My purpose today is to evaluate the Constitution of 1776 from the point of view of the legislative branch and to show how the legislature fared in the subsequent constitutional revisions of 1784 and 1791, which were found necessary as a result of experience under our first constitution.
Much of American history can be written in terms of the swinging of a pendulum. First, an abuse of power occurs because the pendulum has been allowed to swing too far in one direction. Then popular reaction sets in. Next, legislative action or constitutional revision is undertaken to correct the abuse, but in our zeal to reform the wrong we let the pendulum swing too far in the other direction. In time, however, experience shows us where the practical middle ground lies between these extremes, and the pendulum swings part way back as we moderate the reform to fit the facts of life.
This process of self-correction is a characteristic of American government, and the evolution of our first constitution and its subsequent revisions are a good example of how the process works.
The Constitution of 1776 was born of experience under royal government. Prior to independence, New Hampshire was a royal province directly under the control of the British administration. Our province did not have the rights of a charter nor were we blessed with the benevolence of government by a proprietor, as were some of the other American colonies. The fundamental instrument of government was the King’s commission to his appointee as governor of the province, which spelled out the governor’s powers and duties in detail. Under his commission, the royal governor was executive representative of the King, commander in chief and vice admiral of the province, sworn to uphold and execute the King’s laws. By and with the consent of the Council the governor appointed all public officers and judges, exercised the power of pardon, granted the public lands, supervised the expenditure of public monies, and together with the Council, served as a court of appeals from all provincial courts. He might suspend or remove any judge or other public officer for cause. The members of the Council were appointed not elected, and, moreover, were appointed by the King, usually upon nomination by the governor who could also suspend councilors from office for cause. The Council doubled as the upper house of legislature. The assembly, the lower house, was the only elective body, but the governor held the power to call, prorogue or dissolve the assembly at will and without its consent, and to determine, by issuance of election writs, what towns were entitled to elect representatives. The assembly’s choice of its speaker was subject to gubernatorial vote. All laws had to pass both the assembly and the Council, money bills originating in the assembly, but the governor possessed an absolute veto (which could not be overridden) as did His Majesty in Council in England. since all laws had to be sent to England to ascertain “His Majesty’s pleasure.”
Such a concentration of unchecked power in the office of governor practically invited its abuse. Much of New Hampshire’s colonial history was marked by bitter struggles for power between the governor claiming to act by right of the King’s prerogative, and the assembly claiming to act by right of popular election.
The power of the governor to prorogue or dissolve the assembly and send it home at any time it refused to do his bidding was keenly resented. So also was the power of the governor to veto the assembly’s choice of a speaker. Since the governor possessed the power to call elections of the assembly, he could determine what towns could elect representatives, and, in deciding which of the new and growing towns would be entitled to a representative, it was strongly suspected that he sometimes sent his writs to those towns he thought likely to elect his friends to the assembly.
The Council, not being elected, was considered to be packed by the governor’s clique and to be only “a rubber stamp”. The power of appointment to public office was openly used for political purposes and to influence the other branches of government. The most lucrative public offices tended to be concentrated in the governor’s own circle of wealthy families in the Portsmouth and seacoast area, relatives, friends and business associates of Benning and John Wentworth, the last two royal governors. Since the judges of the courts served at the governor’s pleasure and were sometimes removed and replaced by more pliable persons, the judicial branch was not held in high esteem. The governor’s veto power over legislation, which was absolute and could not be overridden, capped the climax of this long list of popular grievances. Whenever the colonial legislature attempted, by legislation, to restrain the governor or the courts or to exercise executive or judicial power itself, its acts faced an almost certain veto either by the governor or by the King in council across the sea.
Therefore, when the time came in December of 1775 for New Hampshire’s provincial congress to draft the first constitution of the colony as a new and independent state, the drafting committee had years of bitter experience to refer to, and they soon showed that the lessons thereof had not been forgotten.
The remedy for these abuses of executive power chosen by the draftsmen of our first constitution was not a “separation of powers” in the classical sense. Rather it was the creation of a “supreme legislature” in the tradition of John Locke, the philosopher of the English or “Glorious” Revolution of 1689. Instead of making the legislative branch and the judicial branch serve as checks on the executive branch, the draftsmen concluded to vest all powers of government, legislative, executive and judicial in a bicameral legislature elected annually by the people.
