for public consideration;" the consideration of the constitution was resumed by the convention on September 16, and it was adopted on September 28.38 A meeting at Philadelphia on October 21 and 22, 1776, protested that the convention "did not allow time to the people of this State to take into their consideration the proposed frame of Government." "9 The printing for public consideration and the postponement of action may however be considered a submission to the people, although it must be said that such submission was of a very informal character.

39

40

The Georgia provincial congress discussed the subject of forming a government, in March, 1776, but its members alleged that they had no authority from their constituents to enter upon the matter, and agreed to submit the subject for the consideration of the people. A temporary form of government was adopted. In a circular issued with reference to the convention which had been called to meet at Savannah in October, 1776, President Bulloch enjoined upon the people the "necessity of making choice of upright and good men to represent them in the ensuing conventionmen whose actions had proved their friendship to the cause of freedom, and whose depth of political judgment qualified them to frame a constitution for the future government of the country." "1 The constitution of 1777 was adopted by this body.

41

The first constitution of Vermont was framed by a convention called in pursuance of a circular of a previous con

38 Journals of the House of Representatives of Pa., 1776-1781, 76, 84, 89.

* Pennsylvania Gazette, October 23, 1776.

40 McCall, History of Georgia, ii, 75.

41 Stevens, History of Georgia, ii, 297, quoting from President Bulloch's circular.

vention, of June, 1777, recommending "to the freeholders and inhabitants of each town in this state to meet at some convenient place in each town on the 23d day of this instant June and choose delegates to attend a general convention at the meeting-house in Windsor . . . to form a constitution for said state." 42 Ira Allen says that Bennington objected to this constitution because it was not ratified by the people, but the truth of this statement has been doubted.

The first constitutions of South Carolina, Virginia, and New Jersey were adopted by provincial congresses chosen for the purpose of directing the revolutionary movement against Great Britain, and without any specific authorization from the people to take such action. Yet in both South Carolina and Virginia the question was raised as to the power of the provincial congress to adopt a constitution, and was decided in the affirmative, largely, perhaps, upon the argument of expediency.

In February, 1776, a committee appointed by the provincial congress of South Carolina reported a constitution, but action upon it was opposed by many members, “some of them because they were not prepared for so decisive a measure others, because they did not consider the present members as vested with that power by their constituents.** This opposition was not sufficiently strong to prevail, and the constitution was adopted.

It has frequently been asserted that the South Carolina constitution of 1778 was passed as an ordinary act of the

42 Records of the Council of Safety and the Governor and Council of Vt., i, 58. This constitution was revised by a convention of December, 1777, and this second convention seems to have acted without having any special authority to do so.

43 Allen, History of Vermont, 108-111. (Collections Vt. Hist. Soc. i, 391). But see Chipman's Memoir of Thomas Chittenden, 108-111. 44 Drayton, Memoirs of the American Revolution, ii, 172, 176.

H

45

legislature, but what evidence there is goes to indicate
that the members of the legislature were authorized by
their constituents to adopt a constitution. Defects seem

almost immediately to have been discovered in the consti-
tution of 1776. A committee of the assembly, appointed
in October, 1776, reported certain alterations which it con-
sidered expedient. Ramsay says that the elections of Oc-
tober, 1776, were " conducted on the idea that the members
chosen, over and above the ordinary powers of legislators,
should have the power to frame a new constitution suited
to the declared independence of the state." 47 This matter
was immediately taken up by the new legislature. Richard
Hutson wrote to Isaac Hayne on January 18, 1777, “We
yesterday finished the difficult Reports of the committee on
the Constitution with regard to amendments therein, and
it is now ordered to be thrown into a Bill. A motion will
be made, and I have no doubt but it will be carried, to have
it printed and circulated through the State, and to postpone
the passing of it till the next session.
Such a post-
ponement was taken, in order that the people might have

99 48

45 This view has been strengthened by the case of Thomas v. Daniel, 2 McCord, 354, in which the court said: "The form of government adopted by the legislature of 1776, was no more than any other legislative act, and was subject to the revision and repeal of a succeeding legislature. The legislature of 1778, did revise and repeal the act of 1776, and adopted another form of government, which is called the constitution of 1778. This constitution pretends to no control over succeeding legislatures although it does restrain the officers of government in the exercise of the powers vested in them for the administration of the laws. Had it attempted to restrain future legislatures, it would have been inoperative; as each legislature possessed all the power of the people, who can undo whatever they may have done." 48 Force, American Archives, Fifth Series, iii, 61, 64, 71, 73. 47 Ramsay, Revolution in South Carolina, i, 129.

