on

a legislature, and as nothing else. Notwithstanding the loose assertion of Dr. Ramsay, that that body had been elected " the idea" that, "over and above the ordinary powers of legislators," it should have power to frame a new Constitution, whatever it did beyond the scope of ordinary legislation must be set down, in the absence of any regular expression to that effect of the public will, as mere usurpation. How general was that idea? What mode was taken to ascertain its existence, and, much more, to ascertain the extent to which it was not entertained? Not only did the legislature undertake, without legal warrant, to frame a code of organic laws, but it practically ignored the existence of the people, putting its work into operation without a submission to them that was at all effectual. It thus became guilty of acts of revolution, for which ignorance of "the distinction between a Constitution and an act of legislation" cannot be received as an excuse.

§ 138. Next in order after South Carolina, in the work of erecting a government, followed Virginia. This she did, as New Hampshire and South Carolina had done, in pursuance of the resolutions of the Continental Congress of the 3d and 4th of November, 1775, referred to, advising those colonies "to call a full and free representation of the people" for that purpose. The mode adopted by Virginia was similar to that followed in those colonies. The Provincial Convention elected in April, 1776, to continue in office one year, met at Williamsburg on the 6th of May thereafter, and on the 29th of June following framed and established the first Constitution of Virginia.2 This Convention was elected as a revolutionary assembly, to carry on, as Mr. Jefferson expresses it, "the ordinary business of the gov

1 It has been usual to concede to Virginia the honor of having framed the first American Constitution. If by that be meant the first which was complete according to later ideas of what a Constitution should be, the concession is just. The first Constitutions of New Hampshire and South Carolina, which were several months earlier in date than that of Virginia, were very imperfect, while the latter was so skilfully framed that it was not found necessary to change it until 1830, nearly three quarters of a century after its formation. In this statement I leave out of the account altogether the instruments of government drawn up by the early Puritan settlers of Massachusetts and Connecticut. If those instruments are to be called Constitutions, the earliest American Constitution was that framed on board of the Mayflower, before the landing at Plymouth.

2 Journal of Virginia Convention, 1776, pp. 15, 16, 150.

ernment," in default of the House of Burgesses, and to "call forth the powers of the State for the maintenance of the opposition to Great Britain." 1 It was not pretended, if the same authority is to be credited, that, in assuming to frame a Constitution, the Convention had any warrant or authority whatever, except such as enured to it by virtue of its revolutionary character. In so doing, then, it is to be regarded, not as a Constitutional, but as a Revolutionary Convention. It was not empowered to discharge the special and high function of enacting a fundamental code, by any law or by the express desire of the people, but acted on its own authority; and it did not deign to take upon its work the sense of the people whom it pretended to represent.2

§ 139. Very similar to that just described was the course of events in New Jersey. Like most of the colonies, at the time the resolution of Congress of May 10, 1776, passed that body, New Jersey was under the government of a Provincial Congress and committees. The Congress being in session directly after the resolution was published, prompt action was taken to carry out its recommendations. A resolution was adopted for the election of a new Congress, to be held on the 4th Monday of May, 1776. Representatives were accordingly chosen at that time in all the counties, and the delegates elected, sixty-five in number, being five from each county, convened at Burlington, on the 10th of June, 1776.3 It does not appear, that this Congress or Convention (for, elected by the former name, it formally changed its title from "Congress" to "Convention" in the course of the session at which the Constitution was framed) was elected for the sole purpose of framing a Constitution, but rather as the successor of that Congress by whose resolution it had been constituted. Nevertheless, it is probable, that the purpose of electing new delegates was understood by the people to be to take action upon the two momentous questions of independence and of the formation of a government suitable to the altered condi1 Jefferson, Notes on Virginia, Works, Vol. VIII. p. 363. 2 Ibid. As to the invalidity of the first Virginia Constitution, as an act of organic legislation, and therefore as to its repealability by the General Assembly in consequence of the irregular character of the Convention of 1776, see Jeffer son's Notes on Virginia, Works, Vol. VIII. pp. 363-367. For an opposite view, see Tucker's Black. Com., Vol. I. Pt. 1, Appendix, pp. 85, 86, and Kamper v. Hawkins, 1 Virg. Crim. Cases, 20.

3 Mulford, Hist. N. J., p. 415.

tion of affairs. However that may be, when the Congress met at Burlington, petitions were received from the inhabitants in different parts of the province, praying that a new form of government might be established. On the 21st of June, therefore, a resolution was adopted by a vote of 54 to 3, "that a government be formed for regulating the internal police of this colony, pursuant to the recommendation of the Continental Congress of the 15th of May last."2 On the 24th, a committee of ten persons was appointed to draft a Constitution, by whom a report was made on the 26th of the same month, and the draft reported, after discussion in the committee of the whole, was, on the 2d of July, adopted as the Constitution of the State, and put in operation.

