99 12 constitution, so that, according to the council of censors, the surest title to an estate in Vermont would be the favor of its assembly." Yet the council concluded that redress could not be expected; none but the legislature, whose interest it would be to withhold it, being competent to give it." The legislature was supreme, and the constitution formed simply a moral check upon its power. In 1787 a legislative act was passed specifically altering an important provision of the constitution, but this act seems not to have been questioned as unconstitutional. The act of March 8, 1787, limited the right to vote to freeholders, while the constitution conferred the right to vote upon freemen, and defined a freeman as every man of the full age of twentyone years, having resided in this State for the space of one whole year, and is of a quiet and peaceful behavior. . . .' 66 99 13 Another indication of the feeling toward the constitution in Vermont is the act of the assembly of that state, of February, 1779, which provided "that the constitution of this State, as established by general convention held at Windsor, July and December, 1777, together with, and agreeable to, such alterations and additions as shall be made in such con:stitution, agreeable to the 44th section in the plan of government, shall be forever considered, held, and maintained, as part of the laws of this State.” 14 Similar enactments were repeated in June, 1782, and March, 1787; the act of 1787 was formally repealed in 1797.15 These legislative confirmations are sometimes cited as attempts to give validity to con 112 Slade's Vermont State Papers, 537. 13 Statutes of Vermont, 1787, p. 50. Chipman, Memoir of Thomas Chittenden, III-113. 14 Vermont State Papers, 287. 15 Slade's Vermont State Papers, 449. Vermont Statutes of 1787, p. 31. Vermont Revised Laws of 1798, p. 600. stitutions improperly adopted,1° but certainly there can be no charge of improper adoption brought with reference to the revised constitution of Vermont of 1786. Rather it should be said that the Vermont legislature thought itself competent to give additional force to the constitution by such action. A Vermont author has well expressed what were at that time probably the views in this state as to the relation between the constitution and the legislature: "In all governments which had previously existed, the legislature, the law-making power had been sovereign, absolute, and uncontrollable. Judge Blackstone says: 'Legislation is the greatest act of superiority that can be exercised by one being over another, wherefore it is requisite to the very essence of law, that it be made by the supreme power. Sovereignty and legislation are, indeed, convertible terms. One cannot subsist without the other.' This constitutional law, this omnipotence of the Legislature, the Colonists brought with them from the mother country, as they brought with them the common law. And when they constituted the legislature, they considered that its power was necessarily supreme and uncontrollable, and that all constitutional restrictions upon their power were merely directory. No idea was entertained that an act of the legislature, however repugnant to the constitution, could be adjudged void and set aside by the judiciary, which was considered by all a subordinate department of government." Because of the peculiar institution of the council of censors, the development of a definite distinction between constitutions and statutes and of a judicial sanction for the enforcement of this distinction, seems to have come later in Pennsylvania and Vermont than in many of the other states.18 99 17 16 Jameson, Constitutional Conventions, 4th ed., 141. 18 Austin v. Trustees of the University of Pennsylvania, 1 Yeates, Returning now to the subject of the procedure employed for the framing of state constitutions, I think it may be said that by 1784 the constitutional convention was firmly established as a body distinct and separate from the regular legislature. Although an absolutely separate body had up to this time been employed for constitutional legislation only in New Hampshire and Massachusetts, yet in the other states the regular legislative bodies were used largely because of emergencies which made undesirable the assembling of a body of representatives distinct from that already in existence. Conventions as independent bodies were pro 66 260 (1793) speaks of a law as unconstitutional" but seems to mean nothing more than that the law had been declared by the council of censors to be a violation of the constitution; the law had been repealed and the question of its validity was not before the court. Respublica v. Duquet, 2 Yeates, 493 (1799), Emerick v. Harris, I Binney, 415 (1808), and Commonwealth v. Smith, 4 Binney, 117 (1811), all assert that the courts have power to declare laws invalid, but do not exercise the power. Justice Gibson in Eakin v. Raub, 12 S. & R. (Pa.), 330, 355 (1825) says that to that time no law had been declared