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A TREATISE

ON

CONSTITUTIONAL CONVENTIONS;

THEIR

HISTORY, POWERS, AND MODES OF
PROCEEDING.

BY

JOHN ALEXANDER JAMESON, LL. D.

ce
LATE JUDGE OF THE SUPERIOR COURT OF CHICAGO, ILLINOIS,

Respublica est res populi; populus autem non omnis hominum ccetus quoque modo congregatus,
sed coetus multitudinis juris consensu et utilitatis communione sociatus. — Cicero, de Repub.

They that go about by disobedience to do no more than reforme the commonwealth shall find that
they do thereby destroy it.— Hoses, Leviathan.

Fourth Crition,
REVISED, CORRECTED, AND ENLARGED.

CHICAGO:
CALLAGHAN AND COMPANY.
1887.
PREFACE.

 

In 1862, certain influential members of the Illinois Constitu-
tional Convention, then in session, set up for that body, in
debate, a claim of inherent powers amounting almost to absolute
sovereignty, — maintaining, for instance, that though the Act
of the General Assembly under which the Convention had met
required it to submit the fruit of its labors to the people, for rat-
ification or rejection, it might lawfully refuse to do so and put
the Constitution it should frame in operation without any refer-
ence whatever to the people. At the same time rumors were
current throughout the State that there were in that body, seek-
ing to control it, many members of a secret organization sup-
posed to be disloyal to the Union, called the “Knights of the
Golden Circle.” Alarmed by this claim of power, which he
deemed excessive, as well as by these sinister rumors, the author
commenced a study of the Convention as an American institu-
tion from its foundation and in all its aspects and relations,
with a view to ascertain whether the claim of power referred to
was warranted either by history or by constitutional principles.
The result was the text of the first edition of this work. Be-
cause, in the course of his examination of the Convention system,
the author found reason to believe, as he thought, that the origin,
functions, and powers of the institution had been widely misap-
prehended, and that, as conceived by the “natural man,” with-
out knowledge or experience, jumping to conclusions respecting
it hastily, it had been and was a source of extreme danger to
the republic, the work was published by him in the autumn of
1866. The same considerations, strengthened by subsequent
reflection and research, and by the change of sentiment in regard
to the subject, which he could not but observe after the first
edition of his work was published, a change as apparent as it
was gratifying, not only in the press and in the debates of our
iv PREFACE.

Conventions and legislatures, but in the courts, have impelled
the author to issue subsequent editions of the work until this,
the fourth edition, now appears. His object in writing it having
been simply to throw light upon a part of our constitutional
apparatus which had not previously attracted the attention of
lawyers and publicists, should the work have effected this, what-
ever the result otherwise may have been, the author will regard
the many years of labor devoted by him to its preparation as
not spent in vain.

Tn reference to the execution of the work a word of explana-
tion may, perhaps, be necessary. In the citation of parts of
Constitutions and statutes the figures denoting the articles or
sections referred to have been generally, with a view to economy
of space, omitted, seeing that the constitutional clauses cited
have been those relating to the amendment of Constitutions, or
to the calling of Conventions, both of which are always em-
braced in an article of one, or at most two, sections placed near
the end of the respective instruments. So, in regard to parts
of statutes, when not otherwise specified, they have always been
cited from Acts calling Conventions, which are short, and found
in the volumes of laws published by the several States in the
year in which the respective Conventions met, or in the year
preceding. They are, therefore, referred to as the Convention
Acts of such or such a Convention, giving the year in which it
met. On the other hand, Acts of Congress have been generally
cited by naming the volume and page of the United States Stat-
utes at Large in which they are to be found.

To name all the gentlemen throughout the Union who have
kindly aided the author in the collection of materials for the
work would be hardly possible. Special reference ought, how-
ever, to be made to the following persons, to whom the author
is indebted for important information or documents relating to
Conventions in the various States of the Union: —

Ex-Senators Charles Sumner, deceased, of Massachusetts ; and
Lyman Trumbull, of Illinois. Ex-Governors, Henry C. War-
moth, of New Orleans; F. H. Pierpoint, and Gilbert C. Walker,
deceased, of Virginia; Robert McClelland, deceased, of Mich-
igan; and D. H. Chamberlain, of South Carolina. Judges, John
G. Rogers, deceased, of Chicago, Ill.; John G. Speer, Oakland,
Ila.; Willard Hall, deceased, of Wilmington, Del.; James T.
PREFACE, v

Mitchell, of Philadelphia, Pa. ; C. I. Bradley, of Rhode Island ;
John W. May, deceased, of Boston, Mass.; James McM. Shafter,
of California; Hugh Buchanan, of Newnan, Ga.; Hiram A. Gil-
lett, of Valparaiso, Ind. ; Matthew Hale, of Albany, N. Y. ; George
Denison, of St. Louis, Mo.; L. Crounse, Nebraska. College
Presidents, Sidney H. Marsh, deceased, of Salem, Or.; Israel
W. Andrews, of Marietta, Ohio. Professors, Dr. Francis Lieber,
deceased, of New York; and James Denison, of the National
Deaf Mute College, Washington, D.C. The Hon. John C. Hurd,
New York; Francis L. Barlow, New York; W. G. De Saussure,
Charleston, S. C.; James M. Barrett, Cincinnati, Ohio; Edward
Cantwell, Wilmington, N. C.; Edward I. Golladay, Nashville,
Tenn.; W. O. Tuggle, Georgia; B. D. Silliman, New York; Wil-
liam P. Wells, Detroit, Mich.; Edward Russell, Leavenworth,
Kan.; R. D. Benedict, New York; H. F. Prentiss, deceased,
Milwaukee, Wis.; J. Hammond Trumbull, Hartford, Conn. ; H.
B. Dawson, New York; Charles E. Gorman, Providence, R. I. ;
George 8. Denison, deceased, New Orleans; John H. Sahler,
Omaha, Neb.; W. P. Ballinger, Austin, Tex.; W. W. Wilshire,
Little Rock, Ark.; R. N. Ely, Atlanta, Ga.; 8. B. McCracken,
Detroit, Mich.; and R. T. Merrick, deceased, Washington, D.
C., Esquires. Charles Reed, late State Librarian of Vermont, and
John Langdon Sibley, deceased, late Librarian of Harvard Col-
lege, Cambridge, Mass., and the Secretaries of State of nearly
all the States in the Union. To those gentlemen the thanks of
the author are due for many and valued courtesies in supplying
him with detailed information and often with important docu-
ments.
JOHN A. JAMESON.

Cuicaco, May, 1887.
TABLE OF CONTENTS.

CHAPTER I.
OF THE VARIOUS KINDS OF CONVENTIONS.

Leading principles of the American system of government. The function of
legislation, how distributed abroad, and how in America. § 1.
Importance of the Constitutional Convention. Enacts the fundamental law.
§§ 2, 3.
Constitutional Conventions and Secession. § 3.
Various species of Conventions described and distinguished. §§ 4-16.
I. Toe Sponranerous ConveNTION, or Pustic MEETING. § 4, 5.
Il. Tue LEGIsLATIVE CONVENTION or GENERAL ASSEMBLY. § 6.
Ill. Tue REVOLUTIONARY CONVENTION. §§ 7-10.
Examples of, in England. § 8.
Examples of, in early American history. §§ 9, 10.
IV. THE ConsTITUTIONAL CONVENTION. §11..
Where the Constitutional Convention exercises the powers of a
Revolutionary Convention, or vice versd, how to be classed. § 12.
History of the origin and development of the Constitutional Con-
vention in the United States. §§ 13, 14.
Misconceptions respecting the origin, constitution, and powers of the
Constitutional Convention. §§ 15, 16.
Fundamental conceptions to be first developed — sovereignty, or a
sovereign body, and a Constitution, or law fundamental. § 17.

CHAPTER II.
OF SOVEREIGNTY.

Definition of the terms ‘‘ sovereign ’’ and ‘‘ sovereignty.’ § 18.
Distinction between ‘‘ sovereign ’’ and ‘‘ supreme.’ § 18, note 1.
Marks or tests of sovereignty, as laid down by Austin. § 19.
Additional marks. § 20.

Ground of sovereignty. § 21, note 3.

The question, where sovereignty resides, considered theoretically. § 21.
The attributes of sovereignty. § 22.

Modes in which sovereignty manifests itself. §§ 23, 24.
Vili TABLE OF CONTENTS.

Direct manifestations through public opinion, and through the irregular exhibi-
tion of power. § 23.

Indirect manifestations of sovereignty, through governmental agencies, as, the
electors, the legislative, executive, and judicial departments, and the Constitu-
tional Convention. § 24.

Relative rank of these five systems of agencies. § 24.

The doctrine of constitutional presumptions stated. § 25.

Corollaries by their aid deduced from the foregoing principles. § 25.

The location of sovereignty, as a question of fact : —

I. In foreign states. § 26.
II. In the United States of America. §§ 27-53.

(a). The question considered from the point of view of the elementary
principles above developed. §§ 27-29.

The definition of sovereignty considered and applied. § 27,
The marks or tests of sovereignty, given by Austin, applied. § 28.
The additional marks or tests before stated, applied. § 29.

(0). The question considered from the point of view of historical
facts and principles tending to determine the question of Amer-
ican nationality. §§ 30-50. ;

What it is to be a nation. § 30.
What it is not to be a nation. § 31.
In the light of these definitions, that the United States consti-
tute a nation, inferred —
1. From the fact, that, in their development, there is ob-
servable a perfect conformity to the method of Na-
ture in the genesis of nations. §§ 32-35.
The method of Nature exemplified. §§ 33, 34.
Capital steps in the progress of the United States, speci-
fied. §§ 34, 35.
2. From the mode of ratification of the Federal Consti-
tution. §§ 26-38.
' View of the “States Rights School.’ § 37.
Observations on the mode of ratification adopted. § 38.
8. From the expressed opinions of contemporary states-
men, friends as well as enemies of the Constitution. .
§§ 39-41.
4. From the arguments employed to defeat the Federal
Constitution in the Conventions called to ratify it.
§§ 42-45,
5. From judicial decisions and the opinions of statesmen,
historians, and publicists subsequent to the establish-
ment of the Constitution. §§ 46-48.
Opinion of Mr. Justice Wilson, of the Supreme Court
of the United States. § 46.
Opinions of Washington, Dr. Ramsay, C. C. Pinckney.
and Charles Pinckney. § 47.
Opinions of Mr. Grimke, Chancellor Kent, John Quincy
Adams, and Judge Story. § 48.
TABLE OF CONTENTS. ix

Opinion, expressed by Madison, that the States never
were sovereign. § 49.
' Decision to the same effect by the Supreme Court of
the United States. § 40.
. Observations on the foregoing authorities, and conclu-
sion stated, that sovereignty resides in the American
people, or nation. § 51.
The question of allegiance and of State sovereignty
considered. § 52.
Qualified allegiance, as due to the States, absurd. § 53.
Allegiance due to the people of the United States only.
§§ 52, 53.
How sovereignty inheres in the people of the United States. §§ 54-61.
Two answers to the question, namely : —
(a.) That sovereignty resides in the people, considered simply, that is, as a
unit, without State or other internal discriminations; and
(0.) That it resides in the people only as discriminated into, and acting in,
groups, by States. §§ 54-61.
The exercise of sovereignty distinguished from the possession of origi-
nal sovereign powers. § 55.
The regular distinguished from the irregular, though possible, exercise
of sovereignty. § 56.
Application of these principles to the United States. § 57.
Judging by the regular exercise of sovereignty under the Federal
Constitution, sovereignty resides in the people of the United States
as discriminated into groups, by States. § 57.
Judging by the possible exercise of sovereignty, that power resides in
the people simply, without State or other internal discriminations.
§ 57.

The capacity in which the States, under the existing Federal Constitution,
exercise sovereignty, — sometimes in that of State Governments, and some-
times in that of subordinate peoples, together constituting the American
nation. §§ 58, 59.

View of John Austin. § 60.

View of Dr. Brownson. § 61.

Meaning of the term “sovereign” when used in reference to the States
of the Union. § 62.

CHAPTER III.
OF CONSTITUTIONS.

The term ‘Constitution’? defined. Constitutions discriminated into two
kinds — Constitutions as organic growths, and Constitutions as instruments of
evidence. § 63.

Constitutions “as they ought to be,’ framed for imaginary commonwealths,
contrasted with Constitutions as organic growths. § 64.

I. Nature of Constitutions, as organic growths, considered ; and herein, prin-
x TABLE OF CONTENTS.

pally of the question, whether Constitutions as organic growths are founded
on compact. §§ 65-67.
Are Constitutions, as instruments of evidence, founded on compact? § 68.
When discrepancies exist between the Constitution of a State as a fact, and
its Constitution as an instrument of evidence, which has the superior
validity? § 69.
IL. Specific varieties of Constitutions, as organic growths. § 70.
Constitutions, as instruments of evidence, discriminated —
First, with reference to the mode in which they originate, into two classes,
viz. :—
1. Cumulative Constitutions. §§ 71, 72.
2. Enacted Constitutions. §§ 71, 73.
Secondly, with reference to their general characteristics as sources of evi-
dence, into two others, viz. :—
3. Unwritten Constitutions. §§ 71, 74.
4. Written Constitutions. §§ 71, 74.
Written and unwritten Constitutions distinguished. §§ 74, 75.
Consequences of this distinction. The two kinds, how construed.
76.
oe of written Constitutions. § 77.
Disadvantages of written Constitutions. § 78.
Opinion of De Maistre. § 78, note 1.
Advantages of unwritten Constitutions. § 79.
Disadvantages of unwritten Constitutions. § 80.
Difficulty of striking a balance between them. Requisites for
safety under each, considered. §§ 81-83.

In the United States all Constitutions, considered as instruments of evidence
except two, have been written Constitutions. § 84.

Distinction between a fundamental law, or Constitution, and an ordinary muni-
cipal law. §§ 85-87.

Two distinct varieties of Constitutions in the United States, — those of the
General Government and those of the States. Distinction between the two.
§§ 89-91.

Rules of construction applicable to each. § 91.

The Constitution of the United States a part of the Constitution of each State,
and the Constitutions of all the States parts of the Constitution of the United
States. § 92.

Both kinds form governments of limited jurisdiction. § 93.

Which of the two is supreme? $§ 93, 94.

Necessity of keeping the two kinds in their operation distinct. § 95.

Opinion of Mr. Webster quoted. § 95.

Internal structure of the American Constitutions. § 96.
Constitutions commonly consist of three parts : —

1. The Bill of Rights. Object and contents of a Bill of Rights. §§ 96-99.
The Federal Constitution has no Bill of Rights, why. § 98.

2. The Frame of Government, description of. §§ 100, 101.

3. The Schedule. Object and contents of a Schedule. § 102.
TABLE OF CONTENTS. xi

Precedents showing the extent to which a Schedule has been em-
ployed. § 103.
Ordinances. Nature and purpose of. § 108 a.

CHAPTER IV.

OF THE REQUISITES TO THE LEGITIMACY OF CONVENTIONS, AND OF
THEIR HISTORY.

Requisites to the legitimacy of Constitutional Conventions. §§ 104—259.
Preliminary observations.
Meaning of the term ‘“‘ legitimacy,”’ and its derivatives. §§ 105-108.
Meaning of the term ‘‘ revolution,” and its derivatives. §§ 109-111.
Importance of defining the term “revolution.” Doctrine of precedents. § 112.
I. The proper mode of initiating or calling a Convention.
The question considered from the point of view of theoretical principles.
§§ 114-124.
But two modes possible : —
1. By the intervention of unofficial persons; that is, by private citizens,
giving expression, perhaps, to a general desire. § 114.
Observations on this mode. §§ 114, 115.
2. By some authentic act of the sovereign body, through some branch of
the existing government. § 116.
Observations on this mode, in general. § 116.
Particulars involved in the term ‘‘ mode.” First, agencies; second, man-
ner of proceeding. § 117.
Examination of the various governmental agencies, with respect to fit-
ness to. discharge the function of calling Conventions. §§ 118-121.
(a.) The electors. § 118.
(6.) The judicial department. § 119.
(c.) The executive department. § 120.
(d.) The legislative department. § 121.
In what manner a Convention should be called. §§ 122-123.
. | Though a Convention be illegitimate, the Constitution framed by it may
become legitimate, how. § 124.
The proper mode of calling a Convention, looking at the question from
the point of view of precedents. §§ 125-259.
Conventions thus far held divided into two great classes: —
(a.) Such as were held during the revolutionary period, from 1775 to
March, 1789. §§ 125-169.
History of the times in which these Conventions were called, and
the general causes by which their legal character was deter-
mined. §§ 126-130.
Advice of the Continental Congress to Massachusetts, New
Hampshire, Virginia, and South Carolina, in 1775, to form in-
dependent governments therein. §§ 127, 128.
General recommendation of the Congress to all the Colonies, of
May 10, 1776, to the same effect. § 128.
TABLE OF CONTENTS.

Observations on this recommendation. § 129.
Conditions and elements of the problem to be solved by our
fathers. § 130.
New Ilampshire Convention of 1775. History and character of.
131.
Now Hampshire Conventions of 1778 and 1781. History and
character of. § 132.
South Carolina Convention of 1776. History and character of
§ 133.
Observations on this Convention. § 134.
South Carolina Convention of 1778. History of. § 135.
Character of the Constitution framed by it. § 136.
Character of the Convention of 1778. § 137.
Virginia Convention of 1776. History and character of. § 138.
New Jersey Convention of 1776. History and character of.
8§ 189, 140.
Delaware Convention of 1776. History and character of. §§ 141,
142.
Pennsylvania Convention of 1776. History and character of,
§§ 148, 144.
Maryland Convention of 1776. History and character of. § 145.
North Carolina Convention of 1776. History and character of.
erat,
Georgia Convention of 1776. History and character of. § 147.
Georgia Convention of 1788, and the two Georgia Conventions
of 1789. History and character of. §§ 148, 149.
New York Convention of 1776. History and character of.
§§ 150-152.
Vermont Convention of 1777. History and character of. §§ 153,
154.
Vermont Conventions of 1785 and 1786. History and character
of. § 155.
Massachusetts Convention of 1778. History and character of.
§ 156.
Massachusetts Convention of 1779. History and character of.
§§ 157, 158.
First Federal Convention — the Continental Congress. Char-
acter of. §§ 159-162.
Mode of ratification of the Articles of Confederation as bearing
on the question of their legitimacy as a Constitution. § 161.
Defects of the government of the Confederation. § 162.
Virginia Resolutions of 1786, and the Annapolis Convention.
§ 163.
Recommendations of the Annapolis Convention. § 163.
Observations on the Virginia Resolutions and ion the Annapolis
recommendations. § 164.
Action of Congress on these recommendations. Call of the sec-
ond Federal Convention. § 165.
TABLE OF CONTENTS. xiil

Character of this Convention. § 166.
State Conventions called to ratify the Federal Constitution.

History and character of. § 167.

Other ratifying Conventions. § 167.
General observations on the Conventions of the revolutionary

period. §§ 168, 169.

(6.) Conventions called since the Federal Constitution went into

operation, in March, 1789.

Several varieties : —

1. Conventions to frame Constitutions for new States to be
formed within the jurisdiction of States, members of
the Union. §§ 170-185.

Provision of the Federal Constitution governing these
cases; names of the States so formed; and requisites
for the legitimacy of the Conventions concerned in form-
ing them. §171.

Case of Vermont. § 172.

Kentucky Convention of 1792. History and character of.
§§ 173, 174.

Maine Convention of 1819. History and character of.
§§ 175-177.

Conventions of Virginia, and of West Virginia, of 1861.
History and character of. §§ 178-185.

2. Conventions called to frame Constitutions for new States to
be formed out of territory of the United States, organ-
ized under its authority, or acquired in an organized con-
dition from foreign States.. §§ 186-216.

(a.) Such Conventions as have been assembled regu-
larly, in pursuance of enabling Acts of Con-
gress. § 187.
(8.) Such as have been convened irregularly, without
enabling Acts. §§ 188-216.
Treaties and deeds of cession bearing on this class of
Conventions. §§ 188, 189.
Tennessee Convention of 1796. History and character of.
§§ 190-197.
Discussion in Congress on the admission of Tennessee into
the Union. §§ 194, 195.
Observations on the Tennessee case. §§ 196, 197.
Michigan Convention of 1835. History and character
of. § 198,

Action of Congress on the admission of Michigan into
the Union. § 199.

Michigan Conventions of 1836. History and character
of. §§ 199, 200.

Observations on the Michigan Conventions. §§ 201-209.

Opinion of John C. Calhoun. § 204.

Opinion of Senator Ewing. § 205.
xiV TABLE OF CONTENTS.

Opinion of Senator Niles. § 206.
Decision of the Supreme Court of Michigan as to the
time when Michigan became a State. § 207.
Decision of the Supreme Court of the United States.
§ 207.
Dissenting opinion of McLean, J. § 208.
Observations on these decisions and on the Michigan
case. § 209.
Other Conventions called without enabling Acts of Con-
gress. General description of. § 210.
Kansas Convention of 1855, at Topeka. History and
character of. §§ 211, 212.
Kansas Convention of 1857, at Lecompton. History and
character of. §§ 213-216.
Opinion of President Buchanan respecting the Lecomp-
ton Convention. § 214.
Refutation of President Buchanan, by Henry Winter
Davis. § 215.
The Lecompton Constitution, action of Congress upon.
The “English Bill.” § 216.
The Kansas Convention of 1858, at Leavenworth. § 216.
The Kansas Convention of 1859, at Wyandotte. § 216.
8. Conventions called to revise the Constitutions, of States,
members of the Union. §§ 217-259.
Various classes : —
(a.) Such as have been convened for legitimate con-
stitutional purposes, regularly :—
I. By the legislatures of the respective States,
acting —

1. In pursuance of special provisions of

their Constitutions. §§ 217, 218.
‘List of these Conventions, and observa-
tions on them. § 218, and note.

2. Under their general legislative power,
without the authorization of their Con-
stitutions. § 219.

List of the Conventions of this class.
§ 219, note.

II. By the electors, choosing delegates to such
Conventions, under the name of Councils
of Censors, at fixed dates, in obedience
to direct Constitutional provision. § 220.

III. By such Councils of Censors, to adopt or
reject the Constitution or amendments

framed by them. § 220.
(b.) Such Conventions as have been called, for legiti-
mate constitutional purposes, irregularly :—

1. In disregard of constitutional provisions pre-
TABLE OF CONTENTS. XV

scribing particular modes in which only
amendments to the Constitution should be
effected. §§ 221-225.

Pennsylvania Convention of 1789. History
of. §§ 221, 222.

Delaware Convention of 1792. History of.
§ 223,

Maryland Convention of 1850. History of.
§ 224.

Observations on the Conventions of this
class. § 225.

2. In defiance of the existing governments of
the States concerned, though in pretended
conformity to constitutional principles.
§ 226.

Rhode Island Convention of 1841 — the so-
called “People’s Convention.’ History
and character of. §§ 226-246.

Previous efforts to secure a revision of the
charter of Charles II. § 226.

“ Suffrage Associations.” “People’s Con-
vention’? called. § 227.

“ People’s Constitution’? formed and pro-
claimed. §§ 227, 228.

Forcible attempts to carry it into effect.
§ 228.

Judicial decisions by State and Federal
Courts relating to the “ People’s Constitu-
tion.” §§ 229-231.

The Rhode Island question considered upon
principle. §§ 232-246.

Argument of B. F. Hallett. § 233.

Argument of Daniel Webster. §§ 234, 235.

Observations on Mr. Hiallett’s argument.
§§ 236-246.

Bearing of the Declaration of Independence
on the question. §§ 240.

Bearing of the Bills of Rights of the States
generally on the question. §§ 241-244.
The author’s view confirmed by considering
the doctrine of Passive Obedience or Non-
Resistance, prevalent at and before the

time of the Revolution. §§ 242-244.

Bearing of the Bills of Rights of Virginia,
Rhode Island, and Maryland on the ques-
tion. §§ 245, 246.

(c.) Secession and Reconstruction Conventions.

§§ 247-258.
xvi TABLE OF CONTENTS.

Secession Conventions. History of the call of.
§§ 247, 248.
Character of. §§ 249, 250.
The first series of Reconstruction Conventions.
History of the,call of. §§ 250-258.
Proclamation of President Lincoln. § 255.
Proclamations of President Johnson. § 257.
Character of these Reconstruction Conventions.
§ 258,
The second series of Reconstruction Conventions.
History of the call of. §§ 258 a-258 c.
Character of these Conventions. § 258d.
Montgomery Convention of 1861. History and
character of. § 259.
Il. By whom Conventions should be elected. §§ 260-266.
(a.) The question considered upon principle :—
1. In times of peace and constitutional order. § 260.
2. When the sovereign political body is in a state of disorganiza-
tion. § 261.
(b.) The question considered in the light of precedents : —
1. Of precedents since the peace of 1783. § 262.
2. Of precedents during the Revolution. § 263.
Exceptional cases considered. §§ 264-266.

CHAPTER V.
OF THE ORGANIZATION AND MODES OF’ PROCEEDING OF CONVENTIONS.

Of the constitution of Conventions. §§ 267-271.
1. Who may be members of Conventions. §§ 267-269.
2. Should Conventions consist of one Chamber or of two? §§ 270, 271.

Of the internal organization of Conventions. §§ 272-274.

Of the call to order. § 273.

Of the officers of Conventions, temporary and permanent. § 274.

Reports of the proceedings, and the debates of Conventions. § 275.

Credentials and list of members. § 276.

Should members of Conventions be sworn? §§ 277-283.

What Conventions have, and what have not, administered an oath. Form of
oath administered. § 277.

Grounds of opposition to administration of an oath. § 278.

Question as to form of the oath. Discussion in North Carolina, in 1835 and
1875. §§ 281, 281 a-283,

Discussion in Illinois, in 1862 and 1869. §§ 282, 283.

Discussion in Ohio, in 1850 and 1878. § 283 a.

Observations upon these cases. § 288 b.

Rules of Order. § 284.

Committees. Employment of, in Conventions. §§ 285-296.

Different modes of proceeding in Conventions: —
TABLE OF CONTENTS. xvii

1, Without Committees. § 286..
2. With Committees. §§ 287-296.
Different modes of proceeding with Committees : —
(a.) With Committee of the Whole only. § 287.
(6.) With a single Select Committee. § 288.
(c.) With a numerous Select or Standing Committees. § 289.
Reasons in favor of Committee of the Whole. § 290.
Objections to Committee of the Whole. § 291.
Reasons in favor of Select or Standing Committees. § 292.
Obdjections to such Committees. § 293.
Precedents as to use of Committees. §§ 294, 295.
Number of Standing Committees, how determined. § 296.
By whom appointed. § 296.
How Conventions employed, whilst Standing Committees are preparing
their reports. § 297.
Reports, how made. §§ 398-301.
How disposed of in Convention. § 302.
Committees on Revision, or on Phraseology and Arrangement. § 303.
Signing of the Constitution, significance of the act. § 304.

CHAPTER VI.
OF THE POWERS OF CONVENTIONS.

Meaning of the term “power.” § 305.
General conception of the Constitutional Convention. § 306.
Two theories as to the powers of Conventions. § 307.
Instances in which the first theory has been propounded. § 808.
Tnstances in which the second theory has been propounded. § 809, 310.
The first theory, that of conventional sovereignty, a novelty. Its history.
$§ 311, 312.
To examine the first theory the principal object of this work. § 813.
Order of the discussion stated. § 314.
I. The powers of Conventions considered with reference to their external
relations ; that is, particularly —
(a.) Their powers in relation to the sovereign, or to sovereign rights.
Are Conventions possessed of sovereign powers? §§ 315-318.
Sense in which Conventions wield sovereign powers. § 319.
(8.) Powers of Conventions growing out of their relations to the state
as a whole, Is a Convention a part of the governmental system
of the state? §§ 820, 321.
Is a member of a Convention an officer? §§ 822-324.
Can a Convention fill vacancies in the governmental depart-
ments? § 325.
Can it eject from office, or direct in the discharge of their duties,
persons holding office in the government? §§ 326-330.
Vacating ordinance of the Missouri Convention of 1865. §§ 327-
330.
xvili TABLE OF CONTENTS.

(c.) Powers of Conventions growing out of their relations to the
electors.
Their relations to the electors in general. §§ 331-334.
Practical questions depending on those relations :—
1. Can a Convention disfranchise any portion of the electors?
§§ 335-337.
True theory of the suffrage. §§ 336, 337.
2. Can a Convention assume the function of the electors to fill ”
vacancies in its own ranks? § 338.
3. Can a Convention authorize the colleagues of a deceased or
resigning member to name his successor? § 339.
4, Can a Convention issue precepts to the electors directing
new elections to fill vacancies in its own ranks? §§ 340-
347,
Case in the Massachusetts Convention of 1853 stated.
§§ 341, 342. ‘
Argument of B. F. Butler. § 343.
Argument of B. F. Hallett. § 344.
Reply of Marcus Morton. § 345.
Reply of Joel Parker. § 346.
Observations upon the Massachusetts case. § 347.
.5. Can the electors fill a vacancy in a Convention at any time
and in any manner they please? §§ 348, 349.
6. Can a Convention receive as a delegate a person elected at
a time or in a manner not provided by law? § 350.
7. Can a Convention limit the discretion of the electors in the
discharge of their appropriate duties? §§ 351-361.
Case in the New York Convention of 1846. §§ 358, 354.
Case in the Louisiana Convention of 1844. §§ 355-357.
Observations on the Louisiana case. §§ 358-361.
8. Have the electors power to instruct their delegates to Con-
ventions? §§ 362-864 a.

(d.) Powers of Conventions growing out of their relations to the
several departments of the government, legislative, executive,
and judicial. §§ 366-449.

1. To the executive and judicial departments. §§ 366-366 a.
2. To the legislative department. §§ 367-449.
General powers of legislatures and Conventions contrasted.
§§ 867, 375.
Two classes of questions considered : —
(a.) Questions relating to the powers of legislatures to
bind Conventions, or of Conventions to nullify
acts of the legislature. §§ 376-418.

1. Can legislatures impose restrictions or limitations
upon Conventions, or issue directions to them,
or dictate their organization or modes of pro-
ceeding? §§ 376-409 e.

General consideration of the question. §§ 377-
882 c.
TABLE OF CONTENTS. xix

Certain directions, limitations, or restrictions, as
to the organization of Conventions, especially in
relation to taking an oath, considered. § 381.

The same in relation to the work of Coonenttonisy
issued —

(a.) By Congress, in enabling Acts, to Terri-
tories. § 381 a.

(b.) By State legislatures in Convention Acts,
requiring Conventions absolutely or con-
ditionally to do certain things, §§ 382,
382 a.

Or, prohibiting them directly or indirectly to do
certain things. § 382 b.

Discussion of the cases cited in the last five
sections, and inferences drawn from them.
§ 882c.

Discussion of the question of the power of legis-
latures to bind Conventions

In the Federal Convention. §§ 383-386.
In the North Carolina Convention of 1835.
§ 387,

Opinion of the Supreme Court of Massachusetts
on, in 1833. § 388.

Observationg.upon this opinion. § 389.

When an Act ofia legislature calling a Conven-
tion has been voted on by the people, what is
the source of its validity? §§ 389-409.

Opinion of the Supreme Court of New York on
this question. §§ 390-392.

Observations upon this opinion. §§ 393-399.

Discussion of the question in the Massachusetts
Convention of 1853. §§ 400-403, 409.

Observations upon this discussion. §§ 404-406.

Opinion of the Supreme Court of Illinois bearing
on the question. §§ 407, 408.

Opinion of the Supreme Court of Pennsylvania
on the question. §§ 409 a-409c.

Action taken by the Pennsylvania Convention of
1872, in consequence of these opinions. § 409 d.

Obéervations upon the Pennsylvaniacase. § 409 e.

Remarks of Judge J. S. Black upon the question.
§ 409 e

2. Can legislatures bind Conventions to submit the

fruit of their labors to the people? §§ 410-

414,

Discussion of this question in the Illinois Con-
ventions of 1847 and 1862. § 414.

3. When a Convention has submitted a Constitution
xx TABLE OF CONTENTS.

at a particular time or in a particular manner,
can the legislature alter the time or mode of

submission? §§ 415-418.

Case in Kansas considered. § 415.
Observations on the Kansas case. $§ 416, 417.
Opinion of the Supreme Court of Delaware, cited.
§ 418.
ae (b.) Questions as to the power of Conventions to legislate,
or to discharge functions imposed by the Federal
Constitution upon legislatures. §§ 419-449.
1. Is a Convention possessed of the power of ordi-
nary legislation? §§ 420-441 d.
The question considered —
First, in the light of principles. §§ 420-425.
Secondly, in the light of custom and precedent.
§§ 426-441 b.
And herein of certain practical questions: —

(a.) Has a Convention power to repeal Acts of
the legislature? Chicago Ordinance of
the Illinois Convention of 1862. §§ 430-
434.

(3.) Have Conventions power to appropriate
money out of the public treasury?
§§ 435-441 B.

2. Can a Convention act as a legislature in mat-
ters required by the Federal Constitution to be
transacted by the legislatures of the States?
§§ 449-447,

There may be two cases: —

(a.) Can a Convention assume, as a legis-
lature, to prescribe the “times, places,
and manner of holding elections for
senators and representatives” in Con-
gress? Case in the Illinois Convention
of 1862. §§ 449-446.

(6.) Can a Convention, as a legislature, ratify
proposed amendments to the Federal
Constitution ? § 447.

3. Can a Convention limit a discretion confided to
a State legislature by the Constitution of the
United States? §§ 448, 449.

4. Can a Convention prescribe what legislature
shall act upon an amendment to the Federal
Constitution proposed by Congress? § 4494.

II. The powers of Conventions considered with reference to their internal
relations; to the perfecting of their organization; to the maintenance
of discipline over their own members, or over strangers; and to the
prolongation or perpetuation of their existence. §§ 450-478.
TABLE OF CONTENTS. xxl

General view of the powers of Conventions in this respect. §§ 451-453.
First. Of powers expressly given. § 451.
Second. Of implied or incidental powers. §§ 453-470.
Power to appoint their own officers. § 454.
Power to supply themselves with stationery, public journals, report-
ers, &c. §§ 454-457.
Power to order printing. § 458.
Power to make and enforce rules of order. § 459.
Power to arrest or punish offences committed against themselves or
their members. §§ 459-472.
1. For offences committed by their own members, in their own
presence. §§ 460-464 a.
2. For offences committed by strangers, §§ 465-470 a.
Case in the Illinois Convention of 1862. §§ 467, 468.
Case in the Louisiana Convention of 1864. §§ 469-470 a.
Privileges of members of Conventions. §§ 471-472 a.
Power of Conventions to prolong or perpetuate their existence. §§ 473-
478,
Reconvocation of the Louisiana Convention of 1864, in July, 1866, con-
sidered. §§ 474-477.
Observations upon the precedents cited in the last seven sections. § 478.

CHAPTER VII.
OF THE SUBMISSION OF CONSTITUTIONS TO THE PEOPLE.

Duty of Conventions to submit the fruit of their labors to the people. Ground

of the duty. § 479.
The duty considered in three cases: —

I. Where neither the Convention Act nor the Constitution requires submis-
sion. §§ 480, 481.
II. Where submission is expressly required. §§ 482, 483.

III. Where submission is expressly dispensed with. §§ 484-486.
Precedents as to submission. § 487 and notes.
Observations on these precedents. §§ 488-490.
Cases of exceptional submission and of non-submission considered. §§ 491-495.
Case of the South Carolina Convention of 1778. § 491.
Case of the Pennsylvania Convention of 1789. § 491.
Case of the New York Convention of 1801. § 492.
Cases of the Secession and Reconstruction Conventions. § 493.
Peculiar mode of submission of the Federal and the Vermont Constitutions.

§ 494.
Cases of the Territories forming their first Constitutions. § 495.
Separate topics necessary to a complete exposition of the subject of this chap-

ter, stated. § 496. ;

I. By whom the particular regulations necessary for submitting Constitu-
tions ought to be made. §§ 497-499.
Theoretical view of the question. § 497.
Xxii TABLE OF CONTENTS.

Precedents. §§ 498, 499.
II. To whom Constitutions ought to be submitted. §§ 500-509 d.

Theoretical view of the question. § 500.

Precedents. § 501-509 b.

General current of the precedents stated. § 501.

Constitutional provisions regulating submission. § 501 a.

Exceptional cases considered. §§ 502-509 b.

Cases of the two Constitutions of the United States. §§ 502, 503.

Cases in which Constitutions were submitted to the electors plus cer-
tain designated classes of persons not entitled to vote, or to the
electors minus certain classes of persons entitled to vote, by exist-
ing laws. § 504.

Discussion in the Virginia Convention of 1829 upon the former mode
of submission. §§ 505-507.

Case of the “ Chicago Ordinance ”’ of the Illinois Convention of 1862.
§§ 508, 509.

Cases in which Constitutions have been submitted to persons quali-
fied to vote, provided they take a prescribed oath. Decisions of
the Supreme Courts of Missouri and of the United States upon
the legality of such a requirement. § 509 a.

Cases of submission to the electors of the State, serving in the armies
of the United States, beyond the State limits. § 5090.

III. Nature of the act performed by the persons or body to whom. submis-

sion is made. §§ 510-513.

The act compared with the three classes of acts — legislative, executive,
and judicial.
(a.) Is it a judicial act? § 510.
(b.) Is it an executive act? §§ 510-512.
The act compared with the three kinds of executive acts: —
1. Administrative acts. § 510.
2. The negative, or veto. § 511.
3. The act of signing or assenting to bills. § 512.
(c.) Is it a legislative act? § 513.
Opinion of Mr. Austin. § 513, concluding note.
IV. In what manner Constitutions should be submitted. §§ 514-520.

Theoretical view of the question. §§ 514, 515.

‘Precedents. §§ 516-520.

Case of the Lecompton Constitution. §§ 517-520.

Objectionable mode of ascertaining the result of a submission em-
ployed by the Arkansas Convention of 1868. § 520, note 1.

The question considered whether a Constitution submitted contrary
to law, and adopted by the people, is valid or not. § 520a.

Observations upon this question. § 520 b.

V. How Constitutions should be certified and promulgated. §§ 521-524.

Precedents stated and considered. §§ 522-524.

When a Constitution takes effect. § 524, note 1.
TABLE OF CONTENTS. XXiil

CHAPTER VIII.
OF THE AMENDMENT OF CONSTITUTIONS.

Necessity of some provision for amending Constitutions. § 525.
Modes of effecting amendments here and abroad contrasted. § 526.
Early views on the subject in this country, unsettled. § 527.
General policy of the American States stated. §§ 528, 529.
I. Modes provided by the various American Constitutions for effecting
amendments: —
First mode, that by the agency of Conventions. § 530, and notes.
Second mode, that by the agency of our General Assemblies. §§ 530,
531, and notes.
II. Excellences and defects of these two modes. § 531.
(a.) The mode by Conventions. §§ 526-531.
Requisites for safety, when this mode is employed. §§ 532-534.
First check or safeguard, by increasing the majority necessary to
call a Convention. § 533.
Second check, or safeguard, by submission of the question of
calling Conventions to the people. § 534.
Precedents. §§ 535-537 a.
Provisions of our Constitutions on the subject, of four kinds :—
1. Such as require the call of a Convention periodically, or at
a specified time. § 535,
2. Such as look to an expression of the sense of the people
on the question of calling a Convention periodically, or
at a specified time. § 535.
8. Such as look to a vote of the people on the question when-
ever the legislature may deem it advisable that a Con-
vention should be called. §§ 535, 536.
4, Such as authorize the call of a Convention whenever the
legislature may deem the amendment or revision of the
Constitution to be necessary. §§ 535, 586.
Constitutions which impose restrictions upon the calling of Con-
ventions, or contain other unusual provisions relating thereto.
§ 537.
Constitutions which contain no provisions for calling Conven-
tions, but only for amendments through the agency of the leg-
islature. § 5374.
(0.) The mode by the agency of the legislature, without a Convention.
§§ 538-543.
Requisites for safety, when this mode is employed. §§ 538-540.
Particular provisions of the various Constitutions prescribing this
mode. §§ 541-543.
Whichever of these two modes is employed, the prior intervention
of the legislature generally necessary. §§ 544-546.
Exceptions considered. §§ 544-546.
Device for effecting amendments to Constitutions in the legisla-
xxiv- ‘TABLE OF CONTENTS.

tive mode, by means of Constitutional Commissions. Cases of
their employment in New York, Michigan, Maine, and New
Jersey. §§ 546 a-546 d,
Practical questions relating to the subject of this chapter. §§ 547-574.
I, What is the nature of the act of a legislature when it participates in
the amending of a Constitution in either of the modes indicated?
§§ 547-550.
1. So far as it prescribes a rule of action, its act is a law. §§ 547,
548,
2. So far as it simply affirms the necessity or expediency of amend-
ments, it is a recommendation merely, and nota law. §§ 549,
550.
Opinion of Mr. Webster and others in the Massachusetts Conven-
tion of 1820. § 549.
Opinion of Mr. Thompson, in the Virginia Convention of 1829.
§ 550.
II. To what extent may a legislature propose specific amendments to a Con-

stitution? §§ 551-555.

Cases of The Siate v. Cox, and of Eason v. The State, decided by the

Supreme Court of Arkansas, stated. §§ 551-553.

Observations upon these cases. §§ 554, 555.
UI. Should specific amendments to a Constitution, made through the agency

of a legislature, be submitted to the Executive for approval. §§ 556-

562.

1. The question considered with reference to the Federal. govern-
ment. §§ 556-560.
Precedents. Opinion of the Supreme Court of the United States.
§ 557.
Discussion in the United States Senate, in 1808. § 558.
Discussion in the United States Senate, in 1865. §§ 559, 560.
2. The question considered with reference to the State govern-
ments. §§ 561, 562.
IV. Two practical questions concerning the amendment of Constitutions
considered : —

(a.) When a Constitution contains a provision for its own amend-
ment in one of the modes above specified, can the other mode
be adopted, or must the mode prescribed be alone pursued?
§§ 568-574 g.

There may be two cases : —
1. Where the Constitution contains provisions forbidding
amendments except in the mode prescribed. §§ 563-569.
Precedents. §§ 564, 565.
Opinion of Senator Bayard, of Delaware. § 566.
Opinion of Senator Johnson, of Maryland. § 567.
Observations upon these opinions. §§ 568-569.
2. Where the terms of the Constitutional provision are per-
missive, without restrictive words. §§ 570-574 g.
Precedents. §§ 570-574 g.
TABLE OF CONTENTS. xXV

Opinions of the Judges of the Supreme Courts of Massa-
chusetts and Rhode Island, bearing on the question.
§§ 573-574.
Opinions of other courts and authorities, and observations
upon them. §§ 574 a-574 g.
(5.) When a Constitution contains no provision for amendments at
all, can either or both modes be pursued? 8§ 563, 574 h.
Extent to which, in the absence of repealing clauses, a new
repeals an old Constitution. § 574%.
The question considered, whether these principles apply to
amendments to the Federal Constitution. § 575.

V. When an amendment to the Federal Constitution, proposed by Congress,

has once been passed upon by a State legislature, can its action after-
wards be reconsidered by it, or by its successor, and reversed? §§ 576-
584.
1. The question in its negative form, where the action of the legis-
lature was to reject, considered. §§ 576-581.
2. The question in its affirmative form, where the action of the legis-
lature was to adopt, considered. §§ 582-584.

VI. When Congress has submitted amendments to the States, can it recall

9 Am P

key

them? § 585.
How long are amendments submitted to the States open to adoption or
rejection by them? §§ 585-586.

APPENDIX.

. Extract from an article in the Revue des Deux Mondes, entitled Du Pouvoir

Constituant, by Edouard Laboulaye. p. 637.

. List ofall the Conventions thus far held in the United States. p. 643.
- Observations of the author upon a notice of this work published by the

German historian Von Holst, in Sybel’s Historische Zeitschrift. p. 656.

. Opinion of the Judges of the Supreme Court of New York touching the

validity of the Act of Assembly passed April 22, 1846, modifying the
Convention Act of May 13, 1845. p. 663.

. Extra-judicial opinions of Judges. Weight to be given them. p. 667.
- Objections of the New York Council of Revision to the New York Conven-

tion Act of 1820. p. 669.
TABLE OF CASES CITED.

A.

Adams v. Bucklin, Appendix E, p.
667.

Amy v. Smith, § 360.

Austin v. The State, § 360.

B.

Bank of the Republic v. County of
Hamilton, § 407.

Barto v. Himrod, §§ 418, 574 b.

Bradley v. Baxter, § 418.

Briscoe v. Bank of Kentucky, § 574 h.

Brittle v. The People, § 381.

Cc.

Campbell v. Fields, § 524.

Campbell v. Morris, § 360.

Case of Borough of West Philadel-
phia, § 418.

Certificate of the Judges of New York,
Appendix E, p. 667.

Chisholm, Ex’r, v. State of Georgia,
$§ 46, 47, 52, 162.

Claimants of the Schooner Brilliant v.
United States, § 53.

Collier v. Frierson, §§ 561, 574 e, 578.

Commonwealth v. Aves, § 68.

Cooley v. Wardens, etc., § 574 h.

Corfield v. Coryell, § 359.

Cummings v. Missouri, § 509 a.

D.

Donnelly v, Fitler, §§ 409, 409 a, 409d,
409 c, 574 b.
Dred Scott v. Sandford, § 360.

 

E.

Eason v. The State, § 553.

Eastern Archipelago Co. v. The Queen,
§ 574.4.

Ex parte Garland, § 509 a.

F,
Field v. The People, § 574 /f.
Foster v. Daniels, § 524.
Fox v. The State of Ohio, § 53.
G.
Green v. Weller, §§ 536, 574 g.
Green v. The Commonwealth, Appen-
dix E, p. 667.
H.
Hamilton v. St. Louis County Court,
§ 98.
Hollingsworth v. Virginia, §§ 557,
574 h.
Hudd v. Timme, §§ 574 ¢, 574 g.
K.
Kamper v. Hawkins, §§ 138, 420.
Koehler v. Hill, §§ 561, 574 a, 574 e.
L.

Luther v. Borden, §§ 184, 227, 228,
230, 231, 233, 351, 434, 520d.
xviii

M.

Maize v. The State, § 418.

Martin v. Hunter, § 47.

Matter of the Executive Communica-
tion from the Governor of Florida,
§§ 574k, 5741,

McCullough v. The State of Maryland,

88 47, 574 h.

M’ Mullen v. Hodge, § 370.

McNaughton’s case, Appendix E, pp.
667, 669.

Memorandum on the legal effect of
opinions given by Judges to the Ex-
ecutive and the Legislature under
certain American Constitutions, Ap-
pendix E, p. 667. ©

Miles v. Bradford, §§ 522, 574 g, 578.

Moore v. The People of Illinois, § 53.

Murray v. McCarty, § 360.

Myers v. The Manhattan Bank, § 207.

N.

New Jersey State Nav. Co. v. Mer-
chants’, Bank, § 574 h.

oO.

Judicial Court of Massachusetts, §§
888, 573, Appendix E, pp. 667, 669.

Opinions of the Supreme Court Judges
of Missouri, Appendix E, pp. 667,
669.

Opinions of the Justices of the Supe-
rior Court of New Hampshire, Ap-
pendix E, p. 667.

Opinions of the Justices of the Su-
preme Court of New York, § 391.
Opinions of the Supreme Court Judges
of North Carolina, Appendix E, pp.

667, 669.

Opinions of the Justices of the Su-
preme Court of Rhode Island, §§
388, 574.

P.

Parker v. The Commonwealth, §§ 411,
418. ‘

Parker v. Smith, § 524.
Penn v. Tollison, §§ 249, 5744,

 

TABLE OF CASES CITED.

Pennhallow v. Doane’s Adm’rs, §§ 21,
52.

People v. Collins, §§ 418, 513.

People v. Gardner, § 524.

People v. Norton, § 524.

Prigg v. Pennsylvania, § 574 h.

R.

Reaper’s Bank v. Willard, § 407.
Rice v. Foster, §§ 418, 422.

S.

Saunders v. Evans, § 574 a.

Schall v. Bowman, § 524.

Scott v. Detroit Young Men’s Society’s
Lessee, § 207.

Scott v. Jones, Lessee, etc., §§ 196,
207, 208.

Sigur v. Cranshaw, § 5741.

Smith v. Bryan, §§ 407, 418.

State v. Cox, § 552.

State v. Dubuc, § 5742.

} State v. McBride, §§ 536, 574 g.
| State v. Swift, § 574 g.

State v. Williams, § 524.
Stewart v. Crosby, § 417.

| Stewart v. Laird, § 574 h.
Opinion of the Justices of the Supreme |

Strader v. Graham, § 191.,
Sturges v. Crowningshield, §§ 93,
574 h.

T.

Taylor v. Place, Appendix E, p. 667.

The Constitutional — Prohibitory
Amendment, §§ 574 e, 574 g.

The Genessee Chief v. Fitz Hugh, §
574 h.

The People ex rel. City of Chicago v.
Coventry, § 432.

The Queen v. Sacheverell, § 242.

The State v. Johnson, § 574 e.

The State ea rel. M’Daniel v. Mc-
Meekin, §§ 12, 30, 47, 53, 382.

The State ex rel. McCready v. Hunt,
§§ 12, 30, 47, 53, 570.

The State of Texas v. White, §§ 250,
252, 258 c.

Thomas v. Daniel, § 136. ;

Trustees University of North Carolina
v. McIver, §§ 574g, 574 h.
TABLE OF CASES CITED. Xxix

Ww. Williams v. Douglass, § 524.
Williams v. Mayor, etc., of Detroit,
Warren v Sherman, § 370. § 5745. ;
Wells v. Bain, §§ 409, 409a, 409 b, | Williamson v. Jones, § 183.
409 c, 520, 5746. Wood’s Appeal, §§ 409 c, 520 a, 520 8,
Weston v. City Council of Charleston, 574 b.
§ 94. Woods v. Blanchard, § 433.

West River Bridge Co. v. Dix, § 574 h.
CONSTITUTIONAL CONVENTIONS.

 

CHAPTER I.
OF THE VARIOUS KINDS OF CONVENTIONS.

§ 1. Iv is my purpose, in the following pages, to inquire irto
the history, powers, and modes of proceeding of the Consrti-
TUTIONAL CONVENTION, one of the most important and most
characteristic of the political institutions of the United States.

Of the American system of government, the two leading
principles are, first, that laws and Constitutions can be rightfully
formed and established only by the people over whom they are
to be put in force; and, secondly, that the people being a cor-
porate unit, comprising all the citizens of the state, and, there-
fore, too unwieldy to do this important work directly, agents or
representatives must be employed to do it, and that, in such
numbers, so selected, and charged respectively with such func-
tions, as to make it reasonably certain that the will of the peo-
ple will be not only adequately but speedily executed.

The function of framing and enacting the statute law is
commonly, by the practice of all representative governments,
intrusted to a numerous body, called a legislature. Constitu-
tions, on the other hand, considered as written instruments, are
the work of various agencies, according to the genius or special
circumstances of the states concerned, some being formed by
the executive branch of the government, some by the legisla-
ture, and some by a body for that purpose specially chosen and
commissioned. Thus, in England, this duty is exclusively com-
mitted to King, Lords, and Commons in Parliament assembled.
Under the imperial régimes of the first and the third Napoleons,
in France, the plebiscites, determining the form and powers of
the government, though nominally the work of the Senate, were
and are really dictated by those monarchs. With us, in Amer-

1 See Works of Daniel Webster, Vol. VI. pp. 221-224.
2 PRINCIPLES OF AMERICAN GOVERNMENTS.

ica, there is set apart a special agency, to which is confided
wholly, or mainly, the business of fundamental legislation, — the
Constitutional Convention. It is this agency which frames our
Constitutions, and which, generally, as changes in them become
necessary, is charged with maturing the needed amendments.
In some cases, under authority for that purpose expressly given,
it both forms and establishes our fundamental codes, but com-
monly it acts in conjunction with some other department of the
existing government; the one presenting, after mature delibera-
tion, in the form of proposals, a connected scheme, and the
other by its sanction imparting to that scheme the force and
vigor of law.

§ 2. To any society, far enough advanced in civilization to
demand as well the ascertainment as the protection of its civil
and political rights, no institution could be of more interest than
one charged thus with the réle of both founder and restorer of its
social machinery. Is this institution, it might be asked, subject
to any law, to any restriction? What claims does it itself put
‘forth, and what do the precedents teach, in relation to its nature
and powers? ‘When called into existence, is it the servant, or
the master, of the people, by whom it was spoken into being?
Whatever be its relations to the general source of. political
power, whether those of subordination or of independence, what
is the place in our system, what are the relations to other gov-
ernmental agencies, the normal functions and powers, of an
institution, that, however hedged about by legal restraints, obvi-
ously exhibits more features that are menacing to republican
liberty than any other in our whole political structure.

§ 3. To the interest attaching to the Convention, thus, from
abstract considerations, has been added a greater, resulting from
the connection of that institution with recent political events.
The desolating war of secession, which closed, in 1865, could
hardly have been inaugurated but for the use made by the re-
volting faction of that institution. For reasons, which will be
more fully explained hereafter, it had come to be a maxim in the '
practical jurisprudence of the United States, at least in some
of the States, that whatever had been done by a Constitutional
Convention, had been done by the people, “in their primary and
sovereign capacity,” and was therefore absolutely unquestion-
able, on legal or constitutional grounds; and there were not
CONVENTIONS AND SECESSION. 8

wanting those who arrogated to that ill-defined assembly, as by-
an extension to it of the absurd maxim, that “the voice of the
people is the voice of God,” an omnipotence transcending that
higher law, to which ordinary legislative assemblies acknowledge
themselves at all times subject. When to this, which is deemed
one of the most impudent heresies of our times, was added its
fellow, the dogma of State sovereignty, with its corollary, the
duty of State allegiance, the transformation of a loyal commu-
nity into a band of parricides seeking to pull down the edifice
of our liberties, need be but the work of a day. To effect it,
there was needed but a vote of a few conspirators, sitting as a
Constitutional Convention, pretending to utter the voice of the
people, and refusing to submit their ordinances to the test of a
popular vote, under the false plea that neither the theory of the
Convention system nor the practice of the fathers made such a
submission necessary.

This picture of treachery and cunning, playing upon popular
ignorance for their country’s ruin, describes with precision the
historical drama that culminated in the secession of the States
of the South, in 1860-1. For, surely, it is not too much to say
that without the moral effect of those disorganizing maxims,
which impressed upon Southern consciences the duty of “ going
with one’s State,” there could have been no victories won by the
armies of treason, even had an outbreak of hostilities been
possible.

Of an institution to which are conceded a position so impor-
tant and influence so decisive, but of which the true character
and relations are so ill understood as to give rise to wide-spread
misapprehensions, no apology is needed for an attempt to de-
velop the history and illustrate the true nature and principles.

§ 4. Before entering upon the task indicated, it is important
to clear the way by carefully discriminating the institution in
question from others known under the same general designation
of Conventions, but differing from it in their essential principles
and functions. ‘To do this, will be the principal object of this
chapter.

There are known to the social life of our times, in America
four species of Conrentions, namely :—

I. Tue Spontaneous ConvENTION, or Pustic MEETING.

Il. Tue Orvinary Lecisuative Convention, or GENERAL
ASSEMBLY.
4 SPONTANEOUS CONVENTIONS.

III. Tue Revoututionary Convention.

IV. Tue ConstitutionaL Convention.

These will now be considered in their order.-

§5. IL By Spronranzovs Conventions, I mean those volun-
tary assemblages of citizens, which characterize free communi-
ties in advanced stages of civilization, having for their purpose
agitation or conference in respect of their industrial, religious,
political, or other social interests. These gatherings are at once
the effects and the causes of social life and activity, doing for
the state what the waves do for the sea: they prevent stagna-
tion, the precursor of decay and death. They are among the
most efficient manufactories of public opinion; or, rather, they
are public opinion in the making, — public opinion fit to be the
basis of political action, because sound and wise, and not a
mere echo of party cries and platforms. Spontaneous assem-
blages, for such purposes, of the masses of a people, betoken a
very high state of civilization, or instincts that are sure to de-
velop into it. To be possible, in perfection, as we see them
amongst us, freedom must be ripe and well-nigh universal. But
when rulers and social institutions do not favor them, to thei
occurrence at all would be necessary a native passion for liberty
strong enough to break all chains, and which could be daunted
by no perils. We are prepared, therefore, to believe that it is
only our own race, here and in England, that has thus far suc-
cessfully vindicated the right of freely assembling. This right
was asserted in England as early as the twelfth century,! history
telling us of the “conventus publicos propria authoritate,”? or
voluntary meetings of the people, under the protection of the
common law. With some fluctuations, as the work of social
development proceeded, this right became more firmly rooted in
the parent soil, and from it a vigorous scion was planted in
America, which has exhibited a still stronger vitality, and now
overspreads the land.’ A common and most invaluable pro-
vision of our constitutions, State and Federal, guarantees to the
people the right “peaceably to assemble and petition the gov-
ernment for a redress of grievances.” The right, thus expressed,

1 For a most excellent view of the vicissitudes of this right under the English
Constitution, see May’s Constitutional History of England, Vol. II. ch. ix.

2 Hinton’s Hist. United States, Vol. II. pp. 324, 325.

3 May’s Const. Hist. Eng., Vol. II. ch. ix,
~

LEGISLATIVE CONVENTIONS. o

involves those of discussing all measures of the government;

of embodying in resolutions or remonstrances the general senti-
ment in regard to the policy and the acts of the public author-
ities ; and, in general, of exercising the privilege, without which
freedom is impossible, of saying and hearing whatsoever one
pleases, being at the same time responsible for abuses of that
privilege! Such is the Spontaneous Convention: a body which
meets upon the call of any individual; adjourns when it pleases ;
is wholly unofficial; whose determinations have no efficacy
whatever, except as expressions of matured or maturing opin-
ion; which is subject to no laws but the lex parliamentaria, —
common sense applied to the action of numerous assemblies, —
and the law which enjoins upon all men to keep the peace;
and yet a body which is quite as important to the continued
healthy life of a commonwealth as either of the four species of
Conventions mentioned.?

§ 6. If. The second species of Conventions, consisting of our
GeneraL AssEMBLIES, is so well known, that I need not dwell
upon it. A General Assembly is, in our American system, a
collection of representatives of the people, freely elected in pur-
suance of the Constitution, and empowered to enact the ordinary
statute law. Deriving its existence and powers from the people,
through the Constitution, it can do nothing except by the author-
ity contained in that instrument, and is, therefore, official, or vi-
carious, but at the same time subaltern, — the people being the
principal and paramount source of power. Yet, as we shall
have occasion to note hereafter, though subordinate in relation
to the people, considered as the creator of the government and
Constitution, the legislature is nevertheless prima inter pares,
when compared with other departments of the government; or,
as it has been expressed by speculative writers, is more nearly
sovereign than any of the departments which are ordinarily
regarded as codrdinate with it.

1 “ This is true liberty, when free-born men
Having to advise the public nay speak free,
Which he who can, and will, deserves high praise ;
Who neither can nor will may hold his peace.
What can be juster in a state than this ? ”
Mitton, Areopagitica, from EURIPIDES.
2 See remarks of Dr. Lieber on this class of Conventions, Politic Ethics,
Part Il. p. 467.
6 REVOLUTIONARY CONVENTIONS.

§ 7. ILL, The third species of Conventions, as its name im-
plies, is a part of the apparatus of revolution. It consists of
those bodies of men who, in times of political crisis, assume, 01
have cast upon them, provisionally, the function of government.
They either supplant or supplement the existing governmental
organization. The principal characteristics of this species are,
that they are dehors the law; that they ‘derive their powers,
if justifiable, from necessity, —the necessity, in default of the
regular authorities, of protection and guidance to the Common-
wealth, — or, if not justifiable, from revolutionary force and vio-
lence; that they are possessed, accordingly, to an indeterminate
extent, depending on the circumstances of each case, of govern-
mental powers ; finally, that they are not subaltern or ancillary to
any other institution whatever, but lords paramount of the entire
volitical domain. To this may be added, that they are of no
definite numbers or organization, comprising sometimes one
and sometimes several chambers, and composed indifferently of
ex-officers of the government that was, of persons possessing
neither office nor the qualifications requisite for it, nor even for
the elective franchise, or of a mixture of all of these together,
as chance may have tossed them to the surface. The general
purpose of the Revolutionary Convention, moreover, is to bridge
over a chasm between two orders of things: an order that has
expired or been extinguished; and an order emerging, under the
operation of existing social forces, to replace it. In short, a
Revolutionary Convention is simply a Provistonan Govern-
MENT.

§ 8. Examples of the Revolutionary Convention have been
numerous in the political history of the world, and they are be-
coming daily more so. Among the most famous and, for our
purpose, the most important, are those held in England in 1660
and in 1689.

In those cases the ruling dynasty having abdicated the throne,
or been expelled from it, there was in the kingdom not only no
organized government, but no central authority legally com-
petent to institute one. There was, it is true, the people of
England, but they could not so assemble as to act as a unit.
The parliament had ceased, in law, to exist with the reign of
the monarch by whose writ it had been summoned, and no new
parliament could be legally called, because for that the royal
REVOLUTIONARY CONVENTIONS IN ENGLAND. 7

writ was absolutely necessary. In these alarming crises, and as
the last and only resource for temporary government, as well as
for providing the initial points of new organizations, Conventions
were summoned. ® That called in 1660 consisted of persons
elected by the several constituencies of the realm, as for a lawful
parliament, but elected illegally, on the recommendation of a
rump of the old Parliament, which had been dispersed by the
army under Richard Cromwell, and, for that reason, as Ma-
caulay observes, more accurately described as a Convention, as
having been called without the royal writ... The Convention of
1689, summoned by the Prince of Orange, afterwards Wil-
liam TII., on his accession by force to the throne left vacant by
James II., consisted of persons elected in a similar manner, on
the call of the usurping prince, issued at the recommendation
of the lords spiritual and temporal at the time in London,
forming a quasi House of Lords, and of old members of the
House of Commons, together with the magistrates of the city
of London, acting as a House of Commons. This Convention,
also, though made up of members chosen by the electors for
members of Parliament, in their several districts, was not styled
or considered a Parliament, because called by a person not con-
stitutionally authorized, acting on the advice of an assembly,
which, though regarded by the nation with a large measure of
the respect due to a Parliament, on account of the eminence
and former official station of its members, was yet without a
shadow of legal authority. The proceeding was revolutionary,
and so universally admitted to be. Such were the two great Eng-
lish Conventions, the models after which most subsequent bodies
of the same class have been formed or organized, both in this
country and in Europe, and of which, as we shall see, our Con-
stitutional Conventions are special adaptations or modifications.
They were Provisional Governments,— the only governments
England had during the periods of their existence. And for our
purpose it will be interesting to note further, that the English
Convention of 1689, having taken steps, as a revolutionary body,
to’ settle the succession to the throne, passed a bill declaring
itself to be a parliament, and from that time acted as such in
conjunction with the king it had itself called to the throne.’

1 Macaulay, Hist. Eng., Vol. I. ch. i.
2 Id. Vol. II. ch, xi.
8 REVOLUTIONARY CONVENTIONS IN AMERICA.

§ 9. Interesting examples of the Revolutionary Convention
are found in our own history. The first occurred in New Eng-
land simultaneously with the English Convention of 1689, its
assembling being the result, in part, of the 8ame causes which
led to that, but, in part, of causes local to New England. Both,
however, were called and composed in a similar manner, and
organized after the same model, that of 1660, convened at the
time of the Restoration.1

The leading facts in the history of that held in New England
are as follows : —

Whilst the tyrannical acts of James II. were, in England, ex-
citing the discontents which finally led to his abdication, those
of Sir Edmond Andros, the Governor of Massachusetts, were
arousing the fiercest opposition in New England, against both
the colonial and the imperial administrations. It is believed
that as early as January, 1689, before the news of the landing
of the Prince of Orange in England had reached the colony,
arrangements had been made in the latter to rise against the
unpopular governor. So soon as that news arrived an outbreak
occurred. On the 18th of April, a “Declaration of the Gentle-
men, Merchants, and Inhabitants of Boston and the country
adjacent,” was published, recounting their oppressions, and an-
nouncing their purpose to “seize upon the persons of those few
ill men which have been (next to our sins) the grand authors of
our miseries.” The governor and the magistrates and crown
officers adhering to him, were accordingly thrown into prison;
the castle was occupied by colonial militia, and an English frig-
ate, lying in the harbor, was forced to surrender. On the day
following this revolutionary outbreak, the leaders in the move-
ment with twenty two others, whom they now associated, formed
themselves into a Provisional Government, under the name of a
“ Council for the Safety of the People and Conservation of the
Peace.” Feeling the weakness of their position, since they
“held their place neither by deputation from the sovereign nor
by election of the people,” and hesitating to set up again the
charter, “ formally condemned by the King’s courts,” “ they de-
cided to call a Convention, to consist of two delegates from each
town in the jurisdiction, except Boston, which was to send four”
This Convention met on the 9th of May, and attempted to put

1 See § 133, post.
? Palfrey’s Hist. New Eng., Vol. III. pp. 574-587.
REVOLUTIONARY CONVENTIONS IN AMERICA. 9

the charter in force, but meeting with opposition from the mag-
istrates, steps were taken to call a second Convention with
“ express instructions from their towns.” Fifty-four towns sent
delegates to this latter Convention, the large majority of them
with instructions to insist on the resumption of the charter.
After two days’ debate, the governor and magistrates, chosen at
the last election under the charter, were prevailed upon “to assume
the trusts committed to them, and, in concert with the delegates
recently elected, to form a General Court,” or Legislature, “ and
administer the colony, for the present, according to the ancient
forms.” 1

Two days after this revolutionary government was established,
a ship arrived from England with the news that the revolution
there had succeeded, and bringing orders to the authorities to
proclaim King William and Queen Mary.

The Convention, organized as above stated, by which this
revolution was effected, was evidently of the species I have de-
nominated Revolutionary Conventions. It rested for its warrant
upon necessity, and sought its ends through force. It was a
government, intended to supplant another government, and not
merely a political institution designed to be subservient to a
government conceived of as existing in full activity.

§ 10. Thus the Revolutionary Convention became domesti-
cated in America. Since this first appearance, there have been
numerous others, a few during the colonial condition, but most
of them in the course of our two great civil revolutions, those
of 1776 and 1861. As we shall see in a subsequent chapter,
most of the organizations, by which, under the names of “ Pro-
vincial Conventions,” or “ Provincial Congresses,” the first of
those revolutions was consummated, and all of those by which
the late secession movement was carried through, were strictly
Revolutionary Conventions.

One of the best known examples of the Revolutionary Con-
vention is the National Convention, by which was effected
the bloody overthrow of the old feudal monarchy of France at
the close of the last century. Enough has been said, however,
to show the characteristic features of an institution, too often, as
we shall see, confounded with the Constitutional Convention, to
which I now pass.

1 Palfrey’s Hist. New Eng., Vol. II. pp. 587-589.
10 CONSTITUTIONAL CONVENTIONS.

§11. IV. The last species of the Convention is the Constr
TUTIONAL Convention. It differs froin the last preceding, in
being, as its name implies, constitutional; not simply as having
for its object the framing or amending of Constitutions, but as
being within, rather than without, the pale of the fundamental
law; as ancillary and subservient and not hostile and paramount
to it. This species of Convention sustains an official relation to
the state, considered as a political organization. It is charged
with a definite, and not a discretionary and indeterminate, func-
tion. It always acts under a commission, for a purpose ascer-
tained and limited by law or by custom. Its principal feature,
as contradistinguished from the Revolutionary Convention, is,
that at every step and moment of its existence, it is subaltern, —
it is evoked by the side and at the call of a government preéxist-
ing and intended to survive it, for the purpose of administering
to its special needs. It never supplants the existing organization,
It never governs. Though called to look into and recommend
improvements in the fundamental laws, it enacts neither them
nor the statute law; and it performs no act of administration.
As John Randolph said in the Virginia Convention of 1829, it is
called as counsel to the people, “as a state pbysician, to pro-
pose remedies for the state’s diseases.” But it is a physician
whose ministrations are confined to the extraordinary maladies
requiring a fundamental change in the Constitution, not to those
constantly recurring but petty disorders which demand the inter-
position of the ordinary legislature.

§12. It is apparent that institutions, whose definitions thus
mutually exclude each other, cannot be the same, however simi-
ar the names by which they are popularly known.?

But it may happen, (instances will be hereafter mentioned in
which it has happened,) that the Constitutional Convention
may, by usurpation, assume one or more of the powers of the
Revolutionary Convention; or that the latter may exercise those
of the former. How, in such a case, is the usurping body to
be classed? This question is one of great importance, but is
susceptible of a ready answer.

1 Iam gratified to be able to fortify myself in the distinctions here made
between Constitutional and Revolutionary Conventions by the authority of a
judge of the South Carolina Court of Appeals, in an opinion delivered upon

the hearing of the so-called allegiance cases. See the opinion of Mr. Justice
O’Neall, 2 Hill’s S. C. R., 222.
HISTORICAL SUMMARY. 11

A Revolutionary Convention, because it is, ex vi termini, un-
limited, in respect of both the kind and the degree of its powers,
may take upon itself the functions of either of the three lower
species of conventions, under the same warrant by which it jus-
tifies the assumption of revolutionary powers. A body which
can, violently and without law, uproot all existing institutions,
can clearly do the lesser act of digesting, or even of enacting,
amendments to the Constitution. But, in doing so, it does not
change its original character ; it is still a Revolutionary Conven-
tion, and all its acts must stand on the footing of those which
involve the widest stretch of power.

But the converse of this proposition does not hold true. If a
Constitutional Convention step outside the circle of the: law, it
does not continue to be a Constitutional Convention, but, so
far, becomes that whose powers or methods it assumes, —a
Revolutionary Convention. It leaves the domain of law, which
is one of specified and restricted powers, and enters upon that
of arbitrary discretion, within which law is silent, and where he
is master who wields the greater force.

Whenever, therefore, a Constitutional Convention, appointed,
as we shall see it usually is, for a specific duty under the Con-
stitution, presumes to overpass the limits imposed by its com-
mission, by custom, or by the maxims of political prudence,
and to do acts requiring the exercise of a revolutionary discre-
tion, it ceases to be a Constitutional, and becomes, in the eye of
the law, ab initio, a Revolutionary Convention.

§ 13. If I mistake not, in the confounding of the distinctions
noted in the preceding sections between the Constitutional and
the Revolutionary Convention, will be found the origin of the
most fatal misconceptions attaching to any part of our political
system. ‘To show how those misconceptions arise, as well as to
obviate their effects by bringing into as clear a light as possible
the distinctions indicated, it is necessary to inquire into the
genesis and historical development of the Constitutional Con-
vention.

The history of that institution may be summed up in a few
words; it is an adaptation to the exigencies of constitutional
life and government, in the United States, of the Revolutionary
Convention, as derived from our English ancestors of 1660 and
1689. How the transformation occurred, by which the wild
12 HISTORICAL SUMMARY.

scion from the woods was domesticated in the garden of the
Constitution and made to subserve the purposes of regulated
life, will now be shown.

When the American colonies assumed the position of in-
dependent States, the revolt, by which the change in their
political relations was accomplished, was conducted by revo-
lutionary conventions in the several States, patterned after those
described in the previous sections of this chapter. In other
words, our fathers borrowed the revolutionary machinery which
history showed to have been so efficacious in the time of
Charles II. and James II., as they also, in general, inherited the
political principles and the forms of administration of the
mother-country. Thus, the institution was planted upon Amer-
ican soil.

The next step, if less obvious, was not less important. The
Revolution accomplished, when our fathers came to embody the
rights achieved by it in institutions independent of the crown,
two circumstances led them to establish governments limited to
the exercise of granted powers. The first of these was affection
for their charters, so long, in many of the colonies, the most
effective barriers against parliamentary oppression ; the second,
apprehension of an American monarchy, — a mere phantom, as
we now know, but a phantom which, at that time, to many
imaginations, threatened immediate and serious evils. How-
ever this may be, the tendency indicated was universal, and
has given character to our political institutions to this day.

But it was not forgotten that the colonial charters were mere
royal grants, and that the tenures by which they were held had
sometimes been very insecure. Here, it is true, there was no
sovereign authority but the people, represented chiefly by the
General Assemblies, a circumstance which might be thought to
render the wrongful abrogation of their charters improbable,
if not impossible. But as the worst oppressions, experienced
by them as colonies, had been at the hands of Parliament, —a
popular assembly, in theory, if not in fact, representing the
Commons of the whole empire, — might not their own assem
blies in time become their oppressors, especially if allowed to
retain not only the power of ordinary legislation, but that tran-
scendent one exercised by the English Parliament, of framing
the organic law ?
HISTORICAL SUMMARY. 13

This apprehension, nearly universal at the time of our separa-
tion, led the statesmen of the Revolution to seek some other
depositary of the latter power. This they found in Conventions,
called by the governments in force in the several colonies,
modelled, in point of structure and organization, after the Rev-
olutionary Conventions, with which they were so familiar, but
charged with the single function of maturing the charters, or
Constitutions, rendered necessary by the altered condition of
their affairs. As thus used, the Convention ceased to be the
revolutionary body which had alone been known by that name
in former times. But it was the same institution, for our
fathers knew no other, but the same with important differences.
Brought into operation as a regular constitutional agency, in aid
of a system established, it was shorn of the extraordinary
powers possessed by it when it was itself the government; the
government, too, of a state in a time of social upheaval and
transition, in which the laws were silent, and those intrusted
with the public administration were restrained by no law but
that of the strongest.

§ 14. It is not my purpose here to trace at any great length
the limits of this new development. It.is enough to observe,
that the change began with the Revolution, of the fruits of
which it constituted so valuable and characteristic a part. It
was not accomplished, however, in a moment, nor can it be said
to be even yet completely consummated, since there are doubts
and misconceptions widely prevalent regarding it, which are in-
consistent with the idea of a perfect development of the new
institution. An important step in that development has only
lately been taking, in the case of the Lecompton Convention,
so-called, of the Territory of Kansas. In the discussion of that
case, in 1857-9, the question, whether or not a Constitutional
Convention has power either to refuse to submit the fruit of
its deliberations to those who are to be governed by it, or to
submit it to them in such a way as to deprive them sub-
stantially of a voice in determining its form and character, was
for the first time definitively settled. The same process will
doubtless continue in the future.

When the first Constitutions were framed for the colonies, in
1776, the limits and distinctions, above explained, were far less
understood than they have since become. In a subsequent
Id MISCONCEPTIONS REGARDING CONVENTiONS.

chapter it will be seen that the most important principle in the
Convention system — that which requires the Constitutional Con-
vention to be kept totally disconnected, as well in theory as in
practice, from the Revolutionary Convention — was sometimes,
in those early days, disregarded. The statesmen of the Revolu-
tionary period, though familiar with the principles and, to some
extent, with the administration of the English government, were
necessarily less so with those that were springing up about
them ; and of the features indispensable to be impressed upon an
old institution coming now to be employed for a new constitu-
tional purpose, so as to render its working easy and safe, they
were wholly ignorant. Accordingly, in their first essays at con-
stitution making, partly from this ignorance and partly from the
urgent needs of the time, they allowed the functions of the Con-
stitutional Convention, in some cases, to be exercised by its
revolutionary prototype, —the Revolutionary Conventions as-
suming the duty, with others, of framing their first constitutions.

But, if the necessity of keeping the two institutions distinct
was not at first generally apparent, it required but little experi-
ence of actual administration to convince men as intelligent and
jealous of their liberties as our fathers, that if, to the function
of suggesting, the Constitutional Conventions, becoming so
common amongst them, should join that of establishing, their
Constitutions of government, and not only so, but of framing
and administering the ordinary laws of their respective States, as
being but the less involved in the greater power, there would be
practically no security at all for their liberties. Accordingly, we
find that the cases in which the incompatible functions indi-
cated were actually accumulated in the same hands were con-
fined to the first years of the war, when the idea had not been
dissipated that a satisfactory peace with England would soon
make unnecessary the continuance of the State organizations,
thus far regarded as temporary establishments for the govern-
ment of the colonies, whilst the contest with England should
continue.

§ 15. We are to conceive of the Constitutional Convention,
then, as an adaptation to constitutional uses of an institution
originally revolutionary ; that is, whose methods and principles
of action, as well as whose purposes, were alien and hostile to
established laws and Constitutions. And this is the real occa:
MISCONCEPTIONS REGARDING CONVENTIONS. 15

sion of most of the misconceptions prevalent as to its true char-
acter. Thus, the notion has been common among even the
well-informed, that the Constitutional Convention is above the
law, the Constitution, and the government, all of which it may,
therefore, it is conceived, respect and obey or not at its discre-
tion; that it is possessed, in short, of the powers of its revolu-
tionary namesake.

The origin of this misconception is ignorance of the simple
facts of our constitutional history above detailed, and of the
principles of our political system. To determine the rightful
powers of the institution as adapted to our constitutional uses,
men point to the English Conventions of 1660 and 1689, to that
of the latter year in Massachusetts, to those by which our first
Revolution was, in the various American colonies, begun and
consummated. Those bodies, which, unquestionably, in many
cases, framed Constitutions, were known to be possessed of other
and extraordinary powers. They were called by high-sounding
titles: “ The Estates of the Realm ;” “ The People in their Pri-
mary and Sovereign Capacity ;”” — phrases, in whose indefinite-
ness could be discovered, or concealed, all possible attributions
of power. The error has received additional currency from the
extraordinary proceedings of the Conventions held in France,
particularly that which piloted her upon the breakers in the
closing years of the last century.! Was not the Convention of
our first ally, it is asked, which uprooted the monarchy and
laid the foundations of the French Republic, an institution bor-
rowed from us,— an institution, therefore, which has not here
developed the extraordinary powers, exhibited by it in France,
only because our occasions have never called them forth? The
upshot of this reasoning is, the establishment of the axiom,
that a Constitutional Convention wields all the powers, which,
by the law of nature or of nations, are conceded to exist in
the sovereign for which it acts —a degree of omnipotence to
which, in a government of law, there can be found no parallel,
and which is inconsistent with the fundamental principles of
American liberty.

§ 16. The Constitutional Convention, then, I consider as an
exotic, domesticated in our political system, but in the process
so transformed as to have become an essentially different insti-
tution from what it was as a Revolutionary Convention. In

1 See Appendix A, post.
16 FUNDAMENTAL CONCEPTIONS.

the following pages an attempt will be made to vindicate the
accuracy of that view by inquiring into the institution in all
its relations, as well to the people as to the government in its
various departments, connecting with the theoretical considera-
tions necessarily involved in the discussion, historical sketches
of such Conventions as have thus far been held in the United
States.

§ 17. Before proceeding to this inquiry, it will be useful to
develop, with such completeness as space will allow, two funda-
mental conceptions, to which reference will be constantly made
in the following pages, — that of Sovereignty, or of a sovereign
Body ; and that of a Constitution, or Law fundamental, as dis-
tinguished from an ordinary municipal law.

Without an accurate comprehension of these two subjects, it
will be impossible to arrive at the truth in relation to the institu-
tion we are considering, since the first, being the source and
foundation of all just authority in the state,! determines its
powers ; and the second, being the object, to create which or to
aid in creating which that institution is employed, ascertains the
field of its operations. To these conceptions, therefore, will be
devoted the two following chapters.

1 The word state is used in this treatise, first, generally, to denote any organ-
ized political community ; that is, synonymously with commonwealth; and,
secondly, in a limited sense, to designate a member of the American Union.
When employed in the former sense, it begins with a small letter, and when in
the latter, with a capital.
CHAPTER II.
OF SOVEREIGNTY.

§ 18. By the term sovereign is meant the person or body of
persons in a state, to whom there is, politically, no superior.)
Sovereignty is the state or condition of being a sovereign — the
possession of sovereign powers.

§ 19. The marks by which the possession of sovereignty may
be determined, in particular cases, have been thus described by
Mr. John Austin, one of the most eminent authorities upon the
philosophy of jurisprudence : —

“The superiority,” says he, “ which is styled sovereignty, and
the independent political society which sovereignty implies, is
distinguished from other superiority, and from other society, by
the following marks or characters: —

1 The term sovereign is derived from a low-Latin word, supranus, formed from
supra, by the following transformations: soprano, sovrano, souverain, sovereign.
Du Cange, in verb. Milton spells the word sovran. Richardson’s Dictionary, in
verb.

The meaning of the term sovereignty, then, is simply superiority ; but it is,
humanly speaking, an absolute superiority. Rutherforth, in his Institutes of
Natural Law, contends, not without reason, that when we speak of relative
superiority, we use the word supremacy. He says: — ‘‘ Whenever we speak of
sovereign power or of supreme power, we are led into some mistakes by using
these words indiscriminately. When we call any power supreme, the expression
seems to be relative to some other subordinate powers; to call any power the
highest of all is not very intelligible, if there are no other powers below it.
Sovereign power is also a relative term; but then it has not a necessary relation
to subordinate powers. To call any power by the name of sovereign power,
does not necessarily imply that there are any other powers in subordination to
it. Whatever power is independent, so as not to be subject to any other power,
though it has in the mean time no other power subject to itself, may with pro-
priety enough be called by this name. In short, that power may well he called
sovereign to which none is superior; whereas none can be called supreme,
unless there are others inferior to it.” Book IL ch. iv. pp. 75, 76.

2 Dr. Lieber, in his Political Ethics, defines sovereignty from the point of
view of its moral limitations, thus: “The necessary existence of the state, and
that right and power which necessarily flow from it, is sovereignty.”
18 MARKS OF SOVEREIGNTY.

“1, The bulk of the given society are in a habit of obedience
or submission to a determinate and common superior, let that
common superior be a certain individual person, or a certain
body or aggregate of individual persons.

“2. That certain individual, or that certain body of individ-
uals, is not in a habit of obedience to a determinate human
superior. eo 8

“ Or, the notions of sovereignty and independent political soci-
ety may be expressed concisely thus: If a determinate human
superior, not in a habit of obedience to a like superior, receive
habitual obedience from the bulk of a given society, that deter-
minate superior is sovereign in that society, and the society (in-
cluding the superior) is a society political and independent.” ?

§ 20. It is impossible to describe sovereignty with greater
completeness or felicity, but I shall venture to add to the marks
given by Mr. Austin two not unrelated to them, expressed in
terms more familiar to the jurisprudence of the United States.
They are these : —

1. Whenever, within the same territorial limits, there exist
two political organizations, or two political entities, so related
to each other that one determines its own powers and jurisdic-
tion, and, in so doing, limits, enlarges, or abolishes those of the
other, being at the same time itself, not only subject to no recip-
rocal modification, but independent of all the world, the former
is a sovereign organization or entity, and the latter is not.

2, Whatever, historically considered, may have been the orig-
inal relations of two political bodies at present distinguished
from each other by the mark indicated, the powers wielded by
the inferior must be conceived as delegated by the superior, since
at no moment would its possession of them continue without
the consent of that superior.?

This follows from the definition of sovereignty, and will aid
us further on, when we come to consider the question of sover-
eignty in the United States.

§ 21. With the abstract question of the ground upon which
the right of sovereignty rests, I shall not concern myself.8

1 Austin, The Province of Jurisprudence Determined, Vol. I. p. 170.

2 Td. p. 337,

8. The principal theories as to the ground of sovereignty, and, consequently,
as to the ultimate foundation of civil government, are, that it rests, first, upon
WHERE SOVEREIGNTY RESIDES. 19

A question of less difficulty, and, for my purpose, of greater
practical importance, is, where — theoretically considered, and
without reference to particular states — does sovereignty reside,
and what are its attributes ?

To the first branch of the question, the answer is: sover-
eignty resides in the society or body politic ; in the corporate unit
resulting from the organization of many into one, and not in

Divine appointment ; secondly, upon compact, and, thirdly, upon the development
of natural forces, according to natural laws.

In reference to these theories, I shall only observe, that, rightly considered,
they and the numerous modifications of them, which figure in the books, seem
to me to be expressions of the same truth, seen from different points of view,
and naturally seen with different degrees of clearness and completeness. Thus,
if the phenomena of civil society be viewed with particular reference to Divine
Providence, whose interposition, whether special or general, through the oper-
ation of natural laws, is unquestionably a principal, if not the exclusive compo-
nent of the forces whose resultant is the state, the ground of those phenomena
might, not without apparent reason, be regarded as the Divine will. Let the
attention, on the other hand, be directed chiefly to the fact, apparent in any
political society during even the stormiest periods of its history, that the bulk,
the majority in weight and influence, if not in numbers, of its members, acqui-
esce in, (see post, § 65,) perhaps have formally assented to, the forms of its
social and political organization, and it would seem proper to refer those forms
to a compact between the individuals composing it. But if, beside the Divine
will, and beside the apparent consent or agreement of those who constitute the
bulk of a society, account be taken, as it certainly ought, of the will of men,
often perverse, always unstable, and which, if a will at all, whatever theologians
may say, is not determined by the Divine will, but is independent of it; the
will of men, too, not comprised in that bulk of the society which seems to organ-
ize political institutions by compact, but constituting a protesting or rebellious
minority, by whose hostile pressure or assault those institutions are modified,
though not determined ; and if, further, account be taken of the natural or hise
torical conditions of soil, climate, laws, degree of civilization, habits, passions,
aversions, religion, and race, all of which are constantly appearing elements of
the social problem in every state, whatever its rank in the scale of civilization ;
it would seem reasonable to ground sovereignty and civil government upon the
development’ of natural forces, according to natural laws. By this view, the
problems of political philosophy are problems of vital dynamics; the state is
an object of natural history, like a coral reef, a swarm of bees, or a family of
beavers ; a composite animal, a union of many persons into one, but a vital
union, not a mere aggregation by accident or choice of individuals by nature
independent of each other; a union dating from the creation of the parts, and,
therefore, under some form and conditions, a necessary union. The way in
which such a composite being achieves what measure it does of social life and
development, under the combined operation of all the social forces indicated,
together with the modes of operation of these forces, are the constitution and
laws of that being.
20 ATTRIBUTES OF SOVEREIGNTY.

the individuals constituting such unit, nor in any number of
them as such, nor even in all of them, except as organized into
a body politic and acting as such. Thus, Justice Iredell, in a
case in the Supreme Court of the United States, decided in
1795, after describing the formation of our governments, said:
“ In such governments, the sovereignty resides in the great body
of the people, but it resides in them not as so many distinct
individuals, but in their political capacity only.” ?

§ 22. As to the second branch of the question, relating to the
attributes of sovereignty, little need be said. The attributes of
sovereignty, mentioning such only as tend to throw light upon
the problems discussed in this work, are as follows : —

1. A true sovereign can never voluntarily abdicate or divest
itself of the sovereignty. A sovereign political society may
cease longer to exist as such, — may become merged in another
society, and so lose its sovereignty; but so long as it remains
an independent political society, it must possess and exercise
sovereign powers.

2. Sovereignty is indivisible. To establish this, we need but
to try to conceive of the contrary. If the sovereignty of a state
were divided among its citizens, whether a few or all of them,
the recipients of it would each be possessed of equal sovereign
power, and, there being no common superior, government would
be impossible.”

3. Sovereignty is indefeasible; that is, it is incapable, by any
juggle based upon legal analogies, of being defeated or abro-
gated. As expressed by James Wilson, in the Convention of
Pennsylvania to adopt the Federal Constitution, “ sovereignty is
and remains in the people.”

4, Sovereignty is inalienable; that is, “ society never can dele-
gate or pledge away sovereignty.” “ Being inherent, naturally

1 Penhallow v. Doane’s Admrs., 8 Dallas’ BR. 54. See, also, to the same point,
the testimony of Judge Tucker, in Tuck. Blackst. Com., Vol. I. Appendix, p. 9,
ed. 1803.

So, also, Dr. Brownson: “ The political sovereignty, under the law of nature,
attaches to the people, not individually, but collectively, as civil and political
society. It is vested in the political community or nation, not in an individual
or family, or a class.” — The Amer. Republic, p. 135.

2 For a statement of the absurd consequences of a divisible sovereignty, see
Lieber’s Political Ethics, Vol. I. p. 252. See also Brownson’s American Re-
public, pp. 192-196.

3 Lieber’s Polit. Ethics, Vol. I. p. 251.
MODES OF MANIFESTATION OF SOVEREIGNTY. 21

and necessarily, in the state, it cannot pass from it so long as
the latter exists.” 1

By this is not meant that the exercise of sovereignty may not
be delegated. Such a delegation is of the essence of govern-
ment. But to delegate to another the exercise of a power
within prescribed limits, or for a determinate time or purpose, is
no alienation of it, but supposes it to be still virtually in the
original hand.

5. Sovereignty, as we have said, is indivisible, but the sover-
eign body itself is not. The latter may be divided into several
sovereigns, each distinct and independent. To be convinced of
this, we have but to imagine a body politic split by overwhelm-
ing force into several parts. The fragments survive the shock,
become new independent societies, and run separate careers.
Each is a sovereign society. An instance of such a disruption
occurred in the British empire at the time of the American
Revolution. Previously to our Declaration of Independence,
England was, as she has ever since continued to be, a sovereign
society, but of that England the colonies formed a part. When
the connection was severed, the “ United Colonies,” by which
the separation was effected, became a new political society, in-
dependent of the crown, and, as such, invested with all sovereign
rights.

6. Finally, two or more sovereign bodies may by force or by
consent become united and form a new political society. In
such a case, sovereignty forsakes the composing units and be-
comes inherent in the resulting aggregate. To have that effect,
however, it is doubtless necessary that the union should not be a
mere juxtaposition, but a fusion, of the constituent elements.

§ 23. The characteristic marks and attributes of sovereignty
being comprehended, it is important to ascertain the various
modes of its manifestation.

Sovereignty manifests itself in two ways: first, indirectly,
through individuals, acting as the agents or representatives of
the sovereign, and constituting the civil government; and, sec-
ondly, directly, by organic movements of the political society
itself, without the ministry of agents; the movements referred
to exhibiting themselves either in those social agitations, of
which the resultant is known as public opinion, that vis a tergo

1 Lieber’s Polit. Ethics, Vol. I. p. 250.
22 DIRECT MANIFESTATION OF SOVEREIGNTY.

in all free commonwealths, by which the machinery of govern-
ment is put and kept in orderly motion; or in manifestations of
original power, by which political or social changes are achieved
irregularly, under the operation of forces wielded by the body
politic itself immediately.

Of the two direct manifestations of sovereignty indicated,
public opinion is by far the most important, the most.constant,
and the least dangerous. By it is meant, not the opinion of this
or that man or class, but the opinion of the body politic, which
is the resultant of the concurring, divergent, and clashing opin-
ions of the whole body of the citizens. The object upon which
this important social force expends itself is either the govern-
ment, considered as the servant of the sovereign, or the society
employing it, which is the sovereign itself. But the peculiarity
of it is, that while constitutions and laws make no allusion to
public opinion as a legitimate political force, all administrative
agencies bow before it as though it were true, as is often
affirmed, that “the voice of the people is the voice of God.”

The other direct manifestation of sovereignty, the irregular
exhibition of power, is witnessed when society, by a general
and irresistible impulse, does an act because it will do it, taking
less account of its lawfulness than of its necessity or desirable-
ness, though often, for example’s sake, covering its contempt of
legal forms with a thin varnish of fiction or sophistry. In plain
language, such an exhibition of original power is in the nature
of a coup @état, an act of force originating in lawlessness, but,
because done by a body whose power is overwhelming, an act
which it were folly to impeach. A striking instance of this sort
of original manifestation of sovereignty occurred in England in
consummating the Reform movement in 1832. The English
people had been excited to the verge of revolution by the agi-
tators for reform in the electoral system. A reform bill, passed
by the Commons, had been twice thrown out by the Lords.
Neither house giving way, and an outbreak of violence seeming
inevitable, the prime minister, Lord Grey, took measures forcibly °
to carry the bill, when the Lords yielded and allowed it to pass.
Here, the organic pressure of the nation, culminating in the
ministerial project of deluging the House of Lords with new
peers, who would vote for the Reform Bill, consummated a

1 Lieber’s Polit. Ethics, Vol. I. p. 256.
INDIRECT MANIFESTATION OF SOVEREIGNTY. 23

change in the constitution of Parliament upon which the hearts
of the people had become fixed. It was a revolution effected
by the direct action of the body politic, and not by the vulgar
usurpation of a prince or military leader, so common in the
history of political revolutions.

§ 24. With the indirect manifestations of sovereignty, through
the intermediation of agents, all are familiar. Save in the ex-
ceptional modes just described, the sovereign exercises the right
of sovereignty in no other way than by procuration. It cannot
meet to deliberate, as it must do to engage directly in legislation.
When laws are established, it cannot in person expound or
apply them ; nor, when expounded or applied, can it superintend
their execution. It is a society sovereign as a totality, but, as
such, so unwieldy, that a direct exercise of its functions, save in
miniature states, like the ancient democracies, or the city com-
monwealths of the Middle Ages, is wholly impracticable. For
this reason it organizes systems of agencies, to which it dele-
gates the right-to exercise such powers as it chooses to grant.
The agents holding these delegated powers, collectively consid-
ered, constitute the civil government of the society.

In most modern governments, including our own, there are
four distinct branches or departments, to which are confided the
powers delegated by the sovereign. Of these, the first is the
Electors, whose function is that of choosing out of their own
number the functionaries employed in the other departments, to
which in the United States is added that of enacting the funda-
mental laws. The electoral body is the most numerous in the
state, charged with an official function. It comprises the suf-
frage-holders, or voters, or, in a qualified sense, the people, and
differs from the other three departments in that it constitutes a
body which never assembles, but acts in segments of such con-
venient size as not to render conference and codperation imprac-
ticable.

The other three departments are familiar under the names of
legislative, executive, and judicial departments, charged with the
duties indicated by those terms respectively.

To these four systems of agencies, common to the best gov-
ernments of both Europe and America, those of the United
States have added a fifth, unknown abroad, — the Constitutional
Convention,—whose functions, as we have already seen, are such
24 PRACTICAL COROLLARIES.

as to rank it as a legislature, but a special legislature, whose
duty it is to participate in the framing or amending of Consti-
tutions.

Of these five departments, the last four represent the sover-
eign only mediately, — those who fill them being either elected,
in accordance with legal provisions, by the first, the electors, or
appointed by some codrdinate department. ‘The electors, on the
other hand, represent the sovereign immediately, being desig-
nated by the latter in the original act constituting the govern-
ment, the Constitution. .

It is evident that neither of the five systems of agencies
named is possessed of sovereignty, though by delegation, me-
diate or immediate, they all exercise more or less of its powers.
There is observable amongst them, moreover, a gradation : first,
with respect to the extent to which they are vested with sover-
eign powers ; and, secondly, with respect to the nearness of their
relations to their head, the sovereign. Thus, in both particulars,
the electoral body ranks high, since it stands, as we have seen,
nearest to the sovereign, and its functions, though limited, are
extremely important. The two legislative departments are
vested with powers more extensive than any others: the con-
vention, with power to frame the fundamental laws, to be passed
upon by the electors ; and the legislature, with the broad pow-
ers of remedial and punitory legislation. After these follow the
executive and judiciary, charged severally with functions more
limited, though of vast importance to the state.

On the whole, if required to marshal the five systems of agen-
cies according to their relative rank, to be determined by the
degree in which, in the various respects indicated, they represent
the sovereign power, I should place them thus: 1, the Electors;
2, the Legislature; 3, the Convention; 4, the Executive; and
5, the Judiciary.

§ 25. Before proceeding further with the discussion of sover-
eignty, I desire to draw from what has preceded one or two cor-
_ ollaries having a direct practical bearing on the main subject of

this treatise, the Constitutional Convention, its powers and func:
tions. These corollaries are deducible from the principles enun-
ciated above, by the aid of what I may call the doctrine of
constitutional presumptions, which may be explained as follows:

The sovereign, having once established agencies for the gov-
CONSTITUTIONAL PRESUMPTIONS, 25

ernment of the state, retires from view, and, except by the pres-
sure of opinion, or by power from time to time irregularly
applied, ceases to interfere in the conduct of affairs; in this
respect, dealing with the system established by it as the Deity
dealt with the universe, when, having created it, He left it, as
it were, “ wound up,” to run according to the laws He had or-
dained, and interfered with it only by affecting the consciences
of men, or occasionally, perhaps, by special providences, when
some crisis demanded it. In the act of retiring thus the sover-
eign virtually says: “These are my agents. What this pro-
claims, in the forms prescribed, you shall consider as law. To
this, [ have given power to expound and apply the law, and to
this, power to carry the law into effect, using, if needful, the en-
tire public force. When the system Ihave established needs
reparation or renewal, let this body propose, and this other ratify,
the needed changes. Here is the commission by whose letter or
spirit all are to be guided — the Constitution.”

Now, respecting a system thus established, what presump-
tions arise as against any other system or institution springing
up by its side, unknown or hostile to it ?

They are two: —

1. That, at any given time, the sovereign body is content with
the establishment now existing, created by its own act— a pre-
sumption arising from the very fact that that establishment
exists.

2. That if the sovereign body desired a change in the struct-
ure or functions of the government founded by itself, it would
prefer to indicate that desire through its own agents, and not
through strangers or persons standing to it in no official rela-
tion; and that it would choose to effect such change by some
authorized organic action of the system itself, whereby harmony
between governors and governed would be assured, rather than by
irregular methods, as by exhibitions of original power by itself,
or by usurpations on the part of individuals or public bodies,
savoring of revolution, and rendering such harmony impossible.

These, I apprehend, are the presumptions warranted by the
relations indicated. Applying these as a test to the case of polit-
ical action, the following corollaries are justified : —

1. That all interference with the frame or working of a gov-
ernment established, by persons ab eztra, that is, not commis-
26 WHERE SOVEREIGNTY RESIDES IN FOREIGN STATES.

sioned for that purpose by the government itself, is usurpation,
though participated in by every citizen in the Commonwealth,
and is therefore illegal and revolutionary."

2. That whenever a public body, belonging to the govern-
mental system established by the sovereign, assumes, without an
express warrant in the Constitution, laws, or approved customs
of the country, to meddle with that Constitution, with the laws,
or with the public administration, it is guilty of usurpation, and
its acts are null and void.

§ 26. In the general discussion of sovereignty, in the preced-
ing sections, that power has been supposed to reside in the body
politic, comprising the whole population of the Commonwealth,
without distinction of age or sex. This presents the theoretical
view of the question. It is important for my purpose to go be-
yond this, and ascertain how far the theoretical view corresponds
with historical or existing facts, and if discrepancies should ap-
pear, to explain their causes and character.

The question may be considered with reference, — I., to For-
eign States; and II, to the United States of America.

I. In most civilized states abroad, there is much confu-
sion of ideas in regard to the location of the sovereign power.
In some, it is placed in the monarch or chief executive officer,
who, in fact, exercises wide, and often unlimited, powers. In
others, it is located in a close corporation of nobles, wielding
similar powers. In a third class, comprising governments of a
mixed character, with a monarch, a privileged nobility, and a
commonalty representing the nation at large, the latter is prac-
tically recognized as the true sovereign. But while in this case
there is a real conformity to principles, the fiction is entertained
that the monarch is the fountain of all power, the sovereign in
fact, asin name. In the other two varieties, the existence of
the nation as a power distinct from the court, is ignored in law,
und appears as a fact only in those terrible moments when the
giant, overthrown and trodden under foot of his servants, heaves
beneath them, crumbling to pieces the structures founded upon
the theory of. his permanent subjection. The course of history
demonstrates that the power of the nation is always in the
long run superior to that of any fraction of it, and needs but to

1 For an exposition of the import of the terms revolution and revolutionary,
as used in this treatise, see ch, iv. §§ 109-113,
WHERE SOVEREIGNTY RESIDES IN THE UNITED STATES. 27

be called out. What Sully has said of the populace, is true of
nations: “ They never rebel from a desire of attacking, but
from an impatience of suffering.” When the limit of endur-
ance has been reached, governments and dynasties are in their
presence but as flax before the fire. If the body politic, like
Gulliver among the Lilliputians, is bound by the pigmy tribe
intrusted with its protection, it is not because it has lost either
its power or its right, nor because in its betrayers there exists
‘hat irresistible potency which is everywhere recognized as the
basis of dominion. The despotism practised by them is a per-
missive one, founded on the good nature, the inertness or tie
temporary distraction of its victims. Let the step too far be
taken, and it springs up sovereign by a title as indisputable as a
decree of fate — that of superior force.

In the states in question, then, the real sovereign is the body
politic, as theory requires. But in most of them, the true
sovereign has allowed itself to be stripped of its robes of state
by usurping servants. Its very existence as a fountain of au-
thority is denied, the relations of superior and inferior being,
practically, through the supineness of the former, reversed.

§ 27. II. Icome now to the most important question of all,
namely, —

Where lies the sovereignty in the United States, and how does
it exist in the person or body ascertained to be the depositary
thereof ?

1. The first branch of this question may be considered from
two points of view, in the main independent of each other,
namely: (a), from that of the elementary principles of sover
eignty, developed in the foregoing sections; and (6), from that
of historical facts and principles evolved in the life of this and
other peoples, and having a tendency to determine the question
of American nationality.

A short space will be devoted to this question from each of
these points of view.

(a). Distinguishing the territory and people of the United
States from the residue of the territory and peoples of the earth,
and considering the same as forming an independent society,
it is evident that the right of sovereignty resides somewhere
within it in. as ample a measure as in any other political $o-
ciety.
28 MARKS OR TESTS OF SOVEREIGNTY APPLIED.

The difficulty is, in the jumble of National and State organi-
zations, to locate it.

Recurring now to the definition and marks or tests of sover-
eignty laid down in this chapter, let us see if it be possible to
find, with their help, where that power probably resides in the
United States.

A sovereign person or body, as we have seen, is one to whom
there is, politically, no superior.

Contrasting the State governments, as political organizations,
with the Federal government as a political organization, it
is evident that the former cannot be said to be sovereign, or
by consequence to be possessed of sovereignty, either collectively
or individually, since if their equality with the Federal govern-
ment were conceded, they certainly are not its superior. But
their equality cannot be conceded. By the Constitution of the
United States, that instrument and the laws of the United
States, made in pursuance thereof, are declared to be the su-
preme law of the land, and the judges in every State are to be
bound thereby, and all State officials, legislative, executive, and
judicial, are to be bound by oath to support that Constitution.
If, therefore, it might seem from the fact that a separate and in-
dependent jurisdiction is apportioned to the several States on
the one hand, and to the general government on the other, that
they are equal to each other, these clauses of the Constitution
show that such is not the case, but that, in all that wide field,
where the powers of both are concurrent, or where it is doubtful
with which the power is lodged, and collisions occur or impend,
the latter is to be taken as supreme. If either of the two, there-
fore, the States or the general government, is sovereign, it is not
the former but the latter.

But is it true, that sovereignty is lodged with the general gov-
ernment?

Applying the same principles, and, in their light, contrasting
the federal government with the people of the United States, —
the only other imaginable depositary of sovereign powers, — it is
clear that those powers must belong to the latter and not to the
former, for two reasons. 1. The people of the United States
“ordained and established” the Federal government, — created
it. As between creator and creature, the former must be the po-
litical superior of the latter. 2. Governments are always sec-
MARKS OR TESTS OF SOVEREIGNTY APPLIED. 29

ondary and vicarious. They are agencies, and to suppose them
possessed of sovereign powers, is to make those powers alienable
beyond redemption, which is opposed to the true conception of
sovereignty. Itis rather the people of the United States, who,
having created, may be presumed competent to alter or abolish,
their government, that is the true sovereign.

So much for the inferences to be drawn from the definition of
sovereignty.

§ 28. Let us now subject the three political bodies or entities
specified to a rigid scrutiny, to see if in either of them there can
be discovered the distinguishing marks of sovereignty above
described.

“Tf a determinate human superior,” says Mr. Austin, “ not
in a habit of obedience to a like superior, receive habitual obedi-
ence from the bulk of a given society, that determinate superior
is sovereign in that society.” .

What political body, institution, or entity is there, in the
United States, not in a habit of obedience to any other body,
etc., which receives habitual obedience from the bulk of the
Union, but the people of the United States? It certainly is not
the States, for they have habitually obeyed, each and all of them,
the people of the United States ever since the latter entered into
a union as one people The people of the United States, in
1788, threw the existing Constitutions of the several States into
hotchpotch, and repartitioned amongst those bodies the powers
they were thenceforth to exercise, giving a portion thereof to the
States, a portion to the general government, and reserving the
residue to themselves. And the States have habitually conformed
to the edict which thus curtailed and ascertained their powers.

Not only this: the States, since the foundation of the Union,
have not received “habitual obedience from the bulk” of the
Union ; certainly not, severally considered ; for while the respect-
ive States have received -habitual obedience, each from the bulk
of its own people, they have not received it severally from the
peoples of the other States; that is, the State of Virginia has

! See ante, § 19.

2 The word habitually is mserted by Mr. Austin in this test of sovereignty to
cover the very case lately presented by the United States; that is, the case in
which a part of the society should be for a time in revolt against the sovereign
whole. It is the general habit of all the parts to obey, that is to determine
where the sovereignty resides.
30 MARKS OR TESTS OF SOVEREIGNTY APPLIED.

received habitual obedience from the bulk of the Virginians, but
not from that of the people of the whole Union.

If it be urged that the States collectively have received obedi-
ence from the bulk of the Union, and therefore fulfil the condi-
tions necessary to make them sovereign organizations, the reply
is, that the term “ States” is ambiguous, meaning either the citi-
zens of the United States, comprised within the State lines re-
spectively, or the governments established by them within the
same lines. In the latter sense, it is not true that the States,
considered either severally or collectively, have ever received obe-
dience from the bulk of the society forming the Union. The
State governments have no extra-territorial operation, and, of
course, receive no extra-territorial obedience. In the former
sense, by the “ States,” collectively considered, would be meant
the entire people of the United States, and the hypothesis in
question would attribute sovereignty to that people, acting in
groups by States—a view of the subject whose correctness I
shall have occasion to examine when I come to consider how
sovereignty exists in the people of the United States. For the
present, I shall only observe, that if the case last supposed were
conceded to express the real fact, it would not make the States,
as such, sovereign, either individually or collectively, but the
people of the United States, acting in a particular way or under
particular conditions, as in groups, discriminated from each other
by State boundaries.

§ 29. Tested by the concluding mark above described,! the
result is the same.

Whenever, it was said, there exist, within the same territo-
rial limits, two political organizations so related to each other
that one determines its own powers and, in so doing, limits,
enlarges, or abolishes those of the other, being itself at the same
time not only subject to no reciprocal modification, but inde-
pendent of all the world, the former is a sovereign organization,
and the latter is not.

Seeking amongst the political entities of the United States
one which answers to these conditions, it is plain that no one
of them does so, unless it be the people of the United States.
Neither the government of the United States, nor the people nor
government of the several States, answers either of those condi-
tions, being each of them subject to the modifying inflnence of a

1 Ante, § 20.
DEFINITION OF A NATION. 31

power underlying them all, from which they received either their
origin or those structural changes by which their present form
and scope were determined. That underlying power is the
people of the United States To attribute sovereignty to the
former, therefore, would be an abuse of terms.

On the other hand, the conditions of sovereignty required are
all fulfilled by the people of the United States. Neither their
powers nor their modes of administration are determined by
the States, severally considered, whether as peoples or govern-
ments, nor by the government of the Union, but by themselves
alone in some mode selected by themselves. It rests with them,
moreover, to remodel or to abolish the governments both of the
States and of the Union, and, if they choose, to wipe out the
States themselves as political organizations. Under what con-
ditions this may be done, will be the subject of future consid-
eration. For my present purpose, it is enough that the thing
may be done under some conditions. This fact alone indicates
that the people of the United States are the only sovereign.
If it turn out, as it will, that the conditions prescribed under
which alone they can do this, are prescribed by themselves, and,
therefore, are enforcible only by moral sanctions, that they are
the sovereign will become perfectly certain.

§ 30. (6). I pass now to consider briefly a few historical facts
and principles tending to determine the mooted question of
American nationality, with a view to furnishing other if not
more solid grounds of inference as to the location of sovereignty
in the United States. For, if the latter, as a political society,
constitute a Nation, there is an end of all question, — the
sovereignty dwells in the people of the United States, consid-
ered as a body politic and corporate.?

Do the United States, then, constitute a Nation?

Before attempting to answer this question, let us determine
what it is, and what it is not, to be a nation.

A nation is defined to be “a race of men; a people born? in

! Kor a more complete exhibition of this relation of the people of the United
States to the people and government of the States respectively, see post, §§ 58
and 62.

-2 “ Now, an independent nation is, ex vi termini, a sovereign.” — Grimke,
arguendo, 2 Hill’s S. C. Rep. 58. Vattel, bk. 1, ch. 1, sec. 12.
3 “ Nascor,” “ natus,” “ natio,’ —to be born.
82 DEFINITION OF A NATION.

the same country, and living under the same government, a
people distinct from others.” }

In this definition is evidently involved the idea cf descent
from a common stock. This, though substantially correct,
would exclude those cases in which different races are mingled
in a lasting political union; as when, to a central stock, there
are accreted foreign elements by adoption.

A nation, then, in its largest sense, is analogous to, but not
identical with, the family. It is a distinct, independent people ;
consisting of men of one blood, with such accretions from alien
races as, resulting from common affinities, are destined to be
permanent; occupying a determinate territory, within whose
limits it maintains its own forms of social organization ; possess-
ing the same language, laws, religion, and civilization, the same
political principles and traditions, the same general interests,
attachments, and antipathies ; in short, a people bound together,
by common attractions and repulsions, into a living organism,
possessed of acommon pulse, a common intelligence and aspira-
tions, and destined apparently to have a common history and a
common fate.

So far of the affirmative definition of a nation.

§ 31. The negative may be given in equally few words.

1. To be a nation is not to be, literally, of one blood or race,
but, as we have seen, to be mainly of one blood or race, but
with permanent accretions from other races, undergoing, con-
sciously or otherwise, the process of assimilation to the prevail-
ing type.

2. To be a nation, it is not necessary that all its constituent
members should be continuously, and under all circumstances,
willing or even acquiescent participators in the common national
life. Civil wars and dissensions, though facts tending to dis-
prove the existence of nationality in a particular case, are far
from decisive of that question, being as inconclusive evidence
of its non-existence as a strong and enduring friendship between
two contiguous nations would be that they constituted but a
single nation. ‘Wars arise as often, perhaps, between factions
of the same blood and race, impelled by political animosity or
ambition, but confessedly forming a single nation, as between
parties of diverse descent, scrambling for ascendency in a con-

1 Worcester’s Dictionary, in verb.
EXAMFLES OF NATURE'S METHOD. 38

federation, possessing no distinctive national features. If civil
commotions, however extensive, were proof that a people did
not constitute a nation, what nation has ever existed ?

§ 32. Proceeding, now, in the light of these definitions, it may
be inferred that the United States constitute a nation, —

1. From the fact that, in their development from sparse set-
tlements into a compact and powerful state —e pluribus unum—
there is observable a perfect conformity to the method of nature in
the genesis of nations.

Let us see what that method is: —

Nations do not spring into life, in full bloom of population,
wealth, and culture. They are developed from rude beginnings,
by a process of assimilation and growth analogous to that in
organic life. In their origin, they commonly form a chaos of
heterogeneous materials. These, Nature subjects to her kindly
influences of warmth and pressure, till they assume a character
homogeneous, and, because formed under new conditions, dis-
tinctive.

There are two modes in which the diversified materials that
ultimately fuse into nations are brought into the contact neces-
sary to a vital union. They may be superimposed, like geolog-
ical strata; as, where a race comes in by conquest over another,
whose polity it subverts, and which it keeps beneath itself as
subjects or vassals; or those materials, being dropped apart, like
chance seeds, in a wide territory, may take root and spread, each
from its little centre, and come in turn to press upon each other
laterally.

Whichever of these modes obtains, the constant phenomena
are at first estrangements, swelling into wars by reason of collis-
ions of interests, or differences of character and habit. Time,
however, kneads the colliding elements gradually into consis-
tency. From being like, they soon come to like, each other.
Perhaps the process by which their fusion is completed is, that
they suffer some common affliction, or wage together some great
war, in which every drop of blood cements them into a firmer
union.

§ 33. Of the first mode, most European nations furnish exam-
ples. From the earliest historical dates have been witnessed in
them wave after wave of conquering races rolling from the east
and north, and dashing one upon the other as they went west-
34 METHOD EXHIBITED BY THE UNITED STATES.

ward and southward, but never returning. Out of these diverse
and hostile alluviums Nature has built the great races that we
have seen in modern times in Europe.

Of the other mode, early Rome was an example. In the first
years of her history, Italy was filled with petty states, among
which Rome was but prima inter pares. As they grew, jeal-
ousies led to border wars, in which that single city long main-
tained a doubtful conflict with neighbors too nearly her equals to
be completely subdued. As Romé waxed great, and the privi-
leges of her citizenship became more and more highly prized,
what her arms alone had failed to accomplish, she did by her
policy; she absorbed the neighboring tribes into her own organi-
zation, and thus, from one of the loasest, became one of the
compactest and most enduring nationalities that the world has
ever seen.

Such is the method of Nature in the genesis of nations; be-
ginning with elements diverse and discordant, she ends by
kneading them into likeness and unity.

It should be noted, too, that whether this process be slow or
rapid, the nature of the result is the same. Thus, what Rome
was many centuries in accomplishing, under the circumstances
that surrounded her — barbaric populations on all sides, want
of roads, of facilities for education, of a sufficient public revenue,
of nearly every thing that gives impulse to national growth,
—a people, however heterogeneous, endowed with steam, in
its thousand applications, with the telegraph, the printing-press,
and, above all, with that modern spirit, which is fruitful of great
enterprises, in all departments of human endeavor, under circum-
stances the most adverse, would be able to achieve in a few
decades of years.’

Now, the conditions presented by the United States were, in
our early history, similar to those of Rome. Our land was
dotted over with isolated communities, that had sprung up here
and there spuradically, as chance had led to settlement. Grow-
ing from remote and too frequently hostile societies, out into the
presence of each other, what affinities they had, from identity
of race, laws, literature, and religion, and from similarity of cir-
cumstances and condition with respect to European nations,
were set actively at work, as also their mutual repulsions.

But there was this difference between America and Rome, —

2 Mommsen, Hist. Rome, Vol. I. pp. 68, 69.
STEPS TOWARDS A NATIONAL UNION IN AMERICA. 35

the latier arose slowly, and with struggles tedious and endless,
ages before the birth of Christ ; the former sprang up two thou-
sand years later, after the life and teachings of that Divine per-
sonage had fruited into the institutions of our time, when, as
compared with that of Rome, a day, in its actual achievement,
is as a thousand years.

In this manner and under these influences, the United States
have become what we see. Whether the result has been to
make of them a nation, is the question. So far as the method
of their development is concerned, there are furnished, I think,
affirmative indications.

§ 34. When we look closely at the successive steps by which
we came to be what we are, the probability that we have ripened
into a nation is much increased.

The most prominent characteristic of American constitutional
history, is a constant and irrepressible tendency toward union.

Including the crowning act, by which the people of the United
States crushed the attempt at disunion in 1861-5, there have
been taken in our history eight capital steps toward the con-
summation of a complete national union. These occurred in
1643, in 1754, in 1765, in 1774, in 1775, in 1781, in 1788, and
1861-5. Comparing these steps with one another, there is vis-
ible in them a steady progress in two particulars: first, in the
number of the colonies or States participating in them; and,
secondly, in the scope of the successive schemes of union, the
establishment of which was sought or accomplished by them
respectively.

1. Thus, a scheme of union was formed in 1643 by four colo-
nies; in 1754, by seven; in 1765, by nine; in 1774, by twelve;
in 1775, by thirteen, — the last two’ resulting in the revolution-
ary congresses preceding the confederation ; in 1781, by thirteen,
with great reluctance establishing the confederation; in 1788,
by thirteen, still with reluctance, but driven to it by financial
necessities, founding the present establishment; and in 1861-5,
by twenty-five loyal, and a loyal minority in each of eleven dis-
loyal States, by force of arms crushing the power of a faction
seeking to destroy the Union.

2. Without particularizing the scope of each of these eight
efforts at the consolidation of a union, with which all readers of
our history are familiar, it is enough to observe, that the first
36 STEPS TOWARDS A NATIONAL UNION IN AMERICA.

was a simple league of four New England colonies against the
Indians, and their hostile neighbors, the Dutch; the two follow-
ing were similar in their general purpose, but broader in intent
and compass; the next two, as explained above, were broader
still, embracing practically the entire continent, and being de-
signed to conduct the contest with Great Britain; the sixth was
the first formal and regular attempt to establish a government
for united America, but undertaken with such fear and jealousy,
that the system established stood only so long as it was held
together by pressure from without; the seventh was an aban-
donment of the idea of confederation, and the introduction of
the conception of a national government, framed by the people
of the United States, the several State governments being at
the same time shorn of much of their former power, and rele-
gated to the secondary position held by them as colonies under
the Crown. The last, supreme step was that in which two mill-
ion men in arms have, in our day, stamped with condemnation
the heresy of secession, and denied the rightfulness of dis-
union either as fact or as theory; thus giving to that series of
acts and charters by which the rights of the colonies were de-
fined and guaranteed, a practical construction, and justifying the
inference, that union — the consolidation of the various commu-
nities forming the United Colonies into one people, one nation —
was at once the purpose of God, and the design, sometimes con-
sciously and sometimes unconsciously entertained, of the men of
all times in America.

§ 35. Every step of our progress from 1643 to 1865 being
upon convergent lines, of which the point of meeting would be
a perfected union, in my judgment, when the Constitution of
1788 was ratified, if not before, we became that which, on the 4th
of July, 1776, we had declared ourselves to be, “ one people” or
nation, free and independent. Then, at the latest, the bundle of
States, loosely bound together by the Articles of Confederation,
emerged into view as a political society, and, as such, assumed
the power of ordaining a government for itself, as well as for its
members, before that claiming to be sovereign. Certainly, if the
process of fusion, which a century and a half had been carrying
on, had not then become complete, the conditions necessary for
its ultimate completion had been supplied, the collective society
having been placed in such bonds and subjected to such influ-
RATIFICATION OF FEDERAL CONSTITUTION. 37

ences that the process must go on, and that rapidly. These
bonds, every year of the union has seen growing stronger and
stronger. Beginning, as we have seen, with the same blood,
language, religion, and civilization, with a love of the same lib-
erties, with a unanimous voice for the same republican forms,
with a compact territory, and a recognized name abroad only as
a Union, to these there have been added the bonds of nearly a
century of associated life, to say nothing of wars prosecuted
together and shedding a common glory over that Union, for
whose defence or enlargement they have been waged. All
these, it seems, whatever we may have been when we started in
the race, ought to have left us a nation, in heart and affection, as
they have in fact and in law.

§ 36. The next fact to which I shall advert, as furnishing a
ground of inference that we are a nation, is, that the Constitu-
tion of 1788 was ratified by the people of the United States ; in
this respect violating the law and departing from the precedents
previously in force.

By the thirteenth of the Articles of Confederation, it had been
provided, that no alteration of said articles should at any time
thereafter be made, unless such alteration should be agreed to in a
Congress of the United States, and “ be afterwards confirmed by
the legislature of every State.” That is, by the Federal Consti-
tution, in force when the present one was formed, no change
could be made in the provisions of the former, but by the action
of the State governments, that is, of the States, considered as
political organizations, This important constitutional interdict
the Convention of 1787, for reasons deemed adequate, disre-
garded. It provided for the ratification of the proposed Con-
stitution by Conventions of the people to be called in the several
States by the legislatures thereof; that is, for its ratification by
the people of the United States, acting, as was alone possible,
in groups of such size as to be not inconvenient, and so arranged
that advantage could be taken of the existing electoral ma-
chinery, which belonged exclusively to the States. This method
was wholly new, and involving, as it clearly did, a violation of
the Articles of Confederation, must have been adopted, because
it was thought absolutely necessary to bring forward the Con-
stitution just matured under wholly new conditions; to base it,
not upon the States, but upon the broader and more solid foun-
38 VIEW OF THE STATES RIGHTS SCHOOL.

dation of the people of the United States, conceived of no
longer as a cluster of badly cohering populations, but as a
majestic unit, which, having emerged into existence, had at last
compelled its own general and public recognition. Such is the
lesson to be learned from the mode of ratification of the present
Constitution.

§ 37. It must be admitted, that a different view has been taken
of the bearing of the mode of ratifying the Federal Constitution
on the question of our nationality. The political school, of
which Mr. Jefferson was the founder, and Mr. Calhoun the great
apostle and expositor, known as the “ States Rights School,” have
deduced their favorite dogma of the sovereignty of the States,
from the alleged ratification of the Constitution by the States;
the argument being, that what the States formed and established
they may, for reasons deemed to be sufficient, abrogate and
annul. ‘This school, admitting that the Constitution was re-
quired by its terms to be ratified by Conventions of delegates
“chosen in each State by the people thereof,” that is, by the
people of the United States, considered as gathered into groups,
by States, nevertheless maintain that, as a majority of the
voices in each group or State was made requisite to its adop-
tion, and not simply a majority of the aggregate of all the
groups, the ratification must be considered substantially as pro-
nounced by the States.

The reply is, that a majority of each State’s electors, rather
than of the aggregate of the electors of the Union, was required,
not out of respect for the rights of the States, or with a view to
found the new system upon the States, but to conform, as nearly
as might be, to the positive requirements of the existing Consti-
tution. The thirteenth of the Articles of Confederation required
all alterations therein to be recommended by Congress and to be
confirmed by the legislature of each State. Now, two difficulties
were apprehended in attempting to conform strictly to this
requirement. First, it was doubted whether a unanimous vote
of all the States could be secured for the proposed plan. Hence
it was provided by the Convention — Article VII. of the new
Constitution — that the ratification of the Constitution by nine
States should be sufficient for the establishment thereof between
the States so ratifying the same. Secondly, it was feared that
reluctance to surrender the reins of power, now in their hands,
IMPORT OF MODE OF RATIFICATION. 39

might lead the majority in the several State legislatures, if the
question of ratifying the Constitution were left to those bodies,
to reject it, even in States, whose citizens would be disposed to
ratify it. Hence the Convention wisely determined to disre-
gard the thirteenth article requiring a ratification in that manner,
and to commit the fate of the instrument to Conventions spe-
cially chosen by the people for the very purpose of passing
upon it.

But, while the Convention resolved to disobey the letter of the
Constitution in allowing the system to be established on the
ratification of nine States, and in substituting Conventions for
legislatures as the ratifying bodies, they departed from the
requirements of the Constitution no farther than was deemed
necessary. ‘The principle of unanimity was preserved by requir-
ing the consent of each State which should be comprised in the
new system to be given to its provisions; that is, no State was
to be compelled to adopt the proposed Constitution, or, without
adoption by its own citizens, to be governed by it. So, also, the
old principle of independent State action was made to coexist
and harmonize with the new principle of founding the polit-
ical structure upon the basis of the people of the United States,
by requiring the vote upon its establishment to be taken in the
several States, but by the people thereof in their elementary
character as citizens, and not as forming the governments of the
States respectively. This, indeed, as already stated, was the
only way in which a vote could have been taken at all, under
any effective safeguards to secure its authenticity and purity.
Except in the States, there was a total lack of the machinery
necessary to inaugurate Conventions to adopt or reject the pro-
posed Constitution.

§ 38. But, even if it were admitted that the present Constitu-
tion was ratified by the States, in the manner and in the capacity
claimed by the politicians of the States Rights School, it would
not follow that the separate communities brought thereby into a
closer union did not, by the federal act, become a nation; nor,
if they be conceded to have been sovereign societies under the
Confederation, that they did not merge, each its separate sov-
ereignty, in that of the Union. We have seen that two or more
sovereign societies may become united into one, and that upon
such union, sovereignty becomes inherent in the resultant so-
40 OPINIONS OF CONTEMPORARIES.

ciety. Whether it does so or not, however, depends upon the
closeness of the union, to be ascertained from all the facts of
the case, among the most important of which is doubtless the
intent of the uniting peoples, as determined by the phraseology
of the instrument embodying the conditions of the union. If, by
the true construction of that instrument, the States, theretofore
supposed to be sovereign, were intentionally shorn of their sov-
ereignty and subordinated to a new organization, by its terms
declared to be supreme, and especially if, by it, there were rec-
ognized as existing in the United States, — whether then for the
first time or not, matters not, —a power competent to control,
alter, or annul both the States and the general government, thus
declared to be supreme, it could not be denied, that such power,
the people of the United States, was the sovereign power of the
Union, from the time such instrument was ratified. Indeed, if it
be assumed, that the purpose of the people in forming the
present Constitution was to merge in the single sovereignty of
the Union the sovereignties of thirteen independent sovereign
States, no mode of ratifying the instrament was possible, but
that by the action of the States themselves, substantially like
that which actually took place.

§ 39. One of the most valuable indications from which to
determine whether or not we became a nation by the estab-
lishment of either of our two Constitutions,.is derived from
the expressed opinions of contemporary statesmen, friends as
well as enemies of the systems thereby founded.

Respecting the effect of the first Federal Constitution, called
the Articles of Confederation, some doubt has been not un-
naturally entertained. It did not make of us a nation, for that
is what no Constitution could do. Nor did it, in explicit terms,
declare us to have become, or to be, a nation. And, yet, in my
judgment, at the time the Confederation was formed, we were
in fact a nation, though the process of fusion had not been
completed. The insane passion for state autonomy, rife during
the early years of the Revolutionary war, had not subsided.
Because the war had proved successful, notwithstanding the im-
perfection of the Union, men gave to the sleazy fabric, under
which it had been carried on, more credit for that result than it
deserved. It took six years of peace, crowded with inter-state
vickerings, and with constant exhibitions of imbecility by a
OPINIONS OF CONTEMPORARIES. 41

government, which, whatever else it could do, could not govern,
to teach our fathers, that, if their union: still subsisted, it was in
spite of their government, and that if they did not desire, within
the borders of each State, to see a repetition of the rebellion
kindled by Shay in Massachusetts, ending, perbaps, in a general
civil war, they must substitute for the rotten structure of the
Confederation a Constitution which should confirm and not
undermine and break up their actual union. Under these im-
pulses, the Constitution was framed. But the circumstances I
have mentioned led to the formation of two parties, one strenu-
ous for its adoption and the other bent, by any and all means,
upon defeating it. The charges and admissions of the two
disputants discussing its provisions, furnish valuable indications
as to the nature of the Union and of its connecting bond, as
viewed by men then living. The citations I shall make will be
such as bear especially on the present Constitution.

§40. Inthe Convention which framed the Federal Constitution,
the opposing views indicated were brought into prominence by
a question of power, early raised by the partisans of a confed-
erate government. Mr. Randolph of Virginia having introduced
what is known as the Virginia plan, which formed the basis of
the Constitution finally established, it was assailed by the friends
of a Confederation on the ground that it was a scheme of na-
tional government, and that, as their credentials restricted them
to the proposing of amendments to the system then in force, it
was beyond their powers to form such a government. To the
answer made to this objection, that the government then in
force, however improved and strengthened, would be, as it had
been, utterly insufficient to secure the declared objects thereof, it
was replied, that that might be true, but that if so, it furnished a
reason rather for adjourning and seeking further powers than for
usurping such as were confessedly not vested in them! ‘The

1 The first resolution of Mr. Randolph was as follows :— “ Resolved, That a
union of the States, merely federal, will not accomplish the objects proposed by
the Articles of Confederation, namely, common defence, security of liberty, and
general welfare.” Mr. Charles Pinckney observed, that ‘if the Convention
agreed to it, it appeared to him, that their business was at an end; for, as the
powers of the house, in general, were to revise the present confederation, and to
alter or amend it, as the case might require, to determine its insufficiency or 1n-
capability of amendment or improvement, must end in the dissolution of the
powers.” — Yates’ Minutes, (1 Ell. Deb.) pp. 391, 392.
42 OPINIONS OF CONTEMPORARIES.

force of this argument was felt, but the Convention relieved
itself from the dilemma, by recalling the fact that its duty was
not to conclude but to recommend, and that where such was
the case, particularly under the circumstances of the country,
they must recommend measures that promised to be adequate
to the exigencies of the occasion; and that to adjourn without
doing so, because they found the defects of the old system more
radical than had been supposed, would be to plunge into an-
archy and civil war. Mr. Randolph, as reported by Mr. Madi-
son, said, — “ When the salvation of the Republic was at stake,
it would be treason to our trust not to propose what we found
necessary.”1 Mr. Hamilton said, —“ He agreed with the hon-
orable gentleman from Virginia (Mr. Randolph) that we owed
it to our country to do on this emergency whatever we should
deem essential to its happiness. The States sent us here to pro-
vide for the exigencies of the Union. To rely on and propose
any plan not adequate to these exigencies, merely because it
was not clearly within our powers, would be to sacrifice the
end to the means.” ?

Mr. Madison took a similar view. He said, — “ A new gov-
ernment must be made. Our all is depending on it; and if we
have but a clause that the people will adopt, there is then a
chance for our preservation.” Mr. Mason said, —“ The prin-
cipal objections against that” (the plan) “ of Mr. Randolph, were
the want of power and the want of practicability. There can
be no weight in the first, as the fiat is not to be here but in the
people. He thought with his colleague (Mr. Randolph) that
there were, besides, certain crises in which all the ordinary cau-
tions yielded to public necessity. He gave as an example the
eventual treaty with Great Britain, in forming which the com-
missioners of the United States had wholly disregarded the
improvident shackles of Congress; had given to their country
an honorable and happy peace, and instead of being censured
for the transgression of their powers, had raised to themselves a
monument more durable than brass.”* Mr. C. C. Pinckney
“thought the Convention authorized to go any length in recom-

1 Elliott’s Debd., Vol. V. p. 197.

2 Id. p. 199.

3 Yates’ Minutes, in Vol. I. Ell. Ded. p. 423.
4 Ell. Deb., Vol. V. p. 216.
INFERENCE FROM THESE OPINIONS. 48

mending, which they found necessary to remedy the evils which
produced this Convention.” 1

§41. From these extracts two things are evident, — first, that a
change from the Confederation was deemed by the Convention
absolutely necessary for the preservation of the States, for that
body acquiesced in the reasonings contained in them and acted
upon them ;? and, secondly, that the national plan of Mr. Ran-
dolph, or some approach to it, was what was demanded by the
exigencies of the Union.

§ 42. Thus it was that the new Constitution was viewed and
characterized in the Federal Convention. Another indication
may be drawn from the arguments used by its enemies in the
several State Conventions, called to pass upon it. To those State
conventions the Constitution was submitted as a project of a
complete system, to take the place and supply the deficiencies

1 Ell. Deb., Vol. V. p. 197. See also Yates’ Minutes, in Vol. I. Ell. Deb. pp.
414, 415, 417, 418, 428, 499-5.

2 How urgent the necessity for a government of large powers was thought to
be, may be inferred from the intimations, several times thrown out during and
after the Convention, that it might become necessary to compel a union under
the proposed Constitution, if not accepted voluntarily. Thus Gouverneur Morris
said in the Convention :— “ This country must be united. If persuasion does
not unite it the sword will. He begged this consideration might have its due
weight.” (Ell. Deb., Vol. V. p. 276.) Madison, in a letter to Washington, written
while the question of adopting the Constitution was pending in New York,
said : — “ There is at present a very strong probability that nine States at least
will pretty speedily concur in establishing it” (the Constitution). ‘ What will
become of the tardy remainder? They must be either left, as outcasts from
the society, to shift for themselves, or be compelled to come in, or come in of
themselves when they will be allowed no credit for it.” Id. p. 568. Two days
afterwards, October 30, 1787, Gouverneur Morris, writing also to Washington of
the prospect of adopting the Constitution in New York, and of the condition
of things in case she were to reject it, said: —‘‘ Jersey is so near unanimity in
her favorable opinion that we may count with certainty on something more than
votes should the state of affairs hereafter require the application of more
pointed arguments. New York, hemmed in between the warm friends of the
Constitution, will not easily, unless supported by powerful States, make any im-
portant struggle, even though her citizens were unanimous, which is by no
means the case. Parties there are nearly balanced.” (Ell. Deb., Vol. I. p. 505.)
In the Massachusetts Convention, Colonel Thompson spoke of force as con-
templated, after nine States should have adopted the Constitution, to compel the
remaining four tocome in. He said: — “ Suppose nine States adopt this Con-
stitution, who shall touch the other four? Some cry out, Force them. I say,
Draw them.” — Ell. Deb., Vol. II. p. 61.
44 OPINIONS OF CONTEMPORARIES.

of the old Confederation. Admitting, as did both the friends
and the enemies of the Constitution, the absolute necessity of
a change, how far did the latter regard the change proposed
by it as extending? It is perhaps not fair to take the charges,
often mere calumnies, of its enemies, as decisive of its character
and powers. But the charges made were made by the States
Rights party of that day, and there seems a sort of justice in
quoting that party against itself, when its arguments against
the Constitution are at different times mutually destructive.
Besides, if a presumption is to be indulged, it is, that there
was greater honesty in the party when in the early days of
our political history it charged that the proposed Constitution
formed a national or a consolidated government, than when
at a later day, and still in the interest of State autonomy, it
charged that it founded a government not differing in principle
from that of the Confederation.

The ablest opponent of the new Constitution was doubtless
Patrick Henry of Virginia, and the main ground of his opposi-
tion was, that it was a scheme of a consolidated government.
In the Convention of that State, he said, —

“ And here I would make this inquiry of those worthy char-
acters who composed a part of the late Federal Convention.
I am sure they were fuily impressed with the necessity of
forming a great consolidated government, instead of a con-
federation. That this is a consolidated government is demon-
strably clear; and the danger of such a government is, to my
mind, very striking. I have the highest veneration for those
gentlemen; but, sir, give me leave to demand, what right they
had to say, We the people? My political curiosity, exclusive of.
my anxious solicitude for the public welfare, leads me to ask,
who authorized them to speak the language of, We the people,
instead of, We the States? States are the characteristics and
the soul of a confederation. If the States be not the agents of
this compact, it must be one great consolidated national govern-
ment of the people of all the States.”

So, in the North Carolina Convention, Mr. Taylor said: —
“ This is a consolidation of all the States. Had it said, We the
States, there would have been a federal intention in it. But, sir,
itis clear that a consolidation is intended. ‘Will any gentle-
man say, that a consolidated government will answer this coun-
OPINIONS OF CONTEMPORARIES. 45

try? . . . Iam astonished, that the servants of the legislature
of North Carolina should go to Philadelphia and, instead
of speaking of the State of North Carolina, should speak of the
people. I wish to stop power as soon as possible, for they may
carry their assumption of power to a more dangerous length. I
wish to know where they found the power of saying, We the
people, and consolidating the States.” !

A similar charge was made in perhaps every one of the State
Conventions called to pass upon the Constitution.

§ 43. Now, it is not pretended, nor was it ever admitted by the
friends of the Constitution, that that instrument in fact proposed
a consolidated government. A consolidated government was
defined by those who considered ours to be such, to be either,
first, one “ which puts the thirteen States into one,” ? or, secondly,
“one that will transfer the sovereignty from the State govern-
ments to the general government.”* It is preposterous to apply
either of those definitions to the system contained in the Con-
stitution. The first does not apply, because, as stated by Mr.
Wilson, in the Pennsylvania Convention, the proposed govern-
ment “instead of placing the State governments in jeopardy, is
founded on their existence. On this principle its organization
depends; it must stand or fall, as the State governments are
secured or ruined.”* The second definition applies no better,
because the Constitution, whatever else it does, clearly does not
transfer the sovereignty to the general government. Nobody,
so far as I am aware, ever supposed the source of all power in
the United States to be the general government. But the friends
of the Constitution did not and could not deny, that it com-
prised the outlines of a firm national government of extensive
powers. The scheme it presented, however, had other than na-
tional features. It was, in a word, a project of a mixed char-
acter, partly federal, as not annihilating, but on the contrary
weaving into its texture as an essential part, the States, shorn
doubtless of much of their powers, but still powerful and dig-
nified organizations ; and partly national, as founding the whole
system, in all its features, both federal and national, on the peo-

1 Ell. Deb., Vol. IIL. pp. 22, 23.
2 Ell. Deb., Vol. IL. pp, 503-504,
3 Thid.
4 Ibid.
46 OBSERVATIONS ON THESE OPINIONS.

ple of the United States, then first emerging from the chaos of
political elements into distinct and unmistakable prominence
as a society, to be, according to that Constitution, one and indi.
visible forever.!

§ 44. Such was the character of the Constitution as viewed
by its earliest enemies and its earliest friends; it was partly fed-
eral and partly national. Though it was the original purpose,
unquestionably, of some of the most important States, to found
a government possessed of more national features than the one
proposed, that purpose had been frustrated by the determined
opposition of the smaller States in the Convention, and a com-
promise had been made by which the government was to be, in
its foundation and in its principal features, national, but, so far
as the continued existence of the States was concerned, federal,
—a most happy compromise, and perhaps the only one ever
made in America, which, on the whole, sound statesmanship
not only ought not to regret, but ought to regard as the most
valuable and admirable feature in our whole system.

§ 45. As bearing on the question whether we are a nation or
not, the facts stated above justify the following observations :—

1. The fact that the government under which we live, founded
by the existing Constitution, is national only in part, does not
prove that we are not now, or were not, at and before the time
of its formation, a nation. It is evidence merely that, if we had
been a nation before we formed it, it had not been deemed ex-
pedient to establish a government in which the principle of our
nationality should be prominently asserted ; but, on the contrary,
that the nation should forego its right to found a single estab-
lishment by which to govern itself as a whole, and should per-
mit the peoples of the several States to exercise in ample
measure, but still in subordination to it, self-government, so far
as concerned their local affairs.

2. The fact, on the other hand, that the general government
was, in its inception, national to any extent, is conclusive evi-
dence that there was a nation back of it as its founder. It is
impossible to escape from this conclusion. It is only a nation
that can found a national government, or a government of which
substantive features are national, to continue forever, for it is

1 See the masterly exposition of the mixed character of the government
founded by the Constitution, made by Madison, in the Federalist, No. 39. ‘
JUDICIAL DECISIONS. 47

incredible that many distinct communities, not become one in
sentiment, opinion, and physical circumstances, to such an ex-
tent as to render an entirely separate existence impossible, should
ever consent to such a government. The leading points in the
definition of a nation are, first, that there is such a unity of
blood, of interest, and of feeling, in its component parts, that
they fly together by a force of attraction that is practically irre-
sistible, —they must live a common life; and, secondly, that
there is such an identity in their situation, in relation to other
communities, and consequently in the estimation in which they
are held and in the dangers which threaten them, that they can-
not live asunder. Both of these points concurred in the system
founded by the Constitution of 1787. Our fathers must, as they
expressed it, “join or die;” that is, they were impelled by every
consideration that can draw men together, — the ties of blood,
language, religion, common interest, and common glory, — to live
together; and it was impossible, on account of inevitable border
wars, carried on from ambition or revenge, and of the greed of
foreign nations, that they should live apart. /

§ 46. There remains still another source of evidence bearing
on the question of our nationality, namely, judicial decisions and
the opinions of statesmen and publicists subsequent to the for-
mation of the existing Constitution. From the multitude of
authorities of the kind referred to, I shall select but a few, and
those mainly of an early date, bearing, some on the question of
our nationality and some directly on the question of the loca-
tion of the powers of sovereignty in the United States.

In 1798, during Washington’s administration, the question
arose in the Supreme Court of the United States, directly and
unequivocally, where rests the sovereignty in the United States?
Does it reside in the States or in the government of the United
States, or, finally, is it lodged in the people of the United States?

The question arose thus: In the case of Chisholm, executor,
a citizen of South Carolina, v. The State of Georgia, a rnotion
was made by the Attorney-General, of counsel for the plaintiff
in that court, requiring the State of Georgia to cause an appear-
ance to be entered therein, in her behalf, on or before a day
named, or, in default thereof, that judgment go against the State
by default. The State refused to appear formally, but counsel
represented her informally, and protested against the jurisdiction
48 JUDICIAL DECISIONS.

of the court to require the State to appear before it, on the
ground, with others, that she was a sovereign State, and so, not
suable by a citizen of another State in the courts of the Union, or
elsewhere, except in her own courts, without her own consent.
The nearly unanimous decision of the five judges then compos-
ing the court was against the State of Georgia on all the points
raised. I shall cite mainly from the opinion delivered by Mr.
Justice Wilson, one of the profoundest constitutional judges
that ever graced the bench in the United States, not inferior, in.
my judgment, to Chief Justice Marshall himself. Justice Wil-

son said: “ This is a case of uncommon magnitude. One of

the parties to it is a stars, certainly respectable, claiming to
be sovereign. The question to be determined is, whether this
State, so respectable, and whose claim soars so high, is amen-
able to the jurisdiction of the Supreme Court of the United
States. This question, important in itself, will depend on others
more important still; and may, perhaps, be ultimately resolved
into one no less radical than this: ‘Do the people of the Uni-
ted States form a Nation?’”1 After a luminous exposition of

the various meanings of the term state, he defines sovereignty,

and proceeds: “ As a citizen, I know the government of that
State (Georgia) to be republican; and my short definition of

such a government is, one constructed on this principle, — that
the supreme power resides in the body of the people. As a
judge of this court, I know, and can decide upon the knowledge,
that the citizens of Georgia, when they acted upon the large
scale of the Union, as a part of the ‘ people of the United States,
did not surrender the supreme or sovereign power to that State;
but, as to the purposes of the Union, retained it to themselves.
As to the purposes of the Union, therefore, Georgia is NoT a sov-
ereign State.”* In another part of the same opinion, the learned
judge makes the following important observation: “To the
Constitution of the United States the term sovereign is totally
unknown. There is but one place where it could have been used
with propriety. But, even in that place, it would not, perhaps,
have comported with the delicacy of those who ordained and
established that Constitution. They might have announced
themselves “ soveREIaN” people of the United States. But,

1 Chisholm, Ex’r, v. State of Georgia, 2 Dall. 453.
2 1d. 457.
OPINIONS OF STATESMEN, HISTORIANS, AND PUBLICISTS. 49

serenely conscious of the fact, they avoided the ostentatious
declaration.” Concluding an exhaustive examination of the
Constitution, Justice Wilson thus announces his opinion on
the ultimate question with which he began, Are we a nation?
“ Whoever considers, in a combined and comprehensive view,
the general texture of the Constitution, will be satisfied that the
people of the United States intended to form themselves into a
nation for national purposes. They instituted for such purposes
a national government, complete in all its parts, with powers
legislative, executive, and judiciary; and, in all those powers,
extending over the whole nation.” ?

§ 47. 1t would be easy to fill these pages with judicial opin-
ions confirmatory of these views, but space will not permit’ I
confine myself to such as were delivered before the heresies of
the Kentucky and Virginia resolutions were broached, — while
the government of the Union was running under its original
impulse, and before the party platform had been elevated into
an ulterior constitution, assuming to control the exposition of
that which the fathers had formed.

A few citations will now be made of the opinions of states-
men, historians, and publicists, of a later period, to whom has
been accorded authority on constitutional questions. Thus,
Washington, in a letter of June 8, 1788, said: “ It is only in our
united character that we are known as an empire, that our inde-
pendence is acknowledged, that our power can be regarded, or
our credit supported abroad.”* So, still more explicitly, in his
first inaugural address of April 6, 1789, he said: “ Every step
by which they” (the United States) “have advanced to the
character of an independent nation, seems to have been distin-
guished by some token of providential agency.”® In his his-
tory of the American Revolution, published in 1789, and after-
wards in his history of the United States, Dr. Ramsay says:
“The act of independence did not hold out to the world thir-

1 Chisholm, Ex’r, v. State of Georgia, 2 Dall. 454.

2 Id. 465. See also the opinions in the same case of Justices Cushing and
Blair, and of Chief Justice Jay.

3 See, on the whole subject, Martin v. Hunter, 1 Wheat. 804 (324) ; McCul-
lough v. The State of Maryland, 4 Wheat. 316.

4 5 Marsh. Washington, p. 48.

5 Presidential Speeches, p. 31.
50 OPINIONS OF STATESMEN, HISTORIANS, AND PUBLICISTS.

teen sovereign States, but a common sovereignty of the whole
in their united capacity.”1 So, General C. C. Pinckney, in a
debate in the South Carolina House of Representatives, in
1788, speaking of the Declaration of Independence, said: “ This
admirable manifesto sufficiently refutes the doctrine of the indi-
vidual sovereignty and independence of the several States. In
that declaration the several States are not even enumerated, but
after reciting, in nervous language, and with convincing argu-
ments, our right to independence, and the tyranny which com-
pelled us to assert it, the declaration is made in the following
words..... The separate independence and individual sover-
eignty of the several States were never thought of by the en-
lightened band of patriots who framed this declaration. The
several States are not even mentioned by name in any part, as
if it was intended to impress the maxim on America, that our
freedom and independence arose from our union, and that, with-
out it, we never could be free or independent. Let us, then,
consider all attempts to weaken this Union, by maintaining that
each State is separately and individually independent, as a spe-
cies of political heresy, which can never benefit us, but may
bring on us the most serious distresses.”? Charles Pinckney,
also, in bis observations on the plan of government submitted
by the Federal Convention, said: “The idea, which has been
falsely entertained, of each being a sovereign State, must be
given up, for it is absurd to suppose that there can be more
than one sovereignty within a government.” 3

§ 48. Coming down to later times, I shall first cite the opinion
of Mr. Grimke, a South Carolinian without guile and of emi-
nence not inferior to that of the great names of the Revolution.
Commenting on the opinions of the two Pinckneys, given in
the last section, in the celebrated “allegiance cases,” argued
before the Court of Appeals of South Carolina, in 1834, Mr.
Grimke said: “I do not fully agree with either of the Pinck-
neys, but certainly the truth that the United States constitute
one nation, and that the States are not nations, is found in vari-
ous forms scattered all along the highway which our country has
been travelling since 1776. It would be difficult to find his-

1 Ramsay’s Hist. U. S. Vol. III. pp. 174, 175.

24 Ell. Ded. p. 301.
3 Quoted by Mr. Grimke, arguendo, in 2 Hill’s 8, C..R. 57.
THE STATES WERE NEVER SOVEREIGN. 61

torical evidence on any point more full, particular, and various.”
To the same effect, Chancellor Kent, speaking of the colonies
in 1776, in his Commentaries, says: “ Gradually assuming all
the powers of national sovereignty, they at last, on the 4th of
July, 1776, took a separate and equal station among the na-
tions of the earth, by declaring the united colonies to be free and
independent States.” So, John Quincy Adams, referring to
the same declaration, in 1831, said: “By the Declaration of
Independence, the people of the United States had assumed
and announced to the world their united personality as a nation,
consisting of thirteen independent States. They had thereby
assumed the exercise of primitive sovereign power; that is to
say, the sovereignty of the people.”? Justice Story makes a
similar observation. “From the moment,” he says, “of the
declaration of independence, if not for most purposes at an
antecedent period, the united colonies must be considered as
being a nation de facto, having a general government over it
created, and acting by the general consent of the people of all
the colonies.” 3 These authorities are of great interest, as indi-
cating that the point of time when we first announced ourselves
to be a nation, preceded the establishment of the present Consti-
tution by about thirteen years. We were, then, a nation during
all the long eclipse of the Confederation, whilst unwise jealousy
was preventing the constituent peoples of the Union from ad-
mitting in their government the most salient and the most
salutary fact of their history, namely, that they were one people
forever, until driven to do so by the overwhelming pressure of
events.

§ 49. So far, then, as the question, Where does the sovereign
power in the United States reside? depends upon the other
question, Are we a nation? we are entitled to affirm that that
power resides in the people of the United States constituting the
American nation. Before formally drawing that conclusion,
however, I desire to refer to a few authorities, from which it
may be gathered that there has never been a time in our history
when the States were sovereign; and I shall do so at some
length, because, it is obvious that if the States were not sover-
eign at any time before the establishment of the present govern-

1 1 Kent’s Com. 208.

2 Eulogy on Monroe, in Lives of Madison and Monroe, p. 286.
3 Story’s Com. on Const. § 215.
52 THE STATES WERE NEVER SOVEREIGN.

ment, they cannot be so now, after having been shorn of many
powers before that undoubtedly exercised by them, and at the
same time not reinforced by a concession of new ones.

In the Federal Convention, in 1787, Mr. Madison, as reported
by Mr. Yates, delegate from New York, said: “ There is a gra-
dation of power in all societies, from the lowest corporation to
the highest sovereign. The States never possessed the essential
rights of sovereignty. These were always vested in Congress.
Their voting, as States, in Congress, is no evidence of sover-
eignty. The State of Maryland voted by counties. Did this
make the counties sovereign? The States at present are only
great corporations, having the power of making laws, and these
are effectual only if they are not contradictory to the general
Confederation. The States ought to be placed under control of
the general government, at least as much so as they formerly
were under the King and British Parliament.” }

§ 50. The opinion expressed thus in the Convention, that the
States had never been sovereign, was in effect confirmed by the
Supreme Court of the United States in 1795, in a case of prize,
occurring under resolutions of the old Congress of the Confed-
eration, passed in 1775. One question made in the case was,
whether that body had power to authorize the taking of prizes,
which properly belongs to the sovereign power. It was decided
that it had. Justice Paterson said: “ The question first in order
is, whether Congress, before the ratification of the Articles of
Confederation, had authority to institute such a tribunal,”
(“ Commissioners for Appeals,” for prize cases,) “with appel-
late jurisdiction in cases of prize? Much has been said respect-
ing the powers of Congress...... The powers of Congress
were revolutionary in their nature, arising out of events, ade-
quate to every national emergency, and coextensive with the
object to be attained. Congress was the general, supreme, and
controling council of the nation, the centre of union, the centre
of force, and the sun of the political system. To determine’
what their powers were, we must inquire what powers they ex-
ercised. Congress raised armies, fitted out a navy, and pre-
scribed rules for their government. Congress conducted all

1 Yates’ Minutes, in Vol. I. of Elliott’s Deb. pp. 461, 462. I do not use Mad-
ison’s report of the same debate in this case, because, though not contradictory
of Yates, it is very brief.
THE STATES WERE NEVER SOVEREIGN. 58

military operations, both by land and sea. Congress emitted
bills of credit, received and sent ambassadors, and made trea-
ties; Congress commissioned privateers. .. . . These high acts
of sovereignty were submitted to, acquiesced in, and approved
of by the people of America. In Congress were vested, because
by Congress were exercised, with the approbation of the people,
the rights and powers of war and peace. In every government,
whether it consists of many states or of a few, or whether it be
of a federal or consolidated nature, there must be a supreme
power or will; the rights of war and peace are component parts
of this supremacy, and incidental thereto is the question of
prize. The question of prize grows out of the nature of the
thing. If it be asked, in whom, during our Revolutionary war,
was lodged, and by whom was exercised, this supreme author-
ity? no one will hesitate for an answer. It was lodged in, and
exercised by, Congress; it was there or nowhere; the States
‘individually did not, and with safety could not, exercise it.” 1
So Chief Justice Jay, in a case in the same court, before referred
to,2 said: “The Revolution, or rather the Declaration of Inde-
pendence, found the people a/ready united for general purposes,
and at the same time providing for their more domestic con-
cerns by State Conventions, and other temporary arrangements.
From the crown of Great Britain the sovereignty of their own
country passed to the people of it... . The people .. . con-
tinued to consider themselves, in a national point of view, as
one people ; and they continued without interruption to manage
their national concerns accordingly. Afterwards, in the hurry
of the war and in the warmth of mutual confidence, they made
a confederation of the States the basis of a general govern-
ment. Experience disappointed the expectations they had
formed from it, and then the people, in their collective and

1 Penhallow v. Doane’s Administrators, 3 Dall. 54 (80). As the learned
judge founds what he calls the sovereignty of Congress upon the acquiescence
or approbation of the people, and implies that, without it, the power would not
have belonged to that body, it is evident that he is in error in lodging sover-
eignty with Congress at all. The exercise of sovereign powers was permitted to
that body by the people of the United Colonies, who were the true sovereign ;
(see post, §§ 55, 56.) This error, however, does not affect the general soundness
of his argument, which in effect lodges the power of sovereignty with some
other than the States.

2 Chisholm, Ex’r, v. State of Georgia, 2 Dall. 419 (470).
54 ALLEGIANCE DEFINED.

national capacity, established the present Constitution. It is
remarkable that, in establishing it, the people exercised their own
rights and their own proper sovereignty; and, conscious of the
plenitude of it, they declared with becoming dignity, ‘ We the
people of the United States do ordain and establish this Consti-
tution.’ Here we see the people acting as sovereigns of the
whole country, and, in the language of sovereignty, establishing
a Constitution by which it was their will that the State govern-
ments should be bound, and to which the State constitutions
should be made to conform.” 1

§ 51. Conceding, then, that we are a nation, the answer to the
question with which we started some pages back — Where re-
sides the sovereignty in the United States ?— is ready to our
hand. It resides, and must reside, in the nation, considered as
a political society or body corporate. Back of all the States and
of all forms of government for either the States or the Union, we
are to conceive of the Nation, a political body, one and indivis-
ible, made up of the citizens of the United States, without dis-
tinction of age, sex, color, or condition in life. In this vast
body, as a corporate unit, dwells the ultimate power denomi-
nated sovereignty. It is this body which declared itself, by the
Continental Congress, and under the name of the “ United Col-
onies,” to be free and independent: “ We, therefore, the repre-
sentatives of the United States of America, . . . do, in the name
and by the authority of the good people of these Colonies, declare
that these United Colonies are . . . free and independent States,”
— independent, that- is, of the crown of Great Britain, not of
each other. This body it is which formed the government of
the Confederation, granting to it, indeed, few powers, and still
leaving many and important ones to the peoples of the sev-
eral States; and it is this which afterwards, as we have seen,
“ ordained and established ” the present Constitution, parcelling
out anew and in different measure, the powers it saw fit to
grant at all; giving to the government of the Union broad na-
tional powers, making its laws and Constitution supreme, and
leaving to the peoples of the States other powers for local pur-
poses, but stamping them with the mark of inferiority, as the
parts are severally inferior to the whole.

§ 52. If I am right in lodging the sovereign power in the

1 See further on this subject, Story’s Com. on Const $$ 210-216.
STATE ALLEGIANCE AND STATE SOVEREIGNTY. 55

nation, the perplexing question of allegiance is easily deter-
mined.

Allegiance (alligo) is for the citizen, with respect to the state
or sovereign society, what religion (religo) is for man, with re-
spect to God, a dutiful recognition of the bond which connects
them, in their relations as subject and sovereign. Allegiance
relates to a temporal, as religion does to a spiritual or Divine,
sovereign. Accordingly, as it would be sacrilege for a man to
recognize as his spiritual sovereign or to acknowledge the bond
implied in the term religion as uniting him with any being but
God, so it would be an act of treason, in morals if not in law,
for a citizen to recognize as entitled to sovereign rights — that
is, to render allegiance to—any person or body, but the true
sovereign, the nation.

But although the nation is the only real sovereign, the States
are often, by a misuse of language, called sovereign. This
arises partly from reasoning upon the supposed condition of
the original colonies at the moment of their separation from
the mother country, and still more from confusion of ideas in
regard to the relations of the States to the people of the Union,
as established by the Articles of Coufederation. Even if it
were conceded that the original thirteen colonies were sovereign
communities at the time of their separation from England, and
in some way managed to retain their sovereign powers after
joining the Union, the same would not be true of the twenty-
five or more Territories, or inchoate States, which have been
admitted into the Union since 1789. With the possible excep-
tion of Vermont, not one of these was a sovereign community
before it became a State, and it will not be claimed that they
became such by virtue of the act of admission. And yet they
possess, in the Union, to its full extent, every power belong-
ing to the original thirteen States. Nevertheless, it is true —
and here is the source of the confusion of ideas referred to —
that the States have always, under the Federal and State Con-
stitutions, been entrusted with the exercise of powers of gov-
ernment within their respective boundaries. These powers are
sovereign powers. But, as we have seen, not every person or
body of persons permitted to exercise sovereign powers is a
sovereign, else were the governor, each legislator, each function-
ary of the State, a sovereign, since each, by virtue of the Con-
56 STATE ALLEGIANCE AND STATE SOVEREIGNTY.

stitution, exercises some sovereign powers! It is unfortunate
for the interests of constitutional government that our courts,
and many of our writers on constitutional law, have not always
distinguished this permissive exercise from the original posses-
sion of sovereign powers, and that they have spoken of the
States accordingly as sovereign communities,— a character which
can be attributed neither to the States, whether in the capacity
of peoples or of governments, nor to the general government of
the Union itself.

§ 53. As allegiance is due only to the sovereign, there can be
no such thing in law as allegiance to one’s State. The same
confusion of ideas, however, referred to in the last section, has
led to the conception of State allegiance, and from it have
resulted, in the past history of the Union, the most disastrous
consequences. The war of secession was begun and prosecuted
in the main under the inspiration of that dogma, and with a
view to carry it into practical effect. Some writers, recognizing
the impropriety of applying the term allegiance to the obedience
one owes to the government of his State, have denominated it
a “ qualified allegiance,” a thing as absurd as a qualified om
nipotence, unless by it be meant an allegiance which is not real
but seeming ; that is, an act of obedience which would be one
of allegiance were the body to which it is paid a sovereign body.
Thus, in a late case decided by the Supreme Court of the Uni-
ted States, Justice Grier said: “ Under the very peculiar Consti-
tution of this government, although the citizens owe supreme
allegiance to the federal government, they owe also a qualified
allegiance to the State in which they are domiciled.” ? Treason
is a crime against sovereignty, a violation of one’s allegiance.
Hence, there is really no such thing as treason against any polit-
ical body in the Union but the United States. Ifa State, by its
courts, punishes treason, it must be not as treason against itself,
but as treason against the Union; and, in this view, the propri-
ety of that State legislation which defines treason against the
State and affixes to it particular penalties, is doubtful. It would
seem that the only principle on which such legislation can be
sustained is, that a State has a right, under its general power of
regulating its own internal police, to punish acts dangerous to

1 See ante, § 22.

2 Claimants of the Schooner Brilliant, &c., Appellants, v. The United States,
Am. Law Register, Vol. II. (new series) 334.
HOW SOVEREIGNTY INHERES IN THE NATION. 57

the peace and safety of its citizens, giving to them such names
as it pleases, although the same acts may constitute treason
against the United States, and as such be punishable under the
laws of the latter. On that principle, State laws have been sus-
tained by the Supreme Court of the United States, affixing
penalties to the act of counterfeiting the coin of the United
States and other offences against the laws of the Union; the
same acts being declared, upon different grounds, having respect
to the interests of each, to be crimes against both jurisdic-
tions.!

§ 54. 2. I come now to consider the second branch of the
question stated, namely, How does sovereignty inhere in the
people of the United States ?

‘To this question two answers may be given : —

(a). That sovereignty inheres in the people considered sirnply
that is, as a unit, without conditions, or State or other internal
discriminations.

(6). That it inheres in the people only as discriminated into
and acting in groups by States.

To determine which of these answers is the correct one, in
my judgment, we need but consider what is involved in the con-
ception of sovereignty inhering in a society under conditions,
as where the sovereign body is regarded as capable of acting as
such only when discriminated into groups, by States, or other-
wise.

It is evident, that any particular mode of existence exhibited
by sovereignty, except that of inhering in the political body as
a unit, must be the result of voluntary regulation by the sover-

1 See Fox v. State of Ohio, 5 How. 432. Also, Moore v. The People of
Illinois, 14 How. R 13. Upon the whole doctrine of allegiance, in relation to
both the States and the United States, see The State ex rel. M’Cready v. Hunt,
and The State ex rel, M’Daniel v. M’Meekin, (the so-called “ allegiance cases,”)
2 Hill’s S. C. R. 1-282. These cases arose in South Carolina, in 1834, in
connection with the nullification ordinances of the convention of that State, and
involved the whole subject of sovereignty, allegiance, the relation of the States
to the Union, and kindred questions. The majority of the court held, that the
oath of allegiance prescribed to officers of the militia by the Act of 1833, © to
provide for the military organization of this State,” was “ unconstitutional and
void.” No constitutional question has ever been discussed with greater ability
and learning in the United States, than were those raised in these cases. They
were argued for the relators by Mr. Grimke and Mr. Petigru, each clarum el
venerabile nomen.
58 SOVEREIGNTY UNDER CONDITIONS.

eign itself; be, in other words, a self-imposed limitation, enfor-
cible only by moral sanctions. For, to suppose that sovereignty
so inheres in the political body that it can manifest itself only
through some particular instrument, or in some particular mode,
is to rob the sovereign of its essential attribute, that of perfect
freedom, or the power of absolute self-determination. The fact
that a particular instrament or mode has become established,
may furnish a weighty moral reason why it should be used or
followed; but to suppose a power anywhere existing of compel-
ling the employment of either, would be to subject the sovereign
to some extrinsic human superior, that is, to make, not it, but
another, the real sovereign.

§ 55. Again: the terms modes and instruments, when used in
relation to the manifestation of sovereignty, merely indicate how
sovereignty is exercised; refer, in short, to systems of govern-
ment established by the sovereign, or conceived to be within its
competence to establish.

To contend, therefore, that sovereignty so exists in the sover-
eign body that it is exercisible only in some particular mode, or
through some particular instrument, is to say, that when govern-
ment has been once ordained by sovereign authority, the latter
ceases, with respect to that government, to be any longer sover-
eign; in other words, that, in the act of creation, sovereignty
leaves the creator, and takes up its abode with the creature.

The error upon which such an hypothesis rests, is that of
taking the secondary forms into which the sovereign body re-
solves itself’ as being severally the primary, substantial, and
necessary form of sovereignty itself. On the contrary, that only
can be the ultimate and essential form, which precedes the estab-
lishment and survives the dissolution of all those special adjust
ments needed to bring into regular exercise the powers of sover-
eignty, which constitute government.

§ 56. To a full comprehension of the analysis exhibited in
the last two sections, it is necessary to consider further, with
reference to some particular form of government, as that of the
United States, what is signified by the terms, the exercise of sov-
ereign powers.

By the exercise of sovereign powers is meant either, 1. The
regular, which, historically considered, is commonly, also, in
constitutional governments, the actual exercise of it; and, 2.
POSSIBLE EXERCISE OF SOVERE‘GNTY. 59

The irregular, though possible, exercise of it,—a field of indefi-
nite extent, commensurate with the needs of the sovereign body,
as determined by itself.

To be regular, unquestionably, the exercise of sovereignty
must be conformable to established rule (regula) ; that is, to the
Constitution and laws at the time in force. ‘This is true by
whomsoever it be exercised; that is, whether by the sovereign
body, acting as an organic whole, directly, —if that be possible,
— or by functionaries, by itself charged with governmental duties.

The irregular exercise of sovereignty, on the other hand, as
contradistinguished from the regudar exercise of it, is that which,
conforming to no rule, would be exhibited were the sovereign
body to manifest its powers of sovereignty independently, or in
violation, of an established rule, following, instead, its own ar-
bitrary will. This exercise of sovereignty is to be characterized
simply as irregular, or as revolutionary, according to the extent
of the irregularity.

But by the word possible, as applicable to this exercise of
sovereignty, is meant possible only in fact, not legally possible.
The possibility in fact of such an exercise of sovereignty, how-
ever, is a circumstance of vast significance, under all forms of
government — which it would be well. if statesmen kept more
constantly in mind. In the United States, doubtless, if there is.
anywhere in it lodged a truly sovereign power, there lies, out-
side the narrow limits which bound the regular exercise of it, a
wide space, in which the sovereign may expatiate in the exercise
of all possible sovereign powers, as freely as in any government
under the sun. For, in a word, to the sovereign all things are
in fact possible; all things may, according to circumstances,
become rightful or justifiable; though many things, which under
the circumstances are rightful or justifiable on moral grounds,
may be irregular or revolutionary. The wider field, moreover,
is to be trodden only by the sovereign body itself, or under its
immediate command: the narrower field —that of established
rules of action — is that of government, which is but one phase
of existence voluntarily assumed by the sovereign body, and
which, however solemnly it may have bound itself to maintain
it, it may, in fact, discontinue at will. ;

§ 57. Applying these principles to the United States, with a
view to ascertain whether sovereignty inheres in the people of
60 REGULAR EXERCISE OF SOVEREIGNTY.

the United States considered simply as a corporate unit, or only
as discriminated into the subordinate groups, known as States,
the problem seems to be of easy solution.

Judging by the regular exercise of sovereign powers in the
United States, — that is, by the Constitution of government now
established, — sovereignty would seem, as a practical power, to
reside in the people, as discriminated into the groups known as
States. Of the numerous circumstances indicating this I shall
mention but two. The first is, that by the Constitution of 1788
the electoral function for the Union is performed, not by the
electors acting as a single body, under regulations established by
the legislature of the Union, the total result to be determined by
a simple majority of all the votes cast, but by the electors dis-
criminated into groups conterminous with the States, voting in
accordance with State laws, the total result to be determined by
grouping the several State majorities, sometimes giving them a
weight proportionate to their respective numbers, and sometimes
an equal weight, without regard to their numbers.

The second circumstance is, that by the same Constitution,
the power, par excellence a sovereign power, of amending that
instrument, instead of being confided to the people or to a Con-
vention of the people of the Union, acting directly, as a sover-
eign unit, is given to them acting indirectly, either through Con-
gress, or through a national Convention, called by Congress at
the instance of the State legislatures, and that, by way of rec-
ommendation merely, such action to be followed, in either
case, by the ratification of the State legislatures or of Con-
ventions called in the several States, as Congress may have
determined. Thus the States seem to be inextricably inter-
woven with the machinery provided for the exercise of the
most fundamental right of sovereignty, that of forming the or-
ganic law. But it is to be noted that it is with the regular
exercise of that power that they are thus interwoven. The
American nation, by which that system was established, can
undo the work of 1788, if not in pursuance of its own pro-
visions, then irregularly, being still, as before the formation of
the Constitution, a sovereign political unit, the product of vital
forces which had been active and accumulating long before it
deemed it expedient to form that instrument. Although, in a
moment of weakness, it saw fit to curtail its own powers, in
CAPACITY IN WHICH THE STATES EXERCISE SOVEREIGNTY. 61

relation especially to the sovereign act of amending the Con-
‘titution,! still, if in fact the nation should outgrow the system
thus established, and should by a general movement institute a
change which should not only violate the provisions of that in-
strument, in reference to State equality in the Senate, but abolish
the States entirely, it would be within its actual competence as
a sovereign body so to do, though, from a constitutional point
of view, it would be, perhaps, a revolutionary act. The point,
in a word, to be kept in mind, is, that the present Constitution,
determining the exercise of sovereign power by the servants of
the sovereign, is not a finality for any body but those servants,—
certainly not for the people of the United States, however they
may have fettered themselves by the fundamental act of 1788.
As the Constitution, as an organic growth, develops with the
growth of the nation, the Constitution, as an instrument of
evidence of that growth, must develop correspondingly. If by its
terms it cannot do so, shall the nation be bound by it? In law,
yes. Asa matter of practical statesmanship, no.

§ 58. Assuming, then, that by the present Constitution of the
United States, sovereignty, so far as relates to its regular ex-
ercise, inheres in the people of the United States, as discrim-
inated into groups by Stutes, a word is necessary as to the
cAPacITy in which those groups act in performing the function
indicated, when proceeding regularly.

We have seen in a former section that the States partici-
pate in the act of amending the fundamental law in a double
capacity: first, as State governments —the State legislatures
applying to Congress to call a Convention for proposing amend-
ments, or ratifying such as have been proposed; and, secondly,
as subordinate peoples, together composing the people of the
United States,—as, in case of Conventions meeting in the
several States to ratify proposed amendments. In this last case,
however, the two capacities would be blended, as the call of
such Conventions would probably issue from the respective
State legislatures, and not from Congress.

The same distinctions run through the whole Constitution.
Thus a large part of the legislative, and a corresponding part
of the executive and judicial functions required in the United

! See the concluding part of Article V. of the Constitution, relating to
equality of representation of States in the United States Senate.
62 CAPACITY IN WHICH THE STATES EXERCISE SOVEREIGNTY.

States, have been committed by the sovereign body of the Union,
the nation, to the States, as governments organized in subordina-
tion to the Union; I refer to the powers of local legislation and
administration, sometimes erroneously regarded as_ belonging
originally, and as of sovereign right, to the States. Properly
considered, these are a branch of the sovereign powers of the
Nation, of which, by the present Constitution, the exercise has
been delegated to the State governments.

In like manner, the State governments are charged with the
exercise of sovereign powers, with reference to the Union, in
the election of senators through the State legislatures ;1 in the
issuance of writs of election to fill vacancies in Congress, by the
State executives ;2 in the appointment of officers for the national
militia, given in general terms “to the States;” and in giving
their consent to the building of forts and arsenals, and the erec-
tion of new States, by Congress, within the jurisdiction of exist-
ing States.?

On the other band, in several particulars contained in the
Constitution, the States, as subordinate peoples, without imme-
diate reference to their organization into State governments,
have been charged with the exercise of sovereign powers for the
Union; as in choosing the President of the United States,
through electors chosen by such peoples directly, and in electing
the members of the national House of Representatives, a duty
committed to “the people of the several States.” 5

§ 59. In all these cases, however, the circumstance already
mentioned is to be noted, that the States, considered either as
parts of the national people or as State governments, in no case
act in either of those capacities purely and simply; the framers
of the Constitution seeming carefully to have connected the ex-
ercise of sovereign powers by them in one capacity with their
exercise of them in the other capacity, as if to make them, as
parts of the national, people, checks upon themselves when act-
ing as State governments. Without stopping to cite instances

t Art. I. sec. 8, cl. 1, Const. U. S.

2 Art. I. sec. 2, cl. 4, Const. U. S.

3 Art. I. sec. 8, cl. 17, and Art. IV. sec. 8, cl. 1, Const. U. S.

4 Art. II. sec. 1, Const. U. S.

5 Art. I. sec. 2, cl. 1, Const. U. S. On the whole subject discussed in tha
foregoing sections, see Federalist, No. 39.
VIEW OF AUSTIN. 63

of this system of internal checks, I observe that the States, in
both capacities, are, by the Constitution, subjected to checks in
the form of direct prohibitions emanating from a source external
to themselves as States, being limitations upun their exercise of
sovereign powers, imposed by the people of the United States.1
Admitting, then, that the powers of sovereignty, under the pres-
ent Constitution, are exercisible only by the people as discrimi-
nated into States, and, as such, acting in the two capacities of
State peoples and State governments, the fact that such limita-
tions have been imposed is a further and an incontestable proof
that the States are not themselves in any capacity, either separ-
ate or united, the sovereign power in the Union, but only the
depositaries for the time being of such sovereign powers as the
sovereign has chosen to have exercised.

§ 60. The theory, nevertheless, that sovereignty inheres in the
people of the United States, not simply, or as a political unit, but
as discriminated into States, has the sanction of high authority.
Although I believe this to be an error, arising from not distin-
guishing the sovereign body from the system of functionaries in
whom is temporarily vested by the sovereign the exercise of sov-
ereign powers, I shall give extracts from the writings of one or
two publicists who hold the view indicated.

Mr. John Austin, in his work, “The Province of Jurispru-
dence Determined,” contrasting what he calls supreme federal
governments with permanent confederacies of supreme govern-
ments, says of the government of the United States : —

“The supreme government of the United States of America
agrees (I believe) with the foregoing general description of a
supreme federal government. I believe that the common gov-
ernment, consisting of the Congress and the President of the
United States, is merely a subject minister of the United States
governments. I believe that none of the latter is properly sov-
ereign or supreme, even in the state or political society of which
it is the immediate chief. And lastly, I believe that the sover-
eignty of each of the states, and also of the larger state arising
from the Federal Union, resides in the states’ governments, as
forming one aggregate body; meaning by a state’s government,
not its ordinary legislature, but the body of its citizens which
appoints its ordinary legislature, and which, the Union apart, is

1 See Art. I. secs. 8, 9, and 10, Const. U. S.
64 VIEW OF DR. BROWNS N.

properly severeign therein. If the several immediate chiefs of
the several United States were respectively single individuals,
or were respectively narrow oligarchies, the sovereignty of each
of the states, and also of the larger state arising from the Fed-
eral Union, would reside in those several individuals, or would
reside in those several oligarchies, as forming a collective
whole.” 1

There is, perhaps, some ambiguity in this passage, as it is not
clear whether, by the body of the citizens of a State “ which ap-
points its ordinary legislature,” the author means the totality of
its citizens, forming a corporate unit, which, “the union apart,”
virtually appoints the legislature, or the body of the electors,
which immediately and formally appoints it. If the former was
intended, his theory was clearly what I have supposed above;
if the latter, it was the wholly untenable one, that sovereignty
in the United States inheres in the electors or voting people of
the respective States, considered “ as forming a collective whole,”
—a theory which has the sanction of so eminent an authority
as Mr. Hurd?

§ 61. A similar view of the mode in which sovereignty inheres
in the people of the United States has been lately propounded
by Mr. Brownson, with his characteristic force and ingenuity, in
his work, “ The American Republic.” Having located political
sovereignty, in general, in the people, “not individually, but
collectively, as civil and political society,” he proceeds to deter-
mine how it exists in the people of the United States. Com-
menting upon the opening words of the preamble of the Federal
Constitution, “ We, the people of the United States,” he says:
“ Who are this people? How are they constituted, or what the
mode and conditions of their political existence? Are they the
people of the States severally? No; for they call themselves
the people of the United States. Are they a national people,
really existing outside and independently of their organization
into distinct and mutually independent States? No; for they
define themselves to be the people of the United States. If they
had considered themselves existing as States only, they would
have said, ‘ We, the States;’ and if independently of State

1 John Austin, The Province of J urisprudence Determined, Vol. I. p. 222.

2 Hurd, Law of Freedom and Bondage, Vol. I. § 348, note 2; The Theory
of National Existence, pp. 127, 144, and 147.
TERM SOVEREIGN AS APPLIED TO THE STATE. 65

organization, they would have said, ‘ We, the people, do or-
dain, &c.

“ The key to the mystery,” he continues, “is precisely in this
appellation, United States, which is not the name of the coun-
try, for its distinctive name is America, but a name expressive
of its political organization. In it there are no sovereign people
without States, and no States without union, or that are not
united States. The term united is not part of a proper name,
but is simply an adjective qualifying States, and has its full and
proper sense. Hence, while the sovereignty is and must be in
the States, it is in the States united, not in the States severally,
precisely as we have found the sovereignty of the people is in
the people collectively, or as society, not in the people individu-
ally. The life is in the body, not in the members, though the
body could not exist if it had no members; so the sovereignty is
in the Union, not in the States severally ; but there could be no
sovereign union without the States, for there is no union where
there is nothing united.” !

§ 62. In concluding this discussion of sovereignty in the
United States, it should be stated that whenever, in judicial
decisions or in common parlance, the term sovereign is applied
to a State or to its people, it must be taken to signify the pos-
session by such State or people of the right to exercise sov-
ereign powers in subordination to the people of the Union, from
whom it has received such powers by delegation. Under the
Constitution of the nation, comprising the Federal and all the
State Constitutions, each State is permitted by the sovereign to
frame for its own people its local Constitution, subject always
to the guaranty of the national government. In performing
that work, State Conventions and legislatures often assume the
airs and the language of representatives of real sovereigns. In
truth, however, a State is not a sovereign. In passing upon a
local Constitution, the people of a State are performing a dele-
gated function, —exercising, by permission, and in behalf of
the people of the United States, a sovereign power belonging
only to the latter. That this is the most characteristic, and by
far the most valuable, of all the features of the national Consti-
tution, is undeniable, but that fact does not at all affect its
intrinsic character as above explained. With a proper defini-

1 The American Republic, pp. 220, 221.
66 TERM SOVEREIGN AS APPLIED TO THE STATE.

tion of “States Rights,” then, every lover of his country, and
every friend of its liberties, must be a “States Rights man”;
but that definition must be such as to leave a country to love,
—a thing possible only when the States are regarded as expe-
dients subordinate to the nation, subservient in all respects to
its interests, and therefore, if the nation so will, temporary.

1 Upon the whole question of sovereignty, its location and its exercise by the
extensive hierarchy of representatives of the sovereign, state and national,
see Webster’s speech in the case of Luther v. Borden, 7 How. R. 1, in Great
Speeches of Daniel Webster, by E. P. Whipple (Little, Brown & Co., 1879).
p. 538.
CHAPTER III.
OF CONSTITUTIONS.

§ 63. Tux function of the Constitutional Convention being,
as we have seen, to participate in the framing or amending of
Constitutions, before atternpting to ascertain the extent of its
powers in that regard, it is necessary to form an accurate con-
ception of what'a Constitution is.

By the Constitution of a commonwealth is meant, primarily,
its make-up as a political organism; that special adjustment
of instrumentalities, powers, and functions, by which its form
and operation are determined.

This is a Constitution, considered as the outcome of social and
political forces in history, as an organic growth, or, as I shall
sometimes describe it, as a fact.

Beside this, the term “Constitution”? has a secondary mean-
ing, which is, perhaps, more common than the one given, involv-
ing equally the conception of a system of political instrumen-
talities, powers, and functions, specially adjusted for the purposes
of government; but conceived of, not as an organic growth, but
as a systematic description of such a growth, in the shape of
formule addressed to the understanding. In other words, a
Constitution, in this secondary sense, is the result of an attempt
to represent in technical language some particular constitution.
existing as au organic growth. This isa Constitution considered
as an instrument of evidence.

1 Since this part of the text was written, I have been pleased to find that
substantially the same distinction here noted, between Constitutions as organic
growths and Constitutions as instruments of evidence, has been taken in two works
lately published; that of Mr. Hurd, On the Law of Freedom and Bondage,
and that of Dr. Brownson, The American Republic. The latter author
says: —

«The Constitution of the United States is twofold, — written and unwritten,
— the constitution of the people, and the constitution of the government. The
written constitution is simply a law ordained by the nation or people instituting
and organizing the government; the unwritten constitution is the real or actual
constitution of the people asa state or sovereign community, and constituting
them such or such a state. It is providential, not made by the nation, but born
4

68 CONSTITUTIONS AS THEY OUGHT TO BE.

§ 64. A third variety of Constitutions, so-called, may be
noted, but only to exclude them from the list of legitimate Con-
stitutions, that is, Constitutions “as they ought to be.” These
must be carefully distinguished from Constitutions considered as
organic growths. They are Constitutions framed in the closet, ac-
cording to abstract ideas of moral perfection, for imaginary com-
monwealths. Of this class are the instruments thrown off in
such numbers by the constitution-mongers of France, during
her great democratic revolutions, and those hardly more unsub-
stantial ones framed by Plato, More, Bacon, and Harrington for
their ideal republics.

As contrasted with these, the Constitution considered as an
organic growth, is that Constitution which has actually, under the
operation of social and political forces, evolved itself in a State.
This Constitution may differ much from that inscribed in the
volume of the laws. Thus, there may have been wrought out
fundamental changes in the structure of a government by the
usurpations of its functionaries, fellowed by the acquiescence of
the sovereign society; in which case, those changes would be-
come a part of the Constitution as a fact. The usurpations,
having this effect, might or might not have been intentional.
The purchase of Louisiana, admitted by Mr. Jefferson, who ef-
fected it, to have been an unconstitutional act, may be cited as
an instance of an usurpation resulting in important constitu-
tional modifications, which was committed intentionally, be-
cause of its supposed great benefit to the country.! It is the
opinion of many lawyers, that State banks of issue are uncon-
stitutional. Admitting that they are so, but that, when first
authorized, they were believed to be within the scope of State
legislative power, and conceding that they are now so firmly
established as to be practically irrepealable, they would present
an illustration of an unintended usurpation, ripening by long
acquiescence into a change of the Constitution as a fact. Simi-
lar changes might arise, in the course of the national progress,
from the growth of opinion, or from some general but gradual
organic movement of the society at large, of importance so
fundamental that they must be set down as modifications of the

with it, The written constitution is made and ordained by the sovereign power
and presupposes that power as already existing and constituted.” — The Ameri-
can Republic, p. 218.

1 See Jefferson’s Works, Vol. IV. pp. 504-506.
ARE CONSTITUTIONS AS FACTS FOUNDED ON COMPACT? 69

Constitution as a fact. The eradication of domestic slavery
from a nation whose fundamental code in its letter permitted
it, as a result of civil war, would be such a change.

§ 65. I pass now to consider the nature and specific varieties
of Constitutions of the first two kinds, that is, of Constitutions
considered, —

First, as organic growths; and

Secondly, as instruments of evidence.

I. Adverting to the first of the proposed subjects of inquiry,
what I have to say upon the nature of Constitutions considered
as organic growths, will be confined to this central question: Are
Constitutions founded upon compact ?

When it is affrmed that a Constitution is founded upon com-
pact, what is meant? Obviously, either that, at the opening
of its historical development, it became what it did by virtue of
an actual agreement between the individuals then composing
the state, to which agreement all subsequently born individuals
became, from time to time, parties; or, that while there was
never, probably, an agreement between such individuals in fact,
their relations to each other and to the state, and their conse-
quent rights and duties, are what they would be, had there in
fact been such an agreement; in other words, that if there was
no agreement in fact, one may be supposed, to account for facts
not otherwise so easily explained. That is, the doctrine of com-
pact, as the foundation of Constitutions, must be asserted either
as a fact or as an hypothesis. Considered as a fact, it is suffi-
cient to deny that a Constitution ever thus originated, in a proper
sense of those terms. All Constitutions, and, of course, all gov-
ernments, are growths, the products of social and political forces ;
among these reckoning as well the traditions, and the physical,
intellectual, and moral conditions of the society, as its relations
to other political societies. It is doubtless true, that, whilst one
effect of these forces is, in the domain of fact, to evolve the
actual Constitution, another is, in the domain of opinion, to
evolve what is called the consent of the governed. The two
effects are, indeed, necessary concomitants, being the different
results of the same causes operating in the diverse spheres spe-
cified. But to say that the Constitution is based upon that con
sent is, in my view, as absurd as to attribute to the consent ot
its component particles the structure and functions of a plant.
70 ARE CONSTITUTIONS AS FACTS FOUNDED ON COMPACT ?

Doubtless those particles acquiesce, and if they were sentient
beings, with conscience and will, that acquiescence, without
ceasing to be determined by natural laws and forces, might be
denominated consent. So the acquiescence of great societies or
races in the founding of governments and dynasties is only by
a figure of speech to be called their consent; it is rather resigna-
tion to the action of forces which they have neither ability nor
desire to countervail. The human race have always acquiesced
in the revolution of the earth about the sun; they have sat down
to study its causes, and recognized with thankfulness its accru-
ing advantages, no faction, so far as history shows, — the
church, perhaps, in Galileo's time excepted, — ever even pro-
testing against it; but it does not follow, therefore, that the sys-
tem of planetary motion, of which that revolution is a part, was
founded on the consent of the earth or its inhabitants, or on a
compact between them and the residue of the universe.

§ 66. If, on the other hand, the doctrine that Constitutions,
considered as facts, are founded upon compact, is put forth as
an hypothesis merely, for purposes of illustration, and if its
hypothetical character is kept constantly in the foreground, it
may be viewed with more indulgence. The true. office of an
hypothesis is to provide a theory of causation adequate to ac-
count for known facts, and yet without vouching for its absolute
verity. It supposes the theory may be true. It also equally sup-
poses it may be false, admitting readily, indeed, that the next
fact discovered is nearly as likely to prove it false as true. But,
whether in fact false or true, its usefulness for scientific purposes
is the same. It serves as a lay figure, on which to exhibit to
advantage in all their relations truths that are connected but ob-
scure. But the danger is that that which is supposed will insen-
sibly lose its hypothetical character and come to rank as a truth,
and so be made the basis of reasoning to other truths as unsub-
stantial as itself, but ignorantly, on account of the regularity of
their deduction, accepted as undoubted. An instance of such a
perversion of hypothesis into political axiom is seen in the his-
tory of the dictum of the Roman jurisconsults, based on the
fiction of a “ Law of Nature,” namely, that “all men are by
nature equal;”? which, revived by the French lawyers and by

1“ Omnes homines natura equales sunt,” the maxim of the Roman lawyers of
the Antonine era. — Maine, Ancient Law, p. 89.
ARE CONSTITUTIONS AS FACTS FOUNDED ON compact? 11

Rousseau, passed from them, through Jefferson, into the Ameri-
can Declaration of Independence. Mr. Maine, in his late pro-
found work on “ Ancient Law,” has demonstrated, that in its
inception, this doctrine was propounded merely to express the
relations of the various peoples of Rome to one another, wnder
an hypothetical law of nature. According to that supposed law,
he says, “there was no difference in the contemplation of the
Roman tribunals between citizen and foreigner, between free-
man and slave, agnate and cognate.” In those tribunals, then,
the maxim as to the equality of all men meant, that in the eye
of an imaginary law, derived from a supposed “ state of nature,”
all the inhabitants of Rome were equal. But, when taken up
by the writers of later times, the doctrine that all men are by
nature equal was used in a different sense, no longer bearing on
merely civil, but also on political relations, namely, to signify
that “all men ought to be equal.”! Thus, what was originally a
particular statement relative merely to an hypothetical code of
civil law for the “ Latin name,” has come to be propounded as a
political axiom of general application?

§ 67. Conceding, then, that the doctrine of compact we are
considering was propounded by its authors as an hypothesis
merely, the danger was that men should come to look upon it as
the expression of a fact, and thereupon spin from it conclusions
that would be disastrous to society. Precisely such has been
the fortune of this famous doctrine during the last hundred
years. It has been received as a political axiom of general ap-
plication and of absolute truthfulness. The fact, however, is,
that it is a fallacy, or, at least, a fancy, which is dignified beyond
its deserts when it is ranked as an hypothesis. History records
no instance in which such a compact as the theory supposes was
ever made; and to imagine it, except for the purpose of exposi-
tion or illustration, is as puerile as to trace the social union of a
swarm of bees to a compact made at some imaginary congress,
when each bee was in a “state of nature.” The state of nature
for the bee is that of union in the swarm; and so the state of
nature for mankind is that of association in political communi-
ties, patriarchal or other. The rights and obligations growing
out of the social state are as old as the absolute rights of indi-

1 Maine, Ancient Law, pp. 70-92.
2 Thid.
72 ARE WRITTEN CONSTITUTIONS FOUNDED ON COMPACT?

viduals. They are not the results of compact, but are parts of
the system of human society, devised by the Creator “in the
beginning.”

