ing of their neighbors across the New England border, and could not be expected to take so naturally to the plan of popular ratification.

Hence it is not strange that the draft reported to the convention on March 12, 1777, and which was largely the work of John Jay, contained no provision for submitting it to the people. The convention made few changes in this draft, and on April 20, 1777, "with but one dissenting voice," it was proclaimed by its framers the constitution of the state. It has been said that "the instrument thus framed was at that time generally regarded as the most excellent of all the American Constitutions," and that it "met with general approval." Compared with others of its day it was certainly long-lived. During forty-four years it continued substantially unchanged as the fundamental law of New York. In 1801 a convention of which Aaron Burr was president adopted certain amendments relative to the legislature and the appointing power, which it also did "ordain, determine and declare" to be in force without the formality of popular assent. But with this exception the original instrument remained intact until the great popular uprising of the second decade of the nineteenth century. The instrument of 1777, however, was not a popular constitution either in substance or in the manner of its enactment, and it was this lack which eventually led to its displacement by the Constitution of 1821. It was then that the ideals of the Radicals of 1776, as formulated in their address to the Colonial Congress, were at last realized, and the democratic method of constitution-making as practised in the states founded by the Calvinists was engrafted upon the public law of the Empire State.

1

Appendix to Proceedings and Debates of Convention of 1821, 692.

2 Jameson, "Constitutional Conventions" (4th Ed., Chicago, 1887), sec. 152. Thorpe, "Constitutional History of the American People" (New York, 1898),

I, 126.

• Proceedings and Debates of Convention of 1821, 20, 21. Some account of this convention of 1821 is given in Hammond's "History of Political Parties in New York" (Albany, 1842), I, Chap. VI.

CHAPTER XI

INSTRUMENTS OF THE REVOLUTIONARY ERA (Continued)

MASSACHUSETTS

TRAINED in the efficient school of the town meeting, and strongly imbued with the democratic traditions of colonial New England, the men of Massachusetts entered upon the revolution as the leaders of the colonists in their contest with the crown. Almost at the opening of the struggle an incident occurs which indicates how deeply rooted was the principle of popular ratification in that commonwealth, and how lasting was the effect of the people's experience with direct legislation during the colonial era. The town of Ashfield, in Hampshire, adopted a series of resolves on October 4, 1776, relative to the form of government which should be established in lieu of that which the revolution had displaced, and among them is the significant though crudely expressed demand

"that all acts Pased by the Gineral Cort of this State Respecting the Seviral Towns Be Sent to the Sevaral Towns for thair Acceptants before they Shall be in force.'' 1

Another indication of the democratic drift of public opinion is the pamphleteering which makes its appearance about this time. One work especially,2 bearing the date 1776, takes most advanced ground regarding the form and character of a constitution, and advocates changes that were not generally effected before the middle of the succeeding century. Meanwhile the demand was growing for the displacement of the colonial charter with a new constitution.3

1 Massachusetts Archives, CLVI, 131 (State House).

2 "The People the Best Governors or a Plan of Government founded on the just principles of Natural Freedom." See an interesting review of this by Harry A. Cushing in American Historical Review, I, 284.

* See detailed sketch of this in Harry A. Cushing's “Transition from Provincial to Commonwealth Government in Massachusetts," Columbia University Studies, VII, 196-199.

A. The Rejected Constitution of 1778

Early in June, 1776, the General Court appointed a committee of twelve to report plans for a new form of government.1 Nothing substantial came of this, however, since, to quote the words of an eminent local historian," — "the opinion was generally expressed that the subject should originate with the people who were the proper authorities to attend to this matter." In the following September the House of Representatives, adopting a course more in harmony with the democratic tradition, requested the towns to indicate whether they would consent that the General Court should enact a constitution. Less than half of the towns took action on this request, but among them were some of those of Worcester County. At a convention of the committees of safety of a majority of these towns of Worcester it was resolved that it would not be proper for the General Court to enact a constitution but that

"a State Congress, chosen for the sole purpose of forming a Constitution of Government"

5

should be convened for that purpose. Concord also voted to withhold consent on the ground

"that the supreme legislature, in their corporate capacity, were by no means the proper body to form and establish such a constitution and that a convention or congress, specially chosen, should be intrusted with the business.'

Other towns, including Boston and Andover, Norton and Lexington, voted against the plan of enacting the constitution by the General

1

1 Journal of the Massachusetts House of Representatives, June 4, 6, 1776; "Works of John Adams" (Boston, 1854), IX, 429, 442; Bradford, "History of Massachusetts" (Boston, 1825), II, 117.

2 Barry, "History of Massachusetts" (Boston, 1857), III, 173.

Journal of Massachusetts House of Representatives for September 17, 1776.

4 Harding, "The Federal Constitution in Massachusetts" (New York, 1896), Harvard Historical Series, II, 6. The author thinks that this may have been due to the non-concurrence of the Council in submitting the request.

