according to its charter. This answer was made in June, 1775, and the advice given was followed, and the government thus constituted was the only one Massachusetts had until the establishment of her first Constitution in 1780. In October, 1775, the delegates to the Continental Congress from New Hampshire laid before that body instructions, received by them from the New Hampshire Convention, to obtain the advice and direction of Congress in relation to the establishment of civil government in that colony. Similar requests were, about the same time, sent up from the Provincial Conventions of Virginia and South Carolina. At length, on the 3d and 4th of November, 1775, Congress agreed upon a reply to these applications, in which those bodies were advised "to call a full and free representation of the people, in order to form such a form of government as, in their judgment, would best promote the happiness of the people, and most effectually secure peace and good order in their provinces during the continuance of the dispute with Great Britain." 2

§ 128. These important recommendations were extorted from Congress by the importunity of colonies whose situation was critical, that body being reluctant to inaugurate a general reconstruction of government upon a permanent basis, so long as there was a possibility of an accommodation with Great Britain. Accordingly, as we see, the most that could be wrung from it was a recommendation to establish temporary governments, without any specification as to the form they should assume, or the distribution of their powers. But in this, Congress lingered far behind some of its leading members. Ever since the previous May, John Adams had exerted all his eloquence to induce Congress to lead off in the work of founding permanent organizations in the States independent of Great Britain. In his own language, he urged "the necessity of realizing the theories of the wisest writers, and of inviting the people to erect the whole building with their own hands, upon the broadest foundation." He declared "that this could be done only by Conventions of representatives, chosen by the people in the several colonies, in the most exact proportions . . . . and that Congress ought now to recommend to the people of every colony to call Curtis' Hist. Const. U. S., Vol. I. pp. 36, 37. 2 Jour. Cont. Cong., Vol. I. p. 219.

such Conventions immediately, and set up governments of their own authority." 1

At length, one after another of the Provincial Conventions signifying the readiness of the people to support a declaration of independence of Great Britain, and it becoming apparent to the least far-sighted that such a measure could not long be delayed, as a preparation for it, or rather as the first and not the least important step in its consummation, definite action was taken on the subject of permanent governments in the States. On the 10th of May, 1776, Congress adopted the decisive resolution, and on the 15th prefixed to it the preamble, which follow: :

"Whereas, his Britannic Majesty, in conjunction with the Lords and Commons of Great Britain, has, by a late act of Parliament, excluded the inhabitants of these united colonies from the protection of his crown; and, whereas, no answer whatever to the humble petitions of the colonies for redress of grievances and reconciliation with Great Britain has been or is likely to be given; but the whole force of that kingdom, aided by foreign mercenaries, is to be exercised for the destruction of the good people of these colonies; and, whereas, it appears absolutely irreconcilable to reason and good conscience, for the people of these colonies now to take the oaths and affirmations necessary for the support of any government under the crown of Great Britain, and it is necessary that the exercise of every kind of authority under the said crown 'should be totally suppressed, and all the powers of government exerted, under the authority of the people of the colonies, for the preservation of internal peace, virtue, and good order, as well as for the defence of their lives, liberties, and properties, against the hostile invasions and cruel depredations of their enemies, therefore,

"Resolved, That it be recommended to the several Assemblies and Conventions of the united colonies, where no government, sufficient to the exigencies of their affairs, hath been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general." 2

§ 129. This resolution was the turning-point in the Revolu1 Works of J. Adams, Vol. III. pp. 13-16.

2 Journal of Continental Congress, Vol. II. pp. 158, 166.

tion, since it foreshadowed and necessitated that of July 4th, 1776, declaring the independence of the colonies. So well was this understood, that, in the debate upon it those delegates who opposed its passage did so on the ground that it was the first step, to which, if taken, independence must succeed. Mr. Duane stigmatized the resolution, to Mr. Adams, as "a machine for the fabrication of independence ;' " to which the latter, characterizing it with still greater accuracy, truthfully replied, that "it was independence itself." 1

