be subject to amendment and that "no other part of this constitution shall be altered, changed, or diminished without the consent of five parts in seven of the assembly, and seven members of the legislative council." The legislative council was composed of nine members. In South Carolina (1778) it was provided that "no part of this constitution shall be altered without notice previously given of ninety days, nor shall any part of the same be changed without the consent of a majority of the members of the senate and house of representatives.' For ordinary legislation sixty-nine members of the assembly, out of more than two hundred, formed a quorum, and less than half of the members of the senate were sufficient to act. These two constitutions established a distinction between constitutional and ordinary legislation, but the distinction was a very slight one. Constitutional changes might be adopted by a single legislature, but a larger majority was required for such action than for ordinary legislation.

Maryland made a sharper distinction between constitutional amendments and ordinary legislation. The constitution of that state (1776) provided that no part of the constitution or bill of rights should be altered "unless a bill so to alter change or abolish the same shall pass the general assembly, and be published at least three months before a new election, and shall be confirmed by the general assembly, after a new election of delegates, in the first session after such new election," and that no part relating especially to the Eastern Shore should be altered without the concurrence of two-thirds of the members of both branches of the legislature."

• Delaware constitution of 1776, Art. 30.

5 South Carolina constitution of 1778, Art. 44.

The Maryland provision was for some time copied, but those of Delaware and South Carolina were not imitated. South Carolina in 1790 and Delaware in 1792 copied the Maryland plan, and the South Carolina provision of 1790 represents pretty well this method of amendment: "No part of this constitution shall be altered, unless a bill to alter the same shall have been read three times in the house of representatives and three times in the senate, and agreed to by two-thirds of both branches of the whole representation; neither shall any alteration take place until the bill so agreed to be published three months previous to a new election for members to the house of representatives; and if the alteration proposed by the legislature shall be agreed to, in their first session, by two-thirds of the whole representation in both branches of the legislature, after the same shall have been read three times, on three several days, in each house, then, and not otherwise, the same shall become a part of the constitution."

It was thought not to be sufficient to have constitutional amendments adopted, as in South Carolina in 1778 and Delaware in 1776, simply by an increased majority of a single legislature. So the Maryland plan for two successive legislative actions was borrowed, but the older requirement that such action be had by increased legislative majorities was also retained. The people did not vote directly on a proposed amendment, but it was considered sufficient to have an amendment passed by two successive legislatures, by a vote greater than that required for ordinary legislation. The people were presumed to have passed upon the amendment in the election of a new house of representatives, and if a proposed amendment were one of great popular interest, it would naturally have been made an issue in this election. This arrangement represented a decided step in advance in popular control over

amendments, as compared with that first adopted in Delaware (1776) and South Carolina (1778), and for a time was considered to give a sufficient popular participation in the adoption of constitutional amendments. Amending provisions somewhat similar to those of South Carolina (1790) were adopted in Delaware (1792, 1831, 1897), Georgia (1798), Missouri (1820), Arkansas (1836, 1864), South Carolina (1865), and Florida (1839). However, the growing democratic movement brought about a feeling that it would be desirable to have a more definite popular participation in the amendment of constitutions, and Delaware (1897) is the only state which still clings to an amending procedure without a popular vote of approval upon each proposed amendment.

By the Alabama constitution of 1819 provision was made by which the people should vote directly upon proposed amendments the earlier plan as used in Maryland and South Carolina was so altered that the people should vote directly upon amendments proposed by the legislaturebut to the next succeeding legislature was left the determination as to whether an amendment specifically approved by the people should be adopted into the constitution. The plan of submitting a proposed amendment to the people, but of giving to a second legislature the final decision of the matter has not been very extensively employed, and has been abandoned by Alabama and Texas, the two States in which it was first employed.' South Carolina adopted this plan in 1868 and still retains it. The South Carolina constitution of 1895 provides that: "If the same [amendment or amendments] be agreed to by two-thirds of the members elected to each house, such amendment or amend

7 Such provisions were contained in the Alabama constitutions of 1819, 1865, and 1867, and in the Texas constitutions of 1845, 1866, and 1868.

ments shall be entered on the journals respectively, with the yeas and nays taken thereon; and the same shall be submitted to the qualified electors of the state at the next general election thereafter for representatives; and if a majority of the electors qualified to vote for members of the general assembly, voting thereon, shall vote in favor of such amendment or amendments, and a majority of each branch of the next general assembly shall, after such an election and before another, ratify the same amendment or amendments, by yeas and nays, the same shall become part of the constitution." The Mississippi constitution of 1890 also leaves the final determination with reference to an amendment to the legislature by providing that after an amendment has received the popular approval "then it shall be inserted by the next succeeding legislature as a part of this constitution." An amendment approved by the people may thus be defeated by the legislature's disobeying the constitutional order to insert it into the constitution.

However, with these exceptions the whole development has been toward confining legislative action simply to the proposal of amendments, the vote of the people being the final determination as to whether an amendment becomes or fails to become a part of the state's fundamental law. The first suggestion for amendment upon the proposal of the legislature and after approval by the people was that contained in the draft of a proposed constitution for Virginia prepared by Jefferson in 1776; a similar provision was inserted into the proposed constitution which was rejected by the people of New Hampshire in 1779: “The general court shall have no power to alter any part of this constitution; but in case they should concur in any pro

8 Upon this subject see p. 196. Similar language appeared in the Mississippi constitutions of 1832 and 1868.

posed alteration, amendment, or addition, the same being agreed to by a majority of the people, shall become valid."

The first constitution to take the final determination upon amendments from the legislature and to confide this power in the hands of the people was that of Connecticut in 1818. The Connecticut provision reads as follows: "Whenever a majority of the house of representatives shall deem it necessary to alter or amend this constitution, they may propose such alterations and amendments, which proposed amendments shall be continued to the next general assembly, and be published with the laws which may have been passed at the same session; and if two-thirds of each house, at the next session of said assembly, shall approve the amendmen.s proposed by yeas and nays, said amendments shall, by the secretary, be transmitted to the town clerk in each town in the state, whose duty it shall be to present the same to the inhabitants thereof, for their consideration, at a town meeting, legally warned and held for that purpose; and if it shall appear, in a manner to be provided by law, that a majority of the electors present at such meetings shall have approved such amendments, the same shall be valid, to all intents and purposes, as a part of this constitution."

Connecticut thus borrowed the amending procedure already in use in a number of states, but added thereto a direct popular vote after the second legislative action. The reason for two legislative actions was to test popular sentiment with reference to a proposed amendment, but the need for doing this ceased when the question was submitted to a direct vote of the people. This fact was not appreciated by the Connecticut convention, which borrowed the two

9 Ford's Writings of Jefferson, ii, 29, 30. New Hampshire Town Papers, ix, 841. Jefferson's plan required the approval of a proposed change by county meetings in two-thirds of the counties.