the two species are always united, demonstrates that there is no natural incompatibility between them. Though variant in character and importance, fundamental laws and municipal laws equally conform to the definition of laws. And certainly, the enactment of laws is the proper function of the government of a state. If it be objected, that the idea of a system depending for its own renovation upon itself, involves a contradiction, the reply is, that there is in it no contradiction, whenever, as in every political society, the system is one operated by vital forces. This is a matter of common experience in the strictly analogous case of the animal kingdom. In the animal, those organs by which are discharged the functions of reparation and reproduction are clearly as much parts of the organism as those by which it defends itself from hostile attack, or adjusts itself to changes of its physical condition. Why should that body of functionaries which legislates for the governors, as such, be denied a place in the state governmental system any more than that which legislates for the governed? The circumstance that the former assembles only occasionally, though it doubtless leads to much of the misconception prevalent regarding it, is really a matter of no consequence in determining its true character. The frequency or infrequency of its assembling is rather one of those matters of practical detail which are determined from time to time, as may be necessary to render the Convention system harmless as well as efficient. But the fact that Conventions always regularly assemble on the call of the legislatures of the states concerned, indicates decisively, that the Convention has a place in the governmental system. Had it been the design of those who framed that system originally, to make of the Convention a power outside of the circle of government, why make it dependent for its existence upon an act of a single department of that government, thus stamping upon its very front indubitable evidence of its filial relation to it? § 321. The probability that Conventions were intended to be parts of the systems of government amongst us, is increased by looking at the practical consequences of the contrary hypothesis. If they are not parts of those systems, they must be independent of them, practically, and those theorizers may be right, who proclaim the incompetence of legislatures to bind Conventions by their enactments. To the legislature, in that view, belongs the ministerial duty of issuing the fiat by which the Convention is spoken into being, but there its power ends. Once assembled and organized, that body slips its leash and bounds into a condition of absolute uncontrollability. It becomes potentially, at least, a realization of that remorseless monster in the human form which the fancy of Mrs. Shelley has depicted in her Frankenstein - a product of transcendent mechanical and philosophical skill, endowed with life and intelligence, but destitute of moral instincts or of practical accountability; a monster with powers so surpassing those of the philosopher who created it, that it was wholly beyond his control — he could not even kill it. In short, on this hypothesis, a Convention would exhibit the anomaly of an institution, manifesting all the traits of an absolute despot, occasionally springing up alongside of a system of laws, and, during its unregulated and indeterminate existence, compelling from that system complete obedience. If this be thought to be an extreme view of the possibilities of such an institution, the answer is, that in estimating the character of any political power, it is extremes that must be considered; for to them it is the tendency always to run. A political system can be safely characterized only by transcribing its least favorable feature, precisely as the strength of a machine is to be gauged, not by that of its strongest, but by that of its weakest, part. § 322. In the Illinois Convention of 1862, a question arose involving a practical application of these principles. By the Constitution of that State, Art. V. Sec. 10, it was provided, that the judges of the Supreme and Circuit Courts should not be eligible "to any other office, or public trust, of profit," in the State or the United States, during the term for which they were elected, nor for one year thereafter; and that all votes for either of them for any elective office (except that of judge of the Supreme or Circuit Court) given by the General Assembly or the people, should be void. One of the delegates, Mr. O'Melveny, having been a judge of one of the Circuit Courts, within one year prior to his election to the Convention, his competitor contested his seat, on the ground, that he was incapable of sitting as a member of that body under the above provision of the Constitution. The Convention having at first, without a division, decided that he should retain his seat, a motion was made on the following day, to reconsider that vote, upon which arose a spirited debate, the question being, whether to be a member of a Convention was to hold "an office, or public trust of profit" in the State. On the part of those who sustained the sitting member, it was contended, that the words "office, or public trust," referred particularly to the distribution of powers contained in the Constitution, according to the first section of the second article of which, the powers of the government of the State were confided to three separate bodies of magistracy, the legislative to one, the executive to another, and the judicial to a third. To which of these departments, it was asked, did the delegate to the Convention belong? Certainly, it was answered, it could not be contended that he belonged to either of them, for all the officers belonging to each were specially enumerated in the Constitution. The only plausible argument that could be urged against this view, it was said, was, that there was another provision of the Constitution, that relating to amendments, which provided for the election of delegates to the Convention, from which it might be attempted to infer, that those persons, being chosen in pursuance of the Constitution, were as much holders