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represented towns. In this I was greatly misapprehended, as I perceived, from the comments of a portion of the Boston press, that I was understood to admit the power of this Convention to order elections everywhere. On the contrary, that suggestion of mine arose from my doubts on the subject; and I withdrew it from deference to the gentleman from Natick, who was himself elected from Berlin, and had resigned the scat which they offered him, and who I thought was entitled to have this question separately and distinctly considered.

Taking this question as the issue, as to the power of the Convention, it resolves itself entirely, in my mind, to the simple power of a body to reproduce itself; that is, to fill vacancies occuring within itself, by death or resignation; and whether that power be or be not incident to such a body, is a matter which may admit of different opinions, but with regard to which it seems to me that the preponderance of opinion must be that, in the absence of a prohibition to fill such vacancy, and where no mode is provided by law, the body must necessarily have the power to supply such deficiency-that is, to reproduce itself. In this point of view, therefore, the resignation of a delegate, or the death of a delegate, causing a vacancy, would stand differently from a call upon towns to send delegates here in cases where no vacancies had existed except such as arose from a mere failure of a town to elect a delegate. I should, therefore, be content to take this proposition as a proper one, and invite the town of Berlin to send a delegate here, upon the ground that we, as a body, have a right to fill our own vacancies, occurring since our organization as a body; and that is all the power we have got, if we have got any, in the premises. I am perfectly clear that we have no direct power under the Convention Act of 1852, in relation to supplying any vacancies in this Convention. That is our charter; it is the constitution of this body of delegates, and we must act under it.

Then comes the objection of the learned gentleman from Boston, (Mr. Choate,) who supposes, if I understood him correctly, that the order, or notice, assumes to provide by force of law to govern its town meeting,-that the town of Berlin shall elect a delegate in the manner prescribed by the second section of the Act calling this Convention, and adopted by the people on the second Monday of November, 1852. And I understood his position in relation to this point to be, that this order calls upon the town of Berlin to violate one of the laws of this Commonwealth; that is, that it is calling for a violation of the law of the Commonwealth, because it requires and gives direction to the town of Berlin to elect a delegate by closed ballot alone, and not by open or closed ballot. It seems to me that this very proposition refutes the gentleman's position, when carried out. It assumes that the closed ballot is still in force under the second section of the Act or proposition calling the Convention. Now, that is the Has the Convention precise issue between us. Act been altered or not? The gentleman from Boston affirms that it has been altered, from closed to open ballot, by the Act of the legislature of 1853. He assumes, and I do not deny, that the legislature of 1853 sat here without any change in the Constitution, having all the powers of the legislature of 1852 under the Constitution, before the calling of the Convention, and thus having,

under the general laws, the power to regulate the mode and manner of choosing civil officers; he contends for that which I do deny, viz., that it had a right to say that the delegates chosen to this Convention should be chosen by closed envelopes, or by open envelopes, at the option of the voters.

Now, I want him to show me where the legis lature of Massachusetts gets any power from that instrument to utter one word on the subject of delegates to a Convention. The only provision which is made in the Constitution that contemplates any peaceful mode by which the Constitution can be changed, is in the 9th amended article, referring to the mode of amendment. And what is the mode of amendment therein provided? It is that if any specific and particular amendment or amendments to the Constitution" are desired, they may be proposed in the general court, and if "such proposed amendments shall be agreed to " by a majority of the Senators and two-thirds of the members of the House of Representatives, and also again adopted by the subsequent legislature, "then it shall be the duty of the general court to submit said proposed amendments to the people," and if adopted by them, they become a part of the Constitution. That is all the mode that is provided in the Constitution, by which the legis lature can touch the Constitution, or can propose any change in it, or can have any authority in relation to amending it; and this is only for "specific and particular amendments."

Now, what is this Convention called for?

For

a revision of the whole Constitution. Has the legislature any power to revise the Constitution? I claim oyer of that grant. Nowhere is that authority to be found. If the legislature has no power of itself to revise, can it, by force of its own act as a statute law, compel the people to hold a Convention to revise the Constitution. Where is that grant? The only grant of power is to propose specific amendments. Then what is that power? Is it a limitation of the power of the legislature, merely, or is it a limitation of the power of the people" to alter or totally change their form of government." That is what I want to know. I want to know whether the people of this Commonwealth, when they assembled in 1820, and chose certain delegates who framed certain amendments of the Constitution-fourteen in number, and sent them out to the people to ask them to say yes or no-I want to know whether the people of the Commonwealth of Massachusetts, at that time parted with their sovereignty, and closed their political existence, except upon sufferance by the action of the legislature.

Where is the power to make and unmake Constitutions? Where was it originally, when the people of this colony became free and independent? In 1778, when the general court of this Commonwealth assumed authority to frame a constitution and send it to the people of the Commonwealth, then a colony, having declared their independence of royalty, what was the answer of the people to that proposition? The people said, "you have no business to make a constitution for us-we sent you to make laws, not a constitution. We are the source of power, from which spring all fundamental laws; and when we need a constitution we will send delegates from the sovereign people to make it.”

