Class Book %^ ' THE CONSTITUTIONAL CONVENTION; HISTORY, POWERS, AND MODES OF PROCEEDING. JOHN ALEXANDER JAMESON, w E SUPEKIOK COURT OF CHICAGO, AND PROFESSOR OF CONSTITUTIONAL ETC., IN THE LAW DEPARTMENT OF THE CHICAGO UNIVERSITY. ■ V i- ,,1" omnis hominum coetus quoque modo congregatus, sed coetus multitudinis juris r'Oooat .« et K'- tatis communione sociatus. — Cicero, de Repub. Th"- th^t e- about by disobedience to do no more than reforme the commonwealth shall find ! ' reby destroy it. — Hobbes, Levta^Aan. NEW YORK: CHARLES SCRIBNER AND COMPANY. CHICAGO: S. C. GRIGGS AND COMPANY. 1867. JK^, Entered according to Act of Congress, in the year 1866, by John A. Jameson, in the Clerk's Office of the District Court of the United States for the Northern District of Illinois. RIVERSIDE, CAMBRIDGE: iTEEEOTTPED AND PRINTED BY H. O. HOUGHTON AND COMPANY. 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. Inif ^ance of the Constitutional Convention. Enacts the fundamental law. Conb' utional Conventions and Secession. § 4. ^' ' s species of Conventions described and distinguished. §§4-16. The Spontaneous Convention, or Public Meeting. §§ 4, 5. The Legislative Convention, or General Assembly. § 6. The Revolutionary Convention. §§ 7-10. Examples of, in England. § 8. Examples of, in early American history. §§ 9, 10. The Constitutional Convention. § 11. Where the Constitutional Convention exercises the powers of a Revolutionary Convention, or vice versa, 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 n. 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 2. The question, where sovereignty resides, considered theoretically. § 21. The attributes of sovereignty. § 22. Modes in which sovereignty manifests itself. §§ 23, 24. IV TABLE OF CONTENTS. Direct manifestations through public opinion, and through the irregular exhibi- tion of powe7\ §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 locus 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. (&). 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. §§ 36-38. View of the " States Rights School." § 37. Observations on the mode of ratification adopted. § 38. 3. 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. §§ 43-45. 5. From judicial decisions and the opinions of statesmen, historians, and publicists subsequent to the establish- ment of the Constitution. §§46-48. Opinion of the Supreme Court of the United States, per Wilson, J. § 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 OP CONTENTS. V Opinion, expressed by Madison, that the States never were sovereign. § 49. Decision to the same effect by the Supreme Court of the United States. § 50. Observations on the foregoing authorities, and conclu- sion stated, that sovereignty resides in the American people, or nation. § 51. The question of allegiance, considered. § 52. Quasi-sovereignty and quasi-allegiance. § 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 (6). 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 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 sometimes 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 this work in reference to the States of the Union. § 62. CHAPTER HI. OF CONSTITUTIONS. The term "Constitution " defined. Constitutions discriminated into two kinds — Constitutions as objective facts, and Constitutions as instruments of evidence. §63. Constitutions " as they ought to be," framed for imaginary commonwealths, con- trasted with Constitutions as objective facts. § 64. I. Nature of Constitutions, as objective facts, considered ; and herein, principally, VI TABLE OP CONTENTS. of the question, whetlier Constitutions as objective facts 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. II. Specific varieties of Constitutions, as objective facts. § 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 evidence, 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. Advantages 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 munici- pal 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. Precedents showing the extent to which a Schedule has been em- ployed. § 103, TABLE OF CONTENTS. vii 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. § 11 2. 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 fitness to dischai'ge the function of calling Conventions. §§ 118-121. (a). The electors. § 118. (b). The judicial department. §119. (c). The executive department. § 120. ((/). 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, fi-om 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, 1 776, to the same effect. § 128. Observations on this recommendation. § 129. Conditions and elements of the problem to be solved by our fathers. § 130. Vm TABLE OP CONTENTS. New Hampshire Convention of 1775. History and character of. § 131. New 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 §§ 139, 140. Delaware Convention of 1776. History and character of. §§ 141, 142. Pennsylvania Convention of 1776. History and character of. §§ 143, 144. Maryland Convention of 1 776. History and character of § 145. North Carolina Convention of 1776. History and character of § 146. 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 1 7 7 7. 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 on the Annapolis recommendations. § 164. Action of Congress on these recommendations. Call of the sec- ond Federal Convention. § 165. Character of this Convention. § 166. State Conventions called to ratify the Federal Constitution. History and character of § 167. TABLE OF CONTENTS. IX Other ratifying Conventions. § 1 6 7. General observations on the Conventions of the revolutionary period. §§ 168, 169. (b). Conventions called since the Federal Constitution went into operaiton, 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. §§170-193. Provision of the Federal Constitution governing these cases ; names of the States so formed ; and requisites for the legitimacy of the Conventions concerned in forming them. § 171. Case of Vermont. §172. Kentucky Convention of 1792. History and character of. §§173, 174. Tennessee Convention of 1796. History and character of. §§ 175-182. Discussion in Congress on the admission of Tennessee into the Union. §§ 179, 180. Observations on the Tennessee case. §§ 181, 182. Maine Convention of 1819. History and character of. §§ 183-185. Conventions of Virginia, and of West Virginia, of 1861. History and character of. §§ 186-193. 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. §§ 194-216. (a). Such Conventions as have been assembled regu- larly, in pursuance of enabling Acts of Con- gress. § 195. (b). Such as have been convened irregularly, without enabling Acts. §§ 196-216. Treaties and deeds of cession bearing on this class of Conventions. §§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. Opinion of Senator Niles. § 206. Decision of the Supreme Court of Michigan as to the time when Michigan became a State. § 207. TABLE OP CONTENTS. 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 Congress. 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. 3. 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. H. By special bodies created for the purpose by the Constitution, called Councils of Cen- sors. § 220. (&). Such Conventions as have been called, for legiti- mate constitutional purposes, irregularly : — 1 1. In disregard of constitutional provisions pre- ' 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. TABLE OF CONTENTS. xi 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 eflfbrts to secure a revision of the charter of Charles II. § 226. " Suffrage Associations." " People's Conven- tion " 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. Hallett'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. (e). Secession and Reconstruction Conventions. §§ 247-259. Secession Conventions, History of the call of. §§247,248. Character of §§ 249, 250. Reconstruction Conventions. History of the call of §§ 250-258. Proclamation of President Lincoln. § 255. Proclamations of President Johnson. § 257. Character of the Reconstruction Conventions. §258. Xll TABLE OP CONTENTS. Montgomery Convention of 1861. History and character of. § 259. II. 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 disorganization. §261. (6). The question considered in the light of precedents : — 1. Of precedents since the Revolution. § 263. 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. § 272. Of the officers of Conventions, temporary and permanent. " § 274. Reports of proceedings. § 274. 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 in Illinois, in 1862. §§ 279-283. Rules of Order. § 284. Committees. Employment of in Conventions. §§ 285-296. Different modes of proceeding in Conventions : — 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 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. Objections 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. TABLE OF CONTENTS. XIU Reports, how made. §§ 298-301. 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. § 308. Instances in which the second theory has been propounded. §§ 309, 310. The first theory, that of conventional sovereignty, a novelty. Its history. §§ 311, 312. To refute the first theory the principal object of this work. § 313. Order of the discussion stated. § 314. I. The powers of Conventions considered with reference to their external rela- tions ; 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. (b). 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 ? §§ 320, 321. Is a member of a Convention an officer ? §§ 322-324. Can a Convention fill vacancies in the governmental departments ? § 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. (c). Powers of Conventions growing out of their relations to the electors f 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. XIV ^ TABLE OF CONTENTS. 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. §§ 353, 354. Case in the Louisiana Convention of 1844. §§ 355-357. 1 Observations on the Louisiana case. §§ 358-361. 8. Have the electors power to instruct their delegates to Con- ventions ? §§362-364. (^d). Powers of Conventions growing out of their relations to the several departments of the government, legislative, executive, and ju- dicial. §§ 366-449. 1. To the executive and judicial departments. § 366. 2. To the legislative department. §§ 367-449. General powers of legislatures and Conventions contrasted. §§ 367-375. 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 conditions, restrictions or limitations upon Conventions, or dictate their or- ganization or modes of proceeding ? §§ 3 76-409. General consideration of the question. §§ 377-383. Discussion of, in the Federal Convention. §§ 383- 386. Discussion of, in the North Carolina Convention of 1835. § 387. Opinion of the Supreme Court of Massachusetts on, in 1833. § 388. Observations upon this opinion. § 389. When an Act of a legislature calling a Conven- tion has been voted on by the people, what is the source of its validity ? §§ 389-409. Oj^inion 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. Observations upon this discussion. §§ 404-406. Opinion of the Supreme Court of Illinois bearing on the question. §§ 407-409. TABLE OF CONTENTS. XV 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 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. (6). 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. The question considered — First, in the light of principles. §§ 420-425. Secondly, in the light of custom and precedent. §§ 426-441. Practical questions discussed : — (a) . Has a Convention power to repeal Acts of the legislature ? Chicago Ordinance of the Illinois Convention of 1862. §§ 430- 434. (6). Have Conventions power to appropriate money out of the public treasury ? §§ 435-441. 2. Can a Convention act as a legislature in matters required by the Federal Constitution to be transacted by the legislatures of the States ? §§442-447. 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. §§ 442-446. (b). 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. II. The powers of Conventions considered with reference to their internal re- XVI TABLE OF CONTENTS. latlons ; to the perfecting of their organization ; to the maintenance of discipline over their own members, or over strangers ; and to the prolon- gation or perpetuation of their existence. §§ 450-478. 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, reporters, &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 the body itself or its members. §§ 459-472. 1. For offences committed by their own members, in their own presence. §§ 460-464. 2. For offences committed by strangers. §§ 465-470. Case in the Illinois Convention of 1862. §§ 467, 468. Case in the Louisiana Convention of 1864. §§ 479, 470. Privileges of members of Conventions. §§ 471, 472. Power of Conventions to prolong or perpetuate their existence. §§ 473- 478. Reconvocation of the Louisiana Convention of 1864, in July 1866, con- sidered. §§ 474-478. CHAPTER VIL 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. §5 480, 481, IL Where submission is expressly required. §§ 482, 483. in. 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 in Vermont. § 494. Cases of the Territories forming their first Constitutions. § 495. Separate topics necessary to a complete exposition of the subject of this chapter, stated. § 496. L By whom the particular regulations necessary for submitting Constitu- tions ought to be made. §§497-499. TABLE OF CONTENTS. XVU Theoretical view of the question. § 497. Precedents. §§498,499. n. To whom Constitutions ought to be submitted. §§ 500-509. Theoretical view of the question. § 500. Precedents. § 501-509. General current of the precedents stated. § 501. Exceptional cases considered. §§ 502-509. Cases of the two Constitutions of the United States. §§ 502, 503. Cases of the Virginia Constitutions of 1830 and 1851, and of those of Rhode Island of 1842, and of West Virginia of 1863. §§ 508, 509. Cases of the Tennessee Constitution of 1834, and of the Maryland Constitution of 1864. § 509, note. in. 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. lb). 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. V. How Constitutions should be certified and promulgated. §§ 521-524. Precedents stated and considered. §§ 522-524. CHAPTER Vm. 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 : — j 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. b xvm TABLE OP CONTENTS. ^ 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. Provisions of our Constitutions on the subject, of three kinds : — 1. Such as look to a periodical expression of the sense of the people on the question of calling a Convention. § 535. 2. Such as look to a vote of the people upon the question, whenever such a step should seem to the legislature to be advisable. § 536. 3. Such as impose restrictions upon the call of Conventions, in negative terms. § 537. (6). 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 I of the legislature generally necessary. §§ 544-546. i Exceptions considered. §§ 544-545. 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 V §§ 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 not a 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 State v. Cox^ and of Eason v. The State, decided by the Supreme Court of Arkansas, stated. §§ 551-553. Observations upon these cases. §§ 554, 555. III. 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 considei'ed 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 1803. § 558. Discussion in the United States Senate, in 1865. §§ 559, 560. TABLE OF CONTENTS. xix 2. The question considered with reference to the State governments. §§ 561, 562. IV. When an amendment to the Federal Constitution has been regularly proposed for ratification, to the State legislatures, by Congress, and one of those bodies has passed upon the question in the negative, may a subsequent legislature reconsider and reverse that action ? § 563. V. When a Constitution contains a provision for its own amendment, in either of the modes above specified, can another and different mode \ be adopted, or must the mode prescribed be alone pursued ? §§564- 574. There may be two cases : — 1. Where the Constitution contains provisions forbidding amendments except In the mode therein prescribed. § 564. Precedents. §§ 565, 566. Opinion of Senator Bayard, of Delaware. § 567. Opinion of Senator Johnson, of Maryland. § 562. Observations on these opinions. §§ 569, 570. 2. Where the terms of the Constitutional provision are permissive, with- out restrictive words. §§ 571-576. Precedents. §§ 571-573. Opinion of the Supreme Court of Massachusetts. §§ 574-575. The question, whether these principles apply to amendments to the Federal Constitution, considered. § 576. APPENDIX. A. List of all the Conventions thus far held in the United States, p. 533. B. Objections of the New York Council of Revision to the New York Conven- tion Act of 1820. p. 538. C. Opinion of the Judges of the Supreme Judicial Court of Massachusetts, respecting the powers of Conventions to propose amendments to the Constitution, p. 540. D. Opinion of the Judges of the Supreme Court of New York, respecting the power of the legislature to modify a Convention Act which has been voted upon by the people, p. 542. E. Official proceedings culminating in the reassembling of the Louisiana Con- vention of 1864, in July, 1866. p. 545. CONSTITUTIONAL CONVENTIONS. CHAPTER I. § 1. It is my purpose, in the following pages, to inquire into the history, powers, and modes of proceeding of the Consti- 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 regimes 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. X 2 PRINCIPLES OP 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 role of both founder and restorer of its social machinery. Is this institution, it might be asked, subject to any law, to any restriction 1 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 has just closed, 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. 3 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 principlea 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 Conventions, namely : — I. The Spontaneous Convention, or Public Meeting. II. The Ordinary Legislative Convention, or General Assembly. 4 SPONTANEOUS CONVENTIONS. III. The Revolutionary Convention. IV. The Constitutional Convention. These will now be considered in their order. § 5. I. By Spontaneous 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 theii 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 EnglLY>- 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." ^ 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. Soverejgnty 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 PoliL Elhics, Vol. I. p. 250. 22 DIRECT MANIFESTATION OP SOVEREIGNTY. in all free commonwealths, by which the machinery of govern- ment is put and kept in orderly motion ; or in manifestations of original jjower, 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." f 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 d'etat, an act of force originating in lawlessness, but, because done by a body whose power is overwhelming, an act L^^jwhich 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 OP 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 i^eople, 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 cooperation 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 COROLLAEIES. 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 coordinate 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: l,the Electors ; 2, the Legislature ; 3, the Convention ; 4, the Executive ; and 5, the Judiciary. r § 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, I 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 I have 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 extra, 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 reference to the locus 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, as in name. In the other two varieties, the existence of the nation as a power distinct from the court, is ignored in law, and 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 that 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 the 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. I come 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 people 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 so- 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 bhere 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 i masons. 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- MAEKS 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. It is 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. " If 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 1789, 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 1 See ante, § 19. 2 The word habitually is inserted 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 may determine its own powers and, in so doing, limit, enlarge, or abolish 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 influence 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. {b). 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 and per- haps more solid grounds of inference as to the locus of sover- eignty 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, con- sidered 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 1 For 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 '^ Nascoj;" " natus," '■'■nalio," — to he born. 32 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 a common 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. EXAMPLES OP nature's METHOD. 33 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- 8 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 Rome 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 loosest, 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 sporadically, 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, — STEPS TOWAEDS A NATIONAL UNION IN AMERICA. 35 the latter 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 metliod 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 impressible 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 1789, 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 1789, by thirteen, with less reluctance — it may almost be said, with eagerness — 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 86 STEPS TOWAEDS 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 engineer 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 1789 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 OP FEDERAL CONSTITUTION. 87 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 1787 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 Slate.^^ 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 Slate 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 OP 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 terras 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, v^^hose 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 OP CONTEMPOEAEIES. 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 terras 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 instrument 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 ray 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 crazy 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 bickerings, and with constant exhibitions of imbecility by a OPINIONS OF CONTEMPORAEIES. 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, perhaps, 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. In the 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. Randolpli 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. Kandolph 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 in- capability of amendment or improvement, must end in the dissolution of the powers."— Yates' Minutes, (1 Ell. Deb.) pp. 391, 392. 42 OPINIONS OP 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 fact, 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." ^ 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." ^ Mi'. 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 Del., Vol. V. p. 197. 2 Id. p. 199. 3 Yates' Minutes, in Vol. I. Ell. Deh. p. 423. 4 Ell. Deh., Vol. V. p. 216. INFERENCE FROM THESE OPINIONS. 43 mending, which they found necessary to remedy the evils which produced this Convention." ^ § 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. Deh., Vol. V. p. 197. See also Yates' Minutes, in Vol. I. Ell. Deh. pp. 414, 415, 417, 418, 428, 492-5. 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 : — " Tiiis country must be united. If persuasion does not unite it the sword will. He begged this consideration might have its due weight." (Ell. Deh., 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 Avarm 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. Deh., Vol. I. p. 505.) In the Massachusetts Convention, Colonel Thompson s])oke of force as con- templated, after nine States should have adopted the Constitution, to compel the remaining four to come 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. H. p. 61. 44 OPINIONS OF CONTEMPOEAEIES. 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 gi-ound 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 fully 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 ? I 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, it is clear that a consolidation is intended. Will any gentle- man say, that a consolidated government will answer this coun- OPINIONS OF CONTEMPORARIES. 45 try ? . . . I am 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 jjeople, 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. in. pp. 22, 23. 2 Ell. Deb., Vol. II. pp. 503-504. 3 Ibid. 4 Ibid. 46 OBSEEVATIONS ON THESE OPINIONS. pie 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 ought not only not to reject, 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 v^hich 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 from 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 locus of the powers of sovereignty in the United States. In 1793, 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 motion 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 state, 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 ? ' " i 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 StaLe.^^ 2 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 " sovereign " people of the United States. But, 1 Chisholm, Ex'r, v. State of Georgia, 2 Dall. 453. 2 Id. 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. It 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, 1783, 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 Gushing and Blair, and of Chief Justice Jay. 3 See, on the whole subject, Martin v. Hunter, 1 Wheat. 304 (324) ; McCul- lough V. The State of Maryland, 4 Wheat. 316. 4 5 Marsh. Washington, p. 48. 5 Presidential Speeches, p. 31. 4 ^ 50 OPINIONS OF STATESMEN, HISTORIANS, AND PUBLICISTS. teen sovereign States, but a common sovereignty of the whole in their united capacity." ^ 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." ^ Cliarles Pinckney, also, in his 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." ^ § 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 Pinckney s, 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 travelUng since 1776. It would be difficult to find his- 1 Ramsay's Hist. U. -S. Vol. III. pp. 174, 175. 2 4 Ell. Deh. p. 301. 