"A frequent recurrence to fundamental principles is
absolutely necessary to preserve the blessings of liberty."
Copyright, 1917,
By LITTLE, BROWN, AND COMPANY.
All rights reserved.
Published, June, 1917
Printers
8. J. PARKHILL & CO., BOSTON, U.S.A.
TO ELVA STUART HOAR
Rendered into HTML and text by Jon Roland of the Constitution Society
THE impendency of constitutional conventions in Illinois, Indiana, Massachusetts, Nebraska and New Hampshire, has stirred up a vast amount of legal and lay discussion as to the nature and powers of such bodies. The Illinois, Nebraska and New Hampshire conventions are expressly authorized by the constitutions of those States. But the Indiana and Massachusetts conventions, not being so authorized, are generally regarded as being revolutionary, and are considered by many to be wholly unconstitutional and void.
Where can one turn for authoritative information on these questions? The only treatise exclusively on Constitutional Conventions is the one by Judge Jameson, published in 1867, and to some extent revised in 1887. Even in its day, this book was rendered less valuable by the fact that it was written to support a preconceived theory, in the interests of which theory Judge Jameson freely distorted both law and facts.1 To-day this book is obsolete (most of the judicial decisions on the subject being since 1887), and is out of print.
The fact that there is no modern or even ancient accessible work on the nature and powers of constitutional conventions, has led me to attempt to fill the gap with the present book, which represents no preconceived theory, but rather merely an impartial collection of all the available law and precedent.
The best modern treatment of the subject is contained in Dodd's "Revision and Amendment of State Constitutions" (1910), which however is written more from an historical than from a legal point of view, and which deals chiefly with methods of constitutional amendment, other than the convention method. I am greatly indebted to this work. Jameson's book also has been constantly before me, and much that is still valuable therein has been used.
But, in the main, I have consulted original sources themselves, rather than any author's interpretation of them. For the texts of the various constitutions themselves, I have used Thorp's compilation which was published by Congress in 1909.
My two colleagues on the Commission to Compile Material for the Massachusetts Convention of 1917, namely, Professor William B. Munro2 of Harvard University and Lawrence B. Evans, Esq.,3 of the Boston Bar, also Honorable Robert Luce4 and my wife, have very kindly read my manuscript and have aided me with many valuable suggestions.
ROGER SHERMAN HOAR.
MAY 1, 1917.
1. "Judge Jameson's work constructed a theory regarding constitutional conventions, which conformed more or less closely to the facts, but in which the facts were subordinated to the theory." Dodd, p. vi. But Jameson, speaking from the grave as it were, in reply to Dodd and the present author, says: "which, in substance, is an intimation that this work is what the Germans call a tendenz work, written to maintain a particular thesis, the subordination of the Constitutional Convention to the law of the land. ... what work upon history or constitutional law was ever written which was not a tendenz work in the same sense; that is, written from some special point of view to establish truths, of which the author is strongly convinced, and to refute errors deemed dangerous, and, if not combatted, likely to prevail?" Jameson, pp. 656-657.
2. Head of the department of government at Harvard; author of several well known works on Canadian and Municipal Government.
3. Author of "Leading Cases on American Constitutional Law," and other legal and historical works.
4. Creator of the Massachusetts direct primary system. Former Lieutenant Governor of Massachusetts.
Introduction, by Jon Roland.
THE ORIGIN OF CONVENTIONS
The four sources of the American theory of constitutions; the first American constitutions; the birth of the convention idea (Massachusetts, New Hampshire, and Federal); provisions for amendment in early constitutions; the development of the three methods now in use.
FUNDAMENTAL PRINCIPLES
Popular sovereignty; representative government; delegated powers; the right to change government; three methods of exercising this right; the electorate as a representative body; factional conventions; ingenious theories as to who are the people; classes of constitutional cases; a "state of nature."
ANALYSIS OF QUESTIONS
The meaning of "constitutional"; other definitions; the three classes of conventions; authorized conventions; popular conventions; spontaneous conventions; the nature of conventions; the relative powers of departments of government; a forecast of this book.
POPULAR CONVENTIONS ARE LEGAL
The status of conventions, when not mentioned in the Constitution; instances in which they have been held; the Rhode Island doctrine; Attwill's theory; the Massachusetts theory; conventions valid even though expressly prohibited; perhaps popular in nature even when expressly authorized; the extraconstitutional nature of conventions.
WHO CALLS THE CONVENTION?
Who enacts the convention act; under the Initiative; when authorized by the constitution; when the legislature calls an unauthorized convention; when the legislature submits the question to the people; even when the people merely elect the delegates; legislative statute; the need of legislative assistance; the desirability of dispensing with it.
LEGISLATURES AS CONVENTIONS
In Indiana they cannot so act; in North Dakota they can; comparison of the two views.
