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taken by the Illinois Convention of 1847, and differed from that prescribed mainly in omitting the words, " and of this State,” upon which the debate arose.
§ 283. Upon the question involved in the Illinois case, I shall make but a single observation, and that in relation to the alleged incongruity between the undertaking contained in the oath, and the actual business of the Convention.
When a member of a Convention swears to support the Constitution of his State, what Constitution is it he swears to support? Is it the written instrument — the Constitution considered as evidence of an objective fact — or the objective fact itself the actual Constitution ? Substantially, the latter only. He calls God to witness that, while inspecting the written Constitution, to see if it adequately expresses the real Constitution, to which the Commonwealth has grown since the last revision, he will not violate, but will protect and defend, those essential rights, and respect and conform to those particular limitations and adjustments, which make up that real Constitution; though he doubtless adds that, pending the utterance of the fiat, by which obsolete or inadequate provisions of the written Constitution are stricken from its pages, he will respect them also as the fundamental law of the land. But, suppose every copy of the Constitution, considered as an instrument of evidence, were destroyed, and the memory of its contents utterly blotted out, the real Con. stitution would remain, the Constitution to which the oath mainly refers. So that, if we were to admit that it is the duty of a Convention to eradicate from the written Constitution, and to trample under its feet such part thereof as the Commonwealth has outgrown, the oath would still refer to that greater part which is living and operative.
The charge, then, that there is any inconsistency between the oath supposed, and the function of a member of a Convention, however broad the powers of the latter be conceived to be, is a gross absurdity, resulting from confusion of ideas as to the real meaning of the term Constitution. Much more is it an absurdity in view of the fact, that a Convention is a body of very narrow powers, charged only with pointing out defects and recommending remedies, but with a right, ordinarily, to conclude nothing.
§ 284. Immediately after the permanent organization, there is generally appointed a committee to report a body of rules for the government of the Convention, or to facilitate the transaction of its business. Pending the preparation of this report, in about half the cases, a resolution has been carried to adopt for their government, for the time being, the rules of the last House of Representatives of the State, so far as applicable. In a few instances, the rules of the last Convention have been temporarily put in force, and in one case, that of California, in 1849, those laid down in Jefferson's “ Manual of Parliamentary Law.” As to the character of the rules adopted, it may be said, in general, that they are, in substance, the same, so far as they are strictly rules of order, and not rules determining the modes of proceeding, as those by which our legislatures are commonly governed. The differences are such as result either from the special and limited character of Conventions, as compared with legislative Assemblies, or from the relative importance of their respective duties. In the former, for instance, there is not, probably, a necessity for the same safeguards against haste, surprise, or inadvertence, as in the latter, inasmuch as the volume of the laws to be passed upon is smaller, or against the combinations of interested parties, as the legislation performed by them is less near to the interests or the party prejudices of their members or others. Thus, it is sometimes provided, that clauses may be adopted as parts of the proposed Constitution, upon a less number of readings than would be safe, or than is usual, in case of ordinary laws. On the other hand, by reason of the vastly greater importance of the subjects of deliberation in Conventions, the rules often grant a much greater facility for reconsideration than in legislative Assemblies. Thus, in the Massachusetts Convention of 1853, on motion of the Hon. Henry Wilson, the ordinary rule requiring a motion for reconsideration to be made by one who voted with the majority, was so modified, as to permit any member to make it, whether he had voted with the majority or not. Greater latitude is, also, in many cases, allowed, as to the time within which that motion must be made.1
1 The relaxation of the rule as to time seems to be much more reasonable than as to the mover. As was well said by Mr. Quincy, in the Massachusetts Convention of 1820, it is proper, before allowing a reconsideration, to require some evidence that a reconsideration would lead to a different result from that already attained, else it would be a mere loss of time; and a motion by one of the majority to reconsider, is proper evidence of that fact. The Convention of 1820, after some discussion, refused to modify the general rule as to reconsiderations.
§ 285. The Convention having organized, by the appointment of officers and the adoption of rules of order, and, therefore, being ready to proceed to business, a question of great perplexity and of great importance thereupon arises: “ What shall be the mode of proceeding? - a question, in short, of method.
This question involves two subordinate ones, which I will take up in their order, namely, first, What arrangements, if any, shall be made whereby the labor of the Convention may be fa. cilitated by subdivision ? — a question properly of instrumentalities; and, secondly, In what manner shall those instrumentalities prosecute the task apportioned to them?
First. Of the first question, two practical solutions may be given.
