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2. The question considered with reference to the State governments.
SS 561, 562.
proposed for ratification, to the State legislatures, by Congress, and
V. When a Constitution contains a provision for its own amendment, in
either of the modes above specified, can another and different mode
power of the legislature to modify a Convention Act which has been
voted upon by the people. p. 542.
E. Official proceedings culminating in the reassembling of the Louisiana Con-
vention of 1864, in July, 1866. p. 545.
$ 1. It is my purpose, in the following pages, to inquire into the history, powers, and modes of proceeding of the ConstiTUTIONAL CONVENTION, one of the most important and most characteristic of the political institutions of the United States.
Of the American system of government, the two leading principles are, first, that laws and Constitutions can be rightfully formed and established only by the people over whom they are to be put in force; and, secondly, that the people being a corporate unit, comprising all the citizens of the state, and, therefore, too unwieldy to do this important work directly, agents or representatives must be employed to do it, and that, in such numbers, so selected, and charged respectively with such functions, as to make it reasonably certain that the will of the people will be not only adequately but speedily executed.
The function of framing and enacting the statute law is commonly, by the practice of all representative governments, intrusted to a numerous body, called a legislature. Constitutions, on the other hand, considered as written instruments, are the work of various agencies, according to the genius or special circumstances of the states concerned, some being formed by the executive branch of the government, some by the legislature, and some by a body for that purpose specially chosen and commissioned. Thus, in England, this duty is exclusively committed to King, Lords, and Commons in Parliament assembled. Under the imperial régimes of the first and the third Napoleons, in France, the plebiscites, determining the form and powers of the government, though nominally the work of the Senate, were and are really dictated by those monarchs. With us, in Amer
1 See Works of Daniel Webster, Vol. VI. pp. 221-224.
ica, there is set apart a special agency, to which is confided wholly, or mainly, the business of fundamental legislation, — the Constitutional Convention. It is this agency which frames our Constitutions, and which, generally, as changes in them become necessary, is charged with maturing the needed amendments. In some cases, under authority for that purpose expressly given, it both forms and establishes our fundamental codes, but commonly it acts in conjunction with some other department of the existing government; the one presenting, after mature deliberation, in the form of proposals, a connected scheme, and the other by its sanction imparting to that scheme the force and vigor of law.
$ 2. To any society, far enough advanced in civilization to demand as well the ascertainment as the protection of its civil and political rights, no institution could be of more interest than one charged thus with the role of both founder and restorer of its social machinery. Is this institution, it might be asked, subject to any law, to any restriction? What claims does it itself put forth, and what do the precedents teach, in relation to its nature and powers ? When called into existence, is it the servant, or the master, of the people, by whom it was spoken into being ? Whatever be its relations to the general source of political power, whether those of subordination or of independence, what is the place in our system, what are the relations to other governmental agencies, the normal functions and powers, of an institution, that, however hedged about by legal restraints, obviously exhibits more features that are menacing to republican liberty than any other in our whole political structure.
3. To the interest attaching to the Convention, thus, from abstract considerations, has been added a greater, resulting from the connection of that institution with recent political events. The desolating war of secession, which has just closed, could hardly have been inaugurated but for the use made by the revolting faction of that institution. For reasons, which will be more fully explained hereafter, it had come to be a maxim in the practical jurisprudence of the United States, at least in some of the States, that whatever had been done by a Constitutional Convention, had been done by the people, “in their primary and sovereign capacity," and was therefore absolutely unquestionable, on legal or constitutional grounds; and there were not wanting those who arrogated to that ill-defined assembly, as by an extension to it of the absurd maxim, that “the voice of the people is the voice of God," — an omnipotence transcending that higher law, to which ordinary legislative assemblies acknowledge themselves at all times subject. When to this, which is deemed one of the most impudent heresies of our times, was added its fellow, the dogma of State sovereignty, with its corollary, the duty of State allegiance, the transformation of a loyal community into a band of parricides seeking to pull down the edifice of our liberties, need be but the work of a day. To effect it, there was needed but a vote of a few conspirators, sitting as a Constitutional Convention, pretending to utter the voice of the people, and refusing to submit their ordinances to the test of a popular vote, under the false plea that neither the theory of the Convention system nor the practice of the fathers made such a submission necessary.
This picture of treachery and cunning, playing upon popular ignorance for their country's ruin, describes with precision the historical drama that culminated in the secession of the States of the South, in 1860-1. For, surely, it is not too much to say that without the moral effect of those disorganizing maxims, which impressed upon Southern consciences the duty of "going with one's State,” there could have been no victories won by the armies of treason, even had an outbreak of hostilities been possible.
Of an institution to which are conceded a position so important and influence so decisive, but of which the true character and relations are so ill understood as to give rise to wide-spread misapprehensions, no apology is needed for an attempt to develop the history and illustrate the true nature and principles.
$ 4. Before entering upon the task indicated, it is important to clear the way by carefully discriminating the institution in qnestion from others known under the same general designation of Conventions, but differing from it in their essential principles and functions. To do this, will be the principal object of this chapter.
There are known to the social life of our times, in America. four species of Conventions, namely:
I. THE SPONTANEOUS CONVENTION, or Public MEETING.
II. THE ORDINARY LEGISLATIVE CONVENTION, or GENERAL ASSEMBLY.