Go to the town records of Concord, where the first spirit of the revolution exhibited itself, and there

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read the resolutions introduced, and read in town meeting by Col. James Barrett, and unanimously adopted by the citizens of Concord. What do they say? They unanimously recommend to the people of the colony to reject that constitution, on the ground that the general court had transcended its power, and had no right to frame a constitution for the people; and it was rejected. When the vote was taken, there were five to one against it, throughout the Commonwealth.

So indignant were the inhabitants of many of the towns, that they would not even assemble and vote upon the question at all. That is the first lesson which the legislative power had with regard to making or meddling with a constitution. They then renewed the matter by inviting the people to send delegates or deputies; and the people came together voluntarily, by a mere call of town meetings, and these delegates were chosen and assembled in convention and framed the Constitution of 1780, and sent it out to the people, who adopted it. And they provided for a mode of reproduction of that Constitution, and a resumption of power by the people. What was it? That in fifteen years from that time a Convention should be again called, to revise the Constitution. Now, did the people of Massachusetts, in 1780, have power, or did they not have power to make a constitution and institute government?

Will gentlemen say that they had not power? No. Then, it is admitted that they had the power. Did they give it away? Did they lose it? Where is it? Where is the statute of limitations which forecloses the exercise of such power? They said in their first Constitution, that in fifteen years it should be the duty of the legislature to call a Convention to revise that Constitution. Fifteen years passed over; but the legislature either omitted to perform that constitutional duty, or performed it so imperfectly, that no Convention was called. The time passed by; the people were not prompt to act in consequence of that failure to hold a Convention, and after a time those who sought to diminish and narrow the circle of power into the hands of the few and against the many, then said that the power to amend the Constitution was lost. Well, Sir, if that proposition is to be affirmed, it is also to be affirmed that it was lost by fraud in the legislature, or by neglect of the people to apply the remedy, and therefore, that fraud, or that omission in 1795, did not bind the majority of the people then, and cannot bind the people of this Commonwealth now. They did not lose the power to amend, alter, or abolish the Constitution by any act of the Convention that made the Constitution in 1780, or by the lapse of the clause of amendment in 1795.

So matters went on until 1820, when the separation of Maine rendered it necessary that a Convention should be called. What did those very learned and technical gentlemen do then, who have, in all ages, had such fears and doubts about the power of the people? They discussed that very matter, and looked all over the constitution to see if they could find anything to help them out of the difficulty; but not finding anything there which would bear upon the case, they concluded to take a common sense view of the matter; and if they had not taken it, the people would have done it for them. So the legislature proposed to the people to call a Convention outside of the very Constitution under which they stood; and I ask

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the honorable gentlemen to point out to me the grant, or deed, or power of attorney in the Constitution, by which the legislature of 1819 undertook to propose the call of that Convention? Where was their warrant? They had none whatever. But the people assented, and that affirmed the unauthorized acts of their agents. The Convention was held, and the people adopted its proposed amendments. In the Constitution of 1820, there was a grant of power from the people to the legislature, limiting its interference with the fundamental law of the land. It was a grant of power to the legislature, and not a limitation of power to the people. [See Hale's Debates, p. 415.] If the gentleman insists upon construing this as a limitation of the power of the people, and contends, as some do, that after the people had provided a certain process for amendments through the action of the legislative power, they cannot now amend the Constitution or form another, I say to him, that we are here to-day in opposition to that dogma, and I trust that we shall remain here, and that we shall never leave these seats until that dogma is stamped with condemnation by the expressive action of this Convention, to be proposed to the people, that they may have an opportunity of saying-which they never have had since the Declaration of Independence-whether they have really given away their power to the legislature, or whether they alone retain the power to make, revise, or unmake the Constitution of their government-whether your seventh article in the Bill of Rights amounts to anything or nothing, where it is declared that 'the people alone have an incontestible, unalienable and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it." What does that mean? Why, Sir, that having instituted it, they have no less the power and right to alter, change or abolish it on account of having given the power of proposing specific amendments to the legislature.

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This brings me to the point at which the gentleman from Boston found his difficulty-that difficulty as he informs us, which made even that intellectual head turn upon its shoulders in confusion at this mischievous idea of a combination of the acts of the legislature with the acts of the people. It is an anomaly we are told, to think of any form of law as distinct from the sole action of the legislature, no matter whether it be a legislative act per se, or whether it be made a law for the people, solely by the adoption of the people. And the mixed character of such a law made the learned gentleman from Boston turn his head on his shoulders.