EXECUTIVE INTERVENTION
The convention a fourth branch of the government; interference by State executive veto in constitutional cases; in extraconstitutional cases; by Federal executive; intervention to suppress; intervention to assist; executive recognition; interference with pending convention.
THE CONVENTION ACT NOT AMENDABLE
Questions involved; the validity of the legislation; who enacted the convention act; if the legislature enacted, they can amend it; if the people enacted, the legislature cannot amend it; but legislatures have done so on occasions.
LEGISLATIVE CONTROL
Five methods of control; depends on who passed the act; cross-references on powers of the convention; probably no right to restrict; instances of successful restriction; instances of unsuccessful restriction; the doctrine of reasonable restrictions; abolition of the convention; indirect interference; recognition and non-recognition.
POPULAR CONTROL
Depends on who passed the act; the people can control; the people can amend, if they passed the act; if the legislature passed the act; in cases of doubt; abolition of the convention; instructions to delegates.
EXTRAORDINARY POWERS CLAIMED
Convention sovereignty; certain conventions not precedents; interference with the executive; power to legislate; legislation under the guise of constitutional amendment; submission of legislation to the people; incidental legislative powers; powers granted by United States Constitution to legislatures; complete usurpation of powers.
JUDICIAL INTERVENTION
In proceedings under constitution; in extraconstitutional proceedings; when still pending; when completed; internal convention affairs; a political rather than judicial question; interference with usurped powers; judicial assistance; judicial advice.
DOES THE CONSTITUTION APPLY?
Cannot prevent the convention; constitutional provisions directory; mandatory if adopted by the people; constitution not applicable even to constitutional proceedings; Federal. Constitution applicable.
INTERNAL PROCEDURE
Judge of own elections; filling vacancies; expulsion of members; hall; officers; rules; committees; supplies; records; printing; maintenance of order; binding the State's credit; reconvening to codify the amended constitution.
STATUS OF DELEGATES
Are they public officers? precedents on oaths; anomaly of oath of members; of assisting officers; privileges and immunities of individual delegates.
SUBMISSION OF AMENDMENTS
History; necessity when required by constitution; when required by act; when not required; can legislature change time? can convention change time? separate submission; enlarged or reduced electorate; methods of submission.
THE DOCTRINE OF ACQUIESCENCE
Lapse of time; government acquiescence; popular acquiescence; in constitutional cases; in extraconstitutional cases; does not validate the means.
CONCLUSIONS
History; fundamentals; legality and source of conventions; amending the convention act; executive intervention; control of the convention; convention sovereignty; judicial intervention; the constitution; conduct of the convention; consent of the governed.
Armstrong v. Berkey, 23 Okla. 176 ...... 149
Atty. Gen. v. Tillinghast, 203 Mass. 539 ...... 187
Birmingham Ry., Ex parte, 145 Ala. 514 ...... 122, 129, 141, 145
Bott v. Secy. of State, 62 N. J. L. 107 ...... 206, 218
Bradford v. Shine, 13 Ha. 393 ...... 52, 131, 144
Bragg v. Tuffts, 49 Ark. 554 ...... 142
Brittle v. People, 2 Neb. 198 ...... 79, 158, 215
Carton v. Secy. of State, 151 Mich. 337 ...... 63, 90, 92, 107, 112, 134, 163, 198
Chicago v. Reeves, 220 Ill. 274 ...... 83
Collier v. Frierson, 24 Ala. 100 ...... 40, 150, 151
Commonwealth v. Griest, 196 Pa. 396 ...... 81
Commonwealth v. Kimball, 24 Pick. 359 ...... 25
Cranmer v. Thorson, 9 S. D. 149 ...... 153
Cummings v. Missouri, 4 Wall. 277 ...... 207
Denny, Re, 156 Ind. 104 ...... 150
Duncan, Re, 139 U. S. 449 ...... 25