§ 68. It may be well tn this place to complete our view of the
theory of compact, as the basis of Constitutions, by consider-
ing its application to the second class of Constitutions noted,
namely, Constitutions considered as instruments of evidence.
Of these, compacts, in a proper sense of the term, often form
parts. To explain my meaning, it is necessary to consider how
Constitutions of that kind arise. It will be seen in subsequent
sections that some are merely collections of customs, stat-
utes, and judicial decisions, published by unofficial persons,
that is, persons without authority to pronounce definitively upon
their letter or import; whilst others are simply statutes enacted
by sovereign authority. Of the former kind, the English Con-
stitution is an example, and of the latter, that of the United
States. Now, when a people frame a Constitution in the sec-
ond sense, or make a law or a treaty, which becomes a part of
such a Constitution, what is the nature of their act? It is a
translating into appropriate legal language, and a formal regis-
tering amongst the archives of the nation, stamped with the fiat
which marks the national acquiescence and gives to it authen-
ticity, of the Constitution, or part of a Constitution, which has, in
the progress of the nation and under the operation of all its
social forces, actually evolved itself as a fact.

Such a work evidently requires the highest powers, and is not
likely to be executed with unanimity. Where the details of the
Constitution as a fact are so apparent that the people are of one
mind as to the legal formule requisite to embody them, there
would be no compact; for, to produce that, there must be diver-
gence of opinions, resulting finally in agreement. Where, how-
ever, a divergence had arisen, but had finally ended in a com-
promise, involving, not a conviction in the minds of one party
that the views of its opponents were correct, but a surrender
of its own, that results might be achieved, there would be a
compact. Thus, to illustrate, there arose in the Federal Conven-
tion two parties on this question: Given the absolute necessity ot
a closer union of the States, for their prosperity and safety, and
the necessity, on the other hand, equally absolute, for the con-
servation of our liberties, that the States should be retained as
ARE WRITTEN CONSTITUTIONS FOUNDED ON COMPACT ? 73

political organizations, what is the representation in the national
Congress that is alone consistent with the attainment of both
those objects? One party said, it must be that of representa-
tion proportioned to population. This party was composed of
the large States. The other party, made up of the small States,
replied: “No; such a rule would place our fate in your hands;
you would combine and wipe out State lines, and thus bring
shipwreck upon our liberties. The Constitution of the United
States, as a fact, as it has evolved itself under the operation
of existing forces, and for which we are seeking an adequate
expression, involves State equality, because, without it the sys-
tem cannot stand. The representation must be set down by us
as equal from all the States, great and small.’ This divergence
of opinion was radical, and, as is well known, came near frus-
trating the efforts at a closer union. Happily, however, a com-
promise was effected. A middle course was found, which fully
satisfied neither, namely, to declare that the representation sought
for — the unknown quantity in the problem — was, in the House,
a representation proportioned to population, in the Senate, equal.
This was a compact. But it is important to note, that it was a
compact, to use a common phrase, but “skin deep.” It was a
compact which settled, not that the Constitution, as a fact, was
as laid down in the instrument then framed, but that it should
for the nonce be so declared and considered; each party retain-
ing still its opinion as to the fact, and the right, in the way
pointed out in the instrument itself, to cause that opinion ulti-
mately to prevail. Whether the formule agreed upon did in
truth embody the then existing Constitution as an objective fact,
is a wholly different question, which I do not decide.

§ 69. It is evident that, if the views presented in the foregoing
sections be sound, a very important question may arise, namely.
admitting the possibility of discrepancies between the Constitu-
tion of a state, as a fact, and its constitution as an instrument
of evidence, which has the superior validity? In answering this
question, it would be easy — and to some minds the tempta-
tion would be strong — to propound doctrines subversive of all
regulated liberty. ‘lhe reply seems reasonable, that the Consti-
tution, as an organic growth, the Constitution, as it ought to be
written out, to harmonize with the results of existing social

1 See Commonwealth v. Aves, 18 Pick. R. 193, per Shaw, Ch. J.
74 ARE WRITTEN CONSTITUTIONS FOUNDED ON COMPACT?

forces, ought to prevail, rather than any empirical transcript of
it made by fallible men, and therefore inadequate at the start,
or become so by the progress of society. But such a doctrine
would be anarchical — one according to which no government
of laws could long exist. The Constitution as it has been sol-
emnly declared to be, with as well its compacts as its bare tran-
scriptions, must be the sole guide, as to all matters and persons
within its proper cognizance.

But, at this point, a distinction should be made. The people
of a commonwealth sustain to its Constitution a double relation,
—first, that of its enactors; and, secondly, that of citizens
amenable to its provisions. In the first relation, they make up
the political society of which it is the Constitution. In the sec-
ond, they are simply individuals, being either private citizens or
persons charged for the time being with public functions under
the Constitution ; in both of which predicaments they are abso-
lutely subject to every provision of the Constitution, to which,
while it exists, there is for them nothing in the shape of law
superior. But, for the people considered in the first relation, as
the enactors of Constitutions, provisions of the written Constitu-
tion not according with the Constitution as a fact, are in general
of no binding force whatever: not only may the people, but, if
they would insure peace with progress, they must by amend-
ments cause the former to conform substantially to the latter.
I say “in general,” because two cases may be exceptions: first,
that of compacts, of which the occasions — divergence of views
or of interests, resulting in compromise — still subsist in sub-
stance unchanged ; and, secondly, that of constitutional inter-
dicts, couched in negative terms, and having practically the
same effect as compacts. In both these cases the constitutional
provisions referred to operate, through their effect on the subor-
dinate agents, by whom alone the sovereign can act, as a limi-
tation upon the sovereign itself; it cannot, without a violation
of morals or of the fundamental law, or of both, disregard what
it has, under such circumstances or in such terms, ordained and
established.

§ 70. IL Constitutions considered as facts, may be discrimi-
nated, with reference to the participation of the citizens in the
exercise of the powers granted by them, into several species.

1. Of these, the first comprises those Constitutions in which a
VARIETIES OF CONSTITUTIONS AS FACTS, 75

single citizen monopolizes the entire powers of the government.
These are the Constitutions of what are called absolute mon-
archies, or autocracies, and the peculiar arrangement of powers
by which they are characterized is the result of usurpation on
the part of the servants of the true sovereign, the state, followed
by the acquiescence of the latter.

2. The next species embraces Constitutions in which a few
citizens, instead of one, monopolize all the powers of govern-
went. These are styled aristocracies, and the same remark
respecting their origin is applicable, just made with reference to
that of monarchies. The term “few,” as denoting the number
who participate in the functions of government, is, of course,
indefinite, but it is intended to designate by that term a very
small minority of the citizens forming generally a close corpo-
ration, to which admission is practically denied.

3. The third species is made up of Constitutions which recog-
nize a single monarch, theoretically the fountain of honor and
authority, but in which considerable numbers of the citizens,
or certain favored classes of them, participate in the government
by representation. Governments controlled by such Constitu-
tions are called limited monarchies, a good example of which
is that of England.

4. The fourth species comprises Constitutions, in which, while
there is no monarch, and the people are recognized as the foun-
tain of all law and authority, a large proportion of the citizens,
determined by the sovereign body, exercise the powers of gov-
ernment by representation. Of this species are the Constitu-
tion of the United States, and those of the several States of the
Union.

5. The last species I shall mention consists of Constitutions
in which all the citizens participate, or may participate, in the
government directly, without representation — as the Constitu-
tions of some of the Swiss Cantons, This kind of Constitutions
is obviously practicable only in states of small territorial extent.

§ 71. Constitutions, considered in their evidentiary character,
that is, as evidence of what some particular Constitutions are
as organic growths, may be discriminated, first, with reference to
the mode in which they originate, into two classes, namely : —

1. Cumulative Constitutions.

2. Enacted Constitutions,
76 CUMULATIVE AND ENACTED CONSTITUTIONS.

Secondly, with reference to their general characteristics as
sources of evidence, into two others, closely allied to the former,
namely :—

3. Unwritten Constitutions.

4. Written Constitutions.

§ 72. 1. By a cumulative Constitution, is meant one made up
gradually of accumulated usages and common-law principles,
decisions of the courts, spontaneous and enacted institutions,
compacts and statutes, of fundamental importance or embody-
ing principles of political magnitude.| The leading idea in this
variety is, that they are evolved gradually, as the exigencies of
the national life require. "Whenever a weak spot in the political
fabric is discovered, the law or institution extemporised to sup-
ply the defect becomes a part of the Constitution. Two things,
consequently, are essential to their successful operation : first,
an alert and well-instructed public opinion, prepared at a mo-
ment’s warning, to provide the constitutional device necessary
to the exigency; and, secondly, public servants trained to a
thorough knowledge of the institutions intrusted to their man-
agement, to a love and reverence for them, and with a dispo-
sition to obey with equal alacrity its new and its old provisions.
Of this peculiar kind of Constitutions, those of ancient Rome
and of England are conspicuous examples.

§ 73. 2. Enacted Constitutions, as the name implies, are such
as are positive enactments, made commonly at one time,
though sometimes at different times, by the appropriate leg-
islative authority. From Constitutions of this kind, customs,
compacts, decisions of courts and ordinary statutes, except to
aid in construing doubtful clauses, are excluded. The Con-
stitutions established in the United States, and such as have
been modelled after them abroad, are examples of enacted Con-
stitutions.

§ 74. 3 and 4. The two remaining varieties of Constitutions,
the written and unwritten, embrace respectively the same Con-
stitutions as the two above described, but viewed in a different
relation. In those they were considered with reference to their
origin or mode of development; in these they will be con-
sidered with reference to their characteristic qualities as sources
or instruments of evidence. When a Constitution is spoken of

' Adapted from Dr. Lieber, Civil Liberty, p. 166, note 1.
WRITTEN AND UNWRITTEN CONSTITUTIONS. 77

as written or unwritten, those words are used in a sense analo-
gous to that in which the terms lex scripta, and lex non scripta
are employed in treatises on municipal law, referring, not to
the present, but to the original character of the laws in question,
as written or unwritten. It is well known that the common
law, which is strictly lex non scripta, is embodied in writing as
fully as the statute law, which is properly styled lex scripta ;
but in its inceptive stages the case was different. Precisely
the same distinction exists between written and unwritten
Constitutions. But the principal analogy between the two great
classes of laws thus characterized, the constitutional and the
municipal, is in the rules of construction and the evidentiary
effect of the written or scripta, on the one hand, and the un-
written or non scripta, on the other. In illustrating this analogy,
I shall confine my observations to the construction and effect, as
evidence, of Constitutions. An unwritten Constitution is made
up largely of customs and judicial decisions, the former more or
Jess evanescent and intangible, since in a written form they
exist only in the unofficial collections or commentaries of pub-
licists and lawyers; and the latter composing a vast body of
isolated cases, having no connecting bond but the slender thread
of principle running through them, a thread often broken, some-
times recurrent, and never to be estimated as a whole but by
tracing it through its entire course in the thousand volumes of
law reports. The result is, that what the custom or what the
course of judicial decisions may be upon any point of funda-
mental law, is a most complicated question, the answer to which
can at best be but an inference from many disconnected facts.

§ 75. Not so with written Constitutions. As I have said,
customs, decisions of courts, and institutions growing up spon-
taneously, have no place in them. Such Constitutions are stat-
utes merely, covering the whole ground and, so far as the
purpose of their framers is answered, precluding the possibility
of construction. It is only when human skill in the expression
of ideas is baffled, that a case can arise in which a court must
pronounce what the Constitution is. The field thus provided for
construction, though infinitely narrower than in unwritten Co
stitutions, is still ample, for a Constitution can only deal in gen-
eralities, whereas its application to particular cases is precisely
that which must daily be determined. The crowning difference
78 WRITTEN AND UNWRITTEN CONSTITUTIONS.

between the two species of Constitutions lies in this: that the
duty of those who construe a written Constitution is merely,
first, to ascertain the meaning of the general clause of it cover-
ing the case; and, secondly, to determine its application to the
particular facts in question; the duty, on the other hand, of
those who construe an unwritten Constitution is, first, to enter
upon an exhaustive search after the repositories or memorials in
which the Constitution lies enshrined ; secondly, having gotten
together these, to interpret them, and finally to settle by con-
struction, if necessary, the application of their general pro-
visions to the particular facts of the case. In other words, the
scope of construction in a written Constitution is principally to
ascertain what particular clauses of a determinate instrument
mean; whilst in an unwritten Constitution this inquiry must be
prefaced by another still more difficult, as to the contents or
tenor of the Constitution to be construed. In the former case,
construction is confined —that is, it operates only upon the
Constitution itself considered as an instrument which is al-
ready determined ; in the latter, it is at large; it first inquires
what the terms of the law are and then proceeds to determine
their meaning and application.

§ 76. It is obvious, that out of the distinction just announced
must grow important consequences. One of these is that un-
written Constitutions are the playthings of judicial tribunals.
They are flexible, because in the vast store-house of heteroge-
neous matter, out of which their provisions are to be gathered,
it is easy to find or not to find, that which one will. A prej-
udice or a prepossession may readily give shape to the results
of the most honest researches. So, the pressure of opinion, or of
some great public necessity, may warp the judgment-and lead
the judicial mind to see what it is desirable should be seen.
The same may doubtless happen to some extent in case of
a written Constitution. Doubtful clauses are fields in which
passion or prejudice have play, but that is an evil inseparable
from the nature of mankind. It is probable that written
Constitutions reduce the power of judicial legislation by con-
struction to its minimum. Here is the text; what does it mean.
taking its language, not in a strained sense, or diverso intuilu,
but in its ordinary signification at the time the instrument was
indited? What is the precise meaning intended by its authors!
ADVANTAGES OF WRITTEN CONSTITUTIONS. 79

If judicial legislation is an evil, written Constitutions are clearly
barriers in the way of its progress. How far they are advan-
tageous on the whole is yet an unsettled question. A short
statement of the comparative advantages and disadvantages of
written and unwritten Constitutions, may be useful before leav-
ing this branch of the subject.

§ 77. The advantages of written Constitutions are chiefly the
following : —

1. * When the political life of a people has been unpropitious
for the foundation and growth of civil institutions, they are
frequently the only possible starting point, and however slow,
superficial, or deficient their action may be for a long time, still
they form often the first available means to give civic dignity
and political consciousness to a people, as well as the beginning
of distinct delineation of power.”! 2. They “form, in times
of political apathy, if not too great, a passage, a bridge to pass
over to better times.” 2 Had the United States had an unwrit-
ten Constitution during the last thirty years, would the battle
with slavery have been fought with such persistency and success
as we have witnessed, amid the general and increasing political
ignorance and moral depravation of our people? 3. “It gives a
strong feeling of right, and a powerful impulse of action, to have
the written law clearly on one’s side, and though power, if it
comes to the last, will disregard the written law as well as the
customary, yet it must come to the last before it dares to pass
the Rubicon, and to declare revolution.”® 4. A written Consti-
tution has the peculiar advantage of serving as a beacon to ap-
prise the people when their rights and liberties are invaded or in
danger 65. Though written Constitutions may be violated in
moments of passion or delusion, yet they furnish a text to
which those who are watchful may again rally and recall the
people; they fix too for the people the principles of their political

creed.” 5 :
§ 78. Against these advantages must be set down certain

drawbacks.

1 Lieber, Polit. Ethics, Pt. I. p. 394.

2 Id. p. 395.

3 Ibid.

4 Tucker’s Black. Com., Appendix to Vol. I. p. 20.

5 Jefferson, in a letter to Dr. Priestley, Works, Vol. IV. p. 441.
80 ADVANTAGES OF UNWRITTEN CONSTITUTIONS.

1. Written Constitutions are liable, if not frequently amended,
to become inadequate, — an evil inseparable from all attempts
to define the powers of that which is in a state of transition or
growth. 2. If facility exist for producing amendments, there is
danger that constitutional changes may be made the objects of
party warfare for party purposes. Changes might thus be forced
into the written instrument before they had wrought themselves
out in the Constitution as a fact. 3. Written Constitutions,
whatever may be the facilities afforded for amending them, are
too inflexible. In a nation of the magnitude of ours, the process
of changing its Constitution is, at best, slow. In the mean time,
its rulers may be tempted, under the influence of great national
interests, or under the pressure of threatening calamities, to vio
late it; the danger of doing which is much greater where its
provisions are generally understood, than under an unwritten
Constitution, most of whose provisions are doubtful or unfa-
miliar

§ 79. The advantages of unwritten Constitutions may be em-
braced in a single proposition: they are likely at all times to be
more correct expressions than any others of the corresponding
Constitutions, considered as objective facts. This follows from
the process of their development. An unwritten Constitution is
a record, by more or less competent observers, of fundamental
changes which have occurred in the structure, principles, or
guaranties of the Constitution considered as a fact. These
changes are not made, but work themselves out under the opera-
tion of determinate social and political forces. ‘They do not
evolve themselves per saltum, as in written Constitutions, but
gradually and continuously. They who transcribe such a Con-
stitution, merely watch, pen in hand, the play of the producing
forces and note results as they are achieved. These results be-
come parts of the Constitution as a fact, and the delineation of

1 De Maistre thus sums up his opinion of written Constitutions: He main-
tains, “1. That the foundations of political Constitutions exist in advance of all
written law. 2. That a Constitution is and can be but the development of a pre-
existing unwritten law. 3. That that part of a Constitution which is most essen-
tial, most intrinsically constitutional, in short, which is truly fundamental, never
is, and without imperiling the whole political system, never can be, reduced to
writing. 4. That the weakness of a Constitution, and consequently its liability
to infraction, are directly proportioned to the multiplicity of its written articles.”
— Works, Tom. I. p. 12.
MERITS OF THE TWO CONTRASTED. 81

them, made by the observer, a part of the unwritten Constitution
considered as an instrument of evidence.

§ 80. It is obvious that if Constitutions, considered as facts,
could develop into institutions as conspicuously and as perfectly
as does the tree into fruit, the unwritten would be by far the
most perfect of Constitutions, since then, the text of it would im-
mediately reflect actual fundamental changes. This, however,
is not the fact. Excepting occasionally when a change is
wrought out by a charter or by a statute, whose terms of course
would be certain, unwritten Constitutions are determined by the
growth of customs or of institutions, emerging often so imper-
ceptibly as to elude common observation. And wherever there
is obscurity or doubt, there are the conditions of conflict.
Hence, though it is probable fundamental changes will be
sooner registered in an unwritten Constitution, they are no more
likely to have developed themselves peacefully than when they
occur under a written Constitution. The truth is, that conflict
is the condition of such changes everywhere. It is, however,
less likely to be prolonged when, as soon as it is ended and the
victory announced, the battle-cry of the victorious party is in-
scribed in the Constitution, as a part thereof, than when it must
still be embodied in it by a formal vote of the electors.

§ 81. Considering the excellencies and defects of the two vari-
eties of Constitutions, it is not easy to strike a balance between
them. For a community whose political training has been car-
ried to a high degree of perfection, in my view, an unwritten
Constitution would, on the whole, be preferable. In that train-
ing two elements would be of vital consequence to the safety of
the system: 1. An accurate understanding of their political rights
and duties, general among the citizens. 2. Sleepless vigilance to
detect violations of the Constitution, and the utmost promptness
and energy to resist and punish them. Without either of these
elements, the usurpations of public functionaries must bring the
system to speedy ruin. But fora community whose training has
been imperfect, or which is subject to fits of political apathy
alternating with those of intense zeal for reform, a written Con-
stitution is doubtless the better one. While less flexible to the
pressure of the national will, and therefore liable, in many of its
provisions to become obsolete and oppressive, it is a formidable
barrier against usurpation. Its provisions are so plain that he
82 AMENDMENT OF CONSTITUTIONS.

who transgresses them must generally do so intentionally, and
that fact must be so apparent that usurpation would in most
cases not be ventured upon, as likely to rouse a dangerous oppo-
sition. The superiority of such a Constitution in the circum-
stances supposed, follows from the fact that immobility, with its
train of possible evils, is less dangerous than movement that is
ill-judged or unconstitutional.
§ 82. To render a written Constitution safe, however, under
the most favorable conditions, it must embrace efficient ma-
chinery for its own amendment, and that machinery must be so
devised as neither to operate with too great facility, nor to re-
quire to set it in motion an accumulation of force sufficient to
explode the system. Two tendencies are observable in reference
to the way in which a Constitution is regarded by the citizens
“of a state, both equally reprehensible: the tendency to idolize
the letter of it, or, on the contrary, to under-estimate its real sa-
credness, and so to degrade it to the level of ordinary laws. The
latter leads to undue tampering with constitutional provisions
for purposes of selfish or partisan ambition. The former begets
that foolish kind of conservatism which clings to its worn-out
garments until the body is ready to perish with cold. Mr. Jeffer-
son insisted that no Constitution ought to go longer than twenty
years without an opportunity being given to the citizens to
amend it. This opinion he based upon the consideration that,
by the European tables of mortality, it appeared that a genera-
tion of men lasted, on an average, about: that number of years,
and that every succeeding generation, like its predecessor, had
“a right to choose for itself the form of government it believed
most promotive of its own happiness; consequently, to accom-
modate to the circumstances in which it finds itself, that received
from its predecessors.” 1 If to this there be appended the pro-
visos, that amendments shall only then be attempted if they are
pronounced necessary by the representatives of the people, and
that they may be made at any time when so pronounced by a vote
cast under circumstances making it probable that it reflects the
settled will of the people, the opinion is doubtless a sound one.
§ 83. But it is not enough that a Constitution provide a
mode for effecting its own amendment; it is necessary that

1 Letter to Samuel Kercheval, of July 12,1816. Jefferson’s Works, Vol. VIL
pp. 9-17.
AMERICAN CONSTITUTIONS GENERALLY WRITTEN. 8&3

there should be developed a political conscience impelling to
make amendments in the written Constitution when such as
are really important have evolved themselves in the Consti-
tution as a fact. Our courts can, in general, recognize no law
as fundamental which has not been transcribed into the book of
the Constitution. When great historical movements, like those
which have lately convulsed the United States, have resulted in
important political changes, that are so consummated and set-
tled as to indicate a solid foundation in the actual Constitution,
they should be immediately registered by the proper authority
among the fundamental laws. Why embarrass the courts and
fly in the face of destiny by refusing to recognize accomplished
facts? A point of honor should in such cases be cultivated,
compelling the citizen to acquiesce in the decrees of the Al-
mighty as written in events, similar to that which forces an
English minister, on an adverse division upon an important
measure, to resign his office. If political self-abnegation can-
not, under written Constitutions, be developed to the extent in-
dicated, it may be laid down as certain, that no commonwealth,
governed by such a Constitution, can long survive.

§ 84. In the United States, all Constitutions, considered in
their evidentiary character, with two exceptions, have been writ-
ten Constitutions. The peculiar circumstances of our political
situation which occasioned this uniformity have been explained
in the first chapter. And the exceptions alluded to are as sig-
nificant of the principles which determined the rule as the cases
strictly comprised within it. Connecticut and Rhode Island had
unwritten Constitutions at the time of the Revolution, modelled
in general after that of England, which continued in force until
1818 and 1842 respectively. The democratic character of those
Constitutions had so satisfied the people of those colonies, and
their experiences under them of parliamentary oppression had
been so slight, that there seemed no need of a change when the
yoke of England was cast off. As their rulers had not been able
to oppress them under the old order of things, it was believed they
would be unable to do so under the new ; hence their polity was
left unchanged. In the other colonies, the principle of express

1 For a vigorous discussion of the article of the Federal Constitution pertain-
ing to amendments, in which the position is taken that that article is wholly in:
adequate, see Fisher’s Trial of the Constitution, ch. i.
84 DISTINCTION BETWEEN FUNDAMENTAL AND ORDINARY LAWS.

limitation of powers was universally adopted. The result has
been the formation of a hundred or more Constitutions, conform-
ing strictly to the character of written Constitutions above pre-
sented. Throughout all these, a family likeness is observable
in every feature, internal and external. It will be the object of
the remaining sections of this chapter to point out the varieties,
the mutual relations, and the internal structure in general of
these Constitutions, so far at least as the exposition may tend to
aid us in determining the powers and duties of conventions,
whose function it is to frame them—the real purpose of this
work.

-§ 85. Before proceeding to the task indicated, however, it may
be useful to ascertain with precision the distinction between a
Constitution or fundamental ordinance, and an ordinary municipal
law. Both must be denominated laws, since they are equally
“rules of action laid down or prescribed by a superior.”? Ordi-
nary laws are enactments and rules for the government of civil
conduct, promulgated by the legislative authority of a state, or
deduced from long-established usage. It is an important char-
acteristic of such laws that they are tentatory, occasional, and
in the nature of temporary expedients. Fundamental laws, on
the other hand, in politics, are expressions of the sovereign will
in relation to the structure of the government, the extent and
distribution of its powers, the modes and principles of its oper-
ation, and the apparatus of checks and balances proper to insure
its integrity and continued existence. Fundamental laws are
primary, being the commands of the sovereign establishing the
governmental machine, and the most general rules for its oper-
ation. Ordinary laws are secondary, being commands of the
sovereign, having reference to the exigencies of time and place
resulting from the ordinary working of the machine. Funda-
mental laws precede ordinary laws in point of time, and em-
brave the settled policy of the state. Ordinary laws, are the
creatures of the sovereign, acting through a body of function-
aries existing only by virtue of the fundamental laws and ex-
press, as we have said, the expedient, or the right viewed as
the expedient, under the varying circumstances of time and
place.

§ 86. It is perhaps possible best to illustrate the distinction

1 Worcester’s Dictionary, in verb.
DISTINCTION BETWEEN FUNDAMENTAL AND ORDINARY LAWS. 85

between fundamental and ordinary laws, by considering the case
of a ship dispatched by its owner upon a distant voyage.

It would obviously be in the power of the owner to prescribe
in advance as well the particular duties of the captain and crew
from day to day, as the general nature and purpose of the ad-
venture. But, how would a prudent owner manage in such a
case? He would content himself with dictating the termini
and object of the voyage, the rank and pay of the various offi-
cers, to which he might add general directions for the safety of
the freight and the health and comfort of the crew. Beyond
this, every thing relating to the voyage would be left to the offi-
cers. They would make rules for particular exigencies, as they
should arise, direct when to tack, when to furl and when to
unfurl the sails to conform to the variations of the weather, and
prescribe the particular course in which to steer from day to day,
to avoid rocks and shoals, keeping constantly in view, neverthe-
‘ess, and, as far as practicable, acting in literal conformity to the
owner’s instructions. Now, such general directions relating to
the objects of the voyage, the equipment of the ship, and the
number and duties of those to whom her management should
be intrusted, as it would be practicable to lay down in advance,
as being not only thoroughly settled in the owner’s mind, but as
applicable under all circumstances of wind and weather, and in
any probable condition of the ship, might be considered as fun-
damental to the adventure, and as proper for a prudent owner
to prescribe. All such regulations, on the other hand, and all
such devices and arrangements as would show themselves to be
necessary only from time to time as the voyage should progress
to protect the ship, freight, or crew, in special emergencies, or to
advance the general purposes of the voyage, would not be fun-
damental, because not only would they be of less general conse-
quence, but they would depend on circumstances that would be
casual, and, therefore, not to be foreseen ; and hence they would
properly be left to the discretion of the master on the spot.

§ 87. The comparison of a commonwealth to a ship has been
a favorite conception of poets and philosophers in all ages, but
I doubt if in any respect the parallelism between them is so
complete as in that specified above. I shall not occupy further
space by pointing out minutely wherein that parallelism consists,
but observe simply that the important points are, first, that fun-
86 VARIETIES OF CONSTITUTIONS IN THE UNITED STATES.

damental laws are either structural, or expressive of the settled
policy of the state; and second, that they may, consequently, be,
as they theoretically are, laid down in advance, for ages to come;
whilst, on the contrary, ordinary laws are merely temporary
expedients or adjustments, and cannot be allowed to stiffen into
constitutional provisions without extreme danger to the com-
monwealth; that, in other words, they have no place in a Con-
stitution, and, therefore, as will be more fully shown in a subse-
quent chapter, are not proper subjects for the action of bodies
charged with framing Constitutions.

§,88. The Constitutions framed for the United States, and for
its several component States, have all, save two,' been written
Constitutions; and, in the two States whose Constitutions, as
already explained, were originally unwritten, written Constitu-
tions have lately been adopted. Of the whole number of Con-
stitutions thus far framed in the United States, there have been
two distinct varieties, namely, those framed for the general gov-
ernment, and those framed for the several States. The charac-
teristic differences between these varieties depend upon the
extent of the grants of power to them respectively, and upon
the modes in which the limits of the several grants are deter-
mined. In the two Constitutions of the Union, the Articles of
Confederation and the existing federal charter, the sum of the
powers granted was comprised in several particular grants, and
it was declared that the governments thereby established were
confined to the exercise, the former, of powers “expressly dele-
gated,” and the latter, of powers “delegated,” by that term
designating, as it has been construed, express powers, and such
as are necessary to carry into effect express powers. In these
Constitutions, limitations of the grants of power are involved in
the very terms in which they are made, the clear import of the
instruments being, without an express declaration to that effect,
that no power not affirmatively authorized by them can be exer-
vised. In other words, the governments of the United States
delineated in those Constitutions were governments of limited
powers, but of powers ranking highest in the political scale, and
within the scope of those powers, they were supreme. This is
more particularly true of the Federal government than of the
Confederation, though substantially so of that also.

9 89. To the State governments, on the contrary, were appor-

1 See § 84, ante.
THE FEDERAL CONSTITUTION. 87

tioned the residuary powers, or most of them, not comprised in
the federal grants. Thus, under the Confederation, according to
the articles establishing it, each State retained every power, juris-
diction, and right not expressly delegated to the United States;
that is, retained the sum total of the residuary powers. When
the new Constitution, however, went into effect in 1789, the
State governments were vested by the people of the Union with
such of the residuary powers only as were not reserved to the
latter ;! which reserved powers were, first, such sovereign powers
as are not delegated to the ordinary departments of our govern-
ments, as that of amendment; and, secondly, such as, not being
delegated to the Federal government, were prohibited to those of
the States. Conceiving of the State governments, as we must,
whatever the historical fact may be, as erected subsequently to
that of the Union, they took all such powers as the people had
to give except where the contrary was expressed or from the
nature of the case implied. In other words, the State govern-
ments were made governments of general powers, except when
limited by the principles of morality or by the terms of the
Federal Constitution.

§ 90. The Federal Constitution being designed particularly to
delineate the structure and powers of the Federal government, it
touches upon those of the States only so far as they are related
to that of the Union, and that with a view to prevent collisions.
It therefore deals in this respect only in prohibitions to the States.
The State constitutions, on the other hand, contain affirmative
grants of power, and the mode of making them is to give to
their governments powers, as of legislation, in general terms, and
afterwards to limit those powers, if deemed desirable, by express
provisions. Within the general domain allotted to the States,
then, whatever any government can of right do, a State govern-
ment can do. The government of the Union, on the other hand,
though permitted a discretion as to modes of carrying into effect
its granted powers, can do only what it is affirmatively author-
ized to do — finding itself hedged in from the general mass
of governmental powers, while those of the States are free to

1 The words of the 10th amendment are: “The powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people,” — not to the people of the States,
but to the people of the Union, who make the grant.
88 STATE CONSTITUTIONS PART OF CONSTITUTION OF UNITED STATES.

expatiate at large, save where powers are hedged in from
them.

§ 91. These peculiarities of structure and function give rise
to special rules of construction, depending on the differences
mentioned. Thus, although within the sphere of its acknowl-
edged powers, the general government is entitled to all liberal
intendments, still, in determining that sphere, it is a presumption
of law that a power does not belong to it, unless it be expressly
granted, or be necessary, in a legal sense, to carry into effect
some power expressly granted. This follows from the fact that
it is a government of enumerated powers. Within the sphere
of their powers, on the other hand, while the States are entitled
to liberal intendments and to complete dominion, save where
some of their powers are concurrent with those of the govern-
ment. of the Union, the presumption, in determining that sphere,
is, that a power belongs to them if the contrary do not appear
by a fair-construction of their own Constitutions and that of the
United States. This results from the fact that they are vested
with all the powers which are neither granted to the general
government, reserved to the people, nor prohibited to the States.

§ 92. And here I may remark that the Constitution of the
United States is a part of the Constitution of each State, whether
referred to in it or not, and that the Constitutions of all the States
form a part of the Constitution of the United States. An aggre-
gation of all these constitutional instruments would be precisely
the same in principle as a single Constitution, which, framed by
the people of the Union, should define the powers of the general
government, and then by specific provisions erect the separate
governments of the States, with all their existing attributions and
limitations of power. There is not a particle of question that
the people of the United States could have thus framed their
Constitution, had it been thought advisable, or that they could
still— whether regularly or not is another question — melt the
thirty odd Constitutions into a single one. To do the latter,
undoubtedly they must first recall the power, conceded by the
existing Constitution to the people of the several States, to frame,
each in a quasi sovereign capacity, its own Constitution. But
this, if they are the sovereign, they unquestionably have, if not
the legal competence, at least the physical ability to do; or they
RELATIVE RANK OF STATE AND FEDERAL CONSTITUTIONS. 89

may even, as we have seen, under like conditions, abolish the
States, as distinct political organizations.

§ 93. It follows from the principles above announced, regu-
lating the distribution of powers to the Federal and State gov-
ernments, that they are both really governments of limited
jurisdiction; and that they are equally required to confine
themselves to the exercise of granted powers. Hence it would
seem to follow that they are equal to each other. If it were
objected to this conclusion, that the rules of construction just
explained indicate a superiority of the powers appropriated to
the States, in point of breadth or scope, it may be replied, that,
while that is true, those powers are of a grade far less exalted
than those apportioned to the general government. On the
whole, laying out of view. all positive provisions subordinating
either to the other, the two systems of government, State and
Federal, save, perhaps, in notoriety or éclat abroad, must be pro-
nounced equal. But, when reference is made to the Federal
Constitution, it is found that a subordination is established by
positive regulation. Article VI. declares that “this Constitution
and the laws made in pursuance thereof, and all treaties made, or
which shall be made, under the authority of the United States, shall
be the supreme law of the land;” to which is added a provision
that all legislative, executive, and judicial officers of both Federal
and State governinents “shall be bound by oath or affirmation
to support this Constitution.” From these clauses, it is evident
the government of the Union is made, in some of its operations,
to be supreme over those of the States. As each of the two is
of course absolute within the field appropriated to itself, the
supremacy referred to must relate to the exercise of powers not
recognized as absolutely belonging to either, but such as are
denominated concurrent, or as lie on the boundary between the
two, and respecting which there may be doubts to which gov-
ernment they belong. Thus, it would be wrong to say that the
Federal government is supreme over those of the States in the
matter of declaring war, for that power belongs exclusively to
the general government. So it would be improper to say of a
State that it is supreme over the general government, in the exer-
cise of a power to which the latter can make no pretence, but

1 See ante, §§ 56-58.
90 STATE AND FEDERAL CONSTITUTIONS SHOULD BE KEPT DISTINCT.

which certainly belongs to the former.1 Supreme implies a
comparison of power, and in these cases there could be no
comparison, because one has all the power and the other has
none.

§ 94, It is, therefore, only on those points where the regula-
tions of the two governments, in the shape of State laws or
Constitutions on the one hand, and the Constitution, iaws, or
treaties of the Union, on the other, come in conflict, that the
conditions of supremacy can exist. If a power is concurrent
in the two, its exercise by the States must be subordinated to its
exercise by the general government, where both cannot exercise
it fully without collision. So, where a power may fairly be
claimed to belong to both jurisdictions, if it be asserted by the
general government, it becomes pro tanto, on account of its
supremacy, rightful to it alone. That is the supremacy meant
by the constitutional provision. As the authors of the “ Feder-
alist” have shown, it expresses but the condition on which alone
a complex system of government by means of distinct and yet
not wholly independent political organizations, like ours, can
exist. Either the States must be subordinated to the Union, or
the Union must be subordinated to the States; in which latter
case, as they well observed, “the world would have seen for the
first time a system of government founded on an inversion of
the fundamental principles of all government; it would have
seen the authority of the whole society everywhere subordinate
to the authority of the parts; it would have seen a monster, in
which the head was under the direction of the members.” ?

§ 95. While considering the relations of the two varieties of
Constitutions in the United States, namely, that of the Union
and those of the States, it may be well to remark, that, although
they together form the Constitution of the Union, yet, as in the-
ory their spheres of operation are distinct, so, in practice, they
should be kept disconnected in respect of the rights and duties
apportioned to each. They ought not, in other words, to make
themselves ancillary to each other’s operations. This remark is
applicable more particularly to the Constitutions of the States in

1 See Rutherforth’s definition of the word “supreme” as distinguished from
the word “ sovereign,” ante, § 18, note.

2 Federalist, No. 44, by Madison. See, also, 2 Peters’ R. 449; 4 Wheaton’s
R. 122.
OPINION OF MR. WEBSTER. 91

relation to that of the United States. Thus, as the right to coin
money is given exclusively to the general government, counter-
feiting the national coin is properly, as such, an offence only
against the United States, and ought to be punished by it alone.
For a State, either in its Constitution or laws, to make provision
for punishing it, would be inexpedient, if not a breach of con-
stitutional duty. If the governments founded by the people of
the United States, and charged with distinct and independent
functions, are unable to sustain themselves without extra-con-
stitutional aid from each other, that would be a reason for
applying to the original fountain of authority for an increase of
their powers, not for exceeding their respective jurisdictions, with
a view to effect what can only be properly done by the people
themselves. Such an assumption of power would be for our
legislative bodies to make, not to administer, the fundamental
laws. ,

This idea was admirably enforced by Mr. Webster in the
Massachusetts Convention of 1820. He said: It was inexpe-
dient to connect “the State Constitution with provisions of the
National Constitution. He thought it tended to no good conse-
quence to undertake to regulate or enforce rights and duties
arising under the general government, by other means than the
powers of that government itself. He would wish that the Con-
stitution of the State should have as little connection with the
Constitution of the United States as possible. Some of the
States have sometimes endeavored to come in aid of the general
government, and to enforce its laws, by their own laws. State
statutes had been passed to compel compliance with statutes of
Congress, and imposing penalties for transgressing those statutes.
This had been found very embarrassing, and, as he thought,
mischievous, because its tendency was to mix up the two gov-
ernments, and to destroy the real essential distinction which
exists between them. The true constitutional, harmonious move-
ment of the two governments was as much interrupted by their
alliance as by their hostility. They were ordained to move in
different spheres, and when they came together, be it for the pur-
pose of mutual harm or mutual help, the system is deranged.
Whatsoever was enjoined on the legislature by the Constitution
of the United States, the legislature was bound to perform; and
he thought it would not be well by a provision of this Constitu-
92 BILLS OF RIGHTS.

tion to regulate the mode in which the legislature should exer.
cise a power conferred on it by another Constitution.” 1

§ 96. I pass now to consider briefly the internal structure of
written Constitutions, as they exist in the United States.

The American Constitutions commonly consist of three dis-
tinct parts: 1. The Bill of Rights. 2. The Frame of Government.
3. The Schedule. Of these, the first two are generally present,
though often blended together, and not in separate parts. The
third, especially in the earlier Constitutions, is not always found.

1. A Bill of Rights consists of solemn declarations of abstract
principles, relating to the origin, ground, and purposes of govern-
ment, and practical injunctions and prohibitions, promulgated
with a view to its safe and equitable administration, digested
out of the experience of the free peoples of England and Amer.
ica during six hundred years of struggle for constitutional lib-
erty, and intended as at once a guide and a limitation to the
government in the exercise of power. I call the principles em-
bodied in a Bill of Rights abstract, but only in deference to the
common forms of speech, which thus characterize whatever is
viewed as disconnected from the circumstances of time and
place. Properly considered, however, those principles are the
most concrete of all, as being such, not simply under certain
conditions, but irrespective of all conditions.

In the progress of English liberty during the period men-
tioned, there have been taken these cardinal steps: 1. The
Magna Charta, with its thirty confirmations by the Plantagenets
and Tudors; 2. The Petition of Right, addressed by the Parlia-
ment to the second of the Stuarts; 3. The Declaration of Right,
made by the Convention Parliament on the restoration of Charles
IL; 4. The Habeas Corpus Act, passed in the thirty-first year of
his reign; and, 5. The Act of Settlement by which the crown
was settled upon William and Mary in 1689, upon terms and
conditions imposed by a second Convention Parliament, being
the crowning stone in the arch of English freedom. The liber-
ties wrought out or secured by these famous Acts, were as much

1 Deb. Mass. Conv., 1820, p. 112. It has even been made a question whether
a State Constitution ought to provide for taking an oath to support the Constitu-
tion of the United States. See Ded. Penn. Conv., 1837, Vol. L. pp. 195-215.
See, also, on the general question discussed in the text, Deb. Ohio Conv., 1850,
pp. 233-236.
BILLS OF RIGHTS. 93

those of English freemen living in America as of those dwelling
in England. They were perhaps even more fondly cherished by
the former than by the latter, since circumstances taught them
more clearly their great value, and the precarious tenure by
which they were held. Accordingly, in all the public papers
emitted by the colonies during their struggle with England, they
grounded themselves distinctly on these great constitutional acts.
Indeed, it is now admitted by the political writers of England,
that it was our fathers alone who held aloft the liberties of Eng-
land for Englishmen themselves in that struggle, and that the
triumph of the crown would probably have been the downfall
of the entire Constitution, built up with such infinite toil and
blood.1

§ 97. When it became apparent, accordingly, in the course
of our Revolutionary struggle, that independence was inev-
itable, and the colonies came to provide regular governments
based on the authority of the people, they sought to erect at the
same time a system of guaranties of their old-time liberties.
To this end, in imitation of their ancestors, they engraved the
maxims and principles forming the most valued portions of
those acts — all of them, indeed, that were deemed applicable to
their condition and circumstances — upon the front of their con-
stitutional charters, as if for a perpetual caveat to their rulers.
To realize the great value of these principles, I have but to
refer to a few of the most important and well known of them.
They were: That no freeman ought to be taken, imprisoned, or
disseized of his freehold, liberties, or privileges, or outlawed or
exiled, or in any manner destroyed or deprived of his life, liberty,
or property but by the law of the land: That the people ought
not to be taxed, or made subject to the payment of any impost
or duty, without the consent of themselves, or their representa-
tives in General Assembly, freely given: That no freeman
should be convicted of any crime but by the unanimous ver-
dict of a jury of good and lawful men, in open court, as there-
tofore used: That excessive bai] should not be required, nor
excessive fines imposed, nor cruel or unusual punishments in-
flicted: That the freedom of the press was one of the great
bulwarks of liberty, and therefore ought never to be restrained :
That for redress of grievances, and for amending and strength-

1 May’s Const. Hist. of England, Vol. I. pp. 28-30.
94 BILLS OF RIGHTS.

ening the laws, elections ought to be often held: That per.
petuities and monopolies were contrary to the genius of a free
state, and ought not to be allowed. To these were added pro-
hibitions against general warrants, standing armies, ex post facto
laws, the suspension of laws or the granting of hereditary emol-
uments or privileges, and injunctions designed to secure the
privilege of the writ of Habeas Corpus, the right of petition and
of freely assembling, the freedom of worship and of the press,
and the establishment of a militia for the public defence.

§ 98. As is generally the case with constitutional provisions,
these principles are not couched in the technical language of
laws, nor are they coupled with sanctions. But it is, neverthe-
less, impossible to overstate their importance as guides to the
departments of government in the exercise of their functions.!
From their nature this is especially true of the State govern-
ments. To a government like the Federal, whose powers are
such only as have been expressly granted, or as are necessary to
carry into effect such as are expressly granted, the range for
aberrations from constitutional paths, and therefore the need of
cautionary or restrictive maxims, are much less than in govern-
ments constructed like those of the States. Accordingly there
was no Bill of Rights in the Federal Constitution as originally
framed, nor properly afterwards, though the amendments carried
soon after its establishment consisted almost exclusively of prin-
ciples usually embodied in Bills of Rights. The reason for en-
acting these amendments was, that the people of the United
States were not content to rest their liberties upon any con-
stitutional inability of the Federal government to infringe them.
Such a security was a negative one, at best, and subject always
to be neutralized by construction in the wide field of incidental
powers. They insisted upon positive landmarks, and not only
that, but upon the erection of such a barrier of principles and
asserted rights as should deter any but the intentional usurper
from passing the line of permitted powers. Without a tacit
understanding that such a barrier should be provided, it is
beyond question that the system would not have been ratified.
The case was different with regard to the State Constitutions.
They contained grants of power so extensive and so undefined,
that the propriety of prefacing them by declarations of rights

1 Hamilton v. St. Louis County Court, 15 Mo. R. 1, (23).
FRAME OF GOVERNMENT. 95

was never denied or even doubted; and, as we have seen,
though there have been exceptions, in general all Constitutions
of that class have contained Bills of Rights.

§ 99. The chief practical advantage of Bills of Rights, as
above intimated, is that they furnish a guide to the depart-
ments of the government in the exercise of their powers and
duties in cases of doubt. They are for them what prudential
maxims resulting from individual experience are for men in
the ordinary concerns of life. But the experience from which
the former are drawn is that of society, accumulated in the
course of many centuries, and so, not likely to be that also
of the individuals who administer the government, nor to be
known to them unless specially inculcated in some conspicuous
manner. It is upon the determinations of courts of justice that
they have the most direct and beneficial effect. In questions
of constitutional power or duty, in their bearing upon private
rights, they are an invaluable guide, and our books of reports
are filled with cases, the decisions of which turned upon the
principles embodied in them. These principles, indeed, may
be distinguished from the provisions of that part of the Con-
stitution denominated the Frame of Government, as embracing,
the former, guaranties for private rights, and the latter provisions
relating to the policy of the State and to its political power and
organization.! It being impossible in general language to lay
down rules for the determination of particular cases, our courts
would, on very many questions of construction, be wholly afloat,
without the fixed principles of public policy and private right
laid down in our Bills of Rights.

§ 100. 2. The Frame of Government is that part of a written
Constitution in which are described the structure and functions
of the government; that is, the distribution of political power,
the particular agencies which are to wield it, the extent and
duration of their authority, their emoluments, modes of appoint-
ment or election, and the apparatus designed for amending or
reproducing the system. Though in general all official persons
and duties are delineated in this part of the Constitution, there
are some exceptions, as in case of sheriffs, whose election merely
is regulated, without specifying their duties or powers. They
being officers well known at common law, a description of those

1 Sedgwick on Stat. and Const. Law, pp. 475-6.
96 THE SCHEDULE.

particulars is deemed unnecessary, as being involved, to the com-
mon apprehension, in the name of the office. The same is true
of some other functionaries, as coroners, the higher military offi-
cers, judges of the courts, and others.

§ 101. In the Frame of Government are often, especially in the
Jater Constitutions, included also positive provisions relating
rather to the general policy of the State than to its political
power or organization. Thus, many contain clauses designed to
promote education, to encourage charitable institutions, to deter.
mine the status of the citizens of the State, as slave or free, or to
regulate corporate rights, as of banks or of railroad companies,
or the privileges of particular classes of citizens, such as home-
stead exemption, rights of married women, and the like. Indeed,
as Constitutions embody settled policy, as well as the general
features of the political organization, so fast as measures of pol-
icy become really settled, that is, removed from the arena of
party conflict, they are commonly enshrined in the Constitution,
so that every generation, in communities like ours open to prog-
ress, witnesses an extension of these provisions in our funda-
mental charters. Beside these provisions, State Constitutions
usually contain others defining the boundaries of the territory
claimed as within their jurisdiction ; and, in close relation thereto,
announcing the State policy with reference to the management
and disposition of the public domain, or to internal improve-
ments.

§ 102. 3. The Schedule is that part of a written Constitution
in which are comprised provisions deemed necessary — 1, to ascer-
tain the will of the people with respect to the adoption of the
instrument, matured by a Convention, as the Constitution of the
State ; 2, to effect, without inconvenience or embarrassment, the
transition from the old to the new order of things, and to save
rights, acquired under existing laws, from lapsing by their re-
peal; 3, to set up and put in operation the institutions and
agencies described in the Constitution, so far as not already in
operation. These provisions are mostly temporary in purpose
and effect ; and although they are, some of them, of a character
more or less fundamental, they seem incongruous with the per-
manent provisions of the Constitution, properly so called, and
with the Bill of Rights. Beside these, which are the usual and
THE SCHEDULE. 97

proper contents of a Schedule, are sometimes found others, whose
true place is in the Frame of Government, or whose character
is such that they caanot rightfully find any place in a Con-
stitution. Of the former, sections relating to subjects treated of
in the body of the instrument, but bearing upon points which
have apparently been forgotten, or which are mere after-thoughts,
are instances. It is, perhaps, rather a sense of logical complete-
ness and order than substantial propriety which is offended by
such provisions; but if a Schedule is a proper subdivision of a
Constitution, it should be, not in the nature of a labor-saving
postscript, made at the expense of clearness and finish, but of an
appendix, in which to gather provisions of a temporary and mis-
cellaneous character, related to the instrument in the main only
as subservient to its general objects. Among provisions which
ought to find no place in a Constitution at all, but which are,
nevertheless, occasionally placed in a Schedule, may be men-
tioned laws or ordinances relating to the submission of the Con-
stitution to the people, to take effect at once, in cases where
power to make such laws or ordinances has been expressly with-
held by the legislature calling the Convention, or where different
directions have already been given to that end by the legislature
itself, and, perhaps, where the legislature has been altogether
silent on the subject of submission. The objection to such pro-
visions is, that they are exercises of a legislative discretion not
belonging to a Convention; and as, from the nature of the case,
the action of sucha body, in placing them in the Schedule as rules
of conduct, cannot be revised, but is definitive, it is an excess
of authority to assume to enact them. Whether or not it might
be allowable to make such provisions in the case last supposed,
where the legislature has been silent on the subject of submis-
sion, or of the time and mode in which it shall be made, is a
fair subject for argument, which will be considered in a subse-
quent chapter.!

§ 103. It should be noted that the Schedule did not make its
appearance until after the first batch of Constitutions, including
those of the Union, had been framed and put in operation. The
first Constitutions in which it was used were those of South Car-
olina and Pennsylvania, framed in 1790. Of the Constitutions
now in force, only about two in three have them, though in a

1 See §§ 480, 481, 497-499, post.
98 ORDINANCES.

few instances a separate article containing similar provisions is
embraced in the Constitution, without special designation, or
under the title of General Provisions.

§ 103 a. Beside schedules, there are appended to many Con.
stitutions acts adopted by Conventions, called ordinances,
Not all ordinances, however, are so appended, or have any
direct relation to Constitutions. They are in their nature reso-
lutions of the bodies adopting them, but taking the name, ordi-
nances, to distinguish them from the similar acts of legislative
bodies, denominated resolutions, which may be adopted by the
Houses severally or jointly. Within the scope of the powers of
a Convention, ordinances may be valid and effectual according
to their terms and purpose. If they are employed to provide
for temporary emergencies of the Convention, and do not
transcend the limits of its powers as defined or implied in the
act calling it, they are valid. If they are appended to the Con-
stitution, and with it are submitted to the people for adoption
or rejection, when submission is not dispensed with, and with
it adopted, they are as valid as any part of the Constitution,
and are equally binding upon the various departments of the
Government.}

Before leaving the subject of Constitutions, it is proper to
observe, that, wherever in this work the term “ Constitution ”
is used, a written Constitution will be intended, unless the con-
trary is intended.

1 Stewart v. Crosby, 15 Texas R., 546 ; 18 Am. Law Reg. (0. S.), 716.
CHAPTER IV.

OF THE REQUISITES TO THE LEGITIMACY OF CONVENTIONS, AND
OF THEIR HISTORY.

§ 104. Havine, in the two preceding chapters, considered the
doctrine of sovereignty, by which are mainly to be determined
the powers of the Constitutional Convention, and defined what is
meant by a Constitution, to frame which is the business of that
body, I pass now to a series of inquiries having for their pur-
pose to determine the requisites to the legitimacy of Constitu-
tional Conventions, namely, first, What is the proper mode of
tmitiating or calling a Convention? and, secondly, By whom
should Conventions be elected ?

These questions will form the subject of the present chapter,
and will be considered from two separate points of view; 1,
from that of theoretical principles; and, 2, from that of his-
torical precedents.

§. 105. Before entering upon the wide field thus brought to
view, it will be useful to ascertain the import of two terms,
which will be very frequently used in the course of the discus-
sion, namely, legitimacy and revolution, with their derivatives.

The primary signification of the term legitimacy is accordance
with the law, and it is most commonly employed with reference
to the birth of children, to characterize it as lawful. In European
governments, sovereignty being generally ascribed to the reigning
monarch, from whom it descends to his offspring, according to
certain rules, the legitimacy of a government follows from the
personal legitimacy of the occupant of the throne, and vice
versa; hence the term has there come to bear very commonly a
merely political signification to characterize governments deemed
to be regular and lawful, because, in the devolution of the rights
of sovereignty from one incumbent of the throne to another, the
established rules of legitimate succession have been observed.

§ 106. To the legitimacy of a prince of the blood, it is essen-
tial that he should be the offspring of the reigning monarch and
his wife, begotten and born in lawful wedlock and during their
"joint occupancy of the throne, or the legitimate offspring of
parents sustaining that relation. This rule, though apparently
100 LEGITIMACY.

arbitrary, is based on the experienced necessities of state for
many ages in the European monarchies; and, if exceptions to it
have occurred, they have been rather acquiesced in than com-
mended, and that from the same considerations of expediency
that gave rise to the rule. To render a government legitimate,
then, the rule requires the exclusion from the succession of all
persons not the offspring of the royal pair; the exclusion of all
the issue of them or either of them begotten, or conceived, out
of the sovereign condition, or in a morganatic union of sovereign
and subject; and, especially, of their bastard issue. To realize
the importance of this rule, one needs but to call to mind the
wars of succession that devastated the European monarchies, be-
fore it was established or because its application was disputed.

§ 107. Now, with the exception of royal titles and the physical
circumstances of marriage and birth of children, which give a
local coloring to the doctrine of legitimacy in Europe, it is ap-
plicable, in similar terms and for the same reasons, in the United
States. It is true here, as there, that, to be lawful or legitimate,
successive forms of government must be the offspring, regularly
and lawfully begotten, the later of the earlier. They must be
developed, one out of the other, after the order of Nature in the
genesis and growth of her organic products. A system of gov-
ernment, in other words, having been established, it must itself
govern, as well in the matter of reproducing or repairing itself as
in that of protecting itself and its subordinate members from the
operation of harmful agencies without. A government, once
founded, is the people, as organized for the attainment of the
ends of government. Neither a part nor all of that people, in
their individual capacity, or acting as a dissociated, non-organized
mass, are legally competent to change their political structure.
If that is to be done at all, consistently with the integrity of the
government, or with the safety or happiness of the citizens, it
must be done through the people themselves, as organized for the
purposes of government. In a word, it is a right of the governed
to know where to look for lawful successors to the institutions
and magistrates under which they now live —a thing impos-
sible except when the succession takes place according to law.

The rules and legal principles by which this right is secured
and rendered effectual, limit and explain the doctrine of legiti-
macy under our system of government.

§ 108. To determine whether an institution or a public body,
REVOLUTION. 101

claiming to exercise any of the powers of sovereignty, is legiti-
mate, in a political sense, it is necessary to ask two questions:

1, Has it, in its inception, the stamp of legality — of con-
formity to the law of the land? ,

2. Do the law itself and the proceedings in which it originated
conform to the fundamental principles of the Constitution, and
to those prudential maxims which define the limits and condi-
tions of a safe constitutional rule, from the point of view of the
existing government ?

Whatever can answer these questions in the affirmative is
legitimate. Whatever, on the other hand, is extra legem, that
is, established without law, and from a point of view external to
the existing order; and whatever, more especially, is adverse in
its methods or influences, though not, perhaps, in its intent, to
the government in being, or violates the principles necessary to
its conservation, is illegitimate.!

Thus far of the term legitimacy.

§ 109. The term revolution (revolvo, to roll or turn over,) was
used originally to signify, in a political sense, an uprising of am-
bitious or discontented subjects, with a view to subvert the exist-
ing social order. From this has been derived the meaning, most
common nowadays, with which I use the term, namely, to
denote a political act or acts done in violation of law, or with-
out law. The act must be a political one, since it would be an
abuse of the term “revolution” to apply it to ordinary misde-
meanors or felonies, which, though infractions of the municipal
law, have neither in intent nor effect a political bearing. A
political act is one done either in the exercise or in derogation or
subversion of political rights, as defined and guaranteed by the
government established. Such an act, to be revolutionary, ac-
cordingly, must be done either, first, in violation of law; that is,
of the Constitution, or of the customary or statute law, includ-
ing in the term law, the letter, with its necessary implications ;
or, secondly, without law ; by which is meant, that the act must
rest, for its warrant, on abstract considerations, such as physical
power, necessity, or natural equity, and not upon the authority
of the existing social order, to which it is extrinsic or hostile.

From these definitions it follows, that it is erroneous to im-
pute to all revolutions, what are unhappily the concomitants
of some, bloodshed and violence. Revolutions are of various
kinds: —

1 Compare Guizot, Hist. Civilization in Europe, Vol. I. Lect. Ol.
102 REVOLUTION.

First, such ds manifest themselves in desolating wars, as that
of the Roses, in England, or that which has just deluged our
own land with blood.

Second, such as run their course without bloodshed, but are
attended by angry collisions of parties, threatening an outbreak
of violence.

Third, such as are consummated quietly, without a breach of
the peace, or even excitement, — often without a distinct percep-
tion, on the part of the people, of their occurrence.

§ 110. Of each of the kinds of revolution enumerated, the
consequences may be varied, wholly without relation to the ap-
parent magnitude of the forces at work in them. They may,
indifferently, result in great and permanent changes in the Con-
stitution of the society in which they occur, or in its laws or
social condition, whether pronounced successful or not. Or, on
the other hand, though they may seem to involve colossal forces
and to be producing great transformations, the resulting changes
may be slight and temporary.

Strictly speaking, it is erroneous to distinguish revolutions as
small or great. It is the want of legality in what is done that
constitutes the revolution ; and when a thing is done for which
there is no law, or which is in violation of law, there are no de-
grees in the illegality, — one thing is as legal as another, when
both are illegal. It is only of the concomitants or effects of
revolutions that magnitude can be predicated.

§ 111. A single further remark is necessary to explain the im-
port of the term revolution. In what has preceded, revolution-
ary acts have been conceived of as done, not by the government,
but by persons without it, though subject to it. But the term
revolutionary is often applicable to acts done by the function-
aries of a state, whilst pursuing its enemies, to defeat them and
to preserve the state. There is a homely maxim, according to
which it is proper “to fight the devil with fire,” which applies
well to counter-revolutionary acts. On principle, as being done
without law or against law, though with the patriotic purpose
of saving that for which all laws are made, such acts must
nevertheless be classed as revolutionary. The moral character
to be affixed to them, however, is to be determined by the degree
of their necessity. So far as they are necessary to save the
existing order, they are for it proper weapons of defence, and
IMPORTANCE OF DEFINING REVOLUTION. 103

their inherent illegality is to be laid to the account of those who
necessitated their use. So far, on the other hand, as they are
unnecessary, they are to be stigmatized not only as illegal, but
as morally indefensible, because stepping farther outside the
circle of the law than is necessary to grasp and destroy its
enemy.

§ 112. The importance of defining the term revolution, and of
characterizing as revolutionary whatever, by its lack of legality,
deserves the name, arises from the consideration, that, co-exten-
sive with the domain of law, is that of precedents. A precedent
has been defined to be “ something to show that, because a thing
has been done before, therefore it may be done again.”! Being
always relative to some rule, it is in the nature of a practical
construction put upon it by the public authorities, from which it
is fair to presume they will not depart in similar cases. Now,
when, in treating of constitutional or political questions, it has
been determined that an act or thing is without the domain of
law, having no relations to it except those of hostility, that is,
is revolutionary, it is also shown to be beyond the domain of
precedents; it is, in short, incapable of being drawn into prece-
dent. In this respect a revolutionary act is like one of theft or
of homicide. While it is impossible to call either of the latter
legal, it cannot be denied that both may, under some circum-
stances, be necessary and justifiable, as to preserve life. But
such cases are extreme ones, and rest on their own circumstances.
Because a man yesterday took life justifiably, under circum-
stances specified, it does not follow that I may take life to-day,
though the same circumstances may exist, as, in my case, from
a thousand causes, there may be no necessity for taking life. I
may be stronger, or my antagonist weaker, than in the case cited
as a precedent, and the particular of relative strength may not
have been adverted to in that precedent. If, judging by my case
alone, it is absolutely necessary for me to take life, ] am justifi-
able in doing so, otherwise not. So, with every act that can be
characterized as revolutionary. If it be done at all, it must be
because the doer deems it absolutely indispensable. Moreover,
it must be done at the doer’s risk. If it result successfully, it
so far lays the foundation for a new order of things. If it fail,

1 Judge Joel Parker, in the Massachusetts Convention of 1853. Debates
Mass. Conv. 1853, Vol. I. p. 83.
104 BUT TWO MODES OF CALLING CONVENTIONS.

he who did it is liable to the penalties of treason under the old,
But — and this is the important point — in no event can such
an act be drawn into precedent, because not done in pursuance
of any accredited rule or law, of which it can be regarded as
a practical construction.

§ 113. A single remark further as to the terms illegitimate
and revolutionary. These terms are, to a certain extent, con-
vertible, but the latter is of a wider signification than the
former. TIllegitimacy refers to illegality of origin, and is perti-
nent rather to a person or body of persons than to an act. The
term revolutionary, on the other hand, may be used to charac-
terize indifferently a body or an act, and involves the idea, as
we have seen, of illegality in general, that is, of either a want
of express legal warrant, or a violation of positive law.

§ 114. To revert now to the subjects proposed for discussion
in this chapter : —

I. What is the proper mode of initiating a Convention, look-
ing at the question from the point of view of theoretical prin-
ciples ?

There are but two modes in which a Convention can be initia-
ted. First, it may be done through the intervention of unofficial
persons; that is, by persons acting as private citizens, but giv-
ing expression, perhaps, to a general desire; or, secondly, by the
intervention of persons belonging to some branch of the exist-
ing government, acting in their official capacity, and by that
government’s desire.

1. A Convention called in the first mode would obviously be
nothing more than the “ Spontaneous Convention” or public
meeting explained in the first chapter. Lacking official charac-
ter and relations, the extent to which such a body would express
the public will, would be simply a matter of conjecture. As no
legal provision could be appealed to to guide it in determining
whether all parts of the political body were proportionately repre-
sented in it, or whether they, who claimed. to sit as delegates,
were entitled to do so, it would be impossible for such an assem-
bly to vindicate its legal character or its exclusive jurisdiction
for any purpose whatever. And yet, regarded as a collection of
persons interested in effecting constitutional changes, that. is,
as a mere public meeting, such a body would be obnoxious to
no exception. But those who maintain the propriety and legal-
BY ACTION OF UNOFFICIAL PERSONS. 105

ity of that mode go farther. They claim for a Convention thus
assembled, if deputed by a majority of the adult male citizens
of the State, an official representative character, in virtue of
which its action is to some extent legally binding on the whole
State.

§ 115. How this may be, upon judicial authority, will be the
subject of future examination. Considered upon principle, it is
sufficient to remark : —

First, that, if the proposition announced in a former chapter,
as involved in the definition of sovereignty, be a sound one, that
sovereignty inheres, in no sense, and to no degree, in the citizen
as an individual, nor in any number of citizens as individuals,
but in the society considered as a corporate unit; then, any aggre-
gation of individuals, not exhibiting a warrant from the sover-
eign, through some one of its recognized ordinary agents, for as-
sembling and acting in its name, is a mere spontaneous assem-
bly or caucus. It has nothing official in it, and can bind no one
by its proceedings. If it affect to frame a law or a Constitution,
and to put it in force, its action is revolutionary. As a body, it
is neither the sovereign nor any body sprung from it, and so
known to the law, but is unknown and hostile to both. It is,
therefore, illegitimate.

Secondly. The hypothesis that a Convention, called by unoffi-
cial persons, should express the general desire, is the most favor-
able one that could be made for those who ascribe legal validity
to the acts of such a spontaneous assembly. In actual experi-
ence, insurmountable difficulties would attend the authentic
ascertainment of that fact. How could it be made known,
without legal direction and scrutiny, who participated in that
expression, or whether the returns were correct of those who
opposed, as well as of those who favored, the call? Probably,
as a fact, few meetings, thus originated, would represent more
than a clique. To those interested in securing the objects of
the Convention, the attendance of such as were not, would be
undesirable, and either the latter, therefore, would receive no
notice of the election of delegates, or the result of it would be
falsified. Opposing interests would have each its primary meet-
ing and its delegates. Where all was loose and spontaneous,
whose duty should it be to determine, among the adverse claim-
ants to whom the seats in the Convention should be awarded ?
106 BY ACTION OF THE GOVERNMENT.

The rejected delegations might really represent the majority.
At any rate, believing themselves to do so, or pushed on by pas-
sion to pretend it, rival Conventions, each announcing itself as
“the people in their sovereign capacity,” might assemble, and
harass the State by conflicting ordinances, heralded as supreme
laws for its citizens. In all this, there would be, at bottom, no
legality, because done without law, in the face of the existing
government. One of the most important ends of government,
is to ascertain, for the citizen, who are the magistrates, and what
are the laws. Under its egis, he can never be embarrassed by
two sets of functionaries asserting validity for two rival sets of
laws or two opposing Constitutions. Looking at those whom
he knows to represent the sovereign, the officers of the existing
order, he can rest satisfied, that what they recognize as legal is
so, and what they denounce as illegal, is illegal. The mode of
calling Conventions now in question would render this impossible.
No citizen could know either the magistrate, the Constitution or
the laws he was bound to obey. A Convention, then, called
in such a mode, it would be a perversion of language to style
legitimate.

§ 116. 2. The other mode of calling Conventions is by an
authentic act of the sovereign body acting through some branch
of the existing government representing it, as the electors, or one
of the three departments — legislative, executive, and judicial.

The propriety of this mode is inferrible from considerations,
already presented, of the embarrassments resulting from any
other possible mode. But it is easy to demonstrate the abso-
lute impropriety of any other mode. In a former chapter,
we have seen, that any body of men claiming to act in the
name of the sovereign, in the discharge of any political funce-
tion, must be presumed to be impostors or usurpers, unless
exhibiting a warrant so to do from the sovereign, in the
shape of some law or constitutional provision? If it have
no official character whatever, its individual members are
impostors. If, having a quasi-official character from that of
its individual members, as belonging to the system of agen-
cies established by the body politic and constituting the gov-
ernment, it nevertheless assume a function not intrusted to

1 See Webster’s Works, Vol. VI. pp. 224-229,
2 See § 25, ante. Also Webster’s Works, ubi sup.
BY THE ELECTORS. 107

it,— its members are usurpers. The philosophy of the whole
subject may be summed up thus: The State has a clear right
to reproduce itself, as an animal does, at its own will and by its
own appropriate organs. Only by the exercise of that right can
its reputed offspring or successor be legitimate, or, what is of
perhaps equal importance to the citizen, escape the reputation
of illegitimacy.

§ 117. Conceding that the principle just stated, as a general
one, is true, it remains to inquire into the particulars comprised
in the term mode; that is, to determine with reference to all the
pertinent categories, how a Convention ought to be called to be
at once legitimate and safe. Taking the word in its broadest
sense, there must be included in the mode of calling a Conven-
tion a description, first, of the agencies through which the call
is to be effected ; and, secondly, of the manner in which it is to
be done. These will be considered in their order.

§ 118. 1. As we have seen, the agency through which a Con-
vention ought to be called, is some branch of the existing gov-
ernment, that is, either the electors or one of the three ordinary
departments indicated. To select out of these that one which
is best fitted for such a trust, though a work of some difficulty,
is one which can be done with considerable exactitude.

(a). Should it be committed to the electors, independently
of other departments of the government ?

The electoral body, though less numerous than the sovereign
body which it represents, is yet so organized as to incapacitate
it for assembling or acting together. It has no ministers through
whom either its functions can be performed or its will in relation
to them be ascertained. If charged with the duty of deliberating
upon the call of Conventions, it would act under disadvantages
precisely the same as would attend the call of such bodies spon-
taneously by the entire people, or by a majority of the adult
male citizens. There could be no certitude as to results. To
produce that, there must be legal provisions, prescribing time
and mode of passing upon the question of calling such Conven-
tions. With such a guide, however, the electors would not act
independently, in the sense intended, but in subordination to the
legislature.

§119. (6). Should ‘the power of calling Conventions be left
to the judicial department? It is very doubtful whether the
108 THE EXECUTIVE.

judiciary are adapted to perform this function. However exten-
sive the State may be, that department is never, in point of
numbers, large, and it is commonly less numerous relatively in
large than in small communities. It is intended, moreover, for
a definite and limited function — that of expounding and apply-
ing the laws. Whenever the judiciary confines itself to its
proper sphere of action, which is to determine what the law is,
it is, by that circumstance, unfitted to pronounce what, in a
complicated maze of facts constituting, at any time, the actual
situation, the law ought to be. It is therefore observable that
great judges, like Mansfield, often fail as legislators. By train-
ing and habits of mind they are retrospective, and distinguish
themselves more often by obstinate conservatism than by those
broad practical views, “ looking before and after,” which consti-
tute statesmanship. Such idiosyncracies disqualify those who
possess them for the leadership in reformatory movements, and
often blind them to their necessity. Being, moreover, a body
small in numbers, and, for that reason, not likely adequately to
represent the prevalent wishes or opinions of the people, the
judicial body ought not to wield the power of calling or re-
fusing to call Conventions by which propositions of reform are
to be digested.

§120. (c). Somewhat similar objections exist to the execu-
tive as a depositary of the power in question. That depart-
ment consists of a single individual, noted, often, rather for
political tact than for wisdom or statesmanship. But, if it were
conceded that our governors were always what, happily, they
very generally are, wise men and statesmen, and if they could
be presumed fairly to represent the nation in reference to ques-
tions of reform, grave objection would still exist against lodging
the power | am considering in their hands. In our system of
popular government, it is the executive in whom has been dis-
covered the greatest centrifugal tendency, and who is, therefore,
most likely to break through the restraints of law. If our sys-
tem ever perish, it will probably do so, not from legislative or
judicial, but from executive, usurpation. And though this re-
mark seems applicable rather to the Federal executive than to
those of the States, it is pertinent, also, to the latter. Within
the sphere of the States, executive usurpation is quite as likely
to arise on the part of their governors as in the wider sphere of
THE LEGISLATURE. 109

the nation on the part of the President. Which of the two it
is from whom most danger is to be apprehended, need not
now be determined. Until the late war, the executive authority
in the States seemed most to threaten our integrity. Perhaps,
now, the danger may be reversed. But this is clear: a power
from which usurpation and overthrow may be apprehended, is
not the power to be invested with the high sovereign function
of summoning and commissioning the body by whom constitu-
tional changes are to be initiated or made.

§ 121. (d). The alternative, therefore,'as our governments
are constituted, is, that the function of calling Conventions shall
be committed to the legislature, under such restrictions as the
sovereign body shall prescribe, or as shall accord with the max-
ims of political prudence.

The legislature is the fittest body to act upon the question
of calling a Convention, because, of all questions, that is most
dependent, for a proper decision, on a wise balancing of expe-
diencies. If the question of making or not making constitu-
tional changes were one of abstract principles, the opinion of a
single publicist might outweigh that of the nation. But such
is not the case; it is a mixed question of principles and of facts,
and the task of those who frame Constitutions is, to cause the
two, however repugnant they may be, as far as possible to har-
monize in the system established. ‘To accomplish this, the prin-
ciples underlying all government, and particularly that to be
reformed, as well as the circumstances, interests, prepossessions,
and aversions of the people, are to be weighed and allowed for.
A government built up on any other plan would be a machine
constructed on the hypothesis that there were no such forces as
inertia and gravity, and no such drawback as friction. In this
respect, the legislature is, of all public bodies, that which is best
adapted to this particular work. It is its prime function to de-
termine the expedient. Besides, of all representative bodies,
excepting only the electors, it is, under all forms of government,
the most numerous. In the United States it is more so than
elsewhere. The United Kingdom of Great Britain and Ireland,
with a population of about thirty millions, is represented in
Parliament by about eleven hundred members, including both
Lords and Commons. The United States, with a population
of thirty-four millions, has, in the National and State govern-
110 MANNER OF CALLING CONVENTIONS.

ments, whose combined jurisdictions correspond to that of the
Parliament in England, five thousand two hundred and fifty
representatives. In this number I do not reckon the city,
town, and county boards for local self-government, which, in
the two countries, may be considered as offsetting each other.
These representatives are, moreover, subject to frequent elec-
tions. No change of opinion can be permanent or wide-
spread, without soon making itself felt and respected in the
legislative body. Practically, the interests of our common-
wealths, therefore, are nearly as safe in the hands of our legis-
latures as in those of the electors, whom we ordinarily desig-
nate by the term people; the difference being only that a less
numerous body is proportionately more accessible to corrupting
influences.

§ 122. 2. The question next in order is, in what manner shall
a legislature call a Convention? The general answer is; by
some legislative act. As the objects of intrusting the call to
that body are, first, to insure the assembling of a Convention
whenever, within constitutional or reasonable limits, public opin-
ion should have settled upon its necessity, and, secondly, to
throw around the body, coming comet-like into the system, all
the legal restraints of which it is susceptible, some act of legis-
lation would be requisite to accomplish either object. A simple
resolution or vote, would commonly give expression to the general
desire, but were that all, there would be danger that party spirit
might avail itself of majorities to call Conventions for partisan
purposes. This danger being far from unreal, doubtless the wiser
course would be for the legislature so to act as to forestall it,
A check ought to be found by which the probability of its occur-
rence would be reduced to a minimum. An expedient has been
adopted in many States, as we shall see more fully in a subse-
quent chapter, by which this is effected. It has been provided,
in their Constitutions that, whenever, in the opinion of the legis-
lature, a Convention is desirable to revise the fundamental Jaw,
that body shall so declare, by vote or resolution ; that thereupon,
after a prescribed notice by publication, the sense of the people
shall be taken on the question of calling a Convention; and
that the legislature shall thereupon call one, or not, according
to the result of the popular vote. This mode was much com-
mended, in 1820, by the eminent persons then composing the
MANNER OF CALLING CONVENTIONS. 111

New York Council of Revision,! by whom it was declared to be
most consonant to the principles of our government and to the
practice in other States, and they accordingly vetoed a bill for
an act to calla Convention to assemble in the following year,
on the ground that it did not propose to submit the question to
the people. There can be no doubt, that this decision was a
sound one, on constitutional principles. The intervention of
the legislature is necessary to give a legal starting-point to a
Convention, and to hedge it about by such restraints as shall
ensure obedience to the law; but asa Convention ought to be
called only when demanded by the public necessities, and then
to be as nearly as possible the act of the sovereign body itself,
it would seem proper to leave the matter to the decision of the
electoral body, which stands nearest to the sovereign, and best
represents its opinion. Such seems to be the prevailing senti-
ment in most of the States which have revised their Constitu-
tions since the date of the decision referred to.

§ 123. There may, then, be two cases: first, where the legis-
lature itself passes upon the question of calling a Convention,
without the intervention of the electoral body; and, secondly,
where the legislature first recommends a call, then refers the
question to a vote of the electors, and, finally, on an affirmative
vote by the latter, issues the call,

In the first case, the act of the legislature calling the Conven-
tion is an act of legislation, strictly so called. It prescribes a
rule of action for the electors, fixing the time, place, and manner
of the election to be held by them, and commonly provides pen-
alties for misconduct either in the officers conducting the elec-
tion or making the returns thereof, or in the electors voting
thereat. Such a rule of action isa law.2 In the second case,
so much of the original act of the legislature as merely recom-
mends a Convention, cannot be said to bea law. It is, rather,
an expression of opinion, intended to preface a reference of the
question to the people, by whom it is to be decided. The sub-
sequent act, or other sections of the same act, however, by which
a legislature refers the question to the people, must be conceded
to be a law, since it has always the force as well as the form

1 Kent and Spencer, Justices, and Governor Clinton. For the whole opinion
of the Council, see Appendix, F., post. .
2 1 Blackstone’s Commentaries, 44.
112 CONVENTIONS OF THE REVOLUTIONARY PERIOD.

of a law, being in all particulars similar to that by which it
finally calls the Convention, if ordered by the people.

§ 124. Before closing the discussion of the principles regu-
lating the legitimate call of Constitutional Conventions, one
remark is necessary to guard against misconstruction. A Con
stitution, or an amendment to a Constitution, originating in
a Convention justly stigmatized as illegitimate, may, notwith-
standing its origin, become valid as a fundamental law. This
may happen in two ways: namely, first, by its adoption by
the electoral body, according to the forms of existing laws; or,
secondly, by the mere acquiescence of the sovereign society.
Such a ratification of the supposed Constitution or amendment
would not, however, legitimate the body from whom the Consti-
tution or amendment proceeded. That no power human or divine
could do, because, by the hypothesis, such body was in its origin
illegitimate, that is, as shown in previous sections, convened either
against law or without law, which in a government of laws, is
one and the same thing. The ratification by the acquiescence of
the sovereign, would be a direct exercise of sovereign power, ille-
gal doubtless, but yet standing out prominently as a fact, and as
such finding in the original overwhelming power of the sover-
eign a practical justification, which it would be folly to gainsay?

) 125. Let us now see to what extent the practice, under the
political system of the United States, has conformed to the
theoretical principles thus developed.

The Constitutional Conventions thus far held—by those
terms designating, for the purposes of this chapter, all such
bodies, legitimate and illegitimate, as have framed Constitutions
or parts of Constitutions, either for the United States or for
States, members of the Union — may be divided, primarily, with
reference partly to convenience and partly to their most general
characteristics, into two great classes : 8

(a). The first class comprises such Conventions as were held
during the Revolutionary period, extending from 1775 down to
the establishment of the Federal Constitution in 1789.

(b). The second class comprises the Conventions of the post-

1 For a more full discussion of the distinctions here indicated, which are not

without important practical bearings, see ch, viii., post.
2 See § 23, ante.

3 For a complete list of these bodies, with the dates of their assembling and
adjournment, so far as can be ascertained, see Appendix, B., post.
CONVENTIONS OF THE REVOLUTIONARY PERIOD. 113

Revolutionary period — that is, such as have been held since the
4th of March, 1789,

These two classes will now be considered at length, and in
their order.

§ 126. (a). To understand, and therefore properly to character-
ize, the Conventions embraced in the first class, it will be neces-
sary to look into the history of the times in which they were
convened, and to elucidate the general causes and the particular
acts by which their legal character was determined.

When the colonies entered upon that course of opposition to
the crown which ripened into the Revolution, it was neither their
intention nor their desire to effect a separation from Great Brit-
ain. ‘To bring them to favor such a measure, there were neces-
sary the thirteen following years of agitation, crowded with
distress and humiliation on the part of the colonists, and with
contemptuous denials of redress and contumelious reproaches
on that of the imperial authorities. As the contest thickened,
however, and blood began to flow, the colonial establishments
one by one succumbed or were suppressed, the royal governors
fleeing from their enraged subjects, or being arrested by them
and thrown into prison. To maintain order and tranquillity,
while the contest with the mother country should continue, it
became necessary, therefore, to establish new political organiza-
tions in the several colonies. But, because the necessity for
them was thought to be temporary, the arrangement at first
made was merely provisional. The organizations provided were
of the simplest character, consisting of Provincial Conventions or
Congresses, modelled on the same plan as the general Congress at
Philadelphia, comprising a single chamber, in which was vested
all the powers of government. These bodies, found in all the
colonies, save Connecticut and Rhode Island, whose Assemblies,
fairly chosen by the people, it was not found necessary to super-
sede, were made up of deputies elected by the constituencies
established under the crown, or appointed by meetings of the
principal citizens or by the municipal authorities of the chief
towns and cities. All legislative authority was exercised by
those bodies directly. Their executive functions were intrusted
to Committees of Correspondence, of Public Safety, and the like,
appointed by themselves, and during the sittings of the Conven-
tions or Congresses, were discharged under their own supervision.
114 FORMATION OF REGULAR GOVERNMENTS.

In the interims between their sessions, however, the powers of
those committees were substantially absolute.

§ 127. Under organizations thus loose and unrestricted, gov-
ernment was carried on in the colonies for many months, and
that without protest or discontent, so long as the general expec-
tation of a return to allegiance, following upon a redress of
grievances, continued to exist. As time advanced, however, and
it became evident, on the one hand, that the mother country
would not purchase the submission of her revolted subjects by
compromise or even by conciliation, and, on the other, that the
work of subduing them, if possible at all, could be accomplished
only by a long and bloody contest, there arose a general desire
for the establishment of more regular governments than those
by Congresses and committees! Thus, in May, 1775, the Pros
vincial Convention of Massachusetts, charged with the govern-
‘ ment of the colony, applied to the Congress at Philadelphia for
explicit advice respecting the proper exercise of the powers of
government. In reply, after declaring that no obedience was
due to the act of Parliament lately passed for altering her char-
ter, that body recommended that the Convention should write
letters to the several towns entitled to representation in the
Assembly, requesting them to choose representatives to form
an Assembly, and to instruct the latter, when convened, to elect
counsellors ; adding their wish, that the bodies thus formed
should exercise the powers of government until a governor of
the king’s appointment would consent to govern the colony

1 This is apparent from the preamble to the resolutions of the New York
Congress on the subject of forming for that State its first Constitution. It runs
as follows:—

‘« Whereas, the present government of this colony, by Congress and commit
tees, was instituted while the former government, under the Crown of Great
Britain, existed in full force; and was established for the sole purpose of oppos-
ing the usurpation of the British Parliament, and was intended to expire on a
reconciliation with Great Britain, which it was then apprehended would soon
take place, but is now considered as remote and uncertain. And whereas,
many and great inconveniences attend the said mode of government by Con-
gress and committees, as of necessity, in many instances, legislative, judicial
and executive powers have been vested therein, especially since the dissolution
of the former government by the abdication of the late governor, and the ex-
clusion of this colony from the protection of the King of Great Britain.” . .

See New York Constitution of 1777, in the preamble to which these resolu
tions are embodied.
ADVICE OF JOHN ADAMS. 115

according to its charter! This answer was made in June, 1775,
and the advice given was followed, and the government thus
constituted was the only one Massachusetts had until the estab-
lishment of her first Constitution in 1780. In October, 1775, the
delegates. to the Continental Congress from New Hampshire
laid before that body instructions, received by them from the
New Hampshire Convention, to obtain the advice and direction
of Congress in relation to the establishment of civil government
in that colony. Similar requests were, about the same time,
sent up from the Provincial Conventions of Virginia and South
Carolina. At length, on the 3d and 4th of November, 1775,
Congress agreed upon a reply to these applications, in which
those bodies were advised “ to call a full and free representation
of the people, in order to form such a form of government as, in
their judgment, would best promote the happiness of the peo-
ple, and most effectually secure peace and good order in their
provinces during the continuance of the dispute with Great
Britain.” 2

j 128. These important recommendations were extorted from
Congress by the importunity of colonies whose situation was
critical, that body being reluctant to inaugurate a general recon-
struction of government upon a permanent basis, so long as
there was a possibility of an accommodation with Great Brit-
ain. Accordingly, as we see, the most that could be wrung from
it was a recommendation to establish temporary governments,
without any specification as to the form they should assume, or
the distribution of their powers. But in this, Congress lingered
far behind some of its leading members. Ever since the previ-
ous May, John Adams had exerted all his eloquence to induce
Congress to lead off in the work of founding permanent organ-
izations in the States independent of Great Britain. In his
own language, he urged “the necessity of realizing the theories
of the wisest writers, and of inviting the people to erect the
whole building with their own hands, upon the broadest founda-
tion.” He declared “that this could be done only by Conven-
tions of repvesentatives, chosen by the people in the several
culonies, in the most exact proportions . . . . and that Congress
ought now to recommend to the people of every colony to call

1 Curtis’ Hist. Const. U. S., Vol. I. pp. 36, 37.
2 Jour. Cont. Cong., Vol. I. p. 219.
116 RESOLUTION OF CONGRESS.

such Conventions immediately, and set up governments of their
own authority.” !

At length, one after another of the Provincial Conventions sig.
nifying the readiness of the people to support a declaration of
independence of Great Britain, and it becoming apparent to
the least far-sighted that such a measure could not long be de-
layed, as a preparation for it, or rather as the first and not the
least important step in its consummation, definite action was
taken on the subject of permanent governments in the States. On

‘the 10th of May, 1776, Congress adopted the decisive resolution,
and on the 15th prefixed to it the preamble, which follow :—

“ Whereas, his Britannic Majesty, in conjunction with the Lords
and Commons of Great Britain, has, by a late act of Parliament,
excluded the inhabitants of these united colonies from the pro-
tection of his crown; and, whereas, no answer whatever to the
humble petitions of the colonies for redress of grievances and
reconciliation with Great Britain has been or is likely to be
given; but the whole force of that kingdom, aided by foreign
mercenaries, is to be exercised for the destruction of the good
people of these colonies; and, whereas, it appears absolutely
irreconcilable to reason and good conscience, for the people of
these colonies now to take the oaths and affirmations necessary
for the support of any government under the crown of Great
Britain, and it is necessary that the exercise of every kind of
authority under the said crown should be totally suppressed, and
all the powers of government exerted, under the authority of
the people of the colonies, for the preservation of internal peace,
virtue, and good order, as well as for the defence of their lives,
liberties, and properties, against the hostile invasions and cruel
depredations of their enemies, therefore, —

“ Resolved, That it be recommended to the several Assemblies
and Conventions of the united colonies, where no government,
sufficient to the exigencies of their affairs, hath been hitherto
established, to adopt such government as shall, in the opinion
of the representatives of the people, best conduce to the happi-
ness and safety of their constituents in particular, and America
in general.” ?

§129. This resolution was the turning-point in the Revolu-

| Works of J. Adams, Vol. II. pp. 13-16.
2 Journal of Continental Congress, Vol. I. pp. 158, 166.
PURPORT OF THE RESOLUTION. 117

tion, since it foreshadowed and necessitated that of July 4th,
1776, declaring the independence of the colonies. So well was
this understood, that, in the debate upon it those delegates who
opposed its passage did so on the ground that it was the first
step, to which, if taken, independence must succeed. Mr. Duane
stigmatized the resolution, to Mr. Adams, as “a machine for
the fabrication of independence;” to which the latter, char-
acterizing it with still greater accuracy, truthfully replied, that
“it was independence itself.” 1

The intention of Congress in passing this resolution prob-
ably was, to recommend that the work of erecting govern-
ments in the several colonies should be undertaken by the
legislative authorities thereof; that is, by the Assemblies, in
such colonies as possessed them, and by the Conventions or
Congresses in such as had no Assemblies. If this be so, the
measure came far short of the wise recommendations of Mr.
Adams, as well as of the requirements of principle. What
should have been done was, to propose the calling of Conven-
tions for the specific and only purpose of framing Constitu-
tions for the colonies,— the calls for them to issue from the
legislative departments of the existing establishments, whatever
those establishments might be. It is true, on examining the
language of the resolution another construction suggests itself
as the one possibly intended by Congress, namely, one which
should require the calling in each State, of a body of represent-
atives of the people, to frame and propose a Constitution, to be
afterwards submitted to and adopted by the Assembly or Con-
vention calling it. The phraseology is: “ That it be recom-
mended to the several Assemblies and Conventions of the united
colonies . . . to adopt ‘such government as shall, in the opinion
of the representatives of the people, best conduce,” &c. Had
“the representatives of the people,” intended by Congress, been
those constituting “the several Assemblies and Conventions,” it
might seem more natural, after referring to the latter, to use the
terms, “to adopt such government as shall in their opinion best
conduce,” é&c. But such a construction is, I think, strained. It
certainly, as will be found hereafter, was not the one adopted in
the contemporary expositions made of the resolution in the
several States. Assuming that the true construction devolved

1 Works of J. Adams, Vol. III. p. 46.
118 CONDITIONS OF THE PROBLEM.

upon the “Assemblies and Conventions” the whole duty of fram-
ing and putting in operation Constitutions for their respective
colonies, the resolution was less conformable to principle than
that of the November preceding, containing advice to the con-.
ventions of New Hampshire and South Carolina. The latter,
recommended to those bodies “ to call a full and free representa-
tion of the people, in order to form such a government as in
their judgment would best promote,” &c. It is fair to remark,
however, that the science of Constitution-making was then in
its infancy. Our fathers had not yet, from actual administra-
tion, learned the dangers that attend fundamental legislation,
nor discovered the safeguards against them which experience
alone can reveal. Even what seem now to be steps taken with,
a view to conformity to principle, and, therefore, to be strictly
regular, were not unfrequently the results of chance or of con-
siderations of temporary convenience, and so, deserving of little
weight as indicating the degree of knowledge existing on the
subject among the statesmen of the day.

§ 130. Upon these recommendations, special or general, the
several colonies embraced in the first class acted, in framing
their earliest Constitutions.

Before proceeding to describe the separate action of each
colony, with a view to determine whether or not, and how far,
that action was conformable to principles or otherwise, it will be
useful to state as concisely as may be, first, the conditions of the
problem our fathers were required to solve in establishing perma-
nent republican institutions in place of the make-shifts which
sprung up with the Revolution ; and, secondly, the elements pre-
sented by the actual historical situation, for its solution.

1, The conditions of the problem were simple. The political
society, known, since the Declaration of Independence, as “the
United States of America,” was called upon to erect for itself an
independent government, suitable to its needs. This important
work must be done, so far as possible, regularly and peacefully,
and, therefore, with the approval and through the ministry of the
political organizations, or fragmeuts of political organizations,
then existing, however imperfect they might be, and whatever
might have been their origin. Of these several organizations,
wherever there was a subdivision into legislative, executive, and
judicial departments, use must be made, to initiate the work,
ELEMENTS OF THE PROBLEM. 119

of the legislative department, as by its character and functions
alone fitted to undertake it safely or successfully. Finally, no
action of any department of the existing organization was, unless
absolutely necessary, to be taken as definitive, but the peeple, or
electoral body, in which the powers of sovereignty were prac-
tically lodged, must be appealed to to pronounce the fiat by
which the proposition of the legislature or Convention was to be
ripened into law. Such were the conditions of the problem.

2. The elements given for its solution were hardly more com-
plex. ‘There were the indeterminate provisional organizations
by which whatever of government the several colonies possessed
was conducted, being in most of them the irregular and revolu-
tionary Conventions or Congresses, and in a few the still subsist-
ing Assemblies, established under the crown, to which reference
has been made. There was then the equally indeterminate gov-
ernment of the Union, whose powers were lodged in the single
chamber known as the Continental Congress; a body in every
respect conforming to our definition of a Revolutionary Con-
vention. To these organizations, local and general, must be
added those which, during the revolutionary period, were in a
few cases constructed to succeed them. And, lastly, there was
the people of the United States, considered, first, as the political
unit, by which independence was declared, and, secondly, as the
subordinate groups constituting the States either as peoples or
as political organizations. Amongst these three orders of polit-
ical entities, in a manner explained in the second chapter, was
distributed the exercise of sovereign powers, on the breaking
out of the Revolution, and, therefore, by them, in their several
spheres and in a mode conformable to their respective powers in
the general system, was the work in question to be effected.

§ 131. The first colony to act upon the recommendations of
Congress was New Hampshire. In less than a fortnight after.
the passage by Congress of the resolutions of November 3d,
1775, the Provincia! Convention of that colony took into consid-
eration the mode in which “a full and free representation ” for
the purpose indicated by Congress should be constituted.t It
was finally determined that it should take the form of a new
Convention, to be summoned by the Provincial Convention, and
that for the purpose of apportioning fairly the delegates to be

1! Belknap, Hist. N. H., Vol. Il. p. 305.
120 NEW HAMPSHIRE CONVENTION OF 1775.

chosen to it, a census of the inhabitants should be taken. It
was moreover recommended, that the representatives chosen
“ should be empowered by their constituents to assume govern-
ment, as recommended by the general Congress, and to continue
for one whole year from the time of such assumption.” 1 Hav-
ing recommended this plan, and “sent copies of it to the sev-
eral towns, the Convention dissolved.”? In pursuance of the
recommendations accompanying the plan, a new Convention
was chosen, and assembled on the 21st of December following,
by which the first Constitution of New Hampshire was framed,
and her first formal government, independent of the crown,
established.2 According to Dr. Belknap, the historian of the
State, “as soon as the new Convention came together, they drew
up a temporary form of government; and, agreeably to the trust
reposed in them by their constituents, having assumed the name
and authority of a House of Representatives, they proceeded to
choose twelve persons, to be a distinct branch of the legislature,
by the name of a Council.”* This form of government was
practically limited to a single year by an ordinance providing
“that the present Assembly should subsist one year, and if the
dispute with Great Britain should continue longer, and the Gen-
eral Congress should give no directions to the contrary, that
precepts should be issued annually” for the return of “new
Counsellors and Representatives.” By the Convention thus called
and organized were assumed all the powers of government. In
a word, it was a Revolutionary Convention. As distinguished
from the body itself, there was no judiciary, and no executive.
The only feature in which it resembled a regularly constituted
government, was in its division into two chambers. But even
this resemblance vanishes, when it is considered that it was a

1 Belknap, Hist. N. H., Vol. II. p. 305.
2 Nov. 16, 1775; Id. p. 305. .
3 Jan. 5, 1776.

4 Belknap, Hist. N. H., Vol. I. pp. 805, 306. The idea of thus transforming
the Convention into a legislative assembly with two chambers, was doubtless bor-
rowed from the Convention called by King William in 1689, which, illegally
called and constituted, changed itself into a parliament, since known as the Con-
vention Parliament. Though unquestionably a revolutionary body, this parlia-
ment became the basis on which the English government, as then reconstructed,
rested and still rests. See remarks of Mr. Webster on this subject, Works, Vol.
VI. pp. 225, 226.
NEW HAMPSHIRE CONVENTION OF 1779 ann 1781. 121

voluntary division, the Council being its own creation, and, of
course, as little independent of the main body as any one of its
committees. All the powers of the State were concentrated
in that single body, which was revolutionary not only in its pro-
ceedings, but in its origin, as called by one revolutionary Con-
vention at the instance of another, and as exercising, when
assembled, the functions of a government, provisionally, in place
of that by which it was convened.

§ 182. The people of New Hampshire, however, becoming
dissatisfied with the temporary Constitution of 1776, an attempt
was made three years later to frame a new one. A Convention
of delegates, chosen for that purpose, under the direction of the
existing government, drew up and presented to the people a form
of a Constitution, but so deficient in its principles and so inade-
quate in its provisions, that, being proposed to the people in
their town-meetings, it was rejected.1. On the failure to adopt
this, a new Convention was elected for the same purpose, and
commenced its sessions in 1781. The year before, Massachu-
setts had adopted a Constitution, in the main from a draft pre-
pared by John Adams, which was supposed to be an improve-
ment on all that had been framed in America. Having the ad-
vantage of this, the New Hampshire Convention digested a plan
and submitted it to the people in their town-meetings, with a
request that they should state their objections distinctly to any
particular part, and return them to the Convention at a fixed
time. The objections were so many and various, that it became
necessary to alter the form and send it out a second time.2 The
second plan was generally approved by the people, and thus,
finally, after nine sessions of the Convention, running through
more than two years, a Constitution was adopted and put in
operation, — the instrument being completed October 31, 1783,
and established with religious solemnities Jane 2, 1784.

Of these two last Conventions, it is to be noted, that, unlike
the first, they were, in the strict sense of the term, Constitutional
Conventions. They were initiated by the existing government
of the State, which, whatever may be thought of its legitimacy
or regularity, was a de facto government, by revolution placed
in power, and made the basis on which the political structure
of the State has ever since rested; the people were fairly repre-

1 Belknap, Hist. N. H., Vol. I. p. 333. 2 Id. pp. 335, 336
122 SOUTH CAROLINA CONVENTION oF 1776.

sented in them; they confined themselves strictly to their con-
stitutional duty, that of proposing a code of organic laws, ab-
staining from all usurpation of governmental powers ; and,
finally, they severally submitted their projected Constitutions to
a vote of the electors of the State, in their town meetings —
an act which, as we shall see, constitutes the best guaranty
of the sovereign right of the people over the form of their gov-
ernment that has ever been devised.!

§ 133. The next colony to act on the recommendations of
Congress was South Carolina. Like the other colonies whose
legislatures had been dissolved, South Carolina had governed
herself, since the rupture with Great Britain, by Provincial Con-
ventions or Congresses, constituting provisional governments,
founded upon the right of revolution. The first of these had
been summoned November 9, 1774, by what was styled “ the
general committee” of the colony This body was organized
similarly to those in the other colonies, and, after the flight of
the royal governor in September, 1775, centred in itself, or in its
committees, all the powers of government not vested, by the
nature of the case, in the Continental Congress. 'Toward the
close of the latter year, the necessity for a more stable, as well
as a more responsible government, made itself felt, and the Con-
vention applying to Congress, as we have seen, for advice as to
the formation of such a government, had been recommended,
in the same terms as New Hampshire, “ to call a full and free
representation of the people, to establish such a forin of govern-
ment as in their judgment will best promote the happiness of
the people.” Acting upon this advice, and following, though
not perfectly, the example of New Hampshire, the South Caro-
lina Congress, in conformity to the course of the Convention of
1689, in England, and to that of their ancestors in 1719, “ voted
themselves to be the General Assembly of South Carolina,”
and framed a Constitution, March 26, 1776, to exist “till a rec-
onciliation between the colonies and Great Britain should take
place.” This Constitution was modelled after that of Great

1 See post, ch. vu.

2 This general committee consisted of ninety-nine members, and was ap-
pointed by resolution of a public meeting held at Charleston July 6, 1774.
Hild. Hist. U. S., (1st series,) Vol. III. p. 40.

3 Resolution of the Continental Congress of Nov. 8, 1775, ante, § 127.
SOUTH CAROLINA CONVENTION OF 1778. 128

Britain, and consisted of three branches: the Congress electing
thirteen of its most respectable members to be a legislative
council ; a president and vice-president ; a chief-justice and
three assistant judges, an attorney-general, secretary, ordinary,
and judge of the admiralty! The instrament embodying this
plan of government was put in force as the Constitution of
South Carolina, and was recognized as such for over two years,
when it was superseded by a new one.

§ 134. It is obvious that the mode of proceeding of which
the result was the establishment of the first Constitution of
South Carolina, was extremely irregular. The people of the
State were in no manner consulted in relation to its formation.
The body by whom that important business was done, was an
extraordinary assembly, “appointed,” as the historian Ram-
say says, “ without .the authority of any written law or any
definite specification of powers.” To the function of a Consti-
tutional, it added those of a Revolutionary, Convention ; its char-
acter as the latter being in nowise affected by the change in its
organization, by which it assumed the form of a regular govern-
ment. The only element of legitimacy possessed by it was,
that the action taken by it was based upon a recommendation
of the Continental Congress, in whom was vested for general
purposes the exercise of the national sovereignty.

§ 135, A Constitution thus constructed was not likely to be
long-lived. A second, but hardly more successful, effort was
made in 1778. In this case it was not an unauthorized and rev-
olutionary Convention, but an usurping legislature, which under-
took the task. In the autumn of 1776, the elections throughout
the State, says the historian Ramsay, “were conducted on the
idea that the members chosen, over and above the ordinary
powers of legislators, should have the power to frame a new
Constitution, suited to the declared independence of the State.”
“Authorized in this manner,” he continues, “ the legislature in
January, 1777, began the important business of framing a per-
manent form of government. The generous confidence reposed
in the elected by the electors met with a suitable return of fidel-
ity on their part. Instead of increasing their own powers, as
legislators, they diminished those of which they were in posses-
sion by the temporary Constitution, and extended the privileges

1 Ramsay, Hist. S. C., Vol. I. p. 263.
424 SOUTH CAROLINA CONVENTION OF 1778.

of their constituents; nor did they proceed to give a final sane-
tion to their deliberations on the subject of the Constitution till
they had submitted them for the space of a year to the consid-
eration of the people at large. From the general approbation
of the inhabitants, the new Constitution received all the author-
ity which could have been conferred on the proceedings of a
Convention expressly delegated for the express purpose of fram-
ing a form of government.” 1

§ 136. It would be easy to demonstrate that the Constitution
of 1778, thus framed, was wholly invalid as an act of funda-
mental legislation. Without stopping to do this, I shall merely
cite authority establishing the fact that it was so regarded by
leading minds at the time of its formation.

“This temporary Constitution” (that of 1776), says the same
historian, Ramsay, in his history of South Carolina, “in a lit-
tle more than two years gave place to a new one formed on the
idea of independence, which in the mean time had been de-
clared. The distinction between a Constitution and an act of
the legislature was not at this period so well understood as it
has been since. The legislature elected under the Constitution
of 1776, with the acquiescence of the people, undertook to form
a new Constitution, and to give it activity under the forms and
with the name of an “ Act of Assembly!” The doubt thus
implied was entertained by other eminent South Carolinians.
President Rutledge refused his assent to the new Constitution, on
the ground, with others, that the legislative authority, being fixed
aud limited, could not change or destroy itself without subvert-
ing the Constitution from which it was derived. He finally,
however, so far yielded to the pressure for a change as to resign
his office, whereupon his successor, Rawlins Lowndes, signed
the Constitution, and it went into operation?

§ 187. As to the character of the body by which the Constitu-
tion was framed, on the other hand, there can be no doubt what-
ever. As a Constitutional Convention, it lacked all the elements
needed to give it legitimacy. It was elected and assembled as

1 Ramsay's History of the Revolution in South Carolina, pp. 128, 129.

2 That the first two South Carolina Constitutions were merely ordinary stat-
utes, repealable by the General Assembly, was distinctly affirmed by the Supreme
Court of that State, in the case of Thomas v. Chesley Daniel, 2 McCord’s R.
364, (359, 360).
VIRGINIA CONVENTION OF 1776. 125

a legislature, and as nothing else, Notwithstanding the loose
assertion of Dr. Ramsay, that that body had been elected “ on
the idea” that, “over and above the ordinary powers of legisla-
tors,” it should have power to frame a new Constitution, what-
ever it did beyond the scope of ordinary legislation must be set
down, in the absence of any regular expression to that effect of
the public will, as mere usurpation. How general was that
idea? What mode was taken to ascertain its existence, and,
much more, to ascertain the extent to which it was not enter-
tained? Not only did the legislature undertake, without legal
warrant, to frame a code of organic laws, but it practically
ignored the existence of the people, putting its work into opera
tion without a submission to them that was at all effectual. It
thus became guilty of acts of revolution, for which ignorance of
“the distinction between a Constitution and an act of legisla-
tion” only can be received as an excuse.

§ 138. Next in order after South Carolina, in the work of
erecting ‘a government, followed Virginia! This she did, as
New Hampshire and South Carolina had done, in pursuance of
the resolutions of the Continental Congress of the 38d and 4th
of Noveinber, 1775, referred to, advising those colonies “ to call
a full and free representation of the people” for that purpose.
The mode adopted by Virginia was similar to that followed in
those colonies. ~The Provincial Convention elected in April,
1776, to continue in office one year, met at Williamsburg on
the 6th of May thereafter, and on the 29th of June following
framed and established the first Constitution of Virginia? This
Convention was elected as a revolutionary assembly, to carry on,
as Mr. Jefferson expresses it, “the ordinary business of the gov-

1 Tt has been usual to concede to Virginia the honor of having framed the
first American Constitution. If by that be meant the first which was complete
according to later ideas of what a Constitution should be, the concession is just.
The first Constitutions of New Hampshire and South Carolina, which were sev-
eral months earlier in date than that of Virginia, were very imperfect, while the
latter was so skilfully framed that it was not found necessary to change it until
1830, nearly three quarters of a century after its formation. In this statement
I leave out of the account altogether the instruments of government drawn up
by the early Puritan settlers of Massachusetts and Connecticut. If those instru-
ments are to be called Constitutions, the earliest American Constitution was that
framed on board of the Mayflower, before the landing at Plymouth.

2 Journal of Virginia Convention, 1776, pp. 15, 16, 150.
126 NEW JERSEY CONVENTION OF 1776.

ernment,” in default of the House of Burgesses, and to “ call
forth the powers of the State for the maintenance of the oppo-
sition to Great Britain.”! It was not pretended, if the same
authority‘is to be credited, that, in assuming to frame a Consti-
tution, the Convention had any warrant or authority whatever,
except such as enured to it by virtue of its revolutionary char-
acter. In so doing, then, it is to be regarded, not as a Constitu-
tional, but as a Revolutionary Convention. It was not empowered
to discharge the special and high function of enacting a funda-
mental code, by any law or by the express desire of the people, but
acted on its own authority; and it did not deign to take upon
its work the sense of the people whom it pretended to represent.’
§ 189. Very similar to that just described was the course of
events in New Jersey. Like most of the colonies, at the time
the resolution of Congress of May 10, 1776, passed that body,
New Jersey was under the government of a Provincial Congress
and committees. ‘The Congress being in session directly after
the resolution was published, prompt action was taken to carry
out its recommendations. A resolution was adopted for the
election of a new Congress, to be held on the 4th Monday of
May, 1776. Representatives were accordingly chosen at that
‘time in all the counties, and the delegates elected, sixty-five in
number, being five from each county, convened at Burlington,
on the 10th of June, 1776.2 It does not appear, that this Con-
gress or Convention (for, elected by the former name, it formally
changed its title from “ Congress” to “ Convention” in the course
of the session at which the Constitution was framed) was elected
for the sole purpose of framing a Constitution, but rather as the
successor of that Congress by whose resolution it had been con-
stituted. Nevertheless, it is probable, that the purpose of elect-
ing new delegates was understood by the people to be to take
action upon the two momentous questions of independence and
of the formation of a government suitable to the altered condi-

1 Jefferson, Notes on Virginia, Works, Vol. VIII. p. 363.

2 Ibid. As to the invalidity of the first Virginia Constitution, as an act of
organic legislation, and therefore as to its repealability by the General Assemb!)
in consequence of the irregular character of the Convention of 1776, see Jeffer
son’s Notes on Virginia, Works, Vol. VII. pp. 363-367. For an opposite view,
see Tucker's Black. Com., Vol. I. Pt. 1, Appendix, pp. 85, 86, and Kamper v.

Hawkins, 1 Virg. Crim. Cases, 20.
3 Mulford, Hist. N. J., p. 415.
NEW JERSEY CONVENTION OF 1776. 127

tion of affairs. However that may be, when the Congress met
at Burlington, petitions were received from the inhabitants’ in
different parts of the province, praying that a new form of gov-
ernment might be established.! On the 21st of June, therefore,
a resolution was adopted by a vote of 54 to 3, “that a govern-
ment be formed for regulating the internal police of this colony,
pursuant to the recommendation of the Continental Congress
of the l5th of May last.”2 On the 24th, a committee of ten
persons was appointed to draft a Constitution, by whom a report
was made on the 26th of the same month, and the draft reported,
after discussion in the committee of the whole, was, on the 2d
of July, adopted as the Constitution of the State, and put in
operation.

§ 140. It is not surprising that doubts have existed as to the
precise character of the first New Jersey Convention. It was not
the Assembly of the colony, established under the crown, but a
Provincial Congress, convened to direct the Revolution, which
called the body together. It was, therefore, probably, a revolu-
tionary assembly. This becomes certain, when it is seen that
the body “ had not been chosen for the particular purpose of
forming a Constitution,” but that it had “entered upon it in pur-
suance of the recommendation of the General Congress, and in
compliance with petitions from the people, together with the
sense of the body itself, as to the necessity of the measure,” ?
this function being added, without legal warrant, to the mass of
powers claimed and exercised by it in virtue of its revolutionary
character. As a Constitutional Convention, then, the body was
irregular and illegitimate. It was a provisional revolutionary
government, resting on force, and invested with such powers as
it chose to assume.*' Though mention is made of petitions of
the people, they were obviously of no validity as forming a
basis for fundamental legislation. What the Convention did,

1 Mulford, Hist. N. J., pp. 415-418 ; Journal of N. J. Conv., 1776, pp. 9, 14, 23.

2 Mulford, Hist. N. J., pp. 415-418; Journal of N. J. Conv., 1776, p. 23.

3 Mulford, Hist. N. J., p. 415, n. (24).

4 The journal of this Convention, like those of most of the Conventions of
the Revolutionary period, was largely made up of legislative and executive
details, covering the whole ground of a government for the colony in civil as
well as in military affairs. It administered — a function, as we have seen in the
first chapter, never properly belonging to a Constitutional Convention. See
Journal, passim.
128 DELAWARE CONVENTION OF 1776.

was done by virtue of its own arbitrary discretion, and no refer-
ence was made, in any stage of the proceedings, to the people, .
to ascertain their sense, much less to derive from their ratifying
voice the fiat which should give to the Constitution the form as
well as the effect of law. The first New Jersey Conventiou
was legitimate as a Constitutional Convention only as any self-
elected junto would be so, which had the physical power to give
to its ordinances the force of law.

§ 141. Of the proceedings of the Convention which framed
the first Constitution of Delaware, few traces have been pre-
served. That that body itself, however, was, for the time when
_it was held, exceptionally regular, may be inferred from the few
records relating to its origin which remain.

In July, 1776, the Delaware House of Assembly passed the
following preamble and resolutions, to wit : —

“ The House, taking into consideration the resolution of Con-
gress of the 15th of May last for suppressing all authority de-
rived from the Crown of Great Britain, and for establishing a
government upon the authority of the people, and the resolution
of the House of the 15th of June last, in consequence of the
said resolution of Congress, directing all persons holding offices,
civil or military, to execute the same in the name of this gov-
ernment until a new one should be formed; and also the dec-
laration of the United States of America, absolving from all
allegiance to the British Crown, and dissolving all political con-
nection between themselves and Great Britain, lately published
and adopted by this government, as one of those States, are of
opinion that some speedy measures should be taken to form a
regular mode of civil polity, and this House, not thinking them-
selves authorized by their constituents to execute this important
work —

“Do resolve —

“ That it be recommended to the good people of the several
counties in this government to choose a suitable number of dep-
uties, to meet in Convention, there to organize and declare the
future form of government for this State.

“ Resolved, also —

“That it is the opinion of this House, that the said Conven-
tion should consist of thirty persons, that is to say, ten for the
County of New Castle, ten for the County of Kent, and ten for
DELAWARE CONVENTION OF 1776. 129

the County of Sussex; and that the freemen of the counties
respectively do meet on Monday, the 19th day of August next,
at the usual places of election for the county, and then and
there proceed to elect the number of deputies aforesaid, accord-
ing to the direction of the several laws of this government for
regulating elections of the members of Assembly, except as to
the choice of inspectors, which shall be made on the morning of
the day of election by the electors, inhabitants of the respective
Hundreds in each county.....

“ Resolved, also —

“ That it is the opinion of this House that the deputies, when
chosen as aforesaid, shall meet in Convention in the town of
New Castle, on Tuesday, the twenty-seventh day of the same
month, (August,) and immediately proceed to form a govern-
ment on the authority of the people of this State, in such sort
as may be best adapted for their preservation and happiness.” !

§ 142. In pursuance of the recommendations contained in
these resolutions, a Convention was elected on the 19th of Au-
gust, 1776, which met at the town of New Castle on Tuesday,
the 27th of August, and, after a session of twenty-eight days,
adopted the first Constitution of Delaware.

If, to the particulars given in the foregoing resolutions, there
be added the caption to the new Constitution, the perfect regu-
larity and legitimacy of the Convention thus called, from the
point of view of the new State of Delaware, will become appa-
rent. That caption is as follows: “ The Constitution or system
of government agreed to and resolved upon by the representa-
tives in full Convention, of the Delaware State, formerly styled,”
&c., “the said representatives being chosen by the freemen of the
said State, for that express purpose.”

Here was a Convention called by the legislative Assembly of
the existing government, by an Act making careful provisions for
a fair election, and, as may be inferred, elected for the express
and only purpose of framing a Constitution. Confining itself

1 Journal of Del. Conv. of 1776. For the foregoing extract I am indebted
to William T. Read, Esq., of New Castle, Del., who has in his possession a
manuscript copy of the journal, the only one known to be in existence. It was
procured from Mr. Read through the kindness of the Hon. Willard Hall, of Wil-
mington, Del., to whom I am indebted for valuable information respecting the
various Conventions of that State.
130 PENNSYLVANIA CONVENTION OF 1776.

probably to this limited function, it was strictly a Constitutional
Convention.

§ 143. In Pennsylvania, the last Assembly elected under the
proprietary government continued to meet down almost to the
Declaration of Independence, but often without a quorum. At
length, in July, 1776, it was superseded by a Provincial Conven-
tion, which, based on revolutionary principles, took the govern-
ment into its own hands. The mode of calling that body was
as follows: On the 18th of June, 1776, a number of gentle-
men met at Carpenter’s Hall, in Philadelphia, being deputed by
the committees of several of the counties of the province,’ to
join in conference, in pursuance of a circular letter from the
committee of Philadelphia, inclosing the resolution of the Con-
tinental Congress of May 10th, 1776.1. After a vote approving
of that resolution, it was unanimously resolved by the confer-
ence, that it was necessary that a Provincial Convention should
be called by them, “for the express purpose of forming a new
government for this province, on the authority of the people
only.”? The conference then proceeded to fix the qualifications
of electors of deputies to the Convention, giving a vote to all
“associators” in the province, of the age of twenty-one years,
who had lived one year in the province, and paid or been as-
sessed toward any provincial or county tax, and also to every
person qualified by the laws of the province to vote for repre-
sentatives in Assembly, upon their taking a prescribed oath. A
committee, appointed to apportion the representation in the Con-
vention amongst the several districts of the province, recom-
mended, and the conference voted, that eight representatives
should be sent by the City of Philadelphia, and eight by each
county in the province. The electors were then required to meet
on the 8th of July following, to elect the members of the Con-
vention, and the latter, to meet on the 15th of the same month.
On the day appointed the Convention met at Philadelphia, and
continued in session until the 28th of September following,
when it adopted and put into operation the first Constitution of
Pennsylvania.

§ 144, Although the resolution of the conference calling this
Convention “ for the express purpose of forming a new govern-
ment,” &c., might be construed to limit that body to that par-

1 Conventions of Pennsylvania, p. 35, 2 Id. p. 88.
PENNSYLVANIA CONVENTION OF 1776. 131

ticular business, yet it did not in fact so restrict itself, and it is
doubtful if the conference intended so to restrict it, for, by sub-
sequent resolution, passed on the 23d of June, the latter recom-
mended to the Convention to choose delegates to the Conti-
nental Congress, and also a Council of Safety to exercise the
whole executive powers of government, so far as related to the
military defense of the province, and to make such allowance
for their services as should be reasonable. Thus the Convention
received from the body calling it, so far, at least, as the latter
could give it, authority to exercise both legislative and executive
functions, in addition to those enuring to it by virtue of its spe-
cial commission ; and the journal of that body shows, that much
of its time was occupied, from day to day, while framing the
Constitution, in business of an ordinary legislative or executive
character. Of the illegitimacy, therefore, of this Convention,
considered as a Constitutional Convention, there is no doubt.
Based upon necessity, in times of revolution, while that body
became the foundation of a new order of things, to which must
be conceded, especially after it received the acquiescence of the
people, a relative legality or legitimacy, yet it was itself, both in
its origin and in its essential character, a revolutionary assembly.
It was not only that, it was for a revolutionary assembly formed
less regularly, that is, with a greater divergence from safe con-
stitutional precedents, than was really necessary. It was called
by a self-constituted conference of committees, themselves ap-
pointed without legal sanction; and the question of its assem-
bling, or of ratifying the fruit of its labors, was not submitted
to a vote of the people, though it is true the delegates of which
it was composed were chosen by the electors under the old
establishment, but by them together with others named by the
conference. This latter circumstance, instead of adding to its
regularity, was a wider departure from safe precedents than any
other that occurred, since the power of election was given to
persons by existing laws not authorized to vote at general elec-
tions. From all this it is clear, that, however perfectly the body
may have reflected the public will, the first Pennsylvania con-
vention was a Revolutionary and not a Constitutional Convention.
It was itself, for the term of its existence, the government of
Pennsylvania, not a mere auxiliary or advicer to the govern-
ment.
182 MARYLAND CONVENTION OF 1776.

§ 145. Substantially the same observations may be made
respecting the Convention which framed the first Constitution of
Maryland. For over two years prior to the assembling of that
body, the colony of Maryland had been governed by a provis-
ional organization of revolutionary origin, her Provincial Con-
gress, which, like most of its fellows in the sister colonies,
wielded all the powers of government — legislative, executive,
and judicial. This body, having early received a copy of the
resolution of the Congress of May 10th, 1776, after much reluc-
tance and hesitancy, on the 3d of July, 1776, resolved, “ That
a new Convention be elected for the express purpose of forming
a new government, by the authority of the people only, and
enacting and ordering all things for the preservation, safety, and
general weal of this colony.” It then proceeded to apportion
the representation in the Convention, determine the qualifications
of voters, and the mode of conducting the elections, and to ap-
point judges thereof. The city of Annapolis, the town of Balti-
more, and the several districts of the county of Frederick, were
to have two representatives each, and the remaining counties
four each. Every freeman above twenty-one years of age, pos-
sessed of the freehold or other property qualification specified in
the resolutions, was entitled to vote at the election of repre-
sentatives in the Convention. The members elected were to
meet in Convention on Monday, the 12th of August, 1776, and
were to continue in session not beyond the first day of Decem-
ber, 1776.1. The Convention met in accordance with these reso-
lutions, framed and adopted a Constitution November 8th, 1776,
and, on the 11th of the same month, after a session of eighty-
nine days, adjourned.

As in the case of the Pennsylvania Convention, a very large
proportion of all the time occupied in the session of that of
Maryland, was taken up in ordinary legislative and executive
business, or, in the language of the resolutions under which it
assembled, in “ enacting and ordering all things for the preserva-
tion, safety, and general weal” of the colony. It was, in a
word, the only government that colony had during the interim
between the adjournment of the old Provincial Convention and
the establishment of the State government under the first Con-
stitution. It was, therefore, not a Constitutional Convention, but

1 Conventions of Md., pp. 184-189.
NORTH CAROLINA CONVENTION OF 1776. 133

a provisional government, or Revolutionary Convention. Or, if
the circumstance that the body assumed no powers not specifi-
cally granted by the Provincial Congress, be urged as indicating
that it was not a revolutionary body, it was at least an abnormal
assembly wielding the combined powers of government, and,
besides, exercising the incompatible power of remolding the
political society from which all its ordinary powers were derived.
Considering its origin, however, and the fact that the structure
founded by it was established by the sole authority of the Con-
vention itself, that body was clearly, as a Constitutional Conven-
tion, irregular and revolutionary.

§ 146. In North Carolina an early but unsuccessful effort was
made to establish a civil government independent of the crown.
At its session at Halifax, in April, 1776, the Provincial Conven-
tion of North Carolina appointed a committee of its ablest men
to prepare a draft of a Constitution. This committee being
unable to agree upon any form, after much debate and frequent
postponements, the question was adjourned, and a committee
appointed to propose a temporary form of government until the
next session. The system adopted was that of a Council of
Safety, which body recommended to .the people to elect, on the
15th of October, delegates to a Congress, to assemble at Halifax
on the 12th of November following, “ which was not only to
make laws but also to frame a Constitution, which was to be the
corner-stone of the law.”! The Convention met at the time and
place appointed, and, on the 18th of December, adopted the first
Constitution and Bill of Rights of North Carolina? As recom-
mended by the Council of Safety, this Convention did not con-

‘fine itself to the business of framing a Constitution, but “ per-
formed the functions of an ordinary legislature.” ®

If it were conceded, then, that that body was legitimate in its
origin, as having been called by the de facto government of
North Carolina, the Council of Safety, it ceased to be legitimate
as a Constitutional Convention the moment it assumed general
powers of legislation and government. It then became a Revo-
lutionary Convention, with independent powers, whose extent
was limited only by its own discretion. But it was not legiti-

1 Wheeler’s Hist. N. C., p. 84.
2 Id. p. 86.
3 Rev. Code of N. C., (1845,) p. 5
134 GEORGIA CONVENTION OF 1776.

mate even in its origin. It was at once the appointee and the
successor of the Council of Safety, a revolutionary tribunal, in
whose single hands was massed the whole power of the State,
which it passed over to the Convention called by itself.

§ 147. The first independent government of Georgia consisted
of a Provincial Congress, organized in January, 1775.

Feeling the need, however, of some broader basis of action,
the Provincial Congress itself, on the 15th of April, 1776, adopted
a preamble and resolutions as the groundwork of a more stable
and formal government, the result of which was the establish-
ment of a system similar to that adopted in New Hampshire
and other colonies, under the recommendations of Congress
of November 3 and 4, 1775; that is, the Provincial Congress
resolved itself into a legislature, and appointed a President, a
Council of Safety of thirteen members, and judicial and execu-
tive officers,’ — an evident imitation of the action of the Eng-
lish convention of 1689 in voting itself to be a Parliament. By
the terms of the resolutions, however, the system was to be a
temporary one, to continue only “for the present, and until the
further order of the Continental Congress, or of this or any
future Provincial Congress.”

Accordingly, when, in July, 1776, the Declaration of Inde-
pendence was adopted, it was deemed necessary “ to take down
the old civil and political superstructures and erect new estab-
lishments in their places.” In the words of the historian of the
State, “to meet the exigency arising from this new attitude of
the Continental Congress, in declaring the American colonies
free and independent, President Bullock issued a proclamation,
based on a recommendation of the general Congress, ordering the
several parishes and districts within this State to proceed to the
election of delegates, between the Ist and 10th days of Septem-
ber next, to form and sit in Convention; and the delegates so
elected are directed to convene at Savannah on the first Tues-
day in October following, when business of the highest conse-
quence to the government and welfare of the State will be
opened for their consideration.” ?

“ The deputies,” he continues, “ met in Convention at the time
appointed, and took up the important subject before them.

1 Stevens’ His/. of Geo., Vol. II. pp. 291, 292.
2 Id. pp. 296, 297.
GEORGIA CONVENTION OF 1788. 135

Much other business, however, pressed upon them, consequent
on putting the State in a proper posture of defence; but, after
one or two adjournments, they accomplished their work, and on
the 5th of February, 1777, ratified in convention the first Consti-
tution of the State of Georgia.” !

From this account of the first Georgia Convention, it is evi-
dent the body was a Revolutionary Convention. It was called
in an irregular manner, by proclamation of the executive head
of the temporary establishment, and, when assembled, it entered
upon the discharge of the general duties of a government, con-
cerning itself with the measures necessary for “ putting the State
in a proper posture of defence.” In this course of administra-
tion it was guided only by its own discretion, having neither
law nor Constitution to fetter it. A body thus assembled, and
thus charged with discretionary powers, cannot be a Constitu-
tional Convention, strictly so called.

§ 148. The second attempt of Georgia to supply herself with
a Constitution was made with greater regularity.

The Federal Convention, having submitted to the States the
project of a new Constitution, and the prospect seeming fair that
it would be adopted, in order to bring the State government into
harmonious action with that instrument, as well as to remedy
certain defects experienced in the practical working of the State
Constitution, under which the government of Georgia had been
working since 1777, it was found necessary to revise the latter,
or construct a new one. Accordingly, on the 30th of January,
1788, the legislature resolved, “that they would proceed to name
three fit and discreet persons from each county, to be convened
at Augusta by the executive, as soon as may be after official
information is received that nine States have adopted the Fed-
eral Constitution ; and a majority of them shall proceed to take
under their consideration the alterations and amendments that
are necessary to be made in the Constitution of this State, and
to arrange, digest, and alter the same in such manner as, in
their judgment, will be most consistent with the interest and
safety, and best secure the rights and liberties to the citizens
thereof.” 2

On the 6th of October, 1788, the official letter of the secre-

1 Stevens’ Hist. of Geo., Vol. II. pp. 297, 298.
2 Id. p. 388.
136 TWO GEORGIA CONVENTIONS OF 1789.

tary of Congress, stating that nine States had accepted the
Constitution, was laid before the executive council; and, accord-
ingly, Governor Handley called the members nominated and
appointed by the legislature to meet at Augusta on the 4th of
November, “in order to carry the aforesaid resolutions of the
General Assembly into execution.” !

The Convention met accordingly, and on the 24th of Novem-
ber agreed to and signed a Constitution to be proposed for adop-
tion to another body, created by a resolution of the General
Assembly, composed of three persons from each county, chosen
by the inhabitants thereof on the first Tuesday in December,
and who were to meet at Augusta on the 4th of January, 1789,
“vested with full power, and for the sole purpose of adopting
and ratifying or rejecting” the Constitution.?

This second Convention met in January, and proposed certain
alterations of the form laid before them. These, by direction
of the General Assembly, were also made known to the people;
and Governor Walton was directed to call a third Convention
“to adopt the said original plan or form of government, with or
without. all or any of the alterations contained and expressed in
the after-plan of January last.”

This Convention met on the 4th of May, 1789, considered the
several articles and plans before them, and on the 6th of the
same month adopted that portion of them known as the second
Constitution of Georgia.

§ 149. Though the series of acts resulting in the establish-
ment of the second Georgia Constitution, on the whole, gives
evidence of an anxious desire on the part of the public authori-
ties to found that Constitution on the people, still there were
anomalies in the mode of calling the Convention which framed
it, that indicate great ignorance or great disregard of sound
principles, aud tend to throw doubt on the legitimacy of that
body. The deputies to form the Convention were, in effect, but
a committee of the legislature, since, at the time of calling that
body, the latter proceeded “to name three fit and discreet per-
sons from each county” to constitute the Convention. In sub-
stance, then, it was the legislature, taking upon itself the work
of remodeling the Constitution, from which it derived its exist-

1 Stevens’ Hist. of Geo., Vol. IL. pp. 388, 389.
2 Id. p. 390. 3 Ibid.
NEW YORK CONVENTION OF 1776. 137

ence and its powers —a blending of functions which is never
permissible under our Constitutions, and which has the sanction
of no respectable authority. The body was, therefore, not legiti-
inate as a Constitutional Convention.

§ 150. Close in the wake of Georgia in the work of adopt-
ing a Constitution, followed New York. The party of the Revo-
lution meeting in New York with much greater opposition than
elsewhere, that colony was comparatively tardy in adopting
either a provisional government or a Constitution. The legisla-
ture, from a variety of causes, refusing, in the spring of 1776, to
elect delegates to the second Congress at Philadelphia, a vote
was taken throughout the city of New York, on the question
of sending representatives to that body, when there appeared
825 votes for, and 163 against it. After this indication of pub-
lic sentiment, the rural counties codperating with the city, a Pro-
vincial Congress of forty-one delegates met on the 20th of April,
1776, and reélected the members of the Continental Congress.
Other Congresses or Conventions of a similar character suc-
ceeded, and took upon themselves the government of the colony.
At length, on the 3lst of May, 1776, the one then in session,
after premising, in terms already referred to, that the govern-
ment by Congress and committees then prevailing in the col-
ony, had originally been designed to continue only until a recon-
ciliation with Great Britain, of which no hope any longer
existed; that “many and great inconveniences” attended “the
said mode of government by Congress and committees, as, ot
necessity, in many instances, legislative, judicial, and executive
powers” had been “ vested therein, especially since the dissolu-
tion of the former government;” that doubts had arisen that
Congress were invested with sufficient power and authority to
deliberate and determine on so important a subject as the neces-
sity of erecting and constituting a new form of government and
internal police, to the exclusion of all foreign jurisdiction, do-
minion, and control whatever; and, finally, declaring that it’
belonged of right solely to the people of the colony to deter-
mine the said doubts,

“ Resolved, That it be recommended to the electors in the
several counties in this colony, by election in the manner and
form prescribed for the election of the present Congress, either
to authorize (in addition to the power vested iu this Congress)
138 NEW YORK CONVENTION oF 1776.

their present deputies, or others in the stead of their present
deputies, or either of them, to take into consideration the
necessity and propriety of instituting such new government as,
in and by the said resolution of the Continental Congress is
described and recommended; and if the majorities of the coun-
ties, by their deputies in Provincial Congress, shall be of opinion
that such new government ought to be instituted and estab-
lished, then to institute and establish such a government as they
shall deem best calculated to secure the rights, liberties, and
happiness of the good people of this colony, and to continue in
force until a future peace with Great Britain shall render the
same unnecessary.” ! By another resolution, the Congress rec-
ommended the mode in which the election should be conducted,
and that the Convention so elected should assemble on the sec-
ond Monday in July, 1776.

§ 151. In pursuance of these resolutions, a Convention ? was
elected, which met at White Plains on the 9th of July, 1776.
The first action of this body was upon the Declaration of Inde-
pendence, a copy of which had been received. It expressed its
concurrence in the reasons set forth in the recital of said declara-
tion, and, adopting that instrument, instructed its delegates in
Congress to use their best efforts to obtain the objects of said
declaration. Soon after the time of its assembling, the condi-
tion of affairs in the State became so perilous, on account of the
advance of the enemy, and the time of the Convention was so
much taken up with the transaction of legislative and executive
business, that it made but little progress in framing a Consti-
tution. At length, however, a draft of a Constitution was pre-
sented, in the handwriting of Mr. Jay, on the 12th of March,
1777. It was under discussion from that day until the 20th of
April, 1777, when it was adopted with but one dissenting voice.
After its adoption, the Convention continued in session until the
8th of May, 1777, engaged in business as a Council of Safety,
and adopting ordinances necessary to put the new government
in operation.

§ 152. The instrument thus framed was at that time generally
regarded as the most excellent of all the American Constitutions.

1 Preamble to the N. Y. Const. of 1777.
2 When this body first convened, it was denominated a Congress, but it after-
wards adopted the title of Convention.
VERMONT CONVENTION OF 1777. 139

Mr. Jay took a leading part in its formation, having, it is said,
left Congress to attend the Convention for that purpose. The
proceedings, moreover, which resulted in its adoption, seem, con-
sidering the circumstances of the time, to have been so ordered
as to make it substantially the work of the people. But the
Convention by which that instrument was framed, was tainted
by the vice inherent in most of those held during the Revolu-
tionary period; it exercised, by usurpation or by the pretended
grant of the Provincial Congress, governmental powers. While
occupied in framing the Constitution, it spent much of its time
in administrative business, and, after its completion, it continued
to act, as above stated, as a Council of Safety, adopting the
ordinances necessary to put the new government in operation.
It was, therefore, a Revolutionary Convention.!

§ 153. The position of the State of Vermont, during the
period we are now considering, was peculiar. Engaged, like the
thirteen colonies forming the Union, in a war with Great Brit-
ain, in behalf of “the continent,” she maintained, at the same
time, a spirited contest, on her own account, with her powerful
neighbor, New York, to repel what she deemed unjust territorial
aggressions. The particulars of this double contest it is unne-
cessary to rehearse. It is sufficient to say that at the end of the
war with Great Britain, Vermont had succeeded in establishing
her independence, not only of Great Britain, but of New York,
under a Constitution, which, in most of its important features,
has remained unchanged to this day. The first step in this
course was to call a Convention to pass upon the question of
Independence, in imitation of the Continental Congress acting
for the thirteen colonies. Circular letters were addressed by
some of the most influential persons to the different towns, in
pursuance of which delegates were appointed to a Convention,
which met at Dorset, on the 24th of July, 1776. By different
adjournments, a decision of the question was postponed until
January, 1777, when the Convention again assembled at West-
minster, and declared the New Hampshire Grants, for thus was
Vermont then styled, a free and independent State. The Con-
vention then adjourned, to meet again at Windsor, in the fol-
lkwing June. The little State, thus boldly claiming for herself

For an account of the proceedings of the first New York Convention, see
Deb. of the N. Y. Conv., 1821, Appendix, pp. 691-696.
140 VERMONT CONSTITUTION OF 1777.

a position among the nations of the earth, at once became an
object of general attention. That New York would not readily
acquiesce in her pretensions was certain, and it was very doubt-
ful whether the Congress would recognize her independent char-
acter, much less admit her into the Union. At this juncture, a
citizen of Philadelphia, Thomas Young, a prominent Democrat,
and an experienced Constitution-maker, published an address,
urging the people of Vermont to maintain the ground they had
taken, assuring them that he had taken the minds of the leading
members of Congress, and that all they had to do was to “send
attested copies of the recommendation” of the Congress, “to
take up government, to every township . . . . and invite all free-
holders and inhabitants to meet in their respective townships
and choose members for a general Convention, to meet at an
early day, to choose delegates for the general Congress, a Com-
mittee of Safety, and to form a Constitution.”? This address
was dated the 11th of April, 1777. At the adjourned session of
the Convention, therefore, in June, 1777, in pursuance of this
advice and of the recommendation of the Congress, that body
appointed a committee to draft a Constitution, and then, by
resolution, recommended the people to elect delegates, in their
several towns, to meet in convention, at Windsor, on the 2d of
July following, to pass upon the draft prepared by the committee.
Delegates were accordingly elected, who met on the day named,
and afterwards adjourning, and coming together in December,
adopted and put in operation the first Vermont Constitution?

§ 154. For a Convention called by a people in a condition
so thoroughly revolutionary as that of Vermont, it is doubtful
whether more of the elements of regularity could be expected
than are here exhibited. Still, it was a Revolutionary Conven-
tion, that is, one exercising, beside the special function of a Con-
stitutional Convention, the high powers of a Council of Safety,
which were thoroughly despotic and of every variety wielded
by any government whatever, so far as deemed by itself to be
necessary. Moreover, the Constitution framed by the Conven-
tion was not submitted to the people for ratification. Though

1 The marked similarity of the first Vermont Constitution to the first Consti-
tution of Pennsylvania, was doubtless owing to him.

2 Williams’ Hist. Vi., p. 75.

3 Id. p. 79.
VERMONT CONVENTIONS OF 1785 anp 1786. 141

the necessity of submitting it for that purpose was not denied,
it was deemed unsafe to do so, on account of the perils then
surrounding the State, as well from foreign as domestic enemies.
But the failure to base the new government on the people, awak-
ened a general distrust as to its validity. Objection was made
to it, that the credentials of the delegates to the Convention
authorized them to form a Constitution, but were silent as to
its ratification by them, and that it never was submitted to the
people for ratification or rejection! Attempts were made, on
several occasions, to remedy this defect, and the mode in which
this was sought to be done, marks the immaturity of the views
prevalent at that time in regard to the proper method of effect-
ing constitutional changes. The legislature of the State, at its
session in February, 1779, passed an Act declaring, that the
Constitution, “as established by general Convention, held at
Windsor in July and December, 1777, together with and agree-
able to such alterations and additions,” as should be made in
pursuance of its provisions, should “ be forever considered, held,
and maintained, as part of the laws of the State.”2 Not con-
tent with this, the same body, at a subsequent session, held in
1782, passed another Act in similar terms, for the same purpose,
which, by the preamble, was declared to be “to prevent disputes
respecting the legal force of the Constitution of this State.” §

§ 155. In 1786, a revision was made of the first Vermont
Constitution, by a Convention called for that express and only
purpose. By the 44th section of that instrument, provision had
been made for the appointment, in 1785, and at the end of every
seven years thereafter, of a Council of Censors, whose duty it
should be, with other things, to call, by a vote of two-thirds of
its members, a Convention to amend the Constitution, “if there
should appear to them an absolute necessity of so doing.” By
a subsequent clause, all amendments were to be proposed by
the Council of Censors, and the Convention were merely to
pass upon them; and, to make it certain that the changes, if
any, should be substantially the work of the people, the Coun-
cil were required to publish the articles to be amended, and the
proposed amendments thereto, at least six months before the

1 Slade’s State Papers, p. 240, note, referring to Allen’s Hist. Vt.
2 Act of February 11, 1779. See Slade’s State Papers, p. 288, note.
3 Act passed in June, 1782. See Slide’s State Papers, p. 449.
142 MASSACHUSETTS CONVENTION OF 1778.

day appointed for the election of the Convention, “for the con-
sideration of the people, that they may have an opportunity of
instructing their delegates on the subject.”

Under this system, copied from that of Pennsylvania, Coun-
cils of Censors were chosen every seven years down to the
year 1869. That Council which held its session in 1785-86,
called a Convention, to meet in June of the latter year, by which
the Constitution was revised and published as the Constitution
of 1786. Though differing from the Conventions of any other
State in the Union, as to the extent and nature of their func-
tions, those of Vermont, excepting her first, must be conceded
to be, in their origin, at least, legitimate. Whether the facts,
that they have received the amendments, upon which they
have deliberated, from the Councils which called them, and
that they have been required by the Constitution to pass upon
those amendments definitively, distinguish them essentially from
Constitutional Conventions, may be the subject of some doubt.
Probably, the correct view to take of them is to regard them as
Constitutional Conventions, exercising extraordinary powers,
not by usurpation, as did their prototype, the Revolutionary Con-
vention of 1777, but by virtue of special constitutional provision
—§in which view it would be impossible to deny to them regu-
larity and legality.

§ 156. The latest of all the original States of the Union to
frame a Constitution, was Massachusetts. We have seen, that
as early as May, 1775, the Provincial Convention of that State,
on the withdrawal of her charter, had applied to the Congress
at Philadelphia, for advice respecting the proper exercise of the
powers of government in that colony.? In answer, the Congress
had recommended the election of representatives by the several
towns, to form a General Court, which was to meet and choose
councilors, and had added the wish that those bodies should
exercise the powers of government until a governor of the King’s
appointment would consent to govern the colony according to
its charter. The arrangement thus recommended, which was
provisional and temporary, was made, but no written Constitu-
tion was drawn up. For reasons set forth in the cases of the
other colonies, this establishment proving unsatisfactory, in Sep-
tember, 1776, the Massachusetts Assembly voted to take steps

1 See post, § 220, and note.
9 See § 127, ante.
MASSACHUSETTS CONVENTION OF 1779. 143

toward “the framing of a form of government.” Accordingly,
on the 5th of May following, the same body recommended to
the peuple to authorize their representatives to the General As-
sembly next to be chosen, to form a Constitution, to be submitted
to them for adoption or rejection, and, if approved by a two-thirds
vote of the people, to be put in force by the General Assembly.
On the 28th of February, 1778, the succeeding General Assem-
bly, sitting as a Convention, agreed upon a Constitution, in the
preamble to which, referring to the resolution of the 5th of May
preceding, they. recited that their constituents had instructed
them “in one body with the Council,” to form such a Constitu-
tion as they should judge best calculated to promote the happi-
ness of the State. This Constitution, being submitted to the
people at town-meetings held throughout the State, was, by the
large majority of five to one, rejected. The reasons for this
rejection were twofold: first, what were thought to be defects
in the instrument itself; and, secondly, dissatisfaction on account
of “the anomalous nature of the body by which it had been
framed.” The anomaly, doubtless, consisted in its double char-
acter of Assembly and Convention, which the people had the
good sense to recognize as of dangerous tendency. It must,
moreover, have been doubtful whether it was the sense of the
people that the Assembly should assume to meddle with the
fundamental law, since it does not appear that a regular vote
was taken throughout the State, by the returns of which it could
have been determined, with certainty, on which side of the ques-
tion was cast a majority of votes.

§ 157. The next attempt to frame a Constitution for the State
was more successful. The General Court, as the legislature
was called, on the 20th of February, 1779, directed the select-
men of the several] towns to cause the freeholders and other
inhabitants in their respective towns, duly qualified to vote for
representatives, to be lawfully warned to meet together in some
convenient place therein, on or before the last Wednesday of
May following, to consider of and determine upon the following
questions : — first, whether they chose, at that time, to have a
Constitution, or form of government made; secondly, whether
they would empower their representatives for the next year to
vote for the calling a State Convention, for the sole purpose

1 Proceedings of the Mass. Conv. of 1320, p. Vin note.
144 MASSACHUSETTS CONVENTION OF 1779.

of forming a Constitution, provided it should appear to them,
on examination, that a major part of the people, present and
voting at the meetings called in the manner and for the purpose
aforesaid, should have answered the first question in the affirma-
tive.!

The people assented to both of these propositions by large
majorities. Accordingly, the General Court, by a resolution
passed June 17, 1779, provided for the election of delegates to
a Convention, to meet on the first of September following?
The delegates elected under thia resolution, assembled on the
day appointed, and chose a committee of thirty to prepare a
Constitution and Declaration of Rights, and adjourned over to
the 28th of October. The committee delegated to John Adams,
one of their number, the task of preparing the Declaration of
Rights, and to him, with James Bowdoin and Samuel Adams,
that of drafting the Constitution. At the adjourned session
commencing October 28th, the Committee presented their draft,
which, aft-- “sll discussion, and several adjournments for the
purpose of securing a full attendance of the members, was
adopted by the Convention, March 2, 1780. The Convention
then adjourned again to the first Wednesday of June, 1780,
having first made provision for taking the sense of the people
upon the Constitution, and adopted an address to them explain-
ing the principles of that instrament. On the 7th of June,
1780, the Convention reassembled, and, it appearing that the
whole Constitution had been approved by the people, by more
than a two-thirds vote, declared, June 16, 1780, “the said form
to be the Constitution established by and for the inhabitants of
the State of Massachusetts Bay.”

§ 158. Such was the jealousy exhibited by the people of Mas-
sachusetts, of the unauthorized interference of any body of men
with their appropriate. function of establishing the fundamental
law. Being the latest of all the original thirteen States to
engage in the work of Constitution-making, Massachusetts pos-
sessed the great advantage of being able to profit by the exam-
ple of her sister-colonies, to adopt their improvements, and avoid
their mistakes. She had also the benefit of the enlightened
counsels of John and Samuel Adams, the former of whom is

1 Journal of the Mass. Conv. of 1779-80, Appendix, No. 1.
2 Proceedings of Mass. Conv. of 1820, p. vi., note.
FIRST FEDERAL CONVENTION. 145

entitled to rank as the father of the American system of govern-
ments, considering as well their peculiar adjustments of power,
as the modes and processes by which they are built up. From
the first essay, made by New Hampshire, in January, 1776, it is
evident a great advance had been made in all rexpects during
the four years ending with the adoption of the first Constitution
of Massachusetts. At first, the people had very inadequate no-
ticns of the true methods of fundamental legislation. Having
only the examples of their forefathers in England, in 1660 and
1668, with a few contemporaneous imitations in the colonies,
they were convinced the work, in their then revolutionary con-
dition, must be initiated by Conventions, but under what condi-
tions and limitations, they seem to have been wholly ignorant.
By degrees, however, they came to realize what John Adams
had taught them in May, 1775, that it was necessary “that the
people should erect the whole building with their own hands,”
and to that end, that the Conventions called by them should be
limited to the single function of proposing constitutional enact-
ments, leaving it to the electors by their fiat, pronounced through
the ballot-box, to give to them the force and vigor of law. It
is hardly necessary to observe, that the proceedings by which
the Massachusetts Convention of 1779 was called, and by which
its work was matured and confirmed by the final vote of the
people, were strictly regular, and that, therefore, the body was
legitimate as a Constitutional Convention.

§ 159. There remain now to be considered those conventions
of the revolutionary period, by which were framed and ratified
the two Constitutions of the United States.

We have seen that, upon the breaking out of hostilities with
Great Britain, the several colonies, except Connecticut and
Rhode Island, established temporary governments, by means
of Provincial Conventions or Congresses, operating in the main
through committees, and exercising unlimited powers. In tak-
ing this step, they imitated the example set them by United
America, in establishing a government for the continent by the
Congress at Philadelphia. The contest with Great Britain had
been opened, and, so long as the body existed, was conducted

1 For a full and most excellent account of the proceedings resulting in the

framing of the first Massachusetts Constitution, see Works of John Adams, Vol.
IV. pp. 213-218.
146 FIRST FEDERAL CONVENTION.

by the Revolutionary Congress, which met at Philadelphia on
the 5th of September, 1774. When that body expired, there
succeeded to its place and office the Congress which met at the
same city on the 10th of May, 1775. To the revolutionary
government administered by these two bodies, belonged all the
powers needed for the successful prosecution of the war. As
those powers, however, grew out of necessity, and not out of
an express grant, it was found difficult. to secure acquiescence
in their exercise, except when the separate colonies were made
tractable by imminent public dangers. To remedy this evil, it
was early proposed to frame articles which should not only make
the union of the colonies perpetual, but so ascertain the powers
intrusted to the central government by written memorials, that
cavil and disobedience should be prevented. According to Mr.
Madison, there remains on the files of Congress, in the hand-
writing of Dr. Franklin, a sketch of such articles, submitted by
him to that body, as early as the 21st of August, 1775, entitled,
“ Articles of Confederation and Perpetual Union of the Colo-
nies.” But this attempt was premature, and nothing came of
it. When Congress, in 1776, appointed a committee to draft a
Declaration of Independence, it appointed at the same time
another to prepare a plan of a confederation for the Colonies.
The committee reported a plan, on the 12th of July, 1776, based
on that sketched by Dr. Franklin, which was debated and
amended from time to time until the 15th of November, 1777,
when the Congress passed it and agreed to propose it to the
States. This plan, entitled “ Articles of Confederation and
Perpetual Union between the States of New Hampshire,” &c.,
&c., was finally ratified by the legislatures of the several States,
but only after long delay, the date of the earliest ratification
being the 9th of July, 1778, and that of the latest, the 1st of
March, 1781.

§ 160. Thus was effected, for the United States, the transition
from a revolutionary condition, under a provisional government,
to one that was, in idea, at least, fixed and permanent, under a
written Constitution. The body by which this Constitution was
framed, the Continental Congress, I have classed with Consti-
tutional Conventions, but in strictness that classification is
incorrect. That Congress was a revolutionary government,
charged by the patriotic majority in the several colonies to see
FIRST FEDERAL CONVENTION. 147

to it that the interests of United America received no detri-
ment. For that purpose its powers were undoubtedly ample,
but they did not extend to the framing of a fundamental law;
at least, the credentials of its members contemplated — and,
considering the time when they were drawn up, could have con-
templated —no such special function for that body, unless the
framing of a Constitution should be thought to be among the
proper means of discharging adequately the trust committed to
it. Whatever force or validity those articles derived from the
Congress, sprang solely from their excellence as propositions to
be acted on by the several States, or from the force wielded by
their proposers as a revolutionary government. They were oblig-
atory upon no one, and, in fact, it was less the weight of the
Congress than the urgent perils of the times that led to their
final adoption by the States. Their real validity, as a Consti-
tution for America, depended solely upon the ratification so
tardily given by the constituent commonwealths.

§ 161. The mode in which the ratification of the Articles of
Confederation was effected, is deserving of notice, as bearing
on the question of the legitimacy of that Constitution. It was
ratified by the States, and not by the citizens of the several
States or of the Union. It was by the States, speaking through
their respective legislative assemblies. In one aspect of the case,
this mode of ratifying those articles was the proper one, for the
Confederation was a league of distinct commonwealths, struck
by their ambassadors, and, therefore, to derive its force only from
those whom the ambassadors represented. These being States,
it was they alone that could dictate the terms upon which their
union should subsist. The Constitution of the Confederation,
therefore, when ratified in the manner explained, was an entirely
legitimate one; that is, it was proposed to the constituent bodies
to be governed by it, and by the latter ratified and confirmed by
an express vote; but it was legitimate only for what it purported
to be —a league between States, and nut a national Constitution,
in the proper sense of the term. ‘Tested by the principles that
should preside over the formation of a Constitution, it was, in
its inception, not legitimate, for it wanted the sanction of the
people, who, as distinct from their governments, are alone the
constituents, or have power to ratify a Constitution.

The Congress, on the other hand, considered as a Constitu-
148 FIRST FEDERAL CONVENTION.

tional Convention, possessed not a single one of the elements
necessary to give it legitimacy. The people had no direct agency
in calling it, no voice in prescribing its duties or ascertaining its
powers, and were not directly consulted in the act of putting
the fruit of its deliberations in force.

§ 162. Such was the first essay of our fathers in framing a
government for United America. The system resulting from it,
the joint product of inexperience and State jealousy, came soon
to merit the general contempt from its weakness. The govern-
ment of the Confederation, from its peculiar character as a
league between States, needed, more than one which should
deal immediately with individuals, to be strong enough to make
itself either respected or feared. But it failed to secure either
fear or respect. With considerable legislative power, it had no
distinctively judicial, and next to no executive, power. It pre-
sented the anomaly of a government for an immense expanse
of country, empowered to enact laws, but invested with scarcely
any power of enforcing them. The disordered state of the
finances, which it was utterly unable to remedy, was the proxi-
mate cause of its collapse. The requisitions for the support of
the government were first paid by a few of the States, the
rest contributing nothing, and then disregarded by all alike.!
But, had it been the destiny of the United States to tide over
the financial difficulties growing out of the war, a state of peace
and prosperity would have demonstrated, more strikingly than
one of financial distress, the utter inadequacy of its Constitution
of government. There is scarcely a function of a good gov-
ernment in which it would not have proved itself altogether
wanting.

§ 163. The immediate occasion of the steps which finally led
to the supersession of this worthless fabric by a real Constitution,
grew out of the absolute necessity of filling the national coffers.
In 1781, and on several subsequent occasions, serious efforts had
been made to induce the States to vest in Congress power to
levy imposts on imported goods, for the purpose of raising the
necessary public revenue. But they had all been vain. At

1 Attorney-General Randolph, in arguing before the Supreme Court of the
United States the case of Chisholm’s Executors vs. The State of Georgia, wit-
tily characterized the Confederation, in view of the facts stated in the text, as
‘a government of supplication.” 2 Dall. R. 419.
ANNAPOLIS CONVENTION. 149

length, on the 21st of January, 1786, the House of Delegates of
Virginia appointed eight commissioners, to meet such others as
might be appointed by the other States, at a time and place to
be agreed upon, with instructions “to take into consideration
the trade of the United States . . . . to consider how far a uni-
form system in their commercial regulations may be necessary ;
and to report to the several States such an Act relative to this
great subject, as, when unanimously ratified by them, will ena-
ble the United States in Congress assembled effectually to pro-
vide for the same ; that the said commissioners shall immediately
transmit to the several States copies of the preceding resolution,
with a circular letter requesting their concurrence therein, and
proposing a time and place for the meeting aforesaid.” !

This resolution was the origin of what is known as the Annap-
olis Convention ; the instructions to the Virginia commissioners
being carried out by them and delegates, according to their invita-
tion, assembling from several of the States at Annapolis, the
place named for the purpose by the commissioners. Toward the
object for which it was assembled, the Annapolis Convention did
nothing directly, only five of the States responding to the call;
but it gave expression to its “unanimous wish, that speedy
measures may be taken to effect a general meeting of the States
in a future Convention, for the same and such other purposes as
the situation of public affairs may be found to require.” The
delegates then stated that, in their opinion, “ the idea of extend-
ing the powers of their deputies to other objects than those of
commerce, which has been adopted by the State of New Jersey,?
was an improvement on the original plan, and will deserve to
be incorporated into that of a future Convention.” They fur-
ther recommended “a Convention of deputies from the different
States, for the special and sole purpose of entering into this
inquiry, and digesting a plan for supplying such defects as may
be discovered to exist ;” and that the Convention meet on the 2d
Monday in May, 1787, at Philadelphia, “to take into considera-
tion the situation of the United States, to devise such further
provisions as shall appear to them necessary to render the Con-

1 Ell. Deb., Vol. I. pp. 938-100.

2 New Jersey had instructed her delegates to the Annapolis Convention “‘ to
consider how far a uniform system in their commercial regulations and other impor-
tant mat'ers might be necessary.”
150 RECOMMENDATIONS OF THE ANNAPOLIS CONVENTION.

stitution of the Federal government adequate to the exigencies
of the Union, and to report such an act for that purpose to the
United States in Congress assembled, as, when agreed to by
them, and afterwards confirmed by the legislatures of every
State, will effectually provide for the same.”

Having published the above recommendations, the Conven-
tion adjourned, September 14, 1786.

§ 164. The two documents mentioned in the last section —
the instructions to the Virginia delegates and the recommenda-
tions of the Annapolis Convention—evidently contemplated noth-
ing more than an amendment of the Articles of Confederation,
in the main according to the mode pointed out. by the thirteenth
of those Articles. The course of action recommended by the
first, however, involved a variation from that mode in one par-
ticular not contained in the second, namely, in that it required
the act relative to trade regulations, which the commissioners
might mature, to be reported “to the several States,” and to take
effect “when unanimously ratified by them.” The Annapolis
Convention, on the other hand, reeommended that the Conven-
tion to meet at Philadelphia in May following, should “ report
such an Act” in regard to the interests of the Union, therein
mentioned, “to the United States, in Congress assembled, as,
when agreed to by them and afterwards confirmed by the legis-.
latures of every State,” would “ effectually provide for the same.”
In other words, the Virginia instructions proposed to amend the.
Articles of Confederation by referring the new or additional Arti-
cles to only one of the sources of authority prescribed by the
Articles themselves, that is, to the States, omitting “the Con-
gress of the United States,” which body, by the 13th Article,
was first to agree upon them. In this respect, the recommenda-
tions of the Annapolis Convention are free from objection, since
the course pointed out by that body for securing amendments
to the Articles was in scrupulous conformity to the 18th Article,
except that they went further than the latter in proposing to call
a Convention to frame such amendments in the first instance —
a step not provided for in the 13th Article. Indeed, that Article
contained no indication of the persons by whom amendments
to the Articles-should or should not be suggested or proposed,
but required only that they should be agreed to and confirmed
in a particular manner, that is, first, by the Congress, and then
by. the State legislatures.
SECOND FEDERAL CONVENTION. 151

§ 165. From these seeds sprang the Federal Convention of
1787, by which was framed the present Constitution of the
United States.

The recommendations of the Annapolis Convention having
been communicated by letter to Congress, that body, on the
21st of February, 1787, passed the following preamble and reso-
lution : —

“ Whereas, there is provision in the Articles of Confederation
and Perpetual Union for making alterations therein, by the
assent of a Congress of the United States and of the legisla-
tures of the several States; and, whereas, experience hath evinced
that there are defects in the present Confederation, as a means
to remedy which several of the States, and particularly the State
of New York, by express instructions to their delegates in Con-
gress, have suggested a Convention for the purposes expressed
in the following resolution; and such Convention appearing to
be the most probable means of establishing in these States a
firm national government, —

“ Resolved, That, in the opinion of Congress, it is expedient
that, on the 2d Monday in May next, a Convention of delegates,
who shall have been appointed by the several States, be held at
Philadelphia, for the sole and express purpose of revising the
Articles of Confederation, and reporting to Congress and the
several legislatures such alterations and provisions therein as
shall, when agreed to in Congress and confirmed by the States,
render the Federal Constitution adequate to the exigencies of
government and the preservation of the Union.” !

In pursuance of this resolution, delegates were chosen and
met at Philadelphia on the day appointed, and by them was
matured, in a session of something over four months, the pres-
ent Constitution of the United States. The first State to act
upon the resolution was Virginia, whom all the other twelve
States followed in the course of a few months, and before the
assembling of the Convention, except New Hampshire, Con-
necticut, and Maryland, whose delegates were appointed and
accredited after that body had been organized at Philadelphia.

§ 166. The question as to the legitimacy of the Federal Con-
vention, in the sense in which I have defined that terrcs,? is not
a difficult one to answer.

1 Ell. Deb., Vol. I. pp. 119, 120.
2 See §§ 105-108, ante.

ae
152 SECOND FEDERAL CONVENTION.

There being, as I have shown, in the Articles of Confedera-
tion, no specification of the persons by whom, or of the mode
in which, alterations of those Articles should be proposed, but
only of the manner in which they should be ratified and estab-
lished, some range was left to the people of the Union for a
choice both of persons and mode. The only limitation, indeed,
upon their action, was, that whatever mode and whatever per-
sons should be employed, there should be a substantial con-
formity to the principles presiding over the genesis of Constitu-
tions, described in a former chapter, of which the most important
are, first, that the work shall be committed to persons duly
commissioned by the existing government, for the sole and ex-
press purpose of accomplishing that work; and, secondly, that
to the sovereign body shall be accorded an opportunity fully and
freely to express its will in relation to the call of such Conven-
tion.

That the Federal Convention conformed to the first of these
principles, in all essential particulars, is beyond question. It
was made up of delegates appointed by the legislatures of the
several States, assembling, on the basis of federal equality, for
the sole and express purpose of proposing such alterations of
the existing Constitution as should make it adequate to the exi-
gencies of government and the preservation of the Union.

It, also, in my judgment, conformed substantially to the sec-
ond. The sovereignty of the Union, as then constituted, resided
in the people of the United States, either as a unit or as distin-
guished into groups under the name of States. Hence, it is
evident that when the Congress, which represented the sovereign
as a unit, recommended and called the Convention, and the
State legislatures, which collectively represented that sovereign
as distinguished into the groups known as States, acceded to
that recommendation and appointed delegates to the Conven-
tion, nothing more could be needed to show that the call of that
body was made with the assent, if it was not directly the act,
of the sovereign authority of the Union.

Whether or not, in any of its acts, that Convention exceeded
its jurisdiction, assumed revolutionary powers, and thus, so far,
divested itself of its original character as a Constitutional Con-
vention; whether or not, in other words, the Constitution pro-
posed by it was the fruit of a fair exercise of the powers in-
RATIFYING CONVENTIONS. 153

trusted to it, or, on the other hand, was the offspring of violated
instructions, of usurpation, is a different question, which will be
considered further on.

§ 167. The Conventions of the eleven States which ratified
the Federal Constitution, previously to its establishment in
March, 1789, — the only remaining ones held during the Revolu-
tionary period, — were all regularly called by the legislatures of
their respective States.” The same may be said of the two Con-
ventions which ratified that Constitution subsequently to its
establishment — those of North Carolina and Rhode Island —
as well as of the Convention of the independent republic, Ver-
mont, whose ratification was dated January 10th, 1791.

The only observation I deem necessary respecting these Con-
ventions is, that they differ from the great bulk of the Conven-
tions held in the United States, in that their function was, not
to mature, but to adopt and establish, a code of organic law.
Doing this, however, under special instructions, I have consid-
ered those bodies as belonging to the class of Constitutional
Conventions. This mode of enacting Constitutions has been
practiced by several of the States. Under the first Constitution
of Pennsylvania, and under all those of Vermont, constitutional
changes have been recommended by bodies called Councils of
Censors, and then passed upon by Conventions called for that
express and only purpose. What has in those States been a
matter of Constitutional regulation, has in several instances
occurred in other States, generally, and perhaps always, without
special authorization in the fundamental law. Thus, the second
Constitution of the State of Georgia was framed by a Conven-
tion which assembled in 1788, and was submitted for adoption to
two Conventions held in 1789, by one of which certain amend-
ments to the plan were proposed, and by the other were rati-
fied and established.? In a few cases a similar use has been
tnade of Conventicns in new States, to give the sanction of
such States, in a solemn and authentic form, to amendments to
their Constitutions demanded by Congress as conditions of their
admission into the Union. Such Conventions were those of

1 See §§ 383-386, post.
2 See Appendix B, for a list of these bodies.
3 See § 148, ante.
154 OBSERVATIONS UPUN THE FOREGOING CONVENTIONS.

Michigan, of 1836, (two Conventions,') of Iowa, of 1846, of
West Virginia, of 1861-3, (final session,) and others; some of
which, however, were not newly-elected Conventions, but those
previously in session for the usual purpose, but subsequently
reassembled to give the sanction of the State to the conditions
indicated. In regard to these latter instances, the only question
as to the regularity of the Conventions depends on the power
of the legislative bodies calling them to give them the right of
definitive legislation, involved in the act of passing thus upon
a fundamental law,—a subject which will be considered in
another part of this work.?

§ 168. Respecting the principal Conventions of the Revolu-
tionary period, two or three observations should be made, to
prevent misconceptions.

1. Considerable stress has been laid, in the preceding sections,
upon the fact, that most of the Conventions of that class were
revolutionary, either in their origin or in their methods of pro-
cedure, or in both. This imputation against the character of
those bodies, however, is not intended as an impeachment of
them as having no basis in political necessity, but only as a
denial to them of regularity and legality as Constitutional Con-
ventions. Those bodies were irregular, from the nature of the
case, for they came in to supply the hiatus caused by the subsi-
dence of regular governments in the several colonies. The old
organizations being broken up, the elements were forced to seek
new combinations, and, to that end, to find somewhere new
centres about which to arrange themselves according to their
several affinities. The Conventions, originating in popular
movements, semi-official, semi-spontaneous, were those centres.
The wonder is, not that there were irregularities, judging by the
standards of peace and established order, but that the aberra-
tions were not greater and more numerous.

2. But, it may be asked, why insist so strenuously upon the
fact that the Conventions of the Revolutionary period were revo-
lutionary bodies, if it be admitted that they were grounded upon
an imperious necessity, and that from them, as from a fountain,
has flowed the present order of things, confessed to be legiti-
mate? The answer is, because, if they are truly revolutionary

1 See §§ 202-204, post.
2 See §§ 480-486, post.
CONVENTIONS OF THE SECOND CLASS. VARIETIES OF, 155

bodies, they must be set down as such, in order that their action
may not be drawn into precedent, as that of normal Constitu-
tional Conventions. If, with reference to the colonial establish-
ments founded by the crown, those Conventions and the proceed-
ings of those Conventions were not revolutionary, then, neither
would similar Conventions and proceedings, antagonistic to the
now existing order, be revolutionary with respect to that order.

§ 169. 3. If, in any particular, relating to their initiation or
to their procedure, the Conventions of the revolutionary period
should seem to be more irregular than was necessary, it should
be rernembered that much .of their irregularity was due to the
dangers of the times, and much to the ignorance and inexperi-
ence of those who managed them. While the foundations of
our civil polity were being laid, our fathers were staggering
under the burdens of a long war, replete with public and pri-
vate disasters. For the public safety, it was often found neces-
sary to omit some of those forms by which regular governments,
in times of peace and order, are accustomed to ascertain the
public will. Moreover, the process by which the purely Revolu-
tionary Conventions, theretofore known, were gradually adapted
to a defined constitutional purpose, was then just commencing.
The absolute necessity, afterwards so well understood, of lim-
iting the Constitutional Convention to its special function, in
subordination to the government to which it is ancillary, was
very imperfectly recognized. Hence, as we have seen, the Con-
ventions generally throughout the War of Independence united
in themselves functions proper only for bodies vested temporarily
with dictatorial powers— for those provisional organizations,
which, in times of crisis, are, for the public safety, or to forward
the purposes of ambition, intrusted with a revolutionary dis-
cretion, incompatible with the existence of any other govern-
ment.

§ 170. (b). The second and most numerous class of Conven-
tions consists of such as have been assembled since the Federal
Constitution went into operation, on the 4th of March, 1789,
and they may be divided into these three principal varieties : —

1. Such as have been convened for the purpose of framing
Constitutions for new States to be formed within the territorial
jurisdiction of States already members of the Union.

2, Such as have been called to frame Constitutions for new
156 CONVENTIONS OF THE FIRST VARIETY.

States to be formed out of territory of the United States, organ-
ized under its authority, or acquired in an organized condition
from foreign States.

3. Such as have been assembled for the revision of the Con-
stitutions of States, members of the Union.

It will be the chief purpose of what remains of this chapter
to bring into view these several varieties of Conventions, in
order to ascertain how far the modes in which they were called
or initiated conform to the principles enunciated in the opening
sections of this chapter.

§ 171. 1. Of the first variety of Conventions enumerated,
there have been held, up to the present time, reckoning the first
Convention of Vermont, which may with propriety be classed
with them, though held previously to 1789, four Conventions :1
those which framed the first Constitutions of Vermont, Ken-
tucky, Maine, and West Virginia.

The first clause of the 3d section of the 4th Article of the
Federal Constitution provides, that “no new State shall be
formed or erected within the jurisdiction of any other State,
nor any State be formed by the junction of two or more States
or parts of States, without the consent of the legislatures of the
States concerned, as well as of the Congress.” To render a
Convention legitimate, therefore, for the purpose of erecting a
new State within the jurisdiction of any other State or States,
under this clause, three things must concur: first, the prior con-
sent of the legislature of the State or States out of which the
new one is to be carved; second, that of the Congress of the
United States; and, third, that of the inhabitants or people of

1 The territory now comprised in the State of Vermont was, at the time she
declared her independence, claimed by the State of New York. It was not
until October 17th, 1790, after the formation of the present Constitution of the
United States, that New York consented to her erection into a new State. She
was admitted into the Union in 1791, after she had maintained her indepen-
dence against the State of New York and the United States for fourteen years.
As Vermont was erected into an independent State and admitted into the
Union, therefore, with the consent of New York, and, of course, of Congress,
the conditions required by the Federal Constitution seem to have been fulfilled.
For the details of the action of Vermont herself, see ante, §§ 154,155. The
consent of New York was given through commissioners appointed by that State,
on the 17th of October, 1790, Vermont paying to New York for a relinquish-
ment of all claim, as well of soil as of jurisdiction, the sum of thirty thousand
dollars.
CONVENTIONS OF THE FIRST VARIETY. 157

the proposed State. The first and second of these requisites
follow from the terms of the constitutional provision, and the
third, I think, from the reciprocity of right and obligation sub-
sisting between the several portions of a State. Each of these
owes obedience, or a quasi allegiance to the parent State, and,
in return, is entitled to protection, which excludes the idea that
the State, as a whole, can rightfully sever from connection with
itself a part thereof, without its consent.

§ 172. Before the adoption of the Federal Constitution, no
rule upon this subject existed, and an attempt to dismember a
State, however conducted, would have been revolutionary. The
case of Vermont, before referred to, exhibits the embarrassments
10 which such a condition of things was likely to give rise.
There were many years during which the troubles between that
State and New York threatened to breed a civil war, not be-
tween those States alone, but between those States and such
allies as they might respectively secure! The clause of the
Federal Constitution, above cited, was intended to obviate the
dangers foreseen, if a system were established, permitting no
changes in the territurial extent of the States, or allowing them
to be consummated without the consent of Congress. And yet,
as was perhaps to be expected, not a single instance of the dis-
memberment of a State has ever occurred, under the clause
quoted, without proceedings more or less irregular or revolu-
tionary. By this is not meant, that the final Acts by which the
new States have been erected, have in any case come short of
conforming substantially to the constitutional provision, but,
either that the consent of the parent States has been wrung
from them by the pressure of events — perhaps, secured by
political advantages accepted as the price of that which must
be yielded at all events— or the Conventions, by which the
initiatory movements have been conducted, have been illegally
called, and so have been, in character, revolutionary.

1 No native of Vermont would willingly charge the revolutionary leaders of
that State with entertaining seriously the project of forming an alliance with
Great Britain against New York and the other twelve colonies. But it cannot
be denied, that they at least coquetted, in a very imprudent manner, with the
British generals; and, had the policy, so long pursued by Congress under the
inspiration of New York, of practical hostility to Vermont, been continued, that
little Commonwealth might have been driven to seek, in a detested alliance with
a common enemy, that freedom which was denied her by those of her own
household.
158 KENTUCKY CONVENTION OF 1792.

§ 173. After Vermont, the first State erected within the juris-
diction of another State, was Kentucky. As this case occurred
after the Federal Constitution had gone into operation, it is
worthy of attentive consideration, as the earliest in which an
application could be made of the constitutional provision in
question.

That part of Virginia, now composing the State of Kentucky,
was separated from the older portions of the State by interven-
ing mountains. When the war of the Revolution was con-
cluded, the financial distresses common to Virginia and to all
the States of the Union caused the infant settlements west of
the mountains to be neglected. The hostile tribes of Indians
on their southern and western frontiers, took advantage of their
defenceless condition, and were repressed by the settlers only
with great difficulty, and at their own cost. In the fall of 1784,
the exigencies of the public defense called together an assem-
blage of citizens at Danville, Kentucky, the danger to be guarded
against being an attack by the Cherokee Indians. On consul-
tation, it was found that they had no power to raise forces, or
to do any thing to protect themselves, and it was therefore re-
solved to call a Convention of the entire Kentucky district. To
constitute that body, the assemblage addressed the people in a
circular letter, in which it was recommended to each militia
company in the district to elect, on a day named by the assem-
blage, one representative, to meet in Danville, on the 27th of
December, 1784, to take into consideration the important subject
of self-defense. The Convention met at the time appointed, and
then, the subject of a separation from Virginia being broached,
they voted in favor of it by a large majority. Another Conven-
tion followed in May, 1785, at which a similar expression of
opinion was made, and resulted in a petition to the Assembly
of Virginia for liberty to. form a new State <A third Conven-
tion, which met in August of the same year, having commenced
its proceedings by a unanimous vote in favor of the project of
separation, the Assembly of Virginia, at its session in Novem-
ber, 1785, passed an Act, authorizing the election of five dele-
gates from each of the seven counties of Kentucky, to take into
consideration the forming an independent government. Should
the Convention determine upon it, separation was assented to

1 Hildreth, Hist. U. S., Vol. 111, 1st Series, p. 457.
KENTUCKY CONVENTION OF 1792. 159

provided Congress, before the first of June, L787, would admit
the new State into the Union; and provided further, that Ken-
tucky would agree to assume her proportion of the Virginia
debt.

§ 174. The Convention thus authorized by the Virginia As-
sembly, was prevented by an expedition against the Indians
north of the Ohio, from meeting, except in numbers less than a
quorum ; but an application to Virginia, on the part of such
members of the Convention as had met at the time appointed
(September 17, 1786), resulted in a new Act of the Virginia
Assembly, authorizing a new Convention, to be held the follow-
ing year. Accordingly, on the 17th of September, 1787 — the
very day on which the Federal Convention closed its labors at
Philadelphia —a fifth Convention met at Danville, Kentucky,
resolved unanimously in favor of separation from Virginia,
adopted an address asking admission into the Union, and, in
conformity to the provisions of the Act under which they met,
directed the election of a new Convention to frame a State
Constitution.?

These Acts and proceedings seem to have been attended by
no results; for, on the 18th of December, 1789, another Act was
passed by Virginia, proposing terms of separation, which were
accepted by a Convention, which met on the 26th of July, 1790,
the separation to take effect on the 1st of June, 1792. Finally,
this Convention resolved, that in December, 1791, an election
should be held for forty-five representatives to form a Constitu-
tional Convention, to be elected under certain restrictions as to
residence, by the free male inhabitants of each county, above the
age of twenty-one years, the Convention to be held at Danville
on the first Monday in April, 1792. At the time and place
appointed this Convention met, and by it was framed the first
Constitution of Kentucky, to take effect, as above stated, on the
1st day of June, 1792. In the mean time, on the 4th of February,
1791, an Act bad been passed by Congress, declaring the con-
sent of that body, that a new State, by the name of Kentucky,
might be formed within the jurisdiction of the Commonwealth
of Virginia,t and admitting the same into the Union, the Act to

1 Hildreth, Hist. U. S., Vol. III., 1st Series, p. 470.
2 1d. pp. 470-1.

3 Id. p. 529.
410.8. Stat. at Large, p. 189.
160 MAINE CONVENTION OF 1819.

take effect on the same day as the Constitution. Thus Ken-
tucky became, from a district of the State of Virginia, a State
in the Union, and that with substantial regularity.

§ 175. The next example of the dismemberment of a State
was that of Maine, formed from a portion of the State of Massa-
chusetts.

As early as 1786, before the adoption of the Federal Consti-
tution, the project of erecting the District of Maine into a sep-
arate State had been entertained, and a Convention had at one
time met at Portland to consider the subject.! It was not, how-
ever, until after the second war with England that the project
assumed definite proportions. The stand taken by the Federal
party during that war had reflected great odium upon Massachu-
setts, which had been controlled by it, and in which it had been
more offensively conspicuous than in any State in the Union.
As in most new and sparsely settled districts, the Democratic or
war party was in a majority in the District of Maine, and it was
natural that its leaders should chafe under the sway of the
Federalists in the older part of the State. Nothing, indeed, stood
in the way of a separation but the political ambition of the
parent State, it being evident that to part with that District
would reduce Massachusetts to a second-rate position in na-
tional affairs, in which she would be forced to yield the leader-
ship of the North, hitherto held by her, to the rising State of
New York. The weight of her unpopularity, however, was so
great, after the war, that she despaired of longer retaining her
primacy in the Union, and her federal politicians were not un-
willing to strengthen themselves for a while at home by letting
Maine go. The Federalists of Maine protested against this de-
sertion, but the people of that District, after two or three trials,
having pronounced decidedly in favor of separation, a Conven-
tion was called, under the authority of an Act of the legislature
of Massachusetts, to form a State Constitution. By this body,
as we shall see, was framed the first Constitution of Maine.

§ 176. The earliest official action relating to the proposed
separation was the Act of the Massachusetts legislature referred
to, entitled, “ An Act relating to the Separation of the District
of Maine from Massachusetts proper, and forming the same
into a separate and independent State,” passed June 19, 1819.

1 Hildreth, Hist. U. S., Vol. IIL. 1st series, p- 472.
MAINE CONVENTION OF 1819. 161

The parts of this Act important for my purpose were as fol-
lows : —

“ Whereas, it has been represented to this legislature, that a
majority of the people of the District of Maine are desirous of
establishing a separate and independent government within the
said District, therefore be it enacted,” &c.

“That the consent of this commonwealth be, and the same
is, hereby given, that the District of Maine may be formed and
erected into a separate and independent State, if the people
of the said District shall, in the manner, and by the majority
hereinafter mentioned, express their consent and agreement
thereto, upon the terms and conditions: and provided the Con-
gress of the United States shall give its consent thereto, before
the fourth day of March next, which terms and conditions are as
follows”: — (the terms and conditions relate to the public
property and the guaranty of existing rights) * subject, how-
ever, to be modified or annulled by the agreement of the legis-
latures of both of said States, but by no other power or body
whatsoever.”

§ 177. The requisites, as to manner and majority, of the
assent and agreement to be given by the people of the District
of Maine, prescribed in the second section, were, “that the
inhabitants of the several towns, districts, and plantations in
the District of Maine, qualified to vote for Governor or Sen-
ators,” should “assemble in regular meeting, to be notified by
warrants of the proper officers, on the fourth Monday of July
next, and” should “in open meeting, give in their votes on this
question: ‘Is it expedient that the District of Maine shall
become a separate and independent State, upon the terms and
conditions provided in an Act entitled’” &c. The Act then
proceeded to give minute regulations for conducting the elec-
tion, the return and canvassing of the votes, and the proclama-
tion of the result to the people. It finally provided, that, in case
there should have been cast in favor of such separation a
majority of fifteen hundred votes, “then and not otherwise the
people of said District ” should “ be deemed to have expressed
their consent and agreement that the said District” should “ be-
come a separate and independent State, upon the terms and
conditions above stated.” In which case it required the Gov-
ernor, in his proclamation, to “call upon the people of said
162 WEST VIRGINIA CONVENTION OF 1861.

District to choose delegates to meet in Convention for the pur-
pose” of framing a Constitution for the ‘proposed State.

In pursuance of this Act, a Convention was elected, and met
at Portland on the 11th of October, 1819, and, after a session
of eighteen days, adopted and submitted to the people of the
District a Constitution, which the latter, on the 6th of Decem-
ber, 1819, in their town-meetings, ratified and confirmed. This
Constitution having been presented to Congress, with a petition
for the admission of the State into the Union, an Act was
passed for that purpose on the 3d of March, 1820, which, after
reciting the Act of Massachusetts, and that, in pursuance
thereof, “the people of that part of Massachusetts heretofore
known as the District of Maine, did, with the consent of the
legislature of said State of Massachusetts, form themselves
into an independent State, and did establish a Constitution for
the government of the same, agreeably to the provisions of said
Act,” enacted, “ that from and after the 15th of March, 1820, the
State of Maine be and be declared to be one of the United
States of America.”

Respecting the legitimacy of the Convention thus called, no
extended observations are necessary. That body undoubtedly
possessed, in full measure, each of the requisites to give it a
legitimate character as a Constitutional Convention, — viz., the
consent of the people of the State of Massachusetts, expressed,
as the Constitution of the United States requires, by the legis-
lature of the State; that of the inhabitants of the district, and
that of Congress.

§ 178. The only remaining instance of the formation of a
State by the dismemberment of another State, is that of West
Virginia.

The official proceedings culminating in the establishment of
this new State, were as follows: —

On the 17th of April, 1861, a body of men, assembled by the
legislature of Virginia, on the 13th of February preceding, and
styling themselves “the Convention of Virginia,” passed a pre-
tended ordinance of secession from the United States, and, so
far as they had power to do so, carried the State, as a political
organization, out of the Union. The officers of the State, with
great unanimity, joined the rebel cause, carrying with them the
public funds, the archives of the State, and such of the national
WEST VIRGINIA CONVENTION OF 1861. 1638

forts and arsenals within the limits of Virginia, as they had the
physical ability to seize and maintain. The insurgents not act
ually withdrawing from the State, the situation was as follows:
There was the State of Virginia, considered territorially as a
portion of the national domain ; there were the rebel forces, gov-
ernment, and population in hostile possession of that part of the
State occupied by their camps (for they could be recognized by
the United States and its adherents as only temporarily en-
camped upon a portion of the territory of the Union); and
there were the loyal Virginians settled, in an unorganized con-
dition, upon the residue. In these circumstances, and at this
stage of events, it is evident that the people of the State of
Virginia, so far as the Constitution or Government of the
United States could recognize a people at all, consisted only
of its loyal inhabitants; and they were left,as by some great
calamity, wholly destitute of a government, except, for national
purposes, that of the Union, — reduced, so far as their internal
administration was concerned, to a state of nature. In other
words, so far as related to their local institutions, they were in a
condition analogous to that in which their fathers were, when,
upon the suppression of the royal government in 1774, they
were compelled themselves, in their original capacity, to gather
up the ravelled threads of government and weave them anew
into a system for their defence. In 1774, there had existed a
colonial establishment, but organized under the crown, and
therefore hostile to their liberties, for which reason it had been
repudiated by the people of Virginia; so, in 1861, there was a
State organization, which, having ceased to be loyal to the
Union, for which the Virginians, not seduced by the treason of
their seceding rulers, still retained their affection, and to which
they deemed allegiance still due, they ceased to follow in its
eccentric course, or to obey. They, therefore, under the pro-
tection and with the countenance of the United States Govern-
ment, commenced, as with a tabula rasa, the reconstruction of
society from its foundations. This was possible only by em-
ploying the methods of revolution. The initiative must be
taken by some body of persons having rights of jurisdiction
within the limits of Virginia. No such body existed. It could
not regularly be done by the citizens of Virginia still remaining
loyal, because they were mere private individuals. It could not
164 WEST VIRGINIA CONVENTION OF 1861.

be regularly done by the people or Government of the Union,
for, by the Federal Constitution, the right of founding and
amending Constitutions for the State of Virginia had been
delegated to the people of that State, acting by and through
their State organization, subject merely to the federal guaranty
that such Constitutions should be republican — which State
organization had ceased to exist. The work of reconstruction,
therefore, must be inaugurated irregularly, since a government
must be forthwith established. Of the only two modes of
effecting this work, at that time practicable, namely, that by a
spontaneous movement of the loyal citizens of Virginia, and
that by an enabling Act to be passed by the Congress of the
United States, both irregular, the former was adopted, as I have
said, with the countenance and under the protection of the
United States. The steps taken to this end were as follows: —

§ 179. On the 11th of June, 1861, a Convention of loyal
Virginians met at Wheeling upon the call of influential persons
in different parts of the State, with a view to reconstruct the
State government. Taking their stand upon the Virginia Bill
of Rights, framed in 1776, and reaffirmed in 1830 and 1851,
they assumed to themselves the powers of government, forfeited
by the treason of their rulers, and pronounced the Act of the
General Assembly calling the Convention of February, 1861,
without the previously expressed consent of the people, to be
an act of usurpation. After denouncing the acts of that Con-
vention as abuses of the powers intrusted to it, stigmatizing
especially its attempt “to bring the allegiance of the people of
the United States into direct conflict with their subordinate
allegiance to the State; thereby making obedience to their pre-
tended ordinances treason against the former,” they solemnly
declared, “in the name and on behalf of the good people of
Virginia, that the preservation of their dearest rights and lib-
erties, and their security in person and property, imperatively”
demanded “the reorganization of the government of the Com-
monwealth, and that all acts of said Convention .... tending
to separate this Commonwealth from the United States, or to
levy and carry on war against them,” were “ without authority
and void; and that the offices of all who” adhered to “ the said
Convention .... whether legislative, executive, or judicial,”
were “vacated.” The Convention then, by an Ordinance, passed

1 See §§ 251-253, post.
WEST VIRGINIA CONVENTION OF 1861. 165

on the 19th of June, 1861, provided for the appointment of a
governor, and other State officers, to continue in office six
months, or until their successors were elected and qualified, and
for a General Assembly, to consist of the members elected in
May preceding, and such as might be elected under the Ordin-
ances of the Convention, and to hold their offices until the end
of the terms for which they shonld be elected. The General
Assembly was required to meet on the Ist of July, 1861, and
to proceed to organize themselves, as prescribed by existing
laws, in the respective branches.

§ 180. Thus far the proceedings of the Convention related to
the reconstruction of the State government. Now commenced
those having for their object the dismemberment of the State.
On the 20th of August, 1861, the Virginia Convention passed
an Ordinance, entitled, “ An Ordinance to provide for the for-
mation of a new State out of a portion of the territory of this
State.” The material portions are as follows: —

“ Whereas, it is represented to be the desire of the people
inhabiting the counties hereinafter mentioned, to be separated
from this commonwealth, and to be erected into a separate
State, and admitted into the Union of States; . . . . The
people of Virginia, by their delegates assembled in Convention
at Wheeling, do ordain that a new State, to be called the State
of Kanawha, be formed and erected out of the territory in-
cluded within the following limits” (describing the territory in
the main afterwards embraced in the State of West Virginia) ;
that “all persons qualified to vote within the boundaries afore-
said, and who shall present themselves at the several places of
voting within their respective counties, on the fourth Thursday
in October next, shall be allowed to vote on the question of the
formation of a new State;” and that the commissioners con-
ducting the election at the several places of voting shall “ cause
polls to be taken for the election of delegates to a Convention
to form a Constitution for the government of the proposed
State.” The Ordinance further provided (sec. 6) that it should
be the duty of the Governor, “on or before the 15th day of
November next, to ascertain and by proclamation make known
the result of the said vote; and, if a majority of the votes
given within the boundaries” prescribed, “shall be in favor of
the formation of a new State, he shall so state in his said proc-
166 WEST VIRGINIA CONVENTION OF 1861.

lamation, and shall call upon the said delegates to meet in the
city of Wheeling on the 26th day of November next, and
organize themselves into a Convention; and the said Conven-
tion shall submit, for ratification or rejection, the Constitution
that may be agreed upon by it, to the qualified voters within the
proposed State, to be voted upon by the said voters, on the
fourth Thursday in December next.” By sections 8 and 10 it
was required of the Governor to lay before the General Assem-
bly, at its next meeting, “for their consent, according to the
Constitution of the United States, the result of said vote,” if a
majority should appear to have voted in favor of a new State,
and of the proposed Constitution; and that, when the General
Assembly should have given its consent to the formation of
such new State, it should forward to the Congress of the
United States such consent, together with an official copy of
such Constitution, with the urgent request that the new State
might be admitted into the Union.

§ 181. In pursuance of this ordinance, a vote of the people
within the territory mentioned was taken on the question of
forming a new State and for delegates to a Constitutional Con-
vention, should the vote favor the formation of such State. The
election was held on the fourth Thursday in October, 1861, as
prescribed in the ordinance, and resulted largely in favor of
forming a new State. The delegates elected on the same day,
accordingly, on the proclamation of the Governor, convened at
Wheeling on the 26th of November, 1861, the day fixed by the
ordinance, and during their session framed a Constitution, which
was adopted by the people at a general election held on the 3d
day of April, 1862.1. A few days thereafter, on the 6th of May,
1862, an extra session of the legislature of the State of Vir-
ginia, as reconstituted by the Convention, was held at Wheeling.
Its first Act, passed on the 13th of May, was entitled “an Act
giving the consent of the legislature of Virginia to the forma-

1 Such is the date contained in the preamble to the Act of Congress admit:
ting the State conditionally into the Union. The day required by the ordi-
nance of the Convention for the vote on the Constitution was the fourth Thurs-
day in December, 1861. The address, to their constituents, of the delegates
composing the Convention, called in 1863 to consider and pass upon the amend-
ment to the Constitution of the new State, required by Congress to be made
before the State should be admitted into the Union, on the other hand, speaks
of the ratification of the Constitution as having been made in April, 1862
For a more detailed statement of the facts, see Preface to 1 W. Va. R., 72-78.
166 WEST VIRGINIA CONVENTION OF 1861. 167

tion of a new State within the jurisdiction of this State.” It
purported to give the consent of the State to the erection of
certain counties, named in the Ordinance above referred to, into
a new State, to be called West Virginia instead of Kanawha,
and that to them might be added four other counties specified
in the Act, whenever the voters thereof should ratify and consent
to the Constitution, at an election held for that purpose. It also
required the Act, together with the Constitution, to be trans-
mitted to the Senators and Representatives of Virginia in Con-
gress, and requested those officers to use their endeavors to
obtain the consent of Congress to the admission of the State
of West Virginia into the Union.

Here, then, after a sort, were two of the three requisites to
the legitimacy of the new State; the consent of the people to
be embraced within its jurisdiction and that of the parent State,
given first by its Convention and then by its so-called legisla-
ture, in apparent conformity to the letter of the Federal Con-
stitution.

§ 182. Copies of the Act of the Virginia legislature and of
the proposed Constitution of the new State having been trans-
mitted to the Virginia delegation in Congress, a bill was intro-
duced into that body giving its assent to the separation. Objec-
tions were entertained, however, to one provision of the Consti-
tution, — that relating to slavery. The Convention which had
framed that instrument had been about equally divided as to
the propriety of inserting in the Constitution a clause providing
for gradual emancipation. Some desired to avoid the conten-
tion the agitation of the subject would inevitably engender,
while others thought that without the insertion of such a clause
the consent of Congress would not be given to the separation
from the parent State. Under these circumstances a compromise
clause had been agreed on, which had received the unanimous
vote of the Convention and been inserted in the Constitution.
lt provided simply that no slave should be brought, nor free per-
son of color be permitted to come, into the State for permanent
residence. This Constitution, as we have seen, was ratified by
the people. This is the clause to which, when the Constitution
was considered in Congress, exception was taken, and the result
of the action of that body was, that the proposed State was
constrained to substitute for the clause in question another, pro-
168 WEST VIRGINIA CONVENTION OF 1861..

viding for gradual emancipation. On the 31st of December,
1862, an Act was passed by Congress entitled, “An Act for the
Admission of West Virginia into the Union, and for other pur-
poses,” which, after reciting the proceedings I have before consid.
ered, and that both the Convention and the legislature of Virginia
had requested that the new State should be admitted into the
Union, declared the consent of Congress, that the forty-eight
counties named in the Act should be formed into a separate and
independent State, and admitted as such into the Union, pro-
vided, that said Act should not take effect until after a proclama-
tion of the President of the United States should be issued,
stating the fulfilment of the following condition, viz.,— the peo-
ple of the proposed State, by their Convention, were to insert in
the Constitution, in lieu of the compromise clause, the following
section : —

“ The children of slaves, born within the limits of the State
after the fourth of July, eighteen hundred and sixty-three, shall
be free; and all the slaves within the said State, who shall, at
the time aforesaid, be under the age of ten years, shall be free
when they arrive at the age of twenty-one years; and all slaves
over ten and under twenty-one years shall be free when they arrive
at the age of twenty-five years; and no slave shall be permitted
to come into the State for permanent residence therein.”

