chosen to it, a census of the inhabitants should be taken. It was moreover recommended, that the representatives chosen "should be empowered by their constituents to assume government, as recommended by the general Congress, and to continue for one whole year from the time of such assumption."1 Having recommended this plan, and "sent copies of it to the several towns, the Convention dissolved." 2 In pursuance of the recommendations accompanying the plan, a new Convention was chosen, and assembled on the 21st of December following, by which the first Constitution of New Hampshire was framed, and her first formal government, independent of the crown, established. According to Dr. Belknap, the historian of the State, "as soon as the new Convention came together, they drew up a temporary form of government; and, agreeably to the trust reposed in them by their constituents, having assumed the name and authority of a House of Representatives, they proceeded to choose twelve persons, to be a distinct branch of the legislature, by the name of a Council." This form of government was practically limited to a single year by an ordinance providing "that the present Assembly should subsist one year, and if the dispute with Great Britain should continue longer, and the General Congress should give no directions to the contrary, that precepts should be issued annually" for the return of "new Counsellors and Representatives." By the Convention thus called and organized were assumed all the powers of government. In a word, it was a Revolutionary Convention. As distinguished from the body itself, there was no judiciary, and no executive. The only feature in which it resembled a regularly constituted government, was in its division into two chambers. But even this resemblance vanishes, when it is considered that it was a

1 Belknap, Hist. N. H., Vol. II. p. 305.

2 Nov. 16, 1775; Id. p. 305.

3 Jan. 5, 1776.

4 Belknap, Hist. N. H., Vol. II. pp. 305, 306. The idea of thus transforming the Convention into a legislative assembly with two chambers, was doubtless borrowed from the Convention called by King William in 1689, which, illegally called and constituted, changed itself into a parliament, since known as the Convention Parliament. Though unquestionably a revolutionary body, this parliament became the basis on which the English government, as then reconstructed, rested and still rests. See remarks of Mr. Webster on this subject, Works, Vol. VI. pp. 225, 226.

voluntary division, the Council being its own creation, and, of course, as little independent of the main body as any one of its committees. All the powers of the State were concentrated in that single body, which was revolutionary not only in its proceedings, but in its origin, as called by one revolutionary Convention at the instance of another, and as exercising, when assembled, the functions of a government, provisionally, in place of that by which it was convened.

§ 132. The people of New Hampshire, however, becoming dissatisfied with the temporary Constitution of 1776, an attempt was made three years later to frame a new one. A Convention of delegates, chosen for that purpose, under the direction of the existing government, drew up and presented to the people a form of a Constitution, but so deficient in its principles and so inadequate in its provisions, that, being proposed to the people in their town-meetings, it was rejected.1 On the failure to adopt this, a new Convention was elected for the same purpose, and commenced its sessions in 1781. The year before, Massachusetts had adopted a Constitution, in the main from a draft prepared by John Adams, which was supposed to be an improvement on all that had been framed in America. Having the advantage of this, the New Hampshire Convention digested a plan and submitted it to the people in their town-meetings, with a request that they should state their objections distinctly to any particular part, and return them to the Convention at a fixed time. The objections were so many and various, that it became necessary to alter the form and send it out a second time.2 The second plan was generally approved by the people, and thus, finally, after nine sessions of the Convention, running through more than two years, a Constitution was adopted and put in operation, the instrument being completed October 31, 1783, and established with religious solemnities June 2, 1784.

Of these two last Conventions, it is to be noted, that, unlike the first, they were, in the strict sense of the term, Constitutional Conventions. They were initiated by the existing government of the State, which, whatever may be thought of its legitimacy or regularity, was a de facto government, by revolution placed in power, and made the basis on which the political structure of the State has ever since rested; the people were fairly repre1 Belknap, Hist. N. H., Vol. II. p. 333. 2 Id. pp. 335, 336.

sented in them; they confined themselves strictly to their constitutional duty, that of proposing a code of organic laws, abstaining from all usurpation of governmental powers; and, finally, they severally submitted their projected Constitutions to a vote of the electors of the State, in their town meetings an act which, as we shall see, constitutes the best guaranty of the sovereign right of the people over the form of their government that has ever been devised.1