Durfee v. Harper, 22 Mont. 354 ...... 149
Ellingham v. Dye, 178 Ind. 336 ...... 14, 42, 48, 64, 68, 74, 80-85, 87, 129
Foley v. Dem. Com., 70 So. 104 ...... 162, 218
Franz v. Autry, 18 Okla. 561 ...... 142, 152, 153
Gibbes v. Railroad, 13 S. C. 228 ...... 141, 145
Goodrich v. Moore, 2 Minn. 61 ...... 23, 179
Green v. Shumway, 39 N.Y. 418 ...... 205
Grigsby v. Peak, 57 Tex. 142 ...... 146
Hatch v. Stoneman, 66 Cal. 632 ...... 150
Holmberg v. Jones, 7 Ida. 752 ...... 149
Kamper v. Hawkins, 3 Va. 20 ...... 3, 27, 28, 39, 66
Knight v. Shelton, 134 Fed. 423 ...... 161
Koehler v. Hill, 60 Ia. 543 ...... 149, 157, 158, 215
La. Ry. v. Madere, 124 La. 635 ...... 122, 124, 190
Linde v. Robinson, 160 N.W. 512 ...... 215
Livermore v. Waite, 102 Cal. 113 ...... 83, 84, 150
Loomis v. Jackson, 6 W. Va. 613 ...... 69, 158, 215
Luther v. Borden, 7 How. 1 ...... 94, 101, 157, 158, 162, 215
McBee v. Brady, 15 Ida. 761 ...... 149
McConaughty v. Secy. of State, 106 Minn. 392 ...... 149
McCready v. Hunt, 2 Hill Law 1 ...... 12, 63, 72, 121, 124, 135, 136, 137, 160
McCulloch v. Maryland, 4 Wheat. 316 ...... 39
McMullen v. Hodge, 5 Tex. 34 ...... 133
Miller v. Johnson, 92 Ky. 589 ...... 112, 156, 183, 195, 215
Nesbit v. People, 19 Col. 441 ...... 214
Opinion of Mass. Justices, 1917 ...... 50, 66, 99, 164, 167
Opinion of N. Y. Justices, unreported. ...... 56, 99, 116, 164
Opinion of Justices, 3 Pick. 517 ...... 172
Opinion of Justices, 6 Cush. 573 ...... 44, 45, 46, 64, 123, 164, 198, 199, 217
Opinion of Justices, 115 Mags. 602 ...... 209
Opinion of Justices, 136 Mass. 578 ...... 209
Opinion of Justices, 160 Mass. 586 ...... 64
Opinion of Justices, 76 N. H. 586 ...... 33, 164
Opinion of Justices, 76 N. H. 612 ...... 138, 164, 197
Opinion of Justices, 14 R. I. 649 ...... 15, 33, 43, 46, 47, 49, 56, 57, 198
Pac. States Tel. Co. v. Oregon, 223 U. S. 118 ...... 119, 162, 169
Paving Co. v. Hilton, 69 Cal. 479 ...... 149
Paving Co. v. Tompkins, 72 Cal. 5 ...... 149
People v. Curry, 130 Cal. 82 ...... 149
People v. Loomis, 135 Mich. 556 ...... 149
People v. Militzer, 272 Ill. 387 ...... 210
People v. Strother, 67 Cal. 624 ...... 149
Plowman v. Thornton, 52 Ala. 559 ...... 141
Quinlan v. Houston Ry. Co., 89 Tex. 356 ...... 144, 145, 146
Reliance v. Prison Com., 161 Ky. 135 ...... 12
Richards v. Whisman, 36 S.D. 260 ...... 100
Ridley v. Sherbrook, 43 Tenn. 569 ...... 94
Schertz v. Bank, 47 Ill. App. 124 ...... 143
Scown v. Czarnecki, 264 Ill. 305 ...... 210
Senate File, Re, 25 Neb. 864 ...... 149
Smith v. Good, 34 Fed. 204 ...... 161
Sproule v. Fredericks, 69 Miss. 898 ...... 90, 134
State v. Am. Sugar Co., 137 La. 407 ...... 40, 65, 68, 70, 123, 167
State v. Brookhart, 113 Ia. 250 ...... 149
State v. Brooks, 17 Wyo. 344 ...... 150
State v. Capdevielle, 104 La. 561 ...... 70, 122
State v. Cox, 3 Eng. 436 ...... 82
State v. Dahl, 6 N.D. 81 ...... 40, 48, 63, 67, 87, 93, 163
State v. Davis, 20 Nev. 220 ...... 149
State v. Favre, 61 La. Ann. 434 ...... 73, 167
State v. Neal, 42 Mo. 119 ...... 146, 207
State v. Powell, 77 Miss. 543 ...... 149
State v. Swift, 69 Ind. 505 ...... 149
State v. Tooker, 15 Mont. 8 ...... 149
State v. Tufly, 19 Nev. 391 ...... 149
Taylor v. Beckham, 178 U. S. 548 ...... 25
Taylor v. Commonwealth, 101 Va. 829 ...... 104, 112, 156, 199, 215
Thomasson v. Ruggles, 69 Cal. 465 ...... 149
Wells v. Bain, 75 Pa. 39 ...... 16, 17, 19, 24, 28, 32, 72, 74, 75, 76, 90, 109, 117, 136, 137, 152, 160, 165, 170, 195, 213
Weston v. Ryan, 70 Neb. 211 ...... 214
Williams v. Suffolk Ins. Co., 3 Sumner 220 ...... 157
Wood's Appeal, 75 Pa. 59 ...... 19, 73, 110, 111, 121, 124, 129, 136, 152, 155, 159, 162
Woods v. Wobum, 220 Mass. 416 ...... 210
Young v. Duncan, 218 Mass. 346 ...... 210
"Columbia Dig."; "Index-Digest of State Constitutions." Prepared by Columbia University, and published by the New York Constitutional Convention Commission, 1915.