3 Quoted by Mr. Grimke, arguendo, in 2 Hill's S. 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 powder; 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."^ 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. 236. 3 Story's Com. on Const. § 21.5. 62 THE STATES WERE NEVER SOYEREIGN. 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. Bid 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. 53 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." ^ 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 already 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 jt. . . . 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 Penballow 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 efiect lodges the power of sovereignty with some other than the States. 2 Chishokn, 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." ^ § 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 Congi'ess, 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 hy 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. QUASI ALLEGIANCE AND QUASI SOVEREIGNTY. 65 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. 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 as a figure of speech employed out of courtesy to numerous and dignified bodies invested with the exercise, for local purposes, of impor- tant sovereign powers. The States, at best, are but quasi sov- ereign ; that is, on account of their permissive supremacy in local State affairs, they are to be treated, to a certain extent, as z/" they were sovereign ; precisely as an ambassador, despatched to a foreign court and there representing his sovereign, is re- ceived and honored, on account of his office, as if he were him- self the sovereign. § 53. To this quasi sovereignty corresponds a quasi allegiance, which every citizen owes to his State, in subordination to his true allegiance to the nation. This spurious allegiance, how- ever, so far as it is not a mere act of courtesy, is another name for the obedience due to the ministers of the real sovereign ; the truth being, that, in rendering obedience to the government of his State, a citizen of the United States is paying his allegiance to the people of the Union. This obedience is sometimes styled 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- 66 HOW SOVEREIGNTY INHERES IN THE NATION. 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. If a 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 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.2 § 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 ? 1 Claimants of the Schooner Brilliant, &c., Appellants, v. The United States, Am. Law Register, Vol. II. (new series) 334. 2 See Fox v. State of Ohio, 5 How. 432. Also, Moore v. The People of Illinois, 14 How. E.. 13. Upon the whole doctrine of allegiance, in I'elation 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 et venerabile nomen. SOVEREIGNTY UNDER CONDITIONS. 57 To this question two answers may be given : — (a). That sovereignty inheres in the people considered simply, that is, as a unit, without conditions, or State or other internal discriminations. (b). 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- eign itself; be, in other words, a self-imposed limitation, enforce- able only by moral sanctions. For, to suppose that sovereignty 80 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 instrument 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 exercisable 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 58 POSSIBLE EXERCISE OP SOYEREIGNTT. 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. The possible exercise of it, — a field of indefinite extent, commensu- rate 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 possible exercise of sovereignty, on the other hand, as contradistinguished from the regular ex.exc\Be. 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 irregular, and is to be characterized simply as such, 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 SOVEEEIGNTY, HOW REGULARLY EXERCISED. 59 of all possible sovereign powers, as freely as in any government under the sun. In a word, then, 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 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 1787 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 60 CAPACITY IN WHICH THE STATES EXERCISE SOVEREIGNTY. 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 1787, 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 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 1787. As the Constitution, as an objective fact, develops with the growth of the nation, the Constitution, as an instrument of evidence of that fact, must develop correspondingly. If by its terms it cannot do so, shall the nation be bound by it? In law, yes. As a 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 States, a word is necessary as to the CAPACITY in which those groups act in performing the function indicated. 1 See the concluding part of Article V. of the Constitution, relating to equality of representation of States in the United States Senate. CAPACITY IN WHICH THE STATES EXERCISE SOVEREIGNTY, 61 "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 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 Union, 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 ; ^ in the issuance of writs of election to fill vacancies in Congress, by the State executives ;^ 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 hand, 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 1 Art. I. sec. 3, 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. 3, cl. 1, Const. U. S. 4 Art. II. sec. 1, Const. U. S. 62 . VIEW OF AUSTIN. the members of the national House of Representatives, a duty committed to " the people of the several States." ' § 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 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 constitutional prohibitions, which are external to themselves as States, being limitations upon their exercise of sovereign powers, imposed by the people of the United States.^ Admitting, then, that the powers of sovereignty, under the pres- ent Constitution, are exercisable 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 : — 1 Art. I. sec. 2, cl. 1, Const. U. S. On the whole subject discussed in the foregoing sections, see Federalist^ No. 39. a'See Art. I. sees. 8, 9, and 10, Const. U. S. VIEW OF DR. BROWNSON. 63 " 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 properly sovereign 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." ^ 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.2 § 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- ^ John Austin, The Province of Jurisprudence Determined, Vol. I. p. 222. 2 Hurd, Law of Freedom and Bondage, Vol. I. § 343, note 2. 64 TEEM SOVEREIGN AS APPLIED TO THE STATES. 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 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, wherever in the follow- ing pages the term sovereign is applied to the people of a State, as it frequently will be, in speaking of the submission of Con- stitutions, framed by State Conventions, to the people of such States, it will be used to signify the possession by such people of quasi sovereign rights, in subordination to the real sovereign, the American nation. Under the Constitution of the nation — com- prising the federal and all the State Constitutions — each State is 1 The American Republic, pp. 220, 221. TERM SOVEREIGN AS APPLIED TO THE STATES. 65 permitted by the sovereign to frame for its own people its local Constitution, subject always to the guaranty of the national gov- ernment. In performing that work, the people act in the same manner as if they had neither State nor federal relations, — as though the State were sovereign and independent. In truth, however, a State is neither. In passing upon a local Constitu- tion, the people of a State are performing a delegated 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 valu- able of all the features of the national Constitution, is undeni- able, but that fact does not at all affect its intrinsic character as above explained. With a proper definition 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 expedients subordinate to the nation ; subservient, in all respects, to its interests ; and, therefore, if the nation so will, temporary. CHAPTER HI. § 63. The function of the Constitution-al Convention being, as we have seen, to pa,rticipate in the framing or amending of Constitutions, before attempting 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 an ohjective fact. Beside this, the term " Constitution " has a secondary mean- ing, w^hich is, perhaps, more common than the one given, involving equally the conception of a system of political in- strumentalities, powers, and functions, specially adjusted for the purposes of government; but conceived of, not as an objective fact, but as a systematic written statement of such a fact, in the shape of formulce 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 con- stitution, existing as an objective fact. This is a 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 ohjective facts 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 as a state or sovereign community, and constituting them such or such a state. It is providential, not made by the nation, but born CONSTITUTIONS AS THEY OUGHT TO BE. 67 § 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 heP These must be carefully distinguished from Constitutions considered as objective facts. 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 objective fact, 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 administrative officers, and acquiesced in by 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 mast be set down as modifications of the with it. The written constitutioa is made and ordained by the sovereign power, and presupposes that power as ah-eady existing and constituted." — The Ameri- can Republic, Tp. 218. 68 AEE CONSTITUTIONS AS PACTS FOUNDED ON COMPACT? 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 objective facts ; and Secondly, as instruments of evidence of those facts. I. Adverting to the first of the proposed subjects of inquiry, what I have to say upon the nature of Constitutions considered as objective facts, will be confined to this central question : Are Constitutions founded upon compact ? When it is affirmed 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 of its component particles the structure and functions of a plant. ARE CONSTITUTIONS AS FACTS POUNDED ON COMPACT ? 69 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 nalurd cequnles sunt," the maxim of the Roman lawyers of the Antonine era. — Maine, Ancient Law, p. 89. 70 AEE CONSTITUTIONS AS PACTS FOUNDED ON COMPACT ? 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, under 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 Ibid. ARE WRITTEN CONSTITUTIONS FOUNDED ON COMPACT? 71 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 in 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^a^ 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 formulcB 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 of 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 72 AEE WRITTEN CONSTITUTIONS FOUNDED ON COMPACT? 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 formulcB 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. The reply seems reasonable, that the Consti- tution, as an objective fact, the Constitution, as it ought to be wTitten out, to harmonize with the results of existing social 1 See Commonwealtli v. Aves, 18 Pick. R. 193, per Shaw, Ch. J. ARE WRITTEN CONSTITUTIONS FOUNDED ON COMPACT ? 73 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. II. 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 74 VAEIETIES OF CONSTITUTIONS AS FACTS. 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- ment. 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 objective facts, may be discriminated, first, with reference to the mode in which they originate, into two classes, namely : — 1. Cumulative Constitutions. 2. Enacted Constitutions. CUMULATIVE AND ENACTED CONSTITUTIONS. 75 Secondly, with reference to their general characteristics as sources of evidence, into two others, closely allied to the former, nannely : — 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 1 Adapted from Dr. Lieber, Civil Liberty^ p. 166, note 1. 76 WRITTEN AND UNWRITTEN CONSTITUTIONS. 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 less 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 Con- 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 WRITTEN AND UNWRITTEN CONSTITUTIONS. 77 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 \\T:itten 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 intuitu^ but in its ordinary signification at the time the instrument was indited ? What is the precise meaning intended by its authors ? 78 ADVANTAGES OF WRITTEN CONSTITUTIONS. 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, stUl 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." ^ 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.^ 5. 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." ^ § 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. 1. p. 20. 5 Jeiferson, in a letter to Dr. Priestley, Works, Vol. IV. p. 441. ADVANTAGES OF UNWRITTEN CONSTITUTIONS. 79 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 poHtical Constitutions exist in advance of all ■written law. 2. That a Constitution is and can be but the development of a pre- existin 866 CAN THE LEGISLATURE BIND THE CONVENTION? 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 in a 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 way possible, that is, by the call of a Convention. If it be not in the power of a legislature to call a Convention, that fact is not to be inferred from a positive authority to effect a different object in a different way. The idea -advanced by the Court is based on the legal maxim, ex- pressio unius est exclusio alterius, — a maxim doubtless of wide application in the construction of ordinary statutes, and of con- tracts between man and man, but whose applicability to the construction of fundamental laws has been denied by high judicial 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 1 See post, §§ 538-540. 2 Barto V. Himrod, 4 Selden's K. 483 (493), per Willard, J. See also Broom's Legal Maxims, pp. 540, 541. CAN THE LEGISLATURE BIND THE CONVENTION? 367 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 instrument " 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 vote.^ It is noticeable, moreover, that the GeneraLAssem- 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 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- ment." Upon these extraordinary statements I remark — 1. That they all beg the question, — in my judgment, the most important question in American public law, — Whether, as Justice 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 locus into the hands of a majority of its members. Of the proposition that " a Convention is not a pro- 1 See Appendix B, for the entire opinion of the Council. 368 CAN THE LEGISLATUEE BIND THE CONVENTION ? 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 had 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 1 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 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, CAN THE LEGISLATURE BIND THE CONVENTION ? 869 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 coordinate 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 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 1 See ante, §§ 340-347. 24 370 CAN THE LEGISLATURE BIND THE CONVENTION ? 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 : — . . . . "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 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, a. d. 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. § 401. Under this Act, a vote of the people was taken on the second Monday of November, 1852, Yes or No, on the following 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. It was not disputed, that the intention of the legislature was, CAN THE LEGISLATURE BIND THE CONVENTION ? 371 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. d. 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 had been adopted by the people ; 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 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 to a 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 372 CAN THE LEGISLATURE BIND THE CONVENTION? 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 7, 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 althousrh 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, 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 CAN THE LEGISLATURE BIND THE CONVENTION ? 373 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 ;i 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 to 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, although the law of March 1, 1853, 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 1 Keference 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. 874 CAN THE LEGISLATURE BIND THE CONVENTION? 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- 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 terms 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 prescribing 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- 1 See speeches of Messrs. Choate, Parker, Morton, and others, in Deb. Mass. Conv. 1853, Vol. I. pp. 73, 83, 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 put- ting an end to its existence. Id. p. 155. CAN THE LEqiSLATURE BIND THE CONVENTION? 375 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 terras 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 votes 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 Conventions^ at a time and place specified ; " they shall be judges of the returns and elections of 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 376 CAN THE LEGISLATURE BIND THE CONVENTION ? 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 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 ^ Barto I'. Himrod, 4 Seld. R. 483 ; with which compare The People v. Collins, 3 Mich. R. 343. CAN THE LEGISLATURE BIND THE CONVENTION? 377 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, 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.^ 1 111 Const, of 1847, Art. X. § 60. 378 CAN THE LEGISLATURE BIND THE CONVENTION? 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, 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 1 Bank of the Republic v. County of Hamilton, 21 111. R. 53 ; afterwards con- firmed by the same Court in Reaper's Bank v. Willard, 24 111. R. 433. CAN THE LEGISLATURE BIND THE CONVENTION? 379 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 control, 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 its 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, I may remark, that the decision might have been placed, in my judgment, upon broader and more solid ground, by holding simply that the Constitution of the State required only the question of the expediency of in- corporating banking institutions to be passed upon by the peo- ple, leaving all questions of details to the General Assembly, to which, as involving the exercise merely of a legislative discre- tion, 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 380 CAN THE LEGISLATURE BIND THE CONVENTION? all the amendments proposed by it were repudiated by the people. § 410. 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 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 \yhatever, 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, w^hose 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 See Parker v. The Commonwealtli, 6 Barr. 509. CAN THE LEGISLATURE BIND THE CONVENTION? 381 § 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- 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 I 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 382 CAN THE LEGISLATURE BIND THE CONVENTION? 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 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 framed 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, CAN THE LEGISLATURE BIND THE CONVENTION ? 383 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 0th, 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 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 6266 For the Constitution without slavery . . . . 567 January 4, 1858, in accordance with the Act of the Territorial legislature, the people voted as follows : — For the Lecompton Constitution with slavery . . . 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, 384 CAN THE LEGISLATURE BIND THE CONVENTION? 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 passed ; that is, in them alone would there at any time be any validity whatever. As a matter of fact, we shall see hereafter, that, by thoughtless legislation. Conventions have been some- times empowered to make such provisions as they may deem advisable respecting the submission of the fruit of their labors to the people, and perhaps no great evil has as yet practically resulted from so doing. But, as a precedent, in my view, noth- ing could be more dangerous. To demonstrate this, it is neces- sary 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 CAN THE LEGISLATURE BIND THE CONVENTION? 385 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 — 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. At most, they are allowed 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 purpose and effect, are not really proper to rank as constitutional provisions, though perhaps they may 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 §ense 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: — " It is ... . 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. 1 See ante, §§ 85-87. 2 Stewart v. Crosby, 15 Texas R. 546. 25 386 CAN THE LEGISLATURE BIND THE CONVENTION? 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 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." ^ K 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. § 419. (b). In the preceding sections have been considered 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 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. HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 387 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 follou'ing, 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 ? 3. 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 distinc- 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 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- 1 The same also is true of the legislatures of all constitutional governments, excepting, perhaps, that of England. Vattel, Law of Nations, Bk. I. ch. 3, §§34,35. 2 It is true, some confusion existed on this subject in some of the States, under 388 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 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.i 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 cayil, 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 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 their first Constitutions ; but the question of the power of their legislatures was soon settled by the courts, as above indicated. See Kamper v. Hawkins, 1 Va. Crim. Cas. 20. 1 See ante, §§ 315-319. HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 389 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 Constitution 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 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 under consideration.^ 1 See Rice v. Foster, 4 Harrington's R. 479 (485). 390 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 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 could 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, 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. K, at the moment of organizing, a Convention is en- dowed with legislative powers, it may be deemed expedient to 1 B,ice V. Foster, ubi supra. HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 391 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 occumng 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, it is 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 legis- 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 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 1 For the cases establishing this construction, see ante, § 418, note. 392 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 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 provisiouj 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. It 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 preeminently 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 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 w^hich comment has already been made ; secondly, cases in which Con- ventions have undertaken, in non-revolutionary times, by ordi- HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 393 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 sitnilar 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 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 1 See ante, §§ 7-10. 394 HAS THE CONVENTION GENERAL LEGISLATIVE POWEES ? 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 is 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 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 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 395 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 Illi- nois Convention of 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 was 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 firom 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 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 396 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 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." § 432. 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 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 Constitution, Ordinance and all, with the exceptions indicated ? Did not the additional clause, giving immediate eflfect to such provisions of the Constitution as were required to be executed prior to the adoption or rejection thereof, save the Ordinance HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 397 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 cooperation 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 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- 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. 398 HAS THE CONVENTION GENERAL LEGISLATIVE POWERS? 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, reenactments by that Convention, to which alone we must look as the source of their validity ; ^ that if that body could thus reenact statutes, or continue them in force for a prescribed period only, it was idle to deny to it the right in express terras 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- 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 1 Woods V. Blanchard, 19 111. K. 40. CAN CONVENTIONS APPROPRIATE MONEY? 399 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.^ § 435. (b). 