of electors, by authorizing to vote for delegates to that body all free male citizens of the State of the age of twenty-one years or upwards, who should possess a freehold within the State; or who should have been rated and paid taxes to the State; or who should have been actually enrolled in the militia of the State, or in a legal volunteer or uniform corps, and should have served therein either as an officer or private; or who should have been or then were by law exempt from taxation; or who should have been assessed to work on the public roads and highways, and should have worked thereon, or should have paid a commutation therefor, according to law.

The effect of this Act was largely to extend the right of suffrage. By those opposed to the Convention, it was complained, that it allowed negroes, excluded from the right of suffrage by the Constitution and laws before that in force, to vote at the election of delegates to the Convention.

§ 265. The next instance of exceptional legislation in the matter of electing delegates to Conventions occurred in Rhode Island.

By the charter of Charles II., in force in Rhode Island until 1842, the right to determine the qualifications of voters was committed to the General Assembly. We have already seen that, at the date mentioned, in consequence of changes of the population not attended by corresponding changes in the basis of representation, or in the qualifications for the suffrage, great inequalities had arisen in the political power enjoyed by different parts of the State and by different classes of the population. As a consequence, the suffrage movement was set on foot, culminating, as already explained, in the formation of the so-called People's Constitution, the election of State officers under it, and in an attempt by the pretended Governor, Dorr, to establish the new government, in the place of that existing under the Charter, by military force.1 This revolutionary attempt was easily suppressed, but the legitimate government did not confine itself to forcible measures to maintain its own supremacy, and to restore the public tranquillity. The Constitution framed by the legitimate Convention, called by the General Assembly in 1841, having, through the efforts mainly of the suffrage party, been rejected, another Convention was called by the same body in 1 See ante, §§ 227, 228.

the following year, by which, the present Constitution of the State was framed. To appease the discontent of the "People's Party," the General Assembly, in calling this Convention, extended the right of suffrage for the election of delegates, repealing the clauses of existing laws making property, payment of taxes, and military service qualifications for the exercise of that function, and retaining as the only requisite for it three years' residence in the State.1

§ 266. Tested by the principles set forth in the preceding sections of this work, the action of the Georgia and New York legislatures was unauthorized, and in palpable violation of the spirit of their respective Constitutions. That of the Georgia legislature was particularly obnoxious to censure, since that body undertook not only to call a Convention to remodel the Constitution, but itself to appoint the delegates to constitute that body—a proceeding which made of the latter a mere committee of the former, and of the Constitution an ordinary statute, subject to modification or repeal by the General Assembly. The action of the New York legislature, though less reprehensible, was liable to this serious objection, it assumed, being itself the creature of the Constitution, to transfer the right of suffrage the most elementary of all political functions - from those to whom that instrument had confined it, to persons either expressly or impliedly excluded by it from the electoral circle.

The same observation is applicable to the action of the Rhode Island General Assembly, unless the fact that, under the Charter, the power belonged to it to fix the qualifications for suffrage, should be thought to bring the case under a different rule. Conceding that this is so, I shall only hazard the observation, that such a power in the legislature of changing the bases of the Constitution, upon particular emergencies, being of evil promise, and violating all legal analogies, to say nothing of the teachings of experience in relation to its probable consequences, the only safe course would doubtless be, to make such changes as are constitutionally permissible, as the growth of the Commonwealth requires them, and because it requires them, and not as concessions, long wrongfully withheld, and at last, against the spirit of the Constitution, yielded to discontent.

1 Considerations on the Questions of the Adoption of a Constitution and Extension of Suffrage in Rhode Island, by E. R. Potter, p. 21.

CHAPTER V.

267. THE Convention having been called, our next inquiries relate to the general structure or constitution of the body, to its internal organization and to its modes of proceeding.

The constitution of a Convention may be considered with reference, first, to its membership - the qualifications therefor and, secondly, to the question of its subdivision into separate chambers, possessed of a mutual negative upon each other.

1. The first question - Who may be members of a Convention? — receives an explicit answer in but one of our Constitutions, that of Kentucky, of 1850. Article XII. of that Constitution requires that they shall be "possessed of the same qualifications of a qualified elector."