The intention of Congress in passing this resolution probably was, to recommend that the work of erecting governments in the several colonies should be undertaken by the legislative authorities thereof; that is, by the Assemblies, in such colonies as possessed them, and by the Conventions or Congresses in such as had no Assemblies. If this be so, the measure came far short of the wise recommendations of Mr. Adams, as well as of the requirements of principle. What should have been done was, to propose the calling of Conventions for the specific and only purpose of framing Constitutions for the colonies, the calls for them to issue from the legislative departments of the existing establishments, whatever those establishments might be. It is true, on examining the language of the resolution another construction suggests itself as the one possibly intended by Congress, namely, one which should require the calling in each State, of a body of representatives of the people, to frame and propose a Constitution, to be afterwards submitted to and adopted by the Assembly or Convention calling it. The phraseology is: "That it be recommended to the several Assemblies and Conventions of the united colonies. . . to adopt such government as shall, in the opinion of the representatives of the people, best conduce," &c. "the representatives of the people," intended by Congress, been those constituting "the several Assemblies and Conventions," it might seem more natural, after referring to the latter, to use the terms, to adopt such government as shall in their opinion best conduce," &c. But such a construction is, I think, strained. It certainly, as will be found hereafter, was not the one adopted in the contemporary expositions made of the resolution in the several States. Assuming that the true construction devolved 1 Works of J. Adams, Vol. III. p. 46.

Had

upon the "Assemblies and Conventions" the whole duty of framing and putting in operation Constitutions for their respective colonies, the resolution was less conformable to principle than that of the November preceding, containing advice to the conventions of New Hampshire and South Carolina. The latter recommended to those bodies "to call a full and free representation of the people, in order to form such a government as in their judgment would best promote," &c. It is fair to remark, however, that the science of Constitution-making was then in its infancy. Our fathers had not yet, from actual administration, learned the dangers that attend fundamental legislation, nor discovered the safeguards against them which experience alone can reveal. Even what seem now to be steps taken with a view to conformity to principle, and, therefore, to be strictly regular, were not unfrequently the results of chance or of considerations of temporary convenience, and so, deserving of little weight as indicating the degree of knowledge existing on the subject among the statesmen of the day.

§ 130. Upon these recommendations, special or general, the several colonies embraced in the first class acted, in framing their earliest Constitutions.

Before proceeding to describe the separate action of each colony, with a view to determine whether or not, and how far, that action was conformable to principles or otherwise, it will be useful to state as concisely as may be, first, the conditions of the problem our fathers were required to solve in establishing permanent republican institutions in place of the make-shifts which sprung up with the Revolution; and, secondly, the elements presented by the actual historical situation, for its solution.

1. The conditions of the problem were simple. The political society, known, since the Declaration of Independence, as "the United States of America," was called upon to erect for itself an independent government, suitable to its needs. This important work must be done, so far as possible, regularly and peacefully, and, therefore, with the approval and through the ministry of the political organizations, or fragments of political organizations, then existing, however imperfect they might be, and whatever might have been their origin. Of these several organizations, wherever there was a subdivision into legislative, executive, and judicial departments, use must be made, to initiate the work,

of the legislative department, as by its character and functions alone fitted to undertake it safely or successfully. Finally, no action of any department of the existing organization was, unless absolutely necessary, to be taken as definitive, but the people, or electoral body, in which the powers of sovereignty were practically lodged, must be appealed to to pronounce the fiat by which the proposition of the legislature or Convention was to be ripened into law. Such were the conditions of the problem.

2. The elements given for its solution were hardly more complex. There were the indeterminate provisional organizations by which whatever of government the several colonies possessed was conducted, being in most of them the irregular and revolutionary Conventions or Congresses, and in a few the still subsisting Assemblies, established under the crown, to which reference has been made. There was then the equally indeterminate government of the Union, whose powers were lodged in the single chamber known as the Continental Congress; a body in every respect conforming to our definition of a Revolutionary Convention. To these organizations, local and general, must be added those which, during the revolutionary period, were in a few cases constructed to succeed them. And, lastly, there was the people of the United States, considered, first, as the political unit, by which independence was declared, and, secondly, as the subordinate groups constituting the States either as peoples or as political organizations. Amongst these three orders of political entities, in a manner explained in the second chapter, was distributed the exercise of sovereign powers, on the breaking out of the Revolution, and, therefore, by them, in their several spheres and in a mode conformable to their respective powers in the general system, was the work in question to be effected.

§ 131. The first colony to act upon the recommendations of Congress was New Hampshire. In less than a fortnight after the passage by Congress of the resolutions of November 3d, 1775, the Provincial Convention of that colony took into consideration the mode in which "a full and free representation" for the purpose indicated by Congress should be constituted.1 It was finally determined that it should take the form of a new Convention, to be summoned by the Provincial Convention, and that for the purpose of apportioning fairly the delegates to be 1 Belknap, Hist. N. H., Vol. II. p. 305.