48 McCrady, South Carolina in the Revolution, 1775-1780, p. 213.

an opportunity to express themselves, and the legislature did not take final action upon the constitution until its December session, 1777. In the meantime the proposed constitution was printed and circulated among the people.1 President Rutledge, in refusing his assent to the constitution of 1778 and in a contemporary letter to Henry Laurens, denied the power of the legislature to adopt a constitution, and practically denied that a power to change the form of government existed anywhere except upon the dissolution of an existing government.

50

The New Jersey provincial congress, which met in June, 1776, entered upon the establishment of a constitution, in compliance with petitions from the inhabitants of different parts of that province, although there were also a number of petitions against such action. There is no evidence as to whether this body doubted its power to take such action. The attitude of the leaders of the Virginia convention of

49 With the bill as printed by Peter Timothy at Charleston in 1777, there appears an order of the two houses, of February 3, 1777, “That the Bill, intitled 'A Bill for establishing the Constitution of the State of South Carolina' . . . be printed and made public."

50 Ramsay, Revolution in South Carolina, i, 132. Correspondence of Henry Laurens, 103.

51 Mulford, History of New Jersey, 415, 416. The election of delegates to the provincial congress was held on May 27, and the resolution of the Continental Congress that all government under the crown of Great Britain should be suppressed had been ordered published on May 15; it is possible, therefore, that the question of establishing a new state government may have been discussed before the election of May 27. It is certainly true that the question was under discussion immediately after the election; almost as soon as the new provincial congress assembled (June 10, 1776) petitions began to be presented both for and against the establishment of a new government; it would seem that the petitioners had no doubt of the power of that body to act in the matter. Minutes of the Provincial Congress and the Council of Safety of New Jersey, 451, 455, 458, 464, 468, 470, 471. New Jersey Archives, Second Series, i, 130.

1776 is well indicated by the statement of Edmund Randolph: "As soon as the Convention had pronounced the vote of independence, the formation of a constitution or frame of government followed of course. . . Mr. Jefferson who was in Congress urged a youthful friend in the Convention [Edmund Randolph] to oppose a permanent constitution, until the people should elect deputies for the special purpose. He denied the power of the body elected (as he conceived them to be agents for the management of the war) to exceed some temporary regimen. The member alluded to communicated the ideas of Mr. Jefferson to some of the leaders in the house, Edmund Pendleton, Patrick Henry and George Mason. These gentlemen saw no distinction between the conceded power to declare independence, and its necessary consequence, the fencing of society by the institution of government. Nor were they sure, that to be backward in this act of sovereignty might not imply a distrust, whether the rule had been wrested from the king.” St. George Tucker has stated strongly the case in favor of the convention's exercising the power without specific authority from the people. He says the convention was not an ordinary legislature, but a revolutionary body deriving its power directly from the people. "It was the great body of the people assembled in the persons of their deputies, to consult for the common good, and to act in all things for the safety of the people." Tucker also calls especial attention

99 52

52 Rowland's Life of George Mason, i, 235. See also Jefferson's Notes on Virginia. Ford's Writings of Jefferson, iii, 225-229. Jefferson's draft of a constitution, which was not before the leaders of the convention until after the work of framing a constitution was nearly finished, contemplated submission to the people. "It is proposed that the above bill, after correction by the convention, shall be referred by them to the people to be assembled in their respective counties; and that the suffrages of two-thirds of the counties shall be requisite to establish it." Ford's Writings of Jefferson, ii, 30.