there an aggressive tory element. Neither of these states was threatened by military operations after the surrender of Burgoyne in October, 1777.58 In neither state was danger to be apprehended from the creation of an independent convention and the submission of its work to a vote of the people.

In summarizing the action of the states from 1776 to 1784 in the adoption of their constitutions, we may perhaps distinguish four forms of procedure:

(1) Constitutions framed by purely legislative bodies, which had received no express authority from the people for this purpose, and such constitutions being put into operation without submission to the people in any manner-South Carolina (1776), Virginia, New Jersey. The method of adopting these constitutions differed not at all from that pursued in the passage of ordinary statutes, although the conventions and congresses which acted were not, of course, legislative bodies of a regular character.

(2) The legislative body framing a constitution under authority expressly conferred upon it for this purpose by the people, without the constitution being in any manner submitted to the people for approval-New Hampshire (1776), Delaware, Georgia, New York, Vermont.

(3) The legislative body framing a constitution under authority expressly conferred upon it for this purpose by the people, with a subsequent formal or informal submission of the constitution to the people-Maryland, Pennsylvania, North Carolina, South Carolina (1778), Massachusetts (1778); of this group of states Massachusetts is the only one which formally submitted its constitution to the people.

58 Cushing, Transition of Massachusetts, 187, calls attention to the favorable position of Massachusetts in 1778 for the framing of a constitution.

(4) The framing of a constitution by a body chosen for that purpose only, with the subsequent submission of the proposed constitution to the people for approval-New Hampshire, 1779-1783; Massachusetts, 1779-80.

Thus we see that only in Massachusetts and New Hampshire was developed what has since become the characteristic procedure in the framing of new state constituions. As has already been suggested, the earlier development of this procedure in these states was due largely to their freedom from external danger and from internal conflict when they came to form new governments, and also to the fact that they already had stable governments in existence, and could therefore proceed in a more leisurely manner to frame new constitutions. Some writers have suggested that Massachusetts and New Hampshire were in advance of the other states in this regard because more democratic 59—this may be true to a certain extent, but the conditions under which they framed their constitutions were more favorable to the development of an orderly procedure. It is true, however, that the New England town meeting furnished a ready means for taking the will of the people upon such a question as that of adopting a constitution, while no such effective instrument for this purpose existed outside of New England. Yet we find that New Hampshire in 1776, when there was danger to the revolutionary party from both within and without, did not submit its constitution to the people for approval. So Massachusetts resumed her charter in June, 1775, by means of the regular legislative body then in existence, the provincial congress, without consulting the people, this action being in conformity with a recommendation made by the Continental Congress." 59 Oberholtzer, Referendum in America, 107-111.

60 Journals of each provincial congress of Massachusetts, 359.

Rhode Island and Connecticut in 1776 continued their charter governments without submitting their action to the people. 1

61

In this paper it is assumed that the fundamental principle of American constitutional development is the distinction of the constitution from ordinary legislation, and the proceedings of the early conventions have been examined to discover how far this distinction influenced the action of those bodies from 1776 to 1784. In connection with this subject it will also be of interest to discover what machinery the constitutions of the revolution themselves established for their amendment or for the adoption of new constitutions.

61 Rhode Island Colonial Records, vii, 522, 582. Connecticut State Records, i, 3. Judge Simeon E. Baldwin in New Haven Historical Society Papers, v, 204-207. So too, in September, 1777, when there was thought of framing a new constitution for Rhode Island, there seems to have been no idea of calling a convention, but a committee of the general assembly was appointed "to form a plan of government for this state, and lay the same before this Assembly as soon as conveniently may be." Rhode Island Colonial Records, viii, 304.

Judge J. A. Jameson (Constitutional Conventions, 4th ed., 115) argues that John Adams first advocated independent constitutional conventions, with the submission of their work to the people. However, a careful reading of Adams' works hardly seems to sustain this view. Adams was more interested in the setting up of independent state governments in 1775 and 1776 than in the procedure by which they should be established; he did suggest that conventions be called to establish new governments, and that constitutions be submitted to the people if there were any doubt as to their opinion. His positive suggestions as to how new governments should be organized were, however, far different from the present method of an independent convention, framing a constitution and then taking no further action. His idea seemed to be that the people should elect an assembly or convention, and that this body should organize the new government, itself remaining the popular branch of the legislature; this, it may be remembered, was the plan successfully pursued by New Hampshire and South Carolina in effecting their transition to new state governments in 1776. Works of John Adams, iii, 13-16, 20; iv, 186, 195-209. North Carolina Colonial Records, xi, 321-327.

The absence of provision for alteration in the constitutions of 1776-77, should not be taken as an indication that their framers thought the regular legislatures competent to alter or establish constitutions, but rather that they did not consider the matter at all."2 Thus the constitutions of South Carolina (1776), Virginia, and New Jersey, framed by bodies not expressly authorized by the people to do so, contain no provisions for amendment, but neither do the constitutions of New Hampshire (1776), North Carolina, and New York, framed by bodies which had such express authorization. The rejected Massachusetts constitution of 1778 was framed by a body having specific authorization to take such action, but contained no provision for constitutional alterations.

Of the eight constitutions of the revolutionary period which made provision for their amendment, those of Maryland, Delaware, and South Carolina (1778) provided for final action in such cases by the legislature, but in a manner different from that for the enactment of laws.63 In Pennsylvania a council of censors was to be elected every seventh year "to enquire whether the constitution has been preserved inviolate in every part; and whether the legislative and executive branches of government have performed their duty as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are entitled

62 Jefferson's draft of a constitution for Virginia contained a provision for alteration upon legislative proposal and after popular approval, but this draft was not really before the Virginia convention until after its work had been practically completed. Ford's Writings of Jefferson, ii, 29, 30. Jefferson's draft of a proposed state constitution, in 1783, made provision for alterations by a convention chosen for that express purpose, but did not provide for a submission to the people of the work of such convention. Ibid., iii, 320, 332.

63 For a discussion of amendment through legislative action, see p. 120.

to by the constitution." The council of censors, twothirds of its members concurring, was to have power to call a convention to amend the constitution in such parts as the council of censors should think necessary, and it was further provided that "the amendments proposed, and such articles as are proposed to be added or abolished, shall be promulgated at least six months before the day appointed for the election of such convention, for the previous consideration of the people, that they may have an opportunity of instructing their delegates on the subject." Vermont copied this provision of the Pennsylvania constitution, except that it provided a different manner for the election of members of the council of censors."4

In Georgia also provision was made for a constitutional convention, but here it was to be called by the legislature upon the petition of a majority of the voters of a majority of the counties. The petitions of the people were to specify the amendments desired, and the legislature was required to order the calling of a convention, " specifying the alterations to be made, according to the petitions preferred to the assembly by the majority of the counties as aforesaid." 65

The Massachusetts constitution of 1780 made provision for the submission to the people in 1795 of the question as to the desirability of revising the constitution. If two-thirds of those voting on the question should favor a revision the General Court was to call a convention for that purpose. The New Hampshire constitution of 1784 was the first to contain the specific requirement not only of a separate convention for constitutional action, but also that the work of such convention should be submitted to the approval of the

64 Pa. Constitution of 1776, art. 47. Vermont Constitution of 1777, art. 44.

65 Georgia Constitution of 1777, art. 63.