Dodd: "The Revision and Amendment of State Constitutions." Walter Fairleigh Dodd. Johns Hopkins Press, Baltimore, 1910.
Holcombe: "State Government in the United States." Arthur Norman Holcombe. Macmillan Co., 1916.
Jameson: "Constitutional Conventions." John Alexander Jameson. Fourth edition. Callaghan & Co., Chicago, 1887.
"N. Y. Revision of Consts."; "Revision of the State Constitution." Published by the New York Constitutional Convention Commission, 1915.
Thorpe: "Federal and State Constitutions." Francis Newton Thorpe. 7 vols. Government Printing Office, Washington, 1909.
"Trial of Dorr"; "Trial of Thomas Wilson Dorr for Treason." George Turner and W. S. Burges. B. F. Moore, Printer, Providence, 1844.
ACQUIESCENCE, doctrine of, 214-219; does not validate means, 218-219.
Alabama, constitution of 1901, 113; convention of 1865, 141; convention of 1867-68, 141; convention of 1901, 111, 112-113; conventions freed from legislature, 107; conventions held lawful in, 40.
Amendment, legislative method of, 82-85, 107, 149-150; of constitutions, 8-10; of convention acts by electorate, 125; of convention acts by legislature, 97-104; of initiated acts by legislature, 99-100; set aside by judiciary, 149-150, 153-158, 160-162; specific and particular, 198-200; time of, taking effect, 197; validity of, a political question, 162-163; validity of, determined by Congress, 119; validity of, determined by Governor, 93-94; validity of, determined by legislature, 118; validity of, determined by President, 94-96.
Analysis of questions, 33-37.
Anglo-Saxon origin of constitutions, 1.
Annapolis convention, 7.
Appropriation of money by convention, 177, 178.
Arizona, constitution of 1910, 193.
Arkansas, constitution silent on conventions, 9, 41; convention of 1868, 207; convention of 1874, 39; conventions in, 41; poll tax amendment of 1892, 161.
Arrest, delegates free from, 191-192.
Articles of Confederation, United States Constitution violates, 39, 49.
Attwill, Atty. Gen., opinion of, on constitutionality, 43-45; opinion of, on status of delegates, 186-187.
Authorized conventions, constitution may be disregarded by, 48, 51-52, 60; made independent of legislature, 76-77, 106-108; perhaps popular in nature, 50; provisions for calling, 58-60; veto cannot block, 91-92.
"Authorized procedure" defined, 15.
BANKS, NATHANIEL P., Louisiana convention of 1864, 182.
Berlin controversy, 102-103, 171-172.
Bills of Rights, do not "authorize" popular conventions, 45, 53; quotations from, 13-15.
Braxton, object of his article, 128.
Buchanan, President, Lecompton controversy, 103, 116, 196.
Butler, Benjamin F., views on convention sovereignty, 133; views on revolution, 32-33.
CALIFORNIA, convention of 1849, 175, 187.
Calling of convention, by initiative, 58; by legislature, 60, 66-68; by people, 58-60, 69-74.
Choate, Rufus, views on convention act, 71.
Classes of, constitutional cases, 26; conventions, 33-35, 54.
Codification of constitution, 182-184.
Colonies, early constitutions of the, 3-8; early legislatures of the, 2-3.
Committees of convention, 174-177.
Concord, Mass., invented the convention, 7.
Congress, on validity of State convention, 118-119; on validity of territorial convention, 119; ratification of territorial convention by, 20-21, 79; restraint of territorial convention by, 111.
Connecticut, charter legislature continued in, 3; charter until 1818 in, 2, 4; constitution of 1818, 193; constitution silent on conventions, 9, 41; convention of 1818, 39; convention of 1902, 40; conventions in, 41.
Constitution, British, 1.
Constitution, United States, binding on conventions, 132, 168-169; destroys right of revolution? 15, 168; distinction between State and, 25-26; duties assigned to legislatures, 147, 169; origin of, 7-8; ratification of, 7, 8; republican government guaranteed by, 11, 95-96; two methods of amending, 9, 10; unauthorized by the State Constitutions, 39; violation of Articles of Confederation, 39, 49.
Constitutional, cases neither, nor unconstitutional, 26; definition of, 25-26, 30; four classes of, cases, 26.
