an opportunity to express themselves, and the legislature did not take final action upon the constitution until its December session, 1777. In the meantime the proposed constitution was printed and circulated among the people.1 President Rutledge, in refusing his assent to the constitution of 1778 and in a contemporary letter to Henry Laurens, denied the power of the legislature to adopt a constitution, and practically denied that a power to change the form of government existed anywhere except upon the dissolution of an existing government.

50

The New Jersey provincial congress, which met in June, 1776, entered upon the establishment of a constitution, in compliance with petitions from the inhabitants of different parts of that province, although there were also a number of petitions against such action." There is no evidence as to whether this body doubted its power to take such action.

The attitude of the leaders of the Virginia convention of

49 With the bill as printed by Peter Timothy at Charleston in 1777, there appears an order of the two houses, of February 3, 1777, “That the Bill, intitled 'A Bill for establishing the Constitution of the State of South Carolina'. . . be printed and made public."

50 Ramsay, Revolution in South Carolina, i, 132. Correspondence of Henry Laurens, 103.

51 Mulford, History of New Jersey, 415, 416. The election of delegates to the provincial congress was held on May 27, and the resolution of the Continental Congress that all government under the crown of Great Britain should be suppressed had been ordered published on May 15; it is possible, therefore, that the question of establishing a new state government may have been discussed before the election of May 27. It is certainly true that the question was under discussion immediately after the election; almost as soon as the new provincial congress assembled (June 10, 1776) petitions began to be presented both for and against the establishment of a new government; it would seem that the petitioners had no doubt of the power of that body to act in the matter. Minutes of the Provincial Congress and the Council of Safety of New Jersey, 451, 455, 458, 464, 468, 470, 471. New Jersey Archives, Second Series, i, 130.

1776 is well indicated by the statement of Edmund Randolph: "As soon as the Convention had pronounced the vote of independence, the formation of a constitution or frame of government followed of course. . . Mr. Jefferson who was in Congress urged a youthful friend in the Convention [Edmund Randolph] to oppose a permanent constitution, until the people should elect deputies for the special purpose. He denied the power of the body elected (as he conceived them to be agents for the management of the war) to exceed some temporary regimen. The member alluded to communicated the ideas of Mr. Jefferson to some of the leaders in the house, Edmund Pendleton, Patrick Henry and George Mason. These gentlemen saw no distinction between the conceded power to declare independence, and its necessary consequence, the fencing of society by the institution of government. Nor were they sure, that to be backward in this act of sovereignty might not imply a distrust, whether the rule had been wrested from the king." 52 St. George Tucker has stated strongly the case in favor of the convention's exercising the power without specific authority from the people. He says the convention was not an ordinary legislature, but a revolutionary body deriving its power directly from the people. "It was the great body of the people assembled in the persons of their deputies, to consult for the common good, and to act in all things for the safety of the people." Tucker also calls especial attention

52 Rowland's Life of George Mason, i, 235. See also Jefferson's Notes on Virginia. Ford's Writings of Jefferson, iii, 225-229. Jefferson's draft of a constitution, which was not before the leaders of the convention until after the work of framing a constitution was nearly finished, contemplated submission to the people. "It is proposed that the above bill, after correction by the convention, shall be referred by them to the people to be assembled in their respective counties; and that the suffrages of two-thirds of the counties shall be requisite to establish it." Ford's Writings of Jefferson, ii, 30.

to the fact that the formation of a government had been under discussion among the people.53 No one familiar with the close relationship which existed between the local and central revolutionary organizations in the colonies in 1776 can doubt that the actions of the provincial congresses of South Carolina, Virginia and New Jersey expressed the sentiments of the people of these states.

In this connection attention should also be called to the constitution framed by a convention in December, 1784, for the proposed state of Franklin. The convention resolved: "That this Convention recommend this Constitution for the sereous Consideration of the People during Six Ensuing Months after which time Before the Expiration of the Year that they Choose a Convention for the Express purpose of adopting it in the name of the people if Agreed to By them or altering it as Instructed By them." The constitution went into operation immediately, but was not ratified by the subsequent convention of November, 1785, and the North Carolina constitution of 1776 was with some modifications adopted for the new state; the action of the second convention was not submitted in any manner for popular approval.5*

We are now accustomed to the practice of having state constitutions framed by conventions entirely independent of the regular legislature, and of having such conventions as a rule submit their work for the approval of the people. In the development of this independent machinery for the

53 Tucker's Blackstone, i, part 1, Appendix, 87-92. This is a summary of Tucker's opinion in the case of Kamper v. Hawkins, in the General Court of Virginia in 1793. Works of John Adams, iv, 191. Henry's Patrick Henry, i, 418. Force, Fourth Series, vi, 748.

54 American Historical Magazine and Tennessee Historical Society Quarterly, i, 48-63; ix, 399-408. Caldwell, Studies in the Constitutional History of Tennessee, 2d. ed., 48-59.

framing of state constitutions there have been three steps: (1) The establishment of the distinction between the constitution and ordinary legislation, and the development of a distinct method for the formation of constitutions. (2) The development of the constitutional convention as a body distinct and separate from the regular legislature. (3) The submission of a constitution to a vote of the people, after it has been framed by a constitutional convention. The first step is fundamental; the other two involve but the elaboration of machinery to carry out more clearly the distinction between constitutions and ordinary legislation. It cannot be said that the third step has yet been fully taken, and that submission of a constitution to the people is essential; the Virginia constitution of 1902 was not submitted to a vote of the people.55

The people of the colonies were familiar with the distinction between statute and constitution; at the foundation of their political convictions lay the theory that the principles of government are permanent and may be changed only by the people. But for the first time they were brought face to face with the problem of establishing such principles, of framing written constitutions superior to and limiting all ordinary governmental organs. Theirs was the first step in the development of the constitutional convention, in the establishment of principles for the adoption of constitutions different from those to which they were accustomed for the enactment of laws.

Even had the people come in 1776 to a belief that constitutions should be adopted by representative bodies independent of the regular legislature, such a system would have been in many cases hazardous and impracticable. The leaders of the people were already assembled in provincial

55 A. E. McKinley in Political Science Quarterly, xviii, 509.

congresses, organizing for military defense, and in most of the states both central and local organizations were busily engaged in suppressing opposition to revolutionary measures. They succeeded in many cases in suppressing opposition only by virtue of their superior aggressiveness. To permit the creation of independent conventions would be to risk the loss of much that had been gained by united and aggressive action. Permanent governments, if established at all, must be established by existing provincial representative bodies. That the people recognized the superiority of constitutions to statutes is clearly shown by the fact that nine 5 of the twelve constitutions adopted between 1776 and 1778, and the proposed Massachusetts constitution of 1778, were drafted by legislative bodies especially empowered by their constituents to take such action; and by the further fact that expediency was urged as the most important argument against similar authorization in South Carolina and Virginia in 1776.

56

In New Hampshire and Massachusetts, during the revolutionary period, was developed the constitutional convention as we know it to-day; that is, the independent body for constitutional action, with the submission of its work to a vote of the people. But it should be remembered that before this development took place both of these states had established fairly stable governments, New Hampshire by its constitution of 1776," and Massachusetts, by the resumption of its charter in July, 1775. In neither was the need of a new government of great urgency; in neither was

56 New Hampshire, Pennsylvania, Maryland, Delaware, North Carolina, New York, Georgia, Vermont, South Carolina (1778).

57 The New Hampshire constitution of 1776 really organized a legislature only, and legislative action completed the governmental structure. See a paper by the present writer in Proceedings of the N. H. Bar Association for 1906.