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, 1 The argument, so far as it proceeded upon the ground that the people 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. 400 CAN CONVENTIONS APPROPEIATE MONEY ? 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 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 CAN CONVENTIONS APPROPRIATE MONEY? 401 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 Illi- 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 report of its debates. The 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, 26 402 CAN CONVENTIONS APPROPEIATE MONEY ? 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 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- ditor.i 1 Act of January 28, 1863, Illinois Laws of 1863, pp. 11, 12. CAN CONVENTIONS APPROPRIATE MONET? 403 § 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- 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 404 CAN CONVENTIONS APPROPEIATE MONEY? 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, fev/ 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 ofl[i- 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 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. CAN CONVENTIONS APPROPRIATE MONEY? 405 § 441. Another instance of this kind of legislation occurred in the Convention of 1864 for the reconstruction of Louisiana. An appropriation of twenty thousand dollars was made by it from the general fund, for the support and relief of charitable institutions, to be paid in the usual manner by warrants from the auditor or the treasurer, in favor of their respective man- agers. 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, employes, 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,i 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 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. Thus far of the power of Conventions to repeal Acts of the legislature, or themselves to enact ordinary laws. 1 See ante, §§ 247-249. 406 CAN A CONVENTION ACT AS A LEGISLATURE § 442. 2. I 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 ? {b). 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 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 diiferent States should have the right to prescribe through their proper repre- TO DISTRICT THE STATE FOR MEMBERS OF CONGRESS ? 407 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 exerci"sing 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 reestablish 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 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, 408 CAN A CONVENTION ACT AS A LEGISLATURE 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, f § 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 E-evolution 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 E-evolutionary Conventions, wielding provisionally all powers whatsoever. It is worse than idle to compare our 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 TO DISTRICT THE STATE FOR MEMBERS OF CONGRESS? 409 such a body can be drawn from the fact that that Congress did or did not possess particular powers. § 44Qi^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 Conventiong.,^!.-^ 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 i make a temporary arrangement for the election of members of \ Congress, the new State must, after its admission into the I Union, be unrepresented in that body, until a State legislature I could be elected and could pass the necessary laws, — a condi- | tion involving often a considerable delay. In such cases, accord- f 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.^ /f I Besides, in one view of the subject, such action of the Terri- | tories, taken in connection with that of Congress following it, i involves no impropriety, if it is not strictly regular. Imme- diately following that clause of the Federal Constitution giving 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 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. 410 CAN A CONVENTION LIMIT A DISCRETION 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 (b). 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 maybe 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. 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 CONFIDED TO A LEGISLATURE BY THE FEDERAL CONSTITUTION ? 411 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 he 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 direction 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 destroyed. It is 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- 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 1 Deh. Mass. Conv. 1820, pp. 106-108. 412 EXPRESS POWERS OF CONTENTIONS. 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 j 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.^ § 450. 11. 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- 1 See Deh. Mass. Com. 1820, pp. 109-112. IMPLIED POWERS OF CONVENTIONS. 413 pressly granted to a Convention by a legislative Act or by a 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, 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 a j^fiori 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 414 POWERS OF CONVENTIONS RESPECTING THEIR ORGANIZATION. 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 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 is a 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.^ 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 1 Worcester's Diet, in verb. " Sergeant." POWER WITH RESPECT TO STATIONERY, PRINTING, ETC. 415 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 corresjDonding 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 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." ^ 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 legitimate 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 I Cushing's iaw) and Prac. of Lecjisl. Assemh., 2d ed., p. 131. The description quoted above is adapted from that given by Gushing of the sergeant-at-arms of a legislature. 416 POWER WITH RESPECT TO REPORTS OP THEIR DEBATES. journals there has been some doubt, though upon precedent as well ds 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 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 unmistakeable. 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 CHARACTER AND VALUE OF CONVENTION DEBATES. 417 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, 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 eminently 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- 27 418 POWER WITH RESPECT TO PRINTING. 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 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, that 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 1 On this subject, see the excellent remarks of Hon. Mr. Sergeant, President of the Pennsylvania Convention of 1837, in Deh.Penn. Conv. 1837, Vol. I. pp. 304, 305. POWER WITH RESPECT TO THE MAINTENANCE OF ORDER. 419 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 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- mentarian 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. How^ever 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, partly 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 w^hat 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. 420 POWEE WITH EESPECT TO THE MAINTENANCE OF ORDER. 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 as a 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 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 forniing 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- POWEB TO DISCIPLINE THEIR OWN MEMBERS. 421 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 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 422 POWER TO DISCIPLINE THEIR OWN MEMBERS. 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 ow^n 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. 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 ; ^ 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- 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 resorted to by those bodies in cases requiring some degree of severity. See Cushing's Law and Pract. of Legist. Assemh., p. 267. POWER OF CONVENTIONS TO DISCIPLINE STRANGERS. 423 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 Gushing 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- 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." ^ § 465. 2. In relation to the power of a Convention to vindi- 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 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. Gushing 's Law and Pract. of Legisl. Assemb. p. 250. 2 Id. p. 259. 4*24 POWER OP CONVENTIONS TO DISCIPLINE STRANGERS. 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. Gushing 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 also 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. Assetnb.^ pp. 270-272. POWER OP CONVENTIONS TO DISCIPLINE STRANGERS. 425 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. If 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 426 POWER OF CONVENTIONS TO DISCIPLINE STRANGERS. 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 POWER OF CONTENTIONS TO DISCIPLINE STRANGERS. 427 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 : — " I am here with the Provost Marshal to obey a military order 428 POWER OP CONVENTIONS TO DISCIPLINE STRANGERS. 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 sujjpress 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, PRIVILEGES OP MEMBERS OF CONVENTIONS. 429 after putting in operation all the machinery in its possession by which it could hope to accomplish that end, retired from the un- equaj 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 pow^ers inherent in all public assemblies were found insufficient to protect it from insult or to expedite its business.^ § 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 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 Deh. 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 fifty in number, I find no instance of the exercise of the power of arresting or imprisoning persons not members of those bodies, except in those whose charac- ter and proceedings were such as to rank them as Revolutionary Conventions. To this remark the instance in the Louisiana Convention of 1864, as I regard that body, is no exception. During the Revolution, the Conventions 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 Convention of 1776, concerning the arrest and imprisonment of the royal governor, William Frank- lin, in Jour. N. J. Conv., 1776, pp. 10-13, 22, 23. 430 PRIVILEGES OF MEMBERS OF CONVENTIONS. 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 great services of the nation ; they must also be always protected in the exercise of the rights of speech, 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 immunities 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 not a 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 ox. 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 1 Cushing's Law and Pract. of Legisl. Assemh.^ §§ 529, 530, 531. PRIVILEGES OF MEMBERS OF CONVENTIONS. 431 continually, armed in full 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 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. § 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. 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 niade known by preliminary discussion, when that work has been accomplished, the body eo instanti hecomes 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 deemed necessary for the Conventions themselves to perform that duty, that any 432 POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE. 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. Thus, the New Hampshire Convention of 1781, and the Pennsylvania Convention of 1789, having framed their Consti- tutions, adjourned, with a view to collect the public sense in regard to their work, and at a subsequent session adopted and put it in operation.. The Kentucky Convention of 1849, on the other hand, adjourned to a future day, in order that, in the interim, the people might vote upon the question of its adop- tion or rejection, and, on its being adopted, reassembled and put it in operation. What were the terms of the Act calling the New Hampshire Convention of 1781, I am not informed. That calling the Pennsylvania Convention of 1789, was to the effect that that body should review, and, if it should see occasion, alter and amend, the Constitution of the State ; and that " it would be expedient, just, and reasonable, that the Convention should pub- lish their amendments and alterations for the consideration of the people, and adjourn at least four months previous to confirma- tion P The Act calling the Kentucky Convention of 1849 indicated the duty and powers of that body only by enacting " that a Convention, /or the purpose of readopting", amending, or chang- ing the Constitution of the State, be called," &c. From these provisions, it was evidently the' intention of the legislatures of Pennsylvania and Kentucky that the Conven- tions should adopt definitively and put in operation the Consti- tutions 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, I conceive, it would be wholly beyond their power to prolong their existence a moment, still more to reconvene, after having once dispersed. POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE. 433 § 474. A case has lately occurred in Louisiana, involving the application of these principles, which I do not feel at liberty to pass over, although, on account of its connection with the party strifes of the day, I would gladly do so, were it not an act of cowardice to refuse to discuss a question of transcendent inter- est, coming directly vi'ithin the scope of this inquiry, because, by discussing it, I might be brought in collision with this party or with that. The Louisiana Convention of 1864 was called by General Banks, in command of the Department of the Gulf, by General Order No. 35, dated March 11, 1864. The only clause of the Order determining the powers and functions of the Convention was the following : — " I. 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 Conven- tion, to he held for the revision and amendment of the Constitu- tion of Louisiana" 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 1 Journal La. Conv., 1864, p. 170. 2 Id. p. 171. 28 434 POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE. 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 of Louisi- ana has been governed, so far as she has had a civil govern- ment at all, from the time of its adoption on the first Monday of September, 1864, up to the present time. 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- 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 joro 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, with circum- stances of atrocity unexampled in the history of our country, except amidst the passions of actual war.^ § 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 ? In my judgment, 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 1 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. 2 For the official proceedings culminating in the reassembling of the Conven- tion, see post, Appendix E. POWER OP CONVENTIONS TO PROLONG THEIR EXISTENCE. 435 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 causeP 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 a president -pro tern, 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 /or 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 ? 436 POWEE OF CONVENTIONS TO PROLONG THEIR EXISTENCE. 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 function is discharged the Convention dies — if, at its decease, it can lodge with its presiding officer, for life, a discretion to re- vive the body at his own pleasure and for his own purposes. § 478. I have thus far reasoned upon the case as though the Louisiana Convention of 1864, sought to be reassembled, was itself valid as a Constitutional Convention. Regarding it, on the contrary, as a Revolutionary Convention, according to the view taken of it in a preceding chapter,^ the aspects of the case would be materially different, and they would vary again accord- ingly as the Convention met in a State destitute of a regular government — during a reign of force — or in a State under a government established and recognized. What a revolutionary body may or may not do, it would be impossible to define. Equally impossible would it be to determine what might or might not be done against it, where force was the only law. Appealing only to force itself, it would not lie in the mouths of its members or adherents to complain, 1 See ante, §§ 250-259. POWER OF CONVENTIONS TO PROLONG THEIR EXISTENCE. 437 SO long as the force which overpowered it was not exercised with inhumanity. Whoever thought its assembling or its con- duct wrongful, would be at liberty to suppress it, using such force for that purpose as might be necessary. A fortiori, if it had been called by the President of the United States, acting, not as the administrator of the law, but as the director of the public force, limited only by his own discretion, — in other words, as the engineer of that which is but the negation of all law, that officer might undoubtedly disperse it at will. Might he not do as he would with his own ? On the other hand, if, on the 30th of July, 1866, the State of Louisiana was to be considered, in law, as restored to her con- stitutional relations to the Union, under a Constitution and government sanctioned by her own people as well as by the United States, then the attempt to reassemble the Convention of 1864 was of the same character as it would have been had that body been originally legitimate, and the State never in a revolutionary condition. On that hypothesis, the reassembed Convention was a public meeting of citizens, certainly having a right peaceably to assemble, claiming besides to be charged with official functions, and, whatever its purposes, subject only to be dealt with according to its legal character and deserts, by the State authorities. In such a case, the President of the United States could rightfully interfere with the body only when called upon by those authorities so to do, pursuant to the Acts of Congress of February 28, 1795, and March 3, 1807, which authorize him " in case of an insurrection in any State against the government thereof," to call out the militia, or to make use of the regular army to suppress the same, but only " on appli- cation of the legislature of such State, or of the executive, when the legislature cannot be convened.''^ Inasmuch, therefore, as the legislature of Louisitina did not apply to the President for aid in suppressing the unlawful Con- vention of July 29, 1866, and as the executive of the State favored the Convention, if its suppression was effected by the authority or advice of the President of the United States, as has been charged, the interference of that officer was, in my judgment, unconstitutional.^ 1 Under a resolution substantially the same as that passed by the Louisiana Convention of 1864, the North Carolina Convention of 1865 reassembled in the 438 POWER OP CONVENTIONS TO PROLONG THEIR EXISTENCE. following year, and proposed amendments to the State Constitution, which being submitted to a vote of the people were rejected. Thus the question of the validity of the act of reconvocation as well as of the reassembled body itself, was, in North Carolina, happily left, as a purely legal question, to be decided by the courts, instead of being made, as seems to have been done in New Or- leans, the pretext for wholesale proscription and murder by a mob who were opposed to the objects of the Convention. The reassembled Conventions of those States were either Constitutional Conventions or Spontaneous Conven- tions of citizens In their private capacity. In either character they were entitled to the protection of the laws, and, If charged with crime, to be tried and pun- ished by the laws. CHAPTER VII. § 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 440 SUBMISSION OF CONSTITUTIONS. 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 principles, in my judgment, perfectly clear. Obviously, a Con- vention 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 SUBMISSION OF CONSTITUTIONS. 441 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.i jj; jg Q^\y [j^ 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 i 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. 442 SUBMISSION OF CONSTITUTIONS. 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 ^a^ 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. SUBMISSION OF CONSTITUTIONS. 443 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 B. 444 SUBMISSION OF CONSTITUTIONS. 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 call a Convention," and, if in doing so, that body were to insert in its Act a provision permitting the latter to frame and put 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 well 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. K 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 PRECEDENTS RELATING TO SUBMISSION. 445 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 for that purpose, but have failed to effect it. As thus defined, the list of those bodies thus far held in the United States, comprises one hundred and fifty-two Con- ventions.i 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; 2 and, secondly, such as have proved abortive — hav- ing met and adjourned without maturing any amendments to the fundamental code — six in number.^ There would then re- main one hundred and eighteen Conventions. Of these, seventy- 1 See post. Appendix A., 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 State Conventions, held, first, to ratify the Federal Constitution, viz. : those of Pennsylvania, Delaware, New Jersey, and Georgia, 1787 ; of New Hampshire, South Carolina, Virginia, North Carolina, New York, Massachusetts, Connecticut, and Maryland, 1788; that of North Carolina (the second), 1789 ; that of Rhode Island, 1790; and that of Vermont, 1791 ; — sec- ond, to ratify State Constitutions, or parts of Constitutions, either formed by previous Conventions, or dictated by Congress, viz. : those of Vermont, 1 786, 179S, 1822, 1828, 1836, 1843, 1850, and 1857; those of Georgia, 1789 (two Conventions) ; those of Michigan, 1836 (two Conventions) ; and that of Iowa, 1846. 3 These were the Councils of Censors of Pennsylvania, 1 783, and of Ver- mont, 1799, 1806, 1813, and 1862; and the Rhode Island Convention, of 1834. 446 PRECEDENTS RELATING TO SUBMISSION. eight have submitted the fruit of their labors to the people,^ and forty 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 attend- ing those cases in virhich submission has not been made, to 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 1 The names and dates of the submitting Conventions are as follows : — 1. Such as framed first Constitutions : — Those of the United States, 1775- 81; Massachusetts, 1778; Kentucky, 1792; Tennessee, 1796; Ohio, 1802; Loui- siana, 1812; Indiana, 1816; Mississippi, 1817; Illinois, 1818; Alabama, 1819; Maine, 1819; Missouri, 1820; Michigan, 1835 ; Arkansas, 1836 ; Florida, 1839 ; Iowa, 1844; Texas, 1845; Wisconsin, 1846; California, 1849; Kansas, 1855, 1857, and 1859; Minnesota and Oregon, 1857; West Virginia, 1863; and Ne- vada, 1863 and 1864. 2. Such as were revising Conventions: — Those of Massachusetts, 1779, 1820, 1853; New Hampshire, 1778, 1781, 1791, 1850; Vermont, 1785, 1792, 1820, 1827, 1834, 1841, 1848, 1855; United States, 1787; Georgia, 1788, 1838; Con- necticut, 1818 ; New York, 1821, 1846 ; Rhode Island, 1824, 1841 (two Con- ventions), 1842; Virginia, 1829, 1850, 1861; Tennessee, 1834, 1861, 1865; North Carolina, 1835; Pennsylvania, 1837; New Jersey, 1844; Louisiana, 1844, 1852, 1864; Missouri, 1845, 1865; Wisconsin, 1847; Illinois, 1847, 1862; Kentucky, 1849; Ohio, Indiana, and Michigan, 1850; Maryland, 1850, 1864; Delaware, 1852; Iowa, 1857 ; and Texas, 1861. '^ The non-submitting Conventions are the following: — 1. Such as framed first Constitutions: — That of New Hampshire, 1775; those of South Carolina, Virginia, New Jersey, Delaware, Pennsylvania, North Carolina, Georgia, New York, and Maryland, 1776; and that of Vermont, 1777. 2. Such as were revising Conventions: — Those of South Carolina, 1777, 1790, 1861, 1865; Pennsylvania, 1789; Delaware, 1792, 1831 ; Georgia, 1795, 1798, 1861, 1865; Kentucky, 1799; New York, 1801; Mississippi, 1832, 1861, 1865; Louisiana, 1861; Missouri, 1861; Arkansas, 1861, 1864; North Caro- lina, 1861, 1865; Alabama, 1861, 1865; Florida, 1861, 1865; Virginia, 1861, >(Reconstruction), 1864 ; and Texas, 1866. PEECEDENTS RELATING TO SUBMISSION. 447 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 such 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, dm'ing the winter and spring preceding the general framing of 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 1 Adams' Works, Vol. III. p. 16. 448 PRECEDENTS EELATING TO SUBMISSION. 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, 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 PEECEDENTS RELATING TO SUBMISSION. 449 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 rea,son 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 1777, 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- 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 1 Ramsay, History of the Revolution of South Carolina, pp. 128, 129. 2 Ibid. 29 450 PRECEDENTS RELATING TO SUBMISSION. 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, 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 Carohna, held in 1790 ; those of Delaware in 1792 and 1831 ; those of Georgia in 1795 and 1798 ; that of Kentucky in 1799 ; and that of Mississippi in 1832, to withhold the Constitutions framed by them from submission to the people, I am not ad- vised. In relation to the New York Convention of 1801, it may be said, that the objects of calling that body were, — first, 1 Conventions of Pennsylvania, p. 134. PBECEDENTS RELATING TO SUBMISSION. 451 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 dispensed with. Without raising again the question as to the power of the legislature thus to authorize the Convention to act definitively,^ it is clear that the case must be ranked as an ex- ceptional 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 non-submitting Conventions, the nineteen 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, 1865, and 1866. 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 assem- bled were in a thoroughly revolutionary condition. To this remark the State of Missouri, in the period covering the exist- ence of the Convention of 1861, is no exception. Indeed, there is probably no doubt that that body was called in the interest of the Secession faction, and that, but for the determined stand taken by the Union majority, it would have carried the State, so far as a State can be carried, out of the Union. Respecting the thoroughly revolutionary condition of the other States, both at the date of their secession and at that of their reconstruction, there is no question, though at the latter, the hostile majority in the several States, under the overwhelming pressure of the Union arms, was sullenly acquiescent. Besides, at the date of the reconstruction Conventions, the electoral machinery was out of order, and the need of a reestablishment of the State organ- izations too urgent to admit of the delay necessary for submis- sion. All these reasons operated to prevent those Conventions from submitting their work to the people. In the cases of the Secession Conventions, moreover, there was doubtless an ap- 1 On this question see §§ 484-487, ante. 452 PRECEDENTS RELATING TO SUBMISSION. prehension that the bulk of the people, being unripe for the work of destroying the Union, might outvote those who were in the conspiracy to effect it. 