III. THE REVOLUTIONARY CONVENTION. These will now be considered in their order. § 5. I. By SPONTANEOUS CONVENTIONS, I mean those voluntary assemblages of citizens, which characterize free communities in advanced stages of civilization, having for their purpose agitation or conference in respect of their industrial, religious, political, or other social interests. These gatherings are at once the effects and the causes of social life and activity, doing for the state what the waves do for the sea: they prevent stagnation, the precursor of decay and death. They are among the most efficient manufactories of public opinion; or, rather, they are public opinion in the making, - public opinion fit to be the basis of political action, because sound and wise, and not a mere echo of party cries and platforms. Spontaneous assemblages, for such purposes, of the masses of a people, betoken a very high state of civilization, or instincts that are sure to develop into it. To be possible, in perfection, as we see them amongst us, freedom must be ripe and well-nigh universal. But when rulers and social institutions do not favor them, to their occurrence at all would be necessary a native passion for liberty strong enough to break all chains, and which could be daunted by no perils. We are prepared, therefore, to believe that it is only our own race, here and in England, that has thus far successfully vindicated the right of freely assembling. This right was asserted in England as early as the twelfth century,1 history telling us of the "conventus publicos propria authoritate," 2 or voluntary meetings of the people, under the protection of the common law. With some fluctuations, as the work of social development proceeded, this right became more firmly rooted in the parent soil, and from it a vigorous scion was planted in America, which has exhibited a still stronger vitality, and now overspreads the land. A common and most invaluable provision of our constitutions, State and Federal, guarantees to the people the right "peaceably to assemble and petition the government for a redress of grievances." The right, thus expressed, 1 For a most excellent view of the vicissitudes of this right under the English Constitution, see May's Constitutional History of England, Vol. II. ch. ix. 2 Hinton's Hist. United States, Vol. II. pp. 324, 325. May's Const. Hist. Eng., Vol. II. ch. ix. involves those of discussing all measures of the government; of embodying in resolutions or remonstrances the general sentiment in regard to the policy and the acts of the public authorities; and, in general, of exercising the privilege, without which freedom is impossible, of saying and hearing whatsoever one pleases, being at the same time responsible for abuses of that privilege. Such is the Spontaneous Convention: a body which meets upon the call of any individual; adjourns when it pleases; is wholly unofficial; whose determinations have no efficacy whatever, except as expressions of matured or maturing opinion; which is subject to no laws but the lex parliamentaria, — common sense applied to the action of numerous assemblies, and the law which enjoins upon all men to keep the peace; and yet a body which is quite as important to the continued healthy life of a commonwealth as either of the four species of Conventions mentioned.2 § 6. II. The second species of Conventions, consisting of our GENERAL ASSEMBLIES, is so well known, that I need not dwell upon it. A General Assembly is, in our American system, a collection of representatives of the people, freely elected in pursuance of the Constitution, and empowered to enact the ordinary statute law. Deriving its existence and powers from the people, through the Constitution, it can do nothing except by the authority contained in that instrument, and is, therefore, official, or vicarious, but at the same time subaltern, - the people being the principal and paramount source of power. Yet, as we shall have occasion to note hereafter, though subordinate in relation to the people, considered as the creator of the government and Constitution, the legislature is nevertheless prima inter pares, when compared with other departments of the government; or, as it has been expressed by speculative writers, is more nearly sovereign than any of the departments which are ordinarily regarded as coördinate with it. 1 "This is true liberty, when free-born men Which he who can, and will, deserves high praise; What can be juster in a state than this?” MILTON, Areopagitica, from EURIPIDES. 2 See remarks of Dr. Lieber on this class of Conventions, Political Ethics, Part II. p. 467. § 7. III. The third species of Conventions, as its name implies, is a part of the apparatus of revolution. It consists of those bodies of men who, in times of political crisis, assume, o have cast upon them, provisionally, the function of government. They either supplant or supplement the existing governmental organization. The principal characteristics of this species are, that they are dehors the law; that they derive their powers, if justifiable, from necessity, the necessity, in default of the regular authorities, of protection and guidance to the Commonwealth, or, if not justifiable, from revolutionary force and violence; that they are possessed, accordingly, to an indeterminate extent, depending on the circumstances of each case, of governmental powers; finally, that they are not subaltern or ancillary to any other institution whatever, but lords paramount of the entire political domain. To this may be added, that they are of no definite numbers or organization, comprising sometimes one and sometimes several chambers, and composed indifferently of ex-officers of the government that was, of persons possessing neither office nor the qualifications requisite for it, nor even for the elective franchise, or of a mixture of all of these together, as