collisions with the latter. Inasmuch, however, as neither of the three could with any show of right do any act which should result in such a collision, except when acting in assumed conformity to some law, giving to usurpation an apparent legality, no questions could arise between them as to their respective powers, which would not resolve themselves into questions as to the relative powers of Conventions and legislatures, the only law-making bodies, save the electors, which have been already considered, known to our Constitutions. I shall therefore spend no time in considering the relations of those two departments to Conventions, but pass to those which the latter bear to legislatures, and the powers resulting therefrom, which belong to each of those bodies.

§ 367. 2. From a variety of causes, the relations of a Convention in any State to its legislature give rise to questions of the greatest moment and of the greatest difficulty. It is possible to comprehend and to estimate, relatively to each other, these two bodies, only by ascertaining, first, their respective relations to the sovereign; and, secondly, their mutual resemblances and differences of structure and function. Of these, the first has so frequently been the subject of consideration in previous chapters, that it is now only necessary to recapitulate some of the leading features of those bodies as they stand related to the political society in which they are convened. We have seen that both Conventions and legislatures are agencies appointed by the sovereign for purposes of its own, connected with the formation, the renewal, or the operation of government, the function of each being a legislative one; that to the former are intrusted certain duties relating to the framing of the fundamental laws, extending in some cases, according to their commissions, to the definitive enactment of them; and to the latter the enactment of the ordinary or statute law; that, laying out of view those rare cases in which powers of definitive action are given, Conventions are not strictly representative bodies, but rather collections of delegates, so confined and restricted by the nature of their duties and by the customary law pertaining to them, that they are essentially nothing but mere committees; that, on the other hand, legislatures are invested with so wide a discretion, and such power of definitive action, that they are entitled to be ranked as par excellence representative bodies;

that both are, nevertheless, responsible for the exercise of power to its source, the sovereign, but to a different extent and in a different manner; the responsibility of the former being ordinarily more direct, inasmuch as its office is "to recommend, but to conclude nothing," submitting the fruit of its deliberations to the electors; that of the legislature, on the other hand, being remote and indirect, since its function is to determine absolutely the right and the expedient in the current life of the State, subject only to reversal, or, in extreme cases, to punishment for error or malfeasance in that office. Both Conventions and legislatures, then, equally sustain the relation of instruments through which the sovereign executes its will; they are both creatures of the Constitution, the principles and provisions of which are, during their existence, in full operation, and constitute their charter; and hence they are to be viewed as parts of a system of coördinate but mutually inter-dependent agencies, the powers and jurisdiction of which are to be ascertained from a study of that system and not of each agency dissociated from the others.

§ 368. In point of structure, the two species of bodies differ widely from each other. The Convention is composed of a single chamber, and the legislature, in all the American governments, and in most liberal ones abroad, of two chambers, coördinate in authority, but representing different constituencies, and often different interests. By this diversity a Convention is readily seen to be theoretically less adapted for final action than a legislature. It is liable to the objection so fatal to single legislative assemblies, that it is prone to hasty and passionate determinations, and is, therefore, a ready instrument of faction and revolution. In matters which should appeal directly to the prejudices of its members, it could not be relied upon as just or wise. Such, so far as its structure is concerned, is likely to be the character of a Convention. A compensating influence, however, is afforded by the subject-matter of its deliberations. The fundamental law, while it is infinitely more important than the ordinary municipal law, to frame which is the province of a legislature, bears less nearly upon the dominant interests or passions of men, and hence it might so far be left safely to be moulded by a single chamber, even were its action to be final. When it is considered, however, that the action of Conventions is ordinarily not final, but recommendatory merely, the objec

tions to their structure which have been noted are seen to be of much less weight.

§ 369. An important analogy between Conventions and legislatures relates to the qualifications for membership of those bodies. As we have already seen, the members of our legislatures are uniformly required to be elected from citizens of prescribed age, sex, and social conditions, that is, from the body of the electors. This is a matter which is carefully ascertained in our Constitutions. In relation, on the other hand, to the persons who shall be eligible as delegates to our Conventions, those instruments are commonly silent. From this fact the inference has been drawn, that, in the absence of specific qualifications, it was intended that the electors should exercise perfect freedom of choice, and that it would be competent for them to depute as their delegates minors, or females, or citizens of other States. But this is a matter of doubt; for, as shown in a previous chapter, analogy, as well as the principles of popular government, seem to restrict the holding of public functions to the class in whom rests, as the nearest representatives of the sovereign, the practical exercise of sovereign rights, namely, that of the electors. Accordingly, as there stated, equally when the qualifications of delegates have, and when they have not, been prescribed, the choice of them has been almost uniformly confined within the limits determining the minimum qualifications of the electoral body.