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 inexpedient or impossible to submit their work to the people, is clearly no precedent for non-sub- mission in times of peace and constitutional order. " The ex- treme medicine of the Constitution," as wisely hinted by Burke, ought not to be made " its daily bread." § 494. Two peculiarities in the mode of submission practised in certain cases will now be noticed. 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 do.ubt that, al- though the Vermont mode is theoretically unexceptionable, PRECEDENTS RELATIVE TO SUBMISSION. 453 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 Ten-itories 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 for a 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, has 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 ConA^entions, 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. 454 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 terra "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. HI. 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. 455 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 legislation, both to provide for submission with the necessary safeguards, and to enforce by penalties the observance of its re- quirements. 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. It is not to be denied, however, that precedents have established a contrary rule. In a very large proportion of the cases in which submission has been made, it has been provided for by the Conventions themselves. Thus, of the Constitutions heretofore submitted, seventy-eight in number, this has been the case with sixty-three. In nearly one half of these cases, the Conventions acted under authority of the Constitution or of the Act of Assembly calling them, requiring them to submit their propositions to a vote of the people. In the remaining cases, those bodies acted, so far as I am advised, without direct authority of law ; in obedience, however, doubtless, to the tacit understanding, that submission should be made, which has gen- erally prevailed in the country. § 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 some 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 456 TO WHOM SUBMISSION SHOULD BE MADE. by law for submitting the same to the people, and for organizing the government under it. This provision the Convention took the liberty of disregarding; transmitted that instrument directly to the Governor, who was required to publish it, and then made particular provision for taking a vote of the people upon it on a day named. This is one of the few instances of direct disobe- dience, on the part of Conventions, to the requirements of the Acts under which they were assembled, and is, in my judgment, totally destitute of any excuse or palliation. § 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 cases of the States, the quasi sovereign bodies, to whom, by the nation at large, has been committed the exercise of sovereign rights, so far as relates to local affairs, 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 functionaries who represent the sovereign, or the respective quasi sovereigns ; or a special body must be deputed to act for them in the matter ; and, as the submission must thus, at best, be virtual, it is the duty of the authorities charged with the busi- ness of perfecting a fundamental code, to see to it that, in select- ing the representative to whom submission is to be made, one be chosen who will act therein at once the most promptly, the most intelligently, and the most honestly. 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 suffi- ciently presented, tending to show the impropriety of confiding fundamental legislation to that department which enacts our municipal laws, to that which interprets and applies them, or to that which executes them, it is apparent that the electors, the most numerous order of functionaries 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 reasonably 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 TO WHOM SUBMISSION SHOULD BE MADE. 457 numerous or so diffused as to render a collective ballot by them impracticable. By naming the electors to this office, another advantage is gained, — one of the utmost importance in 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 coun- terpoise each other. The legislature, forbidden itself to meddle with it, calls a Convention to revise the fundamental 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 functionaries, take up the projet 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 representatives. 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 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. Accordingly, of the Constitutions passed upon by authority other than that of the Conventions which framed them, the largest proportion have been submitted to the people in that sense. Thus, in twenty-five instances, the sub- mission was in general terms " to the people." ^ In twenty-three instances, it was to certain designated classes of the citizens, or of the inhabitants. Thus, fourteen Constitutions were submitted either to the " legal voters," " to the qualified voters under ex- isting laws," to those " qualified to vote for the most numerous branch of the legislature," or to those " qualified to vote for mem- bers of the Convention." ^ Four were submitted to the voters ' This was the case with the Constitutions framed by the following Conven- tions : — Those of New Jersey, 1844; New Hampshire, 1778, 1783, 1791, and 1850; Georgia, 1838; Massachusetts, 1778, 1779, 1820, and 1853; Kentucky, 1849; Tennessee, 1834; Louisiana, 1844 and 1852; Indiana, 1850; Illinois, 1847 and 1862; Maine, 1819; Michigan, 1835; Iowa, 1846 and 1857; Cali- fornia, 1849 ; Oregon, 1857 ; and Kansas, 1857 and 1859. In these instances, the Constitutions were uniformly submitted to the electors qualified to vote at general elections, under existing laws. 2 They are the following : — Those of Delaware, 1852; Louisiana, 1864; Pennsylvania, 1838 ; North Carolina, 1835 ; New York, 1821 and 1846; Ohio, 1851; Connecticut, 1818; Michigan, 1850; Texas, 1845; Wisconsin, 1846; Maryland, 1851 ; Kansas, 1855; and N'evada, 1864. 458 TO WHOM SUBMISSION SHOULD BE MADE. qualified under the proposed Constitution, or under both the old and new Constitutions,^ and two to the white male inhabitants of twenty-one years of age, &c.2 In the above are embraced many first Constitutions of States formed out of territory of the United States, and the phraseology referred to indicates the body of persons to whom, not the regular submission required by the Federal Constitution, was made, — for that, as we have seen, is always to the Congress of the United States, — but that supererogatory submission, 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 Amer- ican name in Kansas. In all cases of Territories framing their first Constitutions, as we have seen, submission can be properly made only to the people of the United States, represented in Congress, and they have all conformed, of necessity, to this rule. § 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 cases 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 submit it to the States, of which they were the representatives. This course was followed, and that instrument 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 1 These are those of Virginia, 1830, 1851 ; Rhode Island, 1842 ; and West Virginia, 1863. 2 These are those of Wisconsin, 1848; and Minnesota, 1857. 3 Federalist, No. XXIL, adjinem, per Hamilton. TO WHOM SUBMISSION SHOULD BE MADE. 4.59 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 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 legislature, for their assent and ratification." 460 TO WHOM SUBMISSION SHOULD BE MADE. 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 of submission deemed exceptional, which I shall consider, are those adopted by the Virginia Con- ventions of 1829 and 1850, by those of Rhode Island of 1842, and West Virginia of 1863. The mode adopted in those cases, substantially the same in all, was to submit the Constitution to the persons thereby qualified to vote at the general State elec- tions.^ It is evident that, in these cases, a new principle was invoked, namely, that of submitting proposed changes in the fundamental law to persons not intrusted with public functions in the State ; in other words, to citizens forming no part of the existing governmental system. Such a submission was, in my judgment, not only a novelty, but a capital innovation, upon which might hang, for the States concerned, the most weighty consequences ; and, unless the principles are misconceived, which ought to govern the subject, it was unwarranted and in the highest degree dangerous. In the first case mentioned, — that of the Virginia Convention of 1829, the Convention Act had authorized that body to submit the Constitution to such persons as should be qualified by it to vote for members of the House of Burgesses, — an authorization which, though in terms ample, it is in my judgment certain the General Assembly had no power to give. § 505. In neither of the four cases, so far as I am advised, 1 The Virginia Convention of 1829 was authorized to submit its work " to the voters thereby qualified to vote for members of the House of Burgesses ; " that of 1850, " to the voters qualified under the existing or amended Constitu- tion ; " that of Rhode Island, " to all persons qualified to vote, to all who might be qualified to vote under the existing laws previous to the time of such their voting, and all persons who should be qualified to vote under the provisions of such " (that is, the proposed) " Constitution ; " and that of West Virginia, " to all persons qualified to vote under the amended Constitution." In all these cases the class of persons entitled to vote was increased above that under the existing Constitution. TO WHOM SUBMISSION SHOULD BE MADE. 461 was the propriety of that mode of submission discussed, except in the first. In the Virginia Convention of 1829, a powerful opposition was made to it by some of the leading men in the body. But a measure which received the votes of Barbour, president of the Convention, of Marshall, Tyler, and Madison, though opposed by Leigh, Giles, Nicholas, Mason, John Ran- dolph, Tazewell, and Upshur, cannot be lightly condemned. 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 Con- vention : 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 organ- ize 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- 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, 462 TO WHOM SUBMISSION SHOULD BE MADE. 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 might 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 .... 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 TO WHOM SUBMISSION SHOULD BE MADE. 463 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 only of the electors, not representing the whole body. This latter mode was attempted, in a case already referred to, by the Illinois Convention of 1862.- 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 1 Deb. Va. Com., 1829, pp. 866, 884, 885. See also Speech of Mr. Nicholas, id. p. 891. 2 See ante, §§ 430-434. 464 TO WHOM SUBMISSION SHOULD BE MADE. portion of the inhabitants of said city and vicinity. The Ordi- nance was, moreover, incorporated into the Schedule appended to the Constitution, 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 provisions, 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. The impropriety of such a submission becomes evi- dent 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 fundamental 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 senti- ment or command of its own. It is the resultant of all the separate voices of the individuals constituting the people. When, therefore, the electors of Chicago voted upon the Ordi- nance in question, they did not utter the voice of the people of the State, in whom alone rests the power of making and un- making Constitutions, but of a minute fraction of it, having no authority to represent the whole. However respectable they were in point of numbers and intelligence, they were as desti- tute 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 England," were to speak for the latter.^ 1 To this case in Illinois it may be proper to add one or two others in prin- ciple not entirely dissimilar. The Tennessee Convention of 1834 submitted the Constitution it framed to that part of the electoral body which was white, thus NATUBE OF THE ACT OF THE PEOPLE, ETC. 465 § 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. («). 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 excluding from a voice in forming the fundamental law, the free blacks author- ized to vote by the Constitution then in force, — that of 1796. So also the Maryland Convention of 1864 submitted its Constitution to " such electors as are qualified according to the provisions of this Constitution." The qualifications were the same under this and the former Constitution, except that, by the Constitution of 1864, no person was qualified to vote but upon taking a stringent oath, intended to exclude rebels and rebel sympathizers. Whether or not this exclusion was absolutely necessary for the safety of the State, at the time, is a political question which does not concern us here. Upon strict prin- ciple, however, I have no doubt the course taken by the Convention was irregu- lar, though it has been contended that it was authorized by the terms of Section VI. of the Convention Act, which required the Constitution to be submitted to " the legal and qualified voters of the State for their adoption or rejection, at such time, in such manner, and subject to such rules and regulations as said Convention may prescribe." Admitting that the General Assembly intended by this Act to authorize a submission to the electors, minus a certain class of per- sons designated, it is doubtful whether it had the power thus to discriminate. If it had, it must be on the ground that it could override even the Constitution itself, when, in its judgment, the safety of the State required it — a ground, I need not say, extremely menacing to the public liberties. The Tennessee and Maryland cases, then, must both, in my judgment, be placed alongside of that of Illinois, described in the text, though, perhaps, the aberration from principle was in each of the former less glaring than in the latter. 30 466 NATURE OF THE ACT OF THE PEOPLE 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 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 coordinate 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 IN PASSING UPON A CONSTITUTION. 467 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. § 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- 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. It 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. 468 NATUEE OP THE ACT OF THE PEOPLE, ETC. 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, 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.^ 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 v. ColHns, 3 Mich. R 343, 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 poUtical 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 HOW CONSTITUTIONS SHOULD BE SUBMITTED. 469 § 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 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. Obsia principiis is, in such cases, the only safe maxim. K 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 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. IV., New Series, p. 12. 470 HOW CONSTITUTIONS SHOULD BE SUBMITTED. 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 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, 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 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 B. 2 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." — Deh. Mass. Conv.oi 1820, p. 224. HOW CONSTITUTIONS SHOULD BE SUBMITTED. 471 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. § 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 Stfite, 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- 472 HOW CONSTITUTIONS SHOULD BE SUBMITTED. 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.^ § 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 inhabitants, mainly emigrants from the ftee States, and desirous of establishing free- state insti- tutions therein, that instrument 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, 1 Some Constitutions contain an excellent provision, requiring submission to be made in such a manner, that each clause can be voted on separately. See Ohio Const. 1851, Art. 16, Sec. 3. It provides that "when more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately." 2 See also ante, §§ 415-418. HOW CONSTITUTIONS SHOULD BE SUBMITTED. 473 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." 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 138 " 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 474 HOW CONSTITUTIONS SHOULD BE SUBMITTED. 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 as a 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 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 25. 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 HOW CONSTITUTIONS SHOULD BE SUBMITTED. 475 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- 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 not 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, 476 HOW CONSTITUTIONS SHOULD BE SUBMITTED. 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 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 petar " — 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 PROMULGATION OP CONSTITUTIONS. 477 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. § 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 publishing 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 478 PROMULGATION OF CONSTITUTIONS. 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 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 J 783, " 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 1783. 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.^ In the two last Conventions of Virginia, in 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.^ 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. 3 It was so done in North Carolina, 1835; Texas, 1845; Wisconsin, 1848; and Iowa, 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. PROMULGATION OF CONSTITUTIONS. 479 § 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. 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 soldiers in the service 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 application 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 certain votes tendered and rejected because the required oath had not been taken, and to exclude cer- tain 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. 1 70, (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. HI. Appendix. 480 PROMULGATION OP CONSTITUTIONS. § 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- 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. CHAPTER VIII. § 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 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 31 482 AMENDMENT OF CONSTITUTIONS. 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 eflfectual 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 period, of a ripened public opinion on the subject of amending their Constitutions. There was, even in the States 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 AMENDMENT OF CONSTITUTIONS. 483 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 m§iy 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 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 I Curtis' Hist. Const. U. S., Vol. I. pp. 261-264. 484 AMENDMENT OF CONSTITUTIONS. legislative authority, the legal exponent of the will of the ma- jority, which alone is entitled to the force of law.^ The mode usually employed is that of summoning a Convention ; and it is doubtful if any means are legitimate for the purpose indi- cated but Conventions, unless employed under an express war- rant of the Constitution. The idea of the people thus restrict- ing themselves in making changes in their Constitutions is orig- inal, and is one of the most signal evidences that amongst us liberty means not the givirig of rein to passion or to thought- less 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 fundan*elltal codes, they have adverted to an opposite danger, 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.^ This problem can- 1 See Curtis' Hist Const. U. S., Vol. I. pp. 261-264. 2 Mr. John Stuart Mill thus states the problem : — " Ko 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 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." DIFFERENT MODES OF AMENDING CONSTITUTIONS. 485 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 provisions 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 compelled to accept any one of a score of Constitu- tions now in force amongst us, without modification, save in unimportant particulars depending on provisions merely local in effect. § 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 devised : first, that by the agency of Conventions ; and, sec- ondly, that by the agency of our General Assemblies, without Conventions — both regularly followed by a ratification by the people. Of the whole number of our Constitutions to which I have had access,^ forty-four have contained provisions for making amendments through Conventions, and forty-three through the intervention of the legislature, — commonly called the specific mode, from the fact that it is used for effecting specific amend- ments, generally few and relatively unimportant. Of the forty- four which have provided for Conventions, twenty have provided also for amendments by the specific mode, so that these latter figure in both lists. Stating the result in another way, twenty- four Constitutions have contained provisions a thorizing the call I The number of Constitutions is obviously less than that of Conventions, since many of the latter have framed no Constitutions, but only amendments, of so little importance that they have not been incorporated in their respective Constitutions, but merely appended to them ; and many which have framed so- called Constitutions have been revolutionary bodies, for which reason the results of their labors have been repudiated as of no validity, and I make no account of them. A considerable number of Constitutions, moreover, known to exist, I have not been able, after much research, to find at all. I have succeeded in ferret- ing out about eighty, referred to in the next succeeding note. 486 PRECEDENTS. of Conventions only ; twenty -three, authorizing the enactment of amendments in the specific mode only ; and twenty, in both modes. Beside these, ten Constitutions known to me have contained no provision whatever relating to the subject ; and one, that of Georgia of 1777, contained provisions for that purpose, but of what nature I have been unable to ascertain.^ § 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 specific 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 Constitu- tions adopting one mode and some the other ; but, for the first 1 The Constitutions comprised in the various classes indicated, with the dates at which they were framed, are shown in the following lists — reckoning as Constitutions as well amendments as complete revisions : — 1. Constitutions which have authorized amendments through Conventions only: — Those of Pennsylvania, 1776; Vermont, 1777, 1786, 1793, 1822, 1828, 1836, 1843, 1850, and 1857 ; Georgia, 1789 ; Kentucky and New Hamp- shire, 1792; Tennessee, 1796 ; Kentucky, 1799 ; Ohio, 1802; Louisiana, 1812; Indiana, 1816 ; Illinois, 1818 ; Iowa, 1846 ; Kentucky, 1849 ; New Hampshire, 1850; Maryland, 1851 ; Kansas, 1857. 2. Constitutions authorizing amendments in the specific mode only : — Those of Maryland and Delaware, 1776; the Articles of Confederation, 1781; the Constitutions of Georgia, 1798 ; Connecticut, 1818 ; Alabama and Maine, 1819 ; Missouri, 1820; Massachusetts and New York, 1821; Mississippi, 1832; Ten- nessee, 1834 ; Arkansas, 1836 ; Pennsylvania, 1838 ; Rhode Island, 1842 ; New Jersey, 1844 ; Louisiana and Texas, 1845 ; Missouri, 1846 ; Indiana, 1851 ; Louisiana, 1852; Oi-egon, 1857; Missouri, 1865. 3. Constitutions authorizing amendments in both modes : — Those of the United States, 1787 ; Delaware, 1792 and 1831 ; and Michigan and North Car- olina, 1835; Florida, 1839; New York and Wisconsin, 1846; Illinois, 1847; Wisconsin, 1848; California, 1849; Michigan, 1850; Ohio, 1851; Massachu- setts, 1853 ; Kansas, 1855 ; Minnesota and Iowa, 1857 ; Kansas, 1859; Illinois, 1862 ; West Virginia, 1863. 4. Constitutions containing no provisions on the subject : — Those of Virginia, New Jersey, North Carolina, and New Hampshire, 1776; New York, 1777; New Hampshire, 1779 and 1783; Pennsylvania, 1790; and of Virginia, 1830 and 1851. EXCELLENCES AND DEFECTS OF THE MODE BY CONVENTIONS. 487 sixty years, only two authorizing both modes, that of the United States of 1787, and that of Delaware of 1792. During the period beginning with 1830 and ending with 1865, however, nine Constitutions have provided for amendments by Conven- tions only, twelve in the specific mode only ; and nineteen in both modes, showing a growing conviction that the specific mode has advantages which make its more general adoption seem desirable, and yet that it alone is not adequate to the ex- igencies of the times, but needs to have coupled with it a pro- vision for a Convention when the people should deem it necessary or expedient to make a general revision of the Constitution. § 532. II. 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 any time to amend their Constitutions 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. 488 EXCELLENCES AND DEFECTS OP THE MODE BY CONVENTIONS. § 533. The readiest mode of preventing these evils is either to increase the majority required to call a Convention, or to compel the submission of the legislative Act, passed for that purpose, to the people, before it shall take effect. 