between constitution and ordinary legislation. It cannot be said that the third step has yet been fully taken, and that submission of a constitution to the people is essential; the Virginia constitution of 1902 was not submitted to a vote of the people.

48

The people of the colonies were familiar with the distinction between statute and constitution; at the foundation of their political convictions lay the theory that the principles of government are permanent and may be changed only by the people. But for the first time they were brought face to face with the problem of establishing such principles, of framing written constitutions superior to and limiting all ordinary governmental organs. Theirs was the first step in the development of the constitutional convention, in the establishment of principles for the adoption of constitutions different from those to which they were accustomed for the enactment of laws.

Even had the people come in 1776 to a belief that constitutions should be adopted by representative bodies independent of the regular legislatures, such a system would have been in many cases hazardous and impracticable. The leaders of the people were already assembled in provincial congresses, organizing for military defense, and in most of the States both central and local organizations were busily engaged in suppressing opposition to revolutionary measures. They succeeded in many cases in suppressing opposition only by virtue of their superior aggressiveness. To permit the creation of independent conventions would be to risk the loss of much that had been gained by united and aggressive action. Permanent governments, if established at all, must be established by existing provincial representative bodies. That the people recognized the superiority of constitutions to statutes is clearly shown by the fact that nine of the twelve constitutions adopted between 1776 and 1778, and the proposed Massachusetts constitution of 1778, were drafted by legislative bodies especially empowered by their constituents to take such action; and by the further fact that expediency was urged as the most important argument against similar authorization in South Carolina and Virginia in 1776.

48 A. E. McKinley in Political Science Quarterly, xviii, 509.

New Hampshire, Pennsylvania, Maryland, Delaware, North Carolina, New York, Georgia, Vermont, South Carolina (1778).

In New Hampshire and Massachusetts, during the Revolutionary period, was developed the constitutional convention as we know it today; that is, the independent body for constitutional action, with the submission of its work to a vote of the people. But it should be remembered that before this development took place both of these States had established fairly stable governments, New Hampshire by its constitution of 1776,50 and Massachusetts, by the resumption of its charter in July, 1775. In neither was the need of a new government of great urgency; in neither was there an aggressive tory element. Neither of these States was threatened by military operations after the surrender of Burgoyne in October, 1777.51 In neither State was danger to be apprehended from the creation of an independent convention and the submission of its work to a vote of the people.

In this paper it is assumed that the fundamental principle of American constitutional development is the distinction of the constitution from ordinary legislation, and the proceedings of the early conventions have been examined to discover how far this distinction influenced the action of those bodies from 1776 to 1784. In connection with this subject it will also be of interest to discover what machinery the constitutions of the Revolution themselves established for their amendment or for the adoption of new constitutions.

The absence of provision for alteration in the constitutions of 1776-1777, should not be taken as an indication that their framers thought the regular legislatures competent to alter or establish constitutions, but rather that they did not consider the matter at all. Thus the constitutions of South Carolina (1776), Virginia and New Jersey, framed by bodies not expressly authorized by the people to do so, contain no provisions for amendment, but neither do the constitutions of New Hampshire (1776), North Carolina, and New York, framed by bodies which had such express authorization.

Of the eight constitutions of the Revolutionary period which

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 of Massachusetts, 187, calls attention to the favorable position of Massachusetts in 1778 for the framing of a constitution in an orderly

manner.

made provision for their amendment, those of Maryland, Delaware and South Carolina (1778) provided for final action in such cases by the legislature, but in a manner different from that for the enactment of laws. Maryland provided that no part of the constitution or declaration of rights should be altered "unless a bill so to alter, change or abolish the same shall pass the General Assembly, and be published at least three months before a new election, and shall be confirmed by the General Assembly, after a new election of Delegates, in the first session after such election," and that no part relating especially to the Eastern Shore should be altered without the concurrence of two-thirds of the members of both branches of the legislature.52 Delaware provided that certain parts of its constitution should not be subject to amendment, and that "no other part of this constitution should be altered, changed, or diminished without the consent of five parts in seven of the assembly, and seven members of the legislative council." The legislative council was composed of nine members. In South Carolina (1778) it was provided that "no part of this constitution shall be altered without notice being previously given of ninety days, nor shall any part of the same be changed without the consent of a majority of the members of the senate and the house of representatives."54 For ordinary legislation sixty-nine members of the assembly, out of nearly two hundred, formed a quorum, and less than half of the members of the council were sufficient to act.

