S$ 270, 271; internal organization of, 272-284; officers of, § 274; should mem- bers of be sworn? form of oath, §§ 277- 283; rules for the government of, § 284: mode of proceeding of, §§ 285-304: em- ployment of committees in, §§ 285-294; standing committees of, § 295; powers of, $305-478; two theories as to powers of, $$ 307-310; theory of the sovereignty of, a novelty, §§ 311, 312; question of the sovereignty of, considered, §§ 315-319; powers of, with reference to the govern- ment of the state, as a whole, §§ 320-330; can they fill vacancies in the various gov- ernmental departments? §§ 325, 327-330; can they eject from office appointees of the government? §§ 325-330; can they direct governmental officers in the discharge of their duties? §§ 325, 326; powers of, with reference to the electors, §§ 331-364; can they disfranchise electors? $$ 335-337; can they fill their own vacancies? § 338; can they authorize the colleagues of de- ceased or resigning members to name their successors? § 339; can they issue precepts to the electors directing them to till vacan- cies? §§ 340-347; can the electors hold elections to fill vacancies in, at such time or manner as they may think fit? §§ 348, 349; can they receive as delegates, per- sons elected at a time or in a manner not provided by law? § 350; can they limit the discretion of the electors, or of the sovereign, in the discharge of their duties? §§ 351-362; can the electors instruct their delegates to? §§ 362-364; relations of, to the executive and judiciary, § 366; rela- tions of, to the legislature, and powers therefrom resulting, §§ 366-449; are but mere committees, § 367; structure and functions of, contrasted with those of legislatures, §§ 367-375; power of, to an- nul perfect rights, § 370, note 1; can legis- latures bind? §§ 376-418; conceding the power to bind, in what particulars may they do so? §§ 379, 380; precedents stated and considered, § 381; can they impose limitations as to the recommendations conventions shall or shall not make? pre- cedents stated, §§ 381 a, 382, 382 c; cases in which legislatures have given positive directions to frame certain specific amend- ments, §§ 382 a, 382 c; cases stated in which legislatures have prohibited, from recommending certain amendments, or to do certain acts, §§ 382 b, 382 c; cases in which power to bind, has been discussed in legislatures or conventions, §§ 383-387; question of power of legislatures to bind, passed upon by Supreme Court of Penn- sylvania, §§ 409 a-409 e; can legislatures bind, to submit the fruit of their labors to the people? §§ 410-418; do Conventions possess legislative powers? §§ 419-441; power of, to repcal ordinary laws, §§ 430- 434; power of, to appropriate money, $8 435-441 b; power of, to act as a legis- lature in matters required by the Federal Constitution to be transacted by the legis
latures of the States, §§ 442-447; as, to prescribe the times, places, and manner of electing senators and representatives in Congress, §§ 442-446; or to ratify pro- posed amendments to the Federal Consti- tution, § 447; power of, to fetter a discre- tion confided by the Federal Constitution to a State legislature, §§ 448, 449; power of, to prescribe what legislature shall pass upon an amendment to the Federal Con- stitution, proposed by Congress, § 449 a; or require state officers to take an oath to support the Federal Constitution? § 449, note; powers of, with reference to their internal relations, express and implied, §§ 450-470 a; powers of, with reference to their organization, to the maintenance of order, and to the conduct of their business, §§ 454-458; power of, to arrest or punish their own members or strangers, §§ 459- 470 a; privileges of members of, §§ 471, 472 a; power of, to prolong or perpetuate their existence, §§ 473-478; duty of, to submit their work to the people, in gen- eral, § 479; duty of, where neither the Convention Act nor the Constitution re- quires submission, §§ 480, 481; duty of, where submission is expressly required by law, §§ 482, 483; duty of, where submis- sion is by law expressly dispensed with, §§ 484-486; cases in which submission has been made by, stated, and observa- tions upon them, §§ 487-495, and notes; list of all that have been held in the United States, Appendix B, p. 643.
Corollaries, practical, relating to the exer- cise of sovereignty, § 25.
Council of Censors, a device for effecting the amendment of Constitutions more in- genious than useful, § 544.
