312. Such has been the career of this famous political dogma, as exhibited in Conventions recognized by their respective States as legitimate. In the mean time, in Maryland, in 1837, coupled with the heresy that a mere majority in numbers of the adult male citizens, without regard to legal provisions, can at any time call a Convention to alter or abolish the Constitution, it came near flaming into actual revolution-a call for a Convention being issued by private individuals, who only desisted from their illegal purpose, upon the appearance of a proclamation of the Governor denouncing it as treasonable. Five years later the same doctrines ripened and produced their legitimate fruits in Rhode Island, in the Dorr rebellion, of which a history was given in a preceding chapter. In that State, a Convention, called by unofficial persons, and claiming to represent the people of Rhode Island, because deputed by a majority of all the male citizens of twenty-one years of age, resident in the State, though not by a majority of the legal voters at a regular election, framed a Constitution, and attempted by force of arms to maintain it as the legitimate Constitution of the State.

In these proceedings, the alarming position was taken, that not only could a Convention be got together in defiance of the existing government, but, when assembled, it could remodel that government, eject from office those charged with its administration, without their consent or that of the electoral body, on which the whole political structure was immediately bottomed. Such was the first conspicuous practical application of the theory of conventional sovereignty. The second has been already referred to, as exhibited on a more imposing scale, in 1860–1861, when eleven States sought, under its inspiration, to break in pieces the temple of the Union.1

states, 'We, the people of Alabama,' &c., &c. All our acts are supreme, without ratification, because they are the acts of the people acting in their sovereign capacity."- Hist. & Deb. Ala. Conv. 1861, p. 114.

1 Comparing the dates of the various Conventions, in which the theory of conventional sovereignty has been propounded, with those of the successive tides of pro-slavery fanaticism in the United States, it is difficult to resist the conviction, that the assertion of that theory was connected with the great conspiracy which culminated in the late Secession war. Was it foreseen, that to carry out the design of disrupting the Union, with an appearance of constitutional right, new conceptions must become prevalent, as to the powers of the bodies by which alone the design could be accomplished? And conceding the existence of such

§ 313. Admitting, however, that the theory in question is a novelty, it is not always true, especially in politics, that "whatever is new is false," and it is therefore fairly incumbent on those who reprobate that theory, not alone to denounce it as novel, or to array against it the invectives of its opponents, but to refute it. This, it is my hope, in what follows, to be able to do. The refutation, however, will be much of it inferential, depending on the consideration not only of general principles, but of particular questions, relating to the power of Conventions in special cases, which either have actually arisen or are likely any day to arise.

§ 314. The powers of Conventions, including in that term both positive and negative powers, that is, both powers and disabilities, may be most conveniently discussed by considering them with reference,

I. To the external relations of those bodies; that is, their relations to the political society in which they are assembled; or, more particularly,

(a). To the sovereign, or to the rights of sovereignty. (b). To the government of the state, as a whole.

(c). To the electors, or most numerous branch of the govern

ment.

(d). To the three great departinents of administration, — legislative, executive, and judicial; — and

II. To their internal relations to the perfecting of their organization, to the maintenance of discipline over their own members or over strangers, and to the prolongation or perpetuation of their existence.

ter.

To this discussion will be devoted the remainder of this chap

§ 315. I. (a). The powers of Conventions, considered with reference to the sovereign, or to sovereignty, may be best exhibited by answering this question: Are Conventions possessed to any, and what, extent of sovereign powers? If a Convention is posa conspiracy, to be carried through by such means, were the eminent names cited above the willing tools or the dupes of the far seeing traitors who hatched it? Even in the case of Mr. Livingston, who broached the theory in the New York Convention of 1821 (see Deb. N. Y. Conv. 1821, p. 105) the imputation of proslavery fanaticisin would seem not entirely unjust. The purpose of Mr. L. in propounding the theory was to satisfy the Convention of its power to abridge the right of suffrage accorded by existing laws to the free blacks of New York