Let me tell him, Sir, that this very idea, of just such a mixed law did not turn a head as lofty and intellectual, in my opinion, as ever stood upon human shoulders. It did not confuse or turn the head of Daniel Webster in 1820, the great master of my eloquent friend here. Why, Sir, if gentlemen will turn to the 407th page of the Report of the Debates in the Convention of 1820, they will there find that when the subject of proposing amendments to the Constitution was under consideration, the question was then raised as to what sort of power this was-whether it was a legislative power, or whether it was a popular power. Mr. Webster said, "this was not an exercise of legislative power; it was only referring to some branch the

power of making propositions to the people." Now that is the whole solution of all the difficulty under which the learned gentleman labors. The power of the legislative body, or of a Convention, to take the initiatory movement of making propositions to the people. That is the very element that enters into our American forms of government. It is based upon the great fundamental principle that power shall emanate from the people where it lies sovereign and inalienable.

Not one of the early American statesmen ever called this in question. Even Alexander Hamilton, who was as conservative as any statesman who ever lived in this country, said that "the people are the only fountain of all legitimate authority." Nobody denies that; but while I have the source, the fountain, I want the stream also, that its waters may invigorate and fertilize the whole community.

But the moment I attempt to get the stream by which the people's power is to be diffused, then comes the limitation. Gentlemen tell us that the fountain has been dried up, or the stream cut off, and that the people have put something into the Constitution which places it beyond their reach. The people have given their suffrage to the legislature, says the learned gentleman from Boston, and therefore they never can come together again in Convention, unless the legislature shall by law allow them to do so.

How have we come together in Convention? Precisely as it was done in all former Conventions, by the action of the people upon a mere proposition from the legislature. We have power to propose amendments, or an entire new Constitution, to the people, and the people have power to accept or to reject them-that is all. That is precisely the case between the legislature and the people, in regard to specific amendments under the present Constitution. Suppose the legislature propose an amendment, for instance, with regard to the right of religious worship, and that proposed amendment passes the Senate and the House of Representatives by the requisite majority, what does it amount to then? Is it law? Will my learned friend tell me that it is a law before it has been adopted by the people at the ballotbox? Is it anything more than the terms of a proposition? Suppose, then, that the legislature goes farther, and, instead of proposing to the people an amendment, steps aside from the terms of the Constitution, and proposes a Convention to revise it. Why, Mr. President, it is neither anything constitutional nor unconstitutional-it is simply a proposition. It has no legislative power whatever-it is no rule of action to bind anybody-it has no vitality until it comes to the act of the people. The people vote upon it, and if they say "yes," that puts the breath of life into it and it becomes a living soul. After having done that all the rest is mere form. It is the will of the people, and executes itself as their will. It has to be printed and proclaimed precisely as the laws which are enacted here are printed and proclaimed from time to time. But do laws cease to be laws because they are not printed By no means; a law is a law, no matter by whom it is proclaimed--no matter whether it is proclaimed or not.

Now, the gentleman from Boston, as it seems to me, proceeded entirely upon a misapprehension with regard to the action of the legislature of 1852 and the legislature of 1853. I find him re

[May 13th.

ported as saying, and I so understood him at the time, that the question was submitted to the people in 1852, merely asking them whether they would have a Convention or not; that the people said they would have a Convention and there rested; and thereupon the legislature went to work and prescribed the mode in which the Convention should be called. Sir, I find no such thing as that in the history of the transaction. On the contrary, I find that the legislature of 1852, in chapter 188, made the following proposition to the people:

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Is it expedient that delegates should be chosen to meet in Convention for the purpose of revising or altering the government of this Commonwealth ?" "And if it shall appear that a majority of the votes given in and returned as aforesaid, are in favor of choosing delegates as aforesaid, the same shall be deemed and taken as the will of the people of the Commonwealth that a Convention should meet accordingly." "Meet accordingly"-What does that mean? Simply that it was the will of the people to have a Convention? No; but that it was the will of the people to meet in Convention accordingly; that is, conformably to the whole proposition, (for the words accordingly and conformably are synonymous.) The question was asked the people, Will you meet in conformity to this proposition? will you make it the law of the Convention? and the people said "Yes." Thereupon what was done? The legislature did nothing after the people had made the proposition their law. The governor made proclamation that such had been the vote; but did the governor's proclamation give any vitality to this law of the Convention? Not at all. The

people said " yes," and adopted the proposition; and it then became the duty of the proper officers of the government to carry out the will of the people so proclaimed. If they had failed to do so, I will not say they would have been liable to a mandamus. My learned friend thinks the selectmen of the town of Berlin would be liable to indictment if they obeyed the form of the order which it is proposed to send them; I think it. would be difficult to find any law for indicting selectmen for receiving or not receiving votes. But if the governor had failed to issue his proclamation, though he would not have been liable to indictment, yet he would have been liable to a higher process-he would have stood in contempt before the high court of chancery of the people. No officer would have dared to set the people of the Commonwealth of Massachusetts at defiance, by refusing to carry out their law. The proclamation was made, and the election of delegates was ordered to be held on the 7th day of March, and that election, if not completed, might be continued to another day by adjournment.

