Part One The History of the New Hampshire Constitution, The History and Development of the New Hampshire State Constitution
To appreciate New Hampshire’s constitutional history, we must begin not in 1776, when the state became the first of the original colonies to adopt a constitution, but more than a century before the start of the Revolutionary War. In 1629, King Charles I granted to Captain John Mason an indenture for the territory of New Hampshire, which the crown believed would advance settlement of the region.1 Mason sought to found “a hereditary principality in America,” but the validity of the claims of his heirs proved to be little more than an “endless altercation and political confusion.”2 Mason, and later his descendants, would struggle to make something of New Hampshire, but their various efforts at organizing and running the territory essentially came to naught and there followed, beginning in 1641, several decades in which neighboring Massachusetts exercised jurisdiction over the territory.(p. 4)
The king declared New Hampshire a royal province in September of 1679. The provincial population was not pleased: “[h]aving long enjoyed the advantages of the union with Massachusetts, they yielded with reluctance to the separation.”3 By 1690, New Hampshire found itself without a government and, in the absence of orders from England, a committee of safety “met, and resolved upon a union with Massachusetts. Their petition was readily accepted at Boston and New Hampshire once more became a part of Massachusetts.”4 The crown reasserted control in 1691 under the charter issued by King William and Queen Mary creating the province of Massachusetts Bay. Save a few brief years in which New Hampshire was a part of the short-lived Dominion of New England,5 the province would continue to exist as a royal colony until the eve of the Revolutionary War.
Colonial Rule, 1680–1775
New Hampshire’s royal governors, selected by the crown, shared executive authority with an appointed council. The official legislative body was the assembly. The last of the royal governors was John Wentworth, who served from 1767 to 1775; he was the nephew of Benning Wentworth, who had served as royal governor from 1741 to 1767—as Scott Douglas Gerber has noted, Benning Wentworth served “the longest term of any governor in colonial America.”6 Benning’s father had been Massachusetts lieutenant governor from 1723 to 1728; though he was a Massachusetts official, he resided in and oversaw New Hampshire.7 New Hampshire would not have its own governor until Benning, in 1741. After the Masons, no family is more prominent in New Hampshire’s colonial history than the Wentworths.
Though the system of representation in the provincial assembly favored those towns whose populations were sympathetic to the royal government, Governor John Wentworth struggled in his effort to secure his authority amidst growing discontent and disorder. By May 1774, Wentworth’s popularity was waning, and the assembly appointed a committee of correspondence to communicate with similar committees in other provinces. Wentworth (p. 5) responded by dissolving the assembly, but it met illegally the next month in Portsmouth—first in the assembly hall, then in a tavern.8
From these meetings came a call to all of the towns in New Hampshire to choose delegates to a provincial congress, which would elect representatives to send to the Continental Congress and coordinate resistance in the towns. The first provincial congress met in Exeter on July 21, 1774. Governor Wentworth had by this time ordered new elections for the official assembly, but the assembly refused to seat three members who had been “chosen” under royal election writs by “constituencies” established without its approval.9 In July, when the assembly refused still to “rescind its vote excluding the three members,” Wentworth adjourned it and scheduled it for the end of September.10 He issued this order from the Fort of William and Mary in New Castle, to which he and his family had fled seeking the protection of the British warship Scarborough.
The governor’s situation had by this time become increasingly desperate. When in August 1775 the Scarborough sailed to Boston to resupply, the Wentworth family went with it. The ship’s departure with Wentworth aboard marked the effective end of royal government in New Hampshire, though Wentworth would return one last time shortly before the assembly was due to meet again: from the Isle of Shoals on September 25, 1775, he sent word to adjourn the assembly until the following spring. As one commentator put it, “[t]his was the closing act of his administration. It was the last receding step of royalty.”11 Perhaps needless to say, the assembly took little heed of the order.
New Hampshire found itself at this time without an official government. Unlike the other New England colonies, New Hampshire had no royal charter that could serve as the basis for a system of government.12 The province had been governed by a series of royal commissions and instructions that gave broad centralized authority to the crown’s appointed governor.13 Concerned for what might happen once the royal court system no longer existed—as well as its own lack of formal authority—the fourth of the provincial congresses sent a request for advice in October 1775 to the Continental Congress in Philadelphia. The Continental Congress responded on November 3, 1775, with a recommendation that New Hampshire convene a “full and fair representation of the people” which could, if necessary, “establish such a form of (p. 6) government, as…will best produce the happiness of the people…during the continuance of the present dispute between Great Britain and the Colonies.”14
The fourth provincial congress took steps to ensure that the next congress would be elected according to a new system of representation, one based upon a census that would lead to more proportional representation than elections past.15 As well, the fourth congress expanded voting rights beyond the severe restrictions that had been in place prior to the Revolution. For example, the election law of 1728 required all voters for representatives to the royal assembly be possessed of real estate valued at £50. The fourth provincial congress resolved to reduce the requirement to £20 and to allow all taxpayers to vote, a system that prevailed throughout the Revolutionary period.
The subsequently elected fifth congress consisted of eighty-nine delegates from the one hundred fifty incorporated towns of New Hampshire.16 On December 28, 1775, as authorized by its election precepts, the fifth provincial congress resolved itself into a house of representatives. Meeting in Exeter, this legislative body adopted New Hampshire’s first constitution on January 5, 1776, some six months before the signing of the Declaration of Independence. The people of the state were not given the opportunity to ratify the constitution; the new house of representatives—the first legislative body independent of the crown—presented it to them as a necessity of the times.17
The Temporary Constitution of 1776
The house of representatives intended the 1776 constitution—the “Form of Government”—to be a temporary measure, in effect only “during the present unhappy and unnatural Contest with Great Britain.”18 But, due to the many complications associated with finding agreement on a permanent constitution, this “temporary” period lasted nearly eight and a half years. Part of the preamble describes the emergency situation:
The Sudden & Abrupt Departure of his Excellency John Wentworth Esq: our Late Governor, & Several of the Council, Leaving us Destitute of Legislation,—and no Executive Courts being open to Punish Criminal Offenders; whereby the Lives & Propertys of the Honest People of this Colony, are Liable to Machinations & Evil Designs of wicked men.
The framers of the 1776 constitution appeared to assume the possibility that the war would result in reunification with Great Britain, as the constitution stated: “[W]e Never Sought to throw off our Dependence upon Great Britain, but felt ourselves happy under her Protection… [W]e Shall Rejoice if Such a Reconciliation between us and our Parent State can be Effected.”
As in the other former colonies, certain individuals emerged as leaders during the Revolutionary period. Meshech Weare, who likely wrote the final draft of the constitution of 1776, had served on important committees in all five provincial congresses and twice as president pro tem.19 Indeed, during this time Weare served simultaneously as chair of the powerful “committee of safety,” chief justice of the superior court—then the state’s highest court—and president of the council, the upper house of the legislature created by the new constitution.20 Though he reportedly discharged all “his various duties with unsurpassed fidelity and wisdom,”21 he would become a target of the criticism that the legislature was run by “a small clique of leaders” who held all the responsible offices as well as their seats in the legislature.22
The governmental structure embraced by the framers of the 1776 constitution relied upon the form of government adopted in Massachusetts as established by the Charter of King William and Queen Mary of 1691,23 which controlled before the British Parliament enacted the Massachusetts Government Act of 1774.24 The governmental scheme thus created was not without its deficiencies. Reflecting the deep distrust of the royal government, the 1776 constitution did not provide for a chief executive: the framers concentrated all governmental power in the two branches of the legislature, the house of representatives and the council. The house would appoint the first council for one year, with subsequent councils elected by county. The legislature had the power to appoint most public and military officers, except court clerks, county treasurers, and recorders of deeds. The dozen men who made up the “Committee of Safety”—originally created by the Provincial Congress in May 1775—performed most executive functions.25 When the legislature was not (p. 8) in session—which was most of the time—the committee assumed numerous governmental responsibilities.26
Drafted in extraordinary circumstances, the 1776 constitution lacked many of the elements one would expect to find in a modern constitution. In addition to the absence of an independent executive branch, it contained no bill of rights, no provision for an independent judiciary or separation of powers, and no method for amendment. Further, no provision of the constitution described the basis upon which representatives would be elected to the legislature; indeed, the system of representation used in the election of the provincial congress would remain in effect until the ratification of the permanent constitution in 1784.
