before the constitutional provision can be made effectual, supplemental legislation must be had; and the provision is in its nature mandatory to the legislature to enact the needful legislation, though back of it there lies no authority to enforce the command. Sometimes the constitution in terms requires the legislature to enact laws on a particular subject; and here it is obvious that the requirement has only a moral force: the legislature ought to obey it; but the right intended to be given is only assured when the legislation is voluntarily enacted. Illustrations may be found in constitutional provisions requiring the legislature to provide by law uniform and just rules for the assessment and collection of taxes; these must lie dormant until the legislation is had; they do not displace the law previously in force, though the purpose may be manifest to do away with it by the legislation required. So, however plainly the constitution may recognize the right to appropriate private property for the general benefit, the appropriation cannot be made until the law has pointed out the cases, and given the means by which compensation may be assured. A different illustration is afforded by the new amendments to the federal Constitution. Thus, the fifteenth amendment provides that "the right of citizens of the United States. to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude." To this extent it is self-executing, and of its own force it abolishes all distinctions in suffrage based on the particulars enumerated. But when it further provides that "Congress shall have power to enforce this article by appropriate legislation,” it indicates the possibility that the rule may not be found sufficiently comprehensive or particular to protect fully this right to equal suffrage, and that legislation may be found necessary for that purpose.* Other provisions are fully self-executing, and

1 Williams v. Detroit, 2 Mich. 560; People v. Lake Co., 33 Cal. 487; Bowie v. Lott, 24 La. Ann. 214.

2 Moore, J., in Supervisors of Doddridge v. Stout, 9 W. Va. 703, 705; Cahoon . Commonwealth, 20 Gratt 733; Lehigh Iron Co. v. Lower Macungie, 81 Penn. St. 482.

2 Lamb v. Lane, 4 Ohio, N. s. 167. See St. Joseph School Board

υ.

Buchanan County, 62 Mo. 444;
Myers v. English, 9 Cal. 341; Gillen-
water v. Mississippi, &c. R. R. Co., 13
Ill. 1.

4 United States v. Reese, 92 U. S. Rep. 214. Any constitutional provision is self-executing to this extent, that every thing done in violation of it is void. Brien v. Williamson, 8 Miss. 14.

manifestly contemplate no legislation whatever to give them full force and operation.1

A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law. Thus, a constitution may very clearly require county and town government; but if it fails to indicate its range, and to provide proper machinery, it is not in this particular self-executing, and legislation is essential.2 Rights in such a case may lie dormant until statutes shall provide for them, though, in so far as any distinct provision is made which by itself is capable of enforcement, it is law, and all supplementary legislation must be in harmony with it.

The provisions exempting homesteads from forced sale for the satisfaction of debts furnish many illustrations of self-executing provisions, and also of those which are not self-executing. Where, as in California, the constitution declares that "the legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families," the dependence of the provision on subsequent legislative action is manifest. But where, as in some other States, the constitution defines the extent, in acres or amount, that shall be deemed to constitute a homestead, and expressly exempts from any forced sale what is thus defined, a rule is prescribed which is capable of enforcement. Perhaps even in such cases legislation may be desirable, by way of providing convenient remedies for the protection of the right secured, or of regulating the claim of the right so that its exact limits may be known and understood; but all such legislation must be subordinate to the constitutional provision and in furtherance of its purpose, and must not in any particular attempt to narrow or embarrass it. The provision of a constitution which defines a homestead and exempts it from

1 See People v. Bradley, 60 Ill. 390; People v. McRoberts, 62 Ill. 38; Mitchell v. Illinois, &c. Coal Co., 68 Ill. 286; Beecher v. Baldy, 7 Mich. 488; People v. Rumsey, 64 III. 41.

2 Wall, Ex parte, 48 Cal. 279; Attorney-General v. Common Council of Detroit, 29 Mich. 108.

forced sale is self-executing, at least to this extent, that, though it may admit of supplementary legislation in particulars where in itself it is not as complete as may be desirable, it will override and nullify whatever legislation, either prior or subsequent, would defeat or limit the homestead which is thus defined and secured.

We have thus indicated some of the rules which we think are to be observed in the construction of constitutions. It will be perceived that we have not thought it important to quote and to dwell upon those arbitrary rules to which so much attention is sometimes given, and which savor rather of the closet than of practical life. Our observation would lead us to the conclusion that they are more often resorted to as aids in ingenious attempts to make the constitution seem to say what it does not, than with a view to make that instrument express its real intent. All external aids, and especially all arbitrary rules, applied to instruments of this popular character, are of very uncertain value; and we do not regard it as out of place to repeat here what we have had occasion already to say in the course of this chapter, that they are to be made use of with hesitation, and only with much circumspection.1

1 See People v. Cowles, 13 N. Y. 360, per Johnson, J.; Temple v. Mead, 4 Vt. 540, per Williams, J.; People v. Fancher, 50 N. Y. 291. In construing so important an instrument as a constitution, especially those parts which affect the vital principle of republican government, the elective franchise, or the manner of exercising it, we are not, on the one hand, to indulge ingenious speculations which may lead us wide from the true sense and spirit of the instrument, nor, on the other, to apply to it such narrow and constrained views as may exclude the real object and intent of those who framed it. We are to suppose that the authors of such an instrument had a thorough knowledge of the force and extent of the words they employ; that they had a beneficial end and purpose in view; and that, more especially in any appar

ent restriction upon the mode of exercising the right of suffrage, there was some existing or anticipated evil which it was their purpose to avoid. If an enlarged sense of any particular form of expression should be necessary to accomplish so great an object as a convenient exercise of the fundamental privilege or right, — that of election, — such sense must be attributed. We are to suppose that those who were delegated to the great business of distributing the powers which emanated from the sovereignty of the people, and to the establishment of the rules for the perpetual security of the rights of person and property, had the wisdom to adapt their language to future as well as existing emergencies, so that words competent to the then existing state of the community, and at the same time capable of being expanded to

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*CHAPTER V.

OF THE POWERS WHICH THE LEGISLATIVE DEPARTMENT MAY

EXERCISE.

IN considering the powers which may be exercised by the legislative department of one of the American States, it is natural that we should recur to those possessed by the Parliament of Great Britain, after which, in a measure, the American legislatures have been modelled, and from which we derive our legislative usages and customs, or parliamentary common law, as well as the precedents by which the exercise of legislative power in this country has been governed. It is natural, also, that we should incline to measure the power of the legislative department in America by the power of the like department in Britain; and to concede without reflection that whatever the legislature of the country from which we derive our laws can do, may also be done by the department created for the exercise of legislative authority in this country. But to guard against being misled by a comparison. between the two, we must bear in mind the important distinction already pointed out, that with the Parliament rests practically the sovereignty of the country, so that it may exercise all the powers of the government if it wills so to do; while on the other hand the legislatures of the American States are not the sovereign authority, and, though vested with the exercise of one branch of the sovereignty, they are nevertheless, in wielding it, hedged in on all sides by important limitations, some of which are imposed in express terms, and others by implications which are equally imperative.

"The power and jurisdiction of Parliament, says Sir Edward Coke, is so transcendent and absolute, that it cannot be confined, either for persons or causes, within any bounds. And of this high court it may truly be said: Si antiquitatem spectes,

1 4 Inst. 36.