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The First State Constitutional Conventions, 1776-1783
Published online by Cambridge University Press: 02 September 2013
Extract
The distinction between constitutions and statutes is a fundamental one in American constitutional law, but it is a matter of surprise that no one has yet attempted to discuss this distinction in its historical origins. Brinton Coxe in his Judicial Power and Unconstitutional Legislation has traced the development of the doctrine that statutes in conflict with the constitution may be declared invalid by the courts. Judge J. A. Jameson in his Treatise on Constitutional Conventions has given a brief account of the adoption of the first State constitutions; but no one has yet studied the adoption of these constitutions in order to find what were the theories of their framers as to the distinction between constitutions and statutes.
By the term constitution, as used both in England and America before the Revolution, was understood the general and more permanent principles upon which government is based. The term was used on both sides of the Atlantic to signify something superior to legislative enactments, and the principles of the constitution were appealed to as beyond the control of the British parliament.
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References
1 The term “constitution” was also used to a certain extent in the colonies to designate a written form or instrument of government. See Md. Archives, vii, 61. I am indebted to Dr. Bernard C. Steiner for this reference.
2 N. H. State Papers, viii, 425.
3 N. H. Provincial Papers, vii, 660.
4 N. H. State Papers, viii, 2.
5 N. H. Provincial Papers, vii, 701.
6 N. H. State Papers, viii, 14–17, 33.
7 Ibid., viii, 301.
8 Ibid., viii, 425. See also Ibid., viii, 421–425.
9 Ibid., viii, 442, 450.
10 N. H. Town Papers, xiii, 603. See also Ibid., xi, 23; xii, 57.
11 Ibid., xiii, 763.
12 N. H. State Papers, viii, 757.
13 N. H. State Papers, viii, 775.
14 Ibid., viii, 874.
15 Ibid., viii, 894, 897.
16 N. H. Town Papers, ix, 877.
17 Ibid., ix, 883–895, 903–919.
18 Boston Town Records, 1770–1777, p. 247.
19 Ibid., 284. Resolves of Mass., May 5, 1777.
20 Resolves of Mass., March 4, 1778.
21 Cushing, . Transition from Provincial to Commonwealth Government in Mass., 190, 214–226.Google Scholar The present account of the constitutional development of Massachusetts is based largely upon Dr. Cushing's monograph.
22 Resolves of Mass., February 20, 1779.
23 Resolves of Mass., June 21, 1779.
24 Journals of the Provincial Congress of N. Y., i, 462.
25 Ibid., i, 572.
26 Proceedings of the conventions of Md., 184.
27 Ibid., 222, 228.
28 Ibid., 258.
29 N. C. Colonial Records, x, 498, 579.
30 N. C. Colonial Records, x, 696.
31 Ibid., x, 870 a-f.
32 Ibid., x, 954, 974, 1040.
33 Force, , American Archives, Fifth Series, i, 617.Google Scholar
34 Proceedings of the convention of the Delaware State. The proceedings of this convention were published contemporaneously by James Adams at Wilmington. Force, Fifth Series, ii, 285.
35 Journals of the House of Representatives of Pa., 1776–1781, p. 36.
36 McCall, , History of Georgia, ii, 75.Google Scholar
37 Stevens, , History of Georgia, ii, 297Google Scholar, quoting from President Bulloch's circular.
38 Records of the Council of Safety and the Governor and Council of Vt., i, 58.
39 Allen, , History of Vermont, 108–110Google Scholar (Collections Vt. Hist. Soc, i, 391).
40 Drayton, , Memoirs of the American Revolution, ii, 172, 176.Google Scholar
41 Force, , American Archives, Fifth Series, iii, 61, 64, 71, 73.Google Scholar
42 Ramsay, , Revolution in South Carolina, i, 129.Google Scholar
43 McCrady, , South Carolina in the Revolution, 1775–1780, p. 213.Google Scholar
44 Ramsay, , Revolution in South Carolina, i, 132.Google Scholar Correspondence of Henry Laurens, 103.
45 Mulford, , History of New Jersey, 415, 416.Google Scholar
46 Rowland's, Life of George Mason, i, 235.Google Scholar See also Jefferson's Notes on Virginia, Ford's, Writings of Jefferson, iii, 225–227.Google Scholar
47 Tucker's, Blackstone, i, part 1, Appendix, 87–92.Google Scholar This is a summary of Tucker's opinion in the case of Kamper v. Hawkins, in the general court of Virginia in 1793. Works of John Adams, iv, 191. Henry's, Patrick Henry, i, 418.Google Scholar Force, Fourth Series, vi, 748.
48 A. E. McKinley in Political Science Quarterly, xviii, 509.
49 New Hampshire, Pennsylvania, Maryland, Delaware, North Carolina, New York, Georgia, Vermont, South Carolina (1778).
50 The New Hampshire constitution of 1776 really organized a legislature only, and legislative action completed the” governmental structure. »See a paper by the present writer in Proceedings of the N. H. Bar Association for 1906.
51 Cushing, , Transition oj Massachusetts, 187Google Scholar, calls attention to the favorable position of Massachusetts in 1778 for the framing of a constitution in an orderly manner.
52 Md. Constitution of 1770, art. 59.
53 Del. Constitution of 1776, art. 30.
54 S. C Constitution of 1778, art. 44.
55 Pa. Constitution of 1776, art. 47. Vermont Constitution of 1777, art. 44.
56 Georgia Constitution of 1777, art. 63.
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