Moreover, not all the delegates to the fifth provincial congress approved the adoption of the 1776 constitution. There was discontent among the towns in the Piscataqua area of Portsmouth, on the seacoast. Prior to the war, these towns were dominated by merchants who had exerted a strong influence over colonial politics—influence they used to protect their own economic and social interests. Their economic fortunes diminished as the war continued, and so did their influence. Following the war, representatives of the interior towns exerted control over the new legislature; these representatives had little concern for the interests that preoccupied their seacoast brethren.
The representatives from Portsmouth acted quickly to express their dissatisfaction with the new constitution. On January 10, 1776, when the constitution had been in effect for less than a week, a delegation from Portsmouth and a number of nearby towns presented a petition to the house of representatives questioning the legitimacy of the new legislature. They argued that their “constituents never expected [the house] to make a new form of government, but only to set the judicial and executive wheels in motion.”27 Citizens from the Portsmouth area would later object as well to the “lack of an independent executive” and the proliferation of plural office holding in appointments made by the legislature.28
For different reasons, citizens of the mostly smaller towns in the west, near Hanover, also expressed dissatisfaction with the new constitution. Far from the seat of government in Exeter, citizens of the upper Connecticut River valley towns maintained close ties with Connecticut and came to believe they were inadequately represented in the legislature. From the recently founded Dartmouth College, faculty members publicly objected to the adoption of the 1776 constitution and its plan of apportionment of representation in the legislature, as well as the lack of popular ratification of the new constitution. The (p. 9) widely circulated “Address from Grafton County,” likely written by Bezaleel Woodward, a professor at Dartmouth and the son-in-law of its founder,29 in July 1776, asserted that the legislature was an illegal body and called upon the people of New Hampshire to exercise their “rights and privileges” by establishing a “supreme legislative court…to lay a foundation and plan of government.”30
The Address also attacked the apportionment system because it did not allow for at least one representative for each incorporated town. The then-current plan for representation allowed smaller towns to combine to attain the minimum number of one hundred freeholders required for a representative.31 This system, according to the western dissenters, failed to recognize the sovereignty of the town corporation and to treat all towns equally. The citizens of Hanover and at least thirteen other towns in the area expressed their displeasure by boycotting the elections held in 1776.
In addition, Woodward and others organized a group from town committees of safety in Grafton County called the “United Committees,” which advocated for more adequate representation of the western towns in the legislature. The Committees also sought to have the seat of government moved from Exeter to the center of New Hampshire, as the journey to the seacoast often proved to be arduous. The United Committees met with Meshech Weare, the council president, and other council members in February 1777, but failed to reach an agreement. To further complicate matters, the councilors discovered that settlers in the areas of the New Hampshire grants, just across the Connecticut River from the western towns, had organized themselves into what they called “New Connecticut”—now the state of Vermont.
In the fall of 1777, Woodward delivered a petition from the United Committees to a committee of the house of representatives. The petition requested that a constitutional convention be called and a new constitution be adopted, one which would give to each town the option of electing at least one representative.32 The committee soon recommended that a convention be called and, responding to the pressure to replace the temporary constitution, the New Hampshire legislature on February 26, 1778, voted to hold a full and free convention on the tenth day of June of that year “for the sole purpose of forming and laying a permanent plan or system of government for the future Happiness and well-being of the good people of this State.”33
By that time, many of the western dissenters had decided that political separation better served their interests than a new constitution. As New (p. 10) Hampshire went about the process of creating a new constitution, the United Committees contemplated forming a separate state, “Dresden,” and then petitioned to join the new state of Vermont, which had adopted a constitution guaranteeing to each town at least one representative in its legislature.34 Indeed, Woodward would go on to serve as justice of the Vermont Supreme Court. Notwithstanding their discontent, however, the western dissenters were not long for Vermont: in 1782 the Vermont assembly renounced jurisdiction over the towns in the valley east of the Connecticut River, and the dissenters ultimately “returned their allegiance to New Hampshire.”35 Citizens of rebellious Hanover lingered in their resentment and sent Woodward himself to the New Hampshire General Court in 1784, an ironic symbol of their accession to governance by the state of New Hampshire.36
The Convention of 1778
The convention called by the legislature met in Concord in June 1778. At that time, a constitutional convention was still a relative novelty. John Adams, architect of the Massachusetts Constitution, popularized the idea of holding a specially called convention for the purpose of drafting a constitution. Adams believed the people ought to “be all consulted” regarding the formation of a state government, “to erect the whole building with their own hands, upon the broadest foundation,” and this could be done “only by conventions of representatives chosen by the people in the several colonies, in the most exact proportions.”37 He recommended that citizens in every one of the former colonies “call such conventions immediately, and set up governments of their own, under their own authority.”38
Among those whom Adams impressed with his counsel on constitution- making was “Mr. John Sullivan of New Hampshire,” who heard “with apparent pleasure” of these “new, strange, and terrible doctrines.”39 Sullivan is another storied figure in New Hampshire history. He had been sent by the first provincial congress to represent New Hampshire in the First Continental Congress; he served as well in the Second Continental Congress and as a general in the Continental Army under George Washington. Following the war, he returned to New Hampshire, where he would serve as the state’s attorney general, as a member of the legislature, speaker of the house, and, later, governor. With (p. 11) Meshech Weare and others, Sullivan is credited with having possessed the “skill, wisdom, and patience” necessary “to fashion a state out of what was a loosely defined and disconnected province.”40
As the sentiment for a special constitutional convention gained strength in New Hampshire, Massachusetts was moving in a like direction. The Massachusetts General Court in the fall of 1776 sought responses from the towns to its proposal to draft a constitution for the commonwealth, and on October 22, 1776, Concord, Massachusetts, was the first to call for the election of a special convention, recognizing the distinction between legislative powers and constitution-making that had been delineated in the Address from Grafton County.41 In June 1777, the Massachusetts General Court resolved itself into a constitutional convention and appointed a special committee to draft a constitution; that constitution would in 1778 meet with resounding defeat at the polls.42 Because the Massachusetts General Court would not issue a call for the election of delegates to a constitutional convention until June 1779, New Hampshire may claim the distinction of holding the first convention whose members were elected for the sole purpose of drafting a constitution, to be adopted after submission to the people and approval by popular vote.43
Most of the delegates to the New Hampshire convention came from the seacoast area and the Merrimack Valley, with poor representation from the western and northern towns.44 Their deep involvement in the secession movement kept many towns in the western counties of Grafton and Cheshire from electing delegates. Towns could elect as many delegates as they wished and had to pay their expenses, which favored the wealthier towns nearer to Concord. Though ninety towns were represented by seventy-four delegates,45 many towns went unrepresented.46 Some of the smaller towns grouped together and shared a representative.
The constitutional convention elected in the spring of 1778 continued in existence until 1779, during which time it produced one draft constitution, which voters at town meetings rejected by a large margin on June 5, 1779. The draft by its terms required adoption by three-fourths of the voters, an unusually (p. 12) high approval requirement. This draft closely resembled the 1776 constitution, which was not surprising since many of the framers of that constitution were delegates to the 1778 convention.47 As a result, it did not respond to many of the basic criticisms leveled at the 1776 constitution: it still centered power in the legislature and it still contained a high wealth qualification for membership in the legislature—£300, one half of which had to be in real estate. Under the draft constitution, the council continued as the upper branch of the legislature, with a “president” chosen by the council from among its members who served in place of a governor but with almost no executive authority. Restrictions limited plural office-holding, and the draft allowed one seat in the house of representatives for each one hundred families, while smaller enclaves could band together for representation.
The Constitution of 1784
After the voters rejected the first draft constitution, the legislature did not move quickly to restart the drafting process, as more immediate and pressing concerns occupied its attention. These concerns included the rebellion of the Connecticut Valley towns and their attempted secession, as discussed above, as well as the problem of inflation and the demands of the Continental Congress for more men and supplies in the prosecution of the war.
In the spring of 1781, the legislature authorized an election for another constitutional convention, to convene on the first Tuesday in June and to remain in session until it had produced a draft constitution which the people had ratified.48 The convention that met in June 1781 followed the procedure of referring the actual drafting of the constitution to a committee and then reconvening at a later date to vote on the draft that the committee had produced. The drafters used as a model the recently adopted Massachusetts Constitution of 1780, principally written by John Adams. As a member of the Massachusetts constitutional convention’s drafting committee, he was primarily responsible for the organization and much of the substance of the Massachusetts Constitution. Many of the basic elements of New Hampshire’s constitution of 1784 can be traced directly to its Massachusetts forebear, including the bill of rights, the principle of separation of powers (though with some differences), and a division of government into three independent branches.
