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

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

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

I. What is the proper mode of initiating a Convention, looking at the question from the point of view of theoretical principles?

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

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

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

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

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

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

The rejected delegations might really represent the majority. At any rate, believing themselves to do so, or pushed on by passion to pretend it, rival Conventions, each announcing itself as "the people in their sovereign capacity," might assemble, and harass the State by conflicting ordinances, heralded as supreme laws for its citizens. In all this, there would be, at bottom, no legality, because done without law, in the face of the existing government. One of the most important ends of government, is to ascertain, for the citizen, who are the magistrates, and what are the laws. Under its ægis, he can never be embarrassed by two sets of functionaries asserting validity for two rival sets of laws or two opposing Constitutions. Looking at those whom he knows to represent the sovereign, the officers of the existing order, he can rest satisfied, that what they recognize as legal is so, and what they denounce as illegal, is illegal. The mode of calling Conventions now in question would render this impossible. No citizen could know either the magistrate, the Constitution or the laws he was bound to obey. A Convention, then, called in such a mode, it would be a perversion of language to style legitimate.1

§ 116. 2. The other mode of calling Conventions is by an authentic act of the sovereign body acting through some branch of the existing government representing it, as the electors, or one of the three departments - legislative, executive, and judicial. The propriety of this mode is inferrible from considerations, already presented, of the embarrassments resulting from any other possible mode. But it is easy to demonstrate the absolute impropriety of any other mode. In a former chapter, we have seen, that any body of men claiming to act in the name of the sovereign, in the discharge of any political function, must be presumed to be impostors or usurpers, unless exhibiting a warrant so to do from the sovereign, in the shape of some law or constitutional provision.2 If it have no official character whatever, its individual members are impostors. If, having a quasi-official character from that of its individual members, as belonging to the system of agencies established by the body politic and constituting the government, it nevertheless assume a function not intrusted to 1 See Webster's Works, Vol. VI. pp. 224-229. 2 See § 25, ante. Also Webster's Works, ubi sup.

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

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

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

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

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

To

§ 119. (b). Should the power of calling Conventions be left to the judicial department? It is very doubtful whether the

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

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