This provision was, by the Convention, on the 18th of Feb-
ruary, 1863, substituted for the one objected to by Congress, and
the Constitution, as thus amended, was thereupon submitted a
second time to the people for ratification or rejection. The elec-
tion for that purpose was held on the 26th of March, 1863, and
the result was that it was ratified by a very large majority. .

As required by the Act of Congress, this result having been
certified, under the hand of the President of the Convention, to
the President of the United States, the latter issued his procla- :
mation announcing the fact, and West Virginia, sixty days
thereafter, is supposed, according to the terms of the Act, to
have become a State in the Union.

§ 183. Whether the erection of West Virginia into a sepa-
rate State was a constitutional act or not, depends on the ques-
tion whether the so-called legislature of Virginia, which met at
Wheeling on the 6th of May, 1862, and passed the Act purport- -
ing to give the consent of Virginia to its own dismemberment,
WEST VIRGINIA CONVENTION OF 1861. 169

was, in law, the legislature of the State of Virginia. If it was
such, obviously the three conditions required by the Federal
Constitution, and by the principles of our political system, for
the valid dismemberment of a State, namely, the consent of the
legislature of the State concerned, of the Congress, and of the
inhabitants of the proposed new State, were all fulfilled.

That that legislature was the lawful legislature of Virginia is,
in my judgment, beyond question.

1. It should be observed, that the legal character of that body
is not to be determined by that of the Convention which called
it together or constituted it. In the initiation and in the pro-
ceedings of that Convention there was doubtless, if not a revo-
lutionary taint, at least an irregularity. But it is clear that an
institution or a form of government, ordained by a Revolutionary
Convention, may, by a formal ratification, or even by the acqui-
escence of the proper authority, become legal and valid! Were
not the General Assemblies established in the original thirteen
States, by their first Constitutions, regarded from the point of
view of “ United America,” legal Assemblies ?

§ 184. 2. Properly considered, then, even if judged by the
principles of public law alone, the question of thé legality of
the Virginia legislature is one of general and continuous recog-
nition as such. Under the Federal Constitution, while the ques-
tion is of the same nature, the scope of the recognition required
to stamp that legislature as legal is narrowed to that of the
United States. It is not necessary, in other words, that, to be
legal and valid, that legislature should present itself backed by
a major part of the citizens of the State. It is enough if it
show itself to be a branch of a de facto government, in force in
Virginia, and have upon its front the stamp of Federal recognition.

That this is a correct view of the case, follows from the de-
cision of the Supreme Court of the United States in the case
of Luther v. Borden, involving the legality of the so-called
“ People’s Constitution” and government of Rhode Island?

The fourth section of the fourth Article of the Constitution
of the United States provides, that “the United States shall

1 See § 179, ante. See also Am. Law Reg., Vol. I. new series, pp. 651-660,
case of Williamson v. Jones. é
2 7 How. (U.S.) R. 1. For a full account of the proceedings from which

this case arose, see post, §$ 226-228.
170 WEST VIRGINIA CONVENTION OF 1861.

guarantee to every State in this Union a republican form of
government, and shall protect each of them against invasion ;
and, on application of the legislature, or of the executive (when
the legislature cannot be convened), against domestic violence.”

The “people’s party,” constituting, as it was claimed, the
majority of all the adult male citizens of Rhode Island, having,
in defiance of the Charter government of that State, framed and
adopted a Constitution and form of government, and attempted
forcibly to put the same in operation, the question of the legality
of that Constitution and government, as against that existing
under the Charter of Charles II., came finally to be passed upon
by the Supreme Court of the United States, in the case referred
to. It appearing to the court, as a part of the history of the case,
that the Governor of Rhode Island, under the Charter govern-
ment, had applied to the President of the United States for the
protection guaranteed in the section specified, and that the Presi-
dent had promised the same, and made arrangements to call out
the militia to sustain the Charter government, should it become
necessary — thus, by an authentic act, recognizing such govern-
ment as lawful and valid — it was held, Judge Taney delivering
the opinion of the court, that this act of federal recognition, done
in pursuance of the Constitution and laws of the United States,
was decisive as to the legality of the Charter government, and
as to the illegality of that of the “ people’s party.”

The court say : —

“ Under this article of the Constitution” (Art. IV. Sec. 4),
“it rests with Congress to decide what government is the estab-
lished one in a State; for, as the United States guarantees to
each State a republican government, Congress must decide
what government is established in the State before it can deter-
mine whether it is republican or not; and when the senators
and representatives of a State are admitted into the councils of
the Union, the authority of the government under which they
are appointed, as well as its republican character, is recognized
by the proper constitutional authority, and its decision is bind-
ing on every other department of the government, and could not
be questioned in a judicial tribunal,

“ So, too, as relates to the clause of the Constitution, providing
for cases of domestic violence, it rested with Congress to deter-
mine upon the means proper to be adopted to fulfil this guar-
WEST VIRGINIA CONVENTION OF 1861. 171

antee. They might, if they had deemed it most advisable to
do so, have placed it in the power of a court to decide when
the contingency had happened which required the Federal Gov-
ernment to interfere. But Congress thought otherwise; and by
the Act of February 28, 1795, provided that, in case of an insur-
rection in any State against the government thereof, it shall be
lawful for the President of the United States, on application of
the legislature of such State, or of the executive (when the leg-
islature cannot be convened), to call forth such numbers of the
militia of any other State or States, as may be applied for, as he
may judge sufficient to suppress such insurrection. This power,
conferred upon the President by the Constitution and laws of
the United States, belongs to him exclusively. The President
has acted in the case of Rhode Island; not, it is true, by actu-
ally calling out the militia, on the application of the Governor
of Rhode Island, under the Charter government, but by recog-
nizing him as the executive of the State, by taking measures
to call out the militia to support his authority, if it should be
found necessary for the general government to interfere. This
interference by the President, by announcing his determination,
was as efficient as if the militia had been assembled under his
orders; it ought to be equally authoritative; and no court of
the United States would, knowing this decision, be justified in
recognizing the opposing party as the lawful government.” !

§ 185. Under whichever clause of the constitutional provision
the case of Virginia should be thought to come,” the conditions
necessary to bring it within the principles of this decision, were
fulfilled.

1. By the first clause, the United States are required to guar-
antee to every State in the Union a Republican form of govern-
ment. Such a guarantee involves an undertaking, first, that
some government, acting in harmony with that of the Union,

1 Luther v. Borden, 7 How. (U. 8.) R. 44.

2 Virginia, through her Governor, elected in pursuance of an Ordinance of
the Wheeling Convention, of June 11, 1861, formally demanded of the Presi-
dent the fulfilment of the Constitutional guarantee in her favor, and the Presi-
dent admitted the obligation, and promised his best efforts to fulfil it. See the
Ann. Cyclop. for 1861, Art. ‘Virginia, Western,” citing a letter of Attorney-Gen-
eral Bates. The call upon the President, instead of upon Congress, would indi-
vate that Virginia placed her case under the second clause of the Constitutional
guarantee. See § 184, ante, opinion of Judge Taney.
172 WEST VIRGINIA CONVENTION oF 1861.

shall be established in each State thereof; and, secondly, that
the government so established, shall conform to our general
republican scheme.

If, then, previously to the time when Congress passed the Act
admitting West Virginia into the Union, Virginia be regarded
either as having no legitimate government at all, or as having
one or more whose conformity to republican standards was de-
nied, Congress, by the very act of admitting into the Union a
new State, whose formation was necessarily based on the con-
sent of some Virginia legislature, recognized the consenting
legislature as part of a legal and valid government. Such a
recognition would be implied in that act. But it is not neces-
sary to rest the case upon an implied recognition. The Act
admitting West Virginia into the Union expressly refers to, and
recognizes as a lawful body, the legislature of Virginia in ques-
tion. In the preamble, there appears the following recital :—
« And whereas, the legislature of Virginia, by an Act passed on
the 13th day of May, 1862, did give its consent to the formation
of a new State within the jurisdiction of the said State of Vir-
ginia,” &c.

2. If, on the other hand, the case of Virginia be brought within
the latter elause of the constitutional provision, requiring the
United States to guarantee the States against domestic violence,
or against invasion, the repeated acts of the United States in
all its departments, recognizing the loyal government of Virginia
of which the legislature in question was a part, as an existing
State government, stamped that government and legislature as
legal and valid. For over four years after the establishment of
the loyal government of Virginia, the President of the United
States was engaged, in concert with that government, in ex-
pelling from her borders the rebel invaders — during two years
of that time, the senators and representatives of the new State
of West Virginia, founded upon its consent, as upon that of a
valid government, actually sitting in Congress.

For these reasons it is impossible to deny that the legislature
of Virginia in question was a lawful legislature. What has
been uniformly recognized as legal by the legislative and execu-"
tive branches of the United States government, by the Constitu-
tion and laws made the exclusive judges of that fact, and to
whose decision on the question, the Supreme Court of the United
CONVENTIONS TO FRAME CONSTITUTIONS 173

States admits itself bound to conform, must be set down as
legal.

§ 186. 2. The second variety of Conventions assembled since
the establishment of the Federal Constitution, consists of such
Conventions as have been called to frame Constitutions for new
States, to be formed out of territory of the United States, organ-
ized under its authority, or acquired in an organized condition
from foreign states.

For convenience, this variety may be subdivided into two
others, comprising —

(a). Such Conventions as have been assembled regularly, in
pursuance of enabling Acts of Congress; and

(b). Such as have been convened by the inhabitants, or the
temporary governments of organized Territories, irregularly, with-
out enabling Acts of Congress.

These will be considered in their order.

§ 187. (a.) Since the establishment of the Federal Constitu-
tion, in March, 1789, twenty-two new States have been formed
out of Federal territory, and admitted into the Union. Conven-
tions, concerned in framing Constitutions for fourteen of these
States, have been regularly assembled under the authority of
prior enabling Acts. These are those of Ohio, Louisiana, Indi-
ana, Mississippi, Illinois, Alabama, Missouri, Texas, the first of
the two Conventions of Wisconsin, that of Minnesota, the third
of the four Conventions of Kansas, the second of the two
Conventions of Nevada, the first of the three Conventions of
Nebraska, and the first of the three Conventions of Colorado.

Respecting these Conventions, a detailed statement of facts is
deemed unnecessary. I shall, therefore, confine myself to a brief
reference to the principles by which their regularity is to be
determined, and to a survey, equally brief, of the most general
facts that preceded their call and assembling.

According to the principles developed in the second chapter
of this treatise, the sovereign authority over the Territories,
whether organized or unorganized, resides in the people of the
_ United States; but while that is true, the exercise of this sov-
ereign authority has, by the Constitution of the Union, been
committed to the Congress of the United States. To these
principles, universally recognized, add this other, that it is only
- the sovereign political body, acting through its representatives,
by whom the Constitution of government existing in any State
174 FOR TERRITORIES OF THE UNITED STATES.

or Territory, can be changed or abolished, or the rights of terri.
tory or of jurisdiction belonging to such sovereign body, modi-
fied or abridged, and we have the key to the whole subject of
Conventions in the Territories of the United States. To be
legitimate, a Convention, called to erect a State out of Federal
territory, or to frame for it a Constitution, must have been
assembled with the knowledge and consent of Congress; to be
regular, it must have been called by a formal Act of that body;
and to give to the fruit of its labors any force or vigor whatever
as law, it must submit it to the same assembly, as the principal
depositary of the sovereign rights of the Union, for ratification
or rejection.

Tested by these principles, the Conventions that framed the
Constitutions under which the States above named were ad-
mitted into the Union, are believed to have been strictly regular
and legitimate.

The course of proceeding uniformly pursued in such cases
has been for the inhabitants of the Territory desiring to be
transformed into a State, or for some branch of the Territorial
government, to move the matter in Congress by petitions or
memorials, and then for Congress, if the erection of a State he
deemed proper and expedient, to pass an Act expressly author-
izing the assembling of a Convention of delegates to pass upon
the question of State organization, and, if that shouldbe de-
sired, to frame a Constitution. ‘

In all the Acts of this kind, commonly known as “ enabling
Acts,” conditions are imposed, upon compliance with which either
the proposed State is in advance declared to be admitted into the
Union, or the President is authorized to issue his proclamation
announcing such compliance, and declaring the State thereupon
to be admitted into the Union.

In nearly all the States embraced in this class, the final act,
following after the formation of the Constitution according to
the enabling Act, and the submission of the same to the judg-
ment of Congress, has been the passage by the latter of a for-
mal Act or resolution, reciting the proceedings of the Conven-
tion, and declaring, first, that the Constitution framed for the
proposed State is republican in form; and, secondly, that the
State is thereby admitted into the Union on a footing of
equality with the original States. In Missouri and Nevada, the
CONVENTIONS ASSEMBLED WITHOUT ENABLING ACTS. 175

final act was a proclamation by the President of the United
States, made in pursuance of a previous Act or resolution of
Congress.

§ 188. (2.) Belonging to the remaining variety of Conven-
tions concerned in framing Constitutions for new States to be
formed out of Federal territory, comprising such as have been
called irregularly, without enabling Acts of Congress, there
have been thirteen, assembled in twelve different States, namely,
—the Convention of Tennessee, held in 1796, the three Conven-
tions of Michigan, held in 1835 and 1836, those of Arkansas and
Florida, held respectively in 1836 and 18388, the two of Iowa of
1844 and 1846, that of Wisconsin of 1847,? that of California
of 1849, those of Kansas of 1855, 1857, and 1859, that of Ore-
gon, the first of the two Conventions of Nevada, and the second,
so-called, Convention of Nebraska, and the second and third
Convention of Colorado.

These various Conventions will be considered with some par-
ticularity, beginning with that of Tennessee, the first in point
of time.

Before entering, however, upon this examination, it will be use-
ful to bring into view certain deeds, Acts of Congress, and treaties,
whose provisions have been supposed to establish, if not the reg-
ularity of those Conventions, at least the essential rightfulness
of their proceedings, in attempting without the formal consent
of Congress, to erect their several Territories into States.

The Ordinance of 1787 for the government of the territory
lying northwest of the river Ohio, the most important of these
acts, provided substantially as follows: —

1 For the several enabling Acts in these cases, see 2 U. S. Stat. at Large,
178-175 ; id. 641-643 ; 3 do. 289-291 ; id. 428-480 ; id. 489-492; id. 546-548;
5 do. 797 ; 9 do. 56-58 ; 11 do. 166; id. 269-272; 18 do. 30; id. 32; id. 47;
18 do. 474 ; 19 do. 5.

2 The first Convention of Wisconsin, held in 1846, met in pursuance of an
enabling Act of Congress ; the Convention framed a Constitution, which, being
submitted to the people in April, 1847, was rejected. In the mean time, prob-
ably expecting that the people would adopt the Constitution, Congress, on the
8d of March, 1847, passed an Act admitting the State into the Union, upon con-
dition that the Constitution should be ratified by the people. The rejection by
the people left the Territory without a Constitution, and outside the Union.
Whether it left it with an enabling Act for a second Convention is, in my judg-
ment, doubtful. I have accordingly classed the second Convention, called by
the Legislative Assembly of Wisconsin in October, 1847, to meet in the follow-
ing December, by which the present Constitution of the State was framed, with
those called without enabling Acts.
176 CONVENTIONS ASSEMBLED WITHOUT ENABLING ACTS.

After dividing the territory northwest of the Ohio, now con-
stituting the five States of Ohio, Indiana, Illinois, Michigan,
and Wisconsin, into three prospective States, by lines corre-
sponding in the main with the east and west boundaries of
Ohio, Indiana, and Illinois, but extending to the Canadian
frontier, with a proviso that they might, if Congress should
deem it expedient, be made into five States, the Ordinance pro-
ceeds: —“ And whenever any of the said States shall have
sixty thousand free inhabitants therein, such State shall be
admitted, by its delegates, into the Congress of the United
States, on an equal footing with the original States in all re-
spects whatever, and shall be at liberty to form a permanent
Constitution and State government: Provided, The Constitu-
tion and government so to be formed shall be republican, and in
conformity to the principles contained in these articles, and so
far as it can be consistent with the general interest of the Con-
federacy, such admission shall be allowed at an earlier period,
and when there may be a less number of free inhabitants in the
State than sixty thousand.”

The provisions of this Ordinance, framed under the Confeder- .
ation, were continued in force after the adoption of the present
Constitution of the United States, by an Act of the first Con-
gress, that met under the latter.

Whatever rights, therefore, were secured by this Ordinance,
belonged equally to the three States, or the five States, as the
case might be, into which the territory covered by it should be
divided.

The territory now known as the State of Tennessee was ceded
to the United States by the State of North Carolina, of whose
territory it had previously formed a part. The cession was not
absolute, but was made upon certain conditions, afterward ac-
cepted by the United States, as will be more fully explained
hereafter,! the purpose of which was to guarantee to the inhab-
itants of the ceded district the same rights secured by the Ordi-
nance of 1787 to the inhabitants of the territory northwest of
the river Ohio.

§ 189. The States of Arkansas, Iowa, Kansas, and Nebraska
were framed out of territory acquired by the United States from
France by the treaty of April 30, 1803, the third article of which
contained the following provision :—

1 See § 191, post.
CONVENTIONS ASSEMBLED WITHOUT ENABLING ACTS. 177

“ The inhabitants of the ceded territory shall be incorporated
in the Union of the United States, and admitted as soon as
possible, according to the principles of the Federal Constitution,
to the enjoyment of all the rights, advantages, and immunities
of citizens of the United States.”!

In like manner, by the treaty of February 22, 1819, between
the United States and his Catholic Majesty, the King of Spain,
by which the territory known as East and West Florida was
ceded by the latter to the former, it was provided as follows :—

“ Article VI. The inhabitants of the territory which his Cath-
olic Majesty cedes to the United States by this treaty, shall be
incorporated in the Union of the United States, as soon as may
be consistent with the principles of the Federal Constitution,
and admitted to the enjoyment of all the privileges, rights, and
immunities of citizens of the United States.” ?

Finally, by the treaty between the United States and Mexico
of February 2, 1848, by which the former acquired California
and New Mexico, it was stipulated on behalf of the inhabitants
of the ceded territories, Article IX., as follows : —

“© Mexicans who, in the territories aforesaid, shall not preserve
the character of citizens of the Mexican Republic, conformably
with what is stipulated in the preceding article, shall be incor-
porated into the Union of the United States, and be admitted
at the proper time (to be judged of by the Congress of the
United States) to the enjoyment of all the rights of citizens of
the United States, according to the principles of the Constitu-
tion,” &c.3

Covered by the provisions of this treaty were the States of
California, Nevada, and Colorado, not to mention the Territories
carved out of the ceded Mexican territory, but not yet admitted
into the Union, — Utah, New Mexico, and Arizona.

The title of the United States to the original territory of Ore-
gon having accrued to it by virtue of prior discovery and settle-
ment, no conditions of any kind were attached to it.‘

Thus, of the Territories comprised in the list now under con-
sideration, which have proceeded irregularly to form themselves

1 U.S. Stat. at Large, Vol. VIII. pp. 200-202.
2 Id. pp. 252-258. 3 Do, Vol. IX. pp. 922-930.

4 See Jefferson’s Works, ed. of 1854, Vol. VII. p. 51, letter from Jefferson to Mr.
Mellish.
178 TENNESSEE AS A PART OF NORTH CAROLINA.

into States, all, except Oregon, were acquired by the United
States under deeds or treaties of cession containing stipulations
binding the latter to admit them sooner or later into the Union,
either when they should have come to have a population of sixty
thousand free inhabitants, or as soon as it should be consistent
with the principles of the Federal Constitution. The handle
made of these stipulations will be seen when we come to con-
sider the Conventions of the States named, separately, to which
I now pass, beginning with that of the State of Tennessee.

§ 190. The early history of Tennessee was, in many respects,
similar to that of Kentucky, detailed in previous sections’ Orig-
inally a part of North Carolina, the difficulties experienced by
the latter in defending her, or even in administering government
over her, led to such neglect, that early in the course of the war
with England, Tennessee had set up an independent government,
in defiance of the parent State, called herself the State of Frank-
land, elected a governor and other State officers, and prepared by
arms to maintain her independent position. This rebellion was
quelled, but the causes of it still operated, and finally resulted,
after a series of transitions, about to be explained, in the admis-
sion of the district into the Union as the State of Tennessee.

The first act of importance in her history, after the suppres-
sion of the State of Frankland, was the passage by the legisla-
ture of North Carolina of an Act proposing, upon certain con-
ditions, the cession to the United States of her western territory,
now known as Tennessee — the motives leading to the cession
being in the preamble declared to be, the repeated and earnest
recommendation of Congress, made with a view to the pay-
meni of the public debts and to the establishing of the harmuny
of the United States, and the desire of the inhabitants of such
Western territory, that the cession should be made, “in order
to obtain a more ample protection than they have heretofore
received.” Amongst the conditions of this proposed cession,
the fourth, and, for our purpose, the most important, was as
follows : — Provided, “ That the territory so ceded shall be laid
out and formed into a State or States, containing a suitable extent
of territory, the inhabitants of which shall enjoy all the privi-
leges, benefits, and advantages set forth in the Ordinance of
the late Congress for the government of the western territory
of the United States.” *

1 See ante, §§ 173, 174. 2 U.S. Stat. at Large, Vol. I. pp. 106-109.
CESSION OF TENNESSEE TO THE UNITED STATES. 179

By the same Act, the senators of the State of North Carolina,
in Congress, were required to execute a deed of cession of the
said territory, upon the conditions therein expressed, which was
done, by a deed bearing date the 25th of February, 1790.

§ 191. A few days after the execution of the deed of cession,
an Act was passed by Congress, approved April 2d, 1790, accept-
ing the cession upon the conditions imposed In May of the
sane year, Congress passed a second Act, for the government
of the ceded territory, providing, that it should constitute a single
district; that the inhabitants should enjoy all the privileges, bene-
fits, and advantages set forth in the Ordinance of the late Con-
gress for the government of the territory northwest of the Ohio;
and that the government of said territory should be similar to
that which was then exercised,” &c., &c.?

It is important now to note the provisions of the “ Ordinance
of the late Congress,” thus variously designated as passed for
the government of “the Western territory of the United States,”
and of “the territory Northwest of the Ohio,” commonly known
as “the Ordinance of 1787,” so far as those provisions have a
bearing on the construction of the deed of cession. That Ordi-
nance, in the 5th Article of the part of it styled “the Compact,”
after providing for the division of the territory, covered by it,
into not less than three nor more than five States, prescribes,
that “ Whenever any of the said States shall have sixty thousand
free inhabitants therein, such State shall be admitted, by its dele-
gates, into the Congress of the United States, on an equal foot-
ing with the original States in all respects whatever, and shall
be at liberty to form a permanent Constitution and State gov-
ernment; provided, the Constitution and government, so to be
formed, shall be republican, and in conformity to the principles
contained in these articles, and, so far as it can be consistent
with the general interest of the Confederacy, such admission
shall be allowed at an earlier period, and when there may be a
less number of free inhabitants in the State than sixty thousand.”

This Ordinance, though adopted before the establishment of
the Federal Constitution, and so, perhaps, in effect, repealed by
that Act, was afterwards expressly revived by the Congress
under the new Constitution, without any changes, except merely

1 7. S. Stat. at Large, Vol. I. pp. 106-109. 2 Td. p. 1238.
180 TENNESSEE CONVENTION OF 1796.

such as were necessary to adapt it to the altered state of things,
The right of admission into the Union, therefore, guaranteed by
this Ordinance to the inhabitants of the territory northwest of
the Ohio, was, by the effect of the deed of cession and of the
Act of Congress accepting the same, incorporated into that deed,
and became the right of the inhabitants of the Tennessee terri-
tory.

§ 192. The question whether the territory, thus ceded, should
form one or more than one State, being left undecided, so that
it could not be known when the contingency of there being
sixty thousand free inhabitants, within the meaning of Congress,
had happened, there was evidently room for a disagreement be-
tween that body and the Territory, or some portion of it, claim-
ing admission into the Union as its right under the deed of
cession. Such a disagreement actually arose, and was followed
by a protracted and angry controversy, of which the effects are
not entirely unfelt to this day.

§ 193,. In July, 1795, the Territorial legislature of Tennessee
ordered a census of the whole Territory to be taken, for the pur-
pose of ascertaining whether there was the requisite number of
inhabitants to entitle her to admission into the Union, according
to the Ordinance of 1787 and the deed of cession. The Act
for this purpose provided, that “if it should appear that there
were sixty thousand inhabitants, counting the whole of the free
persons, including those bound to service for a term of years,
and excluding Indians not taxed, and adding three-fifths of all
other persons, the Governor be authorized and requested to rec-
ommend to the people of the respective counties, to elect five
persons for each county to represent them in Convention, to
meet at Knoxville, at such’ time as he shall judge proper, for the
purpose of forming a Constitution or permanent form of govern-
ment.” 2

The census was taken in the autumn of 1795, and the result
was, that there were declared to be 77,262 inhabitants, of whom
10,613 were slaves. In November, 1795, the Governor announced
this result, and, in pursuance of the Act for that purpose, called
on the people to elect delegates to a Convention to frame a Con-

11 U.S. Stat. at Large, p. 50. That the adoption of the present Constitution
did repeal the Ordinance, has been expressly held by the Supreme Court of the

United States. Strader v. Graham, 10 How. (U. 8.) R. 82.
2 Parton’s Life of Andrew Jackson, Vol. 1. pp. 169, 170.
TENNESSEE CONVENTION OF 1796. 181

stitution, to meet at Knoxville on the 11th of January, 1796.
Accordingly, a Convention was elected, and met there on that
day, consisting of fifty-five members, five from each of the
eleven counties, and, on the 6th of February following, adopted
the first Constitution of Tennessee. A copy of this Constitu-
tion was, on the 19th of the same month, forwarded by the Gov-
ernor of the Territory to the President of the United States, with
a notification that on the 28th of March, at which time the
General Assembly of the State of Tennessee would meet to
act on the Constitution, the temporary government established
by the Congress would cease. This copy and notification, with
accompanying documents, were received by President Washing-
ton on the 28th of February, and by him were, on the 8th of April,
communicated to Congress. The claim of Tennessee to admis-
sion, based upon the provisions of the Ordinance of 1787, did
not receive from that body a ready or an unquestioned assent.
After an energetic discussion, however, an Act for the admission
of the State was, on the 6th of May, 1796, passed by a vote of
43 to 30, and was approved by the President on the first of June
following, to take effect immediately.

§ 194. The grounds of the opposition, which, in the Senate
especially. was strenuous, were briefly as follows: That the
compact, under which admission was claimed, was capable of
two constructions: one, that so soon as sixty thousand free
inhabitants should be collected within the Territory, they should
be entitled to a place in tie Union as an independent State ;
the other, that Congress must first lay off the territory into one
or more States, according to a just discretion, defining the same
by bounds and limits; and that the admission of the States
thus defined should take place as their population respectively
amounted to the number of free inhabitants mentioned; that
is, that the sixty thousand could not claim admission into the
Union, unless they were comprised within a State whose terri-
torial limits had been previously ascertained by an Act of Con-
gress; that the latter construction was the preferable one, be-
cause it was conformable not only to the spirit, but to the letter
of the Ordinance and deed of cession, which contemplated the
erection of Tennessee into “one or more States,’ as Congress
might determine; that the Territory of Tennessee had no other
or greater rights than had the Territories northwest of the Ohio.
182 TENNESSEE CONVENTION OF 1796.

for whom the ordinance had been expressly enacted ; and 1t could
not be pretended that the latter would be entitled to admission
into the Union as one State so soon as their population should
amount to sixty thousand, because the Ordinance itself divided:
that country into three separate and distinct States, each of
which must contain sixty thousand free inhabitants before it
could claim to be received; that the action of Congress upon
the question now would be regarded and followed hereafter as
a precedent, and hence it was of the utmost importance that no
sanction should be given to any proposition which expressly or
even impliedly admitted that the people inhabiting either of the
territories of the United States could, at their own mere will
and pleasure, and without the declared consent of Congress,
erect themselves into a separate and independent State; that
the provision of the Ordinance relating to the admission of new
States, when there should be sixty thousand free inhabitants
within their respective limits, evidently contemplated the taking
of a census, and as Congress were to act upon the result of such
census, it was more proper that it should be taken in pursuance
of its own order than by that of a community whom interest
might lead to exaggerate its numbers, and whose report, there-
fore, if accurate, would be received with distrust; and, finally,
that there was reason to doubt the accuracy of the count taken
by the territorial government, since its orders required the sher-
iffs of the several counties to include in their enumeration all
persons within their respective limits within the period allowed
tor making it, which was two months; hence, that the same
men might have been counted in several counties, nay, in every
county in the Territory, and that without any intentional frand

§ 195. On the other hand, the friends of the bill contended,
that the people of Tennessee became, ipso facto, a State, the
moment they numbered sixty thousand free inhabitants, and
that it became the duty of Congress, as part of the original
compact, made at the time the Territory was ceded to the United
States, to recognize them as such, and to admit them into the
Union, whenever satisfactory proof was furnished to them of
that fact; that, to the objections, that, previously to the proof of
that fact being given, it was necessary that Congress should

\ Benton’s Abr, Deb. in Cong., Vol. I. pp. 754-759; Id. Vol. XIL p. 751. See
also Scott v. Jones, 5 How. (U. S.) R. 373.
TENNESSEE CONVENTION OF 1796. 183

have laid out and formed that territory into “one or more
States,” and that the proof of their number should have been
given under direction and by order of Congress, the people being
incompetent to give that proof themselves, it was a sufficient
answer that both those objections supposed a construction of
the Ordinance of 1787 and of the deed of cession, which was
inadmissible, since it rendered that compact binding upon one
party and not upon the other; that it was absurd to suppose
that that Ordinance, whose object it was to establish the princi-
ples of a free government, and to determine with certainty the
conditions of the admission of new States into the Union, had
made the time when those people were to enjoy that govern-
ment and be admitted as a member of the Union depend, not
on the contingency of their having sixty thousand free inhab-
itants, but on certain Acts of Congress; in other words, on the
sole will of Congress; that either it must be conceded that their
admission depended solely on the condition of the compact
being fulfilled, to wit, their having the population required, or
it must be declared that it rested on another act, which might
be done or refused by the other party ; that, as to the return of
the number of inhabitants, no mode had been fixed by the com-
pact how that number should be determined, but, as by the Acts
of Congress establishing temporary governments in the territory
affected by the Ordinance of 1787, whenever they should have
respectively five thousand inhabitants, the governors of the Ter-
ritories were especially authorized to cause the enumeration to
be made, there could be no doubt the same course was to be
pursued with respect to their qualifications for becoming mem-
bers of the Union; that, at most, it was merely a question of
evidence; and, if no mode had been presented for taking the
enumeration, it only made it more difficult for Congress or the
territory to be satisfied of the fact of their having the requisite
number, but that it could not affect the right; that, instead of
caviling at the mode of proof, Congress ought to address itself
to the task of weighing the evidence which the parties interested
had collected and brought forward; that it would be well to
consider the consequences of refusing, at that time and under
those circumstances, to receive Tennessee into the Union; that,
if it was desired to establish a temporary government there, it
was doubtful whether that could be accomplished for the peo-
184 TENNESSEE CONVENTION OF 1796.

ple believed that in changing their government they only exer-
cised a right which had been secured to them by a sacred
compact, and, under that belief, they would be disposed to
defend it.

§ 196. Respecting the illegitimacy of the first Tennessee Con-
vention, there can be, in my judgment, no doubt. Saying noth-
ing of the possible inaccuracy or falsification of the census, in
fact, the cardinal objection remains, that one of the two parties
expected to act officially upon the result of it, could not know
that it was not fraudulent. It was taken by that one of the two
parties which was alone interested to make the enumeration as
great as possible. The probability of an honest count would
have been much greater had it been made under the direction
and superintendence of Congress.

Again: The Convention was called without an enabling Act
of the body in whom was lodged, practically, the sovereignty of
the Union, so far as relates to the Territories, — the Congress
of the United States. The purpose of that Convention was
to initiate a change in the mode and instrumentalities in and
through which the sovereign body of the Union should exercise
over the Territory of Tennessee its rights of sovereignty; that is,
a change which should divest Congress of its jurisdiction to
make local laws for the Territory, and give that power to a polit-
ical organization, to be erected within the latter by the people
thereof. Such a change involved the exercise of sovereignty,
and could be effected only by the interposition of the sovereign
body acting through some one of its recognized agents, forming
the government of the Union.?

§ 197. Moreover, the argument of those who favored the ad-
mission of Tennessee, to the effect that, the right at some time
to be admitted into the Union being conceded, the Territory
would be legally justifiable in forcing her way into the Union,
if Congress should neglect to take steps to admit her, whenever
the right should have in fact accrued, is wholly unfounded. Un-
doubtedly, if Congress were, without good cause, to refuse, upon
any conditions, to admit a Territory entitled to admission, such
refusal would be an abuse of power, and if persevered in to a
sufficient length, might justify or necessitate a revolution. But

1 Benton’s Abr. Deb. in Cong., Vol. 1. pp. 754-759.

2 See opinion of McLean, J., in Scott v. Jones, Lessee, &., 5 How. (U. S.) R.
380-382.
MICHIGAN CONVENTION OF 1835: 185

the right to admit involves the right to refuse to admit, at least,
within certain limits, as, until prescribed conditions are not only
in fact fulfilled, but can be ascertained to have been fulfilled.
Whether a Territory shall be admitted or not, is largely a ques-
tion of expediency with reference to the national interests, and
of that expediency the national legislature is, by the Federal
Constitution, made the exclusive judge. In exercising its dis-
cretion, that body might act ignorantly or factiously, but it
could hardly be said to act unconstitutionally ; and no Territory
could be justified, on constitutional grounds, in resorting to force,
or to methods that involve it, to accelerate or reverse its decis-
ion. If, in the face of the dissent, or without the express initia-
tive, of the Congress of the United States, a Territory were to
proceed to frame— much more to establish —a State govern-
ment, it would place itself outside the pale of the law, and
invoke the methods and the forces of revolution.

For these reasons, I deem the first Convention of Tennessee
legally without warrant or justification, and therefore revolu-
tionary. And the argument is not affected by the fact that the
action of that body was finally acquiesced in by Congress. The
acquiescence of Congress might legitimate the Constitution, but
could not remove from the body which framed it the revolution-
ary taint imparted to it in its inception. The only conclusion
properly deducible from the acquiescence of Congress would be
that, having the right to strangle the child, as illegitimate, it had
seen fit to forego the exercise of that right, preferring, rather, on
the whole, to receive it into the household, and confer upon it
the privileges of offspring lawfully begotten.

§ 198. The people of the Territory of Michigan having, in
1832, by a vote of a decided majority, determined to apply for ad-
mission into the Union, the Legislative Council of the Territory,
at their next succeeding session, memorialized Congress on the
subject. A bill was accordingly reported, in February, 1833,
for an enabling Act for that purpose; but, owing to the opposi-
tion of Ohio, growing out of disputes about boundaries, the bill
was not passed. On the 6th of September, 1834, the Legislative
Council of Michigan passed an Act, on the’ suggestion of the
acting Governor of the Territory, Stevens L. Mason, providing
for taking “a census of the inhabitants of the Peninsula, as well
186 MICHIGAN CONVENTION OF 1835.

as of those west of Lake Michigan,” with a view, if the popu-
lation should be found sufficient, to take steps for the erection
of a State out of said Territory. The result of the census was,
that there were found to be within the limits of the Territory,
eighty-seven thousand two hundred and seventy-three free in-
habitants. Thereupon, the same body, on the 26th of January,
1835, passed an Act, entitled, “ An Act to enable the People of
Michigan to form a Constitution and State Government,” in
pursuance of which delegates were elected, and met in Conven-
tion at Detroit on the 11th of May, 1835. By this Convention
a Constitution was framed and submitted to the people for
adoption or rejection, at an election held on the 5th of October
following, when it was ratified by a decisive vote of over five to
one, and thereupon a State government in all its departments
was organized.

By section 10 of the Schedule appended to the Constitution,
it was made the duty of the President of the Convention, in
case of its ratification, to transmit a copy of it, together with
copies of the Act of the Legislative Council calling the Conven-
tion, and of so much of the census of the Territory as should
exhibit the number of free inhabitants in the portion thereof
comprised within the limits of the proposed State, to the Presi-
dent of the United States, with a request for admission into the
Union. The limits of the State, as prescribed by the Legis-
lative Council in its Act calling the Convention, as well as by
the Convention, embraced a strip of territory now belonging to
the State of Ohio, being so much of that State as lies between
its north line, as at present established, and an east and west
line, running through the southerly point of Lake Michigan. It
should be also noted that the proposed State did not embrace
the whole of the Territory of Michigan, as established by the
Acts of Congress of January 11, 1805, and April 18, 1818, but
only that part of the Territory lying between the Lakes Michi-
gan and Huron, extending south as far as to an east and west
line running through the southerly point of Lake Michigan —
thus cutting off that large tract forming a part of the Michigan
Territory, which afterwards constituted the Wisconsin Territory.

§ 199. On the 9th of December, 1835, in the first week of the
session, President Jackson called the attention of Congress to
MICHIGAN CONVENTION OF 1835. 187

the application of Michigan for admission, in a special message,
in which, without expressing any opinion on its merits, he based
the claim of that State upon the provision of the Ordinance of
1787, above referred to. The matter coming up for considera-
tion, objection was made to the admission with the boundaries
specified in the Constitution, and exception was taken to the
irregular proceedings of the Legislative Council in calling the
Convention without the authorization of Congress.! A bill,
however, was finally carried, admitting the State into the Union,
but requiring a modification of its boundaries. By this Act, en-
titled, “ An Act to establish the Northern Boundary Line of the
State of Ohio, and to provide for the admission of the State of
Michigan into the Union, upon the conditions therein expressed,”
approved June 15, 1836, it was provided, as follows : —

“That the Constitution and State government which the
people of Michigan have formed for themselves be, and the
same is hereby, accepted, ratified, and confirmed, and that the
State of Michigan is hereby admitted into the Union. .
Provided always, and this admission is upon the express condi-
tion, that the said State shall consist of, and have jurisdiction
over, all the territory included within the following boundaries,
and over none other, to wit ”(setting forth the boundaries). The
Act then provided as follows :—

' The subject was specially called to the attention of the Senate by a me-
morial from ‘the Senate and House of Representatives of the State of Michi-
gan,” relating to the right to be admitted into the Union. On motion of Mr.
Hendricks, of Indiana, this memorial was refused, accompanied by a declara-
tion ‘“ that the Senate regard the same in no other light than as the voluntary
act of private individuals.” Mr. Ruggles, of Maine, moved to strike out this
declaration ; and, on the yeas and nays, his motion was rejected by a vote of
30 to 12. Thus the Senate solemnly determined that the so-called “ Legislature
of Michigan” was a mere assembly of private individuals. Again, the bill for
the admission of Michigan into the Union, when first reported by the committee,
provided, that the assent to the boundaries of the State, required by the third
section, should be given by their senators and representatives in Congress, and
by the legislature of the State. Senator Wright, of New York, moved to strike
out this provision, and to insert in its stead, that the assent required should be
given by “a Convention of delegates elected by the people of the said State for
the sole purpose of giving the assent herein required.” This motion was car-
ried by an unanimous vote of the Senate, — again indicating the opinion of
that body, that the so-called State organization was a nullity, and its supposed
officers and representatives entitled to no consideration. See Speech of James
Buchanan, in Benton’s Abr. Deb. in Cong., Vol. XIII. p. 80.
.

188 MICHIGAN CONVENTIONS OF 1886.

“ Sec. 3. And be it further enacted, that, as a compliance
with the fundamental condition of admission contained in the
last preceding section of this Act, the boundaries of the said
State of Michigan, as in that section described, declared and
established, shall receive the assent of a Convention of delegates
elected by the people of the said State, for the sole purpose of
giving the assent herein required.” 4

It then made it the duty of the President of the United
States, as soon as such assent should have been given, to an-
nounce the same by proclamation, whereupon the admission of
the State into the Union was to be complete.

By this Act, it will be observed, no mode was specified in
which the Convention to pass upon the condition should be
called. One, however, was elected, in pursuance of an Act
passed July 25, 1836, by the State legislature, as organized
under the Constitution. This Convention met on the 26th of
September following, and rejected the condition imposed by
Congress, on the ground that that body had no right to annex
such a condition to the admission of the State into the Union,
according to the terms of the Ordinance of 1787, and communi-
cated its dissent to the President of the United States.

Public opinion, however, being much divided upon the ques-
tion, subsequently a new Convention,? composed of delegates
elected by a spontaneous movement of those who favored ad-
mission on the terms proposed by Congress, was called on the
14th of December, 1836, by which the condition was declared
accepted. By information gathered subsequently to its adjourn-
ment, it was made to appear probable that from 5000 to 6000
votes for members of this latter Convention had been cast at the
first election for those who had opposed the acceptance of the
condition in the former Convention, and from 8000 to 9000 in
favor of those who urged the acceptance of the same. Such
was the evidence that Michigan had complied with the funda-
mental condition imposed by Congress.

§ 200. The action of this Convention having been immedi-
ately communicated to the President of the United States, that
officer, on the 26th of the same month— December, 1836— sent
a message, with accompanying documents, to the Senate, em-

1 U.S. Stat. at Large, Vol. V. pp. 49, 50.
2 Derizively called “ the frost-bitten convention.”
ACTION OF CONGRESS ON THE ADMISSION OF MICHIGAN. 189

bodying the request of Michigan for admission into the Union,
and committing the whole matter to the judgment of Congress;
the President at the same time stating, that had the information
communicated arrived during the recess of Congress, he would
have issued his proclamation declaring the State admitted into
the Union, since, in his opinion, she had complied with the
requisite terms of admission. This message being referred to
the Committee on the Judiciary, a bill was reported to the Sen-
ate for the admission of the State into the Union, of which the
preamble was as follows :—

“ Whereas, in pursuance of the Act of Congress of June the
fifteenth, eighteen hundred and thirty-six, entitled ‘ An Act to
establish the Northern Boundary Line of the State of Ohio, and
to provide for the Admission of the State of Michigan into the
Union,’ a Convention of delegates, elected by the people of the
said State of Michigan for the sole purpose of giving their
assent to the boundaries of the said State of Michigan, as de-
scribed, declared, and established in and by the said Act, did, on
the fifteenth of December, eighteen hundred and thirty-six, as-
sent to the provisions of said Act,” enacts that said State be
admitted, &ec.

As a prelude to the discussion of this bill, Mr. Morris, Senator
from Ohio, moved to strike out this preamble, as asserting what
was not the fact, namely, that the Convention, which undertook
to assent to the change of boundaries required by Congress, was
a legal Convention; which motion he afterwards varied by
moving an amendment to the preamble, recapitulating the pro-
ceedings in Michigan under the Act of June 15, 1836, but. ex-
pressing or implying no opinion as to the validity of the Con-
vention. The result of the discussion was, that the bill, as
modified by him, was finally passed and approved January 26,
1837, and the State thereby admitted into the Union.!

§ 201. Tested by the canons laid down in previous sections
of this chapter, it is easy to see that neither of the three Con-
ventions concerned in the formation of Michigan into a State
was regular, or, strictly speaking, legitimate. But there was,
nevertheless, a difference between them in respect of the de-
grees of their. irregularity, the first and third being far more
obnoxious to exception than the second.

1 U.S. Stat. at Large, Vol. V. p. 144.
190 CHARACTER OF THE MICHIGAN CONVENTIONS OF 1885-6.

The first Michigan Convention — that by which the Constitu-
tion under which the State finally became a member of the
Union was in the main framed — was an illegitimate body, be-
cause called by the Territorial legislature, not only without the
authorization of Congress, but implicitly, at least, against its
will As we have seen, the people of the Territory had for sev-
eral years been endeavoring, unsuccessfully, to procure the pas-
sage by Congress of an enabling Act, permitting the erection
of the Territory into a State. What Congress, which alone had
jurisdiction to act in the matter, had refused to permit, obvi-
ously could not be done but in derogation and defiance of its
authority.

§ 202. The second Convention, assembled under the Act of
Congress of June 15, 1836, was irregular, as having been called,
not without an apparent authorization of Congress, but by an
unauthorized and unconstitutional body within the Territory, the
so-called State legislature. The Act of January 15, 1836, as we
have seen, admitted the Territory into the Union, “on condition
that a Convention, specially called for the purpose,’ should
assent to the boundaries thereby prescribed. ‘There being no
specification of the body by which the Convention should be
called, the question as to the body intended, or most proper, to
perform the duty, was one of presumptions. There were in the
Territory two bodies which might be conceived to be authorized
to perform it: first, the Legislative Council, the proper law-mak-
ing power of the Territory, elected under the authority of Con-
gress; the body by which the Convention had been called that
had framed the State Constitution, referred to in the Act; and,
secondly, the body elected under the new Constitution, and
denominated the State legislature — an assemblage of men
unknown to the only laws in force in the Territory, those of Con-
gress; and not only so, but so far antagonistic to Congress itself,
that if the former had any validity whatever, as a local legisla-
ture for the Territory, the latter bad absolutely none; the juris-
dictions of the two being exclusive of each other, Under these
circumstances, it is clear, that when Congress prescribed the
calling of a Convention to do an act which was to impart it-
first and only vitality to the State organization, it did not intend

1 See post, § 209, note, Opinion of Attorney-General of the United States.
CHARACTER OF THE MICHIGAN CONVENTIONS OF 1835-6. 141

to call upon a member of that embryo organization to initiate
such Convention ; but rather upon the legislative branch of the
Territorial government, created by itself, in the enjoyment of all
its functions, and in every way qualified to perform the duty.

§ 203. The third Convention, got together by a spontaneous
movement of the people, to reverse the action of the second,
was, if possible, the least regular, the most distinctly illegitimate,
of the three. It was a body resting on the authority neither of
Congress, the Legislative Council of the Territory, nor the sup-
posed State legislature, but on that of individuals only, acting
outside of the law. Under an established Territorial government,
such a body would be revolutionary, even if resting on the vote
of every inhabitant of the Territory, since no assemblage of citi-
zens could have power to speak in the name of such govern-
ment, much less in that of Congress, unless specifically author-
ized by law. The Act of July 15, 1836, requiring a Convention
to be called, furnished no such authorization. That it did not,
was implicitly admitted by the public men and citizens generally
of Michigan, since, in pursuance of it, they first proceeded to
call such Convention through the State legislature, and only
had recourse to the action of irresponsible caucuses, when the
Convention called by the legislature had refused its assent to
the condition of admission imposed by Congress.

§ 204. Enough has, perhaps, been said to show the true char-
acter of the third Michigan Convention, but the question of its
regularity is so important, that I venture to borrow somewhat
freely from the speeches of senators of the United States, made
in the course of the discussion of the final bill for the admis-
sion of Michigan into the Union.

After rehearsing the facts relating to the three Conventions,
substantially as detailed above, the Hon. John C. Calhoun said : —

“Such are the facts out of which grows the important ques-
tion, — Had this self-constituted assembly” (the third Conven-
tion) “the authority to assent for the State? Had they the
authority to do what is implied in giving assent to the condition
of admission? That assent introduces the State into the Union,
and pledges in the most solemn manner to the constitutional
compact, which binds these States in: one confederated body ;
:mposes on her all its obligations, and confers on her all its bene-
192 CHARACTER OF THE MICHIGAN CONVENTIONS OF 1835-6.

fits. Had this irregular, self-constituted assemblage the authority
to perform these high and solemn acts of sovereignty in the name
of the State of Michigan? She could only come in as a State;
and none could act or speak for her without her express author-
ity; and to assume the authority without her sanction, is nothing
short of high treason against the State.

“ Again; the assent to the conditions prescribed by Congress
implies an authority in those who gave it to supersede in part
the Constitution of the State of Michigan; for her Constitution
fixes the boundaries of the State as part of that instrument
which the condition of admission entirely alters, and to that ex-
tent the assent would supersede the Constitution; and thus the
question is presented, whether this self-constituted assembly,
styling itself a Convention, had the authority to do an act which
necessarily implies the right to supersede in part the Constitu-
tion. But, further: the State of Michigan, through its legis-
Jature, authorized a Convention of the people, in order to deter-
mine whether the condition of admission should be assented to
or not. The Convention met; and, after mature deliberation,
it dissented to the condition of admission; and thus again the
question is presented, whether this self-called, self-constituted
assemblage, this caucus — for it is entitled to no higher name —
had the authority to annul the dissent of the State, solemnly
given by a Convention of the people, regularly convoked under
the express authority of the constituted authorities of the
State ?1

“Tf all, or any of these questions,” he continued, “be an-
swered in the negative; if the self-created assemblage of
December had no authority to speak in the name of Michigan;
if none to supersede any portion of her Constitution; if
none to annul her dissent to the condition of admission regu-
larly given by a Convention of the people of the State, convoked
by the authority of the people of the State, to introduce her on
its authority would be not only revolutionary and dangerous,
but utterly repugnant to the principles of our Constitution.

1 Mr. Calhoun, in this speech, commits the error of’ supposing the second Con-
vention, called by the so-called State legislature, to be regular. It has already
been seen, that this was certainly not so, and it will be shown in a subsequent
section, on high constitutional authority, that the position assumed on that sul-
ject, in previous sections, is the true one. See § 208, post.
CHARACTER OF THE MICHIGAN CONVENTIONS oF 1835-6. 193

The question then submitted to the Senate is, had that assem-
blage the authority to perform these high and solemn acts?

“The chairman of the Committee on the Judiciary holds that
this self-constituted assemblage had the authority ; and what is
his reason? Why, truly, because a greater number of votes
were given for those who constituted that assemblage than for
those who constituted the Convention of the people of the State,
convened under its constituted authorities. This argument re-
solves itself into two questions: the first, of fact, and the second,
of principle. I shall not discuss the first..... I come to the
question of the principle involved; and what is it? The argu-
ment is, that a greater number voted for the last Convention
than for the first, and, therefore, the acts of the last, of right,
abrogated those of the first; in other words, that mere numbers,
without regard to the forms of law or the principles of the Con-
stitution, give authority. The authority of numbers, according
to this argument, sets aside the authority of law and the Con-
stitution. Need I show that such a principle goes to the entire
overthrow of our Constitutional government, and would subvert
all social order? It is the identical principle which prompted
the late revolutionary and anarchical movement in Maryland,!
and which has done more to shake confidence in our system of
government than any event since the adoption of our Constitu-
tion; but which, happily, has been frowned down by the patri-
otism and intelligence of the people of that State.” 2

§ 205. On the same side followed the Hon. Mr. Ewing, of
Ohio, in an argument so lucid and satisfactory that, at the risk
of extending this discussion too far, I extract from it the follow-
ing passage, relating to the evidence tending to show that the
third Michigan Convention in fact: represented the people of the
Territory. He said : —

“ An assemblage of the people, in meetings which are famil-
iarly denominated caucuses, was held in some of the counties,
and mutually agreed to call a new Convention. Committees

1 The movement referred to was one organized in Maryland to call a Conven-
tion “ by the inherent and unalienable rights of the people, and, without a legis-
lative Act, to alter and change the Constitution of the State.” The ground on
which it was justified, was, that the government of the State did not represent
the voice of the numerical majority of the people, and that the authority of law

and Constitution was nothing against that of numbers.
2 Benton’s Abr. Deb. in Cong., Vol. XIII. pp. 73, 74.
194 CHARACTER OF THE MICHIGAN CONVENTIONS OF 1835-6.

get together, and, after consultation, publish a time and place
at which it is to assemble. The whole matter was utterly un-
authorized, save by party organization, and was the effect of
such organization. Will any man dispute it? Will any man
pretend that this latter Convention was the effect of a simulta-
neous and spontaneous impulse of the whole people of Michi-
gan?1 Is there any the least proof of such being the fact?
The Convention originated in county calls; and all the counties
but two joined in the plan, and held elections for delegates,
What evidence is there of any regularity in these elections?
Let us look at the papers. We have, to be sure, the Act of the
Convention itself, giving the assent of the State to the Act of
admission, and which was transmitted to the President of the
United States. And we have the certificate of General Wil-
liams, said to have been the presiding officer of the Convention,
and the names of the delegates. But there is not any official
act or signature of any officer known to the laws either of Michi-
gan or of the United States; not the slightest proof of the elec-
tion or qualification. That paper, containing the assent of
Michigan in a matter so important, is not at all authenticated.
Where do you find the law according to which it was con-
ducted? There is none. It rests on nothing. There was a
meeting of certain individuals held at a place called, I believe,
Ann Arbor; and we have certain resolutions of theirs, which are
to avail against the doings of a Convention held in pursuance
of a law of the State, and all whose acts are fully and legally
authenticated. I cannot recognize such a paper. I should do
violeuce to my own judgment should I receive it. Even the
chairman of the Judiciary Committee could not do it. He
called upon the senators elect (and whose admission here is to
follow the passage of the bill) to say that everything at this
self-styled Convention was well and duly conducted; and they
do say so, and give the private letters of certain individuals to
that effect. And they give, further—and that I understand to
be the evidence principally relied on — an article from a Detroit

1 Had it been the effect of such an impulse, the case would have been no bet-
ter. It will not do to admit, that the inhabitants of a Territory can, even by a
perfectly unanimous vote, destroy a political organization set over them by Con-
gress, and substitute for it one of their own creation.
CHARACTER OF THE MICHIGAN CONVENTIONS or 1885-6. 196

newspaper, stating that such an election was had, such Convention
held, 3000 more votes were given for the delegates to this last
Convention than for those who constituted the first Convention.
This, sir, is the evidence to support an organic law of a new
State about to enter the Union! Yes, of an organic law, the
very highest act a community of men can perform. Letters,
referring to other letters! and a scrap of a newspaper!” ?

§ 206. On the other hand, among the numerous and able
speeches maintaining the regularity of the Convention, that
which expounded most fearlessly the principle upon which alone
it could be justified, was that of Senator Niles, of Connecticut.
He said: —

“The question before the Senate he regarded a very simple
one; it was really a question of facts; merely, whether the con-
dition of the Act of Congress of last session, providing for the
admission of Michigan into the Union, had been complied with.
In considering this question, gentlemen had gone into the first
principles of government, and made what he regarded a bold
attack upon popular power, on the fundamental principle of
popular sovereignty, which lies at the foundation of all our
institutions. These doctrines were rather antiquated; they
belonged to the school of the Restoration in England, and the
political writings of Sir Robert Filmer; they were the present
doctrines of the conservatives in all the governments in Europe

. . the doctrines to which the ‘Alien and Sedition laws,’
and other kindred measures, owed their origin. .... And what
were those doctrines? They were, that the people could not be
trusted ; that they were their own worst enemies; that all the
disorders, real or imaginary, that prevailed, were attributable to
a wild spirit of democracy — to popular frenzy. An honest and
fearless expression of opinion concerning men and measures,
was denounced as a spirit of insubordination, disorganization,
and rank jacobinism. A distinguished leader of that party,
now no more....I allude.... to Fisher Ames... . des
clared, that the disease which threatened general and universal
ruin to our institutions and our future prospects, was rooted

| By the first Convention, the speaker means what 1 have designated the

second.
2 Benton’s Abr. Deb. in Cong, Vol. XIII. p. 78.
196 CHARACTER OF THE MICHIGAN CONVENTIONS OF 1835-6.

deep; that it had found its way into the very hearts of the peo-
ple. This disease was democracy; it was the will and sover-
eignty of the people... .. And it was the aim of those in
authority to put down that wild spirit of democracy by the strong
arm of power, and to maintain their authority, not through the
public will, and as an emanation from it, but in opposition to
it; in defiance of it. It was for this purpose that the Alien
and Sedition laws were passed..... But that great scheme
failed; and are its exploded, reprobated doctrines now to be
revived? Are we now to be told that there is no political power
remaining in the people; that having established and put in
operation governments, they have parted with all political power
whatever; that they cannot revise or new-model this form of
government they have themselves established, unless in pursu-
ance of a provision in the Constitution, or in accordance with
a law of the legislature? This is maintaining that sovereignty
resides in the constituted authorities and not in the people at
large; it is raising the creature above his creator; the agent
above the principal. It is exalting the legislature above, and
making it independent of, the constituent body. The Con-
stitutions of most of the States contain some provisions for
altering or amending them; some, through the agency of a Con-
vention, and some, otherwise. _ But such constitutional provis-
ion is not inconsistent with, and cannot take away, the right and
power of the people, acting in their primary, original capacity,
to change their system of government. This is a right which
they have not delegated, and which, of course, must abide with
the people at large. Conventions of the people may be called,
and often are, in pursuance of a law of the legislature ; yet this
is a mere matter of convenience. But does the law confer on
them their power? That is the question. If it does, then a
legislature can grant to another body greater power than it pos-
sesses itself; even the power to change or destroy those very
forms under which it exists; a power to destroy the legislature
itself, This is preposterous, and shows the absurdity of the
principle contended for. If a Convention does not derive its
power from the legislature, from whence can it derive it except
from the people in their primary, elementary capacity, and wholly
mdependent of the legislature and constituted authorities? If
CHARACTER OF THE MICHIGAN CONVENTIONS OF 1835-6. 197

this is not a true idea of a Convention of the people, ne should
like to be informed what a Convention is. The senator from
South Carolina (Mr. Preston) asks, who and what are the peo-
ple? ... . The people, in one sense, are the whole population
of a State; but, in a political sense, the people were that por-
tion of the population which possessed the political power in a
State ; it did not mean women or children, but the whole body
of citizens with whom the political power resided.” !

§ 207. The question of the validity of the first Michigan Con-
vention as well as of the Constitution and State government
erected by it, have been the subject of judicial determination.
The so-called legislature of Michigan, elected under the Con-
stitution in anticipation of admission into the Union, met and
organized on the 3d of March, 1885. On the 26th of March,
1836, ten months before Michigan was admitted into the Union,
this legislature incorporated the members of “ The Detroit Young
Men’s Society,” and to that society accrued, as was claimed,
the title to certain real estate in Detroit. Ejectment was brought
and defended by the defendants in possession, on the ground
that the society was not a corporation or body politic, in the law,
capable to take or hold the premises in question, nor to exercise
any corporate rights under color of the Act of incorporation, for
the reason, that there was no legal State government, and, con-
sequently, no State legislature competent to pass laws, at the
time the Act was passed, within the Territory of Michigan. The
argument, in brief, was, that a Territorial and State government
cannot coexist within the same Territory; that the former hav-
ing been established by Congress, with whom rests the exercise
of Territorial sovereignty, it must continue to exist, until regu-
larly superseded by the power which created it, which, in the
case of Michigan, did not occur until the State was admitted
into the Union, January 26, 1837; or, at the earliest, until the
Act of conditional admission of June 15, 1836.

The Supreme Court of Michigan, however, held that the
Society was a valid corporation, the Territory having been, it
was said, transformed into a State on the adoption of the Con-
stitution by the people, October 5th, 1835; that the legislature,
organized in November following, was a legitimate legislature ;

1 Benton’s Abr. Deb. in Cong., Vol. XIII. pp. 90-92.
198 CHARACTER OF THE MICHIGAN CONVENTIONS OF 1835-6.

that Article V. of the compact contained in the Ordinance of
1787, “secured absolutely and inviolably to the people of the
Territory of Michigan, as established by the Act of Congress of
January 11, 1805, the right to form a permanent Constitution
and State government, whenever said Territory should contain
sixty thousand free inhabitants ; that that right could in no way
be modified or abridged, or its exercise controlled or restrained,
by the general government; that the assent of Congress to the
admission of Michigan into the Union, was only necessary,
because the older States, represented in Congress, possessed the
physical power to refuse a compliance with the terms of com-
pact contained in the Ordinance of 1787, and there was no third
party to which the State could resort to enforce such compli-
ance ; and that the right to such admission, secured by Article
V. of the Ordinance, became absolute and unqualified, on the
adoption of the Constitution of the State, and the organization
of the State government.” }

Upon this decision a writ of error was taken to the Supreme
Court of the United States, by whom the case was dismissed
for want of jurisdiction. In deciding the case, the Court held,
that an objection to the validity of a statute, founded upon the
ground that the legislature which passed it were not competent
or duly organized under Acts of Congress or the Constitution, so
as to pass valid statutes, is not within the cases enumerated in
the twenty-fifth section of the Judiciary Act, and, therefore, that
the Court had no jurisdiction over the subject; that, in order to
give the Federal Supreme Court jurisdiction, the statute, the
validity of which is drawn in question, must be passed by a
State, a member of the Union, and a public body owing obedi-
ence and conformity to its Constitution and laws; that if public
bodies, not duly organized or admitted into the Union, under-
take, as States, to pass laws which might encroach on the
Union or its granted powers, such conduct would have to be
reached either by the power of the Union to put down insurrec-
tions, or by the ordinary penal. laws of the States or Territories
within which these bodies are situated and acting, but that their
Measures are not examinable by the Supreme Court of the
United States on a writ of error.

t Scott v. The Detroit Young Men’s Society’s Lessee, 1 Doug. Mich. R. 119.

2 Scott v. Jones, Lessee of the Detroit Y. M. Soc., 5 How. (U. 8.) R. 343
CHARACTER OF THE MICHIGAN CONVENTIONS OF 1835-6. 199

§ 208. A very able dissenting opinion was, however, delivered
by Justice M’Lean, in which he asserted the jurisdiction of the
court. In the course of this opinion, he said : —

“ No serious objection need be made, in my judgment, to the
assemblage of the people in Convention” (the first Convention)
“to form a Constitution, although it is the more regular and
customary mode to proceed under the sanction of an Act of
Congress. But, until the State shall be admitted into the
Union by an Act of Congress, the Territorial government re-
mains unimpaired. No act of the people of a Territory, without
the sanction of Congress, can change the Territorial into a State
government. The Constitution requires the assent of Congress
for the admission of a State into the Union; and ‘the United
States guaranty to every State in the Union a republican form
of government.’ Hence the necessity, in admitting a State, for
Congress to examine its Constitution. The Act ‘to incorporate
the Detroit Young Men’s Society’ was the exercise of sover-
eign power, a power totally repugnant to the sovereignty of
the Union in its Territorial form. Until the 26th of January,
1837, Michigan was not admitted into the Union and recognized
asa State. Whatever effect this admission may have, by way
of relation, on the exercise of the political powers of the State
prior to that time, is not now the question. The question of
jurisdiction relates to the time the Act was passed and its valid-
ity. This Act of incorporation was repugnant to the Constitu-
tion of the United States, under which the Territorial govern-
ment was organized. It was repugnant to the laws of Congress
which formed that organization. It was an exercise of sover-
eignty incompatible with the sovereignty of the Union in all its
legal forms. And this Act was declared by the Supreme Court
of Michigan to be valid. I cannot conceive a clearer case for
jurisdiction. .... The two sovereignties of the State and the
Territorial government cannot exist at the same time within the
same limits.” ?

For a decision, on the other hand, denying the validity of the State govern-
ment of Michigan before the admission of the State into the Union, see Myers
v. The Manhattan Bank, 20 Ohio R. 283,—a decision, for every reason, of
authority at least equal to that of the Michigan Court.

1 Scott v. Jones, Lessee, &c., 5 How. (U. 8.) R. 380-382.
200 CHARACTER OF THE MICHIGAN CONVENTIUNS OF 1835-6.

§ 209. As the majority of the court expressly announced in
this case that they decided no point but that of jurisdiction, it
cannot be assumed that they would have coincided with Justice
M’Lean in the points discussed by him, had they sustained the
jurisdiction. But certainly there is deducible from the opinion
of the court an inference that the Territory of Michigan did not
become a State for the purpose of giving rights, which might be
the subject of litigation before the courts of the Union, in other
words, did not become a State for all purposes, until admitted
into the Union. The only observation I wish to make upon the
case is, that our Constitution knows no purgatorial condition,
intermediate between that of a Territory and that of a State.
So long as a political organization is a Territory, it is not in any
sense or for any purpose a State, and, vice versa. Oncea Terri-
tory always a Territory, until a change be effected by an Act of
Congress. A Territory may seize upon the reins of power, and
make of itself, de facto, a State, but when it does so it departs
from legal and regular courses, and enters upon the field of
revolution.”

§ 210. In the cases of the other States whose Constitutions
were framed partly or wholly by Conventions called without en-
abling Acts, there are no circumstances that require extended
notice, except in that of Kansas. Arkansas framed her Consti-
tution in January, 1836; Florida, in January, 1839; Iowa, in
November, 1844, but modified it, under the requisition of Con-
gress, in relation to boundaries, in May, 1846; Wisconsin, in

1 On this subject see a speech of Henry Winter Davis, in Appendix to Vol.
XXXVII. Cong. Globe, pp. 261, 262.

.2 In connection with the subject discussed in the foregoing sections, see an
opinion of Attorney-General B. F. Butler, officially given, respecting certain
movements made in Arkansas in 1835, with a view to erect the Territory of that
name into a State, without an enabling Act. The Governor of the Territory, ap-
prehending that the Territorial legislature, or the people of the Territory, would
call a Convention to form a State Constitution without the authority of Congress,
wrote a letter to the President of the United States, asking instructions for his
guidance in such a case. This letter being referred to the Attorney-General for
his opinion on the constitutional and legal questions presented, that officer dis-
cussed at length two questions, stated by him thus: — 1. As to the power of the
Territorial legislature to pass laws authorizing the formation of a Constitution
and State government; and, 2. As to the right and authority of the citizens of
the Territory to take measures for that purpose, and the extent to which such
OTHER CONVENTIONS ASSEMBLED WITHOUT ENABLING ACTS. 201

February, 1848; California, in October, 1849 ; Oregon, in Sep-
tember, 1857; Nevada, in 1864; Nebraska, in 1866; and Colo-
rado, in 1876. As we have already intimated, these States were
all of them, excepting Oregon, formed under a claim of right
arising from stipulations in treaties or deeds of cession directly
binding the United States to admit them upon the happening
of certain contingencies. Generally, the right thus secured was
kept prominently in view in the discussions attending the tran-
sition from the condition of Territories to that of States, and
many of the Conventions carefully recited in the preamble to the
Constitutions framed by them the terms of the treaty or deed of
cession by which their right was guaranteed. Thus the preamble
to the Constitution of Arkansas contained the following recital: —

“ We, the people of the Territory of Arkansas, by our repre-
sentatives in Convention assembled, at,”-&c,.... “having
the right of admission into the Union... . by virtue of the
treaty of cession by France to the United States of the Prov-
ince of Louisiana, in order to secure to ourselves,” &c.

The Florida Constitution contained a similar clause, but
basing the right to admission on the treaty with Spain, before
referred to, as that of Tennessee had based the right in the case
of that Territory, on the deed of cession from North Carolina.

Oregon, alone of all the States admitted into the Union, can

proceedings, if it be lawful to enter on them at all, may properly be carried, con-
sistently with the Constitution and laws then in force.

The answers given to these questions are eminently sensible and instructive,
but are too long for insertion here. To the first question, after considering the
organic law of the Territory, and comparing it with the Federal Constitution, he
answers, in substance, that to suppose such a power in the Territorial legislature,
involving, as it would, that of altering or abrogating the Territorial government
established by the Act of Congress, would be manifestly absurd. The second
question he answers by saying, that the inhabitants can legally take no step to-
ward the formation of a Constitution or State government that will be of any
validity without the previous authorization of Congress. Still the people have
a right, he says, to assemble and petition the government for a redress of griev-
ances; and if they throw their petition into the form of a Constitution and accom-
panying memorial praying admission into the Union, he perceived no legal ob-
jection to their doing so, nor to any measures taken to collect the sense of the
people in respect to the same. — Opinions of the Attorneys-General, Vol. II. P- 726.
See also Webster’s Works, Vol. VI. p. 485, where a similar sentiment is ex-
pressed.
202 ‘KANSAS CONVENTION OF 1850.

point neither to an enabling Act of Congress authorizing her to
form a Constitution and State government, nor to a stipulation
giving ber inhabitants the right to be admitted into the Union,
on a contingency specified, and thus after a sort excusing them
for a clamorous assertion of the right, when it seemed to be un-
reasonably withheld. The conduct of that Territory, therefore,
in anticipating the action of Congress, was not only irregular
and illegal, but inexcusable.

Respecting the mode in which the Conventions in these sev-
eral cases were called, it is sufficient to say that it was, by the
action of the Territorial legislatures, or of officers connected with
the administration of the Territorial governments. Thus, those
of ‘Tennessee, Arkansas, Florida, Iowa, Oregon, and Nevada,
were called by the legislative Assemblies of those Territories
respectively, and that of California by General Riley, military
governor of that Territory, acting at the instance of General
Taylor, President of the United States.

§ 211. Of the four Conventions called to frame a Constitu-
tion for the State of Kansas, the first was assembled by a spon-
taneous movement among the inhabitants of the Territory, with-
out the authority of law.

The first ste was the calling of a meeting by “ many voters,”
at Lawrence, on the 14th of August, 1855, “to take into con-
sideration the propriety of calling a Territorial Convention prelim-
inary to the formation of a State government, and other subjects
of public interest.” At this meeting were passed resolutions
requesting “all bond fide citizens of Kansas Territory ” to elect
in their respective election districts, in mass Convention or other-
wise, three delegates for each representative in the legislative
Assembly, according to the proclamation of Governor Reeder of
the 10th of March previous, to assemble in Convention on the
19th of September, 1855, “to consider and determine upon all
subjects of public interest, and particularly upon that lLaving ref-
erence to a speedy formation of a State Constitution, with an
intention of an immediate application to be admitted as a State
into the Union of the United States of America.”

Two weeks before the assembling of the Convention thus
called, a second meeting was held at Big Springs, at which the
project of holding a Convention for the purpose indicated was
CHARACTER OF THE KANSAS CONVENTION OF 1855. 203

commended, and the determination expressed to resist unto
blood the laws of the “spurious legislature” of the Territory,
should peaceable remedies fail. The reference to the spurious
legislature was aimed at the legislative Assembly of the Territory
organized under the auspices of the United States government,
ostensibly by the inhabitants of the Territory, but, as it was
charged, in fact, by an invading horde of pro-slavery voters from
Missouri. The meeting then proceeded openly to recommend
“throughout the Territory the organization and discipline of vol-
unteer companies,” for the purpose of giving effect to the pre-
ceding resolutions.

In pursuance of the recommendation of these meetings, a
Convention was held at Topeka on the 19th of September, at
which it was determined to hold another Convention at the
same place, on the fourth Tuesday of October, for the purpose
of forming a Constitution and State government; and, to this
end, such proceedings were had as were deemed necessary for
giving the notices, conducting the election of delegates, making
the returns, and assembling the Convention. The Convention
met at Topeka on the fourth Tuesday of October, 1855, and
formed a Constitution, which, being submitted to the people,
was, by a large majority of those who voted, adopted.!

§ 212. In passing judgment upon the Topeka Convention, it
is not within the scope of my design to inquire whether or not
the facts of the situation justified the calling of that body, as
one step in a revolution, but simply whether it was a legitimate
Constitutional Convention. Viewed thus, in its legal aspects, it
is impossible to regard it as other than illegitimate. It was
called neither by Congress, the Territorial legislature, nor any offi-
cer connected with the public administration in the Territory,
but in opposition to and in defiance of them all. Such a body
will not for a moment bear examination on legal or constitu-
tional grounds.

Neither the Convention itself, nor those who called it, so far as
1 arn aware, ever pretended that they were proceeding in the line
of law and precedent; but, despairing, as was openly intimated,

t Sve the Report of the Senate Committee on Territories of March 12, 1856;
also the Minority Report, from the minority of the same Committee, respecting
the proceedings of this Convention and the affairs of Kansas in general.
204 KANSAS CONVENTION oF 1857.

in the resolutions passed by the mass meetings which called that
body, of securing their rights under a government foisted upon
them by their pro-slavery enemies, they notified the world that
they proposed to seek them at the point of the bayonet, and
organized themselves into military companies, accordingly. Al-
though, therefore, the friends of Kansas in Congress, in their
eager endeavors to secure for its inhabitants their civil and politi-
cal rights, by admitting them into the Union, under the Topeka
Constitution, made use of arguments which seemed to vindicate
the legality of the body which frained it, still candor compels
me to admit, that the enemies of equal rights not only had the
best of the argument, but alone used the language of truth and
soberness. The case was, perhaps, the not uncommon one of
the law and substantial justice appearing upon opposite sides
in a controversy. However that may be, it is certain that
President Pierce was right, when, in his message of January
24, 1856, relating to the proceedings of the Topeka Conven-
tion, he said of them: “ No principle of public law, no practice
or precedent under the Constitution of the United States, no
rule of reason, right, or common sense, confers any such power
as that now claimed by a mere party in the Territory. In fact,
what has been done is of a revolutionary character. It is avow-
edly so in motive and in aim, as respects the local law of the
Territory. It will become treasonable insurrection if it reach the
length of organized resistance by force to the fundamental or
any other federal law, and to the authority of the general gov-
ernment.”

§ 213. In the mean time, the first Territorial legislature of Kan-
sas had passed an Act to take the sense of the people on the
question of calling a Convention to form a State Constitution,
the vote to be taken at the election in October, 1856. At that
election, accordingly, a vote was taken at which a majority of
the votes cast —the free-State men not voting — was in favor
of calling such a Convention. In pursuance of this vote, the
Territorial legislature, on the 19th of February, 1857, passed
another Act providing for the election, on the 15th of June follow-
ing, of delegates to a Convention, to meet on the first Monday
of September, for the purpose of framing a Constitution prepara-
tory to admission into the Union. The election of delegates
CHARACTER OF THE KANSAS CONVENTION oF 1857. 205

was held on the day appointed, the Free-State men still with-
holding their votes, the entire vote for delegates being about 2200.
The delegates elected assembled at Lecompton on the 5th of
September, adjourned over to October, and then reassembling,
framed the instrament known as the Lecomptou Constitution.

§ 214. Although there is no doubt that this Convention was
called by the Territorial legislature, with the consent of the execu-
tive of the United States, still, Congress not having authorized
it, it was unquestionably irregular and illegal. To use the lan-
guage employed by President Buchanan at a later day, to char-
acterize the action of the Topeka Convention, that of the
Lecompton Convention was “a usurpation of the same char-
acter as it would be for a portion of the people of any State to
undertake to establish a separate government within its limits,
for the purpose of redressing any grievance, real or imaginary,
of which they might complain, against the legitimate State
government.” To which he added, that “such a principle, if
carried into execution, would destroy all lawful authority, and
produce universal anarchy.” The view thus entertained by
President Buchanan, of the Topeka Convention, however, was
not that taken by him of its successor, the Convention held at
Lecompton, on the call of the Territorial legislature. In the
same paragraph of his message, from which the above passage
is extracted, the President vindicated the regularity of the latter
Convention, on the ground that it had virtually been called in
pursuance of an enabling Act. The foundation for this asser-
tion he found in the provisions of the Kansas-Nebraska Act, as
it has been called, which formed the organic law of the territory
of Kansas. Section 14 of that Act declared it to be the true
intent and meaning thereof, “not to legislate slavery into any
Territory or State, nor to exclude it therefrom, but to leave the
people thereof perfectly free to form and regulate their domestic
institutions in their own way, subject only to the Constitution of
the United States.”

Respecting this clause of the Act, President Buchanan said:
“That this law recognized the right of the people of the ‘Terri-
tory, without an enabling Act, to form a State Constitution,
is too clear for argument. For Congress ‘to leave the people
ot the Territory perfectly free, in framing their Constitution, ‘ to
206 CHARACTER OF THE KANSAS CONVENTIUN OF 18097.

form and regulate their domestic institutions in their own way,
subject only to the Constitution of the United States, and then
to say, that they shall not be permitted to proceed and frame
the Constitution in their own way, without express authority
from Congress, appears to be almost a contradiction in terms.”

§ 215. For a refutation of this position of President Buchanan,
— if that can need refutation which upon its face is absurd, —
I shall avail myself of a speech of the Hon. Henry Winter
Davis, of Maryland, made when the Lecompton Constitution
was under discussion in Congress. Having considered the
question whether Congress may not, in certain cases, with
propriety, ignore irregularities and admit Territories into the
Union whose Constitutions have been framed without the pre-
vious authorization of Congress, he proceeds as follows: —

“ But the argument is irrelevant; for the question is not
whether Congress may, in its discretion, recognize Constitutions
formed by the people without authority of law; but whether a
Territorial legislature has, in point of /aw, authority to legalize
the election of a Convention, to give the Convention itself a legal
existence, to vest it with legal power to bind not merely the
people, but the Congress? No one denies the power of Con-
gress to admit Tennessee and Florida, yet nobody ever asserted
any legal validity in their proceedings before admission.

“The language of the organic Acts, and the proceedings of
Congress thereupon, are decisive. The Territories divide them-
selves into two great classes. In Ohio, Illinois, Indiana, Mis-
souri, Mississippi, Alabama, Arkansas, Tennessee, and Michigan,
the legislature bad ‘power to make laws, in all cases, for the
good government of the people of the said Territory, not repug-
nant to, or inconsistent with, the Constitution and laws of the
United States’ In Wisconsin, Minnesota, Oregon, Florida,
and Iowa, the power of the legislatures was declared to extend
—jin the identical words of the Kansas-Nebraska Act — ‘to
all rightful subjects of legislation, not inconsistent with the Con-
stitution and laws of the United States.’

“ Congress has construed both forms of expression by passing
enabling Acts for both classes. Not only for Ohio, Louisiana,
Missouri, Mississippi, Alabama, Illinois, and Indiana, but also
for Wisconsin, Minnesota, and Oregon,! did Congress pass Acts

1 This is a mistake. We have already seen, (§ 188, ante,) that Oregon called
the Convention which framed her first Constitution, without an enabling Act.
CONDITIONAL ACT FOR THE ADMISSION OF KANSAS. 207

specially authorizing them to call a Convention and form a State
government ; and, in every instance, excepting Wisconsin, those
bills provided all the details of the Convention, the number of
delegates, its time of assembling, the modes under which the
delegates should be elected. It is plain, Congress thought the
power of Congress ‘to make laws in all cases, necessarily ex-
tended ‘to all rightful subjects of legislation” It is plain, Con-
gress thought neither form of expression authorized the tempo-
rary Territorial government to create a Convention to form a
Constitution, which would begin to operate only after the Terri-
torial legislature itself had ceased. Its power to govern was
confined to the Territory, a temporary contrivance for tempo-
rary purposes; involved in all the local interests and conflicts
of Territorial politics, and not safely to be intrusted with the
providing for a Constitution. In a word, they were authorized
to make laws to govern the Territory; but a law for a Constitu-
tional Convention was no law for governing a ‘Territory at all.

* The case is stronger under the Kansas Act, for it reserves to
Congress the power to make two or more States or Territories
out of that Territory ; and, if Congress have the right to make
two States, it is absurd to suppose it gave the Territorial legisla-
ture power to make one State of it.”!

§ 216. The application of the Territorial legislature, through
its Convention for admission into the Union under the Lecomp-
ton Constitution, although seconded by President Buchanan,
and in general by the administration party in Cougress, was
substantially unsuccessful. After a long contest, the friends of
the measure were forced to consent to a conditional admission,
the bill, known as the English bill, which was finally passed,
providing for admission of the State into the Union, on condi-
tion that the people of Kansas should first vote to accept certain
propositions, beneficial to their interests, and the Lecompton
Constitution ; but further providing, that should the propositions,
and, with these, the Lecompton Constitution, be rejected, the
people of the Territory should be at liberty to forin for themselves
a Constitution and State government by the name of Kansas,
and might elect delegates for that purpose whenever, and not
before, it should be ascertained by a census duly and legally
taken, that the population of said ‘'err:tory equalled or exceeded

1 See Appendix to Vol. KXXVIL. Cong, Globe, p. 262.
208 THIRD VARIETY OF CONVENTIONS HELD SINCE 1879.

the ratio of representation for a member of the House of Repre-
sentatives of the Congress of the United States. The Act then
prescribed the mode in which the delegates, who might thus be
elected, should proceed to form a Constitution, and provided for
submission of the same to the people of Kansas, and for the
admission of the State thus formed into the Union under it.

In pursuance of this Act, the people of Kansas went into an
election on the 3d of August, 1858, the result of which was,
that the propositions of Congress, and, consequently, the Con-
stitution submitted, were rejected by over ten thousand ma-
jority.

By this vote, the condition in which the Territory of Kansas
was left was this: An enabling Act, passed by Congress, author-
ized ker people to form a Constitution and State government
“ whenever, and not before,” it should be “ ascertained by a cen-
sus duly and legally taken,” that her population equaled or ex-
ceeded the ratio of representation fixed by Congress for electing
members of the national House of Representatives — that is,
when its population should number 93,340.

In the mean time, a Convention, called by the Territorial Leg-
islature, had met on the 23d of March, 1858, at Leavenworth,
and had framed a Constitution prohibiting slavery. It was
ratified by the people, but, on presentation to Congress, was
refused consideration, on the ground that the Territory had not
the requisite population.

Such, however, was the rapidity with which the Territory was
peopled, that on the first Tuesday of June, 1859, a fourth Con-
vention, called in like manner by the Territorial Legislature,
met at Wyandotte, by which a Constitution was framed, — the
population at the time of the call of the Convention exceeding
the number limited by the Act above named. Under this Con-
stitution the Territory was afterwards admitted into the Union,
January 29, 1861.

§ 217. 3. The third variety of Conventions, called since March
4, 1789, consists of such as have been assembled for the revision
of existing Constitutions of States, members of the Union.

These may b2 subdivided into several classes, as follows: —

(a). Such as have been convened, for legitimate constitutional
purposes, regularly, that is —

I. By the legislatures of the respective States, acting either —
CONVENTIONS IN PURSUANCE OF CONSTITUTIONAL PROVISIONS. 209

1. In pursuance of special provisions of such existing Consti-
tutions, or — :

2. If no such provisions exist, under their general legislative
authority.

Il. By the electors, choosing delegates to such Conventions,
under the name of Councils of Censors, at fixed dates, in obedi-
ence to direct constitutional provision.

III. By such Councils of Censors, to adopt or to reject the
Constitution or amendments framed by them.

(b). Such as have been called, for legitimate constitutional
purposes, irregularly, — that is, either —

1. In disregard of constitutional provisions prescribing par-
ticular modes in which amendments to the Constitution should
be effected, or —

2. In defiance of the existing governments of the States con-
cerned, though in pretended conformity to constitutional prin-
ciples.

(c). The so-called Secession and Reconstruction Conventions
held before and since the late civil war.

These several classes will now be considered in the order
indicated.

§ 218. (a). I. 1. Of the first subdivision of the first class,
comprising such Conventions as have been regularly called by
legislative authority, exercised in pursuance of express consti-
tutional provisions, there have been held thirty-four Conven-
tions.1

1 The following Conventions belong to this list: Those of Alabama, 1875;
California, 1878; Delaware, 1831 and 1852; Florida, 1885; Georgia, January,
1789, May, 1789, 1795, 1798, and 1877; Illinois, 1847, 1862, and 1869; Iowa,
1857; Kentucky, 1799 and 1849; Louisiana, 1844; Maryland, 1864 and 1867;
Massachusetts, 1820; Michigan, 1850 and 1867; Mississippi, 1832; Missouri,
1875; Nebraska, 1875; New Hampshire, 1791, 1850, and 1876; New York,
1867; North Carolina, 1875; Ohio, 1850 and 1878; Tennessee, 1834; and
West Virginia, 1872.

In reference to one of the Conventions placed in this list, that of Delaware.
1852, there has been much controversy in that State. The facts relating to
the call of that body are as follows: — The Delaware Constitution of 1831
contained this clause, —‘*No Convention shall be called but by authority of
the people; and an unexceptionable way of making their sense known will be
for them to vote by ballot on the third Tuesday of May in any year, for or
against a Convention; and if a majority of all the citizens of the State having a
910 CONVENTIONS CALLED WITHOUT CONSTITUTIONAL PROVISIONS.

As, in calling these Conventions, the requirements of the
respective State Constitutions are believed to have been strictly
complied with, it is necessary only to point out the circumstance
that they were all called by the direct action of the State legis.
latures.

§ 219. 2. The second subdivision, consisting of Conventions
called for legitimate constitutional purposes by the respective
State legislatures, under their general legislative power, with-
out the special authorization of their Constitutions, comprises
twenty-seven Conventions.!

The question of the legitimacy of Conventions thus called,
I shall bave occasion to consider in other parts of this work,
when treating of the relatious of legislatures to Conventions,

right to vote for representatives vote for a Convention, the next General Assem-
bly shall call one; the majority of all the citizens of the State having a right to
vote for representatives to be asvertained by comparing the number of votes for
a Conv >ntion with the highest number of votes cast at either of the free preced-
ing general elections.” $

Feb. 26, 1851, an Act was passed by the General Assembly, taking the sense
of the people as to the call of a Convention; and Feb. 4, 1852, was passed
another Act, which, reciting that at the before appointed election there was a
majority of votes for a Convention, called one accordingly, to meet at Dover on
the first Tuesday of December following. Now, according to the rule laid down
in the Constitution, there was not a majority of votes for this Convention, though
there was a majority of all the votes cast. When the Convention met, there-
fore, the legitimacy of the call was denied by some, on the ground that the un-
exceptionable way pointed out in the Constitution was the only legal way that
could be pursued. By those sustaining the legitimacy of the body, on the other
hand, it was contended, that the clause of the Constitution was not peremptory:
but recommendatory ; and of that opinion was the Convention — with which I
am inclined to concur.

lam indebted for the facts detailed in this note to the Hon. Willard Hall,
of Wilmington, Delaware, who was a member of the Convention.

1 The Conventions embraced in this list are the following : Those of Arkan-
sas, 1874 ; Connecticut, 1818; Georgia, 1833 and 1839; Indiana, 1850; Lou-
isiana, 1852 and 1879 ; Massachusetts, 1838 3 Missouri, 1845, 1861, and 1865;
New Jersey, 1844; New York, 1801, 1821, and 1846; North Carolina, 1835;
Pennsylvania, 1837 and 1872; Rhode Island, 1824, 1884, 1841, and 1842;
South Carolina, 1790; Tennessee, 1870; Texas, 1876; Virginia, 1829 and
1850.

In regard to the Indiana Convention of 1850, it should be observed that,
although there was contained in the Indiana Constitution of 1816 power to the
legislature to call a Convention every twelfth year thereafter, that is, in 1828,
1840, 1852, &c., the power was not pursued, but a Convention was called inde-
pendently of it by an Act approved January 18, 1850.
CONVENTIONS CALLED WITHOUT CONSTITUTIONAL PROVISIONS. 211

and of the powers of the former resulting from those relations.
I shall, therefore, here only observe, — 1. That, whenever a
Constitution needs a general revision, a Convention is indis-
pensably necessary ; and if there is contained in the Constitu-
tion no provision for such a body, the calling of one is believed
to be directly within the scope of the ordinary legislative power ;
and, 2. That, were it not a proper exercise of legislative power,
the usurpation has been so often committed with the general
acquiescence, that it is now too late to question it assuch. It
must be laid down as among the established prerogatives of our
General Assemblies, that, the Constitution being silent, when-
ever they deem it expedient, they may call Conventions to revise
the fundamental law.

In four or five of the Conventions of this class, the objection
has been raised, that they were illegitimate bodies, because
called by the legislatures without special authority in the re-
spective Constitutions. This was the case in the Virginia
Convention of 1829, the Pennsylvania Convention of 1837 and
1872, the New York Convention of 1846, and the Massachu-
setts Convention of 1853. But the objection bas commonly
been urged by a minority, whose party or other interests inclined
them to look with disfavor upon any change of the existing
Constitution. In a large proportion of these cases the objec-
tion seemed the more plausible, for the reason that there existed
constitutional provisions for effecting specific amendments to
the organic law in a more summary manner, by a vote of. the
people upon propositions made by the General Assembly.
There having been provided, it has been said, a mode in which
constitutional changes might be effected, it was a violation of
legal analogy to infer a power to do substantially the same
thing in another way, not authorized specifically by the Constitu-
tion, according to the well established rule, expressio unius est
exclusio alterius. We shall, however, have occasion in subse-
quent chapters to consider the subject more at large, and shall
there find that the maxim has no application to this case, since
the legislative acts in question do not authorize the doing of the
same, but of a different thing, in a different manner? For our

1 See post, ch. vi. §§ 376-418, and ch, viii. §§ 570-574 f.
2 See post, ch. vi. § 895, and ch. viii. §§ 572-574 ce. ; :
For discussions of the supposed irregularity of the Conventions mentioned,
212 CONVENTIONS CALLED BY COUNCILS OF CENSORS.

present purpose, it may be regarded as settled, that the legisla-
ture of a State has authority to provide for calling a Convention,
whenever there is no Constitutional provision at all ‘relating to
amendments of the fundamental law, or the provisions are con-
fined to the enactment of specific amendmeuts, and a general
revision is deemed necessary.

§ 220. II. Of Conventions chosen at fixed dates, by the
electors, under the name of Councils of Censors, in obedience
to direct Constitutional provision, and therefore called regularly
for legitimate Constitutional purposes ; and,

III. Of Conventions thus called by Councils of Censors to
adopt or to reject the Constitutions or amendments framed by
them, the only cases which have occurred, within the period
mentioned, have occurred in Vermont.)

The first Vermont Constitution, that of 1777, provided, Sec.
XLIV., that in 1785, aud every seven years thereafter, there
should be elected thirteen persons, to be called a Council of
Censors, whose duty it should be to inquire generally into the
public administration, and with power “to call a Convention, to
meet within two years after their sitting, if there appears to
them an absolute necessity of amending any article of this Con-
stitution which may be defective, explaining such as may be
thought not clearly expressed, and of adding such as are neces-
sary for the preservation of the rights and happiness of the
people.”

Under this provision, Councils of Censors were chosen every
seven years, from 1785 to 1869, by which numerous Conventions
were called,” the regularity of which cannot be impeached. A

see Deb. Va. Conv. 1829, pp. 884, 885; Deb. Mass. Conv. 1853, Vol. I. pp. 35,
83 ; Vol. III. pp. 123, 124, Speech of the Hon. Joel Parker; Deb. Pa. Conv.
1837, Vol. I. pp. 183-187.

1 Class II. comprises the Councils of Censors of 1785, 1792, 1799, 1806,
1813, 1820, 1827, 1834, 1841, 1848, 1855, 1862, and 1869.

Class III. comprises the Conventions of 1786, 1798, 1822, 1828, 1886, 1848,
1850, 1857, and 1870.

' The Councils of 1799, 1806, 1818, and 1862 called no Conventions.

2 See Appendix B. Although the Conventions of class III. are nominally
the only Conventions, yet, considering that the function of the Councils is
precisely that of a Convention, when confining itself to its normal duty of ree-
ommending Constitutional changes, I have reckoned those bodies in the list of
Conventions. Viewing them thus, the so-called Convention in Vermont is but
CONVENTIONS IN DISREGARD OF CONSTIIUTIONAL PROVISIONS. 2138

similar provision was contained in the Pennsylvania Constitution
of 1776, Sec. XLVIL., but the Council held only two sessions,
and failing to agree, no Convention was called. Afterwards,
the legislature, in disregard of the Constitution, took upon itself
to summon a Convention, which met. in 1789 and abolished the
cumbrous provision. It was also abolished in Vermont by the
Convention of 1870.

§ 221. (db). 1. Of the next class of Conventions, comprising
such as have been aalled for legitimate constitutional purposes,
but irregularly, in disregard of constitutional provisions pre-
scribing particular modes in which alone amendments to the
Constitution should be made, there have been but three deserv-
ing of mention; that of Pennsylvania of 1789; that of Dela-
ware of 1792; and that of Maryland of 1850. A brief history
of these will be given in the order in which they occurred.

As stated in the last section, the Pennsylvania Constitution
of 1776, Sec. XLVII., provided a special apparatus for revising
or amending that instrument, through the instrumentality, first,
of a Council of Censors, and, secondly, if deemed necessary by
the latter, of a Convention to be called by that body. The
terms of this constitutional provision were identical with those
of Section XLIV. of the Vermont Constitution above quoted,
and indeed were the model after which the latter was drawn.
But beside this section, there was inserted in the preamble to
the Pennsylvania Constitution the following important restric-
tive clause, namely : —

.... “We, the representatives of the freemen of Pennsyl-
vania .... do, by virtue of the authority vested in us by our
constituents, ordain, declare, and establish the following declara-
tion of rights and frame of government to be the Constitution
of this Commouwealth, and to remain in force therein forever
unaltered, except in such articles as shall hereafter, on expe-
rience, be found to require improvement, and which shall, by the
same authority of the people, fairly delegated, as this frame of
government directs, be amended or improved,” &c.
the people of the State, by a small body of representatives, at the second re-
move, instead of by the electors, at the first, ratifying the proposals of a Coun-
cil performing the function of a Convention. As the Vermont Constitution
styles this ratifying body a Convention it has been included in the list, on the
same ground as were those which in the several States of the Confederation
ratified the Federal Constitution.
214 PENNSYLVANIA CONVENTION OF 1789.

§ 222. The Council of Censors having twice met — in 1783
and 1784—and having failed by a constitutional majority to
agree upon calling a Convention, to consider amendments
deemed necessary by a majority of that body, adjourned Sep-
tember 25, 1784, to meet again on the day preceding the next
general election ; but in fact never again convened.

At the session of the General Assembly in March, 1789 — the
year preceding the time fixed by the Constitution for the meet-
ing of the next Council of Censors — resolutions were passed
calling the attention of the people to the subject of amending
their Constitution, and suggesting that, should they concur with
the House in the opinion that a Convention should be called for
that purpose, it would be “convenient and proper for them to
elect members of a Convention of the same numbers and in the
like proportions for the city of Philadelphia and the several
counties with those of their representatives in Assembly, on the
day of the next general election, at the places and in the man-
ner prescribed in cases of elections of members of Assembly by
the laws of the State.” The resolutions further provided, that
on the pleasure of the people in the premises being signified to
them at their next sitting, they would provide by law for the ex-
penses of the Convention, and, if requested, would appoint the
time and place for the meeting thereof.

At the next session of the Assembly, in September following,
it appearing to the satisfaction of that body, by petitions and
the reports of members, communicating the results of their in-
quiries during the vacation of the Assembly, that a Convention
was expedient and proper in the general opinion of the people
of the State, resolutions were passed calling a Convention, to
meet at Philadelphia on the fourth Tuesday in November, 1789.
Delegates were accordingly elected, and, assembling on the day
appointed, framed and established the Constitution of 1790.

§ 223. Article XXX. of the Delaware Constitution of 1776
provided as follows : —

“ No article of the Declaration of Rights and Fundamental
Rules of this State agreed to by this Convention, nor the first,
second, fifth (except that part thereof that relates to the right of
suffrage), twenty-sixth, and twenty-ninth articles of this Consti-
tution, ought ever to be violated on any pretence whatever ; 10
other part of this Constitution shall be altered, changed, or dimin-
DELAWARE CONVENTION OF 1792. 215

ished, without the consent of five parts in seven of the Assembly,
and seven members of the Legislative Council.”

As the Assembly contained seven members only, and the
Legislative Council nine members, it is evident that no change
whatever could be made in the Constitution, legally and consti-
tutionally, save by the direct action of both the Assembly and
the Legisiative Council, and then only by a majority of five-
sevenths of the one and seven-ninths of the other. The phra-
seology being negative, no room was left for the employment of
any alternative method. A Convention could not be called for
the purpose of changing or abolishing the Constitution without
a palpable infringement of its provisions.

Nevertheless, in 1791, amendments to the Constitution being
very generally deemed necessary, the legislature passed an Act
calling a Convention, with a view to effect them. In the pre-
amble to this Act, the grounds upon which that body based its
action are exhibited in the following terms : —

“ By the thirtieth article of the Constitution of this State,
the power of revising the same, and of altering and amending
certain parts thereof, is vested in the General Assembly ; and it
appears to this House, that the exercise of the power of altering
and amending the Constitution by the legislature would not be
productive of all the valuable purposes intended by a revision,
nor be so satisfactory and agreeable to our constituents; and
that it would be more proper and expedient to recommend to
the good people of the State to choose deputies for this special
purpose to meet in Convention.” Then follows the enacting
clause authorizing the election of delegates to a Convention
to change the Constitution. A Convention was accordingly
elected, with the general approbation of the people of Dela-
ware, by which a new Constitution was framed and put in
operation in the following year.

) 224. The action of the people of Maryland, in calling the
Convention of 1850, was similar to that just described. Section
LIX. of the Maryland Constitution of 1776, contained this pro-
vision : —

“ That this form of government, and no part thereof, shall be
altered, changed, or abolished, unless a bill so to alter, change,
or abolish the same shall pass the General Assembly, and be
published at least three months before a new election, and shall
216 CHARACTER OF THE LAST THREE CONVENTIONS.

be confirmed by the General Assembly after a new election of
delegates, in the first session after such new election.”

The whole power of the State having, under the Constitu-
tion of 1776, come to be exercised by a minority of the citizens,
efforts were repeatedly made, but without success, to induce the
General Assembly to effect the needed changes in that instru-
ment. In 1837, the impatience of the reform-party nearly led
to hostile collisions with the existing government, — the former
taking steps to call a Convention’ for the purpose of framing a
new Constitution, without the authority and against the will of
the General Assembly; and the latter, through the State ex-
ecutive, denouncing such an act as rebellious, and threatening
with punishment all who should engage in it! At length, at
the session of the General Assembly held early in 1850, an Act
was passed submitting to the people of Maryland the ques-
tion, whether or not a Convention should be called to revise the
Constitution. The vote was taken at an election held in May
of that year, and resulted in a majority in favor of a Conven-
tion. The whole number of votes cast, however, was only about
twenty thousand — the total number of voters in the State be-
ing over sixty thousand. A Convention was thereupon assem-
bled, on the first Monday in November, 1850, which, in a ses-
sion lasting until the 13th of May, 1851, adopted the Constitu-
tion known as that of 1851. This Constitution was, in pursu-
ance of one of its own provisions, submitted to a vote of the
people on the 4th of June following, and being ratified by a
majority of those voting, went into operation on the 4th of
July, 1851.

§ 225. Respecting the three Conventions of this class, I need
only observe, that in respect of their origin, they were wholly
illegitimate. The first — that of Pennsylvania — was not called
in the mode provided by the Constitution, to which, whether
wisely or unwisely, the people of the State had, by a solemn
provision of that same instrument, specially restricted their
agents and themselves. So also with that of Delaware. By its
Constitution of 1776, no organic change could be made except
upon the concurrence of two conditions: first, a favoring vote
of five parts in seven of the Assembly ; and, second, a like vote
of seven of the nine members of the Legislative Council. Nor

1 M’Sherry’s Hist. Md., pp. 348-353.
CHARACTER OF THE LAST THREE CONVENTIONS. 217

could any such change be constitutionally made in Maryland ex-
cept on the concurrence of three conditions : first, the passage, by
the General Assembly, of an Act for that purpose; second, the
publication of the proposed amendment for the information of the
people, for at least three months prior to a new election of that
Assembly ; and, third, the confirmation of the Act by such new
Assembly. Not one of the conditions mentioned was fulfilled
in the case of either of those States. The legislatures, instead
of proceeding to do what was desired, by their own direct action,
as their respective Constitutions commanded, attempted to del-
egate the work to Conventions called by themselves —a thing
clearly prohibited by those instruments. It is obvious, that to
justify such proceedings, on legal grounds, would be to take
away from the fundamental law that characteristic quality by
which it is the law of laws—-the supreme law of the land. If
it be not the supreme law, for all the purposes of a Constitution,
in the American sense, it might as well be a piece of blank
paper.

In this discussion I do not meddle with the question, Whether,
in the cases indicated, the course taken to effect constitutional
changes was necessary or not? in other words, Whether the
revolution consummated by the legislatures of those States was
unavoidable, and so morally defensible? It may be admitted,
that the constitutional provisions I have quoted were injudi-
cious; that in communities like ours, rapidly increasing in
wealth and population, they were certain, sooner or later, to lead
to heart-burnings, if not to outbreaks of revolutionary violence.
But this does not affect the legal question I am discussing,
namely, Whether, tested by the principles of our constitutional
system, the mode of securing the desired reforms did not involve
a flagrant usurpation on the part of those legislatures? ‘There
is, in my judgment, no way in which the action of those bodies,
in those cases, can be justified, except by affirming the legal
right of the inhabitants of a given territory, organized as a body
politic, to meet at will, as individuals, without the authority of
law, and, on their own claim that they are the people of the
State, to dictate to the government such changes in its laws,
Constitution, or policy, as they may deem desirable. This ques-
tion I'do not stop here to discuss, as it will be necessary for
me to consider it fully hereafter, when I come to treat of the
218 PEOPLE’S C NVENTION OF RHODE ISLAND IN 1841.

remaining class of Conventions, called irregularly, though for
legitimate constitutional purposes, to which I now pass.

§ 226. 2. The next variety of Constitutional Conventions,
called irregularly, namely, those called in defiance of the exist-
ing governments of the States concerned, though in pretended
conformity to constitutional principles, embraces but a single
Convention, — the so-called “ People’s Convention” of Rhode
Island, held in 1841.1

For nearly two centuries prior to the meeting of that Conven-
tion, Rhode Island had governed herself under a Charter of King
Charles IL, of a character so democratic that, at the Revolution,
it was deenied unnecessary to alter or abolish it. As the State
advanced in wealth and population, however, some of the pro-
visions of the Charter became very unsatisfactory to a large por-
tion of the citizens, particularly that regulating the right of
sufhage; and naturally so; for at the time the agitation com-
menced, which resulted in the call of the People’s Convention,
the legislature of Rhode Island was elected by less than one
half of the white male adult resident citizens of the State; and
so far was the body from representing the people proportion-
ately, that the majority of the Assembly was elected by about
one-third of the freemen.? Rhode Island, moreover, originally
agricultural, had undergone great changes, — many of its smaller
towns becoming great manufacturing centres; while what were
once its chief cities had become much diminished in population.
Thus Newport, formerly the principal town, had sunk to a pop-
ulation of 8000, while Providence had risen to nearly 24,000;
yet Newport continued to be represented by six, and Providence
by four, representatives, which was also the number sent by
Portsmouth, whose population was but 1700.8

To change this system, efforts had been made from time to
time for many years. In 1824, a Convention was called by the
legislature, and a Constitution framed and submitted to the peo-
ple, but was rejected by them. Ten years later another Conven-
tion was called, but broke up without completing its task. In
January, 1841, the legislature called a third Convention, which
met in November following ; but, adjourning for the express pur-

 

1 Two Conventions were held in Rhode Island in 1841, one legitimate, before
referred to (§ 219, note 1), and the other above described.
2 Democratic Rev. for 1842, Vol. II. p. 70. 3 Ibid.
PEOPLE’S CONVENTION OF RHODE ISLAND IN 1841. 219

pose, as was declared, of obtaining the opinion of their constit-
uents on the expediency of extending the electoral franchise,
assembled again in February, 1842, and framed a Constitution,
which, being submitted to the people on the 21st, 22d, and 23d
days of March, 1842, was rejected. Finally, in June, 1842, a
fourth Convention was called by the legislature, which met in
September, framed a Constitution, and submitted it to the peo-
ple on the 21st, 22d, and 23d days of November, when it was
ratified and put in operation.) In the mean time, however, before
this successful result had been reached, the popular impatience
had vented itself in revolutionary proceedings, having for their
object the formation of a new Constitution without the consent
or privity of the existing government. These proceedings will
be described in the following section.

§ 227. The efforts of those citizens who desired an extension
of the right of suffrage in Rhode Island, having failed, as it
seems, through the unwise reluctance to diminish their own
power, of those who were voters by existing laws, there were
formed throughout the State, in 1840 and 1841, suffrage asso-
ciations, the object of which was declared to be, “to diffuse
information among the people, upon the question of forming a |
written republican Constitution.” :

On the Sth of July, 1841, a mass Convention of the friends
of the suffrage movement met at Providence, at which were said
to have been present six thousand free white male inhabitants
of the State, of the age of twenty-one years and upwards. One
of the results of the meeting was the appointment of a State
committee with large powers in relation to the conduct of the
reform agitation, and among them the power to call a Conven-
tion at a future day. On the 20th of the same month, accord-
ingly, the State committee issued a call, “ by virtue of authority
in them vested by the said mass Convention,” notifying the
inhabitants of the several towns and of the city of Providence,
to assemble together, and appoint delegates to a Convention, for
the purpose of framing a Constitution for the State, and provid-
ing, that every American male citizen, twenty-one years of age
and upwards, who had resided in the State as his home, one
year preceding the election of delegates, should have a right to
vote for delegates to said Convention, to draft a Constitution

1 Bartlett & Woodward’s I/ist. U. S., Vol. IIL pp. 609, 610.
220 PEOPLE’S CONVENTION OF RHODE ISLAND IN 1841.

to be laid before the people of said State; and that every thou-
sand inhabitants in the towns in said State should be entitled
to one delegate, and each ward in the city of Providence, to
three delegates.

In pursuance of this notification, certain of the citizens of
Rhode Island, having the prescribed qualifications, in August,
18-41, elected delegates to a Convention, which met in Provi-
dence, in October of the same year, and drafted a Constitution,
extending the right of suffrage to every white male adult citizen
of the United States, who had resided one year in the State,
and apportioning the representatives among the towns and cities
of the State as nearly as possible in proportion to their actual
population. Publishing the draft, the Convention adjourned to
meet again in the month of November, 1841. On the 18th of
November, the delegates again met and completed the draft.
They then submitted their so-called Constitution to be voted
upon by the people of Rhode Island; the voters to be American
citizens, twenty-one years of age, and having their permanent
residence or home in the State, but without any limitation of
sex, color, place of nativity, or any fixed period of residence
whatever. The voters were required to say: whether they were
qualified by the existing taws or not. The vote was to be taken
on the 27th, 28th, and 29th days of December, 1841, in open
meetings, and by an order of the Convention; every person who
“from sickness or other cause,” did not vote on those three days,
was authorized to send his vote in to the moderator, within
three days thereafter.?

§ 228. The Constitution thus framed, was submitted to the
people, as thus determined, and received, as the returns showed,
13,944 votes in its favor —a clear majority of the whole num-
ber of adult male resident citizens, of whom there were in the
State 23,000. Of the 13,944 votes cast for the Constitution,
4960 were given, it was claimed, by persons having a right to
vote under the Charter and acts of the General Assembly, being
a majority of all the voters qualified to vote by the existing laws
of whom there were in all only about 9000.

1 Luther v. Borden, 7 How. (U. S.) R. 1.

2 Considerations on the Questions of the Adoption. of a Constitution and Exten-

sion of Suffrage in Rhode Island, by Elisha R. Potter, p. 19.
8 Democratic Rev. for 1842, Vol. If. p. 71. On the other hand, it has been
PEOPLE’S CONVENTION OF RHODE ISLAND IN 1841. 221

The Constitution having been thus submitted, and, as was
claimed, adopted, on the 12th of January, 1842, at an adjourned
session of the Convention, there were passed the following pre-
amble and resolution : —

“ Whereas, by the return of the votes upon the Constitution,
proposed to the citizens of this State by this Convention, the
18th day of November last, 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 made known, ought to be
implicitly obeyed and faithfully executed ;

“ We do therefore resolve and declare, that said Constitution
rightfully ought to be, and is, the paramount law and Constitu-
tion 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.

“ Resolved, That the officers of this Convention make procla-
mation of the return of the votes upon the Constitution, and that
the same has been adopted and become the Constitution of this
State; and that they cause said proclamation to be published
in the newspapers of the same.” }

The Constitution was proclaimed, as ordered by the Conven-
tion, an election of officers under it was held, at which Thomas
W. Dorr was elected Governor, and a legislature was chosen,
which met on the 3d of May, 1842, and having taken the proper
initiatory steps to organize the new government, adjourned, leav-
ing to the executive the responsibility of sustaining it against
the attacks of the old government. This, the pretended Gov-
ernor, Dorr, attempted to do. Two separate efforts were made
to inaugurate by force the new government, — the first in May,
1842, and the last one on the 29th of June, 1842. The old gov-
ernment, however, prevailed; Dorr was driven into exile, but
finally returning, was tried for treason, convicted, and sentenced
to imprisonment for life.
denied, apparently upon good grounds, that the prople’s Constitution received
a majority of the votes either of all the American citizens in the State, over
twenty-one years of age, or of the legally qualified freemen. See Considera-

tions, &c., by Elisha R. Potter, Appendix, No. 4, p. 57.
1 Luther v. Borden, 7 How. (U. 8.) R. 1.
922 JUDICIAL DECISIONS RELATING TO

§ 229. In several legal trials growing out of the movement
just described, the question of the legitimacy of the “ People’s
Constitution,” was brought directly under discussion, both in
the State and Federal courts.

The old government of Rhode Island caused prosecutions to
be instituted in the courts of the State against some of the per-
sons concerned in the forcible measures above indicated. In
defending these actions, the parties prosecuted offered evidence
of the proceedings, resulting in the formation of the new Con-
stitution, and requested the courts to charge the jury, that “the
proposed Constitution had been adopted by the people of Rhode
Island, and had, therefore, become the established government;
and, consequently, that the parties accused were doing nothing
more than their duty in endeavoring to support it.”

The State courts, however, uniformly held, that “ the inquiry,”
as to the legitimacy of the new Constitution, “belonged to the
political power of the State, and not to the judicial; that it
rested with the political power to decide whether the Charter
government had been displaced or not; and when that decision
was made, the judicial department would be bound to take no-
tice of it as the paramount law of the State, without the aid of
oral evidence or the examination of witnesses; that, according
to the laws and institutions of Rhode Island, no such change
had been recognized by the political power; and that the Charter
government was the lawful and established government of the
State during the period in contest, and that those who were in
arms against it were insurgents, and liable to punishment.”

The same question was afterwards passed upon by the Su-
preme Court of the United States, in the case of Luther ».
Borden, carried up by writ of error from the Circuit Court of
Rhode Island. The facts of the case were briefly these :—
The Charter government of that State had declared martial law,
and raised a military force to protect itself against the attempts
of the suffrage party to subvert it. On the 29th of June, 1842,
at the time the second attempt was made by Dorr to inaugurate
his pretended new government by military force, Luther M.
Borden and others, composing a part of a regiment of militia,
raised and acting under the authority of the Charter govern-
ment, in obedience to orders from their commanding officers,
broke and entered the dwelling-house of Martin Luther, an ad-
THE PEOPLE’S CONVENIIUN OF RHODE ISLAND. 228

herent of Dorr, for the purpose of arresting him as aiding and
abetting the insurrection. Luther thereupon brought an action
of trespass, quare clausum fregit, against Borden and his asso-
ciates, in the Circuit Court of the United States for the Dis-
trict of Rhode Island, to try the question of the relative validity
of the two governments. The defendants justified their entry
by setting up the Charter of the colony, the establishment of the
Union between Rhode Island, under the Charter, and the other
States composing the United States, and the acts of the general
government and of the several States, recognizing the State of
Rhode Island as a member of the Union, under its said Charter.
They showed further the assembling together of the suffrage
party for the purpose of overthrowing the established govern-
ment of the State, the declaration of martial law, and the or-
ganization of the military force under the Charter government,
of which they constituted a part, and claimed that, in breaking
and entering the dwelling-house of the plaintiff, they were acting
under orders from the existing government, rightrully and law-
fully issued.

§ 230. To this the plaintiff replied, exhibiting in detail the
proceedings above described, resulting in the proclamation by
the suffrage party of a new Constitution, and in the forcible
attempts of Dorr to establish it. After offering evidence to
prove the case on his part, as stated, the plaintiff requested the
judge (the Hon. Joseph Story) to charge the jury, “that under
the facts offered in evidence by the plaintiff, the Constitution
and frame of government prepared, adopted and established in
the manner and form set forth and shown, thereby was and
became the supreme law of the State of Rhode Island, and was
in full force and effect, as such, during the time set forth in the
plaintiff’s declaration, when the trespass alleged therein was
committed by the defendants, as admitted by their pleas; that
a majority of the free white male citizens of Rhode Island, of
twenty-one years and upwards, in the exercise of the sovereignty
of the people through the forms and in the manner set forth in
the evidence offered by the plaintiff, and in the absence, under
the then existing frame of government of the said State of
Rhode Island, of any provision therein for amending, changing,
or abolishing the said frame of government, had the right to
reassume the powers of government, and establish a written
924 JUDICIAL DECISIONS RELATING TO

Constitution and frame of a republican form of government
and that having so exercised such right, as aforesaid, the preéx-
isting Charter government, and the authority and assumed laws,
under which the defendants in their plea claimed to have acted,
became null and void and of no effect, so far as they were re-
pugnant to and conflicted with said Constitution, and are no
justification of the acts of the defendants in the premises.” !

The court rejected the testimony offered, and refused to give
the instructions asked by the plaintiff; but, on the contrary,
instructed the jury, that the Charter government and laws, under
which the defendants acted, were, at the time the trespass was
alleged to have been committed, in full force and effect, as the
form of government and permanent law of the State, and con-
stituted a justification of the acts of the defendants, as set forth
in their pleas?

To this decision of the court exceptions were taken, and the
case was carried by writ of error to the Supreme Court of the
United States.

Before giving the decision of the latter upon the case, it
should be noted, that, at the time the people’s party assailed
the Charter government with military force, the executive of
the latter government made application to the President of the
United States for aid in maintaining the same, under the fourth
section of the fourth article of the Constitution, guaranteeing to
each State of the Union, on the application of its legislature,
or, when the legislature could not be convened, on that of its
executive, ‘protection “against domestic violence;” and the
President promised the necessary support, and took measures
to call out the militia to sustain the Charter government.

§ 231. Upon these facts, the Supreme Court, Chief Justice
Taney, delivering the opinion, held —

First. That the question involved in the case related alto-
gether to the Constitution and laws of one of the States of the
Union, and that it ‘was the well-settled rule in the courts of the
United States, that the latter adopt and follow the decisions of
the State courts in questions which concern merely the Constitu-
tion and laws of such States; that the courts of the United
States have undoubtedly certain powers under the Constitution

1 Luther v. Borden, 7 How. (U. S.) R. 1.
2 Td. p. 88.
THE PEOPLE’S CONVENTION OF RHODE ISLAND. 2235

and laws of the United States, which do not belong to the
State courts, but that the power of determining that a State
government has. been lawfully established, which the courts of
the State disown and repudiate, is not one of them; that, upon
such a question, the courts of the United States are bound to
follow the decisions of the State tribunals, and that, inasmuch
as the courts of Rhode Island had affirmed the validity of the
Charter government, and the invalidity of the pretended new
one seeking to supplant it, the courts of the United States must,
therefore, regard the Charter government as the lawful and estab-
lished government * during the time of this contest.” !

Secondly. That the fourth section of the fourth article of the
Constitution of the United States provides, that the United
States shall guarantee to every State in the Union a republican
form of government, and shall protect each of them against in-
vasion ; and, on the application of the legislature, or of the exec-
utive (when the legislature cannot be convened), against do-
mestic violence; that, under this article of the Constitution, it
rests with Congress to decide what government is the estab-
lished one in a State; for, as the United States guarantee to
each State a republican government, Congress must necessarily
decide what government is established in the State before it can
determine whether it is republican or not; and when the sena-
tors and representatives of a State are admitted into the coun-
cils of the Union, the authority of the government under which
they are appointed, as well as its republican character, is recog-
nized by the proper constitutional authority, and its decision is
binding on every other department of the government, and
could not be questioned in a judicial] tribunal. So, too, as re-
lates to the clause of the Constitution providing for cases of:
domestic violence, it rested with Congress to determine upon
the means proper to be adopted to fulfil this guarantee. ‘They
might, if they had deemed it most advisable to do so, have
placed it in the power of a court to decide when the contingency
had happened which required the Federal government to inter-
fere. But Congress thought otherwise; and by the Act of Feb.
28, 1795, provided, that “in case of an insurrection in any State
against the government thereof, it shall be lawful for the Presi-
dent of the United States, on application of the legislature of

1 Luther v. Borden, 7 How. (U. 8.) R. 40.
226 PEOPLES CONVENTION CONSIDERLD UPON PRINCIPLE.

such State, or of the executive (when the legislature cannot be
convened), to call forth such number of the militia of any other
State or States as may be applied for, as he may judge sufficient
to suppress such insurrection ;” that this power, conferred upon
the President by the Constitution and laws of the United States,
belonged to him exclusively; that the President had acted in
the case of Rhode Island, not, it was true, by actually calling
out the militia, on the application of the Governor of Rhode
Island, under the Charter government, but by recognizing him as
the executive of the State, and by taking measures to call out
the militia to support his authority, if it should be found neces-
sary for the general government to interfere; that this interfer-
ence of the President by announcing his determination, was as
efficient as if the militia had been assembled under his orders;
that it ought to be equally authoritative; and that no court of
the United States would, knowing this decision, be justified in
recognizing the opposing party as the lawful government.

For these reasons, the judgment of the circuit court, acquit-
ting the defendants, was affirmed.

§ 232. It is perhaps unfortunate that the question involved in
this case could not have been decided by the Supreme Court of
the United States, directly upon principle. As in the case
which went up from Michigan, involving the legitimacy of the
State government organized in the territory of that name in 18357
so, in that of Luther v. Borden, the question discussed was
treated'in the Supreme Court as one simply of jurisdiction, the
court abstaining from expressing any opinion on the points most
interesting to us in this discussion. Upon the merits of the con-
troversy, therefore, judicial authority is wholly wanting, save as
it is derived from the adjudications of the courts of the State,
which obviously cannot be considered as conclusive. To deter-
mine, then, the question as to the right of the citizens of a State
to alter or abolish their political Constitution, without the con-
sent of the existing government, we are compelled to recur to
fundamental principles. For such a discussion we are happily
not without abundant materials. In the argument of Luther ¢.
Borden in the Supreme Court, Mr. Webster and Mr. Hallett,
counsel respectively for the Charter government of Rhode Island,

1 Luther v. Borden, 7 How. (U. 8.) R. 44.
2 Ante, §§ 207, 208,
ARGUMENT OF MR. HALLETT IN THE SUPREME court. 227

and for the plaintiffs in error, representing the Dorr government,
met the case fairly and squarely, expounding with very great
ability the principles involved, upon which alone they sought to
rest the cause of their clients. Perhaps I could not better ex-
hibit the true doctrine on the question than by transcribing,
within reasonable limits, and contrasting the arguments of those
gentlemen, who, to eminent ability and learning as lawyers,
added a special fitness for this discussion, as being leading mem-
bers of the two great political parties of the time, which had
ranged themselves, in the main, upon opposite sides in the
Rhode Island controversy.

) 233. In behalf of the plaintiff in error, Martin Luther, Mr.
Hallett urged: — That the fundamental principle of the Amer-
ican system of government 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 major-
ity of the community has an indubitable, inalienable, and inde-
feasible right to alter or abolish the same, in such manner as
shall be judged most conducive to the public weal; that the
terms “ community,” * society,” “state,” “nation,” “ body of the
community,” “ great body of the people,” are used by early polit-
ical writers as synonymous with the word “people;” and that
all the Atnerican writers use the term “ people” to express the
entire numerical aggregate of the community, whether state or
national, in contradistinction to the government or legislature ;
that in the people, as thus defined, resides the ultimate power of
sovereignty ; that it is the people, or sovereign, that has the sole
right to establish government, and, when deemed necessary, to
alter or abolish it; and that according as well to the teachings of
the best political writers as to the positive affirmations of many
of our Constitutions, the people may meet when and where they
please, and dispose of the sovereignty, or limit the exercise of
it; that the doctrine that legislative action or sanction Is neces-
sary, as the mode of effecting a change of State government, is
anti-republican and novel, having been broached for the first
time under the United States government, in the debate In
Congress upon the admission of Michigan, December, 1836 ;
that, in the United States, no definite uniform mode has ever
been established for either instituting or changing a form of
228 ARGUMENT OF MR. HALLETT IN THE SUPREME COURT.

State government; that the State legislatures have no power or
authority over the subject, and can interfere only by usurpation,
any further than like other individuals, to reeommend; that the
great body of the people may change their form of government
at any time, in any peaceful way, and by any mode of opera-
tions that they for themselves determine to be expedient; that,
even where a subsisting Constitution points out a particular
mode of change, the people are not bound to follow the mode
pointed out, but may, at their pleasure, adopt another; that,
where no Constitution exists, and no fundamental law prescribes
any mode of amendment, then they must adopt a mode for
themselves; and the mode they do adopt, when ratified or ac-
quiesced in by a majority of the people, is binding upon all ; that
it is a well-settled rule in the United States, that a State Con-
stitution, being the deliberate expression of the sovereign will of
the people, takes effect from the time that will is unequivocally
expressed in the manner provided in and by the Constitution
itself; that is, from the time of its ratification by the vote of the
people, which, in the language of Washington, is of itself “an
explicit and authentic act of the whole people ;” that this right
of the people to change, alter, or abolish their government, in
such manner as they please, is a right not of force but of sov-
ereignty ; that whatever may be the case with the I’ederal gov-
ernment, no right of revolution, in the common and European
sense of the term, implying a change by force, is anywhere
sanctioned, so far as the individual States are concerned, in the
Constitution of the United States; that a revolution by force,
inasmuch as it includes insurrection and rebellion, which con-
stitute “ domestic violence,” against which, by the Federal Con-
stitution, Congress is bound to guarantee the States, can never
be resorted to within the limits of that Constitution, while a
State remains in the Union; that, therefore, when our best writ-
ers and our Constitutions affirm the existence of the right above
asserted in the people, they affirm a right to be exercised, not
by force, but by peaceful and constitutional methods ; that, as a
consequence of these principles of government and sovereignty,
acknowledged and acted upon in the United States and the
several States thereof, at least ever since the Declaration of
Independence, the Constitution and frame of government, pre-
pared, adopted, and established by the “ People’s Convention”
ARGUMENT OF MR. WEBSTER IN THE SUPREME COURT. 229

in Rhode Island, 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!

§ 234. The argument of Mr. Webster in reply to this most
ingenious defence of anarchical principles, consisted mainly in a
masterly statement of the principles of the American system of
government. It was in substance as follows : —

That without going into historical details, the principles on
which the American system rests, are, first and chief, that the
people are the source of all political power, government being
instituted for their good, and its members, their servants and
agents; and, secondly, that, as the exercise of legislative power
and the other powers of government immediately by the people
themselves, is impracticable, they must be exercised by represent-
atives of the people ; that the basis of representation is suffrage ;
that the right to choose representatives is every man’s part in the
exercise of sovereign power; to have a voice in it, if he has the
proper qualifications, is the portion of political power belonging
to every elector; that that is the beginning, the mode in which
power emanates from its source and gets into the hands of
Conventions, legislatures, courts of law, and the chair of the ex-
ecutive ; that it begins in suffrage — suffrage being the delega-
tion of power of an individual to some agent; that, this being
so, there follow two other great principles of the American sys-
tem : first, that the right of suffrage shall be guarded, protected,
and secured against force and fraud ; and, secondly, that its ex-
ercise shall be prescribed by previous law; that is, that its quali-
fications, and the time, place and manner of its exercise, under
whose supervision (always sworn officers of the law) are to be
prescribed by previous law; and that its results are to be certi-
fied to the central power by some certain rule, by some known
public officers, in some clear and definite form, to the end that
two things may be done — first, that every man entitled to vote
may vote, and, second, that his vote may be sent forward and
counted, and so he may exercise his part of sovereignty, in
common with his fellow-citizens; that not only do the people
limit their governments, National and State — it is another prin-
ciple, equally true and important that they often limit them-

1 Luther v. Borden, 7 How. (U. 8.) R. 19-27.
‘2930 ARGUMENT OF MR. WEBSTER IN THE SUPREME COURT.

selves ; that they set bounds to their own power; securing the
institutions which they establish against the sudden impulses of
mere majorities; thus, by the dth Article of the Constitution,
Congress, two-thirds of both Houses concurring, may propose
amendments of the Constitution, or on the application of the
legislatures of two-thirds of the States, may call a Convention—
the amendments proposed, in either case, to be ratified by the
legislatures or Conventions of three-fourths of the States; that
they also limit themselves in regard to the qualifications of
electors, and in regard to the qualifications of the elected; they
also limit themselves to certain prescribed forms for the conduct
of elections, —it being required, that they shall vote at a particu-
lar place, at a particular time, and under particular conditions,
or not at all; that it is in these modes we are to ascertain the
will of the American people, and that our Constitutions and laws
know no other mode; that we are not to take the will of the
people from public meetings, nor from tumultuous assemblies,
by which the timid are terrified, the prudent alarmed, and society
disturbed ; and: that, if any thing in the country, not ascertained
by a regular vote, by regular returns, and by regular representa-
tion, has been established, it is an exception and not the rule.

§ 235. Referring to the same principles, he continued: That it
is true, at the Revolution, when all government was dissolved,
the people got together and began an inceptive organization, the
object of which was to bring together representatives of the peo-
ple who should form a government; that this was the mode of
proceeding in those States where their legislatures were dissolved;
that it was much like that had in England upon the abdication
of King James II; he ran away, he abdicated, and King Wil-
liam took the government, and how did he proceed? He at
once requested all who had been members of the old Parliament,
of any regular Parliament, in the time of Charles IT., to assem-
_ ble; the Peers, being a standing body, could, of course, assem-

ble; and all they did was to recommend the calling of a Conven-
tion, to be chosen by the same electors, and composed of the
same numbers as composed a Parliament; the Convention assem-
bled, and, as all know, was turned into a Parliament; that this
was a case of necessity, a revolution, so-called, not because a
new sovereign then ascended the throne of the Stuarts, but
because there was a change in the organization of the govern-
ARGUMENT OF MR. WEBSTER IN THE SUPREME COURT. 281

ment; that the legal and established succession was broken;
the Convention did not assemble under any preceding law; there
was a hiatus, a syncope, in the action of the body politic; this
was a revolution, and the Parliaments that assembled afterwards
referred their legal origin to that revolution.

Is it not obvious enough, he asked, that men cannot get to-
gether and count themselves, and say there are so many hun-
dreds, and so many thousands, and judge of their own qualifica-
tions, and call themselves the people, and set up a government ?
Why, said he, another set of men, forty miles off, on the same
day, and in as large numbers, may meet and set up another
government, and both may call themselves the people. What
is this but anarchy ?

Another American principle growing out of this, said Mr.
Webster, and just as important and well settled as is the truth,
that the people are the source of power is, that when, in the
course of events, it becomes necessary to ascertain the will of
the people on a new exigency, or a new state of things or of
opinion, the legislative power provides for that ascertainment by
an ordinary act of legislation. Has not that been our whole
history? The old Congress, upon the suggestion of the del-
egates who assembled at Annapolis, in May, 1786, recommended
to the States that they should send delegates to a Convention
to be holden at Philadelphia, to form a Constitution. No article
of the old Confederation gave them power to do this, but they
did it, and the States did appoint delegates, who assembled at
Philadelphia, and formed the Constitution. It was communi-
cated to the old Congress, and that body recommended to the
States to make provision for calling the people together to act
upon its adoption. Was not that exactly the case of passing a
law to ascertain the will of the people in a new exigency? And
this method was adopted without opposition, nobody suggesting
that there could be any other mode of ascertaining the will of
the people. The counsel for the plaintiff in error went through
the Constitutions of several of the States. It is enough to say,
in reply, that of the old thirteen States, the Constitutions, with
but one exception, contained no provision for their own amend-
ment. In New Hampshire, there was a provision for taking the
sense of the people once in seven years. Yet there is hardly
one that has not altered its Constitution, and it has been done
232 OBSERVATIONS UPON MR. HALLETT’S ARGUMENT.

by Conventions called by the legislative power. Now, what
State ever altered its Constitution in any other mode? What
alteration has ever been brought in, put in, forced in, or got in
any how, by resolutions of mass-meetings, and then by applying
force? In what State has an assembly, calling itself the people,
convened without law, without authority, without qualifications,
without certain officers, with no oaths, securities, or sanctions
of any kind, met and made a Constitution, and called it the
Constitution of the State? There must be some authentic
mode of ascertaining the will of the people, else all is anarchy.
It resolves itself into the law of the. strongest, or, what is the
same thing, of the most numerous for the moment, and all Con-
stitutions and all legislative rights are prostrated and disre-
garded.

To these arguments he added another, founded on the pro-
vision of the Federal Constitution (Article 4, section 4), similar
in its terms to that contained in the opinion of the Supreme
Court, already referred to, showing that the Charter government
of Rhode Island was the only one that could be recognized by.
the court or by the government of the United States, which, by
its own Constitution, was pledged to protect and maintain it.}

§ 236. It seems presumptuous to attempt to add any thing to
an argument so solid and conclusive as that of Mr. Webster,
but I cannot forbear from remarking upon two or three poinis
made by Mr. Hallett.

1. Combating “the doctrine that legislative action or sanction
is necessary, as the mode of effecting a change of State govern-
ment,” as “anti-republican and novel,’ Mr. Hallett asserted,
that, “in the United States, no definite uniform mode has ever
been established for either instituting or changing a form of State
government.” This is true, if, by the establishment of a definite
uniform mode, be meant the prescribing of such a mode bya
provision of either the Federal or State Constitutions, so as to
be binding upon the States. But it is not essential to the estab-
lishment of such a mode, that it should be done by constitu-
tional provision. The common practice of all the States, as well
as of the United States, rarely departed from even amidst the
distractions of the Revolution, according to which the calling

1 See Great Speeches and Orations of Daniel Webster, by E. P. Whipple
(Little, Brown & Co., 1879), p. 538.
OBSERVATIONS UPON MR. HALLETT’S ARGUMENT. 233

of Conventions for the purpose of “ either instituting or changing
a form of government,” is left to the proper legislative authority
in each case, is itself a part of the common law of the land,
from which, except in cases of necessity, to be judged of only
by the same legislative authority, no departure ought to be tol-
erated. Such a mode is not only established, but it is as definite
and uniform as any mode can be, consistently with safety.

§ 237. 2. The capital point in Mr. Hallett’s argument, how-
ever, was, that it is a right of the people to change, alter, or abol-
ish their government, in such manner as they please,” and that this
right “is a right, not of force, but of sovereignty.”

Now, if in this extract, by the word “people,” be meant the
nation, considered as a political unit, I observe that, conceding
the right claimed for it to exist, the exercise of that right would
be wholly impracticable. The people, in that sense, never did,
and never could act directly ; it could act only by a delegation
of its authority, as, to the legislature, to the electors, and the
like, —the terms and conditions of that delegation being pre-
scribed in the Constitution. The right of the people then, in
this sense of the term, if it exist, is a right that never has been,
and never can be exercised; that is, is, oractically, not a right
at all.

But, were there no such inherent impracticability ; if the en-
tire population of a State could, as it is often expressed, “ meet
upon some vast plain,” so long as that population was organized
under a Constitution, like those with which we are familiar
though it would be physically able to carry into execution such
ordinances as should get themselves passed at its tumultuous
parliament, it clearly would have no constitutional or legal right
to pass an ordinance at all. Such an assemblage would not
constitute, in a political sense, The People. The people of a
State is the political body — the corporate unit—in which are
vested, as we have seen, the ultimate powers of sovereignty ;
not its inhabitants or population, considered as individuals. It
is never to be forgotten, that the individuals, constituting a State,
have, as such, no political, but only civil, rights. Except as an
organized body, that is, except when acting by its recognized
organs, the entire population of a State already constituted,
were it assembled on some vast plain, could not constitutionally
pass a law or try an offender.
234 OBSERVAIIONS UPON MR. HALLETTI’S ARGUMENT.

§ 288. If, on the other hand, by the term “people,” be meant
that part of the population of a State, in whom is vested, by
the Constitution, the exercise of sovereign rights, the electors,
the doctrine, that they have “the right to change, alter, or abol-
ish their government, in such manner as they please,” is absurd
and ridiculous —I mean, as a legal or constitutional right, or,
as Mr. Hallett says, as a “right; not of force, but of sovereignty.”
They have a right, unquestionably, “to change, alter, or abolish
their government,” in the mode provided in the charter deter-
mining their powers, the Constitution, or, when that is silent,
in such a mode as shall be conformable to the customary law
of the land, and to the general principles of a republican repre-
sentative system. By both these, as well as by the express pro-
visions of such Constitutions as are not silent on the subject,
movements of the people, with a view “to change, alter, or
abolish their government,” are never initiated but by the legis-
lative authority of the State. Why this should be so, is shown
by Mr. Webster in that part of his argument in which are ex-
hibited the practical requisites to the authenticity of a vote!
If there is anywhere, in our political system, then, a power to
change, alter, or abolish the existing government, as a legal
right, it must reside in some branch of that government, by vir-
tue of authority given in the Constitution; or, where there is no
express authority given, in some body called for that purpose
by the rightful law-making power of the State.

§ 239. Again: The argument of Mr. Hallett in support of the
proposition, that the right of the people to change, alter, or abol-
ish their government, in sach manner and at such time as they
may please, is a right, not of force, but of sovereignty, consists
of two branches —a negative branch, and an affirmative branch.

The negative branch of the argument is, that the right cannot
be a mere right of force or of revolution, because the Consti-
tution of the United States nowhere recognizes the right of
revolution, in the common and European sense of the term, so
far as the States are concerned; but that, inasmuch as revolu-
tion by force involves insurrection and rebellion, which consti-
tute “ domestic violence,” against which Congress is bound by
that Constitution to guarantee the States, it can never be resorted

1 § 234, ante.
OBSERVATIONS UPON MR. HALLETT’S ARGUMENT, 235

to within the limits of the Constitution, while a State remains
in the Union.

The facts stated are perfectly true, but the inference drawn
from them is unwarranted. Revolution can never be resorted
to under the Federal Constitution, or under any other Constitu-
tion, /egally; but, when the evils under which a commonwealth
languishes, become so great as to make revolution, including
insurrection and rebellion, less intolerable than an endurance of
those evils, it will be justifiable, although the Federal relations of
that commonwealth may be such as to array against her forces
vastly greater than they would be were she and the other States
independent and isolated communities. The right of revolution
stands not upon the letter of any law, but upon the necessity
of self-preservation, and is just as perfect in the single man, or
in the petty State, as in the most numerous and powerful em-
pire in the world. This right, the founders of our system were
careful to preserve, not as a right under, but, when necessity
demanded its exercise, over our Constitutions, State and Federal.

§ 240. The affirmative branch of the argument is, that the right
asserted must be a right of sovereignty and not of force, because
it is specifically guaranteed in the Declaration of Independence
and in the Bills of Rights of nearly all our State Constitutions.

To determine whether this inference from facts which cannot
be denied is just or not, it is necessary to examine critically the
documents indicated, as well as the historical circumstances
attending their inception.

Now these documents are of three kinds. The first kind con-
sists of such as assert the right clearly and unmistakably as a
right of revolution.

Thus, the Declaration of Independence affirms, “ that when-
ever any form of government becomes destructive” of the ends
of government, “it is the right of the people to alter or abolish
it, and to institute a new government, laying its foundation on
such principles, and organizing its powers in such form as to
them shall seem most likely to effect their safety and happiness.”

Not only so, but it classes this affirmation among the self-
evident truths : « We hold these truths to be self-evident.”

Now, no truth can be self-evident, which becomes evident
only under particular conditions, as when it is deducible only
from the construction of legal instruments, or from the provisions
236 OBSERVATIONS UPON MR. HALLETT’S ARGUMENT.

of some positive code. It must be a truth independently of such
conditions, as would be indispensable to give it rank as a legal
truth. If the truth in question is a self-evident truth, it is one
which would obtain equally whether asserted in the Constitution
and laws or not.

Now, that a people, organized under a Constitution, which
itself provides a particular mode for its own amendment, have a
legal right to alter or abolish it whenever and however they
please, is not a self-evident truth, and could never have been
claimed to be such by any body of sane men.

Moreover, the circumstances, under which the Declaration of
Independence was promulgated, and the clear import of its terms,
indicate, that it was the right of revolution to which its authors
referred. That instrament was the manifesto by which they
declared that to be a revolution, which hitherto had been but a
mere insurrection. Its language was that of justification for
acts tending to the permanent disruption of the empire. “ Pru-
dence, indeed, will dictate,” its authors say, “ that governments
long established should not be changed for light and transient
causes; and accordingly all experience hath shown, that man-
kind are more disposed to suffer, while evils are sufferable, than
to right themselves, by abolishing the forms to which they are
accustomed. But when a long train of abuses and usurpations,
pursuing invariably the same object, evinces a design to reduce
them under an absolute despotism, it is their right, it is their
duly, to throw off such government, and to provide new guards for
their future security.”

Here, certainly, our fathers were not claiming, as guaranteed
or existing by the laws of England, a right to disrupt the British
empire, but a right older than tho-e laws, the right of revolution.

§ 241. The second class of documents consists of the Bills of
Rights of a large number of our Constitutions, containing broad
general assertions of the right of a people to alter or abolish
their form of government, at any time, and in such manner as they
may deem expedient. The peculiarity of these documents is,
that they seem to assert the right in question as a legal right;
at least, they furnish a plausible argument for those who are
willing to have it believed that the right is a legal one; when, in
fact, it is a revolutionary right. The framers of those Constitu-
tions generally inserted in them provisions for their own amend-
OBSERVATIONS UPON MR. HALLETT’S ARGUMENT. 237

ment. Had nothing further been said, it might have been in-
ferred, that no other mode of securing needed changes was under
any circumstances to be pursued, but that prescribed in those
instruments. Such, however, was not the intention of their
framers. They meant to leave to the people, besides, the great
right of revolution, formally and solemnly asserted in the Dec-
laration of Independence. They, therefore, affimed it to be a
right of the people to alter or abolish their Constitutions, in any
manner whatever ; that is, first, legally, in the mode pointed out
in their Constitutions, or by the customary law of the land; and
secondly, illegally, that is, for sufficient causes, by revolutionary
force.

Thus, the Bill of Rights of Mississippi contains a provision,
which is a type of that found in a great number of our State
Constitutions, couched in the following terms: “ We declare,

. that all power is inherent in the people, and all govern-
ments are founded on their authority, and instituted for their
safety, peace and happiness. or the advancement of these ends,
they have, at all times, an unalienable and indefeasible right to
alter, reform, or abolish their government, in such manner as they
may think proper.” 1

But, let it be noted, that these Constitutions do not say, that
every mode of exercising this right will be a legal mode. What
they do declare is, in effect, this: The people cannot bind them-
selves or be bound, irretrievably, to continue a form of govern-
ment, when it has ceased to answer the ends of its establishment.
They may change it or set it aside in any way whatever that
circumstances may make necessary. Lhey may do it by force
even, and, of course, by the mild and regular procedure laid down
in their Constitution — calling things always, however, by their
right names; when doing it in the latter mode, designating it as
legal or constitutional, but when in the former, as revolutionary.

1 Substantially the same is the declaration found in each of the following
Constitutions : — Those of Massachusetts, 1780; Vermont, 1786; Connecticut,
1813; Maine and Alabama, 1819; Delaware, 1831; Mississippi, 1832; Ten-
nessee, 1834; Arkansas, 1836; Pennsylvania, 1838; Florida, 1839; New Jer-
sey, 1844; Texas, 1845; Missouri, 1846; California, 1849; Kentucky, 1850;

Ohio, 1851; and Jowa, Oregon, and Minnesota, 1857. Where revisions have
been sind, of these Constitutions, the provision is commonly inserted therein
without modification.
238 OBSERVATIONS UPON MR. HALLETT’S ARGUMENT.

§ 242. That the view I have taken of the two classes of docu-
ments specified is the correct one, is rendered more probable
when we look into the state of opinion in England and America,
previous to our Revolution, in reference to the duties of a people
towards their rulers, embodied, in conformity to the views of
the latter, in the famous doctrine of “ Passive Obedience” or
“ Non-Resistance.”

The substance of this doctrine was, that governments are of
divine appointment, and hence that any resistance whatever to
kingly authority (for it was to bolster up the institution of mon-
archy that it was invented), even when that authority is ex-
erting itself in palpable violation of the laws, is sinful in the
sight of God. This doctrine, originating in the Middle Ages,
was held by the Tory party in England during the entire exist-
ence of the Stuart dynasty, their opponents, the Whigs, on the
contrary, maintaining the essential principles of liberty, the inde-
pendence of Parliament and of the people, and the lawfulness of
resistance to a king who violated the laws. After the fall of the
Stuarts, the doctrine was generally discredited, but in the alterna-
tions of parties which ensued, it was frequently revived, mainly
through the influence of the Church, which repaid the favors
lavished upon her by the crown, by inculcating doctrines tending
to make the latter absolute master of the public liberties. Dur-
ing the long period of Whig ascendency, however, extending
with few intermissions from the reign of William III. to that
of George IIL, the slavish dogma of Passive Obedience became
nearly exunct, being subjected to persecution by the party in
power. In the reign of Queen Anne, Dr. Sacheverell was
impeached for maintaining it in a sermon preached before the
Commons! At the accession of George III., however, there
came a great Tory reaction, and the doctrine of Non-Resist-
ance was again preached by all of that numerous party which
thought what was pleasing to the ruling monarch. At the time

1 In his answer to the Articles of Impeachment, the Doctor said: — “ The said
Henry Sacheverell, upon the strictest search into his said sermon preached at
St. Paul’s, doth not find that he hath given any the least colourable pretence for
the accusation exhibited against him in this first article, but barely by his assert-
ing the utter illegality of Resistance to the Supreme power upon any pretence
whatsoever ; for which assertion, he humbly conceives he hath the authority of
the Church of England.” 15 How. St. Trials, p. 42.
OBSERVATIONS UPON MR. HALLETT’S ARGUMENT. 2389

our Revolution broke out the minds of men everywhere through-
out the British empire were oppressed by scruples, resting on
the teachings of revered names in the Church, as to the sinful-
ness of resistance to the usurpations of the King, even when he
was evidently laying violent hands on the very temple of free-
dom itself.

§ 243. Among the most difficult tasks of the men of our Rev-
olution, therefore, was to disabuse the public mind of the heresy
of Passive Obedience or Non-Resistance. ‘The discussions pre-
ceding the revolt are filled with arguments tending to make it
clear to tender consciences in the colonies, that in entering upon
a course of opposition to King and Parliament, they were not
guilty necessarily of a sin or a crime.2 In this great work, natu-
rally, the clergy of the period bore a conspicuous part. It was
left to no particular class, however, to clear up a doubt, which
strikes the mind in our day as absurd. It was preached down
in the pulpits, argued against in the halls of legislation and upon
the stump, and, to make sure that it should be deprived of all
further power to mislead, it was nailed to the wall for public
reprobation in the great manifesto of our Revolution, and in our
Bills of Rights.

When the fathers, therefore, in the Declaration of Indepen-
dence, solemnly affirmed the right of a people to alter or abolish
their government, whenever it should have become destructive
of its proper ends, “ laying its foundation on such principles, and
organizing its powers in such form, as to them should seem
most likely to effect their safety and happiness,” they were fight
ing the old dragon of Passive Obedience, now long since dead;
to our age, the shadow of a peril long past and apparently so
baseless, that we can scarcely realize that it ever existed. By
this declaration, in other words, the statesmen of the Revolution
meant merely to deny, that the people could not, without mortai
sin, arrest their rulers in a career of usurpation, even if their op-
position should terminate in blood; and to affirm, that govern-
ment being instituted for the good of the people, and not the
people created as slaves to the government, obedience was due

1 On the whole subject of Non-Resistance, see Macaulay, Hist. Eng., Vol. I.
pp. 37, 38, 824-826; May, Const. Hist. Eng., Vol. I. pp. 15-104; Hallam,

Const. Hist. Eng., pp. 237, 238, 491,493 ; Hume, Hist. Eng., VI. pp. 133, 134.
2 See Bancroft, Hist. U. S., Vol. V. pp. 195, 206, 288, 289, 324, 325.
240 OBSERVATIONS UPON MR. HALLETT’S ARGUMENT.

trom the one to the other only so long as it was not destructive
of the ends of government.

The same motives which led to the insertion of the clause in
the Declaration of Independence, induced the framers of our
Constitutions to place it in the Bills of Rights prefacing those
instruments.

§ 244. A confirmation of this construction of this clause in
our Constitutions is found in the context to it in some of those
instruments. Thus, the Maryland Constitution of 1776, the New
Hampshire Constitution of 1792, and the Tennessee Constitu-
tion of 1834, contained immediately after the clause in question
the following declaration : — ;

* The doctrine of non-resistance against arbitrary power and
oppression, is absurd, slavish, and destructive of the good and
happiness of mankind.”

§ 245. It remains now to notice the third and last kind of
documents referred to, namely, Constitutions containing clauses
in some respects resembling those commented upon above, but
of which the effect is different, or the reverse. These are the
Constitutions of Virginia, Rhode Island, aud Maryland.

In the Bills of Rights of the various Virginia Constitutions
is found the following declaration : —

“ That government is, or ought to be, instituted for the com-
mon benefit, protection, and security of the people, nation, or
community. Of all the various modes and forms of govern-
ment, that is best which is capable of producing the greatest
degree of happiness and safety, and is most effectually secured
against the danger of maladministration; and that when any
government shall be found inadequate or contrary to these
purposes, a majority of the community hath an indubitable, in-
alienable, and indefeasible right to reform, alter, or abolish it,
in such manner as shall be judged most conducive to the public
weal.”

Now, the authors of this declaration evidently intended by it
to assert for “a majority of the community” either a legal
or a revolutionary right. If it was the latter, why confine to a
majority a right which belongs to one man or a hundred men
as perfectly as to a million, or to a majority of all the citizens?

Again: unless by the term majority be meant that which is
greater, not in numbers, but in force, the clause, as declaratory
OBSERVATIONS UPON MR. HALLETT’S ARGUMENT. 241

of a revolutionary right, is absurd. Nature knows no majority
but that of force. The majorities, of which we hear so much,
of the male adult citizens invested with the suffrage, are matters
of positive regulation. Does Nature determine the age at which
a citizen becomes an adult citizen? or does she confine the
exercise of the suffrage to males only?

As, however, that use of the word majority is unprecedented,
it is clear that the words referred to were intended to assert a
legal right. But if the right belongs to a majority to alter or
abolish the existing form of government as a legal right, it must
be to a majority of the electors, acting in pursuance of some
law passed according to the forms of the Constitution. No
other majority and no other people are known to the laws, nor
could the action of any other majority or any other people be
denominated /egal. I conclude, therefore, that the clause refers
merely to the ordinary and accepted modes of amending or
repealing Constitutions, leaving a choice of them to the existing
government.

That the words referred to have been generally considered
objectionable, as liable to misconstruction, may be inferred from
the fact that, although a great number of the Constitutions
formed in other States have copied the Virginia declaration, not
one of them has ever retained those words. One instance will
suffice. The Vermont Bill of Rights declares “that the com-
munity” — not “a majority of the community,” as in that of
Virginia — “hath an indubitable, inalienable, and indefeasible
right,” &e.1

§ 246. In the Rhode Island Constitution, framed in 1842, is
found the following declaration : —

* In the words of the Father of his Country, we declare, that
‘the basis of our political systems is the right of the people to
make and alter their Constitutions of government; but that the
Constitution which at any time exists, ¢ill changed by an explicit
and authentic act of the whole people, is sacredly obligatory upon
all.’ ”

So, also, to a similar effect, is a clause in the Maryland Con-
stitution of 1851, which declares, —

1 See also the Constitutions of Connecticut, 1818; Alabama, 1819; Missis-
sippi, 1832; Tennessee, 1834; Arkansas, 1836; Pennsylvania, 1838 ; Florida,
1839; Texas, 1845; Kentucky, 1850; and Oregon, 1857, —in which the same
omission is observable.
242 OBSERVATIONS UPON MR. HALLETT’S ARGUMENT.

“ That all government of right originates from the people, is
founded in compact only, and instituted solely for the good of
the whole; and they have at all times, according to the mode pre-
scribed in this Constitution, the unalienable right to alter, reform,
or abolish their form of government, in such manner as they may
deem expedient.”

In these two Constitutions there is no declaration of the right
of revolution, those clauses which are usually so worded as to
assert that right being, in these, confined by restrictive clauses, so
as to make the right involved a mere lega/ right to alter or abol-
ish forms of government in modes appointed by law.

It is obvious —recurring to the clause in the Rhode Island
Constitution — that, if a form of government remains unaltered
until “changed by an explicit and authentic act of the whole
people,” it will remain so forever, unless the modes and instru-
mentalities employed to effect the change are appointed and
regulated by positive law. The whole people cannot meet in
Convention. No declaration of their will can be explicit, no
representation of them by a few can be authentic, unless made
and authorized through some organ empowered to utter their
voice,

In the Maryland declaration it is difficult to give any effect at
all to the concluding words, “ in such manner as they may deem
expedient.” Referring to the debates preceding the adoption of
the section, it is apparent that the effect of inserting the clause
restricting alterations of the Constitution “to the mode pre-
scribed in this Constitution,” was not well considered. Striking
out from the clause, as it n>¥v r2ads, the restrictive words,
it conforms closely to those inserted in so many of our Consti-
tutions of which I have before spoken. As Maryland had suf-
fered from revolutionary attempts to alter her Constitution, het
Convention desired to narrow within safe limits that important
right. It therefore inserted the restrictive words, but neglected
to strike out those which are significant only as declaratory of
the old revolutionary right, thus seeming to negative its own
intention. The only construction that can be given to the sec-
tion which will allow all of its parts to stand, is to refer the
clause, “in such manner as they may deem expedient,” to the
words “alter” and “reform,” and not to the nearer word * abol-
ish.” It would then mean that the people have an inalienable
SECESSION CONVENTIONS. 2438

right, in the mode prescribed in the Constitution, to alter or
reforin the same in such manner as they may deem expedient —
that is, make such changes therein as they please — or the right
wholly to abolish it. Thus, by a sacrifice of grammatical accu-
racy, the work of the Convention is redeemed from self-contra-
diction.

§ 247. (c.) The last variety of Conventions which I shall
mention consists of those exceptional bodies by which were
effected, first, the so-called secession of certain slave States
from our Union in 1860 and 1861 ; and secondly, the reconstruc-
tion of those States preparatory to a resumption of their normal
relations to the Union in 1864, 1865, 1866, and 1868.

The States concerned, in the order in which their ordinances
of secession were passed, were South Carolina, Mississippi,
Florida, Alabama, Georgia, Louisiana, Texas, Arkansas, Vir-
ginia, Tennessee, North Carolina, and Kentucky — the ordi-
nance of the first having been passed in December, 1860, and
that of the last in November, 1861.

It is not my purpose to enter fully upon the history of the
Secession Conventions, since the view I take of them renders
only a few of the leading facts relating to the call of these
bodies important.

The Secession Conventions were called avowedly to effect,
by revolutionary means, the disruption of the American Union,
established by the war of Independence, and confirmed by the
Federal Constitution of 1789. The election of Mr. Lincoln
upon a platform deemed menacing to the interests of those
States, was the wrong, to redress which the rupture of their
constitutional relations to their sister States was attempted. By
concert among the leading men of the South, and perhaps in
pursuance of a long cherished purpose, Conventions were called
in every State but one above named, as soon after the announce-
ment of Mr. Lincoln’s election as the popular attachment to the
existing government could be made to give way to a desire for
Southern Independence. Tennessee called no Convention, but
as her legislature assumed to act as a Convention, and in that
capacity passed a pretended Ordinance of Secession, I have reck-
oned that body amongst the Secession Conventions.

§ 248. The mode of calling these Conventions was as follows:
The legislatures of many of the States meeting, by law, not far
944 SECESSION CONVENTIONS.

from the time of the Presidential election, the friends of seces-
sion easily secured the passage of Acts calling Conventions in
those States. Where those bodies were not soon to assemble, it
became necessary to prevail upon the governors of the States
to call extra sessions of their legislatures —a thing easily ac-
complished, as most of those officers were ardent champions of
the secession cause, and perhaps, for that reason, had been
chosen to fill their respective places. When assembled, these
bodies found little difficulty in falling in with the current and
calling Conventions, generally declaring the object of them to
be to consider the “relations between the government of the
United States, the people and governments of the different
States, and the government and people ” of the State concerned,
“and to adopt such measures for vindicating the sovereignty of
the State and the protection of its institutions” as should
appear to be demanded.' In most of the States, the question
of calling those Conventions was not submitted to the people,
though in Tennessee and North Carolina it was so submitted,
and was voted down, the electors in the latter State, neverthe-
less, at the same time, with a singular inconsistency, electing
delegates as required, but choosing such as favored the Union.
The Convention met, and at its first session refused to vote an
Ordinance of Secession; but, after the bombardment of Fort
Sumter, the cause of the Union appearing hopeless, the same
body was reassembled, and voted the State out of the Union
unanimously !

In Texas, the Governor, Houston, refused to call the legisla-
ture together, but some sixty of the conspirators against the
Union, signed a document convening that body, and a Conven-
tion was thereupon called, and an Ordinance of Secession passed.
In Alabama the Convention was called by Governor Moore, in
pursuance of an Act of the legislature, passed in anticipation of
the election of a Republican to the office of President of the
United States, authorizing and requiring him on the happening
of that contingency to call a Convention, to take such steps as
should protect the power and interests of the State.

In none of these States were the Ordinances of Secession sub-

1 Act calling the Missouri Convention of’ 1861, sec. 5. That Missouri did not
secede was probably no fault of the pro-slavery legislature which passed this
Act.
CHARACTER OF THE SECESSION CONVENTIONS. 245

mitted to the people, save in Texas, Tennessee, and Virginia,
and in those cases they were submitted under systems of fraud
and violence ingeniously contrived to insure, as they did insure,
the adoption of the ordinances, at all events.

§ 249. Admitting, however, that the Secession Conventions
were all called in pursuance of the legislative authority of their
respective States, they are nevertheless to be set down as Revo-
lutionary Conventions for two reasons : —

1. The legislatures had constitutionally no authority to call
them to inaugurate secession. The Constitution of the United
States was a part of the Constitution of each of those States,
and all the State officers, legislative, executive, and judicial,
were bound by oath to support it. In taking steps to overturn
that Constitution and to disrupt the Union, every member of the
State legislatures calling Conventions with the ulterior purpose
of passing secession ordinances in any event, was entering upon
a course of revolution, and became guilty of perjury and of
moral, if not technical, treason.

2. The Secession Conventions did not confine themselves to
the recommending, or even to the enacting of changes in their
several State Constitutions, which, as we have seen, is the
utmost limit of the powers of Constitutional Conventions; but
they severally assumed general powers of administration and
government. All of them changed more or less the existing
State Constitutions; but they did more,—they appropriated
moneys out of the State treasuries, raised troops, and appointed
officers, with a view to anarmed conflict with the United States,
should the latter dispute their right to secede. When the con-
vention of delegates which met at Montgomery, Alabama, to
frame a Constitution for the Confederacy of the seceding States,
submitted its project to the States for ratification, the State
Conventions took it upon themselves to ratify that instrument,
not only without express instructions, but in evident violation
of those which were implied in the Acts calling them together.

Like the Provincia! Conventions, therefore, which effected
our separation from Great Britain, the Secession Conventions
were simply provisional organizations resting upon a revolution-
ary basis, and exercising such powers as were deemed requisite
by the insurgent populations to insure the success of the revolu-
tion upon which they had entered. In one respect, however,
246 RECONSTRUCTION CONVENTIONS.

they differed from the Conventions of 1776. The existing estab-
lishments, the State organizations, were, in 1861, all conducted
in the interest of the rebellion ; it was, therefore, unnecessary for
the Conventions, running a parallel course with the various
departments of the State governments, to assume so wide gov-
ernmental powers as did the Provincial Conventions in 1776, to
which the colonial governors and Assemblies were generally
hostile.4

§ 250. The Secession Conventions being thus purely Revolu-
tionary Conventions, as defined in the first chapter, they must
depend for their justification solely upon the success of the revo-
lution which they originated. That revolution, it is now a
matter of history, did not succeed in any one of the eleven
States. The armies engaged in the attempt to wrest those
States from the Union were overthrown, having succeeded only
in dismantling those States, and placing them in abnormal
relations to the Union. Precisely what those relations were,
at the moment the rebel armies surrendered, it is not easy to de-
termine; nor, perhaps, is it necessary, further than to state, that
the revolting States were found to be under the sway of certain
so-called governments, how formed does not matter, which were
alien to the Union, the State Constitutions, under which the
initial steps in the rebellion had been taken, having been sever-
ally overthrown. Such governments obviously could not be
recognized by the Federal authorities as existing at all, for any
purpose.

Here, then, were brought again into relations of practical sub-
jection to the Union, certain integral populations, which had
once been Constitutional States, but which having, by truancy
from constitutional courses, lost something necessary to that
character, were such no longer — were, indeed, little more than
“ geographical denominations ;” communities, which, although
as much in the Union, territorially, as ever, were properly neither
constitutional States, nor constitutional Territories, but States
which had, sua sponte, for purposes of ambition, divested them-
selves of their constitutional apparel, and donned that of treason
and rebellion, and so had forfeited their prerogative as States to

1 Penn v. Tollison, 26 Ark. R., 545.

2 The State of Texas v. White, 7 Wall. R. 700, 717; S.C. 25 Texas R.
(Supplement), 465, 591.
RECONSTRUCTION CONVENTIONS. 247

participate in governing the Union, ana been relegated to a
condition analogous to that of Territories — a condition in which
they belonged to the Union, but had rightfully no governing
function whatever, local or general.

§ 251. Standing thus, it is evident, there were necessary to
lead off in any movement with a view to the rehabilitation of
such States in their normal relations to the Union, Conventions
to provide them with Constitutions. This was universally ad-
mitted, but how to call those Conventions, was a question upon
which there were wide divergences of opinion.

But four modes of calling such Conventions were possible.

1. The inhabitants of the rebel States might, by a spontane-
ous movement, without the intervention of any recognized
authority whatever, have called Conventions to reconstruct their
governments. This course would have required, obviously, the
tacit consent of Congress, but, as explained in the first part of
this chapter,! it would have been liable to great practical objec-
tions, and would, besides, have been wholly irregular, not to say
revolutionary.

2. The second course was for the so-called legislatures of the
seceded States, elected under the rebel régime, to initiate, with
the consent or connivance of Congress, the movements for recon-
struction in their respective States. This course, however, was
politically impossible. The government of the United States
could not recognize the rebel legislatures, as possessed of any
political functions whatever, without, by implication, admitting
the validity of the act of secession. If those bodies were to
meet, it must be as so many individuals liable to the penalties
of treason, and having no rights which the government of the
Union was bound to respect, except such as they held in com-
mon with other public enemies.

§ 252. 3. As a third course, the Congress of the United States
might have inaugurated the movement toward reconstruction
by calling Conventions in the lately insurgent States.

Undoubtedly, this course would have been irregular, since
Congress has power to pass enabling Acts only for Territories,
strictly so called, and not for States. It is true, as we have
seen, that the rebel communities, on the surrender of the Con-
federate armies, were not constitutional States. But neither

1 See ante, §§ 114, 115.
248 RECONSTRUCTION CONVENTIONS.

were they constitutional Territories. They were States whose
practical relations to the Federal whole were in a state of dis-
ruption. In other words, they were quasi States, so far as their
historical relations to the Union were concerned, but quasi
Territories, in relation to the exercise of Federal rights.

Being neither States nor Territories, but communities pre-
senting, in their different relations, the aspects of both, Congress
could not regularly act toward them as though they were either.
It could not permit them to call, nor could it itself regularly
call for them, Conventions to reconstruct their subverted govern.
ments.

4. Finally, the requisite nucleus for reconstruction might have
been provided by the President of the United States, acting in
his capacity of Commander-in-Chief of the national armies, en-
gaged in crushing the rebel Confederacy.

With reference to this mode, however, it is evident, that it
would have been legitimate only as a war measure, the power
of the President to act in the manner supposed, being simply a
war power, and therefore proper only whilst the war should last.
On the coming of peace, all political structures built up by, and
under the shelter of the military arm for the temporary govern-
ment of the conquered districts, would melt away, save as the
law-making power of the Union should recognize and confirm
them. They would not have been legally or regularly formed.
Judged from a constitutional point of view, they would have
been based simply on the will of the commanding general, and,
therefore, have been akin to institutions purely revolutionary, as
founded without the authority of law. That this is so, becomes
the more probable, when it is considered, that it has never, in
any one of the States of the Union, or in the Union itself, been
recognized as within the competence of the executive branch of
the government to call a Convention: that is, of the executive,
as such. Considered as the commander of armies in the field, on
the other hand, and, in that capacity, called upon to provide for
the government temporarily of the territory overrun, because the
President could do any thing, he could doubtless call a Conven-
tion to frame a provisional Constitution ; or, should he prefer to
do so, could himself, in genexal orders, establish a Saget

1 See The State of Texas v. George W. White et als., 7 Wall. B.,
717 +8. C. 25 Tex. R. (Supplement), 465, 591.
RECONSTRUCTION CONVENTIONS. 249

But, the point insisted upon is, that such a Convention would
lack the essential requisites of legitimacy, as a Constitutional
Convention. The act of the President would be justifiable only
upon the ground of its necessity, and hence the body convened
would stand on the same footing as the English Convention,
called by William of Orange on the abdication of James IL,
which was unquestionably a revolutionary body.

§ 253. These four modes of proceeding being all liable to ob-
jections, the question arises, which, on the whole, was prefer-
able?

The answer is —that mode which, beside being attended by
the fewest practical evils, was most conformable to established
precedents in the United States, in times of peace and constitu-
tional order.

Tried by this test, it is, in my judgment, beyond question, that
the third mode, that by the direct intervention of Congress, was
to be preferred.

Congress was the grand Council of the nation. Its interfer-
ence in the business of reconstruction, though irregular, would
be effected by some formal Act or Resolution, in which could be
provided, to the satisfaction of the nation at large, guarantees
not only for the private rights of the citizens of the States con-
cerned, but for the public liberties. Besides, in one aspect of
the case, there would, in the intervention of Congress, be an
intrinsic propriety, sufficient almost to stamp the act as consti-
tutionally rightful and regular. The legislature of the Union
is, as we have seen, as to Federal relations, the legislature of
each State. As the rebel States, when admitted to full partici-
pation in the government, at once assume a governing relation
to the other States, co-members with them of the same Federal
whole, the question of their reconstruction, as a practical ques-
tion, is a Federal one, and ought to be settled by Federal author-
ity. Of all the departments of the general government, Congress
is undoubtediy the one to which can be most safely intrusted
the power of calling the Conventions necessary for that purpose.
As, in such a case, these bodies would be called in each State
by that legislature which had supreme jurisdiction over the
Federal relations of such State, the departure from the strictest
constitutional precedents would be but nominal.

§ 254. The mode at first adopted was the fourth, by the in-
250 RECONSTRUCTION CONVENTIONS.

tervention of the President of the United States, save in Vir-
ginia, where reconstruction was inaugurated by the spontaneous
action of the loyal citizens of the State. In all of them, there-
fore, the Conventions called for the purpose indicated were, it
is conceived, irregular.

The history of the call of those bodies, considering separately
such as were convened before and such as were convened after
the close of the secession war, is as follows.

The particulars of the call of the Virginia Convention of 1861,
by which a loyal government, recognized by the President and
represented in Congress, was established in Virginia, have been
given in previous sections of this chapter, when treating of the
formation of the State of West Virginia,! and need not be here
repeated. A little later, proceedings to reconstruct the govern-
ment of Tennessee were sanctioned by President Lincoln. The
victories of the Union forces at Forts Donelson and Henry, and
the consequent capture of Nashville, compelled the removal of
the rebel State government to Memphis. A large part of the
State having been restored to Federal authority, Andrew John-
son was appointed military governor by President Lincoln, and
assumed the duties of the office in Nashville, on the 12th of
March, 1862. September 19, 1863, President Lincoln author-
ized Governor Johnson to exercise such powers as might be neces-
sary and proper to enable the loyal people of Tennessee to pre-
sent such a republican form of government as would entitle the
State to the guarantee of the United States therefor, and to be
protected under such State government by the United States
against invasion and domestic violence, “all according to the
4th section of the 4th article of the Constitution of the United
States.” On the 9th of January, 1864, a State Convention,
called by a committee of ** Union ”’ men in Middle Tennessee, as-
sembled at Nashville, and proposed amendments to the Constitu-
tion, which were ratified by the people on the 22d of February
following. Under the Constitution as thus amended the State
was admitted to representation in Congress by a joint resolution
approved July 24, 1866. This resolution, reciting the perform-
ance of certain conditions imposed by Congress and of other
acts denoting loyalty, declared the State of Tennessee restored to
her former proper, practical relations to the Union, and entitled
to be represented by Senators and Representatives in Congress.

1 Ante, §§ 179-182.
RECONSTRUCTION CONVENTIONS. 251

§ 255. In two other States, those of Louisiana and Arkansas,
a so-called reconstruction took place, under the Proclamation of
President Lincoln of December 8, 1863. That proclamation
was addressed to the ten then remaining rebel States, but its terms
were accepted and acted on only by Tennessee, as above, and
by the two other States named, before the assassination of Mr.
Lincoln. The proclamation made known to the citizens of the
. Yebel States that, ‘* whenever a number of persons therein, not
less than one tenth in number of the votes cast in any such State
at the Presidential election in the year 1860, having each taken
a prescribed oath, and being a qualified elector of the State im-
mediately before the so-called act of secession, should establish
a State government republican in form, such shall be recognized
as the true government of the State.” With characteristic caution
and prudence, the President added these words : “* This proclama-
tion is intended to present the people of the States wherein the
national authority has been suspended ... a mode in and by
which the national authority and loyal State governments may
be reéstablished within said States; ... and while the mode
presented is the best the executive can suggest with his present
impressions, it must not be understood that no other possible
mode would be acceptable.”

§ 256. In pursuance of this proclamation, Louisiana and Ar-
kansas were provided with loyal State governments; the people
of the former having been called upon to take the necessary steps
by a proclamation of Major-General N. P. Banks, of January
11, 1864. The first step was, under that proclamation, to elect
State officers on the 22d of February, 1864; and the second to
choose delegates to a Convention, on the first Monday of April
following, to revise the Constitution of the State. The particu-
lars of the proceedings in Arkansas were similar.

Were any argument needed to show that the supposed recon-
struction of these rebel States, based as it was on the proclama-
tion of the Commander-in-Chief of the armies of the United
States, was irregular, it would be found in the statement of Gen-
eral Banks in his proclamation, by which the proceedings in
Louisiana were justified, that the fundamental law of the State was
martial law. The only law in the State was the arbitrary will
of the commanding general, which was no law at all. The pro-
ceedings, therefore, though not illegal in the sense of contraven-
952 RECONSTRUCTION CONVENTIONS.

ing any positive law then in force, were wholly without law, and
so revolutionary.!

§ 257. The first series of the Reconstruction Conventions called
in North Carolina, Mississippi, Florida, Alabama, Georgia, Texas,
Tennessee, and South Carolina were all convened after the close
of the war, in pursuance of the authority of President Johnson.
As the proceedings in all these cases were similar, I shall refer |
only to those that occurred in North Carolina, the first State, in
the order of time, in which attempts at reconstruction were
made.

On the 29th of May, 1865, the following proclamation, relat-
ing to the reorganization of North Carolina, was issued by
President Johnson, namely : —

“© Whereas, the 4th section of the 4th Article of the Constitu-
tion of the United States declares, that the United States shall
guarantee to every State in the Union a republican form of
government, and shall protect each of them against invasion
and domestic violence; and whereas, the President of the
United States is, by the Constitution, made Commander-in-
Chief of the army and navy, as well as chief civil executive off-
cer of the United States, and is bound by solemn oath faith-
fully to execute the office of President of the United States,
and to take care that the laws be faithfully executed; and
whereas, the rebellion which has been waged by a portion of
the people of the United States against the properly constituted
authorities of the government thereof, in the most violent and
revolting form, but whose organized and armed forces have now
been almost entirely overcome, has, in its revolutionary progress,
deprived the people of the State of North Carolina of all civil
government; and whereas, it becomes necessary and proper to
carry out and enforce the obligations of the United States to
the people of North Carolina, in securing them in the enjoy-
ment of a republican form of government:

“ Now, therefore, in obedience to the high and solemn duties
imposed upon me by the Constitution of the United States, and
for the purpose of enabling the loyal people of said State to or-
ganize a State government, whereby justice may be established,
domestic tranquillity insured, and loyal citizens protected in all

1 See ante, §§ 109-113, where the signification of the term “ revolutionary,”
as used by me, is given.
RECONSTRUCTION CONVENTIONS. 2538

their rights of life, liberty, and property, I, Andrew Johnson,
President of the United States, and Commander-in-Chief of the
army and navy of the United States, do hereby appoint William
W. Holden Provisional Governor of the State of North Caro-
lina, whose duty it shall be, at the earliest practicable period, to
prescribe such rules and regulations as may be necessary and
proper for convening a Convention, composed of delegates
chosen by that portion of the people of said State who are loyal
to the United States, and no others, for the purpose of altering
or amending the Constitution thereof; and with authority to ex-
ercise within the limits of said State all the powers necessary
and proper to enable such loyal people of the State of North
Carolina to restore said State to its constitutional relations to
the Federal government, and to present such a republican form
of State government as will entitle the State to the guarantee of
the United States therefor, and its people to protection by the
United States against invasion, insurrection, and domestic vio-
lence: Provided that, in any election that may be hereafter
held for choosing delegates to any State Convention as afore-
said, no person shall be qualified as an elector, or shall be eligi-
ble as a member of such Convention, unless he shall have previ-
ously subscribed the oath of amnesty, as set forth in the Pres-
ident’s proclamation of May 29th, a.p. 1865, and is a voter
qualified as prescribed by the Constitution and laws of the State
of North Carolina in force immediately before the 20th day of
May, a. p. 1861, the date of the so-called Ordinance of Secession ;
and the said Convention, when convened, or the legislature that
may be thereafter assembled, will prescribe the qualification of
electors and the eligibility of persons to hold office under the Con-
stitution and laws of the State, a power the people of the sev-
eral States composing the Federal Union have rightfully exer-
cised from the origin of the government to the present time.”’

§ 258. In pursuance of this proclamation, Governor Holden
summoned a Convention, which met at Raleigh on the 2d day
of October, 1865, and remodelled the Constitution of North
Carolina.

Under proclamations from time to time issued by the Presi-
dent in terms substantially identical with those above given,
Conventions met in all the States which were in a disorganized
condition at the close of the war, and in like manner reformed
their Constitutions.
254. RECONSTRUCTION CONVENTIONS.

With the question which has so agitated the Unicn, as to the
proper department of the government to recognize the recon-
structed State organizations, framed by those Conventions,
whether the executive, under the Act of 1795, passed to give
effect to Article 4, section 4, of the Federal Constitution, above
quoted, or the Congress of the United States, I do not propose
to meddle. What I have to do with here is the previous ques-
tion as to the legitimacy of the Conventions by which those
governments were formed, — a question totally distinct and de-
pending on different principles; for it is evident, that, whatever
be the proper authority to recognize those governments, the act
of recognition might give legitimacy to organizations formed by
Revolutionary, no less than by regular and lawful, Conventions.

As I have before intitnated, the Conventions called by the
provisional governors appointed by President Johnson are be-
lieved to have been, all of them, irregular and illegitimate. They
were called by the Commander-in-Chief of our armies in the
exercise of the war power given to him by the Constitution.
While that exercise of power was not, in the technical sense of
the term, illegal, — for nothing is illegal to him who has by law an
absolute discretion, — it was, nevertheless, from the very nature
of the case, without the law and the Constitution, eztra legem,
—resting for its limitations, as for its justification, solely upon
the necessity of the case. The only differences between the
arbitrary acts of a military commander, under the Constitution,
and acts strictly revolutionary, are, first, — that the former are
done with a view to the conservation and defense, and the latter
with a view to the disruption or overthrow, of the State; and,
secondly, that the former, therefore, are not, and the latter are,
punishable as crimes under the penal code. In their essential
nature the acts are identical, as being lawless acts, acts done ad
arbitrium and not ad legem. Let a military commander step
but a hair’s breadth beyond what is demanded by necessity,
shedding a single drop of blood when the shedding of blood is
no longer demanded, and his act is a crime, or, if it have a
political intent and bearing, an act of revolution, in the bad
sense of the term, as truly as that of one who attempts to sub-
vert the Constitution of the State. This shows that the two
kinds of acts are substantially the same.

But, however this may be, it is clear that it is not regularly
RECONSTRUCTION CONVENTIONS. 255

or constitutionally one of the duties of an executive magistrate
to call Gonventions to alter or amend the Constitution, and,
particularly, is this true of the President, with reference to Con-
ventions in the States. For such a magistrate to do it is, to
say the least of it, irregular, and to permit it, except under the
pressure of an overruling necessity, —a necessity such as would
excuse any act, however unauthorized or revolutionary, — is
dangerous.

$ 258 a. It is well known that the reconstruction of the gov-
ernments of the late rebel States, supposed to have been accom-
plished by the proceedings detailed in the foregoing sections, was
not satisfactory to Congress. By three acts (one approved March
2, 1867 ; one amendatory thereof, approved March 28, 1867; and
one approved July 19, 18677) it was declared by Congress that
all the existing governments in the rebel States, excepting that
established in Tennessee, were not legal State governments, and
that they were to be continued thereafter subject in all respects
to the military commanders of the respective districts, and to the
paramount authority of Congress. By the same acts, provision
was made for the reconstruction of such States, upon certain
conditions, by means of Constitutional Conventions, to be called
and held under the protection of the military authorities quar-
tered in those States. Conventions were accordingly held, by
which the Constitutions were framed or amended, and put in
force, as required in those acts; and under them the States
were, with the exception referred to, admitted into full participa-
tion in the government of the Union, by the reception of their
Senators and Representatives in the Congress of the United
States.

§ 258. Among the conditions imposed by Congress, which
were formally accepted by the Conventions of the several States,
were, that the delegates to said Conventions should be elected by
the male citizens of such States, twenty-one years old and up-
wards, of whatever race or previous condition, who had been
resident in their respective States one year previous to the day
of such election, except persons disfranchised for participation in
the rebellion, or for felony at common law; that they should
provide in their Constitutions that the elective franchise should
be enjoyed by all such persons as had the qualifications above

1 See 14 U.S, Sts. at Large, p. 428; 15 id. pp. 2, 14.
256 RECONSTRUCTION CONVENTIONS.

stated for electors; that such Constitutions should be ratified by
a majority of the persons voting on the question of ratification
who were qualified as electors of delegates ; that such Constitu-
tions should be submitted to Congress for examination and ap-
proval ; that Congress should approve the same; and that said
States, by a vote of their several legislatures elected under said
Constitutions, should adopt the amendment to the Constitution of
the United States proposed by the 39th Congress, and known as
Article XIV. When said article should have become a part of
the Constitution of the United States, the acts declared that
their said States should be declared entitled to representation in
Congress, and that Senators and Representatives should be ad-
mitted therefrom on their taking the oath prescribed by law.

§ 258 ec. The mode of calling the Conventions actually pur-
sued was, in Alabama, Florida, Georgia, Arkansas, South Caro-
lina, Mississippi, and North Carolina, as follows: The military
commanders of the districts in which those States were situated
ordered elections to be held to determine whether the voters, al-
ready registered under military authority, were in favor of hold-
ing a Convention, and to elect delegates thereto; and, the ma-
jority of such voters favoring such a Convention, a further order
was issued for the delegates so elected to meet, at a time and
place named in the order, for the purpose of framing a Constitu-
tion and civil government, according to the provisions of the Acts
of the 2d and 23d of March, 1867. Lists of the delegates elected
were also made out at department headquarters, and in some
cases elections declared to have been irregularly held, or to have
been infected by fraud, were set aside by the commanding gen-
eral, and new elections to fill vacancies ordered.

§ 258 d. In respect to the regularity of these Conventions, it
need only be remarked, that they were called by, or at the in-
vitation of, Congress, in the acts above recited, in substantial
comformity to the principle set forth in sections 252 and 258 of
this work, and there described as the third of the four possible
-modes of bringing about a reconstruction of the rebel govern-

1 Jour. Ark. Conv. 1868, pp. 27-81, containing orders of General Ord for
the elections in Arkansas and Mississippi, comprised in his military district,
the fourth; also Jour. N. C. Conv. 1868, pp. 3-9. On the whole question of
reconstruction, and of the status and relations of the rebel States to the Union
during and at the close of the secession war, see Texas v. White, 7 Wall. R.,
700, 722.
MONTGOMERY CONVENTION OF 1861. 257

ments, and as being the mode which, beside being attended by the
fewest practical evils, was most conformable to established pre-
cedents in the United States, in times of peace, and constitutional
order. If the course adopted was irregular, and the means em-
ployed not strictly in accordance with principle, they were as lit-
tle so as was possible under the peculiar circumstances of the case?

§ 259. In concluding this survey of the various Conventions
thus far held in the United States, it will be proper to refer to
the so-called Convention held at Montgomery, Alabama, in
1861, to frame a Constitution for the Confederacy of seceded
States. This Convention was not called to frame a Constitu-
tion for either the United States, a State in the Union, or a Ter-
vitory seeking admission into the Union, but for an imaginary
commonwealth,—the dream for a third of a century of the
States Rights School of politicians, and for four years the sup-
posed realization of that dream on the banks of the James
River, — and for that reason not proper to be classed with either
of the varieties of Conventions I have been considering. In
the same category are to be placed all such Conventions as
were held in the separate States of the * Confederacy ” between
the years 1861 and 1865, to alter or abolish the so-called Con-
stitutions of those States, as members of the imaginary com-
monwealth referred to — all equally fictitious Constitutions for
commonwealths that had no substantial basis either in law or
in fact.

My only purpose in mentioning these bodies is to note that,
so far as they seemed to possess a de facto character as Consti-
tutional Conventions, that is, so far as they were not mere
schools of abstractionists, engaged, for their own recreation, in
framing imaginary Constitutions, they were wholly illegitimate
and revolutionary.

§ 260. Having thus considered, from the two points of view

1 « After two years of trial of the fourth method of reconstruction,”
(described in section 252, ante), ‘‘the people of the North, learning from
sad experience, have come to adopt Judge Jameson’s opinion, and Congress
has just enacted a law’’ (the Act of March, 1867, commonly called the Re-
construction Act) “to provide for the more efficient government of the rebel
States,” meaning a law in conformity with the method recommended in sec-
tion 253, ante, and called the third method of reconstruction. N. A. Rev. for

April, 1867, p. 654. The first edition of this work, thus referred to, was pub-
lished in October, 1866, though on the title-page the date given was 1867.
258 BY WHOM CONVENTIONS SHOULD BE ELECTED.

indicated in the opening part of this chapter, the question,
How should a Convention be called? I pass to the other ques-
tion there propounded, namely —

Il. By whom should Conventions, to be legitimate, be
elected ?

This question will be considered from the same two points of
view as the former, namely, (a), from that of principle, and, (4),
from that of historical precedents.

(a). Upon principle, the question, by whom Conventions
should be elected, is one of little difficulty.

1, The sovereign body, we will suppose, is already organized
under a government, which of course is one of its own appoint-
ment, comprising the usual departments for its actual adminis-
tration. Having established it, the sovereign retires from view,
leaving in the hands of that government full powers not only to
operate, but to initiate the movements necessary to modify, re-
pair, or renew, the system.! One of the departments in every
adequate system of government is the people, in its narrow sense,
meaning the body of persons named by the sovereign to be the
immediate depositaries of governmental powers, the electors.
By this body, or by some individuals selected from it, according
to established laws, every function of government, every political
act, must regularly be performed, and by no others. The elec-
toral circle determined by the Constitution, so long as that instru-
ment remains unchanged, is a closed one. It is a circle, more-
over, which can be opened and enlarged only by the sovereign
body itself, acting in the modes prescribed by the Constitution
or by the customary law of the land.

Suppose, now, a Convention is to be chosen to change the
fundamental law, its members must be elected by the body
invested with political functions, the electors, or by some deter-
minate portion of it, in conformity to the laws and customs of
the commonwealth. The legislature, as we have seen, is the
proper body to direct the election and assembling of the Con-
vention. Common sense would indicate that delegates intended
to represent, first, the electoral body, and, through that, the sov-
ereign, if they are to represent truly the different phases of opin-
ion current among the people at large, should be chosen by the
entire electoral body. Thus, the requirements of principle and

L See ante, § 25.
BY WHOM CONVENTIONS SHOULD BE ELECTED. 259

of expediency would be fully satisfied. To authorize persons
outside the circle of the electors to participate in the work,
would be to extend the exercise of political functions to persons
excluded by the Constitution; that is, by an act of a mere
department of the government, to modify or repeal a solemn
provision of that instrument, by which its own powers are deter-
mined. On the other hand, although, strictly speaking, dele-
gates should be chosen by the entire electorate, yet, were the
legislature, in calling a Convention, to limit the right of voting
for them to the electorate less certain designated classes. of per-
sons deemed unfitted to exercise that right intelligently, or with
safety to the state, such action, although a departure from strict
principle, would be less objectionable than action which should
extend the right beyond the electoral circle. A Convention so
elected would still represent the electors and nobody else ; and as
it would merely recommend, but of itself conclude nothing, there
would be no danger of the government being swamped by the
unauthorized intervention of non-electors. This mode of choosing
delegates is therefore considered as, on the whole, not illegiti-
mate.

§ 261. 2. If, on the contrary, the sovereign political body be
in a state of disorganization, its Constitution overthrown, and the
departments of the public administration deposed from all au-
thority, and a Convention is to be called to rebuild the fabric of
government, by whom then should the delegates be chosen ?

As, in the case supposed, all action would be the direct exer-
cise of sovereign power,! and in its essential nature revolutionary,
there would be no law to govern the election but that of expe-
diency. Such persons might then be permitted to vote as should
at the time seem fitted to exercise the franchise wisely. In gen-
eral, however, a people thus situated would find it expedient to
confine the right of voting to the class, by the laws of the land
now obsolete, invested with the franchise — the basis and appor-
tionment of representation according to those laws being just and
equal. Where they were unjust or unequal, the right of the peo-
ple to change or abolish them could not be questioned as a right
of revolution.

§ 262. (b.) It is believed that the precedents developed thus
far in our history, as well in times of constitutional order as in
those of revolution, conform to the principle just announced.

1 See ante, § 23.
260 BY WHOM CONVENTIONS HAVE BEEN ELECTED.

1. The Conventions called to revise old or to frame new Con-
stitutions, during the period intervening between 1783 and the
present time, excluding the Secession and Reconstruction Con-
ventions, have, with scarcely any exception, been elected hy the
persons by existing laws entitled to exercise the suffrage at the
general State elections. Let us look, first, at the provisions of
our Constitutions ; and, secondly, at the various acts calling Con-
ventions, to ascertain the qualifications required by them for the
electors of delegates to Conventions. Of the Constitutions, few
in number, which have contained provisions on the subject, some
have authorized to vote for delegates “citizens,” or ‘ voters,”
or “ qualified voters entitled to vote for representatives ;”} some,
“persons having the qualifications to vote for members of the
General Assembly ;”? some, ‘the qualified electors;”? some,
“the towns and places, or incorporated places;”* one, “each
senatorial district,” without further specification ;® and the resi-
due, *‘ the freemen of this State.” ® Coming now to the precedents
developed in the actual call of Conventions: Convention Acts
have in some cases designated the voters for delegates as “ the
electors of the State, qualified to vote at general elections ;”? or
have authorized to vote “all persons qualified to vote for mem-
bers of, or representatives to, the General Assembly ;”’® or “ the

1 Constitutions of Delaware, 1792 and 1831 ; Illinois, 1848; Kansas, 1857;
Kentucky, 1792, 1799, and 1850; and Louisiana, 1812.

2 Constitutions of Florida, 1865; Illinois, 1818 and 1870 ; Ohio, 1802; and
Tennessee, 1796.

3 Constitutions of Mississippi, 1817 and 1832.

4 Constitutions or amendments of New Hampshire, 1784, 1792, 1850, and
1876.

5 Constitution of Missouri, 1875.

® Constitutions as amended by the Vermont Councils of Censors of 1785,
1792, 1799, 1806, 1813, 1820, 1827, 1834, 1841, 1848, 1855, 1862, and 1869.
These amendments were required to be submitted to Conventions called by
such Councils, for the purpose of adopting or rejecting them. Of these Con-
ventions, nine had been called when the system was abolished, in 1870. See
§ 220, ante, and appendix B, post.

7 Convention Acts of Nebraska, 1875; Pennsylvania, 1887; and Rhode
Island, 1824, and November, 1841. ;

8 Convention Acts of California, 1878 ; Delaware, 1831 and 1852; Georgia,
1833, 1839, and 1877; Illinois, 1847, 1862, and 1869; Indiana, 1850; Kentucky,
1849; Louisiana, 1844; Massachusetts, 1780, 1820,and 1853; Michigan, 1850;
Mississippi, 1832; Missouri, 1861 and 1865; Nebraska, 1864 and 1866; Ne-
vada, 1864 ; New York, 1846 and 1867; North Carolina, 1835, 1861, and 1875;
BY WHOM CONVENTIONS HAVE BEEN ELECTED. 261

qualified electors, or legal voters, of the State;”! or “ persons
having the qualifications of members of the General Assembly ;” 2
or “inhabitants qualified to vote for Senators;”’® or “the free
citizens of the State, aged twenty-one years and upwards; or
“the people of the State or of the several counties ;”® or “ the
inhabitants of the county qualified to vote for Governor and Sen-

7

ators ;’’® or *“‘the freeholders.””7 In most of these cases, it turns

South Carolina, 1860; Virginia, 1829, 1850, and 1861 ; and West Virginia,
1872. To these may be added, in general, the enabling Acts passed by Con-
gress authorizing Conventions to frame Constitutions for Territories seeking
to become States. The first of these was passed for Ohio, in 1802, and au-
thorized to vote for delegates all male citizens of the United States, of full
age, resident one year in the Territory, who had paid a Territorial or county
tax, and all persons having in other respects the qualifications to vote for
Representatives in the General Assembly of the territory. 2 U. S. Sts. at
Large, p. 173. The enabling Acts of Louisiana, id. 641; Indiana, 3 do. 289;
Mississippi, id. 348; Illinois, id. 428; Alabama, id. 489; Missouri, id. 545;
Nevada, 13 do. 30; Nebraska, id. 47 ; Colorado, Act of March 3, 1875, were
substantially the same; those of Louisiana, Mississippi, and Missouri, however,
containing the word ‘free’? before the words “ male citizens,’”’ and those of
Illinois and Alabama not requiring the payment of a tax. In the enabling
Act of Wisconsin, and in the Acts of Congress and of the Republic of Texas
relating to the admission of the latter into the Union, the Conventions were
to be called or elected by ‘‘the people.” 9 U.S. Sts. at Large, p. 56. In that of
Minnesota, “ the legal voters in each Representative District ” were authorized
to elect delegates to the Convention. 11 U.S. Sts. at Large, p. 166.