The people came together on the 7th day of March; and what brought them there? Was it any act of the legislature subsequent to the act of the people in the month of November preceding, declaring that they would have a Convention? Had the people said nothing but "yes" and "no"-Convention and no Convention? If So, who has taken the liberty to make any law under which this Convention has assembled ? What sort of power was there behind the throne greater than the throne itself-enacting laws, calling town meetings for the election of delegates, and prescribing the forms and powers of this Convention? What right had they to do so under a mere vote of the people which said “yes”

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and "no"? Are we here to-day under "yes," and nothing else? "Yes" what, I should like to ask? No, Sir. We are delegates according to the provisions of this 188th chapter; and what is the 188th chapter? Is it a law of this legislature or of any former legislature? Not at all; it is no statute law! In a legal sense, it is no law. What is it then? It is precisely the embodiment, by the collected will of the people, of the American idea of government—that thing which our fathers well understood, but which their sons seem to have frittered away in technical refinements, and special pleading to foreclose the rights of the people, and almost forgotten-it is the peaceful exercise of the sovereign power of the people to make and unmake constitutions and frames of government. That is what it is.

Another gentleman argues that if we take this step, we assume to take the ground that we are a revolutionary Convention. Sir, we are not a revolutionary Convention, for the very reason, that our fathers provided that we might change our government without a revolution. Oh! would to God that in the old world the people might assemble together, and by the votes of the people-by propositions submitted to the people and there discussed-the right might be exercised, to frame governments and make constitutions. But, no! they have the doctrines of the Laybach Circular there, promulgated by "Holy Allies" of kings, and enforced by millions of bayonets, viz. : "that changes in the government of States, ought only to emanate from the will of those whom God has intrusted with power," meaning the legiti mate sovereigns. We hold no such claim to legitimacy as that; but if we have no authority to change our government, except what is given up and surrendered to the creature of the peoplethe legislature-then we can only say, that we are a little better off than they are in the old world, because we may change our creature, and make him conform to our will; which is something they cannot do there, without physical revolution.

Let me be distinctly understood, as preferring the concurrent action of the people and the legislature, in all constitutional reforms. I desire that it should always have the form of legislation, unless there should be an extreme case. But if it be not begun in the precise form required for specific amendments by the legislature, it does not follow that it is revolutionary. The proof is before us. We are sitting here to-day, not as a revolutionary Convention, but for the purpose of revising and amending peacefully, and through incipient forms of law, adopted by the people, our frame of government. We consist of delegates sent here to adopt a frame of government and submit it to the people, as their committee, for their adoption or rejection. We do not sit here as a Convention, subject to the will of the legislature, or deriving any power to revise the Constitution from them. We derive our powers from that right affirmed by Mr. Madison, as "the transcendent and precious right of the people to abolish or alter that government." [Federalist, No. 40.] A right distinctly recognized by the deceased statesman I have before quoted, (Mr. Webster,) who in this place, in the Convention of 1820, said that "he knew of no principle that could prevent a majority, even a bare majority, of the people, from altering the Constitution.” [IIale's Debates, 407.]

(May 13th.

legislature can repeal the statute acts of another.

But this call of a Convention to revise the Constitution, is not mere legislation. It is a movement entirely outside of the legislature. True it is, that the legislature of 1852 submitted the question to the people; but the people alone gave validity to the Act, by adopting it. The form for the election of delegates contained in that proposition, derived its power from the people. Without any subsequent legislative act, delegates were chosen; and hence, as this was not a legislative act, no subsequent act of another legislature could effect the action of the people in 1852. This is the question, raised by the honorable member from Boston, now directly before us, whether the legislature of 1853, had any power to interfere with the people, after they had adopted the form of holding a Convention. At the time of the action of the legislature of 1853, delegates to this Convention were about to be chosen by ballot, under that law of the people; but that legislature assumed to act upon the subject, and to change the mode of voting.

Understand me, Mr. President, I deny none of the authority which my learned friend claims for the legislature, to decide upon the manner of voting. They had all power and authority to abolish the closed ballot, and to adopt the open ballot. They had every power, then, which the legislature had in 1852, but no more. And where in 1853, did they get any power over the Convention, and over its delegates? That is the point upon which I desire to be instructed. Where did they get the power to decide how the delegates to this Convention should be chosen! That is the error of their law. It is very proper, so far as it relates to ballots for Governor, Lieutenant-Governor, Senators and Representatives of the Commonwealth, Representatives in Congress, &c. It is perfectly good law, to decide that in such elections, the ballot shall be given with or without an envelope, at the option of each voter; and that law I am ready to enforce, with all my attachment to the secret ballot, or the free ballot, as I prefer calling it. I do not object to the power or right to abolish it, as to the civil offices of this government; but the legislature of 1853 went further, and said that it should apply to "all votes and ballots to be given on the first Monday of March, for the election of delegates to be chosen under the provisions of the Act calling a Convention." Now, where in the Constitution did that legislature find the power to make any law concerning delegates to a Convention? If they had no such delegated power, it is no matter by what name you call the provision of 1852, for a Convention; it was not an Act of the legislature, and the legislature of 1853, had no more right to repeal it, or to interfere with it, than they had to repeal the Constitution itself, or a private contract entered into by merchants in State Street. It was out of their jurisdiction. No matter whether the law of 1852 calling the Convention was right or wrong, it was out of the jurisdiction of the legislature.

