setts had been learning from the constitutional experience of the states around them. Another of these amendments provided for the establishment of municipal governments, but only "with the consent and on the application of a majority of the inhabitants of such town, present and voting thereon." 1

In 1903 the General Court adopted a Resolve,2 providing for the submission of amendments to the constitution upon the petition of fifty thousand voters, and with the approval of fifteen members of the Senate and a majority of the representatives. The proposal was not, however, agreed to by the succeeding General Court in accordance with existing requirements.

4

5

The adoption of a constitution in Rhode Island left Vermont as the only New England state without a popularly ratified fundamental code. That state's original constitution had been proclaimed in 1777 by the convention which framed it, and while this course occasioned some criticism at the time, and the defect was sought to be remedied by acts of the legislature, none of the subsequent constitutions or amendments were submitted. Borrowing from Pennsylvania the system of a Council of Censors, the early Vermonters provided that this body should have the sole power of calling constitutional conventions and proposing amendments, leaving to the convention merely the option to accept or reject." Thus, while all the other states were adopting the democratic plan of constitution-making, Vermont continued to employ the eighteenth-century method." Finally in 1870 a convention which met at Montpelier adopted several amendments, one of which abolished' the Council of Censors, and another provided as follows:

1 Art. II.

2 Massachusetts Acts and Resolves, 1903, p. 583.

8

3 Objections were offered from Bennington. Allen, "History of Vermont," 108110; Collections Vt. Hist. Soc. I, 391.

4 Jameson, "Constitutional Conventions" (4th Ed., Chicago, 1877), sec. 154. "There was a general feeling though that it was not the correct procedure, but the long boundary contests in which she had been engaged with Massachusetts, New Hampshire, and especially New York, made it seem unwise to take the risk of consulting the people." -Oberholtzer, "Law Making by Popular Vote," Annals American Academy of Political and Social Science, II, 327.

Jameson, sec. 155; Revised Laws of Vermont (Rutland, 1881), 50.

• Constitution of 1793, Chap. II, sec. 43; Poore, II, 1887; Revised Laws, 42.

7 Jameson, 648, 649, secs. 217, 220.

See its Journal (Burlington, 1870).

• Art. XXV, sec. 4; Poore, II, 1887; Revised Laws, 49.

"At the session of the General Assembly of this state, A.D. 1880, and at the session thereof every tenth year thereafter, the Senate may, by a vote of two thirds of its members, make proposals of amendment to the Constitution of the State, which proposals of amendment if concurred in by a majority of the members of the House of Representatives, shall be entered on the journals of the two houses and referred to the General Assembly then next to be chosen, and be published in the principal newspapers of the state; and if a majority of the members of the Senate and of the House of Representatives of the next following General Assembly shall respectively concur in the same proposals of amendment, or any of them, it shall be the duty of the General Assembly to submit the proposals of amendment so concurred in to a direct vote of the freemen of the state; and such of said proposals of amendment as shall receive a majority of the votes of the freemen voting thereon shall become a part of the Constitution of this state."1

This, however, was but an eddy in the current of New England's constitutional development. The Massachusetts convention of 1820 had practically taken the final step in extending a simplified system of popular ratification throughout New England.

1 Art. XXV; Revised Laws, 49.

CHAPTER XIV

POPULAR RATIFICATION IN THE SOUTH

A. Southern System Indigenous

1

WHILE popular constitution-making was thus being perfected in New England, colonial experience in popular legislation was bearing fruit in the South. There seems to be a vague notion in some quarters that the latter section merely followed the former and borrowed its completed system. Thus Dr. Borgeaud says, "The South was not slow in imitating the example of the North, and following in its turn the evolution of popular government." But where is the evidence of its "imitating the example of the North"? Means of communication were slow and primitive when this "evolution" began in the South, and the interchange of ideas between distant and not altogether friendly sections was neither easy nor common. Besides, as we shall find later, the Southern constitutions of that period have an individuality of their own; while resembling each other, they are, on the whole, materially different from those produced in the corresponding period at the North.

