CHAPTER I

THE FIRST STATE CONSTITUTIONAL CONVENTIONS,

1776-1783.

THE administrative control exercised over the American colonies by the British government was maintained: (1) by means of charters, and of commissions and instructions under which government in the several colonies was conducted. (2) By the general supervision exercised over the colonies by the board of trade. (3) By the disallowance of colonial laws, upon the recommendation of this board. (4) By appeals taken from the colonial courts to the King in Council. Although control over the colonies was badly disintegrated and was by no means strong, it should however be borne in mind that the colonial governments were definitely limited, and that these limitations were to a certain extent at least maintained through responsibility to a superior authority. The limitations placed upon the colonies were partly written and partly unwritten. The charters of Rhode Island, Connecticut, Massachusetts, Pennsylvania, and Maryland laid down definite restrictions upon the power of the provincial governments; in the other colonies commissions and instructions to royal governors served very largely the same purpose. The limitations enforced by the supervisory control of the board of trade and by the disallowance of colonial laws were by no means based entirely upon the written instruments of government, but rested largely upon the broader ground of safeguarding the general interests of the whole British empire.

The term constitution was sometimes applied to the charters or written instruments binding particular colonies,1 but this term as usually employed both in England and America before the Revolution was understood to refer to the general and more permanent principles upon which government is based. The term was used on both sides of the Atlantic to signify something superior to legislative enactments, and the principles of the constitution were appealed to as beyond the control of the British parliament.

Closely associated with this idea of a constitution beyond the power of legislative alteration, was the theory of the social contract; that is, that government is in some way based upon contract between the people and the state. By the separation of the colonies from Great Britain it was conceived that this contract was dissolved; as expressed by a meeting of New Hampshire towns: "It is our humble opinion, that, when the Declaration of Independency took place, the Colonies were absolutely in a state of nature, and the powers of Government reverted to the people at large.' The political experience and theories of the colonists thus supplied three principles: (1) The employment of definite written instruments of government. (2) The idea of a constitution superior to legislative enactments, and of cer1 Md. Archives, vii, 61.

2 By the Pennsylvania Charter of Liberties of 1701 specific provision was made for the alteration of the Charter by legislative act, but in a manner different from that provided for ordinary legislation. Ordinary legislation might be enacted by a quorum of the assembly with the approval of the governor, if two-thirds of all members were present. "And no Act, Law or Ordinance whatsoever shall, at any time hereafter, be made or done, to alter, change or diminish the Form or Effect of this Charter, or of any Part or Clause therein, contrary to the true Intent and Meaning thereof, without the Consent of the Governor for the Time being, and Six Parts of Seven of the Assembly met."

3 N. H. State Papers, viii, 425.

(3)

tain natural rights secured by such a constitution. The theory of the social contract. There was no inherent necessity that written constitutions should be drawn up by the colonists in 1776 and 1777, for they were founding unitary states in which it was not essential that they should commit their constitutions to writing. But when we consider the conditions of their political experience we must perceive that to them the only natural and proper thing to do was to frame written instruments of government.

For practically the first time in history, the people of the revolutionary period were brought in contact with the problem of establishing written constitutions, of framing for themselves the permanent social contract upon which their political institutions should be based. It is my purpose here to indicate the part which the people took in framing constitutions; the manner in which they by their procedure distinguished between constitutions and statutory enactments. In considering this question it should be remembered that the Revolution was a period of civil war, and that the procedure in adopting constitutions may in some cases have been different from what it was, had the people been establishing governments in a time of peace.

The New Hampshire provincial congress in November, 1775, at the time of providing for the election of members to a new congress, voted that the precepts sent to the several towns should contain the request that "in case there should be a recommendation from the Continental Congress for this Colony to Assume Government in any way that will require a house of Representatives, That the said Congress for this Colony be Impowered to Resolve themselves into such a House as may be recommended, and remain such for the aforesaid Term of one year. 994 The Continental Con

N. H. Provincial Papers, vii, 660.

gress, on November 3, 1775, recommended " to the provincial Convention of New Hampshire, to call a full and free representation of the people, and that the representatives, if they think necessary, establish such a form of government, as, in their judgment, will best produce the happiness of the people, and most effectually secure peace and good order in the province, during the continuance of the present dispute between G[reat] Britain and the colonies."

The provincial congress of New Hampshire, elected with power to resolve itself into a house of representatives, took such a step and adopted a temporary constitution on January 5, 1776. This action was not taken without opposition. The instructions to the representatives of Portsmouth had declared in favor of a continuance of government by the congress. Petitions from a number of towns were presented against the taking-up of government, and several members of the house also protested against this action." Portsmouth protested on January 10, 1776, that “we would

have wished to have had the minds of the People fully Taken on such a Momentous Concernment, and to have Known the Plan, before it was Adopted, & carried into Execution, which is Their Inherent right;" and the instructions given to their representatives in the succeeding July provided specifically "that they nor any other Representative in future shall consent to any alteration, Innovation or abridgement of the Constitutional Form that may be adopted without first consulting their constituents in a matter of so much importance to their Safety."

998

The objections of the eastern towns of New Hampshire

5 N. H. State Papers, viii, 2.

• N. H. Provincial Papers, vii, 701.

7 N. H. State Papers, viii, 14-17, 33.

8 Ibid., viii, 301.

were based principally upon opposition to such a pronounced step toward independence, or upon doubts as to the expediency of such a step; but the towns of the county of Grafton, in the New Hampshire Grants, objected both to the method of adoption and to the substance of the constitution. Several towns refused to elect representatives because "No Bill of Rights had been drawn up, or form of Government Come into, agreeable to the minds of the people of this state, by an Assembly peculiarly chosen for that purpose, since the Colonies were declared independent of the Crown of Great Britain." Indeed the agitation in the western towns became so serious that it was necessary for the assembly to send a committee to conciliate that section, and to assure its inhabitants that the form of government adopted in 1776 was purely temporary.

10

The proceedings of this committee with the meetings of the towns of the New Hampshire Grants are of interest as bearing upon the earlier steps leading to the adoption of a permanent form of government in New Hampshire. At a meeting of the town of Walpole in February, 1777, it was resolved that "a new and lasting Plan of government is necessary to be formed. And if the necessary business of the State forbid the dissolution of the present Assembly, and calling a new one for the purpose aforesaid, that the present Assembly issue Precepts to the several incorporated Towns within the State for such a Number of Delegates to be proportioned to the several Counties within the state as they, the Assembly, shall think proper for the express purpose of the Organization of Government; that a plan thereof be sent to each Town for their [its] approbation; Which, being approved of by a Majority, shall be the Constitutional

9 N. H. State Papers, viii, 421-425.

10 Ibid., viii, 422, 450.