length, on the 21st of January, 1786, the House of Delegates of Virginia appointed eight commissioners, to meet such others as might be appointed by the other States, at a time and place to be agreed upon, with instructions "to take into consideration the trade of the United States . . . . to consider how far a uniform system in their commercial regulations may be necessary; and to report to the several States such an Act relative to this great subject, as, when unanimously ratified by them, will enable the United States in Congress assembled effectually to provide for the same; that the said commissioners shall immediately transmit to the several States copies of the preceding resolution, with a circular letter requesting their concurrence therein, and proposing a time and place for the meeting aforesaid." 1

This resolution was the origin of what is known as the Annapolis Convention; the instructions to the Virginia commissioners being carried out by them and delegates, according to their invitation, assembling from several of the States at Annapolis, the place named for the purpose by the commissioners. Toward the object for which it was assembled, the Annapolis Convention did nothing directly, only five of the States responding to the call; but it gave expression to its "unanimous wish, that speedy measures may be taken to effect a general meeting of the States in a future Convention, for the same and such other purposes as the situation of public affairs may be found to require." The delegates then stated that, in their opinion," the idea of extending the powers of their deputies to other objects than those of commerce, which has been adopted by the State of New Jersey,2 was an improvement on the original plan, and will deserve to be incorporated into that of a future Convention." They further recommended "a Convention of deputies from the different States, for the special and sole purpose of entering into this inquiry, and digesting a plan for supplying such defects as may be discovered to exist;" and that the Convention meet on the 2d Monday in May, 1787, at Philadelphia, "to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the Con

1 Ell. Deb., Vol. I. pp. 93-100.

2 New Jersey had instructed her delegates to the Annapolis Convention "to consider how far a uniform system in their commercial regulations and other important matters might be necessary.”

stitution of the Federal government adequate to the exigencies of the Union, and to report such an act for that purpose to the United States in Congress assembled, as, when agreed to by them, and afterwards confirmed by the legislatures of every State, will effectually provide for the same."

Having published the above recommendations, the Convention adjourned, September 14, 1786.

§ 164. The two documents mentioned in the last sectionthe instructions to the Virginia delegates and the recommendations of the Annapolis Convention-evidently contemplated nothing more than an amendment of the Articles of Confederation, in the main according to the mode pointed out by the thirteenth of those Articles. The course of action recommended by the first, however, involved a variation from that mode in one particular not contained in the second, namely, in that it required the act relative to trade regulations, which the commissioners. might mature, to be reported "to the several States," and to take effect "when unanimously ratified by them." The Annapolis Convention, on the other hand, recommended that the Convention to meet at Philadelphia in May following, should "report such an Act" in regard to the interests of the Union, therein mentioned, "to the United States, in Congress assembled, as, when agreed to by them and afterwards confirmed by the legislatures of every State," would "effectually provide for the same.” In other words, the Virginia instructions proposed to amend the Articles of Confederation by referring the new or additional Articles to only one of the sources of authority prescribed by the Articles themselves, that is, to the States, omitting "the Congress of the United States," which body, by the 13th Article, was first to agree upon them. In this respect, the recommendations of the Annapolis Convention are free from objection, since the course pointed out by that body for securing amendments to the Articles was in scrupulous conformity to the 13th Article, except that they went further than the latter in proposing to call a Convention to frame such amendments in the first instance a step not provided for in the 13th Article. Indeed, that Article contained no indication of the persons by whom amendments to the Articles should or should not be suggested or proposed, but required only that they should be agreed to and confirmed in a particular manner, that is, first, by the Congress, and then by the State legislatures.

§ 165. From these seeds sprang the Federal Convention of 1787, by which was framed the present Constitution of the United States.

