surrender the exercise of all these sovereign functions of government to agents chosen by themselves, who, at least theoretically, represent the supreme will of their constituents."

On page 30, Judge Cooley further says: "In the original States, and all others subsequently admitted to the Union, the power to amend or revise their constitutions resides in the great body of the people as an organized body politic, who, being vested with ultimate sovereignty, and the source of all State authority, have power to control and alter the law which they have made at their will. But the people in the legal sense must be understood to be those who, by the existing Constitution, are clothed with political rights, and who, while that instrument remains, will be the sole organs through which the will of the body politic can be expressed. But the will of the people to this end can only be expressed in the legitimate modes by which such a body politic can act, and which must either be prescribed by the Constitution whose revision or amendment is sought, or by an Act of the legislative department of the State, which alone would be authorized to speak for the people upon this subject, and to point out a mode for the expression of their will, in the absence of any provision for amendment or revision contained in the Constitution itself." . . . In Collier v. Frierson, 24 Ala. 108, it appears that the legislature had proposed eight different amendments to be submitted to the people at the same time. The people had approved them, and all the requisite proceedings to make them a part of the Constitution had been had, except that in the subsequent legislature the resolution for their ratification had by mistake omitted to recite one of them. On the question whether this one had been adopted, the court say: "The Constitution can be amended in but two ways; either by the people who originally framed it, or in the mode prescribed in the instrument itself. If the last mode is pursued, the amendments must be proposed by two thirds of each House of the General Assembly; they must be published in print at least three months before the next general election for representatives; it must appear from the returns made to the Secretary of State that a majority of those voting for representatives have voted in favor of the proposed amendments, and they must be ratified by two thirds of each House of the next General Assembly, after such election, voting by yeas and nays, the proposed amendments having been read at each session three times on three several days in each House. We entertain no doubt that to change the Constitution in any other mode than by a convention, every requisition which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment. We scarcely deem any argument necessary to enforce this proposition. The Constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It has been said that certain acts are to be done, certain requisites are to be observed, before a change can be effected. But to what purpose are those acts required or those requisitions enjoined, if the legislature, or any department of

the government, can dispense with them? To do so would be to violate the instrument which they are sworn to support; and every principle of public law and sound constitutional policy requires the court to pronounce against any amendment which is not shown to have been made in accordance with the rules prescribed by the fundamental law." In this case counsel distinctly made the point that, "when the legislature has declared an act done, which it alone has the power to do, it does not become the judiciary to gainsay it." The court repudiated this doctrine and asserted its jurisdiction in the following terse and unambiguous language: "Every principle of public law and sound constitutional policy requires the courts to pronounce against every amendment which is shown not to have been made in accordance with the rules prescribed by the fundamental law."

The case of State v. McBride, 4 Mo. 303, involved a question as to the proper adoption of an amendment to the Constitution of the State of Missouri. The counsel on behalf of the State contended almost in the language of appellant's counsel in this case, "that this amendment having been passed and promulgated by the Eighth General Assembly, as a part of the Constitution, this court is bound to receive and give it the effect of a constitutional provision; it being an act done by the General Assembly, not in their capacity of ordinary legislation, but the exercise of sovereign authority in a conventional capacity." The language of the court in passing upon this position of counsel is so applicable to, and so entirely decisive of, the question now under consideration, that we quote in full. The court says: "The Constitution of this State requires that each officer, whether civil or military, shall, before entering on the duties of his office, take an oath or affirmation to support the Constitution of the United States and of this State, and to demean himself faithfully in office. In pursuance of the duty imposed by this oath, it has become quite a common business of the courts to examine the Acts of the legislative body, to see whether any of them infringe the Constitution, and to declare that such Acts, or parts of Acts, as are repugnant to the Constitution, are not the law of the land, and are, therefore, of no force. No educated man at this day denies this right to the courts. On the contrary it is considered a base abandonment of duty for a judge to hesitate, when it becomes his duty to examine the acts of the more powerful branches of the government. If, then, the Constitution be the supreme law of the land, it becomes the duty of the judge to look into and understand well this first law of the land. The General Assembly, acting itself under a power granted by the convention, can only change the Constitution in the manner presented to it. Is, then, this court, each member of which is sworn to support the Constitution, that first law of the land, to be told that they are not to inquire what that Constitution is? We are told that this is a matter which the people have confided to two successive General Assemblies, and that their declaration of what is done is to be to us evidence that the thing is done, they being sworn, as well

as ourselves, to support the Constitution. Yet we look into the Acts of each General Assembly, and if we find any of its Acts violating the Constitution, we declare such Act null and void. The General Assembly, or two General Assemblies in succession, are but public servants, and it is disrespectful to them to say that their acts will not bear inspection. If, then, they will bear inspection, and if, as we believe, they have left behind them evidence of what they have done, why need we, whose duty it is to observe the Constitution as the supreme law of the land, hesitate respectfully to approach and examine those proofs, and see if indeed the Constitution of 1820 has been changed, or if by neglecting to pursue the course pointed out by the 12th section of the Constitution, they have failed to give to their acts the validity of constitutional acts. To tell us that the people have reserved to themselves the sole right of looking into the matter, is to tell us that we are sworn to support a constitution which we are not permitted to know." Those two cases contain the calm adjudications of respectable courts, in times when there was no popular excitement, and upon constitutional amendments not arousing popular interest. They are, therefore, entitled to the highest consideration, as they were entirely uninfluenced by popular clamor.