' American Archives (Washington, 1837), 5th Series, III, 867; Lincoln, "History of Worcester," 118; Barry, "History of Massachusetts," III, 173.

6 Barry, "History of Massachusetts" (Boston, 1857), III, 173, note; Shattuck, "History of Concord," 127, 128.

7 Bradford, "History of Massachusetts" (Boston, 1825, ) II, 140; Barry, "History of Massachusetts" (Boston, 1857), III, 174.

8 See Jameson, "An Introduction to the Study of the Constitutional and Political History of the States," Johns Hopkins University Studies, IV, 204 et seq.

Court and in favor of the convention system, and in many cases their reasons are set forth in detail. Still others favored a new constitution, but suggested other plans for its adoption.1

Notwithstanding these clear expressions of opinion, which, though emanating from a minority of the towns, came nevertheless from some of the important ones, the General Assembly, on May 5, 1777, adopted the following: 2.

"Resolved, That it be, and hereby is recommended to the several towns and places in this state, empowered by the laws thereof to send members to the General Assembly, that, at their next election of a member or members to represent them, they make choice of men, in whose integrity and ability they can place the greatest confidence; and, in addition to the common and ordinary powers of representation, instruct them with full powers, in one body with the Council, to form such a Constitution of Government as they shall judge best calculated to promote the happiness of this State; and, when completed, to cause the same to be printed in all the Boston newspapers, and also in handbills, one of which to be transmitted to the Selectmen of each town, or the committee of each plantation, to be by them laid before their respective towns or plantations, at a regular meeting of the inhabitants thereof, to be called for that purpose, in order to its being, by each town and plantation, duly considered, and a return of their approbation or disapprobation to be made into the Secretary's office of this State, at a reasonable time, to be fixed upon by the General Court; specifying the numbers present at such meeting voting for, and those voting against the same; and, if upon a fair examination of said returns by the General Court, or such a committee as they shall appoint for that purpose, it shall appear, that the said Form of Government is approved of by at least two thirds of those who are free, and twenty-one years of age, belonging to this State, and present in the several meetings, then the General Court shall be empowered to establish the same as the Constitution and Form of Government of the State of Massachusetts Bay."

At the ensuing election "a majority of the towns in the state, it would seem, chose their representatives for the next annual session of the General Court with a special view, or at least with an implied consent, to the formation of a constitution by that body." Such, at

1

1 Cushing, "Transition from Provincial to Commonwealth Government," Columbia University Studies, VII, 200 et seq.

2 Journal of Massachusetts House of Representatives for May 5, 1777. The text of this resolve is also embodied in the preamble to the rejected constitution of 1778. See Journal of First Massachusetts Constitutional Convention, Appendix, 255, 256.

3 Barry, "History of Massachusetts" (Boston, 1857), III, 173, 174. Bradford says: "It is presumed the representatives would not have proceeded to prepare a constitution, unless the greater part of the towns in the state had authorised the measure. No document can be found in the secretary's office, to determine how many towns voted for it."-"History of Massachusetts" (Boston, 1825), II, 140, note.

any rate, appears to have been the opinion of the newly elected General Court itself, for in the preamble to the proposed constitution framed by that body it was recited that —

"the good People of this State in pursuance of the said resolution, and reposing special trust and confidence in the Council and in their Representatives, have appointed, authorized and instructed their Representatives, in one body with the Council, to form such a constitution of Government as they shall judge best calculated to promote the happiness of this State, and when completed, to cause the same to be published for their inspection and consideration."'1

Proceeding on this assumption, the new General Court, soon after it convened in May, 1777, appointed a committee of eight from the House and four from the Council to draft a new constitution. The instrument thus framed was reported to the General Court, acting as a convention, and after considerable debate it was, on February 28, 1778, agreed upon "to be laid before the several towns and plantations in said State for their approbation or disapprobation." "

But the members of the General Court had mistaken the temper of their constituents. For though that body had observed the democratic and traditional usage in submitting the result of its labors to the people, it had failed to take note of the strong demand for a constitution framed by a convention called specially for that purpose. The new instrument was transmitted to the towns as provided in the original resolve, and while one hundred and twenty of the towns made no returns, the others took action at various meetings up to June 15, 1778.5 The detailed criticism, often severe, of the convention's work, in the town resolves demonstrates the thoroughness with which the sovereign people was exercising its power.

When the results of these meetings were finally reported, it was found that the proposed constitution had been rejected by a vote of ten thousand as against two thousand for its adoption, the electors of

1 Constitution of 1778, Journal of First Constitutional Convention (Boston, 1832), Appendix, 256.

3

2 Barry, III, 175.

Journal of First Constitutional Convention (Boston, 1832), Appendix, 255.

4 Barry, III, 175, note; Bradford, II, 158.

Journal of First Constitutional Convention (Boston, 1832), Appendix, 255.

See for some interesting examples, Cushing's "Transition from Provincial to Commonwealth Government in Massachusetts," Columbia University Studies, VII, 215 et seq.