York. Defeated badly at Long Island and White Plains, his sadly lessened troops fled through New Jersey into Pennsylvania; but a few weeks later he cheered the Patriots by the dashing winter victories of Trenton and Princeton. In the darkest of the dark days before those victories, Thomas Paine thrilled America with The Crisis. This pamphlet was a mighty factor in filling the levies and dispelling despondency. Pages of it were on men's tongues, and the opening sentence has passed into a byword, – "These are the times that try men's souls."

Meantime the revolution in governments went on. Said John Adams toward the close of '76,-"The manufacture of governments is as much talked of as was the manufacture of saltpeter before." In the six months between the Declaration of Independence and the Battle of Trenton, seven States followed Virginia in adopting written constitutions. Georgia was hindered for a time by the predominance of her Tories; and New York, because she was held by the enemy. These States followed in '77. The remaining three States had already set up provisional governments. In Massachusetts and New Hampshire, these remained in force for some years. South Carolina adopted a regular constitution in '78.

Thanks to the political instinct of the people, the institution of these new governments, even in the midst of war and invasion, was accomplished quietly. As to Virginia, Jefferson wrote (August 13, '77),-"The people seem to have laid aside the monarchic, and taken up republican government, with as much ease as would have attended the throwing off an old and putting on a new suit of clothes."

CHAPTER XXIII

THE NEW STATE CONSTITUTIONS

[This Chapter may well be discussed in class, with books open. n is enough if the student carries away general impressions.]

265. No one of the first eleven constitutions was voted on by the people. In most cases the "conventions" that adopted them had no express authority to do so; and some of those conventions had been elected months before there was any talk of independence. For the most part, the constitutions were enacted precisely as ordinary laws were.

In Virginia, Jefferson urged a referendum on the constitution, arguing that otherwise the constitution could be repealed by any legislature, like any other statute. But this doctrine was too advanced for his State. A "union of mechanics" in New York, too, protested vigorously but vainly against the adoption of a constitution by a provincial convention without "the inhabitants at large" being permitted to "exercise the right God has given them to approve or reject" it.

In New England,' on the other hand, thanks to the training of the town meeting, the sovereignty of the people was understood by every artisan and farmer, as elsewhere only by lonely thinkers.

The legislatures of Rhode Island and Connecticut did adopt the old charters as constitutions (without change), without reference to the people, because it was held that the people had already sanctioned them by long acquiescence. But in New Hampshire and Massachusetts, where new constitutions were

1 The New York " mechanics," just quoted, were mainly of New England birth or descent. Cf. § 170.

to be adopted, there was no serious thought of acting without a popular referendum. Indeed, that was not enough. The people of these States demanded also a popular initiative in the matter.

Throughout the summer of '76, Massachusetts papers and pamphlets teemed with projects for a new government.1 September 17 the Assembly asked the towns to authorize it to prepare a constitution, "to be made public for the inspection and perusal of the inhabitants, before the ratification thereof by the Assembly." This would have let the people only make suggestions. Massachusetts would not tolerate such a plan, and a general opposition appeared to any action whatever by the ordinary legislature. Various towns voted to resist the movement until — in the words of a Boston resolution - the people should elect "a convention for this purpose and this alone." Still the next year (May 5, 1777) the expiring Assembly recommended that its successor should be empowered, at the elections, to make a constitution. Many towns again refused assent. None the less, the new Assembly did venture to submit a constitution to the vote of the towns (February, 1778). But less than a tenth of the towns approved the document !

At last the Assembly was converted. It now asked the towns to vote at the next election whether they would empower their delegates in the coming Assembly to call a Convention for the sole purpose of forming a constitution. The responses were favorable, and a Convention was called for September 1, to be chosen as regular Assemblies were. That body drew up a constitution which (March 2) was submitted to the towns. More than two thirds the towns voted to ratify; and in June, 1780, the constitution went into effect.

In New Hampshire a like method was followed; and, after three plans had been rejected, a constitution was ratified in 1783. It was many years before this method became general outside New England. No more democratic way has yet been discovered than the Massachusetts plan (1) popular initiative; (2) a true "constitutional convention" (3) a referendum on the result.

1 Some of these were fantastic. Democracy, of course, will show its weak points. One "farmer" published a constitution of sixty articles, which, he boasted modestly, he had prepared for the commonwealth " between the hours of 10 A.M. and 2 P.M." Opposition to any executive was common. At a slightly later date, one town voted "that it is Our Opinniun that we do not want any Goviner but the Guviner of the univarse and under him a States Gineral to Consult with the wrest of the united stats for the good of the whole."

§ 267]

GENERAL LIKENESSES

225

266. The thirteen constitutions were strikingly alike.1 All were "republican," without a trace of hereditary privilege. Nearly all safeguarded the rights of the individual by a distinct bill of rights. Most of them formally adopted the English Common Law as part of the law of the land. Except in Pennsylvania and Georgia (the two youngest States) the legislature had two Houses. Pennsylvania kept a plural executive, -a council with one member designated as "president"; but elsewhere the revolution

ary committees of safety gave way to a single "governor" or "president."

267. The governors had less power than the old colonial governors. The people did not yet clearly see the difference between trusting an officer chosen by themselves and one appointed by a distant king. New York and Massachusetts, however (the eleventh and twelfth States to adopt constitutions), had had time to learn the need of a firm executive, and strengthened that branch of government some

THE "BUNKER HILL" FLAG, used by the Massachusetts Colonials. The ground is blue. One corner is quartered by the red Cross of St. George (the English emblem) with the Massachusetts "Pine." Now in the State House at Boston.

what, though they left it weaker than is customary to-day. These two States also placed the election of the governor in the hands of the people directly. That was already the case in

1 This was due mainly to the similarity between the preceding colonial governments, but in part to a remarkably active interchange of ideas among the leaders during the spring and summer of '76. Before the Fourth Virginia Convention (§ 261) Patrick Henry corresponded freely with the two Adamses. Members of Congress at Philadelphia constantly discussed forms of government at informal gatherings; and, on several occasions, delegates from distant colonies returned home to take part in constitutionmaking.

Connecticut and Rhode Island under the colonial charters. Everywhere else the executive was appointed by the legislature. 268. Everywhere the legislature overshadowed the two other branches of government. The judiciary, like the executive, was usually chosen by the legislature, and in many cases was remov

able by executive and legislature without formal trial. No one yet foresaw, in anything like its modern extent, the later power of the judiciary to declare legislative acts void.

The old executive check upon the legislature, the absolute veto, nowhere appeared. Only two States devised the new qualified veto, to be overridden

nies," hoisted by General Putnam on Prospect Hill, January 1, 1776, and adopted by Washington when

he took command of the Continental troops besieging Boston; now in the State House at Boston. This was the first flag to substitute red stripes on a white ground, one stripe for each of the thirteen colonies, for the solid red field of the English flag. In the corner it retains the British "Union " of the crosses of St. George and St. Andrew (England and Scotland) on a blue field.

which has since become so common. New York gave this veto to governor and judiciary acting together, in council"; "revisionary Massachusetts gave it to the governor alone.

a

269. Religious discrimination was common. "Freedom of worship" was generally asserted in the bills of rights; but this did not imply our modern separation of church and state. Office-holding in several States was restricted to Protestant Christians, and some States kept a specially favored ("established ") church. The Massachusetts bill of rights provided that all citizens should be taxed for church support, but that each man should have the right to say to which church in his town or village his pay