Council of Revision, New York, opinion of, relating to the proper manner of calling a Convention, §§ 122, 484, 534, and Appen- dix F, p. 669. Counter- Revolutions, § 111.
Court, Supreme, of the United States, opin- ion of, bearing on the question of Ameri- can nationality, § 46; opinion of, bearing on the question whether the States were sovereign under the confederation, § 50; of South Carolina, as to the validity of the first two South Carolina Constitutions, § 136, note 2; of Michigan, and of Ohio, on the validity of the first Convention of Michigan, and of the government estab- lished thereby, $§ 207, and note 1, on p. 198; of the United States, on the same question, §§ 207, 208; do. on the validity of the "People's Constitution" and gov- ernment of Rhode Island, §§ 229-231; of New York, opinion of, on the question of the validity of the Act of Assembly modify- ing the Convention Act of 1845, Appendix D, p. 663; of Pennsylvania, on power of legislatures to bind Conventions, §§ 409 a- 409 c; of Illinois, opinion of, as to repeal- ability of an Act submitted to and adopted by the people, §§ 407, 408; of Delaware,
opinion of, relative to legislation by the people, § 418; of Illinois, decision of, re- specting the "Chicago Ordinance," § 432; of Arkansas, opinion of, respecting the extent of the power of a legislature to recommend amendments to a Constitu- tion, $$ 551-555; of Rhode Island, on the question of amending the Constitution, §§ 573, 574.
Dallas, George M., opinion of, as to the powers of Conventions, § 308. Davis, Henry Winter, speech of, on the Le- compton Convention, § 215. Debates, of Conventions, character of, § 457; provisions for preserving, § 275. Delaware, Convention of, 1776, §§ 141, 142 do. of 1831 and 1852, § 217, 218; do. of 1792, §§ 217, 219–225.
Delegates, to Conventions, who may be, §§ 267-269; can Conventions receive as, persons elected at a time or in a manner not provided by law? § 350. De Maistre, opinion of, respecting written Constitutions, § 78, note 1.
Democracies, Constitutions of, § 70. Dorr, Thomas W., elected Governor of Rhode Island by the "people's party," § 228.
Elections to fill vacancies in Conventions, when and how to be made, §§ 348, 349. Electors, the, one of the agencies through which sovereignty indirectly manifests it- self, § 24: relative rank of, § 24; impro- priety of leaving the duty of calling Con- ventions to, § 118; commonly the only constituents of Conventions, §§ 260-266; functions and relations to Conventions of the, §§ 314, 331-334, 364; powers of Con- ventions with reference to the, §§ 335-365; can Conventions disfranchise? §§ 335-337; can Conventions exercise the functions of, to elect delegates to fill vacancies in their own ranks, or authorize the colleagues of deceased or resigning members to fill them? §§ 338, 339; can Conventions issue precepts to the, directing elections to fill vacancies? §§ 340-347; can elections be held by the, at any time or manner they may think fit? § 348; can Conventions limit the discretion of the, in regard to the persons whom they shall or shall not elect to office? $$ 351-361; can the, instruct their delegates to Conventions? §§ 362-
England, enactment of Constitutions in, § 1.
Ewing, Thomas, speech of, on the Michi- gan Convention of December, 1836, § 205.
Executive, the, one of the agencies through
which sovereignty indirectly manifests
itself, §24: relative rank of, § 24; impro- priety of leaving the duty of calling Con- ventions to, § 120; relations of, to Conven- tions, § 366.
Executive act, the act of the people in passing upon a fundamental law, not an, $§ 510-513.
Expressio unius, &c., applicability of the maxim to the construction of Constitu- tions, §§ 572-574 c.
Federal, Convention of 1787, §§ 163-166; discussion in, as to binding force upon it- self of the acts under which it assembled, §§ 383-386.
Fisher, Trial of the Constitution, quoted, as to the inadequacy of the mode provided in the Federal Constitution for its own amend- ment, § 543, note.
Florida Convention, of 1838, §§ 188, 189, 210; do. of 1885, §§ 217, 218; do. of 1861, $§ 247-250; do. of 1865, §§ 250-258; do. of 1868, §§ 258 a-258 d.
