If a Convention has power to do either of these acts, what is the extent of its power, and in what mode must it be exercised?

The power to fill vacancies in the government must be denied to a Constitutional Convention in any case. A sufficient reason for denying it is, that it is not necessary, since, running a parallel course to that body, and in full life and activity, is the ordinary appointing power, in its several departments, to whom the duty of filling such vacancies, by the Constitution, belongs. To assume the power would be justifiable only under a pressure of circumstances such as would necessitate usurpation, and convert the Constitutional into a Revolutionary Convention. Even supposing the body invested with definitive powers to establish a Constitution, without submission to the people, the selection of officers to fill vacancies, however occurring, could not be shown to be necessary to the fulfilment of such a commission. That duty could be better done by those to whom it is usually committed; and when to this it is added, that it would be unsafe to intrust power so extensive to a single assembly, an express warrant must be demanded before assenting to its exercise.

§ 326. To the two remaining questions, so far as they relate to direct action of the Convention, the same answer must be given. That body cannot remove from office, or instruct those holding office, by any direct proceeding, as by resolution or vote applying to particular cases. It is its business to frame a written Constitution; at most, to enact one. It has no power, under such a commission, to discharge the public servants, except so far as their discharge might result from the performance of its acknowledged duty. Indirectly, therefore, by constitutional provision of general application, unquestionably the power of removal must exist. A Convention may abolish existing offices, and thus effect the removal of those who fill them. So, in reference to instructing officers in relation to their duties, so far as the discharge of its admitted function, the framing of fundamental laws, is concerned, there is no doubt a Convention may modify at pleasure the regulations under which the government is administered in all its departments. But to attempt to issue instructions, in relation to youth of our country." The Convention, however, as we have seen, was a revolutionary body.

matters of current policy, to particular officers, would be to blend with its ordinary and normal function those belonging properly to the legislature. Especially would this be improper, when the Convention meets under a call of the usual character, containing no power but to frame and submit to the people, for their adoption or rejection, a draft of a Constitution.

§ 327. Such, I think, upon principle, must be the answer to the questions indicated.

In relation to the power of a Convention to remove from, or appoint to, office, an interesting discussion has lately arisen in Missouri, to which attention must for a moment be directed.

By the Act of the General Assembly, calling the Missouri Convention of 1865, Sec. V., the delegates elected to that body were required to meet and organize, and thereupon to proceed "to consider, first, such amendments to the Constitution of the State as may be by them deemed necessary for the emancipation of slaves; second, such amendments to the Constitution of the State as may be by them deemed necessary to preserve in purity the elective franchise to loyal citizens, and such other amendments as may be by them deemed essential to the promotion of the public good."

No further directions were given in the Act as to the nature of the amendments to be considered by the Convention, nor was that body required specifically to submit the fruit of its deliberations to the people.

The Convention met on the 6th of January, 1865, and adjourned on the 10th of April, having in the meantime prepared divers amendments to the Constitution, which, being submitted to the people on the 6th of June following, were adopted. Beside these, it also, on the 11th of January, adopted and put in operation, without submission to the people, an Ordinance "abolishing slavery in Missouri." In like manner, on the 17th of March, it adopted and put in operation, without submission, an Ordinance "providing for the vacating of certain civil offices in the State, filling the same anew," &c., of which the material portion was as follows:-"Be it ordained, &c.

"Section I. That the offices of the Judges of the Supreme Court, of all Circuit Courts, and of all Courts of Record, established by any Act of the General Assembly, and those of the Justices of all County Courts, of all Clerks of any of the afore

said courts, of all Circuit-Attorneys and their assistants, and of all Sheriffs and County Recorders, shall be vacated on the first day of May, one thousand eight hundred and sixty-five, and the same shall be filled for the remainder of the term of each of said offices, respectively, by appointment by the Governor."

In pursuance of this Ordinance, each of the offices specified was filled by the Governor the prior incumbents having been first, with force or otherwise, ejected therefrom. A vehement outcry was thereupon raised, charging the Convention and the Governor with having exceeded their authority. Whether they did so or not must depend on the question, whether the vacating Ordinance of March 17, 1865, was an amendment to the Constitution or not. If it was, it was within the express letter of the commission under which the Convention proceeded, the Act calling it together. If it was not, that body, clearly, was guilty of usurpation, since it is only laws of a fundamental character, that a Convention has power to enact or recommend. § 328. Of the question stated, whether the Ordinance of March 17, 1865, was an amendment to the Constitution or not, the following considerations seem to me to be decisive:

1. An amendment to a Constitution is an Act, passed by competent authority, modifying permanently the structure, the operation, or the guarantees of the government. An Act which relates only to its temporary administration, to the particular individuals who shall or shall not fill its offices, or which, leaving the Constitution in its letter intact, merely suspends its action for a time, on some great emergency, cannot be called an

amendment to its Constitution. It is rather an administrative Act, in the large sense of the term; or, where its effect is merely to suspend the action of the Constitution, it is, in substance, an executive Act, proper especially for an officer charged to see to it, that the Republic receives no detriment. In short, to borrow a figure which perfectly expresses the distinction I am contending for, it is an Act proper, not for the millwright, but for the miller.

