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power. Thus, to the legislature it is commonly left to deter mine the details of the organization, and often the operation of the other departments; as, for instance, the times of assembling of the electors and of the judiciary; the modes of their proce dure, and in the case of the latter, the establishment of its cir cuits and of its inferior tribunals; the election, in certain cases, of executive or judicial officers; in other cases there is cast upon it or upon its presiding officers the exercise of the functions of those two departments. Instances of these powers occur on every page of our Constitutions.

§ 373. Of powers implicitly granted, instances are equally numerous. The most striking are those which occur daily upon the happening of unexpected events requiring instant legislative interposition to prevent evil consequences or to make them subservient to the public good. In all such cases it is the legislature that is called upon, as alone possessing the power to do or to authorize what is deemed necessary to be done. Such conjunctures commonly find the executive of the State or the judges inert, because powerless, unless indeed they should seize the power to do without law what law alone could render legitimate. The theory of our governments leaves no necessity for such usurpation, except in the single case of inadequate constitutional power; as, where the acts clearly necessary for the public safety have been directly prohibited by the Constitution. Bating this extreme and perhaps improbable case, there remain those, infinite in number, in which our legislatures, under a grant of general legislative powers, are enabled to supplement the other departments of the government, and to make lawful provision for the unforeseen exigencies of the State.

§ 374. Now let it be noted, that for the purposes and in the crises indicated, the legislature is the only agency competent to act. The electors certainly could not do it, for it is their sole and exclusive function—and they are adequate to no other—to elect to office and to pass in a general way upon propositions for constitutional change; the executive could not do it, for its business is simply to carry into effect laws passed by the proper law-making authority; it cannot deliberate; nor could the judiciary do it; for their province is limited to the interpretation of laws, and to their application to the complicated maze of facts arising in life and business. If neither of these is competent to

authorize what is expedient to be done in political or social emergencies, unless the legislature could do so, the State would be left utterly powerless, except where there could be shown an express constitutional provision covering the case a condition likely to be but rarely fulfilled.

§ 375. Finally, in any crisis calling for legal authority to act, and where no constitutional provision, either permissive or restrictive, exists, if the legislature take upon itself, within the limits of a wise expediency, the power to act, to give the requisite authority and direction, there is no department of the government that can question its right to do so; and not only that, but a failure to act would stamp it as false to its duty. Having all legislative power within the limits indicated, the making of such provisions of law as are needed to save the State from inconvenience, loss, or danger, defines precisely the legitimate exercise of that power. To do it is its imperative duty. For that it is constitutionally competent, and all departments of the government, all agents and representatives of the sovereign, charged with collateral functions, are bound, within the scope of that power, to obey its behests, as the authentic expression of the will of that sovereign.1

§ 376. Having thus two legislative bodies, whose spheres of operation are distinct, though conterminous, it is obvious that numerous questions may arise between them as to their relative jurisdictions and powers. Of these, such as it is desirable for us now to consider are reducible to the following heads, which will be considered in their order, namely:

(a). Questions relating to the power of legislatures to bind Conventions, or, what is the same thing, of Conventions to nullify Acts of their respective legislatures; and

(b). Questions as to the power of Conventions to legislate or to exercise functions imposed by the Federal Constitution especially upon legislatures.

(a). 1. Among the questions of the first class the most general and important is this: admitting the right of a legislature to call a Convention into being by some legislative Act, has it the further right to impose conditions, restrictions, or limitations upon its action, to dictate to it its organization or modes of proceeding; in short, to subject it in any way or to any ex1 Vattel, Law of Nations, Book I. ch. iii. §§ 34, 35.

tent to the restraints of law? If so, wherein, and to what extent?

§ 377. The theory of those who deny to a legislature power thus to bind a Convention, is simply the theory of conventional sovereignty, to which allusion has been so frequently made in preceding pages. According to this theory, a Convention is a virtual assemblage of the people, a representative body charged by the sovereign with the duty of framing the fundamental law, for which purpose there is devolved upon it all the power the sovereign itself possesses; in short, that, for the particular business with which it is charged, a Convention is possessed of sovereign powers, by virtue of which it overtops all the other governmental agencies. Hence, while it is admitted, that by reason of the occasional and extraordinary character of the Convention, the word by which its assembling is to be made a legal act must be spoken by the legislature, yet it is contended, that, beyond that, it has no power whatever; or if, as the ultimate concession, it be admitted that the supervisory power of the legislature continues until the organization of the Convention is completed, that that body, when organized, being in a condition to act independently, all right of external control over it eo instanti ceases, and the career of its omnipotence begins.