Frame of Government, as a part of the American Constitutions, definition and contents of, §§ 100, 101.
France, enactment of Constitutions in. § 1. Frankland, State of, § 190.
Franklin, Benjamin, sketch of Articles of Confederation prepared by, § 159.
Gaston, the Hon. Mr., opinion of, as to the powers of the North Carolina Convention of 1835, § 387.
Georgia Convention, of 1776, § 147; do. of 1788, §§ 148, 149; do. of January, 1789, and of May, 1789, §§ 148, 149, 218; do. of 1795, 1798, and 1877. §§ 217, 218; do. of 1833 and 1839, §§ 217, 219; do. of 1861, §§ 247-250; do. of 1865, §§ 250-258; do. of 1867, §§ 258 a-258 d.
Government, leading principles of the American system of, 1; branches or departments of, by which sovereignty is indirectly manifested, § 24; relative rank of the various departments of, § 25; was that established by the Federal Constitu- tion a consolidated? §§ 42-45; opinion of Patrick Henry as to the character of the Federal, § 42; opinion of Mr. Taylor, of North Carolina, § 42; opinion of James Wilson, of Pennsylvania, § 42; defini- tion of a consolidated, § 43; of the United States, partly Federal, partly national, § 43; form of, in the colonies, in the early period of the Revolution, §§ 126, 127, 133, 137, 139, 143, 145, 146, 147, 150, 156; is the Convention a part of the system of? §320; are members of Conventions officers of? §§ 323-324; can a Convention appoint officers to fill vacancies in? §§ 325-330; can a Convention eject from office persons holding office under? §§ 325, 326; can a
Convention direct officers of, in the dis- charge of their duties? 325, 326; is an Act calling a Convention a government measure?§398; is a power to recommend amendments to a Constitution amongst the general powers of? § 555.
Grimke, Mr., of South Carolina, opinion of, quoted, § 48.
Hallett, B. F., argument of, in the case of Luther v. Borden, § 233; opinion of, re- specting the sovereignty of Conventions, §311; speech of, on the right of Conven- tions to issue precepts to the electors, § 344.
Hamilton, Alexander, opinion of, as to the powers and duty of the Federal Conven- tion, §§ 40, 385.
Henry, Patrick, opinion of, as to the loca- tion of sovereignty in the United States, § 42.
Holst, von, Professor, observations of the author upon a notice of this work in Sybel's Historische Zeitschrift, Appendix C, p.
Howe, Senator, opinion of, respecting the submission to the executive of amend- ments proposed by Congress to the Federal Constitution, § 559.
Howell, R. K., Judge, appointed president pro tem. of the Louisiana Convention of 1864, § 475.
Hurd, John Codman, opinion of, as to the location of sovereignty in the United States, § 60; on the distinction between Constitutions, as objective facts, and as instruments of evidence, § 63, note 1.
Illegitimate and revolutionary, distinction between, § 113.
Illinois, Convention of, of 1818, § 187; do. of 1847, and of 1862, §§ 217, 218; do. of 1862, form of oath administered to mem- bers of, §§ 282, 283; do. of 1862, charge against members of, of complicity with Knights of the Golden Circle, §§ 467, 468. Indiana, Convention of, of 1816, §§ 186, 187; do. of 1850, §§ 217, 219. Instructions, can the electors give, to their delegates to Conventions? §§ 362-364. Iowa, Convention of, of 1844, §§ 188, 189; do. of 1846, §§ 188, 189; do. of 1857, §§ 217, 218.
Jay, John, participation of, in the formation of the New York Constitution of 1777, §§ 151, 152.
Jefferson, Thomas, character of the Vir- ginia Convention of 1776, as given by, 138; opinion of respecting the repeal-
ability of the Virginia Constitution of 1776, § 138, note 2; opinion of, respecting the amendment of Constitutions, §§ 82, 535, note.
Johnson, Andrew, President, proclamations of, relating to the reconstruction of the seceded States, § 257.
