The constitutional convention

Front matter

Class Book

THE

CONSTITUTIONAL CONVENTION;

Chapter I. Of The Various Kinds Of Conventions

Leading principles of the American system of government. The function of

legislation, how distributed abroad, and how in America. § 1. Inif ^ance of the Constitutional Convention. Enacts the fundamental law.

Conb' utional Conventions and Secession. § 4.

^' ' s species of Conventions described and distinguished. §§4-16.

The Spontaneous Convention, or Public Meeting. §§ 4, 5. The Legislative Convention, or General Assembly. § 6. The Revolutionary Convention. §§ 7-10.

Examples of, in England. § 8.

Examples of, in early American history. §§ 9, 10. The Constitutional Convention. § 11.

Where the Constitutional Convention exercises the powers of a Revolutionary Convention, or vice versa, how to be classed. § 12. History of the origin and development of the Constitutional Convention in the United States. §§ 13, 14.

Misconceptions respecting the origin, constitution, and powers of the

Constitutional Convention. §§ 15, 16.

Fundamental conceptions to be first developed — sovereignty, or a sovereign body, and a Constitution, or law fundamental. §17.

CHAPTER n.

OF SOVEREIGNTY.

Definition of the terms "sovereign " and " sovereignty." § 18.

Distinction between "sovereign" and "supreme." § 18, note 1.

Marks or tests of sovereignty, as laid down by Austin. § 19.

Additional marks. § 20.

Ground of sovereignty. § 21, note 2.

The question, where sovereignty resides, considered theoretically. § 21.

The attributes of sovereignty. § 22.

Modes in which sovereignty manifests itself. §§ 23, 24.

IV TABLE OF CONTENTS.

Direct manifestations through public opinion, and through the irregular exhibition of powe7\ §23.

Indirect manifestations of sovereignty, through governmental agencies, as, the electors, the legislative, executive, and judicial departments, and the Constitutional Convention. § 24.

Relative rank of these five systems of agencies. § 24. The doctrine of constitutional presumptions stated. § 25. Corollaries by their aid deduced from the foregoing principles. § 25. The locus of sovereignty, as a question of fact : — I. In foreign states. § 26.

II. In the United States of America. §§ 27-53.

(a). The question considered from the point of view of the elementary principles above developed. §§ 27-29.

The definition of sovereignty considered and applied. § 27. The marks or tests of sovereignty, given by Austin, applied. § 28. The additional marks or tests before stated, applied. § 29. (&). The question considered from the point of view of historical facts and principles tending to determine the question of American nationality. §§ 30-50. . What it is to be a nation. § 30.

What it is not to be a nation. § 31.

In the light of these definitions, that the United States constitute a nation, inferred —

1. From the fact, that, in their development there is ob-

servable a perfect conformity to the method of Nature in the genesis of nations. §§ 32-35.

The method of Nature exemplified. §§ 33, 34.

Capital steps in the progress of the United States, specified. §§ 34, 35.

2. From the mode of ratification of the Federal Consti-

tution. §§ 36-38.

View of the " States Rights School." § 37. Observations on the mode of ratification adopted. § 38.

3. From the expressed opinions of contemporary states-

men, friends as well as enemies of the Constitution, §§39-41.

4. From the arguments employed to defeat the Federal

Constitution in the Conventions called to ratify it. §§ 43-45.

5. From judicial decisions and the opinions of statesmen,

historians, and publicists subsequent to the establishment of the Constitution. §§46-48.

Opinion of the Supreme Court of the United States, per Wilson, J. § 46.

Opinions of Washington, Dr. Ramsay, C. C. Pinckney, and Charles Pinckney. §47.

Opinions of Mr. Grimke, Chancellor Kent, John Quincy Adams, and Judge Story. § 48.

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Opinion, expressed by Madison, that the States never

were sovereign. § 49.

Decision to the same effect by the Supreme Court of

the United States. § 50.

Observations on the foregoing authorities, and conclusion stated, that sovereignty resides in the American people, or nation. § 51.

The question of allegiance, considered. § 52. Quasi-sovereignty and quasi-allegiance. § 53. Allegiance due to the people of the United States only. §§ 52, 53.

