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lot, on the second Tuesday of February next, delegates to meet in Convention. for the purpose of making such alterations in the Constitution of this State as they may deem proper, without having first taken the sense of the people whether such a Convention, for such a general and unlimited revisal and alteration of the Constitution, be, in their judgment, necessary and expedient.

There can be no doubt of the great and fundamental truth, that all free governments are founded on the authority of the people; and that they have at all times an indefeasible right to alter or reform the same, as to their wisdom shall seem meet. The Constitution is the will of the people, expressed in their original character and intended for the permanent protection and happiness of them and their posterity; and it is perfectly consonant to the republican theory and to the declared sense and practice of this country that it cannot be altered or changed, in any degree, without the expression of the same original will. It is worthy, therefore, of great consideration, and may well be doubted, whether it belongs to the ordinary legislature, chosen only to make laws in pursuance of the provisions of the existing Constitution, to call a Convention in the first instance, to revise, alter, and perhaps remodel the whole fabric of the government, and before they have received a legitimate and full expression of the will of the people that such changes should be made.

The difficulty of acceding to such a measure of reform, without the previous approbation of the constituents of the government, presses with peculiar force and with painful anxiety upon the Council of Revision, which was instituted for the express purpose of guarding the Constitution against the passage of laws "inconsistent with its spirit."

The Constitution of this State has been in operation upwards of forty years, and we have but one precedent on this subject, and that is the case of the Convention of 1801. But it is to be observed that the Convention in that year was called for two specific objects only, and with no other power or authority whatsoever. One of these objects was merely to determine the true construc tion of one of its articles, and was not intended to alter or amend it; and the other was to reduce and limit the number of the Senators and Members of Assembly. The last was the single alteration proposed; and perhaps, even with respect to that point, it would have been more advisable that the previous sense of the people should have been taken. But there is no analogy between this single and cautious case and the measure recommended by the present bill, which is not confined to any specific object of alteration or revisal, but submits the whole constitutional charter with all its powers and provisions, however venerable they may have become by time and valuable by experience, to unlimited revisal. The Council have no evidence before them, nor does any legitimate and authentic evidence exist, that the people of this State think it either wise or expedient that the entire Constitution should be revised and probed, and per haps disturbed to its foundation.

The Council, therefore, think it the most wise and safe course, and 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.

The declared sense of the American people throughout the United States or

this very point cannot but be received with great respect and reverence; and it appears to be the almost universal will expressed in their constitutional char ters that Conventions to alter the Constitution shall not be called at the instance of the legislature without the previous sanction of the people by whom those Constitutions were ordained.

The Constitution of Massachusetts was established in 1780, and contains the earliest provision on this subject. It provided that, in the year 1795, the sense of the people should be taken on the necessity or expediency of revising the Constitution; and that if two-thirds of the votes of the people were in favor of such revision and amendment, the legislature should provide for calling a Convention. The Convention now sitting in that State was called in consequence of a previous submission of such a question to the people. The Constitution of South Carolina was ordained in 1790; and in that it is declared that no Convention shall be called unless by the concurrence of two-thirds of both branches of the legislature. And the Constitution of Georgia, established in 1798, contains the same provision; thus showing, that though the people be not previously consulted on the question, yet a more than ordinary caution and check upon such a measure was indispensable. The Constitution of Delaware, of 1792, declares very emphatically that no Convention shall be called but by the authority of the people, and that their sense shall be taken by a vote for or against a Convention; and that if a majority of all the citizens shall have voted for a Convention, the legislature shall make provision for calling one. The same constitutional provision, that no Convention shall be called to alter or amend the Constitution, until the sense of the people by vote shall have been previously taken, whether, in their opinion, there was a necessity or expediency for a revision of the Constitution, has been successfully adopted, by the Constitution of New Hampshire, in 1792; by the Constitution of Tennessee, in 1796; by the Constitution of Kentucky, in 1799; by the Constitution of Louisiana, in 1812; by the Constitution of Indiana, in 1816; by the Constitution of Mississippi, in 1817; and by the Constitution of Illinois, in 1818.

It would, as the Council apprehend, be impossible to produce higher and more respectable authority in favor of such a provision, and of its value and safety.

2. Because the bill contemplates an amended Constitution, to be submitted to the people to be adopted or rejected, in toto, without prescribing any mode by which a discrimination may be made between such provisions as shall be deemed salutary and such as shall be disapproved by the judgments of the people. If the people are competent to pass upon the entire amendments, of which there can be no doubt, they are equally competent to adopt such of them as they approve, and to reject such as they disapprove; and this undoubted right of the people is the more important if the Convention is to be called in the first instance without a previous consultation of the pure and original source of all legitimate authority. And it is worthy of consideration, and gives additional force to the expediency and fitness of a previous reference to the people, that time will be thereby given for more mature deliberation upon questions arising upon the Constitution, which are always momentous in their nature and calculated to affect not the present generation alone but their distant posterity, and when the legislature may probably have it in their power to avail themselves of a more

just and accurate apportionment of the representation in the Convention among the several Counties in this State.