I was surprised that the learned and astute gentlemen, who had that subject under consideration in the legislature, did not perceive that the moment they undertook to say it was an Act of the legislature, upon which they could act, they abolished their own doctrines, denying the right to amend the Constitution except as itself provided; because they had started upon the ground that

and it was a manifest absurdity to repeal a null law, and therefore, they did not attempt to repeal it. Now, if it was a null law, they should have gone to the courts upon the subject. And how should they have tried it? If the question of its constitutionality was a practical question, it seems to me that it depended not upon what had been said, but upon what had been done. That which is not executory, which is not to be performed, cannot be either constitutional or unconstitutional. Hence, that Act of 1852, though outside of the Constitution, was not an unconstitutional Act. It made a proposition to the people, which was neither prohibited nor granted in the Constitution; but it did not legislate anything of itself. It was a mere nullity of itself, unless the people adopted it. It did not depend upon a contingency, but upon a positive act of the people in the exercise of their sovereign power to reform and reconstruct their own government.

It amounted to precisely the same thing when sent out to the people, as the action of the legislature by resolves in various matters, as slavery, woman's rights, or anything else, involving merely the expression of an opinion in the form of resolutions. A resolve expressing an opinion, is neither constitutional nor unconstitutional; because men have a right to let out their thoughts. Precisely so with this legislative proposition until it was adopted by the people; and therefore, I say that all its vitality came from the people.

And therefore, I say that the legislature of 1853 had no right to touch that Act, in any form or manner, but that it was out of their jurisdiction. And to test that still further, I wish to know whether, as members of this Convention, sitting here in the afternoon, we are at the mercy of the legislature that meets here every forenoon? If the legislature had any power to amend the Act, they may repeal the Act. If they could amend or repeal the Act last March, they can do so now; they may come together to-morrow morning, and vote the Convention into nonentity; and then, where are we? Is that the tenure upon which we hold our office here? It is either so, or the legislature has no more power over us than we have over the congress of the United States. We are a body entirely distinct from, and independent of, them; but wishing, evidently, to co-operate with them in everything which they may do to enable us peaceably, legally and properly, to carry out the will of the people, as expressed in their Act of 1852, for the Constitution. But if the legislature choose to throw obstacles in our way, I am sure that the Convention will meet them with dignity, with determination, with firmness. The legislature, I apprehend, will take no such course; but if they have the power to do it, I have no contentment in being here. If the legislature can to-morrow send me out of my seat, I shall prefer to resign now. And yet, if the legislature could amend the law in March last, it can repeal it to-morrow. The argument on the other side must come up to that absurdity, or it comes to nothing.

My learned friend said he could find no precedent upon the subject, and no grant to this Convention for undertaking to alter the mode in which the existing laws provide that certain persons should be voted for. I agree, Sir, that this Convention can neither make nor alter any law. But what is the existing law, touching the mode of

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voting for delegates to this Convention? That is the whole question.

The legislature of 1853 undertook to do that same thing; but had they any power to do it? I beg leave to refer to a precedent directly in point, showing that the legislature had no power whatever to meddle with the Convention Act. Let me here refer to an original certified copy, which I hold in my hand, of the Acts of New York, touching a Convention in 1845, and of the opinion of the Supreme Court of New York upon this precise question.

In 1815, the legislature of New York passed a form of an Act, recommending a Convention, and the manner it was to be held, to the people of the State of New York. By the Constitution of the State of New York, adopted in 1821, there was a power of amendment given to the legislature, by making propositions to the people, precisely parallel to the provision in our own Constitution. The Act of the legislature of New York, passed May 13th, 1845, provided that on the ballots should be written or printed, or partly written and partly printed, by those voters who are in favor of the proposed Convention, the word "Convention," and by those voters who are opposed thereto, the words "No Convention." It then applied so much of articles one, two, and three, of title four of chapter 130, in relation to the form and manner of voting, challenges and penalties for false swearing, as should be applicable. Those persons only were entitled to vote, who were entitled to vote by ballot in the State annual elections. The votes were to be canvassed, as required by law, to ascertain the result, and then the law declares :

"In case the said canvasses should certify and declare a majority of such ballots or votes to be for a Convention, it shall and may be lawful, and it is hereby reccommended to the citizens of this State, on the last Thursday of April, 1846, to elect by ballot, delegates to meet in Convention, for the purpose of considering the Constitution of this State, and to make such alteration in the same as the rights of the people demand, and as they may deem proper."