1. The Convention may enter upon its task — the framing or the amending of a Constitution — directly, in Convention, as it is called — that is, without resolving itself into a committee or committees. In this mode of proceeding the course of business would be, to take up the existing Constitution of the State, or that of some other State, or some model or project presented by individuals, subject it to a round of discussions in Convention, and finally to adopt it as the proposed Constitution, or as an amendment thereto. The disadvantages attending this mode are so patent and so numerous, that it is doubtful if it would ever be adopted, as it is believed that it never has been adopted. The leading objection to it is, that the deliberations of any numerous assembly, which should adopt it, would be at once protracted and fruitless. It is obvious that every member might present his scheme, and rightfully claim for it regular and orderly consideration; and, in the absence of the concert of action secured by committees, a great number of schemes, turning out ultimately to be futile or inadequate, would undergo protracted discussion, which, with a proper mode of proceeding, would be nipped in the bud. Besides, the immense labor of maturing, in all its details, a large number of connected fundamental Acts, would have to be done, according to this mode, by the entire Convention — an arrangement, for business efficiency, to be equalled in absurdity only by a military plan, which should require to be detailed for every duty of camp or field, however trivial, the entire force of all arms in the command.
$286. 2. The alternative is, the employment of one or more committees to prepare and report a Constitution, or parts thereof, or amendments thereto, for the consideration of the Convention. And, as intimated above, this course has been adopted with perfect unanimity by the Conventions to whose proceedings I have bad access. Upon one point, however, there has been very great divergence of opinion, and that is, in relation to the number, and, if more than one, the mode of appointment of those committees.
$287. (a). As to the number of committees, a very common opinion, when the subject is first discussed, is that there should be, for convenience and despatch of business, but a single committee — the committee of the whole. Those who advocate this mode of proceeding claim for it simplicity and directness as well as efficiency, and they usually propose that the Constitution which is to be taken as a model for imitation or the basis for amendments, should be read; that each member should thereupon be allowed perfect freedom of discussion; and, when it has been determined what the views of the body are, that the committee should report, and the whole matter be at once, as it could readily be, concluded. At the same time it is commonly admitted, that this course would be impracticable in an ordinary legislature, by reason of the complexity and multifariousness of the subjects brought up for its action ; but this is supposed not to hold true of a Convention, because, it is said, its business is relatively simple and homogeneous. Hence, in almost every Convention ever held, so far as I am aware, there have been advocates of a reference of its whole business, in the first instance, to a committee of the whole.
9 288. (6.) Another plan, adopted in a few cases in Conventions engaged in framing first Constitutions, is to appoint a single select committee of limited numbers, to digest from such materials as may be at hand, the models of political amateurs or the Constitutions of neighboring States, a draft of a Constitution to be considered by the Convention. As this plan involves the necessity either for great haste on the part of the committee, or of much delay and inactivity on that of the Convention, pending the preparation of the report, it has been rarely employed. Of all the Conventions whose records have reached me, only ten have adopted this plan, namely, those of Maryland, Virginia, New Jersey, and Pennsylvannia, held in 1776 ; those of New York and Vermont, held in 1777; those of Massachusetts, held in 1778 and 1779; that of Tennessee, held in 1796; and that of California, held in 1849.
§ 289. (c.) A third mode of proceeding by the use of committees, is for the Convention to apportion the work to be done among several committees, giving to each an article or other definite portion of the existing Constitution, embracing a distinct topic, as the Executive, Legislative, or Judicial department, the Finances, Education, Bill of Rights, and the like ; each committee to report in the form of articles and sections such provisions as it shall deem necessary.
These are evidently all the modes of which the subject is capable; and the one last described is that which has very generally been adopted. The mode of proceeding by a committee of the whole, has been examined to some extent already; but it may be proper here to inquire with some particularity into the merits of that mode, as compared with that last described, by numerous committees a question which has given rise to much discussion in several Conventions, and is likely to be again discussed hereafter.
§ 290. In favor of proceeding in committee of the whole, it has been urged, that if it be an object to save time or to secure the exercise of all the talent in the Convention, the best course is to make use of that committee; that, if a Constitution is to be adequately discussed, the appointment of several committees, in the first instance, to report upon distinct portions of it, would increase rather than diminish the time occupied in the session, since, while the reports were being prepared, the Convention would be forced to remain idle ; and the several reports being likely to be incongruous and more or less unacceptable to the Convention, every part of them would need to be amended and brought into harmony with other parts and with the sentiments of the majority in the body; that the wisdom and experience of the entire Convention are at least equal to those of any committee chosen therefrom; that it is the proper province of the Convention, as it is of a legislature, to settle principles, and of committees to arrange details; hence, it is evident that, when the members of a Convention have learned, from a full and free discussion in committee of the whole, unembarrassed by the rules that must be enforced in Convention, the principles