Sunday, October 10, 2010

"During the continuance of the present dispute"

I was looking at some early state constitutions the other day and noticed something in New Hampshire's constitution of January 5, 1776 that surprised and confused me. The opening paragraph of the New Hampshire constitution - the first promulgated by any of the American colonies - indicated the New Hampshire Congress had asked the Continental Congress for advice on whether to establish a new government, and that the Continental Congress had recommended that New Hampshire do so (emphasis added):
WE, the members of the Congress of New Hampshire, chosen and appointed by the free suffrages of the people of said colony, and authorized and empowered by them to meet together, and use such means and pursue such measures as we should judge best for the public good; and in particular to establish some form of government, provided that measure should be recommended by the Continental Congress: And a recommendation to that purpose having been transmitted to us from the said Congress: Have taken into our serious consideration the unhappy circumstances, into which this colony is involved by means of many grievous and oppressive acts of the British Parliament, depriving us of our natural and constitutional rights and privileges; to enforce obedience to which acts a powerful fleet and army have been sent to this country by the ministry of Great Britain, who have exercised a wanton and cruel abuse of their power, in destroying the lives and properties of the colonists in many places with fire and sword, taking the ships and lading from many of the honest and industrious inhabitants of this colony employed in commerce, agreeable to the laws and customs a long time used here.
I found this surprising because I had understood that the Continental Congress had first recommended to the colonies that they establish new governments by resolution agreed to Friday May 10, 1776:
Resolved, That it be recommended to the respective assemblies and conventions of the United Colonies, where no government sufficient to the exigencies of their affairs have been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.
What, then, was this recommendation that the Continental Congress made to New Hampshire, apparently some six months earlier? A note to the text of the New Hampshire constitution mentioned a "Resolution of the American Congress for Establishing a Form of Government in New Hampshire and the Resolve of the Provincial Congress, for taking up Government in Form", but provided no details.

A hunt through the Journals of the Continental Congress turned up the answer. On Wednesday October 18, 1775 "[t]he delegates from New Hampshire [at that point apparently Josiah Bartlett and John Langdon] laid before the [Second Continental] Congress, a part of the instructions delivered to them by their Colony." The part of the instructions concerning which the New Hampshire delegates "appl[ied] for advice" stated as follows:
We would have you immediately use your utmost endeavours to obtain the advice and direction of the Congress, with respect to our administring [sic] Justice, and regulating our civil police. We press you not to delay this matter, as, its being done speedily (yr. own knowledge of our circumstances must inform you) will probably prevent the greatest confusion among us.
Congress resolved "That consideration of this be referred to Monday next", October 23, 1775.

Congress did not address the matter on October 23 as scheduled, apparently because it learned that day that Peyton Randolph of Virginia had died the day before. However, on Thursday October 26, 1775 Congress did take up the issue and appointed a committee of five "to take into consideration the instruction given to the delegates of the Colony of New Hampshire, and report their opinions thereon." The five committee members were John Rutledge of South Carolina, John Adams of Massachusetts, Samuel Ward of Rhode Island, Richard Henry Lee of Virginia and Roger Sherman of Connecticut.

The committee delivered its report to Congress on Thursday November 2, 1775. The next day, Friday November 3, 1775, the "Congress, taking into consideration the report of the Com[mitt]ee on the New Hampshire Instructions", issued the following resolution:
Resolved, That it be 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 be 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.
Herein lies, I expect, the explanation for the November 3rd resolution's obscurity. Congress recommended that New Hampshire establish "a form of government" only "if they think it necessary" and only "during the continuance of the present dispute" - as if that dispute might be resolved. The May 10, 1776 resolution, in contrast, recommended the establishment of governments without these provisos and (by implication) on a permanent basis.

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