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"These resolutions were communicated to the States, and a convention of commissioners from five States only, namely, New York, New Jersey, Pennsylvania, Delaware, and Virginia, met at Annapolis in September, 1786. After discussing the subject, they deemed more ample powers necessary, and as well from this consideration, as because a small number only of the States was represented, they agreed to come to no decision, but to frame a report to be laid before the several States, as well as before Congress. In this report they recommended the appointment of commissioners from all the States, to meet at Philadelphia on the second Monday of May, then next, to take into consideration the situation of the United States; to devise such further provisions as shall appear to them necessary to render the Constitution of the Federal government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress assembled, as, when agreed to by them, and afterwards confirmed by the legislature of every State, will effectually provide for the same.' • On receiving this report, the Legislature of Virginia passed an Act for the appointment of delegates to meet such as might be appointed by other States, at Philadelphia. The report was also received in Congress. But no step was taken until the Legislature of New York instructed its delegation in Congress to move a resolution, recommending to the several States to appoint deputies to meet in convention for the purpose of revising and proposing amendments to the Federal Constitution. On the 21st of February, 1787, a resolution was accordingly moved and carried in Congress, recommending a convention to meet in Philadelphia, on the second Monday in May ensuing, for the purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein, as shall, when agreed to in Congress and confirmed by the States, render the Federal Constitution adequate to the exigencies of government and the preservation of the Union.' The alarming insurrection then existing in Massachusetts, without doubt, had no small share in producing this result. The report of Congress on that subject at once demonstrates their fears and their political weakness.

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"At the time and place appointed, the representatives of twelve States assembled. Rhode Island alone declined to appoint any on this momentous occasion. After very protracted deliberations, the convention finally adopted the plan of the present Constitution on the 17th of September, 1787; and by a contemporaneous resolution, directed it to be laid before the United States in Congress assembled,' and declared their opinion, that it should afterwards be submitted to a convention of delegates chosen in each State by the people thereof, under a recommendation of its legislature for their assent and ratification;' and that each convention assenting to and ratifying the same should give notice thereof to Congress. The convention, by a further resolution, deciared their opinion, that as soon as nine States had ratified the Constitution, Congress should fix a day on which electors should be appointed by the

States which should have ratified the same, and a day on which the electors should assemble and vote for the president, and time and place of commencing proceedings under the Constitution; and that after such publication the electors should be appointed and the senators and representatives elected. The same resolution contained further recommendations for the purpose of carrying the Constitution into effect. . . . "Congress, having received the report of the convention on the 28th of September, 1787, unanimously resolved, that the said report, with the resolutions and letter accompanying the same, be transmitted to the several legislatures in order to be submitted to a convention of delegates chosen in each State by the people thereof, in conformity to the resolves of the convention, made and provided in that case.'

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"Conventions in the various States which had been represented in the general convention were accordingly called by their respective legislatures; and the Constitution having been ratified by eleven out of the twelve States, Congress, on the 13th of September, 1788, passed a resolution appointing the first Wednesday in January following for the choice of electors of president; the first Wednesday of February following, for the assembling of the electors to vote for a president; and the first Wednesday of March following, at the then seat of Congress [New York], the time and place for commencing proceedings under the Constitution. Electors were accordingly appointed in the several States, who met and gave their votes for a president; and the other elections for senators and representatives having been duly made, on Wednesday, the 4th of March, 1789, Congress assembled and commenced proceedings under the new Constitution. A quorum of both Houses, however, did not assemble until the 6th of April, when, the votes for President being counted, it was found that George Washington was unanimously elected President, and John Adams was elected Vice-President. On the 30th of April President Washington was sworn into office, and the government then went into full operation in all its departments.

"North Carolina had not, as yet, ratified the Constitution. The first convention called in that State, in August, 1788, refused to ratify it without some previous amendments and a declaration of rights. In a second convention, however, called in November, 1789, this State adopted the Constitution. The State of Rhode Island had declined to call a convention; but finally, by a convention held in May, 1790, its assent was obtained; and thus all the thirteen original States became parties to the new government." —1 Story's Commentaries on the Constitution of the United States (5th ed.), §§ 200, 201, 216, 222-224, 225, 242, 248, 272-276, 277-280.1

1 Reprinted by permission. — ED.

NOTE.

FOR the methods of changing the Constitution of the United States, see Article V. of that instrument. Can it legally be changed in any other way? See Jameson, Const. Conv. (4th ed.) s. 575.