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 a reform of the fundamental code be really needed, men of all parties will admit the fact, or enough men in all parties to carry 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 a priori considerations, but from experience. What that mean has generally been in the practice of the several States, will be seen further on. § 534. The second check, which is found in a submission of the question of calling a Convention to the people, seems more 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 organ- ization, may more fairly be presumed to be those of the political society than those of any body less numerous and further re- ;' moved from it ; and, therefore, whenever the electors have '(iassented 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 be by a passion that is national. 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- EXCELLENCES AND DEFECTS OF MODE BY CONVENTIONS. 489 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 such 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 houses, by the provisions of which a Convention was to be called, withotit 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, " without first having taken the 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- 490 CONSTITUTIONAL PROVISIONS 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. The provisions of our Constitutions relating to this subject are of three varieties : first, such as look to a periodical expres- sion of the sense of the people on the question of calling a Con- vention ; secondly, such as look to a vote of the people on the question, whenever the legislature should have declared it ad- visable that a Convention should be called ; and, thirdly, such as restrict the calling of a Convention within defined bounds and in negative terms — all three varieties, however, with two exceptions, to be hereafter noted, vesting the power to call only in the legislature. 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. New Hampshire, in her^ Constitution of 1792, adopted the same term, 1 For the whole of this very valuable document, see Appendix B. 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 Constitution needs amendment." — Letter to John Brown (of Kentucky), dated Aug. 23, 1785, Madison's Works, Vol. I. p. 177. FOE CALLING CONVENTIONS. 491 and has preserved it in all her subsequent revisions. The same plan, but with a different period, has been adopted by other States. Thus, the Wisconsin Constitution of 1846 authorized a vote of the people on the question every tenth year, and that of Indiana, of 1816, every twelfth year. In many cases a par- ticular year has been named in which a vote of the people was to be taken. The Georgia Constitution of 1789 authorized such a vote in 1794 ; that of Massachusetts of 1780, in 1795 ; and that of Kentucky of 1792, at the two successive elections in 1797 and 1798. The New York Constitution of 1846 pro- vided for taking the sense of the people in 1866 and every twen- tieth year thereafter; that of Vermont of 1777, in 1785 and every seventh year thereafter ; that of Massachusetts of 1853, in 1873 and every twentieth year thereafter ; that of Ohio of 1851, in 1871, and every twentieth year thereafter ; ^ that of Michigan of 1850, in 1866, and every sixteenth year thereafter ; and that of Iowa of 1857, in 1870 and every tenth year thereafter. The last two Constitutions added a provision that a vote of the peo- ple upon the question of calling a Convention might also be taken at such other times as the legislature might by law pre- scribe. The Maryland Constitution of 1851 contained a pro- vision similar to those last named, making it the duty of the legislature, at its first session immediately succeeding the re- turns of every census of the United States thereafter taken, to pass a law for ascertaining the sense of the people in regard to calling a Convention for altering the Constitution. A novel provision for calling a Convention was made in the Massachu- setts Constitution of 1853, beside 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 Commonwealth, whether a Convention should be called accordingly, saving, however, the power of the 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 re- newed once in about twenty years. See his Letter of July 12, 1816, to Samuel Kercheval, Jefferson's Works, Vol. VII. pp. 9-17. 492 CONSTITUTIONAL PEOVISIONS legislature to take action for calling a Convention without such request, as before practised in the Commonwealth. § 536. 2. The second variety, namely, that which looks to a vote of the people upon the question of calling a Convention, whenever such a step should seem to the legislature to be ad- visable, is exemplified in nearly all the other Constitutions which contain any provision on the subject. In this class of cases, it is obvious that the facility with which changes in the organic law can be effected is lessened. The legislature must first favor those changes ; and that body, elected under the ex- isting Constitution, may be opposed to any change. At all events, the legislature is a less numerous body than the electors, more liable to be swayed by passion or interest, and farther re- moved from the original source of all authority, the sovereign political body. But, on the other hand, the legislature is the creature of the electors. It may delay, but, as our Constitutions now regulate the suffrage, it cannot ordinarily long prevent such amendments as public opinion should have pronounced desir- able. In a majority of cases, the provisions in question are to the effect that, whenever two-thirds of each house,i or of all the members elected to each house,^ shall concur in the expediency of calling a Convention to revise the Constitution, they shall cause a vote of the people to be taken on the subject at the next general election ; and, if a majority of the people should vote in favor of such Convention, then the legislature, at its next session, shall call one. In a few cases, the provision has been for a vote of the people on the recommendation of " two-thirds of each house of the General Assembly," which has been held to mean two-thirds of a quorum of each house.^ In several instances only a majority vote has been required in the legislature, sometimes of the two houses,* sometimes of all the 1 This was the provision in the following Constitutions: — Florida, 1839; California, 1849 ; and Minnesota, 1857. A similar provision appears in the Federal Constitution of 1787. 2 This provision appeared in the following Constitutions : — - North Carolina, 1835 ; Ohio, 1851; Illinois, 1847 and 1862; and Kansas, 1857 and 1859. 3 State V. M'Bride, 4 Mo. R. 303 ; Green v. Waller, 32 Miss. R. (3 George) 650. The Constitutions in which this phraseology is used are those of Tennes-. see, 1796, and Ohio, 1802. 4 Constitutions of Wisconsin, 1848; and West Virginia, 1863. FOR CALLING CONVENTIONS. 493 members elected to both houses,^ and sometimes, inferentially, a majority only of a quorum, — the phraseology being simply, that " whenever the General Assembly shall deem a Convention desirable," &c.2 § 537. 3. The cases comprised in the third variety are less numerous, namely, those in which restrictioias have been im- posed upon the call of Conventions, in negative terms. In most of the cases referred to, the restriction relates to the call- ing of Conventions without the concurrence of a vote of the people, or without a specified majority in the General Assembly. Thus, in the Constitutions of Delaware of 1792 and 1831, it was provided, that no Convention should be called but by the concurrence of the people, to be expressed, as the context shows, by a vote of the electors at an election held for that purpose. The North Carolina Constitution of 1835, and that of Florida of 1839, provided, that no Convention should be called unless by the concurrence of two-thirds of all the members elected to each house of the General Assembly. The first Constitution of Kentucky of 1792 authorized the call of a Convention, pro- vided the people should vote in favor of it, at the elections to be held in the years 1797 and 1798, and then added the restriction, that if it should appear, upon the ballot of either year, that a majority of the citizens voting for representatives was not in favor of a Convention being called, it should not be done, until two-thirds of both branches of the legislature should deem it ex- pedient. The Constitution of West Virginia, framed in 1863, surpasses all others in the number and rigor of its restrictive clauses. No Convention is to be called, " having power to alter the Constitution of the State," unless in pursuance of a law to take the sense of the people on the question of calling a Convention. No members of a Convention are to be elected until one month after the result of the poll shall have been as- certained 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 un- til they are ratified ; and in no event are they, by any shift or device, to be made to have any retrospective operation or 1 Constitutions of Kentucky, 1799 and 1849; and Louisiana, 1812. 2 Constitutions of Iowa, 1846 ; and Delaware, 1831. See State v. M'Bride, 4 Mo. R. 303 ; Green v. Waller, 32 Miss. E. (3 George) 650. 494 MODE OP AMENDING CONSTITUTIONS effect. A special interest attaches to the cases comprised in this variety, on account of an important constitutional question, considered elsewhere, to which they give rise, namely. Whether, under those instruments, amendments can be effected in any mode, or by any instrumentality, not pointed out by them ? ^ § 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 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 1 See j90si, §§564-574. THROUGH THE ACTION OF THE LEGISLATURE. 495 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 !iigher gifts, and wider experience and study, thus threatening to unsettle the balance of the Constitu- tion.i § 540. With proper safeguards, and under adequate checks, however, a legislature, as we have said, may be invested with the power of fundamental legislation without endangering the safety of the state. In point of convenience, such an arrangement possesses many claims to acceptance. The calling of a Conven- tion is a measure attended commonly by much delay and ex- pense, and is often compassed by very great difficulties. Reforms would often be foregone rather than resort to means so incon- venient. The amendments to our Constitutions are very com- monly 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 representation ; 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 facilitate 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 adapted ; and it is adapted to no Other. It ought to be confined, in my judgment, to changes which are simple or formal, and, therefore, of comparatively small importance. For a general revision of a Constitution, or even for single propositions involving 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 1 See Hildreth's Hist. U. S., Vol. I. 2d Series, p. 231 ; remarks of the author upon the South Carolina Constitution of 1790. 496 MODE OF AMENDING CONSTITUTIONS it assumes to call a Convention. They consist of increased majorities, of repeated votes, and of publication and submission to the people. In many cases, as we shall see, all of these de- vices 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 forty odd Constitutio'ns which permit amend- ments by the specific mode, — that is, by combined legislative and popular action, without a Convention, — eleven contain substantially the following provision, copied from the Missis- sippi Constitution of 1832, which, in that particular, was doubt- less modelled after that of the United States.^ " Whenever two-thirds of each branch of the legislature shall deem any change, alteration, or amendment necessary to this Constitution, such proposed change, alteration, or amendment shall be read and passed by a majority of two-thirds of each house respectively, on each day, for three several days. Public notice thereof shall then be given by the Secretary of State, at least six months preceding the next general election, at which the qualified electors shall vote directly for or against such change, alteration, or amendment ; and, if it shall appear that a majority of the qualified electors voting for members of the legislature shall have voted for the proposed change, alteration, or amendment, then it shall be inserted by the next succeeding legislature as a part of this Constitution, and not otherwise," There are minor differences in the several Constitutions of this class. Thus, the restrictive clause at the end is not usually inserted. The other points of difference relate to the majority of the legislature required to recommend a change, and the length of the notice to be given. Thus, in the Constitutions of Louisiana, 1845, and Ohio, 1851, the vote required was three- fifths of the members elected to each house ; in that of Louisi- ana, 1864, it was a majority. In the others it was two-thirds. The length of time required for the notice to the people was generally three instead of six months. Th-at of Louisiana of 1864, however, required only thirty days, and those of Michigan 1 The Constitutions referred to are the following : of Mississippi, 1832 ; Maine, 1819: Wisconsin, 1846 and 1848; California, 1849; Michigan, 1850; Louisiana, 1845, 1852, and 1864; Ohio, 1851 ; and Kansas, 1859. THROUGH THE ACTION OP THE LEGISLATURE. 497 of 1850, and of Maine of 1819, no notice at all. In the Kansas Constitution of 1859, the notice of three months was required to be given by publication in at least one newspaper in each county in the State where a newspaper was published. § 542. Of the Constitutions referred to, twenty-five contained provisions in the main similar to the following taken from the Connecticut Constitution of 1818: — " Whenever a majority of the House of Representatives shall deem it necessary to alter or amend this Constitution, they may propose such alterations or amendments ; which proposed amendments shall be continued to the next General Assembly, and be published with the laws which may have been passed at the same session ; and if two-thirds of each house at the next session shall approve the amendments proposed, by yeas and nays, said amendments shall, by the Secretary, be transmitted to the town clerk in each town in this State, whose duty it shall be to present the same to the inhabitants thereof, for their con- sideration, at a town-meeting, legally warned and held for that purpose ; and, if it shall appear in a manner to be provided by law, that a majority of the electors present at such meetings shall have approved such amendments, the same shall be valid, to all intents and purposes, as a part of this Constitution." ^ The initiation of amendments by this plan, it will be ob- served, is confined to the House of Representatives. In most of the Constitutions of this class, however, the right originally to propose them is given to either house of the General Assem- bly, or simply to the General Assembly ; after which, if they are agreed to by the requisite majority of each house, they are referred to the General Assembly next to be elected, and pub- lished, &c. In several instances the final act of submission to the people is dispensed with.^ As in the class last noted, there are considerable differences in respect of the majorities and the 1 The Constitutions embraced in this class are, — of Maryland, 1776 ; South Carolina, 1790; Delaware, 1792 and 1831 ; Georgia, 1798 ; Connecticut, 1818 ; Alabama, 1819; Missouri, 1820; Massachusetts, 1821 and 1853; New York, 1821 and 1846; Michigan, 1835; Tennessee, 1834; Arkansas, 1836; North Carolina, 1835; Pennsylvania, 1838; New Jersey, 1844; Rhode Island, 1842; Texas, 1845; Illinois, 1847 and 1862; Iowa and Oregon, 1857; and West Virginia, 1863. 2 As in that of Maryland, 1776; South Carolina, 1790; Georgia, 1798; Delaware, 1792; and Florida, 1839. 32 498 MODE OP AMENDING CONSTITUTIONS length of notice required in the various cases, and in other minor particulars. In eight of the cases, both votes of the two houses — that preceding and that following the publication of the proposed amendments — were to be of two-thirds of each house,! a^f^(j j^ eight they were to be of a majority of the same.^ In two cases the votes were to be, the first of two-thirds, and the second of three-fourths ; ^ in two they were to be, the first of a majority, and the second of two-thirds;* in two, these last fractions were reversed;^ and in one, the first was to be of three-fifths and the second of two-thirds.^ In two cases, on the votes in the legislature, there were to be a majority of the Sen- ate and two-thirds of the House.'^ 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. § 543. There are a few cases which are not reducible to any 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 diminished, without the consent of five parts in seven of the Assembly, and seven members of the Legislative Council." ^ The Articles of Confederation provided, Article XIIL, that 1 South Carolina, 1790; Georgia, 1798; Alabama, 1819; Missouri, 1820; Michigan, 1835; Arkansas, 1836; Florida, 1839; and Texas, 1845. 2 New Jersey, 1844; Pennsylvania, 1838; New York, 1846; Khode Island, 1842; Indiana, 1850 ; Iowa and Oregon, 1857; and West Virginia, 1863. 3 Delaware, 1792 and 1831. 4 New York, 1821; Tennessee, 1834. 5 Illinois, 1847 and 1862. 6 North Carolina, 1835. 7 Massachusetts, 1821 and 1853. 8 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. THROUGH THE ACTION OF THE LEGISLATURE. 499 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. It 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 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 ConstUulion. Justly admiring the English Con- stitution, and naturally entertaining great solicitude for the public safety during the perilous times through which we were lately passing, 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- mallj' 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. Wlien 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 peaceful labors of the legislator produce changes that touch radically the passions or the interests of men. Force 500 MODE ADOPTED IN PENNSYLVANIA AND VEEMONT. § 544. It has already been observed that, generally, whichever mode of amending Constitutions is adopted, the intervention of the legislature is required. It 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 are exceptions, however, in the cases of the Pennsylvania Constitution of 1776, and of the several 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 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 in, because of slight importance — not such as ai*e vital to powerful interests, against which they are aimed, or which, at least, they will most injuriously affect. MODE PROPOSED IN MASSACHUSETTS IN 1853. 501 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 has been retained until this day. Although, at an early day, this Council did an essential service to the cause of constitu- tional government in Vermont, by the faithfulness Avith which it discharged certain censorial duties committed to it by the Constitution, and has been instrumental in initiating some very important constitutional changes, still, on the whole, it cannot be regarded as a success. Of late years, it has been found to be too inflexible, serving rather as a shield to protect, than as a sword to cut down, abuses, and will hence, probably, ere long, give place to some scheme by which the public will can be more certainly reflected. It is doubtful, moreover, whether the election, once in seven years, of a Council for the purpose, among others, of proposing changes in the Constitution, if deemed ab- solutely necessary, is not practically to hold out inducements to recommend changes whether really necessary or not. If no sub- stantial reform is demanded by the people, a desire to magnify their office is likely to lead the Council to propose amendments of a trivial and unimportant character, lest there should seem to be in them a want either of critical acumen, or of zeal for the public good. § 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, Mr. 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 1W8, relat- ing to the calling a Convention of delegates of the people for 602 NATURE OF THE ACT OF A LEGISLATURE 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.^ 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. § 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 1 Deh. Mass. Conv. 1853, Vol. III. p. 118. WHEN IT PARTICIPATES IN AMENDING A CONSTITUTION. 503 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 law, 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 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 604 NATUEE OF THE ACT OF A LEGISLATTJEE 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 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 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. WHEN IT PAETICIPATES IN AMENDING A CONSTITUTION. 505 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 oflfering 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, in a discussion of a report of a committee on the subject of future amendments by the specific 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 make 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 506 EXTENT OP THE POWER OF A LEGISLATURE districts, than from large ones. This was not an exercise of leg- islative power — it was only referring to some branch the jpower of making propositions to the people.''^ ^ 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 pro])osing amendments was not a subject of legislation, and there ivas 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, as 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 to 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 of the work of a Convention." ^ It being a matter of interest to know what snch Acts were, if not Acts of legislation, the speaker thus explained his views on that subject : — 1 Deh. Mass. Conv. 1820, p. 407. 2 M. 405. 3 Deb. Va. Conv. 1829, p. 887. TO RECOMMEND SPECIFIC AMENDMENTS. 507 " 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 denominated the specific mode, I shall content my- self with considering one or two cases which have actually arisen in our courts, and with a few observations upon them. 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 II., 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." 1 Deb. Va. Conv. 1829, p. 887. 508 EXTENT OF THE POWER OF A LEGISLATURE 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 1st 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 oflFence, 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. 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 II.) 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 TO RECOMMEND SPECIFIC AMENDMENTS. 509 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, quoad 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 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- 1 The State v. Cox, 3 English's R. 436. 2 Eason v. The State, 6 English's R. 481. 510 EXTENT OP THE POWEE OF A LEGISLATURE. 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." ^ § 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 of law, " expressio unius est exclusio alterius^'' shall not obtain, as a rule 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 ail 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 1 Eason v. The State, 6 English's R. 481 (490). TO EECOMMEND SPECIFIC AMENDMENTS. 511 of its general power of legislation, contrary either to the rights retained, the powers delegated, or the other provisions contained in this Bill of Rig-hts, 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 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 512 SHOULD SPECIFIC AMENDMENTS 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. I 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, w^hether 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 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 fall 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- 1 cussion in Congress, and once of adjudication in the Supreme V 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 1 See ante, §§ 547-550. BE SUBMITTED TO THE EXECUTIVE? 513 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. I. 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 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.^ ^ 1 See Speech of Senator Trumbull of Illinois, in the Senate of the United States, in Daily Globe for Feb. 8, 1865. See also HoUingsworth v. Virginia, 3 Dall. R. 378. 2 Ibid. 33 514 SHOULD SPECIFIC AMENDMENTS The question we are considering was passed upon by the Supreme Court of the United States, in the case of Hoilings- 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 lansfuage of the first article of the Constitution, above given, was mainly relied upon ; and to the argument of the op- posing counsel, 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 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 : — I 3 Dall. R. 378. BE SUBMITTED TO THE EXECUTIVE ? 515 " On motion that the Con:imittee 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 Illinois, 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 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, 516 SHOULD SPECIFIC AMENDMENTS 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.^ § 560. On the other hand, 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 1 Daily Globe for Feb. 8, 1865, Speech of Senator Howe of Wisconsin. BE SUBMITTED TO THE EXECUTIVE ? 517 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 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, specific 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 1 Daily Globe for Feb. 8, 1865, Speeches of Senators Trumbull and Johnson. 518 SHOULD SPECIFIC AMENDMENTS 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- 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 holdhig the election, and no action on the 1 The pi'actice is the same in Alabama, though there the Constitution is submitted to the people between the two successive legislatures. See Collier v. Frierson etal., 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." BE SUBMITTED TO THE EXECUTIVE? 619 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 two Constitutions — that of Delaware of 1792, and that of Louisiana of 1845. By the former, it was 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 v^lid 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. 1 For the facts stated in this section I am indebted to the Secretaries of State of the several States mentioned therein. 