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and, as amended, is still the constitution of the state. People sometimes speak of the constitution of 1792,"1 but a new constitution was not adopted in that year, and the designation is a misnomer. The state has had only two constitutions, that of 1776 and that of 1783.
CONSTITUTION PROPOSED IN 1781.
AN ADDRESS OF THE CONVENTION FOR FORMING A
CONSTITUTION OF GOVERNMENT FOR THE STATE
Friends and Fellow Citizens : The General Assembly of this State having thought proper to issue precepts to the several towns within the same, for choosing delegates to form a Convention for the purpose of framing a civil constitution for the people of this State; and the Convention having met in consequence of such choice, after maturely deliberating on the important subject, agree to report the following plan, which with the humblest deference is submitted to your impartial consideration.
The task of forming a constitution, adapted not only to our present situation, but to the probable situation and circumstances of remote posterity, is an arduous one indeed! How far we have succeeded in it you are the sole judges. It is your interest as well as duty, to examine it with the most critical attention; and it is your unquestionable right to propose such alterations as you may judge necessary, to approve and establish it as it now stands, or wholly to reject it.
A perfect system of government is not to be expected in the present imperfect state of humanity. But could a faultless one be framed, it would not be universally approved unless its judges were all equally perfect. Much less then, may we presume to hope that the plan
New Hampshire Reports, State v. Saunders, Vol. 66, p. 72.
here offered to view will meet with universal approbation. Unanimity of sentiment is seldom to be found in any case; there are many reasons for despairing of it in the present. Besides the common sources for variety of opinions on points in general, there are new and particular ones in the case before us. There is nothing which our open, avowed enemies more dread than to see the several States, each formed into a permanent and well constructed body politic, as nothing, under God, more contribute to the stability of their councils, or the success of their exertions. Nor have we any reason to doubt but that our secret, internal encmies are equally averse thereto. Every artifice will be devised, every effort tried to frustrate an event equally dreaded by both. Let us guard against their machinations.
Nor is it our enemies only we have to dread. We have much to fear from our friends: from those who wish well to the common cause, and are equally opposed to the common enemy.
The love of power is so alluring, we had almost said infatuating, that few have ever been able to resist its bewitching influence. Wherever power is lodged there is a constant propensity to enlarge its boundaries. Much more then, will those with whom it is entrusted, agonize to retain all that is expressly delegated to them. When the people of this State first thought proper to assume government for themselves, it was a time of difficulty and peril. That form which was the simplest, and first presented itself to their view, in the perturbation of spirits that then prevailed, they adopted without that thorough discussion and calm deliberation which so important an object required. It was not intended to be lasting. It was expressly declared by themselves to be temporary
In this imperfect form, the legislative and executive powers of government were vested in one body, to wit, in a General Court, consisting of two branches, a House of Representatives and a Council. Nor was any provision made therein for the exercise of the executive power in the recess of the general assembly. So great a defect was soon discovered and felt; and the court thus established by the constitution, without any new authority derived from the people, or without even consulting them, patched this flaw by delegating to a number of persons, whom they termed - The Committee
66 of Safety,” the executive power, to be by them exercised in the recess of the general assembly ; which mode has been since continued, and the committee have made an important part of the government.
A further defect, among innumerable others, is the want of an Exclusion Bill. In consequence of which, many of the individuals who compose the aftermentioned body, assist in enacting laws, in explaining and applying them, and in carrying them into execution.
Can it seem strange then, that such persons, and indeed all who are vested with the aforementioned powers, should be backward in receiving and approving of a constitution that so remarkably retrenches them? that sets out in direct opposition to the present one, with this position, that the three essential powers of government ought ever to be kept totally independent of each other? It is not strange, it is perfectly natural ; and the fact is fully verified by the length of time which the present form of government has been permitted to continue. But we trust you will with a manly and becoming firmness, oppose every interested adviser, reject every selfish motive, and with a noble independency of spirit “even of yourselves judge ye what is right.”
Having promised these things, we will proceed to consider as critically as the limits of our time will admit, the frame of government herewith exhibited to your view; its principles, and some of the motives that induce us to prefer it to any other system which occurred to us.
Availing ourselves of the various theories and forms of government we could meet with, whether new or old, examining their principles, and comparing them, as far as we were able with experience, the surest touchstone, and most infallible comment, we collected sufficient, and we hope the best, materials for the political building now presented to your view.
The three powers of government, before hinted at, to wit,—The legislative, or power of making laws—The judicial, or power of expounding and applying them to each particular case-And the executive, to carry them into effect, and give the political machine life and motion : These three important powers we have thought proper to keep as separate and distinct as possible, for the following reasons:
If they should be all united, the maker of the law would be the interpreter thereof, and might make it speak what language best pleased him, to the total abolition of justice.
If the executive and legislative powers should be vested in one body, still greater evils would follow. This body would enact only such laws as it wished to carry into execution, and would, besides, entirely absorb and destroy the judicial power, one of the greatest securities of the life, liberty, and property of the subject; and in fine, would produce the same system of despotism first mentioned.
And lastly, should the executive and judicial powers be combined, the great barrier against oppression would be at once destroyed: The laws would be made to bend to the will of that power which sought to execute them with the most unbridled rapacity.
These several powers should also be independent; in order to which they are formed with a mutual check
upon each other. We shall proceed to consider them distinctly.
The legislative power we have vested in a Senate and House of Representatives (with the reserve hereafter mentioned), each of which branches is to have a negative on the other; and either may originate any bill, except for the grant of monies, which is always to originate in the House. Any alterations or amendments may be proposed by either branch, in all cases. We have given the supreme executive power the right of revising and objecting to all the acts passed by the legislature, for reasons hereafter to be mentioned.
The manner of electing the second branch, or house of representatives, as it is new, requires a particular discussion.
Experience must have convinced every one who has been, in any degree, conversant with the transacting of business in public bodies, that a very large assembly is not the most convenient for the purpose.
There is seldom so much order, and never so much dispatch, as is to be found in a smaller body. The reason is obvious. This has given birth to the mode of choosing committees out of the whole body; and experience hath demonstrated its utility. The convention, therefore, were of opinion, that the confining this second branch to the number of fifty, which appeared to them sufficiently large for every purpose, would be attended with the following salutary consequences ;
First, There would be probably, a greater proportion of suitable men, than in a larger body. The manner of their choice, they being twice sifted, would likewise greatly promote this. The debates would, of course, be conducted with more wisdom and unanimity. From their numbers merely, there would be much less confusion, and infinitely more dispatch. This would of itself, produce an amazing saving in the expense, independent of the difference between paying fifty, and