effect, after which perhaps that of Tennessee was modelled, was introduced, but, after an adverse report by the Committee on Federal Relations, to which it had been referred, it was changed by its mover into the following form :

"Article The General Assembly shall not ratify any amendments to the Constitution of the United States until a general election for members of the General Assembly shall have been held, after such amendments shall have been proposed by Congress to the legislatures of the respective States." The proposed article was thereupon rejected by the Convention.1

§ 450. II. The preceding sections of this chapter have been devoted to a delineation of the powers of Conventions, resulting from what may be called their external relations; that is, their powers with reference to the sovereign society at large, and to the government of the State, both in general, and as divided into several distinct departments. It remains now to inquire what powers belong to them by reason of their internal relations, having reference, for example, to the perfecting of their organization, to the maintenance of discipline over their members or over strangers, and to the prolongation or perpetuation of their existence.

The powers of Conventions, considered from this point of view, are, first, such as are expressly given by the Act under which they assemble; or, secondly, such as are implied as being necessary to the exercise of these express powers, or as incidental to the complete execution of their commission.

§ 451. First. With respect to powers expressly given, it is unnecessary to speak at much length. In general, a power expressly granted to a Convention by a legislative Act or by a Constitution, is a power, the right to exercise which cannot be denied to it. Whether this rule is one whose application is universal, is a question of some delicacy which may be worthy of a short examination. To ascertain whether the rule has limits, an extreme case may be put. Let us suppose, that in calling a Convention, the legislature has authorized or required it to enact or to recommend measures subversive -1, of the laws of morality; or, 2, of the guaranties of the public liberties, not extending, however, to the abrogation of republican forms. Would the Convention have power not would it be obliged, 1 Deb. Ill. Conv. 1869, pp. 161, 1152-1155, 1763-1771.

but would it be competent-to obey? 1. As to measures. mala in se, the answer is, that the Convention would derive from such an Act no power whatever, for no body of men can give to another power to do what neither can rightfully do independently, power in extent greater than is possessed by the giver. § 452. 2. More difficulty exists in relation to measures of the second class, which, in general, would be merely mala prohibita, though, doubtless, some of them, by destroying safeguards long recognized as essential to liberty, might be considered as tainted with positive immorality. But assuming that all such measures would, on à priori moral grounds, be indifferent, would a Convention then be competent to enact or recommend them? The answer clearly must be in the affirmative. Thus, were a legislature to require or authorize a Convention in the Constitution it should frame to repeal the entire Bill of Rights, or to insert clauses empowering the legislature to establish a censorship of the press, or the judiciary to issue general warrants, although the measures indicated would endanger some of our most valued rights, yet not being necessarily incompatible with the existence of republican government, or within the range of direct Federal prohibition, they would not be beyond the competence of the Convention.

§ 453. Secondly. It is the implied or incidental powers, claimed by or attributed to Conventions, that are of principal interest in this discussion; powers, that is, involved in the general grant of authority to assemble in Convention to revise the fundamental law. Conceiving of Conventions, then, as we must, as mere committees, what powers have they resulting by implication from their general character or from the nature of their business in relation to the points indicated? The general rule is undoubtedly this: as Conventions are commonly numerous assemblies, containing, in most cases, the same number of members as the State legislatures, they are possessed of such powers as are requisite to secure their own comfort, to protect and preserve their dignity and efficiency, and to insure orderly procedure in their business. For the attainment of these ends, they are not without the authority possessed by agents in general, and, in my judgment, they are possessed of no other or greater. Thus, they must have a suitable hall, adequately warmed and lighted; and, though the Acts calling them were

silent on the point, they would unquestionably have power to engage one, and to pledge the faith of the State for the rental thereof. So, there can be no doubt, a Convention would be authorized to appoint such officers and servants as the custom of public assemblies in free communities has sanctioned, or as may seem under the circumstances to be necessary.

