far as they relate to the present subject. The following principles were to be recognized in framing a bill of rights and constitution: Ist. Political power is of two kinds, one principal and superior, the other derived and inferior. 2d. The principal supreme power is possessed by the people at large, the derived and inferior power by the servants which they employ. . . . 4th. Whatever is constituted and ordained by the principal supreme power can not be altered, suspended or abrogated by any other power, but the same power that ordained may alter, suspend and abrogate its own ordinances. 5th. The rules whereby the inferior power is to be exercised are to be constituted by the principal supreme power, and can be altered, suspended and abrogated by the same and no other." The delegates were finally instructed to "endeavor that the form of Government when made out and agreed to by the Congress shall be transmitted to the several counties of this State to be considered by the people at large for their approbation and consent if they should choose to give it to the end that it may derive its force from the principal supreme power.' 99 83 The congress met on November 12, 1776; on Friday, December 6th, the committee reported the form of a constitution and it was ordered, "That the same be taken into consideration on Monday next; that one copy of the said Form of a Constitution be furnished for each District in this State, and one copy for each County. . . The constitution was adopted on December 18, 1776.34

On July 27, 1776, the assembly of Delaware took under consideration the resolves of the Continental Congress of May 10th, and decided that a new government should be formed and, "That it be recommended to the good people 38 N. C. Colonial Records, x, 870 a-f.

34 Ibid., x, 954, 974, 1040.

of the several Counties in this Government to choose a suitable number of Deputies to meet in Convention, there to order and declare the future form of government for this State." 35 The convention of Delaware was not expressly limited to the one task of forming a constitution and did not consider its powers so restricted. While in session it took such other actions as the assembly might have taken had it been in session at the same time.36

By the Pennsylvania charter of privileges of 1701 it was provided that the charter might be altered by the governor and six-sevenths of the assembly. When the continental resolve of May 10, 1776, was taken under consideration, the assembly, acting as nearly as possible in pursuance of the charter, assumed that it had power to establish a new form of government. But the assembly was under the control of the conservatives, and the radical element determined to prevent its exercising this power. The Philadelphia committee called a conference of county committees, which met on June 18, 1776, and resolved: "That it is necessary that a provincial convention be called by this conference for the express purpose of forming a new government in this province, on the authority of the people only." The convention which met in pursuance of this call framed the Pennsylvania constitution of 1776. During the whole period of its existence it also acted as the regular legislative body of the state.

37

On September 5, 1776, this convention ordered four hundred copies of its proposed frame of government "printed

35 Force, American Archives, Fifth Series, i, 617.

36 Proceedings of the convention of the Delaware State. The proceedings of this convention were published contemporaneously by James Adams at Wilmington. Force, Fifth Series, ii, 285.

37 Journals of the House of Representatives of Pa., 1776-1781, p. 36.

for public consideration;" the consideration of the constitution was resumed by the convention on September 16, and it was adopted on September 28.38 A meeting at Philadelphia on October 21 and 22, 1776, protested that the convention "did not allow time to the people of this State to take into their consideration the proposed frame of Government." ." 39 The printing for public consideration and the postponement of action may however be considered a submission to the people, although it must be said that such submission was of a very informal character.

The Georgia provincial congress discussed the subject of forming a government, in March, 1776, but its members alleged that they had no authority from their constituents to enter upon the matter, and agreed to submit the subject. for the consideration of the people.40 A temporary form of government was adopted. In a circular issued with reference to the convention which had been called to meet at Savannah in October, 1776, President Bulloch enjoined upon the people the "necessity of making choice of upright and good men to represent them in the ensuing convention— men whose actions had proved their friendship to the cause of freedom, and whose depth of political judgment qualified them to frame a constitution for the future government of the country." "1 The constitution of 1777 was adopted by this body.

41

The first constitution of Vermont was framed by a convention called in pursuance of a circular of a previous con

38 Journals of the House of Representatives of Pa., 1776-1781, 76, 84, 89.

39 Pennsylvania Gazette, October 23, 1776.

40 McCall, History of Georgia, ii, 75.

41 Stevens, History of Georgia, ii, 297, quoting from President Bulloch's circular.

vention, of June, 1777, recommending "to the freeholders and inhabitants of each town in this state to meet at some convenient place in each town on the 23d day of this instant June and choose delegates to attend a general convention at the meeting-house in Windsor . . . to form a constitution for said state." 42 Ira Allen says that Bennington objected to this constitution because it was not ratified by the people, but the truth of this statement has been doubted.

48

The first constitutions of South Carolina, Virginia, and New Jersey were adopted by provincial congresses chosen for the purpose of directing the revolutionary movement against Great Britain, and without any specific authorization from the people to take such action. Yet in both South Carolina and Virginia the question was raised as to the power of the provincial congress to adopt a constitution, and was decided in the affirmative, largely, perhaps, upon the argument of expediency.

In February, 1776, a committee appointed by the provincial congress of South Carolina reported a constitution, but action upon it was opposed by many members, "some of them because they were not prepared for so decisive a measure others, because they did not consider the present members as vested with that power by their constituents.“ This opposition was not sufficiently strong to prevail, and the constitution was adopted.

It has frequently been asserted that the South Carolina constitution of 1778 was passed as an ordinary act of the

42 Records of the Council of Safety and the Governor and Council of Vt., i, 58. This constitution was revised by a convention of December, 1777, and this second convention seems to have acted without having any special authority to do so.

43 Allen, History of Vermont, 108-111. (Collections Vt. Hist. Soc. i, 391). But see Chipman's Memoir of Thomas Chittenden, 108-11I. 44 Drayton, Memoirs of the American Revolution, ii, 172, 176.

45

legislature, but what evidence there is goes to indicate that the members of the legislature were authorized by their constituents to adopt a constitution. Defects seem

46

almost immediately to have been discovered in the constitution of 1776. A committee of the assembly, appointed in October, 1776, reported certain alterations which it considered expedient. Ramsay says that the elections of October, 1776, were " conducted on the idea that the members chosen, over and above the ordinary powers of legislators, should have the power to frame a new constitution suited to the declared independence of the state." This matter was immediately taken up by the new legislature. Richard Hutson wrote to Isaac Hayne on January 18, 1777, “We yesterday finished the difficult Reports of the committee on the Constitution with regard to amendments therein, and it is now ordered to be thrown into a Bill. A motion will be made, and I have no doubt but it will be carried, to have it printed and circulated through the State, and to postpone the passing of it till the next session. . . Such a postponement was taken, in order that the people might have

99 48

45 This view has been strengthened by the case of Thomas v. Daniel, 2 McCord, 354, in which the court said: "The form of government adopted by the legislature of 1776, was no more than any other legislative act, and was subject to the revision and repeal of a succeeding legislature. The legislature of 1778, did revise and repeal the act of 1776, and adopted another form of government, which is called the constitution of 1778. This constitution pretends to no control over succeeding legislatures although it does restrain the officers of government in the exercise of the powers vested in them for the administration of the laws. Had it attempted to restrain future legislatures, it would have been inoperative; as each legislature possessed all the power of the people, who can undo whatever they may have done." 46 Force, American Archives, Fifth Series, iii, 61, 64, 71, 73. 47 Ramsay, Revolution in South Carolina, i, 129.

48 McCrady, South Carolina in the Revolution, 1775-1780, p. 213.