invalid, and the power was not made use of in Eakin v. Raub. James Wilson, however, in his lectures before the college of Philadelphia in 1790-91 argued that the courts had power to declare laws invalid. Works of James Wilson (Andrews' edition), I, 411-418. Dupy v. Wickshire, 1 D. Chipman, 237 (1814), is the first Vermont case of this character. It is of interest in this connection to suggest that Judge Nathaniel Chipman, the leading lawyer in Vermont, in his Sketches of the Principles of Government (Rutland, 1793), p. 127, says that the courts should not have power over legislative acts; but that in his Principles of Government (Burlington, 1833), pp. 288-297, he is a strong advocate of the judicial power to annul laws. In New York also there were no early cases in which laws were held invalid unless Rutgers v. Waddington (1786) be considered such a case. In certain early cases the legislative repeal of a law after a court had declared it unconstitutional, was probably based upon the view that a judicial decision did not annul the law, but was in the nature of a recommendation to the legislature. Meigs, The Relation of the Judiciary to the Constitution, American Law Review, xix, 175, 185, 188 (March-April, 1885). vided for by the first constitutions of Pennsylvania, Vermont, Georgia, and Massachusetts, and by the New Hampshire constitution of 1784.19 Since 1784 state constitutions have, with few exceptions, been framed or adopted by conventions chosen by the people for this purpose. 20 In discussing the development of the state constitutional convention it will be well to consider: (1) The usual methods by which conventions have been assembled. (2) The extent to which constitutions have been submitted to a vote of the people, or have been put into effect without popular approval. (3) The legal position of the convention in our constitutional system. The Usual Methods by Which Conventions Have Been Assembled. Attention has already been called to the fact that many of the state constitutions adopted during the revolutionary period paid little attention to the elaboration of machinery for the revision of constitutions. Of the earlier methods devised for the revision of constitutions that adopted by Pennsylvania and Vermont is the most curious. The councils of censors of these states, elected every seven years, had power, by a vote of two-thirds of their members to "call a convention to meet within two years after their [the coun 19 Jefferson, in his draft of a proposed constitution for Virginia, made in 1783, provided a convention for the purpose of making changes in the constitution. Ford, Writings of Jefferson, iii, 332. 20 The most important exception to this statement is the Nebraska constitution of 1866, which was framed by the territorial legislature, and by this body submitted to a vote of the people. Brittle v. People, 2 Neb., 198, 206. In 1873 a new constitution for Michigan was drafted by a commission appointed under the authority of a legislative act, and was submitted to the people by the legislature, but was rejected. A proposed new constitution for Rhode Island, drafted in a similar manner, was rejected in 1898 and 1899. cil of censors'] sitting, if there appear to them an absolute necessity of amending any articles of the constitution which may be defective, explaining such as may be thought not clearly expressed, and of adding such as are necessary for the preservation of the rights and happiness of the people: But the articles to be amended, and the amendments proposed, and such articles as are proposed to be added or abolished, shall be promulgated at least six months before the day appointed for the election of such convention, for the previous consideration of the people, that they may have an opportunity of instructing their delegates on the subject." Conventions elected under this provision were thus chosen by the people merely to ratify or reject amendments proposed by the council of censors, and were not constitutional conventions in the sense that they had authority to draft new constitutions, or to frame amendments for themselves. The council of censors proved unpopular in Pennsylvania, where it had a short and inglorious career. Many features of the Pennsylvania constitution were opposed by a large body of citizens of that state, and strong protest was made against the provisions by which it was made unamendable for a period of seven years.21 In fact this provision of the constitution was ignored from the very first. The assembly on June 17, 1777, adopted a resolution providing that the sense of the people should be taken as to the advisability of calling a convention to revise the constitution. The British invasion prevented the carrying-out of this resolution. Again on November 28, 1778, the assembly resolved to submit the question of a convention to the people, the members of the convention to be chosen at the same time when the question was voted on; but this resolution was re21 Pennsylvania Gazette, Oct. 23, 1776. |