the credentials of the members have thereupon been presented and approved.1 The list having thus been verified, the Convention has been prepared to enter upon business. In some cases, the list of delegates has been presented by some officer of the government, and read in the first instance, before the temporary organization has been effected.2 In others, after the temporary organization, the first business transacted has been the raising of a committee on credentials, upon whose report the list of members for future use has been founded.3

In those Conventions, on the other hand, in which no temporary organization has been made, the practice has been equally varied. In Pennsylvania in 1776 and 1789, in New York in 1821, and in Indiana in 1850, a list of the delegates elected, furnished by the Secretary of State or other officer of the government, was read in the first instance, before any attempt at organization. In Maryland in 1776, and in Massachusetts in 1820 and 1853, a committee on credentials was raised, in the first case after, but in the two Massachusetts Conventions before, the permanent organization; and in one case, that of the Virginia Convention of 1829, the roll was not called or verified until after the completion of the permanent organization.

§ 277. The question whether the members of a Convention should be sworn before entering upon their duties, has been variously answered in different Conventions. Of the whole number whose proceedings have been accessible to me, about one half only have administered an oath. These were the following Conventions: those of Pennsylvania, 1776; North Carolina, 1835; New Jersey, 1844; Missouri, 1845; Illinois, 1847 and 1862; California and Kentucky, 1849; Ohio and Indiana, 1850; Iowa and the two Minnesota Conventions, in 1857; and Maryland, in 1864. On the other hand, an oath was not administered in the following Conventions: Maryland, 1776 and 1850; Tennessee, 1796 and 1834; Virginia, 1829 and 1850; Pennsylvania, 1789 and 1837; New York, 1821 and 1846; Massachu

1 This was done in Illinois in 1847 and 1862, Kentucky in 1849, Ohio and Virginia in 1850, California in 1849, Pennsylvania in 1837, Iowa in 1857, and Louisiana in 1852.

2 These were the Conventions of New York in 1846, and Michigan in 1850. 3 In Minnesota in 1857 (both Conventions), in Wisconsin in 1847, in Iowa in 1857, and in Louisiana in 1844.

setts, 1779, 1821, and 1853; Michigan, 1850; Wisconsin, 1847; and Louisiana, 1812, 1844, and 1852. In those Conventions in which an oath has been administered, the most common form has been substantially that used by the Illinois Convention of 1847, which was as follows: "You do solemnly swear, that you will support the Constitution of the United States, and that you will faithfully discharge your duty as delegates to this Convention, for the purpose of revising and amending the Constitution of the State of Illinois." That administered in Maryland, in 1864, beside the foregoing, contained an oath of allegiance to the government of the United States. A more restricted form was employed in the California Convention of 1849, and in the Minnesota Republican Convention of 1857, namely: "You do solemnly swear that you will support the Constitution of the United States."

§ 278. In several of the Conventions in which an oath has been administered, opposition has been made either to taking any oath at all, or to taking one in the form proposed by the Convention, or prescribed by the Act under which it assembled.

1. It has been urged that no oath was necessary or proper; that if the Convention was a mere committee, with powers only of proposing amendments, it was a useless ceremony to bind it by oaths to do or not to do acts which it could do only on the hypothesis that it possessed a power of self-direction inconsistent with its supposed character; that it was even dangerous so to do, as involving an admission, that, without an oath or some positive prohibition, it would have power, and perhaps be at liberty, to act definitively. On the other hand, if the Convention was an embodiment of the sovereignty of the State or nation, empowered to pull down and reconstruct the edifice of government, as freely as the sovereign could itself do, were it possible for it to act in person and directly, then an oath would be doubly futile, since it could not fetter a power that was practically unlimited and uncontrollable.

In reply to this, however, it has been forcibly urged that, if not necessary, it is proper that a body like a Convention, intrusted with important public duties, should deliberate under the obligation of an oath; that it could do no harm, and might operate to restrain members from doing, for selfish or partisan ends, that by which the interest of the people at large might be

jeopardized. This would become more apparent, when it was considered that an oath derives its efficacy more from its tendency to remind the taker of his obligation to a higher power, than from any liability the taking of it may impose upon him to punishment for perjury.

