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 were considered by their authors to be compacts. This raises the question of what a compact is and in turn leads us to the early colonial documents, for many of them were compacts. At the same time, many of these colonial documents were not compacts. In order to understand these colonial documents, we must first define the terms commonly used internally to describe them. Second, we must provide categories that will allow us to distinguish the various types of documents.
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
