understood independent of it. The distinction between "cases in law and equity," which the constitution recognizes (Article III., section 2), relates directly to the difference between the principles of the two codes of common law and equity, by which actions in judicial tribunals are classified and decided.1 The seventh Amendment secures the right of a trial by jury "in suits at common law," and prohibits their re-examination otherwise "than according to the rules of the common law." Is it nevertheless true that we have no common law? What is the writ of habeas corpus?2 Its substance,-its form? To what does it apply? What is its object? Whose is the privilege of it? What right does it restore; what wrong does it redress? Who is entitled to the right, and by what law? and how does the writ restore it? The answer to these questions is from the common law, and they cannot be answered without it. If there is no common law, this clause of the Constitution is inexplicable, it, in fact, means nothing.

§ 433. If a change of government neither changes the laws, nor the rights and duties under the laws, how is it that the people of the United States have lost their right to the law, which their fathers brought with them to this land, which they used and approved, and transmitted to their children; which their children and their successors claimed as their birthright, 1 3 Story's Com., 506. 2 Article I., section 9.

and practised, under all the forms and changes of government through which they have passed; and which the present generation continue to use and practise, almost to the exclusion of every other? Yet it is vexata questio how far the common law, as used and approved in this country before the Revolution, through the Revolution, before the Constitution, and since the Constitution, may still be administered by the courts of the United States as a part of the law of the land.1

1 Robinson v. Campbell, 3 Wheat., 223; Cox and Dick v. United States, 6 Peters' R., 203.

CHAPTER XXV.

LEGISLATIVE POWERS. - SPECIAL.

Amendments.

§ 434. THE fifth Article, on the mode of amending the Constitution, is the last one that expressly confers special and specific powers on Congress for any purpose whatever. It is as follows: "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution; or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which in either case shall be valid, to all intents and purposes, as part of this Constitution, when ratified by the legislatures of threefourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight, shall in any manner affect the first and fourth clauses in the ninth section of the first Article; and that no State,

without its consent, shall be deprived of its equal suffrage in the Senate."

§ 435. Here are three distinct powers conferred on Congress, and neither of them probably involved in the legislative portion of any of the general powers of the government. By the first, they may, by a two-thirds vote, themselves propose amendments to the Constitution. This has been held to be independent of the veto power of the President. A two-thirds vote in each House is all that would be required if the veto was interposed, and this is required without it. By the second, they may, on the application of the legislatures of two-thirds of the States, call a convention for proposing amendments. This power has never been used; and, of course, it has never been decided practically whether the "call" shall be presented to the President for his approval or not. The convention must probably be a convention of the people of the United States, by delegates chosen or appointed in each State: but in what proportion; when, how, and by whom chosen or appointed; where and when assembled; and how organized, governed, and restricted, with other necessary preliminaries, must be settled by the power authorized to make the "call," for there is no other. By the third, Congress is authorized to prescribe the mode of ratification of the amendments proposed either by themselves or the convention by them called.

§ 436. This may be done by the legislatures of the several States, or by State conventions elected and held by virtue of the requisition of Congress, and in the manner by them directed. The wisdom, the utility, and even the necessity, of provisions for amending the Constitution have never been denied or doubted. But the second of those mentioned in this Article has never been tried, and it may be long before it is so. A simultaneous movement, by twenty-five or more different State legislatures, each composed of at least two distinct and independent bodies of men, in favor of a general convention of the people for proposing alterations of the fundamental law, without limit and without landmark, is a measure not likely to be resorted to for any other purpose than to destroy the government. Whenever so large a proportion of the American people become imbued with that purpose, it is safe to predict that they will march to their object by a more direct route than by procuring an amendment of the Constitution in this circuitous manner.

§ 437. The other method has been resorted to several times, at different periods of our history. The first time was at the first session of the first Congress. They proposed an addition of twelve Articles, in the nature of a bill of rights, most of them copied or modified from English or American models, for the purpose of conciliating a large class of citizens, who had been more or