vided for by the first constitutions of Pennsylvania, Vermont, Georgia, and Massachusetts, and by the New Hampshire constitution of 1784.19 Since 1784 state constitutions have, with few exceptions, been framed or adopted by conventions chosen by the people for this purpose.

20

In discussing the development of the state constitutional convention it will be well to consider: (1) The usual methods by which conventions have been assembled. (2) The extent to which constitutions have been submitted to a vote of the people, or have been put into effect without popular approval. (3) The legal position of the convention in our constitutional system.

The Usual Methods by Which Conventions Have Been Assembled.

Attention has already been called to the fact that many of the state constitutions adopted during the revolutionary period paid little attention to the elaboration of machinery for the revision of constitutions. Of the earlier methods devised for the revision of constitutions that adopted by Pennsylvania and Vermont is the most curious. The councils of censors of these states, elected every seven years, had power, by a vote of two-thirds of their members to "call a convention to meet within two years after their [the coun

19 Jefferson, in his draft of a proposed constitution for Virginia, made in 1783, provided a convention for the purpose of making changes in the constitution. Ford, Writings of Jefferson, iii, 332.

20 The most important exception to this statement is the Nebraska constitution of 1866, which was framed by the territorial legislature, and by this body submitted to a vote of the people. Brittle v. People, 2 Neb., 198, 206. In 1873 a new constitution for Michigan was drafted by a commission appointed under the authority of a legislative act, and was submitted to the people by the legislature, but was rejected. A proposed new constitution for Rhode Island, drafted in a similar manner, was rejected in 1898 and 1899.

cil of censors'] sitting, if there appear to them an absolute necessity of amending any articles of the constitution which may be defective, explaining such as may be thought not clearly expressed, and of adding such as are necessary for the preservation of the rights and happiness of the people: But the articles to be amended, and 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." Conventions elected under this provision were thus chosen by the people merely to ratify or reject amendments proposed by the council of censors, and were not constitutional conventions in the sense that they had authority to draft new constitutions, or to frame amendments for themselves.

The council of censors proved unpopular in Pennsylvania, where it had a short and inglorious career. Many features of the Pennsylvania constitution were opposed by a large body of citizens of that state, and strong protest was made against the provisions by which it was made unamendable for a period of seven years.21 In fact this provision of the constitution was ignored from the very first. The assembly on June 17, 1777, adopted a resolution providing that the sense of the people should be taken as to the advisability of calling a convention to revise the constitution. The British invasion prevented the carrying-out of this resolution. Again on November 28, 1778, the assembly resolved to submit the question of a convention to the people, the members of the convention to be chosen at the same time when the question was voted on; but this resolution was re21 Pennsylvania Gazette, Oct. 23, 1776.

scinded by the assembly before the time set for the vote to be taken.22 Only one council of censors was elected, that of 1783-84, but although it was agreed that some changes should be made in the constitution of 1776, political controversies made it impossible for two-thirds of the council to agree to any proposed amendments, or upon calling a convention. In March, 1789, the general assembly of Pennsylvania, disregarding entirely the constitutional provisions with reference to the council of censors, ordered that the sense of the people of the state be taken as to the calling of a convention to frame a new constitution. In September, 1789, the assembly, declaring that a majority of the citizens of the state approved a convention in preference to the council of censors, provided for the election of a constitutional convention. The convention chosen by virtue of the assembly's order framed the Pennsylvania constitution of 1790, by which the council of censors was abolished.23 The council of censors of Vermont had a more successful career, and was regularly chosen, every seven years, in conformity with the constitution, until 1869, and during this time nine conventions were called to pass upon constitutional amendments proposed by the council. The last council, that of 1869, recommended an amendment abolishing the council of censors, and this amendment was ratified by the convention of 1870. Constitutional revision by councils of cen

22 Journals of the House of Representatives of Pa., 1776-1781, pp. 145, 246, 324. Pennsylvania Colonial Records, xi, 220. For the political issues in Pennsylvania during this period see Oberholtzer, Referendum in America, chap. ii, and Paul Leicester Ford, The Adoption of the Pennsylvania Constitution of 1776, Political Science Quarterly, x, 426.

23 Proceedings relative to calling the conventions of 1776 and 1790, pp. 129-137.

sors had proven ineffective, and these councils were finally discarded.2

The Georgia constitution of 1777 made provision for a constitutional convention, which should be called 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." This method of initiating constitutional changes was extremely cumbersome, and would probably have proven unworkable had it been tried. However, no effort seems to have been made to use the constitutional method of revision. In 1788, when it was desired to revise the constitution of 1777, the legislature of the state named three persons from each county to meet and take into consideration amendments necessary to be made in the constitution. The convention so constituted met and framed a constitution, which was referred by the legislature to another convention composed of three persons elected from each county. The second convention amended the proposed constitution, and a third convention chosen by the people was authorized by the legislature to adopt the constitution, with or without the amendments proposed by the second convention. This third convention ratified the Georgia constitution of 1789.25

Except for the constitutions of Pennsylvania, Vermont, and Georgia, the only constitutions of the revolutionary period which made provision for the calling of constitutional

24 See The Council of Censors, by Lewis Hamilton Meader, Providence, 1899. (Papers from the Historical Seminary of Brown University.)

25 Jameson, Constitutional Conventions, 135, 136.

conventions were those of Massachusetts and New Hampshire. 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, and if ̧ the vote were favorable, a convention was to be called. No convention was called in 1795, and after that date no constitutional provisions were in force in Massachusetts with reference to the calling of a constitutional convention. The New Hampshire constitution of 1784 provided for the calling of a convention in seven years, if a popular vote should favor such action, and the amended constitution of 1792 provided for a vote of the people every seven years upon the question as to whether a constitutional convention should be called. But of the revolutionary frames of government which continued after 1784, four made no provision whatever for constitutional changes;26 and three others made no provision for revision by constitutional conventions, providing simply for amendment through legislative action. Moreover, of later constitutions many have made no provision for revision by conventions. Among these may be mentioned Georgia (1798), Connecticut (1818), New York (1821), Missouri (1820), Rhode Island (1842), Pennsylvania (1790, 1838, 1873), Virginia (1830, 1851, 1864), Vermont (1870), Arkansas (1868, 1874), Tennessee (1834), Texas (1868), and Louisiana (1845, 1851, 1864, 1868, 1879, 1898). Twelve of the state constitutions now in force contain no provision whatever for constitutional conventions.27 When, in states having no provision

26 Of later constitutions no provisions for constitutional change of any character were made by those of Virginia, 1830, 1851 and 1864, and Pennsylvania, 1790.

27 Arkansas, Connecticut, Indiana, Louisiana, Massachusetts, Mississippi, New Jersey, North Dakota, Pennsylvania, Rhode Island, Texas, Vermont. For a list of constitutions containing no provision for con