How sovereignty inheres in the people of the United States. §§ 54-61. Two answers to the question, namely : —

(a). That sovereignty resides in the people, considered simply, that is, as a

unit, without State or other internal discriminations ; and (6). That it resides in the people only as discriminated into, and acting in, groups, by States. §§ 54-61.

The exercise of sovereignty distinguished from the possession of original sovereign powers. § 55.

The regular distinguished from the possible exercise of sovereignty.

§56.

Application of these principles to the United States. § 57. Judging by the regular exercise of sovereignty under the Federal Constitution, sovereignty resides in the people of the United States as discriminated into groups, by States. § 57. Judging by the possible exercise of sovereignty, that power resides in the people simply, without State or other internal discriminations. §57.

The capacity in which the States, under the existing Federal Constitution, exercise sovereignty, — sometimes in that of State Governments, and sometimes in that of subordinate peoples, together constituting the American nation. §§ 58, 59.

View of John Austin. § 60.

View of Dr. Brownson. § 61.

Meaning of the term " sovereign " when used in this work in reference to the States of the Union. § 62.

CHAPTER HI.

OF CONSTITUTIONS.

The term "Constitution " defined. Constitutions discriminated into two kinds — Constitutions as objective facts, and Constitutions as instruments of evidence. §63.

Constitutions " as they ought to be," framed for imaginary commonwealths, contrasted with Constitutions as objective facts. § 64.

I. Nature of Constitutions, as objective facts, considered ; and herein, principally,

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of the question, whetlier Constitutions as objective facts are founded on compact. §§ 65-67.

Are Constitutions, as instruments of evidence, founded on compact ? § 68. When discrepancies exist between the Constitution of a state as a fact, and its Constitution as an instrument of evidence, which has the superior validity ? §69.

II. Specific varieties of Constitutions, as objective facts. § 70. Constitutions, as instruments of evidence, discriminated —

First, with reference to the mode in which they originate, into two classes, viz. :

1. Cumulative Constitutions. §§ 71, 72.

2. Enacted Constitutions. §§ 71, 73.

Secondly, with reference to their general characteristics as sources of evidence, into two others, viz. : —

3. Unwritten Constitutions. §§71, 74.

4. Written Constitutions. §§ 71, 74.

Written and unwritten Constitutions distinguished. §§ 74, 75. Consequences of this distinction. The two kinds, how construed. . §76.

Advantages of written Constitutions. § 77. Disadvantages of written Constitutions. § 78. Opinion of De Maistre. § 78, note 1.

Advantages of unwritten Constitutions. § 79. Disadvantages of unwritten Constitutions. § 80. Difficulty of striking a balance between them. Requisites for safety under each, considered. §§ 81-83.

In the United States all Constitutions, considered as instruments of evidence

except two, have been written Constitutions. § 84. Distinction between a fundamental law, or Constitution, and an ordinary municipal law. §§ 85-87.

Two distinct varieties of Constitutions in the United States, — those of the General Government and those of the States. Distinction between the two. §§89-91. Rules of construction applicable to each. § 91.

The Constitution of the United States a part of the Constitution of each State, and the Constitutions of all the States parts of the Constitution of the United States. § 92.

Both kinds form governments of limited jurisdiction. § 93. Which of the two is supreme ? §§ 93, 94.

Necessity of keeping the two kinds In their operation distinct. § 95. Opinion of Mr. Webster quoted. § 95.

Internal structure of the American Constitutions. § 96. Constitutions commonly consist of three parts : —

1. The Bill of Rights. Object and contents of a Bill of Rights. §§ 96-99. The Federal Constitution has no Bill of Rights, why. § 98.

2. The Frame of Government, description of. §§ 100, 101.

3. The Schedule. Object and contents of a Schedule. § 102.

Precedents showing the extent to which a Schedule has been employed. § 103,

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CHAPTER IV.

OF THE REQUISITES TO THE LEGITIMACY OF CONVENTIONS, AND OF THEIR HISTORY.

Requisites to the legitimacy of Constitutional Conventions. §§ 104-259. Preliminary observations.

Meaning of the term " legitimacy," and its derivatives. §§ 105-108.

