terms of the Acts under which it assembled to confine itself to the limits they prescribed. The majority of the Convention, however, resolved, in spite of those restrictions, to recommend a national government; but they did it on the ground of necessity, as the only hope left for preserving peace and the Union, and many of them despaired even then of preserving either the one or the other..

§ 384. Thus, in the debate on Mr. Randolph's plan, as contrasted with that reported by Mr. Paterson, known as the New Jersey plan, which proposed simply a modification of the existing Confederation, to the objection, that the powers of the Convention did not extend to the adoption of a national government, Mr. Randolph said:

"The resolutions from Virginia must have been adopted on the supposition that a Federal government was impracticable. And it is said that power is wanting to institute such a government; but when our all is at stake, I will consent to any mode that will preserve us."1 "There are reasons certainly of a peculiar nature when the ordinary cautions must be dispensed with; and this is certainly one of them. When the salvation of the Republic was at stake, it would be treason to our trust not to propose what we found necessary." 2

Mr. Mason "thought with his colleague, Mr. Randolph, that there were certain crises in which all ordinary cautions yielded to public necessity. He gave, as an example, the eventual treaty with Great Britain, in forming which the commissioners of the United States had wholly disregarded the improvident shackles of Congress; had given to their country an honorable and happy peace; and instead of being censured for the transgression of their powers, had raised to themselves a monument more durable than brass." 3

§ 385. On the other hand, Mr. Hamilton deemed the establishment of a national system to be within the scope of their powers under their credentials. In support of that view he said: “Let us now review the powers with which we are invested. We are appointed for the sole and express purpose of revising

1 Yates' Minutes, in Elliott's Deb., Vol. I. pp. 415, 416.

2 Elliott's Deb., Vol. V. p. 197. (Madison's Report.)
3 Id. p. 216.

the confederation, and to alter or amend it, so as to render it effectual for the purposes of a good government. Those who suppose it to be federal, lay great stress on the terms sole and express, as if those words intended a confinement to a Federal government, when the manifest import is no more than that the institution of a good government must be the sole and express object of your deliberations. . . . . . I have, therefore, no difficulty as to the extent of our powers."

In this construction of their credentials, however, Mr. Hamilton was alone, and, as we have said, it was conceded with almost perfect unanimity, both in the Federal Convention and in those held in the States to pass upon the Constitution framed by it, that in recommending that instrument, instead of merely proposing amendments to the Articles of Confederation, the delegates to the former had exceeded their powers.

§ 386. For the purposes of this inquiry, it is sufficient to note respecting the action of the Federal Convention in this case,—

1. That it is, at the worst, a case of refusal by a Convention to obey the instructions of the legislative authority by which it was convened, in relation to the scope and general character of the system it should mature; but,

2. That the Convention did not claim a right to disobey, to annul, or even to suspend the Acts under which it assembled; that, on the contrary, it admitted implicitly the binding force of those Acts, which yet it felt itself constrained by necessity to disregard. Admitting obedience to be due, it pronounced it under the circumstances to be impossible.

3. Finally, that whichever construction put upon the credentials of the Convention be the true one, that of Mr. Hamilton or that of Mr. Randolph and others, the action of that body is entitled to little weight as a precedent to establish the right of such a body to disobey the Act that convened it; for, on the construction of Mr. Hamilton, there was no disobedience, and on that of Mr. Randolph, the disobedience was confessed and regretted, but excused on the ground of necessity.

§ 387. The next case in which the question of the right of a legislature to bind a Convention by the Act calling it was considered was that of the North Carolina Convention of 1835, to which attention has already been called.

1 Yates' Minutes, in Elliott's Deb., Vol. I. pp. 417, 418.

By the Act of January 6, 1835, Secs. 12 and 16, it was provided that the Convention thereby called should frame and devise four amendments to the Constitution, namely, two to reduce the representation in the Senate and the House of Commons; one to change the qualifications of voters; and one to provide for making amendments to the Constitution. It then authorized the Convention, in its discretion, to propose sixteen other amendments specified, or any one or more of them. After providing for submitting such amendments as the body should propose to the people, the Act concluded by declaring that the Convention should not alter any other article of the Constitution or Bill of Rights, nor propose any amendments to the same, except those which were therein before enumerated. The 10th Section of the Act had provided that no delegate should take his seat in Convention until he should have taken an oath not to evade or disregard the duties enjoined, or the limits fixed to the Convention by that Act. A discussion arising, on the first assembling of the Convention, whether that body was bound by the Act to take the oath prescribed, it was contended by some that the legislature had no right to impose an oath, and that consequently they were not bound to regard the Act. It was also suggested that the Convention might go further and disregard the injunctions and limitations of the legislature in relation to the amendments it should propose, citing as authority for that view the alleged precedent, just commented upon, in the Federal Convention. Different counsels, however, at length prevailed. The Convention was reminded by the Hon. Mr. Gaston that it was only by obedience to the requirements of the Act in relation to the oath, that it could become organized. Without first having taken the oath, no member could take his seat; and having taken the oath, the limitations of the Act could not be disregarded without perjury. Unlike the Federal Convention, therefore, which was constrained by necessity to disobey the Acts under which it assembled, the North Carolina Convention was constrained by necessity to obey them, and bence the cases may be thought to be equally indecisive as precedents upon the question we are discussing.