2. That the Ordinance of March 17th was of this temporary, administrative character, lacking the essential characteristics of a fundamental Act, is apparent from its terms. In the first place, as I have stated, it ousted from office not a class of persons, but particular individuals; declaring, not that citizens

lacking specified qualifications should be thenceforward incapacitated to hold the office of judge, &c., but that Judges Bay and Dryden,1 &c., then holding office, should vacate the same. Secondly, the Ordinance required the Governor to fill the offices thus vacated "for the remainder of the term of each of said offices." It thus recognized the term fixed by the Constitution as still existing, and limited its own operation to the part thereof yet unexpired. In so doing, it obviously contemplated that, at the expiration of that term, the same offices should be filled as the Constitution provided, the Ordinance notwithstanding. In other words, it did not modify the Constitution, but suspended its operation for a limited time, after which it was again to be in full force.

§ 329. 3. That the Convention itself did not regard the Ordinance in question as an Act of fundamental legislation, is apparent from the fact, that it did not submit it to the people with the amendments to the Constitution, on the 6th of June, but put it in operation by its own authority. If it be objected, that the Convention also withheld from submission to the people the Ordinance of January 11, 1865, abolishing slavery in Missouri, clearly an Act of fundamental legislation, and that, if non-submission indicates decisively the character of the one Ordinance, it ought to do so of the other, the answer is, that although the better course would have been to submit the slavery Ordinance, yet, as the Convention Act was silent on the subject of submission, and as it expressly required the Convention to pass such amendments to the Constitution as they should deem necessary to emancipate the slaves, the cases are wholly different, and the objection is, therefore, groundless. In the one case, that body passed, but did not submit to the people, an Ordinance, which the people, through the legislature, had required it to pass; and in the other it passed, without submitting to the people, an Ordinance which it had not been required to pass, and of their authority to pass which, as an amendment to the Constitution, there is the gravest doubt.

§ 330. If the action of the Convention was not in the line of fundamental legislation, the alternative is, that it was one of revolution; for, in that case, it was one belonging to some

1 The names of two of the judges ousted under the Ordinance, by whom prosecutions were brought to test its validity in the courts of Missouri.

branch of the existing government— an Act of administration or of ordinary legislation, coming within the province of some other department. And that it was of this character is, in my judgment, susceptible of no doubt.

In denying to the Convention, however, the power in question, it is not meant to imply, that the particular acts authorized by the Ordinance of March 17th were not necessary, but merely that they were not legal or constitutional. The Journals of the Convention of 1861, in the same State, are filled with evidences that Missouri was at that time in a revolutionary condition. Acts were done by that body, which were proper only for a strictly Revolutionary Convention, one which had assumed in a time of crisis, when the wheels of the regular administration were blocked, the functions of a provisional government. One of the earliest Ordinances of that Convention was one to vacate the offices of Governor, Lieutenant - Governor, Secretary of State, and members of the General Assembly, and, of its own authority, to appoint persons to exercise the duties of the firstnamed officers, until others, with a new General Assembly, should be elected in the November following. It also, on the same day, passed an Ordinance repealing certain Acts of the General Assembly, approved in the early part of the year 1861.2 So, also, it usurped the function of a General Assembly by passing an Ordinance for the organization and government of the Missouri State Militia,3 and several Ordinances for the appropriation of moneys out of the State treasury. All these acts were clearly usurpations of authority properly belonging to other departments of the State government. That that government was in treasonable hands might justify the Convention, on moral grounds, in seizing, by revolutionary force, powers not its own, but could not alter the legal character of its acts. In 1865, the same necessity perhaps existed, and, if so, might justify acts clearly of the same general character, legally considered, as those of its predecessor of 1861. But, as I have said, upon this question I pass no opinion. If the acts characterized as revolutionary were strictly necessary, it was not the first time in history that a party, having morally and politically the better case, had legally the worst of the argument.

1 Ordinance of July 30, 1861. See Journal of the session of the Convention held in June of the year 1862, Appendix, pp. 3, 4.

2 Id. p. 4.

3 Id.

p. 7.

4 Id. pp. 18, 19.