99 11

The conven

Plan of Government for this State.. tion of the united committees of the towns of the New Hampshire Grants, which met at Hanover in June of the same year, insisted that "the further establishing a permanent Plan of Government in the State be submitted to an

Assembly that shall be convened . . for that purpose only."

99 12

The subsequent constitutional procedure of New Hampshire followed the lines laid down in the petitions of the western towns. The House of Representatives voted on December 27, 1777, "that it be recommended to Towns Parishes & places in this State, if they see fit, to instruct their Representatives at the next session, to appoint & call a full & free Representation of all the people of this State to meet in Convention at such time & place as shall be appointed by the General Assembly, for the sole purpose of framing & laying a permanent plan or system for the future Government of this State." 18 The Council took no action upon this matter, but many of the members of the next assembly were instructed to call a convention, and the two houses voted in February, 1778, "That the Honble the President of the Council issue to every Town, Parish & District within this State a Precept recommending to them to elect and choose one or more persons as they shall judge expedient to convene at Concord in said State, on the tenth day of June next. . . . And such System or form of Government as may be agreed upon by Such Convention being printed & sent to each & every Town, Parish & District in this State for the approbation of the People, which system or form of government, being approved of by three

11 N. H. Town Papers, xiii, 603. See also ibid., xi, 23; xii, 57. 12 Ibid., xiii, 763.

13 N. H. State Papers, viii, 757.

fourths parts of the Inhabitants of this State in their respective Town meetings legally called for that purpose, and a return of such approbation being made to said Convention & confirmed by them, shall remain as a permanent system or Form of Government of the State, and not otherwise." The convention called by virtue of this vote adopted a constitution in June, 1779, which was rejected by the people.

39 14

The procedure in calling the second constitutional convention of New Hampshire was the same as that pursued in calling the first convention. The precepts issued in October, 1780, for the election of members to the next assembly contained the following clause: "It is also recommended to empower such Representative to join in calling a Convention to settle a plan of Government for this State." 15 When the new assembly met a joint committee was almost immediately appointed, which recommended another convention, and the resolve of April, 1781, provided that the constitution should be approved “by such number of the Inhabitants of this State in their respective town meetings legally called for that purpose, as shall be ordered by said Convention. . . And if the first proposed System or form of Government should be rejected by the People, that the Same Convention shall be empowered to proceed and make such amendments and alterations from time to time as may be necessary-provided always that after such alterations, the same be sent out for the approbation of the People in the manner as aforesaid." 16 In sending its first constitution to the people, in September, 1781, this convention provided that a two-thirds vote should be necessary for its

14 N. H. State Papers, viii, 775. 16 Ibid., viii, 894, 897.

15 Ibid., viii, 874.

17

adoption. 17 The constitution was rejected as was also a revised copy of it submitted by the same convention in August, 1782. The convention met again in June, 1783, and sent out another constitution which was agreed to by two-thirds of the voters.18

The development of the constitutional convention in Massachusetts was similar to that of New Hampshire, but of a slightly later date. The resumption of the charter in 1775 was accomplished by the provincial congress, without any reference to the consent of the people. By a resolve of September 17, 1776, the House of Representatives recommended that the towns authorize their representatives to form a constitution. Many towns granted the requested authorization, but Boston and several others refused to do so, a meeting of the committees of Worcester County voting that a State Congress, chosen for the sole purpose of forming a Constitution of Government, is (in the opinion of this Convention) more eligible than a House of Representatives;" 19 and the General Court did not at that time carry the matter further. The request was repeated on May 5, 1777, and a sufficient number of towns took the desired action. Such action was uniformly coupled with the demand that the constitution framed by the members of the General

66

17 N. H. Town Papers, ix, 877.

18 Ibid., ix, 883-895, 903-919. Another illustration of the popular submission of constitutional questions in New Hampshire during this period is found in the state's action upon the Articles of Confederation in 1777-78, and upon the amendment thereto proposed in 1783; the questions of adopting the articles and of approving the amendment, were submitted to the towns for action. New Hampshire State Papers, viii, 754, 758, 773, 774, 981, 982. My attention was directed to these references by Lobingier's The People's Law, 180, 181.

19 Boston Town Records, 1770-1777, 247. Force, American Archives, Fifth Series, iii, 866. J. Franklin Jameson in Johns Hopkins University Studies, iv, 204.

Court should afterward be submitted to the towns for approval. Some of the towns opposed the formation of a constitution by the regular legislative body. The Boston town meeting adopted instructions to its representatives which said: "With respect to the General Courts forming a new Constitution. You are directed by a unanimous Vote of a full Meeting, on no Terms to consent to it, but to use your influence, & oppose it Heartily, if such an Attempt should be made, for we apprehend this Matter (at a suitable time) will properly come before the people at large to delegate a select number for that purpose & that alone..." 20

The Massachusetts assembly resolved itself into a constitutional convention on June 17, 1777, and on February 28, 1778, adopted a constitution, which was published several days later. This constitution was submitted to the freemen in their town meetings, and it was suggested that they empower their representatives in the next General Court to establish the constitution, if it should have been approved by the people." The proposed constitution was rejected by the people for various reasons, among which an important one was that it had not been framed by a body chosen for the one purpose of forming a constitution.22

On February 20, 1779, the General Court resolved that those qualified to vote for representatives should be requested to express their opinion as to the desirability of forming a constitution, and as to whether they would em

20 Boston Town Records, 1770-1777, 284. Resolves of Mass., May 5, 1777

21 Resolves of Mass., March 4, 1778.

22 Cushing, Transition from provincial to commonwealth government in Mass., 190, 200-204, 214-226. The present account of the constitutional development of Massachusetts is based largely upon Dr. Cushing's monograph.

power their representatives to call a convention for the sole purpose of framing such a constitution. 23 Both propositions were carried, and the General Court in June, 1779, resolved that elections should be held for a convention to meet at Cambridge on the first day of the succeeding September. The next house of representatives was to establish the constitution, if it should be ratified by two-thirds of the free male inhabitants, over twenty-one years of age, acting in town meetings called for that purpose." The constitution of 1780 was adopted by this body and ratified by the people.

In all of the other states except South Carolina, Virginia and New Jersey the procedure was practically the same. In each case the constitution was framed and put into effect by a body exercising general legislative power, but which had direct authority from the people to form a constitution. But it will be necessary to present the evidence upon which the foregoing statement is based.

In May, 1776, the New York provincial congress discussed the recommendation of the Continental Congress that a government should be organized, appointed a committee to consider the matter, and accepted its report which

23 Resolves of Mass., February 20, 1779.

24 Ibid., June 21, 1779. As an indication of the attitude of the House of Representatives of Massachusetts on constitutional questions it may be worth while to call attention to the fact that the House submitted the Articles of Confederation to the towns instead of acting directly upon the matter. Journal of the House of Representatives of Massachusetts, 1777-78, 141, 143 (Dec. 15, 1777). Records of Town of Weston, 244. Merrill's, History of Amesbury, 272-274. See also Lobingier, The People's Law, 168. The question as to the expediency of declaring independence was submitted to the towns by the Massachusetts house of representatives in May, 1776. Edward M. Hartwell in Monthly Bulletin of the Statistics Department of the City of Boston, vol. xi (1909), p. 154.