chance may have tossed them to the surface. The general purpose of the Revolutionary Convention, moreover, is to bridge over a chasm between two orders of things: an order that has expired or been extinguished; and an order emerging, under the operation of existing social forces, to replace it. In short, a Revolutionary Convention is simply a PROVISIONAL GOVERN MENT. § 8. Examples of the Revolutionary Convention have been numerous in the political history of the world, and they are becoming daily more so. Among the most famous and, for our purpose, the most important, are those held in England in 1660 and in 1689. In those cases the ruling dynasty having abdicated the throne, or been expelled from it, there was in the kingdom not only no organized government, but no central authority legally competent to institute one. There was, it is true, the people of England, but they could not so assemble as to act as a unit. The parliament had ceased, in law, to exist with the reign of the monarch by whose writ it had been summoned, and no new parliament could be legally called, because for that the royal writ was absolutely necessary. In these alarming crises, and as the last and only resource for temporary government, as well as for providing the initial points of new organizations, Conventions were summoned. That called in 1660 consisted of persons elected by the several constituencies of the realm, as for a lawful parliament, but elected illegally, on the recommendation of a rump of the old Parliament, which had been dispersed by the army under Richard Cromwell, and, for that reason, as Macaulay observes, more accurately described as a Convention, as having been called without the royal writ.1 The Convention of 1689, summoned by the Prince of Orange, afterwards William IIL, on his accession by force to the throne left vacant by James II., consisted of persons elected in a similar manner, on the call of the usurping prince, issued at the recommendation of the lords spiritual and temporal at the time in London, forming a quasi House of Lords, and of old members of the House of Commons, together with the magistrates of the city of London, acting as a House of Commons. This Convention, also, though made up of members chosen by the electors for members of Parliament, in their several districts, was not styled or considered a Parliament, because called by a person not constitutionally authorized, acting on the advice of an assembly, which, though regarded by the nation with a large measure of the respect due to a Parliament, on account of the eminence. and former official station of its members, was yet without a shadow of legal authority. The proceeding was revolutionary, and so universally admitted to be. Such were the two great English Conventions, the models after which most subsequent bodies of the same class have been formed or organized, both in this country and in Europe, and of which, as we shall see, our Constitutional Conventions are special adaptations or modifications. They were Provisional Governments, the only governments England had during the periods of their existence. And for our purpose it will be interesting to note further, that the English Convention of 1689, having taken steps, as a revolutionary body, to settle the succession to the throne, passed a bill declaring itself to be a parliament, and from that time acted as such in conjunction with the king it had itself called to the throne.2 1 Macaulay, Hist. Eng., Vol. I. ch. i. 2 Id. Vol. II. ch. xi. § 9. Interesting examples of the Revolutionary Convention are found in our own history. The first occurred in New England simultaneously with the English Convention of 1689, its assembling being the result, in part, of the same causes which led to that, but, in part, of causes local to New England. Both, however, were called and composed in a similar manner, and organized after the same model, that of 1660, convened at the time of the Restoration.1 The leading facts in the history of that held in New England are as follows: Whilst the tyrannical acts of James II. were, in England, exciting the discontents which finally led to his abdication, those of Sir Edmond Andros, the Governor of Massachusetts, were arousing the fiercest opposition in New England, against both the colonial and the imperial administrations. It is believed that as early as January, 1689, before the news of the landing of the Prince of Orange in England had reached the colony, arrangements had been made in the latter to rise against the unpopular governor. So soon as that news arrived an outbreak occurred. On the 18th of April, a "Declaration of the Gentlemen, Merchants, and Inhabitants of Boston and the country adjacent," was published, recounting their oppressions, and announcing their purpose to "seize upon the persons of those few ill men which have been (next to our sins) the grand authors of our miseries." The governor and the magistrates and crown officers adhering to him, were accordingly thrown into prison; the castle was occupied by colonial militia, and an English frig. ate, lying in the harbor, was forced to surrender.2 On the day following this revolutionary outbreak, the leaders in the movement with twenty two others, whom they now associated, formed themselves into a Provisional Government, under the name of a "Council for the Safety of the People and Conservation of the Peace." Feeling the weakness of their position, since they "held their place neither by deputation from the sovereign nor by election of the people," and hesitating to set up again the charter, "formally condemned by the King's courts," "they decided to call a Convention, to consist of two delegates from each town in the jurisdiction, except Boston, which was to send four." This Convention met on the 9th of May, and attempted to put 1 See § 133, post. 2 Palfrey's Hist. New Eng., Vol. III. pp. 574-587. |