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."

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

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.

32

5

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.

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."

8

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.

to correct those violations which by any means may be made therein, as well as to form such alterations as from experience shall be found necessary." This language was copied almost verbatim into the New Hampshire constitution of 1784, except that here the vote upon holding a convention was to be taken at the expiration of seven years. These provisions strongly imply that the people in constitutional conventions should, at intervals, themselves correct violations of the constitution made by the regular organs of government. No idea seems to have been entertained at this time that the courts would assume the function of annuling laws which they thought opposed to the constitution.

But we must turn to the first constitutions of Pennsylvania and Vermont in order to find the clearest expression of legislative power with reference to matters regulated by the constitutions. The Pennsylvania constitution of 1776 created a council of censors to be elected by the people every seventh year, one of whose duties it was to "enquire whether the constitution has been preserved inviolate in every part; and whether the legislative and executive branches of government have performed their duties as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are intitled to by the constitution." In the exercise of its power the council of censors was given "authority to pass public censures, to order impeachments, and to recommend to the legislature the repealing of such laws as appear to them to have been enacted contrary to the principles of the constitution." This language was copied into the Vermont constitution of 1777.10 It will be noticed that the above-quoted provi

The same language appeared in the proposed constitutions which were rejected in 1781 and 1782.

10 The proposed constitution for the State of Frankland (1785)

sions seem clearly to recognize laws in conflict with the constitution as valid laws, which would remain in force even after the action of the council of censors unless the legislature chose to heed the recommendations of that body.

In the council of censors there was established a definite and periodical check upon the legislative power, but this check seems not to have been very effective. Only one council of censors was elected in Pennsylvania, that of 17831784, and the council itself was abolished by the constitution of 1790. The Pennsylvania council of censors of 1783-84 drew up a long report which, while it recognized that in certain cases the constitution had been violated through necessity, also called attention to numerous legislative acts which were in conflict with the constitution, and censured the legislature for its failure to observe the form of government adopted in 1776. This report seems to have had little influence.11

The first council of censors of Vermont, in its address to the freemen of that state, issued in February, 1786, called attention to frequent clear violations of the constitution by the legislature. The Vermont council, however, recognized that there was no effective check upon the legislative power by virtue simply of a recommendation upon its part that certain laws should be repealed. The legislature had assumed control over land titles in a manner contrary to the

provided for a council of safety, chosen each fifth year, with powers similar to those of the Vermont and Pennsylvania councils, except that this council had no authority to recommend amendments to the constitution. The Frankland proposal was quite evidently copied from Pennsylvania. American Historical Magazine i, 62-63 (Nashville, 1896).

11 Proceedings relative to calling the conventions of 1776 and 1790, pp. 83-123. However, at least one law was repealed as a result of the recommendations of the council of censors. Dallas, Laws of the Commonwealth of Pennsylvania, ii, 213, 252.