The draft presented to New Hampshire voters in 1781 represented a victory for the advocates of an independent executive branch. The draft proposed a governor with a limited veto power to be elected annually by the people, rather than a chief executive with little real authority elected from among the (p. 13) members of the council. A five-member council, elected by joint ballot of the legislature, would give its advice and consent to certain gubernatorial appointments. The draft provided that judges, who would be appointed by the governor and council, would serve “during good behavior,” and the constitution prohibited the holding of several important offices by the same person. The draft addressed the issue of representation in the lower house of the legislature by limiting the house to fifty members who would be elected by county conventions composed of delegates from the towns.49 The draft reduced the electoral margin for adoption from three-fourths of those present and voting to the two-thirds margin that still obtains today.
When the draft was submitted, towns were asked to “state their objection distinctly and the reasons therefor” if a majority of eligible voters did not agree to approve the draft.50 And majorities in the towns did not approve the draft constitution. Though similar in basic form to the constitution of today, it proved too controversial for the time. Citizens in some towns centered their disapproval on the draft’s provision for a strong chief executive and the limits on membership in the house of representatives. Other opponents saw the draft as an attempt to restore to the seacoast merchant class the power it had lost during the war. Evidence in the historical record also indicates there was a lack of public discussion about the draft constitution prior to the vote.51
It appears as well that the June 1781 meeting of the convention was poorly attended, for when the convention reassembled in early 1782, after the first draft constitution had been rejected, it placed a notice in the New Hampshire Gazette of Portsmouth, New Hampshire, urging towns that had not elected delegates to the convention to “neglect no longer” and towns that had already sent delegates to “add other members” if expedient to do so. The difficulty in getting towns to send representatives to the convention can be explained in part by the rigors of traveling to Concord, as well as the common struggle among citizens to recover from the hardships of wartime.52
Upon reconvening in January 1782, the convention produced a second draft, which was submitted to the voters in August of that year. This draft contained many revisions in response to the complaints that had issued from the towns that had rejected the first draft. The revisions included the deletion of (p. 14) the indirect election of members of the house of representatives, but the draft retained the more-powerful executive branch. Nonetheless, voters rejected this draft, with many citizens again voicing their objection to the concept of a strong executive.53
The convention met once again in June 1783, after the voters at town meetings in March 1783 had approved an extension of the “temporary” constitution of 1776 to June 10, 1784, and it appeared the former colonies would achieve peace with England before a new constitution could be adopted.54 This time the convention made significant changes in response to the objections from the towns. This draft diminished the position of governor, with all veto power eliminated and his title changed to “president.” Further, it changed the scheme of representation: a town with one hundred fifty rateable polls (that is, male inhabitants subject to taxation) could elect a member to the house, and only inhabitants over the age of twenty-one and who paid for themselves a poll tax had the right to vote. This draft also removed any limits on the size of the house, a decision which would have consequences extending into the second half of the twentieth century. Among other changes, the revised draft emphasized the approval of religion and indeed required “chief officeholders…to be of the Protestant religion.”55
Finally, the state had a draft constitution that would meet with popular approval. The third draft received the necessary two-thirds vote, and it took effect on June 2, 1784—not a moment too soon, for the one-year extension of the temporary constitution of 1776 was about to expire.
The Revision of 1792
The framers of the 1784 constitution had the foresight to anticipate that the constitution they created might profitably be reviewed and even revised after a relatively short period of time, and so the constitution required the legislature to call for a convention seven years after its adoption. In 1791, elections were held, and in September of that year the convention assembled in Concord.56 As (p. 15) the delegates to this convention set to work, they had the benefit of the federal constitution and several examples of constitutional reform in other states as models.
This convention’s efforts resulted in a significant revision of the constitution. A number of problems with the constitution of 1784 had become apparent.57 There was a need, for example, for a clearer separation of powers. Though the bill of rights declared that the three branches “ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit,” the executive and judicial branches were effectively weak and subservient to the legislature. The legislature was the court of last resort for both public and private matters and often overruled judicial decisions. Though the election of the chief executive—the “president”—was separate from the election of members of the legislature, he was not truly independent. The president served as commander-in-chief of the state’s military forces and had the authority to make certain appointments with the approval of the council, but he had no veto power over legislative actions.58 There were other problems. For instance, the 1784 constitution assigned to towns and not state government the responsibility for paying the wages of their representatives; amidst the extraordinary inflation and economic distress that followed the war, many towns found this obligation particularly burdensome.59
In addition to these issues, the ratification of the federal constitution had rendered several provisions of the 1784 constitution problematic. The New Hampshire Constitution required the legislature, and not the people, to elect representatives to the U.S. Congress, in contravention of Article I of the federal constitution. And the national chief executive was called “president,” so it was somewhat confusing to have the state’s chief executive hold the same title. As well, the state constitution’s lack of restrictions on state officials holding multiple offices simultaneously resulted in many cases of what today would be considered incompatible office holding. John Sullivan served, at the same time, as New Hampshire’s chief executive and as a federal judge, and Samuel Livermore served as both chief justice of the state’s highest court and as a representative to the U.S. Congress.60
About a week after the convention assembled, it directed a committee of ten members to draft amendments based upon proposals submitted by the delegates. William Plumer, of Epping, emerged as the most influential member (p. 16) of the convention; he was speaker of the house and an ardent advocate of constitutional reform.61 The competing interest groups on the committee of ten worked over the winter of 1791–1792, and the committee presented its recommendations for amendments in February 1792. The convention modified those recommendations and presented a total of seventy-two amendments to the voters in the May 1792 elections.
Among other changes, the amendments established an independent executive, a department not so closely linked to the legislature. Further, the constitution now required the legislature to divide the state into twelve senatorial districts based upon taxable property; the legislature had the authority to do this under the 1784 constitution, but had not exercised that power. The convention sought to address the seemingly intractable problem of fair representation in the house of representatives, but in the end could agree on no solution, thereby preserving the status quo62—as provided in the 1784 constitution, each town with “150 rateable male polls” aged twenty-one and older could elect a representative, as well as another representative for every three hundred additional taxpayers. Under the revision of 1792, the right to vote no longer depended upon the payment of the poll tax, but it did exclude paupers and persons who did not pay taxes at their own request.
In addition, relatively minor amendments relating to the judicial branch set the mandatory retirement age at seventy and made various changes concerning the probate courts, clerks’ fees, and “the all too prevalent tendency of officials to confuse their public and their private business.”63 The amendments allowed the general court to establish, within limits, jurisdiction for the probate courts and justices of the peace. The committee of ten had suggested a fuller restructuring of the judicial branch, but the convention had rejected that proposal.
The convention faced the problem of how best to present all of its recommended amendments to the voters in a comprehensible way. It decided to send to each town a copy of the constitution as it would appear if all the amendments were to be adopted, as well as a listing of each amendment to be voted on separately.64 But the public lacked interest and, perhaps, understanding; the amendments were considered at special town meetings in May, when the press (p. 17) of other business left little time for active debate.65 Indeed, many people chose not to vote: in Moultonborough, for example, only sixteen eligible citizens voted on the amendments in 1792, while in 1778, when the population was smaller, forty-six cast votes in a dispute concerning a local minister. And no votes were cast in the town of Wolfeboro.66 In the end, the total vote of the persons registered for the final endorsement of the amendments was less than 50 percent of the number who had voted earlier in that year in an uncontested gubernatorial election.67
In light of the time that the committee of ten and the convention had devoted to the proposed amendments, there was likely no small amount of frustration expressed when the delegates reconvened to examine the inconsistent and contradictory results of the vote. Though forty-six of the proposed seventy-two amendments had been adopted, a number ran afoul of other provisions of the constitution because voters had rejected the changes that would have made the text internally consistent. As the convention did not view the adoption of an internally inconsistent constitution as a desirable option, it proposed a bold solution: offer a single, omnibus amendment that would cover all the deficiencies, rather than a series of amendments that might result in further contradictory results. In other words, voters would have to decide whether to accept the entire package—which they did, by a margin of 2,112 to 978, just forty-five more votes than the required two-thirds majority.68
The revisions made by the 1792 amendments, which took effect in 1793, implemented many of the proposals that had been rejected as too radical in 1781.69 They restored the position of governor and established gubernatorial succession, which in 1792 made the senate president next in line. The revisions of 1792 made the executive branch more independent of the legislature, by removing the requirement that the governor preside over and vote in the senate and by giving the governor the veto power. Voters over time would reject efforts to further enlarge the chief executive’s power: they rejected a four-year term for the governor three times (in 1970, 1982, and 1984) and the item veto three times (in 1912, 1920, and 1930).70 The 1792 revisions also provided that (p. 18) council members would be elected from councilor districts instead of by members of the legislature. Further, the legislature would be required to deliberate openly, and the state became responsible for the wages of legislators.