The keynote guiding the framers was probably a letter of General John Sullivan to Meshech Weare (a member of the drafting committee) dated December 11, 1775 (N.H. Provincial Papers, vol. VII pp. 685 ff). Sullivan, a lawyer in civilian life, criticized the doctrine of separation of powers, saying:
“That government which admits of contrary or clashing interests is imperfect, and must work its own ruin whenever one branch has gained a power sufficient to overrule or destroy the other. And adding a third with a separate and distinct interest, in imitation of the British Constitution, so much celebrated by those who understand nothing of it, is only like two contending powers calling in a third which is unconnected in interest, to keep the other two in awe, till it can gain power sufficient to destroy them both.”
General Sullivan stressed “the folly and danger of establishing a government consisting of different branches whose interest must ever clash with each other” and opined that “the good of the whole . . . should unite the several governing branches.” He also wrote that “no danger can arise to a State from giving the people a free and full voice in their own government” and called for frequent elections to remind all public officers “that a new election would soon honour them for their good conduct or disgrace them for betraying the trust reposed on them.” Much of Sullivan’s philosophy stems from John Locke’s Second Treatise, although Sullivan noted that he was not opposed to having a governor with limited powers.
Our first constitution, adopted January 5, 1776, showed Sullivan’s influence. There was to be no governor at all and the judiciary was given no independence. All power was vested in the legislature, consisting of the house of representatives elected from the towns, and the council (or upper house) elected for the first year by the house of representatives, and in subsequent years by the voters of each county. All laws required the approval of both houses, money bills originating in the lower house. All civil officers (including judges) and all important military officers were to be appointed by the legislature. Elections to the legislature were to be held annually. There was no Bill of Rights nor any system of checks and balances; these were not thought necessary so long as the legislature, which held all powers of government, was directly responsible to the people who by frequent elections could correct any errors.
Now freed of the restraints of the colonial era, the new government proceeded to “flex its muscles”. All the major civil and judicial offices in the province were speedily filled by legislative appointments, as were the commands of the militia above company grade. The legislature appointed a committee of safety consisting of eight or ten legislative leaders to exercise executive authority, and empowered it “to take under their consideration all matters in which the welfare of this Province in the security of their rights shall be concerned, except the appointment of Field Officers, and take the utmost care that the Publick sustain no damage.” This was a broad charter and it was broadly interpreted in practice.
The legislature now assumed full control over the election of its own presiding officers. There was no longer an executive power of veto over legislation. The legislature itself now determined what towns should send representatives. There was no longer a governor who could send the legislature home when he thought it had misbehaved. The council or upper house was now popularly elected rather than appointed at the behest of a governor.
The courts were now brought under popular control and the judges chosen by the legislature but without any tenure. And the legislature, now free of any restraint, proceeded to exercise judicial power rather freely in such matters as granting divorces, granting new trials, quieting title to land, partitioning real estate, and miscellaneous acts relating to minor children, mentally incompetent persons and estates of deceased persons (normally thought to be within the domain of the probate courts).
This was certainly the high water mark of unchecked popular government and of faith in the infallibility of popular majorities.
It was also the high water mark in New Hampshire history of legislative power and government by legislative committee. In some respects the system resembled the typical parliamentary government with the committee of safety performing the function of the cabinet. The pendulum of history had now swung to an extreme position in the opposite direction from its pre-Revolutionary position.
The first constitution lasted for the duration of the Revolutionary War or about eight years. In a practical sense and despite difficulties in the early years, it worked reasonably well and was suitable for the conditions of the times; which demanded a maximum of energy and a minimum of red-tape. The failings of the legislature were overcome in the Committee of Safety. Such injustices, sufferings and violations of individual rights as occurred seemed, on the whole, to have been no more severe than what occurred in some of our more populous sister states which had more elaborate and theoretically-correct constitutions. Fortunately the state had excellent civil leadership under the first constitution especially in the person of Meshech Weare of Hampton Falls, who served as President of the Council and Chairman of the Committee of Safety during most of the Revolutionary War period. Others of noteworthy ability were Dr. Matthew Thornton, Nathaniel Folsom, William Whipple, Dr. Josial Bartlett and Dr. Ebenezer Thompson. Political parties were unknown during this stage of our history, which may well have lightened the burden of the leadership.