Johnson, Reverdy, Senator, speech of, quoted, respecting the submission to the executive of amendments proposed by Congress to the Federal Constitution, § 560.
Judges, extra-judicial opinions of; weight to be given to, on Constitutional questions, Appendix E, p. 667.
Judicial act, the act of the people in pass- ing upon a fundamental law, not a, § 510. Judiciary, the, one of the agencies through which sovereignty indirectly manifests it- self, § 24; relative rank of, § 24; impro- priety of leaving to, the duty of calling Conventions, considered, § 119; relations of, to Conventions, § 366.
Kansas, Convention, of 1885 (Topeka), §§ 211, 212; do. of 1857 (Lecompton), §§ 213- 216; do. of 1858 (Leavenworth) and 1859 (Wyandotte), § 216; submission of Con- stitution of, of 1857, to the people, §§ 415, 416, 514-520.
Kent, James, Chancellor, opinion of, bear- ing on the question of American nation- ality, § 48.
Kentucky, erection of the District of, into a State; history of Convention of, of 1792, §§ 173, 174; Conventions of, of 1799 and 1849, §§ 217, 218; resolutions of, of 1798, §§ 47, 50.
Knights of the Golden Circle, charge of complicity with, against members of the Illinois Convention of 1862, §§ 467, 468.
Laboulaye, Edouard, extracts from article by, in Revue des Deux Mondes, on the constituent power (Du Pouvoir Constitu ant), Appendix A, p. 637. Law, fundamental, or Constitution, a funda- mental conception in this inquiry, § 17; fundamental and ordinary municipal, dis- tinction between, §§ 85-87; duty of leg- islatures to frame the municipal, and of Conventions to frame the fundamental, §§ 370-372; language of a, § 406.
Laws, power of Conventions to repeal ordi- nary, §§ 430-434.
Leavenworth Convention of Kansas, § 216. Lecompton Convention of Kansas, history and character of, §§ 213-216; Constitution, submission of, to the people, §§ 517–520. Legislation, various kinds of, how effected here and in other countries, § 1; are acts calling Conventions properly acts of ordi- nary? §§ 404-409; the act of the people
in passing upon a fundamental law an act of, § 513. Legislative powers, do Conventions pos- sess? §§ 419, 441 6.
Legislature, the, or General Assembly, de- scribed, § 6; one of the agencies through which sovereignty indirectly manifests it- self, § 24; relative rank of, § 24; the proper body to call Conventions, §§ 121, 394-396; relative numbers constituting the, in Eng- land and the United States, § 121; of Vir- ginia, of May 6, 1862, validity of, §§ 183- 185; relation of Conventions to the, and their powers resulting therefrom, §§ 366- 418; structure and functions of the Con- vention contrasted with those of the, §§ 367 -375; can the, bind the Convention? §§ 376 -418; limits of the power of the, to restrict the Convention in general, §§ 379-382; power of the, to dictate to the Convention what it shall or shall not recommend, §§ 381, 382; question discussed in various Conventions, §§ 383-387; where Acts of the, which have been voted on by the peo- ple, are conceded to bind the Convention, source of their validity, $$ 389-409; can the, bind the Convention by its Acts to submit the fruit of its deliberation to the people, §§ 410-418; can a Convention act as a, in matters by the Federal Constitu- tion required to be transacted by the legis latures of the several States? §§ 419, 442, 447; can a Convention prescribe the times, places, and manner of electing Senators and Representatives in Congress? §§ 442- 446; can a, as a legislature, ratify pro- posed amendments to the Federal Consti- tution? § 447; a State, power of a Con- vention to fetter a discretion confided to, by the Federal Constitution, §§ 419, 448- 449; can a Convention prescribe what State, shall act upon an amendment to the Federal Constitution proposed by Con- gress? § 449 a; where amendments to a Constitution are recommended by a, na- ture of its act, §§ 547-550; extent of the power of a, to recommend amendments to a Constitution, §§ 551-555; where amend- ments are recommended by a, should they be submitted to the executive for ap- proval, §§ 556-562; where a State has once rejected amendments proposed by Con- gress to the Federal Constitution, can it or its successor reconsider them? § 563. Legitimacy, the term defined and illus- trated, §§ 105-108.