The Act then goes on to prescribe the number of delegates to be the same as the number of members of Assembly, from the respective cities and counties of the State. The delegates so chosen were to meet in the Convention at the Capitol in the city of Albany, on the first Monday of June, 1846. The proceedings of the Convention were to be filed in the office of the

Secretary of State. The Act then prescribes the mode of making alterations in the Constitution, and of submitting them to the people, and the Convention was either to submit them as a whole, or separately. Then follows the mode of canvassing the votes upon the amendments, and the provision that any one or more of such amendments which shall be ratified by a majority of the votes given thereon, shall become a part of the fundamental law of the State of New York. The provision was precisely like that in our provision, chap. 188, calling this Convention which we are now holding. After the adoption by the people of New York of the call for a Convention, and before the choice of delegates, a new apportionment of representatives to the Assembly was made, increasing the number, and in the legislature of 1846, a bill was proposed, requiring" that the number of delegates to be chosen in and by

the respective cities and counties of this State to the Convention, to be held by virtue of an Act entitled, "An Act recommending a Convention to the people of this State," passed May 13th, 1815, shall be the same as the number of members of this Assembly, to be chosen in and by the said cities and counties respectively, in pursuance of an Act entitled, "An Act for the apportionment of members of the Assembly of this State, passed March 30th, 1846." This was a beneficial Act. It was designed to enlarge the power of the Convention, and to embrace in it all persons who had a right to be represented there. It was unlike, in this particular, the Act of the legislature of our own State in March last, which was evidently an Act to restrict the rights of the people in relation to this Convention; an Act, if I may say so, for I can regard it in no other light, assailing the Convention.

The question raised in New York upon that bill altering the Convention was, had the legislature any power to legislate in respect to delegates to that Convention, and where did they get their authority? The subject was referred to the opinion of the Justices of the Supreme Court of New York, by the following resolution: "Resolved, That the bill relating to the apportionment of delegates to the convention, be referred to the justices of the supreme court, with a respectful message from the speaker of this house, requesting them to communicate forthwith to this house whether, in their opinion, the delegates to be chosen to the convention under the law of the last session, be according to the apportionment of the present members of the legislature, and whether this legislature have any power to alter or amend that law."

Upon that question the justices of the supreme court delivered an opinion, which is not very long, and which I will read, with the permission of the Convention. It covers the very question before us, and emanates from men as learned in the law, I venture to say, as ever sat upon that bench. The court reports to the legislature as follows:

Opinion of the Supreme Court.

STATE OF NEW YORK, In Assembly, April 10, 1846. S Resolved, That the bill relating to the apportionment of delegates to the convention be referred to the justices of the supreme court, with a respectful message from the speaker of this house, requesting them to communicate forthwith to this house whether, in their opinion, the delegates to be chosen to the convention under the law of the last session, be according to the apportionment of the present members of the legislature, and whether this legislature have any power to alter or amend that law.

By order of the Assembly,

A. G. CHATFIELD, Speaker pro tem.

The Justices of the Supreme Court have received the foregoing resolution, with the bill therein mentioned; and have considered the questions on which their opinion is asked by the assembly.

The first question touches the construction of the convention act of 1815; and the point to be considered is, whether the number of delegates to be chosen under the act in the several counties is to be regulated by the apportionment of members of assembly which was made in 1836, or by the apportionment which has been made at the present session of the legislature.

By the constitution, the apportionment of members of assembly which was made in the spring of 1836, took effect for the purpose of electing the

[May 13th.

members, in the fall of that year; but it did not take effect for any other purpose until the 1st day of January, 1837; and it was to remain unaltered for ten years. In other words, the representation of each county in the assembly from the commencement of the political and calendar year 1837, to the commencement of the political and calendar year 1817, was to remain the same. By the convention act, the people were to deor "no convention," cide upon a "convention' at the fall election of 1845. If they decided for a convention, the delegates were to be chosen in April, 1846; they were to assemble in June following; and the amendments to the constitution on which the convention might agree, were to be submitted to the people for adoption or rejection, at the fall election of the same year. Everything in relation to the convention was to be both begun and concluded while the apportionment of members of assembly made in 1836 remained in force and governed the representation from the several counties.

The seventh section of the convention act provides that "the number of delegates to be chosen to such convention shall be the same as the number of members of assembly from the respective cities and counties in this state." We are of opinion that this means the number of members from the respective countics, under the apportionment which was in force when the act of 1845 was passed, and which will be in force until after the delegates have been chosen and their labors have been terminated. Although a new apportionment of members of assembly has already been made, it cannot take effect for any purpose until the fall of the present year. If an election for members of assembly in any county for the present year were now to be ordered, and it should be held at the same time that the delegates to the convention are to be chosen, the apportionment of 1836 and not that of the present session, would govern. The legislature would have no power to make a different rule.