In Pennsylvania a council of censors was to be elected every seventh year "to enquire whether the constitution has been preserved inviolate in every part; and whether the legislative and executive branches of government have performed their duty as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are entitled to by the constitution." The council of censors, two-thirds of its members concurring, was to have power to call a convention to amend the constitution in such parts as that body should think necessary, and it was further provided that "the amendments proposed, and such articles as are proposed to be added or abolished, shall be promulgated at least six months before the day 52 Md. Constitution of 1776, art. 59. 53 Del. Constitution of 1776, art. 30. 54 S. C. Constitution of 1778, art. 44.

appointed for the election of such convention, for the previous consideration of the people, that they may have an opportunity of instructing their delegates on the subject." Vermont copied this provision of the Pennsylvania constitution, except that it provided a different manner for the election of members of the council of censors.55

In Georgia also provision was made for a constitutional convention but here it was to be called by the legislature upon the petition of a majority of the voters of a majority of the counties. The petitions of the people were to specify the amendments desired, and the legislature was required to order the calling of a convention, "specifying the alterations to be made, according to the petitions preferred to the assembly by the majority of the counties as aforesaid."5

The Massachusetts constitution of 1780 made provision for the submission to the people in 1795 of the question as to the desirability of revising the constitution. If two-thirds of those voting on the question should favor a revision the general court was to call a convention for that purpose. The New Hampshire constitution of 1784 was the first to contain the specific requirement not only of a separate convention for constitutional action, but also that the work of such convention should be submitted to the approval of the people; this constitution provided that "the general court shall at the expiration of seven years from the time this constitution shall take effect, issue precepts * to the several towns and incorporated places, to elect delegates to meet in convention for the purposes aforesaid: the said delegates to be chosen in the same manner, and proportioned as the representatives to the general assembly; provided that no alteration shall be made in this constitution before the same shall be laid before the towns and unincorporated places, and approved by twothirds of the qualified voters present, and voting upon the question."

* *

55 Pa. Constitution of 1776, art. 47. Vermont Constitution of 1777, art. 44. 56 Georgia Constitution of 1777, art. 63.

NOTES ON CURRENT LEGISLATION

MARGARET A. SCHAFFNER

Absinthe Prohibition in Switzerland. An amendment has been added to the federal constitution of Switzerland prohibiting the manufacture, importation or sale of absinthe. The amendment was secured. through the popular initiative; the proposition was voted upon July 5, 1908, and was carried by a vote of 236,582, against 135,888.

The increased consumption of absinthe has alarmed the Swiss people. Recently the sale of the drug was prohibited in the cantons of Geneva and Vaud by cantonal ordinances. The initiative petition for the federal amendment was signed by a large proportion of the voters in the several cantons. The signatures secured numbered 4022 in Basel-land; 38,337 in Berne; 9535 in Fribourg; 3420 in Glarus and 9628 in Neuchâtel. The total vote cast at the election both for and against the amendment was 372,470, out of a voting strength of over 807,700 for the entire country. A resubmission of the question may not take place unless a petition to that effect be signed by at least 50,000 qualified voters.

M. A. S.

Capital Stock. At the last session of the Massachusetts legislature, the law governing the issue of stocks by transportation companies was again amended. This law is far from the beginning of State regulation of the issue of stocks and bonds in Massachusetts. The whole corpora

tion history of the State is a history of regulation, supervision and control, either by the legislature directly or by commissions composed of experts. Massachusetts was the first State, and one of the few States of the present time which is striving to find the proper and just method of regulating public service corporations in their issue of stocks and bonds.

The regulation of the issue of stocks and bonds by general legislation began as early as 1852 when no railroad company, obtaining an extention of time for the construction of its road, was to issue any stock for a less sum or amount than the par value named in the charter.

In 1868 a law was passed forbidding railroad corporations, telegraph and gas light companies to issue any additional stock, or issue certificates of stock unless the par value of the shares was first paid in cash