I mention them merely as illustrations of the inherent and almost boundless power of a Convention." 1

So, in the Illinois Convention of 1847, Mr. Peters said: “He had and would continue to vote against any and every proposition which would recognize any restriction of the powers of this Convention." "We are," he continued, "the sovereignty of the State. We are what the people of the State would be, if they were congregated here in one mass meeting. We are what Louis XIV. said he was, 'We are the State.' We can trample the Constitution under our feet as waste paper, and no one can call us to account save the people."

But two further extracts will be given upon this side of the question, taken from the proceedings of the Illinois Convention of 1862. A committee, composed of some of the leading jurists in that body, in a report upon the subject of electing a printer, said: "When the people, therefore, have elected delegates, . . . . and they have assembled and organized, then a peaceable revolution of the State government, so far as the same may be effected by amendments of the Constitution, has been entered upon, limited only by the Federal Constitution. All power incident to the great object of the Convention belongs to it. It is a virtual assemblage of the people of the State, sovereign within its boundaries, as to all matters connected with the happiness, prosperity, and freedom of the citi zens, and supreme in the exercise of all power necessary to the establishment of a free constitutional government, except as restrained by the Constitution of the United States."3 In a speech in the same body, General Singleton said: — "Sir, that this Convention of the people is sovereign, possessed of sov ereign power, is as true as any proposition can be. If the State is sovereign the Convention is sovereign. If this Convention here does not represent the power of the people, where can you find its representative? If sovereign power does not reside in this body, there is no such thing as sovereignty." 4

§309. On the other hand, the theory which regards Conven1 To a similar effect are remarks of Mr. Mitchell, in the Kentucky Convention of 1849, Deb. Ky. Conv. 1849, p. 863; also of B. F. Butler in the Massachusetts Convention of 1853, Deb. Mass. Conv. 1853, Vol. I. pp. 78, 97.

2 Illinois State Register of June 10, 1847.

8 Id. of January 10, 1862.

Id. of January 17, 1862.

tions as advisory bodies simply, with limited powers, has been broached in equally explicit terms. The earliest case in which the powers of such bodies were brought into discussion, was that of the Federal Convention of 1787. The credentials of the delegates to that body, as is well known, contemplated only a revision of the Confederation, leaving it still a mere confederate system. On assembling, however, those delegates were generally satisfied, that any government, formed by patching up the old Confederation, would be wholly inadequate, and that what was wanted was a firm national government. But then arose the embarrassing question, was it competent for that body to disregard its instructions and frame such a system as it deemed absolutely necessary for the salvation of the country? The answer given to this question marks, indisputably, the sense of the statesmen of the Revolution as to the real nature of the Convention. Their answer was, in substance, that by strict law the Convention had no power nor right to disregard the instructions of the legislative Assemblies by which they were deputed, on whose call they had assembled; but that, under the controlling necessities of the times, they would venture to disregard those instructions, since, after all, the power of ultimate decision was to be in the people, the Convention having authority only to recommend, not to act definitively. Thus, Mr. Wilson, of Pennsylvania, one of the profoundest jurists our country has ever produced, said: "With regard to the power of the Convention, he conceived himself authorized to conclude nothing, but to be at liberty to propose any thing." So, Governor Randolph, of Virginia, referring to his own plan of a national government, which was afterwards made the basis of the Constitution, as adopted, said: "The resolutions from Virginia must have been adopted on the supposition that a federal government was impracticable. And it is said, that power is wanting to institute such a government; but when our all is at stake, I will consent to any mode that will preserve us. . . . . Besides, our business consists in recommending a system of government, not in making it." Mr. Madison, also, contrasting the plan of Mr. Randolph with the federal plan introduced by Mr. Paterson, of New Jersey, said: "The principal objections against that of Mr. Randolph were the want of power, and the want of practica1 Elliott's Deb., Vol. V. p. 196. 2 Elliott's Deb., Vol. I. p. 416.

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bility. There can be no weight in the first, as the fiat is not to be here, but in the people.' In this most important Convention, then, of which many of the founders of our institutions were members, the power proper only for a sovereign, of definitive legislation, was not only not claimed for that body, but it was expressly disclaimed.

§ 310. Similar views have been expressed by members of later Conventions. In the Virginia Convention of 1829, John Randolph said: "Sir, we have been called as counsel to the people

as State physicians to propose remedies for the State's diseases, not to pass any Act which shall have in itself any binding force. We are here as humble advisers and proposers to the people." 2 In the Illinois Convention of 1847, a resolution was introduced by Mr. Singleton, containing his views of the powers and duties of that body, as follows: -"Resolved, that this Convention is limited in its purposes and powers; its object being to propose, for the acceptance of the people, such changes in their present Constitution as to the Convention may appear 1 Elliott's Deb., Vol. V. p. 216.