It would have been highly proper, as a just and equitable distribution of the delegates among the several counties, and the legislature of 1845 might have so provided, that the new census and apportionment which were then in prospect, should regulate the representation in the convention. But we think that has not been done. It will be seen, on referring to assembly documents of 1845, No. 211, that the select committee to whom the convention bill was referred, gave a brief exposition of its provisions, in which they said, that "each county is entitled to the same representation it now has in the assembly.' And so far as this question is concerned, the bill was passed in the same words in which it was reported to the house by the committee. It is difficult, therefore, to suppose that the legislature, in passing the bill, intended any other rule of representation than that which had been suggested to the committee. As their attention was plainly called to the subject, it can hardly be doubted that they would have changed the language of the seventh section if the bill was passed with any reference to the new census which was about to be taken, or to the apportionment which might be made under that census.

This goes to confirm the construction which we think must be given to the act, when looking at nothing but the statute book.

The next question is, "whether this legislature has any power to alter or amend that law." As a general rule, the legislature can alter or annul any law which it has power to pass. A proper solution of the question proposed by the assembly involves, therefore, an inquiry concerning the source from which the act of 1845 derives its obligation.

The legislature is not supreme. It is only one of the instruments of that absolute sovereignty which resides in the whole body of the people. Like other departments of the government, it acts under a delegation of powers, and cannot rightfully go beyond the limits which have been assigned to it. This delegation of powers has been

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made by a fundamental law, which no one department of the government, nor all the departments united, have authority to change. That can only be done by the people themselves. A power has been given to the legislature to propose amendments to the constitution, which, when approved and ratified by the people, become a part of the fundamental law. But no power has been delegated to the legislature to call a convention to revise the constitution. That is a measure which must come from, and be the act of, the people themselves. Neither the calling of a convention, nor the convention itself, is a proceeding under the constitution. It is above and beyond the constitution. Instead of acting under the forms and within the limits prescribed by that instrument, the very business of a convention is to change those forms and boundaries as the public interests may seem to require. A convention is not a government measure, but a movement of the people, having for its object a change, either in whole or in part, of the existing form of gov

ernment.

As the people have not only omitted to confer any power on the legislature to call a convention, but have also prescribed another mode of amending the organic law, we are unable to see that the act of 1845 had any obligatory force at the time of its enactment. It could only operate by way of advice or recommendation, and not as a law. It amounted to nothing more than a proposition or suggestion to the people, to decide whether they would or would not have a convention. That question the people have settled in the affirmative, and the law derives its obligation from that act, and not from the power of the legislature to pass it.

The people have not only decided in favor of a convention, but they have determined that it shall be held in accordance with the provisions of the act of 1845. No other proposition was before them, and of course their votes could have had reference to nothing else. They have decided on the time and manner of electing delegates, and how they shall be apportioned among the several counties.

If the act of the last session is not a law of the legislature, but a law made by the people themselves, the conclusion is obvious, that the legislature cannot annul it nor make any substantial change in its provisions. If the legislature can alter the rule of representation, it can repeal the law altogether, and thus defeat a measure which has been willed by a higher power.

A change in the fundamental law, when rot made in the form which that law has prescribed, must always be a work of the utmost delicacy. Under any other form of government than our own, it could amount to nothing less than a revolution. The greatest care should, therefore, be taken that nothing be done which can give rise to doubts or difficulties in the choice of delegates, or the harmonious organization and action of the convention. A controversy about the number of delegates to which any county is entitled, may lead to irregular and disorderly proceedings at the election, and an imperfect expression of the will of the electors in the choice of delegates. It may embarrass the inspectors of elections and the canvassers of votes. It may also tend to disorder in the convention, where the question must finally be settled who are, and who are not, members of the body. In the strife of parties, if there should be parties in the convention, and they should be nearly balanced, the body may either be broken up, or the moral force of its acts be greatly im paired. As a question of expediency, therefore, as well as of power, we think it the safest course to leave the law as it now is.

If, however, the assembly should think otherwise, it is then proper that we should take some notice of the bill which has been referred for our consideration.

The first section of the bill is in the following words :

"SECT. 1. The true intent and meaning of so much of the seventh section of an Act entitled An Act recommending a Convention of the

people of this State,' passed May 13, 1845, as relates to the number of delegates to be chosen to the said convention in and by the respective cities and counties of this State, is, that the number of delegates to be chosen to the said convention, in and by the said cities and counties, respectively, shall be the same as the number of members of the assembly which the said cities and counties will respectively be entitled to elect, according to the census of the inhabitants of this State, taken in the year 1845."

