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 or civil covenant was any agreement established or secured by God. The formal agreement made and subscribed to by members of a congregational church in order to constitute themselves as a distinct religious community had God as the witness and securer of the agreement. A religious covenant thus was essentially an oath, and if it established a political community, political obligation was secured by the oath rather than by merely resting upon the fact of consent having been given. Note that both the civil and religious meanings of covenant were related in that each was characterized by being witnessed and therefore secured by the highest relevant authority. Presumably any compact with both God and the Crown as securer would be simultaneously a civil and religious covenant. A civil covenant would require the presence of the royal seal, while a religious covenant could be invoked merely through the internal use of an oath.
Even with this restricted discussion two things become apparent. First, calling John Locke a “contract theorist” would have been considered a misnomer by colonial Americans. He was more properly a “compact theorist,” and in fact we find that his Second Treatise always uses the word “compact” and not “contract.” Second, the relationship between a covenant and a compact was a direct one. Both were based on the consent of those taking part. Both created a new community. Both implied a relationship that was stronger, deeper, and more comprehensive than that established by a contract. A compact, however, required simply the consent of those taking part, while a covenant required sanction by the highest relevant authority as well. In this regard, compact is the more modern of the two concepts, while covenant was the more natural term to use in a religious or a medieval context where the authority hierarchy was well defined and had a clear apex. A compact could be turned into a covenant merely by calling upon God to witness the agreement, which also turned consenting to the agreement into an oath. If a people found themselves in a situation where a mutual agreement had to be drawn up but it was not possible to obtain the royal seal in order to give the document legal status, the easiest solution for a religious people was to call upon God as a witness to bind those signing until the king’s legal sanction could be obtained. If, for some reason, a people reached a mutual agreement that was covenant-like but chose to call upon neither God nor the king, they must, for some reason, have considered themselves completely competent to establish the document’s legality. This last instance would be one in which legality was viewed as resting on the authority of the people, indicating an understanding of popular sovereignty. A compact was just such an agreement, one resting only on the consent of those participating. For this reason, Blackstone could say, “A compact is a promise proceeding from us, law is a command directed to us.”4 The fact that most of the early colonists were a religious people—a religious people primarily from Protestant religions who were experienced in forming their own communities and familiar with the covenant form for doing so—becomes an important part of the background to American constitutionalism. That these people were often thrown by circumstances into situations where they had to practice this skill of community building through covenants and that the charters under which they sailed often required that they provide for self-government, or at the very least permitted such activities, must be viewed as another historical circumstance of considerable importance for American constitutionalism.
An agreement between God and his chosen people, then, was a covenant. The judicious Hooker refers to “Christ’s own compact solemnly made with his church.”5 While the covenant to which Hooker was referring was not the Jewish covenant, the Protestants writing the colonial documents in question viewed their work as equivalent to the Jewish biblical covenants. It was certainly equivalent in the sense that calling upon God to witness a civil union not only turned a compact into a covenant but also indicated an accord with the broader covenant in the Bible, between God and his chosen people. Giving one’s consent to join a civil community with this kind of covenant was in part an act of religious commitment, and elections to identify “the elect” among those in the civil community were also acts of consent with religious overtones.6
Consent becomes the instrument for establishing authority in the community and for expressing the sovereignty of God. God transmits his sovereignty to the people through the broader covenant, and they in turn convey his sovereignty to the rulers on the basis of the specific covenant