§ 370. In respect of their functions, there is also an analogy, which is at the same time a contrast, between Conventions and legislatures. Both, as we have seen, belong to the genus legislature. That is, they are both charged with the elaboration or the enactment of laws. Where they differ is in the kind of law with which they are concerned, and in the extent of their agency in its formation.

1. A Convention participates directly in the enactment of the fundamental law only. Indirectly, it may determine the limits or the general character of the municipal law, but it never rightfully assumes to enact, or even to recommend it, except when that law has passed over from the experimental to that which is truly fundamental. Whatever it does, however, in the

1 See ante, §§ 267-269, in which the exceptions are stated, where the qualifications of delegates are prescribed.

sphere accorded to it, it does merely by way of recommendation to the body behind it, by whom its recommendations are to be adopted or rejected. A Convention, therefore, is a legislative body only sub modo, having some, but not all, legislative functions.

2. A legislature, on the other hand, is a body possessed of much broader powers. Though responsible to the sovereign that created it, it is its function to express authentically the will of the sovereign in relation to all emergencies of the social state, so far at least as it has not been manifested by the Constitution. It is the body which pronounces the statute law of the State. All measures relating to the conduct or to the rights of individuals, to the administration, or defence of the government, which are not prohibited by the fundamental law or by the moral code, and which yet are deemed, on a large view of the public interests, to be expedient, are within the competence of a legislature with the general powers of legislation conferred by our Constitutions.

§ 371. To this general statement of the extent of the power of our legislatures, the proviso must be appended, that the measures passed by those bodies must not be of the character denominated fundamental. The necessity of this proviso is apparent from the character of the American governments, before referred to, as distinguished from that of Great Britain, after which they were modelled. The Parliament of Great Britain is possessed of all legislative powers whatsoever. It can enact ordinary statutes, and it can pass laws strictly fundamental. Not so with our legislatures. Saving the single case, to be noted in a subsequent chapter, in which, by express constitutional provision, they act in a conventional capacity, in the way of recommending specific amendments to their Constitutions, they have no power whatever to amend, alter, or abolish those instruments. Subject, however, to this limitation, a legislature, under our system, may expatiate through the whole domain of the expedient, as fully as the sovereign itself could do, were it to act in person.2 The propriety of such an adjustment

1 But, that a Convention has power to trample on the moral code, or, as it is termed, “to annul perfect rights," see M'Mullen v. Hodge, 5 Texas R. 34. See also Warren v. Sherman, id. 441.

2 This description of the limits of legislative power is applicable only to the

of powers is apparent from the consideration, that whatever is expedient to be done, within the limits imposed by the fundamental law, and whatever, therefore, it may presume the sovereign, in the case supposed, would order to be done, some agency, in all governments pretending to be adequate to perpetuate their own existence, must have authority to do. The formation and establishment of the fundamental law is, in all the American Constitutions, regularly the work of Conventions acting in conjunction with the electors. On the other hand, no fact is better settled than that, beyond the province thus specially set apart for them, neither Conventions nor the bodies of electors have any legislative power. They can neither of them pass any law comprised within the sphere of ordinary legisla tion.1

§ 372. In relation to legislatures proper, however, we repeat, it is well settled, that under the general grant of legislative powers contained in our State Constitutions, they are competent to pass all laws whatsoever, not fundamental in character, and not prohibited either by the laws of morality or by the Constitutions to which they are subject, State and Federal. Within these limits, the only question our legislators are bound to ask is, Is the law proposed an expression of what is truly expedient to be done? Nor is there any subject so sacred but that legislation may be made to affect it, provided the boundaries above prescribed be not passed. And although a legislature is but one of many coördinate departments in the government of a State, to each of which a separate and generally well-defined sphere of activity is set apart, it is yet possessed of powers the most wide-reaching of all-powers most nearly sovereign, and in a certain sense supplementary to those of all the others. Some of these powers are vested in the legislature in express terms by the Constitution, and others devolve upon it by necessary impli cation, as being involved in the general grant of legislative State legislatures. That of the Congress of the United States is more limited, being confined to legislation upon subjects expressly defined in the Federal Constitution.

1 The debates of our Conventions are full of disavowals of a right on the part of those bodies to pass ordinary laws. In a few cases, nevertheless, it must be admitted, that right has been claimed as a part of a general claim of all sovereign powers. It has never been practically asserted, however, except in a few doubtful cases, which will be considered hereafter.