520 WHEN A LEGISLATURE HAS ONCE REJECTED AN AMENDMENT § 563. IV. There arose in 1865, on the side of the State legislatures, a question whether, when an amendment had been constitutionally proposed to them by Congress, and one of those bodies had passed upon it in the negative, it was competent for a subsequent legislature to reconsider and reverse that action. The question arose in Kentucky, the legislature of that State having rejected the amendment abolishing slavery throughout the United States. From the nature of the case there was no decision having the force of" a precedent ; but the legislature laying before the Governor its resolution of rejection, that officer returned to it a communication in which, after expressing his opinion that its action was complete without his approval, he asserted, in very forcible terms, his conviction that its act reject- ing the resolution only remitted the question to the people and the succeeding legislature, and no more precluded future ratifi- cation than the refusal to adopt any other measure would pre- clude the action of its successors. After citing the terms of the Federal Constitution, which declared amendments proposed by Congress to be valid to all intents and purposes as parts of that instrument, " when ratified by the legislatures of three-fourths of the several States," &c., he continued : — " When ratified by the legislatures of the several States, the question will be finally withdrawn, and not before. Until rati- fied, it will remain an open question for the ratification of the legislatures of the several States. When ratified by the legisla- 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." ^ y/ Although the subject is not free from difficulties, it is prob- able that the foregoing will be accepted as the true construction of the fifth article of the Constitution. It could hardly have been unintentional, that the contingency of a rejection of the proposed amendment by one or more States was left unprovided for ; and it would seem a stretch of power to interpolate into that article a provision, that if rejected by one legislature or by three-fourths or even all of the legislatures, such action should be i Message of Governor Bramlette of March 1, 1865, to the Kentucky Legis- lature. PROPOSED BY CONGRESS, CAN IT RECONSIDER? 521 taken to be definitive. On the contrary, it is reasonable to sup- pose the Convention intended to give to dissenting legislatures an opportunity to recede from an application of their negative which circumstances might show to be hasty and disastrous. § 564. V. Before concluding the discussion of the doctrine of amendments to Constitutions, I propose further to consider a question, already several times alluded to in preceding pages, but particularly germane to the subject now in hand, namely, whether, when a Constitution contains a provision for effecting its own amendment, in either of the modes above mentioned, another and a different mode can be adopted, or whether the constitutional provision must alone be pursued for that pur- pose ? 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 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. In my judgment, 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 dii'ect and palpable violation of the paramount law of the State, and would, therefore, bind neither the magistrate nor the citizen ; it 1 Ante, § 537. 522 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT, would be an act of revolution. This is too plain for argument; and, in my view, all cases depending on provisions of a similar character are to be governed by the same considerations. § 565. 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- 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 1 For the arguments relating to this subject in the Convention, by which the above statements are confirmed, see Elliott's Deh., Vol. V. pp. 352-356, 499-502, 532-534. CAN ANOTHER MODE BE PURSUED? 523 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. § 566. 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 he altered, changed, or diminished, without the consent of five parts 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. 524 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT, 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. § 567. 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 and as they pleased. The reasoning, in brief, by which this re- markable proposition was sustained, was comprised in these political axioms, resulting, as he claimed, "from the nature of man : " first, that all powers of government 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." ^ § 568. So, in reference to the Maryland case, the Hon. Rev- erdy Johnson, United States Senator from that State, in a late 1 Appendix to Vol. XXXVII. of the Congressional Globe, p. 188. CAN ANOTHER MODE BE PURSUED? 525 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 '51 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." ^ § 569. Two points involved in these extracts deserve consid- eration. 1. The right is claimed for the people to establish and to 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 1 Letter to William D. Bowie and others, dated Oct. 7, 1864, published in the N. Y. Daily Tribune of June 5, 1865. 626 IP THE CONSTITUTION PEOVIDES ONE MODE OP AMENDMENT, 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 of 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 legal — a contradiction, which we have 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. § 570. 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 to do. 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 not be productive of all the valuable purposes intended by a revision, nor be so satisfac- tory and agreeable to our constituents; and that it would be CAN ANOTHER MODE BE PURSUED ? 627 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 Asseipbly, 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." § 571. 2. The second case is that in which the terms of the constitutional provisions relating to amendments are permissive merely, without words restricting them to prescribed modes. In this case, upon authority certainly, and I think also upon principle, it is competent for the people, at the instance and through the ministry of the existing government, to amend their Constitution either in the mode presented or in such other mode as custom may have sanctioned, and as sound statesmanship may, under all the circumstances, approve. In my judgment, however, to render such action safe, or, consequently, legitimate, both these conditions should concur. Looking first at the precedents, it has been seen in a former chapter, that several instances have occurred in which Conven- tions have been called by the legislatures of States under the circumstances indicated. In those cases, constitutional provis- ions permitting amendments to be made in a particular manner or at a fixed time, through the agency of the legislative branch, had been found or fancied to be inadequate, because they either required to effect that object too large a majority of that branch or of the people, or authorized them to be made at a time too remote, so that the practical consequence was a closing of all legal avenues to change. Seeing no alternative to a resort to 528 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT, force but the calling of a Convention, under the sanction of law, that course has by preference been pursued, not always without doubt or protest, though generally with the consent of the wise, to which time has commonly added the acquiescence of all. It is unnecessary to do more than merely to state that Conventions have been thus called in some of the most important States in the Union. Amongst these were the Conventions of New York, 1846, Louisiana, 1852, Massachusetts, 1853, and Missouri, 1845 and 1861. f § 572. 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 vindicate their claim to be recognized as lawful assemblies. The seventy odd years of our constitutional history, indeed, have rendered it quite clear that it would have been wise in our earlier 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 I only at times definitely fixed, but whenever it should seem to I them advisable so to do. In popular governments, it is the part \ of wisdom to recognize the fact, that what the people strongly \ desire they are likely in some manner to effect. If the attain- \ ment 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, in the States, by the Federal Constitution, to do whatever they please, restric- tions 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. § 573. Viewed upon principle, the question I am considering turns mainly on the applicability of the legal maxim, expres- sio unius est exclusio alterius, to the construction of constitu- tional instruments. Were there no authority upon the point, it would be doubtful whether, in dealing with great questions of politics and government, the same maxim ought to prevail which regulates the construction of contracts between man and man. As a matter of speculation, it may be admitted that that CAN ANOTHER MODE BE PURSUED ? 529 maxim expresses the weight of probability equally in cases of great and of small magnitude. But there is always a doubt ; and between the cases indicated there is this wide difference, that in ordinary contracts, it is possible to enforce the construc- tion which our courts shall pronounce the true one ; whilst in the case of constitutional provisions, regulating great organic movements, and presenting barriers to the attainment of what the people generally desire, to hold such a maxim applicable would be, in many cases, to make that revolutionary which per- haps was not so. "Where the intention of the framers of the Constitution is doubtful, the people, assuming power under the broader construction, should have the benefit of the doubt ; and that all the more, because, in opposition to them, our courts are comparatively powerless. If a largely preponderating majority favored a change, they would, as above said, be likely to effect it, right or wrong. It is infinitely better that, where no prin- ciple is violated, a Constitution should be so construed as to make their action legal rather than illegal. However this may be, it has been ruled by high judicial authority that the maxim, expressio unius est exclusio alterius, is applicable, as I have contended, rather to deeds and contracts between private individuals than to the provisions of a Consti- tution.i § 574. On the other hand, it must be admitted, there is authority to the contrary in an opinion already referred to, delivered in 1833, by the judges of the Supreme Court of Massachusetts. The Massachusetts Constitution of 1821 had made provision 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 Constitu- tion 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 partic- 1 See Barto v. HImrod, 4 Seld. R. 483. 2 Chapter III. Article 11. of the Constitution, provided as follows : — " Each branch of the legislature, as well as the Governor and Council, shall have 34 530 IF THE CONSTITUTION PROVIDES ONE MODE OF AMENDMENT, ular 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 im- plication arises against the existence of any other power, under the Constitution, for the same purposes." ^ § 575. Noting that the judges rest their opinion merely upon implication, thus substantially deciding that the maxim, " ex- pressio unius est exclusio alterius,"^ does apply to the construction of Constitutions as well as to deeds and other contracts between man and man, I shall merely add that, notwithstanding that opinion, a Convention was called in 1853, under the same Con- stitution, and that although its constitutionality was denied by some of the delegates, it was most ably vindicated by the fore- most legal minds in the body, including such names as Choate, Parker, and Marcus Morton, — the latter, one of the judges who rendered the opinion. On the other hand, the constitu- tional amendments framed by the Convention of 1853 were all rejected by the people, though only by a majority of about 4000 in a vote of 140,000. Of the probable grounds for this adverse vote I am not advised ; and in the absence of evidence it is as fair to presume it arose from hostility to the measures as from doubt of the constitutional validity of the Convention. § 576. "Whether the principles announced in the last five sections are applicable to the case of amendments to the Fed- eral Constitution, admits of considerable doubt. The fifth Article of that Constitution provides, that " the Congress, when- authority to require the opinions of tlie Justices of the Supreme Judicial Court upon important questions of law, and upon solemn occasions." 1 For the whole opinion of the judges, see Appendix C, post. This opinion, it will be observed, was given at an early day in the history of the post-Rev- olutionary Conventions. Precedents have since then established a different rule. CAN ANOTHER MODE BE PURSUED ? 531 ever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution ; or, on the applica- tion of the legislatures of two-thirds of the several States, shall call a Convention for proposing amendments." These provis- ions, though in terms imperative, are not restrictive, and, there- fore, are to be classed with the variety above styled permis- sive, as contrasted with such as contain negative terms. Judg- ing by the general rule of construction shown to obtain in reference to Constitutions, then, it would seem clear, that the national legislature might call a Convention, on its own motion, by the action of a majority of both houses, followed by the approval of the President of the United States — the constitu- tional provision merely requiring that it shall do so " on the application of the legislatures of two-thirds of the several States," which evidently is not exclusive of other cases. Without entering at any great length into the discussion of this question, it may be said, in opposition to the view just indicated, that there is a difference between the Federal and State Constitutions in respect of the derivation of powers by implication. We have seen that Congress, the legislature of the Union, possesses only such powers as are expressly given to it, and as are necessary to the execution of its express powers ; while the legislatures of the States have general powers of legislation, save where restrictions have been imposed. Upon this difference is founded the doubt suggested in respect to the power of Congress to initiate amendments or to call a Conven- tion, under conditions varying from those set forth in the fifth Article of the Constitution. The provision, that in a contin- gency particularly specified. Congress shall call a Convention or propose amendments, cannot, perhaps, without a reversal of the rule of construction heretofore applied to the Federal Con- stitution, be held, by implication, to warrant the doing of either of those things under different circumstances or conditions. APPENDIX. A. COMPLETE LIST OF CONVENTIONS HELD IN THE UNITED STATES. N. B. — In the Remarks appended to the several Conventions in this list, the abbreviation " Sub.," indicates that the body to which it refers submitted, and "Not sub.," that it did not submit, its work to the people for adoption or rejection. The section-marks refer to the sections ante, where the Conventions indicated are de- scribed or referred to. The Conventions characterized as "Abortive" agreed upon no Constitution or Amendments, and therefore submitted none to the people. DATE OF ADJOURN- NAUES. DATE OF ASSEMBUNO. MENT. REMARKS. 1. Continental Cong. (2d) May 10, 1775. March 1, 1781. This body not properly a Convention, but for convenience classed as such, like the Revolu- tionarv Conventions in general. Sub. §§ 159 -162, 502, 503. 2. New Hampshire, Dec. 21, 1775. Jan. 5, 1776. Not sub. § 131. 3. June 10, 1778. June 5, 1779. Sub. § 132. 4. " 2d Tues. June, 1781. Oct. 31, 1783. Sub. § 132. 5. " : 1788. June 21, 1788. Called to ratify the Fed- eral Const. § 167. 6. " September 7, 1791. Sept. 7. 1792. Sub. § 219. 7. " November 6, 1850. AprU 17, J 851. Sub. §§ 217, 218. The amendments proposed at the first session in 1850 were rejected by the people. Of those proposed at the second session in 1851, one only was adopted. 8. South Carolina, 1776. March 26, 1776. Not sub. §§ 133, 134. 9. " , January 5, 1777. March 19, 1778. Not sub. §§ 135, 137, 491. 10. May 12, 1788. May 23, 1788. Called to ratify the Fed- eral Const. § 167. IL " 1790. June 3, 1790. Not sub. § 219. 12. December 17, 1860. Jan. 5, 1861. Not sub. Secession Con- vention. §§ 247-249. 13. " September 13, 1865. Sept. 29, 1865. Not sub. Reconstruction Conv. §§ 250-259. 14. Virginia, 15. ^ May 6, 1776. June 29, 1776. Not sub. §138. June 2, 1788. June 27, 1788. Called to ratify the Fed- eral Const. § 167. 16. October 5, 1829. Jan. 15, 1830. Sub. §§ 219, 508, 509. 17. " October 14, 1850. Aug. 1, 1851. Sub. §§ 219, 508, 509. 18. " February 13, 1861. 1861. Sub. Secession Conven- tion. §§186,247-249. 534 APPENDIX. List of Conventions, (Continued.) DATE OF ADJOURN- NAMES. DATE OP ASSEMBLING. MENT. BE9IARES. 19. Virginia, June 11, 1861. 1861. Not sub. Reconstruction Conv. §§ 186, 187. 20. " February 13, 1864. April 11, 1864. Not sub. Reconstruction Convention. §§ 219, 250-259. 21. New Jersey, June 10, 1776. Aug. 21, 1776. Not sub. §§ 139, 140. 22. 2d Tues. Dec. -1787. Dec. 18, 1787. Called to ratify the Fed- eral Const. § 167. 23. " May 14, 1844. June 29, 1844. Sub. § 219. 24. New York, - July 9, 1776. Mav 8, 1777. Not sub. §§ 150-152. 25. June 17, i788. July 26, 1788. Called to ratify the Fed- eral Const. " § 167. 26. " October 13, 1801. Oct. 27, 1801. Not sub. §§ 219, 492. 27. August 28, 1821. Nov. 10, 1821. Sub. § 219. 28. " June 1, 1846. Oct. 9, 1846. Sub. § 219. 29. Pennsylvania, July 15, 1776. Sept. 28, 1776. Not sub. §§ 143, 144. 30. " November 10, 1783. Sept. 25, 1784. Council of Censors. Abortive. § 220. 31. " November 20, 1787. Dec. 12, 1787. Called to ratify the Fed eral Const. § 167. 32. November 24, 1789. Sept. 2, 1790. Not sub. §§ 221, 222, 225, 491. 33. " May 2, 1837. Feb. 22. 1838. Sub. § 219. 34. Maryland, August 14, 1776. Nov. 11, 1776. Not sub. § 145. 35. '' April 21, 1788. April 28, 1788. Called to ratify the Fed. Const. § 167. 36. " November 4, 1850. May 14, 1851. Sub. §§ 224, 225. 37. " April 27, 1864. Sept. 6, 1864. Sub. §§ 217, 218, 509, note. Not sub. §§ 141, 142. 38. Delaware, August 27, 1776. Sept. 20, 1776. 39. 1787. Dec. 7, 1787. Called to ratify the Fed- eral Const. § 167. 40. 1792. June 12, 1792. Not sub. §§ 223, 225. ■ 41. November 8. 1831. Dec. 2, 1831. Not sub. §§ 217, 218. 42. 1st Tues. Dec. 1852. April 30, 1853. Sub. §§217,218. 43. Georgia, 1st Tues. Oct. 1776. Feb. 5, 1777. Not sub. § 147. 44.. » October 26, 1787. Jan. 2, 1788. Called to ratify the Fed- eral Const. § 167. 45. November 4, 1788. Nov. 24, 1788. Sub. §§ 148, 167. 46. " January 4, 1789. 1789. Called to ratify a State Constitution. Pro- posed amendments to it which were submit- ted to the next fol- lowing Convention. §§ 148, 149, 167, 219. 47. " May 4, 1789. 1789. Called to ratify a State Constitution. §§ 148, 149, 167. 219. 48. May 2, 1795. May 6, 1795. Not sub. §§ 217, 218. 49. May 8, 1798. May 30, 1798. Not sub. ■§§ 217, 218. 50. " 1st Tues. May, 1838. 1838. Sub. § 219. 51. " . January 9, 1861. March 23, 1861. Not sub. Secession Con- vention. §§ 247-249. 52. " October 25, 1865. Nov. 8, 1865. Not sub. Reconstruction Conv. §§ 250-259. 53. North Carolina, '- November 12, 1776. Dec. 18, 1776. Not sub. § 146. 54. " ' /- July 21, 1788. Aug. 4, 1788. Called to ratifv the Fed- eral Const. § 167. 55. " /'A 1789. Nov. 21, 1789. Called to ratify the Fed- eral Const. § 167. 56. " / (A June 4, 1835. July 11, 18.35. Sub. § 219. APPENDIX. List of Conventions, (Continued.) 535 DATE OP ADJOURN- — - NAMES. DATE OP ASSEMBLING. MENT. REMARKS. 57. North Carolina, May 20, 1861. 1861. Not sub. Secession Con- vention. §§ 247-249. 58. " ^/_ October 2, 1865. Oct. 19, 1865. Not sub. Reconstruction VU^ v.-<2rv- /^- ^^^^ '^/^^l,<'/& Convention. §§ 250- 259. May 24, 1866, \tl\\. Convention reassem- bled, and proposed amendments to tlie Constitution, which were submitted to the people and rejected. See § 478, noU 1. 59. Vermont, July 2, 1777. Dec. 2, 1777. Not sub. §§ 153, 154, 171, 172. 60. 1st Wed. June, 1785. 1st Thurs. Feb. Council of Censors. Sub. 1786. §§ 155, 220. 61. 1st Thurs. June, 1786. 1786. Calied to ratify a State Constitution. § 220. 62. " January — , 1791. Jan. 10, 1791. Called to ratify the Fed eral Const. § 167. 63. " 1792. 179-. Council of Censors. Sub. §220. 64. " July 3, 1793. Called to ratify a State Constitution. § 220. 65. " 1799. Council of Censors. Abortive. § 220. 66. " 1806. Council of Censors. Abortive. § 220. 67. " 1813. Coimcil of Censors. Abortive. § 220. 68. " June 7, 1820. March 26, 1821. Council of Censors. Sub. § 220. 69. " February 21, 1822. Feb. 23, 1822. Called to ratify a State Constitution. § 220. 70. '" June 6, 1827. Dec. 1, 1827. Council of Censors. Sub. §220. 71. " June 26, 1828. Called to ratify a State Constitution. § 220. 72. " 1834. June 15, 1835. Council of Censors. Sub. §220. 73. " January 6, 1836. Jan. 14, 1836. Called to ratify a State Constitution. § 220. 74. June 2, 1841. Feb. 15, 1842. Council of Censors. Sub. §220. 75. January 4, 1843. Jan. 12, 1843. Called to ratify a State Constitution. § 220. 76. " June 7, 1848. Feb. 28, 1849. Council of Censors. Sub. § 220. 77. January 2, 1850. Jan. 14, 1850. Called to ratify a State Constitution. § 220. 78. " June 6, 1855. Feb. 26, 1856. Council of Censors. Sub. § 220. 79. " January 7, 1857. Jan. 12, 1857. Called to ratify a State Constitution. § 220. 80. " June 4, 1862. Oct. 25, 1862. Council of Censors. Abortive. § 220. 81. Massachusetts, January, 1778. Feb. 28, 1778. Sub. and rejected. § 156. 82. September 1, 1779. June 16, 1780. Sub. §§ 157, 158. 83. " January 9, 1788. Feb. 7, 1788. Called to ratify the Fed- eral Const. § 167. 84. " November 15, 1820. Jan. 9, 1821. Sub. §219. 85. November 4, 1853. Aug. 1, 1853. Sub. and rejected. §219. 636 APPENDIX. List op Conventions, (Continued.) BATE OF ADJOURN- NAMES. DATE OF ASSEMBMNQ. MENT. REMARKS. 86. Federal Convention, May 14, 1787. Sept. 17, 1787. Sub. §§ 163-166,562, 503. 87. Connecticut, January 4, 1788. Jan. 9, 1788. Called to ratiiV the Fed- eral Const. § 167. 88. August 26, 1818. Sept. 16, 1818. Sub. § 219. 89. Rhode Island, 1790. May 29, 1790. Called to ratify the Fed- eral Const. * § 167. 90. " 1824. Sub. and rejected. § 219. 91. " 1834. Abortive. '§ 219. 92. " October, 1841. 1842. Sub. §§ 226-246. " Peo- ple's Convention." 93. " November, 1841. Feb. 1842. Sub. and rejected. § 219. Convention called by the Charter govern- ment. 94. « September, 1842. 1842. Sub. §§ 219, 508, 509. Convention called by the Charter govern- ment. 95. Kentucky, 1st Mond. April, 1792. April 19, 1792. Sub. §§ 173, 174. 96. " July 22, 1799. Aug. 17, 1799. Not sub. §§ 217, 218. 97. " October 1, 1849. June 11, 1850. Sub. §218. 98. Tennessee, January ll, 1796. Feb. 6, 1796. Sub. §§ 175-182. 99. " -^ May 19, 1834. Aug. 30, 1834. Sub. §§ 217, 218, 509, note. 100. " 1861. 1861. Sub. Secession Con- vention — the State legislature. §§ 247- 249. 10 J, " January 9, 1865. Jan. 13, 1865. Sub. Eeconstruction Convention. §§ 250- 259. 102. Ohio, November 1, 1802. Nov. 29, 1802. Sub. §§ 195, 217, 218. 103. " May 6, 1850. March 10, 1851. Sub. §§ 217, 218. 104. Louisiana, 1st Mond. Nov. 1811. Jan. 22, 1812. Sub. §"195. 105. " Aug. 5, 1844. May 16, 1845. Sub. ^§ 217, 218. 106. « July 5, 1852. July 31, 1852. Sub. §§ 217, 218. 107. " Januaiy 23, 1861. March 7, 1861. Not sub. Secession Con- vention. §§ 247-249. 108. " April 6, 1864. July 25, 1864. Sub. Reconstruction Convention. §§ 250- 259. Adjourned at the call of its president. 2d session, called for July 30, 1866, dis- persed b}'' a mob. §§ 473-478. 109. Indiana, 2d Mond. June, 1816. June 29, 1816. Sub. § 195. 110. October 7, 1850. Feb. 10, 1851. Sub. § 219. 111. Mississippi, 1st Mond. July, 1817. Aug. 15, 1817. Sub. §195. 112. " September 10, 1832. Oct. 26, 1832. Not sub. §§ 217, 218. 113. January 7, 1861. 1861. Not sub. Secession Con- vention. §§ 247-249. 114. " August 14, 1865. Aug. 26, 1865. Not sub. Reconstruction Convention. §§ 250- 259. 115. Illinois, 1st Mond. Aug. 1818. Aug. 26, 1818. Sub. § 195. 116. " June 7, 1847. Aug. 31. 1847. Sub. §§ 217, 218. 117. " January 7, 1862. March 22, 1862. Sub. and rejected. §§ 217, 218. Sub. § 195. 118. Alabama, ^ July 5, 1819. Aug. 2, 1819. 119. " January 7, 1861. March 20. 1861. Not sub. Secession Con- vention. §§ 247-249. APPENDIX. List of Conventions, (Continued.) 637 NASIES. DATE OP ASSEMBLING. DATE OF ADJOURN- MENT. REMARKS. 120. Alabama, September 12, 1865. Sept. 30, 1865. Not sub. Eeconstruction Convention. SS 250- 259. 121. Maine, October 11, 1819. Oct. 29, 1819. Sub. §§ 183-185. 122. Missouri, ^ June 12, 1820. Julv 19, 1820. Sub. § 195. 123. November 17, 1845. .Jan. 14, 1846. Sub. § 219. 124. " February 28, 1861. Julv 1, 1863. Not sub. § 219. 125. January 6, 1865. April 10, 1805. Sub. § 219. 126. Michigan, May 11, 1835. June 24, 1835. Sub. §§ 196-209. 127. September 26, 1836. 1836. Called to ratify a State Constitution. §§ 167, 196-209. 128. December 14, 1836. Dec. — , 1836. Called to ratify a State Constitution. §§ 167, 196-209. 129. " June 3, 1850. Aug. 15, 1850. Sub. §^ 217, 218. 130. Arkansas, .January 4, 1836. Jan. 30, 1836. Sub. §§ 196, 197, 210. 131. March 1, 1861. 1861. Not sub. Secession Con- vention. §§ 247-249. 132. " January 8, 1864. 1864. Not sub. Reconstruction Convention. §§ 250- 259. 133. Florida, December 3, 1838. Jan. 11, 1839. Sub. §§ 196, 197, 210. 134. " January 3, 1861. 1861. Not sub. Secession Con- vention. §§ 247-249. 135. " October 25, 1865. Nov. 13, 1865. Not sub. Reconstruction Convention. §§ 250- 259. 136. Iowa, October 7, 1844. Nov. 1, 1844. Sub. §§ 196, 197, 210. 137. " 1846. May 18, 1846. Called to ratify a State Constitution. §§ 167, 196. 138. " ' January 19, 1857. March 5, 1857. Sub. §§ 217, 218. 139. Texas, 1845. Aug. 27. 1845. Sub. § 195. 140. " January 28, 1861. 1861. Sub. Secession Conven- tion. §§ 247-249. 141. " March, 1866. April 2, 1866. Reconstruction Conven- tion. §§ 250-259. 142. Wisconsin, October 5, 1846. Dec. 16, 1846. Sub. and rejected. § 195, 210. Sub. §§ 106, 210. 143. December 15, 1847. Feb. 1, 1848. 144. California, September 1, 1849. Oct. 13, 1849. Sub. §§ 196, 197, 210. 145. Kansas, October 23, 1855. 1855. Sub. §§ 196, 197, 211, 212. Topeka Conven- tion. 146. " September 5, 1857. Nov. 7, 1857. Sub. §§ 196, 213-216. Lecompton Convention. 147. " July 5. 1859. July 29, 1859. Sub. §§ 195, 216. Wy- andotte Convention. 148. Minnesota, July 13, 1857. Aug. 29, 1857. Sub. § 195. 149. Oregon, August 17, 1857. Sept. 18, 1857. Sub. §§ 196, 210 150. West Virginia, November 26, 1861. Feb. 19, 1863. Sub. ■§§ 167, 186-193, 508, 509. 151. Nevada, 1863. Sub. and rejected. §§ 196, 197, 210. 152. " 1st Mond. July, 1864. 1864. Sub. §§ 195, 197, 210. 638 APPENDIX. B. At the extra session of the !N'ew York legislature, in November, 1820, a bill 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 Piatt 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- 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 construe- APPENDIX. 539 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 apd 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 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 1 780, and contains the earliest provision on this subject. It provided that, in the year 1 795, 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 by 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. 540 APPENDIX. 