ments, whose combined jurisdictions correspond to that of the Parliament in England, five thousand two hundred and fifty representatives. In this number I do not reckon the city, town, and county boards for local self-government, which, in the two countries, may be considered as offsetting each other. These representatives are, moreover, subject to frequent elections. No change of opinion can be permanent or widespread, without soon making itself felt and respected in the legislative body. Practically, the interests of our commonwealths, therefore, are nearly as safe in the hands of our legislatures as in those of the electors, whom we ordinarily designate by the term people; the difference being only that a less numerous body is proportionately more accessible to corrupting influences.

§ 122. 2. The question next in order is, in what manner shall a legislature call a Convention? The general answer is, by some legislative act. As the objects of intrusting the call to that body are, first, to insure the assembling of a Convention whenever, within constitutional or reasonable limits, public opinion should have settled upon its necessity, and, secondly, to throw around the body, coming comet-like into the system, all the legal restraints of which it is susceptible, some act of legislation would be requisite to accomplish either object. A simple resolution or vote, would commonly give expression to the general desire, but were that all, there would be danger that party spirit might avail itself of majorities to call Conventions for partisan purposes. This danger being far from unreal, doubtless the wiser course would be for the legislature so to act as to forestall it. A check ought to be found by which the probability of its occurrence would be reduced to a minimum. An expedient has been adopted in many States, as we shall see more fully in a subsequent chapter, by which this is effected. It has been provided, in their Constitutions that, whenever, in the opinion of the legislature, a Convention is desirable to revise the fundamental law, that body shall so declare, by vote or resolution; that thereupon, after a prescribed notice by publication, the sense of the people shall be taken on the question of calling a Convention; and that the legislature shall thereupon call one, or not, according to the result of the popular vote. This mode was much commended, in 1820, by the eminent persons then composing the

New York Council of Revision, by whom it was declared to be most consonant to the principles of our government and to the practice in other States, and they accordingly vetoed a bill for an act to call a Convention to assemble in the following year, on the ground that it did not propose to submit the question to the people. There can be no doubt, that this decision was a sound one, on constitutional principles. The intervention of the legislature is necessary to give a legal starting-point to a Convention, and to hedge it about by such restraints as shall ensure obedience to the law; but as a Convention ought to be called only when demanded by the public necessities, and then to be as nearly as possible the act of the sovereign body itself, it would seem proper to leave the matter to the decision of the electoral body, which stands nearest to the sovereign, and best represents its opinion. Such seems to be the prevailing sentiment in most of the States which have revised their Constitutions since the date of the decision referred to.

§ 123. There may, then, be two cases: first, when the legislature itself passes upon the question of calling a Convention, without the intervention of the electoral body; and, secondly, where the legislature first recommends a call, then refers the question to a vote of the electors, and, finally, on an affirmative vote by the latter, issues the call.

In the first case, the act of the legislature calling the Convention is an act of legislation, strictly so called. It prescribes a rule of action for the electors, fixing the time, place, and manner of the election to be held by them, and commonly provides penalties for misconduct either in the officers conducting the elec tion or making the returns thereof, or in the electors voting thereat. Such a rule of action is a law.2 In the second case, so much of the original act of the legislature as merely recommends a Convention, cannot be said to be a law. It is, rather, an expression of opinion, intended to preface a reference of the question to the people, by whom it is to be decided. The subsequent act, or other sections of the same act, however, by which a legislature refers the question to the people, must be conceded to be a law, since it has always the force as well as the form

1 Kent and Spencer, Justices, and Governor Clinton. For the whole opinion of the Council, see Appendix, B, post.

2 1 Blackstone's Commentaries, 44.

of a law, being in all particulars similar to that by which it finally calls the Convention, if ordered by the people.1

§ 124. Before closing the discussion of the principles regulating the legitimate call of Constitutional Conventions, one remark is necessary to guard against misconstruction. A Constitution, or an amendment to a Constitution, originating in a Convention justly stigmatized as illegitimate, may, notwithstanding its origin, become valid as a fundamental law. This may happen in two ways: namely, first, by its adoption by the electoral body, according to the forms of existing laws; or, secondly, by the mere acquiescence of the sovereign society. Such a ratification of the supposed Constitution or amendment would not, however, legitimate the body from whom the Constitution or amendment proceeded. That no power human or divine could do, because, by the hypothesis, such body was in its origin illegitimate, that is, as shown in previous sections, convened either against law or without law, which in a government of laws, are one and the same thing. The ratification by the acquiescence of the sovereign, would be a direct exercise of sovereign power, illegal doubtless, but yet standing out prominently as a fact, and as such finding in the original overwhelming power of the sovereign, a practical justification, which it would be folly to gainsay.2

§ 125. Let us now see to what extent the practice, under the political system of the United States, has conformed to the theoretical principles thus developed.

