§ 222. The Council of Censors having twice met- in 1783 and 1784 and having failed by a constitutional majority to agree upon calling a Convention, to consider amendments deemed necessary by a majority of that body, adjourned September 25, 1784, to meet again on the day preceding the next general election; but in fact never again convened.

At the session of the General Assembly in March, 1789 - the year preceding the time fixed by the Constitution for the meeting of the next Council of Censors resolutions were passed

calling the attention of the people to the subject of amending their Constitution, and suggesting that, should they concur with the House in the opinion that a Convention should be called for that purpose, it would be "convenient and proper for them to elect members of a Convention of the same numbers and in the like proportions for the city of Philadelphia and the several counties with those of their representatives in Assembly, on the day of the next general election, at the places and in the manner prescribed in cases of elections of members of Assembly by the laws of the State." The resolutions further provided, that on the pleasure of the people in the premises being signified to them at their next sitting, they would provide by law for the expenses of the Convention, and, if requested, would appoint the time and place for the meeting thereof.

At the next session of the Assembly, in September following, it appearing to the satisfaction of that body, by petitions and the reports of members, communicating the results of their inquiries during the vacation of the Assembly, that a Convention was expedient and proper in the general opinion of the people of the State, resolutions were passed calling a Convention, to meet at Philadelphia on the fourth Tuesday in November, 1789. Delegates were accordingly elected, and, assembling on the day appointed, framed and established the Constitution of 1790.

§ 223. Article XXX. of the Delaware Constitution of 1776 provided as follows:

"No article of the Declaration of Rights and Fundamental Rules of this State agreed to by this Convention, nor the first, second, fifth (except that part thereof that relates to the right of suffrage), twenty-sixth, and twenty-ninth articles of this Constitution, ought ever to be violated on any pretence whatever; no other part of this Constitution shall be altered, changed, or dimin

ished, without the consent of five parts in seven of the Assembly, and seven members of the Legislative Council."

As the Assembly contained seven members only, and the Legislative Council nine members, it is evident that no change whatever could be made in the Constitution, legally and constitutionally, save by the direct action of both the Assembly and the Legislative Council, and then only by a majority of fivesevenths of the one and seven-ninths of the other. The phraseology being negative, no room was left for the employment of any alternative method. A Convention could not be called for the purpose of changing or abolishing the Constitution without a palpable infringement of its provisions.

Nevertheless, in 1791, amendments to the Constitution being very generally deemed necessary, the legislature passed an Act calling a Convention, with a view to effect them. In the preamble to this Act, the grounds upon which that body based its action are exhibited in the following terms:

"By the thirtieth article of the Constitution of this State, the power of revising the same, and of altering and amending certain parts thereof, is vested in the General Assembly; and it appears to this House, that the exercise of the power of altering and amending the Constitution by the legislature would not be productive of all the valuable purposes intended by a revision, nor be so satisfactory and agreeable to our constituents; and that it would be more proper and expedient to recommend to the good people of the State to choose deputies for this special purpose to meet in Convention." Then follows the enacting clause authorizing the election of delegates to a Convention to change the Constitution. A Convention was accordingly elected, with the general approbation of the people of Delaware, by which a new Constitution was framed and put in operation in the following year.

§224. The action of the people of Maryland, in calling the Convention of 1850, was similar to that just described. Section LIX. of the Maryland Constitution of 1776, contained this provision:

"That this form of government, and no part thereof, shall be altered, changed, or abolished, unless a bill so to alter, change, or abolish the same shall pass the General Assembly, and be published at least three months before a new election, and shall

be confirmed by the General Assembly after a new election of delegates, in the first session after such new election."

The whole power of the State having, under the Constitution of 1776, come to be exercised by a minority of the citizens, efforts were repeatedly made, but without success, to induce the General Assembly to effect the needed changes in that instrument. In 1837, the impatience of the reform-party nearly led to hostile collisions with the existing government, the former taking steps to call a Convention for the purpose of framing a new Constitution, without the authority and against the will of the General Assembly; and the latter, through the State executive, denouncing such an act as rebellious, and threatening with punishment all who should engage in it. At length, at the session of the General Assembly held early in 1850, an Act was passed submitting to the people of Maryland the question, whether or not a Convention should be called to revise the Constitution. The vote was taken at an election held in May of that year, and resulted in a majority in favor of a Convention. The whole number of votes cast, however, was only about twenty thousand- the total number of voters in the State being over sixty thousand. A Convention was thereupon assembled, on the first Monday in November, 1850, which, in a session lasting until the 13th of May, 1851, adopted the Constitution known as that of 1851. This Constitution was, in pursuance of one of its own provisions, submitted to a vote of the people on the 4th of June following, and being ratified by a majority of those voting, went into operation on the 4th of July, 1851.

