It is often said that where a criminal, or as it is often put, an illegal act of another, intervenes after the defendant's act, the latter ceases to be a proximate cause.

Defendant wrongfully left open a gap in the plaintiff's basement wall: thieves entered and stole plaintiff's goods. Defendant was not a proximate cause.98

Defendant wrongfully let a dangerous criminal escape; he was not a proximate cause of the injury done by the criminal, and foreseeable at the time of the escape.99

This was a principal ground for holding the Cunard Steamship Company not liable for injuries suffered from the sinking of the Lusitania.100

In spite, however of much authority to this effect, the statement must be regarded as exceedingly questionable. If an employee of a storage warehouse should leave a window open, it is submitted that the stealing of the goods would be a proximate result.

In all cases where the act or failure to act of the plaintiff himself was a factor, he might in a civil suit be barred of his recovery by his own contributory negligence. Where this is the case it has often been said that the result is remote. But so to say is to confuse two very different things. That there may be proximate causation, though the injured person is contributorily negligent, is shown in criminal cases, where contributory negligence of the injured person is no bar.

Defendant wounded X's finger; X refused to have the finger amputated, though the surgeon urged it, got lockjaw and died. The death was a proximate result of defendant's act.101

A neglect of this principle led to what is submitted is a wrong result. Defendant, a carrier by automobile for hire, negligently failed to stop at plaintiff's house, and plaintiff negligently jumped out of the moving car and was injured. The defense of contributory negligence had been abolished by statute. The court held the injury a remote consequence of defendant's failure to stop.102

98 Andrews v. Kinsel, 114 Ga. 390, 40 S. E. 300 (1901).

* Hullinger v. Worrell, 83 Ill. 220 (1876); Henderson v. Dade Coal Co., 100 Ga. 568, 28 S. E. 251 (1897).

100 The Lusitania, 251 Fed. 715 (1918).

101 Reg. v. Holland, 2 Moo. & Rob. 351 (1841).

102 Dantzler S. & D. D. Co. v. Hurley, 119 Miss. 473, 81 So. 163 (1919).

To sum up the requirements of proximity of result:

1. The defendant must have acted (or failed to act in violation of a duty).

2. The force thus created must (a) have remained active itself or created another force which remained active until it directly caused the result; or (b) have created a new active risk of being acted upon by the active force that caused the result.

Joseph H. Beale.

HARVARD LAW SCHOOL.

AMENDING THE CONSTITUTION OF THE
UNITED STATES

THE

A REPLY TO MR. MARBURY1

HE provision for amending the Constitution is found in Article V. An examination of that article will disclose no purpose to draw any distinction between a proposed amendment that would take from the federal government some of its delegated powers and one which would take from the states some of their reserved powers. No effort was made to define the character of amendments that might be proposed and ratified. The outstanding features of Article V are these: No power was conferred upon the federal government to amend its Constitution. This power was reserved to the states themselves. The federal government had been created and clothed with powers surrendered or transferred by the states. These powers were not to be decreased or diminished except by the action of the states themselves. Naturally those administering the federal government would be in the best position to discover any defects or needed changes in the Constitution. The Congress of the United States was, therefore, authorized to propose amendments, but these were not to become effective unless made so by the states. An amendment, however, might be desired by states which would not be regarded as necessary by the Congress of the United States. And the states reserved to themselves a further power by providing that, upon the demand of the legislatures of two thirds of the states, Congress should call a convention for proposing amendments. Thus Congress was given the right to initiate amendments, but if it did not see fit to do so the states themselves reserved the right to initiate them.

The amendment of the Constitution, therefore, is distinctively an action by the several states, and not by the federal government. Every state in the Union is a party to the agreement that the Constitution may be amended in the manner provided in Article V. In entering into this agreement they might have stipulated that 1 William L. Marbury, "The Limitations upon the Amending Power," 33 HARV. L. REV. 223.

no amendment should be made without unanimous consent, but, as suggested by Mr. Hamilton, there was no more reason why a small minority of the states should control in matters affecting the federal government than that a small minority of the people in any state should control in the affairs of that state. They might have agreed that the action of a majority of the states should make a proposed amendment effective, but the local interests of the various states were divergent, and were likely to become more so, and the states were, therefore, not willing to be bound, with respect to changes in the fundamental law of the land, by the action of a bare majority. As a compromise measure between these two extremes, it was accordingly agreed that ratification by three fourths of the states should be sufficient.

That the language used is equally applicable to an amendment which would restore to the states some of the powers previously delegated to the federal government, or to an amendment which would confer upon the federal government some of the powers previously reserved to the states, can scarcely be doubted.

The only security against the adoption of ill-advised or, if you please, revolutionary amendments is that, in the last analysis, the states themselves are the judges of the necessity for proposed amendments, and the action of three fourths of those states is required. No better security, however, could be devised. It is hardly conceivable that three fourths of the states will ever agree to a change in the fundamental law which will, to any essential extent, deprive a state of its sovereignty.

That the power to amend was intended to be as broad as above indicated, and to extend to every amendment regularly proposed which shall be ratified by the legislatures of three fourths of the states, is made even clearer when we examine the proviso to Article V. Section 9 of Article I contains two provisions which affected the subject of slavery. Slavery was even then a subject about which there were conflicting views. There were states particularly interested in seeing that it should not be disturbed by the new government which was being formed. The Constitution, in effect, treated it as a matter subject to state control, and therefore no power was conferred by which Congress could prohibit slavery in any of the states, but, under its power over imports and taxes, it could most seriously interfere with the institution of slavery.

The convention was not willing permanently to limit these powers of Congress, but, as a compromise, it was provided, in effect, that the importation of slaves should not be prohibited by Congress prior to the year 1808, and that no tax exceeding $10 per slave should be imposed on such importation. And it was also provided that no capitation, or other direct tax, should be laid unless in proportion to a census under which only three fifths of the slaves should be counted. And when Article V, providing for amendments, was under consideration, a proviso was added to the effect that no amendment should be adopted prior to 1808 which would affect these provisions. With one exception, there was no other matter which might possibly be the subject of an amendment which was excluded from the immediate operation of Article V. The exception was that no state should ever, without its consent, be deprived of its equal suffrage in the Senate.

With this enumeration of the matters which the convention thought necessary to withdraw from the amending power, it would seem to be impossible to infer an intention that any other restrictions were intended to be placed upon the character of amendments that might be adopted.

The views above expressed have been challenged in an article entitled "The Limitations upon the Amending Power," 2 recently published by William L. Marbury, of the Baltimore bar, who has advanced some ingenious arguments in support of the proposition that the prohibition amendment, recently adopted, and the proposed suffrage amendment are of such a nature as to be beyond the power to amend, and hence should be declared invalid by the

court.

The Supreme Court has never said anything indicating the view that the courts could inquire into the validity of an amendment regularly proposed and ratified. Mr. Marbury frankly concedes that the objection he urges against the validity of the amendments now under consideration would, if seasonably made, have been equally effective against the Thirteenth and the Fifteenth Amendments. He thinks, however, that the court would not hold that, as an original proposition, the ratification by the legislatures of three fourths of the states made the Thirteenth and the Fifteenth Amendments a part of the Constitution, but that because no one 33 HARV. L. REV. 223.

2