We have already expressed the opinion that such is not "the true intent and meaning" of the law. It is proper to add, that as the section merely professes to declare what the law now is, without either proposing to alter it, or commanding anything in particular to be done or omitted, it cannot change the legal effect of the existing statute. The legislature has no judicial power. Although its opinions are entitled to great consideration, they cannot have the force of a law. If, therefore, it is deemed expedient to legislate on the subject, it is submitted that there should be a positive enactment, instead of a mere declaration of opinion.

The second section of the bill goes beyond a mere declaration, and provides that the number of delegates to be chosen to the Convention "is hereby declared to be and shall be as follows”— specifying the number to be elected in each county. The words "shall be" give this section the force of a command; and if the section should be enacted, it will have the effect of altering the convention law, if the legislature has any power over the subject.

The two remaining sections of the bill call for no remark.

In this discussion we have assumed, without intending to express any opinion on the subject, that the constitution can be amended in a different way from that which has been prescribed by the people in the instrument itself.

We cannot close this communication without expressing our regret that questions of so much delicacy and importance should be presented under circumstances which have given us but a few hours for conferring together, and reducing our opinion to writing. Neither of us had either examined or thought of the questions until after the reference was made; and it was not until this day that we were able to meet and consult together on the subject.

Respectfully submitted,

GREENE C. BRONSON. SAMUEL BEARDSLEY. F. G. JEWETT. ALBANY, April 14, 1846. Upon that decision, upon that precedent, the only American precedent decided by a judicial tribunal, that I am aware of, I think it is perfectly plain that the Convention Act of 1853, calling the Massachusetts Convention, had its validity from the people. This Convention has no power except what can be found in that Act. Going beyond it, we should throw ourselves upon the indulgence of the people, and act without authority. No subsequent legislature can have any power over it, because the power was derived from the people, outside of the limited rules laid down for the amendment of Constitution, by the action of the legislature in the form prescribed in the tenth article.

That brings me back to the assertion which has been made, or rather the assumption taken, that the power of revising their Constitution has been given away by the people, and that the Constitution can be reached only by its own provision for amendments. Sir, I deny that assumption. In the words of the Federalist, of Madison, approved by Hamilton and by Jay, I will say that "the people never concede anything which they may not resume in political power."

[May 13th.

They have no need to mike reservations of power not given, because they lose nothing by making no reservations, If they have never given away power, it is useless to speak of powers reserved. Mr. President, I have a few words to say upon one other point-the practical operation of the question now before us. I did not desire to raise the issue here. I did not think it desirable to reopen the question as to the mode of election of any delegates to fill vacancies, whether by the closed or by the open ballot. I see no necessity for raising that question now. But I should like to ask the gentleman from Boston, (Mr. Choate,) to whose opinion I pay much deference, whether, in point of fact, the Act of 1853 concerning the ballot, did change the mode of ballotting prescribed by the second section of the Act calling this Convention. That Act says, that delegates shall be chosen in the same manner "as is now provided for in the case of representatives to the general court." I take it to be a wellsettled rule of law, that if a statute has been passed, saying that a thing shall be done "as is now provided for," that "now" relates to the legal execution of it, then or at any subsequent period; and if afterwards, that form or process is changed, the "now" applies to the amended as well as to the original form. If, then, the legislature of 1853 had the power to amend the Convention Act, and did amend it so far as it regulated the manner of voting for delegates, so that it might be done either with the open or closed ballot, then the manner "now" of voting, is with either the open or sealed ballot. If that Act of 1853, therefore, is not a valid law, changing the Convention Act, it does not apply; but if it is valid, it does apply. Hence, the construction of the Convention Act, and the mode of voting under it, depend upon the question, whether it was amended, or was not amended, by the Act of 1853. The manner prescribed by the second section of the Act calling the Convention, when the people voted on the 2d of March,-if the Act of 1853 was valid,- -was with either the open or sealed ballot. Now, is not the town of Berlin competent to decide how it will vote, and what is the law, as well as we are? Need we tell them what are the requisite qualifications of votersthat they must be twenty-one years of age, that they must have paid a tax within two years, &c.? Do we, then, in this invitation, say anything further than to request the town of Berlin to elect a delegate according to law? By the form proposed, we merely say, "in the manner provided in the Act of 1852," because it is the only existing form of law that relates to the choice of delegates to this Convention. It does not raise the question at all. The town of Berlin will then hold their town meeting, and elect the delegate under what they believe to be the existing law. When the delegate comes here, then may risethough I trust it will not be raised-the question whether he has been, or has not been, elected in due form of law, so far as there is any law applicable to the case. It seems to me, then, that even gentlemen holding the views differing with mine in relation to the actually existing law, might consistently vote to sustain this resolution; and thus say to the town of Berlin, "You may elect a delegate according to law; that law you will find prescribed in the Act which called this Convention; if that Act has been amended, of course you will understand it, and act accordingly."