such a body can be drawn from the fact that that Congress did or did not possess particular powers.

§ 446. The committee say, that, in organizing new States out of Territories, the Conventions, called for that purpose, exercise, without question, the power of apportioning such States for members of Congress, and thence infer that all Conventions may exercise the same powers. It is true, that, in many cases, such has been the practice. There being as yet no State, and, of course, no State legislature, unless the Convention could make a temporary arrangement for the election of members of Congress, the new State must, after its admission into the Union, be unrepresented in that body, until a State legislature could be elected and could pass the necessary laws, a condition involving often a considerable delay. In such cases, accordingly, the custom has been for the Convention to anticipate the action of the legislature, — a course which, on account of its obvious convenience, has been commonly acquiesced in. These cases, however, form exceptions to a rule which is general, that it is the State legislatures which apportion their several States for Congressional elections. I have failed to find a single exception to that rule save in the cases of Territories seeking to become States, or of States standing substantially on the same footing as Territories.1

Besides, in one view of the subject, such action of the Territories, taken in connection with that of Congress following it, involves no impropriety, if it is not strictly regular. Immediately following that clause of the Federal Constitution giving the power of determining the "times, places, and manner of electing senators and representatives" to the State legislatures, is the important reservation, "but the Congress may at any time, by law, make or alter such regulations, except as to the place of choosing senators." Hence, having the power to make or alter, Congress doubtless might ratify such regulations, however made; or, if a State, actual or inchoate, were in such a condition, that it had no lawful legislature, Congress might

1 The Louisiana Reconstruction Convention of 1864, which stood on a footing in some respects similar to that of a Territory preparing itself for admission into the Union, apportioned the State for the election of members of Congress. We have seen, however, that that body was a revolutionary one, - a provisional government, · erected under the sanction of the military arm. See ante, §§ 247

249.

itself, for the sake of convenience, establish them by its direct action. This it does, in substance, by anticipation, in those cases in which it accepts and admits into the Union Territories, presenting themselves with Constitutions containing the apportionments referred to.

§ 447 (b). Similar considerations enable us to dispose of the second case relating to the power of a Convention, as a legislature, to act upon proposed amendments to the Federal Constitution. Article V. of that Constitution provides, that Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to that instrument, or, on the application of the legislatures of two-thirds of the several States, shall call a Convention for proposing amendments, which in either case shall be valid as parts of the Constitution, "when ratified by the legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by Congress."

By a joint resolution of Congress, approved March 2, 1861, an amendment was proposed to the Constitution of the United States, inhibiting any amendment to such Constitution which should authorize Congress "to abolish or interfere within any State, with the domestic institutions thereof, including that of persons held to labor or service under the laws thereof." The mode of ratification proposed by Congress was by the action of "the legislatures of three-fourths of the several States." The legislature of the State of Illinois, having at its session held in 1861 failed to ratify this amendment, the Convention of that State, of 1862, attempted to supply a remedy. After a discussion, in which the difficulties attending the assertion of the power in question were considered on constitutional grounds, the Convention, by a decisive vote, passed a resolution ratifying the proposed amendment.

Respecting this action of the Convention, I deem it unnecessary to say more, than that there is not, in my judgment, on legal grounds, a shadow of reason for the construction given to the Constitutional provision, and that party zeal alone could have led the eminent men who composed that body, to the position assumed in the discussion.

§ 448. 3. The last practical question proposed for discussion, is whether a Convention has power, by constitutional regulation

or otherwise, to limit a discretion confided to a State legislature by the Constitution of the United States?

This question arose in the Massachusetts Convention of 1820, under the following circumstances. Mr. Austin, of Boston, introduced into that body a resolution affirming the expediency of electing representatives in Congress and presidential electors, in districts to be determined by the legislature, instead of by general ticket, as it is called, and requiring that body, immediately after every apportionment of representatives by Congress, to provide by law for so electing them. By the second section of the Federal Constitution, it is directed, that the members of the National House of Representatives shall be chosen "by the people of the several States," and by the fourth section, that "the times, places, and manner of holding elections for senators, &c., shall be prescribed in each State by the legislature thereof."