In all, the revisions of 1792 were so extensive that, for many years, the constitution was incorrectly known as the “1792 constitution.” The New Hampshire Supreme Court so called it in Copp v. Henniker in 1875.71 In 1889, Supreme Court Justice William Allen sought to correct the record, noting in State v. Saunders that, because of the many provisions dating from the 1784 constitution, it was erroneous to refer to the document as the “constitution of 1792.”72 To this day, the amendments resulting from the 1791 convention make up the only general revision of the 1784 constitution; following the adoption of those amendments, there began a long period of satisfaction among the citizens with the basic governmental structure and the constitution that created it.
The Convention of 1850
For eighty-five years, from 1792 to 1877, New Hampshire’s constitution remained essentially unchanged, save a single amendment in 1862, this despite the numerous opportunities the voters had to call a constitutional convention: from 1800 to 1850, the people voted down the prospect of such a convention—and, therefore, constitutional change—eight times. The span of years between amendments represents among the longest periods in which the people of a state chose not to amend their constitution.73
There were a number of reasons why a convention was not held until 1850. At least in the initial years following the 1792 revision, many people likely recalled the difficulties associated with that effort, including the need to hold two separate votes and to respond to seventy-two separate questions. Further, the state would have to pay the costs of the convention, if one were held. Opponents over the years also expressed some fear that a new convention might go too far and propose unnecessary changes, leading to a drastically changed constitution.
Whether to call a convention became a political issue between Democrats and Federalists in the 1830s and 1840s. The legislature was dominated by Democrats and from 1833 until 1847 supported a vote on whether to hold a convention on average about every two years, in contrast to the previous decades, in which such an opportunity had been presented to the voters in accordance with the constitutional provision that required that a sense of the people “as to (p. 19) a revision of the constitution” be taken every seven years. The New Hampshire Patriot and Gazette, which supported the Democrats, complained that “[t]ime and again within the last twenty years, the Democrats…have called upon the people to convene a Convention…and the federal members of the Legislature always opposed it.”74
In the spring of 1850, the voters agreed by a large margin that the time had come to consider amendments to the constitution.75 The convention began its work in November of that year; it met over a six-week period, with a break for Thanksgiving. Public pressure for the convention to complete its work expeditiously was such that, after the delegates returned following Thanksgiving, it met almost every day but Sunday, including Christmas Eve day, Christmas Day, and New Year’s Day, as well as in evening sessions.
Franklin Pierce, president of the convention76—and later fourteenth president of the United States—and other convention leaders in the legislature believed that the social, economic, and religious changes in New Hampshire over the previous sixty years warranted a restructuring of state government.77 The convention ultimately elected to bring fifteen questions to the voters, including proposals for changes to each branch of government and the Bill of Rights. The convention combined into a single question two issues that had animated support for calling a convention: abolishing the requirements for office that representatives, senators, executive councilors, and the governor to be “of the Protestant religion” and that they own certain amounts of property.
While proposals like abolishing the religious and property requirements for office were needed, the convention in the end suggested so many radical changes that voters rejected all of its proposals—not one question received a simple majority of the vote. The New Hampshire Patriot and State Gazette expressed regret for its support for the convention, noting that it had lasted longer than expected, cost almost $40,000, and produced many more proposed amendments than anticipated. The newspaper characterized the convention’s recommendation as a “new Constitution” which left “scarcely a feature of the old one recognizable.”78
After this defeat at the polls, the convention met again and debated whether to resubmit any of its proposals to the voters. Levi Woodbury, an associate justice of the U.S. Supreme Court and a convention delegate, urged the convention to resubmit three proposals: abolition of the religious test and abolition (p. 20) of property requirements for office, as well as adoption of a new mode of constitutional change which would allow the legislature to propose amendments. These questions were resubmitted, but the final result of the work of the 1850 convention was the adoption of just one amendment: the abolition of the property requirement for holding office.
The Convention of 1876
The sense of the people was taken seven times between 1850 and 1876, and majorities in 1861 and 1865 voted to call a constitutional convention, but the Civil War precluded these conventions from meeting. In 1876, New Hampshire, like the rest of the nation, was in the midst of dramatic social, political, and economic change. In the wake of the war, industrialization began to supplant agriculture as an economic engine, while railroads made transportation easier and faster. At the same time, the population was growing more diverse. The time appeared right to consider the constitution, and a majority of voters that year agreed.
The changes wrought by the 1876 convention modernized many aspects of New Hampshire government. The amendments ratified by the voters in 1877 changed the date of elections from March to November and the timing from annual to biennial. Two amendments placed restrictions on the use of public money. One amendment prohibited the legislature from authorizing a town to loan or give funds to benefit a corporation formed to achieve “a divided of profits.”79 Another amendment emphasized the separation of church and state by prohibiting tax revenue from being used to support religious schools.80 And the voters finally agreed to abolish the religious test for office.
In addition, the amendments made changes to the size of the legislature. The senate doubled in size, from twelve to twenty-four. All subsequent attempts to alter the size of the senate have met with failure.81 The basis for representation in the house was increased from one hundred fifty rateable polls (essentially, male inhabitants subject to taxation82) to six hundred inhabitants. This would not be the last amendment aimed at the structure of the house; as a historical matter, most of the amendments concerning legislative size and apportionment have involved the house, which has always been a large body (p. 21) in proportion to the state’s population and in comparison to other representative bodies. Indeed, the New Hampshire Legislature today is one of the largest representative bodies in the English-speaking world.
Every convention from 1850 to 1938 considered amendments relating to the size of the house of representatives, and eight separate amendments relating to size appeared on the ballot in 1877, two of which the voters ratified. For many years, there was no limit on the size of the house. The first elected house had 91 members, but by 1876 the house had grown to 391 members. In 1877, the move from rateable polls to population represented a fundamental shift, but it did nothing to limit the size of the house. At the time, the amendment effectively reduced the number of representatives in the house to 280, but that number naturally increased over time as the state’s population grew.
The Convention of 1889
Of concern to the convention of 1889 was the representation of citizens of small towns in the General Court. The constitution adopted in 1784 contained a special provision relating to small towns which grouped or “classed” them together for purposes of representation. The citizens of these towns, understandably dissatisfied with this arrangement, sought to have their towns receive equal representation in the legislature. In 1889, voters adopted a compromise, an amendment which ended “classing” and allowed the small towns to be represented in the legislature for a proportional amount of time, based upon population.
This amendment did not fully address the concerns that preoccupied the citizens of small towns, as a very small town would be able to send a representative to the General Court only infrequently, which meant that some form of taxation without representation might well occur.83 For instance, under this system, with a requirement of one representative for every six hundred inhabitants, a town of sixty inhabitants would be entitled to representation just one-tenth of the time. “Time” was to be calculated by the number of legislative sessions to be held, with representation lasting for the entire session. Thus, representation one-tenth of the “time” translated to representation at every tenth session; at the time of the 1889 convention, legislative sessions were being held only once every two years, meaning that a town of sixty inhabitants effectively (p. 22) would be represented only once every twenty years and “practically the town [wa]s disenfranchised,” as one delegate noted.84
Other constitutional proposals recommended by the convention of 1889 and later adopted included an amendment providing for compensation for members of the legislature at $200 per biennium, plus mileage—for officers, $250, with $3 per day for special sessions.85 Another amendment altered the gubernatorial line of succession by placing the speaker of the house of representatives after the senate president.