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It should, however, be carefully noted that the term "sovereignty," as long as it is accurately employed in the sense in which Austin sometimes (compare Austin, Jurisprudence, i. (4th ed.) p. 268) uses it, is a merely legal conception, and means simply the power of law-making unrestricted by any legal limit. If the term sovereignty be thus used, the sovereign power under the English Constitution is clearly "Parlia ment." But the word "sovereignty" is sometimes employed in a political rather than in a strictly legal sense. That body is "politically" sovereign or supreme in a State the will of which is ultimately obeyed by the citizens of the State. In this sense of the word the electors of Great Britain may be said to be, together with the Crown and the Lords, or perhaps in strict accuracy independently of the King and the Peers, the body in which sovereign power is vested. For, as things now stand, the will of the electorate and certainly of the electorate in combination with the Lords and the Crown is sure ultimately to prevail on all subjects to be determined by the British Government. The matter indeed may be carried a little further, and we may assert that the arrangements of the Constitution are now such as to insure that the will of the electors shall by regular and constitutional means always in the end assert itself as the predominant influence in the country. But this is a political, not a legal fact. The electors can in the long run always enforce their will. But the courts will take no notice of the will of the electors. The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors. The political sense of the word "sovereignty" is, it is true, fully as important as the legal sense or more so. But the two significations, though intimately connected together, are essentially different, and in some parts of his work Austin has apparently confused the one sense with the other. - DICEY, Law of the Constitution (4th ed.), 69, 71.

In spite of the doctrine enunciated by some jurists that in every country there must be found some person or body legally capable of changing every institution thereof, it is hard to see why it should be held inconceivable that the founders of a polity should have deliberately omitted to provide any means for lawfully changing its bases. Such an omission would not be unnatural on the part of the authors of a Federal union, since one main object of the States entering into the compact is to prevent further encroachments upon their several State rights; and in the fifth article of the United States Constitution may still be read the record of an attempt to give to some of its provisions temporary immutability. The question, however, whether a Federal Constitution necessarily involves the existence of some ultimate sovereign power authorized to amend or alter its terms is of merely speculative interest, for under existing Federal governments the Constitution will be found to provide the means for its own improvement. It is, at any rate, certain that whenever the foun

1 Eminent American lawyers, whose opinion is entitled to the highest respect, maintain that under the Constitution there exists no person, or body of persons, possessed of legal sovereignty, in the sense given by Austin to that term, and it is difficult to see that this opinion involves any absurdity. Compare Constitution of United States, art. 5. It would appear further that certain rights reserved under the Constitution of the German Empire to particular States cannot under the Constitution be taken away from a State without its assent. (See Reichsverfassung, art. 78.) The truth is that a Federal Constitution partakes of the nature of a treaty, and it is quite conceivable that the authors of the Constitution may intend to provide no constitutional means of changing its terms, except the assent of all the parties to the treaty.

ders of a Federal government hold the maintenance of a Federal system to be of primary importance, supreme legislative power cannot in a confederacy be vested in any ordinary legislature acting under the Constitution. For so to vest legislative sovereignty would be inconsistent with the aim of Federalism, namely, the permanent division between the spheres of the National Government and of the several States. If Congress could change the Constitution, New York and Massachusetts would have no legal guarantee for the amount of independence reserved to them under the Constitution, and would be as subject to the sovereign power of Congress as is Scotland to the sovereignty of Parliament; the Union would cease to be a Federal State, and would become a unitarian republic. If, on the other hand, the Legislature of South Carolina could of its own will amend the Constitution, the authority of the central gov. ernment would (from a legal point of view) be illusory; the United States would sink from a nation into a collection of independent countries united by the bond of a more or less permanent alliance. Hence the power of amending the Constitution has been placed, so to speak, outside the Constitution, and one may say, with sufficient accuracy for our present purpose, that the legal sovereignty of the United States resides in the majority of a body constituted by the joint action of three fourths of the several States at any time belonging to the Union. See Constitution of U. S., art. 5. Now from the necessity for placing ultimate legislative authority in some body outside the Constitution a remarkable consequence ensues. Under a federal as under a unitarian system there exists a sovereign power, but the sovereign is in a Federal State a despot hard to rouse. He is not, like the English Parliament, an ever-wakeful legislator, but a monarch who slumbers and sleeps. The sovereign of the United States has been roused to serious action but once during the course of ninety years. It needed the thunder of the Civil War to break his repose, and it may be doubted whether anything short of impending revolution will ever again arouse him to activity. But a monarch who slumbers for years is like a monarch who does not exist. A Federal Constitution is capable of change, but for all that, a Federal Constitution is apt to be unchangeable. Ib. 137-140.- ED.

