Mr. Jay took a leading part in its formation, having, it is said, left Congress to attend the Convention for that purpose. The proceedings, moreover, which resulted in its adoption, seem, considering the circumstances of the time, to have been so ordered as to make it substantially the work of the people. But the Convention by which that instrument was framed, was tainted by the vice inherent in most of those held during the Revolutionary period; it exercised, by usurpation or by the pretended grant of the Provincial Congress, governmental powers. While occupied in framing the Constitution, it spent much of its time in administrative business, and, after its completion, it continued to act, as above stated, as a Council of Safety, adopting the ordinances necessary to put the new government in operation. It was, therefore, a Revolutionary Convention.1

§ 153. The position of the State of Vermont, during the period we are now considering, was peculiar. Engaged, like the thirteen colonies forming the Union, in a war with Great Britain, in behalf of "the continent," she maintained, at the same time, a spirited contest, on her own account, with her powerful neighbor, New York, to repel what she deemed unjust territorial aggressions. The particulars of this double contest it is unnecessary to rehearse. It is sufficient to say that at the end of the war with Great Britain, Vermont had succeeded in establishing her independence, not only of Great Britain, but of New York, under a Constitution, which, in most of its important features, has remained unchanged to this day. The first step in this course was to call a Convention to pass upon the question of Independence, in imitation of the Continental Congress acting for the thirteen colonies. Circular letters were addressed by some of the most influential persons to the different towns, in pursuance of which delegates were appointed to a Convention, which met at Dorset, on the 24th of July, 1776. By different adjournments, a decision of the question was postponed until January, 1777, when the Convention again assembled at Westminster, and declared the New Hampshire Grants, for thus was Vermont then styled, a free and independent State. The Convention then adjourned, to meet again at Windsor, in the folI wing June. The little State, thus boldly claiming for herself For an account of the proceedings of the first New York Convention, see Deb. of the N. Y. Conv., 1821, Appendix, pp. 691-696.

a position among the nations of the earth, at once became an object of general attention. That New York would not readily acquiesce in her pretensions was certain, and it was very doubtful whether the Congress would recognize her independent character, much less admit her into the Union. At this juncture, a citizen of Philadelphia, Thomas Young, a prominent Democrat, and an experienced Constitution-maker,1 published an address, urging the people of Vermont to maintain the ground they had taken, assuring them that he had taken the minds of the leading members of Congress, and that all they had to do was to "send attested copies of the recommendation" of the Congress, "to take up government, to every township . . . . and invite all freeholders and inhabitants to meet in their respective townships and choose members for a general Convention, to meet at an early day, to choose delegates for the general Congress, a Committee of Safety, and to form a Constitution."2 This address was dated the 11th of April, 1777. At the adjourned session of the Convention, therefore, in June, 1777, in pursuance of this advice and of the recommendation of the Congress, that body appointed a committee to draft a Constitution, and then, by resolution, recommended the people to elect delegates, in their several towns, to meet in convention, at Windsor, on the 2d of July following, to pass upon the draft prepared by the committee. Delegates were accordingly elected, who met on the day named, and afterwards adjourning, and coming together in December, adopted and put in operation the first Vermont Constitution.s

§ 154. For a Convention called by a people in a condition so thoroughly revolutionary as that of Vermont, it is doubtful whether more of the elements of regularity could be expected than are here exhibited. Still, it was a Revolutionary Convention, that is, one exercising, beside the special function of a Constitutional Convention, the high powers of a Council of Safety, which were thoroughly despotic and of every variety wielded by any government whatever, so far as deemed by itself to be necessary. Moreover, the Constitution framed by the Convention was not submitted to the people for ratification. Though

1 The marked similarity of the first Vermont Constitution to the first Constitution of Pennsylvania, was doubtless owing to him.

the necessity of submitting it for that purpose was not denied, it was deemed unsafe to do so, on account of the perils then surrounding the State, as well from foreign as domestic enemies. But the failure to base the new government on the people, awakened a general distrust as to its validity. Objection was made to it, that the credentials of the delegates to the Convention authorized them to form a Constitution, but were silent as to its ratification by them, and that it never was submitted to the people for ratification or rejection. Attempts were made, on several occasions, to remedy this defect, and the mode in which this was sought to be done, marks the immaturity of the views prevalent at that time in regard to the proper method of effecting constitutional changes. The legislature of the State, at its session in February, 1779, passed an Act declaring, that the Constitution," as established by general Convention, held at Windsor in July and December, 1777, together with and agreeable to such alterations and additions," as should be made in pursuance of its provisions, should "be forever considered, held, and maintained, as part of the laws of the State."2 Not content with this, the same body, at a subsequent session, held in 1782, passed another Act in similar terms, for the same purpose, which, by the preamble, was declared to be "to prevent disputes respecting the legal force of the Constitution of this State." 3