The Convention of 1902
By 1902, the house numbered 397 members. It appeared that Representatives Hall would soon be too small to accommodate all of them. According to New Hampshire Supreme Court Justice Martin Chase, there were “very few citizens that [sic] do not feel that the house is too large to secure the best quality of membership and the best results of deliberation.”86 Nineteen resolutions on the subject were introduced at the 1902 convention, but the convention proposed a variation of the town plan then in effect—which granted a representative to any town with six hundred inhabitants, with an additional representative for each twelve hundred inhabitants—with an element of the district system. It required a minimum of eight hundred inhabitants for one representative, twenty-four hundred for two, and sixteen hundred for every representative thereafter, with a local option feature which would have allowed contiguous towns, wards, and similar places to voluntarily unite into a district. A majority of voters favored this proposal, but it failed to garner the required two-thirds vote necessary for adoption.
The 1902 convention, in response to pressure for additional sources of revenue, proposed an amendment to Part 2, Article 6. Tax reform has been a frequent subject of proposed constitutional amendments, partly in response to the long and complex history of judicial interpretation of the taxation provisions contained in Part 1, Article 12 and Part 2, Articles 5 and 6. In general, the state supreme court interpreted the constitution to prohibit graduated taxes of any kind because all taxes had to be proportional and reasonable. As a result, property, both real and personal, was the principal basis for tax revenue in the nineteenth and early twentieth centuries, and the state property tax remained one of the main components of state tax revenue until the 1930s.87(p. 23) The convention’s proposal was adopted, extending the taxable classes of property beyond “polls and estates” and allowing the imposition of different flat rates on different classifications of taxable property.
The Conventions of 1912 and 1918
By 1912, the year when the next constitutional convention assembled, the house had grown to more than four hundred members, but there was no agreement on an amendment that would reduce its size. Elsewhere, the convention considered, not for the first time, the issue of women’s suffrage. For almost 175 years, Part 2, Article 28 of the constitution had provided that only “male inhabitants” could vote for senators. The voters had rejected women’s suffrage in 1902, and in 1912 the convention failed to propose a similar amendment.88
The 1918 convention, which convened in 1921, elected to submit to the voters an amendment removing the word “male” from Article 28.89 By this time, the issue of women’s suffrage had been resolved by the ratification in January 1920 of the Nineteenth Amendment to the U.S. Constitution; nonetheless, the proposed amendment met defeat at the polls.90 It would be rejected again in 1938.91
As for the recurring problem of a rapidly growing house, the 1918 convention proposed two amendments, which the voters rejected. These proposals would have reduced the size of the house to between 300 and 325 members, with one plan basing representation on the number of votes cast in the last presidential election and the other on population.
The Conventions of 1930 and 1938
Issues of representation and voting were taken up again by the 1930 convention. The convention proposed to reduce the number of representatives in the house by reducing representation of the larger areas, an effort rejected by the voters. Eight years later, a new convention proposed an amendment relating to voting by “paupers,” but the voters rejected this proposal as well. (p. 24) The convention, rather than seeking elimination of restrictions on voting by paupers had instead attempted to clarify the legislature’s authority to define “pauper” for purposes of voting. According to a statement made during debate about the amendment, the clarification would have responded to the uneven enforcement of the laws defining “pauper.”92
But the 1938 convention was not wholly unsuccessful. Once again turning to the issue of revenue—and the uses to which the legislature could put it—the convention recommended establishing some constitutional protection for highway funds, to prevent them from being raided by the General Court. In 1938, the voters adopted Part 2, Article 6-a, which provides that motor vehicle revenues must be used for “construction, reconstruction, and maintenance of public highways,” and not for other purposes. The voters also approved, in 1942, two narrowly drawn amendments which permitted the classification and taxation of standing timber at a different rate from real property.
When the convention reconvened in 1941, it considered the results of the 1940 census. Under the constitutional formula, the house would again increase in size, from 423 to 443, because of population growth.93 Some convention members argued that the house would soon become too large to function efficiently—and, as a practical matter, it once again threatened to outgrow its space in Representatives Hall. Various proposals for reducing the size of the house generated much debate at the convention, and the plan it finally endorsed involved a numerical cap on the size of the house. Still in effect at this writing, the constitutional cap adopted by the voters in 1942 allows the house to range in size from 375 to 400 members.94 As for the perennial concerns of citizens of small towns about their representation in the legislature, the voters approved as part of the cap on the size of the house an amendment that each town, no matter how small, would have a representative in the house at least once every ten years. This “concession to the smaller towns” was made to encourage support for the cap.95
Voters in 1942 also supported authorizing the legislature to provide for absentee voting. This amendment allowed for absentee voting at general elections (biennial, city, or state). Similar amendments had failed in the past.
Eleven proposed amendments were submitted to the voters between 1948 and 1950. The convention president, Richard Upton, noted that the convention had focused on removing those portions of the constitution “which had ceased to be in harmony with the times,” and ultimately recommended relatively few substantive changes because the constitution “embodies in a high degree the fundamental principles essential to free government by free men.”96 Of the six amendments approved by the voters in the 1950 election, all concerned the removal of outdated and obsolete provisions from the constitution.
The Convention of 1956
The 1956 convention sent ten proposals to the voters, of which they approved nine. The amendments concerned such matters as absentee voting,97 accounting for “non-residents temporarily residing in [the] state” in the census,98 and allowing the governor to conduct business while not in New Hampshire.99 Other amendments omitted or altered antiquated language, such as references to “males” being eligible to vote—this nearly forty years after the right to vote had been extended to women under the U.S. Constitution.100
The convention president, J. Walker Wiggin, focused on the need to send voters proposals that delegates “honestly believe[d]…[would] in all probability result in a future and continuous benefit to our people.”101 He also warned that the convention rules designed to protect the voice of the minority were only acceptable “up to the point where such minority attempts to substitute unreasonable, dilatory and obstructive tactics for the reasonable parliamentary procedural progress to which the majority is entitled.”102 Perhaps not surprisingly, the next convention, called in 1964, concerned itself with the equal treatment of all delegates, reflecting allegations that the 1956 convention had been conducted unfairly toward some.103
Between the conventions of 1956 and 1964, an interim commission studied the constitution and issued a report, which was provided to all members of the new convention. Upton, once again serving as convention president, acknowledging that the rules prohibited the chair from addressing “the merits or demerits of the issues presented in [the] report,” noted that the report provided “considerable historical perspective and invaluable background material…that show[ed] the major choices that [were] open to the Convention.”104 He believed the 1964 convention accordingly would be “better prepared to proceed, than many of its predecessors.”105
The convention ultimately submitted twenty-one amendments to the voters, the most notable of which sought to reduce the extent to which the people would have to rely upon conventions to amend their constitution. This amendment proposed that the General Court be authorized to propose amendments, and it changed the frequency with which a sense of the voters should be sought in respect to a convention from every seven to every ten years.106 Prior to 1964, the legislature could not propose amendments, and New Hampshire is one of just four states to have held more than ten constitutional conventions.107 After 1964, an amendment could be proposed by convention or by a 60 percent majority of the legislature. For a proposal to be adopted, it must be ratified by a supermajority of two-thirds of the persons voting on the question, rather than a simple majority.
The 1964 convention also returned to the issue of representation in the house. Before 1964, whether the requirement for the first representative was one hundred fifty rateable polls or six hundred inhabitants, twice that number was required for the second and any successive representative. This formula worked to advantage the smaller towns that qualified for representation. New Hampshire, like its New England neighbors, had a well-developed system of town government that had survived the original transition from colonial to state governance.108 Representatives from these towns remained a powerful force and they were scarcely interested in ceding any advantage they might enjoy in the legislature. The inequity resulting from the pre-1964 formula had long been recognized. In an address prior to the 1902 convention, New Hampshire Supreme Court Justice Martin Chase noted that, under the formula, “Bow with a population of 617 is entitled to one representative, while (p. 27) Ward Five in Concord, with a population of 2,609—more than four times that of Bow—is entitled to only two.”109
The long-standing “two for one” formula110 met its demise after the U.S. Supreme Court established the principle of “one person/one vote” as a matter of federal constitutional law under the Fourteenth Amendment.111 Just five days after the 1964 convention adjourned, on June 15, a series of decisions from the U.S. Supreme Court made clear that equal protection required election districts throughout the country to afford each voter an equal vote.112 This rule thus forbade a state constitutional provision that conditioned the election of a second and any additional representative upon twice the population size necessary to elect the first. The president of the 1964 convention recalled the members for a one-day session to address the issue, upon which the convention proposed that representation in the house be “as equal as circumstances will admit.”113 The voters ratified this proposal in November 1964, thereby placing small towns in districts with other towns for purposes of representation.