In none of the Acts calling Conventions, so far as I have been able to discover, have the qualifications of delegates been specified, except in the following cases: The New York Convention Act of 1821, made eligible as delegates all persons entitled by that law to vote for delegates; the North Carolina Convention Act of 1835, all free white men, of the age of twenty-one years, one year resident in the State, and possessed of the freehold qualifications required of a member of the House of Commons under the existing Constitution; the Pennsylvania Convention Act of 1837, "no delegate to represent any other district than that in which he shall have resided for one whole year next preceding the election;" the New Hampshire Convention Act of 1850, any person who by the laws of this State is a qualified voter in the town or district in which he may be elected; the Ohio Convention Act of the same year, all persons having the qualifications of an elector; the Delaware Convention Act of 1852, any white male citizen of the State of the age of twentyfour years or upwards; the Iowa Convention Act of 1857, all persons having the qualifications of a senator in the General Assembly; the Maryland Convention Act of 1864, all persons

having the qualifications for a seat in the House of Delegates; and the Acts of Congress authorizing the Nevada and Nebraska Conventions of 1864, all persons qualified by law to vote for representatives to the General Assembly of those Territories respectively.

$268. In the Constitutions of several of the States, now in force, after making provision for calling Conventions under certain circumstances, the delegates thereto are required to be "chosen in the same manner, at the same places, and at the same time," as the representatives to the General Assembly, and the same or equivalent phraseology is found in many of the Acts of the State legislatures by which Conventions are called. So, also, in the enabling Acts passed by Congress, authorizing Conventions in Territories, there is commonly inserted a provision requiring the elections to be "conducted in the same manner as is prescribed by the laws of the Territory regulating elections therein for members of the House of Representatives." To these add, what is believed to be the fact, that in no case has any person ever been elected as a delegate to a Convention in the United States who was not a citizen-elector, resident in the State where the Convention was called, and the case, upon one side, is presented. If it does not establish the fact, that, as a general rule, no one, not possessing at least the general qualifications of an elector, is eligible to a Convention, it certainly raises a strong implication to that effect.

§ 269. Against these facts should be set off the declarations of certain authorities, in and out of Conventions, laying down an opposite rule, according to which the electors may choose whom they will to represent them in those bodies, whether qualified electors or not, even if non-residents of the State, and that, whether restricted by the Act calling the Convention or not. Thus, the opinion has been expressed, that "the delegates may be individuals from any class, including the ministers of religion, the Governor, and other public functionaries, and the judges "1— persons, by many of our Constitutions, excluded from occupying seats in our General Assemblies, or from holding any other places of honor or profit. So, in the Pennsylvania Convention of 1837, it was intimated that, had the county of Philadelphia elected Albert Gallatin, a citizen and resident of New York, as its dele1 Hinton's Hist. U. S., Vol. II. pp. 324-327.

gate, it would have been competent for that body to admit him to a seat, in the face of the Act of the legislature, above referred to, localizing the elections of its members.1 Those who advocate this freedom of election might, perhaps, with some plausibility claim, that, inasmuch as the function of a Convention is to recommend, not to enact, constitutional changes, free scope should be allowed to the electors to employ the best talent they can find, wholly without restriction; and that what reason thus indicates to be expedient, the fact that most of our laws and Constitutions are wholly silent as to who may, and who may not be members of Conventions, demonstrates with sufficient clearness to be according to the intent of those who framed them.

§ 270. 2. In relation to the question of subdividing Conventions into two chambers, with a check upon each other, after the plan of our legislative Assemblies, it is not my purpose to enlarge. So long as those bodies confine themselves to their legitimate function, of advisers, and abstain from acts of legislation, which belong to another department, the legislature, their present constitution, in a single chamber, is without danger, and, having the merit of simplicity, is doubtless preferable to any other. Such has uniformly been the constitution exhibited by them thus far. The idea, however, has been advanced, that a Convention of two houses would better answer its constitutional purpose than of one. In the New York Convention of 1846, Mr. Ruggles introduced a resolution recommending, that all future Conventions called in that State should consist of two chambers. It was received with little favor, however, and was not pressed. In 1857, the Convention of Minnesota realized as a fact the constitution which had only been elsewhere imagined. The two political parties in the Convention, Republicans and Democrats, disagreeing as to the organization of the body, formed separate Conventions, which ran parallel courses, each claiming to be the only legitimate Convention. Two Constitutions were reported, and it seemed that the people were to be embarrassed by the necessity of choosing between them, when, toward the close of their respective sessions, a conference was had between the two bodies, and a single Constitution reported to, and adopted by them both. It seems clear, that this mode 1 Deb. Pa. Conv., 1837, Vol. I. p. 400.