Lapas attēli
PDF
ePub

of any sort of a central government was doubtful. But these subjects were probably not even seriously considered at that time; they certainly were not mentioned in the convention. Yet does any one imagine that if Madison, or Wilson, or Hamilton had been permitted to frame a logical or consistent instrument of government, a constitution would have resulted which would not have covered such contingencies?

Our federal Constitution is not a logical piece of work. No document which originated by any such process as has been traced in this article could be logical or even consistent. The very unsatisfactory results that have come from the various attempts to make a so-called analysis" of the document for classroom use are an indication of this. From the very nature of its construction the Constitution defies analysis upon a logical basis. It is somewhat nearer the truth to speak of the Constitution as "a bundle of compromises." But that is only a half-truth, and leaves much to be explained. Our Constitution was a practical piece of work for very practical purposes. It arose from the necessity of existing conditions. It was designed to meet certain specific needs, and when those were provided for, the work was completed. John Quincy Adams well described it when he said that the Constitution "had been extorted from the grinding necessity of a reluctant nation."31

The framers of the Constitution were determined that the new instrument of government should be effective. It was accordingly provided that it should be the "supreme Law of the Land," that is, enforceable by the courts; in this enforcement, the government was to be backed by the power of armed might; and the federal Constitution was to be superior to the State constitutions, with all officers "both of the United States and of the several States *** bound by Oath *** to support this Constitution." This determination finds, perhaps, its best expression in the modification of the preamble in the last days of the convention's sessions. Up to that time the various drafts had read, "We the people of the States of New Hampshire, Massachusetts, Rhode Island," etc. But the committee on style changed this and the

31 Cited by Nicholas Murray Butler in Johns Hopkins University Studies, Fifth Series, p. 258.

32 McLaughlin, Confederation and Constitution, chap. 15.

convention approved the change, so that it declares:-"We the people of the United States *** do ordain and establish this Constitution."'33 Not a treaty, nor an agreement between sovereign states, but a law enacted by the highest of all law-making bodies-the people.

In the preface to the Frame of Government of Pensilvania, in 1682, William Penn quaintly said:-"Governments, like clocks, go from the motion men give them; and as governments are made and moved by men, so by them they are ruined too. Wherefore governments rather depend upon men than men upon governments." However radical

the differences between the Articles of Confederation and the federal Constitution, however sweeping the provisions of the later document and however carefully they might be worded, the most potent factor in rendering the new instrument of government effective was the changed attitude of the American people. In place of opposition or distrust, we find welcome and support for the new government. And this, too, was the result of experience the experience of a few years of poor government, amounting practically to misgovernment, under the Articles of Confederation.

33 Documentary History, iii, 444, 458, 720.

"Poore, B. P., Federal and State Constitutions (2d ed.), ii, 1519.

THE FIRST STATE CONSTITUTIONAL CONVENTIONS,

1776-1783

W. F. DODD

The distinction between constitutions and statutes is a fundamental one in American constitutional law, but it is a matter of surprise that no one has yet attempted to discuss this distinction in its historical origins. Brinton Coxe in his Judicial Power and Unconstitutional Legislation has traced the development of the doctrine that statutes in conflict with the constitution may be declared invalid by the courts. Judge J. A. Jameson in his Treatise on Constitutional Conventions has given a brief account of the adoption of the first State constitutions; but no one has yet studied the adoption of these constitutions in order to find what were the theories of their framers as to the distinction between constitutions and statutes.

By the term constitution, as used both in England and America before the Revolution, was understood the general and more permanent principles upon which government is based. The term was used on both sides of the Atlantic to signify something superior to legislative enactments, and the principles of the constitution were appealed to as beyond the control of the British parliament.1

Closely associated with this idea of a constitution beyond the power of legislative alteration, was the theory of the social contract; that is, that government is in some way based upon contract between the people and the state. By the separation of the colonies from Great Britain it was conceived that this contract was dissolved; as expressed by a meeting of New Hampshire towns: "It is our humble opinion, that when the Declaration of Independency took place, the

1 The term "constitution" was also used to a certain extent in the colonies to designate a written form or instrument of government. See Md. Archives, vii, 61. I am indebted to Dr. Bernard C. Steiner for this reference.

Colonies were absolutely in a state of nature, and the powers of government reverted to the people at large. * * *"12

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

The New Hampshire provincial congress in November, 1775, at the time of providing for the election of members to a new congress, voted that the precepts sent to the several towns should contain the request that "in case there should be a recommendation from the Continental Congress for this Colony to Assume Government in any way that will require a house of Representatives, That the said Congress for this Colony be Impowered to Resolve themselves into such a House as may be recommended, and remain such for the aforesaid Term of one year. "The Continental congress, on November 3, 1775, recommended "to the provincial Convention of New Hampshire, to call a full and free representation of the people, and that the representatives, if they think it necessary, establish such a form of government, as, in their judgment, will best produce the happiness of the people, and most effectually secure peace and good order in the province, during the continuance of the present dispute between G[reat] Britain and the colonies."

The provincial congress of New Hampshire, elected with power to resolve itself into a house of representatives, took such a step and adopted a temporary constitution on January 5, 1776. This action was not taken without opposition. The instructions to the repre

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

3 N. H. Provincial Papers, vii, 660. N. H. State Papers, viii, 2.

sentatives of Portsmouth had declared in favor of a continuance of government by the congress.5 Petitions from a number of towns were presented against the taking up of government, and several members of the house also protested against this action. Portsmouth protested on January 10, 1776, that "We would * have wished to have had the minds of the People fully Taken on such a Momentous Concernment, and to have Known the Plan, before it was Adopted, & carried into Execution, which is Their Inherent right;" and the instructions given to their representatives in the succeeding July provided specifically "that they nor any other Representative in future shall consent to any alteration, Innovation or abridgement of the Constitutional Form that may be adopted without first consulting their constituents in a matter of so much importance to their Safety."

The objections of the eastern towns of New Hampshire were based principally upon opposition to such a pronounced step towards independence, or upon doubts as to the expediency of such a step; but the towns of the county of Grafton, in the New Hampshire Grants, objected both to the method of adoption and to the substance of the constitution. Several towns refused to elect representatives because "No Bill of Rights has been drawn up, or form of Government Come into, agreeable to the minds of the people of this State, by an Assembly peculiarly chosen for that purpose, since the Colonies were declared independent of the Crown of Great Britain."8 Indeed the agitation in the western towns became so serious that it was necessary for the assembly to send a committee to conciliate that section, and to assure its inhabitants that the form of gavernment adopted in 1776 was purely temporary."

The proceedings of this committee with the meetings of the towns of the New Hampshire Grants are of interest as bearing upon the earlier steps leading to the adoption of a permanent form of government in New Hampshire. At a meeting of the town of Walpole in

[blocks in formation]
« iepriekšējāTurpināt »