Though the voters did not in 1964 approve increasing the size of the senate, they did approve a requirement that the senate be apportioned on the basis of population and not taxable property, without dividing any town, city wards, or unincorporated places. At the time, the largest senatorial district had about three times the population of the smallest. New Hampshire was the only state to employ this antiquated method of apportionment and, like the formula for representation in the house, it violated the Fourteenth Amendment to the U.S. Constitution.114
In the years following the 1964 convention, voters considered amendments addressing executive authority, home rule, and voting requirements, among other matters. In 1966, Part 2, Article 41 was reworded to clarify the (p. 28) governor’s authority. The voters that year also approved an amendment relating to home rule; Part 1, Article 39 would prohibit the legislature from changing a town or city charter without a local referendum approving such change. A 1968 amendment limited the governor’s powers as commander-in-chief.115 As well, the voters in 1968 further refined the rules of gubernatorial succession to address issues relating to succession in the event of the governor’s physical or mental incapacity.116
Finally, in 1968, the people eliminated the literacy requirement for voting contained in Part 1, Article 11, which dated from 1902. The constitution had required that voters or office-holders be able to read the constitution in the English language and write their names, with certain exceptions related to age or disability. Likewise, until 1968 the exercise of the franchise was tied in some instances to the payment of taxes; the 1968 amendment brought Article 11 into conformity with federal constitutional decisions prohibiting the denial of voting rights for nonpayment of taxes.117
The Convention of 1974
Though the people adopted an amendment providing for alternative means with which to amend the constitution, the 1974 convention entertained 169 proposals,118 more than twice the number debated at any of the previous five conventions. The convention sent twenty-seven amendments to the voters, ten of which they approved. In addition, pursuant to the changes adopted in 1964, the General Court sent twelve proposals to the voters, six of which they approved.
Among the proposals which voters rejected in 1976 was one that would have eliminated the governor’s authority to make a pocket veto under Part 2, Article 44. Voters also refused an amendment that would have eliminated the governor’s power to “prorogue,” or prevent, the legislature from going back into session for up to ninety days following an adjournment. And voters rejected the substitution of the senior member of the executive council for the other state officers in the line of gubernatorial succession. In 1990, they rejected a proposal that would have prohibited the senate president or house speaker from voting in the legislature while serving as active governor, though (p. 29) the voters would later adopt this proposal as part of an amendment addressing gubernatorial incapacity.119
Other amendments considered by the people addressed voting rights. Voters in 1974 and 1976 brought the New Hampshire Constitution into conformity with the federal constitution120 with amendments clarifying the minimum voting age as eighteen years old.121 The voters expanded absentee voting rights in 1976 to allow the absentee ballot in town elections by official ballot, as well as in general or primary elections.122 Voters in 1976 acted to repeal provisions tying the right to vote to payment of taxes for inhabitants of unincorporated places who had elected not to assess local taxes on themselves; by the time they were repealed, these disqualifications were rarely enforced.
The Convention of 1984
Voters amended Part 1, Article 11 for the last time in the twentieth century in 1984 to require that registration and polling places be easily accessible to disabled persons. In that same year, voters refined home rule with an amendment limiting the state’s power to impose programs on local governments absent their consent. As well, they approved an amendment adding a new provision to Part I to protect the retirement funds of public employees. This provision requires that public retirement funds be used exclusively for the benefit of the appropriate retirement system and that such systems be fully funded each fiscal year.123 In 1990, after the General Court had created a lottery designed to benefit the state’s educational system, voters approved an amendment requiring that lottery revenues be used to aid education.124
Twenty-First Century Constitutional Amendment
In 2006, the voters ratified two amendments to the New Hampshire Constitution. Part I, Article 12-a conditions the government’s exercise of the power of eminent domain by prohibiting the taking of property “directly or indirectly” for “the purpose of private development or other private use.” This amendment was a response to the U.S. Supreme Court’s controversial decision in Kelo v. City of New London,125 in which the Court held that “a city’s decision (p. 30) to take property for the purpose of economic development satisfies the ‘public use’ requirement of the Fifth Amendment.”
In addition, voters in 2006 once again tinkered with the method by which the citizens of smaller towns would be represented in state government. As amended, Part II, Article 11 states that, “[w]hen the population of any town or ward, according to the last federal census, is within a reasonable deviation from the ideal population for one or more representative seats, the town or ward shall have its own district of one or more representative seats.” The amendment also allows the use of floterial districts—that is, legislative districts “which includes within [their] boundaries several separate districts or political subdivisions which independently would not be entitled to additional representation but whose conglomerate population entitles the entire area to another seat in the particular legislative body being apportioned.”126
Judicial Enforcement of the Constitution
Constitutional change, of course, does not occur exclusively through the formal processes of amendment but also through judicial interpretation; accordingly, it is worth considering separately the role of the New Hampshire judiciary and its historical enforcement of the constitution. Like its Massachusetts counterpart, the New Hampshire Constitution of 1784 created a permanent and independent judicial branch, recognizing that “[i]t is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice.” Part I, Article 35 accordingly provided that the judges of the state’s highest court would serve so long as they behaved well, and it guaranteed they would enjoy “honorable salaries, ascertained and established by standing laws.” This arrangement stands in stark contrast to what had come before: under the 1776 constitution, the legislature had the authority to appoint judges and to remove them at will. Indeed, the legislature often found judges from among its own members, who would then serve in both capacities.127
But the adoption of the constitution of 1784 changed relatively little about the relationship between the branches, as the legislature continued to dominate the judiciary in various ways: “[t]he new constitution might proclaim separation of powers, William Plumer later pointed out, but the legislature not only adjourned courts, it also voided judgments rendered even by the tribunals of last resort.”128 And yet, in the 1780s a lower court took the first steps toward a truly independent judiciary and the unquestioned exercise of what (p. 31) today we would recognize as judicial review—“the power of a court to void a government act as inconsistent with the organic law of the polity.”129 The U.S. Supreme Court famously exercised this power in Marbury v. Madison in 1803,130 but state courts had invalidated legislation as unconstitutional prior to Marbury. In 1799, for example, the Massachusetts Supreme Judicial Court had ruled unconstitutional an act of the Georgia legislature as a “flagrant, outrageous violation of the first and fundamental principles of social compacts” as well as Article I, § 10 of the U.S. Constitution.131 And just two years after Marbury, that court recorded no hesitation in considering the validity of a law under the state constitution.132
In the “Ten Pound Cases,” decided nearly twenty years before Marbury, a New Hampshire court had asserted its authority to determine the constitutionality of legislative acts.133 Pursuant to the Ten Pound Act, passed in November 1785, justices of the peace could “try and determine all pleas and actions of Debt and trespass where title of Land is not concerned” when the claim did not exceed ten pounds; the act stripped the lower trial courts of jurisdiction in claims worth less than five pounds, unless heard on appeal.134 The legislature intended the act “to help debtors by reducing the costs of defending small civil actions filed by creditors in the state.”135 Because justices of the peace did not preside over jury trials, the law effectively deprived debtors owing less than ten pounds a jury trial as guaranteed by Article 20 of the constitution, which provided that “in all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practiced, the parties shall have a right to trial by jury; and this method of procedure shall be held sacred.”