Constitutional convention, appropriation of money by, 177, 178; calling of, by legislature, 60, 66-68; calling of, by people, 58-60, 69-74; classes of, 33-35, 54; codification of constitution by, 182-184; committees of, 174-177; congressional interference with, 118-119; constitution cannot prohibit, 39-43, 48-49; contempt powers of, 180-182; contested elections in, 170-171; delegates are not "officers," 185-187; development of, in Delaware, 4; development of, in Massachusetts, 4-5, 6, 7; development of, in New Hampshire, 6-7; dissolution of, by legislature, 115-116; election of members of, 170-171; executive interference with, 91-96; extraordinary powers claimed by, 128-141, 158-160; Federal Constitution binding on, 168-169; filling vacancies in, 171-173; fourth branch of government, 89-91, 160; idea of a separate, 4, 6, 7; incidental legislative powers of 146-147; interference with, in general, 89-91; internal procedure of, 170-182, 187-190; judicial advice to, 163-164; judicial aid to, 163; judicial interference with, 150-153, 158-160; legislation by, 139-147; legislative control of, 105-116, 120-122, 123; legislative duties of, under U. S. Constitution, 147, 169; legislative interference with, 116-118; legislative nature of, 81, 90; legislature as a, 4, 79-88; no constitutional provisions for, in twelve States, 41; oaths of members of, 108-109, 187-191; officers of, 173; order maintained by, 180-182; origin of, 1-8; popular control of, 120-127; provisions for, in early constitutions, 8-9; provisions for, in later constitutions, 9-10; printing for, 179-180; privileges of members of, 191-192; records of, 178-179; resignation of delegates, 126; rules of, 173-174; sergeant-at-arms of, 173, 180; supplies for, 178; term not felicitous, 30; usurpation of powers by, 148-149; vacancies in, 171-173; vacating of offices by, 138-139; validity of, a political question, 162-163; validity of, determined by Congress, 119; validity of, determined by Governor, 93-94; validity of, determined by legislature, 118; validity of, determined by President, 94-96. (See also AUTHORIZED, POPULAR, and SPONTANEOUS CONVENTIONS.)
Constitutions, Anglo-Saxon origin of, 1; cannot prohibit convention expressly, 48-49; cannot prohibit convention impliedly, 39-43; codification of, 182-184; Colonial, 3-8; conventions not mentioned in, of twelve States, 41; delegates not officers under, 185-187; four elements of, 2; framed by legislature, 3, 79-88, 202; legislative acts of the people, 80; not applicable to conventions, 50-52, 165-168; setting aside of, by judiciary, 149, 153-158; validity of, a political question, 162-163.
Contempt powers of conventions, 180-182.
Contested elections, 170-171.
Convention acts, amendable by people, 125; derive force from legislature, 70-72; derive force from people, 69-70, 71; if legislative, not binding, 106-116; if popular, binding, 120-125; Indiana, 1917, not submitted, 67-68; legislature cannot amend, 97-104; not ordinary legislation, 62-65, 80-83; passed by legislature alone, 66-68; people employ legislature to pass, 73-74, 100; reasonable restrictions in, 114; repeal by legislature, 115-116; should be submitted to people, 66-68; veto of, by Governor, 91-93.
Conventions (see AUTHORIZED, CONSTITUTIONAL, POPULAR, and SPONTANEOUS CONVENTIONS).
Convention sovereignty, asserted, 131-134; denied, 135-138; development of theory of, 134-135; instances of, 138-141; judicial interference, 158-160; mere oratory, 135; not suited to peaceful times, 128-129; secession caused by? 134.
DALLAS, GEORGE M., views on sovereignty, 131-132.
Declaration of Independence, 12, 26-27.
Delaware, charter legislature continued in, 3; constitution of 1776, 48; constitution of 1796, 9, 12, 59; convention of 1791, 40, 49; convention of 1852, 40, 47, 51, 166; first regular convention? 4.
Delegates, abler men than legislators, 113; contested elections, 170-171; filling vacancies, 171-173; freedom from arrest, 191-192; instructions to, 126-127; newspapers for, 178; not "officers," 185-187; oaths of, 108, 109, 187-191; pay of, increased by convention, 111; privileges of, 191-192; punishment of, for contempt, 180-181; resignation of, 126; stationery for, 178; status of, 185-192.
Dissolution of convention, by legislature, 115-116.
Divine right, 120.
Dog, Story of disobedient, 50.
Dorr's Rebellion, 21-22, 95, 134, 217; Federal court does not interfere, 162; influence of, on R. I. court, 57; report on, 23; reason for failure of, 76.
ELECTION, conduct of, by convention, 212-213; voluntary, ineffective, 19-20; of delegates, 170-171; electors can speak only at authorized, 18-20.
Electorate, call of convention by, 58-60, 69-74; can speak only at authorized election, 18-20; constitutional qualifications not binding, 205-212; opinion of Massachusetts court, 208-210; representative nature of, 16-18; submission to enlarged or reduced, 205-212; U. S. Constitution provisions, 169, 212.