§ 388. In 1833, a judicial opinion was delivered by the judges of the Supreme Court of Massachusetts, which has some bearing, perhaps, upon the question of the binding force of Acts of

Assembly upon Conventions. The facts of the case, as derived from the opinion, are, that the legislature of Massachusetts, having under consideration a proposition for calling a Convention to revise the Constitution, and desiring to limit the latter to particular amendments, entertained a doubt whether or not that body would be bound to respect the limits it should impose, and accordingly the House of Representatives requested the opinion of the Supreme Court upon the following question, namely, "Whether, if the legislature should submit to the people to vote upon the expediency of having a Convention . . . . for the purpose of revising or altering the Constitution of the Commonwealth in any specified parts of the same, and a majority of the people voting thereon should decide in favor thereof, could such Convention, holden in pursuance thereof, act upon and propose to the people, amendments in other parts of the Constitution not so specified?" Upon this question the Court said: "Considering that the Constitution has vested no authority in the legislature in its ordinary action to provide by law for submitting to the people the expediency of calling a Convention of delegates for the purpose of revising or altering the Constitution of the Commonwealth, it is difficult to give an opinion upon the question what would be the power of such a Convention, if called. If, however, the people should, by the terms of their vote, decide to call a Convention of delegates, to consider the expediency of altering the Constitution in some particular part thereof, we are of opinion, that such delegates would derive their whole authority and commission from such vote; and upon the general principles governing the delegation of power and authority, they would have no right, under such vote, to act upon and propose amendments in other parts of the Constitution not so specified." 1

§ 389. Whether the general idea contained in this opinion respecting the source of the validity of the supposed limitations upon the action of the Convention, namely, that it was to be sought alone in the vote of the people, be a correct one or not, will be the subject of consideration further on. Assuming for the present, however, that the idea was a mistaken one, and that those limitations derived their binding force from the Act of As1 Opinion of the Justices of the Supreme Judicial Court, etc., 6 Cush. R. 572; also of the Supreme Court of Rhode Island, 14 R. I. R. 649.

sembly either alone or in conjunction with the subsequent expression of popular approval, the Act being considered, in either event, as an act of ordinary legislation, the views expressed by the Court would seem to indicate that a Convention might be bound by an Act of a legislature. The Court affirm, that, in the case supposed, the Convention would not be competent to overpass the limits imposed by the vote of the people by which it was called; from that vote "they would derive," say they," their whole commission and authority;" "and upon the general principles governing the delegation of power and authority, they would have no right, under such vote, to act upon and propose amendments in other parts of the Constitution not so specified." But suppose it were demonstrated that the efficacy of the call, with its limitations, depended not on the vote of the people, but on the Act of the legislature, preceding and requiring such vote, can it be doubted that the Convention would be equally bound by it? The Act then 'would constitute its commission, the source from which all its authority would be derived; and the principles governing the delegation of power and authority would seem as much as ever to establish that, under such a law, it would have no right to act upon or propose amendments in other parts of the Constitution not specified in it. Nevertheless, it were well to determine, if possible, the true source of the validity of the call of a Convention made under such circumstances. Does it flow from the power of the legislature, or from the power of the people giving its sanction to what a legislature has recommended?

§ 390. This interesting and perplexing question has been the subject of extended discussion in several Conventions. It arose in New York, in 1846, upon the following facts. In 1845, the legislature of the State had passed an Act recommending to the people a Convention, and prescribing the manner in which it was to be elected and held. By this Act it was provided, that the people, at the fall election of that year, should pass upon the question of Convention or no Convention, and if they should decide for a Convention, that the delegates were to be chosen in April, 1846, and to assemble in June of the same year. It was also, by the seventh section, provided, that "the number of delegates to be chosen to such Convention shall be the same as the number of members of Assembly froin the respective cities and counties in this State."