Lex Parliamentaria, how far the, prevails in Conventions, § 459.
Limitation of time, is there a, applicable to amendments proposed by Congress to the Federal Constitution? §§ 585-586. Lincoln, Abraham, President, proclamation of, of December 8, 1863, relating to the re- construction of the rebel States, § 255. Location of sovereignty theoretically con- sidered, § 21; considered with reference to historical facts in the United States and in foreign countries, §§ 26, 27; as indi- cated by Austin's marks or tests, § 28; as
indicated by the additional marks laid down herein, § 29; as determined by the exercise of sovereignty, §§ 56, 57. Louisiana, Convention of, of 1811, §§ 187- 189; do. of 1844, §§ 217, 218; do. of 1852 and 1879, §§ 217, 219; do. of 1864, §§ 250- 258; do. of 1867, §§ 258 a-258 d; case of arrest by, of 1864, §§ 469-470 a; reassem- bling and disposal of, §§ 474-477. Lowndes, Rawlins, connection of, with the formation of the South Carolina Constitu- tion of 1778, § 136.
Madison, James, opinion of, as to the func tions and duties of the Federal Conven- tion, § 40; do. on the question whether the States were ever sovereign, § 49; as to the powers of Conventions, § 309.
Maine, erection of, into a State; Convention of, of 1819, §§ 175-177.
Maine, Henry Sumner, on ancient law, quoted, § 66.
Manifestation of sovereignty, modes of, §§ 23, 24.
Marks or tests of sovereignty, Austin's, § 19; additional, laid down herein, § 20. Martindale, J. H., Attorney-General of New York, opinion of, as to the power of Conventions to appropriate money, § 441 a. Maryland, Convention, of 1776, § 145; do. of 1864 and 1867, §§ 217, 218; do. of 1850, §§ 221-225; revolutionary movement in, in 1837, §§ 204, 224.
Mason, George, opinion of, as to the powers of the Federal Convention, § 384. Massachusetts, Revolutionary Convention in, in 1689, §§ 9, 10; first government of, independent of the crown, § 127: Conven- tion of, of 1778, § 156; do. of 1779, §§ 157, 158; do. of 1820, §§ 217, 218; do. of 1853, §§ 217, 219; consent of, to the erection of the District of Maine into a State, § 176; opinions of judges of the Supreme Court of, on question of amending Constitution, §§ 573, 574.
May, Thomas P., arrest of, by the Louisi- ana Convention of 1864, §§ 469, 470. McLean, John, Justice, dissenting opinion of, relating to the State government of Michigan, framed in 1835, § 208. Meeting, Public, or Spontaneous Conven- tion, §§ 4, 5.
Members of Conventions, who may be, §§ 267-269; should they be sworn? and form of oath, §§ 277-283; are they State officers? §§ 322-324; privileges of, §§ 471,
Misconceptions respecting the nature of Constitutional Conventions, § 15. Missouri, Convention of, of 1820, § 187; do. of 1845, 1861, and 1865, §§ 217, 219; do. of 1875, §§ 217, 218; ordinance of, of 1865, to vacate offices under the State govern- ment, §§ 327-330.
Mode, signification of the term, when used in reference to sovereignty, $ § 55. Monarchies, limited, § 70; absolute, § 70. Money, power of Conventions to appropri- ate, §§ 435-441 a.
Morton, Marcus, speech of, on the right of Conventions to issue precepts to the elec- tors, § 345.
Nation, do the United States constitute a? §§ 30-50; what it is to be a, § 39; what it is not to be a, § 31; the consolidation of the United Colonies into a, the evident pur- pose of God and of the men of all times in America, § 34; bearing of the mode of rat- ifying the Federal Constitution on the ques- tion whether the United States constitute a, §§ 36-38; opinions of contemporary states- man on the question, §§ 39, 45; judicial decisions and opinions of statesmen and publicists subsequent to the formation of the Federal government, on the question, §§ 46-48; if the United States constitute a, sovereignty resides in the nation, §§ 30, 50; allegiance due to the, §§ 52, 53. Nationality, American, the question of, con- sidered, §§ 30-50; successive steps in the development of, in the United States, §§ 34, 35; bearing on the question of our, of the mode of ratifying the Federal Constitution, §§ 36-38; opinions of contemporary states- men on the question, §§ 39-45; opinions of statesmen and publicists, and judicial decisions, subsequent to the formation of the Federal Government, on the question, §§ 46-48.
