of peace with England, none were submitted except that of Massachusetts, framed in 1778. This Constitution, however, was rejected by the people, and it was not until two years later that the leading Northern State was enabled to frame for herself a satisfactory fundamental code. Her first failure, however, furnished striking evidence of the existence amongst her people of sound practical views of Constitution-making, since that failure resulted from dissatisfaction with the mode in which the proposed Constitution had been concocted. The Constitution of 1778, as stated in a former chapter, was framed by a committee of the legislature, appointed in 1777, and on being submitted to the people, was, for that reason alone, rejected by an overwhelming vote the people of that Commonwealth deeming the General Court, as the legislature was called, unauthorized to take the step indicated. Afterwards, a Convention was, in a regular and formal manner, called by the General Court, by which the Constitution, known as that of 1780, was framed.

§ 491. Two Conventions, classed with non-submitting Conventions, those of South Carolina of 1777, and of Pennsylvania of 1789,- might, perhaps, without impropriety, have been classed with those which submitted their work to the people. The legislature of South Carolina, which met in January, 1777, having been elected with the understanding that it should revise the Constitution of 1776, proceeded at its first session to perform that duty. Though, by the tenor of its commission, that body might have deemed itself authorized to enact its proposed Constitution at once, without in any manner taking the sense of the people in relation to it, it did not do so. It matured the instrument, and delayed the formal act of adopting it for a whole year, in the mean time publishing it for the consideration of the people at large. "From the general approbation of the inhabitants, the new Constitution received," as was believed, "all the authority which could have been conferred on the proceedings of a Convention expressly delegated for the purpose of framing a form of government."2 And, had the body by which it was finally adopted been elected during the year following its publication, with a view to its ratification or 1 Ramsay, History of the Revolution of South Carolina, pp. 128, 129. 2 Ibid.

rejection, there would have been a substantial submission of it to the people. As it was, there was the possibility that a body, wedded naturally to its own views of the public necessities, embodied in its project of a Constitution, would fail accurately, by its intercourse with the people, to gather, or would refuse to obey, the public will.

The course of the Pennsylvania Convention was, in respect of submission, similar, though, on the whole, more exception. able than that of South Carolina. In the resolutions by which it was convened, there was a clause declaring it to be, in the opinion of the legislature, expedient "that the Convention should publish their amendments and alterations for the consideration of the people, and adjourn at least four months previous to confirmation." In obedience to this suggestion, the Convention matured a Constitution toward the close of February, 1790, and adjourned over to the 9th of August following, publi cation of the same being in the mean time made in the newspapers. On the day last named, the body again assembled, and, after a session of twenty-four days, finally adopted the Constitution of 1790. Thus there was the semblance of taking the sense of the people upon the Constitution, and, perhaps, a virtual submission to them of that instrument. But, how far it fell short of what a submission ought to be, is evident from the fact, that after the Convention assembled the second time, it spent twenty-four days in reviewing and amending the instru ment upon which the people had been informally consulted. What changes the people as a whole desired in the scheme as published was not, and could not be, accurately known, not, consequently, whether the delegates obeyed or disobeyed the public voice. Both cases, therefore, have been set down as those in which Conventions did not submit their work to the people.

§ 492. Of the reasons inducing the Conventions of South Carolina, held in 1790; those of Delaware in 1792 and 1831; those of Georgia in 1795 and 1798; that of Kentucky in 1799; and that of Mississippi in 1832, to withhold the Constitutions framed by them from submission to the people, I am not advised. In relation to the New York Convention of 1801, it may be said, that the objects of calling that body were, — first, 1 Conventions of Pennsylvania, p. 134.

to reduce the number of senators and representatives in the General Assembly; and, secondly, to determine the true construction of the twenty-third Article of the Constitution relative to the right of nomination to office. From the language of the Act calling the Convention, it is obvious that submission of its determinations was not only not expected, but was virtually dispensed with. Without raising again the question as to the power of the legislature thus to authorize the Convention to act definitively,1 it is clear that the case must be ranked as an exceptional one, so far as relates to the question of submission, and can form no precedent for cases in which the circumstances should be different.

§ 493. Of the forty non-submitting Conventions, the nineteen which remain are the Missouri Convention, whose sessions ran through the years 1861, 1862, 1863, and the so-called Secession and Reconstruction Conventions, held in 1860, 1861, 1864, 1865, and 1866.

