take effect must be such as in the judgment of the legislature affects the question of the expediency of the law; an event on which the expediency of the law in the judgment of the lawmakers depends. On this question of expediency the legislature must exercise its own judgment definitely and finally. . . . But in the present case no such event or change of circumstances affecting the expediency of the law was expected to happen. The wisdom or expediency of the free school law, abstractly considered, did not depend on a vote of the people. If it was unwise or in- • expedient before that vote was taken, it was equally so afterward. The event on which the act was made to take effect was nothing else than the vote of the people on the identical question which the Constitution makes it the duty of the legislature itself to decide. . . . The government of the State is democratic, and it is a representative democracy, and in passing general laws, the people act only through their representatives in the legislature."7

7 While, as indicated, direct legislation laws of a general character have at times been held unconstitutional, special referendal, or local option, laws, have been held valid, the point being taken, among others, that at the time the federal and state Constitutions were adopted, measures of this character were generally recognized as proper, and construed to provide for delegation of local governing, rather than legislative, powers. Thus Cooley, summing up the argument upon this point, says: "It has already been seen that the legislature cannot delegate its power to make laws; but fundamental as this maxim is, it is so qualified by the customs of our race, and by other maxims which regard local government, that the right of the legislature, in the absence of authorization or prohibition, to create towns and other inferior municipal organizations, and to confer upon them the powers of local government, and especially of local taxation and police regulation [liquor laws, etc.] usual with such corporations, would pass unchallenged. The legislature in these cases is not regarded as delegating its authority, because the regulation of such local affairs as are commonly left to local boards and officers is not understood to belong properly to the State, and when it interferes, as sometimes it must, to restrain and control the local action, there should be reasons of state policy or dangers of local abuse to warrant the interposition." Constitutional Limitations, 7th ed., p. 264. In the earlier cases (Wales v. Belcher, 3 Pick. 508; Godden v. Crump, 8 Leigh, 120; Burgess v. Pue, 2 Gill, 11) general referendal laws were sustained, but since the decision of the Delaware court in 1847 (Rice v. Foster, 4 Harr. 479) the general practice, as indicated in the text, has been to hold them void as a delegation of legislative power.

§ 78. Dorr's Rebellion.

The first instance in which the Federal Government was called upon to construe this guaranty clause was in connection with Dorr's Rebellion in Rhode Island in 1841. The salient facts of this incident were these. The Constitution under which the people of Rhode Island had lived since the separation from England provided for a very limited suffrage. With the development of more democratic ideas this condition of affairs became very unsatisfactory to those who were thus denied the right to vote. Numerous attempts were made to have the Constitution amended, but these were always defeated by the small oligarchy of legal voters who did not wish to share their special privileges with others. Finally, in 1841, mass meetings of the discontended were held, and, without any instruction or permission from the existing government, the citizens were directed to elect, by a universal manhood. suffrage, delegates to a constitutional convention. This was done, and at that convention a Constitution was framed that later was adopted by a clear majority of the adult male resident citizens of the State. Thereupon, the convention, meeting again, declared: "Whereas, by return of the votes upon the Constitution, it satisfactorily appears that the citizens of this State, in their original sovereign capacity, have ratified and adopted said Constitution by a large majority; and the will of the people, thus decisively known, ought to be implicitly obeyed and faithfully executed: We do therefore resolve and declare that said Constitution rightfully ought to be, and is, paramount law and Constitution of the State of Rhode Island and Providence Plantations, and we further resolve and declare for ourselves and in behalf of the people whom we represent, that we will establish said Constitution and sustain and defend the same by all necessary means." Attempts were made to put into operation the government provided for in the instrument thus declared in force, Dorr being elected Governor under it.

