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the charter in force, but meeting with opposition from the magistrates, steps were taken to call a second Convention with

express instructions from their towns.” Fifty-four towns sent delegates to this latter Convention, the large majority of them with instructions to insist on the resumption of the charter. After two days' debate, the governor and magistrates, chosen at the last election under the charter, were prevailed upon " to assume the trusts committed to them, and, in concert with the delegates recently elected, to form a General Court,” or Legislature, “and administer the colony, for the present, according to the ancient forms.” 1

Two days after this revolutionary government was established, a ship arrived from England with the news that the revolution there had succeeded, and bringing orders to the authorities to proclaim King William and Queen Mary.

The Convention, organized as above stated, by which this revolution was effected, was evidently of the species I have denominated Revolutionary Conventions. It rested for its warrant upon necessity, and sought its ends through force. It was a government, intended to supplant another government, and not merely a political institution designed to be subservient to a government conceived of as existing in full activity.

§ 10. Thus the Revolutionary Convention became domesticated in America. Since this first appearance, there have been numerous others, a few during the colonial condition, but most of them in the course of our two great civil revolutions, those of 1776 and 1861. As we shall see in a subsequent chapter, most of the organizations, by which, under the names of “ Provincial Conventions,” or “ Provincial Congresses," the first of those revolutions was consummated, and all of those by which the late secession movement was carried through, were strictly Revolutionary Conventions.

One of the best known examples of the Revolutionary Convention is the National Convention, by which was engineered the bloody overthrow of the old feudal monarchy of France at the close of the last century. Enough has been said, however, to show the characteristic features of an institution, too often, as we shall see, confounded with the Constitutional Convention, to which I now pass.

1 Palfrey's Hist. New Eng., Vol. III. pp. 587–589.

§ 11. IV. The last species of the Convention is the ConstiTUTIONAL CONVENTION. It differs from the last preceding, in being, as its name implies, constitutional; not simply as having for its object the framing or amending of Constitutions, but as being within, rather than without, the pale of the fundamental law; as ancillary and subservient and not hostile and paramount to it. This species of Convention sustains an official relation to the state, considered as a political organization. It is charged with a definite, and not a discretionary and indeterminate, function. It always acts under a commission, for a purpose ascertained and limited by law or by custom. Its principal feature, as contradistinguished from the Revolutionary Convention, is, that at every step and moment of its existence, it is subaltern, it is evoked by the side and at the call of a government preëxisting and intended to survive it, for the purpose of administering to its special needs. It never supplants the existing organization. It never governs. Though called to look into and recommend improvements in the fundamental laws, it enacts neither them nor the statute law; and it performs no act of administration. As John Randolph said in the Virginia Convention of 1829, it is called as counsel to the people, — as a state physician, to propose remedies for the state's diseases. But it is a physician whose ministrations are confined to the extraordinary maladies requiring a fundamental change in the Constitution, not to those constantly recurring but petty disorders which demand the interposition of the ordinary legislature.

§ 12. It is apparent that institutions, whose definitions thus mutually exclude each other, cannot be the same, however simi„ar the names by which they are popularly known.

But it may happen, (instances will be hereafter mentioned in which it has happened,) that the Constitutional Convention may, by usurpation, assume one or more of the powers of the Revolutionary Convention; or that the latter may exercise those of the former. How, in such a case, is the usurping body to be classed? This question is one of great importance, but is susceptible of a ready answer.

1 I am gratified to be able to fortify myself in the distinctions here made between Constitutional and Revolutionary Conventions, by the authority of the South Carolina Court of Appeals, in cases to which, when the text was written, my attention had not been drawn. See opinion of Justice O'Neall in the so called Allegiance Cases, 2 Hill's S. C. R. 222.



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A Revolutionary Convention, because it is, ex vi termini, unlimited, in respect of both the kind and the degree of its powers, may take upon itself the functions of either of the three lower species of conventions, under the same warrant by which it justifies the assumption of revolutionary powers. A body wbich can, violently and without law, uproot all existing institutions, can clearly do the lesser act of digesting, or even of enacting, amendments to the Constitution. But, in doing so, it does not change its original character; it is still a Revolutionary Convention, and all its acts must stand on the footing of those which involve the widest stretch of power.

But the converse of this proposition does not hold true. If a Constitutional Convention step outside the circle of the law, it does not continue to be a Constitutional Convention, but, so far, becomes that whose powers or methods it assumes, Revolutionary Convention. It leaves the domain of law, which is one of specified and restricted powers, and enters upon that of arbitrary discretion, within which law is silent, and where he is master who wields the greater force.