§ 279. 2. What form of oath should be used has, however, been more frequently the subject of dispute than whether any oath was proper. In Conventions to frame State Constitutions, assuming that an oath is to be administered at all, it is generally conceded to be proper that it should embrace an undertaking to be faithful and obedient to the Constitution of the United States. This could not well be contested, since the State Constitutions are, by the terms of the Federal charter, to be valid only when conformable to its provisions. It is also generally admitted to be proper, if an oath be taken at all, that the members should be sworn honestly and faithfully to perform their duties as members of the Convention. A question of more difficulty is, whether the oath should contain a clause to support the Constitution of the State. This question has been raised in several Conventions, and has been uniformly decided in the negative. The reasonings of the opposite parties upon this question have been based on their respective conceptions of the nature and powers of a Convention. Those who have opposed taking the oath have done so on the ground, that to do so would be inconsistent with their duties as members of a Convention; that they were deputed by the sovereign society to pull to pieces, or, as some have expressed it, "to trample under their feet," the existing Constitution, and to build up instead of it a new one; that to take an oath to support the Constitution of the State, would be to swear that they would not perform the very duty for which they were appointed.

§ 280. On the other hand, it has been contended, that it is no part of the duty of a Convention to pull to pieces the existing Constitution of the State; that by the true theory of such a body, it is advisory merely; having power to overhaul the Constitution, search out its defects, and recommend such changes

1 It arose in the Louisiana Convention of 1844, in the Ohio Convention of 1850, the Iowa Convention of 1857, and the Illinois Convention of 1862. In the last case the oath to support the Constitution of the State had been prescribed by the Act calling the Convention.

as should in its view promise to remedy them, but to conclude nothing; that in this view of a Convention, the Constitution is in full vigor and operation as much when that body, having completed its task, should suffer dissolution, as when it first assembled; that, in the mean time, if unrestrained, a Convention might, under a claim of power to exercise sovereign rights, "trample under its feet" every one of those liberties secured against ordinary usurpation by the Bill of Rights; it might suspend the writ of Habeas Corpus, raise a standing army and quarter it in peace upon the citizens without their consent, destroy the liberty of the press, declare those who should offend its dignity to be guilty of felony and punish them, by its own hands, with death. Surely, if such usurpations are possible, no matter what the theory of their powers may be, Conventions ought to be placed under all the restraints that can be devised to prevent them. Undoubtedly one of the most powerful of these is an oath to support the Constitution, in which are bound up these liberties, and which therefore must first be infringed before those liberties can be violated.

§ 281. In the case of two Conventions, those of North Carolina, in 1835, and Illinois, in 1862, the Acts under which those bodies assembled prescribed the form of the oath to be taken. In the former, great opposition having existed to the call of a Convention, on the part of a powerful minority in the State legislature, in the Act finally passed, restrictions were imposed upon the Convention as to the extent and nature of the amendments it should propose, requiring it to report amendments upon three points, and giving to it discretionary authority to propose others upon nine points particularly described in the Act. The Act then proceeded to require that no delegate should be permitted to take his seat in Convention until he should have taken and subscribed an oath or affirmation as follows: "I, A. B., do solemnly swear (or affirm, as the case may be) that I will not directly or indirectly evade or disregard the duties enjoined or the limits imposed to this Convention by the people of North Carolina, as set forth in the Act of the General Assembly, passed in 1834, entitled An Act to amend the Constitution of the State of North Carolina,' which Act was ratified by the people."

To the taking of this oath, objection was raised in the Con

vention, on the ground, that the legislature had no right to impose it, some being of the opinion that, if taken, it would bind the members to concur in all the amendments proposed. Others thought it would merely restrict the Convention to the consideration of those amendments, without at all prescribing the view it should adopt respecting them. Others still raised the question, what would be the effect should the Convention transcend the limits imposed, and submit to the people other amendments, which should be adopted, citing the case of the Federal Convention, which disregarded the limitations imposed by the States, and instead of a revised Confederation recommended a national government. At length it was pointed out, that there was absolutely no escape from taking the oath; that by the terms of the Act no delegate should be permitted to take his seat in the Convention until he had taken the prescribed oath. It was a condition precedent to their organization, and if it was objected, that the legislature had transcended its authority in. imposing the condition, it might be answered that the Act rested not alone on the authority of the legislature, but on that of the people to whom it had been submitted. This view prevailed, and the oath was taken by all the members.1

§ 282. In the Illinois case, the Act calling the Convention had prescribed, that the members, before entering upon their duties, should "each take an oath to support the Constitution of the United States, and of this State, and to faithfully discharge his duties as a member of said Convention." The taking of this oath was strenuously opposed, on the two grounds, before mentioned, that the legislature had no power to impose it, and that the clause relating to the Constitution of the State was inconsistent with the general tenor of the Act calling the body together as a Convention. It is unnecessary to rehearse the arguments in support of these positions, or those by which it was attempted to refute them. The question of power in the legislature to bind a Convention in such a case, will come up for consideration in a subsequent chapter. As before stated, the result of the discussion was, that the Illinois Convention, by a formal vote, refused to obey the Act under which it assembled, in regard to the form of the oath to be taken by its members. The oath actually administered was substantially the same as that 1 Deb. N. C. Conv. 1835, pp. 4–8.