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chapter it will be seen that the most important principle in the Convention system, that which requires the Constitutional Convention to be kept totally disconnected, as well in theory as in practice, from the Revolutionary Convention – was sometimes, in those early days, disregarded. The statesmen of the Revolutionary period, though familiar with the principles and, to some extent, with the administration of the English government, were necessarily less so with those that were springing up about them; and of the features indispensable to be impressed upon an old institution coming now to be employed for a new constitutional purpose, so as to render its working easy and safe, they were wholly ignorant. Accordingly, in their first essays at constitution making, partly from this ignorance and partly from the urgent needs of the time, they allowed the functions of the Constitutional Convention, in some cases, to be exercised by its revolutionary prototype, — the Revolutionary. Conventions assuming the duty, with others, of framing their first constitutions.
But, if the necessity of keeping the two institutions distinct was not at first generally apparent, it required but little experience of actual administration to convince men as intelligent and jealous of their liberties as our fathers, that if, to the function of suggesting, the Constitutional Conventions, becoming so common amongst them, should join that of establishing, their Constitutions of government, and not only so, but of framing and administering the ordinary laws of their respective States, as being but the less involved in the greater power, there would be practically no security at all for their liberties. Accordingly, we find that the cases in which the incompatible functions indicated were actually accumulated in the same hands were confined to the first years of the war, when the idea had not been dissipated that a satisfactory peace with England would soon make unnecessary the continuance of the State organizations, thus far regarded as temporary establishments for the government of the colonies, whilst the contest with England should continue.
15. We are to conceive of the Constitutional Convention, then, as an adaptation to constitutional uses of an institution originally revolutionary; that is, whose methods and principles of action, as well as whose purposes, were alien and hostile to established laws and Constitutions. And this is the real occasion of most of the misconceptions prevalent as to its true character. Thus, the notion has been common among even the well-informed, that the Constitutional Convention is above the law, the Constitution, and the government, all of which it may, therefore, it is conceived, respect and obey or not at its discretion; that it is possessed, in short, of the powers of its revolutionary namesake.
The origin of this misconception is ignorance of the simple facts of our constitutional history above detailed, and of the principles of our political system. To determine the rightful powers of the institution as adapted to our constitutional uses, men point to the English Conventions of 1660 and 1689, to that of the latter year in Massachusetts, to those by which our first Revolution was, in the various American colonies, begun and consummated. Those bodies, which, unquestionably, in many cases, framed Constitutions, were known to be possessed of other and extraordinary powers. They were called by high-sounding titles: “ The Estates of the Realm ;” “ The People in their Primary and Sovereign Capacity;” - phrases, in whose indefiniteness could be discovered, or concealed, all possible attributions of power. The error bas received additional currency from the extraordinary proceedings of the Conventions held in France, particularly that which piloted her upon the breakers in the closing years of the last century. Was not the Convention of our first ally, it is asked, which uprooted the monarchy and laid the foundations of the French Republic, an institution borrowed from us, - an institution, therefore, which has not here developed the extraordinary powers, exhibited by it in France, only because our occasions have never called them forth? The upshot of this reasoning is, the establishment of the axiom, that a Constitutional Convention wields all the powers, which, by the law of nature or of nations, are conceded to exist in the sovereign for which it acts — a degree of omnipotence to which, in a government of law, there can be found no parallel, and which is inconsistent with the fundamental principles of American liberty.
§ 16. The Constitutional Convention, then, I consider as an exotic, domesticated in our political system, but in the process so transformed as to have become an essentially different insti. tution from what it was as a Revolutionary Convention. In the following pages an attempt will be made to vindicate the accuracy of that view by inquiring into the institution in all its relations, as well to the people as to the government in its various departments, connecting with the theoretical considerations necessarily involved in the discussion, historical sketches of such Conventions as have thus far been held in the United States.
§ 17. Before proceeding to this inquiry, it will be useful to develop, with such completeness as space will allow, two fundamental conceptions, to which reference will be constantly made in the following pages, — that of Sovereignty, or of a sovereign Body; and that of a Constitution, or Law fundamental, as distinguished from an ordinary municipal law.