1 Convention Acts of Alabama, 1861 and 1875; Arkansas, 1874; Connecti-
cut, 1818; Florida, 1885; Iowa, 1857; Kansas, 1859; Kentucky, 1799; Louis-
iana, 1852; Maryland, 1850, 1864, and 1867; Michigan, 1836 and 1867; Minne-
sota, 1857; Mississippi, 1832; Ohio, 1850 and 1873; Pennsylvania, 1789,
1837, and 1872; Texas, 1875; and West Virginia, 1861. The case of the
West Virginia Convention of 1872 may be placed in the same category, al-
though the phraseology of the Convention Act is different. The latter author-
izes to vote for delegates every person qualified to vote for delegates to the
legislature, resident one year in the State and thirty days in the county in
which he offers to vote, with certain exceptions of minors, paupers, persons
convicted of treason, felony, bribery at an election, and of unsound mind. The
Constitution .of 1861, Article III., sec. 1, authorizes all white male citizens,
with the same exceptions, to vote at all elections within the districts where
they reside.

2 Pennsylvania, 1789.

8 New Hampshire, 1850 and 1876.

* New York, 1801. Street’s Council of Revision, p. 46.

5 Arkansas, 1861; and Delaware, 1776.

® Maine, 1819.

7 Virginia, 1829.
262 BY WHOM CONVENTIONS HAVE BEEN ELECTED.

out, upon inspection of the Constitution or laws regulating the
right of suffrage, that by the classes indicated were meant the
general body of the electors of the States respectively. In the
Act calling the Louisiana Convention of 1844, and in several of
the State Constitutions which provide for the election of Conven-
tions, the delegates are required to be chosen “ in the same man-
ner as members of the General Assembly ;” or the elections to
be held ‘in the same manner and under the same regulations ”
as antecedent elections held to determine the expediency of call-
ing Conventions, at which latter the persons qualified to vote
were the “ voters,” ‘ qualified voters,” “ qualified electors,” “ elec.
tors qualified to vote for members of the General Assembly,”
&e.1 Generally, however, in the cases last described, the pro-
visions were, that if the result of the prior elections, at which the
classes of persons named had voted, should be in favor of calling
Conventions, the General Assemblies of the respective States
should call the same, to be thereafter elected by the people; from
which it may be inferred that the same voters are to figure in
both elections.2 In a few cases, all white male citizens of the
United States, twenty-one years of age and resident in the county
or election district a fixed period of time before the election,
varying from three months to a year, were authorized to vote for
delegates to the Convention?

§ 263. 2. The rule which seems thus to be well-nigh univer-
sal in times of peace and order, has generally, in substance, ob-
tained in those of revolution. During our first revolution, ex-
tending from 1775 to 1783, although it is not easy to determine
the question with accuracy, enough is known to make it probable
that the Conventions were elected by the persons authorized un-
der the laws of the several colonies to vote at general elections.
In some cases, however, special qualifications were required to

1 Constitutions of Minnesota, 1857; Ohio, 1851; and Tennessee, 1834 and
1861.

2 Constitutions of California, 1849; Towa, 1844 and 1857; Kansas, 1859;
Michigan, 1850; West Virginia, 1863; and Wisconsin, 1848.

8 The residence in the county, voting district, or Territory required was, in
Florida, 1838, six months; Kansas, 1857, three months; Michigan, 1835, six
months, and the word “free ’’ was inserted before the word ‘‘ white”; New
Jersey, 1844, one year in the State and three months in the county; Tennes-
see, 1870, six months; Wisconsin, 1846 and 1847, six months in the Territory.
Tn the enabling Act of Nevada, 1863, no length of residence was specified.
BY WHOM CONVENTIONS HAVE BEEN ELECTED. 263

insure the loyalty of such as were allowed to vote. Thus, in
Pennsylvania, the conference of committees, by which the Con-
vention of 1776 was called, required, in addition to the qualifica-
tions of electors generally, an oath abjuring allegiance to George
TII., and undertaking not to oppose the establishment of a free
government by the proposed Convention. Such a requirement,
at a time of public danger, may be accepted as a proper exercise
of legislative power. Indeed, to omit such a provision would be
inexcusable.

In a few cases, the right of suffrage was given generally to the
“freemen of the counties,” ! to “the people,” ? or to “ the sev-
eral parishes and districts,” ?— terms which indicate the exist-
ence of election laws determining both the voters and the modes
of proceeding to collect and return their votes.

To these instances may be added those of the first series of
Reconstruction Conventions called in 1864-06, under the procla-
mations of Presidents Lincoln and Johnson, referred to in pre-
vious sections. The persons authorized by these proclamations
to vote for delegates were the electors qualified as voters by the
laws of their respective States before the secession ordinances
were passed, each having taken and kept the amnesty oath pre-
scribed by those proclamations.

The second series of Reconstruction Conventions, held in 1867
and 1868, in pursuance of the so-called Reconstruction Acts of
Congress of March 2d and 23d and July 19, 1867, belong to a
different class, and will be considered in a subsequent section.®

§ 264. A few cases must now be mentioned in which there
was a departure from the principles and the current of the prece-
dents set down in the preceding sections. The first of these
was that of the Georgia Convention of 1788, which, as we have
seen, was elected directly by the legislature? The second case
was that of the New York Convention of 1821. By the New
York Constitution of 1777, sec. vii., the following persons were

1 Act calling the Delaware Convention of 1776.

2 Acts calling the North Carolina Convention of 1776 and the Vermont Con-
vention of 1777.

® Act calling the Georgia Convention of 1776,

* See ante, §§ 254-258 d.

5 See 13 U.S. Sts. at Large, pp. 737, 760.

® See post, § 266.
7 Ante, § 148, 149 ; post, § 266.
264 BY WHOM CONVENTIONS HAVE BEEN ELECTED.

made electors, namely: all male inhabitants of full age, person-
ally resident in one of the counties of the State for six months
immediately preceding the day of election, if during that time
possessed of a freehold of the value of twenty pounds within
said county, or of a leasehold interest of the yearly value of forty
shillings, and if they had been rated and actually paid taxes to
the State; with a reservation of a right to vote, within their
places of residence, to the freemen of the cities of Albany and
New York made such before the 14th of October, 1775.

The Act of Assembly of March 13, 1821, calling the Conven-
tion of that year, made essential changes in the qualifications
of electors, by authorizing to vote for delegates to that body all
free male citizens of the State, of the age of twenty-one years or
upwards, who should possess a freehold within the State; or
who should have been rated and paid taxes to the State; or who
should have been actually enrolled in the militia of the State, or
in a legal volunteer or uniform corps, and should have served
therein either as an officer or private; or who should have been
or then were by law exempt from taxation; or who should have
been assessed to work on the public roads and highways, and
should have worked thereon, or should have paid a commutation
therefor, according to law.

The effect of this act was considerably to increase the body of
the electors authorized to vote for delegates, beyond those given
the right of suffrage by the existing Constitution, although it
deprived of it negro slaves, to whom, if possessed of the requisite
property qualification, that Constitution had given the right.

§ 265. The next instance of exceptional legislation in the
matter of electing delegates to Conventions occurred in Rhode
Island.

By the charter of Charles II., in force in Rhode Island until
1842, the right to determine the qualifications of voters was
committed to the General Assembly. We have already seen
that, at the date mentioned, in consequence of changes of the
population not attended by corresponding changes in the basis
of representation, or in the qualifications for the suffrage, great
inequalities had arisen in the political power enjoyed by different
parts of the State and by different classes of the population. As
a consequence, the suffrage movement was set on foot, culmi-
nating, as already explained, in the formation of the so-called
BY WHOM CONVENTIONS HAVE BEEN ELECTED. 265

People’s Constitution, the election of State officers under it, and
in an attempt by the pretended Governor, Dorr, to establish the
new government, in the place of that existing under the Charter,
by military force! This revolutionary attempt was easily sup-
pressed, but the legitimate government did not confine itself to
forcible measures to maintain its own supremacy, and to restore
the public tranquillity. The Constitution framed by the legiti-
mate Convention, called by the General Assembly in 1841,
having, through the efforts mainly of the suffrage party, been
rejected, another Convention was called by the same body in
the following year, by which the present Constitution of the
State was framed. To appease the discontent of the “ People’s
Party,” the General Assembly, in calling this Convention, ex-
tended the right of suffrage for the election of delegates, repeal-
ing the clauses of existing Jaws making property, payment of
taxes, and military service qualifications for the exercise of that
function, and retaining as the only requisite for it three years’
residence in the State, and authorized to vote for delegates
all persons qualified by existing laws to vote for general officers,
and all native male citizens of the United States (except Narra-
gansett Indians, convicts, paupers, persons under guardianship
and non compos mentis), who were of the age of twenty-one years
and upwards, and who should have had their permanent resi-
dence or home within the State for the period of three years next
preceding their voting, and in the town or city wherein they
should offer to vote for the period of one year next preceding
such voting, and who should have had their names recorded with
the town or city clerk of the town or city in which they should
offer to vote, in a proper book to be kept for that purpose, at least
ten days before the day of voting.?

§ 265 a. Several other instances of a departure from the prin-
ciples generally recognized in calling Conventions have occurred
since that in Rhode Island. In calling the New Jersey Conven-

1 See ante, §§ 227, 228.

2 Considerations on the Questions of the Adoption of a Constitution and Ex-
tension of Suffrage in Rhode Island, by E. R. Potter, p. 21. The persons au-
thorized to vote for delegates to the People’s Convention were as follows :
“ All male American citizens (natives and foreigners, and without distinction
of color) aged twenty-one years, and who had resided in the State one year.”
These qualifications were fixed by the committee of citizens calling the Con-
vention.
266 BY WHOM CONVENTIONS HAVE BEEN ELECTED.

tion of 1844, the legislature authorized to vote for delegates every
white male citizen of the United States above the age of twenty.
one years resident in the State one year, and in the township
three months, next preceding said election. The Constitution
then in force, that of 1776, contained no provision of any kind
for amending that instrument, or for calling a Convention, and it
gave the right of suffrage for Representatives in Council and As-
sembly, and for all other public officers elected by the people of
the county at large, to all inhabitants uf the colony, of full age,
who were worth fifty pounds, proclamation money, clear estate in
the same, and who had resided within the county in which they
claimed a vote for twelve months immediately preceding the elec-
tion.1 So the act under which the Maryland Convention of 1867
assembled, provided for the election of delegates to that body by
the registered voters of the State. The last Constitution, that of
1864, had given the right of suffrage to the white male citizens
of the United States, twenty-one years old and upwards, resident
in the State one year, and in any county or legislative district of
the city of Baltimore, six months next preceding the election.
It also provided for a registration of voters, under an act of the
Assembly, and excluded from voting persons convicted of lar-
ceny or other infamous crimes, aud all rebels and rebel sympa-
thizers. To this clause, however, was appended a proviso, that
persons thus disqualified by disloyalty might be restored to the
full rights of citizenship by an act of the General Assembly,
passed by a two thirds vote of all the members elected to each
house.2 The Constitution further provided (Art. XII, sec. 2)
that, should a Convention be called to revise or amend that in-
strument, it should “ consist of as many members as both houses
of the General Assembly,” to be ‘*chosen in the same manner.”
With a view, it was claimed, to place the State of Maryland in
the hands of the sympathizers with, and participators in the late
rebellion, the legislature in 1867 “ enfranchised,” and caused to
be registered, “all white men, no matter what treason they had
committed, and thus added to the voting population about 30,000
persons who had only lately ceased an armed resistance to the
government.” This was charged to have been done “by a

1 See. IV., New Jersey Constitution, 1776.
2 See Article I, secs. 1-4, of the Maryland Constitution of 1864.
8 Memorial of Republican members of the Maryland Legislature to Con-
BY WHOM CONVENTIONS HAVE BEEN ELECTED. 267

doubtful construction of a clause of the Constitution,” but the
legislature proceeded further to acts more clearly violative of that
instrument. The basis of representation being the white popula-
tion, less those disfranchised for rebellion and not reinstated in
their rights by the legislature, the latter, in its call for the Con-
vention of 1867, gave to certain old counties, the seat of a large
rebel population, an increased representation, by which the op-
pressor was ‘to represent the oppressed against his will, and by
which a minority of the people of the State” were “to hold in
their proposed Convention the same power as the majority.”
This action was claimed to be in violation of the clause of the
Constitution relating to the mode of choosing members of Con-
ventions, quoted above, that they should be chosen “in the same
manner as members of both houses of the General Assembly, —
that is, upon the same basis of representation.”

Another instance of departure from principle is that of the
Act calling the Tennessee Convention of 1870. Article IV. of
the Constitution of 1834, which contained no provision for call-
ing a Convention, had given the right of suffrage to every free
white man, etc., but provided that no person should be disquali-
fied from voting in any election, on account of color, “who is
now, by the laws of this State, a competent witness in a court
of justice against a white man.” In calling the Convention of
1870, the legislature authorized to vote for delegates ‘‘ every male
person not convicted and rendered infamous for crime,” thus
admitting colored votes, and extending the suffrage established
by the Constitution.

§ 266. To the instances referred to in the last section must
be added those of the second series of Reconstruction Conven-
tions, called under the authority of Congress in 1867 and 1868.
The enabling Acts of March 2d and 23d and July 19, 1867,
by which the Constitutions and governments established under
the first series of Reconstruction Conventions were declared to
be illegal, and new Constitutions and governments were author-
ized to be established in the States of Virginia, North Carolina,
South Carolina, Georgia, Mississippi, Alabama, Louisiana, Flor-
ida, Texas, and Arkansas, provided that the Conventions called

gress, presented to that body March 25, 1867. McPherson’s History of the
Reconstruction, p. 246.
1 Memorial, etc., above referred to.
268 BY WHOM CONVENTIONS HAVE BEEN ELECTED.

under those acts should be elected by the male citizens of those
States, twenty-one years of age and upwards, of whatever race,
color, or previous condition, resident one year in the State, ex-
cept such as were disfranchised for participation in the rebellion,
or for felony at common law ; provided, that no person excluded
from holding office by the XIV. admendment should vote. The
persons thus excluded were those who, having previously taken
an oath, as a member of Congress or of any State legislature,
or as an executive or judicial officer of any State, to support the
Constitution of the United States, should have engaged in insur-
rection or rebellion against the same, or given aid or comfort to
the enemies thereof. By all the Constitutions in force in those
States before the rebellion, or framed for them by the first series
of Reconstruction Conventions, the right of suffrage was confined
to the free white male citizens of the United States. The Fed-
eral statutes referred to, therefore, by enfranchising the blacks,
extended the right to vote for delegates much beyond the circle.
of the electors under existing laws. They also narrowed that
circle, very properly, by the clauses disfranchising persons for
rebellion or felony at-common law. A careful search among
the Constitutions and Convention Acts, prescribing the qualifi-
cations of voters for delegates to Conventions, reveals only the
few departures from what we regard as the principle that ought
to govern in such cases, explained in the last three sections.
And it is remarkable that, in every instance but three; — those
of Georgia, 1788, Rhode Island, November, 1841, and perhaps
Maryland, 1867, — the departure was upon this side or that of
what we may call the “color line” in our politics, and resulted
from efforts on the one side to disfranchise, and on the other to
enfranchise, the negro race. The enlargement beyond, or the
restriction within, the limits fixed for the suffrage by the several
Constitutions, was in these cases, therefore, but the working of
the old leaven of revolution, which finally burst forth in the war
of secession, and is not properly a precedent for other times.
This remark applies equally to the Conventions called by the
States and those called under the Reconstruction Acts by Con-
gress, or by its authority.

The case of the Georgia Convention of 1788, to which the
delegates were chosen directly by the legislature, it need not
be said, was a violation of all principle, and as a precedent
BY WHOM CONVENTIONS HAVE BEEN ELECTED, 269

would be fraught with extreme danger. So universally has this
action of the Georgia legislature been discountenanced, that it
has never been imitated in that or any other State. In the
Rhode Island case, the departure from principle was little more
than nominal, since, although the General Assembly enlarged
the list of those authorized to vote for delegates to the second
Convention of November, 1841, as well as to that of 1842, be-
yond the limits of the existing laws, that body had, by the charter
of Charles II., as we have seen, the right to determine the quali-
fications of voters, and it was clearly a wise exercise of its legis-
lative discretion to extend the franchise to those citizens whose
just discontent had lately precipitated them into revolution.

In the case of New Jersey, it does not appear whether the
electorate was, on the whole, increased or diminished. The Act
calling the Convention of 1844, on the one hand, restricted the
right of voting for delegates to the white citizens, instead of to
all the inhabitants of full age, who had that right under the
Constitution of 1776; but it increased the number of voters by
removing the property qualification required by the same Con-
stitution. It certainly, however, violated principle in thus giving
the right of choosing delegates to persons not entitled to vote
under the existing Constitution.

As to the Maryland Convention of 1867, it may be observed
that, if it enfranchised the citizens who had been involved in the
rebellion, and been disfranchised by the Constitution of 1864, in
a manner or by a majority forbidden by that instrument, as is
charged by the memorial above referred to, or if it caused those
citizens to be registered contrary to law, and to be represented
in the Convention by a disproportionate representation, as is also
charged, the case is clearly one of a departure from principle,
and ought not to be drawn into precedent. The case is put thus
hypothetically because the statement of facts made in the me-
morial may be exaggerated or untrue.
CHAPTER V.

OF THE ORGANIZATION AND MODES OF PROCEEDING OF CON-
VENTIONS.

§ 267. THE Convention having been called, our next inquiries
relate to the general structure or constitution of the body, to its
internal organization and to its modes of proceeding.

The constitution of a Convention may be considered with ref-
erence, first, to its membership — the qualifications therefor —
and, secondly, to the question of its subdivision into separate
chambers, possessed of a mutual negative upon each other.

1. The first question — Who may be members of a Conven-
tion ? — receives an explicit answer in but few of our Constitu-
tions. The Kentucky Constitution of 1850, Article XII, re-
quires that they shall be “ possessed of the same qualifications of
a qualified elector ;” that of California of 1879, and that of
Florida of 1865, that they shall have “the same qualifications as
members of the General Assembly ;” and that of Illinois of 1870,
“the same qualifications as members of the Senate,” which differ
from those prescribed for the electors in the requirement that
Senators shall be of the age of twenty-five years, citizens of the
United States, resident in the State five years, and in the dis-
trict in which they were elected two years, next preceding their
election ; whereas for electors, a residence of one year in the
State, ninety days in the county, and thirty days in the election
district, next preceding any election sufficed, thus increasing the
qualifications for delegates above those prescribed for electors.
These are the only Constitutions which have prescribed the quali-
fications of the delegates to Conventions.

In the Acts under which Conventions have assembled, how-
ever, the qualifications of the delegates have been more fre-
quently specified. The most common requirement is, that they
shall possess the qualifications of ‘electors,’ or ‘ voters,” oF
WHO ARE ELIGIBLE TO CONVENTIONS ? 271

“which would entitle them to vote for Representatives to the
General Assembly ;”! or “the qualifications of members of the
House of Representatives ;”2 or “those required of members of
the General Assembly ;”? or “those of Senators;”* or that
they shall be “discreet and proper persons;’’® or “free male
citizens of the State twenty-four years of age and upwards ;’’® or
‘free white men, twenty-one years of age, resident one year in
the State, provided that they possess the freehold required of a
member of the House of Commons,”” or * persons entitled, under
the Act calling the Convention, to vote for delegates ;” 8 or
“‘white male citizens of the United States having certain qual-
ifications of age or residence in the State or Territory,” ® or
“having the qualifications of voters under existing laws;”’ or
‘persons resident in the county, or delegate district,” — of the
former, the same number as of the members of the House of
Delegates, and two of the latter; " or that ‘the elections of del-
egates should be conducted in the same places and manner, and
under the same regulations, and the result be certified and de-
clared in the same manner as prescribed for members of the
House of Representatives.”

Some Convention Acts prescribe the qualifications of delegates

1 Convention Acts of Colorado and New Hampshire, 1876; Florida, 1861;
Indiana, 1850; Kansas, 1857; Michigan, 1867; Nebraska and Nevada, 1864;
Ohio, 1850 and 1873; Rhode Island, 1824 and 1834; and South Carolina,
1860.

2 Convention Acts of Arkansas, 1861 and 1874; Maryland, 1864; and
North Carolina, 1875.

8 Convention Acts of Georgia, 1877; and Louisiana, 1852.

4 Convention Acts of Alabama, 1875; and Iowa, 1857.

5 Convention Act of Virginia, 1850.

6 Convention Acts of Delaware, 1831 and 1852.

7 Convention Act of North Carolina, 1835.

8 Convention Acts of Georgia, 1877; New York, 1821; Rhode Island, 1824,
and November, 1841.

® Convention Acts of Florida, 1838, requiring twelve months’ residence;
Georgia, 1833 and 1839, requiring the age of twenty-five years, an inhabitancy
of the State of seven and three years respectively, and a residence in the
county of one year; Iowa, 1844 and 1846, requiring six months’ residence in
the Territory; Michigan, 1835, requiring twenty-one years of age; and Vir-
ginia, 1861, requiring twenty-five years of age.

10 Enabling Act of Nevada, 1863.

11 Convention Act of West Virginia, 1872.

2 Convention Act of Michigan, 1836.
272 WHO ARE ELIGIBLE TO CONVENTIONS ?

in negative terms, as, that no person excluded from the privilege
of holding office by the XIV. amendment to the Constitution
of the United States should be eligible as « member of the Con-
vention ;! or no person who is not twenty-one years of age, a
citizen of the State twelve months, and of the district from
which he is sent six months, preceding the election ;? or no per-
son not twenty-four years of age, a free white male citizen of
the United States, a citizen of the State two years, and of the
district one year, before his election. Im these cases, doubtless,
all citizens qualified to vote at general elections, and not em-
braced within the prohibited classes, would be eligible to the
Convention.

The Acts calling the Maryland Conventions of 1850 and 1867
required for delegates to those bodies the same qualifications as
for members of the House of Delegates. But the former declared
to be eligible, also, “Senators or Representatives in Congress,
State Senators, and civil officers of the State or the United
States, residing within the State twelve months preceding the
election ;” but the latter excluded ‘clergymen, ministers of the
gospel, preachers of any denomination, Senators and Representa-
tives in Congress, Judges of Circuit, Superior, Common Pleas,
and Criminal Courts, State’s Attorneys, Auditors of the city of
Baltimore, Clerks of Courts, Registers of Wills, and Sheriffs,”
from seats in the Convetion.

Finally, the Act calling the New York Convention of 1867
made a wholly new departure in authorizing to sit as a delegate
in said body any citizen of the State, whether a resident of the
district for which he was elected or not. Whether this Act could
be construed as authorizing the election of women, or persons
under age, may perhaps be doubted. If not, it does little more
than authorize the election of male citizens of New York of ma-
ture years, whether resident in the same election district or not.
From the above citations it may be stated that in no case bas any
Constitution or Convention Act authorized to sit as a member of
a Convention any person not a citizen of the State, and a quali-
fied voter or elector according to the existing law; or any person

1 Act of March 2, 1867, under which the second series of Reconstruction
Conventions assembled. U.S. Sts. at Large, vol. 14, p. 428.

2 Acts calling the Tennessee Conventions of 1861 and 1870,

8 Convention Act of Missouri, 1861-63.
WHO ARE ELIGIBLE TO CONVENTIONS ? 273

not a resident in the election district from which he seeks an
election as delegate, save in the single case just noted of New
York.

§ 268. In the Constitutions of several of the States, now in force,
after making provision for calling Conventions under certain
circumstances, the delegates thereto are required to be “ chosen
in the same manner, at the same places, and at the same time,”
as the representatives to the General Assembly, and the same or
equivalent phraseology is found in many of the Acts of the State
legislatures by which Conventions are called. So, also, in the
enabling Acts passed by Congress, authorizing Conventions in
Territories, there is commonly inserted a provision requiring the
elections to be “conducted in the same manner as is prescribed
by the laws of the Territory regulating elections therein for
members of the House of Representatives.” T’o these add, what
is believed to be the fact, that in no case has any person ever
been elected as a delegate to a Convention in the United States
who was not a citizen-elector, resident in the State where the
Convention was called, and the case, upon one side, is presented.
If it does not establish the fact, that, as a general rule, no one,
not possessing at least the general qualifications of an elector, is
eligible to a Convention, it certainly raises a strong implication
to that effect.

§ 269. Against these facts should be set off the declarations
of certain authorities, in and out of Conventions, laying down
an opposite rule, according to which the electors may choose
whom they will to represent them in those bodies, whether quali-
fied electors or not, even if non-residents of the State, and that,
whether restricted by the Act calling the Convention or not.
Thus, the opinion has been expressed, that “the delegates may
be individuals from any class, including the ministers of religion,
the Governor, and other public functionaries, and the judges ” 1 —
persons, by many of our Constitutions, excluded from occupying
seats in our General Assemblies, or from holding any other places
of honor or profit. So, in the Pennsylvania Convention of 1837,
it was intimated that, had the county of Philadelphia elected
Albert Gallatin, a citizen and resident of New York, as its dele-
gate, it would have been competent for that body to admit him
to a seat, in the face of the Act of the legislature, above referred

1 Hinton’s Hist. U. S., Vol. IL. pp. 324-327.
O74 SHOULD CONVENTIONS CONSIST OF TWO CHAMBERS ?

to, localizing the elections of its members.1 ‘Those who advo-
cate this freedom of election might, perhaps, with some plausi-
bility claim, that, inasmuch as the function of a Convention is
to recommend, not to enact, constitutional changes, free scope
should be allowed to the electors to employ the best talent they
can find, wholly without restriction; and that what reason thus
indicates to be expedient, the fact that most of our laws and
Constitutions are wholly silent as to who may, and who may
not be members. of Conventions, demonstrates with sufficient
clearness to be according to the intent of those who framed
them.

§ 270. 2. In relation to the question of subdividing Conven-
tions into two chambers, with a check upon each other, after the
plan of our legislative Assemblies, it is not my purpose to en-
large. So long as those bodies confine themselves to their
legitimate function, of advisers, and abstain from acts of legis-
lation, which belong to another department, the legislature, their
present constitution, in a single chamber, is without danger,
and, having the merit of simplicity, is doubtless preferable to
any other. Such has uniformly been the constitution exhibited
by them thus far. The idea, however, has been advanced, that
a Convention of two houses would better answer its constitu-
tional purpose than of one. In the New York Convention of
J846, Mr. Ruggles introduced a resolution recommending, that
all future Conventions called in that State should consist of two
chambers. It was received with little favor, however, and was
not pressed. In 1857, the Convention of Minnesota realized as
a fact the constitution which had only been elsewhere imagined.
The two political parties in the Convention, Republicans and
Democrats, disagreeing as to the organization of the body,
formed separate Conventions, which ran parallel courses, each
claiming to be the only legitimate Convention. Two Constitu-
tions were reported, and it seemed that the people were to be
embarrassed by the necessity of choosing between them, when,
toward the close of their respective sessions, a conference was
had between the two bodies, and a single Constitution reported
to, and adopted by them both. It seems clear, that this mode
of organizing bas decided advantages. A Constitution, accept
able to all political parties in a State, must be free from partisan

1 Deb. Pa. Conv., 1837, Vol, I. p. 400.
INTERNAL ORGANIZATION OF CONVENTIONS. 275

legislation ; must “contain, as it ought, only measures whose
policy or expediency had been thoroughly settled in the public
mind.

§ 271. By a very remarkable exhibition of moderation, what,
in Minnesota, resulted from disagreement, was in New Jersey,
in 1844, substantially effected by amicable arrangement between
political parties. Those parties did not separate after assem-
bling in Convention, but, by an arrangement recommended by
the members of the legislature, in concurrence with influential
persons throughout the State, delegates were elected to the Con-
vention from all the districts, save one, by each of the parties.!
It is impossible to commend too highly an example which must
have sprung solely from a view to the public good. Where all
parties were, in point of numbers, on a par, it could be only
by combinations, not reasonably to be expected, that measures
having a party bearing could be carried in Convention. Al-
though it is not so stated, the inference is, that the delegates
elected sat together in a single chamber.

§ 272. I pass now to consider the internal organization of
Con ventions.

The call under which a Convention assembles, may contain
specific directions in reference to its organization, in which case,
it will be the duty of the body to follow those directions to the
letter. As the case has never occurred in which it has been
attempted to prescribe more than a few of the most important
particulars, and as no attempt is likely to be made to hamper
such a body by minute regulations, the subject will be dismissed
without further comment. The alternative is, that the Act call-
ing the Convention should be silent as to the points indicated.
This case embraces most of the Conventions thus far held in
the United States, the call generally confining itself to the time
and mode of electing the delegates, the qualifications of the
electors, the time of assembling of the Convention, and suco
other particulars as either fall more naturally within the scope
of legislative authority, or as require to be definitely settled
before the body meets. Such, on the other hand, as are inci-
dental to the exercise of the functions of the Convention, as
such, are commonly left to the discretion of the body itself.

1 Mulford, fist. N. J., pp. 495, 496.
276 THE CALL TO ORDER.

§ 273. The usual mode of initiating the organization of a
Convention, is for some member elect to call the body to order
and move the election of a presiding officer pro tempore. In
nearly all the Conventions whose proceedings have been pub-
lished, such has been the course pursued! In a few instances,
the body has been called to order by some person who was at
once a member of the Convention and an officer of the existing
government. Thus, in Massachusetts, in 1820, the Convention
was called to order by the Lieutenant-Governor, William Phil-
lips, who was also member for the town of Boston.. The Cali-
fornia Convention, held in 1849, and that formed by the Demo-
cratic members of the Minnesota Convention of 1857, were
respectively called to order by the Secretaries of the Territorial
governments, sitting as members of the Conventions. Except
in the case last named, in which there was a split in the Conven-
tion, no stress, so far as I am aware, has ever been laid on the
fact, that the Convention had or had not been called to order by
an official person. In that case, there was a strife to establish
for the several fragments into which the body was divided, a
character as the legitimate Convention. The Democratic mem-
bers, who had receded from the hall where the Convention was
to assemble, on finding it occupied by the Republicans, by whom
an organization had been, as was charged, prematurely effected,
claimed for their Convention, subsequently organized in another
place, a higher legitimacy, because opened by the Secretary of
the Territory. The Act under which the Convention met, how-
ever, contained no directions requiring the Secretary, as such, to
attend the Convention. Being a member, his action, therefore,
must be presumed to have been in that capacity, and not in that
of Territorial officer?

1 ‘This was the course in Illinois, in 1847 and 1862; in Kentucky, in 1849;
in Ohio, in 1850; in the Republican Convention of Minnesota, in 18573 in Vir-
ginia, in 1829 and 1850; in Wisconsin, in 1847; in Massachusetts, in 1853; in
Pennsylvania, in 1837; in Iowa, in 1857; and in Louisiana, in 1844 and 1852.
Some Convention Acts prescribe, that the Secretary of State shall attend the
Convention to furnish a list of the members elect. Such was the case in New
York, in 1821 and 1846; in Michigan, in 1850; and in Illinois, in 1847. In
New York and Michigan, the Secretary read the list of members, and then some

member moved the election of officers pro tem., after which the body was called
to order.

2 The disruption of this Convention was occasioned by the fact that the ena-
bling Act had named no hour at which the Convention was to assemble. Moved
OFFICERS OF THE CONVENTION, HOW CHOSEN. 277

§ 274. The officers of a Convention are either temporary or
permanent. In most Conventions, the first proceeding, after the
call to order, has been the appointment of a president, a secre-
tary or secretaries, a sergeant-at-arms, and occasionally some
other officers, pro tempore. The mode of appointment has been
uniformly by viva voce vote, as, at this stage of the organization,
is proper and necessary. On the basis of this temporary organi-
zation a permanent one is then effected. The permanent officers
of a Convention are usually a president, one or more clerks or
secretaries, sergeant-at-arms, door-keeper, and messengers. In
a majority of cases these officers have been elected by ballot,
either with or without a requisition to that effect in the call of
the Convention. In about one-third of the cases, however, they
have been elected viva voce, and in a few, the President has been
elected by ballot, and the inferior officers by viva voce vote, or
by resolution” Beside the permanent officers above named,
in most Conventions there have also been appointed a chaplain or
chaplains, a printer, and one or more reporters. As to the first
of these officers, the chaplain, the practice is not uniform. Ina
few instances, a single person has been elected to that office for
the session ; but in far the greater number, a resolution has been
adopted early in the Convention, inviting the clergy of the dif-
ferent denominations, resident in the places where the Conven-
tions were sitting, to officiate as chaplains in rotation.’ So, in
by alleged threats, that the Democratic members would seize the hall of the
Convention at an early hour and forestall the organization, the Republican mem-
bers in a body took possession of it during the night preceding, and held it until
the usual hour for organizing such bodies arrived.

1 In all the Conventions in Massachusetts, the first officer elected was a secre-
tary ; and, in that of 1853, it was strongly contended that such a course was the
most proper one. Deb. Mass. Conv., 1853, Vol. I. p. 9.

2 They were elected by ballot, in New York, in 1821 and 1846 ; in Virginia,
in 1829; in Massachusetts, in 1820 and 1853; in Pennsylvania, in 1789; in
Illinois, in 1847; California, in 1849 ; in Michigan, in 1850; in Louisiana, in 1844 ;
in Ohio, in 1850; and in Wisconsin, in 1847; and by viva voce vote in Illinois,
in 1862; in Kentucky, in 1849; in Indiana, in 1850; in Minnesota (Republican
Convention), in 1857; in Pennsylvania, in 1837; in Louisiana, in 1852; and
in Iowa, in 1857. In the Minnesota Democratic Convention, in 1857, they
were elected by resolution.

2 A chaplain was elected in the following Conventions; both those of Min-
nesota, in 1857; those of Massachusetts in 1820 and 1853, and ih that of Mary-
land, in 1850; while in the following, the resident clergy officiated as stated ;
those of Kentucky, 1849; Illinois, 1847 and 1862; California, 1849 ; New York,
278 REPORTS OF THE PROCEEDINGS OF CONVENTIONS.

regard to printer, the practice has been various. In a few cases
the Act calling the Convention has required or authorized it,
when convened, to elect a printer, either unconditionally, or upon
certain prescribed terms.! In much the greater proportion of
the cases, however, the enabling Acts have been silent on the
subject, and those bodies have elected such persons, and on such
terms, as they thought best. In two or three instances, the
printer so selected has been the official printer of the State or
Territory. The Act calling the Michigan Convention of 1850,
required the State printer to do the work of the Convention, and
that body acquiesced in the provisions of the Act. In the IIli-
nois Convention of 1862, the same spirit was not manifested.
The Act under which it assembled, made it the duty of the
Secretary of State “to cause such printing to be done as the
Convention shall from time to time require.” Although this
Act was not couched, perhaps, in such terms as to leave the
duty of the Convention free from doubt, since it seemed to be
optional with that body to make or not, as it should see fit,
requisitions upon the secretary for printing; still it is, on the
whole, clear enough, that the legislature intended to put the
printing of the Convention into the hands of a public officer of
the State. The Convention evidently so interpreted the Act,
for, in the discussions which followed the motion to elect a prin-
ter, it was assumed that such was the intention of the legislature.
The Convention took its stand upon a question of power, con-
tending that the legislature was incompetent to fetter the discre-
tion of that body in the appointment of its own officers. It
consequently refused to obey the Act as thus interpreted, and
elected a printer of its own.

§ 275. In Conventions, some provisions have generally, and
very properly, been made for preserving, for general circulation,
reports of their debates and proceedings. In all, or nearly all,

1821 and 1846; Michigan, Ohio, and Indiana, in 1850; Virginia, 1829 and
1850; Wisconsin, 1847; Pennsylvania, 1837; Iowa, 1857; and Louisiana, 1844
and 1852. In Massachusetts, in 1779, the clergy who were members of the Con-
vention officiated.

1 Such was the case in Illinois, in 1847; Kentucky, in 1849; and Lowa, in
1857; in which no terms were prescribed ; and in New York in 1846, and Mich-
igan and Ohio in 1850, in the first two of which the Conventions were limited
in the amount to be paid to the rate paid for the legislative printing, and in the
latter, to a designated sum.
CREDENTIALS AND LIST OF MEMBERS. 279

their journals have been published. In a much smaller number,
have been published full reports of their debates. In the latter
cases, the Conventions have commonly elected official reporters
among their regular officers, without any special authorization
of the legislature calling them.! In a considerable number, no
official reporter has been appointed, but the reports published
have been the work of private enterprise? In the case of the
Indiana Convention of 1850, the Act calling it bad required the
Governor to engage the services of a stenographer for the Con-
vention. This was done, and the Convention received and
employed him; though not without questioning the right of
the legislature to dictate to that body who should act as its
officers. Of the Ohio Convention of 1850, the reporter was
appointed, before the Convention assembled, by the State legis-
lature. On his presenting himself to the Convention, however,
a similar discussion arose, as to the right of appointment, but
the Convention acquiesced in the action of the legislature. The
Act calling the Pennsylvania Convention of 1837, specially au-
thorized that body to engage the services of a competent ste-
nographer, a course probably wiser than any other, as avoiding
discussion.

§ 276. It is obvious that in a numerous assembly, convened
as a result of popular elections, some system is necessary for
determining who have been elected, and are consequently en-
titled to take part in its deliberations. In the various Conven-
tions, the practice on this point has been far from uniform,
though there is apparent in them, after all,a sort of regularity.
In a considerable proportion of them, generally the same in
whose organization the initial step had been the appointment of
officers pro tempore, a list of the members, furnished by the Sec-
retary of State or other officer of the existing government, to
whom the official returns of the elections had been made, or
drawn up by the officers of the Convention themselves, has been
called over immediately after the temporary organization, and

1 This was the case in the following Conventions: Massachusetts, 1853 ; Wis-
consin, 1847; Kentucky, 1849; Missouri, 1820; Michigan, 1850 ; Iowa and the
two Minnesota Conventions, 1857; California, 1849 ; Louisiana, 1844 and 1852;
and Illinois, 1862.

< In this class are the Conventions of Massachusetts, 1820; New York, 1821
and 1816; Virginia, 1829 ; and Illinois, 1847.
280 SHOULD MEMBERS OF CONVENTIONS BE SWORN ?

the credentials of the members have thereupon been presented
and approved! The list having thus been verified, the Conven-
tion has been prepared to enter upon business. In some cases,
the list of delegates has been presented by some officer of the
government, and read in the first instance, before the tempo-
rary organization has been effected.2. In others, after the tem-
porary organization, the first business transacted has been the
raising of a committee on credentials, upon whose report the
list of members for future use has been founded?

In those Conventions, on the other hand, in which no tempo-
rary organization has been made, the practice has been equally
varied. In Pennsylvania in 1776 and 1789, in New York in
1821, and in Indiana in 1850, a list of the delegates elected, fur-
nished by the Secretary of State or other officer of the gov-
ernment, was read in the first instance, before any attempt at
organization. In Maryland in 1776, and in Massachusetts in
1820 and 1853, a committee on credentials was raised, in the
first case after, but in the two Massachusetts Conventions before,
the permanent organization ; and in one case, that of the Vir-
ginia Convention of 1829, the roll was not called or verified
until after the completion of the permanent organization.

§ 277. The question whether the members of a Convention
should be sworn before entering upon their duties, has been vari-
ously answered in different Conventions. Of the whole number
whose proceedings have been accessible to me, about one half
only have administered an oath. These were the following
Conventions: those of Pennsylvania, 1776; North Carolina,
1835; New Jersey, 1844; Missouri, 1845; Illinois, 1847 and
1862; California and Kentucky, 1849; Ohio and Indiana, 1850;
Iowa and the two Minnesota Conventions, in 1857; and Mary-
land, in 1864. On the other hand, an oath was not adminis-
tered in the following Conventions: Maryland, 1776 and 1850;
Tennessee, 1796 and 1834; Virginia, 1829 and 1850; Pennsyl-
vania, 1789 and 1837; New York, 1821 and 1846; Massachu-

1 This was done in Illinois in 1847 and 1862, Kentucky in 1849, Ohio and
Virginia in 1850, California in 1849, Pennsylvania in 1837, Iowa in 1857, and
Louisiana in 1852. ;

2 These were the Conventions of New York in 1846, and Michigan in 1850.

3 In Minnesota in 1857 (both Conventions), in Wisconsin in 1847, in Iowa
in 1857, and in Louisiana in 1844.
SHOULD MEMBERS OF CONVENTIONS BE SWORN? 281

setts, 1779, 1821, and 1853; Michigan, 1850; Wisconsin, 1847;
and Louisiana, 1812, 1844, and 1852. In those Conventions in
which an oath has been administered, the most common form
has been substantially that used by the Illinois Convention of
1847, which was as follows: “ You do solemnly swear, that you
will support the Constitution of the United States, and that
you will faithfully discharge your duty as delegates to this Con- —
vention, for the purpose of revising and amending the Constitu-
tion of the State of [linois.’ That administered in Maryland,
in 1864, beside the foregoing, contained an oath of allegiance
to the government of the United States. A more restricted
form was employed in the California Convention of 1849, and
in the Minnesota Republican Convention of 1857, namely:
“ You do solemnly swear that you will support the Constitution
of the United States.”

§ 278. In several of the Conventions in which an oath has
been administered, opposition has been made either to taking
any oath at all, or to taking one in the form proposed by the
Convention, or prescribed by the Act under which it assembled.

1. It has been urged that no oath was necessary or proper ;
that if the Convention was a mere committee, with powers
only of proposing amendments, it was a useless ceremony to
bind it by oaths to do or not to do acts which it could do only
on the hypothesis that it possessed a power of self-direction
inconsistent with its supposed character ; that it was even dan-
gerous so to do, as involving an admission, that, without an oath
or some positive prohibition, it would have power, and perhaps
be at liberty, to act definitively. On the other hand, if the Con-
vention was an embodiment of the sovereignty of the State or
nation, empowered to pull down and reconstruct the edifice of
government, as freely as the sovereign could itself do, were it
possible for it to act in person and directly, then an oath would
be doubly futile, since it could not fetter a power that was prac-
tically unlimited and uncontrollable.

In reply to this, however, it has been forcibly urged that, if
not necessary, it is proper that a body like a Convention, in-
trusted with important public duties, should deliberate under
the obligation of an oath; that it could do no harm, and might
operate to restrain members from doing, for selfish or partisan
ends, that by which the interest of the people at large might be
982 FORM OF THE OATH TO BE ADMINISTERED.

jeopardized. This would become more apparent, when it was
considered that an oath derives its efficacy more from its ten-
dency to remind the taker of his obligation to a higher power,
than from any liability the taking of it may impose upon him
to punishment for perjury.

§ 279. 2. What form of oath should be used has, however,
been more frequently the subject of dispute than whether any
oath was proper. In Conventions to frame State Constitutions,
assuming that an oath is to be administered at all, it is gener-
ally conceded to be proper that it should embrace an undertak-
ing to be faithful and obedient to the Constitution of the United
States. This could not well be contested, since the State Con-
stitutions are, by the terms of the Federal charter, to be valid
only when conformable to its provisions. It is also generally
admitted to be proper, if an oath be taken at all, that the mem-
bers should be sworn honestly and faithfully to perform their
duties as members of the Convention. <A question of more
difficulty is, whether the oath should contain a clause to sup-
port the Constitution of the State. This question has been
raised in several Conventions, and has been uniformly decided
in the negative! The reasonings of the opposite parties upon
this question have been based on their respective conceptions
of the nature and powers of a Convention. Those who have
opposed taking the oath have done so on the ground, that to do
so would be inconsistent with their duties as members of a
Convention ; that they were deputed by the sovereign society to
pull to pieces, or, as some have expressed it, “to trample under
their feet,” the existing Constitution, and to build up instead of
it a new one; that to take an oath to support the Constitution
of the State, would be to swear that they would not perform
the very duty for which they were appointed.

§ 280. On the other hand, it has been contended, that it is no
part of the duty of a Convention to pull to pieces the existing
Constitution of the State; that by the true theory of such a
body, it is advisory merely ; having power to overhaul the Con-
stitution, search out its defects, and recommend such changes

1 Jt arose in the Louisiana Convention of 1844, in the Ohio Convention of
1850, the Iowa Convention of 1857, and the Illinois Convention of 1862. In
the last case the oath to support the Constitution of the State had been. pre-
scribed by the Act calling the Convention.
FORM OF THE OATH TO BE ADMINISTERED. 283

-as should in its view promise to remedy theia, but to conclude
nothing; that in this view of a Convention, the Constitution is
in full vigor and operation as much when that body, having
completed its task, should suffer dissolution, as when it first
assembled ; that, in the mean time, if unrestrained, a Conven-
tion might, under a claim of power to exercise sovereign rights,
“trample under its feet” every one of those liberties secured
against ordinary usurpation by the Bill of Rights; it might
suspend the writ of Habeas Corpus, raise a standing army and
quarter it in peace upon the citizens without their consent, de-
stroy the liberty of the press, declare those who should offend
its dignity to be guilty of felony and punish them, by its own
hands, with death. Surely, if such usurpations are possible, no
matter what the theory of their powers may be, Conventions
ought to be placed under all the restraints that can be devised
to prevent them. Undoubtedly one of the most powerful of
these is an oath to support the Constitution, in which are bound
up these liberties, and which therefore must first be infringed
before those liberties can be violated.

§ 281. To the Conventions of North Carolina, 1835 and 1875,
and of Illinois, 1862 and 1869, the Acts under which those bodies
assembled prescribed the form of the oath to be taken. In the
former, great opposition having existed to the call of a Conven-
tion on the part of a powerful minority in the State legislature,
in the Act finally passed restrictions were imposed upon the
Convention as to the extent and nature of the amendments it
should propose, requiring it to report amendments upon three
points, and giving to it discretionary authority to propose others
upon nine pvints particularly described in the Act. The Act
then proceeded to require that no delegate should be permitted
to take his seat in Convention until he should have taken and
subscribed an oath or affirmation as follows: “I, A. B., do sol-
emnly swear (or affirm, as the case may be) that I will not di-
rectly or indirectly evade or disregard the duties enjoined or the
limits imposed to this Convention by the people of North Caro-
lina, as set forth in the Act of the General Assembly, passed in
1834, entitled ‘An Act to amend the Constitution of the State
of North Carolina,’ which Act was ratified by the people.”

To the taking of this oath, objection was raised in the Con-
vention, on the ground that the legislature had no right to im-
284 FORM OF THE OATH TO BE ADMINISTERED.

pose it, some being of the opinion that, if taken, it would bind
the members to concur in all the amendinents proposed. Others
thought it would merely restrict the Convention to the consid-
eration of those amendments, without at all prescribing the view
it should adopt respecting them. At length it was pointed out
that there was absolutely no escape from taking the oath; that
by the terms of the Act no delegate should be permitted to take
his seat in the Convention until he had taken the prescribed
oath. It was a condition precedent to their organization; and if
it was objected that the legislature had transcended its authority
in imposing the condition, it might be answered that the Act
rested not alone on the authority of the legislature, but on that
of the people to whom it had been submitted. This view pre-
vailed, and the oath was taken by all the members.!

The requirements and restrictions contained in the Convention
Act of 1875 were similar to the foregoing, as was also the form
of the oath prescribed. Though some of the delegates were op-
posed to taking the oath, they did so, but entered a formal pro-
test, denying the power of the legislature to impose it.?

§ 282. In the Illinois cases, the Convention Acts had both
prescribed that the members, before entering upon their duties,
should ‘‘ each take an oath to support the Constitution of the
United States, and of this State, and to faithfully discharge his
duties as a member of said Convention.” The taking of this
oath was strenuously opposed, on the two grounds before men-
tioned, that the legislature had no power to impose it, and that
the clause relating to the Constitution of the State was incon-
sistent with the general tenor of the Act calling the body to-
gether as a Convention. The result of the discussion was, that
the Convention of 1862, by a formal vote, refused to obey the
Act under which it assembled, in regard to the form of the oath
to be taken by its members. The oath actually administered
was substantially the same as that taken by the I]linois Conven-
tion of 1847, and differed from that prescribed mainly in omitting
the words, “‘and of this State,” upon which the debate arose.
The Convention of 1869, though inclined to disobey, finally took
the oath prescribed by the Act, with the words, “so far as its
provisions are compatible with and applicable to my position,”

1 Deb. N. C. Conv. 1835, pp. 4-8.
2 Journal N. C. Conv. 1875, p. 1.
FORM OF THE OATH TO BE ADMINISTERED. 285

ete., added to the words, “and of this State ;” thus, in substance,
obeying the Act.

§ 283. Upon the question involved in the Illinois cases, I shall
make but a single observation, and that in relation to the alleged
incongruity between the undertaking contained in the oath, and
the actual business of the Convention.

When a member of a Convention swears to support the Con-
stitution of his State, what Constitution is it he swears to sup-
port? Is it the written instrament — the Constitution considered
as evidence of an organic growth — or the organic growth itself —
the actual Constitution? Substantially, the latter only. He
calls God to witness that, while inspecting the written Consti-
tution, to see if it adequately expresses the real Constitution, to
which the Commonwealth has grown since the last revision, he
will not violate, but will protect and defend, those essential rights,
and respect and conform to those particular limitations and ad-
justments, which make up that real Constitution; though he
doubtless adds that, pending the utterance of the fiat, by which
obsolete or inadequate provisions of the written Constitution are
stricken from its pages, he will respect them also as the funda-
mental law of the land. But, suppose every copy of the Con-
stitution, considered as an instrument of evidence, were destroyed,
and the memory of its contents utterly blotted out, the real Con-
stitution would remain, the Constitution to which the oath mainly
refers. So that, if we were to admit that it is the duty of a Con-
vention to eradicate from the written Constitution, and to tram-
ple under its feet such part thereof as the Commonwealth has
outgrown, the oath would still refer to that greater part which
is living and operative.

The charge, then, that there is any inconsistency between the
oath supposed, and the function of a member of a Convention,
however broad the powers of the latter be conceived. to be, is a
gross absurdity, resulting from confusion of ideas as to the real
meaning of the term Constitution. Much more is it an absurdity
in view of the fact, that a Convention is a body of very narrow
powers, charged only with pointing out defects and recommend-
ing remedies, but with a right, ordinarily, to conclude nothing.

§ 284. Immediately after the permanent organization, there is
generally appointed a committee to report a body of rules for
286 RULES OF ORDER. 5

the government of the Convention, or to facilitate the transac.
tion of its business. Pending the preparation of this report, in
about half the cases, a resolution has been carried to adopt for
their government, for the time being, the rules of the last House
of Representatives of the State, so far as applicable. In a few
instances, the rules of the last Convention have been temporarily
put in force, and in one case, that of California, in 1849, those
laid down in Jefferson’s “ Manual of Parliamentary Law.” As
to the character of the rules adopted, it may be said, in general,
that they are, in substance, the same, so far as they are strictly
rules of order, and not rules determining the modes of proceed-
ing, as those by which our legislatures are commonly governed.
The differences are such as result either from the special and
limited character of Conventions, as compared with legislative
Assemblies, or from the relative importance of their respective
duties. In the former, for instance, there is not, probably, a
necessity for the same safeguards against haste, surprise, or
inadvertence, as in the latter, inasmuch as the volume of the laws
to be passed upon is smaller, or against the combinations of
interested parties, as the legislation performed by them is less
near to the interests or the party prejudices of their members or
others. Thus, it is sometimes provided, that clauses may be
adopted as parts of the proposed Constitution, upon a Jess num-
ber of readings than would be safe, or than is usual, in case of
ordinary laws. On the other hand, by reason of the vastly
greater importance of the subjects of deliberation in Conven-
tions, the rules often grant a much greater facility for reconsid-
eration than in legislative Assemblies. Thus, in the Massachu-
setts Convention of 1853, on motion of the Hon. Henry Wilson,
the ordinary rule requiring a motion for reconsideration to be
made by one who voted with the majority, was so modified, as
to permit any nember to make it, whether he had voted with the
majority or not. Greater latitude is, also, in many cases, allowed,
as to the time within which that motion must be made.1

1 The relaxation of the rule as to time seems to be much more reasonable
than as to the mover. As was well said by Mr. Quincy, in the Massachusetts
Convention of 1820, it is proper, before allowing a reconsideration, to require
some evidence that a reconsideration would lead to a different result from that
already attained, else it would be a mere loss of time; and a motion by one of
the majority to reconsider, is proper evidence of that fact. The Convention of

1820, after some discussion, refused to modify the general rule as to reconsider-
ations.
MODE OF PROCEEDING. 287

§ 285. The Convention having organized, by the appointment
of officers and the adoption of rules of order, and, therefore,
being ready to proceed to business, a question of great perplexity
and of great importance thereupon arises: “ What shall be the
mode of proceeding ? — a question, in short, of method.

This question involves two subordinate ones, which I will
take up in their order, namely, first, What arrangements, if any,
shall be made whereby the labor of the Convention may be fa-
cilitated by subdivision ? — a question properly of instrumental-
ities ; and, secondly, In what manner shall those instrumen-
talities prosecute the task apportioned to them ?

First. Of the first question, two practical solutions may be
given.

1. The Convention may enter upon its task —the framing or
the amending of a Constitution — directly, in Convention, as it
is called — that is, without resolving itself into a committee or
committees. In this mode of proceeding the course of business
would be, to take up the existing Constitution of the State, or
that of some other State, or some model or project presented by
individuals, subject it to a round of discussions in Convention,
and finally to adopt it as the proposed Constitution, or as an
amendment thereto. The disadvantages attending this mode
are so patent and so numerous, that it is doubtful if it would
ever be adopted, as it is believed that it never has been adopted.
The leading objection to it is, that the deliberations of any nu-
merous assembly, which should adopt it, would be at once pro-
tracted and fruitless. It is obvious that every member might
present his scheme, and rightfully claim for it regular and or-
derly consideration ; and, in the absence of the concert of action
secured by committees, a great number of schemes, turning out
ultimately to be futile or inadequate, would undergo protracted
discussion, which, with a proper mode of proceeding, would be
nipped in the bud. Besides, the immense labor of maturing,
in all its details, a large number of connected fundamental Acts,
would have to be done, according to this mode, by the entire
Convention— an arrangement, for business efficiency, to be
equalled in absurdity only by a military plan, which should re-
quire to be detailed for every duty of camp or field, however
trivial, the entire force of all arms in the command.

§ 286. 2. The alternative is, the employment of one or more
988 MODE OF PROCEEDING.

committees to prepare and report a Constitution, or parts there-
of, or amendments thereto, for the consideration of the Conven-
tion. And, as intimated above, this course has been adopted
with perfect unanimity by the Conventions to whose proceed-
ings I have had access. Upon one point, however, there has
been very great divergence of opinion, and that is, in relation to
the number, and, if more than one, the mode of appointment of
those committees.

§ 287. (a). As to the number of committees, a very common
opinion, when the subject is first discussed, is that there should be,
for convenience and despatch of business, but a single commit-
tee — the committee of the whole. Those who advocate this
mode of proceeding claim for it simplicity and directness as well
as efficiency, and they usually propose that the Constitution
which is to be taken as a model for imitation or the basis for
amendments, should be read; that each member should there-
upon be allowed perfect freedom of discussion; and, when it
has been determined what the views of the body are, that the
committee should report, and the whole matter be at once, as it
could readily be, concluded. At the same time it is commonly
admitted, that this course would be impracticable in an ordinary
legislature, by reason of the complexity and multifariousness of
the subjects brought up for its action; but this is supposed not
to hold true of a Convention, because, it is said, its business is
relatively simple and homogeneous. Hence, in almost every
Convention ever held, so far as I am aware, there have been
advocates of a reference of its whole business, in the first in-
stance, to a committee of the whole.

§ 288. (b.) Another plan, adopted in a few cases in Conven-
tions engaged in framing first Constitutions, is to appoint a
single select committee of limited numbers, to digest from such
materials as may be at hand, the models of political amateurs
or the Constitutions of neighboring States, a draft of a Consti-
tution to be considered by the Convention. As this plan in-
volves the necessity either for great haste on the part of the
committee, or of much delay and inactivity on that of the Con-
vention, pending the preparation of the report, it has been rarely
employed. Of all the Conventions whose records have reached
me, only ten have adopted this plan, namely, those of Mary-
land, Virginia, New Jersey, and Pennsylvannia, held in 1776,
MODE OF PROCEEDING. 289

those of New York and Vermont, held in 1777; those of Mas-
sachusetts, held in 1778 and 1779; that of Tennessee, held in
1796 ; and that of California, held in 1849.

§ 289. (c.) A third mode of proceeding by the use of com-
mittees, is for the Convention to apportion the work to be done
among several committees, giving to each an article or other
definite portion of the existing Constitution, embracing a dis-
tinct topic, as the Executive, Legislative, or Judicial department,
the Finances, Education, Bill of Rights, and the like ; each com-
mittee to report in the form of articles and sections such provis-
ions as it shall deem necessary.

These are evidently all the modes of which the subject is
capable; and the one last described is that which has very gen-
erally been adopted. The mode of proceeding by a committee
of the whole, has been examined to some extent already ; but it
may be proper here to inquire with some particularity into the
merits of that mode, as compared with that last described, by
numerous committees —a question which has given rise to
much discussion in several Conventions, and is likely to be again
discussed hereafter.

) 290. In faver of proceeding in committee of the whole, it
has been urged, that if it be an object to save time or to secure
the exercise of all the talent in the Convention, the best course
is to make use of that committee; that, if a Constitution is to be
adequately discussed, the appointment of several committees, in
the first instance, to report upon distinct portions of it, would
increase rather than diminish the time occupied in the session,
since, while the reports were being prepared, the Convention
would be forced to remain idle; and the several reports being
likely to be incongruous and more or less unacceptable to the
Convention, every part of them would need to be amended and
brought into harmony with other parts and with the sentiments
of the majority in the body; that the wisdom and experience of
the entire Convention are at least equal to those of any com-
mittee chosen therefrom; that it is the proper province of the
Convention, as it is of a legislature, to settle principles, and of
committees to arrange details; hence, it is evident that, when
the members of a Convention have learned, from a full and free
discussion in committee of the whole, unembarrassed by the
tules that must be enforced in Convention, the principles
290 MODE OF PROCEEDING.

deemed by the collective body necessary to be embodied in the
Constitution, they would be enabled, even if afterwards subdi-
vided into committees, to act with greater expedition and with
greater intelligence; that it is also no slight recommendation of
the committee of the whole, that on account of its freedom from
the stringent rules that hamper the Convention, and of the prac-
tice which usually prevails of not reporting fully, if at all, the
speeches made in that committee, men unused to public debate
are enticed from their benches, and encouraged to contribute
their wisdom to the common stock; that it is also well not to
forget, as one inducement to proceed in committee of the whole,
that in all great legislative contests for freedom, the “ Grand
Committee,” the committee of the whole, has been the instru-
ment by which victory has been achieved; that the crowning
argument, however, in favor of this committee, is, that if re-
course be had to the alternative, the appointment of one or
more select committees, it is difficult, if not practically impos-
sible, to withstand their influence, or to modify their reports, A
select committee naturally comprises the best talent in the
house. When a report is brought in by it, pride of opinion
leads it to defend its offspring, and this its skill and experience
generally enable it to do successfully. In a free and unre-
ported debate, however, in committee of the whole, in which
the Constitution is taken up and read section by section, com-
mented upon, and amended, no such danger need be appre-
hended. It is the opinion formally announced and published to
the world, not the casual observation, unreported, and confess-
edly not mature, that its author defends with vigor and per-
tinacity.

§ 291. The objections to proceeding in committee of the
whole, on the other hand, resolve themselves mainly into a
question of time. It is said, that if every member of a Con-
vention is permitted to introduce his scheme of a Constitution,
or his proposition of amendment, with liberty and encourage-
ment to discuss each and all of them ad libitum, the task of
framing a Constitution would be endless; and not only so, but
such a freedom of making and discussing propositions, instead
of tending to harmonize the views of members, would intro-
duce an element of division; that what a single member pro-
poses in committee of the whole, is the conclusion of a single
MODE OF PROCEEDING. 291

mind, in which no other mind may agree; whilst, on the other
hand, the report of a committee of leading members is, at least,
the consentaneous opinion of many minds, and probably will
be that of the whole Convention when it has been brought by
discussion to understand the subject ; that it is not always true
that the wisdom or the experience of a Convention will be equal
to that of a few of its leading minds, when we speak of it as
embodying itself in action, whatever may be the case in relation
to counsel; in a Convention there will be, of course, a greater
total of wisdom and talent than in any committee of it less
than the whole; but in those qualities a small committee, or a
single person, may surpass the residue of the body, and yet it
may go for nothing, unless the majority be very tractable.
Hence, it is far better that the Convention should listen to the
matured opinions of its few leading minds before committing
itself by expressing its own; that the committee of the whole
undoubtedly has its eminent uses in a Convention, but it is
rather after than before the reports of standing or special com-
mittees have come in}

§ 292. In favor of proceeding by committees charged severally
with distinct parts of the Constitution, it has been urged, that
it is the appropriate duty of a committee to prepare and lay out
business for the deliberative body appointing it, and that neither
a Convention nor a legislature can successfully proceed without
them; that they contribute essentially to simplify the complex
matters referred to them, and thus to expedite the labors of the
Convention; that a committee chosen from a numerous assem-
bly, and embracing a variety of talent and experience, will be
able readily to prognosticate the determinations of the Conven-
tion, by divining its wishes, which are quite likely to accord
with those of any fairly selected committee; that this consider-
ation disposes of the objection, founded, perhaps, in part, upon
the observed accordance between the votes of a numerous body
and the recommendations of a committee of its leading mem-
-bers, namely, that committees are undesirable as possessing too

1 For full discussions of the advantages and disadvantages of proceeding in
committee of the whole, in the first instance, see the Debates in the following
Conventions: Kentucky, 1849, pp. 39-54; New York, 1846, pp. 20-37;

California, 1849, pp. 22-24; Michigan, 1850, pp. 20, 21; Ohio, 1850, pp. 47, 485
Pennsylvania, 1837, Vol. I. pp. 65, 66, 77, 95.
292 MODE OF PROCEEDING.

much influence, and as too much inclined to use that influence
to secure the adoption of their own recommendations; that,
thus viewed, committees do not so much dictate to those who
appoint them, as discover to them in a few moments what is
likely to be their own better judgment after floundering, perhaps,
for weeks or months, in useless discussion; that, at all events,
there need be no fear of excessive influence in committees, for
the reason that, when their reports come in, they are open to
debate and amendment if not satisfactory, precisely like propo-
sitions made by individual members, and so are likely to receive
modification, if prejudiced or unreasonable.

§ 293. The objections to the use of committees have already,
in part, been suggested. It is contended, that their reports are
likely to want consistency and congruity, when considered as
parts of a whole; that a Constitution buiit up by the action of
a large number of committees is liable to lack provisions of essen-
tial importance, through inadvertent omissions; that however
that may be, the labor of melting down into a consistent unit
the heterogeneous reports of many committees, of discovering
and supplying defects, and trimming down redundancies, is not
less than that so much apprehended in committee of the whole;
but it is chiefly objected, that when such committees do the work,
‘ the Convention loses its power of control over it; they will be
organized in such a manner as that the talent and influence to
be found in the Convention will be brought to bear upon partic-
ular propositions, and that individuals will be powerless to coun-
tervail them.

§ 294. The reasonings in favor of the mode of proceeding in
committee of the whole, without standing committees, of which I
have given an outline, however plausible they seem, have failed,
in most cases, to convince the Conventions to which they were
addressed, and those bodies have adopted, as have all the Con-
ventions but one whose proceedings have reached me, the mode
of proceeding by one or more standing committees, in preference
to it. The Pennsylvania Convention of 1789, alone pursued the:
other plan, taking up the Constitution of 1776 in committee of
the whole, and inquiring, during a large part of the session,
“‘ whether and wherein” it required alteration or amendment.

1 Jour, Pa. Conv. 1789, p. 143, et seg. In the North Carolina Convention of
1835, Mr. Speight said he believed the Convention which framed the old Const
MODE OF PROCEEDING. 293

§ 295. The precedents established in the various Conventions
in relation to the number of committees, and of members ap-
portioned to each, have been far from uniform. With the
exception of the ten Conventions already specified, in which a
single committee was raised to draft and report a Constitution,
and of the Pennsylvania Convention of 1789, in which, as I
have just stated, the subject was taken up in committee of the
whole, all the Conventions ever held, so far as I am advised,
have appointed several committees, the least number being four,
and the highest thirty-one The number of committees has
commonly been determined by the views entertained by mem-
bers as to the number of distinct parts of the Constitution, or
separate topics embraced in it, needing revision. To the com-
mittees charged with these, is commonly added a number of
business committees, as on Printing for the Convention, and
the like. In determining the number of members in each com-
mittee, regard is generally had to the importance of the subjects
committed, and the number of delegates in the body, the work
being commonly so apportioned as to give each member some
share in the committee-labor.

§ 296. How the number of standing committees, and of the
members of which each shall consist, shall be determined, has in
many cases been the subject of vehement discussion. This has
been the consequence mainly of jealousies between the friends
and the opponents of the reforms contemplated in calling the

tution, first proceeded in committee of the whole, and then made a reference of
the different subjects to their appropriate committees. Deb. N. C. Conv, 1835,
p- 17.

1 The Virginia Convention of 1829 had four Standing Committees, — one on
each of the departments, Legislative, Executive, and Judicial, and one on the
residue of the Constitution, including the Bill of Rights. The Illinois Conven-
tion of 1862 had thirty-one committees, upon the following subjects: Executive
Department; Legislative Department; Judiciary; Judicial Circuits; Bill of
Rights; Congressional Apportionment; Legislative Apportionment; Federal
Relations; Banks and Currency; Revenue; Finance; Railroad Corporations ;
Counties; Municipal Corporations; Miscellaneous Corporations; Education :
Militia and Military Affairs; Elections and Right of Suffrage; Schedule ;
Revision and Adjustment of the Articles of the Constitution; Internal Im-
provements; Roads and Internal Navigation; Public Accounts and Expen-
ditures; Township Organization; State Institutions, Buildings, and Grounds ;
Canal and Canal Lands; Penitentiary; Retrenchment and Reform; Manv-
factures and Agriculture; Printing and Binding; and Miscellaneous Subjects.
294 MODE OF PROCEEDING.

Conventions. In the Pennsylvania Convention of 1837, the
New York Convention of 1846, and the Kentucky Convention
of 1849, the mode of determining the committees, which was
finally adopted, was vigorously opposed as calculated to tavor
particular views of reform. That mode was to appoint a select
committee to report generally upon the best mode of proceeding,
including such a scheme of committees as should in its view
cover the whole ground of needed changes in the Constitution.
This course evidently remits the entire question of methods and
instrumentalities, in the first instance, to a committee of the
Convention, with the well understood purpose of conceding to
its recommendations, unless clearly unjust or impracticable, a
decisive influence. It has, nevertheless, been generally deemed
the most satisfactory one that could be adopted, though in two
of the three cases in which it was most largely discussed, another
course was pursued. It was followed in the two Virginia Con-
ventions, held in 1829 and 1850; the New York Conventions of
1821, and 1846; the North Carolina Convention of 1835; the
New Jersey Convention of 1844; that of Missouri, of 1845; the
Ohio, Michigan, and Indiana Conventions of 1850; that of
Wisconsin, of 1848; the two Minnesota Conventions, and the
Iowa Convention held in 1857; and the Massachusetts Conven-
tion of 18538. Where this mode is pursued, the preliminary
committee is usually appointed immediately after the perma-
nent organization of the Convention, and commonly consists
of one or more members from each senatorial or other political
division of the State. In its report, this committee generally
contents itself with recommending a list of standing committees
based on its view of the prospective work of the Convention,
though sometimes there is added a resolution relating to the
disposition of propositions of amendment introduced in Con-
vention, Where this mode is not pursued, the committees are
commonly appointed either on the motion of some member}
or upon the recommendation of the committee on rules, a list
of them in such cases forming a part of its report?

1 They were thus appointed in the Louisiana Conventions of 1844, 1852,

and 1864; in that of Kentucky of 1849, Maryland of 1864, Massachusetts of
1820, Texas of 1875, and Georgia of 1877.

2 This was the case in the Pennsylvania Conventions of 1837 and 1872, and
in those of Illinois of 1847, 1862, and 1869, in the New York Convention of
1867, the Ohio Convention of 1873, and the California Convention of 1878.
MODE OF PROCEEDING. 295

The persons to compose the Standing Committees are usually
designated by the President of the Convention.

To the Standing Committees, thus appointed, the part of the
Constitution they are severally to consider is apportioned by the
Convention either in the original resolution appointing them, or
by special motion ordering the reference to be made. In a few
instances the existing Constitution has been taken up and read in
Convention, section by section, and such parts as were deemed
to require revision, have been referred to the appropriate com-
mittees.

§ 297. Secondly. The remaining question relates to the
mode of proceeding of the Convention and its committees.
After the work has been placed thus in the hands of commit-
tees, since the reports expected from them require time for their
preparation, it is usual for the Convention to occupy itself
in the interim, whilst the committees are in session, in mis-
cellaneous business, as in considering cases of contested elec-
tions, or in discussing, in a general way, resolutions relating to
the principles to be embodied in the new Constitution. Often
resolutions of the latter character contain instructions to the
standing committees, now in session, to institute inquiries in
reference to the expediency of particular amendments. Usually,
however, until the reports of its committees begin to come in,
the Convention is in a more or less chaotic condition, proposing
and voting upon a variety of resolutions relating to reforms con-
ceived desirable, or to modes of proceeding imagined to be more
advantageous than those adopted. But this period is generally
short, for the reason, that reports upon parts of the Constitution
not needing much change, are early presented, and thus the
Convention is enabled to commence its work without delay.

§ 298. The mode of reporting in Conventions is different
from that adopted commonly in legislatures. In the former,
reports of committees usually consist merely of articles and
sections, drawn up in the precise form the committees propose
they shall bear as parts of the Constitution; whilst in legisla-
tive bodies they generally comprise discussions of facts and
principles, intended to justify particular conclusions, appended
in the form of resolutions, though sometimes to those abstract
The Maryland Convention of 1850 appointed Standing Committees, but upon

whose recommendation does not appear, no report of the first two months of
the session of that body having been published.
296 REPORTS OF COMMITTEES.

discussions, instead of resolutions, are added drafts of bills pro-
posed for enactment. Of prefatory argumentation, the reports
made to Conventions contain, as a general rule, nothing what-
ever. In about one-third of the cases, instances have occurred
in which one or more committees have accompanied their re-
ports by illustrative argument in writing, but that has been
confined to reports upon topics of unusual importance or inter-
est! This mode of reporting, in the earlier Conventions, pur-
sued without rule or order to that effect, has in some of the
later ones been specially required, as in the New York Conven-
tion of 1846, the Illinois Convention of 1847, the Maryland
Convention of 1864, and perhaps others. The earliest instance
I have found in which the subject was mentioned was in the
New York Convention of 1821, where Gen. Tallmadge, chair-
rman of the committee on the Council of Revision, on present-
ing a report from bis committee, stated that they had not gone
into any explanation of the reasons which influenced them in
making the report. This, he admitted, was a departure from
the parliamentary usage, but the committee had done it not
without consideration ; “they had omitted to do this, because,
in their opinion, the Convention might be induced to adopt the
amendment for different views from those assigned by the com-
mittee. The reports of committees would remain of record,
and might hereafter be used to give a false and imperfect con-
struction to the proceedings of the Convention.” He added,
that the committee “ hoped it would be considered by the other
committees as a precedent.” ?

§ 299. In the case mentioned there was no discussion, and
apparently no feeling upon the subject. Not so in the Conven-
tion of the same State in 1846. arly in the session a resolu-
tion was introduced, and, without much discussion, carried,
declaring it to be “ inexpedient for the several committees on the
Constitution to accompany their reports with written explana-

1 Reports without written or other illustration were made in the following
Conventions: Massachusetts, 1779; New York, 1821 and 1846; Louis:ana,
1844; Illinois, 1847 and 1862; California and Kentucky, 1849; Ohio and In-
diana, 1850; the two Minnesota and the Iowa Conventions, 1857. In the fol-
lowing Conventions written arguments or illustrations in a few cases accompa-
nied reports: Massachusetts, 1820 and 1853; Pennsylvania, 1837; Virginia,
1829; Wisconsin, 1847; Michigan and Maryland, 1850; and Louisiana, 1852.

2 Deb. N. Y. Conv. 1821, p. 42.
REPORTS OF COMMITTEES. 297

tions of the reasons which may have influenced them in agree-
ing thereto.” A week later, a motion was made to reconsider
this resolution, which, after a debate, the spirit and pertinacity
of which it is difficult to understand, was negatived. In this
discussion, in addition to the reason for the restriction given by
Gen. Tallmadge, it was urged, that if all the reports were ac-
accompanied by statements af the reasons which induced the
committees to adopt them, the records of the Convention would
become excessively voluminous; that if not so much so as to
cause them to be wholly neglected, of which there was danger,
they would be likely to be consulted mainly for the sake of the
reports which would thus have imparted to them too powerful
an influence; that the committees being composed of leading
members, likely to be most eminent in debate, to allow them to
express their reasons in writing would be to commit them to
the opinions advanced, and for the reasons therein mentioned,
and that it would be nearly impossible for the Convention to
convince or to refute them; so that, in truth, it was not a ques-
tion of gagging the committees so much as whether the com-
mittees should be allowed to gag the Convention; that the true
course was, to let the members of the committees stand on the
same footing as the other members of the Convention, each
giving his opinion orally in debate; that thus, the remarks of
all being reported with proportionate abbreviation, each would
secure for his views the public estimation which they deserved,
and no more.

§ 800. Against the restriction it was urged, that the work of
a Convention was unlike that of a legislature; that it was to
go before the people in the shape of recommendations, to be
by them either adopted or rejected; that, therefore, the people
ought to know the grounds on which they had been made ; that
those would be best determined from perusing the carefully
drawn reports of committees, giving to the subjects committed
tv them calm and mature consideration; that such had ever
been the parliamentary course, and, besides, it would be ab-
surd to appoint committees to report conclusions, and to sup-
press the information — often consisting of statistics, or scien-
tific or historical data — upon which they were based; that, in
regard to the Convention itself, it was idle to talk of the exces-
sive influence of committees, they, as a general thing, having
no influence which they do not deserve to have; that there wae
298 REPORTS OF COMMITTEES.

no danger of their abusing the privilege proposed to be denied
them of expressing in writing their reasons for their recommend-
ations; that the natural indolence of every man would lead him
to avoid the task, always irksome, of drawing up long written
reports, and to rely for explanations of his views, except in rare
and important cases, upon speaking rather than writing; that
when cases of real importance arose, it was for the interest no
less of the Convention than of the committees, to arrive at
clear and definite ideas in the shortest time possible, upon the
subjects in hand; that to this end it was highly desirable that
committees should be allowed and encouraged to present their
views in writing, in order that the members might take the
reports with them to their rooms and examine them without the
distraction of mind so inevitable in the Convention itself; and,
finally, that by allowing written reports, many members who
had no skill in debate, but who could wield their pen with real
ability, would be able to make to the public counsels valuable
contributions.

§ 301. Without stopping to consider particularly the argu-
ments above detailed, it is proper to say, that the true course
seems to be that pursued by most Conventions, and recom-
mended by Gen. Tallmadge in the New York Conventions of
1821 and 1846, to leave the matter of reporting their reasons in
writing, or not, to the committees themselves, without any rule
to fetter their discretion. Thus left, it is probable, in a majority
of cases, committees would prefer to report merely articles and
sections, trusting to debate to illustrate and enforce their recom-
mendations. "When a case, however, arises, in which, from the
abundance or complexity of the data on which the conclusions
of the reports are founded, and by which, if at all, they are to
be justified, it is deemed important that those data should be
marshalled in a succinct and orderly array, it will be an act of
folly to interdict it, since only when thus presented can they be
grasped and appreciated.”

1 See Deb. N. Y. Conv. 1846, pp. 97-99, 131-138, 142-149,

2 A writer in the Democratic Review for November, 1846, p. 340, refer-
ring to the New York Convention of that year, impeaches the motives of those
who concurred in defending this restriction, declaring them, under the circum-
stances under which the proposition was initiated, to have been * discreditable

in the highest degree.’’ The course recommended by General Talmadge was
adopted by the New York Convention of 1867.
REPORTS OF ‘COMMITTEES. 299

§ 302. On the coming in of the reports of committees, the
first proceeding commonly is to lay them on the table and order
them printed, preparatory to their being submitted to the action
of the Convention. In some cases this preliminary is dispensed
with, and the reports are at once referred for consideration and
discussion to a committee of the whole. ‘This reference, either
at this or at a later stage, after the reports have been printed, is
nearly universal, there being in all the Conventions whose jour-
uals or proceedings are known to me only two or three excep-
tions to it. In those cases, the reports were taken up directly
in Convention, and put on the way to final passage, without
referring them to a committee of the whole. When so referred,
after full and often very extended discussion in that committee,
the reports, as amended by it, are passed through their several
stages to final adoption, as in case of other laws, by the Con-
vention itself.

§ 303. Before the scattered reports of the standing commit-
tees, amended by the committee of the whole, and afterwards
by the Convention, are put upon their final passage, it is usual
to refer them to a committee of revision, or on phraseology and
arrangement, whose duty it is to file them down to uniformity
of style, and establish the proper /ocus of each section in the
Constitution. A committee charged with this duty is some-
times appointed among the standing committees, and sometimes
is raised toward the close of the session, when the occasion for
its services arises. It has been usual to regard this committee
as of very slight consequence, as though its operation could
only be to add to the polish of the instrument, or to the perfec-
tion of its logical arrangement, but I am persuaded the idea is
a mistaken one. It is always in the power of such a commit-
tee — perhaps I might say it is liable, even without intending
it, in the process of manipulating a Constitution for the purpose
indicated — to change its language so as materially to alter its
legal effect. In the hurry of its final passage, such a change
would be apt, unless very conspicuous, to escape detection. It
is said, I think by Mr. Jefferson, that Gouverneur Morris, to
whom the duty of revising the style of the Federal Constitution
was intrusted, in performing it, insensibly gave a cast to that
instrument which it did not bear when it passed into his hands,
and that the Convention did not discover the change. The
300 FINAL REVISION, — SIGNING THE CONSTITUTION.

same thing, as I am informed, occurred in the case of the first
Constitution of Michigan, in which very important changes
were effected, perhaps unintentionally, in the manner I have
indicated.

§ 304. The Constitution, coming from the hands of the com-
mittee of revision, and being adopted as a whole, it is usual for
the entire body of the delegates, beginning with their president,
to subscribe their names to it, in attestation of its genuineness.
In a few instances it has been signed by the president and sec-
retary only, and in a few others by such members only as voted
for it upon its final passage. It is not apparent why members
should ever refuse to subscribe to the Constitution which has
been matured by the Convention, if the act be construed, as I
think it should be, as an act of attestation, and not as a decla-
ration of approval.

1 By the late Gov. Robert McClellan, of Michigan.
CHAPTER VI.

OF THE POWERS OF CONVENTIONS.

§ 3805. We approach now by far the most important question
relating to Conventions, namely, What are their powers ?

It is hardly necessary to apprise the reader that, by the term
power, as applied to an institution charged with governmental
functions, is meant not physical ability, but legal ability, or
that moral competence which Burke describes as “ subjecting,
even in powers more indisputably sovereign, occasional will to
permanent reason, and to the steady maxims of faith, justice,
and fixed fundamental policy.”1 In language more familiar to
ears trained in our constitutional schools, it means competence
by law or by the principles of our political Constitution. What
a Convention can do legally, that is, by the express provisions
of some law, or what, in the absence of such a law, it can do
consistently with the principles of our Constitutions, among
which are to be reckoned its own, it has, in general, power to do,
and nothing further.

§ 306. The general conception of a Convention is, that it is a
body of delegates, chosen by the electors of a State, to perform
certain legislative duties connected with the enactment of the
fundamental law. The extent of those duties, whether it be to
frame, establish, and put in operation that law, or only to take
certain steps toward its establishment, leaving others to be
taken by other agencies, is mainly the question we are to deter-
mine. In the general definition of a Convention, just given, the
term “delegates” is used advisedly, and is intended to be taken
in its legal sense, as distinguished from the word “representa-
tives,” which is defined by Lord Brougham to be a body of per-
sons, chosen by the people, to whom the power of the people is
parted with, and who perform that part in the government

1 Reflections on the Revolution in France.
802 TWO THEORIES OF CONVENTIONAL POWER.

which, but for this transfer, would have been performed by the
}20ple themselves.1

§ 307. Two widely different theories of this important insti-
tution, from which have been derived divergent conceptions of
its powers, have of late years been in vogue.

First. One theory is, that the Convention is a strictly repre-
sentative body, acting for and in the name of the sovereign,
and possessed, by actual transfer, of all the powers inherent in
that sovereign, limited, however, in the case of Conventions in
the several States, by the Constitution of the United States;
that it is “a virtual assemblage of the people,” of whom, by
reason of their great numbers and remoteness from each other,
an actual assemblage, imagined by political speculatists, is im-.
possible,— the most that can be effected being a gathering
together in convenient numbers of deputies, empowered to repre-
sent the people, and clothed with all the power the sovereign
itself would have were it assembled en masse.

Secondly. ‘The second theory is, that the Convention is a col-
lection of delegates appointed by the sovereign, through the
agency of one or more branches of the existing government, to
perform certain determinate duties in- relation to the formation
or revision of the fundamental law; what those duties are, de-
pending upon the tenor of the commission under which it con-
venes, or, when that is silent, upon sound constitutional prin-
ciples and precedents. According to this theory, the members
of a Convention are not, accurately speaking, represeniatives,
but delegates; and it is their function, not to enact, but simply
to recommend, constitutional changes, — unless, indeed, as is
sometimes the case, the warrant for their assembling should
contain authority to act definitively, in which case their power
would, perhaps, be coextensive with the terms of the grant. In
other words, in its last analysis, a Convention, according to this
second theory, is a mere committee, sitting for a specified pur-
pose, under the express mandate of the sovereign, and possessed
of such powers only as are expressly granted, or as are necessary
and proper for the execution of powers expressly granted. This
theory evidently discards the notion, so much cherished by the
advocates of the former, that the Convention is clothed with
sovereign attributes, though doubtless intrusted to some extent,

1 Political Philos., Vol. IL ch. vi. p. 33.
CASES IN WHICH THE FIRST 1HEURY HAS BEEN ASSERTED. 803

under strict regulations, intended to secure responsibility, with
their exercise.

§ 308. As Iam unwilling to misstate the two theories, above
propounded, I extract from the debates of our Conventions, or
from the writings of our public men, passages in which the one
or the other has, more or less completely, been maintained.

Thus, in the New York Convention of 1821, Mr. Livingston,
advocating a proposition to deprive the few blacks in the State
of the right of suffrage accorded to them by the existing Consti-
tution, said: ‘* We have been told by the honorable gentleman
from Albany (Mr. Van Vechten) that we were not sent here
to deprive any portion of the community of their vested rights.
Sir, the people are here themselves. They are present by their
delegates. No restriction limits our proceedings. What are
these vested rights? Sir, we are standing upon the foundations
of society. The elements of government are scattered around us.
All rights are buried; and from the shoots that spring from
their grave we are to weave a bower that shall overshadow and
protect our liberties.” 1

The Hon. George M. Dallas, in a letter published in “ The
Pennsylvanian” of September 5, 1836, said: «A Convention is
the provided machinery of peaceful revolution. It is the civil-
ized substitute for intestine war. ... When ours shall assem-
ble, it will possess, within the territory of Pennsylvania, every
attribute of absolute sovereignty, except such as may have been
yielded and are embodied in the Constitution of the United
States. What may it not do? It may reorganize our entire
system of social existence, terminating and proscribing what is
deemed injurious, and establishing what is preferred. It might
restore the institution of slavery among us; it might make our
penal code as bloody as that of Draco; it might withdraw the
charters of the cities; it might supersede a standing judiciary
by a scheme of occasional arbitration and umpirage; it might
prohibit particular professions or trades; it might permanently
suspend the privilege of the writ of habeas corpus, and take
from us .... the trial by jury. These are fearful matters, of
which intelligent and virtuous freemen can never be guilty, and

1 Deb. N. ¥. Conv. 1821, p. 105, ed. New York, November, 1821. It does
not appear which of the two Livingstons who were members of the Conven-
tion, Peter R., or Alexander, uttered this opinion.
304 CASES IN WHICH THE FIRST THEORY HAS BEEN ASSERTED.

I mention them merely as illustrations of the inherent and almost
boundless power of a Convention.” 4

So, in the Illinois Convention of 1847, Mr. Peters said: “ He
had and would continue to vote against any and every proposi-
tion which would recognize any restriction of the powers of this
Convention.” ‘We are,” he continued, “the sovereignty of the
State. We are what the people of the State would be, if they
were congregated here in one mass meeting. We are what Louis
XIV. said he was, ‘We are the State.” We can trample the
Constitution under our feet as waste paper, and no one can call
us to account save the people.” ?

But two further extracts will be given upon this side of the
question, taken from the proceedings of the Illinois Convention
of 1862. A committee, composed of some of the leading jur-
ists in that body, in a report upon the subject of electing a
printer, said: —“ When the people, therefore, have elected dele-
gates,.... and they have assembled and organized, then a
peaceable revolution of the State government, so far as the
same may be effected by amendments of the Constitution, has
been entered upon, limited only by the Federal Constitution.
All power incident to the great object of the Convention be-
longs to it. It is a virtual assemblage of the people of the
State, sovereign within its boundaries, as to all matters con-
nected with the happiness, prosperity, and freedom of the citi-
zens, and supreme in the exercise of all power necessary to the
establishment of a free constitutional government, except as
restrained by the Constitution of the United States.”3 In a
speech in the same body, General Singleton said : —“ Sir, that
this Convention of the people is sovereign, possessed of sov-
ereign power, is as true as any proposition can be. If the
State is sovereign the Convention is sovereign. If this Conven-
tion here does not represent the power of the people, where can
you find its representative? If sovereign power does not reside
in this body, there is no such thing as sovereignty.” #

§ 309. On the other hand, the theory which regards Conven-

1 To a similar effect are remarks of Mr. Mitchell, in the Kentucky Conven-
tion of 1849, Deb. Ky. Conv. 1849, p. 863; also of B. F. Butler in the Massa-
chusetts Convention of 1853, Deb. Mass. Conv. 1853, Vol. I. pp. 78, 97.

2 Tllinois State Register of June 10, 1847.

8 Jd. of January 10, 1862.

4 Id. of January 17, 1862,
CASES IN WHICH THE SECOND THEORY HAS BEEN ASSERTED. 3805

tions as advisory bodies simply, with limited powers, has been
broached in equally explicit terms. The earliest case in which
the powers of such bodies were brought into discussion, was
that of the Federal Convention of 1787. The credentials of the
delegates to that body, as is well known, contemplated only a
revision of the Confederation, leaving it still a mere confederate
system. On assembling, however, those delegates were gener-
ally satisfied, that any government, formed by patching up the
old Confederation, would be wholly inadequate, and that what
was wanted was a firm national government. But then arose
the embarrassing question, was it competent for that body to
disregard its instructions and frame such a system as it deemed
absolutely necessary for the salvation of the country? The an-
swer given to this question marks, indisputably, the sense of the
statesmen of the Revolution as to the real nature of the Con-
vention. Their answer was, in substance, that by strict law the
Convention had no power nor right to disregard the instructions
of the legislative Assemblies by which they were deputed, on
whose call they had assembled ; but that, under the controlling
necessities of the times, they would venture to disregard those
instructions, since, after all, the power of ultimate decision was
to be in the people, the Convention having authority only to
recommend, not to act definitively. Thus, Mr. Wilson, of Penn-
sylvania, one of the profoundest jurists our country has ever
produced, said: —“ With regard to the power of the Conven-
tion, he conceived himself authorized to conclude nothing, but
to be at liberty to propose any thing.” 1 So, Governor Randolph,
of Virginia, referring to his own plan of a national government,
which was afterwards made the basis of the Constitution, as
adopted, said: “ The resolutions from Virginia must have been
adopted on the supposition that a federal government was im-
practicable. And it is said, that power is wanting to institute
such a government; but when our all is at stake, I will consent
to any mode that will preserve us. .... Besides, our business
consists in recommending a system of government, not in mak-
ing it.” Mr. Madison, also, contrasting the plan of Mr. Ran-
dolph with the federal plan introduced by Mr. Paterson, of New
Jersey, said: “The principal objections against that of Mr.
Randolph were the want of power, and the want of practica-

1 Elliott’s Deb., Vol. V. p. 196. 2 Blliott’s Deb., Vol. I. p. 416.
306 CASES IN WHICH THE SECOND THEORY HAS BEEN ASSERTED.

bility. There can be no weight in the first, as the fiat is not to
be here, but in the people.”! In this most important Conven-
tion, then, of which many of the founders of our institutions were
members, the power proper only for a sovereign, of definitive
legislation, was not only not claimed for that body, but it was
expressly disclaimed.

§ 310. Similar views have been expressed by members of later
Conventions. In the Virginia Convention of 1829, John Ran-
dolph said: “Sir, we have been called as counsel to the people
— as State physicians to propose remedies for the State’s dis-
eases, not to pass any Act which shall have in itself any binding
force. We are here as humble advisers and proposers to the
people.” 2 In the Illinois Convention of 1847, a resolution was
introduced by Mr. Singleton, containing his views of the powers
and duties of that body, as follows: — “Resolved, that this Con-
vention is limited in its purposes and powers; its object being
to propose, for the acceptance of the people, such changes in
their present Constitution as to the Convention may appear

1 Elliott’s Deb., Vol. V. p. 216.

2 Deb. Va. Conv. 1829, p. 868. Even if the legislature, in its Convention
Act, had assumed to give the Convention unlimited power, Mr. Randolph
maintained that it could not exercise it. Thus, in the Virginia Convention Act
of 1829, the Convention was authorized to submit the amended Constitution to
the voters of the Commonwealth qualified under its own provisions. Adverting
to this authorization, Mr. Randolph denied that either the legislature had power
to give, or the Convention to act upon it. Upon this point, he said: ** Does not
the gentleman from Frederick distinctly see that, if his doctrine be correct, we
are giving a Convention power to bind conclusively the people of Virginia
quoad the right of suffrage? ... I shall be told that we have been clothed
with this power. Are we? The legislature, I grant, have been very kind in
clothing us with a power they did not possess. If the gentleman’s doctrine be
correct, then the legislature of Virginia — who cannot touch the subject with-
out an act of treachery themselves — have given to the Convention power, as
to the right of suffrage, to bind the people of Virginia; converting us...
from an advisory into a controlling council... . If that be true, then, by a
juggle between the legislature, who were without power themselves, and a
Convention, who were called only to advise the people, an act is to be done by
which the people are to be finally bound. . . . In the all-important question of
the right of suffrage, this Convention is to exert an absolute power to decide,
without consulting the people at all. How do we derive it? From a Virginia
legislature who never possessed it. To refer to the legislature is only putting
a tortoise under the elephant. Thus power rests upon the elephant, the ele-
phant upon the tortoise, and the tortoise upon nothing. Sir, this won’t do.
It won’t do.’?
THEORY OF CONVENTIONAL SOVEREIGNTY A NOVELTY. 807

necessary, limited, in these changes, by the true principles of a
republican government, and, in the conduct of its body, by the
Constitution of this State, as far as it is applicable. That this
Convention has no power to repeal or modify any Act of the
General Assembly of this State, otherwise than by constitutional
provision, subject to the ratification of the people, or do any
other act not necessary to the discharge of the trust confided to
it.”? Upon this resolution an animated debate arose, in the
course of which the two theories of the Convention I have ex-
plained were distinctly propounded; the most outspoken and
extravagant assertion of sovereign powers for the Convention
being that made by Mr. Peters in the terms quoted in a preced-
ing section. The result of the debate was, the adoption of a
mild resolution which avoided the disputed points, as a substi-
tute for the foregoing one, by a vote of 87 to 64. Other extracts
might be added, from the debates of other Conventions, and
particularly that held in Illinois in 1862, in which the two theo-
ries of the powers of those bodies were elaborately discussed.
Enough, however, has been given, to answer my purpose, which
is simply to illustrate, by actual examples, the scope and tenor
of the divergent theories entertained on the subject.

§ 811. OF these two theories, it is important now to note, that
the first, which attributes to the Convention powers amounting
sometimes — the State alone considered, in which the body meets
—to absolute sovereignty, is of modern origin. The records of
our Conventions reveal no trace of it earlier than the New York
Convention of 1821, from which an extract has been given.? In
1829, it again made its appearance in the Virginia Convention,
but obscurely and hesitatingly. A question arose as to the power
of that Convention to disregard positive instructions of the leg-
islature relative to the submission of the fruit of its labors to the
people, in the discussion of which, doctrines were propounded
which afterwards ripened into the theory in question. The next
appearance was in the letter of Mr. Dallas, from which an ex-
tract has been given above, and in the Convention held in Penn-
sylvania in the following year — the latter the fruit of the seed
sown by that gentleman. The theory, however, was but par-
tially propounded in the Convention, traces of it lurking in a

1 Journal Illinois Conv. 1847, p. 18.
2 See ante, § 308.
808 THEORY OF CONVENTIONAL SOVEREIGNTY A NOVELTY.

scarcely recognizable form in certain assertions of power, made
for particular purposes. The boldness of the position taken by
Mr. Dallas had excited opposition in the State, and caution was
necessary. In the struggles preceding the meeting of that Con-
vention, the advocates of reform had succeeded in inducing the
legislature to call the body, but subject to stringent limitations,
in regard to the submission of its amendments to the people.
On assembling, a discussion arose between the advocates and
opponents of reform as to the extent and nature of the powers
of the Convention, thus limited; whether it was or was not re-
stricted to submitting amendments, or whether it might not, on
the one hand, frame a new Constitution, or, on the other, adjourn
without proposing any change whatever. During this discus-
sion, opinions were occasionally expressed, which indicated that
the theory of conventional sovereignty had been making progress
since its first appearance in New York a few years before.

Ten years afterwards, this theory was enunciated, in the terms
we have seen above, by Mr. Peters, in the Illinois Convention
of 1847. In 1849, it made its appearance in the Kentucky Con-
vention, and four years later, in that of Massachusetts, under
the patronage of Messrs. Hallett and Butler. In 1860-1861, it
produced its legitimate fruits in the so-called secession of the
eleven slaveholding States from the Union, a movement ma-
tured and consummated by its aid; and finally, in 1862, its
echo was heard in the free State of Illinois, some members of
whose Convention unwisely seized upon a time of national peril
to endorse a disorganizing dogma, in the general adoption of
which at the South that peril had originated.

1 Ante, § 308.

® The notions entertained in the seceding States, as to the powers of Conven-
tions, may be inferred from the following extract from a speech made by the
Hon. William L. Yancey, in the Alabama Convention of 1861. The question
being on the submission of the Ordinance of Secession to the people, that gen-
tleman said : —

“This proposition is based upon the idea, that there is a difference between
the people and the delegate. It seems to me that this is an error. There isa
difference between the representatives of the people in the law-making body,
and the people themselves, because there are powers reserved to the people by
the Convention of Alabama, and which the General Assembly cannot exercise.
But in this body is all power — no powers are reserved from it. The people

are here in the persons of their deputies. Life, Liberty, and Property are in
our hands. Look to the Ordinance adopting the Constitution of Alabama. It
THEORY OF CONVENTIONAL SOVEREIGNTY A NOVELTY. 3809

§ 312. Such has been the career of this famous political dogma,
as exhibited in Conventions recognized by their respective States
as legitimate. In the mean time, in Maryland, in 1837, coupled
with the heresy that a mere majority in numbers of the adult
male citizens, without regard to legal provisions, can at any time
call a Convention to alter or abolish the Constitution, it came
near flaming into actual revolution—a call for a Convention
being issued by private individuals, who only desisted from their
illegal purpose, upon the appearance of a proclamation of the
Governor denouncing it as treasonable. Five years later the
same doctrines ripened and produced their legitimate fruits in
Rhode Island, in the Dorr rebellion, of which a history was given
in a preceding chapter. In that State, a Convention, called by
unofficial persons, and claiming to represent the people of Rhode
Island, because deputed by a majority of all the male citizens
of twenty-one years of age, resident in the State, though not
by a majority of the legal voters at a regular election, framed a
Constitution, and attempted by force of arms to maintain it as
the legitimate Constitution of the State.

In these proceedings, the alarming position was taken, that
not only could a Convention be got together in defiance of the
existing government, but, when assembled, it could remodel that
government, — eject from office those charged with its adminis-
tration, without their consent or that of the electoral body, on
which the whole political structure was immediately bottomed.
Such was the first conspicuous practical application of the theory
of conventional sovereignty. The second has been already re-
ferred to, as exhibited on a more imposing scale, in 1860-1861,
when eleven States sought, under its inspiration, to break in
pieces the temple of the Union.

states, ‘We, the people of Alabama,’ &c., &c. All our acts are supreme, without
ratification, because they are the acts of the people acting in their sovereign
capacity.” — Hist. & Deb. Ala. Conv. 1861, p. 114.

1 Comparing the dates of the various Conventions, in which the theory of
conventional sovereignty has oeen propounded, with those of the successive tides
of pro-slavery fanaticism in the United States, it is difficult to resist the convic-
tion, that the assertion of that theory was connected with the great conspiracy
which culminated in the late Secession war. Was it foreseen, that to carry out
the design of disrupting the Union, with an appearance of constitutional right,
new conceptions must become prevalent, as to the powers of the bodies by which
alone the design could be accomplished ? And conceding the existence of such
310 ARE CONVENTIONS POSSESSED OF SOVEREIGN POWERS?

§ 313. Admitting, however, that the theory in question is a
novelty, it is not always true, especially in politics, that “ what-
ever is new is false,’ and it is therefore fairly incumbent on
those who reprobate that theory, not alone to denounce it as
novel, or to array against it the invectives of its opponents, but
to refute it. This, it is my hope, in what follows, to be able to
do. The refutation, however, will be much of it inferential,
depending on the consideration not only of general principles,
but of particular questions, relating to the power of Conventions
in special cases, which either have actually arisen or are likely
any day to arise.

§ 314. The powers of Conventions, including in that term
both positive and negative powers, that is, both powers and
disabilities, may be most conveniently discussed by considering
them with reference,

I. To the external relations of those bodies; that is, their
relations to the political society in which they are assembled ;
or, more particularly, —

(a). To the sovereign, or to the rights of sovereignty.

(6). To the government of the state, as a whole.

(c). To the electors, or most numerous branch of the govern-
ment.

(d). To the three great departments of administration, — leg.
islative, executive, and judicial ; — and

II. To their internal relations—to the perfecting of their
organization, to the maintenance of discipline over their own
members or over strangers, and to the prolongation or perpetu-
ation of their existence.

To this discussion will be devoted the remainder of this chap-
ter.

§ 315. I. (a). The powers of Conventions, considered with ref-
erence to the sovereign, or to sovereignty, may be best exhibited
by answering this question: Are Conventions possessed to any,
and what, extent of sovereign powers? If a Convention is pos-
a conspiracy, to be carried through by such means, were the eminent names
cited above the willing tools or the dupes of the far seeing traitors who hatched it?

Even in the case of Mr. Livingston, who broached the theory in the New York
Convention of 1821 (see Deb. N. Y. Conv. 1821, p. 105) the imputation ef pro-
slavery fanaticism would seem not entirely unjust. The purpose of Mr. L. in

propounding the theory was to satisfy the Convention of its power to abridge
the right of suffrage accorded by existing laws to the free blacks of New York
ARE CONVENTIONS POSSESSED OF SOVEREIGN PowERS? 811

sessed of sovereign powers, it must be either, first, because,
while its members have no individual or personal sovereignty,
the body has received sovereign powers, by actual transfer from
their original source, the sovereign, and holds them absolutely,
by right of representation ; or, secondly, because its members,
in common with all the citizens, or, at least, with all the electors,
are possessed of individual or personal sovereignty, and, accord-
ingly, when assembled in Convention, wield sovereign powers
absolutely, both in their own right and in that of their co-sover-
eigns, outside of the body, whom they represent. Of these two
alternatives, the first supposes sovereignty to be alienable, which,
in a former chapter,! we have seen to be incompatible with its
nature. Sovereignty was there shown to be inherent in the
political society ; and it was stated that, although two or more
sovereigns might become merged into one, sovereignty is indi-
visible and incommunicable. It is impossible that a sovereign
society should transfer its inherent sovereignty to any other
society, or to a part of itself, so as to render the receiving body
or person absolute sovereign over it. ‘The mind refuses to con-
ceive of a political society in a fit of apathy or of frenzy, part-
ing with its birthright beyond redemption. And to suppose
such an alienation made to citizens of the State, however emi-
nent, would be scarcely less abhorrent than to aliens. It is not
to be imagined that, were such an alienation possible, it could
be made by the sovereign society itself directly; it must be
made by some part of it, claiming a right to act for it by repre-
sentation, as by some branch of the government now existing.
But that the electors, or either of the three administrative de-
partments of the government, should be able by any hocus pocus
to transfer those transcendant powers which belong to the polit-
ical society as such, is incredible; certainly without an express
warrant from the sovereign to that effect. And supposing such
a warrant were a thing possible to be given, what consideration
could there exist sufficient to sustain, in any court, whether of
law or of abstract morality, so unconscionable a contract? It
is this view which justifies the revolts now so common in HEu-
rope, of subjects against their servants, calling themselves their
sovereigns. Intrusted with the government, those servants or
their ancestors, in some former age, upset the balance of the

1 See ante, § 22.
312 ARE CONVENTIONS POSSESSED OF SOVEREIGN POWERS?

Constitution, and proclaimed themselves to be the true sover-
eigns. But such a proclamation cannot alter the fact, which is,
that the nation as a unit is the only sovereign. Force or fraud
on the part of the servant, or pusillanimity on that of the na-
tion, may have given the prestige of success to the usurpation
of the former, but cannot have divested the inalienable rights of
the latter. No truth is becoming more clear, in our day, than
that in demanding everywhere the supreme direction of the
commonwealth, and in asserting a right to determine the modes
and instruments of its administration, the people — the nation
—are but reclaiming their own.

§ 316. It seems clear, then, that if there is claimed for a Con-
vention the possession of absolute sovereignty for the time be-
ing, it must be, not on the de jure ground of actual transfer,
but on the de facto one of successful usurpation or revolution:
which, as divesting the rights of the people, we have just seen,
is of no force or validity whatever.

And here it is proper to note a distinction which is made by
those who maintain the derivation of sovereign powers to Con-
ventions by transfer from the true sovereign, namely, that if not
absolutely sovereign with reference to the political society, they
are so with respect to the objects for which they are respectively
convened, namely, the framing anew, altering, or amending of
the fundamental law. Thus, in the Illinois Convention of 1862,
the committee, whose report on the powers of that body has
been already mentioned, conclude that remarkable document as
follows : — ‘

“ Your committee, therefore, have come to the conclusion,
that, after due organization of the Convention, the law calling
it is no longer binding, and that the Convention then has su-
preme power in regard to all matters necessary and incident to
the alteration and amendment of the Constitution.” Here, if
words mean any thing, the Convention is claimed to be sover-
eign in a sphere of operations which is limited, relating to the
enactment of the fundamental law. But, it is certain that that
Convention was not sovereign, nor even supreme, in that sphere,
but subject to the Constitution of the United States. That
was distinctly admitted, on numerous occasions, by members of
that Convention who were loudest in their assertions of sover-
eign powers, and by the committee itself above referred to, in
ARE CONVENTIONS POSSESSED OF SOVEREIGN POWERS? 313

their report, from which that extract was made. In another para-
graph the committee say:— “It” (the Convention) “is a vir-
tual assemblage of the people of the State, sovereign within its
boundaries as to all matters connected with the happiness, pros-
perity, and freedom of the citizens, and supreme in the exercise
of all power necessary to the establishment of a free constitu-
tional government, except as restrained by the Constitution of the
United States.’ What kind of a sovereignty is that, which is
limited, in respect of its sphere of action, to alterations of the
fundamental law, and limited within that sphere by the Consti-
tution of a distinct society, by which it is forbidden to meddle
with important subjects of legislation, such as war and peace,
treaties, &c., proper for any body which is really sovereign ?
Moreover, this very Convention, which refused to obey the in-
junction of the statute, under which it assembled, relating to its
printer, deemed itself compelled, as well by the injunction of
that same statute as by the customs in such cases established,
to submit to the people for ratification or rejection the Constitu-
tion it had matured. Ifa body thus hampered and subordi-
nated is a sovereign power, so are their grooms and their boot-
blacks, since each of those menials has committed to him
absolute power to perform the duties assigned him, subject to
the limitations contained in his commission and to the laws of
the land.

§ 317. The other alternative, which supposes every citizen, or,
at least, every elector possessed of sovereign powers, according
to the loose political jargon of our times, and that Conventions
represent them in their sovereign character, each of their mem-
bers being a sovereign in his own right as well as in the right of
representation of sovereigns, involves two fundamental errors,
which indeed are its only foundation. The first error is in sup-
posing that there is any such thing as the personal sovereignty
of individuals in any political society whatever. In relation to
political rights and obligations, the unit is not the individual or
the family, unless indeed the family constitute a patriarchal
government, but the state. In the matter of civil rights and
obligations, on the other hand, the unit is the individual citizen
We have pointed out in the chapter on sovereignty the absurd
consequences flowing from the hypothesis either of many sov-
ereigns in the same political society, or of a divided or fractional
314 ARE CONVENTIONS POSSESSED OF SOVEREIGN POWERS ?

sovereignty in the separate citizens of a state. In either case,
each citizen would be equal to every other citizen, and there
would be no common superior — a condition of things in which
government would be impossible, and laws and Constitutions
become what Mr. Burke styled the Bill of Rights of the French
Constitution of 1793, but “a digest of anarchy.”

§ 318. The second error in the hypothesis of conventional
sovereignty based on the representation of individual sovereigns,
is in supposing that such a sovereignty of the individual could
be alienated, were it conceded to exist. It is evident that the
hypothesis that every citizen is vested to some extent with the
attributes of sovereignty, is founded on transcendental views of
the dignity of the individual, resulting from an extension to
every person considered as a part of a political society, of rela-
tions, rights, and duties, analogous to those which are conceived
as attaching to him in the domain of morals. But this is
erroneous, and is one of many instances showing the dangers of
reasoning by analogy in matters of political concernment. But
supposing such a sovereignty of the individual to be a fact, to
alienate it would be to impart to another powers which be-
longed to the giver only by virtue of his individual manhood,
which were essential attributes of his personality, and which
consequently he could not give, nor another receive. If a Con-
vention of several of those individual sovereigns were pos-
sessed of sovereignty, it would be a contradiction to suppose
that transcendent power to be left still existing in the persons
whom it represented. The result is, then, that in no intelligible
sense of the word sovereign can it be properly applied to a
Convention.

§ 319. Before leaving this branch of the discussion, it is
proper to note, that although Conventions are not sovereign
bodies, they are intrusted by the sovereign society with the ezer-
cise of an important sovereign power, that of legislation, of a
certain kind, and to a certain extent. The substantive powers
of government, such as those of enacting, expounding, and exe-
cuting the laws, are all sovereign powers. But when it is said
that the several agencies constituting a government are per
mitted to exercise sovereign powers, it is far from asserting that
those agencies are possessed of original sovereignty. While
they are wielding powers that belong to the sovereign society
RELATIONS OF CONVENTIONS TO THE STATE. 815

that society is conceived of not only as existing, but as clothed
continually with all the rights of source of power, and of final
arbiter in all questions relating to its extent or exercise! The
argument, therefore, which should seek to infer sovereignty in
the Convention from the fact of its being vested to some extent
with the exercise of sovereign powers, would prove too much;
it would prove that, in any well-constructed government in our
times, there were numerous sovereign bodies or persons, the
legislature, the king, president or emperor, and the bench of
judges.

§ 320. (b). We are next to inquire into the relations of Con-
ventions to the government of the state, as a whole, and the
powers growing out of those relations.

As to the former, the substance of what I desire to say,
may be comprised in the discussion of a single question, — Is a
Convention a component part of the governmental system of
the state ?

If it is not a part of that system, certainly the difficulties of
locating it and of ascertaining its powers are infinitely enhanced,
for the only alternative is to consider it as imperium in imperio;
a body whose powers cannot be delineated, because practically
unlimited ; a body having only an incidental relation, by reason
of the necessities attending its birth, to the ordinary govern-
mental agencies —the government, indeed, sustaining to it the
relation not of parent or guardian, but of midwife merely —a
body, finally, standing in necessary connection only with the
sovereign for which it acts, or, rather, whose successor it is. On
the other hand, nothing could conduce more to simplicity of
view, than to consider this institution as a branch of that system
by which the state, considered as a political society, works out
its will in relation both to itself and to the citizens of which it
is composed. And this, although the subject is not free from
difficulty, I am satisfied is the correct view to take of the ques-
tion. We have seen in the first chapter, that, in England — and
the same is true generally in all foreign states — the power of
fundamental legislation belongs to the Parliament, precisely as
does that of ordinary legislation; and that, for special reasons
which were there detailed, a different plan has been adopted in
the United States, namely, that of distinct bodies for the two
species of legislation. The fact, however, that, except with us,

1 See ante, § 308.
816 RELATIONS OF CONVENTIONS TO THE STATE.

the two species are always united, demonstrates that there is no
natural incompatibility between them. Though variant in char-
acter and importance, fundamental laws and municipal laws
equally conform to the definition of laws. And certainly, the
enactment of laws is the proper function of the government of
a state. “If it be objected, that the idea of a system depending -
for its own renovation upon itself, involves a contradiction, the
reply is, that there is in it no contradiction, whenever, as in every
political society, the system is one operated by vital forces. This
is a matter of common experience in the strictly analogous case
of the animal kingdom. In the animal, those organs by which
are discharged the functions of reparation and reproduction are
clearly as much parts of the organism as those by which it de-
fends itself from hostile attack, or adjusts itself to changes of
its physical condition. Why should that body of functionaries
which legislates for the governors, as such, be denied a place in
the state governmental system any more than that which legis-
lates for the governed? The circumstance that the former
assembles only occasionally, though it doubtless leads to much
of the misconception prevalent regarding it, is really a matter
of no consequence in determining its true character. The fre-
quency or infrequency of its assembling is rather one of those
matters of practical detail which are determined from time to
time, as may be necessary to render the Convention system
harmless as well as efficient. But the fact that Conventions
always regularly assemble on the call of the legislatures of the
states concerned, indicates decisively, that the Convention has a
place in the governmental system. Had it been the design of
those who framed that system originally, to make of the Con-
vention a power outside of the circle of government, why make
it dependent for its existence upon an act of a single depart-
ment of that government, thus stamping upon its very front
indubitable evidence of its filial relation to it?

§ 321. The probability that Conventions were intended to be
parts of the systems of government amongst us, is increased by
looking at the practical consequences of the contrary by pothesis.
If they are not parts of those systems, they must be independent
of them, practically, and those theorizers may be right, who
proclaim the incompetence of legislatures to bind Conven-
tions by their enactments. To the legislature, in that view,
ARE MEMBERS OF CONVENTIONS STATE OFFICERS ? 317

belongs the ministerial duty of issuing the fiat by which the
Convention is spoken into being, but there its power ends. Once
assembled and organized, that body slips its leash and bounds
into a condition of absolute uncontrollability. It becomes po-
tentially, at least, a realization of that remorseless monster in
the human form which the fancy of Mrs. Shelley has depicted /
in her Frankenstein —a product of transcendent mechanical
and philosophical skill, endowed with life and intelligence, but
destitute of moral instincts or of practical accountability; a
monster with powers so surpassing those of the philosopher who
created it, that it was wholly beyond his control — he could not
even kill it. In short, on this hypothesis, a Convention would
exhibit the anomaly of an institution, manifesting all the traits
of an absolute despot, occasionally springing up alongside of
a system of laws, and, during its unregulated and indeterminate
existence, compelling from that system complete obedience. If
this be thought to be an extreme view of the possibilities of such
an institution, the answer is, that in estimating the character of
any political power, it is extremes'that must be considered; for
to them it is the tendency always to run. A political system
can be safely characterized only by transcribing its least favora-
ble feature, precisely as the strength of a machine is to be gauged,
not by that of its strongest, but by that of its weakest, part.

§ 322. In the Illinois Convention of 1862, a question arose
involving a practical application of these principles. By the
Constitution of that State, Art. V. Sec. 10, it was provided,
that the judges of the Supreme and Circuit Courts should not
be eligible “to any other office, or public trust, of profit,” in the
State or the United States, during the term for which they were
elected, nor for one year thereafter; and that all votes for either
of them for any elective office (except that of judge of the Su-
preme or Circuit Court) given by the General Assembly or the
people, should be void. One of the delegates, Mr. O’ Melveny,
having been a judge of one of the Circuit Courts, within one
year prior to his election to the Convention, his competitor con-
tested his seat, on the ground, that he was incapable of sitting
as a member of that body under the above provision of the
Constitution. The Convention having at first, without a di-
vision, decided that he should retain his seat, a motion was
made on the following day, to reconsider that vote, upon which
318 ARE MEMBERS OF VONVENTIONS STATE OFFICERS ?

arose a spirited debate, the question being, whether to be a
member of a Convention was to hold “an office, or public trust
of profit” in the State. On the part of those who sustained
the sitting member, it was contended, that the words “ office, or
public trust,” referred particularly to the distribution of powers
contained in the Constitution, according to the first section of
the second article of which, the powers of the government of the
State were confided to three separate bodies of magistracy, the
legislative to one, the executive to another, and the judicial to
a third. To which of these departments, it was asked, did the
delegate to the Convention belong? Certainly, it was answered,
it could not be contended that he belonged to either of them,
for all the officers belonging to each were specially enumerated
in the Constitution. The only plausible argument that could
be urged against this view, it was said, was, that there was
another provision of the Constitution, that relating to amend-
ments, which provided for the election of delegates to the Con-
vention, from which it might be attempted to infer, that those
persons, being chosen in pursuance of the Constitution, were as
much holders of office or public trust under it, as were the
judges or the governor; but that the reply was, that the con-
stitutional provision referred to did not, either in terms or spirit,
define the qualifications of deiegates, as it did those of the
judges, members of the legislature, etc. ; it simply left the people
to choose whomsoever they might desire, without regard to age
or other qualifications; whereas, had the framers of the Consti-
tution regarded the members of the Convention as State officers,
they would have inserted particular provisions, prescribing not
only the persons to be elected, but the time and mode of their
election, and perhaps their powers and duties.

§ 323. On the other hand, it was contended by those who
favored the contestant, in substance, that if membership of a
Convention was not an office, which was not conceded, it cer-
tainly was a public trust, and that, of the greatest magnitude.
Every constable, and every justice of the peace, — functionaries
whose duties were comparatively trivial, — was conceded to be an
officer, and in a position of public trust, because it had been
found not impracticable to specify in the Constitution the classes
of persons who should fill those places and the full scope of
their duties; but those public servants, whose business so fat
ARE MEMBERS OF CONVENTIONS STATE OFICERS ? 319

transcended in importance that of all others that it was deemed
impracticable or inexpedient to limit it by prior description, and
upon the fidelity of whom, to their constituents, depended the
liberties, to say nothing of the existence, of the Commonwealth,
were not only not officers, but they were denied to be holders
of a public trust in the State which they thus served! Besides,
what was the reason for inserting the prohibitory clause in the
Constitution? Clearly, to furnish a guaranty of the purity
and independence of the State judiciary ; qualities which could
not well exist, if, while invested with the judicial robes, the
judges were allowed to participate in the scramble for Federal
or State offices. But did the framers of the Constitution in-
tend that those officers whom they forbade to accept another
position of profit under the State, or the United States, for an
entire year after sitting as judges, lest the honor of the bench
might be sullied, should be at liberty to enter a Convention to
new-model the fundamental laws, — amongst them, perhaps,
those regulating the tenure and emoluments of their own
offices ?

§ 324. In my judgment, there can be but little doubt, that a
member of a Convention is, in the enlarged and proper accepta-
tion of the term, an “officer” of the State. 'This follows, not
simply from the reasonings in the Illinois Convention, of which,
somewhat developed into details, an abstract has been given,
but especially from the principles explained in preceding sec-
tions. A Convention is a part of the apparatus by which a
sovereign society does its work as a political organism. It is
the sovereign, as organized for the purpose of renewing or
repairing the governmental machinery. That same sovereign,
as organized for the purpose of making laws, is the legisla-
ture; as organized for the purpose of applying or carrying into
effect the laws, it is the judiciary or the executive. These suc-
cessive forms into which the sovereign resolves itself, are but
systems of organization having relation more or less directly to
the government of the society. Together, they constitute the
government. And yet they do not each constitute the govern-
ment. One branch of the governmental system may perform no
governing function at all, in the ordinary sense of the term—
may not operate or administer the government. Thus, under
those Constitutions which directed the election of a Council to
320 CAN CONVENTIONS FILL VACANCIES IN THE GOVERNMENT?

the Governor, merely as an advisory body, such Council, though
clearly a branch of the government, did not govern. The gov-
ernment of a commonwealth is the totality of those instruments
\through whose ministry its political organization is begun and
continued. It is that totality which governs, and not necessarily
either of its members, precisely as it is the body of an animal
which lives and acts, and not the separate parts, though, doubt-
less, of these, one masticates the food, another digests it, a third
performs locomotion, a fourth thinks, and so on. And, as in the
living body, each organ, contributing by no matter how humble
or obscure a function to the common life, or development, is a
member of the organism ; so in the commonwealth every citizen
or body of citizens, charged with any duty looking to the de-
fence, the operation or the renewal of the political system, is an
organ of that commonwealth for purposes connected with its
government, and must be ranked amongst its officers. In other
words, if the nutritive and reproductive apparatus is properly
reckoned as a part of the animal economy, the corresponding
apparatus, in an organized state, must be accounted a part of
the political structure.

§ 325. The relations of Conventions to the state as a whole
being ascertained, three practical questions will now be con-
sidered, from which their powers, growing out of those rela-
tions, may be determined, namely —

1. Can a Convention appoint officers to fill vacancies in the
various governmental departments ? !

2. Can it eject from office persons holding positions in the
government by regular election or appointment ??

3. Can it direct such officers in the discharge of their duties ?®

1 In the Louisiana Convention of 1844, a resolution was introduced provid-
ing that certain specified officers should fill the offices of Parish Judges and
District Judges, “‘ now vacant by the election of said officers to this Conven-
tion.” The resolution was defended by its mover on the ground of necessity ;
but the Convention deemed the assumption of the power unwarranted, and
rejected the resolution by a vote of sixty-eight to one. — Deb. La. Conv. 1844,
pp. 26, 27.

2 This question was raised in the Illinois Convention of 1862, but the power
was not exercised.

3 This question was raised in the Louisiana Convention of 1864, and the
power of instruction asserted by a vote of sixty to fourteen. It notified the
proper authorities to raise the salaries of loyal ladies engaged in “ teaching the
CAN CONVENTIONS REMOVE FROM OR APPOINT TO OFFICE? 821

If a Convention has power to do either of these acts, what is
the extent of its power, and in what mode must it be exer-
cised ?

The power to fill vacancies in the government must be denied
to a Constitutional Convention in any case. A sufficient reason
for denying it is, that it is not necessary, since, running a paral-
lel course to that body, and in full life and activity, is the ordi-
nary appointing power, in its several departments, to whom the
duty of filling such vacancies, by the Constitution, belongs. ‘To
assume the power would be justifiable only under a pressure of
circumstances such as would necessitate usurpation, and convert
the Constitutional into a Revolutionary Convention. Even sup-
posing the body invested with definitive powers to establish a
Constitution, without submission to the people, the selection of
officers to fill vacancies, however occurring, could not be shown
to be necessary to the fulfilment of such a commission. That
duty could be better done by those to whom it is usually com-
mitted; and when to this it is added, that it would be unsafe to
intrust power so extensive to a single assembly, an express
warrant must be demanded before assenting to its exercise.

§ 326. To the two remaining questions, so far as they relate
to direct action of the Convention, the same answer must be
given. That body cannot remove from office, or instruct those
holding office, by any direct proceeding, as by resolution or
vote applying to particular cases. It is its business to frame
a written Constitution; at most, to enact one. It has no
power, under such a commission, to discharge the public ser-
vants, except so far as their discharge might result from the
performance of its acknowledged duty. Indirectly, therefore,
by constitutional provision of general application, unquestion-
ably the power of removal must exist. A Convention may
abolish existing offices, and thus effect the removal of those
who fill them. So, in reference to instructing officers in rela-
tion to their duties, so far as the discharge of its admitted
function, the framing of fundamental laws, is concerned, there
is no doubt a Convention may modify at pleasure the regula-
tions under which the government is administered in all its de-
partments. But to attempt to issue instructions, in relation to

youth of our country.” The Cunvention, however, as we have seen, was a rev-
olutionary body.
322 CAN CONVENTIONS REMOVE FROM OR APPOINT TO OFFICE ?

matters of current policy, to particular officers, would be to blend
with its ordinary and normal fanction those belonging properly
to the legislature. Especially would this be improper, when the
Convention meets under a call of the usual character, contain-
ing no power but to frame and submit to the people, for their
adoption or rejection, a draft of a Constitution.

§ 3827. Such, I think, upon principle, must be the answer to
the questions indicated.

In relation to the power of a Convention to remove from,
or appoint to, office, an interesting discussion has lately arisen
in Missouri, to which attention must for a moment be directed.

By the Act of the General Assembly, calling the Missouri
Convention of 1865, Sec. V., the delegates elected to that body
were required to meet and organize, and thereupon to proceed
“to consider, first, such amendments to the Constitution of the
State as may be by them deemed necessary for the emancipa-
tion of slaves; second, such amendments to the Constitution of
the State as may be by them deemed necessary to preserve in
purity the elective franchise to loyal citizens, and such other
amendments as may be by them deemed essential to the promotion
of the public good.”

No further directions were given in the Act as to the nature
of the amendments to be considered by the Convention, nor
was that body required specifically to submit the fruit of its
deliberations to the people.

The Convention met on the 6th of January, 1865, and ad-
journed on the 10th of April, having in the meantime prepared
divers amendments to the Constitution, which, being submitted
to the people on the 6th of June following, were adopted. Be-
side these, it also, on the 11th of January, adopted and put in
operation, without submission to the people, an Ordinance
“abolishing slavery in Missouri.” In like manner, on the 17th
of March, it adopted and put in operation, without submission,
an Ordinance “ providing for the vacating of certain civil offi-
ces in the State, filling the same anew,” &c., of which the ma-
terial portion was as follows : — “ Be it ordained, &c.

“Section I. That the offices of the Judges of the Supreme
Court, of all Circuit Courts, and of all Courts of Record, estab-
iished by any Act of the General Assembly, and those of the
Justices of all County Courts, of all Clerks of any of the afore-
CAN CONVENTIONS REMOVE FROM OR APPOINT TO OFFICE? 3823

said courts, of all Circuit- Attorneys and their assistants, and of
all Sheriffs and County Recorders, shall be vacated on the first
day of May, one thousand eight hundred and sixty-five, and the
same shall be filled for the remainder of the term of each of said
offices, respectively, by appointment by the Governor.”

In pursuance of this Ordinance, each of the offices specified
was filled by the Governor — the prior incumbents having
been first, with force or otherwise, ejected therefrom. A vehe-
ment outcry was thereupon raised, charging the Convention and
the Governor with having exceeded their authority. Whether
they did so or not must depend on the question, whether the
vacating Ordinance of March 17, 1865, was an amendment to
the Constitution or not. If it was, it was within the express
letter of the commission under which the Convention proceeded,
the Act calling it together. If it was not, that body, clearly,
was guilty of usurpation, since it is only laws of a fundamental
character, that a Convention has power to enact or recommend.

§ 328. Of the question stated, whether the Ordinance of
March 17, 1865, was an amendment to the Constitution or not,
the following considerations seem to me to be decisive: —

1. An amendment to a Constitution is an Act, passed by
competent authority, modifying permanently the structure, the
Operation, or the guarantees of the government. An Act which
relates only to its temporary administration, to the particular in-
dividuals who shall or shall not fill its offices, or which, leaving
the Constitution in its letter intact, merely suspends its action
for a time, on some great emergency, cannot be called an
amendment to its Constitution. It is rather an administrative
Act, in the large sense of the term; or, where its effect is
merely to suspend the action of the Constitution, it is, in sub-
stance, an executive Act, proper especially for an officer charged
to see to it, that the Republic receives no detriment. In short,
to borrow a figure which perfectly expresses the distinction I
am contending for, it is an Act proper, not for the millwright,
but for the miller.

2. That the Ordinance of March 17th was of this temporary,
administrative character, lacking the essential characteristics of
a fundamental Act, is apparent from its terms. In the first
place, as I have stated, it ousted from office not a class of per-
sons, but particular individuals; declaring, not that citizens
3824 CAN CONVENTIONS REMOVE FROM OR APPOINT TO OFFICE?

lacking specified qualifications should be thenceforward inca-
pacitated to hold the office of judge, &c., but that Judges Bay
and Dryden,! &c., then holding office, should vacate the same.
Secondly, the Ordinance required the Governor to fill the offices
thus vacated “ for the remainder of the term of each of said
offices.” It thus recognized the term fixed by the Constitution
as still existing, and limited its own operation to the part there-
of yet unexpired. In so doing, it obviously contemplated that,
at the expiration of that term, the same offices should be filled
as the Constitution provided, the Ordinance notwithstanding.
In other words, it did not modify the Constitution, but sus-
pended its operation for a limited time, after which it was again
to be in full force.

§ 329. 3. That the Convention itself did not regard the Or-
dinance in question as an Act of fundamental legislation, is ap-
parent from the fact, that it did not submit it to the people with
the amendments to the Constitution, on the 6th of June, but
put it in operation by its own authority. If it be objected, that
the Convention also withheld from submission to the people the
Ordinance of January 11, 1865, abolishing slavery in Missouri,
clearly an Act of fundamental legislation, and that, if non-sub-
mission indicates decisively the character of the one Ordinance,
it ought to do so of the other, the answer is, that although the
better course would have been to submit the slavery Ordinance,
yet, as the Convention Act was silent on the subject of sub-
mission, and as it expressly required the Convention to pass
such amendments to the Constitution as they should deem
necessary to emancipate the slaves, the cases are wholly differ-
ent, and the objection is, therefore, groundless. In the one case,
that body passed, but did not submit to the people, an Ordi-
nance, which the people, through the legislature, had required it
to pass; and in the other it passed, without submitting to the
people, an Ordinance which it had not been required to pass,
and of their authority to pass which, as an amendment to the
Constitution, there is the gravest doubt.

§ 330. If the action of the Convention was not in the line of
fundamental legislation, the alternative is, that it was one of
revolution; for, in that case, it was one belonging to some

1 The names of two of the judges ousted under the Ordinance, by whom
prosecutions were brought to test its validity in the courts of Missouri.
CAN CONVENTIONS REMOVE FROM OR APPOINT TO OFFICE? 325

branch of the existing government — an Act of administration
or of ordinary legislation, coming within the province of some
other department. And that it was of this character is, in my
judgment, susceptible of no doubt.

In denying to the Convention, however, the power in ques-
tion, it is not meant to imply, that the particular acts authorized
by the Ordinance of March 17th were not necessary, but merely
that they were not legal or constitutional. The Journals of the
Convention of 1861, in the same State, are filled with evidences
that Missouri was at that time in a revolutionary condition.
Acts were done by that body, which were proper only for a
strictly Revolutionary Convention, one which had assumed in
a time of crisis, when the wheels of the regular administration
were blocked, the functions of a provisional government. One
of the earliest Ordinances of that Convention was one to vacate
the offices of Governor, Lieutenant - Governor, Secretary of
State, and members of the General Assembly, and, of its own
authority, to appoint persons to exercise the duties of the first-
named officers, until others, with a new General Assembly,
should be elected in the November following. It also, on the
same day, passed an Ordinance repealing certain Acts of the
General Assembly, approved in the early part of the year 1861.7
So, also, it usurped the function of a General Assembly by
passing an Ordinance for the organization and government of
the Missouri State Militia,3? and several Ordinances for the
appropriation of moneys out of the State treasury.* All these
acts were clearly usurpations of authority properly belonging
to other departments of the State government. That that gov-
ernment was in treasonable hands might justify the Convention,
on moral grounds, in seizing, by revolutionary force, powers not
its own, but could not alter the legal character of its acts. In
1865, the same necessity perhaps existed, and, if so, might jus-
tify acts clearly of the same general character, legally considered,
as those of its predecessor of 1861. But, as I have said, upon
this question I pass no opinion. If the acts characterized as
revolutionary were strictly necessary, it was not the first time in
history that a party, having morally and politically the better
case, had legally the worst of the argument.

1 Ordinance of July 80, 1861. See Journal of the session of the Conven-

tion held in June of the year 1862, Appendix, pp. 3, 4.
21d. p. 4. 3 Id. p. 7. 4 Id. pp. 18, 19.
326 RELATIONS OF CONVENTIONS TO THE ELECTORS.

§ 331. (c). I pass now to consider the relations of Conven-
tions to the separate agencies or departments of the govern.
ment, and the powers resulting to them from those relations,
Of those departments, that which is the most numerous and
which stands nearest in order to the sovereign, is the electors.

By the term electors, according to the American Constitu-
tions, generally, with which alone we are now concerned, is
meant that body of citizens who, by the Constitution or laws of
the State, have been invested with the rights, first, of choos-
ing the most important administrative! officers of the govern-
ment, and, secondly, of determining, by its direct vote, the ex-
pediency of constitutional changes, and of enacting them. The
electoral body, as already observed, is by far the most numerous
corps of functionaries in the State. It never assembles in a
single body, as does the legislature, but exercises its prescribed
functions in determinate subdivisions of the public area, each
of which constitutes an electoral circle, where alone the electors
resident within it can exercise their franchise. Beyond the lim-
ited sphere of duty laid down for them in the fundamental law,
this most important body has no power or official character
whatever. It cannot pass an ordinary statute, or render a judg-
ment, or execute a criminal. Its individual members, except in
the simple act of casting their vote in the cases prescribed by
law, represent nobody, and hence, theoretically, are entitled to
no more weight than the still more numerous body of non-
electors, comprising the residue of the people. But, although,
while acting within their proper province, the electors, by their
vote, are deemed to utter the voice of the sovereign, it is only
the aggregate vote of the State, or what I might describe as
the resultant of all the separate votes of its individual electors,
which can be thus characterized, not the vote of the individual,
or of the subordinate circle, which, as such, has generally no
official validity whatever.

§ 332. Within the sphere allotted to the electors in the scheme
of government, they constitute a strictly representative body.
Bat it is only one of a number of such bodies. The three ordi-
nary departments of a government — the legislative, executive,
and judicial — are also representatives of the same constituent,

1 I use the word “ administrative” here in its broad sense, to designate all

officers concerned in operating the government, — legislative, executive, and
judicial.
RELATIONS OF CONVENTIONS TO THE ELECTORS. 3827

the sovereign. That is, the functions severally committed to
these four systems of agencies are, in general, committed to
them absolutely, with respect both to each other and to the sov-
ereign ; the latter parting with the right to exercise the power,
though not with the right to withdraw the grant, or to chastise
those who abuse it. Because, judging from the visible opera-
tions of government, the electors seem to be the basis of the
entire system, they are usually denominated the people. From
this circumstance has arisen a common misapprehension, to the
effect, that the electors are the source and possessors of all
sovereign rights — the real sovereign. When it is considered,
however, that this body is a variable one, the number and qual-
ifications of those who compose it depending on the deter-
minations from time to time of that power lying still further
back, by whom the Constitution itself is enacted, the position
of electoral sovereignty is seen to be untenable. The electors
merely represent the sovereign, aud are under all the conditions
of responsibility and of limitation of power which attach to the
departments at the next remove from the source of sovereignty,
generally denominated the government.

§ 333. To determine the relations of Conventions, in general,
to this primordial body of functionaries, let us first recall the
genesis of the former. Conventions, as we have seen, are
bodies chosen by the electors, at the instance of the legislature.
They are thus, in one sense, the offspring of those two govern-
mental agencies. But, on a broader view, they are to be re-
garded as the appointees of the sovereign itself. It is only
through agents that the latter can act, and hence there is no
system of functionaries amongst all those organized in a State,
that, if considered with reference to its immediate source and
origin, is not the child of the government of that State. They
all depend upon each other, and run more or less into each
other, trenching upon each other’s power and jurisdiction. Still,
in case of some of those agencies, it would not be denied that
they are selected and commissioned by the sovereign, and if
some, so, virtually, are they all. So far, then, as the genesis of
Conventions is concerned, they must be set down as bearing to
the electors substantially the same relations as does a legislature.
It is a creature of the same political society, acting, as it can
only act, through some one or more of its accustomed organs.
328 CAN CONVENTIONS DISFRANCHISE ELECTORS ?

§ 334. Secondly, to determine the relations of Conventions
to the electoral body, we must take into view their relative
functions. The normal conception of the Convention is that of
a body appointed by the sovereign to mature a scheme of fun-
damental law, to be submitted to that sovereign for ratification
or rejection. But the sovereign neither on the one hand ap-
points, nor on the other ratifies or rejects, by its direct action.
These exercises of sovereignty it can perform only through
agents, and for that purpose it employs the electors, as being the
most numerous, the most disinterested, and the nearest to itself,
of any in the Commonwealth. Hence it follows, I think, that
although in respect of their common origin from the sovereign,
the Convention and the electoral body may be considered as in
a certain sense codrdinate, they are nevertheless, in another re-
spect, to be ranked as unequal. A sort of primacy must be
conceded to the electors, since, so far as the work of the Con-
vention is concerned, they wield the actual sovereignty ; for it
is they who pass upon it, enacting it or otherwise, as to them
seems best. Thus the electors stand between the Convention
and the sovereign, whose rays of power they intercept and
gather into a focus of their own. In a word, then, the Conven-
tion stands related to the electoral body thus: in point of origin,
so far as other parties are concerned, they are codrdinate, as
both deriving their existence from the same source of power,
the sovereign; but, with respect to each other, the electors are
the more dignified and the more nearly sovereign body, since
they receive their appointment directly, through the Constitu-
tion, from the sovereign, whilst the Convention receives it from
the sovereign indirectly, through the same electors, to whom
also it is bound to submit the fruit of its deliberations for ap-
proval or disapproval.}

§ 335. In the light of these principles, it will not be difficult
now to furnish answers to such questions, depending on the rela-
tions just explained, as it may be useful to discuss.

1. Of these, the first which I shall consider is this: Can a
Convention disfranchise any part of the electoral body ?

This question may receive two different constructions. It
may mean, Can a Convention, by virtue of its ordinary com-
mission —to recommend, not to enact, constitutional changes

1 For an exposition of this duty see post, Chapter VIL.
TRUE THEORY OF SUFFRAGE. 329

— divest of the electoral franchise, by its direct action, any per-
son qualified as an elector by the existing Constitution? In this
sense, it is evident, the power does not exist, for reasons similar
to those already given, in considering the power of a Conven-
tion to make removals from office. The question, on the other
hand, may mean, Can a Convention effect the disfranchisement
of subsisting electors by an indirect proceeding, as by constitu-
tional provision, altering the qualifications for the exercise of the
suffrage? This is a question of more difficulty. If the so-
called “right of suffrage” is a natural right, and not a mere
delegated power or duty, it is clear, that a Convention cannot
rightfully divest of it persons coming within the limits by which
it is defined. But if, on the contrary, it is no right at all, by
nature, but rather a function or office, with which certain desig-
nated classes are charged by the sovereign, for its own purposes,
it is equally clear, that, for what are deemed sufficient reasons,
the charge may be withdrawn. In that case, inasmuch as the
Convention is the agency through which the sovereign either
effects constitutional changes or initiates them, reserving to
itself, through the electors, the enactment of its recommenda-
tions, it follows that that body may, according to the terms of
its commission, either withdraw or recommend the withdrawal
of such charge.

§ 336. Which, then, is the true theory of the suffrage? Is its
exercise that of a natural right, or is it merely the performance
of a duty, resting simply upon positive law? The answer to
this question can be based only upon presumptions, and, judg-
ing by them, suffrage is not a natural right. In the first place,
there is the presumption arising from the fact, that no political
community has ever existed in which the right to vote has been
conceded to be the natural right of all the citizens. I mean,
conceded, not as a matter of speculation, but as one of practi-
cal administration. This is believed to be true in the ancient
democracies, as it has been in those modern governments, in’
which circumstances have enabled their founders to carry into
effect most perfectly the theory of equal rights. In the cabin
of the Mayflower it was the Pilgrim fathers, not the Pilgrim
mothers, who framed the first Puritan commonwealth. In the
second place, there has never been an instance, it is believed, in
which a State, whatever its theories of the suffrage may have
330 TRUE THEORY OF SUFFRAGE.

been, has not somewhere drawn a line of exclusion from its
actual exercise, and drawn it, too, above the point which marks
the extreme limit of practicability. In other words, no common-
wealth, based upon popular suffrage, or admitting its exercise
at all, has ever allowed it to the utmost extent that was practi-
cable under the circumstances. Finally, suffrage, considered as
a natural right, would be universal suffrage ; and universal suf-
frage is an utter impracticability. For, admitting the force of
the argument which attributes, by the law of nature, an equal:
right to vote to every citizen, nevertheless, when the statesman
comes practically to establish the right, insuperable difficulties
arise. Some are too weak or too young to exercise it at all,
or with the requisite intelligence. A line must be somewhere
drawn. Where it shall be drawn is a question of expediency,
to be determined by the existing government, like any other
measure involving mixed questions of justice and of policy.
The principle of exclusion being once established, whether it
shall be confined to considerations of age, or be extended to
those of sex or social condition, is a matter of practical detail
to be settled by the political power.

§ 337. The “right of suffrage” comes thus to be practically
only a right of one man to represent many other men. Over-
looking the absurdity of such a right, if asserted as a natural
right, it comes at once into conflict with another right existing
equally by the law of nature — the right of the State to deter-
mine who shall and who shall not discharge a function, which
not all citizens can discharge. But a right of one man to do
that which another has an equal right to prevent him from
doing, is either a solecism or it is a right which subsists only
upon conditions to be determined by that other ; in other words,
aright which is such only when it rests on some positive law
ordained by that other.

Thus viewed, it is evident, that in the present condition of
mankind, in which, for the public good, the principle of exclu-
sion must be exercised, there is no such thing as a right of suf-
frage. Suffrage is not a right at all; it is a duty, a trust, en-
joined upon, or committed to, some citizens and not to others.
‘Fhe only rights connected with the exercise of the suffrage, are,
first, the right of the commonwealth, the collective body to be
administered, for good or for evil, by the electors, to determine
OAN CONVENTIONS FILL THEIR OWN VACANCIES ? 881

who those electors shall be; secondly, the right of every citizen,
without distinction, derived to him through the commonwealth,
to be fairly and adequately represented by the electors.

The conclusion at which I arrive then is, that a Convention
may, by constitutional provision, effect the disfranchisement of
existing electors. Of course, with the question of the policy
of doing so, in any case, I do not concern myself.

§ 338. 2. Another question is, Can a Convention take upon
itself the function of the electors to fill vacancies in its own
ranks? This is substantially the same question before discussed
in relation to the power of that body to fill vacancies in the ordi-
nary departments of the government,! and should receive the
same answer unless a different one ought to be given, because, in
the case of appointing to an executive or judicial office, it would
wrongfully assume the relation of electors to a third body, and
in the other case, that of electors to itself. In the case last sup-
posed, the Convention would be pro tanto self-appointing, and
would maintain the attitude of at once constituent and delegate,
which is that of a body de facto sovereign. So that the two
cases would differ, but only in the degree of their common im-
propriety; the exercise by a Convention of the power to fill
its own vacancies being far more unwarranted and dangerous
than that of filling vacancies in other departments, as it would
more flagrantly violate that system of mutual checks which is
so indispensable to the safe action of popular institutions. It is
evident, that of all possible checks, the most effectual, amount-
ing practically to the power of complete control, is that of
selecting the persons to constitute the body. This power it will
never do for the electors on any consideration to resign.

) 389. 3. The principles just settled enable us to answer
another question, namely, Can a Convention authorize the col-
leagues of resigning or deceased members to name their succes-
sors? It is clear that, on general principles, what a Convention
cannot do as a whole, it cannot authorize any of its members to
do. But suppose, as was the case in the Virginia Convention
of 1829, the Act of the General Assembly, under which the
body convened, contained a special authorization to fill vacan-
cies in that manner, could it then be allowed by the Conven-
tion? The answer must depend on the power of the legisla

1 Ante, § 325.
332 CAN CONVENTIONS FILL THEIR OWN VACANCIES ?

ture to make such a provision, of which, to say the least, there
is much doubt. The matter lies in a nutshell, thus: Where
Constitutions have given to legislative bodies power to call Con-
ventions, and have specified the electors of delegates thereto,
they have with great uniformity named the persons qualified to
vote at the general State elections.1_ Where no constitutional
provision has existed governing the case, the same class has
usually been designated by law. Such has been the practice.
Theoretical principles indicate with the utmost clearness that no
otber class could properly be permitted to act as electors in such
a case. Could a legislature itself name the delegates to con-
stitute the Convention? That would be to make of itself the
people, to violate all the analogies of our republican system, and
to trample under its feet the safeguards of our liberties, For,
if it could appoint the delegates, it might name a committee
of its own members, or of others, small in number, and likely to
be equally, in either case, subservient to the power which cre-
ated it. A Convention thus composed would virtually be but
the legislature itself, which would in that case possess the un-
controllable powers of the English Parliament, those, namely,
of constructing the government, and then of regulating its ad-
ministration. It cannot be, then, that a legislature has power
to remit the election of conventional delegates in the first instance
to any body of persons but the electors. Avnd if not in the first
instance, it is equally doubtful whether it could do it afterwards
to fill vacancies. These ought to be filled by the constituencies
left unrepresented, which are not the colleagues of the retired
members, but the electors in the proper districts. These con-
siderations are confirmed by the observation that exceptional
modes, even if convenient, cannot in any high sense of the
term be said to be necessary. The absence of a delegation
is not likely to be a very serious evil, in case no provision by
law for calling a new election has been made in a form that is
free from objection, and if the power to order one without such
a law be doubted.

§ 340. 4. If a Convention cannot, when vacancies occur in
its ranks, fill them itself, or authorize or permit a part of its
members to fill them, can it issue precepts to the constituencies
of the retired delegates directing new elections to fill them?

1 See ante, §§ 262, 263. 2 Ibid.
CAN CONVENTIONS ISSUE PRECEPTS DIRECTING SLECTIONS? 3883

This question touches to the bottom the powers of Conventions
in relation to the electoral bodies which depute them, and will
therefore be considered at length. It arose as a practical ques-
tion in the Massachusetts Convention of 1853, and I cannot,
perhaps, better illustrate the principles by which it ought to be
decided, than by presenting an outline of the facts of that case,
and of the discussions which it elicited.

§ 341. The Hon. Henry Wilson having been elected a dele-
gate for both the town of Natick and the town of Berlin, chose
to sit for the former, whereupon an order was passed that a no-
tice be given by the Secretary of the Convention to the town
of Berlin, that the Hon. Henry Wilson, who was returned as a
delegate from that town, declined to act in that capacity. There-
upon the Hon. B. F. Butler submitted a form of a notice to be
sent by the Secretary, as follows: —

“HALL OF THE CONSTITUTIONAL seer erga
“ Boston, May —, 1853.
“ To the Selectmen of the Town of Berlin:

“ GenTLEMEN, — The Hon. Henry Wilson, late delegate for
Berlin in the Convention for revising the Constitution, having
tendered his resignation as such delegate, which has been ac-
cepted by the Convention, and his seat being thereby vacated,
I am directed, by a vote of the Convention, to request you to
convene the qualified electors of your town, as soon as may be
with a due regard to notice, in order to their electing and deput-
ing a delegate to represent them in this Convention, in the man-
ner prescribed by the second section of the Act calling the Con-
vention, adopted by the people on the second Monday in No-
vember, a. D. 1852.

Tam, &c.”
[Signed by the Secretary. ]

This form involved an evident departure from the principle of
the order just adopted, inasmuch as it contained an assertion
of a threefold power in the Convention, of which no trace
was to be found in the order: first, a power to direct, or at
least to request, the town authorities, and through them the
electors, to exercise their electoral function at a particular time,
and upon a particular subject; secondly, the power to accept
334 CAN CONVENTIONS ISSUE PRECEPTS DIRECTING ELECTIONS?

the resignation of delegates duly elected to its own body ; and,
thirdly, the power to direct the electors as to the manner in
which they were to proceed to elect their delegates to the Con-
vention, as, that it should be done in conformity to a particular
Act of the legislature.

§ 342. The question being upon the adoption of this form, a
substitute was moved, that in notifying the town of Berlin of
the vacancy, the Secretary be directed to forward to that town
a certified copy of the order adopted by the Convention upon
that subject. This substitute was rejected, and the form pro-
posed by Mr. Butler adopted, opposition being made at every
step, on the ground that it was beyond the power of the Con-
vention even to notify the town of the vacancy, much more to
direct the election of a delegate to fill it. On the following
day a reconsideration of the last vote was moved, upon which
arose a very long and interesting discussion of all the questions
involved, but ending finally in a vote of nearly two to one re-
fusing to reconsider the vote adopting the form of notice pro-
posed by Mr. Butler.

Of the three questions indicated as involved in the form of
notice adopted, the first, as to the power of a Convention to
issue a precept, request, or notice to a town, with a view to in-
duce it to fill a vacancy in its delegation, is the only one I pur-
pose here to consider.

§ 343. That the Convention possessed the power to issue
such a precept was claimed by Mr. Butler and others, as evi-
dent from the nature and functions of that body.

Thus, in favor of the form of notice presented by him, Mr.
Butler said : —

“We are told that we assume the power, and that we are
merely the agents and attorneys, of the people. Sir, we are the
delegates of the people, chosen to act in their stead. We have
the same power and the same right, within the scope of the
business assigned to us, that they would have, were they all
convened in this hall. In my judgment, we have every inci-
dental power necessary to do the business of the people. If the
people were all assembled here in their primary capacity, they
would surely have the capacity to notify unrepresented towns,
that they might participate in the business of the Convention
and, by implication, we have just the same powers, duties, and
CAN CONVENTIONS ISSUE PRECEPTS DIRECTING ELECTIONS? 335

necessities, no more and no less, conferred upon us, that the
people would have were they here in their primary capacity.
We are not acting as a court of referees. The power with
which we are vested comes not from the legislative government ;
but the people, through the agency of the ballot-box, have given
it to us. We are not men who have no interest in the matter,
but have all the powers of the people whom we represent. If
they chose, being assembled in their primary capacity, to add to
their number by admitting a portion of the people at first not
assembled with them, could they not doit? And, if they now
see fit to send men to act with us, have they not the power to
do it? Tlook upon this whole proceeding of calling a Conven-
tion as a mode of revolution by which we may peaceably ac-
complish that which in other countries is attained by the sword
and by force. Here, through the medium of the ballot-box, the
people take to themselves the supreme control of the whole
machinery of the government, and they determine who shall
come here and act for them.” !

§ 344. On the same side, professedly, but shifting the ground
assumed by Mr. Butler, if not, in substance, surrendering the
power claimed by him, Mr. B. F. Hallett said: —

“ Speaking strictly with reference to the authority under which
this Convention is assembled, I confess that I have great doubts
whether the Convention has power to send to any town an or-
der or a direction in the form of law, calling upon them to send
a member to this Convention..... Taking this question as
the issue, as to the power of the Convention, it resolves itself
entirely, in my mind, into the simple power of a body to repro-
duce itself — that is, to fill vacancies occurring within itself by
death or resignation; and whether that power be or be not inci-
dent to such a body, is a matter which may admit of different
opinions, but with regard to which, it seems to me, the prepon-
derance of opinions must be, that, in the absence of a prohib-
ition to fill such vacancy, and where no mode is provided by
law, the body must necessarily have the power to supply such
deficiency — that is, to reproduce itself. In this point of view,
therefore, the resignation of a delegate, causing a vacancy,
would stand differently from a call upon towns to send dele-
gates here in cases where no vacancies had existed except such

1 Deb. Mass. Conv., 1858, Vol. I. p. 78.
336 CAN CONVENTIONS ISSUE PRECEPTS DIRECTING ELECTIONS ?

as arose from a mere failure of a town to elect a delegate. I
should be content, therefore, to take this proposition as a proper
one, and invite the town of Berlin to send a delegate here,
upon the ground that we as a body have a right to fill our own
vacancies, occurring since our organization as a body; and that
is all the power we have got, if we have got any, in the pre-
mises. Iam perfectly clear that we have no direct power under
the Convention Act of 1852, in relation to supplying any vacan-
cies in this Convention. That is our charter; it is the Consti-
tution of this body of delegates, and we must act under it.”}

§ 345. To these arguments, so discrepant in their principles,
the Hon. Marcus Morton replied as follows : —

“ We are a delegated body; if we have any authority it has
been delegated to us. We are the agents or the attorneys of
the people of this Commonwealth, and, if we have any power
at all, it comes from them, and is contained in the power of
attorney which authorizes us to come here. If we have the
power or authority to act in this matter, let any gentleman put
his finger upon the passage in the Act and point it out. And,
if the authority cannot be found, then where do we get it? In
acting upon this subject we should be assuming power which
has not been delegated to us. It would be a downright usurpa-
tion, and it would be more than a usurpation of power by a
legislative body, because there is nobody behind us to make it
right. There is no way of correcting the evil. If gentlemen
assume the power to act in this matter, —if the Convention is
to send out precepts for new elections, and to admit individuals
who may be chosen in this manner, they may assume power to
send for the Common Council of the City of Boston, and bring
them in here to act with us and to participate in our delibera-
tions, and nobody can countervail, — nobody. can set it aside.
.... If we have power to act in this case, it is contained in,
the Act by which we are convened ; and now I ask gentlemen
to point out the power in that Act. I can find a strong indi
cation that no such power was intended to be given. All that
has been brought to show the existence of such a power has
been drawn from precedent and the practice of other bodies.” !

§ 346. To the same effect was the speech of Hon. Joel
Parker. He said : —

1 Deb. Mass. Conv., 1858, Vol. I. p. 131.
CAN CONVENTIONS ISSUE PRECEPTS DIRECTING ELECTIONS ? 837

“ And now two questions seem to arise. One is, whether
any action can rightfully be taken for the purpose of filling the
vacancy, and having another delegate elected to represent the
town of Berlin; and, if such action may be taken, the question
occurs upon the form, whether it should be by a writ, or by a
notice, that we will admit the delegate whom the town shall
elect, and who shall present himself here, claiming the right to a
seat by virtue of that election. In relation to this last question
1 have no difficulty. So far as the mere form is concerned, it
seems to me to be altogether immaterial. I have not been per-
suaded by the remarks of the gentlemen who have preceded me,
that it would not be competent,if a vacancy exists which can
rightfully be filled, for the Convention to issue a writ or precept
to the town of Berlin to elect a member; but a mere notice to
that town that a vacancy exists, would be equally effective of
that object, in my opinion. If the town of Berlin have a right,
upon the resignation of their delegate, to proceed to a further
election, they would have the same right upon receiving a
notice that a delegate coming here and claiming a seat in the
Convention would be admitted as a matter of right. And, if a
writ should be issued, I do not understand that it would confer
any power upon the town; it would be nothing more than
issuing a precept in that particular form, to signify to the town
that they might elect, and that their delegate would be ad-
mitted when he presented himself. We are to consider this
question, Mr. President, solely as a question of right... .. But
as it comes to us as a question of right, we are called upon to
determine what the right is.

“If we are in a state of revolution, — peaceful and bloodless,
but still a revolution, — I must say that I know not what limit
there is to the power of a revolution, when it is brought into
exercise ; and, if the question is to be put upon that basis, . . .
I shall not deny the power of a revolution. The town of Ber-
lin may be represented, and anybody else may be admitted as a
delegate whom the people may choose to send here. If we are
a revolutionary body, acting without a Constitution, or any
thing of that nature to guide us, — if citizens are to come here
and act their pleasure, without regard to the manner in which
they are proceeding, they may admit one person or another to

1 Deb. Mass. Conv., 1853, Vol. I. p. 74.
338 CAN CONVENTIONS ISSUE PRECEPTS DIRECTING ELECTIONS?

take part in that revolution. The whole community may take
part in it, and the question would come up, Where are you to
find room for them to assemble and carry on their operations ?
Sir, it is well known that the argument has been advanced that
this Convention was revolutionary in its character, because the
Constitution provided no such mode in which a Convention
could legally assemble; that there was one mode provided by
the Constitution for the revision of that instrument, and any
other mode was in its nature revolutionary. For myself person-
ally, I do not entertain that opinion. I believe this Convention
to have been lawfully assembled, and that it is bound to pro-
ceed according to law; and that, when it departs from law
knowingly and understandingly, then will its proceedings be
revolutionary in their nature.” }

§ 347. To this discussion I shall add but a single observation.

Supposing the power in question not to have been given ex-
pressly in the Act calling the Convention, and looking at the
question of right alone, has a Convention, by virtue simply of its
essential nature and functions, power to -issue precepts to the
electors in the case of a vacancy, directing an election to fill it?
It certainly has no such power, unless we invert all our concep-
tions of the office and relations of the two bodies. To accord
that power to a Convention, in such a sense as that its mandate
would be binding on the electors, is to suppose the former to be,
if not sovereign, an agency of the sovereign with general dis-
cretionary powers of a legislative character, beyond the scope of
its special business — to be, in short, strictly a legislature. On
the contrary, as we have seen, both reason and authority concur
in assigning to the Convention a particular function, limited by
the Act under which it convenes, which is its charter or Con-
stitution — a peculiarity of that body which will be more fully
illustrated in a subsequent part of this chapter. If this be a
correct estimate of the nature of Conventions, the remark of
Judge Parker is just, that it is essentially immaterial what form
the precept or notice to the town might assume. It might bea
writ directing, or a notice requesting, that an election should be
held to fill the vacancy in its ranks. But in neither form would
it be of the least binding force. It would be, in substance,
merely an extra-official intimation that the Convention would

1 Deb. Mass. Conv., 1858, Vol I. p. 88.
ELECTIONS TO FILL VACANCIES. WHEN AND HOW TO BE MADE. 3839

acquiesce in whatever action the electors should deem them-
selves authorized to take. The real power, if it existed at all,
would be in the electors, and would find its source in the exist-
ing Constitution and laws, and not in the mandate of the Con-
vention.

j 348. 5. It being determined that if a vacancy can be filled
at all, it must be done by the electors, by virtue of power de-
rived not from the Convention, but from some other agent of
the sovereign, as the legislature, the next question — seemingly
unrelated to the subject of this treatise, but necessary to a com-
plete discussion of the question next following — is, Can the
electors fill such a vacancy at any time and in any manner they
may think fit, or must they look to the law for their power to
act, and consequently conform strictly to its provisions ?

If we have not mistaken the relations of the electors to the
sovereign, and to the several agencies employed by the sover-
eign to conduct the government, it is clear that little discretion
is left to them in the discharge of their functions, except as to
the individuals whom they shall, within legal limits, select to fill
the offices of the State. Their duties are always prescribed by
the Constitution, or by some statute passed in pursuance of it,
as that, on such a day or days, the electors shall assemble and
choose citizens, having determinate qualifications, for particular
offices or duties. In obeying this mandate they discharge a
trust. To allow them to enlarge or vary the terms of the trust
would be to subvert the relations of dependence imposed by the
Constitution, and to invest them with the power of self-direc-
tion—that is, measurably, of sovereignty. To some of the
agencies of government, the sovereign, indeed, gives large dis-
cretionary powers; but then those powers are of the essence of
the grant, and not to use them would be to frustrate the purpose
of the political society which made it. The grant of legislative
power is a grant of that kind. With the electors the case is
different. Their functions, as we have seen, are twofold : first, to
elect persons, generally of their own number, to office ; and, sec-
ondly, to pass, affirmatively or negatively, upon proposed changes
in the fundamental law. In the latter, which is an occasional
function, they are invested with a limited discretion, a discretion
either to approve or reject; in the former they have no discre-
tion as to measures, but only to name, out of the whole body of
340 ELECTIONS TO FILL VACANCIES. WHEN AND HOW TO BE MADE.

eligible citizens, those who are to fill the public offices. And it
is apparent that they could not safely be intrusted with any
greater power. Never assembling en masse, but exercising their
functions in isolated fragments, without concert or intercon-
nection, theirdeterminations could have coherence and efficacy
only when made in subordination to a less numerous body, pos-
sessed of adequate powers of looking before and after, of delib-
eration, as well as of announcing authoritatively the sovereign
will. Such a body only is the legislature, to which, in the ab-
sence of constitutional provisions, is committed the duty of per-
forming that very office.

§ 349. Now, to apply these principles practically, take the
case of the Massachusetts Convention of 1853, last referred to.
The Act of the legislature calling that Convention, provided, as
such Acts commonly do, that the inhabitants of the cities and
towns within the State entitled to vote for representatives to the
General Court, should assemble on the first Monday of March,
A.D. 1853, and elect one or more delegates, &c., Sec. 1.; and that
“ the persons so elected delegates” should meet in Convention in
Boston on the first Wednesday in May, &c., Sec. 3. Under
this Act, would any delegates, not “so elected,” be entitled to
seats in the Convention? Evidently not. But what is com-
prised in the terms “so elected?” The answer, it seems, should
be, “elected at the time and place, in the manner, out of and by
the class of persons respectively prescribed in the Act.” If, in
regard to any one of these particulars, as, for instance, the time
of holding the election, any departure from the Act be allow-
able, who is to determine when the electors in their several dis-
tricts shall meet? Must the meetings in the several towns and
cities, if held on another day than that appointed in the Act, be
called or “ notified” by the public authorities in the same man-
ner as the regular meetings? If so, how can this necessary
preliminary be secured? The public authorities might, in some
places, in the absence of positive instructions by law, refuse to
act. Would such a refusal be a breach of official duty? That
could hardly be maintained, since, if the time were not fixed by
a law binding upon all, or were fixed by a law whose terms
could be disregarded, it must be because the time of holding
the meetings was intended to rest in the discretion of those
authorities, and they ought not to be blamed for exercising it.
CAN CONVENTIONS RECEIVE DELEGATES IRREGULARLY ELECTED? 9341

An objection of scarcely less magnitude would be, that if elec-
tions were to be called at the discretion of the town or city
authorities in respect to the time of their assembling, as each
might act independently, the electors would be likely to assem-
ble on different days, and thus render abortive some of the most
important safeguards of the elective franchise.

Again: when an election has once been held according to the
terms of the Act, the power of the electors has been exhausted.
It is impossible to hold that they may, on any accident giving
rise to a vacancy in the office filled by them, of their own mo-
tion reassemble to fill it again. If, on the other hand, at the
time and place appointed for the election, they failed to exercise
the power given by the Act, how can it be contended that they
may, at their will, attempt to repair the deficiency in their repre-
sentation? Such a proceeding would most clearly be an abuse
of their position and power as electors. In a word, the difficul-
ties attending the allowance of spontaneous and unconnected
elections, at the instance of the local authorities, without the
authorization of law, are so great, that the right of the electors
to hold them must be wholly denied.

§ 350. 6. Another question, related to the foregoing, is, Can
a Convention receive, as lawful delegates, persons elected at a
time or in a manner not provided by law? If we have suc-
ceeded in reaching sound conclusions in relation to the questions
thus far discussed, the answer to this is at hand. If the Con-
vention cannot itself fill its own vacancies, and if the electors
cannot, without special authority of law, or cannot in contra-
vention of law, fill them, the former would have no power to
accept as lawfully elected delegates persons unlawfully elected
by the latter. Two bodies of functionaries cannot, by clubbing
their separate usurpations, give a legal character to what is
otherwise illegal. The Convention is usually, by the Act calling
it, or by the customary law of such bodies, made the judge of
the elections of its own members; that is, it is authorized to
pronounce on the conformity to law of the proceedings by which
its ranks are filled ; a power which, of course, leaves to it prac-
tically a large discretion; but that discretion is, like that of a
judge, a legal one, not its arbitrary will. When a delegate,
therefore, presents himself and claims a seat, if he cannot ex-
hibit eviderice of his having been elected according to law, he
342 CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS ?

ought to be rejected. The Convention owes to the electors no
such courtesy as to wink at their usurpations of power.

§ 351. 7. The next question, involving the relations of Con-
ventions to the electors, is, Can a Convention limit the discre-
tion of the electors in the discharge of their appropriate duties ;
as, by determining what classes of persons they may, and what
classes they shall not, elect to office ?

This question might have been discussed appropriately in a
preceding part of this chapter, in which were considered the
relations of Conventions to the sovereign. Indeed, it has very
often been put in this form: Can a Convention limit or restrict
the sovereign in the choice of its servants, as by requiring that
they shall be citizens of a prescribed age or nationality, to be
eligible to office ?

We will consider the question in both the forms indicated,
beginning with the latter.

First. Can a Convention restrict the sovereign in the choice
of its servants? ‘Strictly speaking, the question is absurd. The
Convention is but a subordinate, whilst the sovereign is the
superior, from whom is derived all its power to act, and without
whose ratifying voice what it does is wholly destitute of validity.
The one is a mere agent, with power only to do what it is bid-
den; the other, the supreme source of power in the state, able,
within the limits certainly of a moral competence, to do any
thing it may please. Of course, then, a Convention cannot
really, to any extent, bind the sovereign. It may recommend
constitutional provisions, which, if adopted and put in force by
the sovereign, will bind the latter, so far forth as it can be bound
at all, but in that case it would be the sovereign which would
limit or restrict itself, not the Convention which would bind it.
And that the sovereign can limit or restrict itself is a well-set-
tled principle. The bonds, however, by which it can bind itself,
are doubtless only moral ones, since under whatever limitations
the nation may have placed itself by voluntary regulation, it
has evidently at all times the physical ability to disregard them.
In one view, however, those bonds are of immense practical
efficacy ; it is only the sovereign body which can disrupt them
with impunity. Its servants, the various departments of the
government, are obliged to respect them or render themselves
obnoxious to punishment for disobedience. As an admirable
CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS? 843

exposition of the truth that the sovereign body can restrict itself,
T extract a passage from an argument made by Daniel Web-
ster, in the celebrated case of Luther v. Borden, in the Supreme
Court of the United States.

He said: “I have said that it is one principle of the Ameri-
can system that the people limit their governments, National
and State. They do so; but it is another principle, equally
true and certain, and, according to my judgment of things,
equally important, that the people often limit themselves. They
set bounds to their own power. They have chosen to secure
the institutions which they establish against the sudden impulses
of mere majorities. All our institutions teem with instances of
this.” After specifying the 5th Article of the Federal Constitu-
tion, restricting the right of the people to amend that instru-
ment, he continued: “ But the people limit themselves also in
other ways. They limit themselves in the first exercise of their
political rights. They limit themselves by all their Constitu-
tions, in two important respects : that is to say, in regard to the
qualifications of electors, and in regard to the qualifications of
the elected. In every State, and in all the States, the people
have precluded themselves from voting for everybody they might
wish to vote for; they have limited their own right ot choosing

They have also limited themselves to certain prescribed
forms for the conduct of elections. They must vote at a partic-
ular place, at a particular time, and under particular conditions,
or not at all.”

§ 352. Secondly. Taken in the other form, namely, Can a
Convention restrict the electors as to the persons they shall
choose to fill the public offices? the question, on the principles
before announced, is too clear for argument. Since, whatever a
Convention should regularly do by recommending to the sover-
eign, if adopted by the latter, would be the act of that sovereign,
it certainly might restrict the choice of public servants to be
made by the electors to any class it might deem best fitted for
that duty. As the sovereign is distinct from the electors, who,
like all officers of the government, are its agents, it may of
course dictate law or rules of action to them as to the others,
and it can without doubt do it through a Convention. But the
reservation must be again made, that in affirming that a Con-

1 7 How. R. 1, contained in Vol. VI. of Webster’s Works, pp. 217, 224.
844 CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS?

vention has power to limit or restrict the electors, it is meant
that it may do so by constitutional provision, enacted according
to the principles of our Constitutions; that is to say, by the
Convention recommending it, the fiat being left to the people,
or by the Convention alone enacting it directly, as 1ts commis-
sion should determine. \

§ 353. In one or other of its two forms, this question has sev-
eral times been made the subject of discussion in our Conven-
tions. It was very ably considered, upon abstract principle, in
the New York Convention of 1846, and I deem ‘it of sufficient
interest to warrant me in giving a few extracts from speeches
made in that body upon the different sides of the question. A
section had been proposed to be embodied in the new Constitu-
tion, by which eligibility to the office of Governor was to be
confined to citizens of the United States, thirty years of age,
who should have been five years resident in the State prior to
their election. Opposition was made to it on the grounds, first,
that it was improper or inexpedient; and, second, that it would
prove futile, inasmuch as the sovereign could not be bound by
such restrictions. ,

Upon the general question, Mr. Charles O’Connor said: “ Let
us, however, for a moment, recur to principle, and see whether
there is a propriety in retaining any of these qualifications. In
every democratic state, the constituent body is the supreme
power, and in it repose all the powers of government that men
can legitimately exercise over themselves or others. In such a
state, it is the province of the fundamental law to ascertain
what persons shall form the constituent body or governing
power in the state, and then to limit and define, with as much
exactitude as practicable, the powers and duties of the agents
of the people, or, in other words, the several departments of the
government, to the end that the rights of individuals may suffer
no detriment from their exercise. It was the proper province
of such an instrument,” he repeated, “ to ascertain the constitu-
ent body, in which resided the supreme power. In the nature
of things, that body never could embrace all within the protec-
tion of the state, and who were to be governed by its laws.
Some must be too young to participate in the governing power.
Others, again, too advanced in life to take part in it. It was a
question whether females should constitute part of the governing
CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS? 2345

body. It was a proper subject of consideration whether persons
convicted of crime shall be permitted to form part of the govern-
ing body. It was a proper subject of consideration whether par-
ticular classes of persons — he would mention negroes, Indians,
aliens, and, if you pleased, naturalized citizens — should form
part of the constituent body. And, in laying down rules for de-
termining who were the constituent body, we did not lay restraints
on the people — we only ascertained who the people were. And,
having ascertaired that, it was a principle not to be departed
from, that in a democratic form of government no restraint
should be laid on them in their sovereign capacity, where the
whole people acted for the purposes of the government. This
doctrine was quite consistent with the existence of provisions
declaring what persons should be eligible from a particular pre-
cinct to the Senate or Assembly; for a portion was not the whole
people, and where power was thus delegated to a portion of the
people to elect a member of Assembly, who might enact laws
affecting the interests of the whole, the latter having no other
check on the election in the precinct or district, might rightfully
retain the selection to individuals having prescribed qualifica-
tions. What restraints ought to be imposed in such cases was
another question. But, when we come, as in case of the Gov:
ernor, to an election in which all participate, an exercise of the
power of choice by the whole people, acting in their sovereign
capacity, every one of the constituents or governing body hav-
ing a vote, he insisted that no restraint should be imposed. The
field of selection should be free and unrestricted.” }

§ 354. On the other hand, the very evident fallacies contained
in this reasoning were ably exposed by Mr. Ruggles, Mr. Mar-
vin, and Mr. Porter. ‘The last-named gentleman, after showing
that the right of suffrage and of eligibility to office are derivative
and not natural rights, adverting to the argument of Mr. O’Con-
nor, said : —

“T submit to that gentleman, that in his argument there was
a fatal fallacy. The gentleman says it is our right to deter-
mine who the people are, by fixing the qualifications of electors.
That, having determined who the people are, we cannot re-
strict their power to elect. Sir, the electors are not the people.
They are only a part of the great whole. The people comprise

1 Deb. N. Y. Conv., 1846, p. 201.
816 CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS?

all. You have a Bill of Rights to protect them in the enjoy-
ment of life, property, and liberty. Does this extend only to
qualified electors? No, but to every man, woman, and child
within the dominion of your laws. These constitute the peo-
ple, and we are their representatives. The gentlemen deny our
right to restrict any thing but delegated power. Why, sir, the
power of the electoral body itself is a delegated power; not in
form, but in effect!— by the necessity of the social compact.
We were elected only by qualified voters. But we are the rep-
resentatives of all. Those electors themselves were but the
representatives of the people. Four hundred and fifty thousand
electors act for two millions and a half of citizens. Nay, more;
two hundred thousand electors may constitute a plurality. Shall
those two hundred thousand —a minority even of the electoral
body — without restriction or barrier, select whomsoever they
please to rule over two and a half millions of freemen? We
have a female population of one million two hundred and
ninety-three thousand, — three times the number of your whole
electoral body. They have as deep an interest in this govern-
ment as you, — nay, a deeper interest. If your laws prove dan-
gerous to liberty, you can unmake the work of your own hands.
You are clothed with the power of the ballot-box. You have
the strong arm to resist unto blood. They are voiceless, power-
less, defenceless. Are not we their representatives here? There
are more citizens under than over twenty-one years. They have
more interest than we in the Constitution we are to frame.
They are to survive us and the electors who sent us here... ..
We represent not the mere party which nominated, not the mere
voters who elected us, but the whole people of New York, of
every sex, and of every age and condition — aye, and the suc-
ceeding millions, whose constitutional rights we are now assert-
ing..... When, therefore, we convene as the representatives
of a free people, to discuss elementary principles of constita-
tional law, let us discard the spirit of the demagogue..... It
devolves upon us to perpetuate the privileges of our citizens, and
to guard our institutions from danger in the distance, whether
menaced by legislative corruption, by popular excitement, by
partisan frenzy, or by the encroachments of power.” ?

1 It is clearly so, both in form and effect.
2 Deb. N. Y. Conv., 1846, pp. 249, 250.
CAN CONVENTIONS LIMIT HE DISCRETION OF THE ELECTORS? 347

The result of the debate was, that a clause containing the
restriction indicated was embodied in the Constitution.

§ 355. In the Louisiana Convention of 1844, the same ques-
tion was considered in its relations to the Constitution of the
United States. The standing committee upon the executive
department reported to that Convention a provision, the mate-
rial part of which was as follows: “ No person shall be eligible
to the office of Governor or Lieutenant-Governor, except a na-
tive citizen of the United States, or an inhabitant at the time of
the cession to the United States of that portion of territory in-
cluded in the present limits of the present State of Louisiana,

. and who shall not have arrived at the age of thirty-five
years.” A motion was made to strike out all after the word
“ except,” down to the words *‘ State of Louisiana,” upon the
ground, that the proposed restriction was repugnant to the Con-
stitution of the United States. A debate thereupon sprung up,
which was participated in by the ablest men in the Convention,
Mr. Brent, Mr. Soulé, Mr. Benjamin, and others, and which
resulted in modifying the clause so as to require a person, to be
eligible to the office of Governor or Lieutenant-Governor, to
have attained the age of thirty-five years, and to have been fif-
teen years a citizen and resident of the State — the friends of
the restriction thus sustaining a defeat.

The course of argument upon the question was as follows : —

§ 356. By those who were opposed to the restriction indicated,
it was urged, that the clause objected to was repugnant to the
Constitution of the United States; that if the Convention could
confine eligibility to native citizens of the United States, it
might also confine it to native citizens of Louisiana; that by
the fourth paragraph of the eighth section of the first article of
the Federal Constitution, it was declared, “ that Congress shall
have power to establish an uniform rule of naturalization
throughout the United States;” that by the first paragraph of
the second section of the fourth article, it was provided, on the
other hand, that “the citizens of each State shall be entitled
to all the privileges and immunities of citizens in the several
States;” that, by the paragraph first cited, the several States
ceded to the general government all control over the subject of
naturalization, and that the legislation of Congress on the sub-
ject, therefore, if any had been had, must be regarded as para-
348 CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS?

mount and supreme; that two questions thereupon arose —
Had this power been exercised by the general government? and
if so, Could its action be nullified by the authority of one of
the States? That to the first question the answer was, that
Congress had exercised the power, by declaring that immigrants
to this country who should reside here five years, and pursue
certain formalities, should be entitled to all the rights and priv-
ileges of American citizens ; that to the other question, the only
response was, that the legislation of Congress on the subject
could not be counteracted or set at nought by any exercise of
power on the part of the States; that it could not be doubted
that the Convention had power to prescribe any qualification it
pleased for him who aspired to the office of Governor, provided,
however, that it did not contravene the provision cited from the
fourth article, by making any distinction between American citi-
zens; that the effect of the proposed restriction would be to
discriminate against the naturalized citizen; that a foreigner,
naturalized, let it be supposed, in the State of Illinois, under
the Act of Congress, and so admitted to all the rights of citi-
zenship, and eligible, under the laws and Constitution of that
State, to all offices created by them, would instantly, on remov-
ing to the State of Louisiana, be struck with disability, and be
disqualified to hold the office of Governor, whereas no such
prohibition would extend to the native citizen of that or any
other State; which would clearly violate that clause of the
Federal Constitution which declares that “the citizens of each
State shall be entitled to all the privileges and immunities of
citizens in the several States.” !

§ 357. On the other hand, the advocates of the proposed
restriction contended, that the provision of the Federal Consti-
tution, that “the citizens of each State shall be entitled to all
the privileges and immunities of citizens in the several States,”
did not mean that they should be invested with all the rights
which could be enjoyed by any citizen, but such only as flowed
from the mere fact of citizenship, irrespective of other qualifica-
tions; that, accordingly, under this clause of the Constitution,
no citizen of one State, migrating to another, could there claim
to be a_ oter or to be eligible to office, unless mere citizenship,
without >ther conditions, under the Constitution or laws-of such

1 See speeches of Messrs. Beatty, Brent, and Soulé, in Deb. La. Conv., 1844,
pp. 206, 207, 211.
CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS? 349

other State, entitled its citizens to those privileges; that the
conduct of the founders of the Federal government indicated
that it was not their intention, by the provision in question, to
throw open all political rights to all citizens without qualifica-
tions, for they restricted eligibility to the offices of President and
Senator in Congress to persons having prescribed qualifications
as to age and citizenship; that, although it was true, that the
Constitutions of most of the States contained no clause similar
to the one proposed, such a clause was contained in six of those
Constitutions, amongst them that of Virginia, framed in 1829-
30, by a Convention which reckoned among its members some
of the ablest men ever known in the Union, one of them a dele-
gate to the Federal Convention of 1787, such as Monroe, Madi-
son, Marshall, Patrick Henry, John Randolph, and Giles; that
in that Constitution it was provided, that no man should be
Governor of Virginia unless he was, — Ist, thirty years of age;
2d, a native-born citizen of the United States; 3d, five years a
resident of the State; that, moreover, the action of Congress
in admitting into the Union States whose Constitutions con-
tained the restriction complained of was evidence tending to the
same result; that the three States of Arkansas, Missouri, and
Alabama, were the States referred to, and it being absolutely
necessary, before they could be admitted, that their Constitu-
tions should have been submitted to the Congress of the United
States, to determine that no provision had been inserted therein
which would clash with the Federal Constitution, when Con-
gress had passed upon those instruments and admitted those
States under them, no other or stronger evidence could be de-
sired, that they did not conflict with the Federal Constitution ;
that to hold the contrary would be to maintain, that on three
several occasions the Representatives and Senators in Con-
gress and the Presidents of the United States had asserted an
unconstitutional restriction to be a constitutional one.

§ 358. Notwithstanding the adverse decision, if it must be so
regarded, of this question in Louisiana, I am satisfied they
were right who maintained the existence of power in the Con-

_vention to make the restriction.

1. It is important to note, that in the provision of the Federal
Constitution, that “the citizens of each State shall be entitled

1 Deb. La. Conv., 1844, p. 220.
350 CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS?

to all the privileges and immunities of citizens in the several
States,” the words, “in the several States,” qualify the word
“entitled,” and not the nearer word, “ citizens ;” so that, arrang-
ing the words according to their grammatical relations, the pas-
sage would read thus: “the citizens of each State shall be
entitled in the several States to the privileges and immunities
of citizens.” ‘Were those words to be taken as qualifying the
word “citizens,” the Federal Constitution would be made to
give to every citizen, wherever he might be in the Union, all the
privileges and immunities enjoyed by citizens in any State; that
is, supposing the office of Governor were, in the State of Ala-
bama, thrown open to all the citizens of Alabama, the Federal
Constitution would then step in and secure the same privilege
to the citizens of each State, in their several States. The phrase-
ology used, however, properly understood, has no such wide op-
eration. By it, a citizen, migrating from any State to another
State, would be entitled, in the latter, to such privileges as were
there accorded to the possession of mere citizenship, under its
.aws. Thus, a citizen of New York, migrating to New Jersey,
would not be an alien, but a citizen of New Jersey, and, as
such, entitled to enjoy such privileges and exercise such rights,
as the State of New Jersey allowed indifferently to all its citizens.

§ 359. It is, therefore, a matter of importance to ascertain
what are “the rights of citizens in the several States;” that is,
the rights attaching in the several States to naked citizenship ;
for such rights only are guaranteed by the constitutional pro-
vision cited.

It is believed, that the rights attaching in the several States to
the possession of mere citizenship exist not by positive law, but
by the principles of the common law, or by those of public law.
It is then in the decisions of courts of law, and in the writings
of publicists and jurists, that we must look to determine what
those rights are.

A clear exposition of those rights was made at an early day
by Mr. Justice Washington, in a case which has been a leading
authority upon the subject ever since. The State of New Jersey
having passed an Act confining the right of fishing for oysters
in its waters to its own citizens, the question was raised in that
case, whether the Act was not in violation of Art. IV. § 2, of

1 Corfield v. Coryell, 4 Wash. C. C. R. 371.
CAN CONVENTIONS LIMIT THE DISCRETION OF THE ELECTORS? 351

the Federal Constitution. After stating the question, Justice
Washington said :—

“The inquiry is, what are the privileges and immunities of
citizens in the several States? We feel no hesitation in confin-
ing these expressions to those privileges and immunities which
are in their nature fundamental; which belong, of right, to the
citizens of all free governments; and which have at all times
been enjoyed by the citizens of the several States which com-
pose this Union, from the time of their becoming free, inde-
pendent, and sovereign. What these fundamental principles
are, it would perhaps be more tedious than difficult to enumer-
ate. They may, however, be all comprehended under the fol-
lowing general heads: protection by the government, the enjoy-
ment of life and liberty, with the right to acquire and possess
property of every kind, and to pursue and obtain happiness and
safety; subject, nevertheless, to such restraints as the govern-
ment may justly prescribe for the general good of the whole.
The right of a citizen of one State to pass through or to reside
in any other State, for the purposes of trade, agriculture, profes-
sional pursuits, or otherwise ; to claim the benefit of the writ of
Habeas Corpus; to institute and maintain actions of any kind
in the courts of the State; to take, hold, and dispose of prop-
erty, either real or personal; and an exemption from higher taxes
or impositions than are paid by the other citizens of the State,
may be mentioned as some of the particular privileges and im-
munities of citizens, which are clearly embraced by the general
description of privileges deemed to be fundamental; to which
may be added the elective franchise, as regulated and established
by the laws and Constitution of the State in which it is to be
exercised.”

§ 360. That the right to vote or to be elected to office, irre-
spectively of the qualifications prescribed by the laws of the
State to which a citizen may remove, is not one of the privi-
leges and immunities intended by the Federal Constitution, is
clearly inferable from the last clause of this extract. The same
opinion has been expressed by our best constitutional lawyer,
Daniel Webster. Thus, in an argument before the Supreme
Court of the United States in the case of The Bank of the Uni-
ted States v. Primrose! Mr. Webster, referring to the article of
the Constitution in question, said :-—

1 Webster’s Works, Vol VI. p. 112.
352 CAN ELECTORS INSTRUCT THEIR DELEGATES TO CONVENTIONS ?

“That this Article in the Constitution does not confer on the
citizens of each State political rights in every other State, is ad-
mitted. A citizen of Pennsylvania cannot go into Virginia and
vote at an election in that State; though when he has acquired
a residence in Virginia, and is otherwise qualified, as required
by her Constitution, he becomes, without formal adoption as a
citizen of Virginia, a citizen of that State politically. But for
the purposes of trade, commerce, buying and selling, it is evi-
dently not in the power of any State to impose any hindrance
or embarrassment, or levy any excise, toll, duty, or exclusion,
upon citizens of other States, or to place them, coming there,
upon a different footing from her own citizens.” !

§ 361. From the reasonings above given, it is plain, that mere
citizenship of a State does not carry with it a right to enjoy all
the privileges and immunities conferred upon any citizen, but
only certain civil rights, resting on natural law, but needing for
their practical enjoyment the guaranty of government. It would,
perhaps, express the whole truth to say, that the rights to which
one is entitled from the naked fact of citizenship, are those usu-
ally guaranteed by our Bills of Rights. It is equally apparent
that there are privileges and immunities enjoyed by some cit-
izens, by reason of special qualifications, that are not conferred
upon all citizens, though none but citizens can enjoy them —
privileges and immunities that spring from positive law, such as
to vote and to hold office. The former are denominated civil,
the latter, political rights.

In assuming, then, as did the Louisiana Convention of 1844,
to restrict eligibility to the office of governor, to native-born cit-
izens of the United States, that body did not, in my view, tran-
scend its power or contravene the Federal Constitution. The
question as to the expediency of such a restriction, is a different
one, which it is unnecessary here to discuss.

§ 362. 8. The last question, involving the relations of Con-
ventions to the electors, which I propose to consider, is — Have

1 To the same effect, see Amy v. Smith, 1 Littell R. 333; Campbell v. Mor-
ris, 3 Har. & McHen. R. 554; Murray v. McCarty, 2 Munf. R. 898; Austin ».
The State, 10 Mo. R. 592; and the opinion of Justice Curtis in the case of Dred
Scott v. Sandford, 19 How. (U. 8.) R. 580-584. See also the remarks of Chief
Justice Spencer, Col. Young, Mr. Radcliff and others, to the same effect, and of
Mr. Jay, Mr. Van Vechten, Mr. Livingston, Mr. Kent (Chancellor Kent) and

others, to the contrary, in the New York Convention of 1821, in Deb. N. ¥.
Conv, 1821, pp. 1838-202.
CAN ELECTORS INSTRUCT THEIR DELEGATES TO CONVENTIONS? 853

the electors power to instruct their delegates, and if so, to what
extent, or under what conditions ?

This question arose as a practical one in the Ohio Convention
of 1850, but was not discussed, the member, for whom the in-
structions were intended, refusing to obey them, but resigning
his office, with the acquiescence of the Convention. As I deem
the right of instruction, as asserted in this case, more than doubt-
ful, a brief statement of the facts, and of the principles which.
in my view, ought to govern it, will not be out of place.

The Ohio Convention of 1850 having been called, in anticipa-
tion of the election of delegates thereto, a public meeting was
held * of the democracy of Butler County,” at which resolutions
were passed instructing the delegates who should be chosen from
that county, to support, in the Convention, the doctrine of the
repealability of charters of incorporation, as well those then ex-
isting as those that might be granted in the future. Mr. Vance,
a candidate for the Convention, from Butler County, in a com-
munication to his constituents, published before the election,
refused to subscribe to the platform thus laid down for him, but
was nevertheless elected by a large majority. The Convention
having assembled, a clause was proposed to be inserted in the
Constitution, giving to the legislature unlimited power of repeal-
ing such charters. The course of Mr. Vance upon this subject,
not being satisfactory to the “democracy of Butler County,” a
meeting of the latter was again called, at which the instructions
to their delegates were repeated and emphasized, and those del-
egates were requested to adhere to them strictly or to resign.
Mr. Vance chose to do the latter, not distinctly admitting the
instructions to be binding on him, but being unwilling to be
placed in a position which would carry with it even the appear-
ance of disobedience to the will of his constituents.

§ 363. As bearing on the general question of the right of in-
struction, the following observations seem to me to be pertinent
to this case.

1. The function of a Convention being, when considered in
the light of theory, advisory merely, and that of the particular
Convention in question having been made so by the Act of As-
sembly, under which it convened, since the latter expressly
required the submission of the Constitution to be framed by
it to the people, it would seem to be an act of absurd inconsist-
354 CAN ELECTORS INSTRUCT THEIR DELEGATES TO CONVENTIONS ?

ency for the people, or any part of the people, forming an elect-
oral district, to instruct its delegates. It would be simply to ask
advice, but first to dictate to the advising body what its advice
should be! .

2. But the Ohio case was more absurd than that. It was not
the people of Ohio, or, even, what might by analogy be called
the people of Butler County, that assumed to issue instructions
in that case. It was “the democracy of Butler County,” the
inembers of one of its political parties, — comprising, perhaps, a
majority of its legal voters, and perhaps not, — who presumed to
discharge that delicate duty. It is doubtful if the dogma of
squatter-sovereignty ever produced an act of greater insolence
or absurdity than this. Whatever the delegates to the Con-
vention represented, they certainly did not represent the “ democ-
racy of Butler County,” who, therefore, had no more right to
instruct them than had the milkmaids or the barbers of Butler
County. If those delegates represented anybody within the
county, it was the electors there residing, without distinction of
party, of whom the election expressed the collective will. If the
right of instruction were conceded to any designated section of
the electors, acting, not as electors, but in a party or other pri-
vate capacity, it could not be denied to every individual voter.
For, in such a case, the right would be accorded to them, not as
being the majority of the electors, since the term majority is
relative to the entire electoral body only, but as constituting the
party or section, whether less or more than the majority —a
right which could rest only on the sovereignty of the individual
elector.