Ex necessitate, 47, 100.
Ex post facto, 169.
Executive intervention, 91-96. (See also under GOVERNOR, PRESIDENT.)
Expressio unius est exclusio alterius, 43, 49, 210.
Extra-constitutional conventions, 55-56.
Extra-legislative power to submit act, 62-65, 80-83; does not exist under the initiative, 100.
Extraordinary powers claimed by convention, 128-141, 158-160.
FACTIONAL convention (see SPONTANEOUS CONVENTION).
Federal Constitution (see CONSTITUTION, U. S.).
Federal judiciary, Dorr's Rebellion, 162; interference with State amendments, 161-162.
Florida, constitution of 1865, 144; convention of 1865, 48, 52, 130-131.
Four branches of government, 89-91, 160.
Fundamental principles, 11-29.
GEORGIA, constitution of 1776, 4, 8; constitution of 1777, 4, 13; constitution of 1789, 193; convention of 1788, 48, 52, 111; convention of 1789, 111; convention of 1833, 39, 49, 108, 189; convention of 1839, 39, 49; convention of 1867, 181; conventions without popular vote, 60.
Governor, legislative powers of, 93; recognition of political change by, 93-94; requests Federal intervention, 95; vetoes the convention act, 91-93.
Greene, William B., views on revolution, 32.
ILLINOIS, convention of 1847, 132, 187, 204; convention of 1862, 108, 111, 132, 147, 182, 187, 188, 189, 204; convention of 1869, 108, 111, 176, 188, 207; partial suffrage in, 210.
Indiana, constitution silent on conventions, 9, 41; convention of 1850, 39, 41, 51, 166, 187; convention of 1918, 40, 42, 67-68, 201, 205, 211; conventions held lawful in, 42; disregard of people in, 67-68; legislative constitution in, 80; partial suffrage in, 210, 211.
Initiative and referendum, amendment by legislature, 99-100; call of conventions by, 58; constitution amendment by, 107; destroys legislatures' power to submit convention act, 100; States having, 9; veto not possible under, 91.
Instructions to delegates, 126-127.
Interference with convention, by Governor, 91-96; by judiciary, 150-153, 158-160; by legislature, 116-118; in general, 89-91.
Iowa, convention of 1857, 187, 188.
JAMESON, object of his book, 35, 97, 105, 128.
Johnson, Andrew, reconstruction conventions, 129-130.
Judicial, advice to convention, 163-164; assistance to convention, 163; control of convention, 150-153, 158-160; extension of own tenure, 214-215; fondness of own jobs, 157-158; setting aside convention's work, 153-158; suicide, 157-158.
KANSAS, convention of 1859, 207; Lecompton convention in, 103, 116, 196; Topeka convention in, 20.
Kentucky, constitution of 1792, 8; constitution of 1799, 59; constitution of 1850, 59; constitution of 1891, 59, 193; convention of 1849, 134, 187; convention of 1890, 112, 183, 195, 216.
LECOMPTON convention, 103, 116, 196.
Legislation, by convention, 139-147; convention act is not, 62-65, 80-83; incidental, by convention, 146-147; inserted in constitution, 142-144; valid though not submitted, 145-146; validation of, by people, 144-145.
Legislative interference, by inaction, 76-77, 116-117; with convention, 116-118.
Legislative method of amendment, growth of, 8-10; extra-legislative nature of, 82-85; judicial control of, 149-150; legislative control of, 107.
Legislative nature of convention, 81, 90.
Legislature, abdicates by calling convention? 73; agent for people, 73-74, 100; amendment of popular statutes by, 99-100; as a convention, 4, 79-88; assistance of, essential, 75, 117; control of conventions by, 105-116, 120-122, 123; constitutions framed by, 3, 79-88, 202; convention act cannot be enacted by, alone, 66-68; convention act not amendable by, 62-65, 80-83; delegation to, by popular vote, 73-74; delegates chosen by, 74; direction of popular control by, 123; dissolution of convention by, 115-116; has no inherent rights, 75; has power to assist people, 85; initiative deprives, of power, 100; powers ex necessitate, 47, 100; recognition of political change by, 118.
Lincoln, Abraham, dismembers Virginia, 95.
Livingstone, remarks on convention sovereignty, 131.
Louisiana, constitution of 1812, 59; constitution of 1913, 193, 218; constitution silent on conventions, 9, 41; convention of 1812, 187; convention of 1844, 187, 188, 207; convention of 1852, 39, 187, 207; convention of 1864, 182; convention of 1879, 40; convention of 1898, 40, 108, 141, 142, 147, 189; convention held lawful in, 40; conventions in, 41.
MAINE, codification of 1875, 168, 184; constitution of 1819, 193; conventions called without popular vote, 60.