Without an accurate comprehension of these two subjects, it will be impossible to arrive at the truth in relation to the institution we are considering, since the first, being the source and foundation of all just authority in the state,1 determines its powers; and the second, being the object, to create which or to aid in creating which that institution is employed, ascertains the field of its operations. To these conceptions, therefore, will be devoted the two following chapters.
| The word state is used in this treatise, first, generally, to denote any organized political community ; that is, synonymously with commonwealth ; and, secondly, in a limited sense, to designate a member of the American Union. When employed in the former sense, it begins with a small letter, and when in the latter, with a capital.
$ 18. By the term sovereign is meant the person or body of persons in a state, to whom there is, politically, no superior.1 Sovereignty is the state or condition of being a sovereign — the possession of sovereign powers.
$ 19. The marks by which the possession of sovereignty may be determined, in particular cases, have been thus described by Mr. John Austin, one of the most eminent authorities upon the philosophy of jurisprudence:
“ The superiority," says he, “ which is styled sovereignty, and the independent political society which sovereignty implies, is distinguished from other superiority, and from other society, by the following marks or characters :
1 The term sovereign is derived from a low-Latin word, supranus, formed from supra, by the following transformations : soprano, sovrano, souverain, sovereign. Ducange, in verb. Milton spells the word sovran. Richardson's Dictionary, in verb.
The meaning of the term sovereignty, then, is simply superiority; but it is, humanly speaking, an absolute superiority. Rutherforth, in his Institutes of Natural Law, contends, not without reason, that when we speak of relative superiority, we use the word supremacy. He
-Whenever we speak of sovereign power or of supreme power, we are led into some mistakes by using these words indiscriminately. When we call any power supreme, the expression seems to be relative to some other subordinate powers; to call any power the highest of all is not very intelligible, if there are no other powers below it. Sovereign power is also a relative term; but then it has not a necessary relation to subordinate powers. To call any power by the name of sovereign power, does not necessarily imply that there are any other powers in subordination to it. Whatever power is independent, so as not to be subject to any other power, though it has in the mean time no other power subject to itself, may with propriety enough be called by this name. In short, that power may well be called sovereign to which none is superior; whereas none can be called supreme, unless there are others inferior to it.” Book II. ch. iv. pp. 75, 76.
2 Dr. Lieber, in his Political Ethics, defines sovereignty from the point of view of its moral limitations, thus : “ The necessary existence of the state, and that right and power which necessarily flow from it, is sovereignty."
“1. The bulk of the given society are in a habit of obedience or submission to a determinate and common superior, let that common superior be a certain individual person, or a certain body or aggregate of individual persons.
“ 2. That certain individual, or that certain body of individuals, is not in a habit of obedience to a determinate human superior.
“ Or, the notions of sovereignty and independent political society may be expressed concisely thus: If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent.” 1
§ 20. It is impossible to describe sovereignty with greater completeness or felicity, but I shall venture to add to the marks given by Mr. Austin two not unrelated to them, expressed in terms more familiar to the jurisprudence of the United States. They are these :
1. Whenever, within the same territorial limits, there exist two political organizations, or two political entities, so related to each other that one may determine its own powers and jurisdiction, and, in so doing, limit, enlarge, or abolish those of the other, being at the same time itself, not only subject to no reciprocal modification, but independent of all the world, the former is a sovereign organization or entity, and the latter is not.
2. Whatever, historically considered, may have been the original relations of two political bodies at present distinguished from each other by the mark indicated, the powers wielded by the inferior must be conceived as delegated by the superior, since at no moment would its possession of them continue without the consent of that superior.
This follows from the definition of sovereignty, and will aid us further on, when we come to consider the question of sover. eignty in the United States.
$ 21. With the abstract question of the ground upon which the right of sovereignty rests, I shall not concern myself.?
1 Austin, The Province of Jurisprudence Determined, Vol. I. p. 170.
2 The principal theories as to the ground of sovereignty, and, consequently, as to the ultimate foundation of civil government, are, that it rests, first, upon