Part 1
FROM COVENANT TO CONSTITUTION
Local government in colonial America was the seedbed of American constitutionalism—a simple fact insufficiently appreciated by those writing in American political theory. Evidence for neglect can be found simply by examining any book dealing with American constitutional history and noting the absence of references to colonial documents written by Americans. Rather, at best there will be brief references to Magna Carta, perhaps the English Constitution, and probably the Declaration of Independence. If the authors of these books discuss the source of American constitutional theory beyond these few documents, they will almost inevitably mention European thinkers, John Locke being prominent among them. It is the purpose of this volume to end such neglect and reverse such attitudes.
Work by historians during the Bicentennial has pointed us in the direction of reexamining the colonial roots of our political system, but the implications of this work have not been absorbed by political scientists.1 Furthermore, historians are not inclined to put their questions in such a way as to lead to the comprehensive examination of colonial documents of political foundation. Intellectual historians almost immediately look to Europe and the broader Western tradition when seeking the roots of constitutionalism for the simple reason that a profound constitutional tradition is there to examine. There has also been a tendency to view the American Revolution as the fundamental watershed in American history, closely followed by the Civil War. This outlook introduces an unavoidable sense of discontinuity in American thinking and affairs. Rather than suggest that the perception of such discontinuities should be rejected, it is instead argued here that we should look for continuities as well. One fundamental continuity to be found runs from the earliest colonial documents of foundation to the written constitutions of the 1770s and 1780s. We should look to our own shores as well when seeking a constitutional tradition for America.
One important caveat must be mentioned. This author has argued elsewhere that there are two constitutional traditions running through colonial documents.2 The first tradition can be found in the charters, letters-patent, and instructions for the colonists written in England. In certain respects, the United States Constitution favors this tradition. The second tradition is found in the covenants, compacts, agreements, ordinances, codes, and oaths written by the colonists themselves. While the U.S. Constitution embodies aspects of this tradition as well, it is in the early state constitutions that we find the full flowering of this second tradition.
These traditions, while in certain respects distinct, also interpenetrate each other. Most of the early colonial charters allow the colonists to design their own political institutions and practice self-government, and most of those charters that did not so provide explicitly at least permitted the colonists to fill in the blanks themselves. Charter revisions and colonial document writing took each other into account, and often one was the result of the other. Nevertheless, it needs to be emphasized that the former set of documents was handed down to, or imposed on, the colonists, while the second set was written by the colonists themselves.
The two traditions were blended to produce a constitutional perspective uniquely American. The fact that American colonists were invariably here as the result of a written charter that could be amended led to their becoming used to having a written document defining the context of their politics and having a document that could be altered through some political process. The English had a written constitution, but it was composed of the vast corpus of common law and legislative ordinance. English colonists in America became familiar with the idea of a single document being the focus of their link with that vast corpus.
At the same time, English colonists in America became used to writing their own documents to flesh out the particulars of their governments. This was partly the result of necessity—time and distance between England and America did not permit close control from England. It was also the result of choice. The religious dissenters who were prominent in the first waves of migration came to America to establish their own communities where they could practice their religion free from outside interference. This desire plus the structure of their churches led them to use self-written covenants as part of their political definition. It is a very short step to move to a blending of these two traditions wherein Americans would find themselves writing single, amendable documents as the focus of their political systems and calling these documents constitutions. The Pilgrim Code of Law, for example, begins by referring to both the charter from the king and the Mayflower Compact as its legal basis.
We will, in this volume, be concentrating on what has been termed here the second tradition. We will be looking at those documents of political foundation written by the colonists themselves. The charters are already well known and easily accessible.3 The documents written by the colonists are not well known and are generally not easily accessible, even where they are identified. Nevertheless, the reader should keep in mind that the documents presented in this volume are only part of the picture, although they are the most neglected part of the picture.
Nor should the reader conclude that every document of political foundation is here included. No doubt there are others that remain buried in obscure collections, and perhaps future researchers will argue that some that are known and not included in this category should be. All that is claimed for the present collection is that it probably represents most of such documents, and that those reproduced here are typical for, and representative of, American colonial documents of political foundation.
We have spoken of a “constitutional tradition.” We have suggested that the Pilgrim Code of Law (1636) was one of the first constitutions in the English language. We also speak of the Massachusetts Constitution of 1780 and the Pennsylvania Constitution of 1776 as if such titles were not problematic. All three kinds of statements assume that we know what is meant by the term “constitution.” From the outset it is best to consider this term something to be determined rather than something assumed; it is because we start off thinking we know what a constitution is that we have not given these colonial documents the close textual analysis they deserve.
To illustrate this point, consider the 1776 Virginia Constitution. It is always reproduced in our century with the title at the beginning as “The Constitution of Virginia.” This is immediately followed by the first part of the document, which is entitled “Bill of Rights.” Sixteen sections later we come to the second part, which is labeled “The Constitution or Form of Government, Agreed to and Resolved Upon by the Delegates and Representatives of the Several Counties and Corporations of Virginia.” Here we have a puzzle. If the part after section sixteen of the Bill of Rights is the Constitution, then is the Bill of Rights properly part of the Constitution? And if not, why is the entire document called a constitution? If the Bill of Rights is part of the Constitution, then why is the second part labeled the way it is? The 1776 Maryland Constitution uses the same format, as do those of New Hampshire (1784) and North Carolina (1776). Pennsylvania (1776) and Vermont (1776) label the second part “The Plan of Government” or “The Frame of Government,” as does Massachusetts (1780). Furthermore, this latter document, considered the most influential state constitution ever written, describes itself internally as a “compact” and not a “constitution.” It is worth noting that the originals of these early state documents were not printed with the word “Constitution” in their respective titles. Are these early state documents that we habitually label “constitutions” really constitutions or something else?
It is neither feasible nor appropriate to answer this question here in detail, but many of the early state constitutions