In 1786, Williams Wallace, Jr., brought a claim against Richard Tarlton, for whom he had worked, for nine pounds—“the reasonable value of his work”—and Justice of the Peace Thomas Bartlett granted him the “nine pounds ‘damage’ plus costs.”136 Tarlton, through his attorney, appealed to the Rockingham County Inferior Court of Common Pleas and received the traditional de novo (p. 32) jury trial, after which the judgment was significantly reduced. Tarlton’s lawyer then “moved for arrest of [the larger] judgment” on constitutional grounds.137 The judges took the case under advisement and later ruled for the defendant. The motion in Tarlton’s case would become the first of many in similar cases, with the judges repeatedly finding the Ten Pound Act to be contrary to the state constitution. “The court may have been inferior,” the legal historian Philip Hamburger has observed, “but the judges understood their duty, even down to the standard of contradiction—that the statute was ‘Manifestly Contrary to the Constitution of this State.’”138
There followed no small amount of discussion and debate in the legislature and among the citizenry about the act and the actions of the judges in Rockingham County. Legislative efforts to repeal or revise the act failed, as did efforts to eliminate the Inferior Court’s appellate jurisdiction.139 In June 1787, the house appointed a committee to consider whether the judges should be impeached; the committee reported that “the said Justices are not Impeachable for Mal-administration as their conduct is justified by the constitution of this State.”140 The house soon moved to repeal the act, with which the senate agreed. One local newspaper summed up this legislative action thus: “The General Court, during their late session, repealed the Ten Pound Act—and thereby justified the conduct of the Justices of the Inferior Court, who have uniformly opposed it as unconstitutional and unjust.”141
Notwithstanding the Ten Pound Cases, by the turn of the century the legislature was still effectively controlling the courts. For instance, as John Phillip Reid reported, “of the six statutes published as Sessions Laws for June 1797, five had to do with regulating the courts.”142 Further, the prevailing view held that the General Court had the authority to “legislate” judges out of office; indeed, this was a relatively simple process: “The legislature simply repealed the statute that had created the current court. If the governor concurred and signed the bill, the court was abolished and the judges were removed from office.”143 Thus in 1813 did the General Court legislate out of office the New Hampshire Superior Court (now the Supreme Court).144 The constitution of 1784 may have contemplated an independent judiciary, but Article 35 was not seen as protecting the institutional integrity of the courts as permanent institutions.(p. 33)
Still, popular and political attitudes toward the judiciary were changing,145 and in an 1818 case called Merrill v. Sherburne,146 the supreme court famously exercised the authority to determine the constitutionality of legislative acts.147 A year earlier the court had affirmed the principle that it is the General Court’s responsibility to determine the necessity for laws and that all such enactments not repugnant to the constitution are “the law of the land.”148 The court in Merrill held that the legislature had exceeded its authority when it granted a new trial to an unhappy litigant who had challenged the outcome of a probate dispute. Writing for the court, Justice Levi Woodbury stated that “[o]ne prominent reason for creating the judicial, distinct from the legislative department, was, that the former might determine when laws were thus ‘repugnant,’ and so operate as a check upon the latter, and as a safeguard to the people against its mistakes or encroachments.” “But,” he continued, “the judiciary would in every respect cease to be a check on the legislature, if the legislature could at pleasure review or alter any of the judgments of the judiciary.”149
Though Merrill has come to be seen as establishing judicial review in New Hampshire, Woodbury’s decision did not go so far as to fully embrace the doctrine, at least as we understand it today. Rather, the decision is primarily concerned with the legislature’s practice of meddling in the work of the courts, and it consequently articulates a strong commitment to the separation of legislative and judicial powers. In hindsight, of course, it is difficult to read Merrill as about anything other than judicial review, but “it would be better to say,” as Reid has suggested, that Merrill’s legacy “is that it created a ‘new relationship between New Hampshire’s judiciary and the legislature.’ With Woodbury’s decision, the principle of legislative supremacy began to pass from New Hampshire constitutional law.”150 Or, as Timothy Lawrie put it, Merrill “instituted an unspoken peace treaty between the branches.”151
As the relationship between the judiciary and legislature changed and legislative supremacy began to ebb, the judiciary grew progressively more confident (p. 34) in its ability to act as a truly independent governmental department, without fear of legislative interference. In 1851, for example, the supreme court held, in State v. Tenney, that it possessed the power to punish a person for obstructing the administration of justice.152 A decade later, in State v. Matthews, the court concluded that the judiciary’s contempt power is a “necessary incident inherent in the very organization of all legislative bodies and of all courts of law and equity independent of statutory provisions.”153 In 1873, the court struck down a legislative act seeking to affirm the fraudulent sale of a corporation because such an act would be judicial in nature.154 And, by the early part of the twentieth century, the court could state with some confidence that the constitution essentially prohibited the legislature from enacting “laws which impair the ability of the courts to function as courts.”155
But it was not until 1966 that the people amended the constitution to expressly protect the integrity of the court system. That amendment states that “[t]he judicial power of the state shall be vested in the supreme court, a trial court of general jurisdiction known as the superior court, and such lower courts as the legislature may establish.”156 A 1978 amendment further provided that the chief justice of the supreme court would be the administrative head of the court system and empowered, with the support of the associate justice of the supreme court, to craft rules governing the administration of the state’s courts.157
Notwithstanding these textual amendments, perhaps no development better exemplifies the modern independence of the New Hampshire judiciary than its embrace of the “new judicial federalism” beginning in the 1970s. “The new judicial federalism” refers to “the development of state court interpretations of some state constitutional rights provisions to be more protective than the same or similar federal Constitutional provisions.”158 The New Hampshire Supreme Court has been at the vanguard of this movement.159 In its 1983 decision in State v. Ball, the court declared that, “[w]hen State constitutional issues have been raised, this court has a responsibility to make an independent interpretation of the protections afforded under the New Hampshire Constitution.”160 Accordingly, when a litigant raises an individual rights claim, (p. 35) the court will look first to the New Hampshire Constitution, and only if it concludes the state constitution affords no relief will it go on and examine the claim under the federal constitution. U.S. Supreme Court Justice John Paul Stevens praised this approach for the way in which it facilitates “the independent role of state constitutions and state courts in our federal system.”161
The New Hampshire Supreme Court has continued to follow this “first things first” approach to the interpretation and application of state constitutional individual rights protections.162 In State v. Canelo, for instance, the court determined that the state constitutional protection against unreasonable searches and seizures embodied in Part I, Article 19, unlike the Fourth Amendment to the U.S. Constitution, requires the exclusion of illegally seized evidence at trial even when a police officer acting in good faith believed a search warrant to be valid. Reviewing the state constitutional text and its history, as well as state and federal precedents regarding the exclusionary rule, the Canelo court confirmed—contrary to the U.S. Supreme Court—that the exclusionary rule is “a logical and necessary corollary to achieve the purposes for which prohibitions against unreasonable searches and seizures were constitutionalized.”163
As the U.S. Supreme Court moved to limit the extent of many individual rights protections under the federal constitution at the end of the twentieth century—particularly in the area of criminal procedure—litigators in state cases began with increasing frequency to raise state constitutional arguments.164 Many state courts embraced their role as independent interpreters of these state constitutional guarantees. But perhaps no court has so consistently asserted that it will independently examine the state constitution in these cases as has the New Hampshire Supreme Court. In addition to promoting the dual protection of individual rights under state and federal law that the framers of the U.S. Constitution contemplated, the court’s unwavering approach to state constitutional interpretation in individual rights cases marks in a concrete way the judiciary’s standing as a co-equal branch of New Hampshire government.
At this writing, the New Hampshire Constitution has been amended 146 times over the course of its existence. The Tables that precede the Appendix list the state constitutional conventions held since 1776 (Table 1) and show the number of amendments proposed by conventions and the legislature between 1792 (p. 36) and 2013 (Table 2). Compared to other states, the people of New Hampshire have made relatively few changes to their constitution. There are several possible reasons for this. First, the constitution adopted in 1784 was based on sound principles, adapted by its framers from the work of John Adams on the Massachusetts Constitution—another constitution that has remained essentially unchanged since its ratification. Second, with few exceptions the constitution does not dwell upon the quotidian details of governmental operations that are commonly found in statutory law, and so there has been little need for frequent amendment to keep the constitution current. Finally, as a practical matter, the New Hampshire Constitution is more difficult to amend than most because of the requirement that amendments be approved by a two-thirds majority.
When the voters ratified the constitution in 1784, they committed to a republican form of government with authority separated and divided among three branches, the better to serve liberty and promote the public good. In the days following the Revolution, New Hampshire was a critical part of a vast national experiment in governance, and the voters accordingly recognized that their constitution might in time require “such alterations…as from experience may be found necessary.”165 Perhaps they would be pleasantly surprised to learn that experience has demonstrated nothing so much as the soundness of their original inclinations: over the course of more than two hundred years, the essential structure of government to which they pledged themselves in 1784 has remained in place, a model of stability among the constitutions of the United States.
1 Scott Douglas Gerber, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606–1787 (New York: Oxford University Press, 2011), 94. Mason named the territory “in honor of [his] home county of Hampshire.” Elizabeth Forbes Morison & Elting E. Morison, New Hampshire: A Bicentennial History (New York: W.W. Norton & Co., 1976), 11.
4 Ibid, 104.
8 Richard Francis Upton, Revolutionary New Hampshire: An Account of the Social and Political Forces Underlying the Transition from Royal Province to American Commonwealth (New York: Octagon Books, 1971), 19.