Meaning of the term "revolution," and its derivatives. §§ 109-111.

Importance of defining the term revolution. Doctrine of precedents. § 11 2. I. The proper mode of initiating or calling a Convention.

The question considered from the point of view of theoretical principles. §§114-124.

But two modes possible : —

1. By the intervention of unofficial persons ; that is, by private citizens,

giving expression, perhaps, to a general desire. § 114. ' Observations on this mode. §§ 114, 115.

2. By some authentic act of the sovereign body, through some branch of the

existing government. §116.

Observations on this mode, in general. § 116.

Particulars involved in the term " mode." First, agencies ; second, manner of proceeding. § 117.

Examination of the various governmental agencies, with respect to fitness to dischai'ge the function of calling Conventions. §§ 118-121. (a). The electors. § 118. (b). The judicial department. §119. (c). The executive department. § 120. ((/). The legislative department. § 121.

In what manner a Convention should be called. §§ 122-123. Though a Convention be illegitimate, the Constitution framed by it may

become legitimate, how. § 124.

The proper mode of calling a Convention, looking at the question from

the point of view of precedents. §§ 125-259. Conventions thus far held divided into two great classes : — (a). Such as were held during the revolutionary period, fi-om 1775 to March 1789. §§ 125-169.

History of the times in which these Conventions were called, and the general causes by which their legal character was determined. §§ 126-130.

Advice of the Continental Congress to Massachusetts, New Hampshire, Virginia, and South Carolina, in 1775, to form independent governments therein. §§ 127, 128. General recommendation of the Congress to all the Colonies, of

May 10, 1 776, to the same effect. § 128. Observations on this recommendation. § 129. Conditions and elements of the problem to be solved by our fathers. § 130.

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New Hampshire Convention of 1775. History and character of.

§ 131.

New Hampshire Conventions of 1778 and 1781. History and

character of. § 132.

South Carolina Convention of 1776. History and character of.

§ 133.

Observations on this Convention. § 134.

South Carolina Convention of 1778. History of. § 135. Character of the Constitution framed by it. § 136. Character of the Convention of 1778. § 137, Virginia Convention of 1776. History and character of § 138. New Jersey Convention of 1776. History and character of

§§ 139, 140.

Delaware Convention of 1776. History and character of. §§ 141,

142.

Pennsylvania Convention of 1776. History and character of.

§§ 143, 144.

Maryland Convention of 1 776. History and character of § 145. North Carolina Convention of 1776. History and character of

§ 146.

Georgia Convention of 1776. History and character of. § 147. Georgia Convention of 1788, and the two Georgia Conventions

of 1789. History and character of §§ 148, 149. New York Convention of 1776. History and character of

§§ 150-152.

Vermont Convention of 1 7 7 7. History and character of §§153,

154.

Vermont Conventions of 1785 and 1786. History and character

of § 155.

Massachusetts Convention of 1778. History and character of

§156.

Massachusetts Convention of 1779. History and character of.

§§ 157, 158.

First Federal Convention — the Continental Congress. Character of §§ 159-162.

Mode of ratification of the Articles of Confederation as bearing

on the question of their legitimacy as a Constitution. § 161. Defects of the government of the Confederation. § 162. Virginia Resolutions of 1786, and the Annapolis Convention.

§ 163.

Recommendations of the Annapolis Convention. § 163. Observations on the Virginia Resolutions and on the Annapolis

recommendations. § 164.

Action of Congress on these recommendations. Call of the second Federal Convention. § 165.

Character of this Convention. § 166.

State Conventions called to ratify the Federal Constitution. History and character of § 167.

TABLE OF CONTENTS. IX

Other ratifying Conventions. § 1 6 7.

General observations on the Conventions of the revolutionary

period. §§ 168, 169. (b). Conventions called since the Federal Constitution went into

operaiton, in March, 1789.

Several varieties : —

1. Conventions to frame Constitutions for new States to be

formed within the jurisdiction of States, members of

the Union. §§170-193.

Provision of the Federal Constitution governing these

cases ; names of the States so formed ; and requisites

for the legitimacy of the Conventions concerned in

forming them. § 171.

Case of Vermont. §172.

