to prescribe to a deliberative body what the results of its deliberations should be. But, on the other hand, suppose the question to mean, whether, if the legislature should issue instructions in regard to the subjects to which the Convention should direct its inquiries, the latter would be bound to obey? the answer must be, that it would; for that would be emphatically a question of expediency, to determine which is more appropriately within the province of a legislature. Although the Convention might dissent from its conclusion, and, in fact, represent the wiser opinion, still it could show no warrant for asserting its opinion in opposition to that of the legislature. It could show no warrant even for assembling, except the Act of the latter, which upon its face would direct the exercise of its delegated powers within certain prescribed limits. It clearly could not rightfully separate the mandate of the sovereign into two parts, one for obedience and the other for disobedience, unless obedience to both were incompatible with the exercise of its functions as a Convention at all. § 382. Similar considerations will enable us to answer the other branch of the question, namely, Whether the Convention ought to obey, should the legislature prescribe to it what it should not enact or recommend? It is believed that a prohibition of this character would be imposed only when the conviction should be very strong and general, that the subjects embraced within it ought not, on grounds of policy or of principle, to be brought into discussion at all. When that should be the case, who would say that obedience ought not to be accorded to the Act imposing the restriction? If it were believed that narrow or partisan views lay at the bottom of the inhibition, that would furnish a reason for appealing to the people to cause themselves to be better represented, or to reconsider their opinions, but not for disobedience to laws constitutionally passed. The case, indeed, for the legislature would, at the worst, stand thus: A body, consisting of two chambers, and, therefore, probably better representing the diverse interests of the State, differs in its views of the expediency of particular constitutional changes, from another body, chosen, it is true, at a later day, but comprised in a single chamber, in which important interests might be smothered by a majority; the question now being, whose views are to prevail, the consideration, that fundamental laws ought to embody only such measures as have ceased to be experimental, as express fixed and settled policy - a condition that could not be fulfilled so long as the measures proposed should be subjects of party conflict, must be regarded as deciding it in favor of the legislature; for, the fact that such a body failed to approve of a measure would indicate that it is not yet ripe for harvest as a fundamental law; while the fact that a single chamber expressly approved it, would not necessarily indicate the contrary. Neither in the Electoral College, nor in a Convention, is there any device by which a minority, however large, can cause its views to prevail, or prevent those of the majority from prevailing. In legislatures, the division into two chambers often operates to produce such an effect, measures which a majority of all the representatives balloting together would promptly pass, being defeated, when there is required to pass them a majority in two houses. More emphatically, then, the fact that proposed constitutional changes are so little desired, that they not only fail to receive the sanction, but receive the express reprobation, of a legislature of two houses, is, in my view, conclusive evidence, that they are as yet unripe for adoption as parts of the fundamental code. §383. The question as to the power of legislatures to bind Conventions has been the subject of discussion in many bodies of the latter description, and it will be interesting to note the views entertained and the decisions arrived at regarding it. The earliest discussion of the question arose in the Federal Convention of 1787. It is well known, that the credentials of the delegates to that body restricted them to the simple duty of revising and reporting amendments to the Articles of Confederation. With some difference of phraseology, they all, with the exception of those of the delegates from New Jersey, which State seems to have taken a wider view of the perils and necessities of the situation than any other, substantially accorded in this limitation. The credentials of the delegates from New Jersey thus prescribed the purpose of the meeting: -"For the purpose of taking into consideration the state of the Union, as to trade and other important objects, and of devising such other provisions as shall appear to be necessary to render the Constitution of the Federal government adequate to the exigencies thereof." 1 Elliott's Deb., Vol. I. p. 163. The credentials of the delegates from Massachusetts and New York authorized them to meet "for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress, and confirmed by the States, render the Federal Constitution adequate to the exigencies of government and the preservation of the Union." It would be difficult by any fair construction to find in this language power to do more than to patch up the old Confederation; and there is no room for doubt, that the views of the people at the time the Acts were passed which resulted in the assembling of the Convention, went no further than that. But the leading statesmen in that body became early convinced, that the only hope for the Union was in superseding the worthless system then in operation by a national government with large powers. Accordingly, on the introduction of what is known as Mr. Randolph's plan, soon after the organization of the Convention, and from that time on to the close of its sessions, it was never