The Story of the First State Constitution

On this day 250 years ago, the self-styled Congress of New Hampshire promulgated the first state constitution — indeed the first American constitution. As we ring in the new year and prepare to observe the Declaration of Independence’s semiquincentennial anniversary in July, let’s not forget the state constitutions preceding it that are no less reflective of the Spirit of ’76. Although it would quickly be eclipsed in relative importance by the constitutions of Virginia and Pennsylvania and their accompanying declarations of rights, New Hampshire’s first constitution, the practical concerns that occasioned its adoption, and the proto-federalism critical to that process, provide an object lesson in state constitution-making. The promulgation of this document marked a key turning point on the colonies’ path toward representative self-government and federalism and set the tone for subsequent constitution-making.

An Early Experiment

New Hampshire’s experiment with independent government preceded its constitution by some time, and this experience informed its decision to draft a constitution. Following the closure of Boston’s port in May 1774, the New Hampshire colonial assembly defied the colony’s royal governor by appointing a provincial Committee of Correspondence to coordinate with other colonies in resisting heavy-handed British policies. The governor responded by adjourning and ultimately dissolving the assembly, which in turn responded by issuing its own summons to meet. This rogue assembly called for the towns of New Hampshire to send representatives to what would become the first Provincial Congress of New Hampshire. Two months later, that body met and voted to select delegates to the Second Continental Congress, apportion money to defray their costs, and recommend the towns raise funds for the relief of those affected by the Boston Port Act.

Having seemingly accomplished its purposes, the Provincial Congress would promptly dissolve. And yet, affairs in the colony were rapidly spiraling out of control. In December 1774 — four months before his famed Midnight Ride — Paul Revere rode 55 miles from Boston to Portsmouth, New Hampshire to warn that the British were coming. Patriots quickly gathered, storming the harbor’s fort and seizing its gunpowder, which was later used at the Battle of Bunker Hill. Responding to the crisis of authority, a Second Provincial Congress met in January 1775 and urged New Hampshirites to “discontinue and discourage all trespasses and injuries against individuals and their property, and all disorders of every kind” and to “yield due obedience to the Magistrates.” As royal authority waned, a new authority was necessary to maintain order in the colony. The Provincial Congress, however, cognizant of its limited purview, was reticent to act on its own to provide that authority.

That would soon change as civil government in the colony collapsed completely. The next few months would see formal hostilities commence at the battles of Lexington and Concord and at Bunker Hill. In August, facing threats to his life, New Hampshire’s royal governor fled the colony, never to return. Faced with an awkward situation where the colony had no government, New Hampshire’s Provincial Congress wrote to the Second Continental Congress “to obtain the advice and direction of the Congress, with respect to a method for our administring [sic] Justice, and regulating our civil police.” Anticipating a response, the Provincial Congress called new elections with wider suffrage.

Precisely what the Continental Congress’s response would look like was unknown. Following a June 1775 request from the Massachusetts Provincial Convention seeking Congress’s “most explicit advice respecting the taking up and exercising the powers of civil government,” Congress had recommended holding elections and establishing a government based on the colony’s 1691 charter until the king would appoint a governor who would “consent to govern the colony according to its charter.” Unlike Massachusetts, New Hampshire had always been a royal colony and therefore had no charter on which to fall back. Authority in the colony was intimately connected to the royal governor: He was “the head of the province, the centre of the local administration, the chief executive of the colony,” and the “head of the judiciary,” exercising appointment and dismissal power over virtually all judges, justices of the peace, sheriffs and all other officers.

In a bold move, the Continental Congress recommended that the New Hampshire Provincial Congress “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.” New Hampshire’s delegates to the Continental Congress were pleased with the outcome, though they noted that for diplomatic reasons, “the government is limited to the present contest” — a point with which they were none too concerned, as “once we had taken any sort of government nothing but Negotiation with Great Britain can alter it,” a prospect that looked rather dim at that stage.

Taking Pen to Paper

The Provincial Congress set to work drafting the constitution, completing its work between December 21, 1775 and January 5, 1776. The most striking feature of the document it produced is the preamble, which takes up over a third of the 930-word constitution. The framers were careful to begin by noting that they were “chosen and appointed” and “authorized and empowered” by the “free suffrages” of New Hampshire, and that they were acting pursuant to the recommendation of the Continental Congress. As to their immediate motivation in framing a constitution, the framers pragmatically wrote that the “sudden and abrupt departure” of the royal governor and his supporters in government had left the colony “destitute of legislation,” with “no executive courts being open to punish criminal offenders” so that “the lives and properties of the honest people of this colony are liable to the machinations and evil designs of wicked men.” The Provincial Congress, having been empowered and encouraged by the Continental Congress, was finally ready to step in and act with authority, establishing a government “for the preservation of peace and good order, and for the security of the lives and properties of the inhabitants of this colony.”

The constitution was framed at a time when there was still at least some possibility of peaceful reconciliation with Britain. The government it created was only “to continue during the present unhappy and unnatural contest with Great Britain,” dependence on which, the framers protested, they “never sought to throw off.” Again, in a form of proto-federalism, the Provincial Congress deferred to the Continental Congress, expressing that its members “shall rejoice if such a reconciliation between us and our parent State can be effected as shall be approved by the CONTINENTAL CONGRESS, in whose prudence and wisdom we confide.”

Having declared their purposes and expressed their desire for peace, the framers set about creating a practical government. The Congress would convert itself into a “House of Representatives,” which would serve as the lower chamber of a bicameral legislature, subject to annual elections. Twelve members of the House from specified geographic districts would be selected to serve in the upper chamber, or “the Council,” and subsequently elected on an annual basis. All laws would have to be passed by both branches of the legislature and provision was made for the appointment of various public officials by the legislature. While there were no express rights guarantees, the document mentioned the people’s “natural and constitutional rights and privileges,” which would have been understood as those protected at common law.

Planting the Seeds of Representative Democracy

The New Hampshire Constitution of 1776 was short-lived — it was replaced in 1784. Its success, however, cannot be judged by its length of time in force. Rather, it must be measured by what it set in motion. This hastily drafted document was something new: a written constitution. In it, we see the seeds that would blossom into the representative governments Americans enjoy today in their states and in the federal government, including a bicameral legislature and regular popular elections. This prototypical state constitution inaugurated what historian Gordon S. Wood called “the most creative and significant period of constitutionalism in modern Western history,” not because of the U.S. Constitution, but “because of the revolutionary state constitutions that preceded the Constitution by more than a decade.”

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The New Hampshire Constitution of 1776 is a quintessentially American document and one Americans should remember with gratitude.

Nathaniel M. Fouch is a law professor at Capital University Law School in Columbus, Ohio.

Suggested Citation: Nathaniel M. Fouch, The Story of the First State Constitution, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 5, 2026), https://statecourtreport.org/our-work/analysis-opinion/story-first-state-constitution