bodies, they must be set down as such, in order that their action may not be drawn into precedent, as that of normal Constitutional Conventions. If, with reference to the colonial establishments founded by the crown, those Conventions and the proceedings of those Conventions were not revolutionary, then, neither would similar Conventions and proceedings, antagonistic to the now existing order, be revolutionary with respect to that order.

§ 169. 3. If, in any particular, relating to their initiation or to their procedure, the Conventions of the revolutionary period should seem to be more irregular than was necessary, it should be remembered that much of their irregularity was due to the dangers of the times, and much to the ignorance and inexperience of those who managed them. While the foundations of our civil polity were being laid, our fathers were staggering under the burdens of a long war, replete with public and private disasters. For the public safety, it was often found necessary to omit some of those forms by which regular governments, in times of peace and order, are accustomed to ascertain the public will. Moreover, the process by which the purely Revolutionary Conventions, theretofore known, were gradually adapted to a defined constitutional purpose, was then just commencing. The absolute necessity, afterwards so well understood, of limiting the Constitutional Convention to its special function, in subordination to the government to which it is ancillary, was very imperfectly recognized. Hence, as we have seen, the Conventions generally throughout the War of Independence united in themselves functions proper only for bodies vested temporarily with dictatorial powers-for those provisional organizations, which, in times of crisis, are, for the public safety, or to forward the purposes of ambition, intrusted with a revolutionary discretion, incompatible with the existence of any other government.

§ 170. (b). The second and most numerous class of Conventions consists of such as have been assembled since the Federal Constitution went into operation, on the 4th of March, 1789, and they may be divided into these three principal varieties:

1. Such as have been convened for the purpose of framing Constitutions for new States to be formed within the territorial jurisdiction of States already members of the Union.

2. Such as have been called to frame Constitutions for new

States to be formed out of territory of the United States, organized under its authority, or acquired in an organized condition from foreign States.

3. Such as have been assembled for the revision of the Constitutions of States, members of the Union.

It will be the chief purpose of what remains of this chapter to bring into view these several varieties of Conventions, in order to ascertain how far the modes in which they were called or initiated conform to the principles enunciated in the opening sections of this chapter.

§ 171. 1. Of the first variety of Conventions enumerated, there have been held, up to the present time, reckoning the first Convention of Vermont, which may with propriety be classed with them, though held previously to 1789, five Conventions:1 those which framed the first Constitutions of Vermont, Kentucky, Tennessee, Maine, and West Virginia.

The first clause of the 3d section of the 4th Article of the Federal Constitution provides, that "no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress." To render a Convention legitimate, therefore, for the purpose of erecting a new State within the jurisdiction of any other State or States, under this clause, three things must concur: first, the prior consent of the legislature of the State or States out of which the new one is to be carved; second, that of the Congress of the United States; and, third, that of the inhabitants or people of

1 The territory now comprised in the State of Vermont was, at the time she declared her independence, claimed by the State of New York. It was not until October 17th, 1790, after the formation of the present Constitution of the United States, that New York consented to her erection into a new State. She was admitted into the Union in 1791, after she had maintained her independence against the State of New York and the United States for fourteen years. As Vermont was erected into an independent State and admitted into the Union, therefore, with the consent of New York, and, of course, of Congress, the conditions required by the Federal Constitution seem to have been fulfilled. For the details of the action of Vermont herself, see ante, §§ 154, 155. The consent of New York was given through commissioners appointed by that State, on the 17th of October, 1790, Vermont paying to New York for a relinquishment of all claim, as well of soil as of jurisdiction, the sum of thirty thousand dollars.

the proposed State. The first and second of these requisites follow from the terms of the constitutional provision, and the third, I think, from the reciprocity of right and obligation subsisting between the several portions of a State. Each of these owes obedience, or a quasi allegiance to the parent State, and, in return, is entitled to protection, which excludes the idea that the State, as a whole, can rightfully sever from connection with itself a part thereof, without its consent.

§ 172. Before the adoption of the Federal Constitution, no rule upon this subject existed, and an attempt to dismember a State, however conducted, would have been revolutionary. The case of Vermont, before referred to, exhibits the embarrassments to which such a condition of things was likely to give rise. There were many years during which the troubles between that State and New York threatened to breed a civil war, not between those States alone, but between those States and such allies as they might respectively secure.1 The clause of the Federal Constitution, above cited, was intended to obviate the dangers foreseen, if a system were established, permitting no changes in the territorial extent of the States, or allowing them to be consummated without the consent of Congress. And yet, as was perhaps to be expected, not a single instance of the dismemberment of a State has ever occurred, under the clause quoted, without proceedings more or less irregular or revolutionary. By this is not meant, that the final Acts by which the $ new States have been erected, have in any case come short of

conforming substantially to the constitutional provision, but, either that the consent of the parent States has been wrung from them by the pressure of events perhaps, secured by political advantages accepted as the price of that which must be yielded at all events or the Conventions, by which the initiatory movements have been conducted, have been illegally called, and so have been, in character, revolutionary.