Ordered, That the Secretary deliver the bill, together with a copy of the ob jections aforesaid to the Honorable Assembly.

J. V. N. YATES,

Secretary.

INDEX.

A.

Acts, Convention or enabling, Conventions called in pursuance of, § 187, and note 1; can legislatures bind Conventions by their? §§ 376-418; calling Conventions, analysis and essential character of, §§ 404-408. Adams, John, connection of, with the formation of the first American Constitutions, §§ 128, 129, 489; appointed on the committee to draft the Massachusetts Constitution of 1780, § 157.

Adams, John Quincy, opinion of, bearing on the question of American nationality, § 48.

Adams, Samuel, appointed on the committee to draft the Massachusetts Constitution of 1780, § 157.

Alabama, Convention of, of 1819, §§ 186, 187; do. of 1875, § 218; do.of 1861, §§ 247250; do. of 1855, §§ 250-258; do. of 1867, 258 a-258 d.

Allegiance defined, and to whom owing in the United States, §§ 52, 53; qualified, as due to the states, absurd, § 53; "Allegiance Cases," so called, in South Carolina, § 53, note 1.

Amendments to Constitutions, necessity of providing for, §§ 525-529; various modes of effecting, §§ 526, 530, 531; excellences and defects of the several modes, §§ 532534, 538-540; precedents of the employment of these modes, §§ 535-537 a, 541546; novel device for making, by means of Constitutional commissions, §§ 546 a546 d: where a legislature participates in effecting, nature of its act, §§ 547-550; extent of the power of a legislature to recommend, §§ 551-555; where a legislature recommends, should they be submitted to the executive for approval? §§ 556-562; where a State legislature has once rejected amendments proposed by Congress to the Federal Constitution, can it or its successor reconsider them? § 563; where a Constitution contains a provision for making in one of the modes, can the other be employed? $$ 563-574 h; where it contains no provision for making, can either mode be pursued? §§ 563-574 h; to Federal Constitution, when proposed by Congress to the States, and passed upon by the State legislatures, can the latter or their successors reverse their action ? §§ 576-584; can

Congress recall amendments thus proposed? §§ 585-586; when submitted to the States by Congress, how long are they Appropriations, power of Conventions to open to adoption by them? §§ 585-586. make, of moneys from the public treasury, Arkansas, Convention of, of 1836, §§ 188, §§ 435-441 b. 189, 210; do. of 1874, § 219; do. of 1861, §§ 247-250; do. of 1864, §§ 250-258; do. of 1868, §§ 258 a-258 d; cases in Supreme Court of, respecting the extent of the power of a legislature to propose amendments to a Constitution, §§ 551-555. Arrest, power of Conventions to make, of their own members or of strangers, §§ 460470.

Articles of Confederation, history and charAssembly, the General, or legislative Conacter of, §§ 159-162. vention, described, § 6; see also legisla

ture.

Attributes of sovereignty specified, § 22. Austin, John, marks of sovereignty laid down by, § 19; opinion of, as to the location of sovereignty in the United States, § 60; do. as to an ulterior legislature in New York, superior to the ordinary legislature, § 513, note 1.

Autocracies, Constitutions of, described, § 70.

B.

Banks, Nathaniel P., General, proclamation
of, for the reconstruction of Louisiana,
§ 256.
Belknap, Dr., historian of New Hampshire,
quoted, as to the first Convention of that
State, § 131.

Bills of Rights, description, history, and ob-
jects of, $$ 96-99: why no, in the Federal
Constitution. § 98; clause in American,
generally, respecting altering or abolish-
ing government, commented on, §§ 240-
246.
Black, Judge Jeremiah S.. speech of, on
appropriating money, $ 400, note 1; on
powers of Conventions, § 409 e.
Bowdoin, James, appointed on the commit-
tee to frame Massachusetts Constitution of
1780, § 157.

Bramlette. Governor of Kentucky, opinion of, respecting the power of a State legisla

ture to reconsider amendments to the Fed-
eral Constitution proposed by Congress
and once rejected, § 581.

Brownson, Orestes A., Dr., opinion of, as
to the mode in which sovereignty inheres
in the people of the United States, § 61;
distinction drawn by, between Constitu-
tions as facts and Constitutions as instru-
ments of evidence, § 63, note 1.
Buchanan, James, President, opinion of, re-
specting the Topeka and Lecompton Con-
ventions, § 214.

Burke, Edmund, moral competence of gov
ernments defined by, § 305; sarcasm of,
respecting the French Bill of Rights of
1793, § 317.