§ 378. By those, on the other hand, who assert the right of a legislature to bind a Convention, it is contended, that the latter is in no proper sense of the term and to no extent sovereign; that it is but an agency employed by the sovereign to institute government; that as such, even if it were invested with power to act definitively to an equal extent with some other departments of the government, there would be no special sacredness attaching to it by reason of its framing the fundamental law no such dignity as ought to invest it with a primacy before all other State agencies; but that, when it is considered, on the contrary, that a Convention has no such power to act definitively, but that it is a body having the general characteristics of a legislature, but with the functions and organization only of a committee, it would be not only preposterous to give to it the rank of a sovereign power, but absurd to consider it entitled to any preponderating influence whatsoever; that, inasmuch, therefore, as a Convention is a body whose assembling is occasional and dependent on considerations of expediency, it follows that

the legislature, whose function it is especially to declare and enforce the expedient, is the proper body to determine the time and conditions of such assembling; that in doing so it would not set itself above the Convention; it would simply announce the will of their common sovereign in relation to the scope of the business committed to a coördinate agency; and that in the absence of constitutional provisions, the extent to which a legislature may prescribe the conduct of a Convention must rest in its own discretion, subject to the limitation, that its requirements must be in harmony with the principles of the Convention system, or, rather, not inconsistent with the exercise by the Convention of its essential and characteristic func tion.

§ 379. Conceding, then, that a legislature may by its enactments bind a Convention, it remains to determine to what extent it may do so, and in what particulars. In relation to the extent of its power, it may be said, in general, as intimated above, that a legislature is to be governed by the obvious proprieties of the case, which require, on the one side, that it should prescribe whatever a prudent foresight should indicate as proper and expedient, and, on the other, that there should be left to the Convention liberty to discharge its essential function of deliberation. Both bodies have rights: the legislature, the right to consult for, and, by prudent regulations, to secure the public welfare; the Convention, the right to execute that commission with which it must be charged in order to be a Convention at all. And there is really no antagonism between the two. Both act for the same principal, and they are hence bound each so to frame or to construe the mandate from which the powers of the other must be derived, as to give to it scope and freedom in the exercise of its characteristic functions. Accordingly, it would seem to be the duty of a legislature, in calling a Convention, to avoid hampering it in its proper business, which is, to overhaul the existing Constitution, ascertain its defective or obsolete provisions, and to recommend amendments thereto. Composed of men carefully selected, and presumably well instructed in regard to the public will, it would be unfair to suppose a Convention wholly unqualified to determine what it ought and what it ought not to recommend. Without now denying, therefore, the right of a legislature to indicate the subjects on which a

Convention shall deliberate, and to forbid it to overpass certain limits, the expediency of exercising such a right would, in general, be doubtful.

§ 380. On the other hand, the legislature is the sentinel on duty. It cannot rightfully abdicate that position. In convening an extraordinary assembly, constituting unquestionably the weak side of our institutions, and therefore the one upon which usurpation may be expected to make its assaults, it must see to it that the Republic not only do not receive, but be placed in no danger of receiving, any detriment. It cannot excuse itself from insisting that a Convention shall be composed of members elected from amongst the most intelligent citizens of mature age, according to regulations fitted to secure a fair representation; that its numbers shall be limited; that the body shall assemble at a prescribed time and place; that it shall be organized in a particular manner, if to the legislature the mode of its organization shall not seem a matter of indifference; that its expenses shall be certified in such a manner, and by and to such officers, as shall make it reasonably certain that the public funds will not be squandered or diverted to partisan or treasonable uses; and finally, what is incomparably more important than all else, that it shall propose, instead of enacting, constitutional changes, in other words, that the fruit of its labors shall be so submitted to the people as to ascertain authentically their will in relation to it. In short, it is in general the right and the duty of a legislature to prescribe when, and where, and how a Convention shall meet and proceed with its business, and put its work in operation, but not what it shall do. Without restrictions as to the former particulars, the Convention would be wholly independent of the existing government, and, without restrictions as to the latter, a mere echo of the legislature which called it together.

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§ 381. The question now arises, Suppose the legislature should assume to dictate to the Convention what it should, or what it should not, recommend, would the latter be bound to obey? To the first branch of the question, if by it be implied the dictation of specific measures, and not that of the general subjects for its consideration, the answer must be in the negative. A legislature is not constitutionally competent to do an absurd act; and it would be guilty of rank absurdity if it were

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