§ 304. The Constitution, coming from the hands of the committee of revision, and being adopted as a whole, it is usual for the entire body of the delegates, beginning with their president, to subscribe their names to it, in attestation of its genuineness. In a few instances it has been signed by the president and secretary only, and in a few others by such members only as voted for it upon its final passage. It is not apparent why members should ever refuse to subscribe to the Constitution which has been matured by the Convention, if the act be construed, as I think it should be, as an act of attestation, and not as a declaration of approval.

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CHAPTER VI.

§ 305. WE approach now by far the most important question relating to Conventions, namely, What are their powers?

1

It is hardly necessary to apprise the reader that, by the term power, as applied to an institution charged with governmental functions, is meant not physical ability, but legal ability, or that moral competence which Burke describes as "subjecting, even in powers more indisputably sovereign, occasional will to permanent reason, and to the steady maxims of faith, justice, and fixed fundamental policy." In language more familiar to ears trained in our constitutional schools, it means competence by law or by the principles of our political Constitution. What a Convention can do legally, that is, by the express provisions of some law, or what, in the absence of such a law, it can do consistently with the principles of our Constitutions, among which are to be reckoned its own, it has, in general, power to do, and nothing further.

§306. The general conception of a Convention is, that it is a body of delegates, chosen by the electors of a State, to perform certain legislative duties connected with the enactment of the fundamental law. The extent of those duties, whether it be to frame, establish, and put in operation that law, or only to take certain steps toward its establishment, leaving others to be taken by other agencies, is mainly the question we are to determine. In the general definition of a Convention, just given, the term "delegates" is used advisedly, and is intended to be taken in its legal sense, as distinguished from the word "representatives," which is defined by Lord Brougham to be a body of persons, chosen by the people, to whom the power of the people is parted with, and who perform that part in the government which, but for this transfer, would have been performed by the people themselves.2

1 Reflections on the Revolution in France.
2 Political Philos., Vol. III. ch. vi. p. 33.

§ 307. Two widely different theories of this important institution, from which have been derived divergent conceptions of its powers, have of late years been in vogue.

First. One theory is, that the Convention is a strictly representative body, acting for and in the name of the sovereign, and possessed, by actual transfer, of all the powers inherent in that sovereign, limited, however, in the case of Conventions in the several States, by the Constitution of the United States; that it is "a virtual assemblage of the people," of whom, by reason of their great numbers and remoteness from each other, an actual assemblage, imagined by political speculatists, is impossible, the most that can be effected being a gathering together in convenient numbers of deputies, empowered to represent the people, and clothed with all the power the sovereign itself would have were it assembled en masse.

Secondly. The second theory is, that the Convention is a collection of delegates appointed by the sovereign, through the agency of one or more branches of the existing government, to perform certain determinate duties in relation to the formation or revision of the fundamental law; what those duties are, depending upon the tenor of the commission under which it convenes, or, when that is silent, upon sound constitutional principles and precedents. According to this theory, the members of a Convention are not, accurately speaking, representatives, but delegates; and it is their function, not to enact, but simply to recommend, constitutional changes, unless, indeed, as is sometimes the case, the warrant for their assembling should contain authority to act definitively, in which case their power would, perhaps, be coextensive with the terms of the grant. In other words, in its last analysis, a Convention, according to this second theory, is a mere committee, sitting for a specified purpose, under the express mandate of the sovereign, and possessed of such powers only as are expressly granted, or as are necessary and proper for the execution of powers expressly granted. This theory evidently discards the notion, so much cherished by the advocates of the former, that the Convention is clothed with sovereign attributes, though doubtless intrusted to some extent, under strict regulations, intended to secure responsibility, with their exercise.

§308. As I am unwilling to misstate the two theories, above

propounded, I extract from the debates of our Conventions, or from the writings of our public men, passages in which the one or the other has, more or less completely, been maintained.

Thus, in the Illinois Convention of 1847, Mr. Peters said: "He had and would continue to vote against any and every proposition which would recognize any restriction of the powers of this Convention." "We are," he continued, "the sovereignty of the State. We are what the people of the State would be, if they were congregated here in one mass-meeting. We are what Louis XIV. said he was, We are the State.' We can trample the Constitution under our feet as waste paper, and no one can call us to account save the people."

1

So the Hon. George M. Dallas, in a letter published in “ The Pennsylvanian" of Sept. 5, 1836, said: "A Convention is the provided machinery of peaceful revolution. It is the civilized substitute for intestine war. When ours shall assemble, it will possess, within the territory of Pennsylvania, every attribute of absolute sovereignty, except such as may have been yielded and are embodied in the Constitution of the United States. What may it not do? It may reorganize our entire system of social existence, terminating and proscribing what is deemed injurious, and establishing what is preferred. It might restore the institution of slavery among us; it might make our penal code as bloody as that of Draco; it might withdraw the charters of the cities; it might supersede a standing judiciary by a scheme of occasional arbitration and umpirage; it might prohibit particular professions or trades; it might permanently suspend the privilege of the writ of Habeas Corpus, and take from us ... the trial by jury. These are fearful matters, of which intelligent and virtuous freemen can never be guilty, and I mention them merely as illustrations of the inherent and almost boundless power of a Convention." 2

But two further extracts will be given upon this side of the question, taken from the proceedings of the Illinois Convention of 1862. A committee, composed of some of the leading jurists in that body, in a report upon the subject of electing a

1 State Register of June 10, 1847.

2 To a similar effect, are remarks of Mr. Mitchell, in the Kentucky Convention of 1849, Deb. Ky. Conv. 1849, p. 863; also of B. F. Butler in the Massachusetts Convention of 1853, Deb. Mass. Conv. 1853, Vol. I. pp. 78, 97.

printer, said: "When the people, therefore, have elected delegates, and they have assembled and organized, then a peaceable revolution of the State government, so far as the same may be effected by amendments of the Constitution, has been entered upon, limited only by the Federal Constitution. All power incident to the great object of the Convention belongs to it. It is a virtual assemblage of the people of the State, sovereign within its boundaries, as to all matters connected with the happiness, prosperity, and freedom of the citizens, and supreme in the exercise of all power necessary to the establishment of a free constitutional government, except as restrained by the Constitution of the United States." In a speech in the same body, General Singleton said: — "Sir, that this Convention of the people is sovereign, possessed of sovereign power, is as true as any proposition can be. If the State is sovereign the Convention is sovereign. If this Convention here does not represent the power of the people, where can you find its representative? If sovereign power does not reside in this body, there is no such thing as sovereignty." 2

§ 309. On the other hand, the theory which regards Conventions as advisory bodies simply, with limited powers, has been broached in equally explicit terms. The earliest case in which the powers of such bodies were brought into discussion, was that of the Federal Convention of 1787. The credentials of the delegates to that body, as is well known, contemplated only a revision of the Confederation, leaving it still a mere confederate system. On assembling, however, those delegates were generally satisfied, that any government, formed by patching up the old Confederation, would be wholly inadequate, and that what was wanted was a firm national government. But then arose the embarrassing question, was it competent for that body to disregard its instructions and frame such a system as it deemed absolutely necessary for the salvation of the country? The answer given to this question marks, indisputably, the sense of the statesmen of the Revolution as to the real nature of the Convention. Their answer was, in substance, that by strict law the Convention had no power nor right to disregard the instructions of the legislative Assemblies by which they were deputed, on 1 Illinois State Register of Jan. 10, 1862.

2 Id. of Jan. 17, 1862.