§ 140. It is not surprising that doubts have existed as to the precise character of the first New Jersey Convention. It was not the Assembly of the colony, established under the crown, but a Provincial Congress, convened to engineer the Revolution, which called the body together. It was, therefore, probably, a revolutionary assembly. This becomes certain, when it is seen that the body" had not been chosen for the particular purpose of forming a Constitution," but that it had "entered upon it in pursuance of the recommendation of the General Congress, and in compliance with petitions from the people, together with the sense of the body itself, as to the necessity of the measure,” 3 this function being added, without legal warrant, to the mass of powers claimed and exercised by it in virtue of its revolutionary character. As a Constitutional Convention, then, the body was irregular and illegitimate. It was a provisional revolutionary government, resting on force, and invested with such powers as it chose to assume. Though mention is made of petitions of the people, they were obviously of no validity as forming a basis for fundamental legislation. What the Convention did,

23.

1 Mulford, Hist. N. J., pp. 415-418; Journal of N. J. Conv., 1776, pp. 9, 14, 23. 2 Mulford, Hist. N. J., pp. 415-418; Journal of N. J. Conv., 1776, p. 3 Mulford, Hist. N. J., p. 415, n. (24).

4 The journal of this Convention, like those of most of the Conventions of the Revolutionary period, was largely made up of legislative and executive details, covering the whole ground of a government for the colony in civil as well as in military affairs. It administered a function, as we have seen in the first chapter, never properly belonging to a Constitutional Convention. See Journal, passim.

was done by virtue of its own arbitrary discretion, and no reference was made, in any stage of the proceedings, to the people, to ascertain their sense, much less to derive from their ratifying voice the fiat which should give to the Constitution the form as well as the effect of law. The first New Jersey Convention was legitimate as a Constitutional Convention only as any selfelected junto would be so, which had the physical power to give to its ordinances the force of law.

§ 141. Of the proceedings of the Convention which framed the first Constitution of Delaware, few traces have been preserved. That that body itself, however, was, for the time when it was held, exceptionally regular, may be inferred from the few records relating to its origin which remain.

In July, 1776, the Delaware House of Assembly passed the following preamble and resolutions, to wit:

"The House, taking into consideration the resolution of Congress of the 15th of May last for suppressing all authority derived from the Crown of Great Britain, and for establishing a government upon the authority of the people, and the resolution of the House of the 15th of June last, in consequence of the said resolution of Congress, directing all persons holding offices, civil or military, to execute the same in the name of this government until a new one should be formed; and also the declaration of the United States of America, absolving from all allegiance to the British Crown, and dissolving all political connection between themselves and Great Britain, lately published and adopted by this government, as one of those States, are of opinion that some speedy measures should be taken to form a regular mode of civil polity, and this House, not thinking themselves authorized by their constituents to execute this important work

"Do resolve ·

"That it be recommended to the good people of the several counties in this government to choose a suitable number of deputies, to meet in Convention, there to organize and declare the future form of government for this State.

"Resolved, also

"That it is the opinion of this House, that the said Convention should consist of thirty persons, that is to say, ten for the County of New Castle, ten for the County of Kent, and ten for

the County of Sussex; and that the freemen of the counties respectively do meet on Monday, the 19th day of August next, at the usual places of election for the county, and then and there proceed to elect the number of deputies aforesaid, according to the direction of the several laws of this government for regulating elections of the members of Assembly, except as to the choice of inspectors, which shall be made on the morning of the day of election by the electors, inhabitants of the respective Hundreds in each county. . .

"Resolved, also

"That it is the opinion of this House that the deputies, when chosen as aforesaid, shall meet in Convention in the town of New Castle, on Tuesday, the twenty-seventh day of the same month, (August,) and immediately proceed to form a government on the authority of the people of this State, in such sort as may be best adapted for their preservation and happiness.” 1

§ 142. In pursuance of the recommendations contained in these resolutions, a Convention was elected on the 19th of August, 1776, which met at the town of New Castle on Tuesday, the 27th of August, and, after a session of twenty-eight days, adopted the first Constitution of Delaware.

If, to the particulars given in the foregoing resolutions, there be added the caption to the new Constitution, the perfect regularity and legitimacy of the Convention thus called, from the point of view of the new State of Delaware, will become apparent. That caption is as follows: "The Constitution or system of government agreed to and resolved upon by the representatives in full Convention, of the Delaware State, formerly styled," &c., "the said representatives being chosen by the freemen of the said State, for that express purpose."

Here was a Convention called by the legislative Assembly of the existing government, by an Act making careful provisions for a fair election, and, as may be inferred, elected for the express and only purpose of framing a Constitution. Confining itself

1 Journal of Del. Conv. of 1776. For the foregoing extract I am indebted to William T. Read, Esq., of New Castle, Del., who has in his possession a manuscript copy of the journal, the only one known to be in existence. It was procured from Mr. Read through the kindness of the Hon. Willard Hall, of Wilmington, Del., to whom I am indebted for valuable information respecting the various Conventions of that State.