§ 364. 3. Finally, I observe, that the right of instruction, if
it exists at all, must inhere either in the sovereign, or in some
body representing the sovereign, and that in either case, the elect-
oral body of any particular district would be incapable of exer-
cising the right. The electors are not the sovereign, though as a
body they unquestionably are the representatives of the sovereign,
and whatever they do, as such, within constitutional limits, must
be considered as done by the sovereign itself. If that body were
to publish instructions to a Convention in reference to the meas-
ures it should consider or report, whatever might be thought of
the expediency of its interfering thus, neither their right to do
so, nor the consequent duty of obedience on the part of the del
RELATIONS OF CONVENTIONS TO THE EXECUTIVE AND JUDICIARY. 355

egates could well be denied.!| But with the electors of any
particular electoral circle, the case is widely different. They do
not, in a strict sense of the term, represent the sovereign. They,
together with their co-electors throughout the State, are its rep-
resentatives. Their voice, therefore, though an eleinent in that
which is to be taken as the voice of the sovereign, is not itself
that voice. The voice of the sovereign is a chorus, made up
of the separate voices of all the electors; it is the resultant of
those separate voices. It follows, therefore, first, that instruc-
tions, if given by the electors at all, must emanate from the
entire electoral body, as no otherwise could they be authentic;
and, secondly, that they must be addressed to the assembly of
the delegates and not to the single delegate, or to a less num-
ber than the entire body.

With the question, Whether instructions can be given to a
Convention by any body of persons in the State beside the
electors, as by the legislature, I do not now concern myself,
since it will be the subject of special inquiry in the following
chapter of this work.

§ 365. Thus far, I have considered the relations of Conven-
tions to the sovereign body, and to the electors, its immediate
representatives. I proceed now to discuss the relations of those
bodies to the other governmental agencies, commonly styled the
Legislative, Executive, and Judicial Departments, and to in-
quire into the powers and disabilities resulting to them severally
on account of those relations.

§ 366. (d). 1. With the Executive and Judiciary of a State,
a Convention has, in the ordinary and normal operation of its
government, no direct relations. Neither of these departments
has any thing to do with calling it together, except in perhaps
rare cases, in which some specific and extraordinary duty has
been prescribed to it by the legislature; and neither of them,
while a Convention is in session, has any occasion to come in
contact with it. The only cases in which either of those depart-
ments could be brought into direct relations with that body,
would be where the latter should attempt to direct it in the dis-
charge of its constitutional duties, —a case which has already
been considered, — or in which one of the former should at-
tempt to revolve outside its proper orbit, and thus bring about

1 See post, §§ 376-383, where this question is more fully considered.
856 RELATIONS OF THE CONVENTION TO THE LEGISLATURE.

collisions with the latter. Inasmuch, however, as neither of the
three could with any show of right do any act which should re-
sult in such a collision, except when acting in assumed con-
formity to some law, giving to usurpation an apparent legality,
no questions could arise between them as to their respective
powers, which would not resolve themselves into questions as to
the relative powers of Conventions and legislatures, the only
law-making bodies, save the electors, which have been already
considered, known to our Constitutions. I shall therefore spend
no time in considering the relations of those two departments to
Conventions, but pass to those which the latter bear to legis-
latures, and the powers resulting therefrom, which belong to
each of those bodies.

§ 367. 2. From a variety of causes, the relations of a Con-
vention in any State to its legislature give rise to questions of
the greatest moment and of the greatest difficulty. It is possible
to comprehend and to estimate, relatively to each other, these two
bodies, only by ascertaining, first, their respective relations to
the sovereign; and, secondly, their mutual resemblances and
differences of structure and function. Of these, the first has
so frequently been the subject of consideration in previous chap-
ters, that it is now only necessary to recapitulate some of the
leading features of those bodies as they stand related to the
political society in which they are convened. We have seen that
both Conventions and legislatures are agencies appointed by
the sovereign for purposes of its own, connected with the forma-
tion, the renewal, or the operation of government, the func-.
tion of each being a legislative one; that to the former are in-
trusted certain duties relating to the framing of the fundamental
laws, extending in some cases, according to their commissions,
to the definitive enactment of them; and to the latter the en-
actment of the ordinary or statute law; that, laying out of
view those rare cases in which powers of definitive action are
given, Conventions are not strictly representative bodies, but
rather collections of delegates, so confined and restricted by the
nature of their duties and by the customary law pertaining to
them, that they are essentially nothing but mere committees;
that, on the other hand, legislatures are invested with so wide
a discretion, and such power of definitive action, that they are
entitled to be ranked as par excellence representative bodies ;

1
RELATIONS OF THE CONVENTION TO THE LEGISLATURE. 357

that both are, nevertheless, responsible for the exercise of power
to its source, the sovereign, but to a different extent and in a
different manner; the responsibility of the former being ordi-
narily more direct, inasmuch as its office is “ to recommend, but
to conclude nothing,” submitting the fruit of its deliberations to
the electors; that of the legislature, on the other hand, being
remote and indirect, since its function is to determine absolutely
the right and the expedient in the current life of the State, subject
only to reversal, or, in extreme cases, to punishment for error or
malfeasance in that office. Both Conventions and legislatures,
then, equally sustain the relation of instruments through which
the sovereign executes its will; they are both creatures of the
Constitution, the principles and provisions of which are, during
their existence, in full operation, and constitute their charter ;
and hence they are to be viewed as parts of a system of codr-
dinate but mutually inter-dependent agencies, the powers and
jurisdiction of which are to be ascertained from a study of that
system and not of each agency dissociated from the others.

§ 368. In point of structure, the two species of bodies differ
widely from each other. The Convention is composed of a
single chamber, and the legislature, in all the American govern-
ments, and in most liberal ones abroad, of two chambers, codr-
dinate in authority, but representing different constituencies, and
often different interests. By this diversity a Convention is
readily seen to be theoretically less adapted for final action than
a legislature. It is liable to the objection so fatal to single
legislative assemblies, that it is prone to hasty and passionate
determinations, and is, therefore, a ready instrument of faction
and revolution. In matters which should appeal directly to the
prejudices of its members, it could not be relied upon as just or
wise. Such, so far as its structure is concerned, is likely to be
the character of a Convention. A compensating influence,
however, is afforded by the subject-matter of its deliberations.
The fundamental law, while it is infinitely more important than
the ordinary municipal law, to frame which is the province of a
legislature, bears less nearly upon the dominant interests or
passions of men, and hence it might so far be left safely to be
moulded by a single chamber, even were its action to be final.
When it is considered, however, that the action of Conventions
is ordinarily not final, but reeommendatory merely, the objec-
358 RELATIONS OF THE CONVENTION TO THE LEGISLATURE.

tions to their structure which have been noted are seen to be of
much less weight.

§ 369. An important analogy between Conventions and legis-

‘latures relates to the qualifications for membership of those
bodies. As we have already seen, the members of our legisla-
tures are uniformly required to be elected from citizens of pre-
scribed age, sex, and social conditions, that is, from the body of
the electors. This is a matter which is carefully ascertained in
our Constitutions. In relation, on the other hand, to the per-
sons who shall be eligible as delegates to our Conventions,
those instruments are commonly silent.!. From this fact the in-
ference has been drawn, that, in the absence of specific qualifi-
cations, it was intended that the electors should exercise perfect
freedom of choice, and that it would be competent for them to
depute as their delegates minors, or females, or citizens of other
States. But this is a matter of doubt; for, as shown in a pre-
vious chapter, analogy, as well as the principles of popular gov-
ernment, seem to restrict the holding of public functions to the
class in whom rests, as the nearest representatives of the sover-
eign, the practical exercise of sovereign rights, namely, that of
the electors. Accordingly, as there stated, equally when the
qualifications of delegates have, and when they have not, been
prescribed, the choice of them has been almost uniformly con-
fined within the limits determining the minimum qualifications
of the electoral body.

§ 370. In respect of their functions, there is also an analogy,
which is at the same time a contrast, between Conventions
and legislatures. Both, as we have seen, belong to the genus
legislature. That is, they are both charged with the elaboration
or the enactment of laws. Where they differ is in the kind of
law with which they are concerned, and in the extent of their
agency in its formation.

1. A Convention participates directly in the enactment of the
fundamental law only. Indirectly, it may determine the limits
or the general character of the municipal law, but it never
rightfully assumes to enact, or even to recommend it, except
when that law has passed over from the experimental to that
which is truly fundamental. Whatever it does, however, in the

1 See ante, §§ 267-269, in which the exceptions are stated, where the quali-
fications of delegates are prescribed.
RELATIONS OF THE CONVENTION TO THE LEGISLATURE. 359:

sphere accorded to it, it does merely by way of recommenda-
tion to the body behind it, by whom its recommendations are to
be adopted or rejected. A Convention, therefore, is a legisla-
tive body only sub modo, having some, but not all, legislative
functions.

2. A legislature, on the other hand, is a body possessed of
much broader powers. Though responsible to the sovereign
that created it, it is its function to express authentically the will
of the sovereign in relation to all emergencies of the social state,
so far at least as it has not been manifested by the Constitution.
It is the body which pronounces the statute law of the State.
All measures relating to the conduct or to the rights of indi-;
viduals, to the administration, or defence of the government,
which are not prohibited by the fundamental law or by the moral
code,! and which yet are deemed, on a large view of the public
interests, to be expedient, are within the competence of a legis-
lature with the general powers of legislation conferred by our
Constitutions.

§ 371. To this general statement of the extent of the power
of our legislatures, the proviso must be appended, that the
measures passed by those bodies must not be of the character
denominated fundamental. The necessity of this proviso is ap-
parent from the character of the American governments, before
referred to, as distinguished from that of Great Britain, after
which they were modelled. The Parliament of Great Britain is
possessed of all legislative powers whatsoever. It can enact
ordinary statutes, and it can pass laws strictly fundamental.
Not so with our legislatures. Saving the single case, to be
noted in a subsequent chapter, in which, by express constitu-
tional provision, they act in a conventional capacity, in the way
of recommending specific amendments to their Constitutions,
they have no power whatever to amend, alter, or abolish those
instruments. Subject, however, to this limitation, a legisla-
ture, under our system, may expatiate through the whole do-
main of the expedient, as fully as the sovereign itself could do,
were it to act in person.2 The propriety of such an adjustment

1 But, that a Convention has power to trample on the moral code, or, as
it is termed, “to annul perfect rights,” see M‘Mullen v. Hodge, 5 Texas R. 34.
See also Warren v. Sherman, id. 441,

2 This description of the limits of legislative power is applicable only to the
860 RELATIONS OF THE CONVENTION TO THE LEGISLATURE.

of powers is apparent from the consideration, that whatever is
expedient to be done, within the limits imposed by the funda-
mental law, and whatever, therefore, it may presume the sov-
ereign, in the case supposed, would order to be done, some
agency, in all governments pretending to be adequate to per-
petuate their own existence, must have authority to do. The
formation and establishment of the fundamental law is, in all
the American Constitutions, regularly the work of Conventions
acting in conjunction with the electors. On the other hand, no
fact is better settled than that, beyond the province thus spe-
cially set apart for them, neither Conventions nor the bodies of
electors have any legislative power. ‘They can neither of them
pass any law comprised within the sphere of ordinary legisla-
tion.

§ 372. In relation to legislatures proper, however, we repeat,
it is well settled, that under the general grant of legislative
powers contained in our State Constitutions, they are compe-
tent to pass all laws whatsoever, not fundamental in character,
and not prohibited either by the laws of morality or by the Con-
stitutions to which they are subject, State and Federal. Within
these limits, the only question our legislators are bound to ask
is, Is the law proposed an expression of what is truly expedient
to be done? Nor is there any subject so sacred but that legis-
lation may be made to affect it, provided the boundaries above
prescribed be not passed. And although a legislature is but one
of many coérdinate departments in the government of a State,
to each of which a separate and generally well-defined sphere
of activity is set apart, it is yet possessed of powers the most
wide-reaching of all— powers most nearly sovereign, and in a
certain sense supplementary to those of all the others. Some
of these powers are vested in the legislature in express terms by
the Constitution, and others devolve upon it by necessary impli-
cation, as being involved in the general grant of legislative

State legislatures. That of the Congress of the United’ States is more limited,
being confined to legislation upon subjects expressly defined in the Federal Con-

stitution.

1 The debates of our Conventions are full of disavowals of a right on the
part of those bodies to pass ordinary laws. In a few cases, nevertheless, it must
be admitted, that right has been claimed as a part of a general claim of all sov-
ereign powers. It has never been practically asserted, however, except in a few
doubtful cases, which will be considered hereafter.
RELATIONS OF THE CONVENTION TO THE LEGISLATURE. 361

power. Thus, to the legislature it is commonly left to deter-
mine the details of the organization, and ofter the operation of
the other departments ; as, for instance, the times of assembling
of the electors and of the judiciary ; the modes of their proce-
dure, and in the case of the latter, the establishment of its cir-
cuits and of its inferior tribunals; the election, in certain cases,
of executive or judicial officers; in other cases there is cast upon
it or upon its presiding officers the exercise of the functions of
those two departments. Instances of these powers occur on
every page of our Constitutions.

§ 373. Of powers implicitly granted, instances are ‘equally
numerous. The most striking are those which occur daily upon
the happening of unexpected events requiring instant legislative
interposition to prevent evil consequences or to make them
subservient to the public good. In all such cases it is the legis-
lature that is called upon, as alone possessing the power to do
or to authorize what is deemed necessary to be done. Such
conjunctures commonly find the executive of the State or the
judges inert, because powerless, unless indeed they should seize
the power to do without law what law alone could render legiti-
mate. The theory of our governments leaves no necessity for
such usurpation, except in the single case of inadequate consti-
tutional power ; as, where the acts clearly necessary for the pub-
lic safety have been directly prohibited by the Constitution.
Bating this extreme and perhaps improbable case, there remain
those, infinite in number, in which our legislatures, under a grant
of general legislative powers, are enabled to supplement the
other departments of the government, and to make lawful pro-
vision for the unforeseen exigencies of the State.

§ 374. Now let it be noted, that for the purposes and in the
crises indicated, the legislature is the only agency competent to
act. The electors certainly could not do it, for it is their sole
and exclusive function — and they are adequate to no other — to
elect to office and to pass in a general way upon propositions
for constitutional change; the executive could not do it, for its
business is simply to carry into effect laws passed by the proper

. law-making authority ; it cannot deliberate; nor could the judi-
ciary do.it; for their province is limited to the interpretation of
laws, and to their application to the complicated maze of facts
arising in life and business. If neither of these is competent to
862 CAN THE LEGISLATURE BIND THE CONVENTION ?

authorize what is expedient to be done in political or social emer-
gencies, unless the legislature could do so, the State would be
left utterly powerless, except where there could be shown an ex-
press constitutional provision covering the case —a condition
likely to be but rarely fulfilled.

§ 375. Finally, in any crisis calling for legal authority to act,
and where no constitutional provision, either permissive or re-
strictive, exists, if the legislature take upon itself, within the
limits of a wise expediency, the power to act, to give the requi-
site authority and direction, there is no department of the gov-
ernment that can question its right to do so; and not only that,
but a failure to act would stamp it as false to its duty. Having
all legislative power within the limits indicated, the making of
such provisions of law as are needed to save the State from
inconvenience, loss, or danger, defines precisely the legitimate
exercise of that power. To do it is its imperative duty. For
that it is constitutionally competent, and all departments of the
government, all agents and representatives of the sovereign,
charged with collateral functions, are bound, within the scope
of that power, to obey its behests, as the authentic expression
of the will of that sovereign.!

§ 376. Having thus two legislative bodies, whose spheres of
operation are distinct, though conterminous, it is obvious that
numerous questions may arise between them as to their relative
jurisdictions and powers. Of these, such as it is desirable for
us now to consider are reducible to. the following heads, which
will be considered in their order, namely :—

(a). Questions relating to the power of legislatures to bind
Conventions, or, what is the same thing, of Conventions to nul-
lify Acts of their respective legislatures; and

(b). Questions as to the power of Conventions to legislate or
to exercise functions imposed by the Federal Constitution espe-
cially upon legislatures.

(a). 1. Among the questions of the first class the most gen-
eral and important is this: admitting the right of a legislature
to call a Convention into being by some legislative Act, has it
the further right to impose conditions, restrictions, or limitations .
upon its action, to dictate to it its organization or modes of
proceeding; in short, to subject it in any way or to any ex

1 Vattel, Law of Nations, Book I. ch. iii. §§ 34, 35.
CAN THE LEGISLATURE BIND THE CONVENTION ? 863

tent to the restraints of law? If so, wherein, and to what ex-
tent?

§ 377. The theory of those who deny to a legislature power
thus to bind a Convention, is simply the theory of conventional
sovereignty, to which allusion has been so frequently made in
preceding pages. According to this theory, a Convention is a
virtual assemblage of the people, a representative body charged
by the sovereign with the duty of framing the fundamental law,
for which purpose there is devolved upon it all the power the
sovereign itself possesses ; in short, that, for the particular busi-
ness with which it is charged, a Convention is possessed of sov-
ereign powers, by virtue of which it overtops all the other gov-
ernmental agencies. Hence, while it is admitted, that by reason
of the occasional and extraordinary character of the Convention,
the word by which its assembling is to be made a legal act must
be spoken by the legislature, yet it is contended, that, beyond
that, it has no power whatever; or if, as the ultimate concession,
it be admitted that the supervisory power of the legislature con-
tinues until the organization of the Convention is completed,
that that body, when organized, being in a condition to act
independently, all right of external control over it eo instanti
ceases, and the career of its omnipotence begins.!

§ 378. By those, on the other hand, who assert the right of a
legislature to bind a Convention, it is contended, that the latter
is in no proper sense of the term and to no extent sovereign ;
that it is but an agency employed by the sovereign to institute
government; that as such, even if it were invested with power
to act definitively to an equal extent with some other depart-
ments of the government, there would be no special sacredness
attaching to it by reason of its framing the fundamental law —
no such dignity as ought to invest it with a primacy before all
other State agencies; but that, when it is considered, on the
contrary, that a Convention has no such power to act defini-
tively, but that it is a body having the general characteristics of
a legislature, but with the functions and organization only of
a committee, it would be not only preposterous to give to it the
rank of a sovereign power, but absurd to consider it entitled to
any preponderating influence whatsoever ; that, inasmuch, there-
fore, as a Convention is a body whose assembling is occasional
and dependent on considerations of expediency, it follows that

1 See Appendix C, post.
364 CAN THE LEGISLATURE BIND THE CONVENTION ?

the legislature, whose function it is especially to declare and
enforce the expedient, is the proper body to determine the time
and conditions of such assembling; that in doing so it would
not set itself above the Convention; it would simply announce
the will of their common sovereign in relation to the scope of
the business committed to a codrdinate agency; and that in the
absence of constitutional provisions, the extent to which a legis-
lature may prescribe the conduct of a Convention must rest
in its own discretion, subject to the limitation, that its require-
ments must be in harmony with the principles of the Con-
vention system, or, rather, not inconsistent with the exercise
by the Convention, to some extent, of its essential and character-
istic function.

§ 379. Conceding, then, that a legislature may by its enact-
ments bind a Convention, it remains to determine to what ex-
tent it may do so, and in what particulars. In relation to the
extent of its power, it may be said that that is exactly commen-
surate with what is necessary for the public safety, for which
that body is constitutionally responsible; hence, that it may pre-
scribe whatever a prudent foresight may indicate as necessary for
the welfare of the State. At the same time, doubtless, the legis-
lature ought, generally, to leave the Convention at liberty to dis-
charge, in some measure, its essential function of deliberation.
By universal custom, as well as by the express provision of most
of the American Constitutions, no person or body in a State has
power to call a Convention but the legislature ; and none but
the legislature can either prescribe or indicate the purposes for
which it is to assemble. Accordingly, as we shall see, our legis-
latures nearly always expressly declare, with more or less pre-
cision, those purposes, whether to make a general revision of the
Constitution, or to consider specific subjects, accompanying that
declaration sometimes with a prohibition to consider other sub-
jects. While a legislature, however, has a clear constitutional
right, in its discretion, to prescribe the scope of the duties of the
Convention it calls, it would seem to be unwise to hamper, by
too stringent limitations, a body which, if it meet at all, ought
to meet for some rational purpose, and that, in general, it could
not do if its work were laid out for it too minutely in advance,
by imperative provisions of law.
CAN THE LEGISLATURE BIND THE CONVENTION ? 365:

§ 880. On the other hand, the legislature is the sentinel on
duty. It cannot rightfully abdicate that position. In conyen-
ing an extraordinary assembly, constituting unquestionably the
weak side of our institutions, and therefore the one upon which
usurpation may be expected to make its assaults, it must see
to it that the Republic not only do not receive, but be placed
in no danger of receiving, any detriment. It cannot excuse
itself from insisting that a Convention shall be composed of
members elected from amongst the most intelligent citizens of
mature age, according to regulations fitted to secure a fair repre-
sentation ; that its numbers shall be limited ; that the body shall
assemble at a prescribed time and place; that it shall be organ-
ized in a particular manner ; that its obedience to the laws shall
be secured by an oath, or other effectual sanctions; that its ex-
penses shall be certified in such a manner, and by and to such
officers, as shall make it reasonably certain that the public funds
will not be squandered or diverted to partisan or treasonable
uses ; and finally, what is incomparably more important than all
else, that it shall propose, instead of enacting, constitutional
changes, — in other words, that the fruit of its labors shall: be so
submitted to the people as to ascertain authentically their will in
relation to it. In short, it is in general the right and the duty of
a legislature to prescribe when, and where, and how a Convention
shall meet and proceed with its business, and put its work in op-
eration ; but whether, under any and what circumstances, it may
dictate what it shall do, or shall not do, is a question of some dif-
ficulty, respecting which the precedents and authorities will be
examined hereafter. Doubtless, without restrictions as to the
former particulars, the Convention would be wholly independent
of the existing government; with restrictions as to the latter, it
would ordinarily be, pro tanto, a mere echo of the legislature
which called it together.

§ 381. Instead of attempting, therefore, to detail specifically
the particulars in respect to which a legislature may bind a Con-
vention, we pass to consider the precedents which have arisen in
our constitutional history bearing on the question, and showing
what limitations legislatures have placed upon the Conventions
called by them, and how the latter have met and acted upon such
limitations. This we shall do at the greater length, because
366 CAN THE LEGISLATURE BIND THE CONVENTION ?

those precedents will throw light upon a most perplexing and
vital question, upon which there have been doubt and contro-
versy. We shall pass over, in the main, the limitations imposed
in regard to the organization and internal structure of Conven-
tions, and the other subordinate details referred to in the last
section, which are never omitted from such Acts, and in respect
to the propriety of which no doubt has ever been entertained.
Mention should be made, however, of one subject coming within
the category of things relating to the organization of Conven-
tions, which has led to occasional opposition, and even revolt, in
these bodies, and that is, the attempts of legislatures to bind the
members of Conventions to take a prescribed oath. Reference
was made to this subject 1 when we were considering the organ-

ization of Conventions ; but attention must now be directed tothe _...

precedents bearing on the question of power in legislatures thus to
bind Conventions. Convention Acts containing such oaths were
those calling the following Conventions: Georgia, 1833 ; North
Carolina, 1885 and 1875; and Illinois, 1862 and 1869.2 The
first called the Convention of 1833 for the purpose of reducing
the number of the General Assembly of the State, and required
its members, before taking their seats, to subscribe an oath not
to attempt to add to or take from the Constitution, or to change
or alter any other section, clause, or article than those touching
the representation in the General Assembly. It further pro-
vided, that no person elected to a seat, who should refuse to
take the oath, should be allowed to take his seat in the Con-
vention. The Act calling the North Carolina Convention of
1835 required that body to propose four, and authorized it,
at its discretion, to propose a number more of specified amend-
ments, but positively forbade it to make alterations and amend-
ments in any other particulars than those enumerated. It then
required the members to take an oath not directly or indirectly
to evade or disregard the duties enjoined, or the limits fixed to
the Convention by said Act. The Act calling the Convention
of 1875 prescribed the same oath, and then provided that no del-
egate should be permitted to sit, or be entitled to a seat, in said
Convention, until he should have subscribed the same.

In the Illinois cases, the Acts calling the Conventions had
prescribed that the members, before entering upon their duties,

1 See §§ 279-286, ante. 2 See § 283, ante.
CAN THE LEGISLATURE BIND THE CONVENTION ? 3867

should “‘each take an oath to support the Constitution of the
United States, and of this State,’ etc.

In all these cases, the oaths prescribed were taken by the
members of the Conventions, save in those of Illinois, in the
first of which they refused to retain the clause binding them to
support the Constitution of the State, but took the oath pre-
scribed after striking out that clause; and in the last, the Con-
vention of 1869, they took a modified form of the oath, in sub-
stance, however, the same as that prescribed, — a few members
afterwards taking also the oath in the form required.

§ 881 a. We come now to the question of imposing limitations
as to the work of a Convention, or as to the recommendations or
ordinances it shall or shall not make.

1. First, we will cite the enabling Acts passed by Congress
with a view to the formation of Constitutions in the Federal Ter-
ritories ; or Acts for the admission of the same into the Union
as States, or Acts for the admission into the Union of such Ter-
ritories which had framed Constitutions without enabling Acts.
Of the first there have been, up to this time, fourteen,? and of
the two last, seven.? In all the enabling Acts of Congress au-
thorizing Territories to form Constitutions, were embodied re-
strictions, or conditions of the nature of restrictions, upon the
action of those bodies. These related to the boundaries of the
proposed States; to the nature and principles of the Constitu-
tions they were to frame; to their domestic institutions ; to the
future action of such States in relation to taxation, the public
lands, salt-springs, ete.; to jurisdiction over adjacent waters; to
the language in which the laws were to be promulgated, and
judicial proceedings to be conducted ; to the number and election
of delegates to the Conventions, the time and place of assem-
bling; or to conditions to their right to act as Conventions, as
that they should, on behalf of their respective States, adopt the

1 See ante, § 282.

2 The fourteen are Ohio, Louisiana, Indiana, Mississippi, Illinois, Alabama,
Texas, Wisconsin, Minnesota, Missouri, Kansas, Nevada, Colorado, and Ne-
braska.

8 The seven are Tennessee, Michigan, Arkansas, Jowa, Florida, California,
and Oregon. Kentucky, Vermont, Maine, and West Virginia do not belong
to this class, as they were severally States formed from territory belonging to
States in the Union, in pursuance of sec. 3, art. iv. of the Federal Constitu-
tion. See ante, §§ 170-185.
368 CAN THE LEGISLATURE BIND THE CONVENTION ?

Constitution of the United States.1 Besides these there were, in
the enabling Acts of several of the Territories, provisions that
their Constitutions should not be repugnant to the Ordinance of
1787 ;2 and in that of Minnesota, one requiring the submission
of the Constitution framed by the Convention to the people of
the Territory, —a provision for the first time inserted in such
Acts, probably on account of the then recent troubles in Kansas,

To these restrictions and conditions the several Conventions
were required by Congress to give their express assent, and only
upon strict compliance with them were the Territories admitted
into the Union.3

In many of the Acts admitting into the Union Territories which
had framed Constitutions without enabling Acts, in like manner,
were contained conditions in regard to the disposition of the
public lands therein, to their boundaries and jurisdiction, similar
to those contained in the enabling Acts above described, and to

1 See the enabling acts of Ohio, 2 Sts. at Large, 1783 ; Louisiana, Id. 641 ;
Indiana, 3 do. 289; Mississippi, Id. 348 ; Illinois, Id. 428 ; Alabama, Id. 489;
Missouri, Id. 545; Texas, 5 do. 797; Wisconsin, 9 do. 56 ; Minnesota, 11
do. 166 ; Kansas, Id. 269; Nevada, 13 do. 80; Colorado, Id. 32; Nebraska,
Id. 47.

2 See the enabling Acts of Ohio, Indiana, Illinois, Mississippi, Alabama.

8 In relation to the binding force of conditions imposed by Congress upon
Territories under the circumstances stated in the text, see the case of Brittle v.
The People, reported in 2 Nebraska R. 198. The Supreme Court of the State,
after its admission, held that ‘* when a Constitution has been adopted by the
people of a Territory, preparatory to admission as a State, and Congress
prescribes certain changes and additions to be adopted by the legislature as
part of the Constitution, and such changes and additions are declared to be
fundamental conditions to the admission of the State, and the legislature ac-
cepts such changes, additions, and conditions, and the State is thus admitted,
they become thereby a part of the Constitution, and binding as such, although
not submitted to the people for their approval.”

It follows from this position, doubtless, that such fundamental conditions,
thus imposed and accepted, are irrepealable without the consent of Concress.
The condition infringed was one declaring that within the State of Nebraska
there should be no denial of the elective franchise, or of any other right, to
any person by reason of race or color, excepting Indians not taxed. By a law
of the Territory still in force after its admission into the Union, none but
white males were allowed to sit upon juries. On the trial of a criminal, a
colored man was allowed to sit on the jury which convicted the offender, and
the case came before the Supreme Court upon exception to the ruling which
permitted him to sit as such. It was held that the fundamental condition re-
ferred to gave colored men the right to vote and to sit on juries.
CAN THE LEGISLATURE BIND THE CONVENTION ? 369

these the Territories were compelled to assent by their Conven-
tions or legislatures, as a condition of their admission into the
Union.1 Though, as we have said, the conditions thus imposed
have always been complied with, it has not always been done
without a struggle to avoid them, especially in relation to bound-
aries, as in the case of Michigan.?

§ 882. 2. Passing to Conventions called by the States, we
observe, that while, in comparison with the whole number of
Conventions thus far held in the United States, those which legis-
latures have attempted to bind in respect to what they should do
or should not do, by directions, restrictions, or prohibitions, are
few in number, yet cases of the kind have arisen which can but
have some bearing upon the question of power we are consider-
ing, and which, therefore, we feel compelled to examine some-
what minutely.

We will first consider cases in which Conventions have been
called to do a specific thing, defined in the Convention Acts, with
an express or implied inhibition to do anything beyond that.

Among the cases of the kind are those of the Georgia Conven-
tion of January 4, 1789, and of the last eight Conventions of
Vermont. These bodies were all called for the purpose only of
passing upon amendments framed by previous Conventions, or
by Councils of Censors having the functions of Conventions.’
In those held in Vermont the limitations contained in the ordi-
nances calling them were strictly observed ; those bodies, though
in some instances rejecting the amendments proposed by the
Councils, never venturing to propose amendments, or to do any
other official act themselves. In the Georgia case, on the other
hand, although the Convention was “for the sole purpose of
adopting and ratifying or rejecting” a Constitution submitted to
it by a Convention held in November preceding, it proposed cer-

1 See the acts admitting Michigan, 5 Sts. at Large, 49, 59, 144; Arkansas,
Td. 50, 58 ; Kansas, 12 do. 126; Iowa, 5 do. 742, 788, 789; Florida, Id. 742,
782, 789; California, 9 do. 452; Oregon, 11‘do. 383.

2 We have omitted the case of the Federal Convention, which in point of
date precedes those of the States hereafter cited, because it is not certain
that it was a case of restrictions imposed by legislative authority upon a Con-
vention. As we shall see, it was denied by Mr. Hamilton that it was such
case. We shall, in a subsequent section, cite the arguments on both sides of
the question. See § 383, post.

§ See § 220, ante.
870 CAN THE LEGISLATURE BIND THE CONVENTION ?

tain alterations of the form laid before it, which were finally
adopted by a third Convention that met May 4, 1789. No ob.
jection seems to have been made to this departure from the line
of duty prescribed by the legislature ; but less weight should be
given to this circumstance, because at that early day the duties of
Conventions, and even the proper mode of selecting them, were ill
understood, the delegates to that of the preceding November,
which framed the amendments submitted to the Convention of
January 4, having been appointed by the State legisliture.?

So the New York Convention of 1801 was called “for the

purpose of considering the parts of the Constitution ... respect-.

ing the number of Senators and members of Assembly, . . . and
with power to reduce and limit the number of them,” “and also
for considering and determining the true construction of the 23d
section of the Constitution, ...as to the right of nomination to
office, but with no other power or authority whatsoever.”

In like manner, the Georgia Convention of 1833 was called by
an Act which required it “to submit to the people such amend-
ments, alterations, or new articles as they may make for the
objects of reduction and equalization of the General Assem-
bly only.” The limitations thus imposed upon these Conventions
were strictly observed, and the recommendations made by them
were, on submission to the people in New York, adopted, but in
Georgia rejected. The same may be said of restrictions con-
tzined in the Acts calling the New York Convention of 1867 and
the California Convention of 1878, which in nearly identical terms
authorized those bodies severally to punish as a contempt, and
by imprisonment or otherwise, a breach of its privileges, or of
the privileges of its members; but provided that such power
should not be exercised except against persons guilty of one or
more of certain offences specified. Both bodies confined them-
selves to the limits thus imposed.

1 See ante, § 148.

* For a powerful argument to the effect that a legislature may, in the Act

calling a Convention, limit it to certain specific subjects, see the opinion of
Harper, J., in The State ex rel. McDaniel, etc., 2 Hill S. C. (Law) R. 270-
273 (* paging). The Convention in question, however, was not a Constitu-
tional Convention, and the decision of a majority of the judges was adverse to
the positions taken by Justice Harper upon the question under consideration,
which was that of State sovereignty and State allegiance. The Convention
was the Nullification Convention of 1832,
CAN THE LEGISLATURE BIND THE CONVENTION ? 371

§ 882 a. Similarly, in several cases legislatures, in calling
Conventions, have given to them positive directions to frame cer-
tain specific amendments to their respective Constitutions.
Thus the Act calling the North Carolina Convention of 1835 re-
quired that body to ‘frame and devise amendments to the Con-
stitution. ...1,s0 as to reduce the number of members of the
Senate; 2, “so as to reduce the number of members of the
House of Commons ;” 8, “ prescribing the qualifications of vot-
ers for members of the Senate and House of Commons.” By a
subsequent section it further required the Convention to provide
in what manner amendments should in future be made to the
Constitution. So, it was provided by the Act calling the Mary-
land Convention of 1867, that it should insert in *“ the new Con-
stitution and Form of Government «a clause probibiting the leg-
islature from making any law providing for making payment by
this State for persons heretofore held as slaves.” So the legisla.
ture of Pennsylvania, in calling the Convention of 1872, required
that body to subinit to the people for ratification or rejection the
amendments to the Constitution framed by it, but prescribed
that the election ‘to decide for or against them should “ be con-
ducted as the general elections of this commonwealth are now by
law conducted.” As the Convention was to submit the amend-
ments by an ordinance to be passed by it, the above provision
amounted to a direction to adopt an ordinance submitting them
in the manner prescribed.

Finally, in the Act calling the Alabama Convention of 1875,
the legislature made it the duty of the Convention, in the Con-
stitution which it should frame, “ to provide for a system of com-
mon schools, as liberally as the means of the State will permit,
and to be enlarged as those means shall increase.” In connection
with these cases may be mentioned those in which Convention
Acts have contained directions to make a eertain disposition of
the work of the respective Conventions, as to submit it to a vote
of the people for adoption or rejection,—a provision nearly
always inserted in the Jater Acts.! In many of these cases there

1 See Convention Acts of the following Conventions : Massachusetts, 1780,
1820, and 1853; Pennsylvania, 1790, 1837, and 1872; New York, 1821, 1846,
and 1867; Virginia, 1829 and 1850; Georgia, 1833 and 1877; North Caro-
Jina, 1885 and 1875; New Jersey, 1844; Michigan, 1850 and 1867; New
Hampshire, 1852 and 1876; Ohio, 1852 and 1873; Illinois, 1847, 1862, and
3872 CAN THE LEGISLATURE BIND THE CONVENTION ?

was a direction not only to submit to the people, but to submit
separately propositions not so related that they must stand or fall
with others as a whole.!

To these cases of positive directions given absolutely may be
added that of a direction, to take effect conditionally, contained in
the Convention Act of the Pennsylvania Convention of 1872, that
the Convention should submit any change or amendment agreed
to by it toa vote of the people “separately and distinctly,” if
required so to do by a vote of one third of all the members of
the Convention.?

1869; Indiana, 1850; Maryland, 1850, 1864, and 1867; Jowa, 1857; Missouri,
1861; Tennessee, 1870; West Virginia, 1872; Alabama, 1875; Nebraska,
1875; California, 1878; and Florida, 1885.

1 See the Convention Acts of the following Conventions: Pennsylvania, 1790
and 1872; Virginia, 1829 and 1850; New Hampshire, 1850 and 1876; Illinois,
1862 and 1869; Tennessee, 1870; North Carolina, 1875; Alabama, 1875.

2 Two Convention Acts, those calling the North Carolina Conventions of
1835 and 1875, contained, besides those considered above, peculiar provisions
which, on their face, seem to be unnecessary, as they certainly are unusual.
The former authorized the Convention to propose, in their discretion, nine
specified amendments, ‘‘ or any of them,” to which, by a supplemental act,
were afterwards added seven other amendments; and the latter, after forbid-
ding the Convention of 1875 to vacate offices filled under the existing Consti-
tution before the same should expire under existing law, authorized that body,
nevertheless, to recommend ‘‘ the abolishment of any office when the present
term therein should expire, or vacancies occur,” and that it might ‘‘ provide for
filling such vacancies otherwise than as now, and for limiting the terms
thereof.’ The preamble to the Act of 1835, however, explains the anomaly
of that Act, since it shows decisively that the legislature intended to restrict
the Convention absolutely to twenty amendments, four of which it was re-
quired, as we shall see, to recommend, and the remaining sixteen it might
recommend or not as it should deem best, but it was required’ and bound by a
very stringent oath to recommend no others. It is not so easy to explain the
propriety of the provision of the Act of 1875, because that Act called the Con-
vention ‘‘for the purpose of considering and adopting such amendments as
they should deem necessary and expedient, subject only to the restrictions
hereinbefore provided,” which, as we shall see in the following section, for-
bade the Convention absolutely “to consider, debate, or propose” twelve
specified particulars. It would seem that the general power previously given
authorized the adoption of any amendment not covered by the restrictions.
But as one amendment, in respect to which a discretion was given the Conven-
tion, related to one phase of a subject, another phase of which had been with-
drawn from the consideration of that body, the specification was, perhaps,
inserted in the Act out of abundant caution, so as to avoid objection to 4
provision not intended to be forbidden.

4
CAN THE LEGISLATURE BIND THE CONVENTION ? 313

All the directions and requirements contained in the acts re-
ferred to in this section were complied with and obeyed by the
respective Conventions, save those embodied in the Pennsylvania
Act. Of these, one was disobeyed, — that prescribing the mode of
holding the election for the adoption or rejection of the amend-
ments, which, in the city of Philadelphia, the Convention
changed so as to require the election to be held, not as the gen-
eral elections were by law conducted, but by a board of special
commissioners named by the Convention and not known to the
law; the other, relating to separate submission, was not obeyed,
as, on the one side, it was denied, though on the other asserted, that
the condition on which the separate submission was to be made
had been fulfilled. These proceedings of the Pennsylvania Con-
vention led to important litigation in the courts of that State, and
to decisions as to the relative powers of legislatures and Conven-
tions of great interest, which will be fully considered in subse-
quent sections, when we come to examine the bearing of judicial
decisions upon the question now under discussion.}

§ 8825. There remains to be considered another class of re-
strictions or limitations imposed by legislatures upon Conven-
tions, — those by which the latter are directly or indirectly pro-
hibited to recommend certain amendments or to do certain acts ;
and it is in regard to the binding force of such inhibitions that
the principal doubt and controversy has arisen.

Thus, the Act calling the Pennsylvania Convention of 1872
provided, that nothing in the Act contained should authorize
the Convention “to change the language, or to alter in any
manner the several provisions of the ninth article of the present
Constitution, commonly known as the Bill of Rights,” but that
the same should “be excepted from the powers given to said
Convention,” and should “‘ remain inviolate forever;”’ and that
it should have no power “to create courts with exclusive equity
jurisdiction.”

To the same effect, though less explicit, is the provision of
the Act calling the North Carolina Convention of 1835, which,
after requiring the Convention to propose four, and authorizing
it to propose nine, specified amendments (to which were after-
wards, by a supplemental act, added seven others, making twenty
in all), provided as follows: “but they shall not alter any other

1 See §§ 409 a-409 e, post.
874 CAN THE LEGISLATURE BIND THE CONVENTION ?

article of the Constitution or Bill of Rights, nor propose any
amendments to the same, except those hereinbefore enumer-
ated.” Beyond the twenty amendments specified, this Act,
doubtless, operated as a direct prohibition to propose any change
or alteration of the Constitution whatever.

So, the Act calling the North Carolina Convention of 1875
provided, that said Convention should ‘* have no power to con-
sider, debate, or propose any amendment to the existing Consti-
tution, or ordinance, upon the following subjects.” Here fol-
lowed twelve particulars, the homestead and personal exemp-
tions, the mechanics’ and laborers’ lien, the rights of married
women, as now secured by law, etc.

Of an indirect prohibition the following instance appears in
the Act calling the Maryland Convention of 1850. The first
section provided, ‘* that for the purpose of ascertaining the ex-
pediency of calling a Convention to frame a new Constitution -
and form of government, except so far as regards the rights and
relations existing between master and slave as now established
by the Constitution and form of government of this State, it is
hereby recommended to the legal voters of the State” to vote as
to the expediency of making such a call, and providing for the
election at the same'time of delegates to meet in Convention for
the purpose indicated, if a majority of such voters should vote
in favor thereof. The result of the vote was in favor of a Con-
vention, which accordingly met and framed the Constitution of
1851. The exception embodied in the Act undoubtedly operated
indirectly as a prohibition upon the Convention to adopt any
amendment or ordinance affecting the rights and relations therein
referred to.

To these may be added a few instances in which legislatures
have indirectly prohibited any attempt, on the part of the Con-
ventions called by them, to put the Constitution or amendments
which they might frame in force without submitting the same
to the people. Thus, the Act calling the Pennsylvania Conven-
tion of 1837 provided, “that for the purpose of ascertaining the
sense of the citizens of this commonwealth on the expediency of
calling a Convention of delegates to be elected by the people,
with authority to submit amendments of the State Constitution to
a vote of the people for their ratification or rejection, and with
no other or greater power whatsoever, it shall be the duty,” ete.
CAN THE LEGISLATURE BIND THE CONVENTION ? 3875

To the same effect was a provision of the Act calling the Mis-
souri Convention of 1861, that ‘ no act, ordinance, or resolution
of said Convention shall be deemed to be valid to change or dis-
solve the political relations of this State to the government of
the United States, or any other State, until a majority of the
qualified voters of this State voting upon the question shall ratify
the same.”

Finally, the Act calling the Alabama Convention of 1875 pro-
vided, that the Convention should not * be authorized to make
any ordinance, rule, or law, which shall be binding on the peo-
ple of this State, or any part of them; nor to deprive any person
in office of his right to said office, as now held by him under the
Constitution and laws of this State; nor to place any property
or educational qualification upon the right to vote in this State ;
nor to do any act but to frame and recommend for adoption a
Constitution amendatory and revisory of the Constitution now in
operation in this State.”

The Conventions to which the prohibitions described in this
section were directed, in every instance save one, observed and
conformed to them. The Pennsylvania Convention of 1872, in
the face of the prohibition against altering, adding to, or taking
from, the Bill of Rights, recommended a change of one section
of it, and the recommendation was ratified subsequently by the
people.!

§ 882 ¢. A careful search among the Acts passed for the call
of Conventions has brought to light only the foregoing restric-
tions, limitations, or directions imposed upon them by legislatures.
What inference are we authorized to draw from these precedents
in regard to the power of legislatures to bind Conventions by
their enactments ? The fact that but three Conventions — that of
Georgia of January 4, 1789, that of Illinois of 1862, and that of
Pennsylvania of 1872 — have ventured to disobey the legislative
directions, or disregard or evade the limitations imposed, even in
respect of matters of comparative unimportance relating to the
organization and methods of procedure of Conventions, indicates,
on their part, either a spirit of docility not generally character-
istic of such bodies, or a conviction that the Acts calling them
constituted the charters from which alone their powers were de-
rived, and by which they were to be bounded. In regard to

1 See post, §§ 409 a-409 e,
376 CAN THE LEGISLATURE BIND THE CONVENTION ?

the first case, that of the Georgia Convention of January 4, 1789,
enough has been said in preceding sections! to demonstrate that
it is of very slight importance as a precedent. While there was,
doubtless, an assumption of power not warranted by the Act call-
ing it, there appeared in it no spirit of disobedience, no insurrection
against the law-making power, such as showed itself in the two
other cases. The revolt of the Illinois Convention of 1862 was
against the taking of the oath, prescribed by the Act calling it,
to support the Constitution of the State,—a refusal which was
absurd, and could have taken its rise only in minds swayed by
pride and ignorance, or by unworthy motives. Naturally, the peo-
ple of Illinois rejected at the polls a Constitution whose incep-
tion was tainted by such influences. The disobedience of the
Pennsylvania Convention of 1872 related to two, and perhaps
three, directions or injunctions of the legislature touching, 1, the
mode of conducting the elections for the adoption or rejection of
the Constitution it should recommend; 2, the alteration of the
Bill of Rights ; and 3, the separate submission of parts of it upon
a certain contingency. The conduct of the Convention resulted
from an admixture of some of the same subjective conditions de-
scribed as swaying the minds of the Illinois Convention, with an
insolent and disobedient spirit, together with a desire for partisan
advantage, disguising itself as an aspiration for reform. It will
be shown in a subsequent section how that, of the two acts of dis-
obedience of the Pennsylvania Convention, one was rebuked, and
the measure to which it led discredited and annulled by the high-
est court of the State, and the other only not declared unauthor-
ized and set aside by the same tribunal, because the people had
seen fit, in the mean time, by an act of political power, to condone
the offence of the Convention. As for the third act of the body,
it was left doubtful, on the evidence presented to the Supreme
Court, whether it was an act of disobedience or not, and that
tribunal, therefore, declined to pronounce it: to be such an act.
The conduct of the Convention in this matter, so discreditable
to its intelligence, was followed by an act which strongly im-
peached its patriotism. Learning that the commissioners ap-
pointed by it to conduct the election in Philadelphia had been
served with notice of an application for an injunction to stop their
proceedings, it thought fit to utter threats of abolishing the court
1 See §§ 148-149, ante.
CAN THE LEGISLATURE BIND THE CONVENTION ? 38TT

in case its decision should be adverse to the measures it had
taken. Better counsels, however, prevailed, and it contented
itself with issuing a declaration of the powers belonging to it
as a Convention, which went to the length of claiming for itself
nearly unlimited sovereignty.

One remark further in regard to the inference we are author-
ized to draw from these precedents as to the power of legislatures
to bind Conventions: The old maxim that “one may lead a
horse to water, but cannot make him drink,” is, in general, ap-
plicable to the case of Conventions placed under unpalatable re-
strictions. Legislatures may impose such restrictions, but it is
impossible, without special and most stringent provisions ad-
dressed to that end, to compel obedience to them. It has been
done, however, and can be done again. In the cases of the
Georgia Convention of 1833 and the North Carolina Conven-
tions of 1835 and 1875, restrictions were imposed under such
conditions that, until the members had solemnly sworn to observe
and obey them, they could not take their seats, nor the Conven-
tions be organized. Such a provision might form a part of all
Convention Acts. If, beside this, the provisions of some of the
latest of those Acts declaring any member who should be guilty
of violating any oath required to be taken by him as such, liable
to indictment for perjury, were inserted in all Convention Acts,
nothing further would be needed effectually to bind Conventions
to exact obedience. While the policy of imposing minute and
stringent limitations upon such bodies is doubtful, there is no
doubt whatever of the impolicy of imposing them, and then of
permitting those sought to be bound by them ‘to disobey with im-
punity. The general introduction, however, of such limitations
is to be strongly reprehended, save where there exists a clear and
cogent necessity, for the peace or safety of the State.

§ 383. Having thus reviewed the precedents bearing on the
question, whether legislatures have the-power to bind Conven-
tions by their Acts, we pass to the consideration of cases in which
that question has been made the subject of discussion in legisla-
tive bodies or in Conventions, or of judicial opinions touching it
rendered by the judges of our courts.

The earliest discussion of the question arose in the Federal

1 See the resolutions adopted by the Convention upon its reassembling after
the judgment of the court had been rendered, § 409 ¢, post.
378 CAN THE LEGISLATURE BIND THE CONVENTION ?

Convention of 1787, It is well known, that the eredentials of
the delegates to that body restricted them to the simple duty of
revising and reporting amendments to the Articles of Confeder-
ation. With some difference of phraseology, they all, with the
exception of those of the delegates from New Jersey, which
State seems to have taken a wider view of the perils and ne-
cessities of the situation than any other, substantially accorded
in this limitation! The credentials of the delegates from New
Jersey thus prescribed the purpose of the meeting : —“ For the
purpose of taking into consideration the state of the Union, as to
trade and other important objects, and of devising such other pro-
visions as shall appear to be necessary to render the Constitution
of the Federal government adequate to the exigencies thereof.”

The credentials of the delegates from Massachusetts and New
York authorized them to meet “for the sole and express purpose
of revising the Articles of Confederation, and reporting to Con-
gress and the several legislatures such alterations and_provis-
ions therein as shall, when agreed to in Congress, and confirmed
by the States, render the Federal Constitution adequate to the
exigencies of government and the preservation of the Union.”
It would be difficult by any fair construction to find in this lan-
guage power to do more than to patch up the old Confedera-
tion; and there is no room for doubt, that the views of the
people at the time the Acts were passed which resulted in the
assembling of the Convention, went no further than that. But
the leading statesmen in that body became early convinced,
that the only hope for the Union was in superseding the worth-
Jess system then in operation by a national government with
large powers. Accordingly, on the introduction of what is
known as Mr. Randolph’s plan, soon after the organization of
the Convention, and from that time on to the close of its ses-
sions, it was never doubtful that the predominant sentiment of
the body favored that plan, as containing avowedly the features
of a national government. And it thus favored it against the
vigorous protest of many members, who, coming from the
smaller States, opposed such a plan as likely to lessen their pro-
portionate weight in the Union. By the latter, the argument was
strongly pressed, and, but for the circumstances of the times, it
would have prevailed, that the Convention was bound by the

1 Elliott’s Ded., Vol. I. p. 163.
CAN THE LEGISLATURE BIND THE CONVENTION ? 379

terms of the Acts under which it assembled to confine itself to the
limits they prescribed. The majority of the Convention, however,
resolved, in spite of those restrictions, to recommend a national
government; but they did it on the ground of necessity, as the
only hope left for preserving peace and the Union, and many of
them despaired even then of preserving either the one or the
other.

§ 384. Thus, in the debate on Mr. Randolph's plan, as con-
trasted with that reported by Mr. Paterson, known as the New
Jersey plan, which proposed simply a modification of the exist-
ing Confederation, to the objection, that the powers of the Con-
vention did not extend to the adoption of a national govern-
ment, Mr. Randolph said : —

“ The resolutions from Virginia must have been adopted on
the supposition that a Federal government was impractica-
ble. And it is said that power is wanting to institute such
a government; but when our all is at stake, I will consent
to any mode that will preserve us.”!.... “There are rea-
sons certainly of a peculiar nature when the ordinary cautions
must be dispensed with; and this is certainly one of them. -
When the salvation of the Republic was at stake, it would
be treason to our trust not to propose what we found neces-
sary.” ?

Mr. Mason “thought with his colleague, Mr. Randolph, that
there were ... . certain crises in which all ordinary cautions
yielded to public necessity. He gave, as an example, the eventual
treaty with Great Britain, in forming which the commissioners
of the United States had wholly disregarded the improvident
shackles of Congress; had given to their country an honorable
and happy peace; and instead of being censured for the trans-
gression of their powers, had raised to themselves a monument
more durable than brass.” 3

§ 385. On the other hand, Mr. Hamilton deemed the estab-
lishment of a national system to be within the scope of their
powers under their credentials. In support of that view he said:
— “Let us now review the powers with which we are invested.
We are appointed for the sole and express purpose of revising -

1 Yates’ Minutes, in Elliott’s Deb., Vol. I. pp. 415, 416.

2 Elliott’s Deb., Vol. V. p. 197. (Madison’s Report.)
3 Id. p. 216.
380 CAN THE LEGISLATURE BIND THE CONVENTION ?

the confederation, and to alter or amend it, so as to render it
effectual for the purposes of a good government. Those who
suppose it to be federal, lay great stress on the terms sole and
express, as if those words intended a confinement to a Federal
government, when the manifest import is no more than that the
institution of a good government must be the sole and express
object of your deliberations. ... . I have, therefore, no difficulty
as to the extent of our powers.” !

In this construction. of their credentials, however, Mr. Hamil-
ton was alone, and, as we have said, it was conceded with almost
perfect unanimity, both in the Federal Convention and in those
held in the States to pass upon the Constitution framed by it,
that in recommending that instrument, instead of merely pro-
posing amendments to the Articles of Confederation, the dele-
gates to the former had exceeded their powers.

§ 386. For the purposes of this inquiry, it is sufficient to note
respecting the action of the Federal Convention in this case, —

1. That itis, at the worst, a case of refusal by a Convention to
obey the instructions of the legislative authority by which it was
convened, in relation to the scope and general character of the
system it should mature ; but,

2. That the Convention did not claim a right to disobey, to
annul, or even to suspend the Acts under which it assembled ;
that, on the contrary, it admitted implicitly the binding force
of those Acts, which yet it felt itself constrained by necessity to
disregard. Admitting obedience to be due, it pronounced it
under the circumstances to be impossible.

3. Finally, that whichever construction put upon the creden-
tials of the Convention be the true one, that of Mr. Hamilton
or that of Mr. Randolph and others, the action of that body is
entitled to little weight as a precedent to establish the right of
such a body to disobey the Act that convened it; for, on the con-
struction of Mr. Hamilton, there was no disobedience, and on
that of Mr. Randolph, the disobedience was confessed and re-
gretted, but excused on the ground of necessity.

§ 887. The next case in which the question of the right of a
legislature to bind a Convention by the Act calling it was con-
sidered was that of the North Carolina Convention of 1835, to
which attention has already been called.

1 Yates’ Minutes, in Elliott’s Deb., Vol. I. pp. 417, 418.
CAN THE LEGISLATURE BIND THE CONVENTION ? 381

By the Act of January 6, 1835, Secs. 12 and 16, it was pro-
vided that the Convention thereby called should frame and devise
four amendments to the Constitution, namely, two to reduce the
representation in the Senate and the House of Commons; one
to change the qualifications of voters; and one to provide for
making amendments to the Constitution. It then authorized the
Convention, in its discretion, to propose sixteen other amend-
ments specified, or any one or more of them. After providing
for submitting such amendments as the body should propose to
the people, the Act concluded by declaring that the Convention
should not alter any other article of the Constitution or Bill of
Rights, nor propose any amendments to the same, except those
which were therein before enumerated. The 10th Section of the
Act had provided that no delegate should take his seat in Con-
vention until he should have taken an oath not to evade or dis-
regard the duties enjoined, or the limits fixed to the Convention
by that Act. A discussion arising, on the first assembling of the
Convention, whether that body was bound by the Act to take
the oath prescribed, it was contended by some that the legislature
had no right to impose an oath, and that consequently they were
not bound to regard the Act. It was also suggested that the
Convention might go further and disregard the injunctions and
limitations of the legislature in relation to the amendments it
should propose, citing as authority for that view the alleged
precedent, just commented upon, in the Federal Convention.
Different counsels, however, at length prevailed. The Conven-
tion was reminded by the Hon. Mr. Gaston that it was only
by obedience to the requirements of the Act in relation to the
oath, that it could become organized. Without first having
taken the oath, no member could take his seat; and having taken
the oath, the limitations of the Act could not be disregarded
without perjury. Unlike the Federal Convention, therefore,
which was constrained by necessity to disobey the Acts under
which it assembled, the North Carolina Convention was con-
strained by necessity to obey them, and hence the cases may
be thought to be equally indecisive as precedents upon the ques-
tion we are discussing. :

§ 388. In 1833, a judicial opinion was delivered by the judges
of the Supreme Court of Massachusetts, which has some bear-
ing, perhaps, upon the question of the binding force of Acts of
882 CAN THE LEGISLATURE BIND THE CONVENTION ?

Assembly upon Conventions. The facts of the case, as derived
from the opinion, are, that the legislature of Massachusetts, hav-
ing under consideration a proposition for calling a Convention
to revise the Constitution, and desiring to limit the latter to par-
ticular amendments, entertained a doubt whether or not that
body would be bound to respect the limits it should impose, and
accordingly the House of Representatives requested the opinion
of the Supreme Court upon the following question, namely,
“ Whether, if the legislature should submit to the people to vote
upon the expediency of having a Convention .... for the
purpose of revising or altering the Constitution of the Common.
wealth in any specified parts of the same, and a majority of
the people voting thereon should decide in favor thereof, could
such Convention, holden in pursuance thereof, act upon and
propose to the people, amendments in other parts of the Consti-
tution not so specified ?” Upon this question the Court said: —
“ Considering that the Constitution has vested no authority in
the legislature in its ordinary action to provide by law for sub-
mitting to the people the expediency of calling a Convention of
delegates for the purpose of revising or altering the Constitution
of the Commonwealth, it is difficult to give an opinion upon
the question what would be the power of such a Convention, if
called. If, however, the people should, by the terms of their
vote, decide to call a Convention of delegates, to consider the
expediency of altering the Constitution in some particular part
thereof, we are of opinion, that such delegates would derive
their whole authority and .commission from such vote; and
upon the general principles governing the delegation of power
and authority, they would have no-right, under such vote, to
act upon and propose amendments in other parts of the Consti-
tution not so specified.” 1

§ 389. Whether the general idea contained in this opinion
respecting the source of the validity of the supposed limitations
upon the action of the Convention, namely, that it was to be
sought alone in the vote of the people, be a correct one or not,
will be the subject of consideration further on. Assuming for
the present, however, that the idea was a mistaken one, and that
those limitations derived their binding force from the Act of As-

1 Opinion of the Justices of the Supreme Judicial Court, etc., 6 Cush. R. 572;
also of the Supreme Court of Rhode Island, 14 R. I. R. 649.
CAN THE LEGISLATURE BIND THE CONVENTION ? 383

sembly either alone or in conjunction with the subsequent ex-
pression of popular approval, the Act being considered, in either
event, as an act of ordinary legislation, the views expressed by
the Court would seem to indicate that a Convention might be
bound by an Act of a legislature. The Court affirm, that, in the
case supposed, the Convention would not be competent to over-
pass the limits imposed by the vote of the people by which it
was called; from that vote “ they would derive,” say they, “ their
whole commission and authority ;” “and upon the general prin-
ciples governing the delegation of power and authority, they
would have no right, under such vote, to act upon and propose
amendments in other parts of the Constitution not so specified.”
But suppose it were demonstrated that the efficacy of the call,
with its limitations, depended not on the vote of the people, but
on the Act of the legislature, preceding and requiring such vote,
can it be doubted that the Convention would be equally bound
by it? The Act then would constitute its commission, the
source from which all its authority would be derived; and the
principles governing the delegation of power and authority would
seem as much as ever to establish that, under such a law, it
would have no right to act upon or propose amendments in
other parts of the Constitution not specified in it. Nevertheless,
it were well to determine, if possible, the true source of the
validity of the call of a Convention made under such circum-
stances. Does it flow from the power of the legislature, or from
the power of the people giving its sanction to what a legislature
has recommended ?

§ 390. This interesting and perplexing question has been the
subject of extended discussion in several Conventions. It arose
in New York, in 1846, upon the following facts. In 1845, the
legislature of the State had passed an Act recommending to the
people a Convention, and prescribing the manner in which it
was to be elected and held. By this Act it was provided, that
the people, at the fall election of that year, should pass upon
the question of Convention or no Convention, and if they should
decide for a Convention, that the delegates were to be chosen in
April, 1846, and to assemble in June of the same year. It was
also, by the seventh section, provided, that “the number of del-
egates to be chosen to such Convention shall be the same as the
number of members of Assembly from the respective cities and
counties in this State.”
884 CAN THE LEGISLATURE BIND THE CONVENTION ?

By the existing Constitution of New York, the apportionment
of members of the General Assembly made in the spring of
1836, took effect for the purpose of electing the members in the
fall of that year, but not for any other purpose, until the first
day of January, 1837; and it was to remain unaltered for ten
years. In other words, the representation from “ the respective
cities and counties” of the State, in the Assembly, from the
commencement of the political and calendar year 1837, to the
commencement of the political and calendar year 1847, was to
remain the same. When the legislature met in the early part
of the year 1846, after the Act calling the Convention had been
ratified by the people, but before the delegates had been elected
under it, an Act was passed making a new apportionment of
representatives to the Assembly, increasing the number, and a
bill was introduced for an Act providing that the number of
delegates to be chosen in and by the respective cities and coun-
ties to the Convention, to be held by virtue of the Act of 1845,
should be the same as the number of members of the Assembly,
to be chosen in pursuance of the new apportionment. In other
words, the Act calling the Convention was proposed to be modi-
fied by the body which had originally passed it, after it had been
voted upon by the people.

§ 391. Upon this bill, a question was raised as to the power
of the legislature — whether it could change the rule of appor-
tionment, as applicable to the Convention, prescribed in the Act
voted on by the people. The subject was referred to the judges
of the Supreme Court of the State for their opinion, who de-
cided —

First, that the new apportionment for members of the Assem-
bly not taking effect until the first day of January, 1847, the
provision of the Convention Act of 1845, to the effect, that “ the
number of delegates to be chosen to such Convention shall be
the same as the number of members of Assembly from the re-
spective cities and counties in this State,” meant the number of
members to which they were entitled under the apportionment
in force when the Act of 1845 was passed, and which would be
in force until after the delegates had been chosen and their labors
terminated ; and, secondly, that inasmuch as the existing Con-
stitution had omitted to confer upon the legislature any power
to call a Convention, the Act passed for that purpose and
CAN THE LEGISLATURE BIND THE CONVENTION ? 885.

referred to the people was beyond its jurisdiction, and could
operate only by way of advice or recommendation, and not as a
law; that, under such circumstances, the calling of a Conven-
tion was an act proper only for the people themselves; and that,
- consequently, the Act of 1845 derived its obligation from the
popular vote of ratification and not from the power of the legis-
lature to pass it. From this, the inference was drawn that the
legislature had no power to suspend or alter any of the pro-
visions of that Act.!

§ 392. In the course of this opinion the Court say :—

“ The legislature is not supreme. It is only one of the instru-
ments of that absolute sovereignty which resides in the whole
body of the people. Like other departments of the government,
it acts under a delegation of powers, and cannot. rightfully go
beyond the limits which have been assigned to it. This delega-
tion of powers has been made by a fundamental law, which no
one department of the government, nor all the departments
united, have authority to change. That can only be done by
the people themselves. A power has been given to the legisla-
ture to propose amendments to the Constitution, which, when
approved and ratified by the people, become a part of the fun-
damental law. But no power has been delegated to the legis-
lature to call a Convention to revise the Constitution. That is a
measure which must come from the people themselves. Neither
the calling of a Convention, nor a Convention itself, is a pro-
ceeding under the Constitution. It is above and beyond the
Constitution. Instead of acting under the forms and within
the limits prescribed by that instrument, the very business of a
Convention is to change those forms and boundaries, as the
public interests may seem to require. A Convention is not a
government measure, but a movement of the people, having for
its object a change, in whole or in part, of the existing form of
government.

“ As the people have not only omitted to confer any power on
the legislature to call a Convention, but have also prescribed
another mode of amending the organic law, we are unable to
see that the Act of 1845 had any obligatory force at the time
of its enactment. It could only operate by way of advice or

1 For this opinion see Appendix D, post.
386 CAN THE LEGISLATURE BIND THE CONVENTION ?

recommendation, and not as a law. It amounted to nothing
more than a proposition or suggestion to the people, to decide
whether they would or would not have a Convention. That
question the people have settled in the affirmative, and the law
derives its obligation from that Act, and not from the power of
the legislature to pass it. The people have not only decided in.
favor of a Convention, but they bave determined that it shall be
held in accordance with the provisions of the Act of 1845. No
other proposition was before them, and of course their votes
could have had reference to nothing else. They have decided
on the time and manner of electing delegates, and how they
shall be apportioned among the several counties.

“Tf the Act of the last session is not a law of the legislature,
but a law made by the people themselves, the conclusion is ob-
vious, that the legislature cannot annul it nor make any sub-
stantial change in its provisions. If the legislature can alter the
rule of representation, it can repeal the law altogether, and thus
defeat a measure which has been willed by a higher power.”

§ 393. Now in reference to this opinion, which, as being that
of highly respectable judges of the highest court in the most
important State in the Union, seems to be possessed of very
great authority, the following observations occur to me as justi-
fied as well by its tenor as by the circumstances under which it
was rendered.

1. The opinion was extrajudicial. The Constitution of the
State did not authorize the legislature, much less one of its
separate houses, to refer questions arising in the course of its
deliberations to the judiciary for adjudication. In point of legal
authority, therefore, it is entitled to no greater weight than it
deserves on account of its intrinsic wisdom.!

2. How much authority the opinion ought to carry with it on
this account, may be inferred from the estimate put upon it
by the judges themselves. In the concluding paragraph they
say :—

“We cannot close this communication without expressing
our regret that questions of so much delicacy and importance
should be presented under circumstances which have given but
a few hours for conferring together, and reducing our opinion to
writing. Neither of us had either examined or thought of the

1 See Appendix E, post.
CAN THE LEGISLATURE BIND THE CONVENTION ? 387

questions until after the reference was made; and it was not
until this day that we were able to meet and consult together
on the subject.”

3. What its authors thus seemed to regard as deserving of
little consideration, was certainly so esteemed by the legisla-
ture. That body entirely disregarded the legal determinations
of the Court on the question of power. It also disregarded,
not without an appearance of contempt, a positive recommen-
dation which the opinion contained. After declaring that the
legislature had no power to pass the law then under consider-
ation, the judges added, that “if, however, the legislature
should think otherwise, it is then proper that we should take
some notice of the bill which has been referred for our consider-
ation.” Accordingly, observing that the bill in its terms merely
declared that the true intent and meaning of so much of the
Convention Act of 1845, as related to the number of delegates
to be chosen to the Convention, was, that that number should
be the same as the number of members of the Assembly, ac-
cording to the apportionment of 1845, the judges said that, in
their opinion, such was not the true intent and meaning of said
Act, and they therefore recommended that, if it was deemed ex-
pedient to legislate on the subject, there should be a positive
enactment, instead of a mere declaration of opinion. In spite
of this recommendation, however, the legislature passed the
bill, in the precise form it bore when referred to the judges.
To this it may be added, that the people in like manner disre-
garded the opinion; for they elected their delegates according
to the new apportionment.

§ 394. 4. Coming to the substance of the opinion, there is con-
tained in it, it is conceived, with much that is excellent, much
also that is fallacious and of the worst possible tendency. With
the latter are to be classed all those parts of it which relate to the
power of a legislature to call a Convention; to the essential
character and relations of the latter to the existing government,
and to the source whence is derived the etflicacy of a law calling
a Convention under the circumstances detailed in the opinion.
What IJ have to say upon the last point will be deferred till the
case arising in the Massachusetts Convention of 1853, in which
the same question was broached, is brought under discussion.
The two other points will be briefly considered here.

1 See post, §$ 400-409.
888 CAN THE LEGISLATURE BIND THE CONVENTION ?

I. The assertion, that where express authority to call a Con-
vention has not been given by the Constitution, a legislature
has no power to do it, I deem to be unfounded, for two reasons:
first, as contravening sound political principles; and secondly,
as falsified by well-established usage under the American sys-
tem.

First. It has been seen in previous sections of this chapter,
that under the general grant of legislative power found in our
State Constitutions, a legislature is competent to provide by
law for all exigencies requiring provisions of a legislative nature,
so far as it is not restrained by the rules of morality, or by ex-
press constitutional inhibitions. This is believed to cover the
whole case. The making of provision for the assembling of
Conventions, and the hedging of them about with the restric-
tions needed as well for their efficiency as for the safety of the
Commonwealth, is emphatically a matter of legislation. It is,
moreover, a matter of legislation not fundamental in character,
but of that species which our Constitutions apportion exclu-
sively to the legislative departments created by them. The
legislation necessary to initiate and to temper the operations of
a Convention, no department of the government is competent
to effect but the legislature; the sovereign itself could not do
it, nor the electors, — bodies whose organization is such as to
make deliberation upon the details of laws impossible.

§ 395. Nor is it true, as intimated by the judges in the opin-
ion, that the giving to the legislature in a Constitution express
power to recommend specific amendments to that instrument,
involves, by implication, the denial to that body of power to
call Conventions for a general revision of it. We shall see ina
subsequent part of this work,! that such a grant is applicable
only to disconnected and unimportant amendments. It is obvi-
ous that’ a grant of power to propose such amendments in a
summary manner, and without the formalities ordinarily attend-
ing the enactment of fundamental laws, cannot be considered
as an implied prohibition to effect a general revision of a Con-
stitution in the only appropriate and practicable way, by a Con-
vention. If it be not in the power of a legislature to call a Con-
vention, that fact is not to be inferred from a positive authority
to effect a different object in a different way. The idea advanced

1 See post, §§ 538-540.
CAN THE LEGISLATURE BIND THE CONVENTION ? 389

by the Court is based on the legal maxim, expressto unius est ex- *
clusio alterius,—a maxim doubtless of wide application in the
construction of ordinary statutes, and of contracts between man
and man, but whose applicability to the construction of funda-
mental laws has been denied or doubted by high authority.

§ 396. Secondly. It is too late to deny the right of a legisla-
ture, in the absence of express constitutional authority, to call
a Convention, and in general to impose upon it conditions in
relation to its organization, and, to some extent, its proceedings.
Though doubtless considered irregular in its earlier stages, the
usage has become established for legislatures to take the initia-
tive in such cases, as of course; and since the year 1820, when
the New York Council of Revision vetoed a Convention Bill
because the legislature had passed it without providing for a
submission of it to the people, not as being beyond its power,
but as inexpedient, the power has very frequently been exercised.
The eminent judges composing that council did not question
the right of the legislature to call a Convention, but insisted
that it was “most safe and wise,” and “ most accordant with
the performance of the great trust committed to the representa-
tive powers under the Constitution,” that Conventions to alter
that instrament “should not be called at the instance of the
legislature without the previous sanction of the people ;” and
they cite numerous instances in which legislatures, desiring to
call Conventions, were required by constitutional provision to
submit the question of the expediency of so doing to a pop-
ular vote2 It is noticeable, moreover, that the General Assem-
bly of New York had, at the time the opinion we are consider-
ing was delivered, twice exercised the power in that opinion
declared to be so doubtful, — once in 1801, without submit-
ting the question of a Convention to the people; and again in
1821, after an affirmative vote of the people, pursuant to the
advice of the Council of Revision.

The first point, then, made by the Court, relating to the
power of the legislature, was not well taken.

§ 397. II. The other point, touching the character and rela-
tions of the Convention to the existing government, was equally
without force. The judges assert that “neither the calling of a

1 See post, §§ 570-574 e. ;
2 See Appendix F, for the entire opinion of the Council.
390 CAN THE LEGISLATURE BIND THE CONVENTION ?

Convention, nor a Convention itself, is a proceeding under the
Constitution.” “It is,” they say, “above and beyond the Con-
stitution ;” .... and they add, “a Convention is not a gov-
ernment measure, but a movement of the people, having for
its object a change in whole or in part of the existing govern-
meni.”

Upon these extraordinary statements I remark —

1. That they all beg a question, which I deem to be the most
important one in American constitutional law, whether, as Jus-
tice Wilson said in the Pennsylvania Convention to ratify the
Federal Constitution, the sovereignty in our governments “is
and remains in the people;” or whether, upon the call of a
Convention, it shifts its Jocus into the hands of a majority of its
members. Of the proposition that “a Convention is not a pro-
ceeding under the Constitution, but above it,” what evidence is
adduced except the mere dictum of the judges themselves, pass-
ing extra-officially upon a question of infinite magnitude, on
which, as they admit, they bad heard no argument, and about
which they had never thought until the reference was made four
days before, or consulted together until the very day the opinion
was written ?

So far from a Convention not being a proceeding under the
Constitution, but above it, it is one of the chief excellencies of
our system that, under it, those constitutional reforms which
elsewhere have generally required for their consummation out-
breaks of revolutionary violence, are anticipated and carried
through by the voluntary and peaceable operation of the gov-
ernment itself. In this respect, one of our governments, as |
have many times intimated, exhibits the qualities of a vital
organism, in which are. bound up distinct but interdepend-
ent systems, whose objects are respectively the defence, the
growth, and the reparation or renewal of the economy.

On the other hand, the theory of the judges supposes in the
Commonwealth two independent and mutually antagonistic
orders of agencies: one constituting the government, charged
with the regular administration of the laws, and responsible for
the safety of the public liberties; and the other, forming the
Convention, an eccentric and irresponsible body, somehow
launched into the system, to play havoc with the Constitu-
tion and laws lying under its feet. It is enough to exhibit, side
CAN THE LEGISLATURE BIND THE CONVENTION ? 391

by side, the two theories of the state, to see which is the true
one. The one regards it as a single, complete, living organism,
possessing in itself all the powers necessary to insure its ben-
eficent operation and its continuity. The other makes of it a
dual system of unrelated and hostile organizations, whose ten-
dency must be to conspire, not for the good of the whole, but
for the destruction of each other.

§ 398. So, of the assertion that a Convention is not a govern-
ment measure. If by that is meant that a Convention is an in-
stitution which can legitimately come into being, and run its
career, in opposition to the government, or without its consent,
supervision, or control, the statement is manifestly untrue, unless
the Convention is itself the government. There is no escaping
from this dilemma. If the government retains its powers at all,
it must retain them wholly, and it must govern the Convention
as well as individual citizens. If, when a Convention assembles,
on the other hand, the government is shorn of its powers, or re-
tains them only so far as they are not appropriated by the Con-
vention, it ceases to be the government, —it is but a subaltern
agency, existing only by the sufferance of another, which is
supreme.

§ 399. Again. The judges say that the calling of a Conven-
tion “is a measure that must come from the people themselves.”
By the term “people” in this clause, must be meant either the
whole body of the nation, that is, the sovereign, or the electoral
body. Whichever was intended, nothing could be more absurd,
if it was meant thereby to assert, that it is competent for the
people to call Conventions and carry through constitutional
changes, independently of the existing government. If the leg-
islature, as the judges say, “is only one of the instruments of
that absolute sovereignty, which resides in the whole body of
the people,” the codrdinate departments which, together with
the legislature, constitute the government, must be authentic
representatives of that absolute sovereignty ; and a Convention
can be nothing more. Whatever, then, comes from the govern-
ment, acting within the scope of its powers, comes from the
people. This is as true of legislatures as of Conventions. The
one are no less “instruments of absolute sovereignty,” referred
to, than are the other. But admitting the competency of the peo-
ple to call Conventions, it would be impracticable, except through
892 CAN THE LEGISLATURE BIND THE CONVENTION ?

legislative interposition. All they can do is, to pass upon propo-
sitions submitted to them, under the direction of some agency
having power to deliberate, and not too numerous to assemble
and act for the whole. Any other course would lead to local
and conflicting determinations. It is perfectly true, that the
calling of a Convention is a measure that must come from the
people themselves, but from the people acting through their
accustomed and recognized agents, not through persons or bod-
ies, unknown to the law, self-elected and irresponsible.

§ 400. In the Massachusetts Convention of 1853, a similar
question arose, and led to a very elaborate discussion, upon a
state of facts not unlike those above detailed.

In a former part of this chapter, we have seen, that a question
was started in that Convention as to its power to issue a pre-
cept for the election of a member to fill a vacancy, from the
town of Berlin; that the Convention decided to issue, not a
precept, but a simple notice, informing the town of the vacancy,
and that, on motion of Mr. Butler, of Lowell, it adopted a form
of notice, of which the concluding and material part was as fol-
lows — addressed to the selectmen of the town: —.... “Iam
directed, by a vote of the Convention, to request you to convene
the qualified electors of your town, as soon as may be with a
due regard to notice, in order to their electing and deputing a
delegate to represent them in this Convention, in the manner pre-
scribed by the second section of the Act calling the Convention,
adopted by the people on the second Monday in November, «. p.
1852.”

Of the last clause of this notice, upon which the discussion
arose, the meaning is this: By the Act of May 7, 1852, the
question of calling a Convention to revise the Constitution of
Massachusetts, was to be submitted to the people of the State
on the second Monday of the following November, the Conven-
tion, if voted for, to be elected on the first Monday of March,
1853, and to meet on the first Wednesday in May, 1853. It
was further provided, that all the regulations for voting at the
general elections of State officers, should apply to the elec-
tion of delegates to the Convention, one of which regulations
was, that all ballots were to be cast in sealed envelopes, and,
if tendered without them, were to be neither received nor
counted.

1 See ante, §§ 340-347.
CAN THE LEGISLATURE BIND THE CONVENTION ? 3938

§ 401. Under this Act, a vote of the people was taken on the
second Monday of November, 1852, Yes or No, on the tollowing
question prescribed therein: —“Is it expedient that delegates
should be chosen to meet in Convention for the purpose of re-
vising or altering the Constitution of government of this Com-
monwealth?” The result of the election was a majority of
about seven thousand in favor of a Convention. On the first
day of March, 1853, a few days before the delegates to the Con-
vention were to be elected, in pursuance of the foregoing Act,
the legislature of Massachusetts, then in session, passed an Act,
leaving it optional with the voters at all elections held in the
State, to use the sealed or open ballots, as they might choose.
Tt was not disputed, that the intention of the legislature was,
that this rule should govern the election of delegates to the Con-
vention. When, therefore, Mr. Butler moved, as above stated,
that the town of Berlin be requested to elect a delegate “in the
manner prescribed by the second section of the Act calling the
Convention, adopted by the people on the second Monday in
November, a. p. 1852,” it was his intention to insinuate that the
Act of March 1, 1853, modifying that of May 7, 1852, was for
that purpose inoperative and void, and to recommend that it be
disregarded by the electors in the Berlin election, though its va-
lidity as to all other elections was not denied. This raised the
question as to the power of the legislature to modify or repeal
the Convention Act, after it bad been adopted by the pecple ;
in other words, the question, whence does an Act passed with
the formalities indicated, derive its efficacy? Is it from the
legislature, or is it from the people acting in their primary ca-
pacity ?—a question, evidently, of great importance ; for, if the
validity of such an Act comes alone from the legislature, that
body might repeal it at its pleasure; whilst, if it be derived
from the people, the people alone would have power to alter
or annul it.

§ 402. By Mr. Butler, Mr. Hallett, and others, who favored the
restriction of the voters of Berlin to the mode of voting prescribed
by the Act of 1852, the opinion of the New York judges above
commented on, was cited as a decisive authority for that restric-
tion, — the ground being taken by them, for the reasons stated
in the opinion, that the legislature was incompetent, by its Act
of March 1, 1853, to change the provisions of the previous Act
894 CAN THE LEGISLATURE BIND THE CONVENTION ?

passed upon by the people. They contended, that when the
people adopted the Convention Act in November, 1852, they
adopted the whole law, and not simply answered the question,
whether it was expedient that delegates should be elected toa
Convention to revise the Constitution; that consequently every
provision of that Act was adopted by them and in force, and
that those provisions severally derived their efficacy from the
same source, the people, through the vote taken upon them ; that
the same conclusion would follow from a view of the powers of
the legislature; for that, by the Constitution of the State —
Article Nine of the Amendments of 1820—a mode had been
provided, in which, by the recommendation of the legislature,
followed by a vote of the people, “any specific and particular
amendment to the Constitution” might be made, and that, be-
side that, the Constitution contained no grant of power to the
legislature to meddle with the Constitution, much less to con-
vene any other body with authority to do it; that, accordingly,
when the legislature submitted to the people the Act of May a
1852, it submitted it not as a law, since it had been drawn up
outside the proper province of that body, but as a recommenda-
tion merely, to be rendered effectual and valid as a law only by
the fiat of the people ; that, consequently, the legislature, having
had no authority to pass, were equally incompetent to repeal or
modify the law, when put in force by the popular vote.

§ 403. On the other hand, it was contended by Mr. Choate,
and Judges Parker and Morton, that the order respecting the
mode of voting to fill the vacancy from Berlin, could be defended
only on one of these two grounds: either, first, that the Act of
March 1, 1853, was wholly void, so far as related to the mode
of voting for delegates to the Convention, because the legisla-
ture had no constitutional power to enact it; or, secondly, that
although it was admitted to be a valid Act, and one which could
be enforced in a court of justice, the Convention, by some tran-
scendent power, might, for its own action, at least, annul it; that,
as to the first hypothesis, it was perfectly clear, that a legislature
possessed, at any moment, exactly the powers which the then
existing Constitution gave it, or allowed to it, neither less nor
more, —- its power over subjects of public concernment remain-
ing the same, so long as the Constitution remained the same;
that, assuming that the legislature, which, by the Act of May 7,
CAN THE LEGISLATURE BIND THE CONVENTION ? 395,

1852, ordained, that the sealed envelope should be used in voting
for delegates to the Convention, had power to make such a pro-
vision — which nobody had yet called in question — then the
legislature which sat in March, 1853, had power to modify that
provision, if the Constitution which existed in May, 1852, existed
without change in March, 1853; in other words, if one legislature
could constitutionally prescribe the use of one kind of ballot for
a future election, a subsequent legislature, at any time before
such election, might prescribe the use of a different kind of bal-
lot, if the whole and every part of the Constitution continued
all the while unchanged; that the power of a legislature to pass
such a law was derived from that provision of the Constitution
which empowered the general court to pass all manner of laws
deemed by it to be “good and wholesome ;” that the moment
a Convention is authoritatively called, whether, under the Mas-
sachusetts Constitution, the legislature could call one or not,
then — in the absence, at least, of a mode of voting prescribed
by the sovereign power — the power of the legislature to make
good and wholesome regulations touching times and places and
modes of voting, the place of the sitting of the Convention, and
the like, attached and was quickened into activity, and con-
tinued perfect, at least till the elections were consummated; -
that the alleged power of the people to enact a law about sealed
envelopes or any thing else, does not exist, in the light either of
the Constitution or of historical facts;! that, laying aside the
former, the fact was, that the legislature caused to be presented
to the people, according to the forms of law, the question,
whether they deemed it expedient that a Convention should be
called ta consider of revising the Constitution ; that the people
answered Yes, and there they rested; that they never passed
upon the sealed envelope, or any other detail of the law what-
ever; that the second hypothesis referred to, of some transcend-
ent power in the Convention, by virtue of which it was enabled,

1 Reference is here made evidently to ordinary laws. Of the power of the
people to enact fundamental laws there is not only no doubt, but it is clear that
no other body has power to enact them, except by express warrant for the par-
ticular occasion. For an exposition of the general principle stated above, that
the people have not the power of ordinary legislation, under our Constitutions,
and cannot be invested with it by the legislature, see the cases cited below,
§ 418, note.
396 CAN THE LEGISLATURE BIND THE CONVENTION ?

although the law of March 1, 1858, was valid, to annul it, was
equally unfounded ; that if the power existed, so far as the Con-
vention’s own action was concerned, disobedience to it by the
selectmen of Berlin, under the recommendation of the Conven-
tion, would not for that reason be lawful or go unpunished ; that
the power, however, was not admitted, but tested, as it must
be, by its consequences and results, it was extravagant and ab.
surd ; that its exercise was without precedent in the history of
American constitutional liberty; that no Convention, called
together under a statute of the existing government to revise
a Constitution —and all American Conventions, or all, with
scarcely an exception, had been so called — had ever yet assumed
to nullify the law of election prescribed by the authority which
called it together; that, finally, the people, by the vote ratifying
the Act of May 7, 1852, willed two things: first, that there
should be a Convention; second, that it should be called by
the legislature, sitting as a legislature, as part of the established
government; and that the elections of its members should be
conducted exactly as that legislature should prescribe in the ex-
ercise of its ordinary unfettered discretion — conclusions that
flow directly from the fact that the people had responded favor-
ably to the proposal of a Convention; they rested there, thus
leaving it, by irresistible implication, to the legislature to carry
out their will in its own way, and that then two successive leg-
islatures assumed to make the needful regulations for electing
the Convention accordingly, and the people assembled, pursuant
to custom, and under those regulations cast their votes and
retired.)

§ 404. To these arguments I shall add one or two observa-
tions, calculated, as I think, to place the subject under consider-
ation in a still clearer light. The principal point made by the
judges of the New York Supreme Court, before referred to,
and by the advocates of the sealed envelope in Massachusetts,
citing the decision of those judges as their main authority, was,
that the Acts passed by the legislatures of those States respec-

1 See speeches of Messrs. Choate, Parker, Morton, and others, in Deb. Mass.
Conv. 1858, Vol. I. pp. 78, 88, 116,117,144. In this debate Judge Parker
contended, that not only could a legislature modify the Act calling a Conven-
tion, under the circumstances detailed in the text, but that it could wholly

repeal the Act, even after the Convention had commenced its session, thus pute
ting an end to its existence. Id. p. 155.
CAN THE LEGISLATURE BIND THE CONVENTION ? 397

tively, and adopted by the people, derived their sole efficacy
from the popular vote, and were therefore incapable of a subse-
quent repeal or modification by the same or another legislature.
Whether this was so or not depends mainly upon the terns of
those Acts, ascertaining the extent to which the people were re-
quired to pass upon them. Those Acts consisted of two parts:
first, of one or more sections submitting to the people a single
question, Whether or not they deemed it expedient to call a
Convention and, secondly, of sections prescxibing the time,
mode, and conditions of the election at which the question was
to be answered; and, in case of an affirmative answer, provid-
ing for the election of the delegates, and the assembling, organi-
zation, and conduct of the Convention. The same is true of
all the Acts calling Conventions which have come to my knowl-
edge, except the few which contained no provision for a prelim-
inary vote of the people on the question of Convention or no
Convention. Thus the terms of the Massachusetts Act of May
7, 1852, are as follows :—

The first section is, in substance, that “ the legal voters of the
State, at the November election, 1852, shall give in their voles
by ballot on this question, ‘ Is it expedient that delegates should
be chosen to meet in Convention for the purpose of revising or
altering the Constitution of government of this Common-
wealth?’ ” The last clause contains absolutely every thing
that was submitted to the people. The Act then proceeds as
follows: The Governor and Council shall count the votes, and
on the first Wednesday in January, 1853, shall make known the
result; and if a majority of the votes are in favor of a Conven-
tion, it shall be taken to be the will of the people that a Conven-
tion should meet accordingly ; and the Governor shall call upon
the people to elect delegates to meet in Convention, &c. The
second, third, fourth, and fifth sections are in the same impera-
tive terms: “the inhabitants shall elect one or more delegates” ;
“ every person entitled to vote for representatives, &c., shall have
a right to vote;” “the same officers shall preside at such elec-
tions,’ &c.; the votes for said delegates “ shall be received, sorted,
and counted, &c., in the same manner as is now provided,” &c;
“all laws now in force shall apply and be in full force;” “the
persons so elected shall meet in Convention,” at a time and place
specified; “they shall be judges of the returns and elections of
398 CAN THE LEGISLATURE BIND THE CONVENTION ?

their own members; they shall proceed, as soon as may be, to
organize themselves in Convention ;” “and such alterations or
amendments, when made and adopted by the Convention, shall
be submitted to the people,” &c.; “and, if ratified by the people,
in the manner directed by said Convention, the Constitution
shall be deemed and taken to be altered and amended accord-
ingly ;” “and if not so ratified, the present Constitution shall be
and remain the Constitution of government of this Common-
wealth.” @

The New York Act was substantially identical with the one
just described, differing from it only in the unimportant particu-
lar, that, at the preliminary election, the inspectors of election
were required to prepare ballots, on which should be written,
“ Convention,” and “No Convention,” and all citizens were
“allowed” to cast one or the other of them, as they should
deem best. Should the result of the election be a vote in favor
of a Convention, the remaining twelve sections of the Act, con-
sisting of imperative provisions, similar to those above quoted,
were to take effect.

§ 405. Now, although it is true that, in these Acts, the imper-
ative provisions were most of them pivoted upon the contin-
gency of an affirmative answer to the question of “ Convention
or no Convention,” and that, in case a negative answer should
be given, they would lose their entire force as laws, yet it is also
true that, so far as those Acts were ever to have force as laws,
they were to derive it from the legislature. They were couched
in the language of laws, of commands, addressed by a superior,
able to enforce them, to inferiors ; they differed from other laws
merely in being made conditional, as to their taking effect, upon
the happening of a future event, the affirmative vote of the
people upon a single question. If the event did not happen, the
laws would remain inoperative ; if it did happen, they would at
once go into effect.

Now, what degree of efficacy is to be attributed to such con-
ditional Acts, and what the source from which that efficacy is
derived, are legal questions, upon which, fortunately, there is no
lack of authority. Our State legislatures have, within the last
twenty years, in many cases, passed Acts relating to the sale of
intoxicating liquors, to schools, railroads, &c., and required, be-
fore they should take effect, that they should be submitted to the
CAN THE LEGISLATURE BIND THE (0:\\ ENTION ? 399

people. If approved by the people, they should be enforced, and
if not, they should not. By our Constitutions, the power of
passing laws having been exclusively committed to our General
Assemblies, the objection has been raised, in these cases, that
the Acts were unconstitutional, as attempting to transfer to the
people the right to make laws. The courts, however, have, in
many of the cases, sustained the action of the legislature, on
the ground that the laws were perfect and complete as such,
when passed by that body, but were made contingent, as to
their taking effect, upon the happening of a future event — the
approving vote of the people.) When, on the other hand, by
the terms of the Acts, the fiat which is to make them laws is to
be spoken by the people, they have been holden to be unconsti-
tutional. ;

The analogy between these cases and those of the Conven-
tion Acts of New York and Massachusetts, is, in my judgment,
complete. These Acts were in terms imperative, per verba de
presenti, and but for the contingency provided for of a popular
vote, they would have gone into immediate effect. With that
provision, however, they stood thus: If the people should, at
the election provided for, vote that a Convention was inexpe-
dient, none would be held; and of course those provisions re-
quiring an election of delegates to form one, would not go into
effect ; otherwise they would.

§ 406. Again: When a Convention Act is submitted to the
people, it is clear that it is the mere question of the expediency
of a Convention that is passed upon. The people have no
power of deliberation, or of suggesting amendments, but merely
of pronouncing upon-single propositions, yea or nay. An affirm-
ative vote declares it to be expedient, a negative to be inexpe-
dient, to call a Convention — a declaration which has neither
the form nor the effect of a law. The language of a law is
“ fiat” —let it be done; that of such an Act of the people is
“ videtur ” —it seems good, — “ desiderandum est” —it is de-
sirable—a mere expression of opinion, not the uttering of a
command. The contrary, however, is true of those parts of
such Acts which relate to the details necessary to give practical
effect to a Convention Act. There is no expression of opinion,

1 Barto v. Himrod, 4 Seld. R. 483; with which compare The People v. Col-
lins, 5 Mich. R. 343. See pos/, § 419, and cases cited in note.
400 CAN THE LEGISLATURE BIND THE CONVENTION ?

but the uttering of positive commands to the officers of the
government, voters, &c., contingent, as to their taking effect,
upon the opinion expressed by the electoral body.

§ 407. That the construction contended for is the proper one
to give to such Acts, is inferable from the adjudication of the
Supreme Court of Illinois upon cases that have arisen in that
State. By the existing Constitution of the State, that of 1847,
no Act of the General Assembly authorizing corporations or
associations with banking powers could go into effect or in any
manner be in force, unless the same should be submitted to the
people at the general election succeeding the passage of the
same, and be approved by a majority of all the votes cast at
such election for and against such law.)

In 1851, a General Banking Law was passed by the General
Assembly and submitted to the people, agreeably to the consti,
tutional provision, and ratified by them. To that part of this
law prescribing the mode in which taxes should be assessed
against the corporations thereby created, and the amount of
their taxable property be ascertained, an amendment was
made by the General Assembly in 1857, but the amendment was
not submitted to the people. Against the validity of this
amendment the objection was raised by one of the banks
affected by it, that it was void, because it had not been ratified
by the people as required by the Constitution ; that the General
Assembly had no power to repeal or modify any clause of the
General Banking Law which had been submitted to and
adopted by the people, without the same solemnities that at-
tended its original passage. In substance, it will be observed,
this objection was precisely the same as that taken to the New
York and Massachusetts Acts referred to, namely, that, in ratify-
ing the General Banking Law, the people had ratified every
clause of it alike, and so placed all parts of it equally beyond
_ the reach of a legislative repeal. The case coming before the
Supreme Court, it was held by that body, that the vote of the
people did not render the clause in question irrepealable by the
General Assembly. The Court, speaking of the effect of the
vote of the people, say : —

“ That vote gave to this clause no additional sanction. The
subject of taxation and the revenue are, by the Constitution,

* Ill, Const. of 1847, Art. X. § 60.
CAN THE LEGISLATURE BIND THE CONVENTION? 401

placed in the hands of the legislature alone. Upon this subject
they have complete jurisdiction to legislate independently of the
popular vote, and such vote in approval of laws which might take
effect without it, could not place the law beyond or above the juris-
diction of the General Assembly.” }

§ 408. In this case the clause in question was held not to
have been made irrepealable by the popular vote upon the law
of which it formed a part, because it related to a subject-matter
properly cognizable by the General Assembly under its general
powers granted by the Constitution. And it was so held, al-
though the Court expressly admitted that the clause sought to
be amended had been submitted to and voted on by the people
of the State. The Court say : —

“ We are clearly of opinion that some of the provisions of
this law which was submitted to the people are subject to legis-
lative interference and contro], and among them is the one in
question. We may safely say that the Constitution did not re-
quire that the mode of assessing the property of the bank for
the purposes of taxation should be submitted to the people, and
tts submission to them was a work of supererogation.”

Although, then, an Act in all its parts be submitted to the
people, and they pass upon it throughout, it is not placed be-
yond legislative repeal, as to such parts of it as are within the
general cognizance of the General Assembly, when there is
nothing in the Constitution requiring the subject-matters com-
prised within those parts to be submitted to a vote of the
people.

It is clear, then, from this decision, that had the New York
and Massachusetts Convention Acts been submitted to and
voted on by the people, in toto, section by section, they would
still have been, in the main, subject to legislative repeal or modi-
fication. But, as we have seen, it’ is doubtful whether those
Acts ever were submitted as a whole. It is pretty certain that
in neither case was any part of them submitted except that re-
lating to the expediency of the call of a Convention.

And with reference to the Illinois case, it is conceived, that the
decision might have been placed upon broader and more solid

1 Bank of the Republic v. County of Hamilton, 21 Ill. R. 53; afterwards

confirmed by the same Court in Reaper’s Bank v. ‘Willard, 24 Ill. R. 433, and
in Smith v. Bryan, 34 Ill. R. 364.
402 CAN THE LEGISLATURE BIND THE CONVENTION ?

constitutional ground by holding simply that the Constitu‘ion of
the State required only the question of the expediency of incor-
porating banking institutions to be passed upon by the people,
leaving all questions of details to the General Assembly, to which,
as involving the exercise merely of a legislative discretion, they
belonged.

§ 409. The result of the discussion in the Massachusetts Con-
vention, it should perhaps be stated, was that that body adopted
by a large majority the notice to the town of Berlin offered by
Mr. Butler, and the town accordingly elected a delegate to fill
the vacancy, in the manner pointed out in “ the Act calling the
Convention, adopted by the people on the second Monday of
November, 1852.” The force of this action of the Convention,
however, as a precedent, is much impaired by the fact that all
the amendments proposed by it were repudiated by the people.

§ 409 a. The question as to the power of legislatures to bind
Conventions by the Acts calling them received a very extended
discussion, also, in the highest court of Pennsylvania, in 1878,
since the previous editions of this work were published. The
facts essential to a comprehension of the questions raised are,
that the legislature, at its session in April, 1872, passed an Act
calling a Convention “to amend the Constitution,” without a
special warrant in the existing Constitution, which contained no
provision for amending that instrument save by the action of the
legislature followed by a ratification by the people; that, ante-
cedently to the passing of such Act, however, the question of
calling a Convention had, by the legislature, been submitted to
the people, and had been answered in the affirmative; that the
Act passed in pursuance of that vote had provided that the Con-
vention should have power to propose to the people of the State,
for their approval or rejection, a new or amended Constitution,
subject to the following provisions: first, that one third of all
the members of the Convention should “ have the right to re-
quire the separate and distinct submission to a popular vote of
any change and amendment proposed by the Convention,” and
that that body should submit the amendments agreed to by it to
a vote of the people “at such time or times and in such man-
ner as the Convention should prescribe, subject, however, to the
limitation as to the separate submission of amendments contained

1 Wells v. Bain, and Donnelly v. Fitler, 75 Pa. St. R. 39, 55, 56.
CAN THE LEGISLATURE BIND THE CONVENTION ? 403

in this Act;” ‘secondly, that the election to decide for or against
the adoption of the new Constitution or amendments should “be
conducted as the generdl elections of this commonwealth are
now by law conducted ;” thirdly, that nothing in the Act con-
tained should authorize the Convention “to change the language,
or to alter in any manner the several provisions, of the ninth arti-
cle of the present Constitution, commonly known as the Bill of

Rights,” but that the same should “ be excepted from the powers’

given to said Convention,” and should “remain inviolate for-
ever.”

Notwithstanding these restrictions, the Convention made the
following proposals and dispositions directly at variance with
them: It proposed to the people an amended Constitution, to be
voted on as a whole, although one third of all the members of
the Convention, as it was claimed, demanded that Article V.,
relating to the judiciary, should be separately submitted. It
also disregarded the requirements of the Act in respect to the
mode of conducting the election to be held for the adoption or
rejection of the Constitution. It created, by ordinance, a special
board of commissioners for the city of Philadelphia, who should
conduct the election,,instead of the proper election officers of the
commonwealth, by whom its elections were by law to be con-
ducted. Finally, it proposed alterations in several provisions of
the Bill of Rights. Bills in chancery were filed in Philadelphia,
by two different parties, praying for injunctions to prevent the
holding of the elections in that city under the ordinance, upon
two grounds, both relating to the mode in which the Constitution
was submitted to the people, — the first, that the ordinance for
submission under the direction of special commissioners was void,
as in violation of the express limitations contained in the Act of
the legislature, which was claimed to be mandatory; and the
other, that the submission of the Constitution as a whole, and
not in separate parts, as required, it was claimed, by one third
of all the members of the Convention, demanding the separate
submission of Article V., was in like manner void. The injunc-
tions prayed for were allowed unanimously by the full bench of
the Supreme Court, sitting at nisi prius, upon the first ground,
the court holding that the legislative restrictions were mandatory
and absolutely binding. As to the question of separate submis-
sion of Article V., the decision of the judges wes adverse to the

“
404 CAN THE LEGISLATURE BIND THE CONVENTION ?

plaintiffs, not on the ground that the limitation was not man-
datory, but that it was not clearly shown that one third of the
members of the Convention had required Article V. to be sub-
mitted separately ; that, as “the Convention was clothed with
express power to act upon the question of submitting the amend-
ments in whole or in part, the question of a separate submission,
being one committed to the whole body, of which the requiring
third was a part, it must be presumed that the decision of the
body as a whole was rightly made, and either that the request
was not made by a full one third of all the members, or, if made
by one third, that it was not made in a regular or orderly way.

§ 4094. In relation to the principal point involved in the
cases, as to the power of, the Convention to disregard and in ef-
fect to repeal the clause of the Convention Act touching the mode
of conducting the election, the court, per Agnew, Ch. J., said: —

“‘Since the Declaration of Independence, in 1776, it has been
an axiom of the American people, that all just government is
founded in the consent of the people. This is recognized in the
second section of the declaration of rights . . . of Pennsylvania,
which affirms that the people have at all times an inalienable
and indefeasible right to alter, reform, or abolish their govern-
ment in such manner as they may think proper. A self-evident
corollary is, that an existing lawful government of the people
cannot be altered or abolished unless by the consent of the same

1 Wells v. Bain, and Donnelly v. Fitler, 75 Pa. St. R. 39, 55,56. It is diffi-
cult to reconcile this statement of the court with the fact, clearly apparent from
the proceedings of the Convention, where it was charged on numerous occa-
sions, and never denied, that more than one third of all the members of that
body had demanded the separate submission of the judiciary article. It does
not appear, however, from the proceedings, that any formal presentation of
that fact in writing, which was at one time suggested though disapproved, was
ever made; and when propositions for such submission were presented by way
of amendment to the report of the committee on submission, they were uni-
formly voted down. The pretence was, that they ought to have been presented
in some other way. Nothing in the matter, however, is entirely clear but that
the majority of the Convention were resolved that the Constitution should be
submitted as a whole. The presumption, therefore, indulged by the court, that
the Convention, which, in the same opinion, it was pronouncing guilty of dis-
obedience to law, was, in respect to the matter of separate submission, obe-
dient, becanse it was not affirmatively shown to have been the contrary, though
technically correct, perhaps, goes but little way to exculpate the majority of
that body. For the whole debate, see Deb. Pa. Conv. 1872, Vol. VIII. pp.
620-712.
CAN THE LEGISLATURE BIND THE CONVENTION ? 405

people, and this consent must be legally gathered or obtained.
The people here meant are the whole, — those who constitute the
entire State, male and female citizens, infants and adults. A
mere majority of those persons who are qualified electors are not
the people, though, when authorized to do so, they may represent
the whole people. The words ‘in such manner as they may think
proper,’ in the declaration of rights, embrace but three known
recognized modes by which the whole people, the State, can give
their consent to an alteration of an existing lawful form of gov-
ernment, viz. : —

“1. The mode provided in the existing Constitution.

“2. A law, as the instrumental process of raising the body for
revision and conveying to it the powers of the people.

“3. A revolution.

“ The first two are peaceful means through which the consent
of the people to alteration is obtained, and by which the existing
government consents to be displaced without revolution. The
government gives its consent, either by pursuing the mode pro-
vided in the Constitution, or by passing a law to call a Conven-
tion. ‘If consent be not so given by the existing government, the
remedy of the people is in the third mode, — revolution.”

From these premises the court draw the following conclusions:

“ The people, that entire body called the State, can be bound
as a whole only by an act of authority proceding from themselves.”
The authority to speak for them, in a state of peace, the people
“ confer upon a part only, at an election authorized by law, and
the electors at such election must be those who possess the quali-
fications sanctioned by the people in order to represent them ;
otherwise they speak for themselves only.” “As it is not pre-
tended that the Convention was sitting as a revolutionary body,
and as it did not proceed in the mode provided for amendment
in the Constitution, it was therefore the offspring of law. It had
no other source of existence.

* The legislature having adopted a proceeding by law as the
means of executing their will, and that law being thus the instru-
ment chosen to express their will, it necessarily became the chan-
nel of their authority, and the only chart” of the Convention’s
powers. “Ina state of peace a law is the only means by which
the will of the whole people can be collected in an authorized
form, and by which the powers of the people can be delegated to
406 CAN THE LEGISLATURE BIND THE CONVENTION ?

the agents who compose the Convention.” ‘ The form of the law
is immaterial. It may be a law to confer general authority, or
to confer special authority. It may be an invitation, in the first
place, to meet in primary assemblies to sclect delegates, and con-
fer on them constituted powers ; or a law to take the sense of the
people on the question of calling a Convention, and then a law
to make the call, and confer the powers the people intend to con-
fer upon their agents.” To the question, What powers were con-
ferred upon the late Convention? the answer must be that “ by
the first Act,” that of 1871, “ entitled ‘ An Act to authorize a popu-
lar vote upon the question of calling a Convention,’ the one sub-
ject of both title and text is the question of calling a Convention.
That question was authorized to be submitted to a popular vote.
That question was answered in the affirmative; the people, an-
swering the legislature, said, ‘You may call a Convention.’ This
was all the vote expressed.” ‘It is evident that, had the mat,
ter dropped there, and the legislature had made uo call, no Con-
vention and no terms would ever have existed. Not a line, nor
a word, nor a syllable in this Act expresses an intent to make the
call themselves, or on what terms it shall be made, or what powers
shall be conferred. Did the people by this Act, without an ex-
pressed intent and by mere inference, intend to abdicate all
their own power, their rights, their interests, and their duty to
each other, in favor of a body of mere agents, and to confer upon
them, by a blank warrant, the absolute power to dictate their in-
stitutions, and to determine finally upon all their most cherished
interests ?”’ “When, therefore, the people elected delegates
under the second Act, they adopted the terms it contained by act-
ing under it. The delegates so elected are clearly estopped by
the record itself from denying the terms under which they hold
their seats, for they hold them under that Act and no other.”
Among the terms contained in the Act is one that “ the election
to decide for or against the adoption of the new Constitution, or
specific amendments, shall be conducted us the general elections
of this commonwealth are now by law conducted.” . . . “ This sec-
tion of the law is mandatory, and is so for the best of reasons, —
it is the only legally authorized means of taking the sense of the
people upon adoption of the amendments which can bind the
whole people.” ‘It is therefore clear to our minds that the
ordinance relating to the election in the city of Philadelphia is
CAN THE LEGISLATURE BIND THE CONVENTION ? 407

flatly opposed to the Act of 1872, and is therefore illegal and
void.” }

§ 409 c. Afterwards a bill was filed in Pittsburgh, in another
county, praying for an injunction against holding any election in
that county, upon the same grounds set out in the bills above
described, and upon the further ground, that the action of the
Convention in altering several of the provisions of the Bill of
Rights, contrary to the limitations imposed by the Act calling
it, was illegal. The lower court refused the injunction, on the
ground, that these limitations were not binding upon the Con-
vention, since that body, it said, was possessed of sovereign
power; and that, conceding the ordinance for holding the elec-
tion in Philadelphia to be illegal, it had no bearing upon Alle-
gheny County, and the court would not entertain a bill for an
injunction filed by parties as to whom the legality or illegality
of the ordinance in reference to Philadelphia, in another county,
was a mere abstract question. On appeal to the Supreme Court,
this judgment of the court below was affirmed. This decision of
the Supreme Court, at first sight, appears to be a reversal of its
previous decision in Wells v. Bain and Donnelly v. Fitler, de-
scribed in the preceding section, but it was in fact a confirmation
of the principles announced in that decision. After the former,
and before the present decision was rendered, the Constitution
framed by the Convention had been submitted to and adopted
by the people, including the change recommended to be made in
the Bill of Rights ; and thus, however irregular, or even revolu-
tionary, its inception had been, it had become the fundamental
law of the State, and the Supreme Court must accept it as such.
But while the court held that the Constitution as a whole was
binding upon that tribunal because ratified by the people, it pro-
ceeded, in a most impressive and luminous judgment, to repudi-
ate the doctrine propounded by the court below as to the pos-
session by the Convention of sovereign power. After rehearsing
the facts above stated, the court say : —

“¢ The change made by the people in their political institutions
by the adoption of the proposed Constitution since this decree”
(was entered by the court below) “forbids an inquiry into the
merits of this case. The question is no longer judicial, but in
affirming the decree we must not seem to sanction any doctrine

1 Wells v. Bain, and Donnelly v. Fitler, 75 Pa. St. R. 39, 55, 56.
408 CAN THE LEGISLATURE BIND THE CONVENTION ?

in the opinion dangerous to the liberties of the people. The
claim for absolute sovereignty in the Convention, apparently
sustained in the opinion, is of such magnitude and overwhelming
importance to the people themselves that it cannot be passed
unnoticed.” After stating that in the preceding case of Wells
v. Bain it had been claimed for the Convention that it had the
power to ordain ordinances having the present force of law, and
the instant power to proclaim a Constitution, binding without
ratification, irrespective of the manner adopted by the people
of exercising their right to alter or amend their frame of govern-
ment, and that this imputed sovereignty in a Convention called
and organized under a law, as the very means adopted by the
people to exercise their reserved right of amendment, was not
discussed in that case with the fulness the importance of the
question to the people demanded, the court say : —

‘A Convention has no inherent rights; it exercises powers
only. Delegated power defines itself. To be delegated it must
come in some adopted manner to convey it by some defined
means. The right of the people is absolute to alter, reform, or
abolish their government in such manner as they may think
proper. This right being theirs, they may impart so much or
so little of it as they shall deem expedient. It is only when they
exercise this right, and not before, they determine, by the mode
they choose to adopt, the extent of the powers they intend to
delegate. Hence the argument which imputes sovereignty to a
Convention, because of the reservation in the Bill of Rights, is
utterly illogical and unsound. The Bill of Rights is a reserva-
tion (by the people) ‘of rights out of the general powers of
government to themselves, but is no delegation of power to a
Convention. If, by a mere determination of the people to call a
Convention, whether it be by a vote or otherwise, the entire sov-
ereignty of the people passes ipso facto into a body of deputies
or attorneys, so that these deputies can, without ratification, alter
a government and abolish its Bill of Rights at pleasure, and im-
pose at will a new government upon the people, without restraints
upon the governing power, no true liberty remains. .. . The peo-
ple have the same right to limit the powers of their delegates
that they have to bound the power of their representatives. Each
are representatives, but only in a different sphere. It is
simply evasive to affirm that the legislature cannot limit the
CAN THE LEGISLATURE BIND THE CONVENTION ? 409

right of the people to alter or reform their government. Cer-
tainly it cannot. The question is not upon the power of the leg-
islature to restrain the people, but upon the right of the people,
by the instrumentality of the law, to limit their delegates. Law
is the highest form of a people’s will in a state of peaceful goy-
ernment. When a people act through a law, the act is theirs,
and the fact that they used the legislature as their instrument to
confer their powers makes them the superiors, and not the legis-
lature. The idea which lies at the root of the fallacy that a
Convention cannot be controlled by law is, that the Convention
and the people are identical... . The calling of a Convention
and regulating its action by law is not forbidden in the Constitu-
tion. It is a conceded manner through which the people may
exercise the right reserved in the Bill of Rights.... The right
of the people to restrain their delegates by Jaw cannot be denied
unless the power to call « Convention by law, and the right of
self-protection, be also denied. ... If the authority of the people
passes to the Convention outside of the law, the people are left
without the means of self-protection except by revolution. .
Tn conclusion, we find nothing in the Bill of Rights, in the vote
under the Act of 1871, or the authority conferred in the Act of
1872, nothing in the nature of delegated power, or in the consti-
tution of the Convention itself, which can justify an assumption
that a Convention so called, constituted, organized, and limited,
can take from the people their sovereign right to ratify or reject
a Constitution or ordinance framed by it, or can infuse present
life and vigor into its work before its adoption by the people.” ?
§ 409d. The judgment of the Supreme Court allowing the
injunction in Wells v. Bain, though not rendered until the 5th
of December, 18738, two days after the Convention had completed
its labors, had been, it seems, so far anticipated by that body
that it adjourned to the 27th of the same month, at which time
the election for the adoption or rejection of the Constitution,
fixed by the Convention for the 16th, would have been held.
The purpose of this action, as declared by the resolution of ad-
journment, was to examine the returns of votes polled for and
against the new Constitution before proclamation should be made
by the Governor, and to take cognizance and dispose of frauds,
if any should be practised at said election, and to transact “ such

1 Wood's Appeal, 75 Pa. St. R. 71.
410 CAN THE LEGISLATURE BIND THE CONVENTION ?

other business as may be deemed necessary and proper.” The
last clause doubtless concealed, in its general terms, the real
design of the Convention to take further action in the line of its
function as a Convention, and of its claim of powers to nullify
the Act of the legislature, and not simply to examine the returns
and to dispose of frauds, — an exercise of power not only needless,
but, until it was thus specified, unheard of. Whatever its pur-
pose, as the Constitution was adopted by the people, it became
unnecessary to do either of the things stated in its resolution.
After having audited and allowed, therefore, a bill presented for
expenses incurred by the commissioners appointed by the Con-
vention to conduct the election in Philadelphia, whose proceed-
ings had been stopped by injunction, it merely passed resolutions
respecting the powers belonging to it, which it deemed infringed
by the action of the legislature and of the Supreme Court, and
then adjourned sine die.

The resolutions were as follows : —

“1. Resolved, That this Convention was called by the authority
of the people, as determined by their vote under the Act of 1871
declaring that a Convention should be called to amend the Con-
stitution of this commonwealth ; and that this vote was a man-
date to the legislature, which that body was not at liberty to
disobey or modify.

“2. Resolved, That the Constitution of this State is the only
recognized form of-its government; and the people having ex-
pressly reserved to themselves the right to alter, reform, or abol-
ish their government in such manner as they think proper, and
having in distinct terms excepted this right out of the general
powers of government, and declared that such right shall forever
remain inviolate, this Convention deems it to be its duty to
declare, that it is not in the power of any department of an exist-
ing government to limit or control the powers of a Convention
called by the people to reform their Constitution ; and that the
Convention, subject to the Constitution of the United States, is
answerable only to the people from whom it derived its power.”

One member of the committee which reported the resolutions,
however, dissented from the action of the majority, on the ground
that, ‘‘since the submission to and adoption by the people, the
labors and duties of the Convention had practically ceased, and
that it was unwise and inexpedient at that time to make any
GAN THE LEGISLATURE BIND THE CONVENTION ? 411

enunciation of Constitutional Convention powers, which, not being
submitted to or acted on by the people, would only be an expres-
sion of the opinion of a majority of the Convention.”! To this
the minority might have added that, when the Convention had
completed the Constitution it proposed for adoption, and had
submitted it to the people, its function as a Convention had
ceased and determined, and that its adjournment to a future day,
to take further action, was not authorized by the act either of
the people or of the legislature. The former, to adopt the phrase-
ology of the Convention, had recommended the call of a Conven-
tion “to amend the Constitution of this commonwealth,” but it
had given no further power ; and the latter, in making the call,
had declared its purpose to be ‘to revise and amend the Consti-
tution of this State,” with further provisions for submitting the
same to the people, but with no other or greater powers, and it
made no mention of adjourning to a day certain, subsequent to
the election by the people. Its assumption of the power thus to
adjourn was, therefore, a usurpation on the part of the Conven-
tion.?

*§ 409 e. The.importance of the subject may justify a further
remark in regard to the matter in controversy between the Penn-
sylvania Convention of 1872, on the one hand, and the legisla-
ture supported by the Supreme Court, on the other. Looking at
it from the side of the legislature, the impolicy of the restriction
it imposed in respect to altering the Bill of Rights is very ap-
parent. Both Acts resulting in the election of the Convention —
that submitting the question of calling it to the people, and that
making the call — expressed the purpose to be “to amend,” or
“to revise and amend,” the Constitution. In the term “ Constitu-
tion”? is generally embraced, as the term is now used, both the
Constitution in its narrower sense — that is, the ‘Frame of Gov-
ernment ” —and the Bill of Rights. The legislature might well
have anticipated, therefore, that a Convention disposed to stand
upon its extreme rights would claim authority to alter or amend
one as well as the other. The changes in the Bill of Rights rec-
ommended by the Convention and adopted by the people, though
not very extensive or radical, constituted valuable additions to
the existing securities of private rights: that to Section 7, for in-

1 See Deb. Pa. Const. Conv. 1872, Vol. VII. pp. 732, 742, 743.
2 See §§ 473-478, post.
412 CAN THE LEGISLATURE BIND THE CONVENTION ?

stance, forbidding convictions for newspaper libels relating to the
conduct of officers or men in a public capacity, or to any other
matter proper for public investigation or information, when the
fact that such publication was not maliciously or negligently
made should be established to the satisfaction of the jury, in-
stead of the provision of the existing Constitution permitting
the truth to be given in evidence in such suits; and the amend-
ment to Section 17, which, to the provision of the existing Con-
stitution forbidding ez post facto laws, or laws impairing the obli-
gation of contracts, added the words, “or making irrevocable
any grant of special privileges or immunities.”” The other amend-
ments were either slight or incapable of enforcement, as aimed at
the interference of the United States in State elections when not
invited by the State authorities.

The legislature therefore, in forbidding any change, must be
presumed to have been ill-advised as to the wishes of the people
in regard to altering that part of the Constitution. It clearly
would have been better for it to trust the Convention than to at-
tempt to restrict it in regard to what it should or should not pro-
pose when that body could point to a general authority that ap-
peared to authorize amendments to the whole Constitution. The
legislature, in other words, attempted that in which the chances
were equal that it would fail, and in which it did fail. Such a
contest, save where public opinion backing the legislature was
largely preponderant, and the matter prohibited to the Conven-
tion was of vital importance, should have been avoided. But, if
it were deemed advisable to risk a contest, the possibility of a
defeat should have been forestalled by requiring the members of
the Convention to subscribe an oath of obedience to the behests
of the legislature, as a condition of their taking their seats, and
by declaring disobedience, after subscribing the same, to be a
felony.

So far of the case from the side of the legislature. From that
of the Convention: what course, then presenting itself to that
body, was the most patriotic one for it to pursue? It was not
pretended that there was urgent need or pressure for the amend-
ment of the Bill of Rights. It was stated in the Convention as
a fact that the committee on the Bill of Rights was appointed
rather as a declaration on the part of the Convention that it
could not be limited by the legislature, than because the mem-
CAN THE LEGISLATURE BIND THE CONVENTION ? 413

bers desired to make any change in that article The people
adopted it when proposed, but as the Constitution was submitted
as a whole, to vote against the proposed amendment was, per-
haps, to defeat the Constitution, which as a whole was highly
acceptable to the people. They ratified it by a vote of two to
one, but it is improbable that many votes were gained for it, and
probable that many were lost, because of the change proposed in
the Bill of Rights. When disobedience to an impolitic, or even
un unjust, act of legislation is likely to yield no material benefit,
but to become a precedent of indiscriminate disobedience here-
after, it is the part of wisdom and of patriotism to obey. That
principle might well have led the Convention to leave the Bill of
Rights unchanged, thus obeying the mandate of the legislature
in regard to the Bill of Rights, as it did that relating to the crea-
tion of courts “with exclusive equity jurisdiction,’ which had
also been interdicted.

As to the other restrictions imposed by the legislature touch-
ing the mode of submitting the new Constitution to the people,
one and, perhaps, two of which the Convention disregarded, there
can be no question that the legislature had but exercised its
rightful jurisdiction in imposing those restrictions, and that the
Convention was clearly wrong in disregarding them or either of
them. As we have seen, it is not unusual to insert in Conven-
tion Acts positive directions as to the time and mode of submit-
ting the Constitution to be framed by a Convention to the people,
and it is not unfrequently required that the proposed amend-
ments shall be submitted separately, unless the Convention shall
be of opinion that they are so connected with, or dependent
upon, other provisions, that, if voted on separately, the system
might be rendered inharmonious; and in no ease, it is believed,
save that of the Pennsylvania Convention, has the direction of
the legislature in that regard been disobeyed. The precedents,
therefore, on the point, are against the Convention. Considered
on principle, the question is still clearer against that body. To
submit a Constitution to the people requires the services of the
various State functionaries now in office, who know not the Con-
vention as a source of authority to command them, but who
know only the legislature and the people, through whom they re-
ceived their commissions. The act of submission is an act of

1 See Deb. Pa. Conv. 1872, Vol. VIII. pp. 54, 57, 647.
414 CAN THE LEGISLATURE BIND THE CONVENTION ?

ordinary legislation to which the legislature is competent, and to
which the Convention, unless expressly authorized, is incompe-
tent. Where, of the possible and usual modes of submission, some
are expressly interdicted, as in the Pennsylvania Act, no such av-
thority as to those interdicted could be pretended. As intimated
by the Supreme Court of that State, the source of the Conven-
tion’s powers is the Convention Act alone; and when that spe-
cially denies to it certain powers, it cannot exercise them without
a violation of law. It is simply a question of power.}

§ 410. 2. The principles settled by the preceding discussion
make it easy to answer another question relating to the power
of a legislature over a Convention, namely, Can the former bind
the latter to submit the fruit of its labors to a vote of the peo-
ple? If it be granted that a legislature can bind a Convention
in any particular, it is plain that the power ought to exist more
especially in such matters as relate to its modes of organization

1 On the power of a legislature to bind a Convention in relation to submis-
sion to the people, see, further, §§ 410-414, post. One of the ablest lawyers in
the Pennsylvania Convention, who participated in the discussion of a report
recommending the appointment of a Committee on the Bill of Rights, was the
late Judge Jeremiah 8. Black, the delegate from York. Upon the question
of the power of that body to alter the Bill of Rights, and so in relation to the
propriety of appointing such a committee, Judge Black said : ‘I only want to
say now that we are not a revolutionary body, but a body that is acting under
and in pursuance of law. Suppose the legislature had seen proper to say we
should not assemble at all, or that we should make no amendments to the Con-
stitution, — that the Constitution should stand just as it is; then the question
is, whether we could, in defiance of that mandate, assemble ourselves together
in Convention representing as we do the whole people of the Commonwealth,
and, against the will of the people and against the authority of the organized
government now existing, proceed to alter the body of it. I say we could not
do that. That would be revolutionary. Where do we get the power? Where
does it come from? Nobody will deny that we are sitting here in pursuance
of certain Acts of the legislature, — the two Acts of the legislature, — one
which first authorized a vote by the people upon the question, and the other
one which authorized the election of delegates to the Convention. If we de-
rive our power from that source, is it possible that we can take it without the
limitations that were imposed upon it by those who created it? I don’t think
that question can be answered in any but one way.” Deb. Pa. Conv. 1872,
Vol. I. pp. 57, 58. It may be observed that there are but two alternatives :
either the law is as stated by Judge Black, or a Convention, once convened, is
absolutely supreme over the existing government of the State; and if it sub-
mit its work to the people for adoption or rejection, it is of its mere grace and
favor, which, if it please, it may entirely withhold.
CAN THE LEGISLATURE BIND THE CONVENTION ? 415

and proceeding, — that is, to questions of method; and that the
region of greatest doubt would commence when questions be-
gan to arise touching what the Convention should or should not
consider or recommend. Among questions of the former kind,
relating to its method of procedure, that which is by far of most
vital consequence is, What disposition shall be made by the
Convention of the work of its hands?

Two courses only are possible :

First. The Convention might finish its deliberations, and,
without further ado, publish its work as the supreme law of
the land; or,

Secondly. It might regard its action as only inchoate or pro-
visional, and accordingly submit the fruit of it to the people, its
master, for approval or disapproval.

§ 411. Of the two courses indicated, the first is wholly inad-
missible in any case whatever, that alone excepted in which it
should be adopted under the express authority of law. The
reason is, that it would make of the Convention a simple des-
pot; and if despotic authority is desired, it would be far better
to have the concentrated vigor of an absolute monarch, whose
rule is commonly “tempered,” if no otherwise, “ by assassina-
tion,” into a sort of practical responsibility to the people, or the
temperate administration of a legislature of two houses, in
which passion and ambition would, by a system of checks, be
rendered least dangerous to the Commonwealth. The history
of liberty has shown, that the most direct road to the ruin of a
free state is to make a single popular assembly the dispenser of
its ordinary statute law. But to intrust such a body, without
check, with the enactment of its fundamental law, would be but
to discount the national life, —to antedate that final overthrow
which history shows to be in store for all nations.1

§ 412. The second course is for the Convention to recognize
the limitation upon its powers, imposed, if not in express terms
by the Act calling it, then by the principles of constitutional gov-
ernment, as well as by the customary law regulating the action
of such bodies in America, and to submit the propositions it
may mature to a vote of the people. By this course only can
there be assured to the sovereign or nation at large that firm
hold upon its liberties, that practical dominion over all function-

1 See Parker rv. The Commonwealth, 6 Barr, 599.
416 CAN THE LEGISLATURE BIND THE CONVENTION ?

aries empowered to act in its stead, which constitutes a govern-
ment of law as distinguished from a revolutionary tribunal, in
which no law is obeyed but the passions or interests of those
who direct it.

§ 413. These two courses being the only possible ones, it
needs no argument to show, not only that the Convention ought
to follow that which is compatible with the continued healthy
life of the state, but that there ought to be provided some mode
in which it may be compelled to follow it—some power by
which, the possibility of its refusal to do so being anticipated,
provision may be made against a career of usurpation — by
which treasonable conduct may be averted by denouncing
against it-summary punishment. Undoubtedly, for this pur-
pose, the legislature is the department having power to make
the requisite provisions. ‘To deny to that body the right to
hedge about the institutions in which our liberties are embodied,
would be to make it adequate to the transitory and more trivial
subjects of legislation, but inadequate to those which, while
they are no less strictly matters of legislative cognizance, far
transcend in importance all others that can arise.

§ 414. As a practical question, the right of a legislature to
require a Convention to submit its recommendations to a vote
of the people has been several times discussed, and intimations
have been thrown out that the latter body might disregard the
requirement, but no attempt has ever been made, so far as | am
aware, to carry that supposed right into effect. In the Illinois
Conventions of 1847 and 1862, it was contended by a few mem-
bers that the Convention was, for the purposes for which it was
assembled, sovereign, and that, although an act of legislation
was doubtless needful to bring the body into existence, yet,
when once born, its sovereignty attached, and it could disre-
gard all the provisions of the Act at its pleasure. Hence it was
concluded, that those bodies might or might not submit the
result of their labors to the people, notwithstanding the positive
injunctions of the legislature, as their own views of expediency
should dictate.

In reply to these arguments, I do not deem it necessary to
adduce any considerations other than those so often urged in
preceding pages, to refute their fundamental principle — that of
conventional sovereignty. Those arguments seem to have had
CAN THE LEGISLATURE BIND THE CONVENTION ? 417

little effect upon either of the bodies to which they were ad-
dressed, and possibly were propounded merely to pave the way
for certain aberrations in the mode of submission to the people,
which will be hereafter discussed; for the Constitutions framed
by those Conventions were each submitted to the people in
substantial compliance with the Acts under which they assem-
bled, except a few sections which, for special reasons, and
contrary to the spirit, if not to the letter, of those Acts, were
withheld from submission, or submitted in an unusual and ex-
ceptionable manner.

§ 415. 3. Connected with the subject of legislatures by their
Acts binding Conventions, as well as that of submitting Consti-
tutions to the people just referred to, is a question that arose in
1857-8, in Kansas, during the struggle that finally resulted in
the admission of that State into the Union, namely, whether, if
a Convention has taken upon itself to submit a Constitution
frarned by it to the people, on a particular day and in a.particu-
lar manner, the legislature of the State may alter the time and
mode of such submission? ‘This question evidently involves
directly that of legislative supremacy as between legislatures
and Conventions, and, therefore, although it might appropriately
be discussed in other relations than the present, I deem it proper
to consider it in this connection. ‘The facts under which the
question arose are as follows : —

In 1855, the first territorial legislature of Kansas passed an
Act to take the sense of the people at the election in October,
1856, on the call of a Convention to form a State Constitution.
Accordingly, an election was held, at which about 2500 votes,
cast mainly by pro-slavery voters, were polled, the Free-State
men not voting. At this election a new legislature was elected,
all pro-slavery, which met in January, 1857, and in conformity
with the vote of the 2500 at the preceding October election,
passed an Act providing for an election of delegates on the
15th of June, to meet in Convention in September following.
The delegates elected assembled in Convention at Lecompton,
September 5th, but soon adjourned over to October, to await the
result of the general election to be held on the first Monday of
that month. At this election both parties nominated candidates,
and after rejecting fraudulent votes, the Free-State party carried
the Territorial legislature and the delegate to Congress. The
418 CAN THE LEGISLATURE BIND THE CONVENTION ?

Convention reassembled in October, after this election, formed
the Constitution afterwards so famous as the Lecompton Con-
stitution, and submitted only a portion of it to the people —
that portion relating to slavery — and that in a form and under
a test oath which would prevent the Free-State people from
voting. December 17th following, the legislature, containing a
Free-State majority, assembled and passed an Act to submit
the Lecompton Constitution fairly to a vote of the people, on
the 4th of January, 1858. On the 21st of December, 1857, the
vote was taken in the manner prescribed by the Convention, and
resulted as follows : —

For the Constitution with slavery . ; 7 : - 6266
For the Constitution without slavery ‘i ; ‘ ‘ 567

January 4, 1858, in accordance with the Act of the Territorial
legislature, the people voted as follows : —

For the Lecompton Constitution with slavery . BSG 138
For the Lecompton Constitution without slavery. : 24
Against the Lecompton Constitution : ‘ : - 10,226

§ 416. Here the discrepancy being so enormous, and the ap-
parent results, though contradictory, so decisive, the question
becomes of great importance, Which of the two elections was
authorized by law and which was not? This question evidently
depends, as a legal one, on the power of a legislature, or the
successor of a legislature, by which a Convention has been
called, to alter a regulation made by the latter in relation to the
time and manner of submitting a Constitution to the people.
And this again depends upon the question whether the making
of regulations touching the submission of Constitutions to the
people is an exercise of ordinary or of fundamental legislation.
If it be the former, it belongs exclusively to the legislature,
whether that body claims it or yields it to the Convention. And,
if the right to submit belongs exclusively to the legislature, any
Act of a Convention having for its purpose such submission
would be wholly invalid, unless ratified by such legislature, or
by the acquiescence of the people. From this it follows, that if
the legislature were to dissent from the dispositions made by a
Convention and to make new ones, the latter would in effect
be rather original Acts than alterations of Acts previously
CAN THE LEGISLATURE BIND THE CONVENTION ? 419

passed ; that is, in them alone would there at any time be any
validity whatever. Doubtless, Conventions have been sometimes
empowered to make such provisions as they may deem advisable
respecting the submission of the fruit of their labors to the peo-
ple, in terms which seem to give them a discretion to submit or
not, as they please, and perhaps no great evil has as yet practi-
cally resulted from so doing. But such legislation is believed to
be ill-judged, and it may be dangerous. To demonstrate this, it
is necessary only to advert to a single circumstance, which is, that
whenever the providing for submission to the people is remitted
to a Convention, the power is given to that body absolutely.
There is no such thing as taking the sense of the people on the
propriety of any provisions the Convention may make, for they
are to take effect prior to, or at latest, contemporaneously with,
the popular vote, with the single exception of such as relate
to the returning and counting of the votes. The result is, that
a body whose function is, and can safely be, at most, only that of
a committee, is vested with an absolute discretion in a point
of infinite importance to the public welfare. This would be
eminently unsafe, were the trust confined to ordinary legislation ;
but it is not. It has a decisive influence upon the passing or
not passing of the fundamental law, and may even determine
its character.

§ 417. The principal reasons why such legislation as is neces-
sary to submit to the people the fruits of the deliberations of a
Convention, should be performed by the legislature, are, first,
that that legislation is not fundamental in its character; and,
secondly, that a legislature, and no other body, is, under our
Constitutions, competent to perform that work, and that the leg-
islature has no constitutional authority to delegate the right to
perform it to any other body. .

The principles upon which the first of these propositions rests
have been the subject of extended examination in a former
chapter, in which was considered the distinction between the
two kinds of legislation specified It needs therefore only to
be remarked here, that in an Act having for its purpose the sub-
mission of fundamental laws to the people, there is nothing
whatever of a fundamental character. It is a simple exercise
of ordinary legislation—an adapting of means to an end —

1 See ante, §§ 85-87.
420 CAN THE LEGISLATURE BIND THE CONVENTION ?

depending for its particular character upon current views of ex-
pediency. Hence it is worthy of note, that such Acts, even when
passed in the shape of ordinances by Conventions, are generally
not accounted parts of the Constitution. They are commonly
made to figure in the Schedule, which, as we have seen, is the
repository of provisions intended to facilitate the transition from
an order of things going out with an old, to that coming in with
a new, Constitution. Hence such Acts, being temporary in pur-
pose and effect, are not really proper to rank as constitutional
provisions, though they have been held to be as binding upon
the various departments of the government as if they had been
embodied in the Constitution.

§ 418. In relation to the second proposition, it is so purely a
legal one, and is so well settled, that there is even less need of
dwelling upon it at length. No position is better established in
American law than that ordinary legislation belongs exclusively
to the legislature proper, and cannot be delegated even to the
people or electors, who are in one sense superior to both legisla-
tures and Conventions. Thus, the Supreme Court of Delaware,
in a case where the question arose as to the constitutionality of
an Act of the legislature entitled, “ An Act authorizing the
people to decide by ballot whether the license to retail intoxi-
cating liquors shall be permitted among them,” upon that ques-
tion, said: —

“Itis .... clear that neither the legislative, executive, nor
judicial departments, separately nor all combined, can devolve
on the people the exercise of any part of the sovereign power
with which each is invested. The assumption of a power to
do so would be usurpation. .... The powers of government
are trusts of the highest importance; on the faithful and proper
exercise of which depend the welfare and happiness of society.
These trusts must be exercised in strict conformity with the
spirit and intention of the Constitution, by those with whom
they are deposited ; and in no case whatever can they be trans-
ferred or delegated to any other body or persons; not even to
the whole people of the State; still less to the people of a
county..... If the legislative functions can be transferred
or delegated to the people, so can the executive or judicial
power. The absurd spectacle of a governor referring it to a

1 Stewart v. Crosby, 15 Texas R 546; see also § 103 a, ante.
CAN THE LEGISLATURE BIND THE CONVENTION ? 421

popular vote, whether a criminal, convicted of a capital offence,
should be pardoned or executed, would be the subject of uni-
versal ridicule; and were a court of justice, instead of deciding
a case themselves, to direct the prothonotary to enter judgment
for the plaintiff or defendant, according to the popular vote of
a county, the community would be disgusted with the folly.
injustice, and iniquity of the proceeding. All will admit that,
in such cases, the people are totally incompetent to decide cor-
rectly. Equally incompetent are they to exercise with discern-
ment and discretion collectively, or by means of the ballot-box,
the power of legislation; because, under such circumstances,
passion and prejudice incapacitate them for deliberation.” 1

If weight is to be given to this and numerous other decisions
of our courts, according with it in principle, it is clear then that
the function, often assumed by Conventions, of submitting to
the people the results of their deliberations more properly be-
longs to the legislature, the latter being the only body which
can constitutionally make the requisite legislative provisions. It
follows, therefore, that if the provisions made by a Convention
for submitting its work to the people are deemed to be inexpe-
dient, whether made with or without authority of law, the proper
law-making authority of the State may repeal or alter them at
pleasure.?

§ 419. (b.) In the preceding sections have been considered

1 Rice v. Foster, 4 Harr. (Del.) R. 479. See also the following cases, in
which the same rule is maintained : Bradley v. Baxter, 15 Barb. R. 122; Peo-
ple v. Collins, 3 Mich. R. 343; Case of the Borough of West Philadelphia, 5 W.
& S. R. 281; Barto v. Himrod, 4 Seld. R. 483; Maize v. The State, 4 Porter’s
(Ind.) R. 342; Parker v. Commonwealth, 6 Barr’s R. 509. But see Smith v.
Bryan, 5 Gilm. (lIll.) R. 1.

2 For aconsideration of the question whether, when a legislature has passed
an Act calling a Convention, it may modify or repeal it, see ante, §§ 8389-409. It
it has that power, up to what point of time it continues to exist, and whether
it may be exercised to abolish a Convention already in session, by repealing
the Act calling it, and ordering the members of the Convention to disperse, is one
that has never arisen practically, and upon which, therefore, it may be useless
to speculate. If the safety of the State, endangered by treason in the Con-
vention, seemed to demand it, it is not easy to see how a legislature or a valid
State government, charged with the defence of the public liberties, could ex-
cuse itself for permitting the treason to ripen unopposed. That a legislature
has that power was maintained by Judge Joel Parker in the Massachusetts
Convention of 1853. Deb. Mass. Conv. 1853, Vol. I. p. 155. But see Appen-
dix D, post.
422 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS ?

the general relations of legislatures to Conventions, and the
power of the former, by their enactments, to bind the latter,
concluding with a discussion of some questions involving an
application of the principles which determine those relations
and limit that power. Another and not less important aspect
of the same relations remains to be considered, namely, that in
which the Convention is regarded as the active body, exercising
powers, or assuming functions; while the legislature, to which
that action is conceived to be relative, is passive, or out of
sight.

Under this phase of the subject various questions arise, but
they all resolve themselves substantially into the following,
which I purpose, therefore, to discuss at some length, namely —

1. Is a Convention possessed of legislative powers ?

2. Can a Convention act as a legislature in matters by the
Federal Constitution required to be transacted by the legisla-
tures of the several States ? ‘

38. Can a Convention fetter a discretion confided to the State
legislatures by the Federal Constitution ?

§ 420. 1. We have seen that, in the United States, the con-
stitutional Convention belongs to the genus legislature, — by
which is meant that its proper function is to elaborate, to a
certain extent, to be determined by the tenor of its commission,
the fundamental law, much as the legislature enacts the ordi-
nary municipal law. Of these two species of law, the distine-
tion between which has been already explained, it is the im-
portant thing to note, that the one denominated fundamental is,
generally speaking, the work only of a Convention, a special
and extraordinary assembly, convening at no regularly recurring
periods, but whenever the harvest of constitutional reforms has
become ripe; while, on the other hand, the ordinary statute law,
whose provisions are tentatory and transient, is, regularly at
least, the work of a legislature, —a body meeting periodically at
short intervals of time. It is thoroughly settled that, under our
Constitutions, State and Federal, a legislature cannot exercise
the functions of a Convention, — cannot, in other words, take
upon itself the duty of framing, amending, or suspending the
operation of the fundamental law. Being the supreme law of

\ The same also is true of the legislatures of all constitutional governments,
excepting, perbaps, that of England. Vattel, Law of Nations, Bk. J. ch. 3,
Sg 34, 35
HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 423

the land, all departments of the government are subject to its con-
trol, for from and under it they derive both their commissions
and their existence; and to permit either of them to modify it
would be to invert the relations of dependence on which the
safety of the whole system depends. This has never been
doubted since the early days of the Republic. Does an anal-
ogous rule prevail in relation to the Convention, the framer of
the fundamental law? Or may it, by virtue of some transcend-
ent power inherent in it, or of well-established custom or pre-
cedent, overleap all bounds interposed to limit its competence,
and take upon itself the function of legislation in general ?

§ 421. This question will be examined upon both of the
grounds indicated, in their order, namely, first, upon that of
inherent power; and, secondly, upon that of custom or prece-
dent.

First. The reasoning of those who assert for the Convention
a general power of legislation is, in its last analysis, that by
which is vindicated the doctrine of conventional sovereignty,
of which, in its general form, a refutation has already been at-
tempted? The particular argument in this connection is, that
the business of a Convention is extraordinary, beyond the com-
petence of either of the recognized ordinary agencies of the sov-
ereign ; that that body receives its commission from the same
source as do those agencies, and, therefore, on the whole, is en-
titled to outrank them all; that, although as a prudent precau-
tion against dissatisfaction or cavil, it is doubtless better for a
Convention to forego the exercise of extreme rights and to sub-
mit its work to the judgment of the people, yet, that it is not true
that it lacks power directly and definitively to enact the supreme
law of the land; that if this be conceded, it needs only to ana-
lyze the general power thus described into its constituents to
find the power in question ; that the fundamental conception of
the business of a Convention is, that it takes to pieces, or, as it
is sometimes expressed, “tramples under its feet,” the existing
Constitution of a State, and out of the old materials, or out of

1 It is true, some confusion existed on this subject in some of the States,
under their first Constitutions; but the question of the power of their legisla-
tures was soon settled by the courts, as above indicated. See Kamper ». Haw-
kins, 1 Va. Crim. Cas. 20.

2 See ante, §§ 315-319.
424 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS ?

old and new together, erects a structure to fill its place; that
with the Constitution falls, of course, the government of the
State ; that, starting thus, potentially, at least, according to its
own will, with a clean slate, to deny to the body possessing
such omnipotence the power of legislation, would be to deny
that the greater includes the less; that, if it can enact the funda-
mental law, why not also the ordinary statute law, of which the
nature, it is true, is somewhat dissimilar, but whose importance
is vastly inferior? that a Convention is competent, by constitu-
tional provision, to abolish all existing agencies of government,
and to fill their places with others, constructed on different: prin-
ciples; is it then conceivable, it is asked, that it cannot do di-
rectly what it can do indirectly, or that the right to exercise so
exalted a prerogative is conditioned upon its exercise in a par-
ticular mode? that as a matter of fact, the Convention, through
its relations to the several departments of the government, as in
turn their destroyer and their creator, can exercise at will the
functions of each of them; that being “a virtual assemblage of
the people,” it wields all the powers which the people themselves
would possess were it, in the nature of things, possible for them
to act directly ; hence, that, within the bounds fixed by its own
discretion, a Convention may make laws, or may interpret or
execute them.

§ 422. To_.this argument, the following considerations con-
stitute, in my judgment, a complete answer : —

If “the safety of the people is the supreme law,” — of which
there is no doubt, and which I affirm, — the maxim involves both
a grant of power and a limitation of power. It is a grant of
power, inasmuch as it authorizes and requires all public func-
tionaries to protect and defend the people at whatever cost; to
do it, however, by adhering, first, to the letter, and secondly, to
the spirit of their instructions, that is, of the Constitation and
laws ; and, thirdly, to the principles on which the social edifice
is bottomed. When the letter of the law is silent, or its spirit
doubtful, the principles indicated are the only chart by which
official conduct can be regulated, and are the first in validity
and sacredness, since they are the sum of the letter and spirit
of positive law, as well as of that unwritten law which presided
at the genesis of the social state anterior to all positive law.
Hence, it is plainly the duty of such functionaries always to
HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 425

conform to those principles, since a disregard of them involves,
in substance, a violation of the letter and spirit of the positive
law, and, at length, the ruin of the Commonwealth. Do what
necessity requires, and ask for indemnity for technical breaches
of law, is the rule of practical conduct dictated by the maxim
ander consideration!

As a limitation of power, the same maxim is of extensive
application. In cases of doubtful construction of constitutional
provisions, or in which there are no express provisions determin-
ing grants of power, it is the most important touchstone in our
whole system. Starting with the postulate of representative
republican institutions, the two following propositions must be
accepted, — first, that whatever manifestly endangers the safety
of those institutions must be forborne, though authorized by
an express grant of power; and, secondly, that no act whatever
must be done or tolerated, in the absence of such a grant, of
which the tendency, or, still more, the direct effect would be to
endanger them. In the case last supposed, no power to do
the act couid be implied, under any circumstances whatever,
no matter how clearly it might seem, for the time, to be expe-
dient.?

§ 423. Now, in the light of these principles, is the exercise by
a Convention of legislative, or other governmental powers, in
addition to those clearly belonging to it, to be considered as
within its competence, as a constitutional body? Is such an
assumption of power one which threatens no danger to the Com-
monwealth? By the theory of those who accord to it such
powers, as soon as the Convention is assembled, the control of
the existing government over it is at an end; the Constitution
lies torn into fragments under its feet; and while the work of
its instauration is in progress, that body alone constitutes the
state, gathering into its single hands the reins ordinarily held
by the four great systems of agencies constituting the govern-
ment, to whose functions it succeeds. If this be so, what, but
its own sense of justice, is to restrain such a body from running
riot as did the Thirty Tyrants at Athens? The jurists of the
Illinois Convention of 1862, as we have seen, affirmed, that the
Act under which such a body assembles, is no longer binding,

1 See Rice v. Foster, 4 Harrington's R. 479 (485).
2 Rice v. Foster, ubi supra.
426 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS ?

when once it has become organized. If, at that moment, it has
also cast upon it, by virtue of its great commission, all govern-
mental powers, how easy to extend the scope and the period of
the exercise of those powers, under the plea that expediency
demands it. The expedient is the appropriate domain of a legis-
lature. If, at the moment of organizing, a Convention is en-
dowed with legislative powers, it may be deemed expedient to
subvert the system of guarantees by which our liberties are
assured to us, and at the same time to withhold from the popu-
lar vote the constitutional provisions by which the change is to
be effected. Such a consummation would be not merely possi-
ble; it would be probable. And, clearly, the possibility of its
occurring with an appearance of rightfulness, is enough to stamp
as dangerous that theory of conventional powers from which it
must flow. In the science of politics, itis an important point
gained to have settled the limit where normal action under the
Constitution ends, and revolution begins. To have done that
is practically, in most cases, to have rendered revolution impos-
sible.

The result is, that a Convention cannot assume legislative
powers. The safety of the people, which is the supreme law,
forbids it. Even, if we suppose the body expressly empowered
by the legislature to exercise such powers, the right so to do
must be denied, because the same supreme law places an abso-
lute interdict on such a grant; it is beyond the power of a leg
lature to delegate any such authority.

§ 424. To these general considerations, tending to discredit
the claim of Conventions to legislative powers, must be added
the decisive circumstance, that our Constitutions, as well State
as Federal, have vested all the power of ordinary legislation the
people have chosen to grant at all, in our legislatures. The
construction put upon these provisions of our Constitutions by
the courts, is, that the grant is exclusive, and that the power can
neither be delegated by the legislatures, nor exercised by the
people, not even by the whole people.) It is doubtless true, that
neither in the cases establishing the construction referred to, nor
in our Constitutions, is there any reference to the exercise of
legislative power by Conventions; but neither is there any men-
tion of its exercise by the people. The conclusion that the

1 For the cases establishing this construction, see ante, § 418, note 1.
HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 427

general grant of legislative power to our legislatures, is implicitly
an interdict upon the exercise of that power by the people, is
derived mainly from the same general considerations relating to
the safety of the Commonwealth, above specified, and of course
tends to justify an extension of the interdict to all other bodies
with respect to which the same reasons apply.

§ 425. Were additional arguments needed to demonstrate
that a Convention has no power of ordinary legislation, refer-
ence might be made to the fact, that the possession of such a
power would be extremely inconvenient, on account of the ne-
cessarily temporary and experimental character of such legisla-
tion, on the one hand, and the difficulty of effecting changes in
the enactments of Conventions, on the other. Every Ordinance,
or constitutional provision, passed by a Convention, assumes a
form nearly as rigid as that of the Medan laws; they can be
repealed only in the formal way in which they were enacted.
Tt would be impossible to administer with success any govern-
ment so crippled in its legislative arm. The result would inev-
itably be, that laws would be constantly disregarded, or that
Conventions would become so necessary and frequent that they
would ultimately supplant our legislatures.

§ 426. Secondly. In relation to custom and precedent — it
is not denied by those who attribute to Conventions a general
power of legislation, that that view receives little countenance
from the practice of those bodies, in former times. But the lack
of precedents is explained away by the consideration, that the
actual exercise of such a power would naturally be infrequent
and exceptional, as it would ordinarily occur only when great
crises demanded instant legislative remedies, the legislature itself
being either not in session, or controlled by treasonable influ-
ences. Moreover, it is plausibly argued, that the fact that a
power is usually, because, perhaps, more conveniently, exercised
by one of two bodies, is no reason for denying the existence of
it in the other. To hold thus, it is said, would be to maintain,
that the inherent rights of an assembly, which preéminently
represents the sovereign, are forfeited by non-user; rights, of
which the exercise, on account as well of the extraordinary char-
acter of the body possessing them, as of the conditions under
which only they are likely to be asserted, must be occasional.
Still, however infrequent, it is claimed that precedents exist, and
428 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS ?

there are pointed out to us three classes of cases, in which Con-
ventions have, it is said, exercised the general power of legisla-
tion. These are — first, the cases of the Conventions which framed
the first Constitutions of some of the States, during the Revo-
lution, upon the exceptional and irregular character of which
comment has already been made; secondly, cases in which Con-
ventions have undertaken, in non-revolutionary times, by ordi-
nance, to regulate matters of ordinary administration, or to do
other acts manifestly legislative in character; and, thirdly, cases
in which Conventions have inserted in Constitutions provisions
partaking rather of a legislative than fundamental character, as
relating largely to matters of detail.

§ 427. In relation to these classes of cases, I observe that they
are none of them deemed of much weight as precedents.

1. It is true, that many of the earliest Conventions, even
where called expressly to frame and establish Constitutions, were
also charged with, or assumed, other functions, to wit, those
of provisional governments. Accordingly, the journals of those
bodies are filled about equally with their proceedings in discharge
of governmental functions, and of their special office as Consti-
tutional Conventions — propositions to be embodied in their
Bills of Rights, or Constitutions, for instance, being mixed up
with measures relating to the internal police, to the raising of
troops or of revenue, or to the punishment of their Tory oppo-
nents. Obviously, cases like these, arising in revolutionary
times, cannot properly be cited as precedents for the conduct
of similar bodies in times of peace and constitutional order.
But when it is considered, that the moment the Conventions
referred to overstepped the limits which bounded their jurisdic-
tion and entered upon the domain of actual administration, that
is, of government, they became bodies of a wholly different char-
acter, to wit, Revolutionary Conventions,! it is clear, that the
alleged precedents are of no value whatever.

§ 428. As to the second class of cases, in which a few Con-
ventions have, by ordinance, legislated outside of their special
province, their value as precedents is of less account, because
they have been of infrequent occurrence, and the subjects of
that legislation have been commonly trivial. A Convention
being in session, and the progress of business developing a

1 See ante, §§ 7-10.
HAS THE CONVENTION GENERAL LEGISLATIVE PowERS? 429

necessity for further legislation, to avoid the delay and expense
attending the regular course of proceeding in the legislature,
that body has sometimes ordained the regulations required, and
the government and people have acquiesced. Here, it may be,
that it was not thought expedient to insist too rigidly upon pre-
cise conformity to principles in matters of small concern; and,
perhaps, in the infancy of our institutions (for they are yet in
the gristle) it has not always been seen that a Convention is so
radically distinct from a legislature as it unquestionably is.
Considering the ignorance still prevalent, even among educated
men, respecting the theory of Conventions, it is not strange that
it should be thought competent for them to do what history
shows the Conventions of the revolutionary period certainly did.
And, in truth, the only way of breaking the force of those cases
as precedents, is to deny the normal and constitutional character
of the latter Conventions, which, as we have seen, may very
justly be done. The Conventions of our Revolution were, in
many of the States, the governments of those States. If they
legislated, they did so in this their exceptional character. If the
Conventions of our day can also legislate, and if the evidence
that they can do so is derived from the practice of those early
Conventions, they must, also, potentially, at least, be the gov-
ernments of their respective States— which is the doctrine of
conventional sovereignty.

§ 429. So, in the third class of cases, where the jurisdictions
of legislatures and Conventions clash, because, having a com-
mon frontier, cases arise in which it is doubtful to which body
they belong, it is unfair to make an assertion of jurisdiction by
either a binding precedent as to the right. A Convention is
authorized to embody in the Constitution general provisions
establishing principles, but leaving details dependent on consid-
erations of temporary expediency to be determined by the legis-
lature. Thus, take the provision relating to Homestead Exemp-
tion, as it is called; a Convention is competent to recommend
the adoption of the principle, in such a form and under such
conditions, as are consonant with the general conception of fun-
damental legislation, and no further. It may indicate what has
become the settled policy of the State, but, if it go beyond that,
developing principles into minute provisions, likely, as circum-
stances shift, to need modification, it trespasses upon the domain
480 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS ?

of the legislature. Doubtless, a Constitution, stuffed with legis-
lative details, may acquire legitimacy, by its being ratified by
the people ; for, where a Constitution contains a positive pro-
vision, the courts cannot ignore it, or annul it; but the impro-
priety of such legislation would not thereby be disproved or
lessened. If legislative provisions are thrust into a Constitu-
tion and passed upon by the people, ought they to have the
force of laws any more than when submitted to the people dis-
connected from provisions truly fundamental? In the latter
case, we have seen, that our courts pronounce them wholly
without validity as laws. If the same judgment be not given
respecting a constitutional provision consisting of legislative
details, it is simply because it would be in effect to permit our
judiciary to annul the charters under which they act, under the
pretext of striking from them provisions not properly funda-
mental.

§ 430. With these remarks upon the general question of the
power of Conventions to legislate, I pass to a consideration
of certain practical questions which have arisen, involving an
application of the principles I have developed.

(a). The first of these which I shall mention, arose in the Tlli-
nois Convention vf 1862, under the following state of facts.
About a year before the Convention assembled, the legislature
of Illinois had passed three Acts relating to the city of Chicago,
or to the townships over which it extended, which were obnox-
ious to a portion of its citizens, and particularly an Act, approved
February 21, 1861, entitled “ An Act to establish a Board of
Police in and for the City of Chicago, and to prescribe their
Powers and Duties,’ the force and effect of which were to turn
out of office the old city police, and to vest the police powers of
the city in a board of commissioners elected by the voters of the
county in which the city was situated. The two other Acts
related to matters entirely foreign from the mode of electing or
appointing city officers. The Convention met in January, 1862,
and toward the end of its session, March 21, adopted an Ordi-
nance providing for an election to be held in the city of Chicago
on the third Tuesday of April following, at which the legal voters
of said city were to cast ballots on which should be printed or
written the words, “ For the city of Chicago electing its own
officers,” or the words, “ Against the city of Chicago electing
HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 481

its own officers.” The Ordinance then went on to provide,
that, in case a majority of the electors voting at said election
should be in favor of said city electing its own officers, then
it should not be lawful for any officers of that city to be chosen
in any other manner than by a vote of the people of said city,
or appointed in any other manner than by the mayor and al-
dermen, as provided by present laws, and that the three Acts
referred to should be, and the same were, each and all of them,
thereby repealed.

§ 431. After the adjournment of the Convention, on the third
Tuesday of April, 1862, the electors of the city of Chicago, as
required by this Ordinance, voted on the question of electing
their own officers, and, as was, of course, foreseen by its framers,
voted affirmatively. So far, admitting the propriety of the ac-
tion of the Convention, the obnoxious Acts of the legislature
would seem to have been repealed. But other facts still further
complicate the case. The Act of Assembly calling the Conven-
tion had required that body to submit to a vote of the people
the alterations or amendments proposed by it, and had declared,
that said alterations or amendments should not take effect “ un-
less adopted by a majority of the legal voters voting at such
elections.” Accordingly, the Constitution framed by the Conven-
tion, including, as a part of its Schedule, the Ordinance above
described, in totidem verbis, was, by the Convention, submitted
to a vote of the people of the whole State, at an election held
on the 17th day of June, 1862, at which election the entire
instrument, save a few provisions not involved in this discus-
sion, which were separately submitted, was rejected by a deci-
sive vote. An important circumstance, to be noted, to aid in de-
termining the effect of these various proceedings is, that imme-
diately succeeding the Ordinance, as embodied in the Schedule,
was the following clause, viz.: —“ The provisions of this Con-
stitution, required to be executed prior to the adoption or rejec-
tion thereof, shall take effect and be in force immediately.”

§ 4382. Upon these facts embarrassing questions arose: When
the people of Chicago had voted in favor of electing their own
officers, were or were not the three legislative Acts referred to
in the Ordinance, thereby repealed? Was there any police sys-
tem in force in that city, and if so, which was it, the city police
or the county police? If by the action of the Convention, or
432 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS ?

of the Chicago electors, or of both combined, the repeal of the
obnoxious laws was effected, what influence upon them had the
subsequent vote of the whole people of the State, rejecting the
Constitation, Ordinance and all, with the exceptions indicated?
Did not the additional clause, giving immediate effect to such
provisions of the Constitution as were required to be executed
prior to the adoption or rejection thereof, save the Ordinance
from the fate reserved for the rest of the instrument, especially
as that Ordinance had been passed upon and adopted by that
part of the people of the State who were to be affected by it?

To settle these questions, an application was made to the
Supreme Court of the State for a mandamus to compel the
board of police commissioners, appointed under the Act of 1861,
to vacate their offices and to give place to commissioners to be
elected by the legal voters of the city in pursuance of the Ordi-
nance. The case was very ably and elaborately argued, and a
decision was finally rendered denying the writ, upon the ground,
as is understood, — for no opinion was ever filed by the court, —
that by the vote of the people rejecting that instrument, the
entire Constitution and Schedule were swept away and became
of no force or effect for any purpose. At all events, the Acts,
sought to be repealed by the Convention, were continued in
force until repealed by the legislature, and hence the decision of
the court involved practically the following conclusion, that the
Convention was not competent, even with the codperation of that
part of the people to be affected by it, to repeal an Act of the
legislature, local in its scope and operation.

§ 433. A brief abstract of the arguments of counsel in this
case, relative to the power of the Convention to repeal laws,
may be of interest.

On the part of the relator it was contended, that about the
intention of the Convention in passing the Ordinance of March
21st, and hence relative to the extent of power which that body
meant to assert, there could be no doubt; it certainly claimed
the right to legislate; the only question was, Had it that right?
That in relation to that question, it was clear, that it was com-
petent for that body to prohibit the appointment thereafter of

1 People of the State of Illinois, ex rel. The City of Chicago v. A. C. Co-

ventry et al., April Term, 1862, of the Supreme Court of Illinois. Case not
reported.
HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 483

any person to any office for the city of Chicago by the Governor
or General Assembly ; that, at least, the power of the Conven-
tion to deliberate and act upon such a question, had not been
disputed, and it would be difficult to show, that it could not so
far change or abrogate existing statutes as to make the legisla-
tion of the State conform to the supposed new order of things;
that the repealed Acts were in palpable conflict with the prin-
ciple of the new provision about to be adopted by the Conven-
tion as a part of the fundamental law, and therefore the Ordi-
nance declared, that “the powers and duties of all officers
appointed under and by virtue of said Acts, shall immediately
cease ;” that so far as respected the legislating of those officers
out of office, the power to do that had been frequently exercised,
as in the Illinois Constitution of 1848, and had never been ques-
tioned; that the effect of every new Constitution was to annul
all existing statutes in conflict with its provisions, and if any
statutes were continued in force, they were, strictly speaking,
reénactments by that Convention, to which alone we must look
as the source of their validity ;1 that if that body could thus
reénact statutes, or continue them in force for a prescribed period
only, it was idle to deny to it the right in express terms to repeal
them; that, if it was admitted that the Convention possessed
legislative functions for any purpose, no limit could be assigned
to its exercise of them; that the extent of its power to legislate
must be subject only to its own discretion, which no other tribu-
nal, legislative or judicial, had power to review ; that the busi-
ness of a Convention was to make a Constitution — to ordain
organic laws. But what were organic laws? Who was to de-
cide? The answer was plain and free from difficulty; the Con-
vention had the sole power of determining what should be the
organic law, and whatever it prescribed (subject, in some cases,
to the ratification of the people) became a part of the Constitu-
tion; that the courts could not control or annul its decision,
except in the single case where enactments were repugnant to
the Federal Constitution ; that, with that exception, no provision
inserted in the organic law could be annulled by any power
on earth save by the people acting in their highest sovereign
capacity.

§ 434. For the respondents, it was contended, that the Conven-

1 Woods v. Blanchard, 19 Ill. R. 40.
434 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS ?

tion, in passing the Ordinance in question, had set at defiance
the provisions of the Act of the legislature under which the
delegates to it had been elected, and had assumed to be vested
with the supreme authority of the people of Illinois; that the
supreme authority of a community includes executive and judi-
cial as well as legislative powers, all of which it might with
equal justice claim a right to exercise without control, if it were
really the sovereign body it pretended to be; that the claim of
powers so extensive was discredited by the best writers on gov-
ernment, and by the examples of the fathers throughout our
entire history, all of whom had united in the sentiment forcibly
expressed by the authors of the “ Federalist,” “that the accumu-
lation of all powers, legislative, executive, and judiciary, in the
same hands, whether of one, a few, or many, and whether
hereditary, self-appointed, or elective, may be justly pronounced
the very definition of tyranny ;” that, clothed with such powers,
the Convention was subject to no Constitution or law, and
might have perpetuated its own existence and powers, and the
people could have escaped from its tyranny only by a revo-
lution resulting in a dethronement of the usurpers of their
power; that the principles of our government led to no such
disastrous results; but that those results were, on the contrary,
the fruits of a perversion of those principles; that the funda-
mental idea of our system of governments was, that the sover-
eignty resided in the people, who, for its practical exercise, con-
fided it, or so much of it as they deemed desirable, to separate
agencies; that all acts of either of those agencies, within the
sphere of its powers, were acts of the people; that in general
the powers granted to each of those agencies or departments
were exclusively its own, liable to be resumed by the people,
but, so long as vested in the several departments, not to be
rightfully exercised even by the people themselves; that from
these principles it followed, not only that the people might and
did limit the powers delegated to their representatives, but that
they equally might and did limit their own powers; and, conse-
quently, even if the Convention wielded all the powers of the
people, it could not perform an act of ordinary legislation, be-
cause the people had by the Constitution granted the power of
legislation to the General Assembly, and had thereby limited
their own power in that behalf

1 The argument, so far as it proceeded upon the ground that the people
CAN CONVENTIONS APPROPRIATE MONEY ? 435

§ 435. (0). The next practical question to which I shall ad-
vert, is one of intrinsically so much moment, and of such fre-
quent occurrence, that I shall devote to it considerable space.
namely: Have Conventions power to appropriate money? The
power to appropriate money, when asserted at all, has been uni-
formly claimed upon the ground that a Convention is possessed,
subject only to the Federal Constitution, of sovereign powers,
and consequently, as involved in that grant, of all special ad-
ministrative or governmental powers, legislative, executive, and
judicial. On the other hand, legislative power has been gener-
ally denied to it on the ground that the Convention is not in
any sense sovereign ; that it is even, in the extent of its powers,
inferior to the legislature, by which Acts may be definitively
passed, while our Conventions are invested, save in exceptional
cases, with a recommendatory power only, — being, in truth, but
mere committees charged with a certain legislative function, but
not with that of legislation in general, much less with those of
the executive or judicial departments. To this are commonly
added considerations of the danger of intrusting the public
purse to an assembly consisting of a single chamber, and of
the improbability, therefore, that the founders of a system so
guarded and balanced as ours, would have left it in the control
of such a body, without a single check against usurpation. I
shall, therefore, only give a short statement of some cases in
which the question has arisen, or the power been exercised, and
of the decisions and results thereof, so far as known.

§ 436. Resolutions or ordinances have been passed by Con-
ventions, appropriating the public moneys, for the following
purposes : —

1. To pay the salaries of the officers or members, and to de-
fray the incidental expenses of those bodies.

2. For benevolent, charitable, or other purposes, outside the
scope of their special duties or business, as Conventions.

1. The precedents in the earliest Conventions, excepting those
which clearly acted as provisional governments, are not in favor
of the power in question. Thus, in that of Massachusetts, of

could limit themselves by the Constitution, was mainly that of Mr. Webster
before the United States Supreme Court, in the case of Luther v. Borden,
7 How. R.1. For the full argument, see Webster’s Works, Vol. VI. p. 221,
et seq.
436 CAN CONVENTIONS APPROPRIATE MONEY ?

1779-80, a committee was appointed “to apply to the General
Court for the payment of the members of this Convention, to
be made out of the treasury of the State,” and also “ for pay-
ment of such charges as have arisen, or may arise, in prosecut-
ing the business of this Convention.” The action of the Fed-
eral Convention of 1787 was similar. Instead of assuming the
power to determine their own salaries and to vote money to pay
them, the whole subject was referred to Congress. On the 5th
of September, it was “ Resolved, That the United States in
Congress be requested to allow and cause to be paid to the
secretary and other officers of this Convention such sums in
proportion to their respective times of service as are allowed to
the secretary and similar officers in Congress.” This resolution
was followed by an order directing the secretary of the Con-
vention to make out and transmit to the treasury office of the
United States an account for the said services and for the inci-
dental expenses of the Convention. The Act calling the TIlli-
nois Convention of 1847, authorized that body to elect a printer,
and fixed his compensation at the rate received by the public
printer from the General Assembly. A proposition was made
in the Convention for a committee to receive proposals for doing
the printing of that body, and directing that it be let to the low-
est responsible bidder. This motion was resisted, on the ground
of a want of power to vary the enabling Act; that the proposi-
tion to do so involved the right to appropriate the sums agreed
to be paid, since they could not be claimed under the Act, if the
latter were repudiated. The motion was for that reason laid
upon the table. On a similar ground, a motion made in the
New York Convention of 1846, to appoint stenographers, was
negatived.

§ 437. On the other hand, propositions of the kind specified
have often been adopted and acted on by Conventions. Thus,
the Pennsylvania Convention of 1837, in the course of each of
its two sessions, passed a resolution appropriating money as a
compensation to the clergymen who officiated therein, though
not without vigorous protest on the ground of want of power.
So, in the Louisiana Convention of 1844, a resolution was car-
ried authorizing the State Treasurer to advance to its printer
the sum of one thousand dollars, “for the subscription to the
Reporter,” a daily paper containing a revort of its debates. The
CAN CONVENTIONS APPROPRIATE MONEY ? 437

Convention of 1864 of the same State made similar appropri-
ations, to a large amount, to be paid out of “the funds in the
public treasury not otherwise appropriated,” for extra services
rendered by its officers. In the Indiana Convention of 1850,
the question of its power to appropriate money arose on a mo-
tion to elect a printer to the Convention. This motion was op-
posed on the two grounds, — 1, that, under the laws of Indiana,
there was a State printer, under bonds to do the public printing,
who claimed, and was in law entitled, to do that of the Con-
vention; and, 2, that the Convention was not competent to
appropriate money to pay a printer, should it elect one. After
a long discussion, which turned mainly on the question whether
the State printer, elected by the General Assembly, and under
bonds “for the prompt, accurate, and workmanlike execution
of the public printing, and the faithful performance of all the
duties required of him by law,” was ex officio printer to the
Convention, it was determined that he was not, and that body
proceeded to elect one to fill that office, without, however, mak-
ing any provision for his.payment. To this action a formal
protest was made by a minority, and entered on its journal,
affirming the right of the State printer to do the printing of the
Convention, and denying the power of the latter to appropriate
money to pay the printer elected by it. The Illinois Conven-
tion of 1862, toward the end of its session, adopted a resolu-
tion, almost unanimously, making appropriations to certain
State officers for extra services in relation to the Convention.
A doubt being expressed in regard to the power of the Conven-
tion to make the appropriation, it was answered, that the legis-
lature had appropriated money to defray the expenses of the
Convention, and provided, that for the compensation of its offi-
cers — the amount to be determined by the Convention — the
president should issue his certificate to the auditor of public
accounts, who should issue warrants for the sums mentioned
therein, upon the State Treasurer. It is obvious, however, that
this provision did not cover the case of extra or other compen-
sation to State officers, who were specially directed by law to
perform certain services for the Convention in their official
capacity, but who were not mentioned in the Act as entitled
to compensation. And of this opinion, evidently, was the State
Auditor, for on presentation of the resolution of the Convention
4388 CAN CONVENTIONS APPROPRIATE MONEY ?

making the appropriation, that officer refused to issue his war-
rant for payment of the money. By special Act, however, the
General Assembly afterwards ordered compensation to be made
to the officers named for the same services— the Act reciting
as a reason for the appropriation the refusal of the State Au-
ditor4

§ 438. In regard to the above appropriations, it is to be noted
that they were made under an assumption of power to do so
inherent in those bodies, and without special authorization to
that effect in the Acts calling them. But, were it true, that
appropriations thus loosely made were honored by the State
authorities, they would amount to but little, in my judgment,
as settling the question of power. They have not, however,
commonly thus been honored. It has been a usual consequence
of the meeting of Conventions that our legislatures have fol-
lowed it up with appropriations out of the treasury to meet
what have been styled appropriations by those bodies. It is
probable that, practically, those formal Ordinances disposing of
the public funds have been regarded rather as recommendations
than as mandates of an authority having the right to enforce its
will. To bring the question to a test, it is only necessary to
conceive a custodian of the public moneys receiving a warrant
from a Convention —a body by whom he was not appointed
and to whom he is not by law made responsible — directing him
to turn over to the bearer the public funds in his hands. Is it
possible that any officer, so situated, would feel authorized to
obey such a warrant? And, suppose he were to obey, would
that warrant be pleadable in bar of an action on a Treasurer's
bond to the State, if he should have failed on demand to turn
over such funds to his successor, appointed in the manner laid
down in the Constitution? Yet, the power in a Convention
to appropriate one dollar of the public money is a power to
seize and to use as it may please the entire treasure of the State.

§ 439. 2. In relation to the second class of cases, in which
Conventions have assumed to make appropriations from the
treasuries of their respective States, for general objects, foreign
from the special purpose of those bodies, less need be said, as
the arguments against the right are the same, and apply with
increased force, whilst the instances in which it has been as-

* Act of January 28, 1868, Mlinoi Laws of 1863, pp. 11, 12.
CAN CONVENTIONS APPROPRIATE MONEY ? 439

serted are fewer in number. In the absence of legislative pro-
vision, it is doubtless often convenient, that Conventions should
assume the power to appropriate, or, at least, go through the
forms of appropriating, money, in the execution of their com-
missions; and where the power is exercised only to facilitate
the transaction of their proper business, it is, if unauthorized,
obnoxious to less serious objection. But the case is different
in relation to matters outside the business assigned to them.
There, it seems clear, that, no matter what the circumstances
might be under which the power should be exercised, it would’
be a power usurped. Accordingly, it will surprise no one, that in
the better days of the republic, following the Revolutionary pe-
riod ending with the adoption of the Federal Constitution, few
instances of such legislation have occurred, and those mainly
within the last five years. Of these I shall mention but two.

§ 440. The Illinois Convention of 1862, in a paroxysm of
patriotic zeal, just after the capture of Fort Donelson, passed
the following remarkable Ordinance : —

“ Be it ordained by the people of the State of Illinois, repre-
sented and assembled in Constitutional Convention, —

“ That the sum of five hundred thousand dollars, or so much
thereof as may be necessary, be, and the same is hereby, appro-
priated out of the Treasury of the State of Illinois, for the
exclusive purpose of relieving the wants and sufferings of the
brave sons of Illinois, who have been or may be wounded in
the battles fought by them and their brothers in the defence of
the Union and the Constitution.”

Sections two and three authorized the issue by the governor,
auditor, and treasurer of Illinois, of State bonds for that amount,
and provided for the disbursement of the money by those ofh-
cers jointly with a committee to be appointed by the Conven-
tion. Praiseworthy as the object of this Ordinance was, the
assumption in it of general powers of legislation was so glaring
that some of the firmest friends of the soldier in the body were
constrained to oppose its passage. ‘They united in a protest,
setting forth, that, in their opinion, the Convention had no power
to authorize appropriations from the State Treasury, and that
the assumption of such a power in so important a matter as the
issue of State bonds, was an evidence of a loose administration
of public affairs, and directly calculated to injure the credit of
440 CAN CONVENTIONS APPROPRIATE MONEY ?

the State. The intention of those who passed the Ordinance
was declared to be to issue the bonds immediately, but for some
reason this was never done. What might have been attempted,
had the Constitution framed by the Convention been adopted,
cannot be known, but as that instrument was rejected, the bonds
were never issued — and that was, perhaps, all that the friends
of the Ordinance intended.

§441. Another instance of this kind of legislation occurred in
the Convention of 1864 for the reconstruction of Louisiana. An

“appropriation of thirty-five thousand dollars was made by it from

the State treasury for purposes of charity, to be distributed by
a board of almoners appointed by the Governor, of which he
was to be ex officio president, the money to be drawn upon his
warrant. Afterwards a resolution was adopted, directing the
payment out of the State treasury of the sum of ten thousand
dollars for expenses incurred “in the formation of the free State
of Louisiana.” On the same day, upon the recommendation
of the finance committee, it was resolved to draw from the gen-
eral fund in the State treasury the amount necessary for the
payment of members, employés, and contingent expenses until
the end of the session; also to pay to the State librarian, for
services rendered by him in furnishing books and documents to
the Convention, the sum of five hundred dollars.

In reference to the precedents drawn from this last Conven-
tion, it should be noted that they are of no weight at all by rea-
son of the exceptional character of that body. That Convention,
like those which followed it in the other States that attempted
to secede from the Union, was, as we have already seen,! the
creature of the military law, and so, in its inception, not to be
ranked as legitimate. It was, besides, in essential character, a
provisional government, and not a Constitutional Convention.
In this exceptional character, it wielded whatever powers it
chose to assert, subject only to the dictation of the military
commander, being in fact the only civil government existing in
the State. The legislature had perished along with the other
departments of the government, in the act of seceding, so that,
if there were funds in the State treasury, there was no civil
authority, save the Convention, that could claim the right to
disburse them. The analogy, therefore, was close between the

1 See ante, §§ 247-249.
CAN CONVENTIONS APPROPRIATE MONEY ? 441

Louisiana Convention and those of the American colonies, to
which reference has been made, which, while they exercised
some of the functions of Constitutional Conventions, were sim-
ply Revolutionary Conventions, and, therefore, the former can
properly furnish no precedents to bind such Conventions as are
strictly constitutional bodies.

§ 441 a. Inseveral cases which have arisen since the first edi-
tion of this work was published, the power of Conventions to
appropriate money has been directly passed upon and denied by
high legal authority. The earliest of these arose in New York,

1 A different question from those discussed above, as to the legality of a
legislative appropriation for the salaries and other expenses of a Convention,
was raised in the Pennsylvania Convention of 1872. In the original Act call-
ing the Convention, the legislature had fixed the salary of the members at one
thousand dollars, and appropriated a specific sum for other expenses, but direct-
ing the Convention to fix the compensation of the clerks and other officers.
Warrants for these allowances were to be drawn by the president, and coun-
tersigned by the chief clerk, upon the treasurer, for payment. While the Con-
vention was in session, the legislature again convened, and, in an Act to pro-.
vide for the expenses of the government, embodied a section repealing so much
of the Act calling the Convention as fixed the amounts of the compensation of
its members, officers, and employees, and of its incidental expenses, and in
lieu thereof appropriated the sum of five hundred thousand dollars, “ or so
much thereof as may be necessary,’ for the payment of the expenses of the
Convention, including the pay of the members, clerks, and officers, to be settled
by the Auditor General, — the amount of the salaries, and pay of the members
and officers thereof, to be fixed by the Convention, and the money to be paid
by the treasurer on warrants drawn by the president, as in the previous Act.
Upon the report of a committee appointed to designate the amounts to be al-
lowed for salaries and compensation, to be drawn from the fund thus provided,
a discussion arose, in the course of which the Hon. Jeremiah S. Black de-
nounced the appropriation thus made of a lump sum, out of which the Con-
vention were to take as much as they pleased for their own salaries, as illegal.
The objection was not sustained by the Convention, which, by a vote of sixty
against forty-four adopted the report. See Deb. and Proc. of Pa. Conv.
1872, Vol. 1V. pp. 696-710. Giving his reasons, Judge Black said : “‘ I main-
tain that this is no appropriation within the meaning of the Constitution,
which forbids that public money shall ever be paid out of the treasury except
in accordance with appropriations made by law. If the legislature should say
that a certain sum, a million of dollars, —I do not care what words they use, —
shall be placed at the disposal of a person who has a claim against the com-
monwealth, whether for work or anything else, and that he may take as much
of it as he pleases to satisfy himself, that would be no appropriation.’ Id.
p- 704. His conviction that the appropriation was illegal was so strong that
he refused to receive a dollar for his per diem, and at length resigned his seat
in the Convention. Deb. and Proc. Pa. Conv. 1872, Vol. VII. p. 436.
442 CAN CONVENTIONS APPROPRIATE MONEY ?

during the session of its Convention of 1867, under the follow-
ing circumstances. The Act of March 29, 1867, calling that Con.
vention, provided, Sec. 5, that the delegates to the Convention
should “ be entitled to six dollars per day for every day, from the
first day to the last day, of the session thereof, and the same mile-
age as is now paid to the members of the legislature.” It then
further provided, that the amendments or Constitution which
might be proposed should ‘be submitted by the Convention to
the people for adoption or rejection at the next general election,
to be held on the Tuesday after the first Monday of November
next.” On the 7th of October, 1867, the labors of the Conven-
tion being unfinished and promising to continue beyond the day
fixed by the Act for submitting the Constitution to the people,
the Comptroller of the State submitted to the Attorney General
for his opinion the following questions: ‘1. Can the Conven-
tion continue its sessions after the time fixed in the legislative
Act... for a submission of its work to the people has expired,
or has that body a discretionary power as to the time of submis-
sion, beyond the control of the legislature? 2. On either of the
suppositions of the preceding inquiry, is not the legislative Act
binding on the Comptroller in all its provisions, so far as they
impose duties on that officer, and, if so, can he properly pay the
members and officers of the Convention for attendance after the
time indicated in the Act for a submission to the people?”

To these inquiries, the Attorney General, the Hon. J. H. Mar.
tindale, replied, in substance, that the voluntary sessions of the
Convention after the date fixed for the submission were not pro-
hibited by any law; that the legislature, at its next session,
might recognize its work and submit it to the people; that, what-
ever might be the primary source of the authority of the Conven-
tion, whether it derived its vitality primarily from the present
Constitution, or from the legislative Act providing for the election
and assemblage of its members, if the legislature should submit
the result of its deliberations to a general election of the people,
and they should approve, the amendments or Constitution so pro-
posed or adopted would be established in the State; and that it
was unnecessary to consider the effect of such a submission with-
out a legislative Act. As to the second question, the Attorney
General answered that the authority of the Comptroller “to pay
members and officers for attendance after the time indicated in
CAN CONVENTIONS APPROPRIATE MONEY ? 448

the Act for a submission to the people ” was confined by narrower
and more precise limitations ; that he was not authorized to draw
his warrant on the Treasurer for any moneys except in conformity
to law ; that, by the provisions of the Act in question, the members
were each entitled, etc. (reciting the terms of the Act); and that
the amendments or Constitution which might be proposed should
be submitted (reciting also its terms as to submission) ; that the
law in effect told the Comptroller to pay the members six dollars
per day for every day of the session of the Convention, but that
the session must be ended before the next general election ; that
such, in his opinion, was the intention of the legislature in pass-
ing the Act, and such was the popular, and he thought the true,
construction of it; that all the right of the members to their
compensation was derived from, and must be limited by the
‘terms of, the legislative Act under which they were convened ;
that all the Comptroller’s authority to pay them was conferred and
imposed by the same Act; that they had discretion to prolong
their voluntary session, and to trust to some future legislative
enabling Act; that in doing so they violated no law; that the
Comptroller had no official discretion to transcend the limitations
of the present Act, nor to draw his warrant in anticipation that
it would be extended by the next legislature ; that in doing so he
would violate the Constitution, which prescribes that “no money
shall ever be paid out of the treasury of this State, or any of
its funds, or any funds under its management, except in pursu-
ance of an appropriation by law;” that the next legislature
might, in its discretion, pay the members, for their attendance
after the 5th of November, six dollars, or one dollar, per day, or
refuse to pay any sum whatever; that the construction which
derived the authority and rights of the Convention, including the
pay of its clerks and members, from the Constitution, regardless
of the limited period prescribed to its session in the legislative
Act, would permit continued sessions without limit, and impose
the duty on successive legislatures, by the high obligations of
“good faith,” to make appropriations for its expenses until the
Convention determined to conclude its labors; that he thought
such a construction was erroneous, and advised him to decline to
pay the members and officers of the Convention for attendance
after the time indicated in the Act for a submission to the peo-
ple.
444 CAN CONVENTIONS APPROPRIATE MONEY ?

Accordingly, on the 20th of November, the Convention being
still in session, the Comptroller advised it of his correspondence
with the Attorney General, and of his unwillingness to take the
responsibility of continuing to draw warrants on the treasury
for the payment of the expenses of the Convention without fur-
ther legislative action.

So, the Georgia Convention of 1867, having by ordinance au-
thorized its disbursing officer to receive and receipt for a certain
sum of money from the State Treasurer, that officer, although
ordered by General Pope, in command of the military district
comprising the State of Georgia, to make such payment, declined
to comply with the provisions of the ordinance, stating as his
reasons that, “ holding his office under the Constitution of Geor-
gia adopted in 1865, being sworn to perform its duties according
to that Constitution and the laws of the State, by which he was
forbidden to pay money out of the treasury except upon warrant
of the Governor and sanction of the Comptroller General, and
having entered into heavy bonds for the faithful performance of
the duties so prescribed, he was compelled to decline making the
payment ordered by the Convention.” ! Afterwards it appears
that both the Treasurer and the Governor of the State were re-
moved by General Meade, then in command of the district, be-
cause they “declined to respect the instructions of, and failed to
codperate with, the major-general commanding the Third Mili-
tary District.” 2 Although the Constitution and government of
Georgia, under which those State officers had been appointed, were
provisional, as was finally declared by Congress, the Treasurer
was unquestionably right legally in refusing payment, though had
he complied with the order he doubtless would have been indem-
nified by the Federal or State authorities when the reconstruction
of the State should have been completed. But, although in a suit
on his bond he might have pleaded the compulsion of military
force, and have been justified morally in yielding to it, it is more
than doubtful whether he, or the sureties on his bond, could have
succeeded in resisting judgment upon such a plea, because tech-
nically the Convention, backed by the army of the United States,
would not have been the legislature of Georgia, nor its ordinance
or a military order the law of the State; nor would any payment

1 See Jour. of Geo. Conv. 1867, pp. 78, 79.
2 Td. p. 131.
CAN CONVENTIONS APPROPRIATE MONEY ? 445

the Treasurer should have made been made upon the warrant of
the Governor, nor with the sanction of the Comptroller General.

§ 441 6. In like manner, the legislature of Georgia having, in
1877, in the act calling the Convention of that year, appropriated
the sum of twenty-five thousand dollars to pay the expenses of the
same, and authorized the Governor to draw his warrant therefor,
and this sum proving insufficient, the State Treasurer, under the
official advice of the Attorney General, the Hon. R. N. Ely, de-
clined to pay the members of the Convention their per diem and
mileage to an amount exceeding the sum appropriated by the
legislature.

In both the New York case and the last Georgia case the Con-
ventions acquiesced in the opinions of the Attorneys General,
and procured, in the former case, from the Commercial Bank
of Albany, and in the latter from the Hon. Robert Toombs, a
member of the Georgia Convention, loans of the sums needed to
pay all the expenses of those bodies, upon the faith that legisla-
tive provision to meet them would afterwards be made.

Finally, the same question arose in the Pennsylvania Conven-
tion of 1873, under the following circumstances. We have seen
that that body, in submitting the Constitution it had framed to
the people, instead of directing the election to be conducted “as
the general elections were by law conducted,’’ as the Convention
Act had required, appointed a special board of commissioners to
conduct the election in the city of Philadelphia, but that the pro-
ceedings of that board were stopped by the injunction of the
Supreme Court.1_ The commissioners obeyed the mandate of the
court; but upon the reassembling of the Convention, after the
decision had been rendered and after the election had been held,
they sent in to that body a bill for expenses incurred before the
injunction was served, which, after deducting an unexpended
balance of the sum of five thousand dollars already advanced by
the Convention, amounted to nearly seven thousand dollars. A
resolution that a warrant be drawn for that balance on the State
Treasurer, in favor of the election commissioners, was adopted
by the Convention.2 Upon presentation of the warrant to the
State Treasurer, the Hon. R. W. Mackey, he referred the question
of the power of the Convention to issue the same, and of his duty

1 See ante, § 409 a.
2 Deb. Pa. Conv. 1872, pp. 749-754,
446 CAN A CONVENTION ACT AS A LEGISLATURE

to pay it, to the Attorney General of the State, who answered
both questions in the negative. Payment, therefore, was refused,
By an Act of the Pennsylvania legislature, approved April 29,
1874, however, the bill presented by the commissioners was or.
dered paid, it appearing that the items embraced in it were for
expenses incurred by commissioners before the Supreme Court
of the State had pronounced the ordinance for their appointment
to be illegal and void.

§ 442. 2. 1 pass now to the second class of questions pro-
posed for discussion in this chapter, namely, Can a Convention
act as a legislature in matters by the Federal Constitution re-
quired to be transacted by the legislatures of the several States?

There are two cases :

(a). Can a Convention assume, as a legislature, to prescribe
the “ times, places, and manner of holding elections for Senators
and Representatives” in Congress ?

(6). Can a Convention assume, as a legislature, to ratify pro-
posed amendments to the Federal Constitution, when the rati-
fication is required by Congress to be made by the State legis-
latures ?

(a). The fourth section of the first article of the Federal Con-
stitution provides, that “the times, places, and manner of hold-
ing elections for senators and representatives shall be prescribed
in each State by the legislature thereof.”

In the Illinois Convention of 1862, a question arose in relation
to the power of that body to personate the State legislature,
under this section. Soon after the result of the census of 1860
was announced, the legislature of Illinois had districted the
State for thirteen members of Congress, on the basis of that an-
nouncement, and had adjourned. In March, 1862, while the
Convention was in session, an Act was passed by Congress al-
lowing the State an additional representative. An election for
members of Congress being about to take place in November
of that year, it was deemed desirable, if possible, to correct the
erroneous apportionment, without summoning together the legis-
lature. Accordingly a resolution was introduced into the Con-
vention instructing the judiciary committee to inquire whether
that body had power to establish districts for the election of
members of Congress. Upon that committee was placed the
best legal talent in the Convention, and a report was promptly
TO DISTRICT THE STATE FOR MEMBERS OF CONGRESS? 447

made, maintaining that the power of the Convention to estab-
lish districts was undoubted.

§ 443. The ground taken by the majority of the committee
was simply that the true construction of the clause of the Con-
stitution which requires that “the times, places, and manner of
holding elections for members of Congress” should be prescribed
by the legislature, was, that the people of the different States
should have the right tu prescribe through their proper repre-
sentatives, the particulars indicated; that the ordinary construc-
tion of the clause was founded upon the assumed technical
signification of the word “legislature,” according to which, the
clause in question could only refer to the General Assembly ;
that, on the contrary, the word “legislature,” from its derivation,
construction, and general use, was not confined in its meaning
to limits so narrow, but denominated a body of persons having
the power to lay down laws, — in common acceptation, to make
laws; that it was, therefore, properly applied to any body having
and exercising the power of making laws; that the Congress of
the Revolution was a legislature; that the Convention which
framed the Federal Constitution was the first legislature which
ever convened and acted in America, having made and estab-
lished, by the subsequent approval and ratification of the States,
the supreme law of the land; that in organizing new States out
of Territories, the Conventions called for that purpose had exer-
cised this power without question; that the Convention of Illi-
nois was a legislature, authorized to create laws which might
abolish other legislatures; change, annul, or reéstablish existing
laws; in short, was superior in power, in the act of making laws,
to any ordinary legislature, and hence might, at least, do, in the
way of changing or abrogating the Acts of a former legislature,
whatever a subsequent legislature might do.

Upon the report of this committee, and almost without de-
bate, the Convention instructed its committee on Congressional
apportionment to redistrict the State at once for members of
Congress. This was done, and there was consequently embod-
ied in the Constitution a scheme of districts satisfactory to the
majority of the Convention.