The defects of the first constitution began to come under criticism not long after its adoption. Among these were the lack of a Bill of Rights to protect the citizens against the excesses of the government, the absence of independent executive and judicial branches to serve as checks on the legislature, the failure to restrict multiple office-holding, and the absence of provision for amending the constitution. Typical of the objections was a resolution adopted by the Town of Newmarket in 1778:
“Respecting the Constitution of Government we are of opinion that the present tho’ it appears to be free by right, is not so in fact, nor no other government can be when the same persons make themselves Judges of their own laws and Executors of that power which they give themselves as Legislators.”
In 1778 a constitutional convention proposed general revisions which left the power of the legislature still largely unchecked. Upon submission to the people, this draft was overwhelmingly rejected. The Town of Portsmouth voted to base its negative vote on the reason that “the Legislative and Executive Powers of Government are lodged in the same hands which in our opinion is inconsistent with and subversive of the Principles of Free Government.”
Further constitutional revisions were proposed in 1781 and 1782 but in each case they were defeated at the polls. In each case the proposals included a bill of rights, an independent judiciary and a governor and council as executive with the governor having a qualified veto of legislation. William Plumer, a contemporary diarist, wrote: “The task was arduous; for the prejudices which the Revolution had engendered against the arbitrary government of Great Britain, made the people jealous of giving their own officers so much power as was necessary to establish an efficient government.” On the third try, the people adopted a revised version of the 1781-1782 proposals. There was a Bill of Rights modeled on that of Massachusetts. But the title of the executive was changed from “governor” to “president” The “president” was to preside over the Senate. His council consisted of two senators and three representatives elected by the legislature. The “president” had no veto power over legislation The provision for an independent judiciary was retained. Multiple office holding was prohibited. There was also provision for the periodical review and possible amendment of the constitution every seven years. This constitution, known as the “Constitution of 1784”, took effect June 2, 1784. The legislature for the time being retained most of its power, and the executive had been shorn of just enough power to obtain a two-thirds’ popular majority at the polls.
It was at the Constitutional Convention of 1791 that the principle of separation of powers at last achieved acceptance. Even then it took two separate submissions to the electorate. The office of governor was established for the first time since Independence, and he was given a qualified veto power over legislation and relieved of the duty of presiding over the Senate. The Executive Council was made popularly elective. The pendulum of history had now swung partly backward to that position which the experiences of 15 years of independent state government had shown to be necessary in order to achieve a proper balance between the three branches.
On paper, there has been relatively little change in the balance of governmental power as it affects the legislative branch since the constitutional revision of 1791. Given the will, the leadership and the ability, the present constitutional framework is adequate for the legislature to maintain its appropriate position in the New Hampshire power constellation in 1976, 200 years after its creation as the popularly-elected legislative branch of an independent state.
Bibliography
Laws of New Hampshire. vols. 3 (1745-1774) and 4 (1774-1784)
Manual of the Constitutional Convention of 1918 (Concord, 1918)
New Hampshire Provincial Papers (published by the State, 1873) vols. VII, VIII
Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge, 1968)
Butters, A. ,J., New Hampshire History and the Public Career of Meshech Weare, 1713-1786 unpublished manuscript, Fordham University, 1961)
Daniell, d. R., Experiment in Republicanism–New Hampshire Politics and the American Revolution 1741-1 794 (Cambridge, 1970)
Morris, R. B., The American Revolution Reconsidered (New York, 1967)
Parker, J. and Urness, C., ed., The American Revolution: A Heritage of Change (Minneapolis, 1975) Upton, R. F., Revolutionary New Hampshire (Hanover, 1936)
Upton, R. F., Separation of Powers in New Hampshire (unpublished manuscript, Harvard Law School, 1938)
Wood, Gordon S., The Creation of the American Republic, 1776-1787 (Chapel Hill, 1969)