Kentucky Convention of 1792. History and character

of. §§173, 174.

Tennessee Convention of 1796. History and character

of. §§ 175-182.

Discussion in Congress on the admission of Tennessee into

the Union. §§ 179, 180.

Observations on the Tennessee case. §§ 181, 182. Maine Convention of 1819. History and character of.

§§ 183-185.

Conventions of Virginia, and of West Virginia, of 1861.

History and character of. §§ 186-193.

2. Conventions called to frame Constitutions for new States to

be formed out of territory of the United States, organized under its authority, or acquired in an organized condition from foreign States. §§ 194-216.

(a). Such Conventions as have been assembled regularly, in pursuance of enabling Acts of Congress. § 195.

(b). Such as have been convened irregularly, without enabling Acts. §§ 196-216.

Treaties and deeds of cession bearing on this class of

Conventions. §§196,197.

Michigan Convention of 1835. History and character

of. § 198.

Action of Congress on the admission of Michigan into

the Union. § 199.

Michigan Conventions of 1836. History and character

of. §§199,200.

Observations on the Michigan Conventions. §§ 201-209. Opinion of John C. Calhoun. § 204.

Opinion of Senator Ewing. § 205.

Opinion of Senator Niles. § 206.

Decision of the Supreme Court of Michigan as to the

time when Michigan became a State. § 207.

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Decision of the Supreme Court of the United States.

§ 207.

Dissenting opinion of McLean, J. § 208.

Observations on these decisions and on the Michigan

case. § 209.

Other Conventions called without enabling Acts of

Congress. General description of. §210.

Kansas Convention of 1855, at Topeka. History and

character of. §§ 211, 212.

Kansas Convention of 1857, at Lecompton. History

and character of. §§ 213-216.

Opinion of President Buchanan respecting the Lecompton Convention. §214.

Refutation of President Buchanan, by Henry Winter

Davis. §215.

The Lecompton Constitution, action of Congress upon.

The " English Bill." §216. 3. Conventions called to revise the Constitutions of States,

members of the Union. §§ 217-259.

Various classes : —

(a). Such as have been convened for legitimate constitutional purposes, regularly : — I. By the legislatures of the respective States, acting —

1. In pursuance of special provisions of

their Constitutions. §§ 217, 218.

List of these Conventions, and observations on them. § 218, and note.

2. Under their general legislative power,

without the authorization of their Constitutions. §219.

List of the Conventions of this class. §219, note.

H. By special bodies created for the purpose by the Constitution, called Councils of Censors. § 220. (&). Such Conventions as have been called, for legitimate constitutional purposes, irregularly : — 1 1. In disregard of constitutional provisions pre-

' scribing particular modes in which only

amendments to the Constitution should be effected. §§221-225.

Pennsylvania Convention of 1789. History

of. §§ 221-222.

Delaware Convention of 1792. History of.

§223.

Maryland Convention of 1850. History of. § 224.

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Observations on the Conventions of this class. § 225. 2. In defiance of the existing governments of the States concerned, though in pretended conformity to constitutional principles. §226.

Rhode-Island Convention of 1841 — the so-called " People's Convention." History and character of §§ 226-246.

Previous eflfbrts to secure a revision of the

charter of Charles II. § 226.

" Suffrage Associations." " People's Convention " called. § 227.

"People's Constitution" formed and proclaimed. §§ 227, 228.

Forcible attempts to carry it into effect.

§ 228.

Judicial decisions by State and Federal Courts relating to the " People's Constitution." §§ 229-231.

The Rhode Island question considered upon

Argument of Daniel Webster. §§ 234, 235.

Observations on Mr. Hallett's argument.

§§ 236-246.

Bearing of the Declaration of Independence

on the question. § 240.

Bearing of the Bills of Rights of the States

generally on the question. §§ 241-244.

The author's view confirmed by considering the doctrine of Passive Obedience or Non- Resistance, prevalent at and before the time of the Revolution. §§ 242-244.

Bearing of the Bills of Rights of Virginia, Rhode Island, and Maryland on the question. §§ 245-246. (e). Secession and Reconstruction Conventions. §§ 247-259.

Secession Conventions, History of the call of.

§§247,248.