§ 444. In relation to the arguments advanced by the commit-
tee, it is worthy of note —

1. That, although, as stated by the committee, the spirit of
448 CAN A CONVENTION ACT AS A LEGISLATURE

the clause of the Federal Constitution in question doubtless is,
that the people of the several States should have the right to
determine the time, place, and manner of electing their repre-
sentatives in Congress, still it is explicitly required by that clause
that the legislatures shall be the bodies by which that determina-
tion shall be made. The real question is, what is meant by the
term “legislature?” The words “legislature” and “ Conven-
tion” are used in the Federal Constitution, the former ten times,
and the latter four times. The signification intended by the
word “Convention,” it is impossible to mistake, since it is used
only in reference to framing or ratifying a body of fundamental
laws for the United States. The word “legislature” is always
preceded by the article “the,” as importing an institution well
understood, and is uniformly coupled with the' term “ State.”
Moreover, from the context, it is impossible not to infer that the
term is used technically, to designate the ordinary law-making
power, and not a Convention, or other body. It may also be
noted, that whenever reference is certainly made to the ordinary
law-making power, the term “legislature” is employed; and
that whenever reference is certainly made to that body of per-
sons whose duty it is to frame the fundamental law, the term
“Convention” is employed.

§ 445. 2. The statement of the committee, that the Congress
of the Revolution was a legislature, though true, is exceedingly
unfortunate for their purpose. The Congress of the Revolution
constituted a provisional government, and as such was possessed
of not only legislative, but executive and judicial powers; it
was precisely such a body as the Convention Parliament of
1689 in England, composed of citizens collected irregularly,
charged with the duty temporarily of protecting and governing
the nation left without an organized government, and to that
end authorized to exercise such powers as should seem to them
to be necessary. <A body of a similar character, so far as its
legal status is concerned, was the National Convention of
France; though, it must be admitted, that assembly, composed
of men unpractised in public affairs, was, in point of political
wisdom, infinitely inferior to both the Convention Parliament
and the Continental Congress. But the point is, that they were
all of them Revolutionary Conventions, wielding provisionally
all powers whatsoever. It is worse than idle to compare our
TO DISTRICT THE STATE FOR MEMBERS OF CONGRESS? 449

Constitutional Conventions with such bodies. Constitutional
Conventions are not governments at all; they wield no adminis-
trative powers, and of such as are denominated legislative pow-
ers, they wield only such as relate to the organic law, and in
respect to that, their powers are limited to recommendations
merely. In other words, the Continental Congress, referred to
by the committee, was not a Convention, in the sense intended
by them, at all; and, therefore, no inference as to the powers of
such a body can be drawn from the fact that that Congress did
or did not possess particular powers.

§ 446. The committee say, that, in organizing new States out
of Territories, the Conventions, called for that purpose, exercise,
without question, the power of apportioning such States for
members of Congress, and thence infer that all Conventions
may exercise the same powers. It is true, that, in many cases,
such has been the practice. There being as yet no State, and,
of course, no State legislature, unless the Convention could
make a temporary arrangement for the election of members of
Congress, the new State must, after its admission into the
Union, be unrepresented in that body, until a State legislature
could be elected and could pass the necessary laws, — a condi-
tion involving often a considerable delay. In such cases, accord-
ingly, the custom has been for the Convention to anticipate the
action of the legislature, — a course which, on account of its
obvious convenience, has been commonly acquiesced in. These
cases, however, form exceptions to a rule which is general, — that
it is the State legislatures which apportion their several States
for Congressional elections. I have failed to find a single excep-
tion to that rule save in the cases of Territories seeking to be-
come States, or of States standing substantially on the same
footing as Territories.

Besides, in one view of the subject, such action of the Terri-
tories, taken in connection with that of Congress following it,
involves no impropriety, if it is not strictly regular. Imme-
diately following that clause of the Federal Constitution giving

1 The Louisiana Reconstruction Convention of 1864, which stood on a footing
in some respects similar to that of a Territory preparing itself for admission into
the Union, apportioned the State for the election of members of Congress. We
have seen, however, that that body was a revolutionary one, — a provisional gov-
ernment, — erected under the sanction of the military arm. “See ante, §§ 247-
249.
450 CAN A CONVENTION ACT UPON

the power of determining the “times, places, and manner of
electing senators and representatives” to the State legislatures,
is the important reservation, “but the Congress may at any
time, by law, make or alter such regulations, except as to the
place of choosing senators.” Hence, having the power to make
or alter, Congress doubtless might ratify such regulations, how-
ever made; or, if a State, actual or inchoate, were in such a
condition, that it had no lawful legislature, Congress might
itself, for the sake of convenience, establish them by its direct
action. This it does, in substance, by anticipation, in those
cases in which it accepts and admits into the Union Terri-
tories, presenting themselves with Constitutions containing the
apportionments referred to.

§ 447 (6). Similar considerations enable us to dispose of the
second case relating to the power of a Convention, as a legis-
lature, to act upon proposed amendments to the Federal
Constitution. Article V. of that Constitution provides, that
Congress, whenever two-thirds of both houses shall deem it
necessary, shall propose amendments to that instrument, 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 as parts of the Constitution, “ when
ratified by the legislatures of three-fourths of the several States,
or by Conventions in three-fourths thereof, as the one or the
other mode of ratification may be proposed by Congress.”

By a joint resolution of Congress, approved March 2, 1861,
an amendment was proposed to the Constitution of the United
States, inhibiting any amendment to such Constitution which
should authorize Congress “to abolish or interfere within any
State, with the domestic institutions thereof, including that of
persons held to labor or service under the laws thereof.” The
mode of ratification proposed by Congress was by the action
of “ the legislatures of three-fourths of the several States.” The
legislature of the State of Illinois, having at its session held in
1861 failed to ratify this amendment, the Convention of that
State, of 1862, attempted to supply a remedy. After a discus-
sion, in which the difficulties attending the assertion of the
power in question were considered on constitutional grounds,

the Convention, by a decisive vote, passed a resolution ratifying
the proposed amendment,
PROPOSED AMENDMENTS TO THE FEDERAL CONSTITUTION? 451

Respecting this action of the Convention, I deem it unneces-
sary to say more, than that there is not, in my judgment, on legal
grounds, a shadow of reason for the construction given to the
Constitutional provision, and that party zeal alone could have
led the eminent men who composed that body, to the position
assumed in the discussion.

§ 448. 3. The last practical question proposed for discussion,
is whether a Convention has power, by constitutional regulation
or otherwise, to limit a discretion confided to a State legislature
by the Constitution of the United States?

This question arose in the Massachusetts Convention of 1820,
under the following circumstances. Mr. Austin, of Boston, in-
troduced into that body a resolution affirming the expediency
of electing representatives in Congress and presidential electors,
in districts to be determined by the legislature, instead of by gen-
eral ticket, as it is called, and requiring that body, immediately
after every apportionment of representatives by Congress, to pro-
vide by law for so electing them. By the second section of the
Federal Constitution, it is directed, that the members of the Na-
tional House of Representatives shall be chosen “ by the people
of the several States,” and by the fourth section, that “ the times,
places, and manner of holding elections for senators, &c., shall
be prescribed in each State by the legislature thereof.”

By the mover of this resolution, it was not denied that it
was by the legislature, and not by a Convention, that the times,
places, and manner of electing senators, &c., were to be deter-
mined ; but be contended that the latter had a right to limit the
former in the exercise of its discretion; that the legislature was
bound to exercise all its powers under the diteuiion; of the Con-
stitution, and that the people had at the same time the right to
impose upon the legislature such terms and conditions as they
should deem advisable; that admitting the right of imposing
the particular restriction in question, the expediency of it was
beyond dispute; for, it was said, that “ when electors and repre-
sentatives are chosen in large districts, the rights of the minority
are desttoyed. Itis only by dividing the State into small por-
tions, that there can be a fair expression of public opinion.” }

§ 449. On the other hand, Judge Story contended that the
proposed restriction was in conflict with the Federal Constitu-

1 Deb. Mass. Conv. 1820, pp. 106-108.
452 CAN A CONVENTION PRESCRIBE ACTION UPON

tion; that by the latter instrument a discretion as to the choice
of electors was given to the legislature; that that discretion was
unlimited, and yet the proposition before the Convention went
directly to destroy that freedom of choice, and compelled the
legislature to resign all manner of choice but one; that it was
bound to exercise its authority according to its own views of
public policy and principle; but that the proposition in question
compelled it to surrender all discretion; that a strong objection
to that proposition, moreover, was that if it should be adopted by
the Convention, and ratified by the people, the legislature would
probably follow the rule presented by the proposed amendment;
that the members of the legislature were under oath to support
the Constitution of the State; that they were also under oath
to support the Constitution of the United States; but would it
not, it was asked, be a violation of their oaths to bind them-
selves not to choose representatives in any manner that the Con-
stitution of the United States allowed, except that stated in the
amendment? As to the question of policy, he admitted that
a uniform mode of choosing representatives and electors by
districts throughout the United States, would be a great improve-
ment in the National Constitution ; but he urged that the question
before the Convention was not of that nature; that it went to
limit Massachusetts to a particular mode of choice, leaving the
rest of the United States free to adopt any other, the result of
which would be, on the most important occasions, to deprive
that State of all the influence to which her talents, character,
and numbers entitled her.

In these views, Mr. Webster, also a member of the Conven-
tion, coincided, and the proposed amendment was not adopted!

1 See Deb. Mass. Conv. 1820, pp. 109-112. An interesting question dis-
cussed at great length in the Pennsylvania Convention of 1837, mainly as one
of expediency, relates to the adoption of a provision in a State Constitution
requiring State officers to take an oath to support the Constitution of the United
States. A committee had reported an oath of office not containing such a
clause to be taken by all State officers, and the debate arose upon an amend-
ment proposing to insert it. The result was that not only the amendment, but
the report of the committee recommending an oath of office, was defeated, and
the Constitution framed by the Convention contained no provision for an
oath of office. Deb. Penn. Conv. 1887, Vol. I. pp. 195-215. As bearing on
the propriety of inserting in State Constitutions provisions supplementing or

enforcing that of the United States, see remarks of Webster in the Massachu-
setts Convention of 1820, quoted ante, § 95.
AMENDMENTS TO THE FEDERAL CONSTITUTION ? 458

§ 449 a. 4. A question not unrelated to that discussed in the
last two sections is, whether a State Convention can prescribe
what legislature shall act upon an amendment to the Constitution
of the United States proposed by Congress ; as, that it shall be
a legislature elected after such amendment has been submitted
to the States? This question arises upon a constitutional pro-
vision adopted by the Tennessee Convention of 1870, and subse-
quently ratified by the people of that State. As embodied in the
Constitution, it is known as Article II., Sec. 82, of that instru-
ment, and is as follows: —

**No Convention or General Assembly of this State shall act
upon any amendment of the Constitution of the United States,
proposed by Congress to the several States, unless such Conven-
tion or General Assembly shall have been elected after such
amendment is submitted.”

So far as relates to Conventions the prohibition is futile and
inoperative, if the conclusion we have reached in the preceding
section is correct ; for no State Constitutional Convention, whether
authorized or not by the Act calling it, could discharge the func-
tion of a legislature in the case supposed. Does the constitu-
tional inhibition operate to deprive a legislature, existing at the
time an amendment to the Constitution of the United States is
submitted to the States, of power to act upon it? It is conceived
that it does not, but that such inhibition is void as attempting to
modify the Federal Constitution or to control the operation of a
Federal Act or resolution, and that the consequences attending
upon a void provision must follow. If the existing legislature
were to assemble according to law and to pass upon the proposed
amendment, its action would be valid and effectual to bind the
State, notwithstanding the inhibition, if its action were affirma-
tive of the amendment; and if its action were negative of it,
that action would have the same effect as that of any State legis-
lature which should have negatived the amendment.1 On the
other hand, doubtless, were the existing legislature to decline or
fail to act upon the proposed amendment and go out of existence,
the State legislature next elected according to law would have
power to consider and act upon it.

In the Illinois Convention of 1869 a resolution to the same

1 As to the effect of the negative action of a State legislature in such a case,
see §$ 576-581.
454 EXPRESS POWERS OF CONVENTIONS.

effect, after which perhaps that of Tennessee was modelled, was
introduced, but, after an adverse report by the Committee on
Federal Relations, to which it had been referred, it was changed
by its mover into the following form : —

“ Article The General Assembly shall not ratify any
amendments to the Constitution of the United States until a
general election for members of the General Assembly shall have
been held, after such amendments shall have been proposed by
Congress to the legislatures of the respective States.” The pro-
posed article was thereupon rejected by the Convention.!

§ 450. II. The preceding sections of this chapter have been
devoted to a delineation of the powers of Conventions, resulting
from what may be called their external relations; that is, their
powers with reference to the sovereign society at large, and to
the government of the State, both in general, and as divided
into several distinct departments. It remains now to inquire
what powers belong to them by reason of their internal rela-
tions, having reference, for example, to the perfecting of their
organization, to the maintenance of discipline over their mem-
bers or over strangers, and to the prolongation or perpetuation
of their existence.

The powers of Conventions, considered from this point of
view, are, first, such as are expressly given by the Act under
which they assemble ; or, secondly, such as are implied as being
necessary to the exercise of these express powers, or as inci-
dental to the complete execution of their commission.

§ 451. First. With respect to powers expressly given, it is
unnecessary to speak at much length. In general, a power ex-
pressly granted to a Convention by a legislative Act or bya
Constitution, is a power, the right to exercise which cannot be
denied to it. Whether this rule is one whose application is
universal, is a question of some delicacy which may be worthy
of a short examination. To ascertain whether the rule has
limits, an extreme case may be put. Let us suppose, that in
calling a Convention, the legislature has authorized or required
it to enact or to recommend measures subversive —1, of the
laws of morality; or, 2, of the guaranties of the public liberties,
not extending, however, to the abrogation of republican forms.
‘Would the Convention have power — not would it be obliged,

1 Deb. Ill. Conv. 1869, pp. 161, 1152-1155, 1763-1771.

 
IMPLIED POWERS OF CONVENTIONS. 455

but would it be competent—to obey? 1. As to measures
mala in se, the answer is, that the Convention would derive from
such an Act no power whatever, for no body of men can give
to another power to do what neither can rightfully do indepen-
dently, — power in extent greater than is possessed by the giver.

§ 452. 2. More difficulty exists in relation to measures of the
second class, which, in general, would be merely mala prohibita,
though, doubtless, some of them, by destroying safeguards long
recognized as essential to liberty, might be considered as tainted
with positive immorality. But assuming that all such measures
would, on @ priori moral grounds, be indifferent, would a Con-
vention then be competent to enact or recommend them? The
answer clearly must be in the affirmative. Thus, were a legis-
lature to require or authorize a Convention in the Constitution
it should frame to repeal the entire Bill of Rights, or to insert
clauses empowering the legislature to establish a censorship of
the press, or the judiciary to issue general warrants, although
the measures indicated would endanger some of our most valued
rights, yet not being necessarily incompatible with the existence
of republican government, or within the range of direct Federal
prohibition, they would not be beyond the competence of the
Convention.

§ 453. Secondly. It is the implied or incidental powers,
claimed by or attributed to Conventions, that are of principal
interest in this discussion; powers, that is, involved in the
general grant of authority to assemble in Convention to revise
the fundamental law. Conceiving of Conventions, then, as we
must,as mere committees, what powers have they resulting by
implication from their general character or from the nature of
their business in relation to the points indicated? The general
rule is undoubtedly this: — as Conventions are commonly nu-
merous assemblies, containing, in most cases, the same number
of members as the State legislatures, they are possessed of such
powers as are requisite to secure their own comfort, to protect
and preserve their dignity and efficiency, and to insure orderly
procedure in their business. For the attainment of these ends,
they are.not without the authority possessed by agents in gen-
eral, and, in my judgment, they are possessed of no other or
greater. Thus, they must have a suitable hall, adequately
warmed and lighted; and, though the Acts calling them were
456 POWERS OF CONVENTIONS RESPECTING THEIR ORGANIZATION.

silent on the point, they would unquestionably have power to
engage one, and to pledge the faith of the State for the rental
thereof. So, there can be no doubt, a Convention would be au-
thorized to appoint such officers and servants as the custom of
public assemblies in free communities has sanctioned, or as may
seem under the circumstances to be necessary.

§ 454. In respect to a president and secretary or secretaries,
there can be no question, The convenience of members and the
despatch of business would point also to messengers or pages
as requisite. The same may be said perhaps of one or more
door-keepers, since, if the hall where the session is held, were
accessible to everybody, at all hours, the functions of the Con-
vention might be seriously interrupted, and its dignity insulted.
With respect to a sergeant-at-arms, some doubt exists. It isa
universal practice in Conventions to appoint such an officer,
and the right of doing so for certain purposes cannot be denied.
The doubt arises in relation to his powers, which of course in-
volves the competence of those bodies to vest him with them.
A sergeant-at-arms is defined to be “ an officer who executes the
commands of the house in apprehending delinquents or offend-
ers, and in preserving order,” &c.1

As to one of these functions, that relating to the preservation
of order, some officer charged therewith would doubtless be neces-
sary in any assembly; but if it be true, as we shall attempt
to show hereafter, that Conventions have no magisterial powers
whatever beyond those possessed by every public meeting, it is
doubtful whether a sergeant-at-arms is not a useless piece of
ostentation in those bodies. In the case of a legislature, that
officer discharges all the functions indicated by the definition.
Moreover, the name sergeant-at-arms was undoubtedly derived
from the sterner duties of his office, involving the arrest of de-
linquents, whether members of the body or strangers. For the
present, however, I shall assume that the sergeant-at-arms of a
Convention lacks the function which gives to the name of the
corresponding officer of a legislature its appropriateness, and is
a functionary, like a secretary or door-keeper, destitute of proper
police powers. In his limited capacity, however, his duties are
important. “He attends upon the Convention, maintaining
order among those present, serving its processes and executing

1 Worcester’s Dict. in verb. “ Sergeant.”
POWER WITH RESPECT TO REPORTS OF THEIR DEBATES. 457

its orders, giving notice to the presiding officer of persons at-
tending with messages, or other communications; he has the
appointment and supervision of the various officers of his de-
partment — and, as housekeeper of the house, has charge of all
its committee rooms and other buildings during its sitting.” 1
In short, he is the principal executive officer of the Conven-
tion.

How this officer came to be called a sergeant-at arms, with
powers so inferior to those indicated by his title as well as to
those wielded by his namesake in the legislature, is shown by
the origin of Conventions. We have seen that the first Conven-
tion, the type, in some respects, of all that have followed, was
a Parliament irregularly called and constituted — a revolutionary
assembly, modelled after the iegitimate legislative branch of the
government, with the same officers, and, in general, the same
modes of proceeding. Of this original perversion of a Parlia-
ment, called the “ Convention Parliament,” our earliest Conven-
tions, during the Revolution, were close imitations, both in
structure and organization; and when, upon the foundation of
our constitutional system, those exceptional and revolutionary
bodies were transformed and introduced into it as part of the
regular constitutional apparatus, their scheme of officers and
rules and modes of proceeding were also adopted, without sub-
stantial modification.

§ 455. The power of a Convention to supply its members
with stationery is perfectly clear; but in reference to the public
journals there has been some doubt, though upon precedent as
well as upon principle, the power must probably be admitted.
It has been the practice of nearly all the Conventions held in
the present century, to order, as well for the use of the members,
as for distribution among their constituents, one or more news-
papers for each member during the session. The reason usually
assigned for this expenditure is, that it is important there should
be a direct and constant communication between the people
and their delegates in the Convention, in order that the latter
may as perfectly as possible reflect the public will. If all that
is proposed and discussed, be submitted immediately to the

' Cushing’s Law and Prae. of Legisl. A ssemb., 2d ed., p. 131. The description
quoted above is adapted from that given by Cushing of the sergeant-at-arms of a
legislature.
458 POWER WITH RESPECT TO PHONOGRAPHIC REPORTS.

people, with the reasons for and against, a thing possible only
through the medium of the press, the delegates would be guided
and moulded by a reflex wave of sentiment which would be
fresh and unmistakable. Every thing which, within reasonable
limits, conduces to that end, and at the same time conforms to
the usages and is not foreign from the purpose and nature of
the Convention is, by a liberal construction of its powers, au-
thorized.

§ 456. The same principle applies to the case of phonographic
reports and printing for the Convention. It would be a most
niggardly policy which should refuse the expenditure necessary
to the preservation of most full and accurate reports of its de-
bates and proceedings. Upon this subject, however, there has
been very great difference of views in different Conventions.
In many of the States, volumes have been published, containing
both the journals and the debates of all their Conventions. In
others, the subject seems not to have been regarded as of any
consequence whatsoever ; and what little has been preserved
has been owing to the private enterprise of the newspaper press.
The result is, that the memorials of the most important public
bodies ever assembled in those States, are often very meagre,
and more often confused and inaccurate. Such a policy is
“penny wise and pound foolish.” In after years, when it has
become impossible to replace what has been lost, more enlight-
ened public opinion commonly finds. cause to regret a paltry
economy which deprives history of its most important data. It
should be remembered, that our Conventions lay the foundations
of States, many of which are to rival the greatness and glory
of Rome, of England, and of France. In a hundred years from
now, what treasures would they not expend, could they purchase
therewith complete copies of their early constitutional records —
documents standing to their several organizations in the same
relation as would the discussions of those ancient sages who
framed the Twelve Tables of the Roman law, to the Republic of
Rome.

§ 457. And here I may be indulged in a remark or two in
relation to the character and value of the debates of our Con-
ventions.

Doubtless, to the listener, few public assemblies would exhibit
so little that is attractive as those bodies. There are, of course,
CHARACTER AND VALUE OF CONVENTION DEBATES. 459

in them, much garrulity and much ignorance, and the topics of
discussion are abstract and unfamiliar. Accordingly, the pub-
lished conventional debates are dreary wastes of platitudes,
dotted here and there with gems of wisdom and eloquence. So
well is their prevailing character known, that in some of the
later Conventions particular pains have been taken to discour-
age speech-making by the establishment of rules limiting debate
— prominent delegates in one case, where there were no rules,
directing the reporters to omit the speeches they themselves
should make. But I am persuaded that a diffuse style, tainted
in every period with rhetorical vices, is not incompatible with
a high degree of political wisdom, and that all such attempts,
however well-meant and, on grounds of taste, deserving of gen-
eral sympathy, are ill-judged and harmful. When measures are
under deliberation, which rest on principles alone, the opinions
of commonplace men are frequently of as much value, and are
likely to be quite as original, as those of the more gifted debaters.
At all events, it is aeinenithy useful to a public assembly to listen
to the observations upon any subject, of many men of various
callings, and of unequal attainments. If their thoughts are not
generally profound, they are often suggestive ; and, in a delib-
erative body, it is not so much the remarks of those who speak,
as the reflections upon them of those who listen, which ripen
its measures. The truth of this is seen in perusing the printed
reports of the debates in our Conventions. One cannot go
through the discussion of any important measure, in which men
of ordinary minds participated, without being surprised to find
fresh light constantly flowing over the subject from speeches,
which not all the polishing of the reporter could make other-
wise than offensive to a cultivated taste. In my judgment,
therefore, it is unwise, where questions relating to the funda-
mental law, always more or less abstract, are under discussion,
to limit or discourage debate to the same extent that might be
advisable in a legislature, in which the measures proposed are
commonly, such as carry their policy or impolicy upon their faces ;
or, at least, in reference to which, if a mistake be made, the
consequences are not so disastrous or so lasting. Hon. Henry
A. Wise is said to have declared in the Virginia Convention of
1850, that “he would not give a fig for any Constitution that
was framed in less than twelve months,” — a remark involving
y
460 POWER WITH RESPECT TO THE MAINTENANCE OF ORDER.

some exaggeration, but indicating a much more proper apprecia-
tion of the importance of mature deliberation in organic legis.
lation than the contrary extreme. There are no greater ene-
mies to their respective States than those foolish delegates who
are no sooner seated in Convention than they begin to clamor
for less speech-making and more voting, with a view to an early
adjournment and a light bill for Convention expenses.

§ 458. In relation to the printing for the Convention, the case is
very clear. If the Act calling the body provides for it, or requires
it to be done in a particular manner or by a designated person,
or limits it in amount or in cost, doubtless the Act should be
obeyed. But, unless thus restricted, the power of the body to
order its printing to be done, is as undoubted as to engage a
hall or the requisite executive officers. The only alternative is,
the employment of secretaries enough to furnish written copies
of all papers and documents used in the course of its business.
This would be possible, and such provision would, after a sort,
answer the purpose. But it is certain, that the measures pro-
posed would be neither so well understood nor so rapidly ma-
tured, if thus presented, as if they were printed. To this may
be added, tbat the expense of printed would be much less than
of written copies, and that the length of the session would
probably be reduced by the use of them. The employment,
then, of printed matter, being clearly within the power of the
Convention, as incident to the speedy and convenient execution
of its commission, the extent of it rests in the discretion of that
body, and it can bind the government, within reasonable limits,
by its contracts therefor.

§ 459. A Convention having provided itself with the officers
needed to do or to expedite its work, its attention would be next
directed to the subject of maintaining order in the transaction
of its business, and in the conduct of its members. For this
purpose, rules of order are necessary. There is sometimes in-
serted in the Act calling the Convention, a power to establish
such rules as should be deemed requisite; but, without such a
clause, a Convention would clearly be authorized so to do. It
is usual, before rules have been reported by the special committee

1 On this subject, see the excellent remarks of Hon. Mr. Sergeant, President
of the Pennsylvania Convention of 1837, in Deb. Penn. Conv. 1837, Vol. J. pp.
304, 305.
POWER WITH RESPECT TO THE MAINTENANCE OF ORDER. 461

for that purpose, to adopt temporarily those of the last Conven-
tion, or of the last State House of Representatives. In the
absence of such a vote, it has been said, that the lex parlia-
mentaria, as laid down in the best writers, is in force. If by
this is meant, that the maxims of common sense, having refer-
ence to the protection of the rights of minorities, to the preser-
vation of order, and to the speedy transaction of the business in
hand, as the same are determined by the experience of public
bodies, are to be taken as a guide, the proposition may be ac-
cepted, since the lex parliamentaria is but a body of practical
rules founded on those very maxims. However that may be, it
is undeniable that that law remains in force only at the discre-
tion of the Convention. It may at any time be abrogated, partiy
or wholly, though it is certain that, if abrogated, there could
not be substituted for it a system which, in its leading princi-
ples, should be contrary to the spirit of that law. So far as it
should be so, it would operate as a device either to fetter the
Convention in the exercise of its unquestioned powers, or to rob
of their rights a minority of its members. It is not my purpose
to inquire farther into the nature or extent of the rules of order
which it is in the power of Conventions to adopt, but I pass to
a question, not unrelated to that inquiry, though of vastly greater
importance, namely, whether Conventions have power to arrest
or to punish for offences committed against themselves or against
their members, and to what extent?

§ 460. This question may be considered in reference

1. To offences committed by their own members, in their own
presence ; and

2. To offences committed by strangers, outside their walls,
including the power to compel obedience to their mandates.

Before proceeding to consider these questions, however, I shall
premise a few words in relation to the general principles which
limit or determine the power of Conventions in this regard,

As a Convention is not a legislature, though a body, by dele-
gation, exercising some legislative functions, but of so limited
and subordinate a character as to entitle it to rank only asa
legislative committee, it cannot do, even for its own defence,
acts within the competence only of a legislature, or of a body
with powers of definitive legislation. It can do, or authorize
to be done, such things only as every assemblage of citizens is
462 POWER TO DISCIPLINE THEIR OWN MEMBERS.

competent to do, as being necessary to the enjoyment of the
right of freemen peaceably to assemble, guaranteed by our Con-
stitutions. These would differ in different circumstances. If
a mob were to enter the hall of a Convention and seek to over.
awe it, the body would doubtless be authorized to eject it, if
practicable without a breach of the peace. On the other hand,
were a riotous assemblage to gather in the vicinity of a Conven-
tion, threatening its members with bodily harm, or assailing them
with abusive epithets, it is conceived that the body would have
no power to disperse it, or to arrest or otherwise punish the per-
sons composing it— at most, no greater power than would be
possessed by any citizen or body of citizens. Its duty would
be to call upon the constituted authorities forming the govern-
ment of the State. It is true, cases may be imagined in which
such a rule would place Conventions at the mercy of the popu-
lace, the government being unable or unwilling to interfere to
vindicate the rights of those bodies. But those would be ex-
treme cases, only existing where revolutions were impending.
The liability to be so interrupted is shared by Conventions with
all civic gatherings for social or political purposes. It would
not be pretended, that, because the latter are liable to be dis-
turbed by evil-disposed persons, they are authorized to exercise
general police powers. Why then attribute those powers to the
former? The laws are equally open to both, and there are, ever
vigilant and ever ready, administrative officers charged to apply
those laws to preserve the peace, and to give to every citizen,
whatever his function, that protection which shall enable him to
exercise it.

§ 461. It may be said, that legislatures wield powers much
more extensive than those to which we seek thus to limit Con- -
ventions, and it may be asked, Why, if those powers are deemed .
necessary to the former, they should be less so to the latter? The
answer is, because the former possess them. If they exist any-
where in the government, it is enough; and not only so, but the
fact that they exist in one department or agency, is evidence
that they do not, and a reason why they should not, exist else-
where.

So, the inference that Conventions ought to have within them-
selves all the powers necessary for any emergency of violence
or sedition, because our courts of justice and our corps of
POWER TO. DISCIPLINE THEIR OWN MEMBERS. 463

administrative officers have authority to vindicate their own
dignity and independence, is wholly unauthorized. Not to
mention that those bodies are largely dependent on our legisla-
tures for the measures most effectual to protect them from insult
and violence, they are radically different from Conventions —
they are political agencies in the actual exercise of functions of
government. It is proper that they should be vested with orig-
inal powers of self-protection, since otherwise there could not
exist that independence of each other in which alone safety
would be possible. The three ordinary departments of a gov-
ernment need to be armed for self-defence against each other,
at all points, because their spheres of action are conterminous,
and they stand ever in each other’s presence. Not so with Con-
ventions, in relation to other State agencies; they are occasional,
exceptional, and subaltern assemblies, charged with a special
and limited function, and, therefore, have far less need of the
powers indicated than either of those departments; or if those
powers should be thought to be indispensable to their safety or
efficiency, they must be wielded and exercised by the govern-
mental agencies in which our Constitutions have vested them.

§ 462. 1. The power of a Convention to discipline its own
members for offences committed in its presence is undoubted,
and of considerable extent. The order and dignity of public de-
liberative bodies may, in many ways, be so assailed as seriously
to interfere with the progress of business, if not wholly to inter-
rupt it, yet without the commission of any misdemeanor for
which the offenders would be amenable to the laws. A Conven-
tion, having no power to make laws giving the magistrates juris-
diction of such offences, unless it could, by sanctions of its own,
enforce its rules for the preservation of order, it would be at the
mercy of such members as chose to do the work of violence,
but to do it in such a manner as to elude the penalties for a
breach of the peace. To prevent this is the principal object of
rules; and every public assembly, by its very nature, must have
power to make and to enforce them in some modes appropriate
to its own Constitution. To Conventions, however, it must be
admitted, the range of sanctions is not very wide. For minor
offences, it would be confined, probably, to reprimand, and for
the more heinous, to expulsion from the body; or, in cases of
actual violence to arrest and tradition to the public authorities.
464 POWER TO DISCIPLINE THEIR OWN MEMBERS.

Power to this extent I conceive to be indispensable to the exist.
ence of any deliberative assembly; and, without assuming the
character of a legislature, with power to create and to invest
officers and tribunals with jurisdiction to punish offences, I can
imagine it possessed of no greater. The power to arrest an
offender, in the case supposed of actual violence, would involve
that of safely keeping, and, if necessary, of confining him until
he could be delivered to the officers of the law. So, the power
to expel a member would carry with it that of suspending, which
is less, or of suspending with forfeiture of pay, temporarily or
altogether, according to the degree of the offence. But the
power could not be claimed, in the former case, to imprison as
a punishment, or for a longer time than should be necessary to
secure the arrested member until he could be transferred to the
magistrates, on complaint regularly made ;1 or, in the latter; to
pass from a forfeiture of pay (if that be regarded as allowable)
to the imposition of pecuniary mulcts.

§ 463. In reference to the question of punishing offences by
forfeiture of pay, if within the competence of a Convention at
all, its action would be, like its proceedings in general, recom-
mendatory, and not final. By directing its president or other
proper officer to withhold from a delinquent his certificate, a
Convention would make it impossible for him to draw his pay,
unless it were specially awarded to him by a subsequent legisla-
ture.

§ 464. The offences by which members may subject them-
selves to whatever power of discipline a Convention possesses,
are of various kinds, not differing materially from those that may
occur in a legislature, which have been described by Cushing
as follows: —

“Members may be guilty of misconduct, either towards the
assembly itself, towards one another, or towards strangers. Mis-
conduct of members towards the assembly, besides being the
same in general as may be committed by other persons, consists
of any breaches of decorum or order, or of any disorderly con-

1 To our legislatures, our Constitutions sometimes expressly give power to im-
prison as a punishment for offences, but without such express provision they are
understood to possess the power, and it is the punishment commonly resortéd to
by those bodies in cases requiring some degree of severity. See Cushing’s Law
and Pract. of Legisl. Assemb., p. 267.
POWER TO DISCIPLINE THEIR OWN MEMBERS. 465

duct, disobedience to the rules of proceeding, neglect of attend-
ance, etc.; or of any crime, misdemeanor, or misconduct, either
civil, moral, or official, which, though not strictly an attack upon
the house itself, is of such a nature as to render the individual
a disgrace to the body of which he is a member. Misconduct
of members towards each other consists of insulting remarks in
debate, personal assaults, threats, challenges, etc., in reference
to which, beside the ordinary remedies at law or otherwise, the
assembly interferes to protect the member who is injured, in-
sulted, or threatened. Offences by members towards other per-
sons, of which the assembly has cognizance, consist only of
injurious and slanderous assertions ; either in speech or by writ-
ing, which, as there is no other remedy,! the assembly itself, if
it thinks proper, takes cognizance of, and punishes.” ?

§ 464. The Acts calling the New York Convention of 1867
and the California Convention of 1878 provided, in substantially
identical terms, that those bodies should have the power severally
to expel any of its members, and to punish its members and offi-
cers, for disorderly behavior, by imprisonment or otherwise, but
that no member should be expelled until the report of a com-
mittee, appointed to inquire into the facts alleged as the ground
of his expulsion, should have been made; and that, in all cases
in which they should punish any of their members or officers by
imprisonment, such imprisonment should not extend beyond the
session of those bodies respectively.

§ 464 6. In the Georgia Convention of 1867 a special com-
mittee was appointed to report upon a charge made by a news-
paper against one of its members, that he had been convicted in
New York of seduction. The chairman of the special committee
submitted a minority report, giving the evidence «ollected, and
closing with a resolution of expulsion. The majority, acquiescing
in the report of their chairman as to the identity of the person
and the facts as charged, were not prepared to recommend what
the Convention should do. In their report they say: ‘* There is

1 The statement that “there is no other remedy,” is applicable only to legis-
latures, and is justified by the principles established in relation to the privileges
of such bodies. Custom has ordained that it is a breach of privilege to question
a member of a legislature for words spoken in the house in debate, and many
of our Constitutions expressly recognize the protection. Cushing’s Law and
Pract. of Legisl. Assemb. p. 250.

2 Id. p. 259.
466 POWER OF CONVENTIONS TO DISCIPLINE STRANGERS.

no law fixing any qualifications for membership of this body ex-
cept the Act of Congress of March 2, 1867. That Act makes
but one qualification, — conformity to the third section of the pro-
posed constitutional amendment,” known as the XIV. amend-
ment. ‘It is true,” they continue, “that Act prescribes convic-
tion of felony at common law as a disqualification of a voter,
Seduction is not felony at common law, nor is simple seduction
felony by the laws of Georgia at all. It appears to us that this
Convention would be adopting a dangerous rule to prescribe
guilt of any offence as a disqualification for a seat. A Conven-
tion is in its nature a body which meets above all rules except
those prescribed in its call. Perhaps half of the members of this
Convention, as well as that of 1865, are held by the United
States to have been guilty of treason. It is true that they have
been pardoned, but we greatly doubt if the pardon is at all nee-
essary to make them eligible. This Convention lias, without
doubt, power to expel a member guilty of a serious crime whilst
a member; but we are not clear that it can, within the scope
of its powers, examine into the past history of one of its mem-
bers, and, finding it grossly immoral or criminal, go behind the
vote of the people and expel him.” And they conclude: “ We
are not prepared to say what should be the action of the Con-
vention in this matter.” 1 Afterwards, the resolution being called
up, the accused member, in some remarks made by him to the
Convention, insinuated that he had a letter in his possession
charging a like offense upon the president of that body. He
was thereupon by an unanimous vote expelled therefrom.”

§ 465. 2. In relation to the power of a Convention to vind:
cate its safety or its dignity by disciplining strangers, there is
greater difficulty. The right to exercise such a power must be
inferred either from the fact that it is held and exercised by legis-
latures, or that it is absolutely necessary to the exercise of powers
admitted to belong to Conventions.

In probably all the State legislatures, the power is asserted to
imprison persons not members for contemptuous or disorderly
behavior in their presence; for threatening, assaulting, or abus-
ing any of their members for any thing said, done, or doing in
either house; or for a breach of their privileges, in making ar-

1 Journal Geo. Conv. 1867, pp. 274, 275.
2 Id. pp. 295, 296.
POWER OF CONVENTIONS TO. DISCIPLINE STRANGERS. 467

rests for debt, or in assaulting or disturbing their officers in the
execution of any process or order of the houses; or in assault-
ing a witness or other person ordered to attend upon them, or
rescuing persons arrested by their order, knowing them to be
such. But it is a noticeable circumstance, that in a great pro-
portion of the cases in which the power is exercised by legisla-
tive bodies, it is done in pursuance of express authority given
in their respective Constitutions. This fact might cast a doubt
on the right, where no such provision exists, were it not that it
has become thoroughly established by prescriptive usage, as Mr.
Cushing has said, “that in all the States, as well those whose
Constitutions do not, as those which do contain” a clause au-
thorizing its exercise, “each of the legislative branches has juris-
diction, according to the common parliamentary law, of all
offences committed against it by persons not members.”! But
the fact that no law or Constitution has ever recognized the
existence of such a power in Conventions, authorizes a doubt
in regard to it. Those bodies are governed by the parliamentary
law, but as all other public assemblies are, that is, so far only
as is consistent with their special character and functions. Not
all provisions of what is called the parliamentary law are in
force in relation to all deliberative assemblies. The English
Parliament differs, in this respect, from our Congress, and the
latter from the State legislatures, which again differ from Con-
ventions of all kinds, amongst which last, finally, there are char-
acteristic differences. It is for this reason, that no work relating
to the law and practice of any one of those bodies can be fol-
lowed as an absolute guide in any other. In some measure the
functions, and to a very great extent, the powers, of all those
bodies differ, and thus necessitate different laws and usages.
The fact, then, that the power in question is commonly exercised
by our legislatures, has no tendency to prove that it belongs
alxo to Conventions.

§ 466. Is the power to arrest or imprison persons, not mem-
bers of Conventions, for offences committed outside of their halls,
indispensable to the exercise of the powers confessedly vested
in those bodies? In my judgment, this cannot be pretended.
For a moment forgetting the danger of vesting such a power in
a single chamber, a power involving, of course, that of holding,

1 Cushing’s Law and Pract. of Legisl. Assemb., pp. 270-272.
468 POWER OF CONVENTIONS TO DISCIPLINE STRANGERS,

in spite of courts and legislatures, persons declared by it guilty
of violating its privileges or of contempt of its authority, is there
substantial ground for pronouncing the power to be necessary ?
If it were admitted, that both the government of the State
in its various departments, and the government’s master, the
sovereign, were hostile to the Convention, interested and deter-
mined to compass its overthrow, there would be plausibility in
claiming for it the power as a means of self-defence. But the
hypothesis is at variance with all the facts. 1f the Convention
be legitimate, it is the offspring of the government, deriving its
origin from an Act concurred in by both the legislature and the
executive, and exists constantly under the guardianship of those
two friendly powers, which, in point of time, preceded it, and
which accompany and will survive it, so that at no moment can
it be at the mercy of hostile influences, and, therefore, stand in
need of the extraordinary powers claimed for it.

§ 467. Very little light is thrown upon the general question
above discussed by precedents. One or two cases, however,
have arisen bearing upon it, to which reference will be made.

The Illinois Convention of 1862, on a suggestion that a re-
porter for one of the daily journals had imputed to a large pro-
portion of its members complicity with a disloyal society, known
as the “Knights of the Golden Circle,” appointed a committee
to investigate the charge, with power to send for persons and
papers, and to swear witnesses, which, of course, involved the
power to compel obedience to its summons, by arrest or im-
prisonment, if necessary.

As may be inferred from the high tone of that Convention, in
respect of its prerogatives, the power was exercised without re-
serve; witnesses were summoned from all quarters, and their
statements taken under oath. It does not appear that the pow-
ers of the committee were questioned, and, therefore, whatever
weight a precedent, established by a Convention disposed to
magnify its office, but whose entire labor was repudiated by the
people, may be thought to deserve, it must be allowed to have.
As the instances are very rare, if any have occurred since the
Revolutionary period, in which Conventions have claimed such
powers, their propriety may be doubted, unless shown to be in-
dispensable to the practical working of the Convention system.
Whether it was so or not in Illinois, may be inferred from the
POWER OF CONVENTIONS TO DISCIPLINE STRANGERS. 469

considerations before presented, and also from the particular
facts of the case. The substance of the offence charged against
the reporter, was the publication of libellous imputations upon
the members of the Convention. But it is not easy to see how
a libel, contained in a newspaper outside of the organization
whose members were assailed, and relating to those members
not in their character as delegates, but as citizens and patriots,
could in any way interfere with the orderly and complete execu-
tion of the commission of the collective body. The presump-
tion of the necessity of such a power is much weakened when
it is considered how a committee acting under such circum-
stances would be likely to protect and vindicate the public in-
terests. The discussion in the Convention on the subject of
appointing a committee, indicated that the libel was thought
to reflect on members belonging to only one of the political
parties in the body. That party was in a majority in the Con-
vention. Hence the charges in substance imported that a large
number, perhaps a majority, of the party dominant in that
body was connected with a disloyal society, whose aim was to
revolutionize the State. Suppose those charges to have been
well founded; would an inquest, ordered and conducted by a
majority of which a large proportion were traitors, furnish to
the public interests adequate protection against their own trea-
son? If, on the other hand, there were no truth in the charges,
would it comport with the public interest or dignity, that an
important deliberative assembly should lend itself to purposes
of private revenge, or squander its time in tracing the pedigree
of slanders propagated by nameless scribblers in the public
journals, and affecting not the body itself, but its members as
individuals? Have we no judicial tribunals for the very pur-
pose of conducting such inquiries whenever a responsible ac-
cuser can be found, or are those bodies, standing aloof from
partisan strifes, less fitted to conduct them than a Convention,
whose functions, whatever else they may be, are certainly not
judicial ?

§ 468. In regard to the power given to the committee to ad-
minister oaths, but a word is necessary. There can be no ques-
tion, that the appointment of a committee with such a power
involved an exercise of ordinary legislation, to which the Con-
vention was not competent. Unless its action should have the
470 ‘POWER OF CONVENTIONS TO DISCIPLINE STRANGERS.

effect of a law, by which a witness could be compelled to take
the oath, and be made liable to the penalties of perjury in case
it were broken, it was wholly nugatory. Would our courts
pronounce guilty of perjury any man who should falsely take
an oath thus authorized? Would not the act of administer-
ing such an oath be within the statutes against extra-judicial
oaths?

§ 469. The only instance I shall mention in which a Conven-
tion has assumed to exercise the power of arresting persons,
not members of its own body, occurred in Louisiana, in 1864;
and I refer to it rather because it furnishes a convenient text in
connection with which to consider the conventional power of
arrest, as a practical question, than because the precedent is of
much value in itself.

On the 22d of July, near the close of the session of that Con-
vention, there appeared in the New Orleans “ Times” newspaper,
an article containing severe strictures upon the president and
other members of that body, — in plain language imputing to the
former, on the preceding day, drunkenness in his chair, and to
the latter, riotous and unseemly behavior. On the morning of
its appearance, the president arose to a question of privilege and
called the attention of the Convention to the article in the
“ Times,” which he declared to be a libel against himself as
well as the Convention. The following resolution was there-
upon offered by Mr. Cutler, and adopted : —

“ Resolved, That Thomas P. May, editor of the New Orleans
“ Times,” be brought before this Convention forthwith, by the
sergeant-at-arms, and that he be required to purge himself of
the contempt and libel on this body, as published in the issue
of July 22, 1864, or that he be otherwise dealt with as the Con-
vention may deem proper and just.”

Mr. May, surrounded by his friends, refused to be arrested, and
an order was thereupon procured from. General Banks, then in
command of the Department of the Gulf, with his headquarters
at New Orleans, directing the Provost Marshal to arrest him
and take him before the Convention. Brought, on the following
day, to the bar of that body, the president read the foregoing
resolution, and asked Mr. May what reply he had to make;
whereupon that gentleman read the following paper: —

“Tam here with the Provost Marshal to obey a military order
POWER OF CONVENTIONS TO DISCIPLINE STRANGERS. 411

issued by General Banks, and not in obedience to a resolution
of this Convention. At the proper time, in the proper place,
and in pursuance of the forms of law, I will answer to any
charge made against me and my paper, the ‘ Times.’ ”

Mr. Henderson moved that this answer be considered as an
additional contempt, which, after some discussion, was adopted.
The Convention then, after a preamble charging upon Mr. May
disloyalty to the government, and a gross libel against the presi-
dent and members of the Convention, as well as contempt of
its authority, by a vote of 49 to 31, adopted the following reso-
lution ;: —

“ Resolved, that Thomas P. May, Esq., for his said contempt
committed upon the president and members of this Convention,
in publishing in said paper said libel, shall be imprisoned in the
parish prison of the Parish of New Orleans for the space of
ten days, unless the Convention sooner adjourns; and that the
sergeant-at-arms be directed and authorized to carry this resolu-
tion into effect.”

To this resolution there followed others requesting the mili-
tary authorities to suppress the publication of the “Times,” and
the President of the United States to remove Mr. May from a
federal office held by him.

§ 470. In connection with the above resolutions, it is proper to
note, that by Article 23, of the existing Constitution of Louis-
iana, that of 1852, each house of the legislature was empow-
ered to “ punish by imprisonment any person, not a member, for
disrespectful and disorderly behavior in its presence, or for ob-
structing any of its proceedings,” such imprisonment not to “ ex-
ceed ten days for each offence.”

It is probable, that, in the outset, the Convention deemed
itself to be substantially within this constitutional provision,
though a newspaper libel could hardly be considered disrespect-
ful or disorderly behavior in its presence or as obstructing any of
its proceedings. It accordingly commenced operations with a
vigor calculated to impress the unthinking with high ideas of its
power. But at this stage of the case, and before any attempt
was made to imprison the culprit editor under the order speci-
fied, a second order from General Banks released him from cus-
tody, and he was not further molested. Thus, this dignified
body, with the full purpose of humbling the offending editor,
472 PRIVILEGES OF MEMBERS OF CONVENTIONS.

after putting in operation all the machinery in its possession by
which it could hope to accomplish that end, retired from the un-
equal conflict, ending, in truth, where it ought to have begun,
by calling upon the government to do for it what it could not
accomplish by its own officers. But in these proceedings it
was not only chargeable with imbecility; it was guilty of
usurpation of unusual and dangerous powers. How far the ex-
ceptional condition of the State at the time might have pal-
liated that usurpation, had not circumstances shown it to be
unnecessary and foolish, need not be definitely settled. As the
grasp of the Convention upon its pretended powers was not
secure enough to bring success, but it was found necessary to
call upon the existing government to aid in maintaining its dig-
nity, it is demonstrated beyond question that it could do its
appointed work without those powers, namely, by calling upon
the public authorities for aid whenever the powers inherent in
all public assemblies were found insufficient to protect it from
insult or to expedite its business.1 .

$470 a. The New York Convention of 1867 met under an
Act which prescribed the offenses for which it might punish
strangers. It provided that that body should have power to pun-
ish as a contempt, and by imprisonment or otherwise, a breach of
its privileges, or of the privileges of its members, but that such
power should not be exercised except against persons guilty of
one or more of the following offenses : —

1. The offense of arresting or imprisoning a member or officer

1 For an excellent discussion of the proceedings of this Convention in this
case, see Speech of Mr. Casabat, a member of the body, in Ded. La. Conv.
1864, p. 509.

As to the general question discussed in the text, it is proper to remark that in
all the Conventions thus far held in the United States, some one hundred and
ninety-two in number, I find no instance of the exercise of the power of arrest-
ing or imprisoning persons not members of those bodies, except in those whose
character and proceedings were such as to rank them as Revolutionary Con-
ventions. To this remark the instance in the Louisiana Convention of 1864,
as I regard that body, is no exception. During the Revolution, the Conven-
tions which framed the first Constitutions of their respective States were nearly
all of them of the revolutionary stamp; and in many of those which clearly
were such, the power in question was exercised, and, so far as I am aware, In
no others. For an instance of this, see the proceedings of the New Jersey Con-
vention of 1776, concerning the arrest and imprisonment of the royal governor,
William Franklin, in Jour. N. J. Conv, 1776, pp. 10-13, 22, 23.
PRIVILEGES OF MEMBERS OF CONVENTIONS. 473

of the Convention, by civil process, in violation of his privilege
from arrest as therein before declared.

2. That of disorderly conduct in the immediate view or pres-
ence of the Convention, and directly tending to interrupt its pro-
ceedings.

3. That of publishing any false and malicious report of the
proceedings of the Convention, or of the conduct of a member in
his delegated capacity.

4, That of refusing to attend or be examined as a witness,
either before the Convention or a committee, or before any per-
son authorized by the Convention, or by a committee, to take
testimony in the proceedings of the Convention.

5. That of giving or offering a bribe to a member, or of at-
tempting by menace or by any other corrupt means or device,
directly or indirectly, to control or influence a member in giving
his vote, or to prevent him from giving the same.

To these provisions were appended the following limitations in
regard to the punishment the Convention might inflict, that in
all cases in which that body should punish any of its members or
officers, or any other person, by imprisonment, such imprison-
ment should not extend beyond the session of the Convention.

The Act calling the California Convention of 1878 contained
similar provisions, differing only in the specification of the first
and fourth offences, but making no material modification thereof.

§ 471. It may be useful now to append a few remarks in
relation to the question of privileges, as applicable to Con-
ventions. Are the members of a Convention, or is the body
itself, entitled to claim the immunities usually accorded to the
legislature, and to its individual members, such as exemption
from legal process, from service as jurors or witnesses, or from
legal question tending to impair the freedom of their debates
and proceedings? It is doubtless essential, in order to enable
a legislature, or any other public assembly, to accomplish the
work assigned to it, that its members should not be prevented
or withdrawn from their attendance, by any causes of a less
important character; but that, for a certain time at least, they
should be excused from obeying any other call, not so imme-
diately necessary for the welfare or safety of the State ; they must
also be always protected in the exercise of the rights of speech,

1 For the declaration referred to, see § 472 a, post.
474 PRIVILEGES OF MEMBERS OF CONVENTIONS.

debate and determination in reference to all subjects upon which
they may be rightfully called to deliberate and act; it is abso-
lutely necessary, finally, that the aggregate body should be ex.
empted from such interferences or annoyances as would tend to
impair its collective authority or usefulness.) The inimunities
thus indispensable are, in the case of legislatures, commonly
secured by rules and maxims or constitutional provisions, and
are styled privileges, as being rights or exemptions appertaining
to their office, to which citizens generally are not entitled.

§ 472. Out of the catalogue of privileges above given, it is
not easy to select one with which a Convention or its members
could safely dispense. It ought never to be, as without them it
would frequently be, in the power of the enemies of reform to
prevent or postpone it by arresting, harassing or intimidating
the delegates to the body by whom it is to be accomplished.
But the real difficulty is, not to determine whether or nota Con-
vention ought to enjoy those privileges, but to ascertain how
and by whom they should be protected and enforced.

Upon this point, there is, in my judgment, but one position
that can be maintained with safety, and that is, that Conven-
tions must stand upon the same footing with jurors and wit-
nesses; they must look to the law of the land and to its ap-
pointed administrators, and not to their own powers, for protec-
tion in their office. If a juror or a witness, going or returning,
is harassed by arrest, he does not himself or with his profes-
sional associates cite the offending officer before him for pun-
ishment, but sues out a writ of Habeas Corpus, and on pleading
his privilege procures his discharge. Beside this, for personal
indignity or injury, he may appeal to the laws for pecuniary
compensation. The same course is doubtless open to any
member of a Convention, and it furnishes for all ordinary cases
a practical and sufficient remedy. Behind those bodies stands
continually, armed in fall panoply, the state, with all its ad-
ministrative and remedial agencies, ready to protect and defend
them. If experience, however, should at any time show that
Conventions could not rely for defence upon laws and mag-
istrates alone, the proper remedy would be an application to the
legislature for an increase of powers. But such a necessity is
not likely to arise. Except, perhaps, in revolutionary times,
interference with the privileges of Conventions need not be

1 Cushing’s Law and Pract. of Legisl. Assemb., §§ 529, 530, 531.
PRIVILEGES OF MEMBERS OF CONVENTIONS. 475

apprehended. The business that engages them is not one that
appeals very strongly to the passions of men. If a member is
occasionally arrested or libelled, it is absurd to pretend that our
legal tribunals are not competent to give adequate and sea-
sonable redress. And if the times be revolutionary, it is better
that such an assembly as a Convention should be armed only
with the weapons of its ordinary warfare —which are the
weapons of peace —since experience has abundantly shown
that, having others, it is quite as likely to wield them in the
interests of revolution, as any other body in the State.

§ 472 a. The members of the New York Convention of 1867
were, by the Act under which they assembled, declared entitled
to the following privileges: that every delegate should be priv-
ileged from arrest on civil process ‘during his attendance at the
sessions of the Convention, except on process issued in any suit
brought against him for any forfeiture, misdemeanor, or breach of
trust in any office or place of public trust held by him; that
each delegate should enjoy the like privilege for the space of
fourteen days previous to any such session, and also while going
to or returning from such session, provided that the time of such
going or returning did not exceed fourteen days; that each dele-
gate should enjoy the like privilege after any adjournment of
the Convention, until its next meeting, when such adjournment
should not exceed fourteen days; that each delegate should en-
joy the like privilege while absent with leave of the Convention ;
that no officer of the Convention, whilst in actual attendance
upon the same, should be liable to arrest on civil process ; and
that for any speech or debate in the Convention, the members
should not be questioned in any other place.

The California Convention of 1878 assembled under an Act
copied from that of New York, described above, so far as relates
to the offences and the punishments thereof specified in the Act,
but differing from it in its enumeration of the privileges of the
members of the Convention. It provided that every delegate to
the Convention should have the like privileges from arrest and
from civil process as members of the legislature then had by law;
and that for any speech or debate in the Convention the dele-
gates should not be questioned in any other place.

§ 473. The only remaining point proposed for discussion in
this chapter relates to the extent of the power of Conventions,
of their own motion, to prolong or to perpetuate their existence.
476 POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE.

Upon the general question, I shall only observe, that when
the Act of Assembly under which a Convention meets, ex-
pressly or by reasonable implication prescribes the work expected
of it, as, “to revise and propose amendments to the Constitu-
tion,” or simply “to meet in Convention,” where the purpose
of the meeting has been clearly made known by preliminary
discussion, when that work has been accomplished, the body
eo instanti becomes functus officio ; and has no power to prolong
its existence a moment, for any purpose whatever. The only
difficulty is to determine when its work has been accomplished.
Where these bodies have confined themselves to the limited
sphere of duty in foregoing sections asserted to be alone proper
for them, that of recommending to their constituents changes
in the fundamental law, the question I am considering could
not arise. It is only when, through the ignorance or negligence
of the legislatures calling them, no provision has been made for
taking the sense of the people upon the fruit of their labors, or
for putting it in operation, and it is therefore deeined necessary
for the Conventions themselves to perform that duty, that any
reason could be discovered for prolonging an existence which
properly ends when its constitutional function has been dis-
charged.! In a few cases, accordingly, where such has been the
state of facts, Conventions, after completing their scheme of
fundamental modifications, have adjourned to meet at a future
day, with a view either to amend it, should the popular sense
have pronounced against it in any part, or to put it in opera-
tion, if it should have met with general approval. But this has
rarely been done without a more or less direct authorization from
the legislature which called them. Thus, the New Hampshire
Convention of 1781 and the Pennsylvania Convention of 1789,
having framed Constitutions, adjourned with a view to collect the

1 By an ordinance of the Virginia Convention of 1775, for regulating the
election of delegates to the Convention which framed the Constitution of 1776,
special authority was given to the president, or, in case of his death or absence,
to Robert Carter Nicholas, Esq., or to the Committee of Safety, to call the
members of the Convention together again when it should appear to them
‘that a meeting of the Convention is necessary sooner than the time to which
they stand adjourned.’”’ Hening’s Va. St. at Large, Vol. IX. p. 53. It thus
seems to have been doubtful in 1775 whether a power, which it might be

necessary fo exercise in times of public danger, could be assumed by the Cou-
vention without special authority in the Act calling it.
POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE. 477

public sense in regard to their work ; and at a subsequent session
either prepared and submitted a new Constitution to the people,
or declared the one already submitted to be the Constitution of
the State, according to the vote of the people thereon. In New
Hampshire, a previous Convention, that of 1778, had submitted
a new Constitution to the people, and, as it had no authority to
adjourn to a day subsequent to the vote upon the Constitution,
it had adjourned sine die before such vote was taken. That
Constitution was rejected by the people. In 1781 an Act was
passed calling another Convention, and in it was inserted a pro-
vision that, ‘if the first proposed system or form of government
should be rejected by the people, the same Convention shall be
empowered to proceed and make such amendments and altera-
tions from time to time as may be necessary ; provided always
that after such alterations the same be sent out for the approba-
tion of the people.” In pursuance of this authority the Conven-
tion framed and submitted to the people a Constitution which
was rejected ; it thereupon twice reconvened, and submitted to the
people, successively two new Constitutions, one of which was re-
jected, and the other, the third framed by it, was adopted, and
accordingly the last was by the Convention declared to be the
civil Constitution of New Hampshire, to take effect on the first
Wednesday of June, 1784.

The Act calling the Pennsylvania Convention of 1789 was to
the effect that that body should review, and, if it should see occa-
sion, alter and amend, the Constitution of the State; and that
“it would be expedient, just, and reasonable that the Conven-
tion should publish their amendments and alterations for the con-
sideration of the people, and adjourn at least four months pre-
vious to confirmation.”

That calling the Kentucky Convention of 1849 required it
to meet “for the purpose of readopting, amending, or changing
the Constitution,” and expressly gave it “‘ power to adjourn and
reassemble at such times as it may deem proper.” Accordingly
the Convention adjourned to a future day, in order that in the
interim the people might vote upon the question of its adoption
or rejection, and, on its being adopted, reassembled and put it in
operation.

From these provisions, it was evidently the intention of the
legislatures of Pennsylvania and Kentucky that the Conventions
478 POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE.

should adopt definitively and put in operation the Constitutions
or parts of Constitutions framed by them. Until that work was
accomplished, then, they had a right to sit, or, having adjourned
for a reasonable time and purpose, again to assemble. Their
work concluded, however, without special authority, it would,
doubtless, have been wholly beyond their power to prolong their
existence a moment, still more to reconvene, after having once
dispersed.

§ 473 a. Several other cases have also occurred in which the
same question, or some phase of it, has arisen, to which attention
should be briefly directed. These are of two kinds: cases in
which Conventions of States in a peaceful and orderly condition
have prolonged their existence without authority from the legis.
latures which called them; and cases in which Conventions
called in States in a revolutionary condition have exercised the
same power. Of the former, there have been three: the Con-
ventions of Maryland, of 1864; New York, of 1867; and Penn-
sylvania, of 1878. The facts in the two last of these cases have
already been stated in the preceding sections treating of the
power of legislatures to bind Conventions, and that of Conven-
tions, by ordinance, to appropriate money.1 Of the New York
case it need only be said, that the Convention continued its ses-
sions beyond the day on which the Act calling it had required its
work to be submitted to the people, for the reason that its work
was not yet completed. This the Convention was advised by
the Attorney General that it derived from the Act no authority
to do, but that there was no law forbidding it to continue its ses-
sions; and that, although it would have no power itself to submit
its work, when finished, to the people, a subsequent legislature
might do so. With this view of the law and of its powers, the
Convention deemed it expedient to go on and complete its work.
In Pennylvania, the Convention, although it had completed a
new Constitution and submitted it to the people, and had thus
exhausted its powers under the Convention Act, nevertheless
assumed the power to prolong its existence beyond the day fixed
for the vote of the people, with a view, doubtless, to ulterior
measures in case that vote should be adverse. The question of
the legality of some of its proceedings had been submitted to the
Supreme Court of the State, and the Convention, apparently

1 See ante, §§ 435-441 b.
POWER OF CONVENTIUNS TO PROLONG THEIR EXISTENCE. 479

anticipating that its judgment might be adverse, made threats to
abolish the court, should such be the result; and, in that condi-
tion of things, it adjourned to the 27th of December, a date some
ten days after the vote of the people would have been taken.
There being in the Act calling it no power thus to adjourn, or to
prolong its sessions beyond the time of completing its work, its
assuming to do so was clearly an usurpation of powers belonging
only to the legislature. Happily, perhaps, for the peace of the
State, the Constitution was ratified by the people, and some of
the principal points of difference withdrawn rather than settled
by the political power; the Convention, therefore, upon reas-
sembling, contented itself with shooting a few “ Parthian arrows,”
in the shape of resolutions setting forth its view of Conventional
powers, and with ordering the commission it had appointed to
hold the election in Philadelphia, which the Supreme Court had
declared illegal, to be paid the expenses incurred by it; and
thereupon it adjourned sine die.

The circumstances under which the Maryland Convention of
1864 voted to prolong its existence, by adjourning subject to the
call of its president, are thus stated in the resolution of adjourn-
ment, passed August 21, 1864: —

“ Resolved, That, in view of the uncertain condition of affairs
in this State, owing to the possibility of an invasion by the pub-
lic enemy, which may interfere with the expression of the popu-
lar will on the day to be fixed for voting on this Constitution,
that this Convention, when it adjourns, for the purpose of taking
the sense of the people on this Constitution, stand adjourned.
subject to the call of the president, and in case of the death or
disqualification of the president (H. H. Goldsborough), Freder-
ick Schley, of Frederick County, Joseph B. Pugh, of Cecil
County, Henry Stockbridge, of Baltimore city, William T. Par-
nell, of Worcester County, be and they are hereby authorized,
in the order in which they are named, to act as president and
eall the Convention together; but should the day appointed for
the adoption or rejection of this Constitution pass without inter-
ruption, then the president shall declare, through the public
press, the final adjournment without day of this Convention,
and no per diem shall be allowed for the recess.”! The vote on
the new Constitution was fixed by the Convention for the 12th

1 Deb Md. Conv. 1864, vol. iii. p. 1876.
480 POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE.

and 13th days of October, 1864. On the 1st of November of
the same year, the president, H. H. Goldsborough, through the
public press, announced that the balloting upon the question
of adopting the Constitution had been peaceful and uninter-
rupted, and that, in pursuance of the foregoing resolution, he
proclaimed the Convention adjourned sine die The only pro-
vision of the Convention Act bearing on the question of continu.
ing the Convention was, that that body should “continue in
session from day to day until the business on which said Conven-
tion shall have been assembled shall have been fully completed
and finished.” The business on which the Convention had been
assembled was “to frame a new Constitution and form of gov-
ernment, to be voted on by the people on a day or days to he
named by the Convention itself.’ That work had been fully
completed and finished on the day of its conditional adjourn-
ment, the 6th of September preceding. The Convention, there-
fore, by the terms of the Act, was on that day functus officio, and
its assumption of power to continue its existence beyond that
time was wholly unwarranted. The reasons stated for the course
pursued, that the condition of affairs in the State was uncertain,
owing to the possibility of an invasion by the public enemy, and
that such invasion, if it occurred, might interfere with the ex-
pression of the popular will on the day to be fixed for voting on
the Constitution, were precisely such as would justify the assem-
bling of the legislature by the Governor of the State, both of
whom, together with the State officers generally, were at that
time loyal to the Union, and created no necessity for the Con-
vention’s transcending its proper functions, or usurping a juris-
diction not granted, —in other words, for seizing revolutionary
powers.

§ 473 6. The second class of cases referred to in which Con-
ventions have assumed to prolong their existence after the special
work they were called to do had been completed, have been those
in which the Conventions met in States at the time in a revolu-
tionary condition. Of these, all but one were Conventions called
in the late rebel States, to effect either a secession of the same
from the Union, or their reconstruction after the close of the se-
cession war. The exception was the Convention of Missouri of
1861-63; an exception more nominal, however, than real, since,

1 Deb. Md. Conv. 1864, vol. iii. p. 1902.
POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE. 481

as we have seen,! that State, during the entire period covered by
that Convention, was in a condition that bordered closely on revo-
lution. In fact, the Convention is believed to have been called as
a secession Convention. At its first session it was presided over
by one afterwards a distinguished rebel general, and there was
always in it a powerful minority not loyal in spirit or purpose to
the Union. Constantly anticipating and called upon to counter-
act, therefore, the schemes of traitors within and without its own
body, the Convention seized the reins of power, and entered upon
a course of action proper only for a strictly revolutionary Con-
vention, assembled during a temporary eclipse of’ the established
powers of government. It vacated the offices of Governor,
Lieutenant Governor, and Secretary of State, the incumbents of
which, between the first and second sessions of the Convention,
had gone over to the rebels, and were actually leading a hostile
force into Missouri; it appointed a provisional governor and other
civil officers, raised military forces, and provided the means for
equipping and paying them. During the three years occupied
by its sessions it was four times reconvened, as the public exi-
gencies seemed to demand; once, for its second session, by the
majority of a committee appointed to summon the members, if
thought necessary, before the day to which it had adjourned
should arrive, and three times by the provisional governor of the
State, the Hon. H. R. Gamble, making five sessions in all. It
need not be said that the acts and proceedings of a Convention
thus called and conducted, however loyal or even necessary its
action may have been, can be no precedent for Conventions not
thus provisionally charged with all the powers of government, at
a time of public danger. The Conventions of rebel States form-
ing the residue of this class were those of Georgia, 1861, 1865,
and 1867; South Carolina, 1860; Louisiana, 1864 and 1867:
North Carolina, 1865; Virginia, 1867; Mississippi, 1865; and
Arkansas, 1861 2 and 1868. Of those held in 1860 and 1861, it

1 See §§ 327-330, ante.

2 This Convention adjourned March 10 to the 19th of August, subject to the
call of its president, ‘in an exigency in his opinion requiring it.’ It was,
accordingly reconvened on the 6th of May, by its president, David Walker, by
a proclamation issued April 20, for the reason that ‘preparations are being
made for a war between the citizens of the free and the slave States.’’
McPherson, His. Rebellion, 399.

After its reconstruction, the Supreme Court of that State held, in Penn v.
482 POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE,

need only be said that they were all avowedly revolutionary bodies,
called to effect a dismemberment of the American Union. In pro-
longing their existence after their first session by adjourning sub.
ject to the call, in the Georgia case, of the president of the Con-
vention, and, in the South Carolina case, of the Governor of the
State, they exercised revolutionary puwers, and their action can
be a precedent only for a revolutionary Convention. Omitting
for the present such of the Union Conventions as assembled under
the proclamations of Presidents Lincoln and Johnson, those of
Louisiana, 1864, Georgia, Mississippi, and North Carolina, 1865,
we pass to consider those called in pursuance of the Reconstruc-
tion Acts of March, 1867, which stand in some respects upon a
different footing. The following Conventions, after the comple-
tion of the work of framing a Constitution, adjourned, that of
Georgia, 1867, and Arkansas, 1868, subject to the call of their
respective presidents ;} that of Louisiana, 1867, subject to that of
a quorum of its members; and those of Virginia, 1867, and Mis-
sippi, 1868, subject to the call of a committee of five of their del-
egates. There is nothing in those Acts authorizing such adjourn-
ments, and they must in each case be regarded as a usurpation,
unless, from that provision of the Act which requires the president
of each Convention, when the result of the vote of the people on a
Constitution has been to adopt the same, ‘to transmit a copy of
the same, duly certified, to the President of the United States,”
authority to continue in session may be inferred. Doubtless,
speaking strictly, were the Conventions to have adjourned sine
die immediately after submitting their Constitutions to the peo-
ple, not only those bodies, but their presidents and other offi-
cers, would have ceased in the eye of the law to exist. Now, if
the naming of the president of the Convention to transmit the
Constitution was intended merely to designate a private person
who should be charged with that duty, and not an officer chosen
in pursuance of a Federal law, it is difficult to justify the exercise
of such a power by Congress. It would follow that, to enable
Tollison, 26 Ark. R., 645, that that body “might have had power to adjourn
from day to day, but the president had no power to convene it at will; and that,
as a Convention, it was functus officio when it adjourned on the 10th of March,
and all its acts subsequent to that time were absolutely null and void, and with-
out authority or sanction on the part of the people.”

1 To the Arkansas resolution was afterwards added a proviso that, if not
convoked within one year, the Convention should stand adjourned sine die.
POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE. 483

the person who had been chosen president of a Convention to com-
ply with the Act as such, the Convention would need to continue
in session until after the vote upon the Constitution had been
taken and announced. If it be objected that many of the Re-
construction Conventions adjourned sine die at once after com-
pleting their work of framing new Constitutions, and hence could
not have complied with the law as above construed, the answer
is, that if the person who had been president of a Convention,
but was now a private citizen, had transmitted the Constitution
to the President of the United States, after its adoption, and it
had been accepted without objection by the latter, and approved
by Congress, the irregularity would have been waived. On the
other hand, if the clause of the Act quoted, properly construed,
gave those Conventions no power to continue their existence for
the purpose indicated, their acts were without warrant of law.

§ 474. Recurring now to the cases of the Convention of Lou-
isiana, 1864, called under the proclamation of President Lincoln,
and of North Carolina, Georgia, and Mississippi, called in 1865
under that of President Johnson, the three last will be first con-
sidered. The North Carolina Convention, having as it supposed
restored the State to its normal relations to the Union by certain
amendments to the Constitution framed by it, and submitted to
and adopted by the people, adjourned on the 9th of October,
1865, to the 6th of May, 1866. On that day it reassembled and
proceeded to make further changes in the Constitution, deemed
to be necessary to secure admission into Congress for her Sena-
tors and Representatives, and adjourned sine die on the 25th of
June, 1866. The amendments framed by it, however, were re-
jected by the people. The Georgia Convention of 1865, having
in like manner finished its labors by drafting and submitting to
the people a Constitution, adjourned subject to the call of its
president, ‘‘should a contingency arise in regard to the Federal
relations of the State, or other cause, which in his judgment would
make it necessary for the Convention to be again convened,
provided that the call should be made within six months; if not
made within that time, then the Convention to stand adjourned
sine die.”} So, the Mississippi Convention of 1865, having fin-
ished a revision of the Constitution of that State, adjourned sub-
ject to the call of its president, “if in his judgment necessity

1 See Journal Geo. Conv. 1865, p 194.
484 POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE.

should arise for reconvening it.” In these three cases the action
of the Conventions in providing for a continuance of their ses-
sions was, pethaps, authorized by the terms of President Johnson’s
proclamation, which described the purpose and powers of the
Conventions, that might be called in the several rebel States in
pursuance of it, to be to alter and amend the Constitutions thereof,
and with authority to exercise, within the limits of said States,
all the powers necessary and proper to enable the loyal people
thereof to restore said States to their constitutional relations to
the Federal Government. As, however, the reconstruction at-
tempted in these and other States under this proclamation was,
by the Acts of Congress of March, 1867, declared to be unau-
thorized, and the governments established in pursuance of it to be
provisional only and not legal governments, the action of those
Conventions, whether authorized or not, must fall with them, and
thus cannot be properly considered as valid precedents.

The case of the Louisiana Convention of 1864, which was
called under the proclamation of President Lincoln, while in the
respect just stated it was equally invalid with those of the three
States named, is in some other respects subject to a more strin-
gent rule, and will require a more extended consideration. Noth-
ing contained in the proclamation of President Lincoln gave the
Convention any authority to do more than to take steps for the
reéstablishment of a loyal government in Louisiana and the other
States named. Under date of December 8, 1863, proclamation
was made that whenever certain specified classes of persons within
the rebel States, including Louisiana, having taken a prescribed
oath and kept it, “shall reéstablish a State government which
shall be republican,” etc. . . . “such State shall be recognized
as the true government of the State.” It makes no mention of
a Convention as one of the means that might be used to compass
the end desired. The Convention was called by General Banks,
in command of the Department of the Gulf, by a general order,
of which the only clause determining the powers and functions of
the Convention was the following : —

“J. An election will be held on Monday, the 28th of March,
at 9 o’clock, A. M., in each of the election precincts established
by law in this State, for the choice of delegates to a Convention
to be held for the revision and amendment of the Constitution of
Louisiana.”
POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE. 485

In pursuance of this order, delegates were elected, assembled
on the day named, revised and amended the Constitution of
Louisiana, submitted the same for adoption or rejection to a
vote of the people, and on the 25th of July following adjourned.
It did not, however, adjourn sine die. On the last day of its
session, by a vote of 62 to 14, it adopted the following resolu-
tion: —

“ Resolved, That when this Convention adjourns, it shall be
at the call of the president, whose duty it shall be to reconvoke
the Convention for any cause, or, in case the Constitution should
not be ratified, for the purpose of taking such measures as may
be necessary for the formation of a civil government for the
State of Louisiana. He shall also, in that case, call upon the
proper officers of the State to cause elections to be held to fill
any vacancies that may exist in the Convention, in parishes
where the same may be practicable.” !

When the Convention adjourned, accordingly, it “ adjourned
subject to the call of the president, in pursuance of the resolu-
tions this day adopted.” ?

After its adjournment, the Constitution framed by it was
submitted, as required by Article 152, to a vote of “the good
people’ of the State, and adopted.

§ 475. By the Constitution thus framed, the State was gov-
erned, so far as she had a civil government at all, from the time
of its adoption until it was declared to be provisional merely by
the reconstruction Acts of March, 1867, and superseded by the
Constitution of 1868, framed in pursuance of those Acts.

Early in the month of July, 1866, however, an attempt was
made to reassemble the Convention of 1864. The objects to
be effected by it, as declared by the proclamation of the person
assuming to call it, referred to below, were to revise the Consti-
tution, and to take measures for the ratification of an amend-
ment to the Constitution of the United States, proposed to the
State legislatures by the 39th Congress?

To this end, the president of the Convention was requested
by a caucus of its members, to call that body together in pursu-

1 Journal La. Conv. 1864, p. 170.

2 Id. p. 171.

8 Had the latter been the only object of the reconvocation of the Conven-

tion, it would have been alone sufficient to stamp it as illegal. See ante,
§ 447,
486 POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE.

ance of the resolution above recited, but refused so to do. The
caucus thereupon declared the office of president vacant, and
elected Judge R. K. Howell president pro tem., by whom a call
was issued requiring the delegates to reconvene in Convention
on the 30th of July following. There being, from various causes,
also a large number of vacancies in the Convention, the Gov-
ernor of the State, J. Madison Wells, in alleged pursuance of
the same resolution, issued his proclamation, requiring the
proper officers of the State to issue writs of election for dele-
gates in unrepresented parishes. ‘The Convention accordingly
assembled at New Orleans on the day appointed, but was dis-
persed by a mob, led by the police of the city.

§ 476. Upon these facts the question arises, Was the body
which met at New Orleans on the 30th of July, 1866, legally a
continuation of the Convention of 1864?

The answer must be that it was not.

Looking at the resolution of the Convention, it is clear that
no authority to call the body again together was derived from
that part of it which empowered the president “ to reconvoke the
Convention .... in case the Constitution should not be rati-
fied,” for it was ratified. If the body was legally reconvoked,
it was under that clause of the resolution which declared it to
be the duty of the president to reconvoke “the Convention for
any cause.”

Now, in reference to this clause, —

1. Supposing that it authorized the president of the Conven-
tion, at his discretion, to call that body together at any future
time, the trust was personal and official, and could not be dis-
charged by another, even if the president was unable or un-
willing himself to discharge it. In fact, however, the president
exercised the trust —the discretion committed to him — for, on
application, he refused to reconvoke the body.

2. But, admitting that the trust might, under some circum-
stances, be shifted to, or assumed by, another, a rightful succes-
sor to it must have been the legal appointee of the Convention;
and to fulfil that condition, the Convention must first have been
legally reconvoked. But, clearly, in its dispersed and dormant
condition, neither the body itself nor any caucus of its mem-
bers could do an act which was necessary as a precedent condi-
tion to its reconvocation. In other words, the appointment of
POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE. 487

a president pro tem. by a caucus of the delegates, was but the
act of individuals, and of no validity whatever under the reso-
lution. Who composed the caucus? Conceding that all the
delegates were present, — which was not the fact, — by what
authority did they sit in caucus? When a Convention acts, it
- does so, not by a caucus, but by its whole body. That it could
not so act is a proof that, except as individuals, its members
could not act at all.

.§ 477. 3. But a stronger argument against the validity of
the act of reconvocation is found in the terms of the clause of
the resolution in question. Its words are, _—“ Whose duty it
shall be to reconvoke the Convention for any cause.”

Within what limits was this power to be exercised — limits,
that is, as to time and occasion? Was the president of the
Convention to hold this most important prerogative during life ?
Might he call the body together, as he might his hounds, for
ordinary purposes of party or of administration, or must the
extraordinary assembly be reserved for extraordinary occasions ?
When and for what the call should be made, was left entirely
to the discretion of the president, a single person, no longer
even an officer, unless indeed the Convention be regarded as
sitting en permanence. Such a discretion defines precisely that
which, under our Constitutions, is lodged with our General
Assemblies — a legislative discretion. That a Convention in
the last stages of dissolution, having completed its work, should
attempt to give such a discretion, was not only unconstitutional,
it was impudent. Imagine a conflict between the General As-
sembly and the president of the Convention, on the question of
calling that body again together. The General Assembly passes
an Act requiring the Convention to reassemble. The president
issues his proclamation forbidding it to convene. The delegates
obey the latter, for, by the terms of the resolution, the discretion
to call them was lodged with the president. Or, the General
Assembly, twenty-five or fifty years after the adjournment, re-
solves to call a new Convention. The president deems the old
one an abler or a more available body, and issues his order
reconvoking it. Which is the legal Convention? Is the air
peopled with defunct Conventions, waiting the magic word from
their defunct presidents, to clothe themselves again in flesh to
rule us? Yet such may certainly be the case, unless when its
488 POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE. |

function is discharged the Convention dies — if, at its decease, it
can lodge with its presiding officer, for life, a discretion to revive
the body at his own pleasure and for his own purposes.

§ 478. On a review of the cases cited in the last seven sec-
tions, it appears that of the eighteen Conventions which have
prolonged their existence by adjourning after the completion of
their work, either to a day certain, or generally, subject to the
call of their president or of a committee, twelve were sitting at
a time when their States were in a revolutionary condition, so
that their action, though perhaps excusable on moral giounds,
is without weight as a precedent for Constitutional Conventions
in general. It also appears that, of these twelve Conventions,
two called under the proclamation of President Johnson, and
five which met in pursuance of the reconstruction Acts of 1867,
were perhaps, by a fair construction of those documents, author-
ized to do what they did. Of the six Conventions, whose ses-
sions, with the possible exception of that of Maryland, 1864,
were held in peaceful times, the three earliest — New Hampshire,
1781, Pennsylvania, 1789, and Kentucky, 1849 — had from the
Convention Acts under which they assembled authority, either ex-
press or plainly implied, to adjourn on the completion of the
Constitutions they should frame, and to reconvene after the vote
of the people thereon, for the purpose of further amending or of
putting them in force. There are left three Conventions not
subject to any of the conditions stated. Of these, that of New
York, 1867, prolonged its session, in no spirit of revolt against
the Act under which it assembled, as expounded to it by the
Attorney General, but, perhaps admitting its want of legal author-
ity, with a hope of receiving the sanction of the legislature at
a subsequent day, and of thereby saving the great expense of
another Convention — a hope in which it was not disappointed.
The Maryland Convention of 1864 and the Pennsylvania Con-
vention of 1873 occupy the bad eminence of being the only
bodies of the kind which, called to do a defined work under a
law constitutionally passed, have completed that work, and then,
laying claim to unlimited powers, instead of quietly dissolving,
have assumed the right to continue an existence which, from the
moment it adjourned, became a menace and a danger. To one
who cannot read between the lines it may seem, that the motive
in both these cases was a desire to promote the public good; but
POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE. 489

in fact it was the public good in a party sense, to be compassed
by partisan methods; and while, in Maryland, it would be natural
to sympathize with the extreme Union men who attempted, by
the action we are discussing, to bring and to keep that State
in the hands of the thoroughly loyal part of its people, it was
sought to be effected by a proceeding fraught with a danger to
the country at large, by establishing « wrong theory of conven-
tional power, greater than would be a temporary subjection of
a loyal community to rebel control. In Pennsylvania, there was
not even that poor excuse for the action of the Convention,
though doubtless there had been great abuses in the elections in
the city of Philadelphia, to remedy which was the motive for its
illegal mode of submission in that city. But for its disobedience
to the mandate of the legislature in regard to the altering of the
Bill of Rights, if it were even admitted that the limitation was
injudicious, there was neither in law nor in morals any justifica-
tion whatever; for the judiciousness or injudiciousness of the
law was not a question for the Convention, any more than it was
for the Masonic order in Pennsylvania. The law was the source
of all the power the body had, and if its terms were unreasonable,
appeal should have been taken, not to the sciolists in constitu-
tional law who proclaimed the power of Conventions to be illim-
itable, but to the people, to rebuke the legislature by returning
to it men who would give to a new Convention larger powers.
When it is considered, moreover, that more than one member.
of the Convention who advocated the appointment of a commit-
tee to revise the Bill of Rights, notwithstanding the interdict of
the legislature, declared in substance that they did so for the
purpose of showing that body that the Convention would not be
trammelled by it,! it is impossible to respect either the statesman-
ship or the patriotism of the majority controlling the Convention
which failed to place upon such a declaration the stamp of its
disapproval.

1 See Deb. Penn. Conv. 1873, Vol. I. pp. 53-62.
CHAPTER VII.
OF THE SUBMISSION OF CONSTITUTIONS TO THE PEOPLE.

§ 479. An important part of the duty of a Convention is to
submit to the sovereign, for its approval or disapproval, the
propositions of constitutional law which it has matured.

The duty of submission grows out of the nature of our
institutions.

In the American political system, the edifice of government
rests on the people. Two ideas pervade that system: first, that
of the absolute right of the people, under God, and, in the
States, subject to the Federal Constitution, themselves to de-
termine and to carry into operation the policy, laws, and gov-
ernment, in all its departments ; and, secondly, that of the sol-
emn obligation resting on those through whom the people act,
not only to obey their will, but to keep themselves constantly in
a condition of perfect responsibility to them, save in the single
case where a discretion has been in terms given them. In
other words, if the safety of the State, as constituted in Amer-
ica, requires, as it certainly does, that the people should possess
a curb upon their agents, it requires no less that those agents
should recognize that curb as existing, and facilitate its appli-
cation. We have seen that our Conventions are in substance
but mere committees, destitute of the power of self-direction,
and by their organization as little fitted as in theory designed for
independent or definitive action. If, therefore, in the face of
these principles, the people were so far to forget what is essen-
tial to the safety of their institutions as to be willing to throw
the State, without check, into irresponsible hands, the Conven-
tion is the last body to which should be committed so grave a
trust. This follows from the fact, if from no other, that it. con-
sists of but a single chamber. But the Convention, as we have
seen, is of revolutionary parentage ; it was originally the child
of illegality, and has come into the constitutional household by
adoption, and hence has been ever the subject, in all questions
SUBMISSION OF CONSTITUTIONS. 491

of power and competence, of fatal misconceptions. It is, of all
our institutions, the one through which sedition and revolution
would most naturally seek to make their approaches. Instead
of deserving confidence, such an institution merits distrust and
repression. In a word, to apply the principles above announced,
it is the interest of the Commonwealth that no discretion liable
to be abused should be left to a Convention, without careful pro-
vision for repressing and correcting its abuses; or, viewed on
the side of the Convention, it is for such a body a sacred duty,
in no case unbidden to assume to exercise a discretion, upon
an abuse of which there is not reserved to the people an instant
and effectual check. Such a check (and it is practically the
only one possible) is involved in the submission of the fruit of
its labors to the judgment of those for whom they act — the
people.

§ 480. The general propriety and necessity of submission being
conceded, there are three cases in which doubts may arise as to
the duty of Conventions in that regard. It may be useful to
dwell a few moments upon each of them.

The first case is, where both the Constitution and the Act of
Assembly, under which the Convention met, are silent in respect
of submission:

The second, where, by one or both of those instruments, sub-
mission is expressly required; specific directions, perhaps, being
also, at the same time, given as to the mode:

The third, where, in the Act calling the Convention, submis-
sion is expressly dispensed with.

§ 481. I. Where neither the Convention Act nor the Consti-
tution requires the Convention to submit its work to the people,
the duty of that body to do so is, nevertheless, upon sound prin-
ciples, believed ‘to be perfectly clear. Obviously, a Conven-
tion is bound to regard itself as limited to the exercise of such
powers as are expressly given to it, or as are necessary to
the exercise of such as are expressly given. But, in the case
supposed, no express power relating to submission is contained
in its commission. Both the duty and power of the body are
then to be determined by the general scope of that commission,
so interpreted as to harmonize with the spirit of the institutions
of the country, and to assure to them, in the greatest possible
degree, exemption from the evils and dangers to which they are
492 SUBMISSION OF CONSTITUTIONS.

liable. Under such a rule, the question whether submission is
or is not a duty, is one mainly of presumptions. Is it probably
the safer constitutional precedent to establish, that a body, con-
sisting of a single chamber, and charged with legislative duties
of supreme importance, may shape their work as their own in-
terests or prejudices may dictate, and then put it into practical
operation, wholly without responsibility to the people; or, that
the measures they may mature shall be regarded as advisory
merely, as having no force or validity beyond that of simple
recommendations, until ratified by those for whom they act?
This is the whole subject in a nutshell, and it is impossible for
a moment to doubt which is the safer, and, therefore, the only
proper course. Conventions are bound to give to the people an
opportunity to negative inexpedient or dangerous constitutional
provisions. They may know their members to be honest, and
may believe them to be wise, and their enactments salutary or
even necessary ; but they will not fail to recognize the two car-
dinal truths, — first, that however virtuous or wise men may be,
they are liable to fall into errors, which may entail upon the
State no less disaster than would treason itself; and, secondly,
that the action they may take in any particular, whether right or
wrong, is likely to become a precedent for succeeding Conven-
tions.

§ 482. II. The second case, which has already formed the
subject of consideration in a previous chapter, in another rela-
tion, presents less difficulty; that is, where submission of the
Constitution to the people is expressly required by law. If the
Constitution contained provisions to that effect, probably no one
would be hardy enough to maintain that there could be any
alternative to obedience but revolution. And if it prescribed
special modes or forms, it is presumed no power would be
thought competent to dispense with a punctilious conformity
to its terms.! It is only in relation to Acts of the legislature
that question could arise. Would a Convention be bound by
the Act under which it assembled, without regard to its own
views of propriety or necessity, to submit the product of its
deliberations to the people, if the Act required it? As this

1 In the Ohio Constitution of 1851, and in the West Virginia Constitution of
1863, provisions are inserted declaring amendments to those instruments to be
of no force unless submitted to the people.
SUBMISSION OF CONSTITUTIONS, 493

question has already been the subject of consideration, to some
extent, in a preceding chapter,! it is necessary here only to indi-
cate briefly the arguments which were there adduced.

§ 483. The Act of Assembly under which a Convention meets,
is its charter. Whatever, not inconsistent with the Constitution
or the principles of the Convention system, the former prescribes,
the latter must do. It is the law, passed by the competent
law-making power, within the limits that bound its jurisdiction.
What is a Convention, that it should assume to be exempt
from obedience to that department of the government which is
charged with higher sovereign attributes — is more nearly sov-
ereign —than any other in it? Does it claim to be itself above
the legislature? Let it show its warrant for a claim so exorbi-
tant, for upon it must rest the burden of proving what contra-
dicts all political analogies, and the first principles of constitu-
tional government. It cannot find that warrant in the mandate
of the power by whose fiat it came into being, for, by hypothesis,
that is expressly to the contrary. It cannot find it in claims set
up by Conventions, and allowed by the people, in the best days
of the Republic, for, with scarcely an exception, during that
happy period, when party conflict had not succeeded in pervert-
ing our statesmen into mere politicians, it was universally con-
ceded, that the Convention was the child of the law, and, as
such, bound to obey literally its requirements. Nor can a war-
rant for the claim be found in the principles which preside over
the genesis and healthy growth of free communities, for those
principles, as we have seen above, require Conventions to rank
themselves as the servants, not the masters of the people; and
when the will of the people is known, to conform themselves
scrupulously to it; but when it is unknown, to presume that to
be required of them which most conduces to the safety of the
Commonwealth.

§ 484. III. The third case, — that in which submission is ex-
pressly dispensed with, and the Convention authorized or required
to put the Constitution into operation without referring it to the
people, — would seem to present less occasion for doubt. The
case has not very frequently arisen, but, so far as I am aware,
Conventions have never questioned, either the competence of
the legislature so to provide, or their own right and duty to obey

1 See ante, §§ 410-417.
494 SUBMISSION OF CONSTITUTIONS.

It is only when our General Assemblies have imposed restric-
tions upon them, that Conventions have been disinclined to
recognize their right to command. Precedents of the exercise
of such a power have, as we shall soon see, arisen, sometimes
with and sometimes without special legislative authorization.
Perhaps, therefore, the question whether such a body can right-
fully obey a command of the legislature requiring it to act defin-
itively, ought not to be regarded as an open one. And it may
be, that no very serious exception could be taken on principle
to an Act containing such a provision, provided the precaution
had been employed to take upon it in advance the sense of
the people. This might be accomplished in two ways: first,
by proposing the Convention Act in one legislature, and laying
it over to be finally acted on by a succeeding one, in the mean
time publishing it and calling to it the public attention ; or, sec-
ondly, by actually submitting to a vote of the people the ques-
tion of calling a Convention. Of these two modes, either of
which would fulfil the conditions requisite for the public safety,
the second is unquestionably the preferable one, and it has the
high sanction of the New York Council of Revision, in 1820,
of which Governor Clinton, Chancellor Kent, and the judges of
the Supreme Court, were members. The majority of this Coun-
cil, deeming it “most accordant with the performance of the
great trust committed to the representative powers, under the
Constitution, that the question of a general revision of it should
be submitted to the people, in the first instance, to determine
whether a Convention ought to be convened,” vetoed a bill pro-
viding for a call of a Convention, which had been passed by the
legislature, on the single ground that it did not propose to sub-
mit the question to the people.’ The same principles that govern
the call of a Convention, ought, evidently, to apply to a grant
to such a body of unusual powers in the Act by which it is
called. It does not admit of a doubt that the safest and wisest
course, in one case no less than in the other, would be to submit
the questions referred to to the determination of the people.

§ 485. But, suppose there has been no submission to the peo-
ple, no means used to collect their opinion upon the question,
aside from precedents, would the legislature then be competent
to authorize definitive action by a Convention, or the latter be
empowered to take it? ‘The answer must be in the negative.

1 For this veto, see post, Appendix F.
SUBMISSION OF CONSTITUTIONS. 495

1. When a legislature calls a Convention, without the spe-
cial authorization of the Constitution, it steps to the very verge
of its power. It does an act which, as it can show no express
warrant for it, it can justify only on the ground that it was a
necessity, and that it was itself the only department of the gov-
ernment clearly not incompetent to do it. But an Act which
can be justified only by necessity, must conform to that neces-
sity in its character and limitations; so far as it goes beyond it,
the Act is unnecessary, and, therefore, unjustifiable. If the call.
ing of a Convention is necessary, it certainly is not necessary to
call it in such a way as to make of it a despot — to let it loose
upon the community without check against the assumption of
dangerous powers. A legislature may always prescribe that
a Convention shall content itself with proposing, and that to its
propositions there shall be communicated the force of law only
by the fiat of the people. What is practicable under such condi-
tions, is to be taken as the measure of its duty, and it is as binding
on that body as though it had been expressly embodied in the
Constitution.

§ 486. 2. If, on the other hand, the Constitution, like most of
our later ones, were to authorize the legislature, in general terms,
*to calla Convention,” and, if in doing so, that body were to
insert in its Act a provision permitting the latter to frame and
pat in force a Constitution, without submission, would the legis-
lature exceed its power, or would the Convention be warranted
in availing itself of the permission? Laying the precedents
referred to out of sight, the answer must still be in the negative,
and for substantially the reasons above given. Although, from
the generality of the constitutional provision, power might prop-
erly be inferred in calling a Convention, to exhaust the catego-
ries of time, place, and mode of assembling, organizing, and
proceeding, as weil as to fill out the outlines of an expedient
limitation of its powers, with a view to the safety of the state
and the facilitation of its business — such details being author-
ized as fairly implied in the general grant of power to call the
Convention — nothing is authorized which is not thus implied,
or which is opposed to the spirit of republican institutions.

If I have not misconceived, then, the considerations bearing
upon the question, it is the duty of Conventions, in all cases,
not even excepting that, perhaps, in which they are authorized
496 PRECEDENTS RELATING TO SUBMISSION.

to act definitively, to submit the Constitutions they frame to
the people; certainly to do so, whenever submission is not ex-
pressly dispensed with by the Constitution, or by the Convention
Act.

§ 487. Let us now see to what extent the precedents have
conformed to what I have announced as the theoretical princi-
ples relating to the submission of Constitutions; that is, of the
Conventions which, since the foundation of our government,
have been concerned in framing Constitutions, or parts of Con-
stitutions, how many have, and how many have not, submitted
them to the people?

I have in this work, generally, for the sake of completeness of
view, reckoned as Conventions all bodies which have framed or
ratified Constitutions or parts of Constitutions, either for the
Union or for States, now members of the Union, as well as a few
which have met to frame Constitutions, but have failed to do
so. As thus defined, the list of those bodies thus far held in
the United States comprises one hundred and ninety-two Con-
ventions.!

From this list, for our present purpose, must of course be
struck out, first, those Conventions which have been called sim-
ply to ratify propositions made by other Conventions, or by bodies
having functions analogous to those of Conventions, twenty-eight
in number ;? and secondly, such as have proved abortive, having
met and adjourned without maturing any amendments to the
fundamental code, seven in number.? There would then remain
one hundred and fifty-seven Conventions. Of these, one hundred

1 See post, Appendix B, for a full exhibit of these Conventions, in which
are distinguished those which did, from those which did not, submit their work
to the people.

2 They were the following Conventions, held, —

(a.) To ratify the Federal Constitution of 1787: Connecticut, Maryland,
Massachusetts, New Hampshire, New York, North Carolina, South Carolina,
and Virginia, 1788 ; Delaware, Georgia, New Jersey, and Pennsylvania, 1787}
North Carolina (second Convention), 1789; Rhode Island, 1790; and Ver-
mont, 1791.

(b.) To ratify State Constitutions, or parts thereof, either framed by pre-
vious Conventions or dictated by Congress : Georgia (two Conventions), 1789;
Michigan (two Conventions), 1836; and Vermont, 1786, 1793, 1822, 1828,
1836, 1843, 1850, 1857, and 1870.

3 These were the Conventions of Nebraska, 1864; Pennsylvania, 1783

(Council of Censors); Rhode Island, 1834 ; and Vermont, 1799, 1806, 1813,
and 1862 (Councils of Censors). :
PRECEDENTS RELATING TO SUBMISSION. 497

and thirteen have submitted the fruit of their labors to the peo-
ple,! and forty-four have not.? ,

§ 488. From this exhibit, it is evident that the prevailing sen-
timent of the country, from the earliest times, has favored the
submission of Constitutions to the people. That such has been
the general feeling is confirmed by an examination into the
political situation and opinions of our fathers, at different times
during our history, and into the particular circumstances at-
tending those cases in which submission has not been made, to

1 The submitting Conventions were as follows : —

(a.) Such as were concerned in framing the first Constitutions of their re-
spective States, or of the Union, including those whose work was rejected by
the people: The Continental Congress, 1775-1781; California, 1849; Colorado,
1864, 1865, and 1875; lowa, 1844 and 1846; Kansas, 1855, 1857, 1858, and
1859 ; Maine, 1819 ; Massachusetts, 1778 and 1789 ; Michigan, 1835; Min-
nesota, 1857; Mississippi, 1817; Nebraska, 1866; Nevada, 1863 and 1864;
Oregon, 1857; Texas, 1845; West Virginia, 1861; and Wisconsin, 1846 and
1847.

(b.) Such as were revising Conventions: Alabama, 1868 and 1875; Arkansas,
1864, 1868, and 1874; California, 1878; Colorado, 1876; Delaware, 1852;
Florida, 1868 and 1885 ; Georgia, 1788, 1833, 1839, 1861, 1865, 1867, and
1877; Illinois, 1847, 1862, and 1869; Indiana, 1850: Towa, 1857; Kentucky,
1849; Louisiana, 1844, 1852, 1864, 1867, and 1879; Maryland, 1850, 1864,
and 1867; Massachusetts, 1779, 1820, and 1853; Michigan, 1850 and 1867;
Mississippi, 1832 and 1868; Missouri, 1845, 1865, and 1875 ; Nebraska, 1875;
New Hampshire, 1778, 1781, 1791, 1850, and 1876; New Jersey, 1844; New
York, 1821, 1846, and 1867; North Carolina, 1835, 1865, 1868, and 1875;
Ohio, 1850 and 1873; Pennsylvania, 1837 and 1872; Rhode Island, 1824,
October, 1841, Novernber, 1841, and 1842; South Carolina, 1868; Tennessee,
1834, 1861, 1865, and 1870; Texas, 1861 (ordinance of secession submitted,
but not the amendments to the Constitution), 1866, 1868, and 1875; the Fed-
eral Convention, 1787; Vermont, 1785, 1792, 1820, 1827, 1834, 1841, 1848,
1855, and 1869; Virginia, 1829, 1850, 1861 (Secession Convention), 1861 (Re-
construction Convention), and 1867 ; and-West Virginia, 1872. —

2 The non-submitting Conventions were as follows :—

(a.) Such as framed first Constitutions : Alabama, 1819 ; Arkansas, 1836;
Delaware, Georgia, Maryland, New Jersey, New York, North Carolina, Penn-
sylvania, and Virginia, 1776; Florida, 1838; Illinois, 1818; Indiana, 1816;
Kentucky, 1792; Louisiana, 1811; Missouri, 1820 ; New Hampshire, 1775;
Ohio, 1802 ; South Carolina, 1775 ; Tennessee, 1796 ; and Vermont, 1777.

(b.) Such as were revising Conventions : Alabama, Arkansas, Florida, Ken-
tucky, Louisiana, Mississippi, Missouri, and North Carolina, 1861; Alabama,
Florida, Mississippi, and South Carolina, 1865; Delaware, 1792 and 1831 ;
Georgia, 1795 and 1798; Kentucky, 1799 ; New York, 1801; Pennsylvania,
1789; South Carolina, 1778, 1790, and 1860; and Virginia, 1864.
498 PRECEDENTS RELATING TO SUBMISSION.

those of which most directly bearing on the point under discus-
sion, a short space will be devoted.

The science of politics, as specially adapted to our system of
republics, scarcely existed at the time that system originated.
American statesmen were doubtless well acquainted with the
principles of freedom as developed in English institutions, and
were thus, in a general way, prepared for the new development
of them about to manifest itself in America. But the task of
the statesman then was to apply old principles to a wholly new
situation — always a work of difficulty, in which much must be
trusted to time and experience. Of all the prominent statesmen
of the Revolution, John Adams seemed best and earliest to fore-
cast the form our institutions must assume, as well as their
foundation and peculiar spirit. He saw that a republic alone
would satisfy the wishes or harmonize with the genius of our
people, and he was wise enough and fortunate enough to point
out seasonably and with great precision the method in which
the edifice of government, in the several States, must be erected.
He was convinced it must be founded upon the people, by the
people, and for the people. “I had looked,” he says, “ into the
ancient and modern confederacies for examples, but they all ap-
peared to me to have been huddled up in a hurry by a few
chiefs. But we had a people of more intelligence, curiosity, and
enterprise, who must be all consulted; and we must realize the
theories of the wisest writers. and invite the people to erect the
whole building upon the broadest foundations. . . . This
could only be done by Conventions of representatives chosen by
the people in the several colonies, in the most exact proportions.
It was my opinion that Congress ought now ” (1775) “to rec-
ommend to the people of every colony to call sach Conventions
immediately, and set up governments of their own, under their
own authority; for the people were the source of all authority,
and original of all power.” !

§ 489. These views, so mature for that early day, were, in
most respects, adopted and carried into effect by the several
colonies. As we saw in a former chapter, a scheme of a Con-
stitution, suitable, in the author’s opinion, for the incipient
States, was prepared and extensively circulated by Mr. Adams,
during the winter and spring preceding the general framing of

1 Adams’s Works, Vol. III. p. 16.
PRECEDENTS RELATING TO SUBMISSION. 499

Constitutions that took place in 1776.’ To this fact is doubtless
due much of the family likeness apparent in the Constitutions
that afterwards appeared. But circumstances prevented, in
nearly all the colonies, a strict conformity to the spirit of Mr.
Adams’ recommendation; though they called Conventions,
they did not always consult the people in relation to the Con-
stitutions they matured. In many of these colonies no submis-
sion was made to the people, because it was not, by the friends
of the Revolution, deemed safe to submit, though the propriety
of such a step, in general, seems not to have been denied.
While the Convention of New York was in session, the enemy
were actually, in large force, invading that and the adjoining
State of Vermont, whose Convention was also in session about
the same time. In those States, therefore, for that reason, it
was thought to be perilous to attempt to take upon their re-
spective Constitutions a vote of the people. Not only was
there danger from the public enemy, but the enemy within was,
in both States, numerous, and, in organizing the new govern-
ments, might occasion serious embarrassment, if their establish-
ment were made dependent upon an affirmative vote of the
whole people. Their first Constitutions were, therefore, put in
operation by Ordinances of their Conventions alone.

§ 490. This action of their Conventions, however, seems not
to have met with entire approval, at least in Vermont, whose
people were not satisfied that a Constitution thus adopted pos-
sessed the force of law. As we have seen, accordingly, in a
previous chapter, the General Assembly of that State endeav-
ored, by two separate Acts, passed in different years, to impart
to their fundamental law the validity which it was supposed to
lack? This incident shows two things: first, that a very general
distrust, founded on a considerable knowledge of safe political
principles, prevailed in relation to the validity of the Constitu-
tion ; and second, that, at the same time, the views of the peo-
ple in reference to the relations of the legislature to the Consti-
tution, under which it assembled, were very immature. The
first Constitution of New Hampshire had, in like manner, been
put in operation by the Convention which framed it, though all
the subsequent revisions of it, of which there have been several,

1 Seve ante, §§ 128, 129,
2 See ante, § 154.
500: PRECEDENTS RELATING TO SUBMISSION.

have been submitted. The same causes probably operated to
cause the first Constitution to be withheld from submission, as
in the States above named; and they, doubtless, had their influ-
ence, generally, during the Revolution. The Tory party was
strong enough in all the States to occasion serious embarrass-
ment, in case a vote should be taken to determine upon the
establishment of a new government independent of the crown;
and in some of the States it was a matter of doubt whether it
might not outnumber the friends of independence. Conse-
quently, of the first Constitutions framed prior to the ratification
of peace with England, none were submitted except that of
Massachusetts, framed in 1778. This Constitution, however,
was rejected by the people, and it was not until two years later
that the leading Northern State was enabled to frame for her-
self a satisfactory fundamental code. Her first failure, however,
furnished striking evidence of the existence amongst her people
of sound practical views of Constitution-making, since that
failure resulted from dissatisfaction with the mode in which the
proposed Constitution had been concocted. The Constitution
of 1778, as stated in a former chapter, was framed by a com-
mittee of the legislature, appointed in 1777, and on being sub-
mitted to the people, was, for that reason alone, rejected by an
overwhelming vote—the people of that Commonwealth deem-
ing the General Court, as the legislature was called, unauthor-
ized to take the step indicated! Afterwards, a Convention
was, in a regular and formal manner, called by the General
Court, by which the Constitution, known as that of 1780, was
framed.

§ 491. Two Conventions, classed with non-submitting Con-
ventions, — those of South Carolina of 1778, and of Pennsyl-
vania of 1789, — might, perhaps, without impropriety, have
been classed with those which submitted their work to the peo-
ple. The legislature of South Carolina, which met in January,
1777, having been elected with the understanding that it should
revise the Constitution of 1776, proceeded at its first session to
perform that duty. Though, by the tenor of its commission,
that body might have deemed itself authorized to enact its pro-
posed Constitution at once, without in any manner taking the
sense of the people in relation to it, it did not do so. It ma-

1 See ante, § 156.
PRECEDENTS RELATING TO SUBMISSION. 501

tured the instrument, and delayed the formal act of adopting it
for a whole year, in the mean time publishing it for the consider-
ation of the people at large “ From the general approbation
of the inhabitants, the new Constitution received,” as was be-
lieved, “ all the authority which could have been conferred on
the proceedings of a Convention expressly delegated for the
purpose of framing a form of government.”? And, had the
body by which it was finally adopted been elected during the
year following its publication, with a view to its ratification or
rejection, there would have been a substantial submission of it
to the people. As it was, there was the possibility that a body,
wedded naturally to its own views of the public necessities, em-
bodied in its project of a Constitution, would fail accurately, by
its intercourse with the people, to gather, or would refuse to
obey, the public will.

The course of the Pennsylvania Convention was, in respect
of submission, similar, though, on the whole, more exception-
able than that of South Carolina. In the resolutions by which
it was convened, there was a clause declaring it to be, in the
opinion of the legislature, expedient “ that the Convention
should publish their amendments and alterations for the consid-
eration of the people, and adjourn at least four months previous
to confirmation.” In obedience to this suggestion, the Con-
vention matured a Constitution toward the close of February,
1790, and adjourned over to the 9th of August following, publi-
cation of the same being in the mean time made in the news-
papers. On the day last named, the body again assembled, and,
after a session of twenty-four days, finally adopted the Consti-
tution of 1790. Thus there was the semblance of taking the
sense of the people upon the Constitution, and, perhaps, a
virtual submission to them of that instrument. But, how far it
fell short of what a submission ought to be, is evident from the
fact, that after the Convention assembled the second time, it
spent twenty-four days in reviewing and amending the instru-
ment upon which the people had been informally consulted.
What changes the people as a whole desired in the scheme as
published was not, and could not be, accurately known, nor,

1 Ramsay, History of the Revolution of South Carolina, pp. 128, 129.
2 Thid.
3 Conventions of Pennsylvania, p. 134.
502 PRECEDENTS RELATING TQ SUBMISSION.

consequently, whether the delegates obeyed or disobeyed the
public voice. Both cases, therefore, have been set down as
those in which Conventions did not submit their work to the
people.

§ 492. Of the reasons inducing the Conventions of South
Carolina, held in 1790; those of Delaware in 1792 and 1831;
those of Georgia in 1795 and 1798; and that of Kentucky in
1799, which were revising Conventions, to withhold the Consti-
tutions framed by them from submission to the people, I am not
advised. In relation to the New York Convention of 1801, it
may be said, that the objects of calling that body were, — first,
to reduce the number of senators and representatives in the
General Assembly ; and secondly, to determine the true con-
struction of the twenty-third Article of the Constitution relative
to the right of nomination to office. From the language of the
Act calling the Convention, it is obvious that submission of its
determinations was not only not expected, but was virtually dis-
pensed with. Without raising again the question as to the power
of the legislature thus to authorize the Convention to act defini-
tively,! it is clear that the case must be ranked as an exceptional
one, so far as relates to the question of submission, and can
form no precedent for cases in which the circumstances should
be different.

§ 493. Of the forty-four non-submitting Conventions, those
which remain are the Missouri Convention, whose sessions ran
through the years 1861, 1862, 1863, and the so-called Secession
and Reconstruction Conventions held in 1860, 1861, 1864, and
1865.?

The force of these cases as precedents is broken by the very
peculiar circumstances which attended the call of those Conven-
tions. It is unnecessary to rehearse here a history familiar to
every reader. The States in which those Conventions assembled
were in a thoroughly revolutionary condition. To this remark
the State of Missouri, in the period covering the existence of the
Convention of 1861, is no exception. Indeed, there is probably
no doubt that that body was called in the interest of the Seces-
sion faction, and that, but for the determined stand taken by its
Union members, it would have carried the State, so far as a State

1 On this question see §§ 484-487, ante.
2 See list, note 2 to § 487, ante, page 497.
PRECEDENTS RELATING TO SUBMISSION. 503

can be earried, out of the Union. Nevertheless, there were lim-
its beyond which the legislature, in calling the Convention, durst
not go without providing for a reference to the people ; accord-
ingly, it prescribed in the Convention Act, that no Act or reso-
lution of the Convention should be deemed to be valid to change
or dissolve the political relations of the State to the government
of the United States, or any other State, until a majority of the
qualified voters of the State voting upon the question should
ratify the same.!_ As the contingency referred to did not arise,
no ordinance or amendment to the Constitution adopted by the
Convention was submitted to the people, and judging from the
action of the Secession Conventions in ather States, had a seces-
sion ordinance been adopted by the Convention, we may be per-
mitted to doubt whether it would have been submitted as required
by the above Act. Respecting the condition of the other States
at the time of their secession, there can be no doubt; it was
avowedly revolutionary. When towards the close of the war,
and after it, the first attempt was made to reconstruct their gov-
ernments under the proclamations of Presidents Lincoln and
Johnson, many causes operated to deter the Union citizens from
submitting the amended Constitutions to a general vote of the
people: in some the electoral machinery was more or less dis-
organized, and in all there was fear that it would be impossible
to secure the approval, by a popular vote, of those measures
relating to debts contracted in aid of the rebellion, and to the
abolition of slavery without compensation to the late owners of
slaves, which it was believed would he insisted on by Congress ;
the bulk of the people being as yet unripe for accepting the con-
ditions absolutely necessary for the restoration of the Union, as
at the time of the Secession Conventions they had been thought
to be unripe for its demolition. Admitting, however, for the
sake of the argument, that the Conventions held in the seceding
States in the years mentioned were regular, they were held in
exceptional circumstances; and the fact that they found it in-
expedient or impossible to submit their work to the people, is
clearly no precedent for non-submission in times of peace and
constitutional order. ‘The extreme medicine of the Constitu-
tion,” as wisely hinted by Burke, ought not to be made “ its daily
bread.”

1 Section 10 of Act approved January 21, 1861.
504 PRECEDENTS RELATING TO SUBMISSION.

§ 494. Certain peculiarities in the mode of submission will
now be noticed. The first is that required by the Federal Con-
stitution for amendments to that instrument proposed by Con-
gress. Article V. provides that amendments proposed by Con-
gress, or by a Convention called by that body, shall be valid
‘when ratified by the legislatures of three fourths 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 Con-
gress.”

The other peculiarities in the mode of submission have been
exhibited in the States, or in Territories seeking admission into
_ the Union as States. Of these, two are deserving of mention, of
which the first is that for over ninety years practised in Vermont.

By the forty-third section of the Vermont Constitution of
1777, provision was made for the election, every seven years, of
a Council of Censors, of thirteen members, one of whose
powers should be to call a Convention, to meet within two
years after their sitting, if there appeared to them an absolute
necessity of amending any Article of the Constitution. It was
further provided, that the Articles to be amended, and the
amendments proposed, and such Articles as were proposed to be
added or abolished, should be promulgated at least six months
before the day appointed for the election of such Convention,
for the previous consideration of the people, that they might
have an opportunity of instructing their delegates on the
subject.

Here a Council of thirteen matured the proposed amend-
ments, and the Convention was charged with the duty merely
of passing upon them such a judgment as the people should
have instructed them to do, or as the delegates should deem
most accordant with the general voice. Such a mode of sub-
mission is the same in its general character as that commonly
adopted, where, as we shall see, the whole body of the electors
are called upon to adopt or reject amendments to the Constitu-
tion. The only difference is that, in Vermont, the electors
choose a body of delegates to do for them, and in their names,
what elsewhere is done by the electors directly. Considering
the dangers of faction and corruption, always greater in small
than in large bodies of men, there can be no doubt that, al-
though the Vermont mode is theoretically unexceptionable,

a
PRECEDENTS RELATIVE TO SUBMISSION. 505

practically it is less to be commended than the one with which
it is contrasted.

§ 495. The remaining case, presenting peculiarities in the
mode of submission, is-that of Territories framing their first
Constitutions, preparatory to entering the Union as States.
These are commonly, but, as I am confident, erroneously, cited
as cases of non-submission. Assuming, for the present, that it
is to the people —the sovereign — that Constitutions ought to
be submitted, the question, To whom, in particular, should
those framed for Territories be submitted? admits of a ready
answer. The sovereign authority in the Territories is the peo-
ple of the United States. When a Constitution, then, is framed
fora Territory, if submitted at all, it should be to the people of
the United States, in some one of the ways recognized as
proper for ascertaining its will. The best way, as we have
shown, would doubtless be to take a vote upon the question
of the electors throughout the Union; but the practice of the
government, under the Constitution of the United States, bas
been uniformly to leave the adoption or rejection of a Territorial
Constitution to the Congress of the United States, the principal
representative of the general sovereignty of the Union. This
seems, implicitly at least, to be required by those clauses of the
Constitution which provide that “new States may be admitted
by Congress into this Union,” and that “the United States
shall guarantee to every State in this Union a republican form
of government.”! Beside this, which, in my judgment, is the
normal and sufficient mode of submission, another has of late
years come into use in these cases. In all, or nearly all, the
enabling Acts of Congress authorizing Conventions in Terri-
tories of the United States, passed since the troubles in 1855-9
in Kansas, a clause has been introduced requiring those bodies
to submit the Constitutions framed by them to the inhabitants
of the respective Territories. This course, though theoretically
not requisite, is highly proper, since otherwise Constitutions
might be forced upon Territories by packed Conwentions, in
league with the majority of Congress, to which the people to be
governed by them were hostile. It is to be understood, how-
ever, that the adoption of this mode is not obligatory upon
Congress, and that the action of the territorial inhabitants is

1 Const. U. S., Art. IV. §§ 3, 4.
506 BY WHOM SUBMISSION SHOULD BE MADE.

petitory only, the power of absolute disposition remaining in
Congress. It is not probable that the latter would, after the
events which occurred in Kansas, ever sanction a Constitution
condemned by a vote of a majority of the inhabitants of the
Territory fairly taken.

’ § 496. Having thus considered the importance of submission
in general, and the extent to which it has been practised in our
constitutional history, it is proper now to inquire what is in-
volved in the term “ submission.”

The term “submission,” considered as designating a politi-
cal act, involves, according to the point of view from which it is
regarded, two distinct though related conceptions: first, that of
something to be done by the submitting body; and, secondly,
that of something to be done by those to whom it is sub-
mitted. To an adequate exposition of the subject, it is neces-
sary that each of these conceptions should be analyzed, and its
several features separately considered ; and this, I think, may be
conveniently done by discussing in their order the following
subjects : —

I. By whom the particular regulations necessary for submit-
ting Constitutions ought to be made.

II. To whom they ought to be submitted.

Il. The nature of the act performed by the person or body to
whom submission is made. :

IV. In what manner Constitutions should be submitted.

V. The final proclamation or announcement by which the
act of submission is crowned or consummated.

§ 497. I. In reference to the body by whom the regulations
for submitting Constitutions ought to be made, it seems, laying
out of view all questions of convenience or economy, that the
most proper body is that by which the Convention is called, that
is, the General Assembly. That body is in constant direct rela-
tions with the people, and with their more immediate represent-
atives, the electors. Its voice is not only. known to them, but it
is in an emphatic sense their own voice. Moreover, as has been
already shown,! the legislature has undoubted authority, under
its general grant of legislative power, to pass the Acts necessary
to submit a Constitution with such restrictions as shall secure
respecting it an authentic expression of the public will ; to which

1 See ante, §§ 482, 483.
BY WHOM SUBMISSION SHOULD BE MADE. 507

end it may provide by law for punishing such as attempt to cast
illegal ballots, or to disturb the quiet of the election. With a
Convention, the case is widely different. Conceding to it equal
wisdom and experience, its power to legislate is denied by most,
and doubted by all, respectable authorities ; certainly, its power,
by legislatien, both to provide for submission with the necessary
safeguards, and to enforce by penalties the observance of its re-
qnirements. If a Convention has any power at all in the prem-
ises, it is confined to that which is indispensable to the complete
execution of its commission. It cannot extend to such special
considerations as the exigencies of time and place may require,
and to meet which, a wide legislative discretion alone is ade-
quate. For, even if no clause of the Convention Act indicates
the disposition to be made by the Convention of its work, com-
mon sense would seem to require that it should report its pro-
posed Constitution to the body that called it, to deal with as it
might deem advisable.

§ 498. The precedents, however, have not conformed precisely
to the principles enunciated in the last section. Of the whole
number of submitted Constitutions, one hundred and thirteen in
all, more than one-half have been submitted in pursuance of their
own express provisions, or of ordinances appended to them, con-
taining sometimes specific instructions as to the mode of taking
the votes of the people, but generally requiring the same to be
taken as in ordinary elections, or leaving the time and mode of
conducting the election to the discretion of the respective legis-
latures.!. In some cases, submission has been required both by
the Constitutions themselves, and by the Convention Acts in
pursuance of which they were framed.?

1 These Constitutions are the Articles of Confederation, 1781; the Federal
Constitution, 1787; those of Arkansas, 1864, 1868, and 1874; California, 1849
and 1879; Florida, 1839 and 1885; Georgia, 1877; Illinois, 1848, 1862, and
1870; Towa, 1857; Kansas, 1855, 1857, 1858, and 1859; Louisiana, 1845, 1852,
1864, and 1868; Maryland, 1864 and 1867; Massachusetts, 1821 and 1853;
Michigan, 1835, 1850, and 1867; Minnesota, 1857; Missouri, 1865 and 1875,
Nebraska, 1865 and 1876; Nevada, 1864; North Carolina, 1868; Ohio, 1851
and 1874; Oregon, 1857; Pennsylvania, 1873; Tennessee, 1834, 1865, and
1870; Texas, 1845 and 1868; the last nine Constitutions of Vermont; Vir-
ginia, 1830, 1851, and 1870; West Virginia, 1872; and Wisconsin, 1848.

2 These were the following Constitutions: Arkansas, 1874 ; California, 1879;
Florida, 1885; Georgia, 1877; Illinois, 1848, 1862, and 1870; Iowa, 1857;
Kansas, 1857; Louisiana, 1845 and 1852; Maryland, 1864 and 1867; Massa-
508 TO WHOM SUBMISSION SHOULD BE MADE.

A careful search has not enabled us to determine, in the re-
maining cases, by whom the submission of Constitutions has been
made. The ordinances of Conventions have not always been
preserved. It is safe, however, to say that it has generally been
the work of Conventions acting either under express authority
of law, or in obedience to the tacit understanding that submission
should be made, which has prevailed in this country. The mo-
tives which have, doubtless, led to the acquiescence of the people
in these acts of legislation by Conventions have been considera-
tions of convenience and economy, both of which are promoted
by them.

§ 499. When not done by the Conventions, submission has
been commonly effected through the medium of the General
Assemblies. It was so done in Virginia, in 1830, though under
the direction, or at the request, of the Convention ; so, also, in
Indiana, in 1851, and in many other cases. The Federal Con-
stitution was submitted by the Congress of the Confederation,
in pursuance of the request of the Convention of 1787. In
Virginia, the Act under which the Convention of 1850 assem-
bled required it to transmit a certified copy of the Constitution
to the General Assembly, in order that provision might be made
by law for submitting the same to the people, and for organizing
the government under it. This provision, however, was changed
by the following legislature, which passed an Act requiring the
certification of the Constitution to the Governor, who was au-
thorized to call an election to pass upon its adoption or rejection.

§ 500. II. As to the body to whom submission should be
made, it is evident, in general, that no one can be entitled to
pass upon the fundamental law but the sovereign itself; or, in
the States, some person or body of persons, to whom, by the nation
at large, has been committed the exercise of sovereign rights,
in local affairs. This would point to the peoples of the several
States. But, because it is impracticable to submit it to such
bodies, a choice must be made among the various orders of func-
tionaries who represent the sovereign within the several States,
or a special body must be deputed to act for them in the matter ;

chusetts, 1821 and 1853; Michigan, 1850 and 1867; Missouri, 1865; Nebraska,
1865 and 1876; Nevada, 1864; North Carolina, 1868 ; Ohio, 1851 and 1874;
Pennsylvania, 1873; Tennessee, 1865 and 1870; Virginia, 1830, 1850, and
1870; West Virginia, 1872; and Wisconsin, 1848.
TO WHOM SUBMISSION SHOULD BE MADE, 509

and, as the submission must thus, at best, be virtual, it is the
duty of the authorities charged with the business of perfecting a
fundamental code to see to it that, in selecting the representa-
tive to whom submission is to be made, one be chosen who will
act therein at once the most honestly, the most intelligently, and
the most safely. Applying this test, it is evident that neither of
the three ordinary departments of the government, legislative,
executive, and judicial, ought to be selected for that office. Not
to repeat arguments already sufficiently presented, tending to
show the impropriety of confiding fundamental legislation to that
department which enacts our ordinary laws, to that which in-
terprets and applies them, or to that which executes them,! it is
apparent that the electors, the most numerous order of function-
aries in the State, withdrawn most completely from the passions
and temptations of actual administration, and standing nearer to
the people than any other, are the best fitted for that delicate
duty. Their number is so great, and they are, withal, so evenly
diffused, that the views they may at any time hold may reason-
ably be presumed to be those of the sovereign, —a presumption,
indeed, lying at the foundation of our whole suffrage system, —
yet they are not so numerous or so diffused as to render a collec-
tive ballot by them impracticable. By naming the electors to .
this office another advantage is gained, — one of the utmost im-
portance to all governments founded upon a popular basis, — and
that is, that substantive powers are not accumulated in a few
hands, or in a single department, but are distributed, and thus
made to counterpoise each other. The legislature, forbidden it-
self to meddle with it, calls a Convention to revise the funda-
mental law. The Convention matures a scheme of amendments
which it deems necessary, and recommends them, but ventures
to conclude nothing. The electors, the ultimate body of func-
tionaries, take up the projét which the Convention has forged
into shape, and temper and vitalize it by a power derived from
the sovereign itself, and which they wield as its immediate repre-
sentatives. Such is the distribution of functions exhibited in
the work of fundamental legislation.

§ 501. It is to the people, then, that is, to the electors — for

1 See §§ 367-372, ante; also speech of Daniel Webster in the case of Luther

v. Borden, 7 How. 1, in Great Speeches of Daniel Webster, by E. P. Whipple
(Little, Brown & Co., 1879), p. 543.
510 TO WHOM SUBMISSION SHOULD BE MADE.

when we speak of the actual administration of government, it is
they whom we mean by the term people — that Constitutions
are properly to be submitted. How far this principle has been
carried out in practice may be inferred from the requirements,
first, of Convention Acts, and secondly, of Constitutions, as to
the persons to whom Constitutions were to be submitted... These
will be considered in their order, beginning with Convention Acts.

1. Of the Constitutions submitted in pursuance of special

provisions of the Convention Acts, some were submitted to the

qualified electors or voters of the State ;? some, to the people ;4

one, to the freeholders and inhabitants qualified to vote for rep-
resentatives ;4 two, to the freemen of the several towns; 5 two,
to persons entitled to vote for members of the General Assem-
bly ;® and ten, being those framed by the second series of Recon-
struction Conventions, to the male citizens of the several States,
twenty-one years of age and upwards, of whatever race or pre-
vious condition, resident in such States one year previous to the
election, except persons disfranchised for rebellion or for felony
at common law."

1 Obviously the best evidence on this point would be the Acts or resolutions
of the legislatures or Conventions describing the persons who were to vote on
the question of adopting or rejecting the proposed Constitutions. As most of
the submissions made have been made by Conventions, some by provisions in-
serted in the schedules attached to such Constitutions, and some by ordinances
subsequently passed, which are often published neither in the journals or pro-
ceedings of the Conventions, nor in the collections of State statutes, we must
content ourselves with the best data that are accessible, which are believed to
be the Convention Acts and the Constitutions. ;

2 Convention Acts of Alabama, 1875; Connecticut, 1818; Delaware, 1852;
Florida, 1885 ; Georgia, 1833 and 1839; Illinois, 1847, 1862, and 1869 ; Indi-
ana, 1850; Tv, 1844 and 1857; Maryland, 1850, 1864, and 1867; Missouri,
1861; Nebraska, 1875; Nevada, 1863; New York, 1846; North Carolina,
1875; Ohio, 1850 and 1873; and Pennsylvania, 1837 and 1872.

§ Convention Acts of Massachusetts, 1820 and 1853; Michigan, 1850 and
1867; New Hampshire, 1781, 1850, and 1876; North Carolina, 1835; Ten-
nessee, 1865 and 1870; Virginia, 1850 and 1861; West Virginia, 1872; and
Wisconsin, 1846.

4 Convention Act of Massachusetts, 1780.

5 Convention Acts of Rhode Island, 1824 and 1834.

6 Convention Acts of California, 1879; Georgia, 1877; and Iowa, 1846 and
1857.

7 Convention Acts of Alabama, 1867; Arkansas, Florida, Georgia, Louisi-
TO WHOM SUBMISSION SHOULD BE MADE. 611

The Convention Acts of a few States contained special pro-
visions of an unusual character. Thus, that of the New York
Convention of 1821 required the Constitution it should frame to
be submitted to the citizens entitled to vote for delegates under
that Act, which, as we have seen,! had extended the right to vote
to citizens not before entitled, and at the sume time had disfran-
chised certain classes of colored voters. So, the Convention Act
of New Jersey, 1844, required submission to be made to the per-
sons qualified by the same Act to vote for delegates —a class
much larger than the electorate established by the existing Con-
stitution, that of 1776, because of the omission of the property
qualification required by the latter. In like manner, the Act
calling the Virginia Convention of 1829 had directed the submis-
sion of the new Constitution to the persons authorized by it to
vote for members of the most numerous branch of the legislature.
The same was, in substance, true of the Acts calling the two le-
gitimate Conventions of Rhode Island, of 1841 (November) and
1842, both of these Acts extending the franchise as fixed by the
charter, and requiring the Constitutions which should be framed
to be submitted to the persons by those Acts qualified to vote for
delegates, and to those declared entitled to the suffrage by the
new Constitution. The call of the People’s Convention of the
same State, held in 1841, extended the suffrage to all male
American citizens aged twenty-one years, who had resided in
the State one year, and required the Constitution framed by
the Convention to be submitted to the voters as thus described,
upon certain days named, and added the remarkable provision,
that every person who, ‘from sickness or other causes,” did not
vote on one of those days, might send his vote in to the modera-
tor within three days thereafter.” The New York Convention
Act of 1867 required the submission to the persons entitled by
law to vote for members of the General Assembly, but provided
that no person should vote who would not, if duly challenged,
take and subscribe a prescribed oath of fidelity to the United

ana, Mississippi, North Carolina, South Carolina, Texas, and Virginia, 1868.
Very similar were the provisions of the Act calling the Kansas Convention of
1857, save as to the residence required, which was thirty days in the Terri-
tory and ten days in the county, and save that it did not include a provision
for disfranchisement.

1 Ante § 264.
512 TO WHOM SUBMISSION SHOULD BE MADE.

States. Mention has already been made of the call of the Penn.
sylvania Convention of 1789, which recommended by the Act
calling it to publish the amendments and alterations it should
propose, and adjourn at least four months previous to confirma-
tion of the same; a proceeding which might be considered as
nearly equivalent to a submission to the people.!

§ 501 a. 2. Constitutional provisions respecting submission have
been of two kinds: first, such as required the submission of the
instruments of which they formed a part, and, secondly, such as
required the submission of the Constitutions which should be
framed by future Conventions.

Of the former variety, nineteen have directed submission to
be made to the qualified electors or voters of the State ;2 four, to
the citizens of the State entitled to vote for members of the Gen-
eral Assembly ;? and one, to the people without further descrip-
tion. In three cases of Territorial Constitutions, submission was
required to be made to the white male inhabitants of the respec-
tive Territories over twenty-one years of age resident in the dis-
trict in which they offered to vote. One Territorial Constitution
framed in 1864, that of Nevada, required submission to be made
to the persons qualified by the laws of the Territory, on certain
dates mentioned, to vote for representatives to the General As-

‘sembly, including soldiers in the army of the United States in or
out of the Territory. Three Constitutions, framed by Conven-
tions called under the Reconstruction Acts of March and July,
1867, were required to be submitted to the voters of the State

1 See ante, § 491.

2 These are: Arkansas, 1874; California, 1849; Florida, 1838; Indiana,
1851; Towa, 1846 and 1857 ; Kansas, 1855; Louisiana, 1864; Maryland, 1851
and 1867; Missouri, 1875; Nebraska, 1866 and 1875; Ohio, 1851; Oregon,
1857; Pennsylvania, 1873; Tennessee, 1834 and 1870; and West Virginia,
1872. :

Tn the cases of Indiana, 1851, and Maryland, 1851 and 1867, the provisions
touching submission were indirect and inferential, since they merely regulated
the submission which was assumed rather than directly required. The class
of persons authorized to vote were, however, indicated with sufficient clearness
to be those stated in the text. In Tennessee, 1865, the taking of a stringent
oath of loyalty was made a condition of the right to vote.

> Constitutions of California, 1879; Illinois, 1848 and 1862; and Michigan,
1850,

4 Constitution of Kansas, 1858.

5 Constitutions of Kansas, 1857; Minnesota, 1857; and Wisconsin, 1848.
TO WHOM SUBMISSION SHOULD BE MADE. 5138

registered and qualified as required by those Acts.1 The Arkan-
sas Constitution of 1864 directed submission thereof to be made
to the white male citizens, over the age of twenty-one years, of
the county, or in case of a military company, of the State, pre-
senting themselves to vote, and not excepted in the proclamation
of President Lincoln, who should take the oath prescribed in that
proclamation. Several Constitutions required submission to the
persons qualified as voters under the same, or under both the old
and new Constitutions.2. The Missouri Constitution of 1865 re-
quired submission to the qualified voters of the State who should
take a prescribed oath of lvyalty, including soldiers serving in the
armies of the United States, their votes to be taken by mes-
sengers sent to them for that purpose. By the Vermont Consti-
tutions of 1785, 1792, 1820, 1827, 1834, 1841, 1848, and 1855,
they were severally to be submitted to Conventions called for
that purpose only. It is only of this class of provisions that a
question could be raised. In the absence of constitutional au-
thority, no Convention or legislature could properly submit a
Constitution, or an amendment thereof, framed by it, or under
its authority, to any persons but the electorate established by the
existing Constitution.

Of Constitutions containing specifications of the persons to
whom amendments or revised Constitutions thereafter proposed
by legislatures or Conventions should be submitted, seventy in
in number, thirty-seven have required submission to be made to
the electors or voters or qualified electors or voters of the State ;*

1 Constitutions of Louisiana and Texas, 1868, and Virginia, 1870.

2 Constitutions of Arkansas, 1868; Illinois, 1870; Kansas, 1859; Louisiana,
1845 and 1852; Maryland, 1864; Michigan, 1835; Tennessee, 1834 ; Texas,
1845; and Virginia, 1851. The Tennessee Constitution also limited the right
to vote, formerly given to freemen having a certain length of residence and
a certain freehold interest, to free white men, provided that no person should
be disqualified on account of color who was a competent witness in a court of
justice against a white man.

8 Constitutions of Alabama, 1865 and 1875; Arkansas, 1874; California,
1879; Colorado, 1876; Connecticut, 1818; Georgia, 1777 and 1868; Indiana,
1851; Kansas, 1855, 1858, and 1859; Louisiana, 1845, 1852, 1864, and 1868;
Maryland, 1864 and 1867; Massachusetts, 1780; Minnesota, 1857; Mississippi,
1832 and 1868; Missouri, 1865; Nebraska, 1875; New Hampshire, 1784 and
1792; New York, 1867; North Carolina, 1876; Ohio, 1851; Oregon, 1857;
Pennsylvania, 1838 and 1873; Rhode Island, 1842; South Carolina, 1868 ;
West Virginia, 1863 and 1872; and Wisconsin, 1848.
514 TO WHOM SUBMISSION SHOULD BE MADE.

twenty two, to the persons voting, or qualified to vote, for rep-
resentatives or members of the General Assembly ;! nine, to Con-
ventions called by Councils of Censors ;? one, to the freemen of
the State ;3 and one, to the inhabitants voting in town meeting.*

Some of the provisions touching the submission of Constitu-
tions described in this and the preceding section relate to the
first Constitutions of States formed out of territory of the United
States, and the phraseology referred to indicates the persons to
whom, not the regular submission required by the Federal Con-
stitution, was made — for that, as we have seen,® is always to
the Congress of the United States — but that supererogatory sub-
mission authorized by Congress of late years, for the purpose of
securing the settlers in our Territories against a recurrence of the
outrages which so foully disgraced the American name in Kansas.
Tn all cases of Territories framing their first Constitutions, it
is believed, that submission can with strict legal propriety be
made only to the people of the United States represented in Con-
gress, and they have all of necessity conformed to this rule; that
is, no Territories have ever been admitted into the Union under
Constitutions without the submission of the same to that body
for approval, and without its previous consent to their admission
as States.

§ 502. Among the instances of submission given, are a few
which deserve special attention on account of their exceptional
character. Of these, the first that I shall mention are the two
eases of Constitutions framed for the United States. The Con-
stitution, improperly so-called, of the Confederation, comprised
in thirteen articles, was the Constitution of a league of States,
each of which expressly reserved to itself “its sovereignty, free-
dom, and independence.’ It was, therefore, a mere treaty, and,
of course, its framers, the Continental Congress, were bound to

1 Constitutions of Alabama, 1819 and 1867; Arkansas, 1868; California,
1849; Florida, 1868 ; Iowa, 1846 and 1857; Michigan, 1835, 1850, and 1867;
Nevada, 1864; New Jersey, 1844; New York, 1821 and 1846; North Caro-
lina, 1835 and 1868; Tennessee, 1834 and 1870; Texas, 1866, 1868, and 1876;
and Virginia, 1870.

2 Constitutions of Pennsylvania, 1790, and Vermont, 1785, 1792, 1820, 1827,
1834, 1841, 1848, and 1855.

8 Constitution of Vermont, 1870.

4 Constitution of Maine, 1820.

5 See an'e, § 495,
TO WHOM SUBMISSION SHOULD BE MADRE. 515

submit it to the States, of which they were the representatives.
This course was followed, and that instrament was ratified by
the States as political societies, each acting by its legislative
Assembly. The Federal Constitution, on the other hand, was
a Constitution based not only on States, but on individuals, and
so far involved the substitution, for the principle of a league, of
that of a national government. It had been found that the
system of the Confederation was so powerless as to make it
nearly useless for many purposes of government. Necessity
required the enlargement of the plan, and not a mere revision
or amendment of the government framed on the existing plan.
Accordingly, although nothing was swept away which had
shown itself useful, unless clearly incompatible with the plan
demanded by the public necessities, the system proposed was,
in its most characteristic particulars, a radically new one. It
was a national government with federal features, instead of a
mere league, with scarcely any features at all of an effective
government. While it preserved the States, as political com-
munities, they entered into the new system shorn of many of
their most important powers. The new government was, in its
essence and organization, a popular government, and not a
mere sleazy union between popular governments ; and in it first
emerged into prominent political self-assertion The People of
the United States, in whose name it purported to be framed.

§ 503. The sources, then, from which the Federal Constitution
must seek ratification, were three: first, the existing government
of the Union, embodied in the Congress of the Confederation ;
secondly, the States, as political organizations, represented by
their legislatures; and thirdly, the people of the, United States,
by that Constitution made the inheritors of many of the pow-
ers and responsibilities of the two former. The necessity of
securing a ratification of the new system by the Congress of the
Confederation and by the States is apparent, as well from the
fact that they were required by it to yield, the first all, and the
second much, of its power to that system, as because the 13th
Article of the existing Constitution expressly forbade the mak-
ing of any alteration in its terms, “ unless such alteration should
be agreed to in a Congress of the United States, and be after-
wards confirmed by the legislature of every State.” Submis-
sion to the people of the United States, on the other hand, was
516 TO WHOM SUBMISSION SHOULD BE MADE.

demanded by the consideration that they were really the princi-
pals, in whose name the great act was to be consummated,
whilst all others, the Congress and the States, were subordinates
and accessories,

Accordingly, the Convention of 1787 provided for a submis-
sion which should satisfy all these conditions, in the following
resolution : —

“ Resolved, That the preceding Constitution be laid before
the United States in Congress assembled, and that it is the opin-
ion of this Convention that it should afterwards be submitted
to a Convention of delegates, chosen in each State by the people
thereof, under the recommendation of its ‘egislature, for their
assent and ratification.”

By acting according to this resolution, it is evident that both
the government of the Confederation and those of the States
would express their assent to the new Constitution. The pro-
vision that the people of the several States should elect delegate
Conventions to pass upon it, fulfilled the remaining condition,

‘ since thus, and thus only, could the people of the United States
vote upon the proposed Constitution as a whole, that is, by
voting in groups by States.

§ 504. The next cases deemed exceptional which will be consid-
ered are those of Constitutions submitted by legislatures or Con-
ventions, without constitutional authority, to a class of persons
differing from that of the electors qualified to vote at general
elections. Of these, the largest proportion were cases in which
submission was made to the electors plus certain designated
classes of persons previously not entitled to vote at such elections,
and the residue, of cases in which submission was made to the
electors minus certain classes of persons thus entitled, according
to existing laws.!. To these should be added two cases in which
submission of Constitutions was made to an electorate both in-
creased and diminished, as compared with that qualified by the

1 Of the first description were the Constitutions of Illinois, 1870; Kansas,
1859; Louisiana, 1845 and 1852; Michigan, 1835; New York, 1821; Rhode
Island, November, 1841 and 1842; Texas, 1845; Virginia, 1830 and 1850; and
West Virginia, 1863.

Of the second, was the Maryland Constitution of 1864. To this may be
added the case of the Chicago Ordinance, so-called, submitted to the voters
of Chicago by the Illinois Convention of 1862. See § 508, post.
TO WHOM SUBMISSION SHOULD BE MADE. 517

existing Constitutions. Thus, the Tennessee Cenvention of 1834,
in submitting the Constitution of that year, restricted the suffrage
given by the Constitution of 1796, by inserting the word “ white,”
and enlarged it by no longer requiring a freehold as a qualifica-
tion for an elector, as did the Constitution of 1796. The Arkan-
sas Convention of 1868, on the other hand, in submitting its Con-
stitution, enlarged the previous suffrage by striking out the word
“white,” and restricted it by disfranchising persons who were
electors according to existing laws, for offences connected with
the war of the rebellion. In a few cases, the Conventions, by
schedules or ordinances, required submission to’ be made to the
electors qualified to vote according to both the existing and the
amended Constitutions.! In most of these cases the effect was,
on the whole, doubtless to increase the existing electorate. In
five of them the Convention Acts expressly authorized the Con-
ventions to submit in the manner described,? but in the residue
no such authority was given or pretended.

It is evident that, in these cases, a new principle was intro-
duced, namely, that of submitting, proposed changes in the fun-
damental law to persons other than the body entrusted with the
electoral function under existing laws ; in some cases, to citizens
forming no part of the existing governmental system; in others,
to a part only of the citizens comprised in that system. Such
a submission, especially, when made to persons not forming a
part of the existing electorate, it is conceived, was not only a
novelty but a capital innovation, upon which might hang, for
the States concerned, the most weighty consequences; and, unless
the principles which ought to govern in the enactment of funda-
mental laws are misconceived, it was unconstitutional and in the
highest degree dangerous. In those cases in which the Conven-
tion Acts had authorized such a submission, the respective Con-
ventions, acting upon the authority given, are chargeable with a
less offense against constitutional principle than those which as-
sumed the power without legislative warrant. But though the
authorization of the legislatures was, in terms, ample, it was one
which those bodies, with the single exception of Rhode Island,

1 These were the Constitutions of Louisiana, 1845 and 1852; Texas, 1845;
and Virginia, 1850.

“2 These were the cases of New York, 1821; Rhode Island, 1841 and 1842;
and Virginia, 1830 and 1850.
518 TO WHOM SUBMISSION SHOULD BE MADE.

had very clearly no constitutional power to give. By its charter
of 1668, the General Assembly of that State was authorized * to
make, ordeyne, constitute or repeal . . . such laws, statutes,
orders, and ordinance . . . as to them shall seeme meete, for the
good and wellfare of the sayd company,” — terms, doubtless, cov-
ering the definition of the right of suffrage. In the absence of
such constitutional authority, however, for a legislature, by its
mere action as such, either to enlarge or to diminish the classes
entitled to the right of suffrage as determined by the Constitu-
tion, is to repeal or to modify the fundamental law, and so be-
yond their competence.

§ 505. In neither of the cases in which the body of the citizens
to whom submission was made was increased, without constitu-
tional authority, was the propriety of such action discussed, save
in that of the Virginia Convention of 1829. In that Convention
a powerful opposition was made to it by some of the leading
members, Leigh, Giles, Nicholas, Mason, John Randolph, Taze-
well, and Upshur. A ‘brief synopsis of the arguments advanced
by both sides may be useful, — premising merely that there had
been passed by the General Assembly of Virginia two Acts
relating to that Convention: first, an Act submitting to the
people the question of calling a Convention; and, second, after
the people had, by a large majority, sanctioned such a call, an
Act to call and organize the Convention, in which was inserted
the provision relating to submission before referred to.

§ 506. By the friends of the mode of submission proposed by
the committee of the Convention on that subject, in conformity
with the authorization of the General Assembly, it was argued,
that when an affirmative answer was given by the people to the
simple question propounded by the General Assembly, whether
they desired a Convention or not, it was their intention that the
Assembly should give expression to the public will, as well with
respect to the manner in which the Convention was to proceed
as to the purposes for which it was to be holden; that here,
then, was the authority of the constituent body ; here was the
voice of the principals, to whom the legislature were but agents;
that, acting under that authority, they declared the manner and
purpose of the Convention; that that declaration, however, was
not obligatory, had no sanction, did not bind the freeholders to
send delegates; that, if it contained anything which the free-
TO WHOM SUBMISSION SHOULD BE MADE, 519

holders did not approve, they might have arrested the pro-
ceeding; that they had the same authority to give counter in-
structions as they had to give original instructions; that they
could have gone to the polls again, and commanded the leg-
islature to repeal the Act; but that, as the case was, if the
legislature acted at all in the matter, it had plainly to pre-
scribe the objects of the Convention, and how they were to be
attained ; that the whole subject had been referred to them —
there being no other way to do it—and that the only remedy
was to arrest the matter in pais; that such being the case,
what had been done? that the second Act, when presented to
the freeholders, had been acquiesced in by the election of mem-
bers everywhere, without complaint or remonstrance; that, if -
there was any other mode in which the people could express
their approbation, it might be said the Act was still unratified ;
when, therefore, it was complained, that the Convention was
proceeding to act definitively upon the right of suffrage, by ad-
mitting persons to vote on the new Constitution, without con-
sulting their constituents, the answer was, that it was true, but
that their constituents had authorized them so to do; that it
would not be pretended that their constituents had no such
power, because it had never been supposed that the principal
was necessarily bound to retain the right of ratifying the acts
of his agent; that it night have been unwise in the people to
grant such a power, but that was a question for the constituent
body alone; that, finally, it was too late to assert such a limit-
ation of the power of that body, since the existing Constitution
of the State had never been submitted to the constituent body
for their ratification; that, if that instrument was valid, as the
supreme law, it was because the people had tacitly expressed
their assent to it by electing officers under it, and by acquiescing
in its provisions.

§ 507. On the other hand, by Mr. John Randolph, Nicholas,
and others, it was contended, that, conceding the right of the
General Assembly, by its second Act, to provide for the call and
organization of the Convention, it transcended its power in
authorizing that body to submit the result of its labors to any
body but to the freeholders themselves. Thus, Mr. Randolph
said :— '

“ By whose authority did the legislature pass the .... Act
520 TO WHOM SUBMISSION SHUULD BE MADE.

. under which we are assembled here? By the authority
of their constituents. And who are their constituents? The
freeholders of the Commonwealth. By whose authority do we
sit here? Whence is our power? From our constituents,
And who are our constituents? The same answer must be
given, — the freeholders of the Commonwealth. Now, the free-
holders of the Commonwealth having given their sanction to
the .... Act of the legislature — I refer to the first as well as
the second Act on the subject of a Convention — and deputed
us here to propose amendments to the old Constitution, or the
draft of a new one, to whom, I ask, in the nature of things, did
the freeholders suppose the new Constitution was to be sub-
mitted for adoption or rejection? Must it not have been to that
original authority, to that source and fountain, from whence is
derived all our authority as a Convention ? — I mean to them-
selves? Let me suppose a case. A majority of the freeholders
of Virginia .... being the body politic of Virginia, have con-
sented that a Convention shall assemble for the purpose of
devising amendments to the existing Constitution or proposing
a new Constitution in its. stead. Now, sir, the freeholders of
Virginia have not yet decided — though they have decided that
amendments shall be submitted to them — that, with worse than
the stupidity of Esau, they shall be deprived of their birthright.
The Convention are proposing that the former limits of the right
of suffrage shall be extended, I will say, ad indefinitum. Who is
to decide on this question? Those to whom we propose to ex-
tend that right? Unquestionably, no; no more than the people
of Ohio or Pennsylvania have a right to decide it. They have
no right whatever ; they have not a shadow of right... .. Sir,
it is as plain as any proposition in Euclid, — sir, it is plainer —
it is self-evident — that no other power on earth, save that power
from which this Convention derives all its authority to propose
any Constitution at all, can rightfully pronounce on the validity
of our acts, or decide upon the acceptance or rejection of such
Constitution as we shall make.” !

§ 508. The same principles that govern the foregoing cases, in
which submission was made to the electors plus citizens not
within the electoral circle, will settle that of submission to a
part of the electors, not representing the whole body.

1 Deb. Va. Conv. 1829, pp. 866, 884, 885. See also Speech of Mr. Nicholas,
id. p. 891.
TO WHOM SUBMISSION SHOULD BE MADE. §21

This latter mode was attempted, in a case already referred to,
by the Illinois Convention of 1862.1 In that case, an Ordinance
was passed, entitled ‘* An Ordinance to secure to the citizens of
Chicago and the corporate authorities thereof the right to elect
and appoint their own officers.” By its terms this Ordinance was
to be submitted, on the third day of the ensuing April, to the
legal voters of the city of Chicago, and, if adopted, was to have
the effect of repealing certain statutes obnoxious to a portion of
the inhabitants of said city and vicinity. The Ordinance was,
moreover, incorporated into the Schedule appended to the Consti-
tution, and with it was directed to be submitted to a vote of the
people of the State at an election to be held on the 3d Monday of
June, about two months after the separate vote on the Ordinance
alone. The object designed to be effected by the foregoing pro-
visions is apparent at a glance. It was intended to parcel out the
Constitution, submitting one part of it to the citizens of Chicago,
and the residue to the people of the State at large, and to cause
the former, temporarily at least, to take effect independently of
the latter. The question is, Was it within the competence of
that body to submit its work, or any portion of it, to the citizens
of Chicago, or to any number of the electors less than the whole ?

§ 509. That such a submission is improper becomes evident
when it is considered that it is the sovereign, the political society
or people, as a unit, whose function it is to pass upon the funda-
mental law. The electors of a single district have no power to
speak for that great constituency, for they neither constitute nor
represent it. The voice uttered by them, when they speak by
their ballots, is but an element in the voice of the people, having
no force of itself whatever, but only as it contributes to swell
the chorus which alone is the people’s voice. The voice of the
people is one freighted with a single sentiment or command, not
a multitude of voices, each uttering a sentiment or command of
its own. It is the resultant of all the separate voices of the in-
dividuals constituting the people. When, therefore, the electors
of Chicago voted upon the Ordinance in question, they did not
utter the voice of the people of the State, in whom alone rests
the power of making and unmaking Constitutions, but of a mi-
nute fraction of it, having no authority to represent the whole.
However respectable they were in point of numbers and intelli-

1 See ante, 430-484, 505.
522 TO WHOM SUBMISSION SHOULD BE MADE.

gence, they were as destitute of power to speak officially for the
people of Illinois as the two London tailors, whose petition to
Parliament commenced in these words, ‘‘ We, the people of Eng-
land,” were to speak for the latter.

§ 509 a. Allied to the exceptional cases mentioned in the pre-
ceding sections are those in which submission of Constitutions
has been made to persons qualified to vote, provided they should
take an oath of a more or less stringent character as to their
loyalty to the United States. Such an oath was required by the
supplementary reconstruction Act of Congress of March 23,
1867, regulating the submission of the Constitutions framed in
pursuance of the Act of March 2, 1867.1 After a declaration
by the person proposing to vote, that he had not been disfran-
chised for participation in any rebellion or civil war against the
United States, nor for felony at common law, the Act required
him to swear that he had “never taken an oath as a member of
the Congress of the United States, or as an officer of the United
States, or as a member of a State legislature, or as an execu-
tive or judicial officer of any State, to support the Constitution
of the United States, and afterwards engaged in any insurrection
or rebellion against the United States, or given aid or comfort
to the enemies thereof ;” and finally, to pledge on his part future
obedience to the same.2 Beside these cases there are those of
the Conventions of Maryland, 1864, Missouri, 1865, and New
York, 1867, which, in submitting the Constitutions framed by
them, in like manner required the voters to take an oath of loy-
alty, past and future, to the United States. This oath, which was
in substance the same in all the cases named, in that contained
in the Missouri Constitution, after referring to the second section
thereof, in which was specified a great number of acts of dis-
loyalty and unfriendliness to the United States, continued as
follows: “ That I have never, directly or indirectly, done any of
the acts in said section specified ; that I have always been truly
and loyally on the side of the United States against all enemies

1 For this oath see sect. 1 of the Act of March 23, 1867, 15 U.S. St. at
Large, p. 2.

2 To the list of rebel State Conventions called under that Act, and subject
to its conditions, may be added those of Arkansas, 1864, and Tennessee, 1866,
called by executive proclamations which prescribed a similar oath to the per-
sons authorized to vote on their Constitutions.
TO WHOM SUBMISSION SHOULD BE MADE. §23

thereof, foreign and domestic; that I will bear true faith and
allegiance to the United States,” ete.

So far as the Conventions called under State laws are con-
cerned, it is believed that nothing could justify the imposing of
such a condition which would not justify an act of revolution; ac-
cordingly, it is observable that most of the States in which such
action was taken were at the time either actually in the throes
of revolution, or were striving to recover from the effects there-
of, or to counteract the treasonable designs of those in their
midst who sympathized with revolution in other States. The
means by which alone it was deemed practicable to accomplish
these purposes was the depriving of citizens, by the letter of the
law entitled to vote, of the power to do so, without a judicial
trial or sentence, but by an edict bearing the semblance of a
law. This, clearly, the Conventions in question had no power
todo. Even had the Convention Acts provided that they might
make such a submission, the case would not have been different,
because the legislatures would have had no power to pass such
acts. In these cases, therefore, the action referred to, justifiable
perhaps morally, was in its character revolutionary. Happily
we are not left without decisive authority upon this question.
By the terms of the Missouri Constitution a citizen must have
taken the oath prescribed before he could vote at any election,
serve as an attorney, or as a priest, clergyman, or minister of
any religious denomination, ete. A Catholic priest refused to
take the oath, was indicted, convicted, and sentenced to pay a
fine of $500 for acting in that character without taking the oath.
On appeal to the Supreme Court of Missouri this judgment was
affirmed. The case was taken on a writ of error to the Supreme
Court at Washivgton, by which, at the January term, 1867, the
judgment of the Supreme Court of Missouri was reversed, and
the cause remanded with directions to the Missouri Supreme
Court to enter a judgment reversing that of the Circuit Court
which had originally tried the case.2 The court held that the
oath required by the Missouri Constitution was a test oath un-
exampled in our history, and was a violation of that provision of
the Federal Constitution which provides that “no State shall

1 Article XIII. Missouri Constitution, 1865, sect. 6.
2 See Cummings v. Missouri, 4 Wall. 277. See, also, Ex parte Garland, id.
p. 833.
524. TO WHOM SUBMISSION SHOULD BE MADE.

pass any bill of attainder or ex post facto law;” that the clause
of the Missouri Constitution prescribing the oath and forbidding
the doing of the acts referred to, save on condition of taking the
oath, was a bill of attainder, which the court defined to be a
legislative Act which inflicts punishment without a judicial trial;
and that, being an Act imposing a, punishment, by way of dis-
qualifying from office or from the pursuit of a lawful occupation,
for an act which was not punishable at the time the act was
committed, or imposing additional punishment to that then pre-
scribed, it was an ex post facto law. The court, per Field J.,
say: “ The clauses in the Missouri Constitution which are the
subject of consideration do not in terms define any crimes, or
declare that any punishment shall be inflicted ; but they produce
the same result upon the parties against whom they are directed
as though the crimes were defined and the punishment was de-
clared. They assume that there are persons in Missouri who
are guilty of some of. the acts designated. They would have no
meaning in the Constitution were not such the fact. They are
aimed at past acts, and not future acts. They were intended
especially to operate upon parties who, in some form or manner,
by actions or words, directly or indirectly, had aided or coun-
tenanced the rebellion, or had endeavored to escape the proper
responsibilities or duties of a citizen in time of war; and they
were intended to operate by depriving such persons of the right
to hold certain offices and trusts, and to pursue their ordinary
and regular avocations. This deprivation is punishment. Nor
is it any less so because a way is opened for escape from it by
the expurgatory oath. The framers of the Constitution of Mis-
souri knew at the time that whole classes of individuals would
be unable to take the oath prescribed. To them there is no
escape provided; to them the deprivation was intended to be
and is absolute and perpetual. To make the enjoyment of a
right dependent upon an impossible condition is equivalent to an
absolute denial of the right under any condition, and such denial,
enforced for a past act, is nothing less than punishment imposed
for that act. It is a misapplication of terms to call it anything
else.

“‘ Now some of the acts to which the expurgatory oath is di-
rected were not offences at the time they were committed. It was
no offence against any law to enter or leave the State of Missouri
TO WHOM SUBMISSION SHOULD BE MADE. 625

for the purpose of avoiding enrollment or draft in the military
service of the United States, however much the evasion of such
service might be the subject of moral censure. Clauses which
prescribe a penalty for an act of this nature are within the terms
of the definition of an ex post facto law, —‘ they impose a pun-
ishment for an act not punishable at the time it was committed.’

“Some of the acts at which the oath is directed constituted
high offences at the time they were committed, to which, upon
conviction, fine and imprisonment or other- heavy penalties were
attached. The clauses which provide a further penalty for these
acts are also within the definition of an ex post facto law, —
‘they impose additional punishment to that prescribed when the
act was committed.’

“And this is not all. The clauses in question subvert the
presumptions of innocence, and alter the rules of evidence which
heretofore, under the universally recognized principles of the com-
mon law, have been supposed to be fundamental and unchange-
able. They assume that the parties are guilty; they call upon
the parties to establish their innocence ; and they declare that
such innocence can be shown only in one way, — by an inquisition,
in the form of an expurgatory oath, into the consciences of the
parties.” 1

The reasoning of the court in this case is equally applicable
to the oath prescribed in the other State Constitutions referred
to, excepting, perhaps, those framed by the reconstruction Con-
ventions. The action of Congress in calling those bodies, irreg-
ular at best,? was hardly rendered more so by a provision for
submitting their work to the people, in a manner demanded by
political necessity, as calculated to secure the supremacy of those
loyal to the Union.

§ 509 8. In the provisions of some of the States for submitting
Constitutions framed during or just after the late civil war, they
were to be submitted to the qualified voters of the State, but
with the proviso that should persons otherwise entitled to vote at
elections be absent from the State, as soldiers in the armies
of the United States, their votes might be received at the points
where the armies were encamped, and apparatus was provided
for taking such votes, and reporting them to the State authori-

1 Cummings v. Missouri, ubi sup.
2 See ante, § 253.
526 TO WHOM SUBMISSION SHOULD BE MADE.

ties at home. Such provisions were adopted in the Constitutions
of Nevada and Maryland, 1864, Missouri, 1865, and Tennessee,
1866.1 Were a legislature or a Convention to adopt such a law
or ordinance at the present time, when arma silent inter leges, not
a voice would be raised in favor of the constitutional competence
of either body to tuke such action. But, under the circumstances
in which the States named were then laboring, —a civil war
still raging, or, though nominally ended, not having as yet given
place to a stable peace, or been followed by a reconstruction of
the shattered institutions of the rebel States, — much may be
pardoned to the errors of men struggling to maintain the sub-
stantial rights of the people, imperilled by the return to their
homes of multitudes of citizens fresh from armed conflict to sub-
vert those rights. But while this may morally furnish an ex-
cuse for the Acts or Ordinances in question, it forms legally no
justification for them whatever. So clear is this that it may be
confidently predicted that the spectacle will never again be wit-
nessed of commissioners from New England gathering in the far
Southwest the votes of New England men domiciled or commo-
rant there. The Constitutions of the States, expressly or by clear
implication, all require, as a condition of the right to vote at an
election therein, an actual residence within their respective boun-
daries. A law permitting the reception of votes of supposed elec-
tors beyond those boundaries, without inquiry whether the ani-
mus revertendi existed or not, assumes that animus as a fact,
contrary, in a great number of cases, to the real intention of the
voters. It is well known that, at the close of the war, many
Union soldiers remained at the South when their regiments were
disbanded there. To reckon cuch persons as still resident citi-
zens of the Northern States in which they enlisted was to violate
the only rational presumption in the case,— that they intended

1 A similar provision was contained in the Act calling the New York Con-
vention of 1867. See Act of March 29, 1867, secs. 2and 5. In like manner,
the enabling Act of Congress, under which the Nevada Convention of 1864
assembled, gave the Convention express authority to receive the votes of sol-
diers in the Federal armies, within or without the said Territory, upon the
question of the adoption of the Constitution. As no submission of the Con-
stitution framed by the Convention to the people of the Territory was strictly
necessary, but only to the Congress, the irregularity of taking the soldiers’
votes was of less importance. It was enough that the Convention should adopt
and Congress approve. See § 495, ante.
NATURE OF THE ACT OF THE PEOPLE, ETC. 527

from the first what they finally did, namely, to take up their
permanent residence at the South. It should be added, however,
that the power of a Convention to provide for receiving the votes
of soldiers on foreign service, in future elections, to occur after
the adoption of the Constitution providing therefor, is not now
denied, but only the power. of such a body, without constitutional
authority, to submit the Constitution, for adoption or rejection,
to voters residing abroad, though in the public service of the
country.

§510. III. We are now to determine the nature of the act
performed by the persons or body to whom submission is made.

A convenient mode of conducting this inquiry will be to pass
in review the various departments of a government, and to
select from amongst them that one whose acts and functions
correspond with those of the people in the act of passing upon
a fundamental law.

The act in question must, I think, be comprised within one
of the three classes of acts known as legislative, executive, and
judicial. Let us see to which it belongs, commencing with the
last.

(a). When the people pass upon a Constitution, the act done
by them is so palpably not of a judicial character, that I spend
no time in comparing or contrasting it with the exercise of
judicial power.

(b). Understanding by the term executive acts, such as are
usually performed by our executive magistrates, there are of
such acts three separate classes: 1, administrative acts, relating
to the carrying of laws into practical effect; 2, acts involving
the exercise of the official negative, or veto; and, 3, acts of
authentication, such as the signing of bills, &c. Does the act
in question belong to either of these classes ?

1. It cannot be pretended that the act of the people, in the
case supposed, is an act of administration, which is possible
only when the law to which it relates has been passed and ap-
proved. The purpose of an administrative act is to give to a
law, already complete as such, the practical operation, without
which it would remain a dead letter in the statute book. This
is equally true of municipal laws, strictly so called, and of or-
ganic or fundamental laws.

§511. 2. Though the act of the people we are considering bears
528 NATURE OF THE ACT OF THE PEOPLE

some resemblance to the exercise of the negative or veto power,
still I am satisfied it is radically different from it; and the result
is the same, whether it be compared with the.true veto, as exer-
cised by the Roman Tribunes, by the individual members of the
Polish Diets, or by the English monarchs, or with the qualified
veto, more properly called the negative, familiar to us in Amer-
ica. The veto proper was an absolute interdict upon the
measure proposed, and it was nothing more. It never ratified
or sanctioned, but always forbade. It consequently made of
every functionary intrusted with the power a coérdinate depart-
ment with the legislature in the matter of rejecting, though not
in that of confirming, laws. The negative of an American
President or Governor is somewhat similar in its nature, but is
much less extensive in its effects. It is, like that, a mere inter-
dict; but it is an interdict that is only provisional, having the
effect simply of compelling a reconsideration of the measure to
which it has been applied, and, in the vote to be taken upon it,
of enhancing, as if by a temporary amendment to the Constitu-
tion, the majority necessary to carry it. In most of the State
Constitutions, as in that of the United States, it is provided, that
a bill “returned with the objections” of the Executive may,
notwithstanding, become a law, if, on a reconsideration, it be
passed by a two-thirds vote in both houses.

That a vote of the people upon a Constitution is not in char-
acter like either of these executive acts, is perceivable at a
glance. The vote of the people may be in the negative, or it
may be in the affirmative ; and in either event it is absolute.

Again: both the veto proper and the negative of an Amer-
ican executive officer, operate only upon a bill passed through
all the forms of a law, by the two houses of the legislature,
and submitted to him for his official sanction. It is impossible
that a measure not thus originating should be the subject of
the veto or of the negative. With a Constitution submitted to
a vote of the people, it is different. A Convention might reject
a particular form of a Constitution, and adopt and submit to
the people another; but if the legislature were, in the mean
time, before the vote upon it, to submit for the consideration of
the people the rejected Constitution, it might be competent for
them, at the same election, to adopt the latter and reject. the
former.
IN PASSING UPON A CONSTITUTION. 529

§512, 3. For similar reasons, the act of the people is not to
be compared with the executive act of giving assent to bills by
the formality of signing them. The latter is an act applicable
only to bills passed by the legislative branch, and is only used
to affirm, and not to negative, such bills.

§ 513. (c). The act of the people in adopting or rejecting a
Constitution, on the other hand, is clearly legislative in its char-
acter. It either gives force to what comes to them as a mere
proposition, or it rejects that proposition absolutely and defini-
tively. A power thus to impart vitality to law, where before
there was none, is a power of legislation. Conceding that the
people have power to enact fundamental laws, all becomes sim-
ple and intelligible. Under its general power to enact a Consti-
tution, the people may perhaps authorize a Convention to exer-
cise the same power, without submitting it for ratification — that
is, for what it may deem sufficient reasons, it may delegate that
power to a Convention ;! or, grasping more firmly the reins of
power, and consulting more the safety of the Commonwealth, it
may itself exercise its legislative function, rejecting or adopting
a part or all of what is submitted, as it may think advisable.

Nor is the character, thus attributed to the people, of an ex-
traordinary legislature, so far as concerns the fundamental law,
inconsistent with their evident inability to mature laws by dis-
cussion, as in legislative assemblies. The same inability in-
heres to some extent in our legislatures. Without committees
to inquire and report, to draft and mould into form fit for public
action, bills for Acts, legislation as known amongst us would be
well-nigh impracticable. As a body, a legislature is too numer-
ous and unwieldy for the function of digesting such bills. The
difficulty inherent in legislation by the people, though somewhat
greater by reason of their greater number and dispersion, is of
precisely the same character. The people, acting as legislators,

1 This, perhaps, needs explanation. As was observed a few pages back, it is
perhaps too late to deny to the people this power of delegation. It has been
too often exercised. But the right of a legislature to authorize a Convention to
exercise the power in question is, on principle, more than doubtful. [t cer-
tainly, in my judgment, does not exist. The most that can be conceded — and
that rather on the authority of precedents than otherwise — is, that a legislature
might pass a law providing for definitive action by a Convention, and if that
law were submitted to the people so as fairly to draw out an expression of the
public will on the point, it would be liable to no serious objection.
5380 HOW CONSTITUTIONS SHOULD BE SUBMITTED.

need the antecedent ministry of intelligent and skilful commit-
tees to gather and to embody in fitting forms their collective
sense. Our Conventions are simply committees of such a kind,
And if we look closely into the principles of legislation, the fact
that the people never legislate in a single body, but in groups,
assembled in separate districts, not to debate, but to vote upon,
the measures proposed to them, does not constitute a radical
difference between them and a legislature. The latter might
enact the statute law in the same way; and to those familiar
with the practices of such bodies, it may be doubtful whether
legislation so conducted would not be more honest, if not more
intelligent, than it is now.

It seems clear, then, that the act of the people in passing
upon a Constitution is a legislative one, though, on account of
the exceptional circumstances under which it is performed, an
act unique in character.

§514. IV. I pass now to consider briefly the manner in
which Constitutions should be submitted.

In determining the manner of submitting Constitutions to
the people, two things should be kept prominently and con-
stantly in view: first, the obtaining, completely and as far as

1 That the people act, in the case supposed, in a legislative capacity, has
been repeatedly intimated by high authority. See the case of The People ».
Collins, 8 Mich. R. 348, per Douglass, J.; 2 Am. Law Reg. p 591, same case.

Mr. John Austin, in his profound work, The Province of Jurisprudence De-
termined, says, respecting a single State, what is true of all the States in the
Union: —" In the State of New York, the ordinary legislature of the State is
controlled by an extraordinary legislature. .... The body of citizens appoint-
ing the ordinary legislature forms an extraordinary and ulterior legislature, by
which the Constitution of the State was directly established... . . That such
an extraordinary and ulterior legislature is a good or useful institution, I pre-
tend not to affirm. I merely affirm that the institution is possible, and that, in
one political society, the institution actually obtains.” — The Prov. of Jurisp.
Determined, Vol. I. pp. 205, 206.

An anonymous writer in the American Law Register, published at Philadel-
phia, has attempted to cast ridicule upon this observation of Mr. Austin, as an
instance of the ignorance prevailing among public men and writers abroad in
regard to our institutions. But I am satisfied the writer referred to had not the
slightest. conception of Mr. Austin’s meaning. We must not be the slaves of
words. In substance, the electors, in the act of ratifying or rejecting a Consti-
tution, are a legislature, — ‘‘an ulterior legislature,” — as compared with the
General Assembly. See Am. Law Reg., Vol. 1V., New Series, p. 12.
HOW CONSTITUTIONS SHOULD BE SUBMITTED. 531

possible in detail, of the public will; and, secondly, convenience,
— the latter, however, being a consideration of inferior impor-
tance, when compared with the former. The general rule, un-
doubtedly should be, that every clause of both Constitution and
Bill of Rights must be submitted to the people, those only ex-
cepted which are to take effect in the act of making the sub-
mission itself, No other rule can be adopted with safety ; for if
it were admitted that any other exceptions whatever could be
made, and that provisions of minor importance might be re-
served from the people, to be put in force by the Convention
directly, the door would be thrown open to all manner of
abuses. When is a constitutional provision of minor impor-
tance? The same provision, from a difference of circumstances,
may be of vast moment in one, and of no moment at all in
another, Constitution. Obsta principiis is, in such cases, the
only safe maxim. If it be recognized as the duty of a Conven-
tion to submit its work to the people, either on the ground that
the legislature has so directed, or that such a course is intrinsi-
cally proper, because its resolutions are recommendatory only,
where can it find the right to discriminate between what should
and what need not be submitted ?— to draw the line beyond
which it is within its own discretion to obey or to disobey the
imperative provisions of law ?

§ 515. A Constitution may be wholly new, or it may be an
old one revised by altering or adding to its material provisions.
It may, also, in a hundred separate subdivisions, contain but a
fourth of that number of distinct topics, or each subdivision
may be substantive and independent. It is obvious that the
submitting body, weighing accurately the public sense, may
determine whether the whole Constitution must stand or fall as
a unit, or whether some parts, being adopted and going into
effect without the rest, the new system would be adequate to
the exigencies of the state, and may submit it as a whole or in
parts accordingly. But it is perfectly clear that every distinct
proposition, not vital to the scheme as a whole, or to some other
material part, ought to be separately submitted,’ If it were not

1 In November, 1820, a bill for an Act calling a Convention was passed by
both houses of the New York Legislature, but was returned by the Council of
Revision with objections, one of which was, that the bill provided for submitting
the Constitution to the people in mass, and not in separate sections according to
532 HOW CONSTITUTIONS SHOULD BE SUBMITTED.

nearly impracticable, the best mode would be to submit every
distinct proposition separately, so that each voter could vote yea
or nay upon it, regardless of anything but its absolute propri-
ety. In many cases, however, such a mode could not be safely
adopted, since different measures might have been so adjusted
to each other, that by the absence of either the balance of the
system would be disturbed! Such associated provisions ought,
therefore, to be submitted in conjunction. On the other hand,
where no material changes have been made in the existing Con-
stitution, or such only as had been unequivocally demanded by
the public voice, the more convenient and compendious mode
of a submission in mass may, without material objection, be
adopted. Every case, then, must, to a considerable extent,
stand upon its own foundation. The problem is — Given one
or more proposed changes of the fundamental law — to. reconcile
the indispensable requisite —a bond fide submission of them to
the people, so as to ascertain their will in respect to each of
them — with a reasonable degree of convenience. Submission
must be so made, moreover, that the general scheme, if adopted,
shall not limp from lack of a necessary member, — it being ob-
viously better to be relegated to an old Constitution, which,
though inadequate and partly obsolete, perhaps, is yet fully and
consistently developed, than to be governed by a new one so
mutilated, in the act of birth, as to lack necessary powers.

the various subjects embraced. The Council, stating this ground of objection,
say: it is objected to, “ Because the bill contemplates an amended Constitution
to be submitted to the people, to be adopted or rejected in toto, without prescrib-
ing any mode by which a discrimination may be made between such provisions
as shall be deemed salutary, and such as shall be disapproved by the judg-
ment of the people. If the people are competent to pass upon the entire
amendments, of which there can be no doubt, they are equally competent to
adopt such of them as they approve, and to reject such as they disapprove ; and
this undoubted right of the people is the more important, if the Convention is
to’ be called in the first instance without a previous consultation of the pure and
original source of all legitimate authority.” See post, Appendix E.

1 On this subject, Daniel Webster, in the Massachusetts Convention of 1820,
said: “ When the Constitution of New Hampshire” (meaning that of 1783)
“‘ was revised,” (in 1792,) ‘the Convention submitted the amendments to the
people for their adoption separately, and it was found at the adjourned session
of the Convention that some were adopted and some rejected, so as to make
incongruous those which were adopted. The Convention then pursued the
course .... of uniting in one article all that were necessarily connected, and
no further difficulties occurred.” — Deb. Mass. Conv. of 1820, p. 224.
HOW CONSTITUTIONS SHOULD BE SUBMITTED. 533

§ 516. It must be admitted, that but little attention has been
paid to the distinctions here indicated. In far the larger propor-
tion of the cases in which submission has been made, it has
been of the instruments entire. This was naturally true, in
general, of all such as were first Constitutions of their respective
States.

The earliest departure from this mode was in Massachusetts,
in 1780, in which the Frame of Government and Bill of Rights
were both submitted in such a way as to enable the people to
reject the whole or any part of either, — a course followed by
all the subsequent Conventions in that State, though the Act
calling the Convention of 1820 left it to the discretion of that
body to determine the mode in which the submission should be
made. The example set by Massachusetts in 1780 was fol-
lowed by New Hampshire in 1791, and in the subsequent revis-
ion in 1850. The Acts calling the New York Conventions of
1821 and 1846 required those bodies to submit their proposed
amendments to the people, together or in distinct propositions,
as to them should seem expedient. Accordingly, the Conven-
tion of 1821 provided that they should be submitted “ together,
and not in distinct parts;” and that of 1846, expressing the
opinion that the amendments it proposed could not be prepared
so as to be voted on separately, submitted them en masse ex-
cepting one, that relating to “ equal suffrage to colored persons,”
which was submitted as a separate article. Under a similar
discretion, the Pennsylvania Convention of 1837 submitted its
amendments en masse. The Illinois Conventions of 1847 and
1862, and the Oregon Convention of 1857, pursued a course
similar to that of the New York Convention of 1846, submit-
ting the great body of their respective Constitutions entire, but
a few articles relating to slavery, to the immigration of colored
persons, the public debt, and other subjects considered of doubt-
ful policy, separately. The Illinois Convention of 1847, though
it submitted the bulk of its articles in the manner stated above,
withheld one, relating to “commons,” altogether from the con-
sideration of the people, therein proceeding in direct violation
of the Act under which it assembled, which expressly required
it to submit its amendments to the people.'

1 Some Constitutions contain an excellent provision requiring that, when two
or more amendments shall be submitted at the same time, they shall be so sub-
5384 HOW CONSTITUTIONS SHOULD BE SUBMITTED.

§ 517. The subject of the proper mode of submitting Consti-
tutions to the people, received an elaborate discussion in the
case, now celebrated in our political annals, of the so-called
Lecompton Constitution, framed for the State of Kansas. Con-
cocted in a time of crisis by the partisans of slavery, by whom
an attempt was made to force it upon that State against the
wishes of the majority of its inbabitants, mainly emigrants from
the free States, and desirous of establishing free state insti-
tutions therein, that instrament had the singular fate to be
twice, and a part of it three times, submitted to the people, by
different bodies, and though once declared adopted, to have
never in fact been established as the Constitution of that State.
A brief sketch of the history of this case will not be without
interest, and it will, it is believed, throw light upon the general
doctrine of submission of Constitutions we are considering.

On the 5th of September, 1857, there assembled at Lecomp-
ton, Kansas, at the call of the Territorial Legislature, but with-
out an enabling Act of Congress, a Convention, by which the
Constitution referred to was framed. The body was composed
in the main of delegates elected in the interest of, if not by, the
pro-slavery party in that and the neighboring State of Missouri,
the free-state men of Kansas abstaining from the elections, in
the expectation that whatever Constitution the Convention
should agree upon would be submitted to the electors of the
Territory. The Territorial Governor had, in fact, promised sol-
emnly, in the name of the government which he represented,
that the Constitution it should frame should be submitted to a
fair vote of the people. This promise, however, was not re-
deemed; so far from it, the Convention enacted the farce of
submitting it to the people, but did it in such a way as to com-
pel them to vote for the Constitution or abstain from voting
altogether — the vote, to be taken on the 21st of the ensuing
December, being required to be, “ For the Constitution with
slavery,” or “ For the Constitution without slavery.”
mitted as to enable the electors to vote upon each amendment separately.
Constitutions of Alabama, 1875; Arkansas, 1868 and 1875; California, 1879;
Indiana, 1851; Iowa, 1846 and 1857; Kansas, 1855, 1858, and 1859; Louisi-
ana, 1845, 1852, 1864, and 1868; Maryland, 1867; Nebraska, 1875; New
Jersey, 1844; Ohio, 1851; Oregon, 1857; Pennsylvania, 1838 and 1873;
South Carolina, 1868; West Virginia, 1863 and 1872; and Wisconsin, 1848.

1 See also §§ 415-418, anc.
HOW CONSTITUTIONS SHOULD BE SUBMITTED. 5385

in the mean time, a new Territorial election being held, and
resulting in giving to the Free-State party a majority in the Ter-
ritorial legislature, that body, on the 17th of December — about
a week before the vote ordered by the Convention — passed
an Act fairly submitting the Constitution as a whole, except the
slavery clause, which was submitted as a separate article, to the
qualified electors, at an election to be held on the 4th of Janu-
ary, 1858. Both these elections were held at the times fixed;
that ordered by the Convention resulting in the adoption of the
Constitution with slavery by a vote of 6266 to 567; and that
held under the Territorial Act, in the rejection of the entire
Constitution by a vote of 1388 “for the Constitution with sla-
very,” 24 “for the Constitution without slavery,” and 10,226
“against the Constitution.” Here, then, was a Constitution,
adopted in the main by six thousand majority at one election,
and at another, held two weeks later, rejected in toto by over
ten thousand majority. Evidently, such results could only have
been produced by fraud and management upon one side or the
other. Each party claimed that the election, whose result was
favorable to its own views, was the only valid one, but, inas-
much as the pro slavery party constituted the majority of the
Convention, the Constitution was, under its direction and by its
officers, forwarded to Congress as the expression of the will of
the inhabitants of the Territory, with a petition for admission
into the Union as a State under it.

§ 518. Accordingly, the Senate Committee on Territories
reported a bill for that purpose, upon which arose a very excited
and protracted debate. This bill simply provided for the ad-
mission of the Territory into the Union upon the usual condi-
tions relating to the public lands, though in its preamble was
inserted a recital recognizing the validity of the Lecompton
Constitution. The opponents of the bill resisted it mainly on
the ground that the Constitution had not been submitted to the
inhabitants of the Territory bond fide, but in such a manner that
no elector could vote against the provision establishing slavery,
without voting at the same time for the residue of the Consti-
tution asa whole. That instrument, it was said, contained, or
might contain, provisions as distasteful to the people as that
relating to slavery, and yet, in order to vote against the latter,
they must vote in favor of the former, —a dilemma into which
5386 HOW CONSTITUTIONS SHOULD BE SUBMITTED.

no Convention was justified in bringing those for whom they
were pretending to act. Notwithstanding all these objections,
the bill was carried through the Senate by a vote of 33 to 26.
This bill being sent to the House, there was moved as a substi-
tute for it another, providing for the admission of Kansas into
the Union, but containing a clause requiring the Constitution
to be again submitted to the people, and authorizing the inhabi-
tants, in case of its rejection, to form for themselves a Constitu-
tion and State government. The first section, after the usual
words importing the admission of the State into the Union, con-
tained the following significant recital: “ But, inasmuch as it is
greatly disputed whether the Constitution, framed at Lecomp-
ton on the 7th day of November last, and now pending before
Congress, was fairly made, or expressed the will of the people
of Kansas, this admission of her into the Union as a State is
here declared to be upon this fundamental condition precedent,
namely: that the said constitutional instrument shall be first
submitted to a vote of the people of Kansas, and assented to
by them, or a majority of the voters, at an election to be held
for the purpose,” &c., &c. Then followed a specification of the
mode of taking the vote, by ballots “for the Constitution,” or
“against the Constitution,” and careful provisions for determin-
ing the qualifications of voters and for insuring an honest and
complete vote.

The vote in the House on this substitute for the Senate bill
was 120 to 112.

§ 519. The two houses being thus at variance, and refusing
to agree, a committee of conference was appointed in the House
by the casting vote of the Speaker, by which a bill was reported
commonly known as the “ English Bill,” which was accepted by
both houses April 30th, 1858, and became a law.

Although, as we have seen, strict principle did not require the
submission of the Constitution, by Congress, to the inhabitants
of the Territory at all, yet, as that body undertook, by the Eng-
lish Bill, to make such submission, it would be expected some
mode would be adopted that should be fair and adequate.
Such, however, was not the fact. After reciting the framing of
the Constitution, and that the Ordinance accompanying it, con-
taining propositions in behalf of the Territory for the accept-
ance of Congress, was unacceptable to the latter, the Act pro-
HOW CONSTITUTIONS SHOULD BE SUBMITTED. 537

vided that the State of Kansas should be admitted into the
Union under said Constitution, when its people should have
voted to accept the proposition thereby made, which was two-
fold, first, donating to the new State, with great liberality, pub-
lic lands, salt-springs, and the proceeds of the sales of the pub-
lic domain within its limits, for various public purposes; and,
secondly, limiting, in the terms usual in such Acts, the power
of the State to interfere with the primary disposal of the lands
of the United States, or.to tax said lands or the property of
the United States. The Act then provided, that at said elec-
tion the voting should be by ballot, and by indorsing on his
ballot, as each voter might be pleased, “ Proposition accepted,”
or “ Proposition rejected ;” and that, if a majority of the votes
should be for “ Proposition accepted,’ the President of the
United States should by proclamation announce the same, and
the State thereupon, without further action of Congress, should
become one of the States of the Union. But, should a major-
ity of the votes cast be for “ Proposition rejected,” the Act
further provided, that it should be deemed and held, that the
people of Kansas did not desire admission into the Union with
said Constitution, under the conditions set forth in said proposi-
tion, in which event they were authorized to form for themselves
a Constitution and State government, whenever, and noi before,
it should be ascertained by a census duly and legally taken, that
the population of said Territory equalled or exceeded the ratio
of representation required for a member of the House of Repre-
sentatives of the Congress of the United States, which, at that
time, was one representative to 93,340 inhabitants.

The mode of submission thus skilfully devised was objec-
tionable on three grounds: first, it was a submission in solido
of an entire Constitution, generally acceptable, perhaps, but
containing one or more clauses which were obnoxious to a large,
if not to the major, part of the State. But, lest hostility to the
clause establishing slavery should lead to the rejection of the
whole instrument, and thus the opportunity be lost of bringing
into the Union another slave State, there were provided, sec-
ondly, a bribe, to induce a favorable vote— the proposition
above described containing unusually liberal donations of pub-
lic lands to the State, in case it should accept the whole scheme
—a proffer morally as nefarious as that made by Satan to the
538 HOW CONSTITUTIONS SHOULD BE SUBMITTED.

Saviour of mankind, of all the kingdoms of this world, if He
would bow down and worship him; and, thirdly, a threat, to
deter from its rejection, involved in that provision of the Act,
which authorized the Territory to frame another Constitution
only when its population should be at least 93,340, — a condi-
tion which, if enforced, might exclude it from the Union for years.

§ 520. It is needless to say, that the inhabitants of Kansas
contemned both the bribe and the threat, and rejected the Con-
stitution finally, by an overwhelming vote.

In reviewing these proceedings, the wonder is, that Congress,
having the power to admit the Territory, without submitting to
its inhabitants at all, the Constitution, certified to it by a Con-
vention of its people, as having been regularly adopted, should
have thought it worth while to commit a piece of injustice so
elaborate and so useless, as was involved in this act. But that
it did so, indicates unmistakably, that the true principles of
Constitution-making, one of which is, that submission should
be made of every proposition to change or to establish a funda-
mental law, to those to be affected thereby, were well understood,
and that those principles, upon an equitable view, were thought
to cover as well the case of Territories, notwithstanding their
condition of pupilage or subjection, as of States exercising the
rights of sovereignty. The reason for the course taken by Con-
gress was that, under the inspiration of pro-slavery fanaticism,
it desired, while it seemed justly and fairly to apply those prin-
ciples, in reality to trample them in the dust, in order that slavery
might be planted on the soil of Kansas. Happily, however, “the
engineer was hoist with his own petard” — a measure intended
to fasten slavery upon the Union forever, was the step too far,
which, inaugurating a bloody revolution, resulted in giving the
death-blow to that institution itself. The lesson thus learned,
at such infinite cost, exemplifying the maxim that “honesty is
the best policy,” is not likely to be soon forgotten. It has already
been productive of good; for, since the discussions upon the ad-
mission of Kansas into the Union, all enabling Acts contain
minute provisions for taking fairly the sense of the inhabitants
of the territories upon the Constitutions thereby authorized to
be framed.}

1 A novel and very objectionable mode of ascertaining the result of a sub-
mission of a Constitution to the people was resorted to by the Arkansas Con-
HOW CONSTITUTIONS SHOULD BE SUBMITTED. 5389

§ 520 a. It has been made a question whether, if a Conven-
tion, disobeying the Act calling it, either in relation to the mode
of its organization or to the nature or scope of the proposals it
should make, should submit the same to the people, and the peo-
ple should ratify them, they would or would not be valid as a
Constitution or as a part thereof? If the question were to be
considered as a naked one of constitutional law, irrespective of
all circumstances of place or time, it would seem that the answer
should be in the negative. But, to receive that answer, it must
be raised at once, and be decided without reference to any act
of validation of the supposed work of the Convention by acqui-
escence on the part of the sovereign. As the question, accord-
ingly, has received conflicting determinations, it is conceived that
that fact is due to the overlooking, in some cases, of the curative
effect of acquiescence of the sovereign upon constitutional pro-
visions otherwise void. Thus, in Pennsylvania, as we have seen,!
the highest court of the State pronounced valid amendments
proposed in direct disobedience to the Convention Act, on the
ground that, although the Convention had no power to propose
them, they had been adopted and acquiesced in by the people of
the State.2 The same question was discussed incidentally in the
North Carolina Convention of 1835. The Act calling the Con-
vention had required its members, before they could become or-
ganized as a Convention, to take a certain oath strictly limiting
the number and scope of the amendments they might recom-
mend to the people. Some of the members were reluctant to
take the oath, and it was asked by Mr. Speight whether, if the
Convention should agree to make amendments to the Constitu-

vention of 1868, and that was to entrust the ascertainment of the result to a
commission of three persons, not holding any official relation to the govern-
ment of the State, with very extensive powers, executive and judicial. Sched-
ule, secs. 4-9, Ark. Const. 1868. It gave the commissioners power to inquire
into the fairness or validity of the voting upon the Constitution, to count the
votes, to reject all that were fraudulent or illegal; and when it appeared “that
fraud, fear, violence, improper influence, or restraint were used. or persons
were prevented or intimidated from voting, to take such steps, cither by set-
ling aside the election and ordering a new one, or rejecting votes, or correcting
the result in any county or precinct, as might in such cases be just and equi-
table.’7 See. 8, Schedule. With such machinery, any party or faction, how-
ever small, could adopt any Constitution, however objectionable.