§ 225. Respecting the three Conventions of this class, I need only observe, that in respect of their origin, they were wholly illegitimate. The first that of Pennsylvania was not called in the mode provided by the Constitution, to which, whether wisely or unwisely, the people of the State had, by a solemn provision of that same instrument, specially restricted their agents and themselves. So also with that of Delaware. By its Constitution of 1776, no organic change could be made except upon the concurrence of two conditions: first, a favoring vote of five parts in seven of the Assembly; and, second, a like vote of seven of the nine members of the Legislative Council. Nor 1 M'Sherry's Hist. Md., pp. 348–353.

could any such change be constitutionally made in Maryland ex-. cept on the concurrence of three conditions: first, the passage, by the General Assembly, of an Act for that purpose; second, the publication of the proposed amendment for the information of the people, for at least three months prior to a new election of that Assembly; and, third, the confirmation of the Act by such new Assembly. Not one of the conditions mentioned was fulfilled in the case of either of those States. The legislatures, instead of proceeding to do what was desired, by their own direct action, as their respective Constitutions commanded, attempted to delegate the work to Conventions called by themselves a thing clearly prohibited by those instruments. It is obvious, that to justify such proceedings, on legal grounds, would be to take away from the fundamental law that characteristic quality by which it is the law of laws. If the supreme law of the land. it be not the supreme law, for all the purposes of a Constitution, in the American sense, it might as well be a piece of blank paper.

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In this discussion I do not meddle with the question, Whether, in the cases indicated, the course taken to effect constitutional changes was necessary or not? in other words, Whether the revolution consummated by the legislatures of those States was unavoidable, and so morally defensible? It may be admitted, that the constitutional provisions I have quoted were injudicious; that in communities like ours, rapidly increasing in wealth and population, they were certain, sooner or later, to lead to heart-burnings, if not to outbreaks of revolutionary violence. But this does not affect the legal question I am discussing, namely, Whether, tested by the principles of our constitutional system, the mode of securing the desired reforms did not involve a flagrant usurpation on the part of those legislatures? There is, in my judgment, no way in which the action of those bodies, in those cases, can be justified, except by affirming the legal right of the inhabitants of a given territory, organized as a body politic, to meet at will, as individuals, without the authority of law, and, on their own claim that they are the people of the State, to dictate to the government such changes in its laws, Constitution, or policy, as they may deem desirable. This question I do not stop here to discuss, as it will be necessary for me to consider it fully hereafter, when I come to treat of the

remaining class of Conventions, called irregularly, though for legitimate constitutional purposes, to which I now pass.

§ 226. 2. The next variety of Constitutional Conventions, called irregularly, namely, those called in defiance of the existing governments of the States concerned, though in pretended conformity to constitutional principles, embraces but a single Convention, the so-called "People's Convention" of Rhode Island, held in 1841.1

For nearly two centuries prior to the meeting of that Convention, Rhode Island had governed herself under a Charter of King Charles II., of a character so democratic that, at the Revolution, it was deemed unnecessary to alter or abolish it. As the State advanced in wealth and population, however, some of the provisions of the Charter became very unsatisfactory to a large portion of the citizens, particularly that regulating the right of suffiage; and naturally so; for at the time the agitation commenced, which resulted in the call of the People's Convention, the legislature of Rhode Island was elected by less than one half of the white male adult resident citizens of the State; and so far was the body from representing the people proportionately, that the majority of the Assembly was elected by about one-third of the freemen.2 Rhode Island, moreover, originally agricultural, had undergone great changes, many of its smaller towns becoming great manufacturing centres; while what were once its chief cities had become much diminished in population. Thus Newport, formerly the principal town, had sunk to a population of 8000, while Providence had risen to nearly 24.000; yet Newport continued to be represented by six, and Providence by four, representatives, which was also the number sent by Portsmouth, whose population was but 1700.8 To change this system, efforts had been made from time to time for many years. In 1824, a Convention was called by the legislature, and a Constitution framed and submitted to the people, but was rejected by them. Ten years later another Convention was called, but broke up without completing its task. In January, 1841, the legislature called a third Convention, which met in November following; but, adjourning for the express pur1 Two Conventions were held in Rhode Island in 1841, one legitimate, before referred to (§ 219, note 1), and the other above described.

2 Democratic Rev. for 1842, Vol. II. p. 70.

8 Ibid.