§ 454. In respect to a president and secretary or secretaries, there can be no question. The convenience of members and the despatch of business would point also to messengers or pages as requisite. The same may be said perhaps of one or more door-keepers, since, if the hall where the session is held, were accessible to everybody, at all hours, the functions of the Convention might be seriously interrupted, and its dignity insulted. With respect to a sergeant-at-arms, some doubt exists. It is a universal practice in Conventions to appoint such an officer, and the right of doing so for certain purposes cannot be denied. The doubt arises in relation to his powers, which of course involves the competence of those bodies to vest him with them. A sergeant-at-arms is defined to be" an officer who executes the commands of the house in apprehending delinquents or offenders, and in preserving order," &c.1

As to one of these functions, that relating to the preservation of order, some officer charged therewith would doubtless be necessary in any assembly; but if it be true, as we shall attempt to show hereafter, that Conventions have no magisterial powers whatever beyond those possessed by every public meeting, it is doubtful whether a sergeant-at-arms is not a useless piece of ostentation in those bodies. In the case of a legislature, that officer discharges all the functions indicated by the definition. Moreover, the name sergeant-at-arms was undoubtedly derived from the sterner duties of his office, involving the arrest of delinquents, whether members of the body or strangers. For the present, however, I shall assume that the sergeant-at-arms of a Convention lacks the function which gives to the name of the corresponding officer of a legislature its appropriateness, and is a functionary, like a secretary or door-keeper, destitute of proper police powers. In his limited capacity, however, his duties are important. "He attends upon the Convention, maintaining order among those present, serving its processes and executing 1 Worcester's Dict. in verb. “ Sergeant."

its orders, giving notice to the presiding officer of persons attending with messages, or other communications; he has the appointment and supervision of the various officers of his department and, as housekeeper of the house, has charge of all its committee rooms and other buildings during its sitting."1 In short, he is the principal executive officer of the Conven

tion.

How this officer came to be called a sergeant-at-arms, with powers so inferior to those indicated by his title as well as to those wielded by his namesake in the legislature, is shown by the origin of Conventions. We have seen that the first Convention, the type, in some respects, of all that have followed, was a Parliament irregularly called and constituted a revolutionary assembly, modelled after the legitimate legislative branch of the government, with the same officers, and, in general, the same modes of proceeding. Of this original perversion of a Parliament, called the "Convention Parliament," our earliest Conventions, during the Revolution, were close imitations, both in structure and organization; and when, upon the foundation of our constitutional system, those exceptional and revolutionary bodies were transformed and introduced into it as part of the regular constitutional apparatus, their scheme of officers and rules and modes of proceeding were also adopted, without substantial modification.

455. The power of a Convention to supply its members with stationery is perfectly clear; but in reference to the public journals there has been some doubt, though upon precedent as well as upon principle, the power must probably be admitted. It has been the practice of nearly all the Conventions held in the present century, to order, as well for the use of the members, as for distribution among their constituents, one or more newspapers for each member during the session. The reason usually assigned for this expenditure is, that it is important there should be a direct and constant communication between the people and their delegates in the Convention, in order that the latter may as perfectly as possible reflect the public will. If all that is proposed and discussed, be submitted immediately to the

Cushing's Law and Prac. of Legisl. Assemb., 2d ed., p. 131. The description quoted above is adapted from that given by Cushing of the sergeant-at-arms of a legislature.

people, with the reasons for and against, a thing possible only through the medium of the press, the delegates would be guided and moulded by a reflex wave of sentiment which would be fresh and unmistakable. Every thing which, within reasonable limits, conduces to that end, and at the same time conforms to the usages and is not foreign from the purpose and nature of the Convention is, by a liberal construction of its powers, authorized.

§ 456. The same principle applies to the case of phonographic reports and printing for the Convention. It would be a most niggardly policy which should refuse the expenditure necessary to the preservation of most full and accurate reports of its debates and proceedings. Upon this subject, however, there has been very great difference of views in different Conventions. In many of the States, volumes have been published, containing both the journals and the debates of all their Conventions. In others, the subject seems not to have been regarded as of any consequence whatsoever; and what little has been preserved has been owing to the private enterprise of the newspaper press. The result is, that the memorials of the most important public bodies ever assembled in those States, are often very meagre, and more often confused and inaccurate. Such a policy is "penny wise and pound foolish." In after years, when it has become impossible to replace what has been lost, more enlightened public opinion commonly finds cause to regret a paltry economy which deprives history of its most important data. It should be remembered, that our Conventions lay the foundations of States, many of which are to rival the greatness and glory of Rome, of England, and of France. In a hundred years from now, what treasures would they not expend, could they purchase therewith complete copies of their early constitutional records — documents standing to their several organizations in the same relation as would the discussions of those ancient sages who framed the Twelve Tables of the Roman law, to the Republic of Rome.

§ 457. And here I may be indulged in a remark or two in relation to the character and value of the debates of our Conventions.

Doubtless, to the listener, few public assemblies would exhibit. so little that is attractive as those bodies. There are, of course,