In summary, we find the word “constitution” associated with making or establishing something, giving it legal status, describing the mode of organization, locating sovereignty, establishing limits, and describing fundamental principles. Not surprisingly, it was often used in association with charter, law, statute, ordinance, frame, and fundamentals. In our usage today “constitution” implies and incorporates at least part of all these other terms plus some of what we associate with compact. Although the usage of the word during the seventeenth century sounds familiar to our ears, the various components had not yet been brought together in any complete fashion. Also the term “constitution” was not used to refer to a specific document as we are inclined to do today. The English had developed the concept of a written constitution, but the writing was scattered over thousands of documents and no one was quite sure which documents should be included. When Americans finally brought all the elements together in a single document in 1776, the term “constitution” was to include far more than had been outlined by Bolingbroke. Indeed, the early state constitutions would derive their elements from agreements, compacts, and covenants as well as from frames, charters, fundamentals, and ordinances. The word “constitution” is not used in any of the documents duplicated in this volume, although the word “constitute” is used in several.
Part 3
ANALYTIC OVERVIEW
Although one major purpose for publishing these foundation documents is to lead others to analyze them both individually and together, it is not inappropriate to initiate that analysis by presenting here some of the apparent developments that they embody. Let us briefly outline some of the things that a reading of these documents together leads us to conclude.
1. Political covenants were derived in form and content from religious covenants used to found religious communities.
2. A complete political covenant had the following elements: (a) an oath calling on God as a witness or partner; (b) the creation of a people whose members are identified by those who signed the covenant; (c) the creation of a civil body politic, or government; (d) the specification of the shared goals and values, a shared meaning, that defined (self-defined) the basis for the people living together; and (e) the creation and description of institutions for collective decision making.
3. The political covenant form evolved rather quickly into the political compact form. A political compact is identical to a political covenant except for the absence of an oath in a compact. The elimination of the oath resulted in the force of the document, and therefore the basis of political obligation, resting entirely on the consent of those signing it. The move from political covenant to political compact is thus a shift to de facto popular sovereignty.
4. The political compact eventually evolved into what we now recognize as the American form of constitutionalism. In this evolution, the first two compact elements—the creation of a people and of a government—become part of the American Constitution’s preamble or the first few provisions in the Bill of Rights; the self-definition element evolves into a bill of rights, although parts of the self-definition are often found as well in a preamble or introduction; and the description of institutions for collective decision making grows into the body of the constitution proper, which becomes the major part of the total political compact’s length. The early state constitutions, which contained all of these foundation elements, described themselves internally as “compacts.”
5. The oath did not cease to be politically relevant but became the basis for creating and identifying citizens outside of the formal documents of foundation and sometimes in place of them (documents 4, 5, 9, 15, 16, and 47 are examples). During the colonial era it was not unusual for an oath to be used as the entire founding document. Anyone taking the oath was effectively performing the same act as signing the end of a political covenant or compact. Beyond the promise to be a good citizen, however, these “founding” documents had little further specification. Many colonial foundational documents have oaths for citizens and elected officials internal to them in addition to other foundation elements. Today we still use an oath to produce citizens and to activate the formalities of citizenship (such as the oath-taking in court), so in a real sense we still view our Constitution as equivalent to a covenant because it rests on the actual or implied oaths of all citizens. That is, because new citizens are required to take an oath to uphold the Constitution, it must be assumed that citizens born here did something that was equivalent to an explicit oath at some point in their life.
6. During the colonial era, the terms “agreement” and “combination” were used interchangeably with “covenant” and “compact,” both internally and in the titles of documents, to describe what were in fact either political covenants or political compacts.
7. With few exceptions, when the covenant or compact forms were used it was the people who were acting.
8. During the colonial era, when the legislature acted in a founding or foundation amending capacity, the resulting documents were interchangeably termed an “ordinance,” an “act,” or a “code.”
9. With few exceptions, the content of the ordinance form was limited to one or both of the last two foundation elements.
10. During the colonial and early national eras, the terms “frame,” “plan,” and “constitution” were used interchangeably to describe that part of a political compact that created the institutions of decision making.
11. In approximately two-thirds of the colonial foundation documents the last two founding elements are separated, i.e., one element is found in a document without the other. In approximately one-third of the documents these elements are found together in the same document. Thus, colonists were twice as likely to separate these two elements as they were to combine them, which later led to some confusion as to whether state constitutions should include bills of rights. Some combined these founding elements in the body of the document; many separated the two elements into two sections, calling only that section containing the last element the “constitution”; and some did not contain a bill of rights at all. It is interesting that when the elements were combined in the early state constitutions, the bill of rights was always at the front of the document immediately after or as part of the preamble.
12. The colonists were willing to let the legislatures speak for them in matters of self-definition and the creation of governmental institutions but not when it came to forming themselves into a people or founding a government. The exception to the latter is found in those documents founding a federation or confederation of existing towns or colonies. This distinction led to the natural expectation that legislatures could write state constitutions that addressed only the last two elements. When these documents were complete compacts and therefore included the other elements as well, the expectation was that the documents should be approved by the people as well. When the first group of elements was not present, popular ratification was not always expected.
Part 4
EDITORIAL DECISIONS
Whenever one is faced with transcribing historical documents there are a number of decisions that need to be made. One is whether to use the original spelling and grammar. In the case of these documents it was decided to introduce as few emendations as possible and to identify the emendations that might have been introduced earlier by others. One emendation introduced by this transcriber involves the occasional deletion of lists of names at the end of a document. These instances are noted by comments in brackets. Anything else in brackets constitutes an alteration introduced by an earlier transcriber that this one cannot eliminate by reference to the actual text. In many instances this is because the original text no longer exists and we are limited to some transcription in its place. The use of a bracket sometimes indicates a blank or an indecipherable word or words in the original text. In some cases the text that was transcribed had been systematically altered by an earlier transcriber. For example, the oldest surviving