By the mover of this resolution, it was not denied that it was by the legislature, and not by a Convention, that the times, places, and manner of electing senators, &c., were to be determined; but he contended that the latter had a right to limit the former in the exercise of its discretion; that the legislature was bound to exercise all its powers under the direction of the Constitution, and that the people had at the same time the right to impose upon the legislature such terms and conditions as they should deem advisable; that admitting the right of imposing the particular restriction in question, the expediency of it was beyond dispute; for, it was said, that "when electors and representatives are chosen in large districts, the rights of the minority are destroyed. It is only by dividing the State into small portions, that there can be a fair expression of public opinion." 1

§ 449. On the other hand, Judge Story contended that the proposed restriction was in conflict with the Federal Constitution; that by the latter instrument a discretion as to the choice of electors was given to the legislature; that that discretion was unlimited, and yet the proposition before the Convention went directly to destroy that freedom of choice, and compelled the legislature to resign all manner of choice but one; that it was bound to exercise its authority according to its own views of public policy and principle; but that the proposition in question compelled it to surrender all discretion; that a strong objection

1 Deb. Mass. Conv. 1820, pp. 106-108.

to that proposition, moreover, was that if it should be adopted by the Convention, and ratified by the people, the legislature would probably follow the rule presented by the proposed amendment; that the members of the legislature were under oath to support the Constitution of the State; that they were also under oath to support the Constitution of the United States; but would it not, it was asked, be a violation of their oaths to bind themselves not to choose representatives in any manner that the Constitution of the United States allowed, except that stated in the amendment? As to the question of policy, he admitted that a uniform mode of choosing representatives and electors by districts throughout the United States, would be a great improvement in the National Constitution; but he urged that the question before the Convention was not of that nature; that it went to limit Massachusetts to a particular mode of choice, leaving the rest of the United States free to adopt any other, the result of which would be, on the most important occasions, to deprive that State of all the influence to which her talents, character, and numbers entitled her.

In these views, Mr. Webster, also a member of the Convention, coincided, and the proposed amendment was not adopted.1 § 450. II. The preceding sections of this chapter have been devoted to a delineation of the powers of Conventions, resulting from what may be called their external relations; that is, their powers with reference to the sovereign society at large, and to the government of the State, both in general, and as divided into several distinct departments. It remains now to inquire what powers belong to them by reason of their internal relations, having reference, for example, to the perfecting of their organization, to the maintenance of discipline over their members or over strangers, and to the prolongation or perpetuation of their existence.

The powers of Conventions, considered from this point of view, are, first, such as are expressly given by the Act under which they assemble; or, secondly, such as are implied as being necessary to the exercise of these express powers, or as incidental to the complete execution of their commission.

§ 451. First. With respect to powers expressly given, it is unnecessary to speak at much length. In general, a power ex1 See Deb. Mass. Conv. 1820, pp. 109-112.

pressly granted to a Convention by a legislative Act or by a Constitution, is a power, the right to exercise which cannot be denied to it. Whether this rule is one whose application is universal, is a question of some delicacy which may be worthy of a short examination. To ascertain whether the rule has limits, an extreme case may be put. Let us suppose, that in calling a Convention, the legislature has authorized or required it to enact or to recommend measures subversive -1, of the laws of morality; or, 2, of the guaranties of the public liberties, not extending, however, to the abrogation of republican forms. Would the Convention have power not would it be obliged, but would it be competent to obey? 1. As to measures mala in se, the answer is, that the Convention would derive from such an Act no power whatever, for no body of men can give to another power to do what neither can rightfully do independently, power in extent greater than is possessed by the giver.

§ 452. 2. More difficulty exists in relation to measures of the second class, which, in general, would be merely mala prohibita, though, doubtless, some of them, by destroying safeguards long recognized as essential to liberty, might be considered as tainted with positive immorality. But assuming that all such measures would, on a priori moral grounds, be indifferent, would a Convention then be competent to enact or recommend them? The answer clearly must be in the affirmative. Thus, were a legislature to require or authorize a Convention in the Constitution it should frame to repeal the entire Bill of Rights, or to insert clauses empowering the legislature to establish a censorship of the press, or the judiciary to issue general warrants, although the measures indicated would endanger some of our most valued rights, yet not being necessarily incompatible with the existence of republican government, or within the range of direct Federal prohibition, they would not be beyond the competence of the Convention.

§ 453. Secondly. It is the implied or incidental powers, claimed by or attributed to Conventions, that are of principal interest in this discussion; powers, that is, involved in the general grant of authority to assemble in Convention to revise the fundamental law. Conceiving of Conventions, then, as we must, as mere committees, what powers have they resulting by implication from their general character or from the nature of