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 unportant 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 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. G. OPINION OF THE JUSTICES OP THE SUPREME JUDICIAL COURT, CONCERN- ING THE ALTERING OR REVISING OF THE CONSTITUTION IN ANY SPE- CIFIC PART THEREOF, l_Taken from 6 CusMng's Reports, 57 S. 2 The justices of the Supreme Judicial Court have taken into consideration the two questions submitted to them (by the House' of Representatives), and upon which the honorable House has requested their opinion, of the following tenor, namely : — First. Whether, if the legislature should submit to the people to vote upon the expediency of having a Convention of delegates of the people, for the pur- pose of revising or altering the Constitution of the Commonwealth in any speci- fied 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 Constitution not so specified ? Second. 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 ? APPENDIX. 541 And thereupon have the honor to submit the following opinion : — The court do not understand that it was the intention of the House of Repre- sentatives to request their opinion upon the natural right of the people, in cases of great emergency, or upon the obvious failure of their existing Constitution to accomplish the objects for which it was designed, to provide for the amendment or alteration of their fundamental laws ; nor what would be the effect of any change or alteration of their Constitution, made under such circumstances and sanctioned by the assent of the people. Such a view of the subject would in- volve the general question* of natural rights, and the inherent and fundamental principles upon which civil society is founded, rather than any question upon the nature, construction, or operation of the existing Constitution of the Com- monwealth, and the laws made under it. We presume, therefore, that the opin- ion requested applies to the existing Constitution and laws of the Common- wealth, and the rights and powers derived from and under them. Considering the questions in this light, we are of opinion, taking the second question first, \ that, under and pursuant to the existing Constitution, there is no authority given ! by any reasonable construction or necessary implication, by which any specific ( and particular amendment or amendments of the Constitution can be made, in | any other manner than that prescribed in the ninth article of the amendments adopted in 1820. 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 implica- tion 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 implication arises against the existence of any other power, under the Constitution, for the same purposes. Upon the first question, considering that the Constitution has vested no au- thority in the legislature, in its ordinary action to provide by law for submitting to the people the expediency of calling a Convention of delegates for the pur- f pose 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 Conven- tion, if called. If, however, the people should, by the terms of their vote, de- \ cide 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 dele- gates 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 amend- ments in other parts of the Constitution not so specified. LEMUEL SHAW, SAMUEL PUTNAM, S. S. WILDE, MAKCUS MOKTON. January 24, 1833. 542 APPENDIX. D. OPINION OP THE JUDGES OF THE SUPREME COURT OF NEW YORK, TOUCH- ING THE VALIDITY OP THE ACT OF ASSEMBLY PASSED APRIL 22, 1846, MODIFYING THE CONVENTION ACT OF MAY 13, 1845.1 State op 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 tern. 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 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 1 This opinion I do not find reported in any of the New York Law Reports, probably for the reason stated in the text, (§ 393, 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. 3fass. Conv. 1853, Vol. I. p. 138. APPENDIX. 543 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 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- 544 APPENDIX. 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 could only operate by way of advice or recom- mendation, 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 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 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, APPENDIX. 545 is, 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 be 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 leo-al effect of the existing statute. The legislature has no judicial power. Althouo-h its opinions are entitled to great consideration, they cannot have the force of a law. If, therefore, it is deemed expedient to legislate on the subject, it is sub- mitted 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, Albany, April 14, 1846. F. G. JEWETT. E. The official proceedings culminating in the reassembling of the Louisiana Convention of 1864 are shown by the following documents : — I. MINUTES OF THE CAUCUS OF MEMBERS OF THE LOUISIANA CONVENTION OP 1864, BY WHICH THE PRESIDENT OF THAT BODY WAS REMOVED, AND A PRESIDENT PRO TEM. APPOINTED, AS PUBLISHED BT ITS SECRETARY. New Orleans, June 26, 1866. In pursuance of the following invitation, a meeting of members of the Con- stitutional Convention of the State of Louisiana, was held at the State House. 35 646 APPENDIX. New Orleans, June 23, 1866. . Sir, — Several members of the Convention, as well as the Executive, request you to attend a meeting of the members of the Constitutional Convention of the State of Louisiana, at the Mechanics' Institute, New Orleans, on Tuesday, 26th inst., at 2 o'clock, p. m. JOHN E. NEELIS, Secretary. On motion of Mr. Cutler, Hon. K.. K. Howell was called to the chair. The roll being called, the following members responded to their names, viz. : Messrs. Jno. T. Barrett, Jos. G. Baum, Robt. B. Bell, Jos. V. BofiU, J. R. Bromley, Jno. Buckley, Jr., Terrence Cook, Benj. Campbell, F. M. Crozat, R. King Cutler, Jno. L. Davies, James Duane, W. R. Fish, G. H. Flagg, Edmond Flood, Louis Gastinel, C. H. L. Gruneberg, Edward Hart, P. Harnan, J. J. Healy, Jno. Hen- derson, Jr., Wm. H. Hire, R. K. Howell, Geo. Howes, H. Maas, Robert Morris, P. K. O'Conner, John Payne, O. H. Poynot, John Purcell, Alfred Shaw, Charles Smith, C. W. Stauffer, Jno. A. Spellicy, Robert W. TaUaferro, J. Randall Terry, W. H. Waters, and Ernest J. Week. On motion of Hon. R. K. Cutler, Mr. J. K. Belden, having had his creden- tials approved by the Committee on Credentials previous to the adjournment of the Convention in 1864, was admitted to a seat as a member of this body. On motion of Mr. Fish, Maj. J. H. Andem was appointed official reporter. On motion of Hon. Chas. Smith, Mr. Shelley was invited to a seat within the. bar. Mr. Cutler offered the following preamble and resolutions : — Whereas, The Constitutional Convention of the State of Louisiana, when it adjourned in 1864, adjourned subject to call, in case of any emergency prior to the admission of this State into the Federal Union ; Whereas, The Civil Rights Bill has become a law, and certain amendments to the Constitution of the United States have passed both Houses of Congress, and now await the ratification of loyal legislatures of the several States ; Whereas, In the opinion of all the powers of the General Government, of the Executive of the State of Louisiana, of all the members of said Convention, and of all the loyal citizens of the State of Louisiana, there is sufficient cause, and the emergency does exist for the reconvocation and action of said Constitutional Convention ; Whereas, His Excellency, the Governor of the State of Louisiana, and a large number of the members of said Constitutional Convention, have personally and collectively, and at divers times within the past two months, waited upon, conversed with, and demanded of the Hon. E. H. Durell, President of said Convention, to issue his proclamation to reconvoke said Convention, or resign his position and office of president of said body ; and Whereas, The said E. H. Durell, president as aforesaid, did continually refuse, and now peremptorily refuses, to either issue his proclamation to reconvoke said Convention, or to resign his office of president thereof; Be it therefore Resolved, That the said E. H. Durell is no longer entitled to the confidence of the members of the Constitutional Convention of Louisiana, or of the loyal people of the State of Louisiana, or of the General Govern- ment. Be it therefore Resolved, That the office of President of the Constitutional APPENDIX. 547 Convention of tbe State of Louisiana, for the purposes of reconvoking and properly organizing said Convention be, and the same is hereby declared vacant. Be it further Resolved, That -this body do now proceed to elect a president pro tern, of the Constitutional Convention of Louisiana, for the purpose of recon- voking and permanently organizing for action said Convention. For the foregoing, Mr. Smith offered the following substitute : — Resolved, That a committee of five members — including the president of this meeting as chairman — be appointed to call upon Hon. E. H. Durell, President of the Constitutional Convention of Louisiana, and request him to issue his ofScial call for its reconvocation. On motion of Mr. Fish, the substitute was laid on the table. Mr. Smith then moved that a committee of seven members be appointed to wait on Judge Durell, and ascertain his views relative to calling the Convention together, and report within one hour. The motion was adopted, and the president appointed the following members to compose said committee, viz. : — Messrs. Smith, Poynot, Purcell, Stauffer, O'Conner, Harnan, and Barrett. On motion of Hon. R. K. Cutler, the president of this meeting was added to said committee. The Convention then took a recess of one hour, in order to allow the com- mittee time to report. On reassembling, Mr. Smith, on behalf of the committee appointed to wait on Judge Durell, verbally reported that the committee had discharged its duty, and that Judge Durell declined to issue a call reconvening the Convention, alleging as his reasons fears that he would not be sustained in doing so, and also his distrust of the Governor of Louisiana. On motion, the report was received, and the committee discharged. The yeas and nays were then demanded on the adoption of Mr. Cutler's pre- amble and resolutions. The roll being called, the following members voted yea : — Messrs. Barrett, Baum, Bell, Belden, Cook, Cutler, Duane, Davies, Fish, Flagg, Flood, Hart, Henderson, Howell, Howes, Healey, Maas, O'Conner, Payne, Poynot, Spellicy, Stauffer, Terry, and Waters — 24. The following members voted nay, viz. : — Messrs. Boflll, Hire, Morris, Shaw, and Smith — 5. Whereupon the president declared the preamble and resolutions adopted. In accordance with the foregoing resolutions, nominations were declared open for President pro tern, of the Convention. Hon. R. K. Howell was nominated by Mr. Shaw. No other nominations being made, Mr. Cutler moved that the Hon. R. K. Howell be unanimously declared the President pro tern, of the Con- vention, The secretary submitted the name of Mr. Howell, and he was unanimously elected. Mr. Cutler offered the following resolutions : — Resolved, That it is the earnest desire of the members of the Constitutional Convention and all loyal citizens of the State of Louisiana, that the Hon. R. K Howell, this day elected president pro tern, of this Convention, in conjunction with His Excellency the Governor of the State, do immediately issue their 548 APPENDIX. respective proclamations reconvoking said Convention, and ordering elections to fill vacancies to said Convention. Resolved^ further, That it is the earnest desire of the members of the Consti- tutional Convention of the State of Louisiana now assembled, that the said Con- vention should assemble, and said elections be held, within the shortest delay- possible. The foregoing resolutions were unanimously adopted, and the Convention adjourned subject to the call of the president pro tern. JOHN E. NEELIS, Secretary. II. PROCLAMATION, BY R. K. HOWELL, PRESIDENT PRO TEM. OF THE CONVENTION FOR THE REVISION AND AMENDMENT OF THE CONSTITUTION OF LOUISIANA. Whereas, By the wise, just, and patriotic policy developed by the Congress now in session, it is essential that the organic law of the State of Louisiana should be revised and amended so as to form a civil government in this State in harmony with the General Government, establish impartial justice, insure do- mestic tranquillity, secure the blessings of liberty to all citizens alike, and restore the State to a proper and permanent position in the great Union of States, with ample guarantees against any future disturbance of that Union. And whereas, It is provided by resolution adopted on the 25th day of July, 1864, by the Convention for the revision and amendment of the Constitution of Louisiana, that when said Convention adjourns it shall be at the call of the presi- ident, whose duty it shall be to recouvoke the Convention for any cause. And whereas, further, It is important that the proposed amendments to the Constitution of the United States should be acted upon in this State within the shortest delay practicable ; and that 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. And whereas, at a meeting held in New Orleans on the 26th June, 1866, the members of said Convention recognized the existence of the contingency pro- vided for in said resolutions, expressed their belief that the wishes and interests of the loyal people of this State demand the reassembling of the said Conven- tion, and requested and duly authorized the undersigned to act as president pro tern, for the purpose of reconvoking said Convention, and in conjunction with His Excellency the Governor of the State, to issue the requisite proclamation reconvoking said Convention, and ordering the necessary elections as soon as possible ; Now, therefore, I, Rufus K. Howell, president pro tern, of the Convention as aforesaid, by virtue of the power and authority thus conferred on me, and in pursuance of the aforesaid resolutions of adjournment, do issue this my proclamation reconvoking the said Convention, for the revision and amendment of the Constitution of Louisiana ; and I do hereby notify and request all the APPENDIX. 549 delegates to said Convention to assemble in the hall of the House of Represent- atives, Mechanics' Institute Building, in the city of New Orleans, on the fifth Monday (thirtieth day) of July, 1866, at the hour of 12 o'clock, m. ; and I do further call upon His Excellency the Governor of this State to issue the neces- sary writs of election, to elect delegates to the said Convention in parishes not now represented therein. Done and signed at the city of New Orleans this seventh day of July, a. d. 1866, and of the independence of the United States the ninety-first. Attest : R. K. HOWELL, 'President pro tem. John E. Neelis, Secretary. III. PROCLAMATION BY THE GOVERNOR OF LOUISIANA. Whereas, R. K. Howell, president pro tem. of the Convention for the revision and amendment of the Constitution of Louisiana, has issued an order reconvok- ing the said Convention, to meet in the city of New Orleans on the thirtieth day of July inst., and Whereas, in the same document, and in conformity to a resolution of that body, he has called on the Governor of the State to issue writs of election for delegates to said Convention in all parishes not represented therein ; Now, therefore, I, J. Madison Wells, Governor of the State of Louisiana, do issue this my proclamation, commanding that an election be held on Monday, the third day of September, 1866, by the qualified voters, for delegates to the aforesaid Convention, as follows : — (Here follows a list of the parishes in which elections were to be held.) And I do further command all sheriffs, commissioners of elections, and other officers therein concerned, to hold the said election as herein ordered, the pro- ceedings to be conducted according to law, and no person will have the right to vote unless he has restored his citizenship by having taken the oath, before com- petent authority, as prescribed in the amnesty proclamations of the President of the United States, either of January 1st, 1864, or May 29th, 1865. All persons excluded from general amnesty by being embraced in any of the articles of exception contained therein, will not be allowed to vote unless spe- cially pardoned by the President. Prompt returns will be made of said election to the Secretary of State, for all of which this proclamation, without further notice, will serve as authority. Given under my hand at the city of New Orleans, this twenty-seventh day of July, A. D. 1866, and the independence of the United States the ninety- first. J. MADISON WELLS. Attest : A true copy. N. C. Snethen, Private Secretary. INDEX. A. Acts, enabling, Conventions called in pur- suance of, § 195, and note 1 ; can legis- latures bind Conventions by their? §§ 376- 418 ; calling Conventions, analysis and essential character of, §§ 404-408. Adams, John, connection of, with the form- ation 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 on 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, § 195; do. of 1861 (Secession), §§ 247-249; do. of 1865 (reconstruction), §§ *250-259. Allegiance defined, and to whom owing in the United States, §§ 52, 53; "Allegiance Cases," so called, in South Carolina, § 53, note 2; quasi, defined, 53. Amendments to Constitutions, necessity of providing for, §§ 52.5-529 ; 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, §§ 535-537, 541-546; where a legislature participates in effecting, nature of its act, §§ 547-550 ; extent of the power of a legislature to recommend, §§ 551-555 ; where a legislature recom- mends, should they be submitted to the executive for approval? §§ 556-562; where a State legislature has once rejected amend- ments proposed by Congress to the Fed- eral Constitution, can it or its successor reconsider them ? § 563 ; where the Consti- tution provides a mode of effecting, can another and different mode be employed ? §§ 564-576. Appropriations, power of Conventions to make, of moneys from the public treasury, §§ 435-441. Arkansas, Convention of, of 1836, §§ 196, 197; cases in Supreme Court of, respect- ing the extent of the power of a legisla- ture to propose amendments to a Consti- tution, §§ 551-555. Arrest, power of Conventions to make, of their own members or of strangers, §§ 460-470. 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 locus of sovereignty in the United States, § 60 ; do. as to an ulterior legislature in New York, superior to the ordinary legislature, § 513, note 1. Autocracies, Constitutions of, described, §70. B. Banks, Nathaniel P., General, proclamation of, for the reconstruction of Louisiana, § 256. Belknap, Dr., historian of New Hampshire, quoted, as to the first Convention of that State, § 131. Bills oi^ Rights, description, history, and ob- jects of, §§ 96-99; why no, in the Federal Constitution, § 98; clause in American, generally, respecting altering or abolishing government, commented on, §§ 240-246. 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- ture to reconsider amendments to the Fed- eral Constitution proposed b}' Congress and once rejected, § 563. Brownson, Orestes A., Dr., opinion of, as to the mode in which sovereignty inheres in the people of the United States, § 61; distinction drawn by, between Constitu- tions as facts and Constitutions as instru- ments of evidence, § 63, note 1. Buchanan, James, President, opinion of, respecting the Topeka and Lecompton Conventions, § 214. Burke, Edmund, moral competence of gov- ernments defined by, § 305; sarcasm of, respecting the French Bill of Rights of 1793, § 317. 652 INDEX. Butler, Benj. F., quoted, as to conventional sovereignty, §§ 311, 343; speech of, on the right of Conventions to issue precepts to the electors, § 343. c. Calhoun, John C, opinion of, respecting the bearing of the mode of ratifying the Federal Constitution, on the question of American nationality, § 37 ; speech of, on the Michigan Convention of December, 1836, § 204. 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, § 358-361. Citizenship, rights belonging to mere, in the several States, §§ 359-361. Committee of the whole, use of, in Con- ventions, §§ 290, 291 ; of revision, duty and importance of, § 303; of the Illinois Convention of 1862, on the powers of Con- ventions, § 308. Committees, use of, in Conventions, §§ 285-294; members of, in various Conven- tions, and reasons for and against employ- ment of, §§ 287-295; number and duties of, how determined; precedents stated, § 296. Compact, are Constitutions, as facts, founded onV §§ 65-67; ^re Constitutions, as instru- ments of evidence, founded on ? § 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 formation of such governments in the colonies gener- ally, §§ 128, 129; as a Convention, framing the Articles of Confederation, historj' and character of, §§ 159-161 ; a Provincial, the first independent government of South Carolina, § 131 ; do. of New Jersey, § 139 ; do. of Maryland, § 145 ; do. of Georgia, § 147 ; do. of New York, § 150. Congresses, Provincial, revolution of 1776 consummated by, § 10 ; historv and powers of, 126. Connecticut, Convention of, of 1818, § 219, and note 1. Constitution, theory of the, fundamental to this inquiry, § 17; the term defined, § 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, §§ 93, 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 it is illegitimate, § 124 : the first New Hamp- shire, formation of, § 131 ; the New Hamp- shire, of 1783, formation of, § 132 ; the first South Carolina, § 133 ; 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 bv the Federal Conven- tion of 1787, character of, § 166 ; the Ken- tucky, of 1792, formation of, §§ 173, 174; the Tennessee, of 1796, formation of, §§ 175-182 ; the Maine, of 1819, formation of, §§ 183-185 ; the West Virginia, of 1863, formation of, §§ 189, 190; signing of a, by members of a Convention, § 304 ; Federal, power of Conventions, as legislatures, to ratify proposed amendments to, § 447; Trial of the, hy Fisher, quoted as to the inadequacy' of the provision of the Federal Constitution for its own amendment, § 543, note. Constitutions as objective facts, distin- guished from Constitutions as instruments of evidence, § 63; " as they ought to be," defined and contrasted with Constitutions as objective facts, § 64; nature and varie- ties of, as objective facts, §§ 65-70; are they founded on compact V §§ 65-67 ; are, as instruments of evidence, founded on compact? § 68; where discrepancies exist between, as objective facts, and as instru- ments of evidence, which have the supe- rior validit}' ? § 69 ; varieties of, as instru- ments of evidence, § 71; cumulative, de- fined, § 72; enacted, defined, § 73; written 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 respect- ively, § 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 ; generallv 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- INDEX. 553 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 V §§ 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 expressl}- 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 made, §§ 497-499; to whom submission of, should be made, §§ 500-509 ; nature of the act pertbrmed by the people, where sub- mission of, is made, §§ 510-513; manner in which submission of, should be made, §§ 514-520 ; promulgation of, §§ 521-524 ; amendments to, general doctrine as to stated, §§ 525-529; opinion of the judges of the Massachusetts Supreme Court re- specting the powers of Conventions to make amendments to. Appendix C, p. 540. Convention, The Constitutional, em- ployed in America to frame the fundamen- tal law, § 1; importance of, in general, § 2; relation of, to secession, § 3; The Spon- taneous, or Public Meeting, § 5 ; The Legislative or General Assembly, § 6 ; The Revolutionary, § 7 ; examples of the Revolutionary, in England, § 8; do. in America, § 9 ; Revolutionary, of Massa- chusetts, of 1689, § 9; French National, § 10; The Constitutional, defined and contrasted with the foregoing, § 11 ; exer- cising usurped powers, how to be classed, § 12; the Revolutionary, exercising the powers of a Constitutional, how to be classed, § 12; the Constitutional, summarj' of history of, §§ 13, 14; an adaptation to constitutional uses, of the Revolutionary, § 15; misconceptions prevalent respecting the nature of, § 15 ; constitutes one of the five agencies through which sovereignty indirectly manifests itself, § 24; relative rank of, § 24; Federal, of 1787, action of, respecting the ratification of the Federal Constitution, §§ 36, 37, 166 ; proper modes of initiating or calling a, §§ 104, 114-116; by whom should a, be called? §§ 118-121; in what manner should a, be called V §§ 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 (Jarolina, § 145; do. of Massachusetts, § 156; history and character of the New Hampshire, of 1775. § 131 ; do. of 1778, § 132 ; do. of 1781, § 132; the South Carolina, of 1776, §§ 133, 134; do. of 1778, §§ 135-137; 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 Kentucky, of 1792, §§ 173, 174; the Tennessee, of 1796, §§ 175- 182; the Maine, of 1819, §§ 18.3-185; the Virginia (Reconstruction), of 1861, § 186; the Ohio, of 1802, § 195 ; the Louisiana, of 1811, § 195; the Indiana, of 1816, § 195; the Mississippi, of 1817, § 195; the Illinois, of 1818, § 195 ; the Alabama, of 1819, § 195 ; the Missouri, of 1820, § 195 ; the Texas, of 1845, § 195; the Wisconsin, of 1846, § 195; the Minnesota, of 1857, § 195 ; the Kansas, of 1859, § 195; the Nevada, of 1864, § 195; the Iowa, of 1844. §§ 196, 197. 210; do. of 1846, §§ 196, 197, 210 ; the Wisconsin, of 1847, §§ 196, 197, 210; the California, of 1849, §§ 196, 197, 210; the Kan.