ance of that authority—they frame a consti-
tution—a large majority of its members, after
months of deliberation and discussion, adopt
it—they are to submit the work of their
hands to their constituents—they require,
however, that all who offer to vote upon it
shall swear that they have never given aid,
countenance or support to the rebellion which
is seeking to overthrow the government of
which they are part—they claim to do this
not merely as the representatives of the people
intrusted by them in such cases with powers
adequate to such a proceeding, but they rely
upon the grant of express authority to that
effect by the legislature which provided for
their meeting, and upon the authority of
similar proceedings by other conventions.
You and I may look at these transactions
from different points of view, but I think it
must be admitted I have correctly recited the
leading facts in the two cases, and, assuming
this to be so, can it be contended that there is
any similitude between them, and that be-
cause in the one I promised that the power of
the State should be exerted to defend the
judges in the execution of its unquestioned
laws, I should now interfere, not as then, to
protect them for obeying these laws, but to
become the exponent of what these laws are in
a case where the people of the State differ
widely in opinion, whether the law of the
next election is to be found in the old consti-
tution or the new ?
You, I know, consider the action of the
convention a usurpation. I have briefly sta-
ted some of the reasons why, to my mind,
that is not so palpable. Not because in the
plenitude of the powers with which such con-
ventions are supposed to be invested, and to
which I have occasionally referred, they can
do no wrong—for we can imagine that such a
body, as well as an individual, might assume
an authority that would be a flagrant usurpa-
tion.
If the people, for instance, at the election at
which the members of this convention were
chosen had voted that we should have no con-
vention, and these members had still insisted
on assembling; or if some small number of
those elected, confessedly less than a quorum
bad undertaken to form a new constitution—
these would have been such unquestionable
usurpations, revolutionary almost in their
character, that no officer in the State would
bebound to regard them; but to my mind
the difference between such cases and the one
we are discussing is very obvious.
I referred in my previous letter, in illustra-
tion of the powers claimed for a convention
of this character, to the present constitution
of the State, inaugurated as it was in a man-
ner forbidden by the constitution which it
superseded. You object to that precedent as
not applicable to the present case, because the
part of the old constitution disregarded, rela-
ted only to the manner of amending it, and
74 |
did not affect the rights of the people under
it.
Let me cite another authority, the applica-
bility of which I think you will not deny,
and which supports the course of the late
convention in the proceeding in question as
far as precedent possibly can.
In 1829 a constitutional convention assem-
bled in Virginia. A recurrence to a list of
its members will show a roll of illustrious
names, surpassed in character and talent by
none that ever formed a similar assembly.
They adopted a new constitution, which,
like ours, was only to become operative when
ratified by the people. The concluding lines
of its preamble declared that " We, there-
fore, the delegates and representatives of the
good people of Virginia., elected and in con-
vention assembled, &c., do submit and propose
to the people the following constitution."
Now, who were the people to whom they thus
submitted it? The qualification required of a
Virginia voter, like our own, was precisely de-
fined by their constitution. None but free-
holders were qualified to vote. They alone
had enjoyed the right of suffrage for fifty
years, and they alone had elected that con-
vention.
The constitution which secured to them
this exclusive privilege was still in force, and
must so continue until they adopted another,
and, as you say in reference to ours, the new
constitution proposed to them, until so
adopted, was a mere proposition without vi-
tality or energy. To apply to it your com-
ments in this case, until then it was "but a
skeleton," "a feather floating upon the
breeze of popular opinion," and "required
the people to breathe into it life and power."
Using your argument in the present case, the
rights and property of the people of the State
were held under the old constitution, the quali-
fications by it prescribed tor the voter must
continue as the only qualification until another
ratified by these qualified voters took its place.
Hence your conclusion that to allow a new
qualification to be required before that time
was an infraction of constitutional rights) and
to provide for the taking the vote of soldiers
out of the State, when that was not permit-
ted by the existing constitution, was a fla-
grant usurpation of authority. This, un-
doubtedly, is your argument, briefly stated.
Now, under the constitution of Virginia, all
who were not freeholders were as effectually
excluded from the elective franchise as their
negro population, and yet the convention,
in submitting the new constitution to the
people, allowed large classes to vote, such as
owners of leasehold, householders who paid
a tax, and many others who had never be-
fore exercised the right of suffrage.
The convention allowed them to vote.
They did vote, and undoubtedly by their
vote the constitution was carried. The only
possible difference between the authority of |
