opportunity of instructing their delegates on the subject." The state of Vermont, which in its constitution of 1777 followed in most respects the model of the government of Connecticut, also adopted this institution of a council of censors.1

APPEALS TO THE PEOPLE

In lieu of such periodical appeals to the people to correct infractions of the constitution, several other states provided for appeals to be taken as occasion should require. Thus the Massachusetts constitution of 1780 ordered the legislature to submit to a vote of the people in the year 1795 the question whether they desired a fresh constitutional convention to be called, "in order the more effectually to adhere to the principles of the constitution, and to correct those violations which by any means may be made therein, as well as to form such alterations as from experience shall be found necessary."2 By implication, this article recognizes a power in the legislature to submit the question of a call for a constitutional convention at any time. In New Hampshire the practice was established of taking the sense of the voters every seven years as to the need for a constitutional convention.3 In Georgia it was provided that the legislature should call a constitutional convention upon the receipt of petitions from a majority of the counties of the state signed by a majority of voters in each county, specifying the alterations to be made.1 This cumbersome form of the constitutional initiative, however, proved unworkable, and was omitted from the constitution of 1789. In New York, where the doctrine of the division of powers was first worked out in a logical manner, the responsibility for the prevention of the violation of the constitution by the enactment of laws "inconsistent with the spirit" thereof was expressly vested in the council of revision,5 but for the further protection of the people a court for the correction of errors was created,

1 The Vermont council was composed of thirteen censors, elected at large by the people of the whole state, not by districts as in Pennsylvania. The history of these Councils of Censors will be discussed later. See ch. iv.

consisting of the lieutenant-governor, the members of the senate, the chancellor, and the judges of the supreme court.1 No special arrangements for protection against violations of the constitution, either by appeals to the people or otherwise, were made in any other of the original state constitutions. Apparently the people generally put their trust in the power of public opinion and the good faith of their representatives. Thus in Connecticut it was expressly declared that "free and annual elections" were "the best security for the preservation of civil and religious rights and liberties." 2

Jefferson's plan for the preservation of state constitutions inviolate was to provide for an appeal to the people, in the form of a call for a constitutional convention, whenever two-thirds of the members of each of any two of the departments of government should deem it necessary. Madison, however, had little confidence in the value of appeals to the people, no matter how provided. Writing in 1788, after more than a decade of experience with the governments of the original states, he declared that the chief danger of violations of the constitutions was to be apprehended from the legislatures, and that whether the appeals to the people were taken periodically or occasionally, they did not promise adequate relief. A constitutional convention, he argued, would be composed of the same elements as a legislature, and would be inclined to take the same view of constitutional questions. Even if the precaution were taken of excluding from the convention all persons connected with the government whose acts were to be reviewed, the result, he believed, would be substantially the same. "To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution?" "The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several parts may, by their mutual relations, be the means of keeping each other in their proper places . the great security against a gradual concentration of the several powers in the same department consists in giving to those See his Notes on Virginia, app. ii. 4 The Federalist, nos. 49, 50.

1 Art. xxxii.

2 See I Poore's Constitutions, 257.

who administer each department the necessary constitutional means and personal motives to resist encroachments of the others." 1

THE DOCTRINE OF CHECKS AND BALANCES

Thus the doctrine of the division of powers becomes the doctrine of checks and balances. As Jefferson himself had said: "The powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits without being effectually checked and restrained by the others."2 But during the half dozen years intervening between the time when Jefferson wrote his Notes on Virginia and that when Madison contributed to the Federalist, a change was taking place in the significance of the doctrine of checks and balances. As we have seen, not only Jefferson but also those who framed several of the original state constitutions looked to the people, or, strictly speaking, the electorates, as the special guardians of the constitutions. Madison, however, had discovered something in the doctrine itself which rendered superfluous the practice of appealing to the people to correct infractions of the constitutions. That something was the power of judicial review of unconstitutional acts of legislatures and executives.