1 See § 409 c, ante.”

? Wood’s Appeal, 75 Penn. St. 71.
540 HOW CONSTITUTIONS SHOULD BE SUBMITTED.

tion different from those suggested in the Act of Assembly, and
should submit them to the people, and they should agree to
them, they would not be valid? and he referred to what had
been done by the Convention to revise the old Confederation,
that, though the delegates were appointed only to revise the old
Confederation, they transcended their limits, and actually formed
an entire new Constitution, and that Constitution was sanctioned
by the people! On the other hand, Mr. Gaston said: —

“He would not pursue the inquiry which had been entered
upon by the gentleman from Greene” (Mr. Speight) “ as to the
effect of our proceedings should we throw off the limitations im-
posed on us, form a Constitution, submit it to the people, and
it should be approved by a majority of their suffrages. This
would present a state of things never yet witnessed in this coun-
try. No doubt the people, as a collective body, assembled in
Convention for that purpose, can adopt a Constitution and make
it theirs, by whomsoever and whensoever it were drafted. But
they do this acting collectively, and not as individuals voting at
the polls. It was true, as stated by that gentleman, that the
Convention which framed the Federal Constitution exceeded
their powers, and therefore the Constitution as framed by
them was regarded only as a proposition. It is said to have been
submitted to the people in the several States, and, when ratified
by them, to have become a Constitution. But how was it sub-
mitted to the people? They were not called to vote upon it as
individuals. The proposed Constitution was presented to the
then Congress of the United States, and by the Congress to the
State legislatures. Conventions of the people were then called
in each State to deliberate on the adoption or rejection of it.
Adopted by the people in convention, it became a Constitution.” ?

§ 520 6. The Pennsylvania case well illustrates both princi.
ples stated in the preceding section. An Ordinance of the Con-
vention had been passed in direct disobedience to the Convention
Act as to the mode of conducting the election for the adoption or
rejection of the Constitution in the city of Philadelphia. This
Ordinance, before it had been approved by the people, or validated

1 Deb. N. C. Conv. 1835, pp. 5, 6.

2 Deb. N. C. Conv. 1835, pp. 7, 8. Compare remarks of Hon. Joel Parker
in the Massachusetts Convention of 1853. Deb. Mass. Conv. 1853, Vol. L. p.
156.
HOW CONSTITUTIONS SHOULD BE SUBMITTED. 541

by any action of the political power of the State, was brought be-
fore the’ Supreme Court, and pronounced void, and the commis-
sioners named to conduct the election were restrained by injunc-
tion from doing so. The same Convention had also proposed an
amendment to the Bill of Rights, in violation of the Convention
Act, which forbade any such amendment. This amendment the
people ratified, with the general acquiescence of the commu-
nity; and thereafter the question of its validity was brought be-
fore the Supreme Court, and its validity affirmed, on the ground
that the political power had spoken, and that the judiciary could
but follow and sustain its acts, even though they should amount
to revolution. Doubtless, the same judgment that was pro-
nounced in regard to the election Ordinance, by the Pennsyl-
vania court, would have been rendered by the Supreme Court of
North Carolina, in the case imagined by Mr. Speight, could the
question of the validity of the supposed action of the Convention.
have been brought before that tribunal as it stood when the dis-
cussion arose, and before such aétion had received the sanction
of the people or of the political power of the State.

It will be inferred from the foregoing that the acquiesence
which may give validity to an excessive exercise of power by a
Conventiun must involve more than a mere affirmative vote of
the qualified electors. These have no power to authorize or to
condone a breach of constitutional duty ; they can neither make
nor repeal nor suspend the operation of a law. They are not
“the people” in any case where they act without law or beyond
the law. The acquiescence which ratifies or validates an act
otherwise void is that of no single department or functionary,
save as that department or functionary is supported by the con-
senting judgment of the sovereign whose voice it speaks. It is
the acquiescence of the sovereign community, clearly manifest
and continuous, that is alone effectual. As to the particular
acts which are to manifest that judgment, or the length of time
over which they should extend, no precise rule can be given. The
most that can be said is, that when the sovereign body has
clearly moved, and that movement gives evidence of irresistible
force and of continuance, the various systeins of officials, consti-
tuting the existing government, must heed and bow to it, or go

1 Wells v. Bain, 75 Pa. St. R. 39; Wood’s Appeal, Id. p. 59; Luther v.
Borden, 7 How. U.S. R. 1.
542 PROMULGATION OF CONSTITUTIONS.

down before it. Acquiescence, though silent and scarcely visi-
ble, is such a movement. ,

§ 521. V. It now remains only to consider briefly the crown-
ing act by which changes in the fundamental law are consum-
mated, or the results of submission certified and announced,
The necessity of some such act, which should be authentic and
final, is apparent, when it is considered that, without it, painful
embarrassments might arise, in the minds of both governors and
governed, as to their powers or duties in particular cases. It is
obvious, also, that the announcement that a new organic law or
code of laws had been adopted and put in force, ought to ema-
nate from some department of the existing government.

In the case of the ordinary statute law, the necessity for an
authentic promulgation is always recognized, and it is carefully
provided for. Before such a law can take effect, it must, by our
Constitutions, have been separately passed by the two houses
of the legislature, have been signed by their respective Speakers,
and by the Executive; and, finally, must await the arrival of the
day fixed for it to become in force. In the mean time provision
is made for pablishing it throughout the sphere of its operation.
With all this extreme care, doubts not unfrequently arise whether
or not a particular law was so passed as to be legally binding.
To give still greater certainty, therefore, it is commonly required,
that the various steps, as well legislative as executive, taken in
the progress of a bill to a law, shall be made matters of record,
so that courts and individuals interested may always determine
with precision whether any proposition did or did not become a
law. If such particularity and caution are necessary in ordinary
statutes, of which the effects are temporary and partial, they
would seem to be proportionately more so, when the laws are
fundamental, and their effects permanent and general. In look-
ing, however, at the precedents, we fail to find in many cases a
conformity to the requisites of sound principles, while there is
apparent, in regard to them, an amount of ignorance or indiffer-
ence, for which it is difficult to account.

§ 522. Of some of the earliest Constitutions, proclamation
was made by a solemn act of the public authorities, accompa-
nied by appropriate ceremonies. Thus, in the case of the New
York Constitution of 1777, adopted in Convention April 20th,
publication was made on the 22d of the same month, at the
PROMULGATION OF CONSTITUTIONS. 543

Court-House in Kingston, “ from a platform erected on the end
of a hogshead,” the vice-president of the existing government
presiding. The revised Constitution of New Hampshire of
1783, “ was introduced at Concord by a religious solemnity ;”
and that of Pennsylvania of 1790, by an imposing procession
of all the officers of the State, the members of the Convention,
and of the civic societies of Philadelphia, in the course of which
the Constitution was formally proclaimed at the Court-House in
Market Street.

The above were all instances of Constitutions put in opera-
tion without submission, except that of New Hampshire of
17838. Where submission to the people has been made, the
course very generally adopted has been to require the returns of
the election to be made from the several districts to the Secre-
tary of State, to be canvassed by him and the other great offi-
cers of the State, often in the presence of such citizens as may
choose to witness the proceeding; and, finally, the results of the
canvass have been announced to the people by a proclamation
of the Governor — the Constitution thereupon taking effect as
such In many cases the Constitution has required that the
people should vote for or against the Constitution, and, if there
should be a majority for it, the Governor should make proclama-
tion of that fact, but provided no mode of certifying the returns
of the election to that officer.2 In the Virginia Conventions of
1829 and 1850, and in that of Maryland of 1864, provision was
made merely for a proclamation of the result of the election by
the governor.3

1 This course was pursued in the following Conventions :— New York, 1821;
Louisiana, 1844, 1852. and 1864; Illinois, 1847 and 1862; Michigan, 1850;
California, 1849 ; Tennessee, 1834; Ohio, 1850; and Oregon, 1857.

2 It was so done in North Carolina, 1835; Texas, 1845; Wisconsin, 1848;
and Towa, 1857.

3 In the last-named State, a question arose in 1864 respecting the nature of
the power given to the Governor by the Convention Act to pass upon the
returns of the election at which the Constitution of that year was voted on by
the people, which has been the subject of adjudication by the Court of Appeals
of that State. The Constitution having been submitted to the people under
regulations restricting the right to vote, within the State, to qualified electors
who should have taken a prescribed oath, but permitting saldiers in the ser-
vice of the United States to vote outside the limits of the State, the returns of
the election coming into the hands of the Governor to be counted, an applica-
544 PROMULGATION OF CONSTITUIIONS.

§ 523. Some of the above modes of announcement are suffi-
ciently indefinite. Others have been practised, however, that
are still more so. Thus, in the Maryland Convention of 1850,
and that of Minnesota of 1857, the Schedules merely provided
that, if a majority of all the votes cast should be for the Con-
stitutions submitted, the same should be deemed to be adopted
as the Constitutions of those States respectively. The Massa-
chusetts Convention of 1779, and that of Kentucky of 1849,
adopted still a different mode of announcing the result of the
submission to the people. Having matured their respective
Constitutions, and provided for a’ vote of the people upon them
on a certain day, they adjourned to a day subsequent to that
fixed for the election, at which time they reassembled, received
the returns of the elections, and announced their results to the
people by proclamation. A different mode was adopted by the
last two Conventions of Massachusetts — those held in 1820 and
1853. The returns of the elections were made to the Secretary
of the Commonwealth, were canvassed, and the votes counted
by committees of the Conventions, appointed for that purpose
previously to their dissolution, and proclamation of the results
made by the Governor. In the Pennsylvania Convention of
1837, the returns of the elections were opened by the Speaker
of the Senate, in joint session of the two houses, the result pub-
licly announced by him, and a formal certificate of that fact
made and filed among the public archives.

§ 524. In case of the Territories, the proper authority to make
the announcement is evidently the government of the Union,
representing the people thereof. Accordingly, the mode of offi-

tion was made to the Superior Court of Baltimore City for a rule upon the
Governor to show cause why a mandamus should not be issued commanding
him, in ascertaining the number of votes cast at the said election, to count cer-
tain votes tendered and rejected because the required oath had not been taken,
and to exclude certain others cast by soldiers beyond the limits of the State.

The application being refused, the case was carried to the Court of Appeals,
by which the judgment of the court below was affirmed, a majority of the court
holding that the power to pass upon the returns in such a case was a political
and not a judicial power, and therefore was not subject to revision by the judi-
cial tribunals. See Miles v. Bradford, Governor of Maryland, 22 Md. R. 170
(decided at the June Term, 1864). For a complete statement of the facts of
this case, including the proceedings in the court below, see Deb. Md. Conv.
1864, Vol. ITI. Appendix.
PROMULGATION OF CONSTITUTIONS. 545

cially making known the establishment of a new Constitution,
and the contemporaneous birth of a new State, is for Congress
either to pass an Act reciting the framing of the Constitution,
that it is republican in form, and concluding with a declaration
that the Territory is thereby admitted into the Union, or to an-
ticipate the action of the Territorial Convention by providing
that such a body might meet to frame a Constitution and State
government, or.to accept conditions of admission into the Union
imposed by Congress, — their Constitution having been already
formed, — and that, thereupon, if the action of the Convention
should be favorable, its results should be announced by a procla-
mation of the President, and the admission of the Territory into
the Union be complete.

Of all the modes of announcement above described, that by
a formal proclamation is clearly the most conformable to theo-
retical principles, and the most satisfactory in a practical point
of view. From this there is, however, a descent through various
gradations until modes of promulgation are reached, which are
so indefinite and so inadequate, that it seems a matter of the
greatest good fortune that serious embarrassments have not fol-
lowed their adoption. Thus, take the cases in which it was
provided that the Constitutions should go into effect, if adopted
by a majority of the votes cast at an election on a day fixed,
but in which no provision whatever was made for a canvass of
the returns of the election, or for a promulgation, by some recog-
nized official authority, of its results. That disputes have not
arisen involving the validity of the fundamental Acts thus loosely
ushered into the world, is due, not to the sufficiency of the pro-
cesses by which they were promulgated, but to the peace and
order of the times, and the utter absence of motive to raise,
respecting their validity, even a doubt.!

1 A Constitution, or an amendment, takes effect on the day of its adoption
by the people, unless otherwise provided in the existing Constitution, or by
the Convention acting under legislative authority. Parker v. Smith, 3 Minn.
R. 240; Campbell v. Fields, 85 Texas R. 751; Schall v. Bowman, 62 Ill. R.
321; State v. Williams, 49 Miss. 640. But see Williams v. Douglass, 21 La.
An. R. 468; Foster v. Daniels, 39 Geo. R. 398; People v. Norton, 59 Barb.
(N. Y.) 169; People v. Gardner, Id. 198.
CHAPTER VIII.

OF THE AMENDMENT OF CONSTITUTIONS.

§ 525. As the plan of this treatise extends only to a discus-
sion of the Convention, the mode of initiating or calling, and
of organizing it, its functions, powers, and modes of proceeding,
the foregoing chapters would seem to complete the circle, and
to render improper the consideration of other topics not strictly
within that plan. But while this is, in the main, true, it may,
nevertheless, be useful to touch upon the subject of constitu-
tional provisions for amending Constitutions. And, in one view
of it, a discussion of that topic may be regarded as logically
involved in an exhaustive treatise upon the Convention system.
We have seen, that the creation or renovation, by an organized
political society, of its Constitution of government, is analogous
to the exercise of the procreative function in animals — obvi-
ously, an important topic in their natural history — and, as the
Convention is the principal organ through which the political
body effects changes in its Constitution, whether extending to its
transformation or to its mere reparation, no discussion of that
organ would be complete which should overlook the Constitu-
tional provisions regulating its use and operation, or which
should omit to state its excellences and defects as compared
with those of other modes of attaining the same ends.

§ 526. By the principles of general law, the right of a people,
at any time, to recast their political institutions, cannot be de-
nied. The questions upon which difficulties arise, are, as to the
extent to which it may be done, under given circumstances,
without endangering the entire system, as to the modes of doing
it, and the instruments through which it shall be effected. These
questions, recurring under all forms of government, receive vari-
ous answers, according to their respective circumstances and
conditions. The cluster of States forming the American system
AMENDMENT OF CONSTITUTIONS. 547

are so dissimilar to those of Europe, in any age, that little light
can be drawn, in this respect, from the practice of the latter, or
from the writings of their statesmen and publicists. Between
England and the United States, there is, it is true, the sympathy
of race, and the institutions of the former were the model after
which those of the latter were built; but the imitation was not
close, and in many of their most important features the institu-
tions of the two countries are as variant as are those of England
and Austria. The provisions of the English Constitution for
effecting changes in itself are unique, being the fruits of the
signal victory by which the Parliament in 1688 became the dom-
inant power in the realm. Ever since that revolution, to that
body has been conceded the power to enact fundamental, as it
does the statute laws, by bill passed through the regular stages
of legislation, and approved by the sovereign.

In America it was early felt in many of the States that
although the governments succeeding to the colonial establish-
ments were based upon the will of the people, limitations must
be imposed upon the latter in regard to amending their Consti-
tutions. The wisest statesmen of the time saw that, in a
country where the people were admitted to a direct participa-
tion in the government, party passions and interests would be
likely to lead to too much tampering with Constitutions, if
effectual checks were not interposed. They, therefore, framed
governments which, in this particular, departed from the Eng-
lish model. Their Constitutions, purporting to define the
powers of the several branches of the government, in no case
permitted definitive amendments by the legislature, and most of
them omitted all mention of the power of amendment. A few,
as the Articles of Confederation, the Federal Constitution, and
those of Maryland and of Delaware, framed in 1776, gave that
power to the legislature, but under restrictions which reduced it
far below the power so familiar to our fathers in the Parliament;
and two made provision for Conventions to be called for that
purpose, also under restrictions, — those of Pennsylvania and
Vermont.

§ 527. But it would be wrong to imagine the existence among
the people of the United States, during the Revolutionary

1 That the American mode of effecting amendments is superior to that ot
England, see Popular Government, by Sir H.S. Maine, Essay IV. pp. 196-254.
548 AMENDMENT OF CONSTITUTIONS.

period, of a ripened public opinion on the subject of amending
their Constitutions. There was, even in the Statés most noted
for their steadfast zeal in the cause of liberty, a great lack of
sound views of the power of the people over the institutions
they had founded, and of the safe methods of perfecting them.
Thus, in Massachusetts, whose first Constitution contained no
provision for amendments, the doctrine of the Revolution, that
governments were founded by the people, and could be amended
by them as they should think fit, was erroneously understood
to warrant tumultuous assemblages of citizens, without legal
authority, to dictate to the government not only its current
policy, but amendments of the fundamental law. Shay’s Rebel-
lion was the natural outgrowth of such views, quickened, doubt-
less, by the distress almost universal in a community not yet
recovered from the effects of a long war) The first batch of
American Constitutions, moreover, were many of them framed
in extreme haste, for temporary purposes, when little was
thought or known of the best modes of constructing or amend-
ing such instruments. In several instances the State govern-
ments were intended to be mere provisional organizations, to-be
laid aside, not when new and better ones should be provided,
but upon the expected contingency of a peace with England,
following as a consequence of a redress of grievances. The re-
sult was, that the Constitutions first framed generally contained
no provision for their future amendment, since the necessity of
amendment was not at that time apprehended.

§ 528. But silence upon a subject of such importance was
liable to misconstruction, and was therefore dangerous. Hence
the policy of regulating by express constitutional provisions the
exercise of so important a power soon began to be generally
apparent. In several of the States the clauses of the Constitu-
tions relating to amendments have been couched in negative
terms, interdicting amendments except in the cases and modes
prescribed. In a majority of the cases, however, they have
been permissive, pointing out modes in which Conventions may
be called, or specific amendments effected, without terms of
restriction, or allusion to other possible modes.

But however liberal these provisions may seem to be, restric-
tion is really the policy and the law of the country. By the

1 Curtis’ Hist. Const. U. S., Vol. I, pp. 261-264.
AMENDMENT OF CONSTITUTIONS. 549

common law of America, originating with the system we are
considering, and out of the same necessities which gave the lat-
ter birth, it is settled, that amendments to our Constitutions are
to be made only in modes pointed out or sanctioned by the
legislative authority, the legal exponent of the will of the ma-
jority, which alone is entitled to the force of law.1 The mode
usually employed is that of summoning a Convention; and it is
clear that no means are legitimate for the purpose indicated but
Conventions, unless employed under an express warrant of the
Constitution. The idea of the people thus restricting them-
selves in making changes in their Constitutions is original, and
is one of the most signal evidences that amongst us liberty means,
not the giving of rein to passion or to thoughtless impulse, but
the exercise of power by the people for the general good, and,
therefore, always under the restraints of law.

§ 529. But, while the framers of our Constitutions have
sought to avoid the dangers attending a too frequent change
of their fundamental codes, they have adverted to an opposite
aanger, to be equally shunned —that of making amendments
too difficult. With a view to obviate this danger, in all our
late Constitutions there have been inserted special provisions,
the tenor of which will be explained hereafter. The general
principle governing their selection, and, in truth, lying at the
foundation of the whole subject, as a branch of practical poli-
tics, is this: Provisions regulating the time and mode of effect-
ing organic changes are in the nature of safety-valves, — they
must not be so adjusted as to discharge their peculiar function
with too great facility, lest they become the ordinary escape-
pipes of party passion; nor, on the other hand, must they dis-
charge it with such difficulty that the force needed to induce
action is sufficient also to explode the machine. Hence the
problem of the Constitution-maker is, in this particular, one of
the most difficult in our whole system, to reconcile the requisites
for progress with the requisites for safety.2 This problem can-

1 See Curtis’ Hist. Const. U. S., Vol. I. pp. 261-264. Compare Grote, Hist.
Greece, Vol. XI. pp. 493, 509, 510.

2 Mr. John Stuart Mill thus states the problem : “ No government can now
expect to be permanent unless it guarantees progress as well as order; nor can
it continue really to secure order unless it promotes progress. It can go on,
as yet, with only a little of the spirit of improvement. While reformers have
550 DIFFERENT MODES OF AMENDING CONSTITUTIONS.

not be yet regarded as solved, though we are doubtless approxi-
mating to a solution. Every new Constitution gathers up the
fruits of past experience, and in turn contributes something to
the common stock. We have reached such a stage that the pro-
visions of our latest Constitutions may be considered as adequate
to all ordinary exigencies of our condition. No community of
American citizens would be badly provided for, were it com-
pelled to accept any one of a score of Constitutions now in force
amongst us, without modification, save in subordinate particulars
touching local matters.

§ 530. Having thus formed a general conception of the doc-
trine of amendments in the American system, I pass to inquire,
—I. What modes have been provided by our various Constitu-
tions for effecting them? II. What are their comparative ex-
cellences and defects ?

I. There are two modes of effecting amendments thus far de-
vised: first, that by the agency of Conventions; and secondly,
that by the agency of our General Assemblies, without Conven-
tions, — both regularly followed by a ratification by the peo-
ple.

Of the one hundred and ninety-two Conventions thus far held,
only one hundred and nineteen have matured Constitutions, or
amendments thereof, which have gone into effect. The residue
is made up of Conventions which adjourned without recommend-
ing any alteration of the Constitution ; or whose propositions of
amendment were rejected by the people; or which were called
merely to ratify Constitutions proposed by previous Conven-
tions ; or, finally, which were revolutionary bodies, like the late
Secession Conventions. Of the one hundred and nineteen Con-
stitutions framed by that number of Conventions, nine have con-
tained no provision for their own amendment or revision ;!
twenty-nine have contained provisions for their amendment or

even a remote hope of effecting their objects through the existing system, they
are generally willing to bear with it. But, when there is no hope at all, —
when the institutions themselves seem to place an unyielding barrier to the
progress of improvement, — the advancing tide heaps itself up behind them till
it bears them down.”’ — The French Revolution and its Assailants, in ‘* Miscel-
lanies.”’

1 These were those of New Hampshire, North Carolina, South Carolina,
and Virginia, 1776; New York, 1777; Pennsylvania, 1790; and Virginia,
1830, 1851, and 1864, ;
DIFFERENT MODES OF AMENDING CONSTITUTIONS. 551

revision through the agency of Conventions only ;1 thirty-five
through the agency of the General Assemblies only ;2 and forty-
six for their amendment through the agency of either Conven-
tions or the General Assemblies.? In this list have been reckoned
as well amendments as complete revisions of Constitutions. In
treating of the two modes, that through the agency of the Gen-
eral Assemblies will be styled the legislative mode.

§ 531. From the foregoing statement, it is evident that the
two modes of amending Constitutions are of about equal an-
tiquity and about equal authority. The legislative mode origi-
nated with the Continental Congress, and its particulars were, in
that case, determined by the relations of the Confederation to
the States. The mode of amending or revising, by Conventions
called for that purpose, was first adopted by Pennsylvania in
1776, from which State it was, in the following year, borrowed
by Vermont. These two modes, devised thus in the first years
of our independence, have kept pretty equal pace throughout the
whole range of our constitutional history, some Constitutions
adopting one mode and some the other; but, for the first sixty
years, only four authorizing both modes, that of the United
States of 1787, that of South Carolina, 1790, and those of Dela-

1 These were Florida, 1865; Georgia, 1777, 1789, and 1865; Illinois, 1818;
Indiana, 1816; Kansas, 1857; Kentucky, 1792, 1799, and 1850; Louisiana,
1812; Maryland, 1851; Massachusetts, 1780; Mississippi, 1817 and 1832; Ne-
braska, 1867; New Hampshire, 1783, 1792, 1850, and 1877; Ohio, 1802;
Pennsylvania, 1776; Tennessee, 1796; Vermont, 1777, 1787, 1793, 1828, 1836,
and 1850. ,

2 These were Alabama, 1819; Arkansas, 1836, 1864, 1868, and 1874; Con-
necticut, 1818; Delaware, 1776; Georgia, 1798 ; Indiana, 1851; Louisiana, 1845,
1851, 1864, 1868, and 1879; Maine, 1820; Maryland, 1776; Massachusetts,
1822; Mississippi, 1865 and 1868; Missouri, 1820 and 1863; New Jersey, 1776
and 1844; New York, 1821; Oregon, 1857; Pennsylvania, 1838 and 1873;
Rhode Island, 1842; South Carolina, 1778; Tennessee, 1834 and 1865; Texas,
1845, 1868, and 1876; and Vermont, 1870.

3 These were the Federal Constitution, 1788; Alabama, 1865, 1867, and
1875; California, 1849 and 1879; Colorado, 1876; Delaware, 1792 and 1831;
Florida, 1839, 1868, and 1885 ; Goarsia, 1868 and 1877; Illinois, 1848 and 1870;
Towa, 1846 and 1857; Kansas 1855, 1858, and 1859; Naina 1820; Maryland,
1864 and 1867; Michigan, 1835 and 1850; Minnesota, 1857; Missouri, 1865
and 1875; Nebraska; 1875; Nevada, 1864; New York, 1846; North Carolina,
1835, 1865, 1868, and 1876; Ohio, 1851; South Carolina, 1790, 1865, and
1868; Tennessee, 1870; Texas, 1866; Virginia, 1869; West Virginia, 1863 and
1872; and Wisconsin, 1848.
552 EXCELLENCES AND DEFECTS OF THE MODE BY CONVENTIONS.

ware of 1792 and 1831. During the period beginning with 1835
and ending with 1885, however, ten Constitutions have provided
for amendments by Conventions only, twenty-two in the legisla-
tive mode only, and forty-one in both modes, showing a growing
conviction that the legislative mode has advantages which make
its more general adoption seem desirable, and yet that it alone
is not adequate to the exigencies of the times, but needs to have
coupled with it a provision for a Convention when the people
should deem it necessary or expedient to make a general revision
of the Constitution. Doubtless, as our Constitutions become
riper and more perfect with time and experience, the necessity
of employing the more expensive mode by Conventions will be
found to be less and less. Such seems to have been the opinion
of Mr. Webster, who, in the Massachusetts Convention of 1820,
opposed the adoption of a provision for the call of a future Con-
vention. . . . ‘* With the experience which we had had of the
Constitution,” he said, ‘ there was little probability that, after
the amendments which should now be adopted, there would be
any occasion for great changes. No revision of its general prin-
ciples would be necessary, and the alterations which should be
called for by a change of circumstances would be limited and
specific.” 1

§ 532. IT. To determine the excellences and defects of these
two modes of amending Constitutions, they must be considered
with reference to their tendency, respectively, to prevent or to
alleviate the three great evils of popular government, — hasty
legislation, excessive legislation, and partisan legislation. Let
us consider, from this point of view, —

(a). ‘The mode by Conventions.

It is obvious that, were the existing government of a State, or
any branch of it, invested with the power, without condition or
limit, to call Conventions to change the organic law, there
would be cause to apprehend two dangers: one, that the per-
manent, and, therefore, paramount and sacred character of that
law would be impaired ; for, what the government could at any
time procure to be changed or repealed, would, in effect, be but
an ordinary statute; the other, that our Conventions would be-
come the arenas, and our Constitutions the objects as well as
the instruments, of party conflict. ‘The right of the people, at

1 Deb. Mass. Conv. 1821, p. 418.
EXCELLENCES AND DEFECTS OF THE MODE BY CONVENTIONS. 553

any time to amend their Constitutiors must be admitted ; but
as they can never do this directly, the necessity becomes appar-
ent of checks, to render it probable that a movement to that
end has been sanctioned by them, and that it has been done
upon due consideration, What those checks should be, is a
problem of which the conditions will vary with the circum-
stances of the case. In this country, the difference between
States which differ most is but slight, and hence the results of
their individual experience are in the main equally useful to all.
Conventions being universally called amongst us by legislative
authority, the checks must be such as will obviate the evils
above enumerated, resulting from haste, excess, and partisan
zeal, in legislation.

§ 533. The readiest mode of preventing these evils is either
to increase the majority required to call a Convention, or to
compel the submission to the people either of the legislative Act
calling a Convention, or the question whether or not a Conven-
tion shall be called.

The first of these checks would doubtless be efficacious, un-
less the minority, invested with a veto upon the Act, were too
small. On most questions, of whatever magnitude or character,
if the vote of a party were sufficient to determine results, it
would be likely to be cast as the interest of the party should re-
quire. In the see-saw of politics, it is rare that a party very much
or very long outnumbers its antagonist. Hence, if party major-
ities were allowed free scope to tamper with our organic laws,
there would be nothing stable in them. On the other hand, if
areform of the fundamental code be really needed, men of all
parties will admit the fact, or enough men in all parties to effect
it. Should the proposed amendments, however, assume a parti-
san character, or for any other reason be improper to be made
now, or at all, there should be no room for danger of their
adoption. It seems evident, then, that where the check is
sought in numbers, a majority is too small, and a unanimous
vote too large, for either practicability or safety. A mean must
be sought not liable to these objections, and that not from @
priori considerations, but from experience. What that mean
has generally been in the practice of the several States, will be
seen further on.

§ 5384, The second check, which is found in a submission of
554 EXCELLENCES AND DEFECTS OF THE MODE BY CONVENTIONS.

ithe question of calling a Convention to the people, seems rnore
efficacious. By the term “people” is meant, theoretically, the
political society, but practically, as we have seen, the body of
the electors, which is its representative, at the nearest hand. The
views of the latter, expressed in any mode adapted to its urgan-
ization, may more fairly be presumed to be those of the political
society than those of any body less numerous and farther re-
moved from it; and, therefore, whenever the electors have
assented to the call of a Convention, its necessity or eminent
propriety may be considered to be beyond doubt. Such a body
may be swayed by passion, but it will not be by a passion that
is local. A State, in which the passion of a majority of its
electors, on high questions of fundamental law, is selfish and
local, must be near its downfall. At all events, when a legisla-
ture is required to submit the question of the expediency of
constitutional changes to the determination of a body that
never assembles, that is not easily approached for unworthy
purposes, and that is, this side the sovereign itself, the ultimate
depositary of sovereign rights, there is one chance the more that
sucb changes will not be ill-advised. ‘That such a question
ought in all cases to be submitted to the people, has been
affirmed by what will be conceded to be high authority. The
point arose in New York the year preceding the Convention of
1821. At an extra session of the legislature in November, 1820,
an Act had been passed by both honses, by the provisions of
‘which a Convention was to be called, without referring the
question, in the first instance, to the people, — the delegates to
be chosen in February, 1821, and the body to convene in June
following. This Act having been submitted to the Council of
Revision, composed of the Governor, the Judges of the Supreme
Court, and the Chancellor, —a body invested by the Constitu-
tion with a negative on all Acts of the legislature, to be over-
come only by a two-thirds vote of both houses, — it was re-
turned with their objections, and thereupon failed to become a
law. The objections were drawn up by Chancellor Kent, and
received the concurrence of Governor Clinton and Chief-Justice
Spencer, a majority of the Council. The first objection was
stated to be, because the Act recommended to choose “ dele-
gates to meet in Convention for the purpose of making such
alterations in the Constitution” as they might think proper,
CONSTITUTIONAL PROVISIONS FOR CALLING CONVENTIONS. 555

“without first having taken ihe sense of the people, whether
such a Convention, for such a general and unlimited revisal and
alteration of the Constitution,” was, “in their judgment, neces-
sary and expedient.” Admitting as undoubted and as inde-
feasible the right of the people at all times to alter their Consti-
tution, as to them should seem meet, the Council expressed
great doubt whether it belonged “to the ordinary legislature,
chosen only to make laws, in pursuance of the provisions of the
existing Constitution, to call a Convention, in the first instance,
to revise, alter, and perhaps remodel the whole fabric of the gov-
ernment, and before they have received a legitimate and full
expression of the will of the people that such changes should be
made.” They remark, with great justice, that “the Constitu-
tion is the will of the people, expressed in their original charac-
ter, and intended for the permanent protection and happiness of
them and their posterity; and,” they add, “it is perfectly con-
sonant to the republican theory, and to the declared sense and
practice of this country, that it cannot be altered or changed in
any degree, without the expression of the same original will.”
The Council conclude by showing that in many of the Consti-
tutions thus far framed in the leading States of the Union, it
has been explicitly provided that no Convention should be
called but by the concurrence of the people, expressed at an
election at which the question of calling one should have been
distinctly presented.!

§ 535. The wisdom of this decision it is impossible to doubt.
How far it conforms to the constitutional practice of the coun-
try may be inferred from an examination of precedents, to
which I now pass.

1 For the whole of this very valuable document, see Appendix F.

Another check upon the calling of Conventions, mentioned by Mr. Madison,
involves the concurrent action of any two of the three departments of the gov-
ernment; but, as it has never been employed, I have not enumerated it in the
text. It is thus described by him: — “ Another plan has been thought of, which
might perhaps succeed better, and would at the same time be a safeguard to the
equilibrium of the constitutional departments of the government; that is, that a
majority of any two of the three departments should have authority to call a
plenipotentiary Convention, whenever they may think their constitutional pow-
ers have been violated by the other department, or that any material part of the
Crnstitution needs amendment.” — Letter to John Brown (of Kentucky), dated
Aug 23,1785, Madison’s Works, Vol. I. p. 177.
556 CONSTITUTIONAL PROVISIONS FOR CALLING CONVENTIONS.

The provisions of our Constitutions relating to this subject are
of four varieties: first, such as require the call of a Convention
periodically or at a specified time; secondly, such as look to an
expression of the sense of the people on the question of calling a
Convention periodically or ata specified time ; thirdly, such as
look to a vote of the people on the question whenever the legis-
lature should deem it advisable that a Convention should be
called ; fourthly, such as authorize the call of Conventions when-
ever the legislature should deem the amendment or revision of
the Constitution to be necessary.

1. Of the first variety, the earliest instance is presented by the
Pennsylvania Constitution of 1776, which provided for the call
of a Convention every seventh year after its adoption. This
provision was adopted by Vermont in its first Constitution, of
1777, and in all that followed down to and including the Consti-
tution as amended in 1850. New Hampshire, in her Constitu-
tion of 1784, adopted the same term. The Georgia Constitution
of 1789 required the call of a Convention in 1794.

2. Of the second variety, looking to an expression of the sense
of the people on the question of calling a Convention periodically
or at a specified time, are the Constitutions of Massachusetts, of
1780, requiring a vote of the people in 1795; of Kentucky, of
1792, requiring such a vote in 1797 and 1798; of New Hamp-
shire, of 1792, requiring such a vote every seventh year; of
Kansas, of 1858, requiring a vote in 1863 and every seventh year
thereafter ; of Iowa, of 1846 and 1857, requiring a vote in 1870
and every tenth year thereafter ; of Maryland, of 1851, requiring
a vote in every year succeeding the returns of each United States
census; of Indiana, of 1816, a vote every twelfth year; of Mich-
igan, of 1850, a vote in 1866 and every sixteenth year there-
after; of New York, of 1846, a vote in 1866 and every twentieth
year thereafter; of Ohio, of 1851, in 1871 and every twentieth
year thereafter; of Massachusetts, of 1853, in 1873 and every
twentieth year thereafter; of Maryland, of 1864 and 1867, in
1882 and 1887 respectively, and every twentieth year thereafter ;
and of Virginia, of 1870, in 1888 and every twentieth year
thereafter! The Iowa Constitutions of 1846 and 1857, and

1 The adoption of the term of twenty years was probably based on the cal-
culation of Mr. Jefferson, that the people of a State, as a body, was wholly
CONSTITUTIONAL PROVISIONS FOR CALLING CONVENTIONS. 557

the Michigan Constitution of 1850 contained also a provision
that a vote of the people upon the question of calling a Conven-
tion might be taken at such other times as the legislature might
by law prescribe. A novel provision for calling a Conven-
tion was made in the Massachusetts Constitution of 1853, be-
side the one described above. Its terms were, that, whenever
towns or cities containing not less than one-third of the qualified
voters of the Commonwealth should, at any meeting for the
election of State officers, request that a Convention be called to
revise the Constitution, it should be the duty of the legislature,
at its next session, to pass an Act for the calling of the same,
and submit the question to the qualified voters of the Common-
wealth, whether a Convention should be called accordingly, sav-
ing, however, the power of the legislature to take action for
calling a Convention without such request, as before practised in
the Commonwealth.

§ 536. 3. Of the third variety, looking to a vote of the people
upon the question of calling a Convention whenever the General
Assembly, ora prescribed majority thereof, should recommend it,
are a large proportion of the Constitutions which contain pro-
visions for calling Conventions at all. Of these, some authorize
such a vote at any time when the General Assembly may recom-
mend it ;1 some, whenever a majority of all the members elected
to each house may recommend it ;? some, whenever two-thirds
of the General Assembly, or of each house thereof, may recom-
mend it ;8 some, whenever two-thirds of all the members elected

renewed once in about twenty years. See his Letter of July 12,1816, to Sam-
uel Kercheval, Jefferson’s Works, Vol. VII. pp. 9-17.

1 Constitutions of Tennessee, 1796 and 1870; Delaware, 1831; Towa, 1846
and 1857; Wisconsin, 1848; Michigan, 1850; Missouri, 1865 and 1875; and
Nebraska, 1867. The Delaware Constitution of 1792 contained a provision
which authorized a vote of the people upon the question of holding a Conven-
tion, at a general election of representatives, without the previous action of the
legislature, and requiring the latter, in case a majority of all the citizens of the
State having a right to vote for representatives should have voted for a Con-
vention, at its next session to call one.

2 Constitutions of Kentucky, 1799 and 1850, and Louisiana, 1812, — each
of two successive legislatures, — and West Virginia, 1863 and 1872. .

3 Constitutions of California, 1849; Florida, 1885; Georgia, 1877; Illinois,
1818 and 1870; Kansas, 1857 and 1859; Michigan, 1835; Mississippi, 1817;
North Carolina, 1876; Ohio, 1802 (after 1806).

It has been held that two-thirds of each house means two-thirds of a quo-
558 CONSTITUTIONAL PROVISIONS FOR CALLING CONVENTIONS.

to each house of the General Assembly may recommend it;}
some, whenever it is recommended by three-fifths. of the mem-
bers elected to each house.? :

4. Of the fourth variety are a few Constitutions which author-
ize the call of Conventions whenever the legislature, or a speci-
fied majority thereof, should deem the amendment or revision of
the Constitution to be necessary.’ af

§ 537. In some cases, Constitutions impose restrictions: upon
the calling of Conventions, and among them are some of those
comprised in the foregoing lists. Thus, in one Constitution it
was provided that it should be altered or amended only by a
Convention of the people, called for that purpose by Act of the
General Assembly.t In several Constitutions it was declared
that no Convention should be called unless by the concurrence
of two-thirds of the members of each house of the General As-
sembly.? So, many Constitutions forbade the calling of a Con-
vention, unless the question of Convention or no Convention
should have been submitted to the people, and the vote have
been in favor of a Convention ;° or, that a Convention should be
called in the election of delegates to which any person qualified
by the Constitution to vote should be disqualified, and providing,
that representation therein should be based on population, and
that the right of suffrage should never be taken from any person

rum of each house. State v McBride, 4 Mo. R., 303. But see Green »v.
Waller, 32 Miss. R. (3 George), 650, and remarks of Fisher, J., relative to the
same case, 33 Miss. R., Appendix, 735.

1 Constitutions of California, 1879; Colorado, 1876; Illinois, 1848 and 1862;
Maryland and Nevada, 1864; Minnesota, 1857; Ohio, 1851; and South Caro-
lina, 1868.

2 Constitutions of Kansas, 1858, and Nebraska, 1875.

8 The Georgia Constitution of 1865 gave general authority to call a Conven-
tion at any time. The following authorized such a call, without limitation, by
a vote of two-thirds of each house of the General Assembly: Florida, 1839 and
1865; North Carolina, 1868; and South Carolina, 1790 and 1865; and the fol-
lowing by a vote of three-fourths of all the members of each house of the Gen-
eral Assembly, with the approval of the governor: Texas, 1866.

4 Constitution of Georgia, 1865, Art. V. Sec. 11.

5 Constitutions of Florida, 1839 and 1865; Georgia, 1877; North Carolina,
1835, 1868, and 1876; and South Carolina, 1790 and 1865.

® Constitutions of Alabama, 1865, 1867, and 1875; Delaware, 1792 and 1831;
substantially, Georgia, 1777; Kentucky, 1792, 1799, and 1850; Louisiana, 1812;
Missouri, 1865 and 1875; and West Virginia, 1863 and 1872.
CONSTITUTIONAL PROVISIONS FOR CALLING CONVENTIONS. 659

qualified by the Constitution to vote;! or forbidding that a Con-
vention should be called before a specified year ;? or the rec-
ommendation of certain designated amendments or provisions,
as affecting the immigration or importation of slaves, before
1808;% or introducing slavery or involuntary servitude other-
wise than in punishment of crime ;* or affecting the rights of
property in the ownership of slaves ;° or denying or in any way
impairing the right of suffrage, or any civil or political right as
conferred by the Constitution, except for causes which apply to
all persons and classes without distinction ;® or providing that
no amendment or revision recommended by a Convention should
take effect until submitted to the qualified electors, and approved
by them.’

Some of the Constitutions referred to above contained also
other special provisions which should be noted. Thus, the Ken-
tucky Constitutions of 1792 and 1799 authorized a vote of the
people upon the question of calling a Convention in two suc-
cessive years, and, if both votes were in favor of the call, the
General Assembly was required at their next session to make
such call; but, if in either year the vote should be adverse to
the call, no Convention should be called until two-thirds of both
branches of the General Assembly should deem it expedient.
The Constitutions cf West Virginia framed in 1863 and 1872
surpass all others in the number and rigor of their restrictive
clauses. No Convention is to be called, “having authority to
alter the Constitution of the State,” unless in pursuance of a
law providing for an. election to take the sense of the people,
ete., as stated above; and no members of a Convention are to
be elected until one month after the result of the poll shall have
been ascertained and published. All acts and ordinances of any
such Convention are to be submitted to the voters of the State,
for ratification or rejection, and to have no validity whatever

1 Constitution of Georgia, 1868.

2 Constitution of Kansas, 1855, specifying 1865.

8 Federal Constitution, 1788.

4 Constitutions of Indiana, 1816; and Ohio, 1802.

5 Constitution of Kansas, 1857.

6 Constitution of Virginia, 1870.

” Constitutions of New Hampshire, 1783 and 1792; Ohio, 1851; Kansas,
1858; Maryland, 1864 and 1867; West Virginia, 1863 and 1872; Illinois, 1870;
and Colorado, 1876,
560 MODE OF AMENDING CONSTITUTIONS

until they are ratified ; and in no event are they, by any shift or
device, to be made to have any retrospective operation or effect,

A special interest attaches to these negative provisions, on ac-
count of an important constitutional question, considered else-
where, to which they give rise, namely, whether, under those
instruments, amendments can be effected through the agency of
Conventions called in disregard of those restrictions ??

§ 587 a. Beside the four varieties of Constitutions containing
provisions for the call of Conventions, described in the preceding
sections, it may be useful here to mention another class which
contain no provisions for that purpose, though some of them con-
tain provisions for making amendments in the legislative mode?
In relation to this class of constitutional provisions, also, the
question, to be considered hereafter, arises, whether, under either
of them, a Convention can be called.®

§ 538.. (b.) ‘The mode of effecting amendments to a Consti-
tution through the agency of the legislature, without a Conven-
tion, would seem to be the most natural, because the most
simple one. Our fathers, as we have shown, were familiar with
its use in England. The peculiar nature of our system, how-
ever, made the adoption of the English mode, without mate-
rial modifications, inadvisable, for by the latter constitutional
changes are, as in case of ordinary legislation, the work of King,
Lords, and Commons, acting in conjunction. In America, how-
ever, fundamental legislation, even when carried on by our Gen-
eral Assemblies, is conducted in a manner very different from

1 See post, §§ 537, 563-569.

? To this list belong the following Constitutions: —

1. Constitutions containing no provisions for amendment at all: New Hamp-
shire, North Carolina, South Carolina, and Virginia, 1776; New York, 1777;
Pennsylvania, 1790; and Virginia, 1830, 1851, and 1864.

2. Constitutions containing provisions for amendments in the legislative
mode, but none for the call of Conventions: Delaware, Maryland, and New
Jersey, 1776; the Articles of Confederation, 1777; South Carolina, 1778;
Georgia, 1798; Connecticut, 1818; Alabama, 1819; Missouri, 1820 and 1863;
Maine, 1820; Massachusetts and New York, 1821; Tennessee, 1834 and 1865;
Arkansas, 1836, 1864, 1868, and 1874; Pennsylvania, 1838 and 1873; Rhode
Island, 1842; New Jersey, 1844; Texas, 1845, 1868, 1876; Louisiana, 1845,
1852, 1864, 1868, and 1879; Indiana, 1851; Oregon, 1857; Mississippi, 1865
and 1868; and Vermont, 1870.

8 See post, §§ 563-574 h.
THROUGH THE ACTION OF THE LEGISLATURE. 561

ordinary legislation. As, in calling Conventions, the legislature
acts under checks unknown to it when exercising its usual func-
tion; so here, the restrictions upon its action are so numerous |
and important, and the departures from the processes of ordi-
nary legislation so wide, that it has been made a question
whether, in proposing amendments to the organic law, the legis-
lature is engaged in an act of legislation at all,—a question
which it will become our duty in due time to consider.

§ 539. Though this mode, under proper restrictions and in
cases to which it is adapted, may be followed without danger,
yet it is subject to obvious objections. The legislature is a body
chosen for temporary purposes. It is a mirror of political pas-
sions and interests, and, with the best intentions, cannot be
expected to be free from bias, even in questions of the highest
moment. It is composed, moreover, in general, of politicians
rather than of statesmen. Indeed, if a man shows himself, by
culture and the breadth of his views, to be fitted for the highest
trusts, it is nearly certain that he will not be found in the legis-
lature, but be left in obscurity at home. But, when a Conven-
tion is called, it is sometimes possible to secure the return of
such men. It is not necessarily because such a body is recog-
nized to be, as it is, the most important ever assembled in a
State, but because the measures it is expected to mature bear
less directly on the interests of parties or of individuals. Party
management, therefore, is not usually so much directed to the
seeking of control of a Convention as of a legislature. Besides,
the proper function of the latter body, that of municipal legis-
lation, being one of the highest vested by the sovereign in any
governmental agency, it cannot but be inexpedient, on a general
view, that there should be added to it that of organic legislation,
requiring different and higher gifts, and wider experience and
study, thus threatening to unsettle the balance of the Constitu-
tion.

§ 540. With proper safeguards, and under adequate checks,
however, a legislature, as we have said, may be allowed to take
part in fundamental Jegislation without endangering the safety
of the State. In point of convenience, such an arrangement pos-
sesses many claims to acceptance. The calling of a Convention

1 See Hildreth’s Hist. U. S., Vol. I. 2d Series, p. 231; remarks of the author
upon the South Carolina Constitution of 1790.
562 MODE OF AMENDING CONSTITUTIONS

is a measure attended commonly by much delay and expense,
and is often compassed by very great difficulties. Reforms would
often be foregone rather than resort to means so inconvenient.
The needed amendments to our Constitutions are often of no
great extent ; a doubt has arisen, perhaps, as to the construction
to be put upon a particular clause ; a change may be desired in
the qualifications for the suffrage, or in the basis of representa-
tion; a branch of the administration is found to be too cumbrous
for use ; or a new distribution among the agencies of government
of their constitutional powers is thought to be advisable to facili-
tate the transaction of business, or to render public operations
more safe or more economical. For amendments of such a
stamp, separately considered, the mode by legislative action is
well adepted; and it is adapted to no other. It ought to be
confined, it is believed, to changes which are few, simple, inde-
pendent, and of comparatively small importance. For a general
revision of a Constitution, or even for single propositions involv-
ing radical changes as to the policy of which the popular mind
has not been informed by prior discussion, the employment of
this mode is impracticable, or of doubtful expediency.

The checks proper to be applied to a legislature, acting in a
conventional capacity, are not different from those applied where
it assumes to call a Convention. They consist of increased ma-
jorities, of repeated votes, and of publication and submission to
the people. In many cases, as we shall see, all of these devices
for preventing hasty action are employed simultaneously. When
measures are thus initiated deliberately, in a right spirit and
for proper ends, the conditions of safe legislation seem to be
fulfilled.

§ 541. Of the Constitutions which permit amendments in the
legislative mode, that is, by combined legislative and popular
action without a Convention, a large proportion contain substan-
tially the following provision, copied from the Michigan Consti-
tution of 1835 : —

‘“Any amendment or amendments to this Constitution may
be proposed in the Senate or House of Representatives; and if
the same shall be agreed to by a majority of the members elected
to each of the two houses, such proposed amendment or amend-
ments shall be entered on their journals, with the yeas and nays
taken thereon, and referred to the legislature then next to be
THROUGH THE ACTION OF THE LEGISLATURE. 563

chosen, and shall be published for three months previous to the
time of making such choice. And if, in the legislature next
chosen as aforesaid, such amendment or amendments shall be
agreed to by two-thirds of all the members elected to each house,
then it shall be the duty of the legislature to submit such pro-
posed amendment or amendments to the people, in such manner
and at such time as the legislature shall prescribe; and, if the
people shall approve and ratify such amendment or amendments
by a majority of the electors qualified to vote for members of
the legislature voting thereon, such amendment or amendments
shall become part of the Constitution.”

This provision has been selected because it contains nearly all
the requirements and conditions to the exercise of the legislative
mode of amending Constitutions found in any of those instru-
ments.

§ 542. The points of difference presented by the various Con-
stitutions, in respect to their provisions for amendments in the
legislative mode, relate to the majority of the legislature required
to recommend a change; the length of the notice to be given
before the succeeding election, if any; the majority required in
the legislature chosen at such election, and the body by which
submission to the people, when required, shall be made. Thus,
to recommend amendments, in certain Constitutions, a majority
of three-fifths of all the members elected to each house of the
General Assembly is required ;! in some, a majority of all the
members elected to each house only ;? and, in all the remaining
Constitutions, a majority of two-thirds of the members elected

1 Constitutions of Florida, 1885; Kansas, 1858; Louisiana, 1845; Mary-
land, 1864 and 1867; Nebraska, 1875; North Carolina, 1835, 1868, and 1876;
and Ohio, 1851.

2 Constitutions of Arkansas, 1868 and 1874; California, 1849; Connecticut,
1818; Iowa, 1846 and 1857; Louisiana, 1864; Michigan, 1835; Minnesota,
1857; Missouri, 1865 and 1875; New Jersey, 1844; New York, 1821 and 1846;
Oregon, 1857; Pennsylvania, 1838 and 1873; Rhode Island, 1842; South
Carolina, 1778; Tennessee, 1834 and 1870; Vermont, 1870: West Virginia,
1863; and Wisconsin, 1848.

In most cases in which a simple majority is required, the Constitutions pre-
scribe a reference of the proposed amendments to the General Assembly to
be chosen at the next general election. The exc ptions are the Constitutions
of Louisiana, 1864; Minnesota, 1857; Missouri, 1865 and 1875; Pennsylvania,
1838 and 1873; Rhode Island, 1842; and South Carolina, 1778.
564 MODE OF AMENDING CONSTITUTIONS

to each house.1_ Of the Constitutions requiring a second vote of
the succeeding legislature, fourteen require a simple majority of
all the members elected to each house ;? two require three-
fourths of all the members elected to each house ;* and of the
remaining Constitutions, some require two-thirds of each house ;#
and the rest, two-thirds of all the members elected to each
house.

Notice is required to be published in a large proportion of the
Constitutions in question; in a few cases generally, without speci-
fying the length of time ;® in two, a notice of four weeks ;7 in
one, of ninety days ;° in two, of twelve months ;® in nine, of six
months ;!° in one, of four months ;!! and in the residue, of three
months.” In the Massachusetts Constitution of 1821, two votes

1 Alabama, 1819, 1865, 1867, and 1875; Arkansas, 1836 and 1864; Cali-
fornia, 1879; Colorado, 1876; Delaware, 1792 and 1831; Florida, 1839 and
1868; Georgia, 1798, 1868, and 1877; Illinois, 1848 and 1870; Kansas, 1859;
Louisiana, 1852 and 1868; Maine, 1820; Massachusetts, 1821 (of the House, —
a majority of the Senate); Michigan, 1850; Mississippi, 1832 and 1868; South |
Carolina, 1790, 1865, and 1868; Texas, 1845, 1866, and 1868; Vermont, 1870
(of the Senate, — a majority of the House) ; and West Virginia, 1872.

2 Constitutions of Arkansas, 1868; California, 1849; Iowa, 1846 and 1857;
Louisiana, 1845; New Jersey, 1844; New York, 1846; Oregon, 1857; Penn-
sylvania, 1838 and 1873; Rhode Island, 1842; Vermont, 1870; West Virginia,
1863; and Wisconsin, 1848.

8 Constitutions of Delaware, 1792 and 1831.

4 Constitutions of Alabama, 1819, 1865, and 1867; Arkansas, 1836 and 1864;
Connecticut, 1818; Florida, 1839; Georgia, 1798 and 1868; Massachusetts,
1822 (of the House, — a majority of the Senate); Missouri, 1820; North Caro-
lina, 1835 and 1868; South Carolina, 1790, 1865, and 1868; Tennessee, 1834
and 1870; and Texas, 1845, 1866, and 1868.

5 Constitutions of Florida, 1868; Illinois, 1848; Michigan, 1835; and New
York, 1821.

® These are Connecticut, 1818; Massachusetts, 1821; Minnesota, 1857;
Rhode Island, 1842; and Vermont, 1870.

7 These are Missouri, 1875, and Oregon, 1857.

8 South Carolina, 1778.

® Arkansas, 1836 and 1864.

10 Arkansas, 1874; Florida, 1839; Georgia, 1798; Mississippi, 1832; North
Carolina, 1835 and 1868; Ohio, 1851; and Tennessee, 1834 and 1870.

11 Missouri, 1865.

12 Constitutions of Alabama, 1819, 1865, 1867, and 1875; Arkansas, 1868;
California, 1849; Colorado, 1876; Delaware, 1792 and 1831 (three to six
months); Florida, 1868 and 1885; Illinois, 1848 and 1870; Towa, 1846 and
1857; Kansas, 1858 and 1859; Louisiana, 1845, 1852, and 1868; Maryland,
THROUGH THE ACTION OF THE LEGISLATURE. 565

in each of the two houses were required, of two-thirds of the
house and a majority of the senate. In most of the Constitu-
tions now under consideration is found a further provision, both
for notice and to preserve a record of what is done, requiring the
amendments recommended by the General Assembly to be en-
tered on the journal, with the yeas and nays taken thereon.!

Another remarkable requirement appears in certain Constitu-
tions, — that, in voting upon proposed amendments, the amend-
ments shall be read three times on three several days, this re-
quirement in most cases applying to both legislatures.”

In relation to the body by which the Act of submitting the
Constitution to the people, when required, should be passed, in
a majority of cases there was no specification, but a provision
merely that it be submitted: in the remaining cases it was re-
quired that the Act should be passed by the legislature.?

On the popular vote to ratify the action of the legislature, a
majority was required in all the cases but that of Rhode Island,
1842, which made a vote of three-fifths of the people necessary.

§ 548. There are a few cases which are not reducible to any

1864 and 1867; Michigan, 1835; Mississippi, 1868; Nebraska, 1875; New
Jersey, 1844; New York, 1821 and 1846; Pennsylvania, 1838; South Caro-
lina, 1790 and 1865; Texas, 1845, 1866, and 1868; Virginia, 1870; West Vir-
ginia, 1863 and 1872; and Wisconsin, 1848.

1 Constitutions of Arkansas, 1868 and 1874; California, 1849 and 1879;
Colorado, 1876; Florida, 1868 and 1885; Illinois, 1870; Indiana, 1851; Iowa,
1846 and 1857; Kansas, 1858 and 1859; Louisiana, 1845, 1852, 1864, and
1868; Maryland, 1864 and 1867; Massachusetts, 1821; Michigan, 1835 and
1850; Missouri, 1865 and 1875; Nebraska, 1875; New Jersey, 1844; New
York, 1821 and 1846; Ohio, 1851; Oregon, 1857; Pennsylvania, 1838 and
1873; South Carolina, 1868; Tennessee, 1834 and 1870; Vermont, 1870; Vir-
ginia, 1870; West Virginia, 1863 and 1872; and Wisconsin, 1848.

? Constitutions of Alabama, 1819, 1865, 1867, and 1875; Florida, 1839;
Georgia, 1798; Mississippi, 1832 and 1868; Missouri, 1820; North Carolina,
1835 and 1868 (to be read three times); South Carolina, 1790, 1865, and
1868; Tennessee, 1834 and 1870; Texas, 1845, 1866, and 1868; and West
Virginia, 1863 and 1872.

8 Constitutions of Arkansas, 1868; California, 1849 and 1879; Florida, 1868;
Tllinois, 1848 and 1870; Indiana, 1851; Towa, 1846 and 1857; Louisiana, 1864;
Maine, 1820; Maryland, 1867; Massachusetts, 1821; Michigan, 1835; Minne-
sota, 1857; Missouri, 1865 and 1875; New Jersey, 1844 ; New York, 1821 and
1846; North Carolina, 1835, 1868, and 1876; Oregon, 1857; Pennsylvania,
1838 and 1873; Rhode Island, 1842; Tennessee, 1834 and 1870; Vermont,
1870; Virginia, 1870; West Virginia, 1863 and 1872; and Wisconsin, 1848.
566 MODE PROVIDED IN DELAWARE AND MARYLAND.

rule, that it may be useful to note separately. The first of these
is that of the Delaware Constitution of 1776, by Section XXX.
of which it was provided as follows : —

‘No article of the Declaration of Rights and fundamental
rules of this State, agreed to by this Convention, nor the. first,
second, fifth (except that part thereof that relates to the right of
suffrage), twenty-sixth, and twenty-ninth articles of this Consti-
tution ought ever to be violated, on any pretence whatever. No
other part of this Constitution shall be altered, changed, or dimin-
ished, without the consent of five parts in seven of the Assembly,
and seven members of the Legislative Council.” }

Section LIX. of the Maryland Constitution of 1776 contains
the following provision, in some of its points not dissimilar to
those referred to in the preceding section : —

“ That this form of government, and the Declaration of Rights,
and no part thereof, shall be altered, changed, or abolished, un-
less a bill so to alter, change, or abolish the same shall pass the
General Assembly after a new election, and shall be confirmed
by the General Assembly, after a new election of delegates, in
the first session after such new election; provided, that nothing
in this form of government which relates to the eastern shore
particularly shall at any time hereafter be altered, unless for
the alteration and confirmation thereof at least two-thirds of
all the members of each branch of the General Assembly shall
concur.”

The Articles of Confederation provided, Article XIII., that
no alteration should at any time be made in any of said articles,
“ unless such alteration be agreed to in a Congress of the United
States, and be afterwards confirmed by the legislature of every
State.”

The Federal Constitution provided still a different mode,
though it bore in general a strong resemblance to the class first
above mentioned, save in the mode of ratification by the people.
Tt was as follows : —

“ Congress, whenever two-thirds of both houses shall deem it
necessary, shall propose amendments to this Constitution ....
which . . . . shall be valid to all intents and purposes as’ parts

1 The Legislative Council consisted of nine members, so that five-sevenths
of the Assembly and seven-ninths of the Council were necessary to amend the
Constitution.
MODE PROVIDED BY THE FEDERAL CONSTITUTION. 567

of this Constitution, when ratified by the legislatures of three-
fourths of the several States, or by Conventions in three-fourths
thereof, as the one or the other mode of ratification may be pro-
posed by Congress.” !

1 In connection with this clause of the Federal Constitution, it may not be
out of place to consider the animadversions of a late writer respecting the mode
thus provided for effecting amendments to that instrument as contrasted with
that pursued under the English Constitution. I refer to Fisher, in his interest-
ing work, entitled Trial of the Constitution. Justly admiring the English Con-
stitution, and naturally entertaining great solicitude for the public safety during
the perilous times through which we had lately passed, that writer has pro-
nounced the Constitution of the United States to be in comparison with it, inade-
quate to a crisis like that of 1861-5, in that it does not contain a practicable
provision for amendments, In his opinion, had the United States been in a
condition to settle the vexed question of slavery through an amendment to its
Constitution, effected by the direct action of Congress in its ordinary capacity,
the late desolating war would not have fallen upon us. The result of his dis-
cussion is, an earnest recommendation of the English mode of fundamental
legislation by mere parliamentary majorities, followed up by the formality of
the executive sanction.

This view of the subject I regard as a mistaken one. Although it has been
stated in general terms to be one of the functions of the English Parliament to
enact amendments to the Constitution of the realm, yet that remark is but for-
mally and superficially true, the function of that body being rather to register
than to enact them. The fact is, that every considerable change in the English
Constitution from Magna Charta down to our day, has been achieved by conflict
outside the walls of Parliament — often by the blood of the English people.
When victory has declared itself, the principle established by it has by Parliament
been written down as a part of the fundamental code — the three estates of the
realm as it were following in the train of the national armies, and gathering up
and depositing among the treasures of the kingdom the fruits of their conflicts.
Never, either in England or elsewhere, do the peaveful labors of the legislator
produce changes that touch radically the passions or the interests of men. Force
alone works out such changes. Accordingly, had the American Constitution
contained the provision so lauded by Mr. Fisher, the terrible war through which
we have just passed would not have been prevented. So soon as party tactics
should have failed to guard our Constitution against amendments in the interest
of freedom, by filling Congress and the high judicial tribunals with the devotees
of slavery, the latter would, precisely as they have now done, have appealed to
arms. To men bent upon accomplishing a purpose, a pretext alone is necessary,
Had our Constitution distinctly permitted Congress to ordain amendments to the
fundamental code, the range within which to seek a pretext for revolution would
hardly have been lessened. It is only formal and unimportant amendments that
can be thus carried through, by the peaceful action of the majority — amend-
ments of such a stamp that they commend themselves as needful or as proper to
all candid minds when first presented, and so appearing are readily acquiesced
568 MODE ADOPTED IN PENNSYLVANIA AND VERMONT.

§ 544. It has already been observed that, generally, whichever
mode of amending Constitutions is adopted, the intervention of
the legislature is required. 1t either proposes to the people the
calling of a Convention, and, if they vote in favor of it, pro-
vides for its call; or it recommends specific amendments to
be passed upon by the people in some one of the modes re-
ferred to.

To this rule there were exceptions, however, in the cases of the
Pennsylvania Constitution of 1776, and of the earlier Constitu-
tions of Vermont. In these cases the legislatures were allowed
no participation in the business of concocting amendments, but
they were effected by Conventions, called by a body styled the
Council of Censors, which alone had power to propose them —
a device which experience has shown to be more ingenious
than useful. Among the powers of the Council, which was to
meet every seventh year, was that of calling a Convention,
to meet within two years after their sitting, if there should
appear to them an absolute necessity of amending any Article
of the Constitution which might be defective, explaining such
as might be thought not clearly expressed, and adding such as
were necessary for the preservation of the rights of the people;
but it was wisely further provided, that the Articles to be
amended, together with the amendments proposed, and such
Articles as were proposed to be added or abolished, should be
promulgated, at least six months before the day appointed for
the election of such Convention, for the previous consideration
of the people, that they might have an opportunity of instructing
their delegates on the subject.

This plan, which seems excellent, was not found to work well
in Pennsylvania; two stormy sessions of the Council resulting
in a hopeless disagreement, after which it never met again, and
was abolished in 1790.

§ 545. From Pennsylvania, in the mean time, in 1777, this
peculiar provision had been borrowed by Vermont, by which it
was retained in force until 1870. Although, at an early day,
this Council did an essential service to the cause of constitu-
tional government in Vermont, by the faithfulness with which
in, because of slight importance — not such as are vital to powerful interests,
against which they are aimed, or which, at least, they will most injuriously
affect.
MODE PROPOSED IN MASSACHUSETTS IN 1853. 569

it aischarged certain censoria. duties committed to it by the
Constitution, and had been instrumental in initiating some very
important constitutional changes, still, on the whole, it could not
be regarded as a success. Of late years, it had been found to
be too inflexible, serving rather as a shield to protect, than as a
sword to cut down, abuses, and hence it gave place, as we have
stated, in 1870, to a different scheme, which, although, perhaps,
unwisely restrictive, is likely more readily to reflect the public
will: The amendment of that year provides, that the Senate,
in 1880, and every tenth year thereafter, may, by a two-thirds
vote, propose amendments to the Constitution, which, if con-
curred in by a majority of the House, of the Senate and House,
respectively, of the next General Assembly, and of the freemen
of the State voting directly thereon, shall become a part of the
Constitution. No provision being made for calling a Conven-
tion, the General Assembly can, doubtless, call one, whenever a
general revision of the Constitution becomes necessary.

§ 546. With these exceptions, no Constitution has ever con-
templated amendments except through the prior ministry of the
legislature. In the Massachusetts Convention. of 1853, Myr.
Hallett, indeed, proposed a plan not subject to the objections
existing to that of a Council of Censors, and which, nevertheless,
avoided the necessity of legislative intervention in the matter of
calling Conventions. His plan was to authorize the qualified
electors, in the year 1873, and every twentieth year thereafter,
at the general election then to be held, to vote on this question:
“ Shall there be a Convention to revise the Constitution, in con-
formity to the provisions of the Act of 1852, Chapter 18, relat-
ing to the calling a Convention of delegates of the people for
the purpose of revising the Constitution?” If it should appear,
by the returns made, that a majority of the qualified voters
throughout the State, who should assemble and vote thereon,
were in favor of such revision, the same should be taken to be
the will of the people of the Commonwealth, that a Convention
should meet accordingly; and thereupon delegates should be
chosen, on the first Monday of March next succeeding, and such
delegates should meet in Convention in the State House, on the
first Wednesday of May succeeding, in the same manner, and
with the same authority, as was provided in the second, third,
and fourth sections of that Act.!

1 Deb. Mass. Conv. 1858, Vol. III. p. 118.
570 CONSTITUTIONAL COMMISSIONS.

Though doubtless possessed of some objectionable features,
especially in regard to Conventions at fixed periods, and to the
character of the Act referred to, the principle of this provision
seems in some respects to be salutary. It certainly would obvi-
ate the difficulties experienced in many of the States in securing
the consent of the legislature to the call of a Convention, to
lessen, perhaps, their power and emoluments. One material
question relating to it, however, it is now too early to answer
definitively ; and that is, whether or not such a provision unduly
facilitates the alteration of the Constitution. For want of some
such clause, the State of Rhode Island was, in 1842, thrown
into a revolution, in which, as is not unusual, the law was on
one side, and substantial justice on the other. On the other
hand, it is possible, that had the States lately in rebellion against
the Union, contained the provision offered by Mr. Hallett, and
left no power in the legislatures to meddle with Constitutional
changes at all, the inauguration of their revolution would have
been prevented. To the leaders of the revolt, the alternatives
would have been distinctly presented, either to wait on the move-
ments of the electors in the several States, or openly to violate
the Constitution — neither of which would have favored the
secession scheme. But, as we have seen, it is, perhaps, now too
early to pronounce upon a question which can be determined
only by long constitutional experience.

' § 546 a. A novel device for effecting the amendment or re-
vision of Constitutions by the employment of the legislative
mode, without the calling of a Convention, has lately been
adopted in several States, that by a “‘ constitutional commission.”
It was first resorted to by the legislature of New York, in 1872;
afterwards by that of Michigan, in 1873; by that of Maine, in
1875, and by that of New Jersey, in 1881. The New York Act
authorizing the commission required the Governor of the State
to appoint, by and with the advice and consent of the Senate,
thirty-two “ persons,” four from each judicial district, who should
constitute a commission, ‘‘for the purpose of proposing to the
legislature, at its next session, amendments to the Constitution.”
The Michigan Act authorized the Governor to nominate and
appoint eighteen “able and discreet citizens,” no two of whom
were to reside in any one congressional district as then organ-
ized, who should be authorized to examine into and report to the
CONSTITUTIONAL COMMISSIONS, 571

next session, either special or general, of the legislature, “such
amendments and revision of the Constitution” as in their judg-
ment might be necessary for the best interests of the State and
the people. The Maine legislature, by. resolution, authorized the
Governor to appoint a commission, consisting of ten « persons,”
to consider and frame “such amendments of the Constitution ”
as might seem necessary, to be reported by them to the legisla-
ture for such action as might seem advisable, and for final sub-
mission to the people at the next annual election in September.
A subsequent clause of the resolution required the commission
to submit the result of their labors to the present legislature on
or before the 15th of February next,—a period of thirty-four
days. The Act of the New Jersey legislature required the Gov-
ernor, during the current session of the legislature, to appoint
three “persons,” who, together with the president of the Senate
and two ‘* persons ” to be designated by him, and the speaker of
the House of Assembly and two “ persons” to be designated by
him, should constitute a commission, whose duty it should be
“to prepare amendments to the Constitution of this State.” The
cominission were to prepare and submit their report to the next
legislature, in proper form for consideration. In all the States
named the commissions were appointed and reported to their
respective legislatures, as required, and those bodies, in all save
New Jersey, adopted a part or all of the recommendations made
to them. In New Jersey, no action has ever been taken upon
the report submitted by the commission. The commissioners
of New York were appointed by Governor Hoffman, — one half
of the number from each political party, —and among its mem-
bers were Lucius Robinson, afterwards Governor of the State,
Francis Kernan, afterwards United States Senator, and other dis-
tinguished citizens. The Michigan commission was also strongly
constituted, and contained several members of eminent ability,
as it may be presumed did also those of Maine and New Jersey.
The sessions of the commissions were brief, that of New York,
which was the longest, being of about fourteen weeks, that of
Michigan of about seven weeks, and that of Maine of about three
weeks. The results of their labors were various: the New York
commission reported a large number of amendments, based ap-
parently upon a complete revision of the Constitution of 1846,
which, somewhat changed by the legislature, were submitted to
572 CONSTITUTIONAL COMMISSIONS.

the people and in part adopted in November, 1874. It is note-
worthy that one of the amendments proposed by the commission
fixed the salary of members of the legislature at $1,000, but that
the legislature increased it, before submission, to $1,500. Of the
whole number of amendments recommended by the Maine com-
mission, seventeen were endorsed by the legislature, but of these
_ only nine were adopted by the people. The Michigan commis-
sion recommended a large number of amendments, which, upon
submission to the people, were all rejected.

§ 546 6. Whether this device, if a constitutional one, is adapted
to bring before the people a better-considered scheme of consti-
tutional amendments than the old legislative mode, of which it
is a modification, must depend largely upon the influences which
employ and direct it. In theory, nothing could be nearer ideal
excellence than the mode of constituting the commissions. Under
all the Acts or resolutions authorizing them, save that of Michi-
gan, the Governor was at liberty to appoint any persons, without
limitation, though, perhaps, those selected must have been resi-
dents of the State, of full age, and of the male sex. In Michi-
gan they were required to be “ able and discreet citizens,” not
more than two resident in any one of the existing congressional
districts. In New Jersey, to the three persons named by the
Governor were added the presiding officers of the two houses of
the legislature and two other persons named by each of them.
If there were ability and experience anywhere in those States, it
was possible, it should seem, to secure it. In two States, New
York and Michigan, the reports were to be made to the next
session of the legislature ; in New Jersey, to the next legislature;
and in Maine to the existing legislature, in season to be sub-
mitted to the people at the annual election in September of the
same year. Sufficient time, therefore, seems to have been given
to the people to acquaint themselves with the proposed amend-
ments, before they were required to act upon them, save in
Maine, where the commission, the legislature, and the people
were together allowed but nine months in which to formulate, to
recommend, and to adopt them. In this respect the plan of the
New Jersey commission was the most to be approved. By re-
quiring the report to be made to the next legislature, it gave the
people ample time to consider the proposed amendments in ad-
vance, not only of the election at which they were to ratify or
CONSTITUTIONAL COMMISSIONS. 573

reject, but of that at which they were to choose the legislature
which was to recommend. A serious question, however, remains,
whether the employment of such a commission is consistent with
the Constitution. The Constitutions of the four States which
have employed commissions had provided that « any amendment
or amendments,” or, as that of New Jersey phrased it, « any spe-
cific amendment or amendments,” to the Constitution, might be
recommended by a majority,! or by two-thirds,? of both houses
of the legislature, and that they should become parts of the Con-
stitution, if approved by a majority of the electors voting at an
election held for the purpose, or by a majority, first, of the mem-
bers elected to each house of the legislature next to be chosen;
secondly, of the electors voting thereon. Two of these Consti-
tutions, those of Michigan and New York, contained also pro-
visions that in 1866, and at stated periods thereafter, the ques-
tion of calling a Convention for a “general revision of the
Constitution,” 3 or to “revise the Constitution and amend the
same,” * should be submitted to the qualified electors.

§ 546 c. In view of these various provisions, it is clear that,
if the purpose of the legislature was to secure the adoption by the
people of independent specific or particular amendments, no con-
stitutional objection would lie against such action. But, on the
other hand, if that purpose was, or if the result of the commis-
sion should be, to submit to the people a complete revision of
the Constitution, very serious objection would exist. Under the
Constitutions which provided for a revision by Conventions, those
of Michigan and New York, the unconstitutionality of a revision
by a commission is very apparent. We have seen elsewhere that,
throughout the American Constitutions the legislative mode is
confined exclusively to the proposing of amendments, and as
such is sharply contrasted with that by Conventions, which is
employed for revisions. For effecting the latter, the only ap-
propriate, and hence the only constitutional, instrument is that
body. The difficulty is to draw the line between “an amend-
ment or amendments” and a “revised Constitution.”*® Per-

1 Constitutions of New Jersey, 1844, and New York, 1846.
2 Constitutions of Maine, 1820, and Michigan, 1850.

3 Michigan Constitution of 1850.

4 New York Constitution of 1846.

5 See § 574 c, ante.
574 CONSTITUTIONAL COMMISSIONS.

haps the best practical test of what was intended by those
terms, as gathered from a fair construction of the constitutional
provisions, would be to consider the relation to each other and
to the existing Constitution of the proposed amendments, and
the probable consequences of adopting all or either of them.
If the amendments proposed by the commission were indepen-
dent, whether few or many in number, as I have said, no ob-
jection is perceived to their adoption in this mode ; for, if one
or more of them were rejected by the legislature or by the
people, the harmony and balance of the Constitution would not -
be disturbed, that instrument simply remaining so far unchanged.
But the probability that so fortunate a result would follow would
diminish as the number of the amendments increased. When
that number should be so great as to leave the Constitution
considerably changed or a new one, the maintenance of the har-
mony and balance referred to would be well-nigh impossible. .
Here lies the danger from the employment of commissions.
Even if they are composed of wise and able men, and report
amendments that are desirable, and, whether many or few, are
congruous with the system as a whole, there can never be a
certainty that they will be recommended by the legislature as
received from the commission. In no case, so far, has the re-
port of a commission been adopted by the legislature without
material modification. This dilemma, therefore, always arises:
The report of the commission must be exactly pursued by the
legislature, or the benefit of their supposed superior wisdom and
ability is lost; but if the legislature is bound to adopt the com-
mission’s report and to submit it to the electors without change,
the function of the former would be merely a ministerial one;
it would not be itself, but the commission, that would recommend,
—a transfer of function which the Constitution certainly would
not warrant. If it be supposed that the legislature has a consti-
tutional right to discuss and to modify the amendment or system
of amendments reported by the commission, the whole question
of amending or of revising the Constitution would be relegated
to the body supposed, by the very act of appointing a commission,
to be unfitted for that work.

§ 546 d. Among the reasons adduced in favor of the employ-
ment of commissions are the expedition and the cheapness with
which constitutional changes can, by means of them, be insti-

4
CONSTITUTIONAL COMMISSIONS. 575

tuted and perfected. If the employment of commissions be held
to be constitutional for revisions as well as for specific amend-
ments of Constitutions, these reasons are likely very generally
to prevail, with results to our republican system of the most
dangerous character; our fundamental laws will be tinkered, at
every session of our legislatures, in the interest of party, of cor-
porate aggrandizement, and of fraud, as our statute law now
too generally is. For the enactment of systems of constitu-
tional law, of entire Constitutions, the incipient steps ought to
be taken by Conventions called expressly for that purpose, under
the sanctions and the limitations of the law of the land; and
if, from considerations of cheapness and expedition, our States
abandon the Convention system, it will not be long until our
legislatures, like those of France, will claim conventional powers,
to the complete subversion of our liberties.

It was, doubtless, considerations such as these that induced the
people of Michigan to reject the revision of the Constitution of
1850 reported by the commission of 1873. ‘The legislature, it
will be remembered, had authorized the commission to report
“such amendments and revision of the Constitution as in their
judgment might be necessary,” ete. In March, 1874, the legis-
lature submitted to the people, not specific amendments, but an
entire Constitution, in terms which compelled the electors to
adopt the whole or none, and which did not specify the changes
made or the parts of the Constitution affected by them. It was
very generally believed that the authority given the commission
to revise was unconstitutional, and for that reason, with others,
the electors refused to ratify it.}

1... “There was,’’ throuchout the State, it is said, “a latent feeling that,
although the processes by which it ’’ (the Constitution) “ was evolved might
be within the letter of the Constitution, the commis.ion, or the legislature,
or both, had assumed too much in making a general revision; that a revision
should spring from the wish of the people properly expressed throngh the
hallot-box. and be made by a Convention chosen for the purpose, as contem-
plated by the Constitution itself, and not from the legislature, or from a body
of its creation.” — Letter to the author from the Hon. S, B. McCracken.

Of the doubtful constitutionality of this attempt to revise the Constitution
by a commission, that body, as well as the legislature, seem to have been con-
vinced, since, in Article XVIIL of the revised Constitution, after providing
for a Convention to revise or amend that instrument, they added a provision
“for a commission to be appointed by the Governor, by and with the advice
and consent of the Senate,” for the same purpose. This provision, however,
was, with the rest of the Constitution, rejected Ly the people.
576 NATURE OF THE ACT OF A LEGISLATURE

) 547. It is a matter of interest now to ascertain, first, the
nature of the participation of a legislature in the work of amend-
ing a Constitution — whether the act it performs is an act of
legislation or a special ministerial act, finding its analogies in
those of a Convention, which, as we have seen, are mere recom-
mendations addressed to a body above and beyond it, which
alone enacts them into laws; and, secondly, when that body
recommends amendments to a Constitution, the extent of its
power in that particular.

I. In relation to the first subject of inquiry, there will be found,
I am confident, upon a careful survey of the whole field, two
distinct cases: first, that in which legislatures intervene to call
Conventions, or to require the people to vote upon the question
of calling Conventions, or upon amendments which legislatures
submit to them ; and, secondly, that in which legislatures merely,
by resolution, declare the adoption of specific amendments to
be expedient, as a preliminary step towards submitting them to
a vote of the people. In the first case, their action is believed
to be strictly legislative ; in the second, to be merely ministerial.
These will be considered in their order.

In every case in which a legislature intervenes in the business
of fundamental legislation, it does so by some vote or resolu-
tion ; and to determine whether or not, in so doing, it performs
an act of legislation, the readiest mode is to examine the result
of its deliberations in detail. If it have the characteristics of a
Jaw, if it appear to have been passed by the law-making power
within the scope of its authority as such, and to furnish a rule
of action binding upon individuals, it must be classed with acts
of legislation, whatever fine-spun theories may teach to the con-
trary.

It has been seen that our Constitutions usually provide for the
call of Conventions by the legislature, either at their own dis-
cretion, or upon the expressed desire of the people voting on
the question at some fixed time, or when requested so to do by
the legislature. The essence of the provisions, however, is, that
the legislature, when moved thereto by an evident expediency, or
by the public voice constitutionally expressed, shall call a Con-
vention. This course has been universally followed, and the
call has commonly been made in very nearly the same terms.
It generally provides for an election on a given day, to choose
WHEN IT PARTICIPATES IN AMENDING A CONSTITUTION. 577

delegates for a Convention ; it prescribes the duty of the dele-
gates, namely, to revise the Constitution, sometimes descending
to particulars, as, to amend that part of it relating to the basis
of representation, or to the appointment and tenure of judicial
offices ; to determine the construction of a particular clause, and
the like; it fixes the time and place of assembling ; imposes lim-
itations and restrictions upon its powers ; ascertains the pay of
its officers and members; and prescribes the disposition to be
made by the Convention of the fruit of its deliberations, as,
that it shall be submitted to the people, for ratification or rejec-
tion; that a copy of it shall be lodged with the Secretary of the
Commonwealth, or be recorded in his office. Connected with
the duties presented, or the limitations imposed, penalties are
not unfrequently denounced, as, for illegal voting at the poll for
ratifying or rejecting the Constitution, or for making false returns
of the votes.!

Now, is it reasonable to deny to acts of the legislature, bear-
ing thus the style and semblance of laws, containing mandatory
clauses directed to public officers or to individual citizens, ac-
companied by penalties for such as should transgress or disobey
them, the force of laws?

§ 548. Similar considerations apply, to some extent, to the
action of a legislature in the initiation of specific amendments,
or in the matter of submitting Constitutions to the people. The
general course, in these cases, is for the legislature, after the ap-
propriate preliminaries, to require the electors, on a day specified,
to cast their votes for or against the propositions indicated by it,
laying down for the direction of the public officers, as well as
of the voters, the specific injunctions needed to secure an ade-
quate and honest expression of the public will. Can a reason
be conceived why the intervention of a legislature in this busi-
ness, prescribing rules of conduct, and denouncing, as it com-
monly does, penalties for acts of disobedience, should not be
considered an act of legislation as much as when it takes steps
identical in character, but respecting interests that are temporary
and trivial ?

The soundness of this view may be tested by adverting to

1 The Act of the New York Legislature, passed March 21, 1821, calling the

Convention of that year, contained provisions on all these subjects, of the kinds
indicated.
578 NATURE OF THE ACT OF A LEGISLATURE

the consequences of denying to the Acts in question validity as
laws, and conceiving of them as simple recommendations. What
certainty could there be as to the result of an election, in which
some of the voters should obey, and some should disobey the
commands of the legislature, with reference, for example, to vot-
ing without prescribed qualifications, or to taking an oath to
discharge the duty of inspectors of the election faithfully, and
to make due returns thereof to the specified officers? Without
the restraints of law, what are usually regarded as necessary
safeguards of elections would rest merely in the discretion of
the persons offering to vote; that is, they would practically have
no existence; and, of course, the elections, considered as expres-
sions of the public voice, would be a mere farce. As to those
parts of the action of a legislature indicated, then, we are forced
to concede that it is properly legislative.

§ 549. 2. On the other hand, when the legislative action con-
sists simply in affirming, by a resolution intended only as a step
preparatory to further and other action either of that or of some
other body, the expediency of amending the Constitution, or in
merely proposing such amendments as it deems desirable, such
action cannot properly be called legislative. A mere declaration
of opinion or a recommendation, to which the people may or may
not, at their discretion, assent, it would be an abuse of language
to style a command, or a rule of civil conduct. A good example
of such recommendatory action, is that exhibited by Congress
in proposing amendments to the Federal Constitution. When
that body has proposed the amendments deemed by it to be desir-
able, its action is at an end. If the propositions it makes receive
the ratification of the legislatures of three-fourths of the States,
or of Conventions in three-fourths thereof, they become parts of
the Constitution ; otherwise, they fall to the ground.

Upon this point we are not without authority to which great
respect is due. In the Massachusetts Convention of 1820, ina
discussion of a report of a committee on the subject of future
amendments by the legislative mode, on the recommendation of
two-thirds of each house, Mr. Webster moved to amend by re-
quiring two-thirds of the House, and a majority of the Senate,
and in support of his amendment said: —

“ The object of the mode proposed for making amendments

. . . was to prevent the people from being called upon to inake
WHEN IT PARTICIPATES IN AMENDING A CONSTITUTION. 579

trivial amendments, or any amendments, except when a real evil
existed. A reason for requiring two-thirds of the House, and
only a majority of the Senate, was, that the general sense of
the people was better expressed by representatives from small
districts, than from large ones. This was not an exercise of lege
islative power — tt was only referring to some branch the power
of making propositions to the people.” 4

So, also, on the same subject, Mr. Lincoln said : —

“The whole power in relation to amendments, might as well
be left to the Senate as to require the consent of two-thirds. . .
One-third of the Senate might be chosen by a little more than
one-fifth of the people, and might prevent the wishes of the
other four-fifths. . . . There was no danger of a political excite-
ment continuing two years, so as to have a bad influence on the
frame of government. The proposing amendments was not a
subject of legislation, and there was no need of a check.”* The
aim of these gentlemen was to show that in requiring more than
a majority of the legislature or of some branch of it, to propose
amendments to the Constitution, no principle was violated, az
would have been the case had it been an exercise of ordinary
legislation, for which, by the common practice of all free gov-
ernments, a majority is sufficient. Being not an exercise of
legislation at all, there was no impropriety in requiring a vote
of two-thirds or of any other majority.

) 550. In the Virginia Convention of 1829, one speaker, Mr.
Thompson, went beyond the position taken by Messrs. Webster
and Lincoln, above explained, and denied that Acts of the legis-
lature to take the sense of the people, or lo organize a Conven-
tion, were Acts of ordinary legislation. He said: —

“No one ever supposed that the Acts to take the sense of
the people, and to organize a Convention, were Acts of ordinary
legislation; or, properly speaking, Acts of legislation at all, as
little so as an election by that body of any officer... .. The
truth is, the action of the ordinary legislature on this subject . . .
is not of the character of ordinary legislation. It is in the nature
of a resolve or ordinance adopted by the agents of the people,
not in their legislative character, for the purpose of collecting
and ascertaining the public will, both as to the call and organ-
ization of a Convention, and upon the ratification or rejection

' Deb. Mass. Conv. 1820, p. 407. 2 Td. 405.
580 EXTENT OF THE POWER OF A LEGISLATURE

of the work of a Convention.”! It being a matter of interest
to know what such Acts were, if not Acts of legislation, the
speaker thus explained his views on that subject : —

“The Acts spoken of were called for by their constituents,
resulted from the necessity of the case, and were justified by
that supreme and paramount law, the salus populi. In short,
they supplied the only mode by which the original right of the
people to meet in full and free Convention to reform, alter, or
abolish their form of government, could be exercised without
jeopardizing the peace, tranquillity, and harmony of the State.”?

Thus, to escape the conclusion that the Convention Act was
a law, binding upon the members of the Convention, the speaker
based the Act of the legislature upon usurpation, and that of
the people in pursuance of it, upon the right of revolution. To
this hard necessity was he reduced to sustain the main position
taken in his argument, that the submitting of the Virginia Con-
stitution to the people, in a manner different from that prescribed
by the General Assembly, was not an illegal act, or one which
the Convention had no power to do.

§ 551. II. In relation to the extent of the power of a legis-
lature to recommend specific amendments to a Constitution, in
what I have styled the legislative mode, no reason is perceived
why, in the absence of constitutional restriction, the legislature
should not be at liberty to propose amendments to either part
of the Constitution, the frame of government, or the Bill of
Rights. And yet, doubtless, much might be said against the
expediency of making very thorough or extensive changes in the
Constitution, in a mode which is well adapted only to the enact-
ment of few and simple amendments. The ground of this ob-
jection is that, in the legislative mode, there can ordinarily be no
discussion worthy of the name in the preseuce of the electorate,
the body with which lies the important and decisive function of
giving to the proposals of the legislature the force of law. In-
stances have occurred, however, of restrictions which doubtless
would bind the legislature not to make certain proposals. Thus,
the Delaware Constitution of 1776 declared that no article of the
declaration of rights, nor the first, second, fifth (except the part
relating to the right of suffrage), twenty-sixth, and twenty-ninth
articles of the Constitution ought ever to be violated on any

1 Deb. Va. Conv. 1829, p. 887. 2 Thid.
TO RECOMMEND SPECIFIC AMENDMENTS, 581

pretence whatever. It then specifies a mode in which changes
may be made, in other parts of the Constitution, through the
action of the assembly. Although this was not in terms a posi-
tive prohibition, it was such in intention and effect. Several
Constitutions prohibit the proposing of amendments to the Con-
stitution by the legislature oftener than once in so many years ;1!
or before a specified time ;? or the proposing of more than a cer-
tain number at the same time; or providing that while an
amendment or amendments, agreed upon by one General Assem-
bly, shall be awaiting the action of the succeeding General As-
sembly, no additional amendment or amendments shall be pro-
posed. There can be no doubt that any amendment proposed
in violation of these provisions would be declared by the courts
to be void, for neither would the legislature have the power to
propose nor the people to adopt them. To decide otherwise
would be to hold that the legislature can constitutionally do an
act expressly forbidden by the Constitution ; and that the peo-
ple by an unauthorized vote, a vote recommended in violation
of the Constitution, which in effect would be a vote taken at
their own instance alone, can enact a valid constitutional amend-
ment. Among all the wild assertions of power in the people
ever made, it has never been contended that they can enact an
ordinary statute at all, and it has never but once been contended
that they can enact a Constitution without the previous recom-
mendation of the legislature, acting under the express authoriza-
tion of the existing Constitution. The exception was in the case
of the attempted revolution of the Dorr party in Rhode Island,
in 1841, the character and result of which have been depicted in
a former part of this work.5

§ 551 a. Two decisions of the Supreme Court of Arkansas
which bear directly on the question of the extent to which a
legislature may propose amendments to the Constitution will be
here considered. As the discussion of them will tend to throw

1 New Jersey, 1844, and Pennsylvania, 1838, not oftener than once in five
years; Tennessee, 1834 and 1870, not oftener than once in six years.

® Mississippi, 1868, no amendment affecting the eighteenth section of the
Bill of Rights, which forbade a property or educational qualification to be an
elector, before 1885.

§ Colorado, 1876; Illinois, 1848 and 1870; and Oregon, 1857, not more than
one amendment at a time; and Arkansas, 1868, not more than three at a time.

4 Indiana, 1851.

5 See §§ 226-241, ante.
582 EXTENT OF THE POWER OF A LEGISLATURE

light upon a point in respect to which misapprehension has not
infrequently existed, they will be examined at some length.

The 14th Section of the Bill of Rights of the Arkansas Con-
stitution of 1836, contained the following provision: “ That no
man shall be put to answer any criminal charge but by present-
ment, indictment, or impeachment.” By the 24th Section, it was
declared as follows: “ Every thing in this Article” (Article IL,
comprising the Bill of Rights) “is excepted out of the general
powers of government, and shall forever remain inviolate.” At its
session in 1844, the General Assembly of Arkansas, in pursuance
of authority given in the Constitution, proposed an amendment
to the Constitution, which was finally adopted by the next suc-
ceeding General Assembly, in 1846, to the following effect: the
amendment declares that “the General Assembly shall have
power to confer such jurisdiction as it may from time to time
deem proper, on justices of the peace, in all matters of contract,
covenants, and actions for the recovery of fines and forfeitures,
when the amount claimed does not exceed one hundred dollars;
and in actions and proceedings for assault and battery, and other
penal offences, less than felony, which may be punished by fine
only.” ‘

For the purpose of carrying into effect the power thus con-
ferred, the General Assembly, in December, 1846, passed an Act
entitled “An Act to define the Jurisdiction and regulate the Pro-
ceedings of Justices’ Courts in cases of Breaches of the Peace,”
of which the Ist Section declared, that “hereafter no assault
and battery or affray shall be indictable, but such offences shall
be prosecuted and punished in a summary manner, by present-
ment of a constable, or any other person, before justices of the
peace, as hereinafter provided ;” thus, contrary to the 14th Sec-
tion of the Bill of Rights as it originally stood, putting persons
arrested for assault and battery, or for an affray — both criminal
charges — to answer without “ presentment, indictment, or im-
peachment.” At the October Term, 1847, of the Circuit Court
of Carroll County, the grand jurors returned an indictment
against Jackson A. Cox, for an assault and battery. Defendant
pleaded to the jurisdiction of the court, alleging that by the Act
of December 16th, 1846, the court was divested of jurisdiction
of the offence, and jurisdiction thereof given to justices of the
peace. To this plea the Attorney for the State demurred, the
court overruled the demurrer, and the State appealed.
TO RECOMMEND SPECIFIC AMENDMENTS, 583:

On the hearing in the Supreme Court, the point raised was,
that the Bill of Rights had not been amended by the proceed-
ings of the legislature, but was still in force, notwithstanding
those proceedings, that body having no power to amend that
part of the fundamental law, under the specific power given it
to amend the Constitution, by Article IV. § 35, thereof; since by
the terms of Section 24 of the Bill of Rights (Article I.) every
thing contained in that Article was excepted out of the general
powers of government.

§ 552. This objection the Supreme Court overruled, and sus-
tained the judgment of the court below declaring the amend-
ment valid and the Act constitutional. By Oldham J., they
say :—

“To the general and ordinary powers of the government con-
ferred by the Constitution, the prohibition extends, and no further,
but does not limit the General Assembly, in the extraordinary
and specific authority and power conferred upon it, to propose
and adopt amendments to the Constitution. The Constitution,
‘in prescribing the mode of amending that instrument, does not
limit the power conferred to any particular portion of it, and
except other provisions by declaring them to be amendable. The
General Assembly, in amending the Constitution, does not act:
in the exercise of its ordinary legislative authority, of its general
powers; but it possesses and acts in the character and capacity
of a Convention, and is, guoad hoc, a Convention, expressing the
supreme will of the sovereign people, and is unlimited in its
power save by the Constitution of the United States. There-
fore every change in the fundamental law, demanded by the
public will for the public good, may be made subject to the lim-
itation above named.” }

§ 553. Three years later, the composition of the Supreme
Court having undergone a change, another case, similar in its
essential circumstances, except that the Circuit Court had pro-
nounced against the validity of the amendment, notwithstand-
ing the above decision, came before that tribunal on appeal taken
by the respondent.?

After full argument, the main point decided by the court in
The State v. Cox, was overruled, the judges holding, that the

1 The State v. Cox, 3 English’s R. 436.
2 Eason v. The State, 6 English’s R. 481.
584 EXTENT OF THE POWER OF A LEGISLATURE

provisions of the Bill of Rights constitute the essential princi-
ples of free government—the great landmarks of freedom —
that the power to repeal or change them is not given to the
General Assembly when acting either in the exercise of ordi-
nary legislative authority or in the exercise of the higher power
of amending the Constitution, but is reserved to the people
themselves, acting through a Convention, lawfully called.

The principal argument by which this position was supported,
rested upon a construction of Section 24,— the concluding sec-
tion of the Bill of Rights,— a part of which has been given
above, but which, entire, is as follows: —

“This enumeration of rights shall not be construed to deny or
disparage others retained by the people; and to guard against
any encroachment on the rights herein retained, or any transgres-
sion of any of the higher powers herein delegated, we declare,
that every thing in this Article is excepted out of the general
powers of government, and shall forever remain inviolate; and
that all laws contrary thereto, or to the other provisions herein
contained, shall be void.”

By the court it was maintained, that one of “the higher pow-
ers herein delegated,” was the power of amendment; since, they
said, in those terms must be included all the powers delegated,
whether they be denominated “ general powers” or “ specific
powers ;” “inevitably, therefore,” it was said, “if these powers
of amendment be a portion of the ‘higher powers delegated,
which no one will attempt to gainsay, they must necessarily be
as much within the controlling influence of the provisions of the
Bill of Rights, as any others of these delegated powers.” 1

§ 554. Upon this decision of the court, I shall make but one
or two observations.

That the reasoning of the court in relation to Section 24 of
the Bill of Rights and the power of amendment, is utterly fal-
lacious, becomes evident when that section is fairly interpreted,
according to its terms, and considered in connection with the
other sections of the Bill of Rights.

Read and interpreted as it should be, Section 24 is as fol-
lows : —

“ This enumeration of rights shall not be construed to deny
or disparage others retained by the people,’ — that is, the rule

1 Eason v. The State, 6 English’s R. 481 (490).
TO RECOMMEND SPECIFIC AMENDMENTS. 585

of law, “ expressio unius est exclusio alterius,” shall not obtain,
as arule of construction, in relation to this Bill of Rights, but
the people shall hold and enjoy all such rights as belong to them,
whether specified in this Bill of Rights or not;— “and to guard
against any encroachment on the rights herein retained,’ that
is, in this Bill of Rights specially reserved to the people; “ or
any transgression of any of the higher powers herein delegated,”
that is, in this Bill of Rights delegated ; “ we declare that every
thing in this Article,” that is, in this Bill of Rights, “is excepted
out of the general powers of government, and shall forever
remain inviolate,” that is, the three departments of the govern-
ment, created by the following Articles of this Constitution, leg-
islative, executive, and judicial, and invested, severally, in gen-
eral terms, with governmental powers, shall not, by reason of the
generality of the grants of power to them, presume to encroach
on the rights, or transgress any of the powers, in this Bill of
Rights retained or delegated, but the same shall forever remain
inviolate; “and” we further declare, “that all laws contrary
thereto, or to the other provisions herein contained, shall be void,”
that is, that all laws, passed by the General Assembly, by virtue
of its general power of legislation, contrary either to the rights
retained, the powers delegated, or the other provisions contained
in this Bill of Rights, shall be void.

§ 555. That this is the true interpretation of the section in
question is evident from a careful inspection of the Bill of
Rights as a whole. The interpretation given requires us to find
in the Bill of Rights three classes of provisions: 1, such as re-
serve to the people rights ; 2, such as delegate powers ; and 3,
other provisions, differing from both the other two.

Of the first class there are numerous examples, such as the
right to bear arms, freely to assemble and to apply for redress of
grievances, &c. Of powers delegated, instances are found in
Section 23, which provides, that “the military shall be kept
in strict subordination to the civil power;” and in Section 8,
which permits the giving of the truth in evidence in prose-
cutions for the publication of papers investigating the official
conduct of officers or men in a public capacity; and empowers
juries “to determine both the law and the facts” in all indict-
ments for libels. These provisions clearly involve a grant of
power to the General Assembly to make laws in harmony with
586 SHOULD SPECIFIC AMENDMENTS

them, and to carry them into effect, making it at the same time
its duty to do so. Of other provisions, examples are found in
those clauses of the Bill of Rights which are couched in nega-
tive terms, and operate as restraints upon the various depart-
ments of the government, in the exercise of their acknowledged
powers, rather than as substantive grants, or positive recogni-
tions of rights or powers. Such are the provisions against ex
post facto laws, the putting of persons twice in jeopardy of life
or limb, for the same offence, and the like.

Having thus its full operation by applying it to the Bill of
Rights alone, it is, in my judgment, erroneous to extend the
provision of the 24th Section, as do the Court in the case under
consideration, to that part of the Constitution relating to the
making of amendments by the General Assembly.

Besides, it is noticeable, that it is “out of the general powers
of government” that every thing enumerated in the Bill of
Rights is excepted, not out of powers which are not powers of
government at all, like that of amending the Constitution given
to the General Assembly. A power of government is a power
which expends itself in administering or operating the political
machine established by the Constitution, not one which goes to
the rebuilding of that machine itself; or, ‘to use a metaphor
already once employed by me, it is a power proper not for the
millwright, but for the miller.

T need hardly say, therefore, that I deem the first decision of
the Supreme Court, in the case of The State v. Cox, the better
law. It expresses with admirable brevity, force, and clearness,
the true doctrine in regard to the power of our General Assem-
blies under similar clauses of our Constitutions.

§ 556. III. The question has been raised, whether or not
propositions of specific amendments to a Constitution, made by
a legislature, under the constitutional provisions referred to,
ought to be submitted to the executive for approval.

Judging of this question from a priori considerations, it
seems that the answer should be, that whenever the proposi-
tions are coupled with provisions which impart to the legislative
Act, in whole or in part, the force of law, according to the prin-
ciples above explained,! they ought to receive the approval and
the signature of the executive ; but that when they bear only the

1 See ante, §§ 547-550.
BE SUBMIITED TO THE EXECUTIVE? 587

character of recommendations, they ought not to be submitted
to the executive. The reason for this distinction is simple. By
our Constitutions, all Acts of the legislature, before they can
become operative as laws, must receive the sanction and signa-
ture of the executive branch of the government. An Act which
is not legislative in its nature, and when perfect and operative
to the full extent intended by its framers, is yet destitute of all
vigor as a law, not coming within the terms of the constitu-
tional provisions, would clearly not be subject to the same con-
ditions. ,

1. This question, so far as relates to amendments to the
Federal Constitution, has been several times the subject of dis-
cussion in Congress, and once of adjudication in the Supreme
Court of the United States.

The clauses of the Constitution of the United States, bear-,
ing on the question, are as follows : —

“ Art. V. The Congress, whenever two-thirds of both houses
shall deem it necessary, shall propose amendments to this Con-
stitution, . . . . which shall be valid to all intents and purposes
as part of this Constitution, when ratified by the legislatures of
three-fourths of the several States, or by Conventions in three-
fourths thereof, as the one or other mode of ratification may be
proposed by Congress.”

Art. I. Sec. 7. “ Every order, resolution, or vote, to which the
concurrence of the Senate and House of Representatives may
be necessary (except on a question of adjournment), shall be
presented to’ the President of the United States; and, before
the same shall take effect, shall be approved by him, or, being
disapproved by him, shall be repassed by two-thirds of the Sen-
ate and House of Representatives, according to the rules and
limitations presented in the case of a bill.”

§ 557. It would naturally be supposed that a recommenda-
tion of amendments by Congress, by two-thirds of both houses,
if not a bill, might properly be designated as a resolution
or vote; and hence, that by the very terms of Art. L Sec. 7,
above quoted, such a recommendation ought to receive the
approval of the Executive.

On the other hand, a close examination of Article V. shows
that it contemplates nothing but a mere expression of opinion
that amendments to the Constitution are necessary. That body
588 SHOULD SPECIFIC AMENDMENTS

being a numerous one, and representing the people, it is deemed
probable that, whenever two-thirds of both its branches pro-
nounce particular organic changes to be expedient, such is the
sense of the people at large. There is to be no submitting of
propositions to a vote of the people, consequently no directions
for conducting an election, or making returns of votes,— in
short, no prescribing of a rule of action to officers or citizens,
for the reason that all action upon the subject is to be taken by
separate agencies fully organized under State laws. In this
view of the Constitution, then, the necessity of executive ap-
proval seems to be very doubtful; and of this opinion are the
authorities generally.

Amendments to the Federal Constitution were proposed by
Congress in 1789, in 1794, in 1803, and in 1866, and in neither
case were they presented to the President for his approval.!
The same is substantially true of the amendments relative to
slavery proposed by the same body in 1865.7

The question we are considering was passed upon by the
Supreme Court of the United States, in the case of Hollings-
worth v. The State of Virginia,’ in relation to the eleventh
amendment, proposed in 1794. The validity of that amend-
ment was denied by one of the parties in that cause, on the
ground that it had “ not been proposed in the form prescribed by
the Constitution,” in that it appeared, upon an inspection of
the original roll, that “the amendment was never submitted
to the President for his approbation.” In support of this posi-
tion, the language of the first article of the Constitution, above
given, was mainly relied upon; and to the argument of the op-
posing counsei, that as two-thirds of both houses were required
‘to originate the proposition, it would be nugatory to return it
with the President’s negative, to be repassed by the same
number, it was answered that that was no reason for not pre-
senting it to the President, since the reasons assigned by the
latter for his disapprobation might be so satisfactory as to re-
duce the majority below the constitutional proportion. On the
other side, beside the argument above specified, it was urged by

1 See Speech of Senator Trumbull of Illinois, in the Senate of the United
States, in Daily Globe for February 8, 1865. See also Hollingsworth v. Vir-

ginia, 3 Dall. R., 378.
2 Tbid. 3 Tbid.
BE SUBMITTED TO THE EXECUTIVE ? 589

Lee, Attorney-General, that the case of amendments was evi-
dently “a substantive act, unconnected with the ordinary busi-
ness of legislation, and not within the policy or terms of invest-
ing the President with a qualified negative on the Acts and
Resolutions of Congress.”

On the day following the argument, a unanimous per curiam
opinion was delivered, that the amendment had been constitu-
tionally adopted. ‘The only language used by the Court which
appears in the report is that of Chase, Justice, who observed as
follows: —“ The negative of the President applies only to the
ordinary cases of legislation: he has nothing to do with the
proposition or adoption of amendments to the Constitution.”

§ 558. The opinion thus expressed by the Supreme Court co-
incides with that entertained by the Senate, when the amend-
ment of 1803, respecting the mode of electing President and
Vice-President of the United States, was under consideration.
From the journals of that body, it appears that the question
was distinctly raised on a motion that the amendment should
be submitted to the President for his approval. The following
is the entry on that subject : —

“On motion that the Committee on Enrolled Bills be directed
to present to the President of the United States, for his appro-
bation, the resolution which has been passed by both Houses of
Congress, proposing to the consideration of the State legisla-
tures an amendment to the Constitution of the United States,
respecting the mode of electing President and Vice-President
thereof, it was passed in the negative — yeas 7, nays 23.”

§ 559. In 1865, the amendment proposed by Congress, rela-
tive to slavery, having by inadvertence been presented to the
President of the United States for his approval by a subordinate
officer of the Senate, Senator Trumbull, of Ilinois, chairman of
the Judiciary Committee of that body, introduced the following
resolution : —

“ Resolved, That the article of amendment proposed by Con-
gress to be added to the Constitution of the United States, re-
specting the extinction of slavery therein, having been inad-
vertently presented to the President for his approval, it is hereby
declared that such an approval was unnecessary to give effect
to the action of Congress in proposing said amendments, incon-
sistent with the former practice in reference to all amendments
590 SHOULD SPECIFIC AMENDMENTS

to the Constitution heretofore adopted, and being inadvertently
done, should not constitute a precedent for the future ; and the
Secretary is hereby instructed not to communicate the notice of
the approval of said amendment by the President to the House
of Representatives.”

Upon this resolution a discussion arose, in which were exhib-
ited the reasons for and against presenting amendments in such
cases to the President, with great fullness.

In favor of such presentation, it was argued, that the express
language of the Constitution required it, for it said, “every
order, resolution, or vote to which the concurrence of the Sen-
ate and House of Representatives may be necessary,” which
covered this case precisely. Propriety, moreover, sanctioned
such a course; for, if the President should dissent, and present
his objections to the two houses, it did not follow that the vote
of two-thirds could be again had to repass the resolution. And
there seemed a necessity, it was said, that the resolution should
be presented to the President, since only through him, by the
Secretary of State, could it readily be transmitted to the legisla-
tures of the several States. Without special provision of law,
unless it passed through the hands of the President, it would lie
a dead letter. As to the decision of the Supreme Court, while
it could not be denied that Justice Chase had said that the pro-
visions of the Constitution applied only to ordinary acts of
legislation, and that the Court concurred with him, yet not a
single reason was given for that proposition, nor was the argu-
ment made by counsel against the validity of the amendment
answered either by the opposing counsel or by the Court. Be-
sides, it was noticeable, that in the vote which was taken on the
question in 1803, among the names of those who voted for pre-
senting the resolution to the President were those of Mr. John
Quincy Adams and Mr. Pickering, and when such gentlemen
affirmed a step to be necessary, some argument might fairly be
required to show that it was not necessary. Finally, it was
denied that the precedents were all opposed to the presentation
to the President. The resolution passed in 1861 for an amend-
ment to the Constitution interdicting attempts by Congress to
interfere with slavery in the States, was submitted to the Presi-
dent, and approved by him, without objection, as in case of an
ordinary law.

1 Daily Globe for Feb. 8, 1865, Speech of Senator Howe of Wisconsin.
BE SUBMITTED TO THE EXECUTIVE? 591

§ 560. On the other band, by Senators 'Trumbull and Reverdy
Johnson, both profound lawyers and jurists, it was strenuously
contended that it was unnecessary and improper to present the
resolution to the President. Beside referring to the precedents
explained above, it was urged that the object of the constitu-
tional provision on the subject of amendments was simply to
initiate a mode by which the people should decide whether there
should be an amendment of the Constitution or not. The
action of Congress to that end did not, it was said, operate as a
law. The whole effect of it was to submit the question to the
people for their determination. Precisely the same effect was
given to amendments proposed by the legislatures of the States.
It would not be contended that the President had any control
over a Convention called by two-thirds of the State legislatures.
The proposition was, that no proposal by Congress of an amend-
ment to the Constitution, although having received the support
of two-thirds of both houses, was to be submitted to the States,
unless the President should approve it. Suppose the other
mode of proposing amendments, by two-thirds of the State
legislatures, should be adopted, would the President have any-
thing to do with that? All would admit that he would not.
Would Congress have anything to do with that? All would
admit that their duty would be an imperative one — simply to
call a Convention. So that the whole object of the clause
seemed to be to provide a mode by which the people might be
furnished an opportunity of deciding whether the Constitution
should be amended or not.

Moreover, what made it still more obvious, it was said, that
the Convention which framed the Federal Constitution did not
intend that the President should decide upon a resolution of
that description, was, that the resolution was not to be passed
unless it was concurred in by two-thirds of each house. The
constitutional provision which gives to the President the author-
ity to veto any bill submitted to him says, that if he disapproves
such bill or resolution, he is to send it back to the house in
which it originated, and if passed by that house and the other
by two-thirds, it is to become a law notwithstanding the veto.
It was true, it did not follow that it would get the same vote
after Congress had heard the President’s objections ; but, look-
ing at the two provisions — that which gives to the President
592 SHOULD SPECIFIC AMENDMENTS

the right to approve or disapprove, and that which looks to the
duty of Congress consequent upon his disapproval — it was
evident, it was said, that what was intended to be submitted to
the President was a question which was to be passed upon by
more votes than were necessary before it was submitted.

After these arguments, Mr. Trumbull’s resolution was agreed
to without a division.

§ 561. 2. The question has thus far been considered with
reference only to amendments to the Constitution of the United
States. Of cases where amendments have been made to State
Constitutions, I have, after considerable research, been enabled
to collect only the following precedents : —

In the Constitutions severally in force in Connecticut, Massa-
chusetts, and New York, specitic amendments may be proposed
by the legislature by resolutions, which are then referred to the
legislature next to be chosen. If adopted by the requisite ma-
jority, by such succeeding legislature, it is made the duty of the
latter to submit the amendments to a vote of the people. The
practice in those States has been not to present the resolutions
containing the proposed amendments to the Governor for ap-
proval, but to present to that officer the subsequent Act by which
they are submitted to the people. In New York, the proposi-
tions of amendment are sometimes incorporated in a bill, pro-
viding conditionally in one or more clauses for submission to the
people, and in those cases the bill is submitted to the Governor
for his approval. The existing Constitutions of Michigan and
Minnesota provide that amendments may be proposed by a
prescribed majority of the legislature, after which they are re-
quired to be submitted by that body to the people. In the
former State, the practice has been to effect this by a joint reso-
lution, and in the latter, by a bill; in both cases, however, com-
bining the propositions and the clauses submitting them to the
people in a single Act. In both cases, this Act is presented to
the Governor for his sanction. In the Constitutions of Georgia
and Rhode Island, amendments are permitted to be made by
the action of two successive legislatures, without submission to
the people; and in neither case are the resolutions proposing
the amendments presented to the Governor? In the Constitu-

1 Daily Globe for Feb. 8, 1865, Speeches of Senators Trumbull and Johnson.
2 The practice is the same in Alabama, though there the Constitution is
BE SUBMITTED TO THE EXECUTIVE ? 593

tion of Missouri authorizing amendments to be made in. the
same manner, the resolutions of the first legislature are pre-
sented to the Governor, and those of the second, not. In the
Constitution of Maine, finally, amendments may be proposed
by the legislature, which are then to be submitted to the people,
the Constitution itself containing particular directions as to the
time and mode of holding the election, and no action on the
part of the legislature being requisite, except by resolution to
notify the towns to vote on the proposed amendments as pre-
scribed in the Constitution. It is the practice to present the
resolutions embodying the amendments to the Governor.

In all these cases, the Constitutions give to the Governor a
qualified negative, substantially like that of the President of
the United States, except that of Rhode Island, which provides
no negative whatever. One Constitution, that of Connecticut,
gives to a majority of the legislature the power of passing over
the Governor’s head any measure returned with his objections.!

It thus appears that the practice of the legislatures of the
several States is generally conformable to the theoretical princi-
ples proper to govern in such cases, as developed in previous
sections of this chapter. :

§ 562. While the foregoing are the only precedents bearing
on the question under consideration which I have been able to
find, indications of opinion respecting it may be drawn from
the provisions of the Constitutions uf Delaware of 1792 and 1831,

submitted to the people between the two successive legislatures. See Collier v.
Frierson et al., 24 Ala. R. 100.

The facts in the case of Collier v. Frierson are as follows: The General As-
sembly of Alabama having, at its session in 1844-5, proposed several amend-
ments to the State Constitution, and submitted them to a vote of the people,
and the people having voted in favor of them, joint resolutions were adopted
at the next succeeding session of the General Assembly reciting these facts, and
declaring that the people had accepted “ the said amendments, which are in the
words and figures following,” — setting them all out except one, which was en--
tirely omitted, — and the usual clause was then added, enacting that “ the afore.
said amendments to the Constitution, proposed as aforesaid, and accepted by the
people as aforesaid, be ratified ;” held, “ that the amendment which was entirely
omitted from the ratifying resolutions was not constitutionally ratified, and
therefore failed.” z

1 For the facts stated in this section I am indebted to the Secretaries of
State of the several States mentioned therein. For the practice in Kentucky,
see note to § 581, post. See, also, Koehler v. Hill, 60 Iowa R., 543, 558.
594 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT,

and that of Louisiana of 1845. Those of Delaware provided.
that amendments might be proposed by two-thirds of each
house of the legislature, with the approbation of the Governor.
They were then to be published, and if adopted by three-fourths
of each branch of the succeeding legislature, they should be valid
as parts of the Constitution. The provision of the Louisiana
Constitution was the same, except that the successive legisla-
tures were to adopt the amendments, the first by a vote of three-
fifths, and the second by a majority only of the persons elected
to each house, and they were then to be submitted to the people.
In these cases, it is perhaps fair to infer that the action of the
second legislature did not require the approbation of the Gov-
ernor, else the clause requiring it for that of the first would
have been so worded as to apply to both. Especially may this
be inferred in relation to the Louisiana case, since the Constitu-
tion of that State referred to, while in one clause permitting the
second legislature to adopt resolutions of amendment by a ma-
jority vote merely, in another required to overcome the nega-
tive of the Governor a vote of two-thirds, which, supposing a
negative in such cases possible, would be inconsistent with the
former provision.

§ 563. IV. Before concluding the discussion of the doctrine of
amendments to the State Constitutions, I propose further to con-
sider two questions several times alluded to in preceding pages,
but particularly germane to the subject now in hand, namely,
(a.) Whether, when a Constitution contains a provision for effect-
ing its own amendment, in one of the modes above mentioned
only, the other mode can be adopted, or whether the constitu-
tional provision must alone be pursued for that purpose? (6.)
Whether, when a Constitution contains no provision for amend-
ments at all, either of the two modes may be pursued ?

(a.) In respect to the first question, there may be two cases,
according to the terms in which the constitutional provisions are
couched.

1. The Constitution may contain clauses, in negative terms,
forbidding amendments. except when effected in a prescribed
mode. Instances of this kind have been given in this chapter,’
of which that contained in the Constitution of West Virginia
is the most striking. That Constitution, Art. XII., provides that

1 Anle, § 587.
CAN ANOTHER MODE BE PURSUED ? 595

no Convention is to be called to amend the same, “unless in
pursuance of a law to take the sense of the people on the ques-
tion of calling a Convention, nor unless a majority of the votes
of the people should be in favor of a Convention.” It also pro-
vides that no members of a Convention are to be elected “ until
one month after the result of the poll should be ascertained and
published ;” and that all Acts and Ordinances of any such
Convention are to be submitted to the voters of the State for
ratification or rejection, and “ are to have no validity whatever
until they are ratified.”

The question as to the force of such provisions may be deter-
mined by considering the case of a Convention called by the
legislature of West Virginia, without submitting the question
of calling it to the voters, as required by the Constitution. It
is believed, it would be impossible to attribute to such a body
any validity or legitimacy whatever. The Act by which it
should be assembled would have been passed in direct and pal-
pable violation of the paramount law of the State, and would,
therefore, bind neither the magistrate nor the citizen; it would
be an act of revolution. This is too plain for argument; and,
doubtless, all cases depending on provisions of a similar char-
acter are to be governed by the same considerations.

§ 564. That the estimate formed in the last section of the
force of the negative provisions in question is a correct one,
may be inferred from the acts and expressed opinions of the
members of the Federal Convention, in relation to the Articles
of Confederation, in which a similar provision relating to
amendments was contained. By the 13th of those Articles, it
was provided that no alteration should at any time be made
in any of those Articles, “unless such alteration (should) be
agreed to in a Congress of the United States, and be afterwards
confirmed by the legislature of every State.” It is well known
that the Federal Constitution of 1787 was, in direct violation of
that Article, confirmed, not by the legislature of each State, but
by Conventions called in the several States. It was provided,
moreover, in that Constitution, in palpable contradiction to the
same Article, that that instrument should go into operation as
to the ratifying States, when they should comprise, not the
whole thirteen States constituting the Confederation, but nine
States, at least. In fact, the new Constitution went into opera-
596 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT,

tion on the 4th of March, 1789, when only eleven States had
ratified it, North Carolina withholding her assent until the 21st
of November following, and Rhode Island, until the 29th of
May, 1790. But, the point to be noted is, that while the Fed-
eral Convention acted, in the particular mentioned, in evident
violation of the existing Constitution, it frankly admitted that
fact, and excused its illegal and revolutionary proceedings upon
the ground of absolute necessity. Our fathers were convinced
of two things: first, that the salvation of the United States
depended on the substitution of a firm national government for
the loose Confederation then existing; and, secondly, that to
attempt to effect that change by the unanimous action of the
State legislatures, as required by the 13th Article above quoted,
would be to court failure, which would be nearly certain ruin.
Hence the Convention, and hence its irregular provision for
securing the adoption of the system it recommended! In this
case, then, it is clear, that the act of disregarding the provisions
of the 13th of the Articles of Confederation, was done confess-
edly as an act of revolution, and not as an act within the legal
competence of either the people or the Convention, under the
Constitution then in force. It was truly a revolutionary act,
happily, indeed, consummated without actual force, but involv-
ing, as possible elements of the problem, both violence and blood-
shed, should they be needed to make the revolution effectual.

§ 565, There are certain cases, however, in which amend-
ments have been effected in spite of such negative provisions,
where attempts have been made to justify them on legal
grounds. One of the most notable of these occurred in Dela-
ware, in 1791-2. The first Constitution of Delaware, Article
XXX., was as follows: —

“ No article of the Declaration of Rights and Fundamental
Rules of this State, agreed to by this Convention,” (that of
1776,) “nor the first, second, fifth (except that part thereof that
relates to the right of suffrage), twenty-sixth, and twenty-ninth
articles of this Constitution, ought ever to be violated on any
pretence whatever; no other part of this Constitution shall be
altered, changed, or diminished, without the consent of five parts

1 For the arguments relating to this subject in the Convention, by which the

above statements are confirmed, see Elliott’s Deb., Vol. V. pp. 352-356, 499-502,
532-534.
CAN ANOTHER MODE BE PURSUED ? 597

in seven of the Assembly, and seven members of the Legislative
Council.”

As the Assembly consisted of only seven Representatives,
and the Legislative Council of only nine members, this provis-
ion required, to amend the Constitution in those parts which
were made liable to amendment, five-sevenths of the one, and
seven-ninths of the other, and the amendments were to be
effected through the agency only of the legislative branch.
Nevertheless, in 1791, the legislature passed an Act calling a
Convention to revise and amend the Constitution. Accordingly,
a Convention was elected, assembled in 1792, and framed the
second Constitution of the State.

Similar action was taken in 1850 in the State of Maryland.
The Constitution of 1776, then in force, Sec. 59, provided that
neither the Form of Government nor the Bill of Rights, nor any
part thereof, should be altered, changed, or abolished, “unless a
bill so to alter, change, or abolish the same should pass the Gen-
eral Assembly, and be published at least three months before a
new election,” &c.

After violent contests between the friends and enemies of a
reform of the State Constitution, an Act was finally passed in
1850, in direct violation of this provision of that instrument,
to call a Convention, the result of which was the election of
such a body, and the adoption by it of the Constitution. of
1851.

§ 566. Attempts, as I have said, have been made to defend
this action of the States of Delaware and Maryland, on legal
grounds. In the case of Delaware, the legality of the course
pursued was distinctly asserted by Mr. Bayard, the Senator from
that State, in a speech delivered in the Senate of the United
States, in 1858, upon the Lecompton Constitution. As one
reason why it would not be unjust to force that Constitution
upon the people of Kansas against their will, he affirmed, that
it would be in their power at any time to amend it, should it
prove distasteful to them, notwithstanding positive provisions
were contained in it forbidding amendments for a fixed period ;
and, to establish that position, he referred to the action of his
own State in 1792; the broad principle being asserted by him,
that a majority of a people could not be restrained by constitu-
tional inhibitions from changing their fundamental law when
598 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT,

and as they pleased. The reasoning, in brief, by which this re-
inarkable proposition was sustained, was comprised in these
political axioms, resulting, as he claimed, “from the nature of
man:” first, that all powers of governinent rest ultimately in
the people at large; secondly, that a majority of those who
choose to act may organize a government; and, thirdly, that the
right to change is included in the right to organize, and may
in like manner be exercised at any time by a majority. Accord-
ing to these principles, as the Senator affirmed, “the right of
a majority to organize a government, under the law of the
social compact, precludes any power in that majority to render
the government they form unalterable, either for twenty or ten
years, or for one year; because such a restriction is inconsistent
with their own authority to form a government, and at war
with the very axiom from which their own power to act is
derived.” 4

§ 567. So,.in reference to the Maryland case, the Hon. Rev-
erdy Johnson, United States Senator from that State, in a late
letter respecting certain proceedings of the Maryland Conven-
tion of 1864, said : —

“ No man denies that the American principle is well settled,
that all governments originate with the people, and may by like
authority be abolished or modified ; and that it is not within the
power of the people, even for themselves, to surrender this right,
much less to surrender it for those who are to succeed them.
A provision, therefore, in the Constitution of any one of the
United States, limiting. the right of the people to abolish or
modify it, would be simply void. And it was upon this ground
alone that our Constitution of ’76 was superseded by that of
TOL eae: The Constitution of 1851, therefore, rests on the
inherent and inalienable American principle, that every people
have a right to change their government.” Subsequently, re-
ferring to this principle, he says: “In its nature it is revolution-
ary, but, notwithstanding that, it is a legal principle.”

§ 568. Two points involved in these extracts deserve consid-
eration.

1. The right is claimed for the people to establish and to

1 Appendix to Vol. XX XVII. of the Congressional Globe, p. 188.

® Letter to William D. Bowie and others, dated October 7, 1864, published
in the N. Y. Daily Tribune of June 5, 1865.
CAN ANOTHER MODE BE PURSUED? 599

change their governments at pleasure —a right which cannot in
general be denied. But who are the people? In the true sense
of the term, it means the political society considered as a unit,
comprising in one organization the entire population of the
State, of all ages, sexes, and conditions. Unquestionably, it is
the right of the people in this sense to found its institutions, and
to determine how they shall and how they shall not be abolished
or amended. Having ordained the mode, however, in which
changes therein may, and in which they shall not, be made,
clearly no mode can be legal which contravenes the express let-
ter of that fundamental provision. The society has, it is true,
the physical power to override its own restrictions. But such
an act would most certainly be illegal, because in violation of
the letter of the law. Even were the whole people, by unani-
mous action, to effect organic changes in modes forbidden by
the existing organic law, it would be an act of revolution.

2. That whatever the people are authorized to do, a majority
of them may do, is generally true — by the term majority mean-
ing the greater number. But it is important to determine the
stage at which that proposition holds good. Nature knows
nothing of any majority but that of force. Anterior, then, to
any positive institutions, and this side an appeal to force, noth-
ing less than the whole can rightfully bind the whole. It is
only when a political society, with positive laws and compacts,
has been established, that the whole can be bound by the action
of a number less than the whole; and the number to which
shall be accorded the power to act for the whole, and the condi-
tions under which it may so act, are matters of positive regula-
tion, in which alone they find their warrant. From this it is
apparent, that a mere majority in number of all the citizens ot
a State, or of the electors of a State, have no right whatever to
act for the whole State, unless they can point to authority to
that effect, express or implied, in the Constitution of the State;
and that if the action taken or proposed by such majority is
palpably in the teeth of a constitutional provision, it is usurping
and revolutionary. This, it will have been observed, was ad-
mitted by Senator Johnson in the extract given above, although,
it is true, that eminent lawyer gave utterance to the astounding
paradox, that the action of the Maryland Convention was at
once revolutionary and /egal—a contradiction, which we have
600 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT,

a right not to expect from a man occupying the high position
of a Senator of the United States, not to say, of the foremost
lawyer of the Union.

§ 569. Whether or not the acts thus pronounced to be revolu-
tionary were necessary or excusable, that is, on the whole expe-
dient, even at the price of revolution, is a different question,
which I do not decide. But that they were revolutionary is
inferable from the preamble of the Act of the Delaware legisla-
ture calling the Convention of 1792, setting forth the grounds
upon which it took that step. It did not pretend to have a legal
right to call a Convention, but affirmed that it was expedient so
todo. Its language was as follows: “ By the thirtieth article
of the Constitution of this State, the power of revising the
same, and of altering and amending certain parts thereof, is
vested in the General Assembly; and it appears to this house
that the exercise of the power of altering and amending the
Constitution by the legislature would uot be productive of all
tle valuable purposes intended by a revision, nor be so satisfac-
tory and agreeable to our constituents; and that it would be
more proper and expedient to recommend to the good people of
the State to choose deputies for this special purpose to meet in
Convention.”

There can be little doubt that this was true, and that the
framers of the Constitution of 1776 acted indiscreetly in limit-
ing amendments, in negative terms, to the General Assembly,
and thereby, by irresistible inference, inhibiting the call of a
Convention. But the real question was not, is it expedient that
the Constitution be revised by a Convention, but can a Conven-
tion be called for that purpose, in the face of the provision, that
no part of the Constitution (with certain exceptions not to the
purpose here) should be “ altered, changed, or diminished, with-
out the consent of five parts in seven of the Assembly, and
seven members of the Legislative Council?” This latter ques-
tion the legislature itself answered implicitly in the negative,
when it premised that the power of revising the Constitution
and of altering and amending certain parts thereof was “ vested
in the General Assembly.” The Constitution having no express
provision for amendment in any save the legislative mode, the
General Assembly might undoubtedly have called a Convention,
had there been no clause in negative terms prohibiting it; for it
CAN ANOTHER MODE BE PURSUED ? 601

is thoroughly settled that a grant of general legislative author-
ity, alone considered, carries with it the power to call a Conven-
tion. But the power would have been an implied power, arising
by inference from the general power of legislation expressly
granted ; and it need not be said that no power can be implied
in the face of a direct and express prohibition. In such a case,
the prohibitive clause could not be construed as directory, but
must be taken to be absolutely mandatory. :

§ 570, 2. The second case involved in the first of the two
questions stated is that in which the constitutional provisions re-
lating to amendments are permissive merely, without words re-
stricting the legislature or the people to the mode or modes
prescribed.

In this case, the answer to the question would vary according
to the nature of the constitutional provisions : —

If the Constitution authorized its own amendment through
the agency of a Convention, without further provisions, it is
beyond dispute, that it could not be amended in what we have
called the legislative mode. This proposition no one, so far as
we are aware, has ever denied. Controversy has been confined
to the case in which a Constitution has contained no provision
for its own amendment, save in the legislative mode ; and it has
related to the question whether it could, nevertheless, be amended
through the agency of a Convention, —a question of greater dif-
ficulty, and one of such importance that it deserves a careful con-
sideration, to which we now proceed.

When the Constitution makes no provision, then, for amend-
ments, save in the legislative mode, can a Convention be law-
fully called? Looking first at the precedents, we have seen
in a former chapter,! that numerous instances have occurred in
which Conventions have been called by the legislatures of States
under the circumstances indicated. In some of these, the pro-
visions permitting amendments to be made, through the agency
of the legislatures, in a particular manner, or at a designated
time, had proved unsatisfactory, because they either required, to
effect their object, too large a majority of those bodies or of the
people, ‘or authorized them to be made at a time too remote, so
that the practical consequence seemed to be a closing of all ave-
nues toa seasonable change. In other cases, men of ability and

1 See ante, § 219.
602 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT,

experience had doubted the feasibility of effecting, in the legisla-
tive mode, so extensive and complicated changes as had been
made necessary by the lapse of time. Seeing in neither case any
peaceful alternative but the calling of a Convention, under the
sanction of law, that course has been pursued, not always with-
out doubt or protest, though generally with the consent of the
wise, to which time has commonly added the acquiescence of all.
Among the States which have called Conventions under these
circumstances, have been some of the most important in the
Union, and that action has been taken at all stages of our his-
tory.1 |

§ 571. In respect to the legitimacy of those Conventions, as
has been observed, it is now too late to raise a question. They
have the sanction of long and general approval, and, were there
greater doubt than exists as to their regularity or validity, the
necessities out of which they sprung, and the evils from which
their labors have from time to time rescued our States, would
give them strong claims to be recognized as lawful assemblies.
More than a century of constitutional history, indeed, has ren-
dered it quite clear that it would have been wise in our eatlier
Constitutions to forestall doubt by expressly providing, as is
very commonly done in those framed in our day, that it should
be competent for our legislatures to call Conventions, not only at
times definitely fixed, but whenever it should seem to them ad-
visable so to do. In popular governments, it is the part of wis-
dom to recognize the fact, that what the people strongly desire
they are likely in some manner to effect. If the attainment of
their purposes by legal means be rendered too difficult, they will
probably resort to such as are illegal. Having a right, within
the limits imposed by the moral law, and by their Constitutions,
State and Federal, to do whatever they please, restrictions
should have for their object mainly to make it certain that it is
the people who speak, and that the language uttered by them is
the expression of their matured opinions.

§ 572. Viewed upon principle, the question discussed in the
preceding section is sometimes made to turn upon the applica-

1 But compare the argument of Mr. Grimke, to the effect that the giving of
power to a legislature to propose amendments to the Constitution takes away
the power of a Convention to amend, in The State ex rel. McCready v. Hunt,
2 Hill S. C. Law R., 28, one of the so-called allegiance cases.
CAN ANOTHER MODE BE PURSUED ? 603

bility of the maxim, expressio unius est exclusio alterius, to the
construction of Constitutions. Were there no authority upon
the point, it would be doubtful, perhaps, whether, in dealing
with great questions of politics and government, the maxim, if
applicable at all, ought to apply with the same strictness as in
the construction of contracts between man and man. As a mat-
ter of speculation, it might be admitted that the maxim expresses
the weight of probability equally in cases of great and of small
magnitude. But in practice, where doubt arises, and there is
nothing to indicate decisively the intention of those who framed
the instrument, perhaps the people, assuming to exercise power
under one construction rather than another, should be given the
benefit of the doubt. It is questionable policy to attempt, by
abstract rules of law, in doubtful cases, to prevent or to control
great organic movements of the people. On the other hand,
when it is possible to apply the maxim, under the guidance and
in ald of un evident intention of the framers of the instrument,
sound policy would not disapprove of so doing; though it must
be admitted, that to make it applicable only under such a con-
dition would render it practically valueless, since the intention
which ought to guide in its application is, without the maxim, a
sufficient guide to the proper construction sought.

§ 573. But we are not left, for an answer to the question con-
sidered in the last section, to abstract reasoning alone. The ap-
plicability of the maxim, expressio unius, etc., under various cir-
cumstances, has been the subject of frequent discussion in and
out of the courts, and it will not be improper to refer briefly
to the authorities upon it.

On the one hand, there have been cited, to the effect that the
maxim in question is applicable to the construction of Constitu-
tions, opinions delivered by the judges of the Supreme Courts
of Massachusetts and Rhode Island, the former in 1833 and the
latter in 1883. The Constitutions of those States had provided,
in substantially identical terms, that the judges of the Supreme
Court should, “ upon important questions of law, and upon so]-
emn occasions,”! or ‘* whenever requested,” ? give their opinions
to the Governor, or to either branch of the legislature.

The Massachusetts Constitution of 1821 had made provision

1 Chapter IIL, Article IT., Massachusetts Constitution of 1821.
2 Article X., Section 3, Rhode Island Constitution of 1842.
604 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT,

for making specific amendments to that instrument through the
agency of the legislature, but not for calling a Convention. In
1833, the question being before the legislature of submitting to
the people the expediency of calling a Convention to alter or
amend the Constitution in some particular parts, a doubt was
raised whether it was competent for the legislature to take any
steps towards calling a Convention, inasmuch as the Constitution
had provided another mode of effecting the same object. The
following question was, therefore, submitted to the judges of the
Supreme Court: “Can any specific and particular amendment
or amendments to the Constitution be made in any other manner
than that prescribed in the ninth Article of the amendments
adopted in 1820?”

To this question the judges replied, that, “ considering that,
previous to 1820, no mode was provided by the Constitution for
its own amendment, that no other power for that purpose than
in the mode alluded to is anywhere given in the Constitution,
by implication or otherwise, and that the mode thereby provided
appears manifestly to have been carefully considered, and the
power of altering the Constitution thereby conferred to have
been cautiously restrained and guarded, we think a strong impli-
cation arises against the existence of any other power, under the
Constitution, for the same purposes.” !

§ 574. In the Rhode Island case, the facts were that the Con-
stitution of 1842 having provided for amendments in the legisla-
tive mode only, the Senate of that State, in 1883, asked of the
judges of the Supreme Court their opinion, whether, if the Gen-
eral Assembly were “to call upon the electors to elect members
to constitute a Convention to frame a new Constitution of the
State, and to provide that the new Constitution should be sub-
mitted for adoption” to the electors, . .. and if a majority of
the electors should vote in favor thereof, “the new Constitu-
tion would then become the legally adopted Constitution of the
State ?”. . . In reply, the judges said : —

“We have to say that we are of opinion that the mode pro-
vided in the Constitution for the amendment thereof is the only
mode in which it can be constitutionally amended. The ordinary
rule is that when power is given to do a thing in a particular
way, then the affirmative words, marking out the particular way,

1 For the whole opinion of the judges, see 6 Cushing’s R., p. 573.
CAN ANOTHER MODE BE PURSUED ? 605

prohibit all other ways by implication, so that the particular
way is the only way in which the power can be legally exe-
cuted.” ! They then refer with approbation to authorities hold-
ing that the maxim, ezpressio unius, etc., is of very wide appli-
cation, and cite as a precedent the opinion of the Massachusetts
judges.

As to the weight to be accorded this opinion, we will only
now observe, that so far as it is based upon that of the Massa-
chusetts judges, it is wholly without force, because the two cases
are very dissimilar in their facts, insomuch that, while it is possi-
ble to approve the opinion of the Massachusetts judges, it does
not follow, according to the principles propounded in it, that that
of the Rhode Island judges is to be approved. In the Massachu-
setts case, where the Constitution had provided a mode in which
“specific and particular amendments” might be made through
the agency of the legislature, the question put to the judges was
whether “any specific and particular amendment or amend-
ments” could be made in any other manner than that provided
in the Constitution. To this question the answer ought, accord-
ing to the principles announced by both courts, to have been in
the negative, since it inquired as to the lawfulness of doing the
same thing in a different way from that prescribed by the Con-
stitution. But that opinion could not properly be cited as au-
thority in the Rhode Island case, where the question was whether,
if a Convention were called “ to frame a new Constitution of the
State,” and it were adopted by the people, it would be valid, the
existing Constitution having provided a mode in which amend- .
ments thereof might be made, but not having authorized the call
of a Convention? Here, as we shall see in a subsequent section,
the proposition was to do a different thing, that is, to frame a
new Constitution, in a different way, and therefore according to
all authorities the maxim could have no application: in other
words, because the people could not do the same thing in a
different way, it does not follow that they could not do a differ-
ent thing in a different way.

§ 574.4. In the two preceding sections have been presented
opinions by the judges of two very respectable courts bearing, or
thought to bear, upon the question we are considering. In
respect. to the weight and value of these opinions, it may be

114 BL B., 649.
606 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT,

further observed that they were not properly judicial decisions,
binding upon either the officers propounding the questions which
they purported to answer, or upon the judges themselves.1 Not
only that: the opinion of the Massachusetts judges, so far as it
may be supposed to impute illegitimacy to any Convention called
“to revise, alter, or amend the Constitution,” where that in-
strument contains a special provision for making particular
amendments thereof, in the legislative mode, was repudiated by
a subsequent legislature, which called the Convention of 183,
notwithstanding the opinion, and by at least one of the judges
who rendered it, the Hon. Marcus Morton, a member of the last
named Convention, by whom its entire legality was maintained.
But waiving this, we pass to consider opposing authorities affirm-
ing the limited applicability of the maxim, and consisting of the
opinions of eminent statesmen and lawyers, and of judicial de-
cisions of able tribunals rendered in the actual trial of causes,
and after hearing the arguments, pro and contra, of distinguished
legal counsel.?

In Broom’s Legal Maxims, that author observes in relation to
the maxim in question, * that great caution is requisite in deal-
ing with it, for, as Lord Campbell, C., observed, in Saunders ».
Evans,’ it is not of universal application, but depends upon the
intention of the parties as discoverable upon the face of the in-
strument or of the transaction.” 4

In the Massachusetts Convention of 1858, upon the question
of the constitutionality of that body, the Hon. Joel Parker, for-
merly chief justice of New Hampshire, then a professor at the
Cambridge Law School, said : —

‘I believe this Convention to have been lawfully assembled.
. . . Is not this mode of amending the Constitution, which is
prescribed in the Constitution in express terms, perfectly con-

1 That opinions delivered by judges under the circumstances stated were
merely advisory and binding upon nobody, not even the judges propounding
them, see Appendix E, post.

2 How little weight ought, in the judgment of Mr. Justice Story, to be given
to opinions rendered by judges upon first impression, without such argument,
that eminent jurist himself stated in the Massachusetts Convention of 1820,
of which he was a member. See Appendix E, post.

38H. L. Cas., 729.

4 Broom, Legal Maxims, 7th American, 5th London ed., T. W. Johnson &
Co., 1874, p. 653.
CAN ANOTHER MODE BE PURSUED ? 607

sistent with the other mode, by a Convention of delegates? There
is no antagonism between the two modes, The people say by
their Constitution, ‘We will have a convenient mode by which
this instrument can be amended without a Convention; and we
will therefore embody a provision that the opinion of two suc-
cessive legislatures that the Constitution ought to be amended,
shall be submitted to us for our action without the expense of a
Convention.’ This is all very well; but does it exclude the idea
that a Convention may be holden where there is nothing antag-
onistic between the two modes? By no means.”

Still more explicitly, in the same debate, he said: “I do not
understand that there is anything in the terms of this provision
of the Constitution which makes it exclusive, — which makes
it the sole and only mode in which the provisions of the Consti-
tution are to be amended. I do not understand the principle to
be that the mention’ of one mode excludes all the other modes
which would have existed but for the mention of that mode.
What is the principle upon this subject ? I admit the principle
in common law that the designation of one person or one thing
in some instances is exclusion of all others; but does that prin-
ciple apply to this case? That principle applies to all cases
where, from the necessity or the nature of the case, it is shown
to be the intent that other things should be excluded.” !

In 1874 Mr. Charles O’Conor, the eminent lawyer, at the
instance of the New York Tribune, rendered an opinion touch-
ing the validity of certain amendments submitted to the people
of New York, in respect to which the regularity of the legisla-
tive action had been denied. In the course of his opinion, after
stating that concurrent resolutions of the legislative bodies in
two different years, and a final approval by the people, consti-
tuted the process prescribed by the Constitution, Mr. O’Conor
said : —

“ This instrument does not prohibit the employment of dif-
ferent means unless such a negative can be implied from its
having thus made provision for a method which is undeniably
convenient and suitable. I think it is not maintainable by any
fair reasoning that a State Constitution which so provides for its
own amendment cannot be altered or.varied from in any other
manner. Certainly such a negative implication is not admissible

2 Deb. Mass. Conv. 1858, Vol. I. p. 153.
608 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT,

in New York, for its present State government came into being
on precisely an opposite basis;” that is, was framed by a Con-
vention, for which no provision had been made in the Constitu-
tion of 1821.

So in Collier v. Frierson, decided by the Supreme Court of
Alabama in 1854, under the Constitution of 1819, which author-
ized amendments thereof by the legislative mode only, the court,
per Goldthwaite, J., say : —

“ The Constitution can be amended in but two ways: either
by the people, who originally framed it, or in the mode pre-
scribed by the instrument itself. If the last mode is pursued,
the amendments must be proposed by two-thirds of each house
of the General Assembly. . . . We entertain no doubt that, to
change the Constitution in any other mode than by a Conven-
tion, every requisition which is demanded by the instrument
itself must be fulfilled, and the omission of any one is fatal to
the amendment.” ! This is cited as the opinion of the judges
of the Supreme Court of Alabama, and not as a judicial de-
cision, as it was obiter dictum, so far as it relates to the call of
a Convention under a Constitution like that then in force in
Alabama. The following are not obiter, however.

In Eastern Archipelago Co. v. The Queen, in the English court
of Queen’s Bench, in a cause in which it was contended tliat the
maxim applied, for the reason that an express declaration in the
proviso, embodied in a charter, to the effect that, in case of non-
compliance with certain conditions, the crown might revoke and
make void the charter, under the Great Seal or sign manual,
excluded every other mode of revocation or annulment, Mr. Jus-
tice Williams said: “ This maxim of law is by no means of uni-
versal or conclusive application. For example, it is a familiar
doctrine that, though, where a statute makes unlawful that which
was lawful before, and appoints a specific remedy, that remedy
must be pursued, and no other, yet, where an officer was ante-
cedently punishable by a common law proceeding, as by indict-
ment, and a statute prescribes a particular remedy in case of
disobedience, that such particular remedy is cumulative, and
proceedings may be had either at common law or under the stat-
ute.” Even if it were conceded that authority to make specific

1 Collier v. Frierson, 24 Ala. R., 100, 108.
2 2 Ellis & Blackburn R., 878, 879.
CAN ANOTHER MODE BE PURSUED ? 609

and particular amendments was authority to do the same thing
as to make a general revision of a Constitution through the
agency of a Convention, undoubtedly the mode of doing the
thing by a Convention is the common law mode, antecedently
well understood and frequently used, and that by the agency of
the legislature is a statutory mode, and by analogy the reasoning
of the learned judge quoted is perfectly applicable to the ques-
tion we are considering ; in other words, the maxim expressio
unius cannot be applied to exclude the call of Conventions,
though not expressly authorized by the Constitution.

§ 574 6. So, in Barto v. Himrod,! the question was whether a
statute of New York establishing free schools, which was to take
effect only upon submission to and ratification by the people,
was or was not unconstitutional, as delegating the power of legis-
lation to the people. The existing Constitution had authorized
the submission to the people only of a law creating a public
debt. Upon this point Willard, J., said: —

- “Ido not mean to lay much stress upon the implication
arising from the express provision to submit a law creating
a debt to the people, and the silence of the Constitution in
relation to submitting to the people any other matters of legis-
lation. The maxim, ezxpressio unius est exclusio alterius, is
more applicable to deeds and contracts than to a Constitution,
and requires great caution in its application in all cases.” So,
in Wells v. Bain,? a case to which reference has already been
made,? where the Constitution of Pennsylvania had expressly
authorized amendments only by the legislative mode, but the leg-
islature had called a Convention for the revision of that instru-
ment, the court sustained the constitutionality of the Act calling
that body. After quoting the second section of the Declaration
of Rights, which affirmed that the people “have at all times an
inalienable and indefeasible right to alter, reform, or abolish
their government in such manner as they may think proper,” the
court, per Agnew, Ch. J., say: —

“The words ‘in such manner as they may think proper,’ in

14 Seld. N. Y. R., 483, 493. See also Williams v. Mayor, etc., of Detroit,
2 Mich. R., 563, 564, where it was held that the maxim is not applicable in the
construction of a State Constitution upon the subject of taxation.

275 Pa. St. R., 40, 46.

3 See ante, §§ 409 a, 409 c.
610 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT,

the Declaration of Rights, embrace but three known recognized
modes by which the whole people — the State—can give their
consent to an alteration of an existing lawful form of govern-
ment, viz.: 1. The mode provided in the existing Constitution ;
2. A law, as the instrumental process of raising the body for re-
vision, and conveying to it the powers of the people; 3. A rev.
olution. The first two are peaceful means, through which the
consent of the people to alteration is obtained, and by which the
existing government consents to be displaced without revolution.
The government gives its consent either by pursuing the mode
provided in the Constitution, or by passing a law to call a Con-
vention,” !

§ 574 ¢. The result of the discussion thus far has been, we
think, to show that the maxim, expressio unius, etc., if applied at
ull, is in all cases, and especially in that of Constitutions, to be
applied with great caution; that it is not of universal applica-
tion, but depends upon the intention of the parties, as discover-
able upon the face of the instrument or of the transaction. But
conceding that it may sometimes be applied to Constitutions, let
us examine the phraseology employed in those instruments in
authorizing the two modes of making amendments, to see if that
does not alone set at rest the question of its applicability to those
provisions.

Obviously, as we have before remarked,? while it may, with-
out absurdity, be claimed that the maxim operates to prohibit
the doing of the same thing in a different way from that pre-
scribed by law, it cannot be claimed to prohibit the doing of a
different thing in a different way. Now, it is very clear on the
face of the constitutional provisions authorizing amendments
through the agency of the legislature, as compared witli those
authorizing the call of Conventions, that the purpose of the: for-
mer is different from that of the latter; in other words, the thing
authorized to be done by the one class of provisions is a different
thing from that authorized to be done by the other. Thus, the
purpose of the legislative mode is to bring about amendments
which are few and simple and independent ; and on the other hand,

1 Wells v. Bain, and Donnelly v. Fitler, 75 Pa. St. R., 40,46. Also, Wood's
Appeal, 75 Pa. St. R., 69. As to the proper construction to be given to the
constitutional provision quoted by the court, see ante, §§ 287-246.

? See ante, § 574.
€AN ANOTHER MODE BE PURSUED? 611

that of the mode through Conventions is to revise the entire
Constitution, with a view to propose either a new one, or, as the
greater includes the less, to propose specific and particular amend-
ments to it. Where a few particular amendments only are de-
sired, if the Constitution provides for both modes, the legislative
mode should be employed ; but if a revision is or may be desired,
the mode by a Convention only is appropriate, or, as we expect
to show, permissible. For, note that the phraseology used in
authorizing the former mode is in every case, without exception,
“any amendment or amendments” may be proposed by the Gen-
eral Assembly; that of the latter is, “if at any time it shall
seem necessary to the General Assembly to revise the Constitu-
tion,” it shall have power to call a Convention, which shall meet
“to revise, alter, or amend” the same. Now, in not a single in-
stance is the word “revise,” or any of its derivatives, employed
with reference to the legislative mode, but only the words
“amendment,” “ amendments,” or ‘ alterations.” 1 On the other
hand, in a large majority of the cases in which authority is given
to call Conventions, the purpose of calling them is stated to be
“to revise,” or “to revise, alter, or amend” the existing Consti-
tution? The language is sometimes still more explicit, the Con-
vention being expressly empowered to make “a revision of the

1 See the articles relating to amendments in the following Constitutions :
Alabama, 1865-1867, and 1875; Arkansas, 1836, 1864, 1868, and 1874; Cali-
fornia, 1849 and 1879; Colorado, 1876; Connecticut, 1818 ; Delaware, 1792
and 1881; Florida, 1838, 1868, and 1885 ; Georgia, 1798; Illinois, 1848, 1862,
and 1870; Indiana, 1851; Towa, 1846 and 1857; Kansas, 1855, 1858, and
1859: Louisiana, 1845, 1852, and 1864; Maine, 1820 ; Maryland, 1776, 1864,
and 1867; Massachusetts, 1821 ; Michigan, 1835 and 1850; Minnesota, 1857;
Mississippi, 1832 and 1868 ; Missouri, 1820, 1865, and 1875; Nebraska, 1875;
Nevada, 1864; New Jersey, 1776 and 1844; New York, 1846 and 1867; North
Carolina, 1835, 1868, and 1876; Oregon, 1857 ; Ohio, 1851; Pennsylvania,
1888 and 1873; Rhode Island, 1842 ; South Carolina, 1790 and 1868; Tennes-
see, 1884 and 1870; Texas, 1845, 1866, 1868, and 1876; Virginia, 1870; Ver-
mont, 1870; West Virginia, 1863 and 1872; Wisconsin, 1848. -

2 The following Constitutions contain the word “revise” or “revision ” in
stating the purpose of the Convention: California, 1879 ; Colorado, ae
Florida, 1885 ; Illinois, 1818, 1848, 1862, and 1870; Indiana, 1816 ; Towa, 1846
and 1857; Kansas, 1855, 1858, and 1859; Maryland, 1864 ; Massachusetts,
1780 and 1821; Michigan, 1850; Minnesota, 1857 ; Mississippi, 1817 ; Mis-
souri, 1865 and 1875; Nebraska, 1867 and 1875 ; Nevada, 1864 ; New Hamp-
shire, 1792; New York, 1846 ; Ohio, 1802 and 1851; South Carolina, 1868;
Tennessee, 1796; Virginia, 1870; and Wisconsin, 1848.
612 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT,

entire Constitution.”! But this is not all. As if to leave no
room for doubt that a distinction was intended between the
things authorized to be done by the two classes of provisions, in
twenty-six of the thirty-four cases in which the word “revise”
or “revision ” is used in specifying the duty of the Conventions
which should be called, the Constitutions contain also an express
authorization to make amendments therein in the legislative
mode.2 It seems impossible to escape tbe conclusion that in
these twenty-six cases, the framers of the Constitutions did not
suppose they were providing for doing the same thing in both
the modes authorized by them. We thus see that the legislative
mode is limited to the cases where an amendment or amendments
are desired, and the mode by Conventions to those in which a
broader purpose is entertained, namely, that of a revision of the
whole Constitution, with the purpose of proposing either, first, a
new one, or, secondly, the old one, if on the whole satisfactory,
but with such amendments as to the Convention should seem
desirable. In other words, the legislative mode is confined to a
narrow and defined purpose, and that by Conventions to a broader
and more general and undefined purpose, embracing within its
scope the former, and possibly much more. To say, then, that the
purpose of the two modes is the same, is to say that a part is
equal to, or the same as, the whole.®

1 See the Constitutions of California, 1849 ; Florida, 1868; Michigan, 1835;
and Nevada, 1864.

2 See the Constitutions of California, 1849 and 1879; Colorado, 1876; Flor-
ida, 1868 and 1885; Illinois, 1848, 1862, and 1870; Iowa, 1846 and 1857;
Kansas, 1858 and 1859; Maryland, 1864; Michigan, 1835 and 1850; Min-
nesota, 1857; Missouri, 1865 and 1875; Nebraska, 1875; Nevada, 1864; New
York, 1846 and 1867; Ohio, 1851; South Carolina, 1868; Virginia, 1870 ;
Wisconsin, 1848.

8 There are a few Constitutions which authorize the call of Conventions
either without stating for what purpose, — in which list are those of Delaware,
1792 and 1831; Florida, 1838 and 1865; Georgia, 1868; North Carolina, 1835,
1868, and 1876; and South Carolina, 1790, —or stating it to be, to make
alterations or amendments to the Constitution, in which are Maine, 1876;
Pennsylvania, 1776 ; Georgia, 1865; New Hampshire, 1784; and all of the
Constitutions of Vermont, except that of 1870, — or stating it to be, to readopt,
amend, or change their respective Constitutions, in which are Kentucky, 1792,
1799, and 1850; and Louisiana, 1812. In the West Virginia Constitutions of
1863 and 1873 the phraseology used is, “No Convention shall be called hav-
ing authority to alter the Constitution,’ save upon certain conditions stated.

All of these classes of cases, save perhaps the second, substantially accord
CAN ANOTHER MODE BE PURSUED ? 613

§ 574d. Some light is thrown upon the question considered in
the last section by recurring to the views, in regard to the pur-
pose for which the legislative mode was intended, of those who
were the first to authorize it. Among these, and by far the
ablest, was the Massachusetts Convention of 1820. In this body
Daniel Webster, as chairman of the committee on the subject
of amendments to the Constitution, reported a resolution that
it was “proper and expedient to amend the Constitution so as to
provide that, if at any time hereafter any specific and particular
amendment or amendments to the Constitution be proposed, and
be agreed to by two-thirds of the members of each house present
and voting thereon, and be afterwards submitted to and approved
by a majority of the qualified voters, the same should become a
part of the Constitution.” Upon a motion to strike out, in re-
lation to the Senate, the words “two-thirds” and insert ‘“‘ a ma-
jority,” Mr. Webster, explaining to the Convention why the
committee lad reported in favor of the legislative mode, and had
inserted no provision for calling a Convention, said : —

“Tt.occurred to the committee that, with the experience which
we had had of the Constitution, there was little probability that,
after the amendments which should now be adopted, there would
ever be any occasion for great changes. No revision of its gen-
eral principles would be necessary, and the alterations which
should be called for by a change of circumstances would be lim-
ited and specific. It was, therefore, the opinion of the commit-
tee that no provision for a revision of the whole Constitution
was expedient, and the only question was in what manner it
should be provided that particular amendments might be ob-
tained. It was a natural course, and conformable to analogy
and precedent in some degree, that every proposition for amend-
ment should originate in the legislature, under certain guards,

with those given in the text in making the distinction stated as to the purpose
for which they were called.

1 The order in which this mode was adopted by the earlier Conventions is
as follows: By the Conventions of Delaware in September, and Maryland in
November, 1776; by the Federal Convention, 1787; Connecticnt, 1818; Ala-
hama, August 2, 1819; Maine, October 29, 1819; Missouri, July 19, 1820;
Massachusetts, November 15, 1820; and New York, 1821. Of these, the ear-
liest whose debates throw any light upon the subject is the Convention of
Massachusetts of 1820, which framed the Constitution of 1821.

‘
614 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT,

and be sent out to the people. The question then arose, what
guards should be provided ?”’}

This citation is made simply to show the view entertained by
Mr. Webster, and presumably by the rest of the Convention, as
to the purpose and function to which the legislative mode was
only adapted, and that in their view, on the other hand, the
mode by a Convention was alone appropriate when a general
revision of the Constitution was desired or anticipated. We may
add, that it is not from this remark of Mr. Webster to be in-
ferred that, in his opinion, no Convention could be called unless
express authority were given in the Constitution, or that, in leav-
ing out of the new Constitution a provision to that effect, they
intended to prevent the call of such a body in the future. He
obviously meant only to say that, as it was believed no Conven-
tion for a general revision would thereafter be found necessary,
it was not thought worth while to encumber the new Constitu-
tion with a clause permitting it.

To the same effect, the Convention, in an address published
by it to the people, explaining the amendments proposed by it,
Say oo

“It may be necessary that specific amendments of the Consti-
tution should hereafter be made. The preparatory measures in
assembling a Convention, and the necessary expense of such an
assembly, are obstacles of some magnitude to obtaining amend-
ments through such means. We propose that whenever two-
thirds of the House of Representatives and a majority of the Sen-
ate, in two successive legislatures, shall determine that any spe-
cific amendment of the Constitution is expedient, such proposed
amendment shall be submitted to the people; and if accepted
by the people, the Constitution shall be amended accordingly.
We believe that the Constitution will be sufficiently guarded
from inexpedient alterations, while all those which are found to
be necessary will be duly considered, and may be obtained with
comparatively small expense.” 2

The force of these quotations may be better apprehended by
considering what the Convention meant by a “specific amend-
ment.” Undoubtedly it meant an amendment which had been
distinctly formulated in its terms in the public mind, and one

1 Deb. Mass. Conv. 1820, pp. 413, 414.
2 See Deb. Mass. Conv. 1820, p. 631.
CAN ANOTHER MODE BE PURSUED? 615

of which the necessity had been generally acknowledged, in con-
tradistinction from a change, indeterminate in its character and
extent, which might be shown to be advisable upon a revision of
the whole Constitution. A specific amendment, being a definite
proposition, might safely be submitted to the people to pass
upon, yes or no; for it required no modification to adjust it to
possible changes in other parts of the same instrument. Not so
with an indeterminate amendment, to be matured by discussion,
and after multiplied adjustments, and which might turn out to
be a single proposition, or a few simple propositions, or a com-
pletely new Constitution. For such a work only a Convention
is adapted.

Recurring, then, to the question whether, where a Constitution
contains no provision for amendments save in the legislative
mode, a Convention can be called, the answer must be, both
upon principle and upon precedent, that a Convention can be
called, certainly when a revision of the whole Constitution is
desired, to determine what amendments, if any, are needed, or,
if deemed advisable, to frame a new Constitution. In general,
whenever a Convention is called, the intention is to authorize
a revision of the entire Constitution, though, upon its meeting,
the result of its labors may be only to recommend specific amend-
ments. But, where the legislative mode is adopted, it is never
intended to do more than to formulate certain specific amend-
ments, though, in one or two cases where constitutional commis-
sions have been employed, attempts have been made to adapt
the legislative mode to the making of general revisions,— attempts
which have not met with such success as to justify their repeti-
tion.

§ 574e. As incidental to the questions considered in preced-
ing sections, reference may be here made to certain judicial de-
cisions touching the degree of strictness with which the pro-
visions of Constitutions for amendments in the legislative mode
must be pursued. In a previous section it was said, that the
power given to a legislature to propose to the people amend-
ments to the Constitution is not an incident to the general grant
of legislative power, but, if it exist at all, rests upon some special
constitutional provision ; in other words, that it is a statutory
power. From this it follows that, like all statutory powers, it

1 See ante, §§ 546 a-546 d.
616 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT,

must be strictly pursued. So far there has been little or no
controversy. In several of the States, however, questions have
arisen, whether all the steps by the Constitution made requisite
to give validity and effect to amendments proposed by the legis-
lature have been taken; that is, whether the provisions of the
Constitution have or have not been strictly pursued, within the
meaning and intent of the framers of that instrument. The
decisions of the courts upon these questions will now be briefly
considered.

The earliest case upon the point is that of Collier v. Frierson,
arising in 1854 under the Alabama Constitution of 1819.1 This
instrument required, for the enactment of amendments in the
legislative mode, a two-thirds vote in favor of them of two
successive legislatures, and an intervening majority vote of the
people. Eight amendments were recommended by the first leg-
islature; but by mistake one was not included among those
adopted by the second, although all the other steps were regu-
larly taken. The Supreme Court of the State held, that the
omitted amendment did not become a part of the Constitution.
So, the Iowa Constitution of 1857 having required, in like man-
ner, the action of two successive General Assemblies, to be fol-
lowed by a vote of the people, the 18th General Assembly adopted
an amendment, but in the course of its transmission to the 19th
General Assembly the tenor and effect of the amendment were
changed, so that the two General Assemblies had not passed
upon the same amendment. It was held by the Supreme Court
of the State, in Koehler v. Lange, to be invalid.2 The Kansas
Constitution of 1859 had required that amendments proposed by

1 24 Ala. R., 100.

* 60 Iowa R., 543. See, also, The State v. Johnson, 61 Towa R., 104. Al-
though the decision of the court in this case was clearly right, yet, as the
extreme temperance party of the State were dissatisfied with the overthrow of
the amendment, which had prohibited the manufacture and sale within the
State of spirituous liquors, including wine and beer, a violent agitation was
commenced by the friends of the amendment, with a view to punish the court
by defeating the reélection of the judges who had rendered the decision. The
good sense and moderation of the people, however, finally prevailed, and the
project was quietly abandoned. Constitutional government was thus saved
from a most serious calamity, —a decision of an important constitutional ques-
tion virtually dictated to a court by a mob of excited reformers, in such a
State as Iowa; for, it cannot be doubted, that the purpose of the temperance
party was to secure such a decision as it desired by packing the court.
CAN ANOTHER MODE BE PURSUED ? 617

the legislature should be entered, with the yeas and nays, upon
the journal. In 1879 the legislature, by the requisite vote, sub-
mitted to the people a proposition to amend tlie Constitution.
This proposition was not entered at length upon the journal, but
was described by its title, scope, and object. Otherwise the
submission was regular. The Supreme Court sustained the va-
lidity of the amendment, although it conceded that there was an
irregularity in respect to its entry upon the journal.!

The true rule governing such cases was enunciated by the Su-
preme Court of Iowa in the case above cited. They say: “While
it is not competent for courts to inquire into the validity of the
Constitution and form of government under which they them-
selves exist, and from which they derive their powers, yet, when
the existing Constitution prescribes a method for its own amend-
ment, an amendment thereto, to be valid, must be adopted in
strict conformity to that method ; and it is the duty of courts, in
a proper case, when an amendment does not relate to their own
powers or functions, to inquire whether, in the adoption of the
amendment, the provisions of the existing Constitution have
been observed, and, if not, to declare the amendment invalid and
of no effect.” 2

§ 574f. To determine the degree of strictness with which con-
stitutional provisions authorizing the call of Conventions must
be pursued, in the absence of restrictive words, mandatory in
their effect, is more difficult. 1. If the position hereinbefore
taken be correct, that a legislature, under our constitutional sys-
tem, has power to call a Convention to amend or revise the Con-
stitution, though not expressly authorized, the case presented by
the facts supposed would be this: A legislature having a general
power to call a Convention, at its discretion, is expressly given
power to do the same thing under certain conditions. What in-
ference is warranted as to the intention of the people in impos-
ing those conditions? Obviously, that they were not content
longer to leave so important a power to the unlimited discretion
of the legislature, but desired to restrict it by express declara-
tions of their will as to the time when, the purpose for which,
and the number and character of the voters by whom, a Conven-
tion might be called. If this inference be just, the conditions

1 The Constitutional Prohibitory Amendment, 24 Kans. R., 700.
2 See to the same effect The State ex rel. Hudd v. Timme, 54 Wis. R., 318.
618 if THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT,

laid down for the exercise of the power become, in effect, posi-
tive prohibitions upon its exercise in any other way, in conform-
ity to the maxim, good both in the civil and the common law,
expressum cessare facit tacitum.1 In this reasoning, the people of
the United States have generally, I might say universally, acqui-
esced, though occasional attempts have been made, under strong
temptation, to induce the legislatures of some of the States to
discredit: it. Thus, the Illinois Constitution of 1848 provided,
that whenever two-thirds of all the members elected to each
branch of the General Assembly should think it necessary to
alter or amend the Constitution, they should recommend to the
electors at the next election of members of the General Assem-
bly to vote for or against a Convention; and if it should appear
that a majority of all the electors of the State voting for represen-
tatives had voted for a Convention, the General Assembly, at
their next session, should call a Convention. In 1867, members
of the dominant party in the State, desiring an early change of
the Constitution, and impatient of the delay necessitated by its
strict terms, attempted to carry through an act to call a Conven-
tion by what was styled “a short cut,” that is, upon a vote of
the people alone, omitting a reference of the subject to the next
session of the General Assembly to make the call, should that
vote favor it, as required by the Constitution. Happily, the
scheme was defeated, and the wiser course taken of obeying to
the letter the supreme law of the State.

2. On the other hand, suppose the position that a legislature
has power to call a Convention, although not expressly author-
ized by the Constitution, be an erroneous one, then the power
expressly given would be a merely statutory power, which, all
legal authorities agree, must be strictly pursued.

§ 5749. Where a Constitution authorizes specific amendments
thereof by the action of the two successive General Assemblies,
and several amendments are proposed by one General Assem-
bly, and one or more of them are rejected by the next Gen-
eral Assembly, those which have received the approval of both
are valid as parts of the Constitution, the proceedings being

1 In Field v. The People, 2 Scammon’s R., 79, 83, the court laid it down as
an established rule, ‘‘ that, when the means for the exercise of a granted power
is given, no other or different means can be implied as being more effectual or
convenient.’’
CAN ANOTHER MODE BE PURSUED ? 619

otherwise regular.‘ Many Constitutions require that, if more
than one amendment shall be submitted, they shall be submitted
in such manner that the people may vote for or against such
amendments separately.2. The Wisconsin Constitution contaius
such a provision. In 1882, a question came before the Supreme
Court of the State whether the submission to the people, by
the legislature, of an amendment consisting of several distinct
propositions, to be voted on as one amendment, was a violation
of the constitutional provision. The court held, that it was not,
declaring it to be within the discretion of the legislature so to
submit, “if such propositions relate to the same subject, and are
all designed to accomplish one purpose.” ‘The several propo-
sitions, submitted in 1881,” they say, “all relate to a change from
annual to biennial sessions of the legislature, and were intended
to effect such a change, and they were properly submitted as a
single amendment, and were adopted as such.” 8

In several cases, the question passed upon has been, whether
the majority required by the Constitution has been given for the
amendment, either in the General Assembly or by the people.
Thus, where the Constitution required a vote of two-thirds of
each house to propose amendments, it has been held that the
meaning of the provision is two-thirds of a quorum of each
house* The Indiana Constitution of 1851 required, after an
amendment had been approved by a majority of two successive
General Assemblies, that, to be valid, it should be submitted
to the electors of the State and be ratified by a majority of the
same. An amendment submitted to the people in 1880 received
less than a majority of all the votes cast at the election, and the
Supreme Court of the State held that the amendment had not
been ratified.6 The reasoning of the court seems tv have been

1 Trustees University of North Carolina c. McIver, 72 N. C. R., 76; The
Constitutional Prohibitory Amendment, 24 Kansas R., 700.

2 See § 516, note 1, ante.

2 State ex rel. Hudd v. Timme, 54 Wis. R., 318. See, also, State r. McBride,
4 Mo. R., 303.

* Green v. Weller, 32 Miss. R., 650; The State v. McBride, 4 Mo. R., 303

5 The State v. Swift, 69 Ind. R., 505. The court, in this case, remarked
that ‘under a valid statute” the amendment might be again submitted to the
people. It also observed, that the General Assembly might provide that the
whole number of votes cast at the election at which the amendment was sub-

mitted might be taken to be the whole number of electors of the State at that
time.
620 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT,

that, no mode having been fixed by law for determining the whole
number of the electors of the State, tbat number might safely be
presumed to be greater than the whole number of votes cast.1

It has been made a question, when a Constitution has been sub-
initted to the people, what department of the government should
determine whether it had been adopted or not; and whether, if
the executive of the State be required by law to count the votes
and to declare the result, his action therein can be controlled by
the judiciary. The act calling the Maryland Convention of 1864
required that body to submit its work to the people, but “in
such manner, and subject to such rules and regulations,” as the
convention might prescribe. Art. XII. sec. 8 of the Constitution,
framed by it, directed the returning officers to report the votes
on the Constitution to the Governor, who was to make proclama-
tion of the result. A petition was filed in the Superior Court
of Baltimore city, asking for a rule upon the Governor to show
cause why a writ of mandamus should not be issued command-
ing him to receive and count certain votes rejected by the judges
of election, and to exclude others received by them, and which
he proposed to count. The court refused to enter the rule, and
dismissed the petition, which judgment was, on appeal to the
Supreme Court, affirmed. The court held that it was the well-
settled law in the United States, that when, as in this case, a
discretionary power had been vested in the executive, the judi-
ciary would not interfere with the exercise of that power, and
that “the political department has always determined whether
the proposed Constitution or amendment was ratified or not by
the people,” .. . “and the judicial power has followed its deci-
sion.” 2

~ 1 As to the power of a court to look into the proceedings of a General
Assembly to see if all the prerequisites to the adoption of an amendment to
the Constitution have been complied with, see State v. McBride, 4 Mo. R.,
303, affirming that power; with which compare Green v. Weller, 32 Miss.,
650, denying it.

2 Miles v. Bradford, 22 Md. R.,170; Deb. Md. Conv. 1868, Vol. ITI. Appen-
dix. Before concluding the examination of questions relating to the amending
of Constitutions in the lecislative mode, it may be useful again to refer to the
opinion of Mr. Charles O’Conor, an eminent New York lawyer, before cited,
touching certain questions bearing on that subject, not as authority, but as the
reasoned view of a trained legal mind touching those questions. Mr. O’Conor
gave it as his opinion, —
CAN ANOTHER MODE BE PURSUED ? 621

§ 574 h. (6.) There remains the question whether, when a Con-
stitution contains no provision for amendments at all, either or
both modes we have been considering may be pursued? As to
a Convention, if there be no express prohibition, the answer
may be unhesitatingly given, that the General Assembly may
call a Convention. All our State Constitutions make to the
General Assemblies a general grant of legislative power, which
is admitted to extend to all subjects of ordinary legislation which
are not prohibited by their own or by the Federal Constitution.
By a long established usage, in most of the States, and in some
of them in repeated instances, those bodies have called Conven-
tions, under the circumstances stated, as a branch of their gen-
eral legislative power; and, as we have before observed, were
there doubt as to the constitutionality of such action, it is too
late now to question it. Frequent exercise of the power, and
uniform and long. acquiescence of the people in it, constitute a
fundamental law as binding as though it had been formulated
expressly in the Constitution.!

1. That when a section of a Constitution contained’ two independent propo-
sitions, and an amendment was proposed by the General Assembly in 1878,
which was in effect identical with the first proposition, but was dissented from
by the General Assembly in 1874, and so was lost, the section was left thereby
as it stood originally, unaffected by the proposed amendment.

2. That when, of a series of amendments referred to the General Assembly
by a previous General Assembly, some distinct amendments were disapproved
and some approved by the second body, and submitted to and approved by the
people, such amendments as were approved were valid; and that to hold, that
each set of amendments incorporated at the first session in a single concurrent
resolution of approval must be taken up and dealt with as a whole, would be
attaching undue importance to a mere mechanical arrangement of subjects,
provided the several propositions were, in their nature, contemplated effect,
and necessary operation, separable.

8. That when the Constitution required that proposed amendments should*
be published, the inclusion in the notice published of an item proposed by one
house and opposed by the other, and the house proposing it had receded from
it, this error did not vitiate the notice as to the other items.

1 See ante, §§ 570, 571.

On the subject of amendments to a Constitution effected by long acqui-
escence of the people, see Stewart v. Laird, 1 Cranch, 299, 309; McCulloch
v. Maryland, 4 Wheat. R., 316, 401; Briscoe v. Bank of Kentucky, 11 Pet. R.,
257, 318; Prigg v. Pennsylvania, 16 do. 539, 621; New Jersey St. Nav. Co. v.
Merchants’ Bank, 6 How. R., 344; West River Bridge Co. v. Dix, Id. 507;
Cooley v. Wardens, etc., 12 How. R., 299; The Genesee Chief v. Fitz Hugh,
Td. 443, 458. But compare Sturgess v. Crowningshield, 4 Wheat. R., 122,
203.
622 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT,

On the other branch of the question, relating to the legislative
mode, the answer may as unhesitatingly be given that, under
the conditions stated, that mode could not be pursued. In ree-
ommending to the people an amendment or amendments to the
Constitution, a General Assembly so far acts merely in a con-
ventional capacity ; that is, its act is not one of legislation. For
this we have the authority of Mr. Webster, who, in the Massa-
chusetts Convention of 1820, when discussing the provision re-
ported for authorizing amendments in the legislative mode, said :
“This was not an exercise of legislative power, — it was only
referring to some branch the power of making propositions to
the people.”} Under a general grant of legislative power a leg-
islature could not rightfully exercise a power not legislative.
The power to propose amendments, then, not enuring as a part
of the general grant, must be authorized by a special provision
of the Constitution. And when no such provision can be pointed
out the power does not exist.?

§ 574%. Allied to the questions discussed in this chapter, which
have actually been raised, is one that might be raised, as to the
effect upon an old Constitution of the adoption of a new one,
where contradictory provisions, but no special repealing clause,
have been inserted in the latter. Doubtless, so far as the provi-
sions of the new Constitution are inconsistent with those of the
old, the former must be held to repeal the latter. So, when a
special power is granted to a department of the government by
a Constitution, and the constitutional provision is the only source
of the power, a new Constitution merely omitting the grant, with-
out special words of repeal, must be held to annul the power.
But, if the power may be derived from some other source than
express constitutional grant, or be involved in a grant of power
expressly made, as incident to it, then such omission in the new
Constitution would not, it would seem, operate as a repeal. The
question might arise upon facts not infrequently occurring in the
formation of Constitutions. Thus, in some instances, Constitu-
tions providing only for the call of Conventions for the revision

1 Deb. Mass. Conv. 1820, p. 407. See § 549, ante.

2 As to the nature of an amendment to a Constitution and its effect upon
existing rights and jurisdiction, see Hollingsworth v. Virginia, 3 Dall., 382;
Trustees University of N. C. v. McIver, 72 N. C. R., 76. But compare Matter
of the Executive Communication, 15 Fla. R., 739.
CAN ANOTHER MODE BE PURSUED ? 623

or amendment thereof have been followed by new Constitutions
making no mention of Conventions, but providing for amend-
ments through the agency of the legislature followed or not by
the approval of the people. Thus related to each other were the
Constitutions of Georgia, 1789 and 1798; Indiana, 1816 and 1851;
Louisiana, 1812 and 1845, etc.; Massachusetts, 1780 and 1822;
Mississippi, 1832 and 1865; Teunessee, 1796 and 1834 ; and Ver-
mont, 1850 and 1870. Now, in all these cases, save those of In-
diana and Vermont, the dropping of the provision relating to the
call of Conventions was not regarded as a prohibition of the ex-
ercise of that power thereafter, because the States have all, except
those two, since called conventions, without question or objection ;
and, doubtless, upon the principles above explained, Vermont and
Indiana might at any time have called them. On the other hand,
were the facts reversed, the rule would be different. The Consti-
tutions of Maryland, 1776 and 1851, and of Georgia, 1798, 1861,
and 1865, present this supposed relation, the first, in each case,
having made no provision for amendments save in the legislative
mode; and the last of Maryland, and the last two of Georgia,
none save by the call of a Convention. As a legislature has no
power to act in a conventional capacity, save in pursuance of ex-
press constitutional authority, the dropping of that provision in
the Maryland Constitution of 1851, and in the Georgia Constitu-
tions of 1861 and 1865, must be held to have withdrawn from
their legislature the power to act as authorized by the first Con-
stitutions named.

$575. That the principles announced in the foregoing sec-
tions, in relation to the amendment of State Constitutions, apply
in general to the Federal Constitution, admits of little doubt.
The fifth article of that Constitution provides, that -‘the Con-
gress, whenever two-thirds of both houses shall deem it neces-
sary, 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.” The first
clause, though in its terms imperative as to the duty of Con-
gress, is yet, in effect, merely permissive, and, like similar pro-
visions of the State Constitutions authorizing amendments in

1 Compare Sigur v. Crenshaw, 8 La. An. R., 401; State v. Dubue, 9 do. 237 ;
In the matter of the Executive Communication, 15 Florida R., 739; Penn v.
Tollison, 26 Ark. R., 545.
.
624 WHEN A LEGISLATURE HAS PASSED UPON AN AMENDMENT

the legislative mode, is to be pursued strictly. Doubtless amend-
ments could not be recommended by a less vote than two-thirds,
or by other than such a vote of both houses.

The second clause, directing the call of a Convention by Con-
gress, is impcrative both in terms and effect, and, it is conceived,
should receive a construction similar to that given provisions of
the State Constitutions under like conditions. In a previous
section,! we have seen that when a State legislature is granted
express power to call a Convention, in stated circumstances and
upon certain conditions, these circumstances and conditions must
concur and be fulfilled exactly, or the power cannot be executed.
Doubtless, therefore, a Convention of the States could not be
called by Congress, upon its own motion merely, by however
large a majority of the two houses, or on the application of the
legislatures of any number of the States less than two-thirds.
That the construction stated is the true one may be inferred
from the well-settled rule as to the derivation and extent of the
powers of Congress under the Federal Constitution. Congress,
the legislature of the Union, possesses only such powers as have
been expressly given to it, or as are necessary to the execution
of its express powers. In other words, not having received a
general power of legislation, as have the State legislatures, such
special powers as Congress has received from the people must be
strictly pursued, and cannot be enlarged by implication?

§ 576. V. A question of much interest has several times arisen,
whether, when a State legislature has once passed upon an
amendment to the Federal Constitution proposed by Congress,
its action can afterwards be reconsidered by it, or by its suc-
cessor, and reversed. It may be useful to consider this question
in the two cases, 1, where the action of the legislature was neg-
ative, rejecting, and 2, where it was affirmative, ratifying, an
amendment.

1. The question in its negative form first arose, in 1865, in
New Jersey, in relation to the XIII. Amendment.?

1 See § 574 f, ante.

2 The question, whether Congress could refuse to call a Convention, when
applied to by the legislatures of two-thirds of the States, was considered in the
House of Representatives, in discussing the treaty with Great Britain, in 1796.
See Speeches of W. Smith, Benton’s Deb., Vol. I. p. 653, and of Samuel Lyman,
Id. p. 659. The answer was in the negative, and a distinction affirmed be-

tween the duty of Congress in this case and in that of ratifying a treaty.
3 A similar question, it is true, arose in North Carolina at the time of the
PROPOSED BY CONGRESS, CAN IT REVERSE ITS ACTION? 625

The amendment was rejected by the legislature of that State
December 1, 1865, and notice thereof was duly given to the
Secretary of State at Washington. That officer published his
certificate December 18, 1865, declaring that the amendment
had been adopted by the votes of twenty-seven States, and had
become a part of the Constitution! In this certificate no mention
was made of New Jersey. January 23, 1866, the legislature of
New Jersey reversed its previous action, and approved the amend-
ment. The same question arose again in North Carolina, South
Carolina, and Georgia, in relation to the XIV. Amendment, sub-
mitted by Congress to the States on the 16th of June, 1866.
The legislatures of those States, together with those of five
others, Texas, Virginia, Kentucky, Delaware, and Maryland, re-
jected the amendment. Afterwards, the governments of ten of
the rebel States, including the three first named, were, by the
Act of Congress of March 2, 1867, and the acts supplementary
thereto,? declared to be illegal, and new governments were
erected therein under the direction of Congress. By the new
legislatures of North Carolina and South Carolina, the former
on the 4th and the latter on the 9th of July, 1868, resolutions
were passed ratifying the XIV. Amendment. These resolutions
were certified to the Secretary of State, and the votes of those
States were, in pursuance of a resolution of Congress, counted
by that officer as valid votes, and the amendment was on the
20th of July, 1868, in a certificate of that date, proclaimed by
him to have been duly ratified. The new legislature of Georgia,
in like manner, on the 21st of July, 1868, receded from its vote
rejecting the amendment and passed a resolution ratifying it,
and that State was included by the Secretary of State amongst
the ratifying States in a second certificate, issued July 28, 1868.3

§ 577. Were the legislatures in receding thus, and ratifying
after having once rejected the amendment, acting within the

adoption of the Federal Constitution. The State Convention at first rejected
the Constitution, but afterwards ratified it. So far as we are aware, no objec-
tion was ever raised that the State had exhausted its power by its first vote.
But, because it was the Constitution itself upon which the Convention was
voting, we have not considered the case applicable to the question of adopting
amendments under the Constitution.

1 U.S. Stat. at Large, Vol. XIII. p. 774.

2 U.S. Stat. at Large, Vol. XIV. p. 428; Vol. XV. p. 2.

5 U. S. Stat. at Large, Vol. XV. pp. 706, 708.
626 WHEN A LEGISLATURE HAS PASSED UPON AN AMENDMENT

scope of their powers? The subsequent recognition of the votes
by Congress, and by the Secretary of State, as valid, must, we
think, settle this question in the affirmative. The Constitution
is silent as to the conditions necessary to constitute a valid vote
in such a case, and as to the proper authority to pass upon the
question when it arises.

The only law relating to the subject is the Act of April 20,
1818, which provides : —

“Section 2. That whenever official notice shall have been re-
ceived at the Department of State, that any amendment, which
heretofore has been or hereafter may be, proposed to the Consti-
tution of the United States, has been adopted, according to the
provisions of the Constitution, it shall be the duty of the said
Secretary of State forthwith to cause the said amendment to be
published in the newspapers authorized to promulgate the laws,
with his certificate, specifying the States by which the same
may have been adopted, and that the same has become valid,
to all intents and purposes, as a part of the Constitution of the
United States.” ?

Two questions arise upon this act: 1. Is it constitutional?
2. What is its true construction ? Does it devolve the duty of
deciding upon the validity of votes cast, upon the Secretary of
State, or upon some other and what officer or body ?

§ 578. That the Act is constitutional, it is conceived, admits
of little doubt. Article I., Sec. 8, clause 17 of the Constitution,
gives to Congress power ‘*to make all laws which shall be neces-
sary and proper for carrying into effect the powers vested ”
thereby ‘in the government of the United States, or in any de-
partment or officer thereof.” The power to amend the Consti-
tution is a power vested by that instrument conjointly in the
State legislatures, or Conventions, and in Congress. It is obvious
that some department or officer, either of the general or State
governments, must inspect the votes cast by the States, and pass
upon their regularity and validity. Of the two, the more proper
government to discharge this function is that of the Union;
indeed, it would be inconvenient, if not impracticable, for the
States to attempt to do so. The necessity of the case, therefore,
under the Constitution, authorizes the intervention of Congress
to prescribe by law the officer or department who should decide

1 U.S. Stat. at Lurge, Vol. III. p. 439.
PROPOSED BY CONGRESS, CAN IT REVERSE ITS ACTION? 627

the question. Besides, whether a given amendment has become
the law of the land or not, if in some respects a judicial ques-
tion,’ is also a high political question, of which Congress, in
whose hands the political power is principally vested, ought to
assume and retain the control.

But what is the true construction of the Act of 1818? It
provides that ‘ whenever official notice shall have been received
at the Department of State, that any amendment has been
adopted according to the provisions of the Constitution,” it shall
be the duty of the Secretary of State to cause it to be published,
etc. ‘Official notice’ received from whom, and how? It may
mean, received from the several States, in the shape of certifi-
cates that their respective legislatures have ratified the amend-
ment, in number and character sufficient, in the judgment of the
Secretary, to make it the law of the land; or it may mean, re-
ceived from some authority constitutionally declared to be com-
petent to pass upon the votes taken, and to certify to him its
decision. Such a discretion has not been given to the Secretary
of State, and no such authority, it is believed, exists, unless it
be vested in Congress; and, on the principles stated above, it
would be difficult to deny to that body the power to act in the
matter, if it should choose to do so. But, in the absence of any
direction by Congress, it would doubtless be the duty of the
Secretary of State, in the first instance, to inspect and pronounce
upon the votes cast, provisionally, as a necessary preliminary to
the issuance of the certificate required by the act, submitting
all doubtful cases to the judgment of Congress. This course has
been generally pursued since the foundation of the government.
That this is the true view may, perhaps, be inferred from the
action of the Secretary of State, Mr. Seward, and of Congress,
in the reverse case relating to the XIV. Amendment. When
the votes upon that amendment were canvassed, the Secretary

1 Tn cases at law or in equity between individuals, doubtless, courts may
pass upon the validity of a supposed amendment. See Collier v. Frierson, 24
Ala, R.,100; Miles v. Bradford, 22 Md. R., 170. The spectacle, however, of a
court receiving evidence and presuming to determine, by its judgment, for the
executive or legislative department of the same government, whether the Con-
stitution is valid or not, would be a most remarkable one; and, when the
political power has spoken upon the question, the judicial department ought,
perhaps, in conformity to the general practice of courts in such cases, to follow
its decision.
628 WHEN A LEGISLATURE HAS PASSED UPON AN AMENDMENT

doubted whether those from New Jersey and Ohio, which were
necessary to make up the required number, ought to be counted.
Those States, as we shall see, had first adopted and afterwards
rejected that amendment. Accordingly he issued a certificate,
on the 20th of July, 1868, in which he recited the facts and de-
clared the amendment adopted, provided the votes of those States
to adopt were to be considered as still valid.1_ On the day fol-
lowing, a concurrent resolution was passed by Congress pronoun-
cing the ratification of the amendment valid and sufficient ;?
whereupon, on the 28th of July, 1868, the Secretary issued a
second certificate, reciting the resolution of Congress, and pro-
mulgating the amendment as a part of the Constitution?

§ 579. But, whether this decision is authority upon. the ques-
tion now considered or not, the right of a State legislature, after
a negative vote has once been passed, to recede from it and ratify
an amendment, is, we think, upon principle, unquestionable. The
language of the Constitution is, that amendments proposed by
Congress, in the mode prescribed, ‘shall be valid to all intents
and purposes, as part of this Constitution, when ratified by the
legislatures of three-fourths of the several States,” &c. By this
language is conferred upon the States, by the national Consti-
tution, a special power; it is not a power belonging to them
originally by virtue of rights reserved or otherwise.t When
exercised, as contemplated by the Constitution, by ratifying, it
ceases to be a power, and any attempt to exercise it again must
be a nullity. But, until so exercised, the power undoubtedly,
for a reasonable time at least, remains. Where an amendment
has been submitted by Congress four things may follow: 1, the
States may not act upon it at all; 2, they may reject it; 8, they
may accept it with conditions ; and 4, they may ratify it uncon-
ditionally. In the first case they must, in effect, be taken to
have rejected the amendment, so far as conforming to the consti-
tutional provision is concerned ; for that makes no mention either
of cases in which no votes are taken, or of those in which the
votes are to reject, but only of votes which ratify. The amend-
ment is to be valid when ratified by three-fourths of the States.

1 U.S. Stat. at Large, Vol. XV. p. 706.
2 Td. 708.

8 Thid.

4 Art. V. Const. U. S.
PROPOSED BY CONGRESS, CAN IT REVERSE ITS ACTION? 629

So of the third case, that of conditional ratifications: they do
not come within the scope of the Constitution ; do not conform
to the conditions of the power vested in the States; and such
votes must, upon the question of adoption, be accounted as either
not cast at all, or as rejecting the amendment. It is only votes
of the fourth description that can be counted, and States casting
other votes than those are not reckoned at all save to determine
the number necessary to complete the ratification.