2 Deb. Va. Conv. 1829, p. 868. Even if the legislature, in its Convention Act, had assumed to give the Convention unlimited power, Mr. Randolph maintained that it could not exercise it. Thus, in the Virginia Convention Act of 1829, the Convention was authorized to submit the amended Constitution to the voters of the Commonwealth qualified under its own provisions. Adverting to this authorization, Mr. Randolph denied that either the legislature had power to give, or the Convention to act upon it. Upon this point, he said: "Does not the gentleman from Frederick distinctly see that, if his doctrine be correct, we are giving a Convention power to bind conclusively the people of Virginia quoad the right of suffrage? . . . I shall be told that we have been clothed with this power. Are we? The legislature, I grant, have been very kind in clothing us with a power they did not possess. If the gentleman's doctrine be correct, then the legislature of Virginia — who cannot touch the subject without an act of treachery themselves have given to the Convention power, as to the right of suffrage, to bind the people of Virginia; converting us . . . from an advisory into a controlling council. . . . If that be true, then, by a juggle between the legislature, who were without power themselves, and a Convention, who were called only to advise the people, an act is to be done by which the people are to be finally bound. . . . In the all-important question of the right of suffrage, this Convention is to exert an absolute power to decide, without consulting the people at all. How do we derive it? From a Virginia legislature who never possessed it. To refer to the legislature is only putting a tortoise under the elephant. Thus power rests upon the elephant, the elephant upon the tortoise, and the tortoise upon nothing. Sir, this won't do. It won't do."

necessary, limited, in these changes, by the true principles of a republican government, and, in the conduct of its body, by the Constitution of this State, as far as it is applicable. That this Convention has no power to repeal or modify any Act of the General Assembly of this State, otherwise than by constitutional provision, subject to the ratification of the people, or do any other act not necessary to the discharge of the trust confided to it." Upon this resolution an animated debate arose, in the course of which the two theories of the Convention I have explained were distinctly propounded; the most outspoken and extravagant assertion of sovereign powers for the Convention being that made by Mr. Peters in the terms quoted in a preceding section. The result of the debate was, the adoption of a mild resolution which avoided the disputed points, as a substitute for the foregoing one, by a vote of 87 to 64. Other extracts might be added, from the debates of other Conventions, and particularly that held in Illinois in 1862, in which the two theories of the powers of those bodies were elaborately discussed. Enough, however, has been given, to answer my purpose, which is simply to illustrate, by actual examples, the scope and tenor of the divergent theories entertained on the subject.

§ 311. Of these two theories, it is important now to note, that the first, which attributes to the Convention powers amounting sometimes the State alone considered, in which the body meets -to absolute sovereignty, is of modern origin. The records of our Conventions reveal no trace of it earlier than the New York Convention of 1821, from which an extract has been given.2 In 1829, it again made its appearance in the Virginia Convention, but obscurely and hesitatingly. A question arose as to the power of that Convention to disregard positive instructions of the legislature relative to the submission of the fruit of its labors to the people, in the discussion of which, doctrines were propounded which afterwards ripened into the theory in question. The next appearance was in the letter of Mr. Dallas, from which an extract has been given above, and in the Convention held in Pennsylvania in the following year the latter the fruit of the seed sown by that gentleman. The theory, however, was but partially propounded in the Convention, traces of it lurking in a

1 Journal Illinois Conv. 1847, p. 13.

2 See ante, § 308.

scarcely recognizable form in certain assertions of power, made for particular purposes. The boldness of the position taken by Mr. Dallas had excited opposition in the State, and caution was necessary. In the struggles preceding the meeting of that Convention, the advocates of reform had succeeded in inducing the legislature to call the body, but subject to stringent limitations, in regard to the submission of its amendments to the people. On assembling, a discussion arose between the advocates and opponents of reform as to the extent and nature of the powers of the Convention, thus limited; whether it was or was not restricted to submitting amendments, or whether it might not, on the one hand, frame a new Constitution, or, on the other, adjourn without proposing any change whatever. During this discussion, opinions were occasionally expressed, which indicated that the theory of conventional sovereignty had been making progress since its first appearance in New York a few years before.

Ten years afterwards, this theory was enunciated, in the terms we have seen above, by Mr. Peters, in the Illinois Convention of 1847. In 1849, it made its appearance in the Kentucky Convention, and four years later, in that of Massachusetts, under the patronage of Messrs. Hallett and Butler. In 1860-1861, it produced its legitimate fruits in the so-called secession of the eleven slaveholding States from the Union, a movement matured and consummated by its aid; and finally, in 1862, its echo was heard in the free State of Illinois, some members of whose Convention unwisely seized upon a time of national peril to endorse a disorganizing dogma, in the general adoption of which at the South that peril had originated.2

1 Ante, § 308.

2 The notions entertained in the seceding States, as to the powers of Conventions, may be inferred from the following extract from a speech made by the Hon. William L. Yancey, in the Alabama Convention of 1861. The question being on the submission of the Ordinance of Secession to the people, that gentleman said:

"This proposition is based upon the idea, that there is a difference between the people and the delegate. It seems to me that this is an error. There is a difference between the representatives of the people in the law-making body, and the people themselves, because there are powers reserved to the people by the Convention of Alabama, and which the General Assembly cannot exercise. But in this body is all power- no powers are reserved from it. The people are here in the persons of their deputies. Life, Liberty, and Property are in our hands. Look to the Ordinance adopting the Constitution of Alabama. It