§ 155. In 1786, a revision was made of the first Vermont Constitution, by a Convention called for that express and only purpose. By the 44th section of that instrument, provision had been made for the appointment, in 1785, and at the end of every seven years thereafter, of a Council of Censors, whose duty it should be, with other things, to call, by a vote of two-thirds of its members, a Convention to amend the Constitution, "if there should appear to them an absolute necessity of so doing." By a subsequent clause, all amendments were to be proposed by the Council of Censors, and the Convention were merely to pass upon them; and, to make it certain that the changes, if any, should be substantially the work of the people, the Council were required to publish the articles to be amended, and the proposed amendments thereto, at least six months before the

1 Slade's State Papers, p. 240, note, referring to Allen's Hist. Vt.
2 Act of February 11, 1779. See Slade's State Papers, p. 288, note.
3 Act passed in June, 1782. See Slide's State Papers, p. 449.

day appointed for the election of the Convention, " for the consideration of the people, that they may have an opportunity of instructing their delegates on the subject."

Under this system, copied from that of Pennsylvania, Councils of Censors were chosen every seven years down to the year 1869. That Council which held its session in 1785-86, called a Convention, to meet in June of the latter year, by which the Constitution was revised and published as the Constitution of 1786. Though differing from the Conventions of any other State in the Union, as to the extent and nature of their functions, those of Vermont, excepting her first, must be conceded to be, in their origin, at least, legitimate. Whether the facts, that they have received the amendments, upon which they have deliberated, from the Councils which called them, and that they have been required by the Constitution to pass upon those amendments definitively, distinguish them essentially from Constitutional Conventions, may be the subject of some doubt. Probably, the correct view to take of them is to regard them as Constitutional Conventions, exercising extraordinary powers, not by usurpation, as did their prototype, the Revolutionary Con. vention of 1777, but by virtue of special constitutional provision -in which view it would be impossible to deny to them regu larity and legality.1

§ 156. The latest of all the original States of the Union to frame a Constitution, was Massachusetts. We have seen, that as early as May, 1775, the Provincial Convention of that State, on the withdrawal of her charter, had applied to the Congress at Philadelphia, for advice respecting the proper exercise of the powers of government in that colony. In answer, the Congress had recommended the election of representatives by the several towns, to form a General Court, which was to meet and choose councilors, and had added the wish that those bodies should exercise the powers of government until a governor of the King's appointment would consent to govern the colony according to its charter. The arrangement thus recommended, which was provisional and temporary, was made, but no written Constitution was drawn up. For reasons set forth in the cases of the other colonies, this establishment proving unsatisfactory, in September, 1776, the Massachusetts Assembly voted to take steps 1 See post, § 220, and note.

? See § 127, ante.

toward the framing of a form of government." Accordingly, on the 5th of May following, the same body recommended to the people to authorize their representatives to the General Assembly next to be chosen, to form a Constitution, to be submitted to them for adoption or rejection, and, if approved by a two-thirds vote of the people, to be put in force by the General Assembly. On the 28th of February, 1778, the succeeding General Assembly, sitting as a Convention, agreed upon a Constitution, in the preamble to which, referring to the resolution of the 5th of May preceding, they recited that their constituents had instructed them "in one body with the Council," to form such a Constitution as they should judge best calculated to promote the happiness of the State. This Constitution, being submitted to the people at town-meetings held throughout the State, was, by the large majority of five to one, rejected. The reasons for this rejection were twofold: first, what were thought to be defects in the instrument itself; and, secondly, dissatisfaction on account of "the anomalous nature of the body by which it had been framed." The anomaly, doubtless, consisted in its double character of Assembly and Convention, which the people had the good sense to recognize as of dangerous tendency. It must, moreover, have been doubtful whether it was the sense of the people that the Assembly should assume to meddle with the fundamental law, since it does not appear that a regular vote was taken throughout the State, by the returns of which it could have been determined, with certainty, on which side of the question was cast a majority of votes.

§ 157. The next attempt to frame a Constitution for the State was more successful. The General Court, as the legislature was called, on the 20th of February, 1779, directed the selectmen of the several towns to cause the freeholders and other inhabitants in their respective towns, duly qualified to vote for representatives, to be lawfully warned to meet together in some convenient place therein, on or before the last Wednesday of May following, to consider of and determine upon the following questions: first, whether they chose, at that time, to have a Constitution, or form of government made; secondly, whether they would empower their representatives for the next year to vote for the calling a State Convention, for the sole purpose 1 Proceedings of the Mass. Conv. of 1920, p. vi., note.