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The constitution of the state of New Hampshire recognizes a "right of revolution".

Has anyone used Article 10 as the legal justification for something they have done? In how many cases has it been successfully so used, and in how many unsuccessfully? What happened?

[Art.] 10. [Right of Revolution.] Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

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    It's unclear to me what you're asking: The article itself describes the circumstance under which a government should be reformed or replaced. And it says nothing explicit about the nature of "force" that ought to be employed to effect that change. – feetwet May 1 '17 at 15:11
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    I guess it works the same way as everywhere: if you succeed you have freed the people from oppression, if you fail you are guilty of treason... – SJuan76 May 1 '17 at 21:47
  • @feetwet : "Resistance" implies physical coercion; "revolution" usually connotes physical coercion. And the criteria given are not concrete. – Michael Hardy May 1 '17 at 21:49
  • Then it sounds like this might be off-topic as "opinion-based," unless you're asking, "Has Article 10 ever been (successfully) invoked as a legal justification for an action in New Hampshire?" – feetwet May 1 '17 at 22:33
  • @feetwet I think that this is exactly what is being asked and I have answered it on that basis. – ohwilleke May 1 '17 at 23:30
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Article 10 of Part I of the Constitution of New Hampshire (Article 10, Part II relates to classification of town governments) is mentioned in five reported appellate cases in the history of New Hampshire since it was adopted in 1784 that I could locate. It has never successfully been effective to protect the rights of anyone invoking it. (It is possible that it has been argued in a trial court on a jury nullification theory, but such cases wouldn't produce reported cases as criminal acquittals cannot be appealed by the government.) The cases, and the pertinent part of each ruling, are as follows:

  • Orr v. Quimby, 54 N.H. 590, 619 (1874), it was held to create a moral rather than a legal right:

The legal idea of a bill of rights is a declaration of private rights, annexed to and made a part of a constitutional grant of governmental power. Reservation is, in general, the purpose and legal meaning of such declaration. For exceptional reasons, applicable to the construction of article 10, the right of insurrection there declared is evidently a moral right, not reserved as a legal one. But many of the most important constitutional rights are reserved in terms much less imperative than "shall" and "shall not." The right of petitioning for a redress of grievances (the plaintiff's sole remedy, if the plea is good) is reserved by a simple declaration of the right, without a word literally signifying a command or prohibition.

  • It was also addressed in the case Opinion of the Justices, 144 N.H. 374, 746 A.2d 981 (1999) where it was found to not invalidate a means of raising revenue for a municipal electrical utility:

Question two inquires whether HB 536 "violate[s] the constitutional provision that government is instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men under part I, article 10 of the New Hampshire constitution?" We answer this question in the negative.

Part I, Article 10 provides:

Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly [746 A.2d 987] endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

This provision of our constitution has commonly been regarded as enumerating a citizen's right to reform an ineffectual or manifestly corrupt form of government. See City of Claremont v. Craigue, 135 N.H. 528, 533-34, 608 A.2d 866, 869 (1992); Nelson v. Wyman, 99 N.H. 33, 50, 105 A.2d 756, 770 (1954). We have recognized for over one hundred years, however, that this provision is imbued with "[t]he principle of equality [that] pervades the entire constitution," State v. Pennoyer, 65 N.H. 113, 114, 18 A. 878, 879 (1889), and as such, Article 10 provides support for the maxim that "[t]he law cannot discriminate in favor of one citizen to the detriment of another." Id. Thus, Part I, Article 10 has been recognized as providing for more than a "right of revolution"; rather, it is one of many provisions in our Bill of Rights that forms the basis for a citizen's right to equal protection. See, e.g., Town of Chesterfield v. Brooks, 126 N.H. 64, 67, 489 A.2d 600, 602 (1985) (zoning ordinance violated equal protection rights guaranteed by Part I, Articles 1, 2, 10, 12, and 14); Gazzola v. Clements, 120 N.H. 25, 29, 411 A.2d 147, 151 (1980) (statute violated equal protection rights guaranteed by Part I, Articles 1, 10, 12, and 14).

Pursuant to the principle of equality inherent in Article 10, this court found that the raising of tax revenue to aid an electric utility would violate Part I, Article 10's mandate that government is "instituted for the common benefit ... of the whole community, and not for the private interest or emolument of any one man, family, or class of men." Opinion of the Justices, 88 N.H. 484, 489, 190 A. 425, 429 (1937).

Aid to a utility is forbidden except in protection of the public welfare and interest. And the protection must be in a needed service furnished the public by the utility as a condition of the aid. Without the condition the protective principle is inapplicable. Unconditional aid is not a proper charge of government to be met by the taxpayers. 144 N.H. 382

Id. at 488-89, 190 A. at 428. The court noted that the existing public utilities already provided sufficient power to service State customers, and that any additional supply was sent out-of-state. Id. at 489, 190 A. at 429. The court reasoned that because the transmission of additional electric energy outside the State served no public purpose, and thus the need for public funds for additional development was a private, not public, purpose, the proposed aid was unconstitutional. Id.