But it is unnecessary to seek a foreign origin for institutions and customs whose germs may easily be found at home. We have followed the course of popular legislation in the South up to the midst of the Revolutionary War; why should we look elsewhere for the source of popular constitution-making? While the popular constitutions of New England may be traced back to its town compacts and legislation of the seventeenth century, those of the South are even more closely connected with the "associations" of the Carolinas and the covenants of the mountaineers. Even more closely, because in the South the two movements were separated by a few years at most, and the first Southern constitution to provide for an appeal to the 1 "Adoption and Amendment of Constitutions" (Hazen's Trans., New York, 1895), 161, 162.

people appeared in a state where some of the latest of these experiments in popular legislation were made.

B. Kentucky

1

While the source of Kentucky's institutional development is thus apparent, the formal authority for its first constitution came not from the people, whose early lessons in self-government we have already followed, but from the legislature of Virginia, of which commonwealth Kentucky at first formed a part. That body in 1789 passed an act providing for a convention to meet at Danville, Kentucky, "with full power and authority to frame and establish a fundamental constitution of government for the proposed State." The body which assembled in 1792, pursuant to this act, made this "compact with the state of Virginia" a part of the instrument which it framed 2 and exercised the power thus conferred "to establish" a constitution. But while in this feature the convention followed the Virginia law by which it doubtless felt bound, it at the same time took a step which showed that early Kentucky precedents were not without influence. The new instrument contained the following provision relative to future constitutional changes:

That the citizens of this State may have an opportunity to amend or change this constitution in a peaceable manner, if to them it shall seem expedient, the persons qualified to vote for representatives shall, at the general election to be held in the year one thousand seven hundred and ninety seven, vote also, by ballot, for or against a convention, as they shall severally choose to do; and if thereupon it shall appear that a majority of all the citizens in the State voting for representatives have voted for a convention, the general assembly shall direct that a similar ballot shall be taken the next year; and if thereupon it shall also appear that a majority of all the citizens in the State voting for representatives have voted for a convention, the general assembly shall, at their next session, call a convention to consist of as many members as there shall be in the house of representatives, to be chosen in the same manner, (at the same places and at the same time that representatives are), by the citizens entitled to vote for representatives, and to meet within three months after the said election for the purpose of readopting, amending or changing this constitution. If it shall appear upon the ballot of either year that a majority of the citizens voting for the representatives is not in favor of a convention being called, it shall not be done until two-thirds of both branches of the legislature shall deem it expedient.""

1 Bullitt and Feland's Kentucky General Statutes (Louisville, 1887), 55.

2 Id. 66.

3 Art. XI, id. 67; Poore's "Charters and Constitutions," I, 654.

Here, then, we have the first instance, outside of New England, of an American state providing for a plebiscitum on a constitutional question, and even in New England up to this time only the states of Massachusetts and New Hampshire had consulted the people directly with reference to their constitutions. The movement in the South for a people's constitution, though of distinct and subsequent origin and less perfect in achievement, was not much later in point of time than that of New England.

Nor was this epoch-making clause in the new instrument merely a paper declaration. When the time fixed for consulting the people arrived, the question of calling a convention was submitted, and a clear majority of the votes regularly returned was in favor of the proposal.1 Here again Kentucky was in the van. Not only in providing for the participation of the people, but in actually consulting them, it led all the states except Massachusetts and New Hampshire.

The second reference to the people as required by the constitution was made in 1798, with the result that a still larger majority for a convention was disclosed,' though the returns were both times incomplete. In the following year, delegates were accordingly chosen, and the convention met at Frankfort and proceeded to "ordain and establish" a constitution. The provision as to future constitutional changes was retained in substance, including the double consultation of the electorate, except that the latter could be made at any session of the legislature, and was not limited, as in the first instrument, to a single year.* The Kentucky constitution-makers appear to have thought that since the people were twice consulted in calling the convention, its labors would not need a review at their hands.

The constitution of 1799 was a more democratic instrument than its predecessor. It abolished the electoral college, apparently borrowed from Maryland, which chose not only the senators as in the last named state, but also the governor, and these officials were made elective. The instrument appeared also to be satisfactory to the people, for it was not until almost a half century later that advantage was taken of the right to appeal to them for a new constitution. In

1 It received 5446 out of a total of 9814. Collins, "History of Kentucky" (Louisville, 1877), 845.

2 On the face of the returns there were 8804 in favor of a convention out of a total of 11,853. Eight counties failed to vote and two others neglected to make returns. Id. 3 Preamble. • Art. IX. See post, 230.