Character of §§ 249, 250.

Reconstruction Conventions. History of the call

of §§ 250-258.

Proclamation of President Lincoln. § 255. Proclamations of President Johnson. § 257. Character of the Reconstruction Conventions. §258.

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Montgomery Convention of 1861. History and character of. § 259.

II. By whom Conventions should be elected. §§ 260-266. (a). The question considered upon principle : —

1. In times of peace and constitutional order. § 260.

2. When the sovereign political body is in a state of disorganization.

§261. (6). The question considered in the light of precedents : —

1. Of precedents since the Revolution. § 263.

2. Of precedents during -the Revolution. § 263. Exceptional cases considered. §§ 264-266.

CHAPTER V.

OF THE ORGANIZATION AND MODES OF PROCEEDING OF CONVENTIONS.

Of the constitution of Conventions. §§267-271.

1. Who may be members of Conventions. §§ 267-269.

2. Should Conventions consist of one Chamber or of two? §§ 270, 271. Of the internal organization of Conventions. §§ 272-274.

Of the call to order. § 272.

Of the officers of Conventions, temporary and permanent. " § 274.

Reports of proceedings. § 274.

Credentials and list of members. § 276.

Should members of Conventions be sworn. §§ 277-283.

What Conventions have, and what have not, administered an oath. Form

of oath administered. § 277.

Grounds of opposition to administration of an oath. § 278. Question as to form of the oath. Discussion in North Carolina, in 1835,

Rules of Order. § 284.

Committees. Employment of in Conventions. §§ 285-296. Different modes of proceeding in Conventions : —

1. Without Committees. §286.

2. With Committees. §§ 287-296.

Different modes of proceeding with Committees —

(a). With Committee of the Whole only. §287.

(6). With a single Select Committee. § 288

(c). With numerous Select or Standing Committees. § 289. Reasons in favor of Committee of the Whole. § 290. Objections to Committee of the Whole. § 291. Reasons in favor of Select or Standing Committees. § 292. Objections to such Committees. § 293.

Precedents as to use of Committees. §§ 294, 295. Number of Standing Committees, how determined. § 296. By whom appointed. § 296.

How Conventions employed whilst Standing Committees are preparing

their reports. §297.

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Reports, how made. §§ 298-301.

How disposed of in Convention. § 302.

Committees on Revision, or on Phraseology and Arrangement. § 303.

Signing of the Constitution, significance of the act. § 304.

CHAPTER VI.

OF THE POWERS OF CONVENTIONS.

Meaning of the term power. § 305.

General conception of the Constitutional Convention. § 306.

Two theories as to the powers of Conventions. § 307.

Instances in which the first theory has been propounded. § 308.

Instances in which the second theory has been propounded. §§ 309, 310.

The first theory, that of conventional sovereignty, a novelty. Its history. §§ 311,

312.

To refute the first theory the principal object of this work. § 313. Order of the discussion stated. § 314.

I. The powers of Conventions considered with reference to their external relations ; that is, particularly —

(a). Their powers in relation to the sovereign, or to sovereign rights. Are Conventions possessed of sovereign powers ? §§ 315-318. Sense in which Conventions wield sovereign powers. § 319. (b). Powers of Conventions growing out of their relations to the state as a whole. Is a Convention a part of the governmental system of the state ? §§ 320, 321.

Is a member of a Convention an officer ? §§ 322-324. Can a Convention fill vacancies in the governmental departments ?

§ 325.

Can it eject from office, or direct in the discharge of their duties,

persons holding office in the government? §§ 326-330. Vacating ordinance of the Missouri Convention of 1865. §§ 327- 330. (c). Powers of Conventions growing out of their relations to the electors f Their relations to the electors in general. §§ 331-334. Practical questions depending on those relations : —

1. Can a Convention disfranchise any portion of the electors ?

§§335-337.

True theory of the suffrage. §§ 336, 337.

2. Can a Convention assume the function of the electors to fill

vacancies in its own ranks ? § 338.

3. Can a Convention authorize the colleagues of a deceased or

resigning member to name his successor ? § 339.

4. Can a Convention issue precepts to the electors directing new

elections to fill vacancies in its own ranks? §§ 340-347. Case in the Massachusetts Convention of 1853 stated. §§ 341,

342.

