The declaration of 1647, as to the form of government in Providence
Plantations.

15. Art. I, Sec. 1, constitution of 1842.

These show the Rhode Island doctrine is that the majority shall govern. The doctrine that two-fifths can defeat the will of the majority has no foundation or support in the history of this State.

Smith v. Nelson, 18 Vt. 511, examined.

The same power that makes by-laws can repeal them.

Therefore a majority can repeal a by-law that a by-law can be repealed only by two-thirds.

A self-imposed limitation can be set aside by the same power that imposes it.

16. A limitation imposed by a higher power can be set aside only by that higher power.

It is admitted a sovereign can restrain itself.

Webster in Luther v. Borden, 7 How. 1, to that effect, quoted.

But such restrictions can be set aside by the same power that set them up. A provision requiring more than a majority vote can be set aside by a majority.

Repeal of law extending suffrage to women in New Jersey, considered, and exclusion of negroes from suffrage before accorded them, in New York. No State has yet ordained that majority shall not make and alter their constitution of government.

Nearest approach to it is in Art. XIII, constitution of Rhode Island. Distinguishable, as limitation requiring special majority of general assembly to initiate an amendment and then a special majority of the electors to adopt amendment so initiated.

17. Revised constitution attempted to limit will of people to revise or amend constitution to a three-fifth's majority.

This cannot be done. Jameson, 546. Was reason enough for rejection. Majority must govern. This is not a revolutionary doctrine, the contrary is, and is unknown elsewhere, except to authors of revised constitution, and partially to framers of constitution of 1842.

The latter limited power of majority of electors to accept amendment initiated by general assembly.

Time confers no sanction on such a doctrine.

Nor on what is claimed to be intent of framers of constitution of 1842 to deprive people (by majority vote) of their right to make and alter their constitution of government.

Commissioners of 1897 incorporated this doctrine in their revised constitution.

PAGE.

18. Extraordinary that fifteen able men should agree on such a subversive doctrine.

19.

20.

Defeat of revised constitution due also to failure to restrict powers of general assembly.

Enormous powers always exercised by general assembly.

Due to grant to it in charter of judicial as well as legislative powers,
And to limited powers granted executive.

General assembly continued to exercise judicial powers after adoption of
constitution until restrained by decision in Taylor v. Place, 4 R. I. 324.
Dread of centralized power caused delay until 1647 of acceptance of first
charter.

Warwick also then admitted, with Providence, Portsmouth, and Newport.
Not to be confounded with present towns of same name.

These four towns and other acquisitions constitute the State.

This State declared its independence May 4, 1776.

Continued to govern itself under unwritten constitution until 1842.

So stated by Story, J. in Wilkinson v. Leland, 2 Peters, 627.

Also by Jameson, Const. Convs. 83.

And by Cox, Judicial Power and Unconstitutional Legislation, 177.

This is important in its bearings on "Dorr war."

In Bayard v. Singleton, Martin, 48, it was held that act altering constitution destroyed foundation of legislative authority.

Declaration of independence of this State, did this.

And left State under unwritten constitution.

Or the declaration of independence was unconstitutional and void.

Being under an unwritten constitution in 1842, people could change their government as they pleased.

It needed only that it be the action of majority and become de facto govern

ment.

Dorr made mistake in appealing to arms.

But upon suppression thereof, his demands granted.

A constitution framed and Dorrites voted on its adoption.

Dorr's fame established.

Revolution caused no break in Rhode Island and Connecticut, because governor not crown officer.

Therefore old form of government continued until "Dorr war."

But for that incident it might have continued indefinitely.

Independence increased powers of general assembly.

Decision in Trevett v. Weeden, 1789, checked this power.

This case precursor of American doctrine of power of judiciary to declare a law unconstitutional.

Reported and discussed in Cox, Judicial Power, 177-160 and 1 Thayer Cases on Const. Laws, 73.

Judiciary more easily took the stand it did because State was governed under unwritten constitution.

21. Taylor v. Place, 4 R. I. 324, 1856, put an end to exercise of judicial power

by general assembly.

PAGE.

21. These two cases, landmarks in political history of State, emphasize too great power of general assembly.

Any new constitution must recognize this and remedy it.

This cannot be done by amending constitution under Art. XIII.

Because consent of majority of all members of two successive general assemblies necessary.

No organized body will consent to limit its own powers.

A constitutional convention alone can impose the limitations needed.

22. Under Art. I, sec. 1, their result would become law upon approval by a majority of the electors.

And a convention should be called whenever constitution needs general revision.

Official declaration of such necessity by general assembly, January 27, 1897. To guard against new danger of political machine and boss rule, a convention should be called.

Extract from I. A. Bassett's Memorial Day address, May 30, 1899.

23. This new danger must be recognized, met, and overcome.

A constitution, framed by constitutional convention and adopted by electors, necessary to do this.

Sense of civic pride and municipal responsibility must be raised to higher
plane.

Advisory opinion, 14 R. I. 654, erred in saying any new constitution which
a convention could form would be a new constitution only in name.
This assumes the bill of rights to be a finished product, to which nothing
can be added.

But it did not spring into being at one stroke.

It was the result of centuries of effort to right centuries of wrong.

24. Each victory for the right became a new clause in it.

This contest not ended.