§ 133. The next colony to act on the recommendations of Congress was South Carolina. Like the other colonies whose legislatures had been dissolved, South Carolina had governed herself, since the rupture with Great Britain, by Provincial Conventions or Congresses, constituting provisional governments, founded upon the right of revolution. The first of these had been summoned November 9, 1774, by what was styled "the general committee" of the colony.2 This body was organized similarly to those in the other colonies, and, after the flight of the royal governor in September, 1775, centred in itself, or in its committees, all the powers of government not vested, by the nature of the case, in the Continental Congress. Toward the close of the latter year, the necessity for a more stable, as well as a more responsible government, made itself felt, and the Convention applying to Congress, as we have seen, for advice as to the formation of such a government, had been recommended, in the same terms as New Hampshire, " to call a full and free representation of the people, to establish such a form of government as in their judgment will best promote the happiness of the people." Acting upon this advice, and following, though not perfectly, the example of New Hampshire, the South Carolina Congress, in conformity to the course of the Convention of 1689, in England, and to that of their ancestors in 1719, " voted themselves to be the General Assembly of South Carolina," and framed a Constitution, March 26, 1776, to exist "till a reconciliation between the colonies and Great Britain should take place." This Constitution was modelled after that of Great

1 See post, ch. vii.

2 This general committee consisted of ninety-nine members, and was appointed by resolution of a public meeting held at Charleston July 6, 1774. Hild. Hist. U. S., (1st series,) Vol. III. p. 40.

3 Resolution of the Continental Congress of Nov. 3, 1775, ante, § 127.

Britain, and consisted of three branches: the Congress electing thirteen of its most respectable members to be a legislative council; a president and vice-president; a chief-justice and three assistant judges, an attorney-general, secretary, ordinary, and judge of the admiralty. The instrument embodying this plan of government was put in force as the Constitution of South Carolina, and was recognized as such for over two years, when it was superseded by a new one.

§ 134. It is obvious that the mode of proceeding of which the result was the establishment of the first Constitution of South Carolina, was extremely irregular. The people of the State were in no manner consulted in relation to its formation. The body by whom that important business was done, was an extraordinary assembly, "appointed," as the historian Ramsay says, "without the authority of any written law or any definite specification of powers." To the function of a Constitutional, it added those of a Revolutionary, Convention; its character as the latter being in nowise affected by the change in its organization, by which it assumed the form of a regular government. The only element of legitimacy possessed by it was, that the action taken by it was based upon a recommendation of the Continental Congress, in whom was vested for general purposes the exercise of the national sovereignty.

§ 135. A Constitution thus constructed was not likely to be long-lived. A second, but hardly more successful, effort was made in 1778. In this case it was not an unauthorized and revolutionary Convention, but an usurping legislature, which undertook the task. In the autumn of 1776, the elections throughout the State, says the historian Ramsay, "were conducted on the idea that the members chosen, over and above the ordinary powers of legislators, should have the power to frame a new Constitution, suited to the declared independence of the State." "Authorized in this manner," he continues, "the legislature in January, 1777, began the important business of framing a permanent form of government. The generous confidence reposed in the elected by the electors met with a suitable return of fidelity on their part. Instead of increasing their own powers, as legislators, they diminished those of which they were in possession by the temporary Constitution, and extended the privileges 1 Ramsay, Hist. S. C., Vol. I. p. 263.

of their constituents; nor did they proceed to give a final sanction to their deliberations on the subject of the Constitution till they had submitted them for the space of a year to the consideration of the people at large. From the general approbation of the inhabitants, the new Constitution received all the authority which could have been conferred on the proceedings of a Convention expressly delegated for the express purpose of framing a form of government." 1

§ 136. It would be easy to demonstrate that the Constitution of 1778, thus framed, was wholly invalid as an act of fundamental legislation. Without stopping to do this, I shall merely cite authority establishing the fact that it was so regarded by leading minds at the time of its formation.

"This temporary Constitution" (that of 1776), says the same historian, Ramsay, in his history of South Carolina, "in a little more than two years gave place to a new one formed on the idea of independence, which in the mean time had been declared. The distinction between a Constitution and an act of the legislature was not at this period so well understood as it has been since. The legislature elected under the Constitution of 1776, with the acquiescence of the people, undertook to form a new Constitution, and to give it activity under the forms and with the name of an "Act of Assembly!" The doubt thus implied was entertained by other eminent South Carolinians. President Rutledge refused his assent to the new Constitution, on the ground, with others, that the legislative authority, being fixed and limited, could not change or destroy itself without subverting the Constitution from which it was derived. He finally, however, so far yielded to the pressure for a change as to resign his office, whereupon his successor, Rawlins Lowndes, signed the Constitution, and it went into operation.2

§ 137. As to the character of the body by which the Constitution was framed, on the other hand, there can be no doubt whatever. As a Constitutional Convention, it lacked all the elements needed to give it legitimacy. It was elected and assembled as

1 Ramsay's History of the Revolution in South Carolina, pp. 128, 129.

2 That the first two South Carolina Constitutions were merely ordinary statutes, repealable by the General Assembly, was distinctly affirmed by the Supreme Court of that State, in the case of Thomas v. Chesley Daniel, 2 McCord's R. 354, (359, 360).