people. This constitution provided that "the general court shall at the expiration of seven years from the time this constitution shall take effect, issue precepts . . . to the several towns and incorporated places, to elect delegates to meet in convention for the purpose aforesaid: the said delegates to be chosen in the same manner, and proportioned as the representatives to the general assembly; provided that no alteration shall be made in this constitution before the same shall be laid before the towns and unincorporated places, and approved by two-thirds of the qualified voters present, and voting upon the question." "

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The proposed constitution for New Hampshire which was rejected in 1779 provided for amendment upon proposal of the legislature and after popular approval. The amending provision in the proposed constitution of 1781 was similar to that quoted in the text above, except that it contained no specific requirement that amendments proposed by a convention be submitted to the people. The proposed constitution of 1782 contained the same provision as that which was adopted in 1783 and became effective in 1784. New Hampshire Town Papers, ix, 841, 877, 894.

CHAPTER II

THE CONSTITUTIONAL CONVENTION, 1784-1908.

It has already been suggested that there have been three steps in the development of our procedure for the framing of state constitutions: (1) The development of the distinction between constitutions and statutes. (2) The development of the constitutional convention as a body distinct and separate from the regular legislature. (3) The submission of proposed constitutions to a vote of the people.

Taking up for a moment the first step in this development, it is probably unnecessary to call attention to the fact that in 1776 the distinction between constitutions and statutes was not as clear as it later became. The constitutions were recognized as binding upon state legislatures, but as yet their binding force was only a moral one-no definite sanction had been developed and the states were at this time certainly to a large extent in a position similar to that of countries which recognize no power in the state as competent to prevent legislative encroachments upon the written constitution.

As is well known, the texts of the first state constitutions gave little power to the executives, but in time of war it was necessary that there should be some person or body always in existence with authority to act in important matters. For this reason we find in many of the states during the revolutionary period committees or councils of safety exercising powers unknown to the constitutions, or we find that the legislatures bestowed upon the state governors powers greater than those conferred by the constitutions. Thus

by an ordinance of the convention which adopted the Virginia constitution of 1776, it was provided that "superadded to the powers given to the governor and privy council by the form of government passed this convention, the governor, with the advice of the privy council, shall have and possess all the powers and authority given to the committee of safety by an ordinance appointing a committee of safety passed at Richmond, July, 1775, or by any resolution of convention. . . The extraordinary and extraconstitutional powers of the governor were subsequently renewed by acts of the Virginia assembly.' Maryland acts of February, 1777, and March, 1778, gave the governor and council extraordinary powers, in addition to those conferred by the constitution.2

Gordon calls attention to the fact that the only restriction placed upon the legislature of New Jersey by the constitution of 1776 was that by which each member of the council and assembly was required to swear or affirm that: "I will not assent to any law, vote or proceeding which shall appear to me injurious to the public welfare of said colony, nor that shall annul or repeal that part of the third section in the Charter of the Colony, which establishes, that elections of members of the Legislative Council and Assembly shall be annual; nor that part of the twenty-second section in said Charter, respecting the trial by jury, nor that shall annul, repeal, or alter any part or parts of the eighteenth or nineteenth sections of the same. This oath was an attempt to construct a moral obligation not to alter certain clauses

1 Hening's Statutes at Large of Virginia, ix, 121, 178, 309, 428, 462, 477.

2 Maryland laws, February, 1777, chap. 24; June, 1777, chap. 7; October, 1777, chap. 2; March, 1778, chap. 3.

* Gordon, History of New Jersey, 182.

of the constitution, and was probably not thought of as placing constitutional provisions beyond legislative alteration. In 1777 the legislature of New Jersey replaced the word "colony" by the word "state" in the constitution of that state, and this alteration while only a verbal one, is probably indicative of the then recognized power of the legislature. So, in Rhode Island, where the colonial charter served in place of a constitution, the charter seems at first to have been thought to be subject to amendment by regular legislative action, and was in fact several times so amended."

The New York constitution of 1777, by its provision for a council of revision, raises a strong presumption that legislative action should be final and conclusive, subject to no further control by judicial or other authorities. In order to prevent hasty action upon laws which might be "inconsistent with the spirit of this constitution or with the public good," the governor, chancellor, and judges of the supreme court were constituted a council of revision, with a veto upon legislative acts, which might be overcome by a vote of two-thirds of each house of the legislature. The judges were thus brought in as a part of the legislative branch of government, and were, it may be presumed, not expected to have any further supervision over legislation.

4 It may be worth noting that the New Jersey case of Holmes v. Walton (1780), the first great case in which a law was declared invalid, was a case involving trial by jury. See Austin Scott's article on Holmes v. Walton in the American Historical Review, iv, 456.

5 Wilson's Acts of the General Assembly of New Jersey (17761783), p. 24.

Mowry, The Dorr War, 22, 37. In Trevett v. Weeden (1786), however, the Rhode Island court seems to have taken the view that the charter and also some colonial legislation of a fundamental character were not subject to legislative alteration. The same view was taken with reference to suffrage legislation by a Rhode Island legislative committee in 1829. 28th Cong., 1st Sess., House Report, No. 546, p. 377.

New York is the only state which associated judges with the work of legislation but that this plan of judicial advice was considered in other states is shown by two proposals made respectively in Virginia and Vermont. Thomas Jefferson in his proposed constitution for Virginia, drafted in 1783, provided that the "governor, two councillors of State, and a judge from each of the Superior Courts of Chancery, Common Law, and Admiralty, shall be a council to revise all bills which shall have passed both houses of assembly," and this council was to have practically the same powers as the council of revision of New York." Judge Nathaniel Chipman, of Vermont, in a book published in 1793, suggested that: "The principal members in the judiciary, may, when the particular duties of their office will permit, be, with propriety, united with the head of the executive department, to form a council of revision upon all laws proposed to be passed by the legislature." Judge Chipman at this time evidently had no idea that the courts of Vermont would assume the power to declare laws invalid, for he continues: "Still, the legislature must be the sole judges, whether the information given coincides with the general interest of the community, and the principles of the government, or is dictated by particular views or particular interests."

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The language employed by the Massachusetts constitu tion of 1780 also seems to imply that the courts were not expected to exercise a power of annuling laws. Provision was made for a popular vote in 1795 upon the question of calling a constitutional convention "in order the more effectually to adhere to the principles of the constitution, and

་ Ford's Writings of Jefferson, iii, 330.

Sketches of the Principles of Government (Rutland, 1793), pp. 126, 127.