It is not all material that in State v. McBride, supra, the court finally concluded that the amendment under consideration had been properly adopted. The court had to determine its power to decide, before it could decide in favor of the amendment. As was well said by one of appellant's attorneys upon the argument: "The power to decide, involves the power to decide either way." In the State v. Swift, 69 Ind. 505, the jurisdiction of the court was exercised, and an amendment to the Constitution of the State of Indiana was held not to have been properly adopted. In the opinion the court say: "The people of a State may form an original constitution, or abrogate an old one or form a new one, at any time, without any political restriction except the Constitution of the United States; but if they undertake to add an amendment, by the authority of legislation, to a constitution already in existence, they can do it only by the method pointed out by the constitution to which the amendment is to be added. The power to amend a constitution by legislative action does not confer the power to break it, any more than it confers the power to legislate on any other subject contrary to its prohibitions."

In Westinghausen v. The People, 44 Mich. 265, the Supreme Court of Michigan entertained jurisdiction of a question as to the adoption of an amendment to the Constitution of that State. The Prohibitory Amendment Cases, 24 Kans. 700, in so far as they assume jurisdiction over the question involved, are in harmony with all the cases upon the subject. In State v. Timme, 11 N. W. Rep. 785, the Supreme Court of Wisconsin assumed jurisdiction of a question involving the validity of an amendment to the Constitution of that State. The same thing was done in Trustees University of North Carolina v. McIver, 72 N. C. 76.

It is true that in the last five cases the question of jurisdiction was not raised by counsel. But the courts could not have entered upon an examination of the cases without first determining in favor of their jurisdiction. If they entertained doubts respecting their jurisdiction, it was the duty of the courts to raise the question themselves. We have then seven States, Alabama, Missouri, Kansas, Michigan, North Carolina, Wisconsin, and Indiana, in which the jurisdiction of the courts over the adoption of an amendment to a constitution has been recognized and asserted. In no decision, either State or Federal, has this jurisdiction been denied. We may securely rest our jurisdiction upon the authority of these cases. He would be a bold jurist, indeed, who would ride rough-shod over such an unbroken current of judicial authority, so fortified in principle, sustained by reason, and so necessary to the peaceful administration of the government. . . . Abidingly and firmly convinced of the correctness of our former conclusion, recognizing no superior higher than the Constitution, acknowledging no fealty greater than loyalty to its principles, and fearing no consequences except those which would flow from a dereliction in duty, we adhere to and reaffirm the doctrines already announced.

The petition for rehearing is overruled.

[The dissenting opinion of BECK, J., is omitted.]1

1 Compare Const. Prohib. Amend. 24 Kans. 700; Jameson, Const. Conv. (4th ed.), §§ 561, 574 €, 574 ƒ, and ch. viii. passim. As regards the proper evidence of the factum of a statute, the right to consult the legislative journals, and the finally authentic quality of the enrolment, see Y. B. H. VI., 17, 8 (1455); King v. Countess Dowager of Arundel, Hob. 110 (1616), and the carefully considered case of Field v. Clark, 143 U. S. 649, with a note, Ib. 661, referring to the cases in the several States. - ED.

CHAPTER III.

THE JURISDICTION OF THE UNITED STATES.

1

IN Livingston and Fulton v. Vun Ingen, et al. 9 Johns. 507, (1812), it was held that statutes of New York granting to the plaintiffs the exclusive right of navigating the waters of that State in vessels propelled by steam, were not in violation of the Constitution of the United States; and the same doctrine was afterwards held in Gibbons v. Ogden, 17 Johns. 488 (1820). This doctrine was overruled by the Supreme Court of the United States, on error, in Gibbons v. Ogden, 9 Wheat. 1 (1824), so far as concerned vessels licensed under the statutes of the United States for regulating the coasting trade, and navigating between New York and other States; and in North River Steamb. Co. v. Livingston, 3 Cow. 713 (1825), as regards vessels similarly licensed and navigating merely the waters of New York.

In Livingston v. Van Ingen, ubi supra, p. 573, KENT, C. J., said: "The legislative power, in a single, independent government, extends to every proper object of power, and is limited only by its own constitutional provisions, or by the fundamental principles of all government, and the unalienable rights of mankind. In the present case, the grant to the appellants took away no vested right. It interfered with no man's property. It left every citizen to enjoy all the rights of navigation, and all the use of the waters of this State which he before enjoyed. There was, then, no injustice, no violation of first principles, in a grant to the appellants, for a limited time, of the exclusive benefit of their own hazardous and expensive experiments. The first impression upon every unprejudiced mind would be, that there was justice and policy in the grant. Clearly, then, it is valid, unless the power to make it be taken away by the Constitution of the United States.

"We are not called upon to say affirmatively what powers have been granted to the general government, or to what extent. Those powers, whether express or implied, may be plenary and sovereign, in reference to the specified objects of them. They may even be liberally construed in furtherance of the great and essential ends of the government. To this doctrine I willingly accede. But the question here is, not what powers are granted to that government, but what powers are retained by this, and, particularly, whether the States have absolutely parted with their original power of granting such an exclusive privilege as the one now before us. It does not follow, that because a given

In 1811, it had been held in the same case that the Circuit Court of the United States (1 Paine, 45) had no jurisdiction.— ED.