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Reply of Marcus Morton. § 345.

Reply of Joel Parker. § 346.

Observations upon the Massachusetts case. § 347.

5. Can the electors fill a vacancy in a Convention at any time

and in any manner they please ? §§ 348, 349.

6. Can a Convention receive as a delegate a person elected at a

time or in a manner not provided by law ? § 350.

7. Can a Convention limit the discretion of the electors in the

discharge of their appropriate duties ? §§ 351-361. Case in the New York Convention of 1846. §§ 353, 354. Case in the Louisiana Convention of 1844. §§ 355-357. 1 Observations on the Louisiana case. §§ 358-361.

8. Have the electors power to instruct their delegates to Con-

ventions ? §§362-364. (^d). Powers of Conventions growing out of their relations to the several departments of the government, legislative, executive, and judicial. §§ 366-449.

1. To the executive and judicial departments. § 366.

2. To the legislative department. §§ 367-449.

General powers of legislatures and Conventions contrasted.

§§ 367-375.

Two classes of questions considered : —

(a). Questions relating to the powers of legislatures to bind

Conventions, or of Conventions to nullify acts of

the legislature. §§376-418. 1. Can legislatures impose conditions, restrictions or limitations upon Conventions, or dictate their organization or modes of proceeding ? §§ 3 76-409.

General consideration of the question. §§ 377-383.

Discussion of, in the Federal Convention. §§ 383- 386.

Discussion of, in the North Carolina Convention of 1835. § 387.

Opinion of the Supreme Court of Massachusetts on, in 1833. § 388.

Observations upon this opinion. § 389.

When an Act of a legislature calling a Convention has been voted on by the people, what is the source of its validity ? §§ 389-409.

Oj^inion of the Supreme Court of New York on this question. §§ 390-392.

Observations upon this opinion. §§393-399.

Discussion of the question in the Massachusetts Convention of 1853. §§ 400-403.

Observations upon this discussion. §§ 404-406.

Opinion of the Supreme Court of Illinois bearing on the question. §§ 407-409.

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2. Can legislatures bind Conventions to submit the

fruit of their labors to the people ? §§ 410- 414.

Discussion of this question in the Illinois Conventions of 1847 and 1862. § 414.

3. When a Convention has submitted a Constitution

at a particular time or in a particular manner, can the legislature alter the time or mode of submission? §§415-418.

Case in Kansas considered. § 415.

Observations on the Kansas case. §§ 416, 417. Opinion of the Supreme Court of Delaware, cited. §418. (6). Questions as to the power of Conventions to legislate, or to discharge functions imposed by the Federal Constitution upon legislatures. §§ 419-449.

1. Is a Convention possessed of the power of ordi-

nary legislation ? §§ 420-441.

The question considered —

First, in the light of principles. §§ 420-425. Secondly, in the light of custom and precedent. §§ 426-441.

Practical questions discussed : —

(a) . Has a Convention power to repeal Acts of the legislature ? Chicago Ordinance of the Illinois Convention of 1862. §§ 430- 434. (6). Have Conventions power to appropriate money out of the public treasury ? §§ 435-441.

2. Can a Convention act as a legislature in matters

required by the Federal Constitution to be

transacted by the legislatures of the States ?

§§442-447.

There may be two cases : —

(a). Can a Convention assume, as a legislature, to prescribe the " times, places, and manner of holding elections for senators and representatives " in Congress. Case in the Illinois Convention of 1862. §§ 442-446.

(b). Can a Convention, as a legislature, ratify proposed amendments to the Federal Constitution? §447.

3. Can a Convention limit a discretion confided to a

State legislature by the Constitution of the United States ? §§ 448, 449.

II. The powers of Conventions considered with reference to their internal re-

XVI TABLE OF CONTENTS.

latlons ; to the perfecting of their organization ; to the maintenance of discipline over their own members, or over strangers ; and to the prolongation or perpetuation of their existence. §§ 450-478. General view of the powers of Conventions in this respect. §§ 451-453. First. Of powers expressly given. § 451.