Habeas corpus act marked one such victory.

Machine politics and boss rule one new form of evil to be met and overcome.

The victory will form a new clause in bill of rights.

Reliance on old guaranties alone will result in loss of our rights.

The necessary changes can only be made through a new constitution,
Powers of general assembly must be restricted.

Powers of executive and judiciary must be enlarged.

Difference between power of people to make and alter their constitution of government under Art. I, Sec. 1, and right of general assembly to initiate amendments under Art. XIII, is fundamental.

To ignore the distinction is but to contribute to the political subjugation of the people.

25. New device of political machine to secure political plums for their followers. Some courts have maintained its legality.

Sometimes through ignorance of political history and constitutional development of their State.

Sometimes because the State is a new one without such a past as the New

England States have had, and, therefore, their decision has a better foundation.

PAGE.

25. In cases denying its legality, the cause for its assertion is made apparent. Cases cited and quoted from.

Fertile source of loss of civic pride and of political decadence in American cities.

They are admitted to be the worse governed of all civilized countries.

To improve them, constitution must fix their right to local self-government.
This can only be done through a constitutional convention.

26. Explanation of failure of revised constitution.

It did not contain necessary restrictions on powers of general assembly.
This not the fault of the commission.

But of the limitations arising from nature of case.
Commissioners aware of necessity for such restrictions.

Also aware of necessity of approval by general assembly.

And that it would not approve restrictions upon its own powers.

So they omitted them.

The result was satisfactory to general assembly but not to people.

No constitution satisfactory to people without these restrictions.

This can only be put into constitution through a convention submitting new
constitution to electors, including those who will become electors under
such new constitution, and its adoption by a majority vote.

This was course adopted in past, and it should be followed now.
But it is claimed judges have decided a convention cannot be called.
This ignores difference between advisory opinion and actual decision.
And is false shield of those not wanting a convention.

Our court has recognized this distinction.

27. In Taylor v. Place, 4 R. I. 324.

In Allen v. Danielson, 15 R. I. 480, reversing advisory opinion in 13 R. I. 9.
This distinction recognized in 58 Me. 573, do 615.

28. In 72 Me. 542, McQueen, Ap. Jur. H. of L. 39.

In 24 Am. L. R. 369 and 7 Harv, L. R. 153.

Advisory opinion, 8 Mass. 549, overruled in later actual case, 12 Wheat. 19.
Advisory opinion is not res judicata.

Act of general assembly contrary to an advisory opinion, not unconstitu-
tional.

Time to sweep away this excuse for not doing what the general assembly has decided to be necessary.

29. By its resolution of January 27, 1897, declaring the constitution should be revised.

The only way now left to do this is by a constitutional convention.
The general assembly should therefore call one at once.

Or resubmit the question to the judges, with opportunity such as the
judges said they would be glad to have, to give more careful study to the
subject, with opportunity also for presentation before them of all views
and authorities thereon.

Or submit to electors an amendment to constitution under Art. XIII providing for calling a constitutional convention and for adoption of new constitution by majority vote of electors including those to become electors thereunder.

B

PAGE.

29. But the maxim: “Expressio unius est exclusio alterius," is cited as conclusive.

The maxim criticised in 57 L. J. Q. B. 70 and 439.

A construction is to be favored that will give effect to both.

This is no party question, but one of constitutional law.

Nothing contrary to the constitution is proposed, but to give effect to the whole of it.

The advisory opinion failed to do this and is itself unconstitutional.

A legislative construction has been placed thereon by the calls for a convention.

The question is political rather than legal.

On both these grounds the court might have declined expressing opinion. Forefathers would have been astonished to know that by a quasi-judicial construction of Art. XIII an implied limitation were to be found depriving the people of express right stated in Art. I, Sec. 1.

A new and unheard of rule of construction is thus set up.

Proper application of the maxim.

Framing a new constitution by a convention is not amending the existing constitution.

Illustration.

31. Difference between power exercised by general assembly under Art. XIII, and right of people under Art. I, Sec. 1.

Members of the court held that express power given to one party to do one
thing in an expressly limited way is an implied limitation upon the ex-
press power of another party to do another thing in another way.
The application of the maxim could not be more misplaced.
Rather, the maxim should be applied under Art. I, Sec. 1, as reserving the
absolute right of the people to make and alter their constitution of gov.
ernment, and as excluding any restriction thereon under Art. XIII.

The maxim has no real application, as Art. XIII relates to a different thing.
The maxim is inapplicable, because the expressio unius is not the same in the
two articles.

32. Jameson, 605, quoted to same effect.

A limitation on power of one party to do one thing in one way is no limita.
tion on power of another party to do another thing in another way.
The judges held that an implied limitation they found in Art. XIII is ex-
clusive of all other methods, and, hence, denies all effect to the expressly
stated right of the people under Art. I, Sec. 1.

Constitutional guaranties are not to be thus construed.

Necessity of review of constitutional development of this State.

Real meaning of constitution requires knowledge of times and circumstances of its adoption. People v. Harding, 533 Mich. 485, quoted from. No constitution is wholly written. Illustration and comment. 33. No constitution is wholly unwritten. Illustration and comment.

The written constitution does not contain all there is of constitutional command.

People v. Hurlbut, 24 Mich. 44.