The force of these cases as precedents is broken by the very peculiar circumstances which attended the call of those Conventions. It is unnecessary to rehearse here a history familiar to every reader. The States in which those Conventions assembled were in a thoroughly revolutionary condition. To this remark the State of Missouri, in the period covering the existence of the Convention of 1861, is no exception. Indeed, there is probably no doubt that that body was called in the interest of the Secession faction, and that, but for the determined stand taken by the Union majority, it would have carried the State, so far as a State can be carried, out of the Union. Respecting the thoroughly revolutionary condition of the other States, both at the date of their secession and at that of their reconstruction, there is no question, though at the latter, the hostile majority in the several States, under the overwhelming pressure of the Union arms, was sullenly acquiescent. Besides, at the date of the reconstruction Conventions, the electoral machinery was out of order, and the need of a reëstablishment of the State organizations too urgent to admit of the delay necessary for submission. All these reasons operated to prevent those Conventions from submitting their work to the people. In the cases of the Secession Conventions, moreover, there was doubtless an ap

1 On this question see §§ 484-487, ante.

prehension that the bulk of the people, being unripe for the work of destroying the Union, might outvote those who were in the conspiracy to effect it.

Admitting, however, for the sake of the argument, that the Conventions held in the seceding States, in the years mentioned, were regular, they were held in exceptional circumstances; and the fact that they found it inexpedient or impossible to submit their work to the people, is clearly no precedent for non-submission in times of peace and constitutional order. "The extreme medicine of the Constitution," as wisely hinted by Burke, ought not to be made "its daily bread."

§ 494. Two peculiarities in the mode of submission practised in certain cases will now be noticed.

By the forty-third section of the Vermont Constitution of 1777, provision was made for the election, every seven years, of a Council of Censors, of thirteen members, one of whose powers should be to call a Convention, to meet within two years after their sitting, if there appeared to them an absolute necessity of amending any Article of the Constitution. It was further provided, that the Articles to be amended, and the amendments proposed, and such Articles as were proposed to be added or abolished, should be promulgated at least six months before the day appointed for the election of such Convention, for the previous consideration of the people, that they might have an opportunity of instructing their delegates on the subject.

Here a Council of thirteen matured the proposed amendments, and the Convention was charged with the duty merely of passing upon them such a judgment as the people should have instructed them to do, or as the delegates should deem most accordant with the general voice. Such a mode of submission is the same in its general character as that commonly adopted, where, as we shall see, the whole body of the electors are called upon to adopt or reject amendments to the Constitution. The only difference is that, in Vermont, the electors choose a body of delegates to do for them, and in their names, what elsewhere is done by the electors directly. Considering the dangers of faction and corruption, always greater in small than in large bodies of men, there can be no doubt that, although the Vermont mode is theoretically unexceptionable,

practically it is less to be commended than the one with which it is contrasted.

§ 495. The remaining case, presenting peculiarities in the mode of submission, is that of Territories framing their first Constitutions, preparatory to entering the Union as States. These are commonly, but, as I am confident, erroneously, cited as cases of non-submission. Assuming, for the present, that it is to the people-the sovereign-that Constitutions ought to be submitted, the question, To whom, in particular, should those framed for Territories be submitted? admits of a ready answer. The sovereign authority in the Territories is the people of the United States. When a Constitution, then, is framed for a Territory, if submitted at all, it should be to the people of the United States, in some one of the ways recognized as proper for ascertaining its will. The best way, as we have shown, would doubtless be to take a vote upon the question of the electors throughout the Union; but the practice of the government, under the Constitution of the United States, has been uniformly to leave the adoption or rejection of a Territorial Constitution to the Congress of the United States, the principal representative of the general sovereignty of the Union. This seems, implicitly at least, to be required by those clauses of the Constitution which provide that "new States may be admitted by Congress into this Union," and that "the United States shall guarantee to every State in this Union a republican form of government."1 Beside this, which, in my judgment, is the normal and sufficient mode of submission, another has of late years come into use in these cases. In all, or nearly all, the enabling Acts of Congress authorizing Conventions in Territories of the United States, passed since the troubles in 1855-9 in Kansas, a clause has been introduced requiring those bodies to submit the Constitutions framed by them to the inhabitants of the respective Territories. This course, though theoretically not requisite, is highly proper, since otherwise Constitutions might be forced upon Territories by packed Conventions, in league with the majority of Congress, to which the people to be governed by them were hostile. It is to be understood, however, that the adoption of this mode is not obligatory upon Congress, and that the action of the territorial inhabitants is

1 Const. U. S., Art. IV. §§ 3, 4.