Maryland, constitution of 1776, 4, 8, 12, 126; convention of 1776, 175, 187; convention of 1837, 20, 134; convention of 1850, 40, 49, 187; convention of 1864, 187, 207.
Massachusetts, charter of, 206; charter until 1780 in, 2, 4; constitution silent on conventions, 9, 41; constitution of 1780, 4, 6, 8, 12, 193, 203; convention of 1778, 4, 5, 175; convention of 1780, 175, 187, 206; convention of 1820, 40, 187, 203; convention of 1853, 40, 47, 102-103, 171-172, 187, 198, 210; convention of 1917, 40, 205; conventions in, 41; provincial congress of, 3, 5; qualifications of voters in, 206, 207-210; referendum in, 64.
Michigan, admission to statehood, 20; constitution of 1908, 77; convention of 1835, 207; convention of 1850, 187; convention of 1908, 111-112, 163, 176, 197, 204; conventions freed from legislature, 77, 106-107; legislative commission of 1873, 79; legislative submission in 1874, 202; partial suffrage in, 210.
Minnesota, convention of 1857, 179, 187, 188.
Mississippi, constitution silent on conventions, 9, 41; convention of 1890, 140, 142, 147; conventions in, 41.
Missouri, Civil War in, 129-130; constitution of 1875, 77; convention of 1845, 40, 187; convention of 1861, 40, 138-139; convention of 1865, 40, 138, 141, 146, 147, 207; convention of 1890, 40; conventions freed from legislature, 77, 106-107.
Morton, Marcus, views of, 47, 69, 196, 210.
"NATICK COBBLER," 102.
Nebraska, admission to statehood, 79; Governor of, blocks convention in 1903, 92; partial suffrage in, 210.
New Hampshire, constitution of 1776, 4, 6, 8; constitution of 1778, 193; constitution of 1784, 9, 12; constitution of 1792, 193; convention of 1778, 4, 6; convention of 1781-83, 4, 6; convention of 1791, 203; convention of 1850, 203; convention of 1889, 197; convention of 1912, 204; legislature thwarts people, 77; no legislative method in, 9.
New Hampshire Grants, resolutions of, 6, 7; origin of convention idea? 7.
New Jersey, constitution of 1776, 4, 8; constitution silent on conventions, 9, 41; convention of 1777, 175; convention of 1844, 40, 187, 206; conventions in, 41.
New Mexico, constitution of 1910, 193.
New York, constitution of 1777, 4, 8; constitution of 1846, 76; constitution of 1894, 76-77; convention act vetoed, 1820, 204; convention of 1801, 40; convention of 1821, 40, 131, 187, 193, 203, 206; convention of 1846, 40, 101-102, 203, 204; convention of 1867, 111, 197, 207; convention of 1894, 76, 117, 152-153, 170-171, 176; convention of 1915, 204; conventions freed from legislature, 76-77, 106-107; popular vote of 1886 thwarted, 76, 92, 117.
North Carolina, constitution of April, 1776, 4; constitution of Dec., 1776, 4, 8, 12; convention of 1835, 40, 108, 187, 189; convention of 1875, 108, 189.
North Dakota, constitution silent on conventions, 9, 41; conventions held lawful in, 40, 41; judges extend own tenure in, 214, 215; legislative constitution in, 85-88; opinion of attorney general of, 86-88; partial suffrage in, 210.
OATHS, by delegates, 108-109, 187-191; by State officers, 190; required by three constitutions, 189.
Officers, delegates are not, 185-187; of convention, 173.
Ohio, constitution of 1802, 59; convention of 1850, 126, 187, 188; convention of 1912, 176, 204; partial suffrage in, 210.
Oklahoma, constitution of, 143; territorial convention (1907), 141-142, 143, 152.
Order, maintenance of, 180-182; rules of, 173-174.
Oregon, convention of 1857, 204.
Origin, of constitutions, 1; of conventions, 1-8.
PARKER, JOEL, views on convention act, 70, 115.
Pennsylvania, constitution of 1776, 4, 8, 12; constitution of 1838, 109; constitution of, silent on conventions, 9, 41; convention of 1776, 175, 187; convention of 1789, 48, 51, 175, 187; convention of 1837, 40, 187, 203-204; convention of 1872, 40, 109, 111, 132, 151; conventions in, 41; theory of popular origin, 72-73.
People, amendment of convention act by, 125; can only speak through electors, 16-19; informing the, relative to changes, 213; instruction of delegates by, 126; right of, to change government, 12-16; submission of constitution to, 193-212; submission of convention act to, 59, 66-68, 74; who are the, 17-20, 23.
"People's Constitution," 21-22, 95.
Peters, Onslow, views on sovereignty, 132.
Philadelphia convention, 7-8.
Political question, determined by Governor, 94; determined by judiciary, 162-163; determined by President, 94-96.