^as, of 1855, §§ 196, 197, 211, 212; do. of 1857, §§ 196, 197, 213-216; do. of 1859, § 216; the Ore- gon, of 1807, §§ 196, 197, 210; the Nevada, of 1863, §§ 196, 197, 210; the Michigan, of 1835, §§ 196-198, 201, 208; do. of Septem- ber, 1836, §§ 196-199, 202; do. of Decem- ber, 1836, §§ 196, 197, 199-201, 203-209; the Arkansas, of 1836, §§ 196, 197, 210; the Florida, of 1839, §§ 196, 197, 210; the Georgia, of 1795, and of 1798, §§ 217, 218; the Kentucky, of 1799, and of 1849, §§ 217, 218; the Delaware, of 1831, and of 1852, §§ 217, 218 ; the Mississippi, of 1832, §§ 217, 218; the Tennessee, of 1834, §§ 217, 218; the Louisiana, of 1844 and of 1852, §§ 217, 218 ; the Illinois, of 1847 and of 1862, §§ 217, 218; the Ohio, of 1850, §§ 217, 218; the Michigan, of 1850, §§ 217, 218; the New Hampshire, of 1850, §§ 217, 218; the Georgia,of 1838, §§ 217, 219 ; the South Car- olina, of 1790, §§ 217, 219 ; the New Hamp- shire, of 1791, §§ 217, 219; the New York, of 1801, of 1821, and of 1846, §§ 217, 219; the Connecticut, of 1818, §§ 217, 219; the Massachusetts, of 1820, and of 1853, §§ 217, 219; the Rhode Island, of 1824, of 1834, of 1841 (under the charter), and of 1842, §§ 217, 219; the Virginia, of 1829, of 1850, and of 1864, §§ 217, 219 ; the North Car- olina, of 1835, §§ 217, 219; the Pennsyl- vania, of 1837, §§ 217, 219 ; the New Jer- sev, of 1844, §§ 217, 219; the Missouri, of 1845, of 1861, and of 1865, §§ 217, 219; the Indiana, of 1850, §§ 217,219; the Vermont, of 1785, &c., &c., §§ 220; the Pennsylva- nia, 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; by whom a, should be elected, § 104 ; by whom the delegates were elected to the Pennsyl- vania, of 1776, §§ 263; do. of 1789, and of 1837, § 262; to the Ohio, of 1850, § 262; to 2S(; 654 INDEX. the Michigan, of 1850, § 262; to the Iowa, of 1857, § 232; to the Minnesota, of 1857, § 262 ; to the Kansas, of 1859, § 262 ; to the West Virginia, of 1861, § 262; to the Mary- land, of 1861, § 262 ; to the Massachusetts, of 1779, of 1821, and 1853, § 262; to the Delaware, of 1776, § 263; do. of 1831, and of 1852, § 262; to the North Carolina, of 1776, § 263; do. of 1835, § 262; to the New York, of 1821, § 264, 266; do. of 1846, §262; to the Illinois, of 1847, and 1862, § 262; to the Kentucky, of 1849, § 262; to the Virginia, of 1829, and of 1850, § 262; to the Vermont, of 1777, § 263 ; to the Geor- gia, of 1776 and of 1788, §§ 264, 266 ; to the Maine, of 1819, § 262; to the New Hampshire, of 1850, § 262; to the Wiscon- sin, of 1847, § 262 ; to the California, of 1849, § 262; to the Kansas, of 1859, § 262; to the Rhode Island, of 1841, §§ 265, 266 ; Qualilications required for delegates to the New York, of 1821, § 267; to the North Carolina, of 1835, § 267; to the Pennsyl- vania, of 1837, § 267; to the New Hamp- shire, of 1850, § 267; to the Ohio, of 1850, § 267 ; to the Delaware, of 1852, § 267 ; to the Iowa, of 1857, § 267; to the Maryland, of 1864, § 267 ; to the Nevada, of 1864, § 267 ; the Minnesota of 1857, divided into two Conventions, § 270; the New Jersey, of 1844, delegates elected to, from all par- ties, § 271; can a, appoint ofticers to fill vacancies in the government V §§ 325-330 ; can a, eject from office persons appointed thereto Ijy the government V §§ 325, 326 ; can a, direct government officers in the discharge of their duties? §§ 325, 326; Missouri of 1865, ordinance of, to vacate offices under the State government, §§ 327-330; is the Act calling a, a govern- ment measure ? § 398; Opinion of the Su- preme Court of New York as to the power of a legislature to modify the Act calling a. Appendix D., p. 542 ; of Louisiana, of 1864, official proceedings culminating in the reassembling of, in 1866 ; Appendix E., p. 545. Conventions, Varieties of, in the United States. §§ 4-16 ; Spontaneous, described, §§ 4, 5 ; Legislative, or General Assemblies, § 6 ; Revolutionary, §§ 7-10; Constitutional, §§ 11-16 ; Provincial, or Congresses, §§ 10, 126; to ratify the Federal Constitution, opinions expressed in, as to its character, § 42; of the Revolutionarv 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 Con- stitutions for States to be formed within the jurisdiction of States members of the Union, §§ 171-193 ; called to frame Constitutions for States to be formed out of Federal Ter- ritor}-, under enabling Acts of Congress, § 194, 195 ; without enabling Acts, §§ 196- 216; called to revise the Constitutions of States, members of the Union, §§ 217-259 ; called by legislative authority in pursuance of constitutional provisions, § 218; called by legislative authority without constitu- tional provisions, § 219 ; called by Councils of Censors, § 220; called bj- legislative au- thority, in disregard of constitutional pro- visions, §§ 221-225; called in defiance of the existing government, §§ 226-246; se- cession, §§247-249; reconstruction, §§ 250- 2-59 ; by whom delegates to, should be and are elected, §§ 260-266 ; who may be mem- bers of, §§ 267-269 ; constitution of, in one chamber or in two, §§ 270, 271; internal organization of, §§ 272-284; officers of, § 274; should members of be sworn? form of oath, §§ 277-283 ; mode of proceeding of, §§ 285-304; emplo3'ment 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; ques- tion of the sovereignty of, considered, §§ 315-319; powers of, with reference to the government of the state, as a whole, §§ 320-330; can they fill vacancies in the va- rious governmental departments? §§ 325, 327-330; can they eject from office appoint- ees of the government? §§ 325-330; can they direct governmental officers in the dis- charge of their duties ? §§ 325, 326 ; powers of, with reference to the electors, §§ 831- 364 ; can they disfranchise electors ? §§ 335- 337; can they fill their own vacancies? § 338 ; can they authorize the colleagues of deceased or resigning members to name their successors ? § 339 ; can they issue pre- cepts to the electors directing them to fill vacancies? §§ 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, persons elected at a time or in a manner not provided by law ? § 350 ; can they limit the discretion of the electors, or of the sov- ereign, 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 there- from resulting, §§ 366-449: are but mere committees, § 367 ; structure and functions of, contrasted with those of legislatures, §§ 367-375; power of", to annul perfect rights, § 370, note 1 ; can legislatures bind ? §§ 376-418; power of legislatures to dictate to, what they shall or shall not recommend, §§ 381, 382 ; question discussed in various, §§ 383-387 ; where Acts of the legislature, which have been voted on by the people, are conceded to bind, source of their va- liditj-, §§ 389-409; can legislatures bind, to submit the fruit of their labors to the people? §§ 410-418; do Conventions pos- sess legislative powers, §§ 419-441 ; power of, to repeal ordinary laws, §§ 430-434; power of, to appropriate money, §§ 435- 441 ; power of, as legislatures, to prescribe the times, places, and manner of electing senators and representatives in Congress, §§ 442-446; power of, as legislatures, to ratify proposed amendments to the Federal INDEX. 655 Constitution, § 447; power of, to fetter a discretion contided by the Federal Consti- tution to a State legislature, §§ 448, 449 ; powers of, with reference to their internal relations, express and implied, §§ 450-470 ; powers of, with reference to their organiza- tions, 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; priv- ileges of members of, §§ 471, 472; power of, to prolong or perpetuate their existence, §§ 473-478 ; duty of, to submit their work to the people, in general, § 479 ; duty of, where neither the Convention Act nor the Constitution requires submission, § 481; duty of, where submission is expressly re- quired by law, §§ 482, 483 ; duty of, where submission is by law expressly dispensed with, §§ 484-486 ; list of all that have been held in the United States. Appendix A., p. 533. Corollaries, 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 B., p. 538. Counter - Kevolutions, description of, § 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. 198; 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 Massachusetts, opinion of, on the binding force upon a Convention, of the Act under which it assembles, §§ 388, 389 ; Appendix C, p. 540; of New York, opinion of, on the same question, §§ 390-399; Appendix D., p. 542; of Illinois, opinion of, as to repeal- ibility of an Act submitted to and adopted by the people, §§ 407, 408 ; of Delaware, 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. D. Dallas, George M., opinion of, as to the pow- ers of Conventions, § 308. Davis, Henry Wmter, speech of, on the Le- compton Convention, § 215. Debates of Conventions, character of, § 457; provisions for preserving, § 275. Delaware, Convention of, of 1776, §§ 141, 142; do. of 1792, ^§ 221-225; do. of 1831 and of 1852, §§ 217,218. Delegates, to Conventions, who may be, §§ 267-269 ; can Conventions receive as, per- sons 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," § 228. 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, §§ 335-365; can Conventions disfranchise? §§ 335-337; 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 fiU them ? §§ 338, 339 ; can Conventions issue precepts to the, directing elections to fiU vacancies? §§ 340-347; 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. Ewing, Thomas, speech of, on the Michi- gan Convention of December, 1836, § 205. Executive, the, one of the agencies through which sovereignty indirectly manifests it- self, § 24 ; relative rank of, § 24 ; impropri- ety of leaving the duty of calling Conven- tions to, § 120; relations of, to Conven- tions, § 366. Executive act, the act of the people in pass- ing upon a fundamental law, not an, §§ 510-513. 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. Pisher, Trial of the Constitution, quoted, as to the inadequacy of the mode provided in the Federal Constitution for its own amend- ment, § 543, note. 556 INDEX. Florida, Convention of, of 1839, §§ 196, 197 ; do. of 1861, §§ 247-249; do. of 1865, §§ 250-259. Frame of Government, as a part of the American Constitutions, definition and contents of, §§ 100, 101. Frankland, State of, § 175. 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, of 1776, § 147 ; do. of 1788, §§ 148, 149; do. of January, 1789, and of May, 1789, §§ 148, 149, 219, note 1; do. of 1795 and of 1798, §§ 217, 218, note 1; do. of 1838, § 219; do. of 1861, §§ 247-249; do. of 1865, §§ 250-259. Government, leading principles of the American system of, § 1; branches or departments of, by which sovereignty is indirectlj' 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, § 43 ; of the United States, partly Federal, partly National, § 43 ; form of, in the colonies, in the early period of the Revolution, §§ 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? §§ 823-324; can a Convention appoint ofiicers to fill vacancies in? §§ 325-330; can a Convention eject from office persons holding office under? §§ 325, 326; can a Convention direct officers of, in the dis- charge of their duties ? §§ 325, 326 ; is an Act calling a Convention a government measure ? § 398 ; is a power to recommend amendments to a Constitution amongst the general powers of? § 555. Grimke, Mr., of South Carolina, opinion of, quoted, § 48. H. Hallett, 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- tions to issue precepts to the electors, § 344. Hamilton, Alexander, opinion of, as to the powers and dutv of the Federal Conven- tion, §§ 40, 385. ' Henry, Patrick, opinion of, as to the locus of sovereignty in the United States, § 42. 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 tern, of the Louisiana Convention of 1864, § 475. Hurd, John Codman, opinion of, as to the locus of sovereignty in the United States, § 60 ; on the distinction between Constitu- tions, as objective facts, and as instruments of evidence, § 63, note 1. Illegitimate and revolutionary, distinction between, § 113. niinois. Convention of, of 1818, § 195 ; 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 against members of, of complicity with Knights of the Golden Circle, §§ 467, 468. Indiana, Convention of, of 1816, § 195 ; do. of 1850, § 219. Instructions, can the electors give, to their delegates to Conventions ? §§ 362-364. Iowa, Convention of, of 1844, §§ 196, 197; do. of 1846, §§ 196, 197 ; do. of 1857, §§ 217, 218. Jay, John, participation of, in the formation of the New York Constitution of 1777, §§ 151, 152. Jeflferson, Thomas, character of the Vir- ginia Convention of 1776, as given by, § 138; opinion of, respecting the repealabil- ity 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 Congress to the Federal Constitution, § 560. 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, of 1855 (Topeka), §§ 211, 212: do. of 1857 (Lecompton), §§ 213- 216; do. of 1859 (Wyandotte), §§ 195, 216; submission of Constitution of, of 1857, to the people, §§ 415, 416, 514:-520. INDEX. 667 Kent, .Tames, Chancellor, opinion of, bearing on the question of American nationality, §48. Kentucky, erection of the District of, into a State; historv of Convention of, of 179-2, §§ 17.3, 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. Ijaw, fundamental, or Constitution, a funda- mental conception in this inquiry, § 17; fiindamentul and ordinary municipal, dis- tinction between, §§ 85-87; duty of legis- latures to frame the municipal, and of Conventions to frame the fundamental, §§ 370-372 ; language of a, § 406. Ijaws, power of Conventions to repeal ordi- nary, §§ 430-434. 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 in passing upon a fundamental law an act of, § 513. Legislative powers, do Conventions possess ? §§ 419. 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; of Vir- ginia, of May 6, 1862, validity of, §§ 191- 193 ; relations 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 Con- vention what it shall or shall not recom- mend, §§ 381, 382; question discussed in various Conventions, §§ 383-387; where Acts of the, which have been voted on by the people, are conceded to bind the Con- vention, source of their validity, §§ 389- 409; can the, bind the Convention by its Acts to submit the fruit of its deliberations to the people V §§ 410-418 ; can a Conven- tion act as a, in matters by the Federal Constitution required to be transacted by the legislatures of the several States? §§ 419, 442, 447; can a Convention prescribe the times, places, and manner of electing Senators and Representatives in Congress ? §§ 442-446 ; can a, as a legislature, ratify proposed amendments to the Federal Con- stitution ? § 447 ; a State, power of a Con- vention to fetter a discretion confided to, by the Federal Constitution, §§ 419, 448- 449 ; where amendments to a Constitution are recommended by a, nature of its act, §§ 547-550 ; extent of the power of a, to recommend amendments to a Constitution, §§ 551-555; where amendments are recom- mended by a, should they be submitted to the executive for approval ? §§ 556-562 , where a State, has once rejected amend- ments proposed by Congress to the Fed- eral Constitution, can it, or its successor, reconsider them ? § 563. Legitimacy, the term defined and illus- trated, §§ 105-108. Lex Farliamentaria, how far the, prevails in Conventions, § 459. Lincoln, Abraham, President, proclamation of, of December 8, 18G3, relating to the reconstruction of the rebel States, § 255. Locus of sovereignty theoretically consid- ered, § 21; considered with reference to historical facts, in the United States and in foreign countries, §§ 26, 27 ; as indicated by Austin's marks or tests, § 28; as indi- cated by the additional marks laid down herein, § 29; as determined by the exer- cise of sovereignty, §§ 56, 57. Louisiana, Convention of, of 1811, § 195; do. of 1844, §§ 217, 218; do. of 1852, §§ 217, 218; do. of 1861, §§ 247-249; do. of 1864, §§ 250-259; do. of 1864, case of arrest by, §§ 469, 470; do. reassembling and dispersal of, in 1866, §§ 474-478; offi- cial proceedings culminating in reassem- bling of, Appendix, E., p. 545. Lowndes, Rawlins, connection of, with the formation of the South Carolina Constitu- tion of 1778, § 136. M. Madison, .Tames, 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, § 309. Maine, erection of, into a State, Convention of, of 1819, §§ 18.3-185. Maine, Henry Sumner, on Ancient Law, quoted, § 66. Manifestation of sovereignty, modes of, §§ Marks or tests of sovereignty, Austin's, § 19 ; additional, laid down herein, § 20. Maryland, Convention of, of 1776, § 145; do. of 1850, §§ 221-225; do. of 1864, §§ 217-218; revolutionary movement in, in 1837, §§ 204, 224. Mason, George, opinion of, as to the powers of the P'ederal 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, 1.58; do. of 1820, and of 1853, § 219; consent of, to the erection of the District of Maine into a State, § 184. 558 INDEX. 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, privileges of, §§ 471, 472. Michigan, Convention of, of 1835, §§ 196- 198, 201, 208; do. of September, 18.36, §§ 196-199, 202; do. of December, 1836, §§ 196, 197, 199-201, 203-209 ; do. of 1850, §§ 217, 218. MUl, John Stuart, quoted, as to the condi- tions of safe political progress, § 529, note. Minnesota, Convention of, of 1857, §§ 195, 270. Misconceptions respecting the nature of Constitutional Conventions, § 15. Mississippi, Convention of, Sf 1817, § 195; do. of 1832, §§ 217, 218; do. of 1861, §§ 247-249 ; do. of 1865, §§ 250-259. Missouri, Convention of, of 1820, § 195; do. of 1845, of 1861, and of 1865, § 219 ; do. of 1865, Ordinance of, to vacate offices under the State government, §§ 327-330. Mode, signification of the terra, when used in reference to sovereignty, § 55. Monarchies, limited, § 70 ; absolute, § 70. Money, power of Conventions to appropri- ate, §§ 435-441. Morton, Marcus, speech of, on the right of Conventions to issue precepts to the elec- tors, § 345. Nevada, Convention of, of 1863, § 195 ; do. of 1864, §§ 196, 197. 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, § 219; do. of 1850, §§ 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; Convention of, of 1801, § 219 ; do. of 1821, § 219 ; do. of 1846, § 219 ; veto of the Council of Revision of, of the Convention Bill of 1820, Appendix B, p. 538: opinion 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. 542. Niles, Senator, speech of, on the Michigan Convention of December, 1836, § 206. Non-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 the State of, to the erec- tion of Tennessee into a State; deed of cession of, §§ 175-182 ; Convention of, of 1835, § 219; do. of 1861, §§ 247-249; do. of 1865, §§ 250-259; Convention of, 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. N. O. Nation, do the United States constitute a? §§ 30-50 ; what it is to be a, § 30 ; what it is not to be a, § 31 ; the consolidation of the United Colonies into a, the evident ■purpose of God and of the men of all times in America, § 34; bearing of the mode of ratifying the Federal Constitution on the question whether the United States constitute a, §§ 36-38 ; opinions of contem- porar3' statesmen 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. Nationality, American, the question of con- sidered, 30-50 ; successive steps in the de- velopment of, in the United States, §§ 34, 35; bearing on the question of our, of the mode of ratify-ing 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. Oath, should members of Conventions take an? §§ 277, 278; form of, §§ 279-283. O'Connor, Charles, argument of, as to the power of Conventions to limit the electors, § 353. Officers 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 gov- ernment? §§ 325-330; can a Convention eject fi'om office persons who are, under the government ? §§ 325, 326 ; can a Con- vention 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, § 195; do. of 1850, §§ 217, 218. Ordinance, of 1787, extension of provis- ions of, to Tennessee, §§ 175, 176; bear- ing of, on the legitimacy of Conventions called within the territory covered by it, §§ 196-207; of the Missouri Convention of 1865, to vacate offices under the State government, §§ 327-330. Oregon, Convention of, of 1857, §§ 196, 197. Organization of Conventions, §§ 272-284; how initiated, § 273. INDEX. 559 P. Parker, Joel, Judge, speech of, on the right of Conventions to issue precepts to the electors, § 346. Passive obedience, doctrine of, explained, 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, §§ 221-225; do. of 1837. § 219. 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, jNIr., of Illinois, opinion of, respect- ing the powers of Conventions, § 308. Pierce, Franklin, President, opinion of, re- specting the Topeka Convention of Kan- sas, § 212. Pinckney, Charles, opinion of, bearing on the question of our nationaliity, § 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 bodv, 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 rights, §§ 315-319; with reference to the government of the state as a whole, §§ 320-330 ; growing out of their relations to the electors, §§ 335-364; to the executive and judiciarv, 365, 366; to the legislature, §§ 367-449 : oif the legislature to bind the Convention, §§ 376-418 ; of conventions to legislate, §§ 419-441 ; to appropriate money, §§ 435-441 ; as legislatures, to prescribe the times, places, and manner of electing sen- ators and representatives in Congress, §§ 442-446 ; as legislatures, to ratify proposed amendments to the F'ederal Constitution, § 447; to fetter a discretion given by the Federal Constitution to State legisla- tures, §§ 448, 449 ; with reference to their internal relations, express and implied, §§ 450-470 ; with reference to their organiza- tion, 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 prolong or per- petuate their existence, §§ 473-478. Precedent, definition of the term, § 112. Presumptions, constitutional, doctrine of, stated and explained, § 25. Printing, power of Conventions to furnish, §§ 455-459. Privileges of members of Conventions, §§ 471, 472. Promulgation of Constitutions, §§ 521-524. Punish, power of Conventions to, their own members or strangers, §§ 460-470. R. Ramsay, Dr., opinion of, bearing on the question of American nationality, § 47; quoted, as to the character of "the first South Carolina Constitution, § 134; quo- ted, as to the South Carolina Convention of 1778. Kandolph, Edmund, Governor of Virginia, opinion of, as to the function and duty of the Federal Convention, § 40 ; the government of the Confederation characterized by, § 162, note 1 ; opinion of, as to the powers of Conventions, § .309, 384. Randolph, John, of Koanoke, opinion of, as to the powers of Conventions, § 310. Reconsideration, relaxation of rule as to, in some Conventions, § 284. Reporters for Conventions. § 275. Reports in Conventions, how made, §§ 298- 301; 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, § 113. 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. Rome, development of nationality of, § 33. Ruggles, Mr., proposition of, in the New York Convention of 1846, that future Con- ventions should consist of two chambers, § 270. Rules of Order, in Conventions, § 284. Rutledge, President, of South Carolina, refusal of, to assent to the South Carolina Constitution of 1778, § 136. s. Schedule, as part of a Constitution, history and uses of, §§ 102, 103. Secession, connection of, with the constitu- tional Convention, § 3 ; Convention of Vir- ginia, § 186. Sergeant-at-Arms, employment of, in Con- ventions, §§ 454. Singleton, Mr., of Illinois, resolution of, re- specting the powers of Conventions, § 310. 560 INDEX. South Carolina, advice of Congress to, with reference to founding new government in, § 127: Convention of, of 1776, §§ 133, 134; do. of 1778, § 135; first two Constitutions of, judicial decision respecting validitv of, § 136 note 2 ; Convention of, of 1790, § 219; do. of 1860, §§ 247-219; do. of 1865, §§ 250-259. Sovereign, the, a fundamental conception in this inquiry, § 17; delinition 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- tions 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; bcus of, theoretically considered, § 21; direct modes of manifestation of, § 23 ; indirect, § 24 ; con- sidered with reference to historical facts, in foreign states, § 26; do. in the United States, §§ 27 ; locus of, as indicated by the definition of sovereignty, § 27 ; as indicated by Austin's marks "or "tests, § 28; as indi- cated by the additional marks or tests, § 29 ; question of American nationality, as bear- ing on the hcus of, §§ 30-50; if the United States constitute a nation, inheres in the nation, or people of the United States, § 51 ; how sovereignty inheres in the people of the United States, §§ 54-61; exercise of, how related to possession of original, § 56; reg- ular exercise of, distinguished from the possible exercise of, § 56 ; locus of, as de- tennined 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 dis- criminated into groups by States, § 57 ; in what capacity the States exercise, § 58; opinion of John Austin, as to locus of, in the United States, § 60; opinion of John C. Hurd, § 60; do. as to mode in which it inheres in the people of the United States, § 60; opinion of Dr. Brownson, § 61; of Conventions, §§ 307-311; theory of, a nov- elty, § 311, 312 ; connection of the theory of conventional, with the rise and progress of pro-slavery fanaticism, § 312 note 1 State, the term, how employed in this trea- tise, § 17, note. States, the, were never sovereign, §§ 49,50; in what capacity the, exercise sovereign 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. Story, Joseph, Justice, opinion of, bearing on the question of American nationality, § 48; charge of, to the jury in the Rhode Island case, § 230. Submission of Constitutions to the people ; can Conventions be bound by the Acts call- ing them, to make? §§ 410-418; double, of the Kansas Constitution of 1857, §§ 4!5, 416 ; dut}"^ 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 ; 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. Suffrage, true theory of, §§ 335-337. Sully, remarks of, respecting the populace, §26. Supreme, distinguished from sovereign, § 18, note 1. Taney, Chief Justice, opinion of, in the Rhode Island case of Luther v. Borden, § 231. Tennessee, formation into a State, Conven- tion of, of 1796, §§ 175-182; do. of 1834, §§ 217, 218; do. of 1861, §§ 247-249; do. of 1865, §§ 250-259. Texas, Convention of, of 1845, § 195; do. of 1861, §§ 247-249; do. of 1866, §§ 250- 259. Topeka Convention, of Kansas, §§ 211-212. Treaty, with France, of 1803, bearing of, on the legitimacy of the Conventions called to frame the first Constitutions of Arkan- sas, Iowa, and Kansas, § 197 ; with Spain of 1819, bearing of, on the legitimacy of the Convention called to frame the first Constitution of Florida, § 197 ; with Mex- ico, of 1848,bearing of, on the legitimacy of the Conventions called to frame the Con- stitutions of California and Nevada, § 197. 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, § 138, 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 liistory, § 34; possibility of a compulsory, contem- plated previously to 1789, § 41, note 2. United States, locus 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. INDEX. 561 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 general observations on, § 220, and note 1. Veto of Roman Tribunes contrasted with the nej^^ative of an American executive, §§ 510, 511; of the New York Council of Re- vision of the Convention bill of 1820, Ap- pendix B., p. 538. Virginia, resolutions of, of 1799, §§ 49, 50; advice of Congress to, relative to founding new government in. § 127 ; Convention of, of 1776, § 138; resolutions of House of Delegates of, recommending a general Con- vention to revise tlje Articles of Confeder- ation, § 163; consent of, to the erection of tlie Kentucky District into a State, §§ 173, 174; Ordinance of Secession passed by, § 186 ; Reconstruction Convention of, of 1861, §§ 187-189; Convention of, of 1829, § 219; do. of 1550, § 219; do. of 1861 (Secession), §§ 247-249; do. of 1864 (Reconstruction), §§ 250-259. w. on the question of American nationality, § 47. ■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 legis- lature in recommending specific amend- ments to a Constitution, § 549. V7ells, J. Madison, Governor of Louisiana, issues writs of election in 1860. to till va- cancies in the reassembled Convention of 1864, § 475. West Virginia, erection of, into a State, §§ 186-190; validity of the proceedings re- sulting in, considered, §§ 191-193 Wilson, James, opinion of, respecting the powers of the Federal Convention, §§ 43, 309. Wisconsin, Convention of, of 1846, § 195 ; do. of 1847, § 196, and note 2. "Wise, Henry A., opinion of, respecting time necessary to make a good Constitution, § 457. Wyandotte Convention of Kansas, § 216. Washington, Bushrod, Justice, decision of, as to rights attaching in the States to mere citizenship, § 359. WasMugton, George, opinion of, bearing Yancey, William L., opinion of, as to the powers of Conventions, § 311, note 2. Young, Thomas, advice of, to the people of Vermont, § 153. 36 THE END. ^■0 iC-