of office or public trust under it, as were the judges or the governor; but that the reply was, that the constitutional provision referred to did not, either in terms or spirit, define the qualifications of delegates, as it did those of the judges, members of the legislature, etc.; it simply left the people to choose whomsoever they might desire, without regard to age or other qualifications; whereas, had the framers of the Constitution regarded the members of the Convention as State officers, they would have inserted particular provisions, prescribing not only the persons to be elected, but the time and mode of their election, and perhaps their powers and duties. - 323. On the other hand, it was contended by those who favored the contestant, in substance, that if membership of a Convention was not an office, which was not conceded, it certainly was a public trust, and that, of the greatest magnitude. Every constable, and every justice of the peace, - functionaries whose duties were comparatively trivial, was conceded to be an officer, and in a position of public trust, because it had been found not impracticable to specify in the Constitution the classes of persons who should fill those places and the full scope of their duties; but those public servants, whose business so far transcended in importance that of all others that it was deemed impracticable or inexpedient to limit it by prior description, and upon the fidelity of whom, to their constituents, depended the liberties, to say nothing of the existence, of the Commonwealth, were not only not officers, but they were denied to be holders of a public trust in the State which they thus served! Besides, what was the reason for inserting the prohibitory clause in the Constitution? Clearly, to furnish a guaranty of the purity and independence of the State judiciary; qualities which could not well exist, if, while invested with the judicial robes, the judges were allowed to participate in the scramble for Federal or State offices. But did the framers of the Constitution intend that those officers whom they forbade to accept another position of profit under the State, or the United States, for an entire year after sitting as judges, lest the honor of the bench might be sullied, should be at liberty to enter a Convention to new-model the fundamental laws, amongst them, perhaps, those regulating the tenure and emoluments of their own offices? § 324. In my judgment, there can be but little doubt, that a member of a Convention is, in the enlarged and proper acceptation of the term, an "officer" of the State. This follows, not simply from the reasonings in the Illinois Convention, of which, somewhat developed into details, an abstract has been given, but especially from the principles explained in preceding sections. A Convention is a part of the apparatus by which a sovereign society does its work as a political organism. It is the sovereign, as organized for the purpose of renewing or repairing the governmental machinery. That same sovereign, as organized for the purpose of making laws, is the legisla ture; as organized for the purpose of applying or carrying into effect the laws, it is the judiciary or the executive. These successive forms into which the sovereign resolves itself, are but systems of organization having relation more or less directly to the government of the society. Together, they constitute the government. And yet they do not each constitute the government. One branch of the governmental system may perform no governing function at all, in the ordinary sense of the termmay not operate or administer the government. Thus, under those Constitutions which directed the election of a Council to the Governor, merely as an advisory body, such Council, though clearly a branch of the government, did not govern. The government of a commonwealth is the totality of those instruments through whose ministry its political organization is begun and continued. It is that totality which governs, and not necessarily either of its members, precisely as it is the body of an animal which lives and acts, and not the separate parts, though, doubtless, of these, one masticates the food, another digests it, a third performs locomotion, a fourth thinks, and so on. And, as in the living body, each organ, contributing by no matter how humble or obscure a function to the common life, or development, is a member of the organism; so in the commonwealth every citizen or body of citizens, charged with any duty looking to the defence, the operation or the renewal of the political system, is an organ of that commonwealth for purposes connected with its government, and must be ranked amongst its officers. In other words, if the nutritive and reproductive apparatus is properly reckoned as a part of the animal economy, the corresponding apparatus, in an organized state, must be accounted a part of the political structure. §325. The relations of Conventions to the state as a whole being ascertained, three practical questions will now be considered, from which their powers, growing out of those relations, may be determined, namely 1. Can a Convention appoint officers to fill vacancies in the various governmental departments? 1 2. Can it eject from office persons holding positions in the government by regular election or appointment? 2 3. Can it direct such officers in the discharge of their duties? 3 1 In the Louisiana Convention of 1844, a resolution was introduced providing that certain specified officers should fill the offices of Parish Judges and District Judges, "now vacant by the election of said officers to this Convention." The resolution was defended by its mover on the ground of necessity; but the Convention deemed the assumption of the power unwarranted, and rejected the resolution by a vote of sixty-eight to one. - Deb. La. Conv. 1844, pp. 26, 27. 2 This question was raised in the Illinois Convention of 1862, but the power was not exercised. 3 This question was raised in the Louisiana Convention of 1864, and the power of instruction asserted by a vote of sixty to fourteen. It notified the proper authorities to raise the salaries of loyal ladies engaged in "teaching the |