1 No native of Vermont would willingly charge the revolutionary leaders of that State with entertaining seriously the project of forming an alliance with Great Britain against New York and the other twelve colonies. But it cannot be denied, that they at least coquetted, in a very imprudent manner, with the British generals; and, had the policy, so long pursued by Congress under the inspiration of New York, of practical hostility to Vermont, been continued, that little Commonwealth might have been driven to seek, in a detested alliance with a common enemy, that freedom which was denied her by those of her own household.

§ 173. After Vermont, the first State erected within the jurisdiction of another State, was Kentucky. As this case occurred after the Federal Constitution had gone into operation, it is worthy of attentive consideration, as the earliest in which an application could be made of the constitutional provision in question.

That part of Virginia, now composing the State of Kentucky, was separated from the older portions of the State by intervening mountains. When the war of the Revolution was concluded, the financial distresses common to Virginia and to all the States of the Union caused the infant settlements west of the mountains to be neglected. The hostile tribes of Indians on their southern and western frontiers, took advantage of their defenceless condition, and were repressed by the settlers only with great difficulty, and at their own cost. In the fall of 1784, the exigencies of the public defense called together an assemblage of citizens at Danville, Kentucky, the danger to be guarded against being an attack by the Cherokee Indians. On consultation, it was found that they had no power to raise forces, or to do any thing to protect themselves, and it was therefore resolved to call a Convention of the entire Kentucky district. To constitute that body, the assemblage addressed the people in a circular letter, in which it was recommended to each militia company in the district to elect, on a day named by the assemblage, one representative, to meet in Danville, on the 27th of December, 1784, to take into consideration the important subject of self-defense. The Convention met at the time appointed, and then, the subject of a separation from Virginia being broached, they voted in favor of it by a large majority. Another Convention followed in May, 1785, at which a similar expression of opinion was made, and resulted in a petition to the Assembly of Virginia for liberty to form a new State. A third Convention, which met in August of the same year, having commenced its proceedings by a unanimous vote in favor of the project of separation, the Assembly of Virginia, at its session in November, 1785, passed an Act, authorizing the election of five delegates from each of the seven counties of Kentucky, to take into consideration the forming an independent government. Should the Convention determine upon it, separation was assented to, 1 Hildreth, Hist. U. S., Vol. III., 1st Series, p. 457.

provided Congress, before the first of June, 1787, would admit the new State into the Union; and provided further, that Kentucky would agree to assume her proportion of the Virginia debt.1

§ 174. The Convention thus authorized by the Virginia Assembly, was prevented by an expedition against the Indians north of the Ohio, from meeting, except in numbers less than a quorum; but an application to Virginia, on the part of such members of the Convention as had met at the time appointed (September 17, 1786), resulted in a new Act of the Virginia Assembly, authorizing a new Convention, to be held the following year. Accordingly, on the 17th of September, 1787 — the very day on which the Federal Convention closed its labors at Philadelphia — a fifth Convention met at Danville, Kentucky, resolved unanimously in favor of separation from Virginia, adopted an address asking admission into the Union, and, in conformity to the provisions of the Act under which they met, directed the election of a new Convention to frame a State Constitution.3

These Acts and proceedings seem to have been attended by no results; for, on the 18th of December, 1789, another Act was passed by Virginia, proposing terms of separation, which were accepted by a Convention, which met on the 26th of July, 1790, the separation to take effect on the 1st of June, 1792. Finally, this Convention resolved, that in December, 1791, an election should be held for forty-five representatives to form a Constitutional Convention, to be elected under certain restrictions as to residence, by the free male inhabitants of each county, above the age of twenty-one years, the Convention to be held at Danville on the first Monday in April, 1792. At the time and place appointed this Convention met, and by it was framed the first Constitution of Kentucky, to take effect, as above stated, on the 1st day of June, 1792. In the mean time, on the 4th of February, 1791, an Act had been passed by Congress, declaring the consent of that body, that a new State, by the name of Kentucky, might be formed within the jurisdiction of the Commonwealth of Virginia, and admitting the same into the Union, the Act to 1 Hildreth, Hist. U. S., Vol. III., 1st Series, p. 470.

2 ld. pp. 470-1.

3 Id. p. 529.

4 1 U. S. Stat. at Large, p. 189.