to both of the above mentioned instruments from the highest court of the state, which declared:

"Between the declaration of our National Independence and the adoption of the federal constitution, this state was sovereign and uncontrolled. The people, in whom all power was vested, thought proper to employ the legislature as their agents, in the exercise of that power. In the use of this power, the legislature was unlimited. They were the representatives of the people; for all purposes whatever could be done by the people, could be done by the legislature. Each succeeding legislature possessed the same power, and could not be bound by any act of a preceding legislature, for each legislature was the people. Whatever, therefore, one legislature could enact, a succeeding legislature could repeal. 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." 1

But the fact that this second South Carolina instrument was left "to the consideration of the people" even without a vote shows that the struggles of the Carolina covenant-makers and "associations" earlier in the eighteenth century had not been altogether in vain.

D. Virginia

I. "The First Complete Constitution"

The third colony to take steps toward the framing of a constitution and the first to accomplish that result in anything like modern completeness was Virginia.

"It has been usual to concede to Virginia," says Judge Jameson," "the honor of having framed the first American Constitution. If by that be meant the first which was complete according to later ideas of what a Constitution should be, the concession is just. The first Constitutions of New Hampshire and South Carolina, which were several months earlier in date than that of Virginia, were very imperfect, while the latter was so skilfully framed that it was not found necessary to change it until 1830, nearly three quarters of a century after its formation."

1 Per Huger, J., in Thomas v. Daniel, 2 McCord (S.C.), 359*.

* "Constitutional Conventions" (4th Ed., Chicago, 1887), sec. 138, note.

But the body which framed this instrument was not, as afterward in Massachusetts and New Hampshire, created for that purpose in response to a demand of the people expressed through the ballot-box. It was not even charged with the duty or expressly vested with the power of establishing a constitution at all.1

"For more than a year," observes a recent historian," "local committees, self-constituted, acting as revolutionary bodies, and therefore under no laws or general system, had exercised what functions of defence, and too often of offence, were deemed necessary by a majority of their members, governed only by the rules of self-preservation. From these local committees grew the Colonial Convention, convening without definite aim or purpose, and containing within itself a difference of opinion that promised a protracted contest on every question that involved a change in the social order of the colony."

How this body came into existence is also described by Jefferson. The ancient House of Burgesses had been dissolved by the royal governor, Lord Dunmore, in 1775.3

"On the discontinuance of assemblies, it became necessary to substitute in their place some other body, competent to the ordinary business of government, and to the calling forth the powers of the State for the maintenance of our opposition to Great Britain. Conventions were therefore introduced, consisting of two delegates from each county, meeting together and forming one house, on the plan of the former house of burgesses, to whose places they succeeded. These were at first chosen anew for every particular session. But in March, 1775, they recommend to the people to choose a convention which should continue in office a year. This was done, accordingly, in April, 1775, and in the July following that convention passed an ordinance for the election of delegates in the month of April annually. It is well known that in July, 1775, a separation from Great Britain and establishment of republican government had never yet entered into any person's mind. A convention, therefore, chosen under that ordinance, cannot be said to have been chosen for the purposes which certainly did not exist in the minds of those who passed it. . . . So that the electors of April, 1776, no more than the legislators of July, 1775, not thinking of independence and a permanent republic, could not mean to vest in these delegates powers of establishing them, or any authorities other than those of the ordinary legislature.”

We shall see how different this was from the painstaking effort subsequently made in Massachusetts to ascertain and carry out the

363.

"Writings of Thomas Jefferson" (Washington's Ed., New York, 1854), VIII.

2 Worthington C. Ford in The Nation, LI, 107.

3 See remarks of Judge Tucker in Kamper v. Hawkins, 1 Virginia Cases, 70.

"Writings of Thomas Jefferson" (Washington's Ed.), VIII, 363, 364.

popular will. The latter was in accord with the democratic ideas of Jefferson and he urged that without this authorization from the people the convention could not proceed to adopt a form of government. Says Edmund Randolph:1

"Mr. Jefferson, who was in Congress, urged a youthful friend in the convention 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."

Nevertheless the body thus chosen was distinguished for the high character of its membership. "No other convention," says Thorpe, "assembled to make a State constitution has enrolled so many eminent men." The delegates assembled at Williamsburg on May 6, 1776, having been elected in the preceding month.3

5

2

On June 12, they proceeded to adopt the Declaration of Rights, which had been drafted by George Mason and which is noted for its clear expression of advanced political doctrines. By June 29 they had agreed upon a "constitution or form of government," which seems to have been considered apart from the Declaration of Rights. This instrument, as has been observed, was the first complete American constitution. It is distinguished also as containing the first enactment of the doctrine of the separation of governmental powers,—a feature made pertinent in Virginia by the fact that under the colonial régime judges had seats in the legislature. Both the Declaration and the form of government were agreed upon unanimously by the delegates,' and yet among all that brilliant array there seems to have been only one who thought it necessary or desirable that the results of the convention's labors be submitted to the people.

