CHAPTER VII.

§ 479. An important part of the duty of a Convention is to submit to the sovereign, for its approval or disapproval, the propositions of constitutional law which it has matured.

The duty of submission grows out of the nature of our institutions.

In the American political system, the edifice of government rests on the people. Two ideas pervade that system: first, that of the absolute right of the people, under God, and, in the States, subject to the Federal Constitution, themselves to determine and to carry into operation the policy, laws, and government, in all its departments; and, secondly, that of the solemn obligation resting on those through whom the people act, not only to obey their will, but to keep themselves constantly in a condition of perfect responsibility to them, save in the single case where a discretion has been in terms given them. In other words, if the safety of the State, as constituted in America, requires, as it certainly does, that the people should possess a curb upon their agents, it requires no less that those agents should recognize that curb as existing, and facilitate its application. We have seen that our Conventions are in substance but mere committees, destitute of the power of self-direction, and by their organization as little fitted as in theory designed for independent or definitive action. If, therefore, in the face of these principles, the people were so far to forget what is essential to the safety of their institutions as to be willing to throw the State, without check, into irresponsible hands, the Convention is the last body to which should be committed so grave a trust. This follows from the fact, if from no other, that it consists of but a single chamber. But the Convention, as we have seen, is of revolutionary parentage; it was originally the child. of illegality, and has come into the constitutional household by adoption, and hence has been ever the subject, in all questions

of power and competence, of fatal misconceptions. It is, of all our institutions, the one through which sedition and revolution would most naturally seek to make their approaches. Instead of deserving confidence, such an institution merits distrust and repression. In a word, to apply the principles above announced, it is the interest of the Commonwealth that no discretion liable to be abused should be left to a Convention, without careful provision for repressing and correcting its abuses; or, viewed on the side of the Convention, it is for such a body a sacred duty, in no case unbidden to assume to exercise a discretion, upon an abuse of which there is not reserved to the people an instant and effectual check. Such a check (and it is practically the only one possible) is involved in the submission of the fruit of its labors to the judgment of those for whom they act-the people.

§ 480. The general propriety and necessity of submission being conceded, there are three cases in which doubts may arise as to the duty of Conventions in that regard. It may be useful to dwell a few moments upon each of them.

The first case is, where both the Constitution and the Act of Assembly, under which the Convention met, are silent in respect of submission:

The second, where, by one or both of those instruments, submission is expressly required; specific directions, perhaps, being also, at the same time, given as to the mode :

The third, where, in the Act calling the Convention, submission is expressly dispensed with.

§ 481. I. Where neither the Convention Act nor the Constitution requires the Convention to submit its work to the people, the duty of that body to do so, is, nevertheless, upon sound principles, in my judgment, perfectly clear. Obviously, a Convention is bound to regard itself as limited to the exercise of such powers as are expressly given to it, or as are necessary to the exercise of such as are expressly given. But, in the case supposed, no express power relating to submission is contained in its commission. Both the duty and power of the body are then to be determined by the general scope of that commission, so interpreted as to harmonize with the spirit of the institutions of the country, and to assure to them, in the greatest possible degree, exemption from the evils and dangers to which they are

liable. Under such a rule, the question whether submission is or is not a duty, is one mainly of presumptions. Is it probably the safer constitutional precedent to establish, that a body, consisting of a single chamber, and charged with legislative duties of supreme importance, may shape their work as their own interests or prejudices may dictate, and then put it into practical operation, wholly without responsibility to the people; or, that the measures they may mature shall be regarded as advisory merely, as having no force or validity beyond that of simple recommendations, until ratified by those for whom they act? This is the whole subject in a nutshell, and it is impossible for a moment to doubt which is the safer, and, therefore, the only proper course. Conventions are bound to give to the people an opportunity to negative inexpedient or dangerous constitutional provisions. They may know their members to be honest, and may believe them to be wise, and their enactments salutary or even necessary; but they will not fail to recognize the two cardinal truths, first, that however virtuous or wise men may be, they are liable to fall into errors, which may entail upon the State no less disaster than would treason itself; and, secondly, that the action they may take in any particular, whether right or wrong, is likely to become a precedent for succeeding Conventions.