Second. Of implied or incidental powers. §§ 453-470. Power to appoint their own officers. § 454. Power to supply themselves with stationery, public journals, reporters,

&c. §§ 454-457.

Power to order printing. § 458.

Power to make and enforce rules of order. § 459. Power to arrest or punish offences committed against the body itself or its members. §§ 459-472.

1. For offences committed by their own members, in their own

2. For offences committed by strangers. §§ 465-470. Case in the Illinois Convention of 1862. §§ 467, 468. Case in the Louisiana Convention of 1864. §§ 479, 470.

Privileges of members of Conventions. §§ 471, 472.

Power of Conventions to prolong or perpetuate their existence. §§ 473- 478.

Reconvocation of the Louisiana Convention of 1864, in July 1866, considered. §§ 474-478.

CHAPTER VIL

OF THE SUBMISSION OF CONSTITUTIONS TO THE PEOPLE.

Duty of Conventions to submit the fruit of their labors to the people. Ground

of the duty. § 479.

The duty considered in three cases : —

I. Where neither the Convention Act nor the Constitution requires submission. §5 480, 481,

IL Where submission is expressly required. §§ 482, 483.

in. Where submission is expressly dispensed with. §§ 484-486. Precedents as to submission. § 487 and notes. Observations on these precedents. §§ 488-490.

Cases of exceptional submission, and of non-submission considered. §§ 491-495. Case of the South Carolina Convention of 1778. § 491. Case of the Pennsylvania Convention of 1789. § 491. Case of the New York Convention of 1801. § 492. Cases of the Secession and Reconstruction Conventions. § 493. Peculiar mode of submission in Vermont. § 494. Cases of the Territories forming their first Constitutions. § 495. Separate topics necessary to a complete exposition of the subject of this chapter,

stated. § 496.

L By whom the particular regulations necessary for submitting Constitutions ought to be made. §§497-499.

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Theoretical view of the question. § 497.

Precedents. §§498,499. n. To whom Constitutions ought to be submitted. §§ 500-509. Theoretical view of the question. § 500.

Precedents. § 501-509.

General current of the precedents stated. § 501. Exceptional cases considered. §§ 502-509.

Cases of the two Constitutions of the United States. §§ 502, 503. Cases of the Virginia Constitutions of 1830 and 1851, and of those of Rhode Island of 1842, and of West Virginia of 1863. §§ 508, 509. Cases of the Tennessee Constitution of 1834, and of the Maryland Constitution of 1864. § 509, note. in. Nature of the act performed by the persons or body to whom submission is made. §§ 510-513.

The act compared with the three classes of acts — legislative, executive, and judicial.

(a). Is it a judicial act ? §510.

lb). Is it an executive act ? §§ 510-512.

The act compared with the three kinds of executive acts : —

1. Administrative acts. § 510.

2. The negative, or veto. § 511.

3. The act of signing or assenting to bills. § 512. (c). Is it a legislative act ? § 513.

Opinion of Mr. Austin. § 513, concluding note. IV. In what manner Constitutions should be submitted. §§ 514-520. Theoretical view of the question. §§ 514, 515. Precedents. §§ 516-520.

Case of the Lecompton Constitution. §§ 517-520. V. How Constitutions should be certified and promulgated. §§ 521-524. Precedents stated and considered. §§ 522-524.

CHAPTER Vm.

OF THE AMENDMENT OF CONSTITUTIONS.

Necessity of some provision for amending Constitutions. § 525. Modes of effecting amendments here and abroad contrasted. § 526. Early views on the subject in this country, unsettled. § 527. General policy of the American States stated. §§ 528, 529.

I. Modes provided by the various American Constitutions for effecting

amendments : — j First mode, that by the agency of Conventions. § 530, and notes.

' Second mode, that by the agency of our General Assemblies. §§ 530,

531, and notes.

II. Excellences and defects of these two modes. § 531. (a). The mode by Conventions. §§ 526-531.

Requisites for safety, when this mode is employed. §§ 532-534.

b xvm TABLE OP CONTENTS.

^ First check or safeguard, by increasing the majority necessary

to call a Convention. § 533. / Second check, or safeguard, by submission of the question of calling Conventions to the people. § 534. Precedents. §§ 535-537.