Court should afterward be submitted to the towns for approval. Some of the towns opposed the formation of a constitution by the regular legislative body. The Boston town meeting adopted instructions to its representatives which said: "With respect to the General Courts forming a new Constitution. You are directed by a unanimous Vote of a full Meeting, on no Terms to consent to it, but to use your influence, & oppose it Heartily, if such an Attempt should be made, for we apprehend this Matter (at a suitable time) will properly come before the people at large to delegate a select number for that purpose & that alone..

99 20

The Massachusetts assembly resolved itself into a constitutional convention on June 17, 1777, and on February 28, 1778, adopted a constitution, which was published several days later. This constitution was submitted to the freemen in their town meetings, and it was suggested that they empower their representatives in the next General Court to establish the constitution, if it should have been approved by the people.21 The proposed constitution was rejected by the people for various reasons, among which an important one was that it had not been framed by a body chosen for the one purpose of forming a constitution.22

On February 20, 1779, the General Court resolved that those qualified to vote for representatives should be requested to express their opinion as to the desirability of forming a constitution, and as to whether they would em

20 Boston Town Records, 1770-1777, 284. Resolves of Mass., May 5, 1777.

21 Resolves of Mass., March 4, 1778.

22 Cushing, Transition from provincial to commonwealth government in Mass., 190, 200-204, 214-226. The present account of the constitutional development of Massachusetts is based largely upon Dr. Cushing's monograph.

power their representatives to call a convention for the sole purpose of framing such a constitution.23 Both propositions were carried, and the General Court in June, 1779, resolved that elections should be held for a convention to meet at Cambridge on the first day of the succeeding September. The next house of representatives was to establish the constitution, if it should be ratified by two-thirds of the free male inhabitants, over twenty-one years of age, acting in town meetings called for that purpose.24 The constitution of 1780 was adopted by this body and ratified by the people.

In all of the other states except South Carolina, Virginia and New Jersey the procedure was practically the same. In each case the constitution was framed and put into effect by a body exercising general legislative power, but which had direct authority from the people to form a constitution. But it will be necessary to present the evidence upon which the foregoing statement is based.

In May, 1776, the New York provincial congress discussed the recommendation of the Continental Congress that a government should be organized, appointed a committee to consider the matter, and accepted its report which

23 Resolves of Mass., February 20, 1779.

24 Ibid., June 21, 1779. As an indication of the attitude of the House of Representatives of Massachusetts on constitutional questions it may be worth while to call attention to the fact that the House submitted the Articles of Confederation to the towns instead of acting directly upon the matter. Journal of the House of Representatives of Massachusetts, 1777-78, 141, 143 (Dec. 15, 1777). Records of Town of Weston, 244. Merrill's, History of Amesbury, 272-274. See also Lobingier, The People's Law, 168. The question as to the expediency of declaring independence was submitted to the towns by the Massachusetts house of representatives in May, 1776. Edward M. Hartwell in Monthly Bulletin of the Statistics Department of the City of Boston, vol. xi (1909), p. 154.

66

said that the right of framing, creating or new modeling civil government, is, and ought to be in the people. . . . That doubts have arisen whether this Congress are invested with sufficient authority to frame and institute such new form of internal government and police. That those doubts can and of right ought to be removed by the good people of this colony only." The committee recommended that a new congress be convened "with the like powers as are now vested in this congress, and with express authority to institute and establish such new and internal form of government as aforesaid." 25 Such action was taken and the delegates who met in convention at White Plains on July 9, 1776, had express authority from their constituents to form a constitution. In Kings County where new elections were not held the county committee instructed the member of the former congress to attend, but the convention voted that he should not act in the matter of forming a government. 26

The constitution formed by this convention was not submitted to the people, and there seems to have been no idea upon the part of the convention that such action should be taken; in fact, even if submission had been seriously considered it would have been impracticable because of the distracted condition of the the state, a large part of whose territory was occupied by the enemy. But certainly there was in 1776 some sentiment in favor of a submission, and in one quarter at least objection was made to the resolution of the provincial congress in May, 1776, providing for a

25 Journals of the provincial congress of New York, i, 462. Becker (History of Political Parties in the Province of New York, 1760-1776, p. 268) says that Gouverneur Morris apparently contemplated a constitutional convention distinct from the congress, but there seems to be no evidence that Morris had in mind the election of an independent convention for the framing of a constitution.

20 Journals of the provincial congress of New York, i, 572.

convention to institute and establish a new form of government. The Mechanicks in Union for the city and county of New York, in an address to the provincial congress on June 14, 1776, said: "We could not, we never can, believe you intended that the future delegates or yourselves should be vested with the power of framing a new Constitution for this Colony, and that its inhabitants at large should not exercise the right which God has given them, in common with all men, to judge whether it be consistent with their interest to accept or reject a Constitution framed for that State of which they are members. This is the birthright of every man, to whatever state he may belong. There he is, or ought to be, by inalienable right, a co-legislator with all the other members of that community.

27

In Maryland the provincial convention resolved on July 3, 1776: "That a new convention be elected for the express purpose of forming a new government, by the authority of the people only, and enacting and ordering all things for the preservation, safety, and general weal of this colony." 28 That some of the people of this state took a lively interest in the organization of government is shown by the fact that B. T. B. Worthington, Charles Carroll, barrister, and Samuel Chase, the two latter undoubted leaders and members of the committee to prepare a form of government, resigned from the convention because they had received “instructions from their constituents, enjoining them, in framing a government for this state, implicitly to adhere to points in their opinion incompatible with good government and the public peace and happiness. 29 Although there was

27 Force, American Archives, Fourth Series, vi, 895-898. This address is quoted in full in Lobingier, The People's Law, 157-161. 28 Proceedings of the conventions of Maryland, 184.

29 Ibid., 222, 228.

no formal reference of the first constitution of Maryland to the people, the action taken by the convention on September 17, 1776, probably served a similar purpose. The committee had reported to the convention a proposed bill of rights and constitution; action upon this report was postponed until September 30th, and it was resolved "that the said bill of rights and form of government be immediately printed for the consideration of the people at large, and that twelve copies thereof be sent without delay to each county in the state.

The North Carolina provincial congress had the framing of a constitution under consideration in April, 1776, but the members were unable to agree, and adopted a temporary form of government.31 It seems to have been generally understood that the consideration of the matter would be renewed by the next congress, and the Council of Safety on August 9, 1776, resolved "that it be recommended to the good people of this now Independent State of North Carolina to pay the greatest attention to the Election to be held on the fifteenth of October next, of delegates to represent them in Congress, and to have particularly in view this important consideration. That it will be the business of the Delegates then chosen not only to make Laws for the good Government of, but also to form a Constitution for this State, that this last as it is the Corner Stone of all Law, so it ought to be fixed and permanent.

2) 32

Mecklenburg county drew up an elaborate set of instructions for its members to the provincial congress, which were also adopted in part by Orange county. These instructions are of sufficient interest to be quoted almost in full, in so

30 Proceedings of the conventions of Maryland, 258.

81 N. C. Colonial Records, x, 498, 579.

32 Ibid., x, 696.