Durfee, when the matter is fully con- 
 sidered, brings but little adverse weight into the 
 discussion. This is shown by the nature of a 
 charge marie to a giand jury, and by the error of the 
 Chief Justice in a prcvinus charge. Tlie public 
 press shows objection mailc to it at the time, and 
 the al.)scnce of evidence of approval at that time. 
 The opinion of jurists and statesmen throughout 
 the country is auain.st it .... . 99-102 
 
 (SeeR 99-103.) 
 XXI. The absence of aiiswer in the pamphlet to the his- 
 torical argument of the article shows its facts to 
 be unanswerable ...... 102-1 0.j 
 
 (See Tables, App. 78-84 ; Art. 15-26 ; R. 66-70.) 
 
117 
 
 PAGE 
 
 XXII. Justice the only foundation of right action and right 
 
 opinion in constitutional questions . . . 106 
 
 IN THE LAST ANALYSIS. 
 
 The whole controversy may be shortly stated as follows : — 
 
 The opinion of the judges and of the pamphlet is, that the provision 
 in the constitution which authorizes the General Assembly to propose 
 amendments to the people, to be adopted by their vote, prohibits by 
 implication all other modes of change. 
 
 Though the pamphlet admits that a nevv constitution adopted in the 
 mode described in the question of the Senate would be effectual. 
 
 The history of the country shows that such opinion is an error. 
 First, because in many instances, in leading States, changes have been 
 made by convention and popular vote, though the constitution con- 
 tained such provision for amendment by legislative proposal and vote 
 of the people. And in no instance has the effect claimed by the opin- 
 ion been gi\en to such a provision. 
 
 Second, the principles of American State constitutional laws, as 
 settled beyond dispute, are that the people are sovereign ; that they 
 act by a majoritj' vote ; that with the consent of the existing gov- 
 ernment, they chnnge a State constitution through a convention and 
 vote of a majority of the people. Such is the American method of 
 change. 
 
 Auxiliary to this method, introduced by express provision, is the 
 method of amendment through legislative proposal and popular vote. 
 
 The two coexist expressly in many constitutions, and the latter 
 has never excluded the former, even when not expressed. 
 
 The answer to the opinion is exclusive of the doctrine that the peo- 
 ple of a State may, without any law passed by an existing State gov- 
 ernment providing for a constitutional convention and popular vote, 
 change their State constitution in the exercise of their sovereign power. 
 
 That question is not considered in this discussion. 
 
 It may be added that it is no longer claimed that this opinion of the 
 judges has any obligatory force. It is merely advisory in such oases. 
 And it is also admitted that it was given without argument or oppor- 
 tunity for study ; it adopted the opinion of a majority of a com- 
 mittee of the Assembly. It is also different from the decision of the 
 courts of Pennsylvania and Alabama, — the only courts that have as 
 
118 
 
 such given opinions, — and from the opinion of the jurists, and es- 
 pecially of the statesmen of other States with, possibly, a few 
 exceptions. 
 
 The rule of interpretation adopted by the opinion, that a rule 
 " applicable to statutes, deeds, wills, and other ordinary instruments " 
 is applicable to constitutions, is not the rule laid down by the Su- 
 preme Court of the United States. Marshall said for the Court : 
 " ^Ye must never forget that it is a constitution that we are expound- 
 ing" (4 Wheaton, 107). " A constitution " " is not to be interpreted 
 with the strictness of a private contract." It " does not undertake 
 with the precision and detail of a code of laws to ennumerate the 
 subdivi-ion of those powers, or to specify all the means by which they 
 may be carried into execution" (Gray, J., for the Court, 110 U. S. 
 430). 
 
 History and tlie law as to meaning of constitutions are against 
 the opinion of the judges and the pamphlet.