Popular control of convention, 120-127; legislature can direct the, 123; valueless, 123.
Popular conventions, called by people, 61-71, 72-75; definition of, 38; ex necessitate, 47; extra-constitutional, 55-56; illegal, 43; legal though prohibited, 49, 55; legality of, 38-57; legislative assistance essential, 75; legislative control of, 108-116; legislative control of, not authorized, 45; not within legislative powers, 62-65; objections raised to, in, 42; revolutionary? 31-33.
Popular sovereignty, 11-15.
Popular vote, makes legislature agent, 73-79; for convention ratifies act, 61-72; for delegates ratifies act, 72-73.
President, interference with convention, 94-96. Printing for convention, 179-180. Privileges of delegates, 191-192.
RECONSTRUCTION CONVENTIONS, call of, not submitted to people, 67; no precedent for present ones, 129-130; submitted constitutions, 163. Records of convention, 178-179. Representative government, 11, 126. Republican form of government, 11, 95-96, 169. Resignation of delegates, 126. Restriction of convention, by legislature, 106-116; by people, 120-125; reasonable, 114. Revolution, definition of, 17, 31-33; right of, 15-16, 53, 168. Rhode Island, charter legislature continued in, 3; charter until 1842, 2, 4; constitution silent on conventions, 9; convention of 1824, 40; convention of 1832, 40; convention of 1841, 40, 206; convention of 1842, 40, 206; conventions illegal in, 9, 41; Dorr's Rebellion in, 21-22, 95, 134, 217; legislative constitutions rejected, 79, 202; partial suffrage in, 210; "People's Constitution" in, 21-22, 95; prohibition amendment of 1866, 161; submission of constitutions in 1898 and 1899, 79; submission of question in 1853, 41.
Right to change government, 12-15; destroyed by U. S. Constitution? 15; three methods of exercise, 15-16. Rules of convention, 173-174.
SECESSION CONVENTIONS, Call of, not submitted to people, 67; did not submit constitutions, 163; no precedent for modern ones, 129-130. Sergeant-at-arms, 173, 180.
Shaw, Lemuel, distinction between State and U. S. constitutions, 25.
Singleton, General, views on convention sovereignty, 132.
South Carolina, constitution of 1776, 4, 8, 12; constitution of 1778, 4; convention of 1790, 9, 40; convention of 1866, 145; convention of 1895, 140, 142, 147.
Specific and particular amendment, 198-200.
Spontaneous convention, depends on force, 23; examples of, 20-23; not valuable precedents, 34.
State of nature, suggested, 1; impossible, 26-28.
Submission, definition of, 31; by the people, 217; of amendments, electorate, 205-212; of amendments, form, 198-205; of amendments, method, 212-213; of amendments, necessity, 193-196; of amendments, time, 196-198; of call for convention, 59, 66-68, 74; separate, of amendments, 198-205.
Suffrage (see ELECTORS).
Supplies, purchase by convention, 178.
TENNESSEE, constitution of 1796, 59; constitution of 1865, 94; convention of 1796, 175, 187; convention of 1834, 187, 207; convention of 1870, 40.
Territory, admission to statehood, 15; ratification by Congress, 20-21, 79; restraint by Congress, 111; validity of convention determined, 119.
Texas, constitution silent on conventions, 9, 41; convention of 1845, 207; convention of 1868, 143; convention of 1876, 40; conventions in, 41.
Tyler, John, interferes in Rhode Island, 21, 95, 217.
UNCONSTITUTIONAL (see CONSTITUTIONAL).
United States, Annapolis convention, 7; Constitution (see CONSTITUTION, U. 8.); convention of 1787, 7-8, 175.
Usurpation by convention, 148-149.
VACANCIES, filling of, 171-173.
Validity of convention, a political question, 162-163; determined by Congress, 119; determined by Governor, 93-94; determined by legislature, 118; determined by President, 94-96; popular convention valid, 38-57.
Vermont, constitution of 1777, 8; constitution silent on conventions, 9, 41; convention of 1777, 175; convention of 1786, 7, 193; convention suggested in 1908, 41.
Veto, initiative and referendum not subject to, 91; of authorized convention act, 91-92; of popular convention act, 92-93.
Virginia, constitution of 1902, 156; convention of 1829, 40, 187, 207; convention of 1850, 40, 187, 207; convention of 1901, 103-104, 112, 189, 194; dismemberment of, 23, 95, 217; first legislature of, 3.
Voters (see ELECTORS).
WEBSTER, DANIEL, summary of fundamentals by, 24-25.
West Virginia, admission to Union, 22-23, 95, 217; convention of 1863, 207.
Wilson, Henry, in Massachusetts Convention, 1853, 102.
Wisconsin, convention of 1847, 187.
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