1 Ms. "History of Virginia," 63, quoted in writings of Thomas Jefferson (Ford's Ed., New York, 1893), II, 9.

note.

2 "Constitutional History of the American People" (New York, 1898), I, 117,

* See "Proceedings of the Convention" (Richmond, 1816, reprint). Cf. Grigsby, "The Virginia Convention of 1776" (Richmond, 1855).

* See text in Hening's "Statutes at Large" (Richmond, 1821), IX, 109.

• Id. 112.

6 Bondy, "The Separation of Powers" (New York, 1896), Columbia University Studies, V, No. 2, 19, note 4.

"See Hening's "Statutes at Large," IX, 109, 112.

2. Jefferson's Plan for Popular Ratification

Thomas Jefferson, though elected to this convention,' was also a member of the Continental Congress, and was absent in attendance upon the latter during the deliberations of the Virginia body. But the great American exponent of the democratic theory in the eighteenth century did not allow his absence to preclude him from presenting his ideas to the convention. Writing subsequently of this occasion he says:

"I was then at Philadelphia with Congress; and knowing that the Convention of Virginia was engaged in forming a plan of government, I turned my mind to the same subject, and drew a sketch or outline of a Constitution, with a preamble, which I sent to Mr. Pendleton, president of the convention, on the mere possibility that it might suggest something worth incorporation into that before the Convention. He informed me afterwards by letter, that he received it on the day on which the Committee of the Whole had reported to the House the plan they had agreed to; that that had been so long in hand, so disputed inch by inch, and the subject of so much altercation and debate, that they were worried with the contentions it had produced, and could not, from mere lassitude, have been induced to open the instrument again; but that, being pleased with the Preamble to mine, they adopted it in the House, by way of amendment to the Report of the Committee; and thus my Preamble became tacked to the work of George Mason." 112

Jefferson had all along denied the power of this Virginia body to enact a permanent constitution. Then and afterwards he maintained that the instrument thus framed was of no higher force than an ordinary statute and hence repealable by the legislature. Accordingly, he speaks of his "outline" or draft of a constitution as a "bill," but he nevertheless intends that it shall be submitted to the electors; for the instrument closes with the significant provision :^—

"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."

Nor does his insistence of the direct participation plan end here. His proposed constitution also provides: 5

1

1 Thorpe, "Constitutional History" (New York, 1898), I, 117, note.

24 "Writings of Jefferson" (Ford's Ed., New York, 1893), II, 8, 9, notes. Both the original draft and the first copy are set out in full in the volume cited. Id. (Washington's Ed., New York, 1854), VIII, 363, 364.

Id. (Ford's Ed., New York, 1893), II, 29, 30.

• Id. 29.

L

"None of these fundamental laws and principles of government shall be repealed or altered, but by the personal consent of the people on summons to meet in their respective counties on one and the same day by an act of the Legislature to be passed for every special occasion; and if in such county meetings the people of two-thirds of the counties shall give their suffrage for any particular alteration or repeal referred to them by the said act, the same shall be accordingly repealed or altered, and such repeal or alteration shall take its place among these fundamentals and stand on the same footing with them, in lieu of the article repealed or altered."

Thus the plan of popular ratification, both of the original instrument and of its amendments, was brought before the convention; but in vain. It seems not to have been even discussed. Indeed, after it was received, there was little opportunity for discussion. And if it had been debated, there is small likelihood that the result would have been different. The experience of Virginia had not been such as to render it favorable soil for such an experiment. The delegates who framed this instrument represented a tidewater people of English stock. The Scotch-Irish, who had begun to settle in the western mountains, had little or no voice in its proceedings, though they appear to have sent a communication to it.1

Jefferson, as we have seen, not only opposed the enactment of the constitution, but insisted that it was never anything more than an ordinary enactment of the legislature and therefore subject to repeal. These views were subjected to a judicial test a few years later (1793) in a case which came before the General (Supreme) Court of Virginia.3 The General Assembly had passed an act conferring upon the district courts the powers of a court of chancery in reference to granting injunctions. This was in conflict with the provisions of the constitution, and the question was thus squarely presented as to whether the latter instrument was an ordinary statute or was a real constitution. If the former, the act in question would stand, as it would effect a repeal of the earlier one; if the latter, the statute was invalid, as a constitution could not be changed by a mere act of the legislature. In rendering their decision the judges repudiated the views of Jefferson and were unanimously of the opinion that the instrument proclaimed by the convention of 1776 was a real and

1 See Turner, "Western State-Making in the Revolutionary Era,” American Historical Review, I, 76; ante, 130.

2

"Writings of Jefferson" (Washington's Ed., New York, 1854), VIII, 363–367. 3 Kamper v. Hawkins, 1 Virginia Cases, 20.