In this case, however, the legislature is proposing to create a tax exemption, rather than directly raising tax revenue to subsidize private purposes. Cf. Opinion of the Justices (Mun. Tax Exemptions for Indus. Constr.), 142 N.H. at 101, 697 A.2d at 124 (finding determinative under Part II, Article 5 that there was not direct expenditure, but rather a uniform exemption of state-wide application). Moreover, even if one views an exemption as simply a form of direct grant, see Eyers Woolen Co. v. Gilsum, 84 N.H. 1, 9, 146 A. 511, 515 (1929) (exemptions are "in effect, a compulsory payment of money, by those who bear their shares of the common burden, to the privileged person who does not bear his share"), the public benefit gained by this legislation is sufficient to render it constitutional. Our constitution does not require absolute equality of burden in the case of exemptions. "The resulting inequality or discrimination against unexempted property is not fatal to the constitutionality of the exemption," Opinion of the Justices, 87 N.H. 490, 491, 178 A. 125, 126 (1935), provided "it advances a public purpose," Opinion of the Justices, 95 N.H. at 550, 65 A.2d at 701, and is "properly within the legislature's discretion in acting for the welfare of the state," Opinion of [746 A.2d 988] the Justices, 87 N.H. at 491, 178 A. at 126. As stated above, the benefit to be gained by HB 536 is increased competition and customer choice, and not necessarily the need for additional power. Further, deregulation of the electric utility industry is "properly within the legislature's discretion in acting for the welfare of the state," id., and it is proper for the legislature to enact exemptions that promote the economic well-being of the State, see Opinion of the Justices (Mun. Tax Exemptions for Indus. Constr.), 142 N.H. at 100, 697 A.2d at 123. Accordingly, the tax exemption is properly granted under the legislature's "constitutional power to provide for the common benefit, protection and security," Opinion of the Justices, 88 N.H. at 487, 190 A.2d at 428, and does not violate Part I, Article 10.

To the extent that question two implicates additional equal protection guarantees under Part I, Article 10, cf. Gazzola, 120 N.H. at 29, 411 A.2d at 151, we conduct our analysis concurrently with the next question you posed; namely, whether HB 536 improperly classifies taxable property such that the burden of taxation is inequitably distributed, cf. Rosenblum v. Griffin, 89 N.H. 314, 320-21, 197 A. 701, 706 (1938) (constitutional issue of classification decided under Part I, Article 10). For the reasons stated below, this part of question two is answered in the negative.

  • In another case, City of Claremont v. Craigue, 135 N.H. 528, 608 A.2d 866 (1992), it was argued unsuccessfully, that voter approval cleansed an improperly adopted budget of the taint of improper steps taken prior to the vote:

Finally, the respondents cite part I, article 10 of the New Hampshire Constitution, known as the right of revolution, as a general right to self-determination. Part I, article 10 provides in pertinent part that "whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, [135 N.H. 534] or establish a new government." Without in any way detracting from the continuing validity and truth of part I, article 10, we find that none of [608 A.2d 870] the conditions specified in that article have been met in this case. Prohibiting voter ratification of a city's budget hardly "perverts" the ends of government or manifestly endangers public liberty, so long as the city's voters retain the right to elect their local representatives. Moreover, the defendants have not exhausted all other legal means of redress, since, as we noted above, the legislature has set forth a statutory procedure for charter revision, and that option remains available to the voters of Claremont.

Therefore, the respondents' proposed revisions to the Claremont city charter are invalid, and of no effect.

  • It was brought up, without success, in In re Town of Bethlehem, 154 N.H. 314, 911 A.2d 1 (2006), but I don't have access to that particular opinion in which an environmental regulation was challenged.

  • It was raised in Nelson v. Wyman, 99 N.H. 33, 105 A.2d 756 (1954) where the court concluded that it did not invalidate a McCarthy era law:

It is also strongly urged by the plaintiff that the Legislature of this state cannot proscribe activities looking to the overthrow of government by force or violence because of Article 10 of the Bill of Rights which provides, in part, that ‘whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind’. With this interpretation we cannot agree. The right reserved to the people by this Article is not such a broad and unlimited right of insurrection and rebellion as to permit any group which is dissatisfied with existing government to lawfully attempt at any time to overthrow the government by force or violence. It is not claimed by the plaintiff that ‘the ends of government’ are now ‘perverted’, ‘public liberty manifestly endangered, and all other means of redress * * * ineffectual’ but it is only when those conditions prevail that the right to resist and to ‘reform the old, or establish a new government’ exists. The right possessed by the people of this state as a protection against arbitrary power and oppression cannot be utilized to justify the violent overthrow of government when the adoption of peaceful and orderly changes, properly reflecting the will of the people, may be accomplished through the existing structure of government.

99 N.H. 51

Dennis v. United States, 341 U.S. 494, 501, 549, 71 S.Ct. 857, 95 L.Ed. 1137. To require a government representative of the people, in the face of preparations for revolution by force, to refrain from acting to curb the [105 A.2d 771] outbreak of violence and to confine itself solely to holding answerable those persons who have committed crimes of violence and terrorized the community in the name of revolution must result in anarchy. Dennis v. United States, supra, 341 U.S. 501, 71 S.Ct. 857. Article 10 was not intended to accomplish this result.

So far as the circumstances of this case have required an examination of the 1951 act, we conclude that it is constitutional upon its face, so as to furnish a basis for the resolution of 1953.

  • Interesting that in passing you mention jury nullification, since several years ago (maybe a decade ago?) New Hampshire was for a brief time the only one among the fifty states whose laws explicitly condoned jury nullification. – Michael Hardy May 2 '17 at 14:48

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