§ 580. There are, touching conditional ratifications, some pre-
cedents from the early days of the republic. When the Consti-
tution was submitted to the States, in 1788, many of them were
inclined to append conditions to their ratifications: but, upon
full discussion by the best minds of that time, Hamilton, Madi-
son and others, who doubted both the validity and the expedi-
ency of such ratifications, the same were made absolute, though
with an understanding that amendments should be early adopted
to cover the points embraced in the conditions; an understand-
ing which was carried into effect by the first Congress that met
under the Constitution in 1789. The result was, that ten of twelve
amendments submitted by Congress were adopted by the States,
and became a part of the Constitution. All votes, therefore, which
do not ratify, or which ratify upon conditions, must stand on the
same footing as though they had rejected; and neither they nor
the States casting them are to be counted save for the purpose,
as we have said, of fixing the proportional number of States nec-
essary to ratify the amendment. Such has been, it is believed,
the uniform practice of the State Department in relation to nega-
tive votes, or to those cases in which no action has been taken
by the States; they have all been ignored, save that in one case,
relating as we shall see to the XIV. Amendment, Secretary
Seward stated the facts in regard to the votes of Ohio and New
Jersey, which had first ratified and then attempted to recede
from their ratifications, and of certain lately reconstructed States,
in respect to which he had doubts whether they should be counted
or not, and therefore brought the subject to the attention of
Congress. eas

§ 581. To the conclusion, that rejection forms no barrier in
the way of afterwards ratifying an amendment, it may be ob-
jected that it recognizes power in the States to ratify, but no
power to reject a proposed amendment. This objection is spe-
630 WHEN A LEGISLATURE HAS PASSED UPON AN AMENDMENT

cious, but it has no real foundation. To say that a State has no
power to reject would be untrue; for it is an historical fact that,
in point of forth, many States have rejected amendments, and
it would be puerile to contend that a right to pass upon a propo-
sition does not involve a right either to reject or to ratify it.
The real question here is what, under the Constitution, is the
consequence of rejection? Does it, or does it not, as to the
rejecting State, definitively settle the fate of the amendment?
What we insist upon is, that a State has a right at some time to
ratify an amendment submitted to it. That is precisely what is
asked of it by Congress, and it is that which the Constitution
empowers it to do. The authority charged with inspecting such
votes, therefore, cannot refuse to receive one, certainly if offered
within a reasonable time, until after a ratifying vote shall have
been received. This view of the question was well presented by
Governor Bramlette, of Kentucky, to whom the resolutions above
mentioned rejecting the XIII. Amendment had been communi-
cated for his approval, in a message to the legislature of that
State. Declining to return the same with his dissent, on the
ground that the action of the legislature was complete without
his approval, but yet expressing his dissatisfaction with them,
and his regret that the amendment had not been ratified, he un-
dertook, as requested in the second resolution, to forward them
to the President and to the presiding officers of the two houses
of Congress. In the course of his message he said : —

“Rejection by the present Legislative Assembly only remits
the question to the people and the succeeding legislature. Re-
jection no more precludes future ratification than refusal to adopt
any other measure would preclude the action of your successors.
When ratified by the legislatures of three-fourths of the several
States, the question will be finally withdrawn, and not before.
Until ratified it will remain an open question for the ratification
of the legislatures of the several States. When ratified by the
legisl:ture of a State, it will be final as to such State; and, when
ratified by the legislatures of three-fourths of the several States,
will be final as to all. Nothing but ratification forecloses the
right of action. When ratified all power is expended. Until
ratified the right to ratify remains.” !

§ 582. 2. The question in its affirmative form, whether a

1 Acts General Assembly, Ky., 1865, p. 157.
PROPOSED BY CONGRESS, CAN IT REVERSE ITS ACTION? 631

State, whose legislature has ratified an amendment, has power
to withdraw its ratification or to reject the same, though not free
from difficulty, admits, we think, of a satisfactory solution. The
question has arisen in several cases, namely, in substance, in
those of the slave States, which in 1832-38, and again in 1860
and 1861, by Conventions or legislatures, sought virtually or
expressly to repeal the ordinances of the Conventions which, in
1788, ratified the Federal Constitution ; and it arose afterwards,
in those of New Jersey, Ohio, and New York, whose legislatures
sought to withdraw the assent previously given by those States,
the first two to the XIV. and the last to the XV. Amendment.
The proceedings of the Southern Conventions in passing nullify-
ing or secession ordinances are so well known that we shall not
stop to describe them minutely, particularly as they did not re-
late to amendments, but to the Constitution itself. In the three
Northern States the proceedings were as follows: September 11,
1866, the legislature of New Jersey, by resolution, ratified the
XIV. Amendment ; a second resolution was passed in April,
1868, by a subsequent legislature, to withdraw that ratification ;!
January 11, 1867, the legislature of Ohio ratified the same
amendment, but in January, 1868, in like manner attempted to
withdraw its ratification.2 The legislature of New York, in
1869, ratified the XV. Amendment, but afterwards, in January,
1870, by resolution attempted to withdraw its ratification.?
These are believed to be the only instances in which the power
to withdraw the assent of a State to an amendment has ever
been claimed or sought to be exercised. Does that power exist
under the Constitution ? The question may be considered from
the point of view, 1, of the States seeking to withdraw; and, 2,
from that of the States which ratify.

§ 588. 1. The power of a State legislature to participate in
amending the Federal Constitution exists only by virtue of a
special grant in that Constitution. It is a power which it could
not assume under any notion of a general right to legislate, for
that right is confined within State limits, and to the enactment
of ordinary laws. An Act of Congress, even, would not give it
the power. The power, moreover, cannot be enlarged by im pli-

1 U7. S. Stat. at Large, Vol. XV. p. 708.
2 Tbid.
8 U.S. Stat. at Large, Vol. XVI. p. 1131.
632 WHEN A LEGISLATURE HAS PASSED UPON AN AMENDMENT

cation, or by reason of any supposed but unexpressed intention
of those who granted it, but must be strictly pursued. So, when
the State legislature has done the act or thing which the power
contemplated and authorized — when the power has been. exer-
cised — it, ipso facto, ceases to exist, unless it be one of the terms
of the grant that it shall continue with a view to its further
exercise, which in this case is not pretended. Now, the lan-
guage of the Constitution is, that an amendment proposed by
Congress shall be valid, &c., “when ratified by the legislatures of
three-fourths of the several States.” Suppose, after it has been
ratified by three-fourths less one, the legislature of another State
notifies the Secretary of State that it has also ratified it, has that
amendment not been ratified by the legislatures of three-fourths
of the States? If so, it has become valid as a part of the Con-
stitution, and the power of the State legislatures over the sub-
ject matter is gone. This no one probably would deny. Is it
any more a power exercised, and therefore a power no longer
existing, because other States have acted, or enough other States
to have made the amendment a part of the Constitution? To
hold thus would be to make the constitutional provision read
that the amendment should be valid “ when ratified by the legis-
latures of three-fourths of the States, each adhering to its vote
until three-fourths of all the legislatures should have voted to
ratify.” It is enough to say that such is not the language of the
Constitution; but that it shall be valid when ratified by the
legislatures of three-fourths of the States.

§ 584, 2. The aspect of the question is the same when viewed
from the side of the other ratifying States. The first State to
ratify an amendment may reasonably be supposed to exert an
influence upon the other States. While, doubtless, there is no
contract, —for the States have in this matter nothing to make
the subject of a contract, —it can never have been intended that
a State, having once solemnly assented to a proposition sub-
mitted to the States, and thus probably induced like action of
other States, should be at liberty at any time thereafter to with-
draw such assent. If that were permitted, each State afterwards
ratifying would have the same right, and one or more of them
would be pretty certain to exercise it. Such a mode of transact-
ing business of so transcendent importance would be puerile.

As the power of withdrawal, if it exist at all, must be implied
PROPOSED BY CONGRESS, CAN IT REVERSE ITS ACTION? 633

as conforming to the intention of those who framed the Constitu-
tion, it is proper to inquire into the consequences of withdrawal,
in order to determine the probability of such an intention. Ifa
State may withdraw its ratification, at what time may it do it?
If a change of circumstances should occur such as to make a
change of its vote desirable, before three-fourths of the States
have ratified, and if the power were conceded then to withdraw,
why should not the same power be conceded at any time after
a three-fourths vote has been obtained, upon a like change of
circumstances ? The absurdity of such a rule was made ap-
parent in 1860 and 1861, when the seceding States sought by
virtue of it to repeal their several acts of ratification of the Fed-
eral Constitution, passed by their Conventions, in some cases,
seventy years before. What was then resisted as improper, in
relation to the Constitution itself, cannot now be conceded as
legal and proper in relation to amendments to the Constitution.

Another consequence is that the power contended for would
lead, as it has already done, to inextricable confusion and civil
war. It is only those who regard the Constitution as a treaty,
basing that instrument upon compact, and finding in it the doc-
trine of State Sovereignty, who advocate the right to withdraw.
They maintained, in 1788, the right of the States to ratify the
Federal Constitution conditionally, and then, if the condition were
not fulfilled, to recede from their ratifications; also, in 1832-33,
maintained with South Carolina the right to nullify the laws
of the United States, or virtually to repeal the ratification of the
Constitution of 1788, if “the mode and measure of redress” de-
manded, in relation to the tariff, were not complied with by the
United States ; and who, in 1861, maintained the same right in
relation to slavery.

Waiving the consideration of principles, however, the question
may be regarded as settled by authority, if a resolution of Con-
gress upon it is to be taken as decisive. We have seen that
when the votes upon the XIV. Amendment were canvassed by
the Secretary of State, doubts were entertained by him whether
those of New Jersey and Ohio, whose legislatures had first
adopted, and then attempted to reject, that amendment, were
to be counted as having adopted it. This doubt was settled
by Congress, which declared by resolution that they were to be
counted among the ratifying States, which was accordingly done.
634 WHEN CONGRESS HAS SUBMITTED AN AMENDMENT

§ 585. VI. Two further questions may be considered: 1. When
Congress has submitted amendments to the States, can it recall
them ? and 2, How long are amendments thus submitted open to
adoption or rejection by the States? 1. The first question must,
we think, receive a negative answer. When Congress has sub-
mitted amendments, at the time deemed by itself or its constitu-
ents to be desirable, to concede to that body the power of after-
wards recalling them would be to give to it that of definitively
rejecting such amendments; since the recall would withdraw
them from the consideration of the States, and thus render their
adoption impossible. However this may be, it is enough to
justify a negative answer to say that the Federal Constitution,
from which alone Congress derives its power to submit amend-
ments to the States, does not provide for recalling them upon
any event or condition ; and that the power to recall cannot be
considered as involved in that to submit, as necessary to its com-
plete execution. It therefore cannot exist.

2. The same consideration will, perhaps, furnish the answer
to the second question. The Constitution gives to Congress the
power to submit amendments to the States; that is, either to
the State legislatures or to Conventions called by the States for
this purpose, but there it stops. No power is granted to pre-
seribe conditions as to the time within which the amendments
are to be ratified, and hence to do so would be to transcend the
power given. The practice of Congress in such cases has always
conformed to the implied limitations of the Constitution. It has
contented itself with proposing amendments, to become valid as
parts of the Constitution, according to the terms of that instru-
ment. It is, therefore, possible, though hardly probable, that
an amendment, once proposed, is always open to adoption by the
non-acting or non-ratifying States.

The better opinion would seem to be that an alteration of the.
Constitution proposed to-day has relation to the sentiment and
the felt needs of to-day, and that, if not ratified early while that
sentiment may fairly be supposed to exist, it ought to be regarded
as waived, and not again to be voted upon, unless a second time
proposed by Congress.

§ 586. In discussing the question of the right of the States to
vote upon proposed amendments at any time after the date of
their proposal, it is proper to look into the consequences of such
TO THE STATES, CAN IT RECALL IT? 6385

aright. If they have that right, there are now floating about
us, as it were, in nubibus, several amendments to the Constitu-
tion proposed by Congress, which have received the ratification
of one or more States, but not of enough to make them valid as
parts of that instrument. Congress could not withdraw them,
and there is in force in regard to them no recognized statute
of limitation. Unless abrogated by amendments subsequently
adopted, they are, on the hypothesis stated, still before the Amer-
ican people to be adopted or rejected.

In 1873, the Senate of Ohio acting upon the theory that, once
proposed, an amendment to the Constitution is always open to
ratification, adopted a joint resolution ratifying the second of the
twelve amendments submitted to the States by Congress in 1789,
but then rejected, providing that ‘‘no law varying the compensa-
tion of members of Congress shall take effect until an election for
representatives shall have intervened.” This resolution, prepared
by Madison, was an excellent one; but suppose it had been un-
just, proposed perhaps in the interest of a section or of a party,
and, failing at the time to receive the requisite majority, it had
subsequently, by a concerted rally of those interested in its adop-
tion, been carried without discussion, or a clear expression of the
existing public will: is that a true construction of the Constitu-
_ tion which may be followed by so dangerous consequences? And,
supposing the right referred to exists, by what majority shall
the resurrected amendment be adopted? If proposed in 1789,
when the States numbered but thirteen, and when a majority
of ten States might have ratified the amendment, how many
would have been requisite in 1873, when there were thirty-eight
States which would have been called upon to vote? If the an-
swer should be, that twenty-nine States must have voted to
ratify, since that number was three-fourths of all the States in
1873, however reasonable such an answer might seem, it would
be founded upon no statute or custom of the country, and there-
fore different opinions as to its reasonableness might well be
entertained. Hence the danger of confusion or conflict. We
discuss this qnestion here merely to emphasize the dangers in-
volved in the Constitution as it stands, and to show the necessity
of legislation to make certain those points upon which doubts
may arise in the employment of the constitutional process for
amending the fundamental law of the nation. A constitutional
636 RECALLING AN AMENDMENT PROPOSED BY CONGRESS.

statute of limitation, prescribing the time within which proposed
amendments shall be adopted or be treated as waived, ought by
all means to be passed.

In the foregoing discussion no mention has been made of the
powers of State Conventions. If an amendment to the Federal
Constitution should be proposed by Congress, and submitted to
State Conventions instead of to the legislatures, the powers and
disabilities of the two classes of bodies in respect to the amend-
ment would, it is conceived, be precisely the same.
APPENDIX.

 

A.

EXTRACTS FROM AN ARTICLE PUBLISHED IN THE REVUE DES DEUX
MONDES FOR OCTOBER 15, 1871, BY THE FRENCH PUBLICIST, M. ED.
LABOULAYE, ENTITLED DU POUVOIR CONSTITUANT.

... Part les principes de 1789, il en est beaucoup qui ont résisté a l’épreuve
du temps et dont les bienfaits ont prouvé la solidité. L’égalité civile, la liberté
religieuse, la liberté du travail, sont entrées dans nos meurs et dans nos lois pour
n’en plus sortir. I] est toutefois d’autres maximes qui n’ont jamais été appli-
quées sans trainer aprés elles le désordre et la ruine. Signaler ces erreurs
condamnées par |’expérience, c’est en empécher le retour, c’est épargner 4 nos
enfans les fléaux que l’ignorance du législateur a déchainés sur nous.

Au premier rang de ces théories funestes, il faut placer celle du pouvoir con-
stituant telle qu’on I’a congue en 1789. Etablir ou reformer une constitution
a été regardé par nos peres comme une euvre magique qu’on ne peut confier
qu’a une assemblée unique, convoquée extraordinairement et maitresse de re-
faire & son gré l'état et la société. Et non-seulement on concentre tous les
pouvoirs dans les mémes mains, ce qui est la définition méme du despotisme,
mais encore on donne aux constituans une autorité telle qu’ils peuvent imposer
leur gouvernement & la nation sans lui demander son avis, et lui défendre d’y
toucher avant l’époque et par d’autres moyens que ce qu’il leur plait de décider
dans leur vanité. En nommant une assemblée de révision, le peuple fait acte
de souverain, mais du méme coup il abdique au profit de ses représentans, sans
se réserver seulement le droit de contréler et d’accepter ce qu’on fait en son
nom. Les constituans ne sont pas les mandataires, ils sont les maitres du
pays.

C’est ainsi que les choses se sont passées en 1789; on peut juger de |’arbre
par ses fruits. Une assemblée souveraine, dont rien ne génait la volonté, la
passion ni le caprice, a détruit tout ce qu’elle a touché : monarchie, admini-
stration, finances, armée, marine, église ; elle a condamné un peuple trop con-
fiant A traverser toutes les miséres de l’anarchie en lui montrant & horizon une
liberté qui fuyait toujours. C’est & ce prix que la France a été dotée d’une
constitution qui n’était méme pas viable. Promulguée avec éclat le 14 septem-
bre 1791, Veuvre de l’assemblée constituante disparaissait le 21 septembre
1792 devant ce jugement dédaigneux et mérité: ‘la convention déclare qu'il
ne peut y avoir de constitution que celle qui est acceptée par le peuple.” Ni
cet échec, ni cet arrét significatif, n’ont empéché les législateurs de 1848 de
638 APPENDIX.

reprendre avec une pieuse ignorance la tradition d’erreur qui datait de 1789;
ils ont mené la France au méme abime et par le méme chemin. La lecon nous
a-t-elle profité? Non, nous en sommes restés au méme point; nous n’avons
pas perdu une seule de nos illusions. L’expérience n’instruit que ceux qui
doutent et qui cherchent, elle n’existe pas pour un peuple que la foi révolu-
tionnaire illumine, et qui se croit naivement en possession de la vérité absolue.

Etudier la nature et Je caracttre du pouvoir constituant n’est donc pas une
cuvre de pure curiosité; ¢’est une question qui porte en ses flancs l’avenir de
la France. II est utile, il est nécessaire de montrer comment d’une vérité mal
comprise le législateur de 1789 a tiré les conséquences les plus fausses et les
plus désastreuses. 11 faut voir comment, en partant du principe de la souve-
raineté nationale, il en est arrivé & confisquer cette souveraineté au profit d'une
assemblée que la toute-puissance a enivrée et perdue.

Pour faire toucher du doigt l’erreur de nos péres, je dirai de quelle fagon
l Angleterre et les Etats-Unis s’y prennent pour réformer leurs constitutions.
lly a la deux systémes différens d’apparence, mais animés d’un méme esprit.
Si l’Angleterre ne peut nous servir d’exemple, il n’en est pas de méme de
lAmérique; elle nous offre d’excellens modéles, et il est inutile de raisonuer &
Vaventure quand on a sous la main la solution du probleme. . . .

Si Angleterre ne peut nous servir d’exemple, il en est autrement de |’ Ané-
rique, et pour plus d’une raison.

C’est aux Etats-Unis que nous avons émprunté les constitutions écrites, les
déclarations de droits, lidée du pouvoir constituant et le nom méme des con-
ventions, c’est-&-dire des assemblées qui sont spécialement chargées de faire
et de réviser les constitutions. On n’a point assez étudié cette influence des
Etats-Unis, quoiqu’elle soit hautement confessée par ceux qu’en 1789 on ap-
pelait les Américains, c’est-a-dire les Lameth, les Lafayette, les Noailles et
leurs anciens compagnons de la guerre d’indépendance. II est vrai que l’imi-
tation n’a pas toujours été heureuse, et que plus d’une fois, en exagérant un
principe juste, on en a fait une erreur; mais trop souvent aussi |’assemblée
constituante a préféré aux idées américaines des chiméres inventées par les
éléves de Rousseau. C’est ce qui est arrivé dans la question qui nous occupe.
Sieyés l’a emporté sur Lafayette, et en confondant le pouvoir constituant et le
pouvoir législatif il a tout brouillé et tout perdu.

L’Amérique a encore pour nous ce grand avantage qu’elle est une démo-
cratie. Le fondement de ses institutions, c’est la souveraineté du peuple.
C’est la nation seule qu’il appartient de choisir la constitution qui lui con-
vient, car, ainsi que l’écrivait John Adams dés l’année 1775, le peuple est la
source de toute autorité, l’origine de tout pouvoir. C’est 1a un principe uni-
versellement recu aux Etats-Unis, principe que personne ne conteste et que
chacun s’efforce d’appliquer de son mieux. Quoique les Américains aient
gardé l’esprit juridique de leurs ancétres de la Grande-Bretagne, quoique dans
le droit civil ils s’attachent de préférence A la coutume et aux précédens, néan-
moins en politique ils n’invoquent que la volonté nationale. Tout leur souci
est d’assurer dans sa plénitude la souveraineté du peuple et de ne la laisser
confisquer par personne, — et, grace & une pratique aussi sincére que hardie,
ils en sont arrivés, non moins heureusement que les Anglais, & des institutions
protectrices de la sécurité, de la liberté, et du bien-étre de tous les citoyens.
APPENDIX. 639

Enfin Amérique est une fédération, aujourd’hut composée de trente-sept
états particuliers et d’un gouvernement général. Il ne se passe guére d’années
qu’on n’établisse une constitution, qu’on n’en réforme une autre. Depuis
moins d’un siécle, on compte plus de cent soixante-dix essais de ce genre; il
n’en est pas un seul qui ait jamais inquidté le pays. Ce qui en Europe est une
crise, une maladie dangereuse, est aux Etats-Unis une fonction habituelle de
la vie politique, une institution réguliére. On congoit quel est pour nous Vin-
térét de ces expériences réitérées; nous ne pouvons pas avoir la prétention
d’étre plus républicains, plus démocrates que les Américains, et leur exemple
nous démontrera combien nous sommes encore entichés d’idées despotiques.
Nous exaltons en paroles la souveraineté du peuple, mais en fait les partis ne la
respectent guere, tout leur effort consiste & |’éluder ou & l’usurper.

Pour bien comprendre le jeu des constitutions américaines et celui des con-
ventions, il faut done se faire une idée nette de la facon dont on entend et
dont on pratique aux Etats-Unis la souveraineté du peuple. Sur ce point,
nous avons beaucoup & apprendre et beaucoup a oublier.t

Le principe dominant, celui qui pénétre et anime toutes les institutions amé-
ricaines, c’est que l'ensemble des citoyens, hommes, femmes, enfans, a droit de
régler son gouvernement comme il l’entend. Aux Etats-Unis, on ne connait
pas Vidde de légitimité qui fait du gouvernement la propriété d’une famille
privilégiée; on n’admet pas davantage la maxime doctrinaire qui donne a la
raison, & la justice, le droit de commander, car c’est reculer le probleme et
non le résoudre. Qui décidera ce qui est juste et ce qui est raisonnable? Les
Américains prennent les choses de moins haut, et restent sur un terrain plus
solide. Pour eux, c’est une loi divine, c’est }’instinct, c’est la sympathie qui
fonde et maintient les sociétés humaines. II y a la un fait naturel qu’il n’ap-
partient pas & ’homme de changer; mais quant au gouvernement, que les
Américains réduisent au maniement des intéréts généraux de la communauté,
c’est une ceuvre tout humaine; son objet est d’assurer le bien-étre et la liberté.
de chacun et de tous par la volonté et le concours de chacun et de tous.
Comme le disait l’excellent Lincoln en consacrant le cimetidre de Gettysburg,
‘*cette nation, congue dans la liberté, vouée & l’égalité, veut maintenir sur la
terre le gouvernement du peuple par le peuple et pour le peuple.” Ces simples
paroles contiennent tout le systéme politique des Etats-Unis. .. .

Qu’on lise le discours prononcé en 1861 & la convention d’ Alabama par M.
Williams L. Yancey; on y reconnaitra des sophismes qui nous sont familiers.
“ On demande que l’ordonnance de sécession soit soumise au peuple,” disait M.
Yancey. “Cette proposition repose sur l’idée qu’il y a une différence entre le
peuple et ses délégués a la convention. C’est une erreur. Il y a une différence
entre le peuple et les députés ordinaircs, parce que certains pouvoirs sont ré-
servés au peuple, et que l’assemblée législative ne peut pas les exercer; mais
la convention est omnipotente « il n’y a point de pouvoirs réservés. Le peuple

1 Dans tout ce que je vais dire de Amérique, mon autorité est l’excellent ouvrage de
John Alexander Jameson, juge 4 la cour supérieure de Chicago et professeur de droit con-
stitutionnel A l’université de la méine ville. Ce livre, intitulé The Constitutional Conven-
tion, its history, powers and modes of proceeding, a été publié a New-York en 1867. Pour
la richesse des documens et Ja solidité des jugemens, il peut soutenir la comparaison avec
le commentaire de Story sur la constitution des Etats-Unis.
640 APPENDIX.

est ici dans la personne de ses députés. Vie, liberté, propriété, tout est dans
nos mains. ... Tous nos décrets sont suprémes sans ratification, parce que ce
sont les décrets du peuple agissant dans sa capacité souveraine.” 1

Cette doctrine, qui a enfanté la guerre de la sécession, les publicistes améri-
cains la repoussent avec horreur. Pour eux, c’est un démenti donné & |’expé-
rience et au bon sens; le jurisconsulte Jameson ne craint pas de Vappeler
une des plus impudentes hérésies de notre temps.” En effet c’est la négation de
toutes les maximes, de toutes les pratiques constitutionnelles qui ont fait la
grandeur et la prospérité des Etats-Unis. La-bas, il est passé en axiome que
le plus sir moyen de perdre une république, c’est de confier le pouvoir légis-
latif 4 une assemblée unique ; combien la ruine n’est-elle pas plus prompte et
plus certaine, si l’on confie le pouvoir constituant & une seule chambre? N’est-
ce pas l’omnipotence d’une assemblée unique qui a toujours fait avorter en
France les essais de liberté? D’ailleurs sur quel principe appuyer cette étrange
concession d’un pouvoir absolu? Toutes les constitutions proclament que la
souveraineté est inhérente a la société politique, et que par conséquent elle est
indivisible et inaliénable. a déléguer sans condition a une poignée de légis-
lateurs, n’est-ce pas la diviser et l’aliéner? Un peuple n’a pas plus le droit
d’abdiquer sa souveraineté qu’un individu n’a le droit de vendre sa liberté.
Quelle que soit l'ignorance ou la faiblesse d’une nation, ce transfert, cet
abandon de la souveraineté est nul de soi; rien ne peut légitimer l’usurpa-
tion de ceux qui ne sauraient étre que les mandataires et les serviteurs du
pays.

Tels sont les principes recus aux Etats-Unis, et, selon moi, ce sont les vrais
principes de la démocratie. Si nous ne les avons jamais suivis, c’est que
V’école révolutionnaire a faussé toutes nos idées. La souveraineté du peuple
n’a été chez nous qu’un cri de guerre exploité par quelques ambitieux : elle
n’a jamais servi qu’a détruire ; quand nous voudrons en faire un rouage régu-
lier, une force conservatrice, nous prendrons exemple des Américains. . . .

Rentrons en France, voyons comment on y a compris et exered le pouvoir
constituant.

Dans l’ancienne monarchie, il n’y a pas de constitution écrite ; le seul souve-
rain et le seul législateur, c’est le roi. 11 est donc naturel: que l’idée d’un
pouvoir constituant ne paraisse qu’a la veille de la révolution; Sieyés s’en
déclare l’inventeur. ‘Une idée saine et utile,’’ nous dit-il, ‘‘fut établie en
1788 : c’est la division du pouvoir constituant et des pouvoirs constitués. Elle
comptera parmi les découvertes qui font faire un pas & la science; elle est due
aux Frangais.’’ ®

Dans une note sur Sieyés,* Lafayette remarque qu’avant 1788 les Améri-
cains avaient eu des conventions pour réformer leurs constitutions particuliéres,
et pour rédiger leur constitution fédérale, que par conséquent l’idée du pouvoir
constituant n’est pas une invention francaise. I] ajoute avec raison que les
Frangais, loin de faire sur ce point un pas & la science, l’ont plutdt fait ré-

1 Jameson, p. 296,

2 Jameson, p. 3.

8 Discours sur le projet de constitution et sur la jurie constitutionnatre. — Moniteur du
7 thermidor an 111 (25 juillet 1795).

4 Mémoires de Lafayette, t. IV. p. 36.
APPENDIX. 641

trograder par le mélange des fonctions constituantes et Iégislatives dans I’as-
semblée de 1789 et dans la convention nationale, tandis qu’en Amérique ces
fonctions ont toujours été distinctes. C’était mettre le doigt sur une des erreurs
fondamentales du systéme frangais, — mais en 1789 on était infatué de Sieyés
et de ses visions politiques; quant & l’ami de Washington, on l’admirait, mais
on ne I’écoutait pas. Lorsque l’assemblée, prés de se séparer, décréta le cha-
pitre de !a constitution qui traite de la révision, toutes les propositions de La-
fayette furent écartées. “M. de Lafayette,’’ disait le Journal de Paris du 1°
septembre 1791, “‘n’a voté pour aucun de ces décrets: toutes ses vues y étaient
trop opposées, il a trop bien étudié les pouvoirs constituans pour vouloir confier
leur mission aux pouvoirs constitués ; mais, lorsqu’il a cité l'exemple de l’ Amé-
rique, ona dit: Ah! l’ Amerique !’?}

J’ai grand peur qu’en parcourant ces pages plus d’un lecteur ne pousse le
méme cri. Renoncer a un préjugé révolutionnaire n’est pas chose aisée pour
un Frangais. , Cependant en l’an 111, au sortir des excés de la convention, le
législateur, effrayé de son omnipotence, avait introduit dans la constitution un
systeme de révision imité des Américains, et depuis ]’an 111 combien de fois les
événemens n’ont-ils pas donné raison au général Lafayette !

Tandis qu’aux Etats-Unis ’appel d’une convention est un fait aussi simple
et aussi pacifique que la convocation d’une Iégislature ordinaire, a-t-on jamais
vu en France une assemblée constituante qui n’ait amené une révolution?
L’euvre de ces législateurs tout-puissans a-t-elle jamais été viable? La con-
stitution de 1848 a-t-elle été moins chimérique et moins funeste que celle de
1791? Oserait-on remettre en vigueur cette charte républicaine que la France
a laissée tomber avec une complete indifférence? Aujourd’hui méme ne
sentons-nous pas que le terrain tremble sous nos pieds? Si nous avions trouvé
la vérité, en serions-nous réduits & marcher au hasard et & tatonner dans la
nuit? ;

Toute notre théorie du pouvoir constituant repose sur une erreur et sur un
sophisme. L’erreur, c’est la délégation de la souveraineté: la souveraineté ne
se délégue pas. Le sophisme, c’est |’identité du peuple et de ses représentans,
la confusion du mandataire et du mandant. Nous aurons beau faire des dis-
cours pompeux et crier que le monde a les yeux sur nous, cette conception du
pouvoir constituant n’en est pas moins la négation méme de la souveraineté du
peuple. Pour les partis, c’est le moyen infaillible de se jouer de la volonté
nationale, et de soumettre le pays au despotisme d’une minorité.

De cette double erreur, comme d’une source empoisonnée, sortent toutes nos
fautes et toutes nos miseres,

Les constituans étant considérés comme le peuple méme en vertu de la délé-
gation qu’ils ont recu, et le peuple étant l’origine de tout pouvoir, nos politi-
ques en concluent que I'assemblée posséde tous les droits de la souveraineté, et
suivant eux (ce qui est encore une erreur révolutionnaire) ces droits sont illi-
mités. L’autorité de |’assemblée est done absolue. Vie, liberté, propriété, re-
ligion, tout est entre les mains de cet abrégé de la nation. En d’autres termes,
c’est au despotisme que nous nous en remettons du soin de créer la liberté. Il
faut toute Ja force de l’habitude pour nous aveugler sur la fausseté et le danger
d’une pareille invention.

1 Mémoires de Lafayette, t. ILI. p. 118.
642 APPENDIX,

A cette assemblée, armée déja d’un pouvoir formidable, on soumet le gou-
vernement tout entier. La premiére garantie de la liberté, la séparation des
pouvoirs, disparait. C’est toujours une suite de la méme erreur. On suppose
qu’en l’absence d’une constitution le peuple gouverne par lui-méme, et l’assem-
biée représente le peuple. C’est la fiction méme sur laquelle les césars édi-
figrent leur tyrannie. Quel est l’effet de cette concentration de pouvoirs? Ecou-
tons Daunou décrivant en 1793 le désordre qu’il avait sous les yeux. “Une
assemblée chargée de faire une constitution mutile et paralyse par sa seule
existence toutes les autorités qui sont autour d’elle. Elle est trop facilement
entrainée a confondre le droit de créer et de modifier chaque pouvoir avec le
droit de l’exercer immédiatement. Elle devient une puissance énorme et dic-
tatoriale qui ne peut étre longtemps salutaire. C’est une autorité presque
nécessairement despotique et tellement contre nature qu’elle opprime ceux
méme qui l’exercent.’’} N’est-ce pas 1a l’histoire de la convention ?

En vertu du méme sophisme, l’assemblée, aprés avoir achevé son ceuvre, ne
la soumet pas au vote populaire. Le mandataire s’attribue le droit de lier son
commettant sans lui demander son aveu. Pour un Américain, il y a la une
usurpation de la souveraineté, un crime de lése-majesté nationale. Un Fran-
gais qui appartient A I’école révolutionnaire ne voit dans cet étrange procédé
que la conséquence logique de l’hypothése, plus que téméraire, qui identifie le
représentant et le représenté. Pourquoi consulter le peuple? C’est lui qui a
parlé par la bouche de ses députés.

Enfin, et ceci ne me paraft justifiable en aucune facon, non-seulement nos
assemblées constituantes imposent au pays une constitution qui d’ordinaire lui
déplait, mais elles lui interdisent d’y toucher avant l’époque qu'il leur convient
de fixer. Des par l’architecte qui a construit le nouvel édifice politique, il est
défendu au peuple souverain de se trouver mal logé et de choisir un autre
abri, — et cela pendant de longues années. Sait-on quand il était permis a la
France de modifier la constitution de 1791, cette constitution qui mourut au
berceau? En lan de grace 1821! A cette date, la France avait traversé six
révolutions, et elle en était & son huititme gouvernement.

1 Daunou, Essai sur la Constitution. Paris, 1798, p. 55.
APPENDIX.

B.

643

COMPLETE LIST OF CONSTITUTIONAL CONVENTIONS HELD IN THE UNITED

STATES,

N. B. In this list are included many Conventions which framed Constitu-
tions or amendments that never took effect, having been rejected by the peo-
ple, or that took effect only for a short time, and were annulled by superior
authority, as those framed by the seceding States during the Rebellion, and in
the earliest attempts made by them at reconstruction.

The section marks refer to the sections ante, where the Conventions indi-
cated are described or referred to.

 

 

NAMES.

DATE OF ASSEMBLING.

DATE OF ADJOURN-
MENT.

REMARKS.

 

1, Continental Con-
gress (2d).

2, South Carolina.

3, South Carolina.

4, South Carolina.
5, South Carolina.

6. South Carolina.

7. South Carolina,

8. South Carolina,

May 10, 1775.

November 1, 1775.

January 5, 1778,

May 12, 1788,
May, 1790.

December 17, 1860.

September 13, 1865.

January 14, 1868,

 

March 1, 1781.

March 26, 1776,

March 19, 1778.

May 23, 1788.
June 3, 1790.

January 6, 1861,

March 17, 1868,

 

September 27, 1865.

 

This body was not properly a Con-
vention, but for convenience is
classed as such, like the Revolu-
tionary Conventions in general.
The Constitution framed by it

was submitted to the legals
tures of the various States. §§
159-162, 502, 503.

This Convention was the ‘‘ Provin-

~ cial Congress’’ of South Caro-
lina. The Constitution framed
by it was not submitted to the
eople. It was subsequently
eld by the Supreme Court of
the State to be a mere act of
the General Assembly, repeal-
able at pleasure. See §§ 133,
184, 136, note 2.

This so-called Convention was the
General Assembly sitting as a
Convention, without warrant,-
and the Constitution framed by
it was subsequently held by the
Supreme Court of the State to
be a mere act of the General As-
sembly, and as such to be re-
veslable at pleasure. See §§

35, 136, note 2.

Called to ratify the Federal Con-
stitution. § 167.

The Constitution framed by this
Convention was not submitted
to the people. § 218,

Secession Convention. The Con-
stitution framed by it was not

submitted to the people. §§
247-250,
Reconstruction Convention. The

Constitution framed by it was
not submitted to the people,
and, together with the govern-
ment organized under it, was
subsequently, by the Acts of
Congress of March 2d and 23d,
and July 19, 1867, declared not
to be a legal government. §§

Reconstruction Convention called
under the Acts of Congress of
March, 1867. The Constitution
framed by it was submitted to
the people April 14 and 16,
1868, and adopted by a vote of
70,558 for, to 27,288 against.
£§ 258 a-258 d.
644.

APPENDIX.

 

 

NAMES.

DATE OF ASSEMBLING.

DATE OF ADJOURN-
MENT.

REMARKS.

 

9. New Hampshire.

10, New Hampshire,

11, New Hampshire,

12. New Hampshire.
13, New Hampshire.

New Hampshire.

15. New Hampshire.

16. Virginia.

Virginia.
18. Virginia,
19,

Virginia.

20, Virginia.

21, Virginia.

22, Virginia.

 

December 21, 1775.

June 10, 1778.

2d soeriae June,
1781.

1788.
September 7, 1791.

November 6, 1850.

December 6, 1876.

May 6, 1776.
June 2, 1788.
October 5, 1829.

October 14, 1850.

February 13, 1861.

June 11, 1861.

February 13, 1864,

January 5, 1776.

June 6, 1779.

October 31, 1783.

June 21, 1788.
September 5, 1792.

April 17, 1851.

June 29, 1776.

June 27, 1788.

January 15, 1830.

August 1, 1861.

August 1, 1061.

Auguat 21, 1861.

April 11, 1864,

 

December 16, 1876,

 

This body was the ‘‘ Congress” of
New Hampshire. The Consti-
stitution framed by it was not
submitted tothe people, § 181.

The Constitution framed by this
Convention was submitted to
the people and rejected. § 132,

The Constitution framed by it was
submitted to the people in town
meetings and adopted. § 132,
This Convention submitted
three different Constitutions to
the people, two of which were
rejected and one adopted. It
held eight sessions, reconvening
from time to time in pursuance
of the original Convention Act.

Called to ratify the Federal Con-
stitution. § 167.

The Constitution framed by it was
submitted to the people and
adopted. §§ 217, 218,

At its first session, this Con-
vention proposed amendments,
which were submitted to the
people and rejected. At a
second session, i 1851, other
amendments were proposed,
which were submitted to the
people, and three of them adopt-
ed. §§ 217, 218.

The Constitution framed by it
was submitted to the people and
adopted, March 13, 1877. §§
217, 218.

The Constitution framed by this
Convention was not submitted
to the people. § 138.

Called to ratify the Federa] Con-
stitution. § 167.

The Constitution framed by this
Convention was submitted to
the people and aves, by avote
of 26,055 for, to 15,563 against.
§§ 217, 219,

The Constitution framed by this
Convention was submitted to
the people, and adopted by a
vote of 67,562 for, to 9,938
against. §§ 217, 219.

Secession Convention. The ordi-
nance of secession, and the Con-
stitution amended by it, were
submitted to the people and
ratified by a vote of 128,884 for,
pe besa against. §§ 178, 247-

By this Convention the recon-
struction of the State was at-
tempted, and proceedings taken
for forming the new State of
West Virginia. The question of
forming such new te only
was submitted to the people to
be embraced therein, and an-
swered in the affirmative. §§
178, 247-250.

This was the Virginia legislature
acting as a Convention, under
the authority of the people, for
the reconstruction of the State.
The Constitution framed by it
was not submitted to the peo-
ple. The government organized
under it received a partial rec-
APPENDIX.

645

 

 

NAMES.

DATE OF ASSEMBLING.

DATE OF ADJOURN-
MENT.

REMARKS.

 

23. Virginia.

24. New Jersey.

25. New Jersey.
26. New Jersey.

27. New York.

28. New York.
29. New York.

30, New York.

31. New York.

32. New York.

33. Pennsylvania.

34. Pennsylvania.

86. Pennsylvania,

 

December 3, 1867.

June 10, 1776.

2d Tuesday Decem-
ber, 1787.
May 14, 1844.

June 1, 1881.

July 9, 1776.

June 17, 1778.
October 13, 1801.

August 28, 1821.

June 1, 1846.

June 4, 1867.

December 4, 1872.

July 15, 1776.

November 10, 1783.
November 20, 1787.

April 17, 1868.

Tuly 2, 1776.

December 18, 1787.
Tune 29, 1844.

April 20, 1777.

July 26, 1788.
October 27, 1801.

November 10, 1821.

October 9, 1846.

February 28, 1868.

March 15, 1873.

September 28, 1776.

September 25, 1784.
December 12, 1787.

 

 

ognition from Congress, but was
by the Acts of Congress of

arch 2d and 23d, and July 19,
1867, declared not to be a legal
State government. §§ 179-181,
250-258.

Reconstruction Convention, called
under the Acts of Congress of
March, 1867. The Constitution
framed by it was not submitted
to the people until April, 1869,
when submission was required
by Congress. The clauses re-
lating to the test oath and to
disfranchisement, which were
separately submitted, were re-
jected, and the remainder of
the Constitution was adopted
by a vote of 210,585 for, to 9,136
againat, §§ 258 a-268 d.

The Constitution framed by it was
zor ceeainie to the people.

Called to ratify the Federal Con-
stitution. § 167.

The Constitution framed by it
was submitted to the people.
§§ 217, 219.

At the date here mentioned, met
a Constitutional Commission,
appointed by the Governor, un-
der an Act of the legislature, to
propose to that body amend-
ments to the Constitution ;
hence, not a Constitutional
Convention. §§ 546 a-546 d.

The Constitution framed by it
was not submitted to the peo-
ple. §§ 150-152,

Called to ratify the Federal Con-
stitution. § 167.

The five amendments framed by
this Convention were not sub-
mitted to the people. §§ 217,

219.

The Constitution framed by it was
submitted to the people in Feb-
ruary, 1822, and was adopted
by a vote of 74,732 for, to 41,402
against. §§ 217, 219.

The Constitution framed by it was
submitted to the people in No-
vember, 1846, and adopted by a
vote of 221,528 for, to 92,436
against. §§ 217, 219.

The Constitution framed by it was
submitted to the people and re-
jected, save Art. VI., relating
to the judiciary, which was
adopted. §§ 217, 218.

Between these dates sat a Con-
stitutional Commission, ap-
pointed by the Governor, under
an Act of the legislature, to
propose to that body amend-
ments to the Constitution ;
hence not a Constitutional Con-
vention. §§ 546 a-546 d. |

The Constitution framed by it was
not submitted to the people.
§§ 143, 144. :

Council of Censors. Abortive.
§ 222.

Called to ratify the Federal Con-
atitution. § 167.
646

APPENDIX.

 

 

NAMES.

DATE OF ASSEMBLING.

DATE OF ADJOURN-
MENT.

REMARKS.

 

86. Pennsylvania,

37. Pennsylvania,

38. Pennsylvania,

39. Maryland.

40, Maryland.
41. Maryland.

42. Maryland.

43. Maryland.

44, Delaware,

45. Delaware.

46. Delaware.
47. Delaware.
48. Delaware.
49. Georgia.

50. Georgia.
51. Georgia.

62. Georgia.

53. Georgia,

 

November 24, 1789.

May 2, 1837.

November 3, 1872.

August 14, 1776.

April 21, 1788.
November 4, 1850.

April 27, 1864.

May 8, 1867.

August 27, 1776.

1787.
June, 1792.

November 8, 1831.

1st Tuesday Decem-
ber, 1852.

1st Tuesday Octo-
ber, 1776,

October 26, 1787.
November 4, 1788.

January 4, 1789.

May 4, 1789.

 

September 2, 1790.

February 22, 1838.

December 27, 1878.

November 11, 1776.

April 28, 1788.
May 13, 1851.

September 6, 1864.

August 17, 1867.

September 20, 1776.

December 7, 1787.
June 12, 1792.

December 2, 1831.
April 30, 1853,
February 5, 1777.

January 2, 1788.
November 24, 1788.

1789,

May 6, 1789.

 

This Convention framed a Consti-
tution, and adjourned February
26, 1790, that the people might
examine it, August 9, 1790,
the Convention reassembled,
and September 2, 1790, pro-
claimed the Constitution, which
was not otherwise submitted to
the people. §§ 221, 222,

The Constitution framed by it was
submitted to the people and
adopted by a vote of 118,971
fon, to 112,759 against. §§ 217,

This Convention framed a Consti-
tution, and November 11, 1873,
adjourned to December 27, 1873,
In the mean time the Constitu-
tion was submitted to the peo-
ple, and adopted by a vote of
293,564 for, to 109,198 against.
§§ 217, 219.

The Constitution framed by it was
ay pubmed to the people.

§ 145.

Called to ratify the Federal Con-
stitution. 67.

The Constitution framed by it was
submitted to the perp June 4,
1851, and adopted. sf 224, 225,

The Constitution framed by it was
submitted to the people Octo-
ber 12 and 13, 1864, and adopted
by a home vote of 27,541 for, to
29,536 against, aud a soldiers’
vote of 2,633 for, to 263 against.
§§ 217, 218.

The Constitution framed by it was
submitted to the people, Sep-
tember 18, 1867, and adopted
by a vote & aes fe to 23,036
against. « , 218,

The Constitution framed by it was
not submitted to the people.
§§ 141, 142.

Called to ratify the Federal Con-
stitution. § 167.

The Constitution framed by it was
not submitted to the people.
§§ 217, 219, 225,

The Constitution framed by it was
not submitted to the people.
§§ 217, 218.

The Constitution framed by it was
submitted to the people and
rejected. §§ 217, 218.

The Constitution framed by it was
not submitted to the people.

§ 147.

Called to ratify the Federal Con-
stitution. § 167.

The Constitution framed by it was
submitted to aConvention called
for the purpose of ratifying or
rejecting it, which met January
4, 1789. §§ 148, 149.

Qalled to pass upon the Constitu-
tion framed by the next pre-
ae Convention. It proposed
amendments, which were sub-
mitted to the following Conven-
tion. §§ 148, 149, 218.

Called to pass upon the Constitu-
tion framed and amended by
APPENDIX.

647

 

 

NAMES.

Georgia.

55. Georgia,

56. Georgia.

57. Georgia.

58. Georgia.

60. Georgia.

61.

Georgia.

62. North Carolina.

63. North Carolina.
64, North Carolina.
65. North Carolina.

66. North Carolina.

67. North Carolina.

 

DATE OF ASSEMBLING.

May 2, 1795.
May 8, 1798.
May, 1833.
1st Tuesday May,
1839..
January 16, 1861.

October 25, 1865.

December 9, 1867.

July 11, 1877.

November 12, 1776.

July 21, 1788.
1789.
June 4, 1835.

May 20, 1861.

October 2, 1865.

DATE OF ADJOURN-
MENT.

May 6, 1789.

May 30, 1798.

May 15, 1833.

May 16, 1839.

March 23, 1861.

November 8, 1865.

March 11, 1868.

August 25, 1877.

December 18, 1776.

August 4, 1788.
November 21, 1789.
July 11, 1835.

1861.

October 19, 1865.

 

 

REMARKS.

the preceding two Conventions.
§§ 148, 149, 218,

This Convention framed amend-
ments to the Constitution of
1789, but did not submit them
to the people. §§ 217, 218.

The Constitution framed by it was
not submitted to the people.
§§ 217, 218.

Amendments to the Constitution
were proposed and submitted
by this Convention, but were
on by the people. §§ 217,

The Constitution framed by it was
submitted to the people and
adopted. §§ 217, 219.

Secession Convention. The Con-
stitution framed by it was sub-
mitted to the people and adopt-
ed. §§ 247-250.

Reconstruction Convention. The
Constitution framed by it was
submitted to and adopted by
the people, but the government
organized under it was by the
Acts of Congress of March 2d
and 23d, and July 19, 1868, de-
clared not to be a legal State
government. .

Reconstruction Convention, called
under the Acts of Congress of
March, 1867. The Constitution
framed by it was submitted to
the people, and adopted by a
vote of 89,007 for, to 71,309
against, March 11, 1868. §§
258 a-258 d.

The Constitution framed by it was
submitted to the people and
adopted, December 5, 1877.
§§ 217, 218.

The Constitution framed by it was
not submitted to the people.

§ 146.

Called to ratify the Federal Con-
stitution. § 167.

Called to ratify the Federal Con-
stitution. § 167.

The amendments framed by it
were submitted to the people
and adopted by a vote of 26,771
for, to 21,606 against. §§ 217,

Secession Convention. The ordi-
nance of secession and the Con-
stitution framed by this Con-
vention were not submitted to
the people. §§ 247-250.

Reconstruction Convention.
Amendments proposed by it
were submitted to the people,
and adopted by a vote of 20,506
for, to 2,002 against. May 24,
1866, the Convention reassem-
bled and revised the Constitu-
tion, but their work was re-
jected by the people by a vote
of 19,570 for, to 21,552 against.
The government organized un-
der this Constitution was, by
the Acts of Congress of March
2d and 23d, and July 19, 1867,.
declared not to be a legal State
government. §§ 250-258.
648

APPENDIX.

 

 

NAMES.

DATE OF ASSEMBLING.

DATE OF ADJOURN-
MENT.

REMARKS.

 

68.

69.

70,

71.

72.

73.
74.

15.

76.
77.

79.

81.

82.

84,

86.

87.

North Carolina,

North Carolina.

Vermont.

Vermont.

Vermont.

Vermont.

Vermont.

Vermont.

Vermont.

Vermont.

. Vermont.

Vermont.

Vermont.

Vermont.

‘Vermont.

. Vermont.

Vermont. _

Vermont.

Vermont.

Vermont.

 

January 14, 1868.

September 6, 1875.

July 2, 1777.

1st Wednesday June,
1785.

1st Thursday June,
1786.

January, 1791.
1792.

July 3, 1793.

1799.

1806.

1813.
June 7, 1820.

February 21, 1822.
June 6, 1827.

June 26, 1828.
1834,
January 6, 1836.
June 2, 1841.
January 4, 1843.

June 7, 1848.

 

March 16, 1868.

October 11, 1875.

July 8, 1777.

1st Thursday Feb-
ruary, 1786.

1786,

January 10, 1791.
179-.

Tuly 9, 1793.

March 26, 1821.

February 23, 1822.

December 1, 1827.

January 15, 1835.

January 14, 1836.

February 15, 1842.

January 12, 1843.

February 28, 1849,

 

Reconstruction Convention, called
under the Acts of Congress of
March, 1867. The Constitution
framed by it was submitted to
the people and adopted by a vote
of 93,118 for, to 74,009 against.
8§ 258 a-258 d.

The Constitution framed by it was
submitted to the people and rati-
fied by a vote of 122,912 for, to
108,829 against. §§ 217, 218.

The Constitution framed by it was
not submitted to the people.
§§ 153, 154.

Council of Censors. It submitted
the amendments framed by it
to the next following Conven-
tion. §§ 217, 220.

Called to ratify the amendments
framed by the last Council of
Censors. §§ 217, 220.

Called to ratify the Federal Con-
stitution. § 167.

Council of Censors. It submitted
the amendments framed by it
to the Convention next follow-
ing. §§ 217, 220.

Called to ratify the amendments
framed by the last Council of
Censors. §§ 217, 220.

Council of Censors. Abortive.
§§ 217, 220.

Council of Censors. Abortive.
§§ 217, 220.

Council of Censors. Abortive.
§§ 217, 220.

Council of Censors. It submitted
the amendments framed by it
to the next following Conven-
tion. §§ 217, 220.

Called to ratify five amendments
to the Constitution framed by
the last Council of Censors,
All were rejected. §§ 217, 220.

Council of Censors. It submitted
amendments to the Constitution
framed by it to the next follow-
ing Convention. §§ 217, 220...

Called to ratify the amendments
to the Constitution framed by
the last Council of Censors
some of which it adopted. sg
217, 220.

Council of Censors, It submitted
amendments to the Constitu-
tion framed by it to the next
following Convention. §§ 217,

220.

Called to ratify the amendments
to the Constitution framed by
the last Council of Censors,
twelve of which it adopted. §§
217, 220.

Council of Censors. It submitted

_amendments to the Constitu-
tion framed by it to the next
chewing Convention. §§ 217,

Called to ratify the amendments
to the Constitution framed by
the last Council of Se
of which it rejected. §§ 217,

220. :
Council of Censors. Itsubmitted
APPENDIX.

649

 

 

88.

OL.

=

9

93.

95.

98.

100.

101.

102.
103.

104,
105.

106.

NAMES.

DATE OF ASSEMBLING.

DATE OF ADJOURN-

REMARKS.

 

p

Vermont.

Vermont.

Vermont.

Vermont.

Vermont.

Vermont.

Massachusetts.

Massachusetts.

Massachusetts.

. Massachusetts.

Massachusetts.

. Federal Con-

vention.

Connecticut.

Connecticut.

Rhode Island.
Rhode Island.

Rhode Island.
Rhode Island.

Rhode Island.

 

January 2, 1850.
June 6, 1855.
January 7, 1857.

June 4, 1862.
June 2, 1869.

June 8, 1870.

January, 1778.
September 1, 1779.

January 9, 1788.
November 15, 1820.

May 4, 1853.
May 14, 1787.

January 4, 1788.
August 26, 1818.

1790.
1824,

1834.
October 4, 1841.

November, 1841.

January 14, 1850.

February 26, 1856.

January 12, 1857.

October 25, 1862.
October 22, 1869.

June 15, 1870.

February 28, 1778.
June 16, 1780.

February 7, 1788.
January 9, 1821.

August 1, 1853.

September 17, 1787.

January 9, 1788.
September 16, 1818.

May 29, 1790.

November 18, 1841.

February, 1842.

t

 

 

amendments to the Constitu-
tion framed by it to the next
Eilowing Convention. §§ 217,

Called to ratify the amendments
to the Constitution framed by
the last Council of Censors, ten
of which it adopted. §§ 217,

220.

Council of Censors. It submitted
amendments to the Constitu-
tion framed by it to the next
ye Convention. §§ 217,

Called to ratify the amendments
to the Constitution framed by
the last Council of Censors, all
on it rejected. §§ 217,

Council of Censors. Abortive.
§§ 217, 220.
Council of Censors. It submitted

amendments to the Constitu-
tion framed by it to the next
following Convention. §§ 217,
220.

Called to ratify amendments to
the Constitution framed by the
last Council of Censors, three
of which, mcluding one abolish-
ing the Council of Censors, were
adopted. §§ 217, 220.

The Constitution framed by it was
submitted to the people and re-
jected. § 156.

The Constitution framed by it was
submitted to the people and
adopted. §§ 157, 158.

Called to ratify the Federal Con-
stitution. 167.

The Constitution framed by it was
submitted to the people and
adopted. §§ 217, 218.

The Constitution framed by it was
submitted to the people and re-
jected by a vote of 63,222 for,
to 68,150 against. §§ 217, 219.

The Constitution framed by it was
submitted to Conventions in the
several States, and adopted.
§§ 162-166.

Called to ratify the Federal Con-
stitution. § .

The Constitution framed by it was
submitted to the people October
5, 1818, and adopted by a vote
of 13,918 for, to 12,361 against.
§§ 217, 219.

Called to ratify the Federal Con-
stitution. §§ 167.

The Constitution framed by it was
submitted to the people and re-
jected. §§ 217, 219, 226.

Abortive. ‘§§ 217, 219, 226.

The ‘‘ People’s Convention.”” The
Constitution framed by it was
submitted to the people of the
State at large, and adopted.
§§ 226, 246.

Called by the Charter govern-
ment. The Convention framed
and published a Constitution in
November, 1841, and adjourned
to February, 1842. March 21st,
650

APPENDIX.

 

 

NAMES,

DATE OF ASSEMBLING.

DATE OF ADJOURN-
MENT.

REMARKS.

 

107. Rhode Island.

108, Kentucky.
109. Kentucky.

110. Kentucky.

111. Kentucky.

112, Tennessee.

113. Tennessee.

114, Tennessee.

115. Tennessee.

116. Tennessee.

117. Ohio.

118. Ohio.

119, Ohio.
120. Louisiana.

121. Louisiana.

122. Louisiana,

128. Louisiana.

 

September 12, 1842.

1st Monday April,
1792,
July 22, 1799.

October 1, 1849.

November 18, 1861.
January 11, 1796.
May 19, 1834.
1861.

January 9, 1865.

January 10, 1870.
November 1, 1802.
May 6, 1850.
May 13, 1873.

1st Monday Novem-
ber, 1811.

August 5, 1844.
July 6, 1852.

January 23, 1861.

November 5, 1842.

April 19, 1792.
August 17, 1799,

June 11, 1850.

November 20, 1861.

February 6, 1796.

August 30, 1834,

1861.

January 26, 1865.

February 22, 1870.

November 29, 1802.

March 10, 1851.

May 14, 1874.
January 22, 1812.

May 16, 1845.

July 31, 1352.

March 26, 1861.

 

 

22d, and 23d, the Constitution
was submitted to the persons
under its provisions admitted
to vote, and was rejected bya
vote of 8,013 for, and 8,689
against. §§ 217, 219.

Called by the Charter govern-
ment. The Constitution framed
by it was eubmitted to the peo-
ple and adopted, November
21-23, 1842, by a vote of 7,032
for, to 59 against. §§ 217, 219.

The Constitution framed by it was
not submitted to the people.
§§ 173, 174,

The Constitution framed by it was
not submitted to the people.
§§ 217, 218.

The Constitution framed by it was
submitted to the people and
adopted, by a vote of 71,563 for,
to 20,302 against. §§ 217, 219.

Secession Convention. The work
of this Convention was not sub-
mitted to the people.

The Constitution framed by it was
not submitted to the people.
§§ 190-197.

The Constitution framed by it was
submitted to the people March
5 and 6, 1835, and adopted by
a vote of 42.666 for, to 17,691
against. S§ 217, 218.

The State legislature sitting asa
Secession Convention. Its work
was submitted to the people and
adopted. §§ 247-250.

Reconstruction Convention. The
amendments framed by it were
submitted to the people and
adopted, February 22, 1865.
The government organized un-
der it was recognized by Con-
gress. §§ 250-258.

The Constitution framed by it was
submitted to the people, March
26, 1870, and adopted by a vote
of 98,128 for, to 33,872 against.
§§ 217, 219.

The Constitution framed by it was
not submitted to the people.

18

The Constitution framed by it was
submitted to the people, and
adopted by a vote of 126,663 for,
to 109,699 against. §§ 217, 218.

The Constitution framed by it was
submitted to the people and
rejected. §§ 217, 218.

The Constitution framed by it was
not submitted to the people.
§ 187.

The Constitution framed by it was
submitted to the people, No-
vember 5, 1845, and adopted.
§§ 217, 218. 7

The Constitution framed by it was
submitted to the people, No-
vember 1, 1852, and adopted.
§§ 217, 219.

Secession Convention. _ The
amendments framed by it were
not submitted to the people.
§§ 247-250.
APPENDIX.

651

 

NAMES.

DATE OF ASSEMBLING.

DATE OF ADJOURN-
MENT.

REMARKS.

 

124. Louisiana.

125. Louisiana.

126. Louisiana.
127. Indiana.
128. Indiana.
129, Mississippi.
130. Mississippi.

131. Mississippi.

132, Mississippi.

133. Mississippi.

134. Mllinois.

135. Mlinois.

136. Minois.

137. Illinois.

138. Alabama.

139, Alabama.

 

April 6, 1864.

November 23, 1867.

April 21, 1879.

June 10, 1816.

October 7, 1850.

July 7, 1817.

September 10, 1832.

January 7, 1861.

August 14, 1865.

January 7, 1868.

1st Monday August.
1818, :

June 7, 1847.
January 7, 1862.

December 13, 1869.

July 5, 1819.

January 7, 1861.

 

July 25, 1864.

March 9, 1868.

July 23, 1879,
June 29, 1816.
February 10, 1851.
August 15, 1817.
October 24, 1832.

1861.

August 26, 1865.

May 15, 1868.

August 26, 1818.

August 31, 1847.

March 24, 1862.

May 13, 1870.

August 2, 1819.

March 20, 1861.

 

Reconstruction Convention. The
Constitution framed by it was
submitted to the people, Sep-
tember, 1864, and adopted by
a vote of 6,836 for, to 1,566
against. The government organ-
ized_under it was, by the Acts
of Congress of March 2d and
23d, and July 19, 1867, declared
not to be a legal State govern-
ment. §§ 250-258.

Reconstruction Convention called
under the Acts of Congress
of March, 1867. The Consti-
tution framed by it ‘was sub-
mitted to the people August 17
and 18, 1868, and adopted by a
vote of 66,152 for, to 48,739
against. §§ 258 a-258 d.

The Constitution framed by it was
submitted to the people and
adopted. §§ 217, 219.

The Constitution framed by it was
ae sobeated to the people.

The Constitution framed by it was
submitted to the people and
adopted. §§ 217, 219.

The Constitution framed by it was
submitted to the people and
adopted. § 187.

The Constitution framed by it was
submitted to the people and
adopted. §§ 217, 218.

Secession Convention. The
amendments framed by it were
not submitted to the people.
§§ 247-250.

Reconstruction Convention. The
amendments framed by it were
not submitted to the people,
and the government organized
under them was, by the Acts
of Congress of March 2d and 23d,
and July 19, 1867, declared not
to be a legal State government.
§§ 250-258.

Reconstruction Convention called
under the Acts of Congress of
March, 1867. The Constitution
framed by it was submitted to
the people, June 28, 1868, and
rejected, but when submitted
a second time was adopted. §§
258 a-258 d.

The Constitution framed by it was
not submitted to the people.

§ 187.

The Constitution framed by it was
submitted to the people, March
a 1848, and adopted. §§ 217,
218.

The Constitution framed by it was
submitted to the people and re-
jected. §§ 217, 218.

The Constitution framed by it was
submitted to the people and
adopted, July 2, 1870, by a vote
of 154,227 for, to 35,443 against.
§§ 217, 218.

The Constitution framed by it was
not submitted to the people.
§§ 186, 187.

Secession Convention. The work
652

APPENDIX.

 

 

NAMES.

DATE OF ASSEMBLING,

DATE OF ADJOURN-
MENT.

REMARKS.

 

140.

141.

142.

143.

144,

145.

146.

147,

148.

149.

150.

151,

152.

Alabama.

Alabama.

Alabama,

Maine.

Missouri.
Missouri.
Missouri.

Missouri.

Missouri.

Michigan.

Michigan.

Michigan.

Michigan.

 

September 12, 1865.

November 5, 1867.

September 6, 1875.

October 11, 1819.

January 19, 1875.

June 12, 1820.

November 17, 1845.

February 28, 1861.

January 6, 1865.

May 5, 1875.

May 11, 1835.

September 26, 1836.

December 14, 1836.

June 3, 1850.

 

September 30, 1865.

December 6, 1867.

October 2, 1875.

October 29, 1819,

February 10, 1875.

July 19, 1820.
January 14, 1846.
July 1, 1863.

April 10, 1865,

August 2, 1875.

June 29, 1835.

1836.

December, 1836.

August 15, 1850.

 

of this Convention was not sub-
a to the people. §§ 247-

Reconstruction Convention. The
Constitution framed by it was
not submitted to the people,
and the government organized
under it was, by the Acts of
Congress of March 2d and 23d,
and July 19, 1867, declared to
be not a legal State government,
§§ 250-258. =

Reconstruction Convention called
under the Acts of Congress of
March, 1867. The Constitution
framed by it was submitted to
the people and adopted. §§
258 a-258 d.

The Constitution framed by it was
submitted to the people, De-
cember 6, 1875, and adopted.
§§ 217, 218.

The Constitution framed by it was
submitted to the people and
adopted. §§ 175, 177.

Between these dates sat a Consti-
tutional Commission, appointed
by the Governor, under a reso-
lution of the legislature, to con-
sider and frame amendments
to the Constitution, and report
them to that body for final
submission to the people in
September following. The
Commission reported seventeen
amendments, of which nine
were submitted to the people
and adopted. §§ 546 a-546 d.

The Constitution framed by it was
ae submitted to the people.

87.

The Constitution framed by it was
submitted to the people and re-
jected. §§ 217, 219.

The amendments framed by it
were not submitted to the peo-
ple. §§ 217, 219.

The Constitution framed by it was
submitted to the people and
adopted, June 6, 1865, by a vote
of 43,670 for, to 41,808 against.
§§ 217, 219.

The Constitution framed by it was
submitted to the people, Octo-
ber 30, 1875, and adopted bya
vote of 90,600 for, to 14,3(2
against. §§ 217, 218.

The Constitution framed by it was
submitted to the people, No-
vember 2, 1835, and adopted by
a vote of 6,299 for, to 1,350
against. §§ 188, 198, 201, 209.

‘Called to assent to a condition of

admission imposed by Congress.
It refused to assent. §§ 188,
199, 202.
Called to assent to the condition
of admission imposed by Con-
ess, It declared its assent.
& 188, 197, 199-201, 203-209.
The Constitution framed by it was
submitted to the people, and
adopted by a vote of 36,169 for,
to 9,433 against. §§ 217, 218.

\
APPENDIX.

658

 

 

153.

154.

155.

156.

157.

158.

159.

160.

161.

162,

163,

164.

165.

166,

NAMES,

DATE OF ASSEMBLING.

DATE OF ADJOURN-
MENT.

REMARKS.

 

Michigan.

Arkansas.

Arkansas.

Arkansas.

Arkansas.

Arkansas.

Florida.

Florida.

Florida.

Florida.

Florida.

Towa.

Towa.

Towa.

 

May 15, 1867.

August 27, 1873.

January 4, 1836.

March 4, 1861.

January 8, 1864.

January 7, 1868.

July 14, 1874.
December 3, 1838.
January 3, 1861.

October 25, 1865.

January 20, 1868.

1885.
October 7, 1844.

May 4, 1846.

January 19, 1857.

August 22, 1867.

October 16, 1873.

January 30, 1836.

March 21, 1861.

1864.

February 11, 1868,

1874.
January 11, 1839.
1861.

November 13, 1865.

February 25, 1868.

1885.
e

November 1, 1844.

May 19, 1846.

 

March 5, 1857.

 

The Constitution framed by it was
submitted to the people and re-
jected. §§ 217, 218,

Between these dates sat a Con-
stitutional Commission, ap-
pointed by the Governor under
an Act of the legislature, to
report to that body at its next
session amendments to or a re-
vision of the Constitution. §§
546 a-545 d.

The Constitution framed by it was
not submitted to the people.
§§ 188, 189, 210.

Secession Convention. The work
of the Convention was not sub-
mitted to the people. §§ 247-

Reconstruction Convention. The
Constitution framed by it was
submitted to the people and
adopted, by a vote of 12,177 for,
to 226 against. The govern-
ment organized under it was,
by the Acts of Congress of
March 2d and 23d, and July 19,
1867, declared not to be a legal
State government. §§ 250-258.

Reconstruction Convention called
under the Acts of Congress of
March, 1867. The Constitution
framed by it was submitted to
the people, February 11, 1868,
and adopted by a vote of 27,913
is to 26,597 against. §§ 258a- ,

d,

The Constitution framed by it was
submitted to the people and
adopted. §§ 217, 219.

The Constitution framed by it was
not submitted to the people.
§§ 188, 189, 210.

Secession Convention. The work
of this Convention was not sub-
mitted to the people. §§ 247-250,

Reconstruction Conveution, The
government organized under the
Constitution framed by it was,
by the Acts of Congress of March
2d and 23d and July 19, 1867,
declared not to be a legal State
government. The Constitution
framed by it was not submitted
to the people. §§ 250-258.

Reconstruction Convention called
under the Acts of Congress of
March 2d and 23d, and July 19,
1867. The Constitution framed
by it was submitted to the peo-
people, May, 1868, and adopted
by a vote of 14,520 for, to 9,491
against. §§ 258 a-258 d.

The Constitution framed by it
was submitted to the people
in November, 1886. §§ 217, 218,

The Constitution framed by it was
submitted to the people and re-
jected. §§ 188, 189, 210.

The Constitution framed by it was
submitted to the people, August
3, 1846, and adopted by a vote
of 9,492 for, to 9,036 against.
§§ 188, 189.

The Constitution framed by it was
654

APPENDIX.

 

 

NAMES.

DATE OF ASSEMBLING.

DATE OF ADJOURN-
MENT.

REMARKS.

 

167. Texas.

168. Texas.

169. Texas.

170, Texas,

171, Texas.

172. Texas.
173. Wisconsin.

174. Wisconsin.

175, California.

176. California.

177. Kansas.

178, Kansas.

 

July 4, 1845.

January 21, 1861.

February 10, 1866.

June 1, 1868.

September 6, 1875.

1885,
October 5, 1846,

December 15, 1847.
September 1, 1849.

September 28, 1878.

October 23, 1855.

September 5, 1857.

August 27, 1845.

February 1, 1861.

April 2, 1866.

February 6, 1869.

February 1, 1848.

October 13, 1849.

March 8, 1879.

November 2, 1855.

November 7, 1857.

 

November 24, 1875.

1885.
December 16, 1846.

 

submitted to the people, August
8, 1857, and adopted by a vote
of 40,311 for, to 38,681 against.
§§ 217, 218.

The Constitution framed by it was
submitted to the people, Octo-
ber 13, 1845, and adopted by a
vote of 4,174 for, to 312 against.

Secession Convention. The seces-
sion ordinance was submitted to
the people, and adopted by a
vote of 34,794 for, to 11,235
against. Amendments to the
Constitution framed by it were
not submitted to the people.
§§ 247-250.

Reconstruction Convention. The
Constitution framed by it was
submitted to the people, June
25, 1866, and adopted by a vote
of 34,794 for, to 11,235 against.
The government organized un-
der it was, by the Acts of Con-
gress of March 2d and 23d and
July 19, 1867, declared not to be
a legal State government. §§
250-258.

Reconstruction Convention called
under the Acts of Congress of
March, 1867. The Constitution
framed by it was submitted to
the people, and adopted by a
vote of 72,395 for, to 4,924
against. §§ 258 a-258 d.

The Constitution framed by it was
submitted to the people, Feb-
ruary 17, 1870, and adopted by
a large majority. §§ 217, 219.

§§ 217, 219.

The Constitution framed by it was
submitted to the people and re-
jected. §§ 187, 210.

The Constitution framed by it was
submitted to the people, March,
1848, and adopted by a vote of
16,442 for, to 6,149 against.
§§ 188, 210.

The Constitution framed by it was
submitted to the people, No-
vember 13, 1849, and adopted
by a vote of 12,061 for, to 811
against. §§ 188, 210.

The Constitution framed by it was
submitted to the people and
adopted. §§ 217, 218.

The Topeka Convention. The
Constitution framed by it was
claimed to have been submitted
to the people, and adopted by a
vote of 1,731 for, to 46 against.
§§ 188, 211, 212.

The Lecompton Convention. The
Constitution framed by it was
submitted to the people. The
slave-holding clause was sub-
mitted, December 31, 1857, re-
ceiving 6,226 votes, against 589
votes. The entire Constitution
was submitted by both its ad-
vocates and its opponents, the
former claiming its adoption ty
a vote of 6,143 for, to 58
against ; and the latter, its re-
APPENDIX.

 

NAMES,

655

 

DATE OF ASSEMBLING.

DATE OF ADJOURN-
MENT.

REMARKS.

 

179. Kansas,

180, Kansas.

181. Minnesota.
182. Oregon.
183. West Virginia.

184. West Virginia.
185. Nevada.

186. Nevada.

187. Nebraska.

188. Nebraska.

189. Nebraska.

190. Colorado,

191, Colorado.

" 192. Colorado,

 

March 23, 1858.

Taly 5, 1859,

July 13, 1857.

August 17, 1857,

November 26, 1861.

January 16, 1872.
1863,

July 4, 1864,

July 4, 1864.

February 3, 1866.

1864.

August, 1865,

December 20, 1875.

 

April 3, 1858,

July 29, 1859.

August 29, 1857.

September 18, 1857.

February 19, 1862.

April 9, 1872.

July 28, 1864,

February 9, 1866.

June 12, 1875,

1864,

1865,

March 14, 1876.

 

jection, by a vote of 10,126
against to 138 votes for it with
slavery, and 24 for it without
slavery. §§ 188, 213.

The Leavenworth Convention.
The Constitution framed by it
was submitted to the people.
and adopted by a vote of 4,346
for, to 1,257 against, but CGon-
gress refused to admit the State
under it. §§ 187, 216,

The Wyandotte Convention. The
Constitution framed by it was
submitted to the people, Octo-
ber 4, 1859, and adopted by a
vote of 10,421 for, to 5,530
against. §§ 188, 216,

The Constitution frame¢ by it was
submitted to the people, and
adopted by a vote of 36,240 for,
to 700 Against. § 187,

The Constitution framed by it was
submitted to the people, and
adopted by a vote of 7,195 for,
to 3,196 against. §§ 188, 210.

The Constitution framed by it was
submitted to the people, and
adopted by a vote of 28,321 for,
to B72 against. §§ 178-185,

The Constitution framed by it was
submitted to the people and
adopted. §§ 217, 218,

The Constitution framed by it was
submitted to the ious and re-
jected. §§ 188, 210.

The Constitution framed by it was
submitted to the people, Octo-
ber 11, 1864, and adopted. §§
187, 210.

Abortive, the Convention failin
to frame a Constitution, §

187, 210.

The Territorial Legislature. The
Constitution framed by it was
drawn up by a caucus of pri- ,
vate individuals, passed by both
branches of the legislature, and
approved by the Governor. It
was then submitted to the peo-
ple, June 21, 1866, and approved
5” majority of 145. §§ 188,
2

The Constitution framed by it was
submitted to the people, Octo-
ber 12, 1875, and adopted. §§

217, 4

The Constitution framed by it was
submitted to the people and re-
jected. §§ 187, 210.

The Constitution framed by it was
submitted to the people, Sep-
tember 5, 1866, and was adopted
by a majority of 105. Congress
passed an Act at the ensuing
session admitting the State into
the Union under it, but tho Act
was vetoed by President John-
son, a8 was also a second Act in
January, 1867. §§ 188, 210,

The Constitution framed by it was
submitted to the people, July 1,
1876, and adopted; and under
it the State was admitted into
the Union, August 1, 1876. §§
188, 210.
656 APPENDIX.

C.

(See § 377, ante.)

In 1874, there appeared in Sybel’s Historische Zeitschrift (vol. xxxii.) the fol-
lowing article by Dr. Von Holst, the learned author of Verfassung und Demo-
kratie der Vereiniyten Staaten, containing a notice of this work. Although, on
the whole, the article will be seen to be commendatory of the purpose, spirit,
and execution of the task assumed by the author, it criticised the work upon
two points, in respect to which a few observations may here be justified. We
refer to these criticisms of the learned historian because, whether just or not,
they are pertinent to the issue pending before the nation for decision, as to the
true character and relations of the Constitutional Convention. This issue in
the foregoing pages we do not pretend to decide — we argue it; and we deem
it but fair that all the facts and principles which can be claimed to bear upon
it should be laid before the American people, with whom rests the decision.
For, while it is important that the novel and interesting institution of which
we have attempted to trace the character and history should be developed
upon safe constitutional lines, it is not important that the opinions respect-
ing it entertained by either the author or Dr. Von Holst should prevail, unless,
after all pertinent tests, they should be decided to be sound. Guided by this
principle, we have, in this edition, conceded the justness of the criticism made
by Von Holst of the sections of the earlier editions of this work which recog-
nized the existence in the States of a ‘+ quasi-sovereignty ’’ (§§ 52, 53), although
it would be easy to vindicate the substantial consistency of what-is there stated,
if properly understood, with what we, equally with him, maintain to be the
true doctrine of sovereignty, — that which attributes it to the nation alone.
Those sections have, however, been rewritten, and the notion of a quasi-sover-
eignty in the States has been abandoned. It costs us nothing thus to surrender
the shadowy semblance of sovereignty which in those sections we described as
attributed to the States by courtesy merely, and by a figure of speech. Equally
then as now we maintained that State sovereignty had no real existence, but
that the idea of it sprang from confounding the permissive exercise of sover-
eign powers by the States with the possession of original sovereignty.

The second criticism, to the effect that, in our discussion of the relations of
the Convention to the legislature, we attribute to the latter too orcat power to
bind and control the former. we deem less fortunate. Von Holst complains
that, in that discussion, we put upon the Convention, to use what he himself
characterizes as a strong expression, “a straight-jacket,’’ and thereby, he
says, place ourselves ‘‘in hostile opposition to the fundamental character of
constitutional law, —that which leaves wide play to what is in process of be-
coming.’”? More specifically, he says the anthor ‘‘has allowed himself to be
led astray in his political thinking by the history of secession,’’ which, in sub-
stance, is an intimation that this work is what the Germans call a tendenz
work, written to maintain a particular thesis, the subordination of the Consti-
tutional Convention to the law of the land. This charge we admit to be true;
this is a tendenz work, in that sense ; and we may ask, what work upon his-
APPENDIX. 657

tory or constitutional law was ever written which was not a tendenz work
in the same sense; that is, written from some special point of view to estab-
lish truths, of which the author was strongly convinced, and to refute errors
deemed dangerous and, if not combated, likely to prevail? This work was
written whilst our armies were fighting the rebellion, and to maintain the same
thesis for which they fought, —that these States are a nation, that State
rights in the Southern sense were a political heresv, and that secession was
treason; written, in short, every line of it, literally, to the beating of the Union
drums. If, therefore, it leans strongly against that theory of conventional
power which had made possible and easy the wicked revoli of the South, it is
no more than the exigencies of the time when it was written and of truth de-
manded, and now demand. History shows that, in many of the seceding
States, the people and their General Assemblies were, at first, opposed to
secession, and that it was through the agency of Conventions selected for the
purpose, through the influence of a few traitorous leaders, and fed with seduc-
tive fancies as to their sovereign powers, that the people were misled into
tebelling against the Union How could such a danger be met, or guarded
against, but by proclaiming the true principle, that a government, once estab-
lished, represents the sovereign, and that while it lasts no body of men can
assemble and assume more perfectly or more rightfully than that government
to represent the sovereign; still more, that, while that government survives,
no earthly power has a right to shape the policy of the State superior to that
of its own legislature, — to shape it either, first, by declaring that a Convention
to revise the fundamental law shall meet, if at all, under conditions prescribed
by such legislature, and that it shall report the result of its deliberations, for
approval, to the body which called it, or to the people; or, secondly, by re-
fusing to call a Convention, when it is plain that the forces of anarchy are
clamoring for such an assembly for treasonable purposes; or, finally, by pro-
viding a penalty against any citizen who shall assume to sit as a member of a
Constitutional Convention not called by lawful authority? Whether, in any
case, it is or is not politic to call a Convention, or, if called, to tie its hands
by restrictions, or to leave it free to act at its own discretion, is a question for
the legislature alone. If the safety of the State be thought, on the one hand,
to be not incompatible with such freedom of action, or, on the other, to require
stringent limitations, “the fundamental character of constitutional law”’ de-
mands that the legislature shall act accordingly. Of the two things, perfect
freedom of action, or limitation by law to courses of action deemed safe and
wise, the latter is always, in the absence of special circumstances, to be pre-
ferred. This the learned critic himself substantially concedes. He says: “In
contests of this kind, as to their relative powers, between the Constitutional
Convention and the legislature, the spirit of constitutional law demands that
priority should be given to the claims of the Convention over those of the
legislature, where other and weightier considerations do not require a decision
in favor of the latter.’? Who is to determine what are weightier considerations ¢
Under our system, it must be the legislature, else our Constitutions are no
better than those of the first French republic, characterized by Burke as ‘ di-
gests of anarchy.’? With what Von Holst says as to the impolicy of hamper-
ing Conventions unnecessarily, and the propriety of leaving “ample play for
658 APPENDIX.

what is in process of becoming,’’ we heartily concur; and we would deprecate
as strongly as he the placing of a ‘ straight-jacket ’’ upon the Convention, if
it were true that it would “endanger the development of an institution which
has shown itself, on the whole, one of the most imperishable (lebensfihigsten)
and beneficent creations of the political life of the United States. But, in
politics as in social life, there must be straight-jackets, because, in both, men
sometimes go mad. The Convention system, as we know by bitter experience
in 1861, at the South, went mad, and came near wrecking our ship of state.
While in some respects that institution has proved itself to be all that Von
Holst has painted it, in others it has been found to contain the elements of
extreme danger. Shall no attempt be made to neutralize or eliminate these,
provided those which make it “one of the most imperishable and beneficent
creations ”’ of our political life can be retained and strengthened? A theory
of the Convention which makes it the minister of the people certainly does this;
and a theory which converts it into the master, and the people into its slaves,
as certainly robs it of all its beneficent qualities. Were our people, therefore,
in relation to the powers of Conventions, to follow the guidance, not of expe-
rience, but of theory, as propounded by Von Holst, those bodies would speedily
assume, in all our States and in the nation, the rdle of the French Conventions,
by which that theory was adopted and carried to its legitimate consequences,
the ruin of France. That the views of Professor Von Holst in regard to the
powers of Conventions are merely theoretical is clearly apparent. It is true,
in the preparation of his work above referred to, he spent some time in the
United States, engaged in the study of our institutions and of our constitutional
history. But, considering the magnitude of the task he had undertaken, the
time was not long, and he never participated in our political life. He, there-
fore, could have acquired only that insight into our institutions which may be
attained by any foreigner of equal capacity from the reading of books, and
from conversations with intelligent Americans. That he failed in some respects
properly to appreciate those institutions ought not to be deemed remarkable,
when it is remembered that, before him, De Tocqueville also failed. That my
critic must have failed — that his brief sojourn amongst us could not have fitted
him to dogmatize in regard to the practical operation of the constitutional Con-
vention, a perfectly unique institution, seems to be certain, if the judgment
pronounced by one of the most learned of English historians, Mr. E. A. Free-
man, is to be taken as sound. In a late work that writer says: . . . ‘A Swiss
or a Norwegian may judge of the workings of free institutions, because he,
like the Englishman, has daily experience of their working in their own land.
But these things are mysteries to German professors, because they are mysteries
to German statesmen also. The German scholar simply reads in a book of
things which we are always looking at and acting in. He therefore utterly fails
to understand many things at Athens or Rome or anywhere else which come
to us like our ABC.’’ After referring to Ranke and Curtius as illustrating
this general defect, he closes a high eulogium upon Mommsen with this state-
ment of the points in which he fails as a historian : “ What is lacking in him’?
(Mommsen) ‘is political and moral insight, the moral insight which is born
with a man, the political insight which is gained only by living in communities
of freemen.’”’? Methods of Historical Study, pp. 289-291. Where Curtius and
1 See Appendix A, ante.
APPENDIX. 659

Ranke and Mommsen failed to estimate correctly the workings of the simple
and ordinary machinery of free communities, it can hardly be deemed remark-
able as we have said, that Von Holst should have misapprehended the novel
and peculiar institution presented him for study amongst us.

Tue ConsTiITUTIONAL ConveNTion ; its history, powers, and modes of proceeding.
By Jonny ALEXANDER Jameson, LL. D., Judge of the Superior Court of Chicago,
Illinois. Third edition. Revised and Corrected. xix.,561. Chicago, 1873.

Richter Jamefon ift fein glangender Geilt, aber ein griindlicher Forfdjer und cin rubiger
und gewiffenhafter Denker. Wit einer guweilen falt an Schwerfalligfeit ftreifenden
Bedachtfaméeit priift ev fede Frage, bevor er fein Urtheil fizivt. Sit er aber einmal gu
einer feften Unficht gelangt, fo verfolgt ex fie mit einer Gonfequeng, die etwas Enges und
Starrves hat. Man fann nicht leidenfchaftslofer und forgjamer eine Frage von allen
dentbaren Geftdhtspuntten erwdgen, al8 er e8 thut, bevor er an die Feft{tellung dev
grundliegenden Gage jeines Argumented geht: aber eB feblt ihm die Beweglicfeit des
Geiftes, die gu ciner vorurtheil3freien und allfeitigen Wirdigung der fich erft im Berfolg
de Raifonnements ergebenden Cinwande erforderlich tft. Gein Denfen tragt das eigen-
thiimlide Geprage des Rechtsgelehrten, der feine hohe SGdhule weniger auf der Advocaten-
al8 auf der Richterban€ durchgemacht hat. Gr verfdliest ftch nicht ftaatsmannijden
Grwagungen, aber fie liegen unter Dem Dru der juriftijchen Sdhulung feines Denfeng,
wabrend andererfeits gelegentlic) aud) gewiffe politifehe Uebergeugungen fein juriftijches
Urtheil beftimmen. G8 geht ihm die Weite des Blickes eines Marjhall ab, dem niche
nur in der Theorie, fondern in jeder concreten Frage der Unterjdried in der Natur des
Gffentlihen und de8 private Rechtes gegenwartig war, und der in feinem tieffittlicen
Selbfthewuptjein den Muth fand, das werdende Staatsrecht der Nepubli€ in richtige
Entwidelungsbahnen zu lenfen. Samefon geht nicht leicht irre, aber wenn er einmal
auf einen faljchen Weg gerath, fo labt ex fich fchwer wieder von ihm abbringen.

Jn dtefer Charakteriftif des Autord find alle die gropen Vorgiige fo wie die Mangel fei-
ned Werkes ber die Constitutional Convention angedeutet, bas 1867 guerft erfchien und
von dem 1873 bereits die dDritte Wuflage nothig geworden ift. Das fehr umfangreidhe
und bid dahin gang gerftreute Material itber diefes auper|t wichtige Gapitel des ameri=
fanifden BVerfaffungsredtes ijt nicht nur in groper Bollftandigkeit gufammengetragen
und mit richtiger Unterfceibung des Wefentlichen und Unwefentlichen verwerthet, fon=
dern aud) die ganze Anlage des WerkeS und die Behandlung der cingelnen Fragen ver-
Dienen im Allgemeinen Hohe Anerfennung. Die Quellen find forgfaltig angegeben, fo
dag tiberall eine genaue Controle moglich tft. Der Stil ift einfach, nicht allpemein ver-
{tandliche Runftausdrirce werden moglichft vermieden, der Gedanfengang ift flar und
man ift nie in Bweifel dariher, was cigentlich die Anficht des Autors ift—ecin Vorzug,
Der feinedwegs allen amerifanifeen Werfen ither das Berfaffungsrecht nachgerithmt
werden fann. Gine eingehenbdere Ueberficht ded Ynhalted gu geben, muh fic) Ref. ver=
fagen, um Raum fiir einige fritifche Bemerfungen fiber die beiden Puntte gu
gewinnen, die dem europaifchen Publifum vornehmlic) von Gntereffe fein ditrften. Ym
Uebrigen befdyrantt fid) Ref. barauf, unten die Ueherfchriften der Capitel? angufihren
und fein allgemeines Urtheil dahin ausgufprecen, bah Richter Samefon’s Werk gu den
gediegenften und werthvollften Urbeiten ither eingelne Theile des amerifanifden Ber-
faffungsrechtes gehsrt.

Die cine wefentliche Uustellung, dte Ref. gu machen bat, betvifft bes Autors Stellung

1 Diefelben fauten : Of the various kinds of conventions Of sovereignty. Of constitutions. Of
the requisites to the legitimacy of conventions, and of their history. Of the organization and
modes of proceeding in conventions. Of the powers of conventions, Of the submission of consti-
tutions to the people. Of the amendment of constitutions, Appendix.
660 APPENDIX.

gur Frage ber Stuatenfouverdnetat. Yn diefer Grundfrage fieht ber Wutor allerdings
larer al8 irgendein amerifanifder Politifer oder Jurift vor bem Birgertriege gefehen ;
aber gu voller Rlarheit ift auch er noch nicht geEommen. G. 55 heibt e8: “ It is true,
nevertheless, in the United States, that although the nation is the only real sovereign,
the States are often called sovereign. But this use of the word is proper only asa
figure of speech employed out of courtesy to numerous and dignified bodies invested
with the exercise, for local purposes, of important sovereign powers. The States,
at best, are but quasi sovereign; that is, on account of their permissive supremacy
in local State affairs. they are to be treated, to a certain extent, as if they were
sovereign ; precisely as an ambassador, despatched to a foreign court and there
representing his sovereign, is received and honored, on account of his office, as if he
were himself the sovereign.” 8 bedarf wohl Eaum erft des Bemeifes, dab der Ver-
gleich mit bem Gejandten in Eeinem Stic gutreffend ift. Doch dad ift nicht von grofem
Belang. Wohl von Widhtigkeit aber ift die ,Luafi-Souveranetat”, dte hier introducirt
wird und auf die der Autor fpdter sfters zuricdfommt. Der Ausdruc it gwar febon vor
ihm haufig auf die Staaten der Union angewendet worden, aber Samefon halt eben doch
noch an ifm felt. Die Folge davon ift, dag er Sfter3 in die Halbheiten verfallt, gu denen
der vage Begriff verfiihrt. FJ. hat fich aber auch dem weiteren Vorwurf ausgefegt, dak
ex mit ber Annahme diefes vagen Begriffs feinem eigenen Raifonnement untreu wird.
Bunaehft flimmt e8 fohlecht gufammen, die Gouverdnetit der Staaten only a figure of
speech ju nennen und dann dod) Quafi-Gouveranetat gugugeftehen. Ferner ift ber
Ausdruc “at best” in der Entfheidung derjenigen Frage, die den Ediftcin des gangen
Verfaffungsrechted Lildet, durdhaus ungulaffig. Die Staaten der Union reprajentiren
nicht wie Gefandte den Gouveran. Sie aus ,Haflichfeit” gu befhandeln, al8 ob fie
fouveran waren, hat feinen Sinn. Gntwebder hat ihre QuafieSouveranetat einen ftaatd-
rechtlichen Snhalt, ober fie hat ihn nicht, und dann hat fie einfach nicht Statt ; ein Drittes
gibt e8 nicht. Die Motivirung des Bugeltandniffes der Ouafi-Gouverdnetat finde in
noch viel Hdherem Grade auf bie Bundesregierung Anwendung, und doch ift e8 noch
Niemand eingefallen, ihr Quuafi-Gouveranctat gugufpreden. Der Grund dafitr aber
ift Tebdiglich, daf e8 fic) hier um eine ,Megierung” handelt, dort aber das Wort ,Staat”
in die Obren flingt. Der Gouverdn in den Ver. Staaten ift ,das Volt der Ver.
Staaten”, und was darunter gu verftehen ift, fagt J. mit groper Scharfe in bem Sag:
“Sovereignty resides in the society or body politic; in the corporate unit resulting
from the organization of many into one, and not in the individuals constituting such
unit, nor in any number of them as such, nor even in all of them, except as organized
into a body politic and acting as such” (©. 19, 20). Meben diejem einen Gouverin
aibt e3 ebenfo wenig eine Quafi-Souveranetat, al8 e8 einen anderen Gouveran neben
ibm gibt.

Die gweite Uusftellung betvifft des Autors Anficht fiber die Competeng der Const.
Conv., refp. das Sompetengverhalinif von der Legislatur und der Const. Conv. .
fteht hier unter bem Drue ber politifdjen Greigniffe von 1860 und 1861.

Die Theorie, nach der die Const. Conv. alle bem ,Bolke” felbit guftehenden Befugniffe
hat, taucht gum erften Male in ber Const. Conv. von New-York tm J. 1821 auf.
(Deb. N. Y. Conv. 1821, G. 199.) Die Lehre gewann nad) und nach an Boden und
wurde gleichgeitiq immer fcharfer pracifirt. Ws ber Conflict swifden Norden und Siden
rafch gum Bruch heranreifte, fanden die fidftaatlichen ,Feuerfreffer” ef in ihrem ntereffe,
fte auf die duBerfte Spige gu tretben. Sn mehreren Staaten fonnten fie mit Beftimmt-
Heit darvauf rvechnen, in einer Convention da8 Uchergewicht au erhalten, wahrend e8 febr
aweifelhaft war, ob die Maforitit ber Bevdlferung dagu witrde bewogen werden Ednnen,
aus cigener, nicht nur formell fondern auch thatfachlich vollfommen freter Gntfchliehung
den Rubico gu fiberfdreiten. Darum ward der Sag aufgeftellt: Die Convention ift
nfouveran”, denn fie ift bad »Bolk”. William L. Yancey fagte in der Convention von
APPENDIX. 661

Mabama: “ This proposition (bie SeceffionSordinang bem Bolfe gur Ratification gu
unterbreiten ) is based upon the idea, that there is a difference between the people and
the delegate. It seems to me that this in an error. There is a difference between
the representatives of the people as the law-making body, and the people themselves,
because there are powers reserved to the people by the Convention of Alabama, and
which the General Assembly cannot exercise. But in this body is all power — no
powers are reserved from it. The people are here in the persons of their deputies.
Life, Liberty, and Property are in our hands. Look to the Ordinance adopting the
Constitution of Alabama. It states, ‘ We, the people of Alabama,’ etc., ete. All our
acts are supreme, without ratification, because they are the acts of the people acting
in their sovereign capacity.” (Hist. and Deb. Alb. Conv. 1861, ©@.114.) Die Gon-
ventionen mehrerer Staaten (Wlabama, Louifiana, Arkanjas, Miffiffippi u. f. w.) bane
delten diejer Theorie gemag. Jn anderen Staaten, wie 3. B. in Virginia, wurde die
Seceffionsordinang allerdings einer Ubftimmung der Bevslferung unterworfen, aber erft
naddem die Convention, die Legislatur und der Gouverneur die Seceffton Langft gu
einer vollendeten Thatfache gemacht hatten.

Dah diefe Fritdhte der Lehre von der ,Gouverdnetat” der Const. Conv. einen tiefen
und nachhaltigen Gindruc auf alle confervativen und national gefinnten Wmerifaner
gemadt haben, (apt fic) wohl verftehen. Und nod) viel beffer begrimnbdet erfcheint die
unbedingte Verdammung der Doctrin al3 verfaffungsrechtlide Regerei und politifche
Ungeheuerlichfeit, wenn man genauer nad) ihrer Motivirung forfdt. Jn der Gllinois
Convention fagte Peters : “ We are the sovereignty of the State. We are what the
people of the State would be if they were congregated here in one mass-meeting.
We are what Louis XIV said he was, ‘ We are the State.” We can trample the
Constitution under our feet as waste paper, and no one can call us to account save
the people.” Das ift die eingig benfbare Motivirung der Gouveranetat der Const.
Conv. Berfaffungsrechtlid) ift e8 aber abfolut feinem Bmeifel unterworfen, dab “the
people of the State . . . congregated in one mass-meeting” nicht die gering{te recht-
like Befugnif iber die BVerfaffung haben witrde. Ware dem nicht fo, dann ware bald
jeder Haufe an irgend einer Strofenede und in irgend einer Schenfe ,bad Volk”, das
feinen ,fouveranen” Willen fund thut, d. h. die Anardhie ware das Grundgefeg bes
Lande8. Nicht in der Bevslferung, fondern in bem Volf rubt die ftaatlide Vollgewalt,
d.h. in ber Bevdlferung in threr gang beftimmten politifden Organifation. Die Const.
Conv. hat daher unfraglich nur die BefugniB, die ihr in diefer gang bejtimmten politi-
fen Organifation gugewiefen ijt: fie fteht nicht auferhalb und iber, fondern innerhalb
und unter der Conftitution. Das Verfaffungsrecht weif tberhaupt von feiner recht-
licen politifcen Wtacht auferhalb der Verfaffung ; aud) dem ,Bolfe” erfennt e8 eine
folche nicht gu. Die Verfaffung fteht nicht ither bem VolE, aber das Volk fteht in der
Verfaffung.

Die Klarheit, mit der J. diefe fundamentalen Gage und die fic) aus ihnen ergebenden
Confequenzen entwicelt, wiirden allein hinreichen, fein Werk gu etnem fehr werthvollen
Beitrag zur Literatur bes amerifanifchen Verfaffungsredjtes gu machen. Allein die
Ausfdrettung ber Gegner —in der Theorie wie in der Praxis — treiben thn in Dag ent-
gegengefeste Extrem. Die Const. Conv. fcrumpft ifm fo gu fagen gu einem Comité
gujammen, defen Gompetenz gang auf die Uusarbeitung eines Entwurfed befchrantt ift
und nach der Ueberzeugung ded Uutors auch befdhrantt fein follte. Das ift nach Wnfidht
deS Ref. verfaffungsrechtlid) unrichtiq und politifch verfehrt. The Nation fagt in ihrer
Nummer vom 4. December, 1873 : “No portion of the American political system is
more obscure than the functions of the constitutional covention regarded as a part
of the orderly administration of government, as an instrument for the peaceful and
legal reconstruction of the fundamental law.” Das Werk 5.’8 ift dev belte Beweis
fiir die Ridhtigteit diefer Behauptung. Da nun nad) der von J. gegebenen Rifte von
662 APPENDIX.

1775—1873 bereit8 175 foldjer Conventionen getagt haben, fo fann diefe Duntelhcit
offenbar nur darin ihren Grund haben, dak die Verfaffungen meift nur wenige und febr
allgemein gehaltene Beftimmungen itber die Sonventionen und ihre Befugniffe enthalten.
Sowobl in der BunbdeSverfaffung wie in vielen Verfaffungen der eingelnen Staaten fin-
den fic) auch andere Beftimmungen, dte einen ahnlichen Charakter ber Ugemeinheit
und Vagheit haben, und das hat neben manchem Uebel auch viel Gutes zur Folge gehabt.
Die grofe Freihett, welche badureh dev ftaatlidyen Entwidelung geboten ift, ent)prict der
Thatfache, dag eS fich um ypolitifche Gemeinwefen hanbdelt, die in eminentem Grade wer-
Dende find. Gownhl dex Politifer als der Surift und Richter haben daher das Recht
und fogar die Pflicht, in Fragen, die in Folge jener Wlgemeinheit und Vagheit der Ver-
faffungsbeltimmungen verfdhieden beantwortet werden fonnen, thr Urtheil durch die
Forderungen der StaatSraifon beftimmen gu laffen. Wenn nun die StaatBraijon fordert,
dag die Const. Conv. nicht nur ein mit der Uusarbeitung eines Verfaffungsentwurfes
beauftragter Ausfohup des Volkes fei, fo darf mithin ihre Competeng aud) nicht unbe-
dingt darauf befehrantt werden, wo e8 nicht in ungweifelhafter Weije durch die Verfaffung
felbft gefchieht. %. thut dag jedoch, indem er die Gompeteng der Convention aus der
Legislatur herleitet. Diefe Annahme, wo fie fich nicht auf eine pofitive Beltimmung
der Verfaffung ftige, feheint bem Nef. in offenbarem und fchroffem Widerfpruch mit dem
Geilte de8 ameritanifehen Berfajfungsrechtes gu ftehen. Wo die Verfaffung die Beru-
fung von Const. Conv. vorfieht, ift das Motiv dagu offenbar die Ueberzeugung, dab die
Legislatur nicht gecignet ijt, die Der Convention gugewiejene Arbeit zu thun. Beftimmt
die Verfaffung nicht ausdrielich anders, fo darf man demnad) nicht annehmen, daf fie
der Legislatur die Mittel hat geben wollen, die Erfillung de Hrweckes der Convention
thatfachlid) unmbglich gu machen, und man muh annelmen, daB fte der Convention die
Mittel hat geben wollen, die Erfiillung ihres Bweetes ficher gu ftellen. Steht eB aber der
Legislatur zu, gang nach ihrem Gutdiinfen der Convention Regeln worgufchreiben und
Sadranken gu feben, fo ift eS natirlich auch in ibre Hand gelegt, das Tagen der Conven-
tion von Haufe aus gu einer Farce gu machen. Das ift nicht ein doctrindrer Ginwand,
fondern eine praftifche Erwagung von der eminenteften Bedeutung. Gin Beifpiel aus
der fiingften Verqangenheit wird bas zur Geniige zeigen.

Das Getreibe de8 ,Minges”, der Pennfylvania beherrfdhte, war nach und nach eine fo
himmeljdreiende und fo unertragliche Gchandwirthfdhaft qeworden, dab die Sffentliche
Meinung die Berufung etner Const. Conv. durchfegte. Die Legislatur beftimmte jedoch
in dem betreffenden Gefeg : “ The election to decide for or against the adoption of the
new constitution shall be conducted as the general elections of this commonwealth
are now by law conducted.” Dicfe Geftimmung wahrte dem ,Ring” die Mdglichteit,
in Philadelphia dte felt Jahren ibliden Correcturen des Wabhlergebniffes im gropten
Mafftabe vorgunehmen, und dte Annahme ded BVerfaffungsentwurfes wurde dadurd) in
hohem Grave fraglich, obgleic e8 nicht dem geringften Brweifel unterlag, dag eine bedeu-
tende Maforitdt der ftimmberechtigten Bevslferung fiir ihn war. Hatte die Convention
bas Necht, dieje Verfiigung der Legislatur bet Seite gu fegen, damit die Frage wirklich
durch das Votum des Volkes und nicht dureh die CSorrecturen des ,Minge3” ent}elhieden
witrde 2 Der oberfte Gericht3hof re8 Staates Hat in diejem Falle gegen die Convention
ent{chieden. Dieje Entfheinung entgieht fic) der Beurtheilung des Ref., da fie ihm bis
jest nur durch cine furge Beitungsnotts befannt ift. Gine fiir alle Fale giltige Megel gur
Entfdheidung devartiger Gomypetengconflicte gwijden der Const. Conv. und der Legislatur
lapt fich aber nicht aufftellen. Mur wo cine ausdritdliche Beltimmung der Verfafjung
entwebder der Const. Conv. gewiffe Mechte vorenthalt (refp. ertheilt), oder der Legislatur
das Necht gu befchrankenden Beftimmungen verleiht, ift jeder Brweifel ausgefdloffen.
Jn allen anderen Fallen muf e8, wenn nicht dte allein mafgebende, fo dod) eine fehr
dewichtige Grwagung fein, dab die Befugniffe fowohl der Legislatur wie der Convention
nicht Gigenrechte fondern delegirt find, hinfic)tlid) der Aenderung des Grundgefeges dic
APPENDIX. 663

Convention aber dem eigentlihen Ynhaber der politifahen Gewalt naher fteht als die
Legislatur, ihn unmittelbarer vertritt. Qn Competensftreitigfeiten Diejer Art gwifehen
der Const. Conv. und der Cegislatur fordert baher der Geift des Verfaffungsrechtes, da}
den Anjpriidjen der Convention ber Vorrang vor denen der Legislatur gegeben werbde,
wo nidht andere und gewidhtigere Ermagungen eine Entfdheidung zu Guniten Diefer ver=
langen. eftimmte Regeln, die eine verlaffige und leicht anwendbare Norm in den
eingelnen concreten Fallen abgeben, tonne nur fehr langjam durch) die Erfahrung ge:
wonnen werden, und nicht redhtlicje fondern yolitifce Momente werden dabei in erfter
Reihe gu beriicflichtigen fein.

Jamefon — um einen ftarfen Ausdruc gu gebrauchen — lat fic) burd) die Gefchidhte
der Seceffion und durd) das Ucherwiegen feines juriftifden Oenkens iiber jein politifches
Denfen verfithren, der Const. Conv. eine Swangsjacke angulegen. Damit fet er fich
in Wiverfprud mit dem Grunddharafter de8 Berfalfungsredhtes, das bem Werden
weiten Spielraum (aft, und er gefdbrdet die Entwidelung einer Snftitution, die fic)
im Grofen und Gangen al8 eine der lebensfahigiten und fegensreichften Schopfungen
deS politifden Lebens der Ver. Staaten erwiejen hat.

Holst,

D.

OPINION OF THE JUDGES OF THE SUPREME COURT OF NEW YORK, TOUCH-
ING THE VALIDITY OF THE ACT OF ASSEMBLY PASSED APRIL 22, 1846,
MODIFYING THE CONVENTION ACT OF MAY 138, 1845.1

Stare or New York, |
In AssemBLy, April 10, 1846.

Resolved, That the bill relating to the apportionment of delegates to the Con-
vention be referred to the justices of the Supreme Court, with a respectful mes-
sage from the Speaker of this House, requesting them to communicate forthwith
to this House whether, in their opinion, the delegates to be chosen to the Con-
vention under the law of the last session, be according to the apportionment of
the present members of the legislature, and whether this legislature have any
power to alter or amend that law. By order of the Assembly.

A. G. CHATFIELD, Speaker pro tem.

The justices of the Supreme Court have received the foregoing resolution,
with the bill therein mentioned, and have considered the questions on which their
opinion is asked by the Assembly. :

The first question touches the construction of the Convention Act of 1845 ;
and the point to be considered is, whether the number of delegates to be chosen
under the Act in the several counties, is to be regulated by the apportionment
of members of Assembly which was made in 1836, or by the apportionment
which has been made at the present session of the legislature.

By the Constitution, the apportionment of members of Assembly which was
made in the spring of 1836 took effect for the purpose of electing the members
in the fall of that year; but it did not take effect for any other purpose until

1 This opinion I do not find reported in any of the New York Law Reports, probably for
the reason stated in the text, (§ 39°, ante,) that there was no constitutional provision au-
thorizing such a reference to the Supreme Court, and the opinion was therefore deemed
extra-judicial. As given here, it is taken from Deb. Mass. Conv. 1853, Vol. I. p. 188.
664 APPENDIX.

the 1st day of January, 1837; and it was to remain unaltered for ten years. In
other words, the representation of each county in the Assembly, from the com-
mencement of the political and calendar year 1837 to the commencement of the
political and calendar year 1847, was to remain the same.

By the Convention Act, the people were to decide upon a “ Convention” or
“no Convention,” at the fall election of 1845. If they decided for a Conven-
tion, the delegates were to be chosen in April, 1846; they were to assemble in
June following; and the amendments to the Constitution on which the Conven-
tion might agree were to be submitted to the people for adoption or rejection, at
the fall election of the same year. Every thing in relation to the Convention
was to be both begun and concluded, while the apportionment of members of
Assembly made in 1836 remained in force and governed the representation from
the several counties.

The seventh section of the Convention Act provides that ‘the number of
delegates to be chosen to such Convention shall be the same as the number of
members of Assembly from the respective cities and counties in this State.” We
are of opinion that this means the number of members from the respective
counties, under the apportionment which was in force when the Act of 1845 was
passed, and which will be in force until after the delegates have been chosen
and their labors have been terminated. Although a new apportionment of
members of Assembly has already been made, it cannot take effect for any pur-
pose until the fall of the present year. If an election for members of Assem-
bly in any county for the present year were now to be ordered, and it should be
held at the same time that the delegates to the Convention are to be chosen, the
apportionment of 1836, and not that of the present session, would govern. The
legislature would have no power to make a different rule.

It would have been highly proper, as a just and equitable distribution of the
delegates among the several counties, and the legislature of 1845 might have
so provided, that the new census and apportionment which were then in pros-
pect, should regulate the representation in the Convention. But we think that
has not been done.

It will be seen, on referring to the Assembly documents of 1845, No. 211, that
the select committee to whom the Convention bill was referred gave a brief
exposition of its provisions, in which they said that ‘ each county is entitled to
the same representation it now has in the Assembly.” And so far as this ques-
tion is concerned, the bill was passed in the same words in which it was reported
to the House by the committee. It is difficult, therefore, to suppose that the
legislature, in passing the bill, intended any other rule of representation than
that which had been suggested to the committee. As their attention was plainly
called to the subject, it can hardly be doubted that they would have changed
the language of the seventh section if the bill was passed with any reference to
the new census which was about to be taken, or to the apportionment which
might be made under that census.

This goes to confirm the construction which we think must be given to the
Act, when looking at nothing but the Statute Book.

The next question is, ‘‘ Whether this legislature has any power to alter or
amend that law.” As a general rule, the legislature can alter or annul any law
which it has power to pass. A proper solution of the question proposed by the
APPENDIX. 665

Assembly involves, therefore, an inquiry concerning the source from which the
Act of 1845 derives its obligation.

The legislature is not supreme. It is only one of the instruments of that ab-
solute sovereignty which resides in the whole body of the people. Like other
departments of the government, it acts under a delegation of powers, and can-
not rightfully go beyond the limits which have been assigned to it. This dele-
gation of powers has been made by a fundamental law which no one depart-
ment of the government nor all the departments united have authority to
change. ‘That can only be done by the people themselves. A power has been
given to the legislature to propose amendments to the Constitution, which,
when approved and ratified by the people, become a part of the fundamental
law. But no power has been delegated to the legislature to call a Convention
to revise the Constitution. That is a measure which must come from, and be
the act of, the people themselves. Neither the calling of a Convention nor the
Convention itself is a proceeding under the Constitution. It is above and beyond
the Constitution. Instead of- acting under the forms and within the limits pre-
scribed by that instrument, the very business of a Convention is to change those
forms and boundaries as the public interests may seem to require. A Convention
is not a government measure, but a movement of the people, having for its
object a change, either in whole or in part, of the existing form of government.

As the people have not only omitted to confer any power on the legislature to
call a Convention but have also prescribed another mode of amending the or-
ganic law, we are unable to see that the Act of 1845 had any obligatory force
at the time of its enactment. It conld only operate by way of advice or recom-
mendation, and not asa law. It amounted to nothing more than a proposition
or suggestion to the people to decide whether they would or would not have a
Convention. That question the people have settled in the affirmative, and the
law derives its obligation from that act and not from the power of the legisla-
ture to pass it.

The people have not only decided in favor of a Convention, but they have
determined that it shall be held in accordance with the provisions of the Act of
1845. No other proposition was before them, and of course their votes could
have had reference to nothing else. They have decided on the time and man-
ner of electing delegates and how they shall be apportioned among the several
counties.

If the Act of the last session is not a law of the legislature but a law made
by the people themselves, the conclusion is obvious that the legislature cannot.
annul it nor make any substantial change in its provisions. If the legislature
can alter the rule of representation it can repeal the law altogether, and thus
defeat a measure which has been willed by a higher power.

A change in the fundamental law, when not made in the form which that law
has prescribed, must always be a work of the utmost delicacy. Under any
other form of government than our own, it could amount to nothing less than a
revolution. The greatest care should, therefore, be taken that nothing be done
‘which can give rise to doubts or difficulties in the choice of delegates or the har-
monious organization and action of the Convention. A controversy about the
number of delegates to which any county is entitled may lead to irregular and
disorderly proceedings at the election, and an imperfect expression of the will
of the electors in the choice of delegates. It may embarrass the inspectors of
666 APPENDIX.

elections and the canvassers of votes It may also tend to disorder in the
Convention, where the question must finally be settled who are and who are not
members of the body. In the strife of parties, if there should be parties in the
Convention and they should be nearly balanced, the body may either be broken
up or the moral force of its acts be greatly impaired. As a question of expedi-
ency, therefore, as well as of power, we think it the safest course to leave the
law as it now is.

If, however, the Assembly should think otherwise, it is then proper that we
should take some notice of the bill which has been referred for our considera-
tion.

The first section of the bill is in the following words: —

“Sec. 1. The true intent and meaning of so much of the seventh section of
an Act, entitled, ‘An Act recommending a Convention of the people of this
State,’ passed May 13, 1845, as relates to the number of delegates to be chosen
to the said Convention in and by the respective cities and counties of this State,
1s, that the number of delegates to be chosen to the said Convention, in and by
the said cities and counties respectively, shall be the same as the number of
members of the Assembly which the said cities and counties will respectively
ve entitled to elect according to the census of the inhabitants of this State taken
in the year 1845.”

We have already expressed the opinion that such is not “the true intent and
meaning” of the law. It is proper to add that, as the section merely professes
to declare what the law now is, without either proposing to alter it or command-
ing any thing in particular to be done or omitted, it cannot change the legal
effect of the existing statute. The legislature has no judicial power. Although
its opinions are entitled to great consideration, they cannot have the force of a
law. It, therefore, it is deemed expedient to legislate on the subject, it is sub-
wnitted that there should be a positive enactment instead of a mere declaration
of opinion.

The second section of the bill goes beyond a mere declaration, and provides
that the number of delegates to be chosen to the Convention “is hereby de-
clared to be and shall be as follows,” [specifying the number to be elected in
each county.] The words “ shall be” give this section the force of a command,
and, if the section should be enacted, it will have the effect of altering the Con-
vention law, if the legislature has any power over the subject.

The two remaining sections of the bill call for no remark.

In this discussion we have assumed, without intending to express any opinion
on the subject, that the Constitution can be amended in a different way from
that which has been prescribed by the people in the instrument itself.

We. cannot close this communication without expressing our regret that
questions of so much delicacy and importance should be presented under cir-
cumstances which have given us but a few hours for conferring together and re-
ducing our opinion to writing. Neither of us had either examined or thought
of the questions until after the reference was made; and it was not until this
day that we were able to meet and consult together on the subject.

Respectfully submitted,
GREENE C. BRONSON,
SAMUEL BEARDSLEY,
Aupany, April 14, 1846. F. G. JEWETT.
APPENDIX. 667

E.
(See §§ 393, 574, ante.)

The weight to be accorded to the opinions of the Massachusetts, New York,
and Rhode Island judges, cited in the text (§§ 573, 574), may be determined
by observing the esteem in which they have been subsequently held by the
same and other courts, and by respectable legal authorities not judicial. Thus,
in Massachusetts, it has been ruled in numerous cases, and is believed to be now
the settled doctrine of its courts, as well in opinions rendered under similar
circumstances as in solemn judgments in litigated cases, that such opinions are
merely advisory and have no binding quality.}

Thus, in a criminal case, where the judges of the Supreme Court were re-
quired to adjudicate upon a point, on which they had previously given an opin-
ion to the Governor, adverting to this opinion, they declared it to be not bind-
ing upon them, and that they had sought to free their minds from all prepos-
sessions resulting from their having given it. ‘* The opinion thus given,’’ they
observed, ‘‘like all others of a similar character, was formed without the aid
of counsel learned in the law, or any statement of the reasons on which the
regularity or validity of the proceedings had been called in question. It is
well understood,’’ they continue, “and has often been declared by this court,
that an opinion formed and expressed under such circumstances cannot be
considered, in any sense, as conclusive or binding on the rights of parties, but
is regarded as being open to reconsideration and revision.”? Green v. The
Commonwealth, 12 Allen R. 155. In another and similar case, they said, by
Wilde, J.: ‘* We do not consider that opinion’? (given to the Governor) ‘as
binding upon us in this action.” Adams v. Bucklin, 7 Pick. R. 127.

In Taylor v. Place, 4 R. I. R. 324, the same question came before the Supreme
Court of Rhode Island, in litigated case, in respect to which the judges had
formerly given an opinion to the Governor, under a provision of the Constitu-
tion. The court, by Ames, C.J., say: ‘‘ This is the first time, since the
adoption of the Constitution, that this question has been brought judicially to
the attention of the court. The advice or opinion given by the judges of this
court, when requested, to the Governor or to either House of the Assembly,
under the third section of the tenth article of the Constitution, is not a decision
of this court ; and given, as it must be, without the aid which the court derives

1 Adams v. Bucklin, 7 Pick. R. 125, note at p. 130; Opinions of Supreme Court Judges,
5 Mete. R. 597; Opinions of Supreme Court Judges, 9 Cush. R. 604; Opinions of the Su-
preme Court Judges, 122 Mass. R. 603; Opinions of Supreme Court Judges, 126 do. 547,
557; Green v. The Commonwealth, 12 Allen R. 155, 163. See also cases in which by cus-
tom. or in pursuance of statutes, opinions have been given under similar circumstances, and
their character, as being merely advisory and not authoritative, has been affirmed. Certifi-
cate of the Judges, 2 Edw. Ch. R. (appendix), 371 and 372 and notes; Best on Evidence, sec.
474; McNaughten’s case, 10 Cl. & Fin. R. 200; Opinions of the Justices of the Superior
Court, 25 N. H. R. 537; Opinions of the Supreme Court Judges, reported in the following
volumes, 37 Mo. R. 135, 51 do. 586, 55 do. 497, 58 do. 369; 64 N.C. R. (appendix), 785-
796; Taylor v. Place, 4R.I. R. Memorandum on the legal effect of opinions given by
Judyes to the Executive and the Legislature under certain American Constitutions. By J.
B. Thayer, Professor of Law at the Law School of Harvard University. Alfred Mudge &

Co., Boston. 1885.
668 APPENDIX.

in adversary cases from able and experienced counsel, though it may afford
much light from the reasonings or research displayed in it, can have no weight
as a precedent.” See also Sparks’s “ Life of Washington, Vol. X., p. 359,
Marshall’s “ Life of Washington,’’ p. 441, for a history of the unsuccessful at-
tempt of Washington to draw from the judges of the United States Supreme
Court their opinions as to various questions arising under our treaties with
France.

So little were the best legal minds in Massachusetts satisfied with the opera-
tion of the constitutional provision in question, that efforts were repeatedly
made by them to secure its repeal. ‘Thus, in the Convention of 1820, the
judiciary committee of that body, through Mr. Justice Story, its chairman,
recommended the annulment of the provision, and, in introducing a proposal
to that effect to the Convention, thus explained the reasons which induced the
committee to propose it. He said : —

“Tf they’’ (the judges) “were liable to be called on, there was extreme
danger that they would be required to give opinions in cases which should be
exclusively of a political character. There were two classes of cases in which
the legislature may demand the opinion of the judges, — those of a public and
those of a private nature. A question may be proposed in which the whole
political rights of the State are involved. It is impossible that there should
be an argument, and the individual most interested will be deprived of a right
which is secured to every person by the Constitution, — that of being heard.
Questions of fact and of law may be decided without argument and without
a jury. There was no necessity for such a provision. In eases where it is
necessary to attain a judicial decision, the legislature may by resolve order a
suit to be brought to try any question of law or fact, and have it regularly
argued. Why, then, should the great principle be violated by taking away the
right of trial by jury? The power of calling on the judges for their opinion
may be resorted to, in times of political excitement, with the very view to
make them odious and to effect their removal from office. A better oppor-
tunity could not be afforded to an artful demagogue for effecting the purpose
of their removal than by drawing from them opinions opposed to the strong
popular sentiment, and subjecting them to popular odium. It ought not to be
in the power of the other departments to involve the judiciary in this manner.
As the Constitution now stands, the judges are bound to give their opinions, if
insisted upon, even in a case where private rights are involved, and without the
advantage of an argument. However great the talents of the judges, however
extensive their learning, they are never safe in deciding without an argument.
Some judges of the greatest learning make it a rule that no opinion which
they have given without argument shall be binding upon themselves or on
others. The greatest judges have sometimes changed their opinions on argu-
ment. They ought always to have the aid of the talents of the bar before
pronouncing their opinion. The right of being heard, and the practice of
arguing all questions, has more than anything else preserved the uniformity
of the common law.’’ Deb. Mass. Conv. 1820, pp. 489, 490. Accordingly, the
Convention proposed the annulment of the article which permitted such inter-
rogation of the judges, and in an address to the people thus stated the reasons
for so doing : —
APPENDIX. 669

“We think this provision ought not to be a part of the Constitution, because,
— First. Each department ought to act on its own responsibility. Second.
Judges may be called on to give opinions on subjects which may afterwards
be drawn into judicial examination before them by contending parties. Third.
No opinion ought to be formed and expressed by any judicial officer affecting
the interest of any citizen but upon full hearing according to law. Fourth.
If the question proposed should be of a public nature it will likely partake of
a political character, and it highly concerns the people that judicial officers
should not be involved in political or party discussions. We therefore recom-
mend that this second article should be annulled.’’ Ibid. p. 629.

Upon submission to the people the article of amendment embodying this
recommendation was lost, by a vote of 12,471 yeas to 14,518 nays. Ibid. p.
633.

In like manner the Convention of 1853’ proposed the annulment of the pro-
vision, but the entire Constitution framed by that body was rejected by the
people. In Massachusetts, therefore, a proposition which received the approval
of the leading lawyers and judges of the Convention, of all parties, and which
involved simply a legal or constitutional question, was twice voted down by a
majority consisting largely of farmers, mechanics, and tradesmen; though it
is fair to say that, upon the last occasion, their hostility to the amendments
proposed may have been directed partly or wholly to other provisions.

For a statement of the classes of questions, proper and improper to be sub-
mitted under provisions of the kind we are considering, see 10 Cl. & Fin. Ch.
R. 200; 37 Mo. R. 135; 51 Mo. R. 586; 55 Mo. R.497; 58 Mo. R. 469; 64 N.
C. R. 785-796; 122 Mass. R. 600; 126 Mass. R. 557, 562; 5 Mete. R. 596;
9 Cush. R. 604.

F.

At the extra session of the New York legislature, in November, 1820, a Lill
passed both houses, by the provisions of which a Convention was to be called,
without referring the question to the people in the first instance. Delegates
were to be chosen in February, 1821, and the Convention was to assemble in
June following. This bill was sent to the Council of Revision, who returned it
with the following objections, drawn up by Chancellor Kent, and concurred in
by his Excellency Governor Clinton, and Chief Justice Spencer, and dissented
from by Justices Yates and Woodworth, — Justices Van Ness and Platt being
absent.

In AssemBLy, November 20, 1820.

Objections of the Council to the bill calling a Convention. In Council of Re-
vision, November 20, 1820, —

Resolved, That it appears improper to the Council that the bill, entitled
“An Act recommending a Convention of the people of this State,” should be-
come a law of this State.

1. Because the bill recommends to the citizens of this State to choose by bal-
670 APPENDIX.
lot, on the second Tuesday of February next, delegates to meet in Convention,
for the purpose of making such alterations in the Constitution of this State as
they may deem proper, without having first taken the sense of the people
whether such a Convention, for such a general and unlimited revisal and altera-
tion of the Constitution, be, in their judgment, necessary and expedient.

There can be no doubt of the great and fundamental truth, that all free gov-
ernments are founded on the authority of the people; and that they have at all
times an indefeasible right to alter or reform the same, as to their wisdom shall
seem meet. The Constitution is the will of the people, expressed in their origi-
nal character and intended for the permanent protection and happiness of them
and their posterity ; and it is perfectly consonant to the republican theory and
to the declared sense and practice of this country that it cannot be altered or
changed, in any degree, without the expression of the same original will. It is
worthy, therefore, of great consideration, and may well be doubted, whether it
belongs to the ordinary legislature, chosen only to make laws in pursuance of
the provisions of the existing Constitution, to call a Convention in the first in-
stance, to revise, alter, and perhaps remodel the whole fabric of the govern-
ment, and before they have received a legitimate and full expression of the will
of the people that such changes should be made.

The difficulty of acceding to such a measure of reform, without the previous
approbation of the constituents of the government, presses with peculiar force
and with painful anxiety upon the Council of Revision, which was instituted for
the express purpose of guarding the Constitution against the passage of laws “ in-
consistent with its spirit.”

The Constitution of this State has been in operation upwards of forty years,
and we have but one precedent on this subject, and that is the case of the Con-
vention of 1801. But it is to be observed that the Convention in that year
was called for two specific objects only, and with no other power or authority
whatsoever. One of these objects was merely to determine the true construc-
tion of one of its articles, and was not intended to alter or amend it; and the
other was to reduce and limit the number of the Senators and Members of As-
sembly. The last was the single alteration proposed ; and perhaps, even with
respect to that point, it would have been more advisable that the previous sense
of the people should have been taken. But there is no analogy between this
single and cautious case and the measure recommended by the present bill,
which is not confined to any specific object of alteration or revisal, but submits
the whole constitutional charter with all its powers and provisions, however ven-
erable they may have become by time and valuable by experience, to unlimited
revisal. The Council have no evidence before them, nor does any legitimate
and authentic evidence exist, that the people of this State think it either wise
or expedient that the entire Constitution should be revised and probed, and per-
haps disturbed to its foundation.

The Council, therefore, think it the most wise and safe course, and most ac-
cordant with the performance of the great trust committed to the representative
powers under the Constitution, that the question of a general revision of it
should be submitted to the people in the first instance, to determine whether a
Convention ought to be convened.

The declared sense of the American people throughout the United States on
AFPENDIX. 671

this very point cannot but be received with great respect and reverence ; and
it appears to be the almost universal will expressed in their constitutional char
ters that Conventions to alter the Constitution shall not be called at the instance
of the legislature without the previous sanction of the people by whom those
Constitutions were ordained.

The Constitution of Massachusetts was established in 1780, and contains the
earliest provision on this subject. It provided that, in the year 1795, the sense
of the people should be taken on the necessity or expediency of revising the
Constitution ; and that if two-thirds of the votes of the people were in favor of
such revision and amendment, the legislature should provide for calling a Con-
vention. The Convention now sitting in that State was called in consequence
of a previous submission of such a question to the people. The Constitution of
South Carolina was ordained in 1790; and in that it is declared that no Con-
vention shall be called unless by the concurrence of two-thirds of both branches
of the legislature. And the Constitution of Georgia, established in 1798, con-
tains the same provision ; thus showing, that though the people be not previously
consulted on the question, yet a more than ordinary caution and check upon
such a measure was indispensable. The Constitution of Delaware, of 1792, de-
clares very emphatically that no Convention shall be called but by the authority
of the people, and that their sense shall be taken hy a vote for or against a Con-
vention; and that if a majority of all the citizens shall have voted for a Con-
vention, the legislature shall make provision for calling one. The same consti-
tutional provision, that no Convention shall be called to alter or amend the
Constitution, until the sense of the people by vote shall have been previously
taken, whether, in their opinion, there was a necessity or expediency for a re-
vision of the Constitution, has been successfully adopted, by the Constitution of
New Hampshire, in 1792; by the Constitution of Tennessee, in 1796; by the
Constitution of Kentucky, in 1799; by the Constitution of Louisiana, in 1812;
by the Constitution of Indiana, in 1816; by the Constitution of Mississippi, in
1817; and by the Constitution of Illinois, in 1818.

It would, as the Council apprehend, be impossible to produce higher and
more respectable authority in favor of such a provision. and of its value and
safety.

2, Because the bill contemplates an amended Constitution, to be submitted to
the people to be adopted or rejected, in toto, without prescribing any mode by
which a discrimination may be made between such provisions as shall be deemed
salutary and such as shall be disapproved by the judgments of the people. If
the people are competent to pass upon the entire amendments, of which there
can be no doubt, they are equally competent to adopt such of them as they ap-
prove, and to reject such as they disapprove; and this undoubted right of the
people is the more important if the Convention is to be called in the first in-
stance without a previous consultation of the pure and original source of all legi-
timate authority. And it is worthy of consideration, and gives additional force
to the expediency and fitness of a previous reference to the people, that time
will be thereby given for more mature deliberation upon questions arising upon
the Constitution, which are always momentous in their nature and calculated to
affect not the present generation alone but their distant posterity, and when the
legislature may probably have it in their power to avail themselves of a more
672 APPENDIX.

just and accurate apportionment of the representation in the Convention among
the several Counties in this State.
Ordered, That the Secretary deliver the bill, together with a copy of the ob-
jections aforesaid to the Honorable Assembly.
J. V. N. YATES,
Secretary.
INDEX.

 

A.

Acts, Convention or enabling, Conventions
called in pursuance of, § 187, and note 1;
can legislatures bind Conventions by their?
§§ 876-418; calling Conventions, analysis
and essential character of, §§ 404-408.

Adams, John, connection of, with the for-
mation of the first American Constitutions,
§§ 128, 129, 489; appointed on the com-
mittee to draft the Massachusetts Constitu-
tion of 1780, § 157.

Adams, John Quincy, opinion of, bearing
Hy the question of American nationality,

48.

Adams, Samuel, appointed on the commit-
tee to draft the Massachusetts Constitution
of 1780, § 157.

Alabama, Convention of, of 1819, §§ 186,
1873 do. of 1875, § 218; do.of 1861, §§ 247-
250; do. of 1865, §§ 250-258; do. of 1867,
258 a-258 d.

Allegiance defined, and to whom owing in
the United States, §§ 52, 53; qualified, as
due to the states, absurd, § 53; “ Alle-
giance Cases,’’ so called, in South Caro-
lina, § 58, note 1.

Amendments to Constitutions, necessity of
providing for, §§ 525-529; various modes
of effecting, §§ 526, 530,531; excellences
and defects of the several modes, §§ 532-
534, 538-540; precedents of the employ-
ment of these modes, §§ 585-537 a, 541-
546; novel device for making, by means
of Constitutional commissions, §§ 546 a-
546 d; where a legislature participates in
effecting, nature of its act, §§ 547-550; ex-
tent of the power of a legislature to rec-
ommend, §§ 551-555; where a legislature
recommends, should they be submitted to
the executive for approval? §§ 556-562;
where a State legislature has once rejected
amendments proposed by Congress to the
Federal Constitution, can it or its successor
reconsider them ? § 563; where a Constitu-
tion contains a provision for making in
one of the modes, can the other be em-
ployed ? §§ 563-574 h; where it contains
no provision for making, can either mode
be pursued ? §§ 563-574 4; to Federal Con-
stitution, when proposed by Congress to
the States, and passed upon by the State
legislatures, can the latter or their succes-
sors reverse their action ? §§ 576-584; can

 

Congress recall amendments thus pro-
posed ? §§ 585-586; when submitted to
the States by Congress, how loug are they
open to adoption by them? §§ 585-586.

Appropriations, power of Conventions to
make, of moneys from the public treasury,
§§ 435-441 b.

Arkansas, Convention of, of 1836, §§ 188,
189, 210; do. of 1874, § 219; do. of 1861,
§§ 247-250; do. of 1864, §§ 250-258; do.
of 1868, §§ 258 a-258 d; cases in Supreme
Court of, respecting the extent of the
power of a legislature to propose amend-
ments to a Constitution, sf 551-555.

Arrest, power of Conventions to make, of
a own members or of strangers, §§ 460-

70.

Articles of Confederation, history and char-
acter of, §§ 159-162.

Assembly, the General, or legislative Con-
vention, described, § 6; see also legisla-
ture.

Attributes of sovereignty specified, § 22.

Austin, John, marks of sovereignty laid
down by, § 19; opinion of, as to the loca-
tion of sovereignty in the United States, §
60; do. as to an ulterior legislature in New
York, superior to the ordinary legislature,
§ 513, note 1.

Anloeracies, Constitutions of, described,

70.

B.

Banks, Nathaniel P., General, proclamation
of, for the reconstruction of Louisiana,
§ 256.

Belknap, Dr., historian of New Hampshire,
uoted, as to the first Convention of that
tate, § 131.

Bills of Rights, description, history, and ob-
jects of, §§ 96-99; why no, in the Federal
Constitution, § 98; clause in American,
generally, respecting altering or abolish-
ing government, commented on, §§ 240-

246.

Black, Judge Jeremiah S., speech of, on
appropriating money, § 400, note 1; on
powers of Conventions, § 409 e.

Bowdoin, James, appointed on the commit-
tee to frame Massachusetts Constitution of
1780, § 157.

Bramlette, Governor of Kentucky, opinion
of, respecting the power of a State legisla-
674

ture to reconsider amendments to the Fed-
eral Constitution proposed by Congress
and once rejected, CyaL.

Brownson, Orestes A., Dr., opinion of, as
to the mode in which sovereignty inheres
in the people of the United Staves, § 61;
distinction drawn by, between Constitu-
tions as facts and Constitutions as instru-
ments of evidence, § 63, note 1.

Buchanan, James, President, opinion of, re-
specting the Topeka and Lecompton Con-
ventions, § 214,

Burke, Edmund, moral competence of gov-
ernments defined by, § 305; sarcasm of,
respecting the French Bill of Rights of
17938, § 317.

Butler, Benj. F., quoted, as to conventional
sovereignty, §§ 811, 843; speech of, on the
right of Conventions to issue precepts to
the electors, § 343.

Cc.

Calhoun, John C., opinion of, respecting
the bearing of the mode of ratifying the
Federal Constitution, on the question of
American nationality, § 87; speech of, on
the ae Convention of December,
1836, § 204.

California, Convention of, of 1849, §§ 188,
189, 210; do. of 1878, § 218.

Censors, Council of, a device for effecting
the amendment of Constitutions more in-
genious than useful, § 544.

Citizens, can Conventions limit eligibility
to office to naturalized ? §§ 355~361; clause
of the Federal Constitution as to rights of,
considered, §§ 358-861.

Citizenship, rights belonging to mere, in
the several States, §§ 369-361.

Colorado, Convention of, of 1864, §§ 187,
210; do. of 1865 and 1875, §§ 188, 210.
Commissions, Constitutional, a novel de-
vice for effecting the amendment of Con-

stitutions, §§ 546 a-546 d.

Committee of the whole, use of, in Con-
ventions, §§ 290, 291: of revision, duty
and importance of, § 303; of the Tilinois
Convention of 1862, on the powers of Con-
ventions, § 308

Committees, use of, in Conventions, §§ 285-
294; members of, in various Conventions,
and reasons for and against employment
of, §§ 287-295; standing, of Conventions,
§ 295; number and duties of, how deter-
mined; precedents stated, § 296; reports
of, §§ 298-301; Conventions, but mere,
§§ 367, 453, 512.

Compact, are Constitutions, as facts, founded
on? §§ 65 67; are Constitutions, as instru-
ments of evidence, founded on 2 § 68.

Congress, the Continental, advice of, to
Massachusetts, New Hampshire, Virginia,
and South Carolina, in 1775, relative to
the establishment therein of governments
independent of the crown, § 127; resolution
of, of May 10, 1776, respecting the forma-
tion of such governments in the colonies

 

INDEX.

enerallv, §§ 128, 129; as a Convention,
Paining the Articles of Confederation, his-
tory and character of, §§ 159-161; a Pro-
vincial, the first independent government
of South Carolina, § 181; do. of New Jer-
sey, § 139; do. of Maryland, § 145; do. of
Georgia, § 147; do. of New York, § 150;
power of Conventions, as legislatures, to
district their States for members of, §§ 442
~446; when amendments to the Federal
Constitution have been proposed by, to
the States, and been passed upon by the
State legislatures, can they or their suc-
cessors reverse their action? §§ 576-584;
can such amendments be recalled by? §§
586-586.

Congresses, Provincial, revolution of 1776
consummated by, § 10; history and pow-
ers of, 126. :

Connecticut, Convention of, of 1818, § 219,
and note 1.

Constitution, theory of the, fundamental
to this inquiry, § 17; the term detined,
§ 63; of the United States, bearing of the
mode of ratification of, on the question of
American nationality, §§ 37, 38; character
of, as regarded by the Conventions called
to ratify it, § 42; opinion of Patrick Henry
as to its character, § 42; opinion of Mr.
Taylor of North Carolina, § 42; forms part
of the Constitutions of the several States,
§ 92; is supreme, §§ 98, 94; should be kept
independent of those of the States, § 95;
opinion of Mr. Webster on the point, § 95;
distinction between a, and an ordinary
municipal law, §§ 85-87; the term, how
used in this treatise, § 103; may become
valid, though the Convention which framed
itis illegitimate, § 124; the first New Hamp-
shire, formation of, § 181; the New Hamp-
shire, of 1783, formation of, § 182; the first
South Carolina, § 183; the South Carolina,
of 1778, formation and character of, § 136;
the first American, by whom framed, § 138,
note 1; the Virginia, of 1776, validity of,
considered, § 138, note 2; the New York,
of 1777, character of, § 152; the Vermont,
of 1777, character of, § 154; attempts of
the General Assembly to give validity to,
§ 154; the, framed by the Federal Conven-
tion of 1787, character of, § 166; the Ken-
tucky, of 1792, formation of, §§ 178, 174;
the Maine, of 1819, formation of, §§ 175-
177; the West Virginia, of 1863, formation
of, §§ 181, 182; the Tennessee, of 1796, for-
mation of, §§ 190-197; signing of a, b
members of a Convention, ( 804; Federal,
power of Conventions, as legislatures, to
ratify proposed amendments to, § 447;
Trial of the, bv Fisher, quoted as to the
inadequacy of the provision of the Federal
Constitution for its own amendment, ‘ 543,
note; extent to which a new repeals an
old, in the absence of repealing clauses,
§ 5742; question whether principles as to
amending a State apply also to the Fed-
eral, § 575; when an amendment to the
Federal, ial eet by Congress, has been
passed upon by a State, can its action be
INDEX.

reconsidered by it and reversed? $§ 576-
584; when Congress has submitted amend-
ments to, to the States, can it recall them ?
§ 585; how long are amendments to, sub-
mitted to the States, open to adoption or
rejection? §§ 585, 586; Federal, can a
Convention prescribe what legislature shall
act upon an amendment to, proposed by
Congress? § 449 a; when a State legisla-
ture has ea upon an amendment pro-
posed to, by Congress, can it or its succes-
sor reverse its vote? §§ 576-584; can Con-
ess recall such a proposed amendment ?
s 585-586.
Constitutions, enactment of in England
and France, § 1; as organic growths, dis-
tinguished from Constitutions as instru-
ments of evidence, § 63; ‘as they ought
to be,” defined and contrasted with Con-
stitutions as organic growths, § 64; nature
and varieties of as organic growths, §§ 65-
67; are they founded on compact ? §§ 65-
67; are, as instruments of evidence, founded
on compact ? § 68; where discrepancies ex-
ist between, as organic growths, and as in-
struments of evidence, which have the
superior validity ? § 69; varieties of, as in-
struments of evidence, § 71; cumulative,
defined, § 72; enacted, defined, § 73; writ-
ten and unwritten, defined and contrasted,
§§ 74-76; advantages of written, § 77; dis-
advantages of, § 78; opinion of De Mais-
tre, § 78, note 1; advantages of unwritten,
§ 79; disadvantages of, § 80; balance of
excellences and defects between the two,
*§ 81; requisites for safe operation of writ-
ten, §§ 82, 83; all, save two, in the United
States, have been written, § 84; varieties,
mutual relations, and internal structure of
the American, §§ 84, 88-103; two varieties
of —those framed for the United States
and those framed for the States, § 88; dis-
tinctions between the two, §§ 88-95; rules
of construction applicable to them respec-
tively, § 91; the Federal Constitution a
part of the several State, § 92; of the sev-
eral States, part of the Federal Constitu-
tion, § 92; of the States and of the Union
should be kept independent; opinion of
Mr. Webster, § 95; internal structure of
American, §§ 96-103; generally contain, 1,
Bill of Rights, §§ 96-99; 2, Frame of Gov-
ernment, & 100, 101; 3, Schedule, §§ 102,
103; resolution of the Continental Con-
gress respecting the formation of the earli-
est, in the colonies, §§ 128, 129; first two
of South Carolina, judicial decision as to
validity of, § 136, note 2; can Conventions
be bound by the Acts calling them to make
submission of, to the people? §§ 410-414;
submission of, to the people, duty of Con-
ventions in general to make, § 479; duty,
where neither the Convention Act nor the
Constitution requires it, § 481; duty, where
submission is expressly required by law,
§§ 482, 483; duty, where submission is ex-
pressly dispensed with. §§ 484-486 ; prece-
dents relating to the submission of, §§ 487-
495; by whom submission of, should be

a

 

675

made, §§ 497-499; to whom submission of,
should be made, §§ 500-509 0; nature of
the act performed by the people, where
submission of, is made, §§ 510-513 ; man-
ner in which submission of, should be
made, §§ 514-520; promulgation of, §§
521-524 ; amendments to, general doc-
trine as to stated, §§ 525-529.
Convention, THE ConsTITUTIONAL, em-
ployed in America to frame the funda-
mental law, § 1; inportance of, in gen-
eral, § 2; relation of, to secession, § 3;
THE Sponrankous, or PuBLIC MEETING,
§5; THE LEGISLATIVE or GENEKAL As-
SEMBLY, § 6; THE REVOLUTIONARY, § 7;
examples of the Revolutionary, in Eng-
land, § 8; do. in America, § 9; Revolu-
tionary, of Massachusetts, of 1869, § 9;
French National, § 10; THe Constitu-
TIONAL, defined and contrasted with the
foregoing, § 11; exercising usurped pow-
ers, how to be classed, § 12; the Revolu-
tionary, exercising the powers of a Con-
stitutional, how to be classed, § 12; the
Constitutional, summary of history of,
§§ 13, 14; an adaptation to constitutional
uses, of the Revolutionary, § 15; miscon-
ceptions prevalent respecting the nature
of, § 15; constitutes one of the five agen-
cies through which sovereignty indirectl
manifests itself, § 24; relative rank of,
§ 24; Federal, of 1787, action of, respect-
ing the ratification of the Federal Consti-
tution, §§ 36, 37, 166; proper modes of
initiating or ne a, §§ 104, 114-116;
by whom should a, be called ? §§ 118-121;
in what manner should a, be called ? §§ 122,
123; opinion of the New York Council of
Revision on the proper mode of calling a,
§ 122; although a, be illegitimate, the Con-
stitution framed by, may become valid,
§ 124; the first independent government
of Virginia, a Provincial, § 138; do. of
Pennsylvania, § 143; do. of North Carolina,
§ 145; do. of Massachusetts, § 156: history
and character of the New Hampshire, of
1775, § 181; do. of 1778, § 132; do. of 1781,
§ 132; the South Carolina, of 1776, §§ 133,
134; do. of 1778, §§ 135-187; the Virginia,
of 1776, § 138; the New Jersey, of 1776,
§§ 139, 140; the Delaware, of 1776, §§ 141,
142; the Pennsylvania, of 1776, §§ 143,
144; the Maryland, of 1776, § 145; the
North Carolina, of 1776, § 146; the Geor-
gia, of 1776, § 147; do. of 1788, §§ 148,
149, 167; do. of January, 1789, §§ 147, 167,
217, 219; do. of May, 1789, §§ 148, 149, 167,
217, 219: the New York, of 1776, §§ 150-
152; the Vermont, of 1777, §§ 153, 154; do.
of 1785 and of 1786, § 155; the Massachu-
setts, of 1778, § 156; do. of 1779, §§ 157,
158; the Continental Congress acting as a,
§§ 160, 161; the Annapolis, § 163; the
Federal, of 1787, §§ 163, 166; the Ken-
tucky, of 1792, §§ 173, 174; the Maine, of
1819, §§ 175-177; the Virginia (Recon-
struction). of 1861, § 178; the Ohio, of
1802, § 187; the Louisiana, of 1811, § 187;
the Indiana, of 1816, § 187; the Missis-
676

sippi, of 1817, § 187; the Illinois, of 1818,
§ 187; the Alabama, of, 1819, § 187; the
the Missouri, of 1820, § 187; the Texas,
of 1845, § 187; the Wisconsin, of 1846,
§ 187; the Minnesota, of 1857, § 187; the
Kansas, of 1859, § 187; the Nevada, of
1864, .§ 187; the Nebraska, of 1864, § 187;
the Colorado, of 1864, § 187; the lowa, of
1844, §§ 188, 197, 210; do. of 1846, §§ 188,
197, 210; the Wisconsin, of 1847, §§ 188,
197, 210; the California, of 1849, §§ 188,
197, 210; the Kansas, of 1855, §§ 183, 189,
211, 212; do. of 1857, §§ 188, 197, 213-216;
do. of 1858, §§ 188, 211-216; do. of, 1859,
S$ 211-216; the Oregon, of 1857, §§ 188,
189, 210; the Nevada, of 1863, §§ 188,
189, 210; the Tennessee, of 1796, §§ 190-
197; the Michigan, of 1835, §§ 188-198,
201, 208; do. of September, 1836, §§ 188-
199, 202; do. of December, 1836, §§ 188,
189, 199-201, 203-209; the Arkansas, of
1836, §§ 188, 189, 210; the Florida, of 1838,
S$ 188, 189, 210; the Alabama, of 1875,
§§ 217, 218; the California, of 1878, §§ 217
-218; the Delaware, of 1831 and 1852, §§
217, 218; the Florida, of 1885, §§ 217, 218;
the Georgia, of January, 1789, May, 1789,
1795, 1798, and 1877; §§ 217, 218: the
Illinois, of 1848, 1862, and 1869, §§ 217,
218; the Iowa, of 1857, §§ 217, 218; the
Kentucky, of 1799 and 1849, §§ 217-218;
the Louisiana, of 1844, §§ 217, 218; the
Maryland, of 1864 and 1867, §§ 217, 218;
the Massachusetts, of 1821, §§ 217, 218;
the Michigan, of 1850 and 1867, §§ 217,
218; the Mississippi, of 1832, §§ 217, 218;
the Missouri, of 1875, §§ 217, 218; the Ne-
braska, of 1875, §§ 217, 218; the New
Hampshire, of 1791, 1850, and 1876, §§ 217,
218; the New York, of 1867, §§ 217, 218;
the North Carolina, of 1875, §§ 217, 218;
the Ohio, of 1850 and 1873, §§ 217. 218;
the Tennessee, of 1834, §§ 217, 218; the
Arkansas, of 1874, §§ 217, 219; the Con-
necticut, of 1818, §§ 217, 219; the Georgia,
of 1833 and 1839, §§ 217, 219; the Indi-
ana, of 1850, §§ 217, 219; the Louisiana,
of 1852 and 1879, §§ 217, 219; the Massa-
chusetts, of 1853, §§ 217, 219; the Mis-
souri, of 1845, 1861, and 1865, §§ 217, 219;
the New Hampshire, of 1876, §§ 217, 219;
the New Jersey, of 1844, §§ 217, 219; the
York of 1801, 1821, and 1846, §§ 217, 219;
the North Carolina, of 1835, §§ 217, 219;
the Pennsylvania, of 1837 and 1872, §§ 217,
219; the Rhode Island, of 1824, 1834, 1841,
and 1842, §§ 217, 219; the South Carolina,
of 1790, §§ 217, 219; the Tennessee, of
1870, §§ 217, 219; the Texas, of 1876,

§ 217, 219; the Virginia, of 1829 and
1850, §§ 217, 219; the Vermont, of 1785,
&c., § 220; the Pennsylvania, of 1789,
§§ 221-225; the Delaware, of 1792, §§ 221-
225; the Maryland, of 1850, §§ 221-225;
the Rhode Island, of 1841 (‘ People’s
Convention ’’), §§ 226-246 ; the Montgom-
ery, to frame a Constitution for the South-
ern Confederacy, § 259; by whom a,
should be elected, §§ 260, 261; prece-

 

INDEX.

dents and exceptional cases considered,

§§ 262-266; delegates elected to the first

series of Reconstruction Conventions,

268 ; to the New York Convention of 1821,

§ 264; to the Rhode Island Conventions

of 1841 and 1842, §§ 265, 266; to the

New Jersey Convention of 1844, §§ 265 a,

266; to the Tennessee Convention of 1870,

§ 265 a; to the second series of Reconstruc-

tion Conventions of 1867 and 1868, § 266;

to the Georgia Convention of 1788, §§ 264,

266; to the Maryland Convention of 1867,

§§ 265 a, 266; the Minnesota, of 1857, di-

vided into two Conventions, § 270; the

New Jersey, of 1844, delegates elected to,

from all parties, § 271; questions as to the

powers of a, in relation to the sovereign,
or to sovereign rights, §§ 315-318: in re-

lation to the State as a whole, §§ 320-330;

in relation to the electors, §§ 331-361; in

relation to the several departments of the
government of the State, §§ 366-449; can

a, appoint officers to fill vacancies in the

government ? § 325; can a, eject from office

persons appointed thereto by the govern-
ment, §§ 326-330; can a, direct govern-
ment officers in the discharge of their
duties? §§ 325, 326; Missouri, of 1865, or-
dinance of, to vacate offices under the

State government, §§ 327-380; is the Act

calling a, a government measure? § 398;

opinion of the Supreme Court of New

York as to the power of a legislature to

modify the Act calling a, Appendix D,

p. 663.

Conventions, Varieties of, in the United
States, §§ 4-16; Spontaneous, described,
§§ 4, 5; Legislative, or General Assemblies,
§ 6; Revolutionary, §§ 7-10; Constitu-
tional, §§ 11-16; Provincial or Congresses,
§§ 10, 126; to ratify the Federal Constitu-
tion, opinions expressed in, as to its char-
acter, § 42; of the Revolutionary period,
from 1776 to 1789, §§ 126-169; called to
ratify Federal or State Constitutions, § 167;
of the post-revolutionary period, from 1789
to the present, §§ 170-259; called to frame
Constitutions for States to be formed within
the jurisdiction of States members of the
Union, §§ 171-185; called to frame Con-
stitutions for States to be formed out of
Federal Territory, under enabling Acts of
Congress, § 186, 187; without enabling
Acts, §§ 188-216 ; called to revise the Con-
stitutions of States members of the Union,
§§ 217-258 d; called by legislative author-
ity in pursuance of constitutional provi-
sions, § 218; called by legislative authority
without constitutional provisions, § 219;
called by Councils of Censors, § 220; called
by legislative authority, in disregard of
constitutional provisions, §§ 221-225; called
in defiance of the existing government,
§§ 226-246 ; Secession, §§ 247-250; Recon-
struction, first series of, §§ 250, 258; do.,
second series of, §§ 258 a-258 d; by whom,
should be and have been elected, §§ 260-
266; who may be members of, §§ 267-269;
constitution of, in one chamber or in two,
INDEX.

§§ 270, 271; internal organization of,
272-284; officers of, § 274; should mem-
bers of be sworn? form of oath, §§ 277-
283; rules for the government of, § 284:
mode of proceeding of, $§ 285-304: em-
ployment of committees in, §§ 285-294;
standing committees of, § 295; powers of,
* 305-478; two theories as to powers of,
§ 307-310; theory of the sovereignty of,
a novelty, §§ 311, 312; question of the
sovereignty of, considered, §§ 315-319;
powers of, with reference to the govern-
ment of the state, as a whole, §§ 320-330;
can they fill vacancies in the various gov-
ernmental departments ? §§ 325, 327-330;
can they eject from oftice appointees of the
government? §§ 325-330; can they direct
governmental officers in the discharge of
their duties? §§ 325, 326; powers of, with
teference to the electors, RY 331-364; can
they disfranchise electors? §§ 335-337;
can they fill their own vacancies? § 338;
can they authorize the colleagues of de-
ceased or resigning members to name their
successors ? § 339; can they issue precepts
to the electors directing them to filk vacan-
cies? §§ 340-347; can the electors hold
elections to fill vacancies in, at such time
or manner as they may think fit? §§ 348,
349; can they receive as delegates, per-
sons elected at a time or in a manner not
provided by law? § 350; can they limit
the discretion of the electors, or of the
sovereign, in the discharge of their duties ?
§§ 351-362; can the electors instruct their
delegates to? §§ 362-364; relations of, to
the executive and judiciary, § 366; rela-
tions of, to the legislature, and powers
therefrom resulting, §§ 366-449; are but
mere committees, § 367; structure and
functions of, contrasted with those of
legislatures, §§ 867-375; power of, to an-
nul perfect Hants, § 370, note 1; can legis-
latures bind? §§ 376-418; conceding the
power to bind, in what particulars may
they do so? §§ 379, 380; precedents stated
and considered, § 381; can they impose
limitations as to the recommendations
conventions shall or shall not make? pre-
cedents stated, §§ 381 a, 382, 382 c; cases
in which legislatures have given positive
directions to frame certain specific amend-
ments, §§ 382 a, 382; cases stated in
which legislatures have prohibited, from
recommending certain amendments, or to
do certain acts, §§ 382 b, 382 c; cases in
which power to bind, has been discussed
in legislatures or conventions, §§ 383-387 ;
question of power of legislatures to bind,
_ passed upon by Supreme Court of Penn-
sylvania, §§ 409 a—409 e ; can legislatures
bind, to submit the fruit of their labors to
the people ? fs 410-418; do Conventions
possess legislative powers? §§ 419-441;
power of, to repeal ordinary laws, §§ 430-
434; power of, to appropriate money,
§§ 435-441 5; power of, to act as a legis-
lature in matters required by the Federal
Constitution to be transacted by the legis-

 

617

latures of the States, §§ 442-447; as, to
prescribe the times, places, and manner of
electing senators and representatives in
Congress, §§ 442-446; or to ratify pro-
posed amendments to the Federal Consti-
tution, § 447; power of, to fetter a discre-
tion confided by the Federal Constitution
to a State legislature, §§ 448, 449; power
of, to prescribe what legislature shall pass
upon an amendment to the Federal Con-
stitution, proposed by Congress, § 449 a;
or require state officers to take an oath to
support the Federal Constitution? § 449,
note; powers of, with reference to their
internal relations, express and implied,
§§ 450-470 a; powers of, with reference to
their organization, to the maintenance of
order, and to the conduct of their business,
§§ 454-458; power of, to arrest. or punish
their own members or strangers, §§ 459—
470 a; privileges of members of, §§ 471,
472 a ; power of, to prolong or perpetuate
their existence, §§ E13-478; duty of, to
submit their work to the people, in gen-
eral, § 479; duty of, where neither the
Convention Act nor the Constitution re-
quires submission, §§ 480, 481; duty” of,
where submission is expressly required by
law, §§ 482, 483; duty of, where submis-
sion is by law expressly dispensed with,
§§ 484-486 ; cases in which submission
has been made by, stated, and observa-
tions upon them, §§ 487-495, and notes;
list of all that have been held in the United
States, Appendix B, p. 643.

CoroUaries, practical, relating to the exer-
cise of sovereignty, § 25.

Council of Censors, a device for effecting
the amendment of Constitutions more in-
genious than useful, § 544.

Council of Revision, New York, opinion
of, relating to the proper manner of calling
a Convention, §§ 122, 484, 534, and Appen-
dix F, p. 669.

Counter - Revolutions,
§ 111.

Court, Supreme, of the United States, opin-
ion of, bearing on the question of Ameri-
can nationality, § 46; opinion of, bearing
on the question whether the States were
sovereign under the confederation, § 50;
of South Carolina, as to the validity of the
first two South Carolina Constitutions,
§ 136, note 2; of Michigan, and of Ohio,
on the validity of the first Convention of
Michigan, and of the government estab-
lished thereby, §§ 207, and note 1, on p.
148 ; of the United States, on the same
question, §§ 207, 208 ; do. on the validity
of the ‘People’s Constitution’ and gov-
ernment of Rhode Island, §§ 229-231 ; of
New York, opinion of, on the ee of
the validity of the Act of Assembly modify-
ing the Convention Act of 1845, Appendix
D, p. 668; of Pennsylvania, on power of
legislatures to bind Conventions, §§ 409 o—
409 ¢; of Illinois, opinion of, as to repeal-
ability of an Act submitted to and adopted
by the people, §§ 407, 408 ; of Delaware,

description of,
678 INDEX.

opinion of, relative to legislation by the
people, § 418; of Illinois, decision of, re-
specting the ‘‘ Chicago Ordinance,” § 432;
_of Arkansas, opinion of, respecting the
extent of the power of a legislature to
recommend amendments to a Constitu-
tion, §§ 551-555 ; of Rhode Island, on the

uestion of amending the Constitution,
& 573, 574.

D.

Dallas, George M., opinion of, as to the
powers of Conventions, § 308.

Davis, Henry Winter, speech of, on the Le-
compton Convention, § 215.

Debates, of Conventions, character of,
§ 457; provisions for preserving, § 275.
Delaware, Convention of, 1776, §§ 141,
142 ; do. of 1831 and 1852, § 217, 218; do.

of 1792, §§ 217, 219-225.

Delegates, to Conventions, who may be,
§§ 267-269; can Conventions receive as,
persons elected at a time or in a manner
not provided by law ? § 350.

De Maistre, opinion of, respecting written
Constitutions, § 78, note 1.

Democracies, Constitutions of, § 70.

Dorr, Thomas W., elected Governor of
Rhode Island by the ‘‘ people’s party,”

§ 208,

E.

Elections to fill vacancies in Conventions,
when and how to be made, §§ 348, 349.

Electors, the, one of the agencies through
which sovereignty indirectly manifests it-
self, § 24; relative rank of, § 24; impro-
priety of leaving the duty of calling Con-
ventions to, § 118; commonly the only
constituents of Conventions, §§ 260-266 ;
functions and relations to Conventions of
the, §§ 314, 331-334, 364; powers of Con-
ventions with reference to the, §§ 835-365 ;
can Conventions disfranchise ? §§ 835-337 ;
can Conventions exercise the functions of,
to elect delegates to fill vacancies in their
own ranks, or authorize the colleagues of
deceased or resigning members to fill
them? §§ 338, 339; can Conventions issue
precepts to the, directing elections to fill
vacancies? §§ 840-347; can elections be
held by the, at any time or manner they
may think fit? § 348; can Conventions
limit the discretion of the, in regard to the
persons whom they shall or shall not elect
to office? §§ 351-361; can the, instruct
their delegates to Conventions? §§ 362-
364.

England, enactment of Constitutions in,
1

Ewing, Thomas, speech of, on the Michi-
gan Convention of December, 1836, §
205.

Executive, the, one of the agencies through
which sovereignty indirectly manifests

 

itself, §24; relative rank of, § 24; impro-
priety of leaving the duty of calling Con-
ventions to, § 120; relations of, to Conven-
tions, § 366.
Executive act, the act of the people in
assing upon a fundamental law, not an,
§ 510-518. ;
Eapressio unius, &c., applicability of the
maxim to the construction of Constitu-
tions, §§ 572-574 c.

F.

Federal, Convention of 1787, §§ 163-166;
discussion in, as to binding force upon it-
self of the acts under which it assembled,
§§ 383-386.

Fisher, Trial of the Constitution, quoted, as
to the inadequacy of the mode provided in
the Federal Constitution for its own amend-
ment, § 543, note.

Florida Convention, of 1838, §§ 188, 189,
210; do. of 1885, §§ 217, 218; do. of 1861,
§§ 247-250; do. of 1865, §§ 250-258; do.
of 1868, §§ 258 a-258 d.

Frame of Government, as a part of the
American Constitutions, definition and
contents of, §§ 100, 101.

France, enactment of Constitutions in, § 1.

Frankland, State of, § 190.

Franklin, Benjamin, sketch of Articles of
Confederation prepared by, § 159.

G.

Gaston, the Hon. Mr., opinion of, as to the
powers of the North Carolina Convention
of 1835, § 387.

Georgia Convention, of 1776, § 147; do. of
1788, §§ 148, 149; do. of January, 1789,
and of May, 1789, §§ 148, 149, 218; do. of
1795, 1798, and 1877, §§ 217, 218; do. of
1833 and 1839, §§ 217, 219; do. of 1861, §§
247-250; do. of 1865, §§ 250-258; do. of
1867, §§ 258 258 d.

Government, leading principles of the
American system of, § 1; branches or
departments of, by which sovereignty is
indirectly manifested, § 24; relative rank
of the various departments of, § 25; was
that established by the Federal Constitu-
tion a consolidated ? §§ 42-45; opinion of
Patrick Henry as to the character of -the
Federal, § 42; opinion of Mr. Taylor, of
North Carolina, § 42; opinion of James
Wilson, of Pennsylvania, § 42; defini-
tion of a consolidated, § 48; of the United
States, partly Federal, partly national,
§ 43; form of, in the colonies, in the early
period of the Revolution, 3 126, 127, 133,
137, 139, 143, 145, 146, 147, 150, 156; is
the Convention a part of the system of?

320; are members of Conventions officers
of ? §§ 323-324; can a Convention appoint
officers to fill vacancies in? §§ 825-330;
can a Convention eject from office persons
holding office under? §§ 325, 826; can a
INDEX.

Convention direct officers of, in the dis-
charge of their duties? 325, 326; is an
Act calling a Convention a government
measure? § 398; isa power to recommend
amendments to a Constitution amongst the
general purer of? § 555.

Grimke, +, of South Carolina, opinion
of, quoted, § 48.

H.

Haliett, B. F., argument of, in the case of
Luther v. Borden, § 233; opinion of, re-
specting the sovereignty of Conventions,
§ 311; speech of, on the right of Conven-
ou to issue precepts to the electors,

Hamilton, Alexander, opinion of, as to the
powers and duty of the Federal Conven-
tion, §§ 40, 385.

Henry, Patrick, opinion of, as to the loca-
pe of sovereignty in the United States,

2

Holst, von, Professor, observations of the
author upon a notice of this work in Sybel’s
Historische Zeitschrift, Appendix C, p.
656.

Howe, Senator, opinion of, respecting the
submission to the executive of amend-
ments proposed by Congress to the Federal
Constitution, § 559.

Howell, R. K., Judge, appointed president
pro tem. of the Louisiana Convention of
1864, § 475.

Hurd, John Codman, opinion of, as to the
location of sovereignty in the United
States, § 60; on the distinction between
Constitutions, as objective facts, and as
instruments of evidence, § 63, note 1.

I.

Illegitimate and revolutionary, distinction
between, § 113.

Illinois, Convention of, of 1818, § 187; do.
of 1847, and of 1862, §§ 217, 218; do. of
1862, form of oath administered to mem-
bers of, §§ 282, 283; do. of 1862, charge

ainst members of, of complicity with
uights of the Golden Circle, §§ 467, 468.

Indiana, Convention of, of 1816, §§ 186,
187; do. of 1850, §§ 217, 219.

Instructions, can the electors give, to their
delegates to Conventions? §§ 3862-364.

Iowa, Convention of, of 1844, §§ 188, 189;
do. of 1846, §§ 188, 189; do. of 1857,
§§ 217, 218.

J.

Jay, John, participation of, in the formation
of the New York Constitution of 1777,
§§ 151, 152.

Jefferson, Thomas, character of the Vir-
ginia Convention of 1776, as given by,
§ 138; opinion of respecting the repeal-

 

679

ability of the Virginia Constitution of
1776, § 138, note 2; opinion of, respecting
the amendment of Constitutions, §§ 82,
535, note.

Johnson, Andrew, President, proclamations
of, relating to the reconstruction of the
seceded States, § 257.

Johnson, Reverdy, Senator, speech of,
quoted, respecting the submission to the
executive of amendments proposed by
eee to the Federal Constitution, §

Judges, extra-judicial opinions of; weight to
be given to, on Constitutional questions,
Appendix E, p. 667.

Judicial act, the act of the people in pass-
ing upon a fundamental law, not a, § 510.

Judiciary, the, one of the agencies through
which sovereignty indirectly manifests it-
self, § 24; relative rank of, § 24; impro-
priety of leaving to, the duty of calling
Conventions, considered, § 119; relations
of, to Conventions, § 366.

K.

Kansas, Convention, of 1885 (Topeka), §§
211, 212; do. of 1857 (Lecompton), §§ 213-
216; do. of 1858 (Leavenworth) and 1859
(Wyandotte), § 216; submission of Con-
stitution of, of 1857, to the people, §§ 415,
416, 514-520.

Kent, James, Chancellor, opinion of, bear-
ing on the question of American nation-
ality, § 48.

Kentucky, erection of the District of, into
a State; history of Convention of, of 1792,
§§ 173, 174; Conventions of, of 1799 and
1849, §§ 217, 218; resolutions of, of 1798,

§§ 47, 50.

Knights of the Golden Circle, charge of
complicity with, against members of the
Illinois Convention of 1862, §§ 467, 468.

L.

Laboulaye, Edouard, extracts from article
by, in Revue des Deux Mondes, on the
constituent power (Du Pouvoir Constitu-
ant), Appendix A, p. 6387.

Law, fundamental, or Constitution, a funda-
mental conception in this inquiry, § 17;
fundamental and ordinary municipal, dis-
tinction between, §§ 85-87; duty of leg-
islatures to frame the municipal, and of
Conventions to frame the fundamental, §§
370-872; language of a, § 406. :

Laws, power of Conventions to repeal ordi-
nary, §§ 430-434.

Leavenworth Convention of Kansas, § 216.

Lecompton Convention of Kansas, history
and character of, §§ 213-216 ; Constitution,
submission of, to the people, §§ 517-520.

Legislation, various kinds of, how effected
here and in other countries, § 1; are acts
calling Conventions properly acts of ordi-
nary ? §§ 404-409; the act of the people
680

in ee upon a fundamental law an act
ot,

Legislative powers, do Conventions pos-
sess? §§ 419, 4410.

Legislature, the, or General Assembly, de-
scribed, § 6; one of the agencies through
which sovereignty indirectly manifests it-
self, § 24; relative rank of, § 24; the proper
body to call Conventions, §§ 121, 394-396;
relative numbers constituting the, in Eng-
land and the United States, § 121 3 of Vir-
ginia, of May 6, 1862, validity of, §§ 183-
185; relation of Conventions to the, and
their powers resulting therefrom, §§ 366-
418; structure and functions of the Con-
vention contrasted with those of the, §§ 367
-375; can the, bind the Convention ? §§ 376
-418 ; limits of the power of the, to restrict
the Convention in general, §§ 379-382;
power of the, to dictate to the Convention
what it shall or shall not recommend,
§§ 881, 382; question discussed in various
Conventions, §§ 383-387; where Acts of
the, which have been voted on by the peo-
ple, are conceded to bind the Convention,
source of their validity, §§ 389-409; can
the, bind the Convention by its Acts to
submit the fruit of its deliberation to the
people, §§ 410-418; can a Convention act
as a, in matters by the Federal Constitu-
tion required to be transacted by the legis-
latures of the several States? §§ 419, 442,
447; can a Convention peut the times,
places, and manner of electing Senators
and Representatives in Congress? §§ 442—
446; can a, as a legislature, ratify pro-
posed amendments to the Federal Consti-
tution ? § 447; a State, power of a Con-
vention to fetter a discretion confided to,
by the Federal Constitution, §§ 419, 448-
449 ; can a Convention prescribe what
State, shall act upon an amendment to the
Federal Constitution proposed by Con-

ress? § 449 a; where amendments to a
Constitution are recommended by a, na-
ture of its act, §§ 547-550; extent of the
power of a, to recommend amendments to
a Constitution, §§ 551-555 ;, where amend-
ments are recommended by a, should they
be submitted to the executive for ap-
proval, §§ 556-562; where a State has once
rejected amendments proposed by Con-
gress to the Federal Constitution, can it
or its successor reconsider them? § 563.

Legitimacy, the term defined and illus-
trated, §§ 105-108.

Lex Parliamentaria, how far the, prevails in
Conventions, § 459.

Limitation of time, is there a, applicable to
amendments proposed by Congress to the
Federal Constitution ? §§ 585-586.

Lincoln, Abraham, President, proclamation
of, of December 8, 1863, relating to the re-
construction of the rebel States, § 255.

Location of sovereignty theoretically con-
sidered, § 21; considered with reference
to historical facts in the United States and
in foreign countries, §§ 26, 27; as indi-
eated by Austin’s marks or tests, § 28; as

 

INDEX.

indicated by the additional marks laid
down hereing § 29; as determined by the
exercise of sovereignty, §§ 56, 57.

Louisiana, Convention of, of 1811, §§ 187-
189; do. of 1844, §§ 217, 218; do. of 1852
and 1879, §§ 217, 219; do. of 1864, §§ 250-
258; do. of 1867, §§ 258 a-258 d; case of
arrest by, of 1864, §§ 469-470 a; reassem-
bling and disposal of, §§ 474-477.

Lowndes, Rawlins, connection of, with the
formation of the South Carolina Counstitu-
tion of 1778, § 136.

M.

Madison, James, opinion of, as to the func-
tions and duties of the Federal Conven-
tion, § 40; do. on the question whether the
States were ever sovereign, § 49; as to the
powers of Conventions, <

Maine, erection of, into a State; Convention
of, of 1819, §§ 175-177.

Maine, Henry Sumner, on ancient law,
quoted, § 66.

Manifestation of sovereignty, modes of,
§§ 23, 24.

Marks or tests of sovereignty, Austin’s,
§ 19; additional, laid down herein, § 20.
Martindale, J. H., Attorney-General of
New York, opinion of, as to the power of
Conventions to appropriate money, § 4414.

Maryland, Convention, of 1776, § 145; do.
of 1864 and 1867, §§ 217, 218; do. of 1850,

§ 221-225; revolutionary movement in,
in 1837, §§ 204, 224.

Mason, George, opinion of, as to the powers
of the Federal Convention, § 384.

Massachusetts, Revolutionary Convention
in, in 1689, §§ 9, 10; first government of,
independent of the crown, § 127; Conven-
tion of, of 1778, § 156; do. of 1779, §§ 157,
158; do. of 1820, §§ 217, 218; do. of 1853,

§ 217, 219; consent of, to the erection of
the District of Maine into a State, § 176;
opinions of judges of the Supreme Court
of, on question of amending Constitution,
§§ 573, 574. as

May, Thomas P., arrest of, by the Louisi-
ana Convention of 1864, §§ 469, 470.

McLean, John, Justice, dissenting opinion
of, relating to the State government of
Michigan, framed in 1835, § 208.

Meeting, Public, or Spontaneous Conven-
tion, §§ 4, 5.

Members of Conventions, who may be,

§ 267-269; should they be sworn? and
form of oath, §§ 277-283; are they State
officers? §§ 322-324; privileges of, §§ 471,
472.

Michigan, Convention of, of 1835, §§ 188,
198, 201, 207-209; do. of September, 1836,
§§ 188, 199, 202; do. of December. 1886,

§ 188, 199, 203-206; do. of 1850 and 1867,
a 217, 218. .

Mill, John Stuart, quoted, as to the condi-
tions of safe political progress, § 529, note.

Minnesota, Convention of, of 1857, §§ 187,
270.
INDEX.

Misconceptions respecting the nature of
Constitutional Conventions, § 15.

Missouri, Convention of, of 1820, § 187; do.
of 1845, 1861, and 1865, §§ 217, 219; do.
of 1875, §§ 217, 218; ordinance of, of 1865,
to vacate offices under the State govern-
ment, §§ 327-330.

Mode, signitication of the term, when used
in reference to sovereignty, § 55.

Monarchies, limited, § 70; absolute, § 70.

Money, power of Conventions to appropri-
ate, §§ 485-441 a.

Morton, Marcus, speech of, on the right of
Conventions to issue precepts to the elec-
tors, § 345.

N.

Nation, do the United States constitute a?
§§ 30-50; what it is to be a, § 89; what it
is not to be a, § 31; the consolidation of
the United Colonies into a, the evident pur-
pose of God and of the men of all times in
America, § 34; bearing of the mode of rat-
ifying the Federal Constitution on the ques-
tion whether the United States constitute a,
§§ 36-38 ; opinions of contemporary states-
man on the question, §§ 39, 45; judicial
decisions and opinions of statesmen and
publicists subsequent to the formation of
the Federal government, on the question,
§§ 46-48 ; if the United States constitute
a, sovereignty resides in the nation, §§ 30,
50; allegiance due to the, §§ 52, 53.

Nationality, American, the question of, con-
sidered, §§ 30-50; successive steps in the
development of, in the United States, §§ 34,
35; bearing on the question of our, of the
mode of ratifying the Federal Constitution,
§§ 36-38; opinions of contemporary states-
men on the question, §§ 39-45; opinions
of statesmen and publicists, and judicial
decisions, subsequent to the formation of
the Federal Government, on the question,

. §§ 46-48.

Nations, method of nature in the genesis of,
explained, §§ 32, 33.

Nebraska, Convention of, of 1864, §§ 187,
210; do. of 1866, §§ 188, 210; do. of 1875,
§§ 217, 218.

Nevada, Convention of, of 1863, § 187; do.
of 1864, §§ 188, 189, 210.

New Hampshire, advice of the Continen-
tal Congress to, relative to founding new
government in, § 127; Convention of, of
1775, § 131; do. of 1778 and of 1781, § 132;
do. of 1791, § 218; do. of 1850 and of
1876, §§ 217, 218.

New Jersey, Convention of, of 1776, § 139;
do. of 1844, § 219; delegates to the, of
1844, elected equally from all parties, § 271.

New York, Convention of, of 1776, §§ 150-
152; consent of State of, to the erection of
Vermont into a State, § 171, note 1; Con-
ventions of 1801, 1821, and 1846, § 219; do.
of 1867, §§ 217, 218; Constitutional Com-
mission of, of 1872, §§ 546 a-546 d; veto of
the Council of Revision of, of the Conven-

 

681

tion bill of 1820, Appendix F, p. 669 ; opin-
tions of the Judges of the Supreme Court
of, respecting the power of a legislature to
modify a Convention Act passed upon by
the people, Appendix D, p. 663.

Wiles, Senator, speech of, on the Michigan
Convention of December, 1836, § 206.

Won-Resistance, doctrine of, stated, and
relation of, to contents of our Bills of
Rights, §§ 242-244.

North Carolina, Convention of, of 1776,
§ 146; consent of State of, to the erection
of Louisiana into a State; and deed of
cession of, §§ 190-197; Convention of, of
1875, §§ 217, 218; do. of 1835, §§ 217, 219;
do. of 1861, §§ 247-250; do. of 1865, §§ 250-
258; do. of 1868, §§ 258 a-258 d; do. of
1835, oath administered to members of,
§ 281; do. of 1835, discussion in, as to
binding form of the Act under which it
assembled, § 387.

oO.

Oath, should members of Conventions take
an? §§ 277, 278; form of, §§ 279-283 6;
question as to form of, discussed in IIli-
nois Conventions of 1862 and 1869, §§ 282,
283 ; in Ohio Conventions of 1850 and 1873,

283 a; observations upon these cases,
: 283 b; can a State Conventiom require
State officers to take, to support the Fed-
eral Constitution? § 449, note.

O’Connor, Charles, argument of, as to the
power of Conventions to limit the electors,
§ 853; do. as to the validity of amend-
ments, § 574 a.

Officer, is a member of a Convention an?
§§ 321-324. ©

Offices of Conventions, what are, and how
chosen ? § 274; are members of a Conven-
tion State officers? §§ 322-324; can a Con-
vention appoint to fill vacancies in the
government ? §§ 325-330; can a Conven-
tion eject from office pee who are,
under the government ? 325, 326; can a
Convention direct, in the discharge of
their official duties? §§ 325, 326.

Offices, Ordinance of the Missouri Conven-
tion of 1865, to vacate certain, under the
State government, §§ 327-330.

Ohio, Convention of, of 1802, § 187; do. of
1850 and of 1873, §§ 217, 218.

O’Mulveny, Judge, was he lawfully elected
a member of the Illinois Convention of
1862? §§ 821-324. : hs

Ordinance, of 1787, extension of provisions
of, to Tennessee, $§ 190, 191; bearing of,
on the legitimacy of Conventions called
within the territory covered by it, §§ 188-
207 ; of the Missouri Convention of 1865,
to vacate offices under the State govern-
ment, §§ 327-330.

Ordinances, definition and use of, § 103 a.

Oregon, Convention of, of 1857, §§ 188, 189,
210.

Organization of Conventions, §§ 272-284;
how initiated, § 273.
682

P:

Parker, Joel, Judge, speech of, on the right
of Conventions to issue precepts to the
electors, § 346.

ene obedience, doctrine of, explained,

2:

Paterson, Justice, opinion of, bearing on
the question whether the States under the
Confederation were sovereign, § 50.

Pennsylvania, Convention of, of 1776,
§§ 143, 144; do. of 1789, §§ 221-295; do.
of 1837 and 1872, §§ 217, 219; decision of
Supreme Court of, upon question of leg-
islature binding Convention, §§ 409 a-
409 e.

People, of the United States, how sover-
eignty inheres in the, §§ 54-57; in what
capacity the, exercise sovereignty, §§ 58,
59; can the, limit themselves? § 351.

Peters, Mr., of Illinois, opinion of, respect-
ing the powers of Conventions, § 308.

Pierce, Franklin, President, opinion of,
respecting the Topeka Convention of Kan-
sas, § 212.

Pinckney, Charles, opinion of, bearing on
the question of our nationality, § 47.

Pinckney, C. C., opinion of, respecting the
function and duty of the Federal Conven-
tion, § 40; do. bearing on the question of
our nationality, § 47.

Porter, Mr., of New York, argument of, as
to the power of Conventions to limit the
electors, § 354.

Power, term defined, § 305; of the electoral
body, a delegated power, § 354.

Powers of Conventions, §§ 305-478; two
theories of the, stated, and examples of,
given, §§ 307-311; theory that they are
sovereign, a novelty, §§ 311, 312; with
reference to the sovereign, or to sovereign
tights, §§ 315-319; with reference to the
government of the state as a whole, §§
820-830; growing out of their relations to
the electors, §§ 385-364; to the executive
and judiciary, 365, 366; to the legislature,
s 367-449 ; of the legislature to bind the

onvention, §§ 376-418; of conventions to
legislate, §§ 419, 441; to appropriate
money, §§ 435-4414; as legislatures, to
prescribe the times, places, and manner of
electing senators and representatives in
Congress, §§ 442-446; as legislatures, to
ratify proposed amendments to the Federal
Constitution, § 447; to fetter a discretion
given by the Federal Constitution to State
legislatures, §§ 448, 449; to prescribe what
legislature shall act upon an amendment
to the Federal Constitution proposed by
Congress, § 449 a; with reference to their
internal relations, express and implied,
§§ 450-472 a; with reference to their or-
ganization, to the maintenance of order,
and to the conduct of their business, §§
454-458; to arrest or punish their own
members or strangers, §§ 459-470; to pro-
long or perpetuate their existence, §§ 473-
478

Precedent, definition of the term, § 112.

 

INDEX.

Presumptions, constitutional, doctrine of,
stated and explained, § 25.

Printing, power of Conventions to furnish,
§§ 455-459.

Privileges of members of Conventions, §§
471, 472 a.

Proceeding, mode of, of Conventions, §§
285-304.

Promulgation of Constitutions, §§ 521-524.

Punish, power of Conventions to, their own
members or strangers, §§ 460-470 a.

R.

Ramsay, Dr., opinion of, bearing on the
question of American nationality, § 47;
uoted, as to the character of the first
outh Carolina Constitution, § 184; quo-
ted, as to the South Carolina Convention
of 1778, § 185.

Randolph, Edmund, Governor of Virginia,
opinion of, as to the function and duty of
the Federal Convention, § 40; the govern-
ment of the Confederation characterized
by, § 162, note 1; opinion of, as to the
powers of Conventions, §§ 309, 384.

Randolph, John, of Roanoke, opinion of,
as to the powers of Conventions, § 310 and
note 2.

Reconsideration, relaxation of rule as to,
in some Conventions, § 284.

Reconstruction, possible modes of effect-
ing, §§ 251-253; Acts of Congress pro-
viding for, §§ 258 a-258 6; Reconstruction
Conventions, first series of, §§ 254-258;
second series of, §§ 258 a-258 c.

Reporters for Conventions, § 275.

Reports in Conventions, how made, §§ 298-
801; disposition made of, on coming in,

302.

Republics, Democratic, Constitutions of,
70.

Resolutions, of the Continental Congress
respecting the formation of governments
in the colonies independent of the Crown,
§§ 128, 129.

Revolution, the term, defined, § 109; vari-
ous kinds of, distinguished, § 109; conse-
quences of, and erroneous classification of,
as great and small, § 100; importance of
defining the term, and reasons of, § 112;
that which lies within the domain of, not
to be drawn into precedent, § 112.

Revolutionary and illegitimate, the two
terms distinguished, § 118.

Rhode Island, Convention of, of 1824,
§§ 219, 226; do. of 1834, §§ 219, 226; do.
of 1841 (under the charter), §§ 219, 226;
do. of 1842, §§ 219, 226; do. of 1841
(People’s Convention), §§ 226-246; opin-
ions of Judges of Supreme Court of, on
question of amending Constitutions, §§
578, 574.

Rome, development of nationality of, § 33.

Ruggles, Mr., proposition of, in the New
York Convention of 1846, that future Con-
ae should consist of two chambers,

270.
INDEX.

Rules of Order, in Conventions, § 284.

Rutledge, President, of South Carolina,
refusal of, to assent to the South Carolina
Constitution of 1778, § 136.

8.

Schedule, as part of a Constitution, history
and uses of, §§ 102, 103.

Secession, connection of, with the consti-
tutional Convention. § 3; Convention of
Virginia, § 178 ; Conventions in general,
§§ 247-250.

Sergeant-at-Arms, employment of, in
Conventions, § 454.

Singleton, Mr., of Illinois, resolution of,
Pesteetigg the powers of Conventions,

10.

South Carolina, advice of Congress to, with
reference to founding new government in,
§ 127; Convention of, of 1776, $§ 133, 134;
do. of 1778, § 185: first two Constitutions
of, judicial decision respecting validity of,
§ 186, note 2; Convention of, of 1790,
§ 219; do. of 1860, §§ 247-249; do. of
1865, §§ 250-259; do. of 1868, §§ 258 a-
258 d.

Sovereign, the, a fundamental conception
in this inquiry, § 17; definition of the term,
§ 18; distinction between, and supreme,
§ 18, note 1; the States were never, §§

49,50; is the Convention possessed of sov-.

ereign powers? §§ 315-319; can Conven-
ventions limit the, in the choice of its ser-
vants? § 351.

Sovereignty, a fundamental conception in
this inquiry, § 17; definition of, § 18 and
note 2; marks of, as laid down by Austin,
§ 19; additional marks of, § 20; theories
as to the ground of, § 21, note 2; locus
of, theoretically considered, § 21 ; direct
modes of manifestation of, § 23; indirect,
§ 24: considered with reference to his-
torical facts in foreign states, § 26; do. in
the United States, § 27; location of, as
indicated by the definition of sovereignty,
27; as indicated by Austin’s marks or tests,
§ 28; as indicated by the additional marks
or tests, § 29; question of American na-
tionality, as bearing on the locus of, §§ 30-
50; if the United States constitute a nation,
inheres in the nation, or people of the
United States, §51; how sovereignty in-
heres in the people of the United States,
§§ 54-61; exercise of, how related to pos-
session of original, § 56; regular exercise
of, distinguished from the possible exercise
of, § 56; location of, as determined by
regular exercise of, in the United States,

§ 56, 57; circumstances indicating that
it is regularly exercised by the people of
the United States as discriminated into
groups by States, § 57; in what capacity
the States exercise, § 58; opinion of John
Austin, as to location of, in the United
States, § 60; opinion of John C. Hurd,
§ 60; do. as to the mode in which it in-
heres in the people of the United States,

 

683

60; opinion of Dr. Brownson, § 61; of

onventions, §§ 807-311; theory of, a nov-
elty, § 311, 812; connection of the theory
of conventional, with the rise and progress
of pro-slavery fanaticism, § 312, note 1;
question of, considered at large, §§ 315-
319; discussed by Supreme Court of Penn-
sylvania, §§ 409 a—-409 c.

State, the term, how employed in this trea-
tise, § 17, note.

States, the, were never sovereign, §§ 49, 50,
52; in what capacity the, exercise sov-
ereign powers, §§ 58, 59.

States Rights School, view of, as to the
bearing of the mode of ratifying the Fed-
eral Constitution on the question of Amer-
ican nationality, § 37.

Statute of limitations, — should there be a,
to amendments proposed by Congress to
the Federal Constitution ? sf 585, 586.

Story, Joseph, Justice, opinion of, bearing
on the question of American nationality,
§ 48; charge of, to the jury in the Rhode
Island case, § 280.

Submission of Constitutions to the people,
can Conventions be bound by the Acts
calling them, to make ? §§ 410-418; double,
of the Kansas Constitution of 1857, §§ 415,
416; duty of Conventions to make, in gen-
eral, § 479; duty, where neither the Con-
vention Act nor the Constitution requires
it, § 481; duty where submission is ex-
pressly required by law, §§ 482, 483; duty,
where submission is by law expressly dis-
pensed with, §§ 484-486 ; precedents relat-

ing to, ° 487-495; by whom it should be
made, 497-499; to whom it should be
made, §§ 500-509 6; nature of the Act

performed by the persons or body to whom
it is made, §§ 510-513; manner in which
it should be made, §§ 514-520; if mode of,
required by Convention Act, be disobeyed,
but the Constitution be ratified by the
people, will it be valid? §§ 520 a-520 d.

Suffrage, true theory of, §§ 386, 337.

Sully, remarks of, respecting the populace,
§ 26,

Supreme, distinguished from sovereign,
§ 18, note 1.

TL:

Taney, Chief Justice, opinion of, in the
Rhode Island case of Luther v. Borden,
231

Tennessee, formation into a State, Con-
vention of, of 1796, §§ 190-197; do. of
1834; and of 1870, §§ 217, 218; do. of
1861, §§ 247-249; do. of 1865, §§ 250-258.

Territories, Conventions to frame Constitu-
tions for, called regularly, § 187; do.
called irregularly, §§ 188, 189.

Texas, Convention of, of 1845, § 187; do.
of 1875 and 1885, x 217, 219 ; do. of 1861,
§§ 247-250: do. 1866, §§ 250-258; do. of
1868, §§ 258 a-258 d.

Topeka Convention, of Kansas, §§ 211, 212.

Treaty with France, of 1803, bearing of, on
684

the legitimacy of the Conventions called to
frame the first Constitutions of Arkansas,
Iowa, and Kansas, § 189; with Spain, of
1819, bearing of, on the legitimacy of the
Convention called to frame the first Con-
stitution of Florida, § 189; with Mexico,
of 1848, bearing of, on the legitimacy of
the Conventions called to frame the Con-
stitutions of California and Nevada, § 189.

Trumbull, Lyman, Senator, speech of, re-
specting the submitting of amendments
proposed by Congress to the Federal Con-
stitution to the executive, § 560.

Tucker, St. George, Judge, opinion of, re-
specting the repealability of the Virginia
Constitution of 1776, § 188, note 2.

U.

Union, successive schemes of, in the United
States, §§ 34, 35; tendency towards a con-
solidation of, the most prominent charac-
teristic of American constitutional history,
§ 34; possibility of a compulsory, contem-
plated previously to 1789, § 41, note 2.

United States, location of sovereignty in,
§ 27; do the, constitute a nation, §§ 30-50;
development of, contrasted with that of
Rome, § 33; successive steps in develop-
ment of, §§ 34, 35; Articles of Confedera-
tion forming first regular government of,
§§ 159-162; formation of the present Con-
stitution of, §§ 163-167.

Vv.

Vacancies in the government, can Conven-
tions fill? §§ 325, 3827-330; elections to
fill, how to be held or called, §§ 348, 349.

Vermont, Convention of, of 1777, §§ 153,
154; Convention, or Council of Censors of,
of 1785, § 155; Convention of, of 1786, §

155; erection of, into a State, and admis- |-

sion into the Union, §§ 171, 172; Conven-
tions of, and genera! observations on, §
220 and note 2.

Veto of Roman Tribunes contrasted with
the negative of an American executive,
§§ 510, 511; of the New York Council of
Revision of the Convention bill of 1820,
Appendix F, p. 667. ~

Virginia, advice of Congress to, relative to
founding new government in, § 127; Con-

 

INDEX.

vention of, of 1776, § 138; resolutions of
House of Delegates of, recommending a
general Convention to revise the Articles
of Confederation, § 163; consent of, to the
erection of the Kentucky District into a
State, §§ 173, 174; Convention of, of Feb-
ruary, 1861 (Secession), §§ 178, 247-250;
do. of June, 1861, and February, 1864
(Reconstruction), §§ 179-181, §§ 250-258 ;
do. of 1829 and 1850, §§ 217, 219; do. of
1867 (Reconstruction), §§ 258 a-258 d.

WwW.

Washington, Bushrod, Justice, decision of,
as to rights attaching in the States to mere
citizenship, § 359.

Washington, George, opinion of, bearing
ei the question of American nationality,

Webster, Daniel, opinion of, that the Con-
stitutions of the States and of the Union
should be kept independent of each other,
§ 95; argument of, in the case of Luther
v. Borden, §§ 234, 235; quotation from,
in relation to rights of citizenship, § 360;
do. in relation to nature of the act of
a legislature in recommending specific
amendments to a Constitution, § 549.

Wells, J. Madison, Governor of Louisiana,
issues writs of election in 1866, to fill va-
cancies in the reassembled Convention of
1864, § 475.

West Virginia, erection of, into a State,
§§ 178-182; validity of the proceedings
resulting in, considered, §§ 183, 185; Con-
vention of, of 1872; §§ 217, 218.

Wilson, James, opinion of, respecting the
powers of the Federal Convention, §§ 43,
309.

Wisconsin, Convention of, of 1846, § 187;
do. of 1847, § 210.

Wise, Henry A., opinion of, respecting time
necessary to make a good Constitution,

Wyandotte Convention of Kansas, § 216.

Y.

Yancey, William L., opinion of, as to the
powers of Conventions, § 311, note 2.

Young, Thomas, advice of, to the people of
Vermont, § 153.
KF 4512 A2 J31 1887

 

Author Vol.
Jameson, John Alexander

 

 

TitleA treatise on constitutional “Pr”
conventions.