Whenever, therefore, a Constitutional Convention, appointed, as we shall see it usually is, for a specific duty under the Constitution, presumes to overpass the limits imposed by its commission, by custom, or by the maxims of political prudence, and to do acts requiring the exercise of a revolutionary discretion, it ceases to be a Constitutional, and becomes, in the eye of the law, ab initio, a Revolutionary Convention.

13. If I mistake not, in the confounding of the distinctions noted in the preceding sections between the Constitutional and the Revolutionary Convention, will be found the origin of the most fatal misconceptions attaching to any part of our political system. To show how those misconceptions arise, as well as to obviate their effects by bringing into as clear a light as possible the distinctions indicated, it is necessary to inquire into the genesis and historical development of the Constitutional Convention.

The history of that institution may be summed up in a few words; it is an adaptation to the exigencies of constitutional life and government, in the United States, of the Revolutionary Convention, as derived from our English ancestors of 1660 and 1689. How the transformation occurred, by which the wild scion from the woods was domesticated in the garden of the Constitution and made to subserve the purposes of regulated life, will now be shown.

When the American colonies assumed the position of independent States, the revolt, by which the change in their political relations was accomplished, was engineered by revolutionary conventions in the several States, patterned after those described in the previous sections of this chapter. In other words, our fathers borrowed the revolutionary machinery which history showed to have been so efficacious in the time of Charles II. and James II., as they also, in general, inherited the political principles and the forms of administration of the mother-country. Thus, the institution was planted upon American soil.

The next step, if less obvious, was not less important. The Revolution accomplished, when our fathers came to embody the rights achieved by it in institutions independent of the crown, two circumstances led them to establish governments limited to the exercise of granted powers. The first of these was affection for their charters, so long, in many of the colonies, the most effective barriers against parliamentary oppression; the second, apprehension of an American monarchy, — a mere phantom, as

a we now know, but a phantom which, at that time, to many imaginations, threatened immediate and serious evils. However this may be, the tendency indicated was universal, and has given character to our political institutions to this day.

But it was not forgotten that the colonial charters were mere royal grants, and that the tenures by which they were held had sometimes been very insecure. Here, it is true, there was no sovereign authority but the people, represented chiefly by the General Assemblies, a circumstance which might be thought to render the wrongful abrogation of their charters improbable, if not impossible. But as the worst oppressions, experienced by them as colonies, had been at the hands of Parliament, - a popular assembly, in theory, if not in fact, representing the Commons of the whole empire, - might not their own assem blies in time become their oppressors, especially if allowed to retain not only the power of ordinary legislation, but that transcendent one exercised by the English Parliament, of framing the organic law?


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This apprehension, nearly universal at the time of our separation, led the statesmen of the Revolution to seek some other depositary of the latter power. This they found in Conventions, called by the governments in force in the several colonies, modelled, in point of structure and organization, after the Revolutionary Conventions, with which they were so familiar, but charged with the single function of maturing the charters, or Constitutions, rendered necessary by the altered condition of their affairs. As thus used, the Convention ceased to be the revolutionary body which had alone been known by that name in former times. But it was the same institution, for our fathers knew no other, but the same with important differences. Brought into operation as a regular constitutional agency, in aid of a system established, it was shorn of the extraordinary powers possessed by it when it was itself the government; the government, too, of a state in a time of social upheaval and transition, in which the laws were silent, and those intrusted with the public administration were restrained by no law but that of the strongest.

§ 14. It is not my purpose here to trace at any great length the limits of this new development. It is enough to observe, that the change began with the Revolution, of the fruits of which it constituted so valuable and characteristic a part. It was not accomplished, however, in a moment, nor can it be said to be even yet completely consummated, since there are doubts and misconceptions widely prevalent regarding it, which are inconsistent with the idea of a perfect development of the new institution. An important step in that development has only just now been taken, in the case of the Lecompton Convention, so-called, of the Territory of Kansas. In the discussion of that case, in 1857–9, the question, whether or not a Constitutional Convention has power either to refuse to submit the fruit of its deliberations to those who are to be governed by it, or to submit it to them in such a way as to deprive them substantially of a voice in determining its form and character, was for the first time definitively settled. The same process will doubtless continue in the future.

When the first Constitutions were framed for the colonies, in 1776, the limits and distinctions, above explained, were far less understood than they have since become. In a subsequent

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