2. STATE CONSTITUTIONS.

"WHEN the colonies entered upon that course of opposition to the Crown which ripened into the Revolution, it was neither their intention nor their desire to effect a separation from Great Britain. . . . The organizations provided were of the simplest character, consisting of Provincial Conventions or Congresses, modelled on the same plan as the General Congress at Philadelphia, comprising a single chamber, in which was vested all the powers of government. These bodies, found in all the colonies, save Connecticut and Rhode Island, whose Assemblies, fairly chosen by the people, it was not found necessary to supersede, were made up of deputies elected by the constituencies established under the Crown, or appointed by meetings of the principal citizens or by the municipal authorities of the chief towns and cities. All legislative anthority was exercised by those bodies directly. Their executive functions were intrusted to Committees of Correspondence, of Public Safety, and the like, appointed by themselves, and during the sittings of the Conventions or Congresses, were discharged under their own supervision. In the interims between their sessions, however, the powers of those committees were substantially absolute.

1 Under the Constitution of the German Empire the Imperial legislative body can amend the Constitution. But the character of the Federal Council (Bundesrath) gives ample security for the protection of State rights. No change in the Constitution can be effected which is opposed by fourteen votes in the Federal Council. This gives a veto on change to any one of three States and to combinations of minor States. The extent to which national sentiment and State patriotism respectively predominate under a Federal system may be conjectured from the nature of the authority which has the right to modify the Constitution. . . .

"Under organizations thus loose and unrestricted, government was carried on in the colonies for many months, and that without protest or discontent, so long as the general expectation of a return to allegiance, following upon a redress of grievances, continued to exist. As time advanced, however, and it became evident, ou the one hand, that the mother country would not purchase the submission of her revolted subjects by compromise or even by conciliation, and, on the other, that the work of subduing them, if possible at all, could be accomplished only by a long and bloody contest, there arose a general desire for the establishment of more regular governments than those by Congresses and committees. Thus, in May, 1775, the Provincial Convention of Massachusetts, charged with the government of the colony, applied to the Congress at Philadelphia for explicit advice respecting the proper exercise of the powers of government. In reply, after declaring that no obedience was due to the Act of Parliament lately passed for altering her charter, that body recommended that the convention should write letters to the several towns entitled to representation in the Assembly, requesting them to choose representatives to form an Assembly, and to instruct the latter, when convened, to elect counsellors; adding their wish, that the bodies thus formed should exercise the powers of government until a governor of the king's appointment would consent to govern the colony according to its charter. This answer was made in June, 1775, and the advice given was followed, and the govern ment thus constituted was the only one Massachusetts had until the establishment of her first Constitution in 1780. In October, 1775, the delegates to the Continental Congress from New Hampshire laid before that body instructions, received by them from the New Hampshire Convention, to obtain the advice and direction of Congress in relation to the establishment of civil government in that colony. Similar requests were, about the same time, sent up from the Provincial Conventions of Virginia and South Carolina. At length, on the 3d and 4th of November, 1775, Congress agreed upon a reply to these applications, in which those bodies were advised to call a full and free representation of the people, in order to form such a form of government as, in their judgment, would best promote the happiness of the people, and most effectually secure peace and good order in their provinces during the continuance of the dispute with Great Britain.' . .

The first colony to act upon the recommendations of Congress was New Hampshire. In less than a fortnight after the passage by Congress of the resolutions of November 3d, 1775, the Provincial Convention of that Colony took into consideration the mode in which a full and free representation' for the purpose indicated by Congress should be constituted. It was finally determined that it should take the form of a new convention, to be summoned by the Provincial Convention, and that for the purpose of apportioning fairly the delegates to be chosen to it, a census of the inhabitants should be taken. It was moreover recommended, that the representatives chosen should be empowered by their constituents to assume government, as recommended by the General Congress, and to continue for one whole year from the time of such assumption.' Having recommended this plan, and 'sent copies of it to the sev eral towns, the convention dissolved.' In pursuance of the recommendations accompanying the plan, a new convention was chosen, and assembled on the 21st of December following, by which the first Constitution of New Hampshire was framed, and her first formal government, independent of the Crown, established. According to Dr. Belknap, the historian of the State, as soon as the new convention came together, they drew up a temporary form of government; and, agreeably to the trust reposed in them by their constituents, having assumed the name and authority of a House of Representatives, they proceeded to choose twelve persons, to be a distinct branch of the legislature, by the name of a council.' This form of government was practically limited to a single year by an ordinance providing that the present Assembly should subsist one year, and if the dispute with Great Britain should continue longer, and the General Congress should give no directions to the contrary, that precepts should be issued annually' for the return of ‘new Counsellors and Representatives. By the convention thus called and organized were assumed all the powers of government. In a word, it was a revolutionary convention. As distinguished from the body itself, there was no judiciary, and no executive. The only feature in which it resembled a regularly

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