All of the above acts, it will be observed, were unsanctioned by any law of the old de jure government. Upon an appeal being made by that government to the Federal Government for aid, the President of the United States recognized that government as the

de jure government of the State and took steps to extend the aid that was requested. By this federal executive action two important facts were. established with reference to the "guaranty " clause of the federal Constitution. The first of these was that, according to this clause, the Federal Government was obligated to protect the several States not only against the attempts of foreign powers to impose upon them governments not of their own choosing, but against revolutionary action on the part of their own citizens. The second was that it was thus decided that it is not a violation of the provision that a state government shall be republican in form that it rests upon the legal will of a minority of its adult male citizens. In effect it was determined that the old government of Rhode Island, being accepted as republican in form at the time that the State became a member of the Union, it could not be changed by any extra-legal means against the desire of those who by the old instrument were given the sole power of expressing the legal will of the State. This last clause "against the desire of those who by the old instrument were given the sole power of expressing the legal will of the State," is advisedly added, for, as repeated instances have shown, the Federal Government has not felt itself obligated under the guaranty clause to see to it that none of the state Constitutions are ever amended or replaced by new instruments except in strict accordance with the provisions governing constitutional changes existing at the time the changes are made. When such changes, even though brought about in a manner not formally constitutional, have been accepted as valid by the old governments, the Federal Government has not felt itself obligated to interfere. But when, as was the case in Rhode Island, the revolutionary change is resisted by those exercising authority under the old instrument of government, the Federal Government, upon appeal to it for assistance, will almost surely consider itself called upon to recognize and support the old government.

79. Luther v. Borden.

The case of Luther v. Borden, decided by the Supreme Court in 1848, arose out of Dorr's Rebellion. Borden, acting under authority of the old government of Rhode Island, had broken into the house of Luther, who was at the time engaged in an attempt to establish the new government provided for by the Constitution that had been adopted in the popular, extra-constitutional manner spoken of above. Upon being sued in trespass by Luther, Borden justified himself by the plea that he was acting under the authority of the legal government of the State. Luther, upon his side, de nied the de jure character of that government, and, therefore, its legal competence to empower Borden to exercise the authority he had exercised.

Upon behalf of Luther it was argued "that, by the fundamental principle of government and of the sovereignty of the people acknowledged and acted upon in the United States, and the several States thereof, at least ever since the Declaration of Independence in 1776, the Constitution and frame of government prepared, adopted, and established as above set forth, was, and became thereby, the supreme fundamental law of the State of Rhode Island, and was in full force and effect, as such, when the trespass alleged in the plaintiff's writ was committed by the defendants. That this conclusion also follows from one of the foregoing fundamental principles of the American system of government, which is, that government is instituted by the people, and for the benefit, protection and security of the people, nation, or community. And that when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable right to reform, alter, abolish the same, in such a manner as shall be judged most conducive to the public weal."9

87 How. 1; 12 L. ed. 581.

In support of this position, the following propositions were urged:

1. "That the sovereignty of the people is supreme, and may act in forming government without the assent of the existing government.

2. That the people are the sole judges of the form of government best calculated to promote their safety and happiness.

In behalf of Borden, the defendant in error, Daniel Webster, who was one of the counsel, argued that, granting that the people are the source of political power, the American principle is that they can exercise this power only through their constituted representatives, and through the votes of properly qualified electors. "The right to choose a representative," he declared, "is every man's portion of sovereign power. Suffrage is a delegation of political power to some individual. Hence the right must be guarded and protected against force or fraud. That is one principle. Another is, that the qualification which entitles a man to vote must be prescribed by previous laws, directing how it is to be exercised and also that the results shall be certified to some central power so that the vote may tell. We know no other principle. If you go beyond these, you go wide of the American track. Our American mode of government does not draw any power from tumultuous assemblages."

The question as to which of the two governments was at that time the legal government of the State thus seemed squarely presented to the court. That tribunal, however, did not feel itself obliged to pass upon the point, holding that the power to determine such a matter had been given by the Constitution to Congress, and by that body had been handed over, to the extent at least of determining when the Federal Government should inter

3. That as the sovereign power, they have the right to adopt such form of government.

4. That the right to adopt necessarily includes the right to abolish, to reform, and to alter any existing form of government, and to substitute in its stead any other that they may judge better adapted to the purposes intended.

5. That if such a right exists at all, it exists in the States under the Union not as a right of force, but a right of sovereignty, and that those who oppose its peaceful exercise, and not those who support it, are culpable. 6. That the exercise of this right, which is a right original, sovereign, and supreme, and not derived from any other human authority, may be, and must be, effected in such a way and manner as the people may for

themselves determine.

7. And more especially is this true in the case of the then subsisting government of Rhode Island, which derived no power from the charter or from the people to alter or amend the frame of government, or to change the basis of representation, or even to propose initiatory measures to that end."