showed the lack of settled practice among the states. Missouri made amendments through the action of two successive assemblies voting by two-thirds vote, without a referendum; Alabama referred amendments by a twothirds vote, and then if the referendum were affirmative, required a further ratification by the next assembly. Three states1 by a two-thirds vote of their legislatures might submit a referendum asking whether or not a convention should be called to revise the constitution; Indiana authorized a referendum every twelve years for the same purpose, but in Louisiana the assembly by a majority vote was required to submit the question for two successive years. The referendum when submitted, required in four states a majority of those voting for representatives, Louisiana made it harder by demanding a majority of those entitled to vote for representatives, and Indiana insisted on a majority of all votes cast at a general election. Four states also provided that the convention, if called, should be based on the same representation as was had in their respective assemblies.

1 Ohio, Illinois, Mississippi.

2 Ohio, Illinois, Mississippi, Alabama.

CHAPTER V

THE PERIOD OF DEVELOPING DEMOCRACY

THIS period, 1831-60, is the high water mark for the making of constitutions among the states. By the year 1830 there were twenty-four states in the Union, and during the next thirty years ten1 new ones formed their first constitutions, two of them so unsatisfactorily that they found it necessary to revise them within this same period. Of the twenty-four older states, eighteen2 of them revised their constitutions through conventions, two3 of these even making

1 Arkansas, 1836; Michigan, 1835, 1850; Florida, 1845; Texas, 1845; Iowa, 1846, 1857; Wisconsin, 1848; California, 1850; Minnesota, 1858; Oregon, 1859; Kansas, 1859.

Iowa had tried to adopt a constitution in 1844 but the convention's work was rejected. Wisconsin had the same experience in 1846. The Kansas troubles had given birth to three conventions with their constitutions, (1855, 1857, 1858) before the territory succeeded in making another constitution acceptable both to the voters and to the congress. Though this constitution was made in 1859, the state itself was not admitted into the Union until January 29, 1861, after the withdrawal of southern congressmen had made this possible.

2 Delaware, 1831 (1852); Mississippi, 1832; Georgia (1833), 1839; Tennessee, 1834; North Carolina, 1835; Vermont, 1835, (1842), 1849, (1856); Pennsylvania, 1837; Rhode Island, 1842; New Jersey, 1844; Louisiana, 1844, 1852; New York, 1846; Illinois, 1847; Kentucky, 1849; New Hampshire, Maryland, Virginia, Ohio, Indiana, all in 1850.

3 Louisiana and Vermont. In Vermont it will be remembered that according to the provisions of the constitution, boards of censors met at seven year intervals. The boards of 1835, 1842, 1849 and 1856 in each case summoned a convention for the year following to consider amendments prepared by the board. No amendments were adopted by the conventions of 1843 and 1857 but the convention of 1836 adopted twelve, and that of 1850 ten amendments.

two revisions. Georgia had a revision rejected in 1833 but was more successful in 1839. Delaware revised in 1831 but a second attempt in 1852 met with defeat at the polls. Yet the eighteen states can hardly be accused of undue haste in revision. The average age of their constitutions was forty-one years, six were over fifty years old,1 and, aside from Vermont, the constitution of Mississippi was the only one less than twenty years old. The constitution of Maryland had lasted for seventy-four years at the time of its revision.2 Some of these revised constitutions had been amended by separate amendments before revision but these were few in number and comparatively unimportant. All constitutions of this period, whether new or revised, were regularly referred to the voters for approval or rejection.3

Of the six states that preferred amending to revising,* Maine adopted nine amendments, Massachusetts sixteen, Connecticut eight, Missouri seven, Alabama three and South Carolina two. Some of these were really important and the set as a whole was regularly democratic in tendency. Of the eighteen states calling conventions, eight 6 summoned

5

1 Rhode Island, North Carolina, New Jersey, Kentucky, Maryland, New Hampshire.

2 In 1837 however owing to popular agitation it had made extensive amendments, totaling nearly four thousand words in length. The procedure set by the constitution was not strictly followed in calling the convention, and the same is true of the conventions of 1864 and 1867.

3 The exceptions were, Delaware, Arkansas and Mississippi, and remembering that in Vermont the referendum was from the board of censors to a convention.

4 Yet two of these had endeavored to revise their constitutions through conventions, but the revised constitutions had been rejected at the polls; Missouri, through its convention of 1845-6, and Massachusetts in 1853.

5 The amendment of 1834 emphasized allegiance to the state in the oath

to be taken by officials, an echo of the nullification agitation.

6 Vermont, New Hampshire, Delaware, Tennessee, Kentucky, Mississippi, Ohio, Illinois.

them in accordance with provisions in their constitutions. In nine1 others the legislatures called them under their general legislative powers.2 Louisiana in 1844 called a convention in accord with its constitution but as the revised constitution, which was adopted, contained no provision for a convention, the convention of 1852 was called under the general powers of the assembly.

In respect to the nine states using their general legislative powers it may be noted that Maryland's convention of 1850, and Georgia's of 1833, 1839, were not only called under the general powers of their assemblies but in direct opposition to the provisions of their constitutions, which expressly required all changes to be made through assembly action only. In Maryland3 a condition of discord similar to that of Rhode Island ten years before had arisen, which the assembly settled by calling a convention after a referendum to the voters. The situation in Rhode Island may be briefly mentioned as an excellent illustration of democratic struggles against adverse conditions. This state, it will be remembered, had retained, with verbal changes, its old colonial charter as its fundamental law. Many of its provisions, especially in respect to suffrage and representation, had become antiquated, more especially through the rise of a commercial manufacturing population, which demanded political rights from the landholders in whom political power was vested by charter. A convention was summoned in 1834 by the assembly under its general powers, but it adjourned without definite action. In 1841 the

1 Rhode Island, Pennsylvania, Virginia, North Carolina, Indiana, New Jersey, New York, Georgia, Maryland. To this list should be added Massachusetts and Missouri already mentioned in note 4 on preceding page.

2 For a discussion of such general powers see, Jameson, pp. 601-15 and Appendix E.

3 See, Jameson, Sections 224-5.

assembly summoned another convention which submitted a constitution to the legal voters, who promptly rejected it. Meanwhile in the summer of 1841 mass meetings were organized which summoned a constitutional convention. The constitution of this convention was submitted to the male adults of the state in December and declared adopted January thirteenth, 1842. The attempt to organize this popular government resulted in the Dorr Rebellion, which was promptly suppressed. In view of the tense situation the assembly summoned for September another convention whose constitution was ratified in November and went into effect May, 1843. This constitution for the most part merely continued the fundamentals of the old charter but made some concessions in respect to suffrage and representation. An excellent bill of rights was added, the departments were separated in form if not in fact, and provision made for the passage of amendments but by a rather difficult process.

In respect to the ten new states, only one of them, (Minnesota), entered the Union by the ordinary procedure, viz., through an enabling act. Texas entered the Union by annexation, through a joint resolution of congress and mutual formal consent. In the remaining eight territories, the inhabitants, in their eagerness for statehood, called conventions on their own account and then petitioned congress for admission.1 Congress complied in each case but insisted on an "irrevocable compact" ordinance or conditions tantamount thereto, except from Texas, whose status was that of a sovereign state, not of a dependent territory.

1 But in the case of Wisconsin, this applies only to the constitution of 1848, the rejected constitution of 1846 was in harmony with an enabling act of congress.