9 Ibid, 25.
10 Ibid, 28–29.
17 Turner, The Ninth State, 14. Turner notes that the authority of the Constitution of 1776 rested upon its adoption by an extralegal convention (the fifth provincial congress) that had been elected according to precepts issued by a preceding extralegal body (the fourth provincial congress).
24 Under its 1691 Charter, Massachusetts had a general court of assembly, the members of which were elected by freeholders at town meetings. The twenty-eight-member council was elected by the assembly. Massachusetts also had a governor and lieutenant governor, but the New Hampshire Constitution delegated these functions to the legislature. Benjamin W. Labaree, Colonial Massachusetts: A History (Millwood, N.Y.: KTO Press, 1979), 119, 126.
45 James Fairbanks Colby, Manual of the Constitution of the State of New Hampshire, Compiled from Official Sources and Edited, with Sketch of the Constitutions of the State, the Basis of Representation, and Appendix (Concord, N.H.: J. B. Clarke, 1912), 77. Colby refers to the list of delegates compiled from town records by G. Parker Lyon (in the New Hampshire Register for 1852, of which Lyon was editor), in which it appeared that about ninety towns were represented by seventy-four delegates.
49 This idea was inspired by the system recommended in the “Essex Result,” a report of the Essex, Massachusetts, county convention written by Theophilus Parsons of Massachusetts. Daniell, Experiment in Republicanism, 172.
52 Karen Bowden, “After the Revolution, The Transformation of New Hampshire Towns, 1780–1800,” in William C. Gardner et al., New Hampshire, the State That Made Us a Nation: A Celebration of the Bicentennial of the United States Constitution (Concord, N.H.: P.E. Randall, 1989), 81–82.
54 The New Hampshire House of Representatives adopted to resolve on February 17, 1783, noting that peace was likely to soon be accomplished and that, if this happened before a new constitution was adopted, the “present government” needed to be continued to “guard against the dreadful evils naturally flowing from anarchy.” The house requested that the selectmen of the towns place the resolve to continue the present government until June 10, 1784 at their next annual town meeting. The council concurred in the resolve the following day. Laws of New Hampshire, Vol. 4 (1776–1784), 507–508.
55 Jean Yarbrough, “Puritanism and the Moral Foundations of America,” in Michael Allen Gillespie & Michael Lienesch, eds., Ratifying the Constitution (Lawrence, Kans.: University Press of Kansas, 1989), 241.
59 Jere R. Daniell, “Ideology and Hardball: Ratification of the Federal Constitution in New Hampshire,” in Patrick T. Conley & John P. Kaminski, eds., The Constitution and the States: The Role of the Original Thirteen in the Framing and Adoption of the Federal Constitution (Madison, Wis.: Madison House, 1988), 5.
61 William Plumer, Jr., in his book about his father, Life of William Plumer (Boston: Philips, Sampson, & Co., 1857), 124, states that the constitution as amended by the convention of 1791–1792 was known as “Plumer’s Constitution.” According to Superior Court Judge Samuel Livermore, as quoted by Plumer, the reference was originally meant in a derogatory way, implying that the constitutional revisions were the work of one man rather than the entire convention. Ibid.
63 Ibid, 135.
66 William L. Taylor, “Years of Revolution, Years of Decision: Attitudes and Reactions in the Lakes Region during the 1770s and 1780s,” in Gardner et al., New Hampshire, the State That Made Us a Nation, 147–148, 150.
69 Law of 1792, ch. 15 In Laws of New Hampshire, Vol. 6 (1792–1801), the law was entitled “An Act to carry into effect the Constitution of the State as altered and amended by the late Convention, passed Dec. 14, 1792.” The act provided that the provisions relating to the choice of members of the legislature, executive officers of the state, county treasurer, and recorder of deeds would take effect February 1, 1793, while the “whole of said Constitution” would take effect on the first Wednesday of June, 1793 (June 5, 1793).
70 Constance T. Rinden et al., New Hampshire Constitutional Amendment Proposals (Concord, N.H.: Law Division, New Hampshire State Library, 1984) (2nd ed.), 14. The proposal for a four-year term which had not been submitted to the voters at the time of the publication in May of 1984 was defeated in November of the year.
82 It is hard to arrive at an exact meaning for the term “rateable [ratable] polls.” The term was not defined by the courts or by statute for the first half-century after the adoption of the 1784 constitution. A June 1835 opinion clarified that “aliens” (noncitizens residing in the state) were to be included as ratable polls because they were taxable, but persons over the age of seventy were not, because they were excused from taxation. Opinion of the Justices, 8 N.H. 573 (1835).
83 See, for example, the remarks of delegates Edith D. Banfield and E. James Winslow in the Journal of the Convention (1938). Delegate Banfield asks the legislature not to “tax [smaller towns] without representation.” State of New Hampshire Convention to Revise the Constitution: Journal of the Convention to Revise the Constitution (Manchester, N.H.: Granite State Press, 1938), 176. Delegate Winslow expressed his concern over the “lack of representation, or the disfranchisement of many towns, part of the time.” Ibid, 183.
89 State of New Hampshire Convention to Revise the Constitution: Journal of the Convention to Revise the Constitution (Manchester, N.H.: John B. Clarke Printing Co., 1921), 426–427. (Special Session of January 28, 1921).
91 In 1938, the reference to “male” inhabitants would have been eliminated as part of an amendment proposed to Article 28 of Part 2 relating to voting by paupers, but the elimination of the “male” reference was not mentioned in the question presented to the voters. See Journal of the Convention to Revise the Constitution (1938), 321–322.
104 Ibid, 23–24.
105 Ibid, 23–24.
109 Justice Chase’s address to the South Church Business Men’s Conference on November 2, 1902, was printed in the Concord Evening Monitor of November 4, 1902. The same remarks, entitled “A Review of Organic Law Development,” were printed for the benefit of the 1902 convention and were included in the Journal of the Convention to Revise the Constitution, December 1902, 208–222. Associate Justice William Martin Chase served on the New Hampshire Supreme Court from March 24, 1891, until his retirement on December 28, 1907, at age seventy.
110 The Concord Daily Monitor of July 7,1964, explained the “two for one” formula as a system requiring that a “town or ward have twice as many residents to elect a second representative—and all subsequent ones—than were required to elect a first.”
112 The six decisions, all decided on June 15, 1964, were Reynolds v. Sims, 377 U.S. 533, the principal case (Alabama); Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (Colorado); Maryland Committee v. Tawes, 377 U.S. 656 (Maryland); Roman v. Sincock, 377 U.S. 695 (Delaware); Davis v. Mann, 377 U.S. 678 (Virginia); and WMCA, Inc. v. Lomenzo, 377 U.S. 633 (New York).
117 See Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966) (holding that “wealth or fee paying has, in our view, no relation to voting qualifications,” abolishing the state poll tax as a violation of the Fourteenth Amendment).
128 Ibid, 27.
131 Reported as Derby v. Blake in a supplement to the Massachusetts Reports, 226 Mass. 619, 115 N.E. 978 (1917), the case anticipated the U.S. Supreme Court’s decision in Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810).
133 Much of what we know about the “Ten Pound Act Cases” is thanks to the work of Richard Lambert, who unearthed the historical evidence of these early instances of judicial review in New Hampshire. Richard Lambert, “The ‘Ten Pound Act’ Cases and the Origins of Judicial Review in New Hampshire,” New Hampshire Bar Journal 43 (2002): 37.
137 Ibid, 426.
138 Ibid, 428.
141 Ibid, 435 (quoting Correspondence (July 3), New-Hampshire Spy (July 3, 1787)).
143 Ibid, 119.
145 Ibid, 160–164.
147 Merrill was not the first time the high court had declared that a legislative act could not be enforced; for example, the Superior Court of Judicature in Gilman v. M’Clary had ruled an act “ineffectual and inadmissible.” Timothy A. Lawrie, “Interpretation and Authority: Separation of Powers and the Judiciary’s Battle for Independence in New Hampshire, 1786–1818,” American Journal of Legal History 39 (1995): 322.
148 Trustees of Dartmouth College v. Woodward, 1 N.H. 111 (1817). This was the famous “Dartmouth College Case,” which the New Hampshire Supreme Court resolved in favor of the state controlling the college’s charter, a decision the U.S. Supreme Court reversed in Dartmouth College v. Woodward, 17 U.S. 518 (1819).