The Constitutional Conventions thus far held - by those terms designating, for the purposes of this chapter, all such bodies, legitimate and illegitimate, as have framed Constitutions or parts of Constitutions, either for the United States or for States members of the Union - may be divided, primarily, with reference partly to convenience and partly to their most general characteristics, into two great classes: 3

(a). The first class comprises such Conventions as were held during the Revolutionary period, extending from 1776 down to the establishment of the Federal Constitution in 1789.

(b). The second class comprises the Conventions of the post

1 For a more full discussion of the distinctions here indicated, which are not without important practical bearings, see ch. viii., post.

2 See § 23, ante.

3 For a complete list of these bodies, with the dates of their assembling and adjournment, so far as can be ascertained, see Appendix, A., post.

Revolutionary period - that is, such as have been held since the 4th of March, 1789.

These two classes will now be considered at length, and in their order.

§ 126. (a). To understand, and therefore properly to characterize, the Conventions embraced in the first class, it will be necessary to look into the history of the times in which they were convened, and to elucidate the general causes and the particular acts by which their legal character was determined.

When the colonies entered upon that course of opposition to the crown which ripened into the Revolution, it was neither their intention nor their desire to effect a separation from Great Britain. To bring them to favor such a measure, there were necessary the thirteen following years of agitation, crowded with distress and humiliation on the part of the colonists, and with contemptuous denials of redress and contumelious reproaches on that of the imperial authorities. As the contest thickened, however, and blood began to flow, the colonial establishments one by one succumbed or were suppressed, the royal governors fleeing from their enraged subjects, or being arrested by them and thrown into prison. To maintain order and tranquillity, while the contest with the mother country should continue, it became necessary, therefore, to establish new political organizations in the several colonies. But, because the necessity for them was thought to be temporary, the arrangement at first made was merely provisional. The organizations provided were of the simplest character, consisting of Provincial Conventions or Congresses, modelled on the same plan as the general Congress at Philadelphia, comprising a single chamber, in which was vested all the powers of government. These bodies, found in all the colonies, save Connecticut and Rhode Island, whose Assemblies, fairly chosen by the people, it was not found necessary to supersede, were made up of deputies elected by the constituencies established under the crown, or appointed by meetings of the principal citizens or by the municipal authorities of the chief towns and cities. All legislative authority was exercised by those bodies directly. Their executive functions were intrusted to Committees of Correspondence, of Public Safety, and the like, appointed by themselves, and during the sittings of the Conventions or Congresses, were discharged under their own supervision.

In the interims between their sessions, however, the powers of those committees were substantially absolute.

§ 127. Under organizations thus loose and unrestricted, government was carried on in the colonies for many months, and that without protest or discontent, so long as the general expectation of a return to allegiance, following upon a redress of grievances, continued to exist. As time advanced, however, and it became evident, on the one hand, that the mother country would not purchase the submission of her revolted subjects by compromise or even by conciliation, and, on the other, that the work of subduing them, if possible at all, could be accomplished only by a long and bloody contest, there arose a general desire for the establishment of more regular governments than those by Congresses and committees.1 Thus, in May, 1775, the Provincial Convention of Massachusetts, charged with the government of the colony, applied to the Congress at Philadelphia for explicit advice respecting the proper exercise of the powers of government. In reply, after declaring that no obedience was due to the act of Parliament lately passed for altering her charter, that body recommended that the Convention should write letters to the several towns entitled to representation in the Assembly, requesting them to choose representatives to form an Assembly, and to instruct the latter, when convened, to elect counsellors; adding their wish, that the bodies thus formed should exercise the powers of government until a governor of the king's appointment would consent to govern the colony

1 This is apparent from the preamble to the resolutions of the New York Congress on the subject of forming for that State its first Constitution. It runs as follows:

"Whereas, the present government of this colony, by Congress and committees, was instituted while the former government, under the Crown of Great Britain, existed in full force; and was established for the sole purpose of opposing the usurpation of the British Parliament, and was intended to expire on a reconciliation with Great Britain, which it was then apprehended would soon take place, but is now considered as remote and uncertain. And whereas, many and great inconveniences attend the said mode of government by Congress and committees, as of necessity, in many instances, legislative, judicial, and executive powers have been vested therein, especially since the dissolution of the former government by the abdication of the late governor, and the exclusion of this colony from the protection of the King of Great Britain." See New York Constitution of 1777, in the preamble to which these resolutions are embodied.

... •