There is no evidence, as we have seen, in the constitution or bill of rights of any one of the original states, that the judiciary were originally looked to by the Fathers as the special guardians of the constitutions. On the contrary, the implication is decidedly the other way. In New York, for instance, the judiciary were certainly expected to accept the construction of the constitution adopted by the council of revision, or in the last instance by the court of errors, a court in which the judicial element was in a minority. In most of the states, moreover, the doctrine of the division of powers was either not logically worked out, as it

1 The Federalist, no. 51.

2 Notes on Virginia, ch. xiii. Cf. J. Q. Adams, in the "Letters of Publicola," no. vii. "Divide your power so that every part of it may at all times be used for your advantage, but in such a manner that your rights may never depend upon the will of one man or body of men. " Writings of J. Q. Adams (Ford's ed.), i, p. 93.

was in New York, or not recognized at all. Thus, in Rhode Island, the supreme court, in the celebrated case of Trevett v. Weeden, decided in 1786, refused to enforce a legal tender law devised to compel the circulation of paper money. The legislature, however, being determined to have its will executed, declined to reëlect those judges the following year, and filled their places with others more subservient. Doubtless there were not a few instances of cases decided during the first years of the original state governments in which courts held acts of legislatures unconstitutional.2 The governments of the original states, however, were for the most part governments characterized by the supremacy of the legislature, and if judicial interference with legislative acts was sometimes tolerated, the operation of the governmental system was not consciously altered thereby. In Massachusetts the declaration of rights laid unusual stress on the importance of the independence of the judiciary. The constitution further provided for the independence of judges by declaring that they should receive fixed and honorable salaries, which should not be diminished during the term of the individual judge. Yet the governor, with the consent of his council, if supported by a bare majority of the legislature, could remove any judge without trial. Moreover, the executive and the legislative branches were authorized to "require the opinions of the justices of the supreme judicial court upon important questions of law and upon solemn occasions."5 In cases of doubt concerning the true meaning of the constitution, the judiciary could thus be required to express their views before the other branches acted. Doubtless it was intended that the law-making authorities, the legislature and governor, should give due consideration to the opinions of the judges in matters concerning the construction and interpretation of the constitution. But their decision, when made, was expected to be final. It was not intended to leave the last word in constitutional interpretation to the courts. The main reliance of the framers of the Massachusetts constitution for the protection of the rights of the people was placed in the

1 See Cambridge Modern History, vol. vii, p. 313.

2 Brinton Coxe, Judicial Power and Unconstitutional Legislation. See also C. G. Haines, The American Doctrine of Judicial Supremacy, ch. iv.

3 Art. xxix.

4 Ch. iii, art. i.

'Ch. iii, art. ii.

that "the legislative, executive, and judicial [powers] ought to be kept as separate from, and independent of, each other as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity." Maryland adopted the maxim in the most unqualified terms, declaring that "the legislative, executive and judicial powers of government ought to be forever separate and distinct from each other." Six of the twelve states, which adopted new constitutions during the Revolutionary period, that is, all of the states which adopted declarations of rights with the exception of Pennsylvania and Vermont, explicitly affirmed the doctrine of the division of powers.

There was no attempt, however, at a philosophical definition of these three kinds of powers. The fact is, that the Fathers did not know themselves exactly what they meant by these terms. Locke, one of the first writers to speak of three powers, specifies the legislative or law-making power, the executive or lawenforcing power, and the federative power or power of treating on behalf of a state with other states. Clearly this is not the division of powers in the minds of the framers of the original state constitutions. Jefferson appreciated the difficulty when he attempted to draft a model constitution for the state of Virginia. "By executive powers," he observed, "we mean no reference to those powers exercised under our former government by the crown as its prerogative, nor that these shall be the standard of what may or may not be deemed the rightful powers of the governor. We give him those powers only, which are necessary to execute the laws (and administer the government) and which are not in their nature either legislative or judiciary. The application of this idea must be left to reason.' Jefferson did not attempt to elaborate further the idea which he declared should be left to reason, although he did expressly deny to the governor a number of royal prerogative powers, such as erecting courts, offices, boroughs, corporations, fairs, markets, ports, etc. Paine subsequently made the attempt and reached the conclusion that notwithstanding "it has been customary to consider government under three distinct heads, the

1 See Notes on Virginia, Appendix ii.