sessed of sovereign powers, it must be either, first, because, while its members have no individual or personal sovereignty, the body has received sovereign powers, by actual transfer from their original source, the sovereign, and holds them absolutely, by right of representation; or, secondly, because its members, in common with all the citizens, or, at least, with all the electors, are possessed of individual or personal sovereignty, and, accordingly, when assembled in Convention, wield sovereign powers absolutely, both in their own right and in that of their co-sovereigns, outside of the body, whom they represent. Of these two alternatives, the first supposes sovereignty to be alienable, which, in a former chapter,1 we have seen to be incompatible with its nature. Sovereignty was there shown to be inherent in the political society; and it was stated that, although two or more sovereigns might become merged into one, sovereignty is indivisible and incommunicable. It is impossible that a sovereign society should transfer its inherent sovereignty to any other society, or to a part of itself, so as to render the receiving body. or person absolute sovereign over it. The mind refuses to conceive of a political society in a fit of apathy or of frenzy, parting with its birthright beyond redemption. And to suppose such an alienation made to citizens of the State, however eminent, would be scarcely less abhorrent than to aliens. It is not to be imagined that, were such an alienation possible, it could be made by the sovereign society itself directly; it must be made by some part of it, claiming a right to act for it by representation, as by some branch of the government now existing. But that the electors, or either of the three administrative departments of the government, should be able by any hocus pocus to transfer those transcendant powers which belong to the political society as such, is incredible; certainly without an express warrant from the sovereign to that effect. And supposing such a warrant were a thing possible to be given, what consideration could there exist sufficient to sustain, in any court, whether of law or of abstract morality, so unconscionable a contract? It is this view which justifies the revolts now so common in Europe, of subjects against their servants, calling themselves their sovereigns. Intrusted with the government, those servants or their ancestors, in some former age, upset the balance of the

1 See ante, § 22.

Constitution, and proclaimed themselves to be the true sovereigns. But such a proclamation cannot alter the fact, which is, that the nation as a unit is the only sovereign. Force or fraud on the part of the servant, or pusillanimity on that of the nation, may have given the prestige of success to the usurpation of the former, but cannot have divested the inalienable rights of the latter. No truth is becoming more clear, in our day, than that in demanding everywhere the supreme direction of the commonwealth, and in asserting a right to determine the modes and instruments of its administration, the people the nation are but reclaiming their own.

-

§ 316. It seems clear, then, that if there is claimed for a Convention the possession of absolute sovereignty for the time being, it must be, not on the de jure ground of actual transfer, but on the de facto one of successful usurpation or revolution · which, as divesting the rights of the people, we have just seen, is of no force or validity whatever.

And here it is proper to note a distinction which is made by those who maintain the derivation of sovereign powers to Conventions by transfer from the true sovereign, namely, that if not absolutely sovereign with reference to the political society, they are so with respect to the objects for which they are respectively convened, namely, the framing anew, altering, or amending of the fundamental law. Thus, in the Illinois Convention of 1862, the committee, whose report on the powers of that body has been already mentioned, conclude that remarkable document as follows:

"Your committee, therefore, have come to the conclusion, that, after due organization of the Convention, the law calling it is no longer binding, and that the Convention then has supreme power in regard to all matters necessary and incident to the alteration and amendment of the Constitution." Here, if words mean any thing, the Convention is claimed to be sovereign in a sphere of operations which is limited, relating to the enactment of the fundamental law. But, it is certain that that Convention was not sovereign, nor even supreme, in that sphere, but subject to the Constitution of the United States. That was distinctly admitted, on numerous occasions, by members of that Convention who were loudest in their assertions of sovereign powers, and by the committee itself above referred to, in

their report, from which that extract was made. In another paragraph the committee say: "It" (the Convention) " 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 citizens, 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." What kind of a sovereignty is that, which is limited, in respect of its sphere of action, to alterations of the fundamental law, and limited within that sphere by the Constitution of a distinct society, by which it is forbidden to meddle with important subjects of legislation, such as war and peace, treaties, &c., proper for any body which is really sovereign? Moreover, this very Convention, which refused to obey the injunction of the statute, under which it assembled, relating to its printer, deemed itself compelled, as well by the injunction of that same statute as by the customs in such cases established, to submit to the people for ratification or rejection the Constitution it had matured. If a body thus hampered and subordinated is a sovereign power, so are their grooms and their bootblacks, since each of those menials has committed to him absolute power to perform the duties assigned him, subject to the limitations contained in his commission and to the laws of the land.

§ 317. The other alternative, which supposes every citizen, or, at least, every elector possessed of sovereign powers, according to the loose political jargon of our times, and that Conventions represent them in their sovereign character, each of their members being a sovereign in his own right as well as in the right of representation of sovereigns, involves two fundamental errors, which indeed are its only foundation. The first error is in supposing that there is any such thing as the personal sovereignty of individuals in any political society whatever. In relation to political rights and obligations, the unit is not the individual or the family, unless indeed the family constitute a patriarchal government, but the state. In the matter of civil rights and obligations, on the other hand, the unit is the individual citizen We have pointed out in the chapter on sovereignty the absurd consequences flowing from the hypothesis either of many sovereigns in the same political society, or of a divided or fractional