to the fact that the formation of a government had been under discussion among the people.5 No one familiar with the close relationship which existed between the local and central revolutionary organizations in the colonies in 1776 can doubt that the actions of the provincial congresses of South Carolina, Virginia and New Jersey expressed the sentiments of the people of these states.

In this connection attention should also be called to the constitution framed by a convention in December, 1784, for the proposed state of Franklin. The convention resolved: "That this Convention recommend this Constitution for the sereous Consideration of the People during Six Ensuing Months after which time Before the Expiration of the Year that they Choose a Convention for the Express purpose of adopting it in the name of the people if Agreed to By them or altering it as Instructed By them." The constitution went into operation immediately, but was not ratified by the subsequent convention of November, 1785, and the North Carolina constitution of 1776 was with some modifications adopted for the new state; the action of the second convention was not submitted in any manner for popular approval.

54

We are now accustomed to the practice of having state constitutions framed by conventions entirely independent of the regular legislature, and of having such conventions as a rule submit their work for the approval of the people. In the development of this independent machinery for the

53 Tucker's Blackstone, i, part 1, Appendix, 87-92. This is a summary of Tucker's opinion in the case of Kamper v. Hawkins, in the General Court of Virginia in 1793. Works of John Adams, iv, 191. Henry's Patrick Henry, i, 418. Force, Fourth Series, vi, 748.

54 American Historical Magazine and Tennessee Historical Society Quarterly, i, 48-63; ix, 399-408. Caldwell, Studies in the Constitutional History of Tennessee, 2d. ed., 48-59.

framing of state constitutions there have been three steps: (1) The establishment of the distinction between the constitution and ordinary legislation, and the development of a distinct method for the formation of constitutions. (2) The development of the constitutional convention as a body distinct and separate from the regular legislature. (3) The submission of a constitution to a vote of the people, after it has been framed by a constitutional convention. The first step is fundamental; the other two involve but the elaboration of machinery to carry out more clearly the distinction between constitutions and ordinary legislation. It cannot be said that the third step has yet been fully taken, and that submission of a constitution to the people is essential; the Virginia constitution of 1902 was not submitted to a vote of the people.55

The people of the colonies were familiar with the distinction between statute and constitution; at the foundation of their political convictions lay the theory that the principles of government are permanent and may be changed only by the people. But for the first time they were brought face to face with the problem of establishing such principles, of framing written constitutions superior to and limiting all ordinary governmental organs. Theirs was the first step in the development of the constitutional convention, in the establishment of principles for the adoption of constitutions different from those to which they were accustomed for the enactment of laws.

Even had the people come in 1776 to a belief that constitutions should be adopted by representative bodies independent of the regular legislature, such a system would have been in many cases hazardous and impracticable. The leaders of the people were already assembled in provincial

55 A. E. McKinley in Political Science Quarterly, xviii, 509.

congresses, organizing for military defense, and in most of the states both central and local organizations were busily engaged in suppressing opposition to revolutionary measures. They succeeded in many cases in suppressing opposition only by virtue of their superior aggressiveness. To permit the creation of independent conventions would be to risk the loss of much that had been gained by united and aggressive action. Permanent governments, if established at all, must be established by existing provincial representative bodies. That the people recognized the superiority of constitutions to statutes is clearly shown by the fact that nine 5 of the twelve constitutions adopted between 1776 and 1778, and the proposed Massachusetts constitution of 1778, were drafted by legislative bodies especially empowered by their constituents to take such action; and by the further fact that expediency was urged as the most important argument against similar authorization in South Carolina and Virginia in 1776.

56

In New Hampshire and Massachusetts, during the revolutionary period, was developed the constitutional convention as we know it to-day; that is, the independent body for constitutional action, with the submission of its work to a vote of the people. But it should be remembered that before this development took place both of these states had established fairly stable governments, New Hampshire by its constitution of 1776, and Massachusetts, by the resumption of its charter in July, 1775. In neither was the need of a new government of great urgency; in neither was

57

56 New Hampshire, Pennsylvania, Maryland, Delaware, North Carolina, New York, Georgia, Vermont, South Carolina (1778).

57 The New Hampshire constitution of 1776 really organized a legislature only, and legislative action completed the governmental structure. See a paper by the present writer in Proceedings of the N. H. Bar Association for 1906.

there an aggressive tory element. Neither of these states was threatened by military operations after the surrender of Burgoyne in October, 1777.58 In neither state was danger to be apprehended from the creation of an independent convention and the submission of its work to a vote of the people.

In summarizing the action of the states from 1776 to 1784 in the adoption of their constitutions, we may perhaps distinguish four forms of procedure:

(1) Constitutions framed by purely legislative bodies, which had received no express authority from the people for this purpose, and such constitutions being put into operation without submission to the people in any manner-South Carolina (1776), Virginia, New Jersey. The method of adopting these constitutions differed not at all from that pursued in the passage of ordinary statutes, although the conventions and congresses which acted were not, of course, legislative bodies of a regular character.

(2) The legislative body framing a constitution under authority expressly conferred upon it for this purpose by the people, without the constitution being in any manner submitted to the people for approval-New Hampshire (1776), Delaware, Georgia, New York, Vermont.

(3) The legislative body framing a constitution under authority expressly conferred upon it for this purpose by the people, with a subsequent formal or informal submission of the constitution to the people-Maryland, Pennsylvania, North Carolina, South Carolina (1778), Massachusetts (1778); of this group of states Massachusetts is the only one which formally submitted its constitution to the people.

58 Cushing, Transition of Massachusetts, 187, calls attention to the favorable position of Massachusetts in 1778 for the framing of a constitution.

(4) The framing of a constitution by a body chosen for that purpose only, with the subsequent submission of the proposed constitution to the people for approval-New Hampshire, 1779-1783; Massachusetts, 1779-80.

Thus we see that only in Massachusetts and New Hampshire was developed what has since become the characteristic procedure in the framing of new state constituions. As has already been suggested, the earlier development of this procedure in these states was due largely to their freedom from external danger and from internal conflict when they came to form new governments, and also to the fact that they already had stable governments in existence, and could therefore proceed in a more leisurely manner to frame new constitutions. Some writers have suggested that Massachusetts and New Hampshire were in advance of the other states in this regard because more democratic 59—this may be true to a certain extent, but the conditions under which they framed their constitutions were more favorable to the development of an orderly procedure. It is true, however, that the New England town meeting furnished a ready means for taking the will of the people upon such a question as that of adopting a constitution, while no such effective instrument for this purpose existed outside of New England. Yet we find that New Hampshire in 1776, when there was danger to the revolutionary party from both within and without, did not submit its constitution to the people for approval. So Massachusetts resumed her charter in June, 1775, by means of the regular legislative body then in existence, the provincial congress, without consulting the people, this action being in conformity with a recommendation made by the Continental Congress." 59 Oberholtzer, Referendum in America, 107-111.

60 Journals of each provincial congress of Massachusetts, 359.