have been submitted. The same causes probably operated to cause the first Constitution to be withheld from submission, as in the States above named; and they, doubtless, had their influence, generally, during the Revolution. The Tory party was strong enough in all the States to occasion serious embarrassment, in case a vote should be taken to determine upon the establishment of a new government independent of the crown; and in some of the States it was a matter of doubt whether it might not outnumber the friends of independence. Consequently, of the first Constitutions framed prior to the ratification 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 1778, 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 ma

1 See ante, § 156.

tured 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 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 exceptionable 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."3 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, publication 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 instrument 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, nor

1 Ramsay, History of the Revolution of South Carolina, pp. 128, 129. 2 Ibid.

3 Conventions of Pennsylvania, p. 134.

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; and that of Kentucky in 1799, which were revising Conventions, 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, 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,' 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-four non-submitting Conventions, those 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, and 1865.2

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 its Union members, it would have carried the State, so far as a State 1 On this question see §§ 484-487, ante. 2 See list, note 2 to § 487, ante, page 497.

can be carried, out of the Union. Nevertheless, there were limits beyond which the legislature, in calling the Convention, durst not go without providing for a reference to the people; accordingly, it prescribed in the Convention Act, that no Act or resolution of the Convention should be deemed to be valid to change or dissolve the political relations of the State to the government of the United States, or any other State, until a majority of the qualified voters of the State voting upon the question should ratify the same. As the contingency referred to did not arise, no ordinance or amendment to the Constitution adopted by the Convention was submitted to the people, and judging from the action of the Secession Conventions in other States, had a secession ordinance been adopted by the Convention, we may be permitted to doubt whether it would have been submitted as required by the above Act. Respecting the condition of the other States at the time of their secession, there can be no doubt; it was avowedly revolutionary. When towards the close of the war, and after it, the first attempt was made to reconstruct their governments under the proclamations of Presidents Lincoln and Johnson, many causes operated to deter the Union citizens from submitting the amended Constitutions to a general vote of the people in some the electoral machinery was more or less disorganized, and in all there was fear that it would be impossible to secure the approval, by a popular vote, of those measures relating to debts contracted in aid of the rebellion, and to the abolition of slavery without compensation to the late owners of slaves, which it was believed would be insisted on by Congress ; the bulk of the people being as yet unripe for accepting the conditions absolutely necessary for the restoration of the Union, as at the time of the Secession Conventions they had been thought to be unripe for its demolition. 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 Constitu tion," as wisely hinted by Burke, ought not to be made "its daily bread."

1 Section 10 of Act approved January 21, 1861.

§ 494. Certain peculiarities in the mode of submission will now be noticed. The first is that required by the Federal Constitution for amendments to that instrument proposed by Con- ' gress. Article V. provides that amendments proposed by Congress, or by a Convention called by that body, shall be valid "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 the Congress."

The other peculiarities in the mode of submission have been exhibited in the States, or in Territories seeking admission into the Union as States. Of these, two are deserving of mention, of which the first is that for over ninety years practised in Vermont.

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.