406 ' HARVARD LAW REVIEW. Constitution.^ The argument from British precedent begs the ques- tion of legislative authority, and takes it for granted that the people of New Hampshire, who went through the Revolution for rights of life, liberty, and property which they considered natural, essential, and inherent,^ proceeded deliberately, at the close of the struggle, to set up a government as despotic as. the one they overturned. The argument proves too much. If it had any force it would show that the members of the Senate and House, by amending wills, conveyances, and laws, can transfer to themselves all property, public and private, that is subject to their legislative control. The usage of the American Colonies and States before the adoption of constitutional limitations, has been a misleading pre- cedent. In Rice v. Parkman^ (decided in 1820), a legislative resolve, passed in 1792, had authorized A to sell and convey the real estate of B and C. Of this resolve the court said : " It is not legislation, which must be by general acts and rules, but the use of a parental or tutorial power for purposes of kindness." " The only object of the authority granted by the Legislature was to transmute real into personal estate for purposes beneficial to all who were interested therein. This is a power frequently exercised by the Legislature of this State since the adoption of the Consti- tution, and by the Legislatures of the Province and of the Colony, while under the sovereignty of Great Britain, analogous to the power exercised by the British Parliament, on similar subjects, time out of mind." Under the non-legislative reign of Parliament, and the pre-constitutional government of this State, there was no limit of governmental power to be decided or considered by the court. The Acts of banishment and confiscation passed and en- forced by the provisional government of the Revolution* were as valid as the Habeas Corpus Act.^ If, upon true construction, not modified by usage, the Massachusetts Legislature of 1792 could authorize A to make the conveyance that was upheld in Rice v. Parkman, they could make the conveyance without delegating their authority, could sell A's property without his consent, or authorize B and C to sell it, and can act as guardian and absolute sovereign in all cases in which they choose not to employ agents in their ^ H. R. Co. V. Brand, L. R. 4 Eng. & Ir. Ap. Cases, 171, 196. 2 Bill of Rights, Art. 2. » 16 Mass. 326.
- Acts of Nov. 19 and 28, 1778, Belknap, Hist. N. H., ch. 26.
6 Atherton v. Johnson, 2 N. H. 31, 34; Thompson v. Carr, 5 N. H. 510; Gould v, Raymond, 59 N. H. 260, 272-275; Jackson v. Stokes, 3 Johns. 151.