The recommendations of the Annapolis Convention having been communicated by letter to Congress, that body, on the 21st of February, 1787, passed the following preamble and resolution :

Whereas, there is provision in the Articles of Confederation. and Perpetual Union for making alterations therein, by the assent of a Congress of the United States and of the legislatures of the several States; and, whereas, experience hath evinced that there are defects in the present Confederation, as a means to remedy which several of the States, and particularly the State of New York, by express instructions to their delegates in Congress, have suggested a Convention for the purposes expressed in the following resolution; and such Convention appearing to be the most probable means of establishing in these States a firm national government,

"Resolved, That, in the opinion of Congress, it is expedient that, on the 2d Monday in May next, a Convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the Federal Constitution adequate to the exigencies of government and the preservation of the Union." 1

In pursuance of this resolution, delegates were chosen and met at Philadelphia on the day appointed, and by them was matured, in a session of something over four months, the present Constitution of the United States. The first State to act upon the resolution was Virginia, whom all the other twelve States followed in the course of a few months, and before the assembling of the Convention, except New Hampshire, Connecticut, and Maryland, whose delegates were appointed and accredited after that body had been organized at Philadelphia.

§ 166. The question as to the legitimacy of the Federal Convention, in the sense in which I have defined that term, is not a difficult one to answer.

1 Ell. Deb., Vol. I. pp. 119, 120.

2 See §§ 105-108, ante.

There being, as I have shown, in the Articles of Confederation, no specification of the persons by whom, or of the mode in which, alterations of those Articles should be proposed, but only of the manner in which they should be ratified and established, some range was left to the people of the Union for a choice both of persons and mode. The only limitation, indeed, upon their action, was, that whatever mode and whatever persons should be employed, there should be a substantial conformity to the principles presiding over the genesis of Constitutions, described in a former chapter, of which the most important are, first, that the work shall be committed to persons duly commissioned by the existing government, for the sole and express purpose of accomplishing that work; and, secondly, that to the sovereign body shall be accorded an opportunity fully and freely to express its will in relation to the call of such Convention.

That the Federal Convention conformed to the first of these principles, in all essential particulars, is beyond question. It was made up of delegates appointed by the legislatures of the several States, assembling, on the basis of federal equality, for the sole and express purpose of proposing such alterations of the existing Constitution as should make it adequate to the exigencies of government and the preservation of the Union.

It, also, in my judgment, conformed substantially to the second. The sovereignty of the Union, as then constituted, resided in the people of the United States, either as a unit or as distinguished into groups under the name of States. Hence, it is evident that when the Congress, which represented the sovereign as a unit, recommended and called the Convention, and the State legislatures, which collectively represented that sovereign as distinguished into the groups known as States, acceded to that recommendation and appointed delegates to the Convention, nothing more could be needed to show that the call of that body was made with the assent, if it was not directly the act, of the sovereign authority of the Union.

Whether or not, in any of its acts, that Convention exceeded its jurisdiction, assumed revolutionary powers, and thus, so far, divested itself of its original character as a Constitutional Convention; whether or not, in other words, the Constitution proposed by it was the fruit of a fair exercise of the powers in

trusted to it, or, on the other hand, was the offspring of violated instructions, of usurpation, is a different question, which will be considered further on.1

§ 167. The Conventions of the eleven States which ratified the Federal Constitution, previously to its establishment in March, 1789,-the only remaining ones held during the Revolutionary period, - were all regularly called by the legislatures of their respective States." The same may be said of the two Conventions which ratified that Constitution subsequently to its establishment those of North Carolina and Rhode Island as well as of the Convention of the independent republic, Vermont, whose ratification was dated January 10th, 1791.

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The only observation I deem necessary respecting these Conventions is, that they differ from the great bulk of the Conventions held in the United States, in that their function was, not to mature, but to adopt and establish, a code of organic law. Doing this, however, under special instructions, I have considered those bodies as belonging to the class of Constitutional Conventions. This mode of enacting Constitutions has been practiced by several of the States. Under the first Constitution of Pennsylvania, and under all those of Vermont, constitutional changes have been recommended by bodies called Councils of Censors, and then passed upon by Conventions called for that express and only purpose. What has in those States been a matter of Constitutional regulation, has in several instances occurred in other States, generally, and perhaps always, without special authorization in the fundamental law. Thus, the second Constitution of the State of Georgia was framed by a Convention which assembled in 1788, and was submitted for adoption to two Conventions held in 1789, by one of which certain amendments to the plan were proposed, and by the other were ratified and established.3 In a few cases a similar use has been made of Conventions in new States, to give the sanction of such States, in a solemn and authentic form, to amendments to their Constitutions demanded by Congress as conditions of their admission into the Union. Such Conventions were those of

1 See §§ 383-386, post.

2 See Appendix B, for a list of these bodies.

3 See § 148, ante.