Nations, method of nature in the genesis of, explained, §§ 32, 33.
Nebraska, Convention of, of 1864, §§ 187, 210; do. of 1866, §§ 188, 210; do. of 1875, §§ 217, 218.
Nevada, Convention of, of 1863, § 187; do. of 1864, §§ 188, 189, 210.
New Hampshire, advice of the Continen- tal Congress to, relative to founding new government in, § 127; Convention of, of 1775, § 131; do. of 1778 and of 1781, § 132; do. of 1791, § 218; do. of 1850 and of 1876, §§ 217, 218.
New Jersey, Convention of, of 1776, § 139; do. of 1844, § 219; delegates to the, of 1844, elected equally from all parties, § 271. New York, Convention of, of 1776, §§ 150-
152; consent of State of, to the erection of Vermont into a State, § 171, note 1: Con- ventions of 1801, 1821, and 1846, § 219; do. of 1867, §§ 217, 218; Constitutional Com- mission of, of 1872, §§ 546 a-546 d; veto of the Council of Revision of, of the Conven- |
tion bill of 1820, Appendix F, p. 669; opin- tions of the Judges of the Supreme Court of, respecting the power of a legislature to modify a Convention Act passed upon by the people, Appendix D, p. 663. Niles, Senator, speech of, on the Michigan Convention of December, 1836, § 206. Non-Resistance, doctrine of, stated, and relation of, to contents of our Bills of Rights, §§ 242-244.
North Carolina, Convention of, of 1776, § 146; consent of State of, to the erection of Louisiana into a State; and deed of cession of, §§ 190-197; Convention of, of 1875, §§ 217, 218; do. of 1835, §§ 217, 219; do. of 1861, §§ 247-250; do. of 1865, §§ 250- 258: do. of 1868, §§ 258 a-258 d; do. of 1835, oath administered to members of, § 281; do. of 1835, discussion in, as to binding form of the Act under which it assembled, § 387.
Oath, should members of Conventions take an? §§ 277, 278; form of, §§ 279-283 b; question as to form of, discussed in Illi- nois Conventions of 1862 and 1869, §§ 282, 283; in Ohio Conventions of 1850 and 1873, § 283 a; observations upon these cases, $283 b; can a State Convention require State officers to take, to support the Fed- eral Constitution? § 449, note. O'Connor, Charles, argument of, as to the power of Conventions to limit the electors, $353; do. as to the validity of amend- ments, § 574 a.
Officer, is a member of a Convention an? §§ 321-324.
Offices of Conventions, what are, and how chosen? § 274; are members of a Conven- tion State officers? §§ 322-324; can a Con- vention appoint to fill vacancies in the government? §§ 325-330; can a Conven- tion eject from office persons who are, under the government? 325, 326; can a Convention direct, in the discharge of their official duties? §§ 325, 326. Offices, Ordinance of the Missouri Conven- tion of 1865, to vacate certain, under the State government, §§ 327-330.
Ohio, Convention of, of 1802, § 187; do. of 1850 and of 1873, §§ 217, 218. O'Mulveny, Judge, was he lawfully elected a member of the Illinois Convention of 1862? §§ 321-324.
Ordinance, of 1787, extension of provisions of, to Tennessee, §§ 190, 191; bearing of, on the legitimacy of Conventions called within the territory covered by it, §§ 188- 207; of the Missouri Convention of 1865, to vacate offices under the State govern- ment, §§ 327-330.
Ordinances, definition and use of, § 103 a. Oregon, Convention of, of 1857, §§ 188, 189, 210.
Organization of Conventions, §§ 272-284; how initiated, § 273.
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