Let us address the second task first because it is more fundamental. If these are foundation documents, it is reasonable to ask what it is that each document founds. There are four distinct foundation elements, and any document can contain one, all, or any combination of these elements: (1) the founding or creation of a people; (2) the founding or creation of a government; (3) the self-definition of the people in terms of shared values and goals so that the founded people may cross generations; and (4) the specification of a form of government through the creation of institutions for collective decision making. Let us consider each in turn.
Sometimes a document of foundation will create a people but not a government. It is as if those signing or agreeing to the document were saying, “Here we are, a new people, one distinct from all other peoples, declaring that we are ready to take our place on the stage of life.” The individuals composing the people were, of course, already alive as individuals, but the document creates a new life—that held in common. One could also speak of their creating a society, but this term is not quite strong enough because it implies simply a pattern of social interaction, whereas to create a people is to imply the creation or affirmation of a culture as well. A society may have rules for interacting, but it is the common values, goals, and shared meaning for a life together that define a people. While some social scientists will point out that all known societies have required shared values and meaning in order to function, the crucial fact of a foundation document containing shared values is the celebration and conscious affirmation of that which is shared. There is the implication of a link with something transcendent that ties them together as a people. It is the difference between working together to build a wall to keep out enemies and creating a church in which to worship the god of the land enclosed by the wall.
Other documents will create a people and then establish a government in only the most general terms. The Providence Agreement (1637) [32] is a good example. A group of individuals unanimously agree to form themselves into a people, and then to be bound as a people by decisions reached by a majority among them—including the form of government. It is easy to discern the dead hand of John Locke in the distinction between the unanimous creation of a people and the majoritarian basis for their government, even though in 1637 Locke’s Second Treatise was still more than half a century in the future. The Plymouth Combination (Mayflower Compact) of 1620 [3] has the same Lockean format, as do other documents in the collection.
Those documents that contain the element of self-definition are particularly interesting. It is unusual for a document to create a people without also outlining the kind of people they are or wish to become, although some documents do contain further illumination of a people that already exist. This self-description of a people is the foundation element usually overlooked, yet from this element what we later call bills of rights will evolve. Three Virginia documents [69, 70, and 72] contain this foundation element and are typical in that the values of the people are implicit in the prohibitions enumerated. Commitment to godliness, order, and cleanliness are obvious. Despite its name, the Massachusetts Body of Liberties (1641) [22] also implies commonly held values, largely through a set of explicit prohibitions. That it is called a “Body of Liberties” points toward what this element will become. In other documents the values and self-definition of a people will be spelled out explicitly with no need for inferences on the part of the reader. Whether explicit or implicit, this foundation element represents what Voegelin sometimes called a people’s self-illumination, and later in our history we will be unable to exclude this element from what we will come to call a constitution.
The fourth foundation element, the specification of a form of government, present only embryonically in documents like the Plymouth Combination (1620), gradually comes to occupy a larger proportion of our foundation documents. The word used internally to identify this element is often “constitute.” That is, within colonial documents the writers usually “agree” to form a people or a government but “constitute” a form of government. That this part of early state constitutions, the part describing specific forms and institutions, is usually termed “The Constitution or Form of Government” thus becomes quite understandable. It is the fourth foundation element grown to prominence in a foundation document, and it is still being introduced by the term used in early colonial documents of foundation. Some colonial documents contain only this fourth element, others combine it with additional foundation elements. In either case, we can watch the development of American political institutions found later in our constitutions—institutions like popular elections, majority rule, bicameralism, separation of powers, and checks and balances.
Because one or more elements may be present in a given document, if only in embryonic form, it is often arguable just how the document should be categorized with respect to these foundation elements. As a further aid to comparative analysis, it is both useful and interesting to consider the various terms used internally in the documents, a task to which we now turn.
Part 2
DEFINITION OF TERMS
It has been said that humans have a tendency to develop a multiplicity of terms for things that are prominent in their lives so as to distinguish subtle yet important variations. Thus, for example, Eskimos are said to have many words to identify types of snow, and in classical Athens there were many forms of community identified, each with its own descriptive term. If we follow this same logic, it is apparent that the English-speaking people of the seventeenth and eighteenth centuries considered political agreements to be of great importance because they regularly used over a dozen different terms, sometimes interchangeably, but more often to distinguish subtleties they considered noteworthy. We will need to examine some of these linguistic alternatives for two reasons: because we require an understanding of what the issues were and because the more general words we have inherited were not used to describe the document as written. For example, when we examine the documents in this volume, we discover that the word “covenant” is only occasionally used to describe a document by those writing it, even though many of the documents were understood to be covenants by their respective authors and had the covenant form internally. “Covenant” was too broad a term, and the authors often preferred a more restrictive, precise title.
The same is true for “compact.” The term is not used in any of the titles of these colonial documents, at least not by those who wrote them. The Mayflower Compact was not so named until 1793 and was referred to by the inhabitants of the colony as the Plymouth Combination, or sometimes simply as The Combination. To make sense out of these documents, then, we will first need to define the broad categorical terms of covenant, compact, contract, and organic act, and then recover the understanding in use at the time for charter, constitution, patent, agreement, frame, combination, ordinance, and fundamentals.
A contract, on the one hand, usually implied an agreement with mutual responsibilities on a specific matter; that is, a contract implied a restricted commitment such as in a business matter and involved relatively small groups of people. The contract could be enforced by law but did not have the status of law.
A compact, on the other hand, was a mutual agreement or understanding that was more in the nature of a standing rule that, if it did not always have the status of a law, often had a similar effect. A compact implied an agreement that affected the entire community in some way, or relations between communities. The word had the root meaning of “knitting together” or “bringing the component parts closely and firmly into a whole.” A compact, therefore, was an agreement creating something that we would today recognize as a community. Because a compact was not as precise as a contract and more like a settled rule than an agreement with specific, reciprocal responsibilities, we do not find talk of a Mayflower Contract.
A covenant could be viewed as having two distinct though related meanings. As a legal term in England, it referred to a formal agreement with legal validity made under the seal of the Crown. This denoted an agreement of a serious nature witnessed by the highest authority. The religious counterpart to this secular