doubtful that the predominant sentiment of the body favored that plan, as containing avowedly the features of a national government. And it thus favored it against the vigorous protest of many members, who, coming from the smaller States, opposed such a plan as likely to lessen their proportionate weight in the Union. By the latter, the argument was strongly pressed, and, but for the circumstances of the times, it would have prevailed, that the Convention was bound by the terms of the Acts under which it assembled to confine itself to the limits they prescribed. The majority of the Convention, however, resolved, in spite of those restrictions, to recommend a national government; but they did it on the ground of necessity, as the only hope left for preserving peace and the Union, and many of them despaired even then of preserving either the one or the other. § 384. Thus, in the debate on Mr. Randolph's plan, as contrasted with that reported by Mr. Paterson, known as the New Jersey plan, which proposed simply a modification of the existing Confederation, to the objection, that the powers of the Convention did not extend to the adoption of a national government, Mr. Randolph said: "The resolutions from Virginia must have been adopted on the supposition that a Federal government was impracticable. And it is said that power is wanting to institute such a government; but when our all is at stake, I will consent to any mode that will preserve us."1 "There are rea sons certainly of a peculiar nature when the ordinary cautions must be dispensed with; and this is certainly one of them. When the salvation of the Republic was at stake, it would be treason to our trust not to propose what we found necessary." 2 Mr. Mason "thought with his colleague, Mr. Randolph, that there were certain crises in which all ordinary cautions yielded to public necessity. He gave, as an example, the eventual treaty with Great Britain, in forming which the commissioners of the United States had wholly disregarded the improvident shackles of Congress; had given to their country an honorable and happy peace; and instead of being censured for the transgression of their powers, had raised to themselves a monument more durable than brass." 3 § 385. On the other hand, Mr. Hamilton deemed the establishment of a national system to be within the scope of their powers under their credentials. In support of that view he said: "Let us now review the powers with which we are invested. We are appointed for the sole and express purpose of revising the confederation, and to alter or amend it, so as to render it effectual for the purposes of a good government. Those who suppose it to be federal, lay great stress on the terms sole and express, as if those words intended a confinement to a Federal government, when the manifest import is no more than that the institution of a good government must be the sole and express object of your deliberations. . . . . I have, therefore, no difficulty as to the extent of our powers." 4 In this construction of their credentials, however, Mr. Hamilton was alone, and, as we have said, it was conceded with almost perfect unanimity, both in the Federal Convention and in those held in the States to pass upon the Constitution framed by it, that in recommending that instrument, instead of merely pro1 Yates' Minutes, in Elliott's Deb., Vol. I. pp. 415, 416. 2 Elliott's Deb., Vol. V. p. 197. (Madison's Report.) 4 Yates' Minutes, in Elliott's Deb., Vol. I. pp. 417, 418. posing amendments to the Articles of Confederation, the delegates to the former had exceeded their powers. § 386. For the purposes of this inquiry, it is sufficient to note respecting the action of the Federal Convention in this case, 1. That it is a case of refusal, on the part of a Convention, to obey the instructions of the legislative authority by which it was convened, in relation to the scope and general character of the system it should mature; but, 2. That the Convention did not claim a right to disobey, to annul, or even to suspend the Acts under which it assembled; that, on the contrary, it admitted, implicitly, the binding force of those Acts, which yet it felt itself constrained by necessity to disregard. Admitting obedience to be due, it pronounced it, under the circumstances, to be impossible. 3. Finally, that whichever construction, put upon the credentials of the Convention, be the true one, that of Mr. Hamilton, or that of Mr. Randolph and others, the action of that body is equally without weight as a precedent to establish the right of such a body to disobey the Act that convened it, for on the construction of Mr. Hamilton, there was no disobedience, and on that of Mr. Randolph, the disobedience was confessed and regretted, but excused on the ground of necessity. § 387. The next case in which the question of the right of a legislature to bind a Convention by the Act calling it, came in question, was that of the North Carolina Convention of 1835, to which attention has already been called. By the Act of January 6, 1835, Sec. 12, it was provided, that the Convention thereby called should frame and devise three amendments to the Constitution, namely, to reduce the number of members in the Senate, to reduce the number of members in the House of Commons, and to effect a change indicated in the qualifications of voters; it then provided, that the Convention might, in its discretion, propose nine other amendments specified, or any one or more of them. After providing for submitting such amendments as the body should propose, to the people, the Act concluded by declaring, that the Convention should not alter any other Article of the Constitution or Bill of Rights, nor propose any amendments to the same, except those which were therein before enumerated. The 10th Section of the Act had provided, that no delegate should take his seat in Convention |