said "that the right of framing, creating or new modeling civil government, is, and ought to be in the people. That doubts have arisen whether this Congress are invested with sufficient authority to frame and institute such new form of internal government and police. That those doubts can and of right ought to be removed by the good people of this colony only." The committee recommended that a new congress be convened "with the like powers as are now vested in this congress, and with express authority to institute and establish such new and internal form of government as aforesaid." 25 Such action was taken and the delegates who met in convention at White Plains on July 9, 1776, had express authority from their constituents to form a constitution. In Kings County where new elections were not held the county committee instructed the member of the former congress to attend, but the convention voted that he should not act in the matter of forming a government. 26

The constitution formed by this convention was not submitted to the people, and there seems to have been no idea upon the part of the convention that such action should be taken; in fact, even if submission had been seriously considered it would have been impracticable because of the distracted condition of the the state, a large part of whose territory was occupied by the enemy. But certainly there was in 1776 some sentiment in favor of a submission, and in one quarter at least objection was made to the resolution of the provincial congress in May, 1776, providing for a

25 Journals of the provincial congress of New York, i, 462. Becker (History of Political Parties in the Province of New York, 1760-1776, p. 268) says that Gouverneur Morris apparently contemplated a constitutional convention distinct from the congress, but there seems to be no evidence that Morris had in mind the election of an independent convention for the framing of a constitution.

26 Journals of the provincial congress of New York, i, 572.

convention to institute and establish a new form of government. The Mechanicks in Union for the city and county of New York, in an address to the provincial congress on June 14, 1776, said: "We could not, we never can, believe you intended that the future delegates or yourselves should be vested with the power of framing a new Constitution for this Colony, and that its inhabitants at large should not exercise the right which God has given them, in common with all men, to judge whether it be consistent with their interest to accept or reject a Constitution framed for that State of which they are members. This is the birthright of every man, to whatever state he may belong. There he is, or ought to be, by inalienable right, a co-legislator with all the other members of that community.'

" 27

In Maryland the provincial convention resolved on July 3, 1776: "That a new convention be elected for the express purpose of forming a new government, by the authority of the people only, and enacting and ordering all things for the preservation, safety, and general weal of this colony." 28 That some of the people of this state took a lively interest in the organization of government is shown by the fact that B. T. B. Worthington, Charles Carroll, barrister, and Samuel Chase, the two latter undoubted leaders and members of the committee to prepare a form of government, resigned from the convention because they had received “instructions from their constituents, enjoining them, in framing a government for this state, implicitly to adhere to points in their opinion incompatible with good government and the public peace and happiness. Although there was

29

27 Force, American Archives, Fourth Series, vi, 895-898. This address is quoted in full in Lobingier, The People's Law, 157-161. 28 Proceedings of the conventions of Maryland, 184.

29 Ibid., 222, 228.

no formal reference of the first constitution of Maryland to the people, the action taken by the convention on September 17, 1776, probably served a similar purpose. The committee had reported to the convention a proposed bill of rights and constitution; action upon this report was postponed until September 30th, and it was resolved "that the said bill of rights and form of government be immediately printed for the consideration of the people at large, and that twelve copies thereof be sent without delay to each county in the state." 30

The North Carolina provincial congress had the framing of a constitution under consideration in April, 1776, but the members were unable to agree, and adopted a temporary form of government.31 It seems to have been generally understood that the consideration of the matter would be renewed by the next congress, and the Council of Safety on August 9, 1776, resolved "that it be recommended to the good people of this now Independent State of North Carolina to pay the greatest attention to the Election to be held on the fifteenth of October next, of delegates to represent them in Congress, and to have particularly in view this important consideration. That it will be the business of the Delegates then chosen not only to make Laws for the good Government of, but also to form a Constitution for this State, that this last as it is the Corner Stone of all Law, so it ought to be fixed and permanent." "2

Mecklenburg county drew up an elaborate set of instructions for its members to the provincial congress, which were also adopted in part by Orange county. These instructions are of sufficient interest to be quoted almost in full, in so

30 Proceedings of the conventions of Maryland, 258.

31 N. C. Colonial Records, x, 498, 579.

32 Ibid., x, 696.

66

far as they relate to the present subject. The following principles were to be recognized in framing a bill of rights and constitution: Ist. Political power is of two kinds, one principal and superior, the other derived and inferior. 2d. The principal supreme power is possessed by the people at large, the derived and inferior power by the servants which they employ... 4th. Whatever is constituted and ordained by the principal supreme power can not be altered, suspended or abrogated by any other power, but the same power that ordained may alter, suspend and abrogate its own ordinances. 5th. The rules whereby the inferior power is to be exercised are to be constituted by the principal supreme power, and can be altered, suspended and abrogated by the same and no other." The delegates were finally instructed to "endeavor that the form of Government when made out and agreed to by the Congress shall be transmitted to the several counties of this State to be considered by the people at large for their approbation and consent if they should choose to give it to the end that it may derive its force from the principal supreme power. The congress met on November 12, 1776; on Friday, December 6th, the committee reported the form of a constitution and it was ordered, "That the same be taken into consideration on Monday next; that one copy of the said Form of a Constitution be furnished for each District in this State, and one copy for each County. . . The constitution was adopted on December 18, 1776.84

On July 27, 1776, the assembly of Delaware took under consideration the resolves of the Continental Congress of May 10th, and decided that a new government should be formed and," That it be recommended to the good people 33 N. C. Colonial Records, x, 870 a-f.

34 Ibid., x, 954, 974, 1040.

" 35

of the several Counties in this Government to choose a suitable number of Deputies to meet in Convention, there to order and declare the future form of government for this State." The convention of Delaware was not expressly limited to the one task of forming a constitution and did not consider its powers so restricted. While in session it took such other actions as the assembly might have taken had it been in session at the same time.36

By the Pennsylvania charter of privileges of 1701 it was provided that the charter might be altered by the governor and six-sevenths of the assembly. When the continental resolve of May 10, 1776, was taken under consideration, the assembly, acting as nearly as possible in pursuance of the charter, assumed that it had power to establish a new form of government. But the assembly was under the control of the conservatives, and the radical element determined to prevent its exercising this power. The Philadelphia committee called a conference of county committees, which met on June 18, 1776, and resolved: "That it is necessary that a provincial convention be called by this conference for the express purpose of forming a new government in this province, on the authority of the people only." 37 The convention which met in pursuance of this call framed the Pennsylvania constitution of 1776. During the whole period of its existence it also acted as the regular legislative body of the state.

On September 5, 1776, this convention ordered four hundred copies of its proposed frame of government “printed

35 Force, American Archives, Fifth Series, i, 617.

36 Proceedings of the convention of the Delaware State. The proceedings of this convention were published contemporaneously by James Adams at Wilmington. Force, Fifth Series, ii, 285.

* Journals of the House of Representatives of Pa., 1776-1781, p. 36.