Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-11-10
THECONvENTIoNo QUESTION
SPEECH OF EDMUND COOPER.
In the senate, Tuesday, Nov. 8, 1869,
i'm Favor of the Bill ia Lieu of the
House Bill, Reported by the Wi.
nOriiy OF the Judiciary Committee.

| Mr. Speaker: On yesterday ] listened
| with interest to the views urged upon the
Senate by the Senator from Wash
ington, in favor of the propositions
submitted by the minority of the Judiciary
Committee, in the report which they had
the honor to make to the Senate few days
ago; as well as the positions assumed by
the Senator from Gibson, aud the Senator
from McMinn, in opposition to the measures
| proposed And now ask the indulgence
of the Senate in submitting few additional
remarks in support of the plan proposed
for amending the Constitution of the State
by the minority-the Legislative depart
ment adopting the proposed amend
ments," and submitting them directly to
the people for their approval or rejection.
Our first proposition was that no conven-
ton Of delegates can legally assemble in this
| State for the purpose of altering, reforming
or abolishing the present constitution with
out the consent of the existing State gov
eminent, given through the Legislative de-
partment.
Now, L put the question to the Senate,
| and ask of them, did either of the Senators
deny the correctness of the proposition as
sumed? On the contrary; was not its cor
rectness admitted by the Senator from
Gibson? If so, does not every shaft, either
of argument or ridicule, fall harmless, SO
long as the foundation of the report is con-
| coded
1t is true that we feel thankful that the
attacking column could not scale the very
first outwork, yet we are equally gratified
that, after all their examination and legal
skill, the Senators were compelled to admit
Il that u11ah ,,f la1ar,ak ae
| not legally assemble in this State without
the consent of this General Assembly"
The authorities sustaining this prOpo-
sition are so full and overwhelming, that L
need only refer to them, and ask the Sena-
tors to give to them a careful examination.
Cooleys Constitutional Limitations ex-
presses the doctrine in the following Ian
guage:
In the original States, and all others
subsequently admitted to the Union, the
powa to amend or revise the Constitution
resides in the great body of the people as
an organized body polite, who, being
vested with ultimate sovereignty, and the
source of all State authority, have power
to control and alter the law, which they
have made at their will, But the people,
in the legal sense, must be understood to be
those who by the existing Constitution, are
vested with political rights, and who, while
that instrument remains, will be the sole
organ through which the will of the body
polite can be expressed But the will of
thepeople to this end can only be expressed
in the legitimate modes by which such a
body polite can act, and which must either
be prescribed by the Constitution whose
revision or amendment is sought, or by
an act of the legislative department of the
State which alone would be authorized TO
speak for the people on this subject, and to
point ont mode for the expression of their
within the absence of any provision for
amendment contained in the Constitution
itself
A" In accordance with universal practice,
| and from the very nature of the case amend
| ments to an existing constitution, or entire
| revision of it, must be proposed and ma
tured by some body of representative men
chosen for the purpose. It is obviously
| impossible for the whole people to meet,
| prepare and discuss the proposed altera-
| tons, and there seems no feasible mode by
| which an expression of their will can be
obtained, except by asking it upon the
| single point of assent or disapproval. But no
l body of representatives, unless specially
| clothed with power for that purpose
| by the people when choosing them,
can rightfully take definite action upon
| amendments or revisions; but they must
| submit the result of their deliberations to
the people, who alone are competent to e1-
ercise the powers of sovereignty in the
| framing of the fundamental law, for ratifi-
| cation or rejection. The Constitutional
| Convention Is the representative of sover-
eighty only in very qualified sense, and
| for the specific purpose, and with the re-
stricted authority, to put in proper form
the questions of amendment upon which
the people are TO pass; but the changes in
the fundamental law of the State must be
enacted by the people"
And to the same effect III addition to the
case referred to in the report of the minor
| ity of Luther as Borden, VII Howard,
70, p, Senators will find the same doctrine
fully discussed and clearly enumerated by
Jamison in his work on the constitutional
Convention, page 2}0, when, abiding TO
the mastery argument of Mr.. Webster IN
the Rhode Island case, and at pages 365and
366, where he gives his conclusions in
strict accordance with the doctrines an
nounced in the repor. Of the minority.
Then, if a convention of delegates can
not assemble without the consent of the
legislative department, which is the crea-
ture, and which the creator? All power is
in the people II HeCesTtate rel it is
delegated to the electors. They have con
ferred it on the Legislature unless express
ly prohibited. The Legislative department
breathes as the representatives of the PEG.
pie, life into the Convention Without
such consent it would have no existence
II Il. = 4 Il
Legislative department If SO, as our agen
it acts. What we can do by an agent vi
certainly can do ourselves.
When assembled, the Convention canno
enact amendments OF alterations. 1t can
only propose them to the people for thei
ratification or rejection.
The General Assembly of the State o
Tennessee, under our constitution, is the
only constitutional convention known t,
the written law The members of the Gen
eral Assembly are expressly clothed with
power to propose amendments. WheI
selected, they were chosen with the ful
knowledge on the part of the electors tina
they can, if they see proper, propos
amendments to the constitution. 1t is no
on the part of the General Assembly usuT
patton or the exercise Of illegal power. tn
authority is in the constitution, and wei
may we say, "Ho Ter scripta est
And this meets two of the objection
] urged by the Senator from McMinn agains
the substitute proposed by the minority.
/. That it is an unheard of propositio
in the political history of the country tha
the creature can be greater than the creG
{ tor.
? That whilst the Legislative department
2 is clothed with all of the sovereignty OF tn
people, subject only TO such restrictions q
p are imposed by the constitution of tn
e State and to the limitations contained i
e the constitution of the United States, thu
it is limited to the law-making power an
= cannot interfere with the judicial depart
ment, although not expressly inhibited.
Because, even if cOncede the propos
!, ton to be limited, as stated by the Senate
i yet, ask is not the Legislative department
, expressly clothed with the power of amend
u ment, and that it can propose amendment
t and alterations to the people for their adOI
ton or rejection.
!, Then such being the fact, that the Ger
: eral Assembly has the unquestioned rigl
! to propose amendments-andt the only d.
g partment under the State Government
!. that is clothed with the legal power thus I
act, and that the General Assembly is II,
y inhibited from its exercise, and that it hl
y the full authority delegated to it-then tn
g only remaining questions for the Senate t
decide, are: First, can this General A,
sembly legally propose amendments to II
y existing Constitution?
:. This we answer affirmatively undo
= Article XL Section 3. If SO, can it pr,
II pose the amendments and submit them I
. the people in a mode and manner differei
e from the plan designated in the article an
section quoted?
n Remember, the General Assembly
n clothed not only with the power to NAL
the laws, but also to propose amendment
a to the Constitution. If, therefore, it is
Constitutional Convention for the purpo!
! of proposing amendments, then there
: nothing Objectionable, in the legality of t