Butler. Benj. F., quoted, as to conventional
sovereignty, §§ 311, 343; speech of, on the
right of Conventions to issue precepts to
the electors, § 343.

C.

Calhoun, John C., opinion of, respecting
the bearing of the mode of ratifying the
Federal Constitution, on the question of
American nationality, § 37; speech of, on
the Michigan Convention of December,
1836, § 204.

California, Convention of, of 1849, §§ 188,
189, 210; do. of 1878, § 218.

Censors, Council of, a device for effecting
the amendment of Constitutions more in-
genious than useful, § 544.

Citizens, can Conventions limit eligibility

to office to naturalized? §§ 355-361; clause
of the Federal Constitution as to rights of,
considered, §§ 358-361.

Citizenship, rights belonging to mere, in
the several States, §§ 359-361.
Colorado, Convention of, of 1864, §§ 187,
210; do. of 1865 and 1875, §§ 188, 210.
Commissions, Constitutional, a novel de-
vice for effecting the amendment of Con-
stitutions, §§ 546 a-546 d.

Committee of the whole, use of, in Con-
ventions, §§ 290, 291: of revision, duty
and importance of, § 303; of the Illinois
Convention of 1862, on the powers of Con-
ventions, § 308.

Committees, use of, in Conventions, §§ 285-
294; members of, in various Conventions,
and reasons for and against employment
of, §§ 287-295; standing, of Conventions,
§ 295; number and duties of, how deter-
mined; precedents stated, § 296; reports
of, §§ 298-301; Conventions, but mere,
§§ 367, 453, 513.

Compact, are Constitutions, as facts, founded

on? §§ 65 67; are Constitutions, as instru-
ments of evidence, founded on? § 68.
Congress, the Continental, advice of, to
Massachusetts, New Hampshire, Virginia,
and South Carolina, in 1775, relative to
the establishment therein of governments
independent of the crown, § 127; resolution
of, of May 10, 1776, respecting the forma-
tion of such governments in the colonies

generally, §§ 128, 129; as a Convention,
framing the Articles of Confederation, his-
tory and character of, §§ 159-161; a Pro-
vincial, the first independent government
of South Carolina, § 131; do. of New Jer-
sey, § 139; do. of Maryland, § 145; do. of
Georgia, § 147; do. of New York, § 150:
power of Conventions, as legislatures, to
district their States for members of, §§ 442
-446; when amendments to the Federal
Constitution have been proposed by, to
the States, and been passed upon by the
State legislatures, can they or their suc-
cessors reverse their action? §§ 576-584;
can such amendments be recalled by? §§
585-586.

Congresses, Provincial, revolution of 1776
consummated by, § 10; history and pow-
ers of, 126.

Connecticut, Convention of, of 1818, § 219,
and note 1.

Constitution, theory of the, fundamental
to this inquiry, § 17; the term defined,
§ 63; of the United States, bearing of the
mode of ratification of, on the question of
American nationality, §§ 37, 38; character
of, as regarded by the Conventions called
to ratify it, § 42; opinion of Patrick Henry
as to its character, § 12; opinion of Mr.
Taylor of North Carolina, § 42; forms part
of the Constitutions of the several States,
$92; is supreme, §§ 93, 94; should be kept
independent of those of the States, § 95;
opinion of Mr. Webster on the point, § 95;
distinction between a, and an ordinary
municipal law, §§ 85-87; the term, how
used in this treatise, § 103; may become
valid, though the Convention which framed
it is illegitimate, § 124; the first New Hamp-
shire, formation of, § 131; the New Hamp-
shire, of 1783, formation of, § 132; the first
South Carolina, § 133; the South Carolina,
of 1778, formation and character of, § 136:
the first American, by whom framed, § 138,
note 1: the Virginia, of 1776, validity of,
considered, § 138, note 2; the New York,
of 1777, character of, § 152; the Vermont,
of 1777, character of, § 154; attempts of
the General Assembly to give validity to,
§ 154; the, framed by the Federal Conven-
tion of 1787, character of, § 166; the Ken-
tucky, of 1792, formation of, §§ 173, 174;
the Maine, of 1819, formation of, §§ 175-
177; the West Virginia, of 1863, formation
of, §§ 181, 182; the Tennessee, of 1796, for-
mation of, §§ 190-197; signing of a, by
members of a Convention, § 304; Federal,
power of Conventions, as legislatures, to
ratify proposed amendments to, § 447;
Trial of the, by Fisher, quoted as to the
inadequacy of the provision of the Federal
Constitution for its own amendment, § 543,
note; extent to which a new repeals an
old, in the absence of repealing clauses,
§ 574 i; question whether principles as to
amending a State apply also to the Fed-
eral, § 575; when an amendment to the
Federal, proposed by Congress, has been
passed upon by a State, can its action be

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