§ 482. II. The second case, which has already formed the subject of consideration in a previous chapter, in another relation, presents less difficulty; that is, where submission of the Constitution to the people is expressly required by law. If the Constitution contained provisions to that effect, probably no one would be hardy enough to maintain that there could be any alternative to obedience but revolution. And if it prescribed special modes or forms, it is presumed no power would be thought competent to dispense with a punctilious conformity to its terms. It is only in relation to Acts of the legislature that question could arise. Would a Convention be bound by the Act under which it assembled, without regard to its own views of propriety or necessity, to submit the product of its deliberations to the people, if the Act required it? As this

1 In the Ohio Constitution of 1851, and in the West Virginia Constitution of 1863, provisions are inserted declaring amendments to those instruments to be of no force unless submitted to the people.

question has already been the subject of consideration, to some extent, in a preceding chapter,1 it is necessary here only to indicate briefly the arguments which were there adduced.

§ 483. The Act of Assembly under which a Convention meets, is its charter. Whatever, not inconsistent with the Constitution or the principles of the Convention system, the former prescribes, the latter must do. It is the law, passed by the competent law-making power, within the limits that bound its jurisdiction. What is a Convention, that it should assume to be exempt from obedience to that department of the government which is charged with higher sovereign attributes—is more nearly sovereign than any other in it? Does it claim to be itself above the legislature? Let it show its warrant for a claim so exorbitant, for upon it must rest the burden of proving what contradicts all political analogies, and the first principles of constitutional government. It cannot find that warrant in the mandate of the power by whose fiat it came into being, for, by hypothesis, that is expressly to the contrary. It cannot find it in claims set up by Conventions, and allowed by the people, in the best days of the Republic, for, with scarcely an exception, during that happy period, when party conflict had not succeeded in perverting our statesmen into mere politicians, it was universally conceded, that the Convention was the child of the law, and, as such, bound to obey literally its requirements. Nor can a warrant for the claim be found in the principles which preside over the genesis and healthy growth of free communities, for those principles, as we have seen above, require Conventions to rank themselves as the servants, not the masters of the people; and when the will of the people is known, to conform themselves scrupulously to it; but when it is unknown, to presume that to be required of them which most conduces to the safety of the Commonwealth.

§ 484. III. The third case, that in which submission is expressly dispensed with, and the Convention authorized or required to put the Constitution into operation without referring it to the people,would seem to present less occasion for doubt. The case has not very frequently arisen, but, so far as I am aware, Conventions have never questioned, either the competence of the legislature so to provide, or their own right and duty to obey. 1 See ante, §§ 410-417.

It is only when our General Assemblies have imposed restrictions upon them, that Conventions have been disinclined to recognize their right to command. Precedents of the exercise of such a power have, as we shall soon see, arisen, sometimes with and sometimes without special legislative authorization. Perhaps, therefore, the question whether such a body can rightfully obey a command of the legislature requiring it to act definitively, ought not to be regarded as an open one. And it may

be, that no very serious exception could be taken on principle to an Act containing such a provision, provided the precaution had been employed to take upon it in advance the sense of the people. This might be accomplished in two ways: first, by proposing the Convention Act in one legislature, and laying it over to be finally acted on by a succeeding one, in the mean time publishing it and calling to it the public attention; or, secondly, by actually submitting to a vote of the people the question of calling a Convention. Of these two modes, either of which would fulfil the conditions requisite for the public safety, the second is unquestionably the preferable one, and it has the high sanction of the New York Council of Revision, in 1820, of which Governor Clinton, Chancellor Kent, and the judges of the Supreme Court, were members. The majority of this Council, deeming it "most accordant with the performance of the great trust committed to the representative powers, under the Constitution, that the question of a general revision of it should be submitted to the people, in the first instance, to determine whether a Convention ought to be convened," vetoed a bill providing for a call of a Convention, which had been passed by the legislature, on the single ground that it did not propose to submit the question to the people.' The same principles that govern the call of a Convention, ought, evidently, to apply to a grant to such a body of unusual powers in the Act by which it is called. It does not admit of a doubt that the safest and wisest course, in one case no less than in the other, would be to submit the questions referred to to the determination of the people.

§ 485. But, suppose there has been no submission to the people, no means used to collect their opinion upon the question, aside from precedents, would the legislature then be competent to authorize definitive action by a Convention, or the latter be empowered to take it? The answer must be in the negative.

1 For this veto, see post, Appendix B.